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Writ Petition No. 289 of 1968, decided on 14th March 1968.

Ss. 2 (1)(d) (ii), 59(4), 73, 74 & 75 read with Official Secrets Act (XIX of 1923), S. 3 Combined effect of Ss. 73, 74 & 75 read with enlarged Ss. 2 & 59 of Pakistan Army Act, 1952‑Civilian accused of offence punishable under S. 3, Official Secrets Act, 1923, in relation to military affairs of Pakistan‑Can be arrested and detained by Military Authorities‑M apprehended by personnel of Border Police while found talking to an Indian Sentry at Border Circumstanees, held, raised prima facie case under S. 3(1)(c) of Official Secrets Act, 1923‑Whether evidence available would suffice for conviction‑Question to be determined by Court or Tribunal called upon to try M‑Writ petition for release of detenu dismissed‑Constitution of Pakistan (1962), Art. 98.

Raja Muhammad Anwar for Petitioner.

Mian Aslam Riaz Hussain Asstt. A.‑G. for Respondents.

Date of hearing : 14th March 1968.

By means of this petition under Article 98 of the Constitution the petitioner Allah Rakha seeks to challenge the legality of the arrest and detention of one Muhammad Anwar under an order made by the District Magistrate of Sialkot on the 23rd of January 1968 in exercise of the powers conferred on him by Rule 32 of the Defence of Pakistan Rules. The order directed that the said Muhammad Anwar shall be detained in the custody of 406, Field Intelligence Unit, Sialkot, for a period of one month for purposes of interrogation. Habeas corpus petition bearing No. 431 of 1968 was moved to challenge that order of detention, but the same was dismissed by Attaullah Sajjad, J. on the 13th of February 1968. Writ Petition No. 21 a of 1968 was then moved by the present petitioner, but the same was withdrawn on the 16th of February 1968. The present petition is, therefore, the third challenge in the same connection.

2. It is alleged in the petition that the detention is mala fide for the reason that the Civil and Military authorities of Sialkot are annoyed with the detenu's uncle Muhammad Sharif who had purchased a large number of standing Shisham trees from the District Council of Sialkot for a sum of Rs. 88,000 and bad made arrangements to cut those trees, but the authorities were reluctant to permit the cutting for one reason or the other. In the petition a lengthy narrative is given of the step: taken by the authorities from time to time to prevent Muhammad Sharif Contractor from removing the trees and also of the legal action taken by Muhammad Sharif to resist these steps. It is stated that the detenu Muhammad Anwar was on the spot to supervise the work of cutting the trees near the Phuklian border when he was taken into custody by three members of the Border Police and since then he has been detained unlawfully.

3. On behalf of the District Magistrate it was stated that the order of detention passed by him on the 23rd of January 1968 authorised detention only for a period of one month which period had already expired and that the District Magistrate had not passed any further order extending the period of detention. It was also intimated that the detenu was now being held by the Army authorities under their own powers. In view of this report the petition was amended so as to implead the Officer Incharge of the 406, Field Intelligence Unit, Sialkot. We have had the benefit of the personal appearance of this officer, namely, Major Saifullah Khan, and have also been assisted by the learned Assistant Advocate‑General. The stand taken on behalf of the Officer Incharge of 406, Field Intelligence Unit, Sialkot is that there is no question of any mala fides on his part, and that Muhammad Anwar is being detained as an under‑trial prisoner, being accused of an offence under section 3 of the Official Secrets Act, 1923. He has placed on the record a copy of a special report dated the 22nd of January 1968 submitted by the Platoon Commander of B Company to the effect that on that day, at 13‑00, hours Muhammad Anwar, son of Muhammad Ismail had been apprehended by the personnel of the Border Police while he was talking to an Indian Sentry at the border near Nekowal village. The report adds that the circumstances under which Muhammad Anwar was seen meeting and talking to an Indian Sentry at the border raise a strong suspicion that he was disclosing information prejudicial to the security of Pakistan. It is submitted that it was in view of this report that in the first instance an order of detention was secured from the District Magistrate of Sialkot, and during the period of detention a communication was addressed to the General Headquarters seeking instructions regarding action to be taken against Muhammad Anwar. The G. H. Q. had authorised the Officer Incharge to detain the suspect for a period of one month with effect from 23rd of February 1968 to the 22nd of March 1968 for interrogation purposes and further proceedings.

4. In view of the statement made before us by the Officer Incharge of 406, Field Intelligence Unit, Sialkot, and the documents produced by him, namely, the special report dated the 22nd of January 1968 and the correspondence which has passed between him and the G. H. Q. we are satisfied that this is not a case of mala fide detention. The authorities appear to be acting in good faith in the interest of the security of Pakistan. The only question, therefore, is whether the Army authorities have any power under the law to order detention in a case like the present.

