MIRZA VIQAS RAUF J. The petitioner namely Husnain Inam is son of Mr. Inam-ul-Rahiem, Advocate, who is a practicing lawyer . As per contents of the petition, on night of 16/17 December , 2019 at about 12:30 am about eight to ten armed personnel clad in black uniform entered into the house of the petitioner situated at Sector-A, Askari- XIV, Adyala Road Rawalpindi. They forcib ly took away the father of the petitioner without any clue and while leaving the premises extended threats to the petitioner of dire consequences. It is noteworthy that the alleged detenue was previously serving in Pakistan Army and he got retired being Lieutenant Colonel in the year 2007.
2. This petition is moved under Article 199(1)(b)(i) of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred as "Constitution") arraying Ministry of Defence interior , Govt. of Pakistan and Provincial Police Department, seeking production of the alleged detenue and a declaration that his custody is illegal and unlawful.
On the presentation of the petition by way of order dated 18th December , 2019 when one of the law officers on behalf of the Federation appeared by his own, he was directed to ask the responde nts to file reply/comments within two days. On the next date, on behalf of respondents No.1 & 2 a letter dated 18th December , 2019 was placed on record, whereby the relevant agencies were asked to furnish information about the alleged detenue. The respondents No.3 & 4, on the other hand, have taken the stance that regarding the alleged occurrence FIR No.542 dated 20th December , 2019 under Section 365 of the Pakistan Penal Code, 1860 has already been got registered at Police Station Morgah, District Rawalp indi. The respondents No.1 & 2, however , sought time to file report and parawise comments. While affording them an opportunity , they were directed not to linger on the matter and immediately consult all the relevant quarters and furnish information to the Court. It was also observed that if the stance of the said respondents is that they have no information or clue of the person in question, then the same should be supported with duly sworn affidavits of the concerned quarters. The Regional Police Officer, Rawalpindi was also directed to supervise the proceedings carried out in furtherance of FIR registered to this effect. On the adjourned date i.e. 23rd December , 2019 on behalf of respondent No.2 a reply was submitted alongwith an affidavit of one Shahzad Anjum, Section Officer with the contention that relevant agencies i.e. Federal Investigation Agency (F.I.A), Pakistan Rangers and Islamabad Police have informed that the alleged missing person namely Lieutenant Colonel (Retired) Inam-ul-Rahiem, Advocate has neither been arrested nor detained by anyone of them. It was apprised by the Regional Police Officer, Rawalpindi that a team has been though constituted to recover the alleged missing person but till date there is no clue about him, however , efforts are underw ay. He was, however , directed to gain information from Counter Terrorism Department (CTD) and secure footage of Closed-Circuit Television (CCTV) cameras installed in the society and if any damage to the said footage has been caused, then the concerned may be taken to legal task. On the contrary , learned Additional Attorney General, while making reference to letter No.02/217/Dir (Legal)/19 dated 23rd December , 2019 submitted that Inter-Services Intelligence (ISI), Military Intelligence (MI) and Intelligence Bureau (IB) have also been asked to make reports/information about the matter in question. He sought time for the purpose of submission of report of the said departments alongwith affidavits of the concerned to that effect. It was then directed that reports of the above said departments of the Federal Government, supported with affidavits, be fetched and filed in the Court till the next date of hearing. On 26th December , 2019 a fresh report was submitted by the Regional Police Office, Rawalpindi wherein he mentioned that Lieutenant Colonel (Retired) Inam-ul-R ahiem, Advocate was abducted from Askari-XIV , Housing Scheme, Rawalpindi and concerned officials of the said housing scheme are not handing over the Closed-Circuit Television
(CCTV) camera' s footage and other relev ant record to the police without permission from the concerned quarters (Army Officers). Since at the relevant time, Brigadier Falak Naz, Director (Legal) of the Ministry of Defence was in attendance, so he was directed to immediately establish contact with the relevant quarters for handing over Closed-Circuit Television (CCTV) camera' s footage and other relevant record to the police well before the next date of hearing. He was further directed to positively furnish the reports coupled with the affidavits of all the concerned departments i.e. Inter-Services Intelligen ce (ISI), Military Intelligence (MI) and Intelligence Bureau (IB) regarding the matter in issue on or before the next date and for the said purpose last opportunity was granted. Finally on 02nd January , 2020 through a report dated 30th December , 2019 it was apprised that Lieutenant Colonel (Retired)
Inam-ul-Rahiem, Advocate has been taken into Military Custody under the provisi ons of Section 2(1)(d) read with Sections 59 and 73 of the Pakistan Army Act, 1952 (hereinafter referred as "Act, 1952") and the Official Secrets Act, 1923 (hereinafter referred as "Act, 1923") and at present he is under investigation in the light of said provisions of law. In view of this development and after hearing respective contentions of both the sides, petition was admitted for regular hearing by way of order dated 03rd January , 2020 and matter was set for final hearing.
