Arrested Brigadier's Wife Files Appeal Against LHC Verdict

Argues that single-member bench did not address other sections of relevant law which state a detainee cannot be detained beyond 48 hours without a trial 

Arrested Brigadier's Wife Files Appeal Against LHC Verdict

The wife of a serving senior military officer has filed an appeal against the decision of a single-member bench of the Lahore High Court, which had disposed of her petition over her husband's alleged illegal abduction detention without charge.

An intra-court appeal has been filed in the Lahore High Court by Ummaira Saleem, the wife of serving military officer Brigadier Akhtar Subhan.

On September 26, the single-member bench of Justice Jawad Hassan of the LHC Rawalpindi Bench issued a six-page judgment, dismissing Saleem's petition as being non-maintainable. 

The judgment observed that per documents submitted, the respondents had acted within the confines of the law to take the serving brigadier into custody from his posting in Quetta. It added that the petition could only be maintainable if the officer had been unlawfully taken into custody.  

The LHC's single bench further observed in its judgment that Article 199(3) of the Constitution clearly bars the court from exercising any jurisdiction under Article 199(1)(b) in matters pertaining to officials of the armed forces or are subject to any law relating to any of those forces.
"The scope of constitutional jurisdiction in matters relating to Article 199(3) of the Constitution is very limited," the judgment explained.

According to the federal government, Brigadier Subhan was a serving officer who had been posted in Quetta. He had been arrested under provisions of Section 73 of the Pakistan Army Act 1952. It added that he was accused of serious crimes and that a commanding officer had ordered his arrest in Quetta after considering his alleged involvement in the crimes.

The government further confirmed that the officer had been arrested from Quetta and is currently under investigation while the military authorities are duly following all rules and provisions for his arrest/custody and investigation. 

Further, the government explained that the officer had deliberately concealed facts from the court and was not completely innocent.

Moreover, the government claimed that the officer's wife had allegedly filed a malicious petition to pressurise the government, Adjutant General Army and the commanding officer of the army's Military Police Unit in Rawalpindi.

The government further argued that the respondents listed in the case have no concern with the matter.

The LHC was urged that the appropriate territorial jurisdiction of this matter was the Balochistan High Court in Quetta, as the officer in question was posted and was performing his duties in that province and not the Lahore High Court.

They urged the court to dismiss the petition as it was not maintainable due to territorial jurisdiction. The court accepted this and dismissed the petition.

Earlier, Saleem had filed a petition in the Lahore High Court under Article 199 of the Constitution seeking the release of her husband, Brigadier Akhtar Subhan, who had been kept in unlawful custody of the respondents. 

The petitioner contended that her husband was unlawfully abducted by the officials of the Special Investigation Branch on June 22 from his office and brought to Rawalpindi, and is presently confined by the military authorities in Rawalpindi.

The petition contends that a person subject to the Pakistan Army Act 1952, cannot be detained beyond 48 hours without trial in light of Sections 74 and 75 of the law. 

However, the single bench of IHC had not appreciated the mentioned sections of the said Act, Saleem's ICA petition argues.
It added that the procedure after arresting a person subject to the Pakistan Army Act for Investigation or Trial is further guided and clarified in the Army Regulations (Instruction) 269. 

On September 24, Ummaira Saleem was given meaningful access to her husband, Brigadier Subhan Akhtar, even as her case remained pending in court. She claimed that this proved that her husband was being kept in Rawalpindi and thus clarified the issue of jurisdiction.

Through the ICA, she requested the court to set aside the single bench's judgment, declaring it erroneous.

She further requested the court issue orders for safely producing her husband before the court. She also requested the court to declare the arrest of a serving brigadier as illegal and violating the service rules.

The petitioner also requested that the court direct the authorities to disclose the full charges against her husband.

The writer is an Islamabad based journalist working with The Friday Times. He tweets @SabihUlHussnain