SYED ARSHAD ALI, J.---Dr. Ovais Khattak, through the instant constitutional petition, has invoked jurisdiction of this Court challenging the detention and trial of Muhammad Idrees Khattak his brother before Field General Court Martial for being illegal based on Malice and Qoram non Judice.
2. It is evident from record that Muhammad Idrees Khattak, hereinafter referred to as detenue is arrested by the respondents for allegedly being involved/committed offences under Official Secrets Act, 1923 ("The Act of 1923 ").
The detenue is facing trial before the field General Court Martial (" FGCM ") on the following charges:- a. "First Charge P AA Section:- Committing a civil offence, that is to say , for any purpose prejudicial to the safety or interests of the State, communicating to any other person information calculated to be directly or indirectly useful to any enemy , punishable under Section 03 of the Official Secrets Act, 1923, in that he, at Khyber Pakhtunkhwa or elsewhere, on 19 June 2009, for a purpose prejudicial to the safety or interests of the State, communicated following information regarding Pakistan Army to Mister Micha el Semple, an official of MI-6/Secret Intelligence Service (SIS) of United Kingdom, which information was calculated to be directly or indirectly useful to the enemy:-
1. Pakistan Army troops were present in Charmang city and Nawagaiy area.
2. Active operation was going on in T angaiyAsgar and Charmang area.
3. The security forces were. using heavy mortars.
4. Pakistan army was moving towards Jandola and Man& by clearing the terrorists on W anna road. b. Second Charge P AA Section 59 Committing a civil offence, that is to say, for any purpose prejudicial to the safety or interests of the State, communicating to any other person information calculated to be directly or indirectly useful to an enemy , punishable under Section 3 of the Official Secrets Act, 1923, in that he, at Khyber Pakhtunkhwa or elsewhere, on 21 June 2009, for a purpose prejudicial to the safety or interests of the State, communicated that Pakistan Army was present in area Lakaro, Muhamma d Gat Ghazi Baig, Ahad Hospital, Pendyala, Danish KulGarrang and Kundaro road, an information regarding Pakistan Army to Mister Michael Semple, an official of MI6/Secret Intelligence Service (SIS) of United Kingdom, which information was calculated to be directly or indirectly useful to the enemy . c. Third Charge P AA Section 59 Committing a civil offence, that is to say, for any purpose prejudicial to the safety or interests of the State, communicating to any other person information calculated to be directly or indirectly useful to an enemy , punishable under Section 3 of the official Secrets Act, 1923, in that he at Khyber Pakhtunkhwa or elsewhere, on 23 June 2009, for a purpose prejudicial to the safety or interests of the State, communicated following information regarding Pakistan Army to Mister Michael Semple, an official of MI-6/Secret Intelligence Service (SIS) of United ' Kingdom, which information was calculated to be directly or indirectly useful to the enemy:-
1. Security operation was going on in Bajaur Agency Tehsil Nawageiy supported by gunship helicopters and mortar fires.
2. Pakistan Army was taking part in said operation. d. Fourth Charge P AA Section 59 Committing a civil offence, that is to say, for any purpose prejudicial to the safety or interests of the State, communicating to any other person information calculated to be directly or indirectly useful to an enemy , punishable under Section 3 of the Official Secrets Act, 1923, in that he, at Khyber Pakhtunkhwa or elsewhere, on 27 June 2009, for a purpose prejudicial to the safety or interests of the State, communicated that security forces had started moving towards important militant locations including Karnkaly , Hashtak, Babara and Mangoaiy , an information regarding Pakistan Army to Mister Michael Semple, an official of MI-6/Secret Intelligence Service (SIS) of United Kingdom, which information was calculated to be directly or indirectly useful to the enemy . e. Fifth Charge P AA Section 59 Committing a civil offence, that is to say, for any purpose prejudicial to the safety or interests of the State, communicating to any other person information calculated to be directly or indirectly useful to an enemy , punishable under section 3 of the Official Secrets Act, 1923, in that he, at Khyber Pakhtunkhwa or elsewhere, on 7 July 2009, for a purpose prejudicial to the safety or interests of the. State, communicated following information regarding Pakistan Army to Mister Michael Semple, an official MI-6/Secret Intelligence Service (SIS) of United Kingdom which information was calculated to be directly or indirectly useful to the enemy:-
1. Brigade size force had arrived at South W aziristan Agency .
2. Troops of said Brigade were moving on foot towards Miran Shah, Mir All on Bannu road due to the threats of suicidal attacks.