3. Mr. Muhammad Wasif Khan, Advocate , learned counsel for the petitioner contended that proceedings for taking into custody the alleged detenue has been initiated in the garb of Section 2(1)(d) of "Act, 1952". He added that impugned action is illegal and unlawful on the ground that mere receipt of informat ion or arrest on account thereof, would not mean that the alleged detenue has become an accused under the said provision of law. It is contended that unless a person, whose custody is sought is an accused, he cannot be treated subject to "Act, 1952". It is emphatically argued that though the alleged detenue was taken into custody on the allegations of commission of an offence under the "Act, 1923" but mandatory provisions contained therein have completely been ignored. Learned counsel further added that there is a clear distinction between person subject to the Act and the person, who otherwise not subject to the Act but has been made subject of the Act in terms of clause (d) of Section 2(1) of "Act, 1952". Learned counsel emphasized that the impugned action is tainted with mala fide and coram non judice. It is contended with vehemence that on above account bar in terms of Article 199(3) of "Constitution" cannot be pleaded in the way of this petition. In order to supplement his contentions, learned counsel placed reliance on "BRIG.
(RETD.) F.B. ALI AND ANOTHER versus THE STATE" (PLD 1975 Supreme Court 506), "SAIFUDDIN SAIF versus FEDERA TION OF PAKIST AN AND 3 OTHERS" (PLD 1977 Lahore 1174) and "Syed MUHAMMAD ANW AR SHOHRA T BOKHARI versus FEDERA TION OF P AKIST AN AND 3 OTHERS" ( PLD 1981 Lahore 742 ).
4. Conversely , Mr. Sajid Ilyas Bhatti, Additional Attorney General for Pakistan, while referring Section 2(1)(d) of "Act, 1952" submitted that Mr. Inam-ul-Rahiem, Advocate has been taken into custody as per mandate of Section 73 of the Act ibid. He added that in terms of Rule 13 of the Pakistan Army Act Rules, 1954, Commanding Officer is vested with the power to proceed against the accused in custody on the basis of commission of an offence under the "Act, 1923". It is submitted that there are serious allegations against the alleged detenue that he has violated the provisions of "Act, 1923" which made him liable to be proceeded under Section 59 of "Act, 1952". Learned law officer contended that there is no legal impediment for the Army Authorities to take into custody a person, who is accused of an offence defined in the "Act, 1923". Learned law officer emphatically contended that the alleged detenue is an accused, who is a subject of the "Act, 1952" and as such this petition is not maintainable in view of specific bar under Article 199(3) of "Constitution". It is also one of the contention s of learned law officer that the instant petition was filed as habeas corpus and when the alleged detenue is in the legal custody of the Army Authorities, it has become infructuous. In support of his contentions, learned law officer has relied upon "MUSHT AQ AHMED and others versus SECRET ARY, MINISTR Y OF DEFENCE through Chief of Air and Army Staff and others" (PLD 2007 Supreme Court 405) and "ALI RIZW AN RAJA versus FEDERA TION OF PAKIST AN and others" ( PLD 2019 Islamabad 273 ).