5. In order to answer this question, reference has to be made to certain provisions contained in the Pakistan Army Act, 1952 as amended from time to time (hereinafter referred to us the Act). Section 2 of the Act lists the persons who are subject to the Act. By the amending Ordinance 3 of 1967, called the Defence Services Laws Amendment Ordinance, 1967, a new clause (d) was added to subsection (1) of section 2 so as to bring within the purview of the Act persons who were not otherwise subject to the Act. Sub‑clause (ii) of the newly added clause (d) speaks of persons who are accused of "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 Official Secrets Act, 1923". Thus if a person who is not a member of the armed forces and accordingly not subject to the Pakistan Army Act, commits an offence under section 3 of the official A Secrets Act in relation to any of the matters specified in the sub‑clause mentioned above then, he would become subject to the Act and be liable to be dealt with in accordance with the provisions of the Act.

6. Section 59 of the Act deals with the question of punishment for civil offences committed by persons who are subject to the Act. By Ordinance IV of 1967, described as the Defence Services Laws (Second Amendment) Ordinance, 1967. a new subsection (4) was added to section 59 of the Act in the following terms :‑-

"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 mentioned 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 on offence against this Act and were committed at a time when such person was subject to this Act; and the provisions of this section shall have effect accordingly."

The meaning of this newly added provision is quite clear. as it is obviously intended to give effect to the newly added clause (d) of subsection (1) of section 2 of the Act. This provision makes it clear that a civilian accused of a civil offence could be dealt with under the Pakistan Army Act if he fell within the ambit of clause (d) of subsection (1) of section 2 of the Act.

7. Then comes section 73 of the Act which deals with the subject of the custody of offenders. Subsection (1) of this section says that any person subject to this Act who is charged with any offence may be taken into military custody. Subsection (2) of the same section gives the necessary power to any superior officer or any member of the military, naval or air force police. Section 74 then contemplates that every commanding officer shall take care that a person under his command when charged with an offence is not detained in custody for more than forty‑eight hours after the committal of such person into custody is reported to him, without the charge being investigated, unless investigation within that period seems to him to be impracticable having due regard to the public service. The section goes on to say that every case of a person detained in custody beyond the period of forty‑eight hours and the reason therefore shall be reported by the com manding officer to the officer to whom application is to be made to convene a general or district Court martial for the trial of the person charged. Then comes section 75 which enjoins that "in every case where any such person as is mentioned in section 73 and as is not on active service remains in custody for a longer period than eight days, without a Court martial for his trial being ordered to assemble, a special report giving reasons for the: delay shall be made by his commanding officer in the manner prescribed and a similar report shall be forwarded at intervals of eight days until a Court martial is assembled or such person is released from custody".

8. The combined effect of sections 73, 74 and 75 seems to be that a person subject to the Act and accused of an offence triable under the Act can be taken into custody by the military authorities and detained in such custody until he is tried by a military Court or otherwise released. When these provisions are read in conjunction with the provisions to which reference has already been made, namely, the t enlarged sections 2 and 59 of the Act, it becomes clear that a civilian accused of an offence punishable under section 3 of the Official Secrets Act in relation to the military affairs of Pakistan can be arrested and detained by the military authorities as he becomes a person subject to the provisions of the Pakistan Army Act in view of the amendments introduced in sections 2 and 59 of the Act.

9. Now, the question is whether the detenu Muhammad Anwar is indeed accused of an offence such as would bring his case within the ambit of the provisions mentioned above. In this connection reference has already been made, to the special report submitted by the Commandant of the Border Police Post concerned whose men had arrested Muhammad Anwar when lie was talking to an Indian Sentry across the border in circumstances which aroused suspicion regarding his activities. Section 3 of the Official Secrets Act makes punish able any person who, inter alia, "obtains, collects records or publishes or communicates to any other person any secret official code or pass word, or any sketch, plan, model, article or note or other document or information which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy". The section also prescribes that where such an offence is committed in relation to any work of defence, arsenal, naval, military or air force establishment or station, mine, minefield, factory, dockyard, camp, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Government or in relation to any secret official code, the punishment shall tae imprisonment for fourteen years, and in other cases it shall be for three years, it seems to us that the circumstances under which Muhammad Anwar was arrested by the personnel of the Border Police do prima facie bring his case within the purview of clause (c) of subsection (1) of secrets 3 of the Official Secrets Act, 1923 in relation to the military of Pakistan Whether the evidence so far available would suffice for a con viction to be recorded against the detenu is a different matter. That is a question which will have to be determined by the Court or Tribunal which is called upon to try Muhammad Anwar. At this stage, we are to see whether there is material to show that the detenu is indeed accused of the relevant offence. We find that this is indeed so. On this view of the matter, the military authorities appear to be acting within the law in detaining Muhammad Anwar for purposes of interro gation and trial. The requirements of sections 73, 74 and 75 appear to have been met in this case by the fact that the matter was reported to G. H. Q. for orders by the Officer Incharge of 406, Field Intelligence Unit, Sialkot, and G. H. Q. has directed that Muhammad Anwar be detained for a period of one month commencing from the date of the expiry of the detention order passed by the District Magistrate under Rule 32 of the Defence of Pakistan Rules. We have no doubt that during this period the relevant authorities will take the necessary decision with regard to the trial or release of the detenu in accordance with law.

10. For the foregoing reasons, the petition fails and is hereby dismissed with no order as to costs.

Petition dismissed.

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