3. Troops of said Brigade were moving ahead by clearing resistance on their way . f. Sixth Charge P AA Section 59 Committing a civil offence, that is to say, for any purpose prejudicial to the safety or interests of the State, communicating to any other person information calculated to be directly or indirectly useful to an enemy , punishable under section 3 of the Official Secrets Act, 1923, in that he, at Khyber Pakhtunkhwa or elsewhere, on 27 July 2009, for a purpose prejudicial to the safety or interests of the State, communicated following information regarding Pakistan Army to Mister Michael Semple, an official MI-6/Secret Intelligence Service (SIS) of United Kingdom , which information was calculated to be directly or indirectly useful to the enemy:-
1. Army convoy comprising 200 soldiers and 40 armored vehicles from Bannu had arrived Mir Ali.
2. Fresh units of Pakistan Army equipped with heavy weapons, cannons and modern weapons had started reaching in Ghazkaly .
3. The Security forces were advancing from three sides towards MalamJabba.
4. After peochar , MalamJabba W as an important location.
5. Heavy exchange of fire had occurred between security forces and militants.
6. The security forces had established command posts in Janabad Kara Sar, Telegram, Sur Kamar and Shangla Top.
7. Pakistan Army had established command posts in Kabul KadaroT otanai Bandai.
8. Search Operation by Pakistan Army was in progress at Shamozai.
9. Pakistan Army was stationed on Baba II Kadao. g. Seventh Charge P AA Section 59 Committing a civil offence, that is to say, for any purpose prejudicial to the safety or interests of the State, communicating to any other person information calculated to be directly or indirectly useful to an enemy , punishable under section 3 of the Official Secrets Act, 1923, in that lie, at Khyber Pakhtunkhwa or elsewhere, on 29 July 2009, for a purpose prejudicial to the safety or interests of the State, communicated following information regarding Pakistan Army to Mister Michael Semple, an official MI-6/Secret Intelligence Service (SIS) of United Kingdom , which information was calculated to be directly or indirectly useful to the enemy:-
1. Deployment of Pakistan Army was increasing in upper Swat.
2. Pakistan Army was entering from Shangla Side.
3. Pakistan Army was deployed in foot hills of Shangla near Khwazakhela ".
3. The learned counsel Messrs Abdul Latif Khan Afridi and Sajeed Khan Afridi, representing the petitioner have argued that Muhammad Idrees Khattak the detenue is a civilian. Neither he has committed any offense in connivance with a member of the armed forces nor is subject to Army Act, 1952, therefore, his trial by FGCM is obviously illegal. The learned counsel have referred to various provisions of the Act of 1923 and the Army Act, 1952 by arguing that under the Official Secret Act, 1923, a mechanism has been provided for a trial of the accused and a civilian cannot be tried under the Army Act by the FGMC. The learned counsel has also argued that the entire prosecution of the detenue is based on mala fide as Michael Semple who is the son in law of a Retired General has not been associated with the present case despite being present in Pakistan who is allegedly the member of MI-6 (U.K Spying Agency) with whom the present petitioner has allegedly shared certain information regarding the movement of the Pak Army troops. In support of their arguments they have placed reliance on the cases of "S.H.T .
Leelan [2004 SCMR 1761 ] and Ghulam Abbas Niazi [PLD 2009 SC 866 ]".
4. Mr. Aamir Javed, learned Deputy Attorney General, at the very outset, submitted that the detenue was arrested under the Official Secret Act read with section 2 clause (d) of the Pakistan Army Act. The learned counsel has drawn our attention to the relevant provision of Pakistan Army Act which will be discussed in the later part of this judgment by arguing that under the Army Act, 1952, FGCM has the exclusive jurisdiction to try not only the Military Personnel but all persons who are subject to the Military Act. He has placed relianc e on "F.B.Ali's case [PLD 1975 SC 506], Mushtaq Ahmad's case [PLD 2007 SC 405], Gul Akbar's case [PLD 1968 Peshawar 114], Allah Rakha's case [ PLD 1968 Lahore 1061 ] and Asif Mehmood's case [PLD 2005 Lahore 721 ]".