5. After having heard learned counsel for the petitioner as well as learned law officer at considerable length, I have perused the record and gone through the relevant provisions cited by both the sides in order to appreciate their respective contentions in true perspective.
6. This petition is in the form of habeas corpus as contemplated under Article 199(1)(b)(i) of "Constitution" which reads as under :- "199. (1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law ,--
(a) .............
(i) ..............
(ii) .............
(b) On the application of any person, make an order--
(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or ; ; ; (Underlining supplied for emphasis)
From the bare perusal of the above referr ed provision of law it is manifestly clear that while exercising jurisdiction in terms of Article 199(1)(b)(i) of "Constitution", the Court has to satisfy itself that a person who has been taken into custody by the law enforcement agencies was taken so with due process of law and his custody is backed by some legal authority .
7. In this regard, to my mind, case of "Malik GHULAM JILANI versus (1) THE GOVERNMENT OF WEST PAKIST AN, THROUGH THE HOME SECRET ARY, LAHORE AND (2) THE DEPUTY COMMISSIONER, LAHORE" (PLD 1967 Supreme Court 373) is quite relevant. In the said case, a question had arisen regarding the illegality or otherwise of detention orders of three persons, namely Malik Ghulam Jillani, Sardar Shaukat Hayat Khan and Nawabzada Nasrullah Khan. The objection was raised before the Hon'ble Supreme Court of Pakistan that as the detenues had been released from the custody , therefore, their appeals have become infructuous. The Hon'ble Apex Court held that though the alleged detenues were already released from the custody but even then the Court can determine the legality of the orders, whereby they were kept in confinement. The relevant extract from the said judgment is reproduced below:- "It remains to mention that during the course of the hearings of these appeals all the three detenus were released by the Provincial Government. In the ordinary course, such release would have had the effect of causing the appeals to abate, but in these cases, learned counsel urged that since in each case the detention bad exceeded a period of nine months, the detenus had thereby incurred disqualification in respect of their right to stand for elections to representative offices, by the effect of section 53 of the Electoral College Act and section 106 of the National and Provincial Assemblies (Elections) Act. Each of them was a politician of standing and was gravely prejudiced by this result in respect of his future political career and each of them was therefore interested to establish that his detention was illegal. The Court was therefore asked to record a decision as to the legality of the detention order of the 16th February 1966. ...........I would hold that the detention of Nawabzada Nasrullah Khan under the Deputy Commissioner's order of the 16th February 1966, was illegal, but as to Sardar Shaukat Hayat Khan and Malik Ghulam Jilani, I would hold that the detentions were made in accordance with law and under lawful authority . The two appeals relating to Nawabzada Nasrullah Khan should accordingly be allowed and since his detention was bad ab initio, he should have his costs in the appeal filed by himself. The appeals relating to Sardar Shaukat Hayat Khan and Malik Ghulam Jilani should be dismissed with no order as to costs."
8. In recent past, a learned Division Bench of this Court, in the case of "Mrs. IFRAH MUR TAZA and another versus GOVERNMENT OF PAKIST AN and others" (PLD 2019 Lahore 565), while relying upon the principles laid down in the case of Malik GHULAM JILANI' s supra, observed as under :- "Moreover , we daily appoint Bailif fs in different petitions of habeas corpus, for the recovery of the alleged detenus from the custody of the police and though in the case of illegal detention of any person by the police, Bailif f takes the custody of the said person and releas es him with the direction to appear befor e the Court on the next date but even then the Courts determine the question of legality of detention of a person by the police and if it is established that the detention of any person was illegal then orders of imposition of fines, departmental actions and even registration of FIRs are passed by the Courts against the delinquent police officials, inspite of the fact that the detenu had already been released from the custody . Reference in this context may also be made to the cases of 'Zafar Iqbal v. The Province of Sindh and 2 others' (PLD 1973 Karachi 316) and A1i Ahmed v. Muhammad Yakoob Almani, Deputy Suprintendent of Police, Qasimabad, Hyderabad and 5 others' (PLD 1999 Karachi 134)."
