KARACHI, Aug 27: A civilian cannot be tried by a military court under the Pakistan Army Act, 1951, for violation of the Official Secrets Act or any other law unless he was subject to the 1951 Act at the time of commission of the alleged offence, a division bench of the Sindh High Court declared on Wednesday.

Disposing of a petition for production and release of human rights activist Krishan Sharma, the bench, which consisted of Justices Zahid Kurban Alavi and Zia Perwez, observed that the jurisdictional bar contained in article 199 (3) of the Constitution and section 59 (4) of the Army Act, was not applicable to the power of a constitutional court to examine and set aside an order which was mala fide, without jurisdiction or coram non judice.

Distinguishing Sharma’s case from the rule laid down by the Supreme Court in the 1975 F.B. Ali case, the bench observed that civilians or persons not in any way connected with the military forces could be brought under the purview of the Army Act only in “certain circumstances gravely affecting the maintenance of discipline in the army”. The nexus required is that such civilians should have been accused of seducing or attempting to seduce any person subject to the Army Act from his duty or allegiance to the government. Sharma had not been charged with any such offence, it pointed out.

The rights activist was picked up by a Rangers squad at Naukot on March 21 while travelling in a coach from Mithi to Karachi. He was held incommunicado at the Nazimabad (Karachi) federal investigating unit (FIU). When his mother moved a writ petition through advocates Noor Naz Agha and Syed Ghulam Shah Bukhari, the army’s judge advocate-general branch submitted a brief statement that he was suspected of making sketches of installations, etc., and accused of violating section 3 (b) of the Official Secrets Act. He was, therefore, to be tried by a field general court martial under section 2 (1) (d) (ii) of the Army Act.

Advocates Agha and Bukhari argued that after the arrest of a civilian by military personnel, the provisions of the law under which he had been arrested would immediately come into play. Sharma should have been dealt with under the Official Secrets Act.

They said he should have been produced before a magistrate or before an officer in charge of a police station “without unnecessary delay” as required by section 4 of the Secrets Act. A first class magistrate specially empowered in this behalf was fully competent to try him. He could not be tried by a military court under any law or provision of the Constitution, the counsel said, citing successive Supreme Court judgments.

The law officers appearing for the federal government argued that section 59 (4) of the Army Act had an overriding effect and once any civilian became subject to it under any law, including the Secrets Act, he could be tried by a military court and the high court was barred from entertaining his plea under article 199 (3) of the Constitution.

The bench ruled that ouster-of-jurisdiction clauses in any sub-constitutional law could neither divest the superior courts of their power or jurisdiction nor override the constitutional provisions, particularly those guaranteeing fundamental human rights. Sharma had a right to be tried by a special magistrate and could not be court-martialled under the Secrets Act, it held.