5. The essential question before this Court raised in this petition is that as to whether the detenue who is a civilian can be tried by FGCM under the Army Act.
6., Having referred to the precise charges and accusation in the proceeding para No.02, we deem it appropriate to refer the scheme of both the laws on the subject.
7. The Official Secret Act, 1923 ("Act of 1923 ") define and constitute certain acts of the persons relating to the security of Pakistan as offences punishable under the Act of 1923, which inter alia includes sharing certain information relating to the prohibited places with the foreign agents. Section 13 of the Act of 1923 envisages that no Court inferior to the Court of the Magistra te of first class can take cognizance of the offences under the Act which too only on the complaint filed by the appropriate government.
8. The Army Act, 1952 primarily deals to the matters relating to the Pakistan Army , which was enacted on 30th may, 1952 and section 2 of the Act envisages for its application to the person. The relevant para reads as following:- "2.(1) the following persons shall be subject to this Act, namely:- a. Officers, junior commissioned officers and warrant officers of the Pakistan Army; b. Persons enrolled under the Indian Army , 1911, before the date notified in pursuance of subsection (2) of section 1, and serving with the Pakistan Army immediately before the date, and persons enrolled under this Act; c. Persons not otherwise subject to this Act, who, on active service, in camp, on the march, or at any frontier post specified b; the Central Government by notification in this behalf, are employed by, or are in the service of or are followers 4, or accompany any portion of the Pakistan Army . Thereafter , a clause (bb) was incorporate d by the Pakistan Army (Amendment) Act, 1958, with effect from the 1st April, 1952.
This clause reads as follows:--
(bb) persons subject to the Pakistan Navy (Discipline) Act, 1934, or the Pakistan Air Force Act, 1953, when seconded for service with the Pakistan Army , to such extent and subject to such regulations as the Central Government may direct.
By Ordinance No.1 11 of 1967, another clause (d) was added to section 2(1) after clause (c) to the following effect:- 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, Navy , Military or Air Force established or station, ship or aircraft or otherwise in relation to the Naval, Military or Air Force of Pakistan, an offence under the Official Secrets Act, 1952". Underline is for emphasis.
"59. Civil offences.-( 1) Subject to the provisions of subsection (2), any person subject to this Act who at any place in or beyond Pakistan commits any civil offence shall be deemed to be guilty of an offence against this Act and, if charged therewith under this section, shall be liable to be 4[dealt with under this Act], and on conviction, to be punished, to be punished as follows, that is to say , -- a. If the offence is one which would be punishable under any law in force in Pakistan with death or with 1[imprisonment for life], he shall be liable to suffer any punishment 2 * * * assigned for the offence by the aforesaid law or such less punishment as is in this Act mentioned; and b. In any other case, he shall be liable to suffer any punishment 2 * * * assigned for the offence by the law in force in Pakistan, or 1* rigorous imprisonment for a term which may extend to five years or 1 * such less punishment as is in this Act mentioned [..]2 2[Provided that, where the offence of which any such person is found guilty is an offence liable to hadd under any Islamic law , the sentence awarded to him shall be that provided for the offence in that law .
(2) A person subject to this Act who commits an offence of murder against a person not subject to this Act 3 * * * 4[or the Pakistan Air Force Act, 1953 (VI of 1953)], or to the 5[Pakistan Navy Ordinance, 1961 (XXXV of 1961)], or of culpable homicide not amounting to murder against such a person or of 2[Zina or Zina-bil-Jabr] in relation to such a person, Shall not be deemed to be guilty of an offence against this Act and shall not be 6[dealt with under this Act] unless he commits any of the said offences,-- a. While on active service, or b. At any place outside Pakistan, or c. At a frontier post specified by the 1[Federal Government] by notification in this behalf
(3) The powers of a Court martial 2[or an officer exercising authority under sectio n 23] to charge and punish any person under this section shall not be affected by reason of the fact that the civil offence with which such person is charged is also an. offence against this Act.