It is even otherwise bounden duty of this Court, being the custodian of the fundamental rights of the citizens to examine the question relating to the curtailment of their liberty , with vigor and due care as the right of liberty of a person is one of the valuable fundamental rights guaranteed under Article 9 of "Constitution".
9. The alleged detenue though was an Army Officer but he got retired in the year 2007 and after his retirement joined the profession of law. There is consensus to this effect that as such he ceases to be subject of the "Act, 1952". As per stance of respondent No.1, he has been taken into military custody under the provisions of Section 2(1)(d) read with Sections 59 & 73 of "Act, 1952" and "Act, 1923". Dilating upon the scope and mandate of all these provisions one by one, it is observed that Section 2(1)(d) of "Act, 1952" is neither a penal clause nor it creates any offence against the said Act. Section 2 of "Act, 1952" defines the persons, who are subject to the Act and reads as under:- "2. Persons subject to the Act.- (1) The following persons shall be subject to this Act, namely:---
(a) of ficers, junior commissioned of ficers and warrant of ficers of the Pakistan Army;
(b) persons enrolled under The Indian Army Act, 1911 (VIII of 1911), before the date notified in pursuance of sub- section (2) of section 1, and serving with the Pakistan Army immediately before that date, and persons enrolled under this Act;
(bb) persons subject to the Pakistan Navy Ordinance, 1961 (XXXVI of 1961), or the Pakistan Air Force Act, 1953 (VI of 1953), when seconded for service with the Pakistan Army , to such extent and subject to such regulations as the Federal Government may direct;
(c) persons not otherwise subject to this Act, who, on active service, in camp, on the march, or at any frontier post specified by the Federal Government by notification in this behalf, are employed by, or are in the service of or are followers of, or accompany any portion of the Pakistan Army;
(d) persons not otherwise subject to this Act who are accused of-
(i) seducing or attempting to seduce any person subject to this Act from his duty or allegiance to Government, or
(ii) having committed, in relation to any work of defence, arsenal, naval, military or air force establishment or station, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Pakistan, an offence under the Of ficial Secrets Act, 1923;
(iii) claiming or are known to belong to any terrorist group or organization using the name of religion or a sect; and
(a) raise arms or wage war against Pakist an, or attack the Armed Forces of Pakista n or law enforcement agencies, or attack any civil or military installations in Pakistan; or
(b) abduct any person for ransom, or cause death of any person or injury; or
(c) posses, store, fabricate or transport the explosives, fire arms, instrument, articles, suicide jackets; or
(d) use or design vehicles for terrorist acts; or
(e) provide or receive funding from any foreign or local source for the illegal activities under this clause; or
(f) act to over-awe the state or any section of the public or sect or religious minority; or
(g) create terror or insecurity in Pakistan or attempt to commit any of the said acts within or outside Pakistan, shall be punished under this Act; and
(iv) claiming or are known to belong to any terrorist group or organization using the name of religion or a sect and raise arms or wage war against Pakistan, commit an offence mentioned at serial No. (i), (ii), (iii),(v),(vi), (vii), (viii), (ix), (x), (xi), (xii), (xii), (xv), (xvi), (xvii) and (xx) in the Schedule to the Protection of Pakistan Act, 2014 (X of 2014).
Provided that any person who is alleged to have abetted, aided or conspired in the commission of any offence falling under sub-clause (iii) or sub-clause (iv) shall be tried under this Act wherever he may have committed that offences: Provided further that no person accused of an offence falling under sub-clause (iii) or sub-clause (iv) shall be prosecuted without the prior sanction of the Federal Government.
Explanation: In this clause in the expression 'sect' means a sect of religion and does not include any religious or political party regulated under the Political Parties order , 2002.
(e) persons not otherwise subject to this Act who belonged to the former East Pakistan Civil Armed Forces and were repatriated to Pakistan after the sixteenth day of December , 1971.
