ISLAMABAD: Attorney General (AG) Muneer A. Malik said in the Supreme Court on Friday that in his independent opinion neither the Pakistan Army Act 1952 nor Pakistan Penal Code/Criminal Procedure Code prohibited registration of a case and initiation of a criminal proceeding against a serving army officer if he misused his authority with mala fide intent.
Citing several court verdicts, the AG argued that the protection to a serving army officer would not be there if he abused his legal authority.
The AG was arguing before a two-judge bench headed by Justice Jawwad S. Khawaja that had taken up an application filed by Abida Malik. She has sought production of her husband Tasif Ali alias Danish who went missing on Nov 23, 2011 and was allegedly picked up by Major Haider of the Military Intelligence (MI).
The matter was reported to the Sadiqabad police station on Dec 5, 2012 and came up for hearing before the Lahore High Court on March 19, 2013 which dismissed it.
Advocate Mohammad Ibrahim Satti, representing the MI, had argued in previous hearings that the armed forces enjoyed a special
status in the constitution which protected all of their actions.
He had said that army personnel and a subject of the Army Act could not be investigated or inquired into by any court, including the Supreme Court, or police.
On Friday, Mr Malik argued that any aggrieved person could approach court by filing a habeas corpus petition and that the high courts could issue an order for the recovery of a person in such petitions.
The SC bench asked Additional Attorney General Tariq Khokhar, who is representing the federal government in cases of missing persons, whether the government subscribed to what the attorney general had said. Mr Khokhar sought time to get instruction from the government.
The court rejected a request of Mr Satti for constituting a larger bench to consider the question whether an FIR could be registered against serving army officials and that the court should hear the opinion of the government before making any decision.
It said Mr Khokhar was representing the government in the case and, therefore, it was not necessary to issue a notice to the government.
Referring to the case of Mudassar Iqbal, another missing person, the court expressed displeasure over rude behaviour of an official at the residential coordination office of the United Nations who had kept a senior police official waiting for almost three hours.
At the last hearing on July 10, the court had ordered Lahore City Superintendent of Police Shahzad Waseem Bukhari to inquire about the whereabouts of Mudassir with UN officials.
Mudassar, a shopkeeper of Shadbagh Chowk, Lahore, had left home on Feb 16, 2011 to buy groceries but never returned.
On Sept 8, 2012, a UN Working Group on Enforced Disappearance had referred the matter to the Commission of Inquiry on Enforced Disappearances through a letter, suggesting that Mudassir had been seen in a secret detention centre by several people and his family had been informed about his detention by other people who had earlier been illegally detained.
But the letter did not mention the place or the area where the detention centre was located.
On Wednesday last, SP Bukhari told the court that taking the information provided in the letter as a tangible lead, the police had approached the UN office and met an official named Zaman.
The police was told to route queries through the Foreign Office because UN employees enjoyed diplomatic immunity under the Geneva Convention on Immunity and Privileges-1968.
On Friday the SP informed the court that he had again gone to the UN office in an Islamabad hotel but was kept waiting for almost three hours.
Justice Khawaja asked Additional Attorney General Khokhar to take up the matter with the secretary of foreign affairs and other ministries concerned.
Mr Khokhar said Mr Zaman did not enjoy diplomatic immunity and added that UN officials were required to cooperate with the police official and not to violate the Pakistani law.
Even if UN foreign staff enjoyed immunity, he said, it was waived in the interest of justice under the UN convention.