31(4) notwithstanding anything contained in this Act or in any other law for the time being in force a person who becomes subject to this Act by reason of his being accused of an offence mentione d in clause (d) of subsection (1) of section 2 shall be liable to be tried or otherwise dealt with under this Act for such offence as if the offence were an offence against this Act and were committed at a time when such person was subject to this Act; and the provisions of this section have effect accordingly].
9. The scheme of law referred to above shows that the language employed in subs ection (4) of section 59 contains non-obstente clause, therefore, if a perso n who is not otherwise become subject to Pakistan Army Act by reason of his being accused under the Official Secret Act, 1923, thus, become subject to the provisions of the Army Act for offences mentioned in clause (d) of subsection (1) of section 2 of the Army Act and shall be liable to be tried under the Pakistan Army Act.
10. The viries of the aforesaid Ordinance was for the first time challenged before this Court in the case of "Gul Akbar v. Chief Air Staff [PLD 1968 Peshawar 114]". In the said judgment this Court had dbserved that the aforesaid Ordinances neither created a new offence nor provided for a penalty greater than, or different form, the penalty prescribed at the time the offences was committed. The ordinances referred above merely had a cumulative effect of providing a new forum of trial. However , the legality , constitutionality proprietary and the issue that whether a civilian who is otherwise subject to the ordinary law of the country can be tried by a Military Court was elaborately answered by the Apex Court in the "BRIG. (RETD.) F.B. Ali's case [PLD 1975 SC 506]". The Apex Court in the said judgment has thoroughly examined the legality of Ordinance No.3 of 1967 from various angles including on the touch stone of fundamental rights guaranteed under our Constit ution i.e. Constitution of Islamic Republic of Pakistan, 1973. At this juncture we deem it appropriate to refer to the relevant paras/findings of the Apex Court in the judgment referred above:- "The words of clause (d) introduced into section 2 of the Army Act by Ordinance No.III of 1967, are clear enough.
The words "persons not otherwise subject to this Act" clearly embrace all others who are not subject to the said Act by reason of the provisions of clauses (a), (b), (bb) and (c). The intention of the framers of clause (d) is clearly that even civilians or persons who have never been, in any way, connected with the Army should be made subject to it in certain circumstances gravely affecting the maintenance of discipline in the Army . The nexus required is that they should be persons who are accused of seducing or attempting to seduce any person subject to the Army Act from his duty or allegiance to Government. In this case, the appellants were so accused, and, therefore, came within the ambit of clause (d). The nexus, if any required, was provided by the accusation. No other nexus or connection was necessary". Underline is for emphasis. "Ordinance No. IV of 1967 also amends section 59 of the Army Act by adding thereto a subsection (4) which reads: "(4) Notwithstanding anything contained in this Act or in any other law for the time being in force, a person who becomes subject to this Act by reason of his being accused of an offence mentione d in clause (d) of subsection (1) of section 2 shall be liable to be tried or otherwise dealt with under this Act for such offence as if the offence were an offence against this Act and were committed at a time Mien such person was subject to this Act; and the provisions of this section shall have effect accordingly .
The main purpose of this addition was to effectuate the purpose sought to be achieved by the addition of clause (d) to subsection (1) of section 2 of the Army Act and to make the offence itself triable under the said Act when committed by persons, accused of such offence. This became necessary because otherwise such persons would have been liable for trial under the Army Act only in respect of an offence of the said type committed after they became subject to the Act as a result of the accusation, which would necessarily be made after the commission of the offence." "Section 59(1) of the Pakistan Army Act seems to provide that if any person who is or has become subject to the Army Act, commits any civil offence, he shall be deemed to be guilty of an offence against the said Act and, if charged therewith, shall be liable to be tried by a Court Martial subject to the limitations mentioned in subsection (2) and will be punishable as prescribed in clauses (a) and (b).
By using the words "shall be deemed to be guilty of an offence against this Act", the Legislature has clearly roped in such persons fictionally even in respect of civil offences committed at any place in or beyond Pakistan the object clearly is to prevent a double trial in two different forums of such person who are subject to the provisions or have become subject to the provisions of the Army Act. This subsection (1) does not, of course, indicate that such civil offences should be cognate offences with those triable under the Army Act but it is quite possible that this section was brought in to make a joint trial possible of an offence punishable under the Act and a civil offence committed by a person who is or has become subject to the provisions of the Army Act in the same transaction.