(2) Every person subject to this Act unde r clause (a) or clause (b) or clause (e) of sub-section (1) shall remain so subject until duly retired, released, discharged, removed or dismissed from the service.
(3) Every person subject to this Act under clause (bb) of sub-section (1) shall remai n so subject during the period of his secondment to the Pakistan Army .
(4) The Federal Government shall have the power to transfer any proceedings in respect of any person who is accused of any offence falling under sub-clause (iii) or sub-clause (iv) of clause (d) of sub-section (1), pending in any court for a trial under this Act.
(5) Any proceedings transferred under sub-section (4) shall be deemed to have been instituted under this Act.
(6) Where a case is transferred under sub-section (4)it shall not be necessary to recall any witness or again record any evidence that may have been recorded."
It is obvious from the title of the section that it defines the persons who are subject to the "Act, 1952". There are two categories of persons defined therein. First category is relating to the persons, who are in active service of any of the Armed Forces and are mentioned in sub-clauses (a) to (c), who by virtue of their status are subject to the Act undoubtedly . The other category is of the persons, who are not otherwise subject to the "Act, 1952" but if they are accused of the offences mentioned in sub-clause (d), they also become at the same pedestal as to the first category for the purposes of the "Act, 1952".
10. Chapter V of "Act, 1952" enumerates the offences of different nature starting from Sections 24 to 58. Section 59 of the Act ibid deals with the civil offence committed by the person subject to the Act whereas Section 8(3) defines the "civil of fence" as under:- "(3) "civil of fence" means an of fence which, if committed in Pakistan, would be triable by a Criminal Court;"
By virtue of Section 59 of "Act, 1952" all civil offences committed by persons subject to the Act are brought within the purview of the "Act, 1952" but the scheme of the section shows that the offences do not lose their character as being civil offences. It has made persons subject to the Act, who have committed any such civil offence and are charged therewith, only "liable to be dealt with under this Act". Same is the position of persons who become subject to the Act by virtue of subsection (4) of Section 59. They also become only liable to be tried or otherwise dealt with under the "Act, 1952" for an offence mentioned in clause (d) of Section 2(1) as if the offence was an offence against the Act and was committed at a time when such person was subject to the "Act, 1952".
11. Since the alleged detenue was otherwise not subject to the Act and he was treated so in terms of Section 2(1)
(d) of "Act, 1952" so the term "accused" used therein becomes of great importance. Sub-clause (d) of Section 2(1) was initially not the part of statute but it was added in "Act, 1952" through Defence Services Laws (Amendment)
Ordinance, 1967 (III of 1967) with effect from 25th September , 1967 and its scope came under consideration before the Hon'ble Supreme Court of Pakistan in the case of "BRIG. (RETD.) F.B. ALI AND ANOTHER versus THE STATE" (PLD 1975 Supreme Court 506) and while defining the term "accused" the Hon'ble Apex Court held as under:- "In my view the mere lodging of an information does not make a person an accused nor does a person against whom an investigation is being conducted by the police can strictly be called an accused. Such person may or may not be sent up for trial. The information may be found to be false. An accused is, therefore, a person charged in a trial. The Oxford English Dictionary defines an "accused" as a person "charged with is a crime" and an "accusation" as an "indictment". Aiyer in his Manual of Law Terms also gives the same meaning. I am of view, therefore, that a person becomes an accused only when charged with an offence. The Criminal Procedure Code also uses the word "accused" in the same sense, namely; a person over whom a Court is exercising jurisdiction."
Though the above aspect has received only a passing reference in the above said case but it had clinched the true import of term "accused" used in Section 2 (1)(d) of the "Act, 1952".
12. This Court in the case of "SAIFUDDIN SAIF versus FEDERA TION OF PAKIST AN AND 3 OTHERS" (PLD 1977 Lahore 1 174), while pondering upon the mandate of Section 2(1)(d) of "Act, 1952" observed as under :- "15. It has not been denied that civilians-term used in a general sense--as distingu ished from the personnel in the Armed Forces covered under clauses (a), (b) and (bb) as also persons other than those belonging to the Armed Forces who are employed or are in the service of or followers of the Pakistan Army , were not originally included in the various categories of persons subject to the Army Act. It is also an admitted position that all such civilians have not been made so subject, in all matters, to the Army Act. Only two categories of offences are mentioned in sub- clauses (i) and (ii) of clause (d) of subsection (1) of section 2 in connection with which the so-called civilians are made so subject. It is further to be noted that the specified offences are also offences under the ordinary law and, but for this special provision, are triable in ordinary course of criminal proceedings under the general codes and procedures applicable to all civilians. Thus, essentially clause (d) provides an exception and the same has to be construed strictly . Due benefit to the persons concerned in this behalf cannot be withheld on any general consideration which are obvious and which it is not necessary to spell out. The above course of action is also necessitated by the use of the phrase "persons not otherwise subject" prefixed as a starting point for bringing the so-called civilians under the Army Act.
16. Keeping the foregoing principle in view, it is necessary to give content and meaning to each provision of this all important clause (d) of subsection (1) of section 2 which makes persons not otherw ise subject to the Army Act and its provisions; with which such persons, undoubtedly , are ordinarily not to familiar; as these persons, as ordinary citizens, are familiar with the other prevailing laws relating to crime, its detention and punishment. Clause (d) clearly specifies that a person who is not otherwise subject to the Act would become so subject only when "He--is --Accused of" one or more of fences mentioned therein."
After having an overview of the principles laid down in the above cited judgments , it can safely be inferred that a person cannot be said to be "accused" in order to bring him within the mischief of the "Act, 1952" unless the Military Authorities have found out a prima facie case against him, and have formally charged him. Until that stage is reached, a person, if not ordinarily subject to the Act, cannot be held to be an accused and thereby made subject to the Act. Reference in this respect can also be made to "Syed MUHAMMAD ANW AR SHOHRA T BOKHARI versus FEDERA TION OF P AKIST AN AND 3 OTHERS" ( PLD 1981 Lahore 742 ).
13. Attending the contention of learned law officer that the custody of the alleged detenue is duly covered under the Pakistan Army Act Rules, 1954 (hereinafter referred as "Rules, 1954"), suffice to observe that very language used in clause (d) of Section 2 of the "Act, 1952", a person would not be subject to the Act unless he is accused of in a formal sense and till then he would not have to be dealt with under the Military Law as such. Therefore, till the precise stage of the formal accusation, the person would not be so subject and that being so, many complications which otherwise can be visualized would not arise. Accusation is undoubtedly a stronger phrase than mere complaint. Though both the words carry the meaning of a charge, yet in case of complaint it relates to a stage when the charge is still to mature into an accusation. This minute and trivial distinction can be spelled out from the combined reading of Rules 13, 15 and 19 of "Rules, 1954". In terms of Rule 19 charge sheet is required to be contained whole issue or issues to be tried by a court martial at one time and it has been defined "an accusation contained in a charge sheet that a pers on subject to the Act has been guilty of an offence." This question is further clarified through a note appended underneath Rule 19 wherein it is mentioned that charge referred in Rule 19 is the formal written charge upon which the accused is to be tried, as distinct from the charge or complaint mentioned in Rules 13 and 15 which give rise to preliminary investigation. The reading of Note 1 also spelled out from the word charge thus the word "complaint", "charge" and "accusation" have been used as different phrases conveying different senses. Similar conclusion would be derived from the bare reading of Section 73 of "Act, 1952", which reads as under:- "73. Custody of offenders.--- (1) Any person subject to this Act who is charged with any offence may be taken into military custody .
(2) Any such person may be ordered into military custody by any superior officer, or except in the case of a person subject to this Act as an of ficer, by any member of the military , naval or air force police.
(3) An officer may order into military custody any officer, though he may be of a higher rank, who is engaged in a quarrel, af fray or disorder ."