The key words in subsection (1) of section 59 of the Pakistan Army Act, 1952 are "any person subject to this Act who .... Commits any civil offence shall be deemed to be guilty of an offence against this Act". It will be noticed that according to the above-qua qoute words two conditions are necessary to be fulfilled before the deeming clause can become operative. The first condition is that the person concerned must be a perso n who is subject to the Army Act and the next condition is that be "commi ts" the civil offence when he is so subject. The Legislature has not said "has committed". The use of the verb "com mits" in the present tense makes it abun dantly clear that the civil offence to be so deemed to be an offence under the Army Act must be one which is comm itted after the person concerned has become subject to the said Act and not, before."
11 The law laid down in the "F.B Ali's" case was also reaffirmed by the apex Court in the case of "Mushtaq Ahmad v . Secretary Ministry of Defence [ PLD 2007 SC 405 ]", in the following words:- "17. Therefore, in view of above discussion in F.B. Ali's case, the arguments put forward by the learned counsel for appellants becomes redundant and it is held that if a civilian person is tried on the charge of seducing or attempting to seduce any person in the Military Force of Pakistan from his allegiance to the Government, he shall not be punished under section 131, P.P.C. but would be punished under the provisions of PA Act or the PAF Act i.e. section 31(d) or (37(e) respectively , in view of the provisions of sections 59(4) of the PA Act and 71(3) of the PAF Act".
12. The main emphasis of the learned counsel was on the law laid down by the apex Court in the case of "S.H.T Heelan [2004 SCMR 1761 ] and the case of Ghulam Abbas Niazi [PLD 2009 SC 866]". We have carefully gone through the aforesaid judgments. In the case of "S.H.T Heelan" the apex Court in essence has reaffirmed the law laid down in "F.B Ali's case", nowhere, in this judgment the apex Court has disapproved the law laid down by the apex Court in F.B. Ali's case, rather , has distinguished the judgment of F.B. Ali's case in para No.6 of the judgment regarding the application of the Ordinanc e No.3 of the 1967 to the case in issue. Similarly , in the case of "Ghulam Abbas Niazi" the apex Court was confronted with a situation when a civilian was tried for an offence along with the officers of Air Force and was granted greater punishment than the official of the Air Force the Apex Court has struck down the said punishment being based on mala fide.
13. In the present case, the arguments of the learned counsel for the petitioner that the allegations as narrated in the charge do not constitute any offence under the Officials Secret Act, 1923 cannot be appreciated at this stage for the reason that so far no evidence has been led by the Prosecution. Thus, this argument, at this stage seems premature.
Suffice it to mention that the detenue was charged for offences under the Official Secret Act and under section 2 1(d)(II) the person who has committed an offence under the Act of 1923, becomes subject to the Pakistan Army Act. Reading the aforesaid section in juxtaposition with section 59 subsection (4) which is a deeming provision and being non-obstente clause, thus, having override effect over the mechanism of the trial provided by the Act of 1923, FGMC is competent to try the detenue for the said offences in view of the laid down by the Apex Court in "F.B Ali" case. It would be pertinent to notice that the detenue has been given the opportu nity to defend himself through a counsel of his choice.
14. Moving on to the other argument of the learned counsel for the petitioner that in the present case it is alleged by the prosecution that the detenue had shared certain information with Michael Semple and the said Michael Semple who happens to be the son in law of Retired General has not been prosecuted, therefore, the action of the respondents is also based on mala fide. Though, these arguments have some weight in view of the law laid down by the apex Court in the case of "Ghulam Abbas Niazi" (Supra), however , since the prosecution is at initial stage and there is no conclusive evidence before us that the detenue was intentionally singled out for prosecution and despite the availability of Michael Semple in Pakistan, he was not tried for the said offences. Let the trial be completed, and then this question can well be raised by the detenue before the appropriate forum if established on the record.
15. Finally moving on to the arguments of the learned Deputy Attorney General regarding the territorial jurisdiction of this Court. Suffice it to mention that the accused was admittedly arrested in the province of Khyber Pakhtunkhwa for the alleged offences which he has committed in the Khyber Pakhtunkhwa, thus, the said objection that the place of trial of detenue being out of the province has not impressed us, therefore, the said objection is overruled.
16. In view of the above the petition is dismissed.