The note appended with this provision also clarified that charges referred to in sub-sections (1) & (2) of Section 73 as also in rules 13 and 15 relating to arrest and investigation are different from that referred to in rule 19. The latter is the formal charge preferred by the Commanding Officer and set out in the written charge sheet if and when it is decided to send the accused to trial. The former is simply a complaint that an offence has been committed. The nutshell of above discussion is that provisions referred hereinabove only cater the process relating to the persons subject to Army Act excluding the persons mentioned in Section 2(1)(d) of the "Act, 1952".
14. It is evident from the record that Mr. Inam-ul-Rahiem, Advocate has been taken into custody on the allegations of commission of offences under "Act, 1923". The said Act provides a mechanism for the arrest as well as trial of the offences as is embodied in Sections 11, 12 and 13 of the said Act. A person accused of an offence under the "Act, 1923" can only be arrested as contemplated in Section 11 thereof. Section 12 deals with the power to arrest and reads as under:- "12. Power to arrest.-- Notwithstanding anything in the Code of Criminal Procedure, 1898,-
(a) [Omitted]
(b) an offence under this Act, other than an offence punishable with imprisonment for a term which may extend to fourteen years, shall be a cognizable and bailable of fence; and
(c) any member of the armed forces of Pakistan may, without an order from a Magistrate and without a warrant, arrest in or in the vicinity or a prohibited place, any person who has been concerned in an offence under section 3, under section 3 read with section 9, or under clause (a) or clause (b) or subsection (1) of section 5, or under clause
(a) of sub-section (1) of section 6, or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned, and shall without unnecessary delay take or send the person arrested before a Magistrate having jurisdiction in the case or before an officer in charge of a police-station, and thereupon the provisions of the said Code applicable in respect of a person who, having been arrested without warra nt, has been taken or sent before a magistrate or before and officer in charge of a police-station shall apply to him."
(Underlining supplied for emphasis)
It is manifestly clear from sub-section (c) that any member of the Armed Forces of Pakistan can only arrest a person without any formal order from the Magistrate and without a warrant in or in the vicinity of a prohibited place.
The prohibited place is defined in Section 2(8) of "Act, 1923" which is reproduced below for ready reference:- "(8) "Prohibited place" means -
(a) any work of Defence, arsenal, naval, military or air force establishment or station, mine, minefield, camp, ship or aircraft belonging to, or occupied by or on behalf of, Government, any military teleg raph or telephone so belonging or occupied, any wireless or signal station or office so belonging or occupied and any factory , dockyard or other place so belonging or occupied and used for the purpose of building, repairing, making or storing any munitions of war, or any sketches, plans, models or documents relating thereto, Or for the purpose of getting any metals, oil or minerals of use in time of war;
(b) any place not belonging to Government where any munitions of war or any sketches, models, plans or documents relating thereto, are being made, repaired, gotten or stored under contract with, or with any person on behalf of, Government, or otherwise on behalf of Government;
(c) any place belonging to or used for the purpose of Government which is for the time being declared by the appropriate government, by notification in the official Gazette, to be a prohibited place for the purposes of this Act on the ground that information with respect thereto, or damage thereto, would be useful to an enemy , and to which a copy of the notification in respect thereof has been af fixed in English and in the vernacular of the locality;
(d) any railway , road, way or cannel, or other means of communication by land or water (including any works or structures being part thereof of connected therewith), or any place used for gas, water or electricity works or other works for purposes of a public character , or any place where any munitions of war or any sketches, models, plans, or documents relating thereto, are being made, repaired or stored otherwise than on behalf of Government, which is for the time being declared by the appropriate Government by notification in the official Gazette, to be a prohibited place for the purpose of this Act on the ground that information with respect thereto, or the destruction or obstruction thereof, or interference therewith, would be useful to an enemy , and to which a copy of the notification in respect thereof has been af fixed in English and in the vernacular of the locality; Provided that where for declaring a prohibited place under sub-clause (c) or sub-clause (d) a notification in the official Gazette is not considered desirable in the interest of the security of the State, such declaration may be made by an order a copy or notice of which shall be prominently displayed at the point of entry to, or at a conspicuous place near , the prohibited place."
The arrest was thus clear in negation of the above referred provisions of law. Needless to observe that if in the opinion of respondent No.1, the alleged detenue was an accused of the offences under the "Act, 1923", he may have a resort to the provisions contemplated in the "Act, 1923" and then to Section 549 of the Code of Criminal Procedure, 1898 seeking his delivery to the Military Authorities to be tried by the court martial.
15. Learned law officer has though supplemended his contentions with the judgment reported as "MUSHT AQ AHMED and others versus SECRET ARY, MINISTR Y OF DEFENCE through Chief of Air and Army Staff and others" (PLD 2007 Supreme Court 405) but it is observed with all reverence that the facts of the said case runs on entirely different footings having no nexus with the matter in hand as there is no cavil to the proposition that a civilian person, when once becomes the subject of "Act, 1952", he would be liable to be tried and punished as a person who is otherwise subject to the "Act, 1952". So far the principles laid down in the case of "ALI RIZW AN RAJA versus FEDERA TION OF PAKIST AN and others" (PLD 2019 Islamabad 273), it is observed that in presence law laid down by the Hon'ble Supreme Court of Pakistan in the case of "BRIG. (RETD.) F.B. ALI AND ANOTHER versus THE STATE" (PLD 1975 Supreme Court 506) which was followed by this Court in the cases of "SAIFUDDIN SAIF versus FEDERA TION OF PAKIST AN AND 3 OTHERS" (PLD 1977 Lahore 1174) and "Syed MUHAMMAD ANW AR SHOHRA T BOKHARI versus FEDERA TION OF PAKIST AN AND 3 OTHERS" (PLD 1981 Lahore 742) there remains no binding force in the said judgment. It appears that the learned Islamabad High Court, Islamabad was not assisted properly in the said matter . Any judgment of a High Court cannot lay down the principles contrary to the Hon'ble Apex Court as it of fends the mandate of Article 189 of the "Constitution".
16. Adverting to the ouster clause contained in Article 199(3) of "Constitution" it is observed that the said clause prohibits the Court for making an order on application made by a person, who is member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law. In view of clause (5) of the same Article, a "tribunal established under a law relating to the Armed Forces of Pakistan" is not included in the term "person" to whom a direction can be issued under the Article. Subsection (4) of section 59 of "Act, 1952", makes it clear that jurisdiction of this Court under Article 199 of "Constitution" is only barred in respect of a person mentioned as above. A civilian, who is otherwise not subject to the Pakistan Army Act, can become so subject, if he is "accused" of an offence under clause (d) of subsection (1) of section 2 of the Pakistan Army Act. Even otherwise it is by now well settled principles of law that whenever order/action impugned is without jurisdiction, malafide or coram non judice, bar under Article 199(3) of "Constitution" would not be attracted. The impugned action of the Army Authorities of taking into custody Mr. Inam-ul-Rahiem, Advocate is not only without lawful jurisdiction but is clearly tainted with malafide as spelled out from the facts of the instant case mentioned in preceding paragraph No.2 as they have made all endeavor to withhold the factum of detention from the Court. Guidance in this respect can be sought from "FEDERAL GOVERNMENT M/o DEFEN CE, RAWALPINDI versus Lt. Col. MUNIR AHMED GILL" (2014 SCMR 1530 ) and Civil Appeal No.1038 of 2006 "GHULAM ABBAS NIAZI versus FEDERA TION OF P AKIST AN and others" (PLD 2009 Supreme Court 866).
17. For the foregoing reasons, the instant petition is allowed. As a consequence thereof, detention of Mr. Inam-ul- Rahiem, Advocate is declared illegal and unlawful as such he is directed to be set at liberty forthwith.
18. The above are the detailed reasons of short order dated 09th January , 2020, which reads as under: - "For the reasons recorded to be later this petition is accepted, as a result thereof, detention of Mr. Inam-ul-Rahiem, Advocate with the Army Authorities is declared illegal and unlawful. He shall be released forthwith."