PESHAWAR: Twenty-eight people arrested for protesting outside and firing at the army centres and vandalising the statues of war heroes in Mardan district on May 9 have moved the Peshawar High Court challenging the inclusion of the provisions of the Army Act, 1952, and the Official Secrets Act, 1923, in the FIR against them.

Gul Raj and 27 other petitioners, all Mardan residents, jointly sought the court’s orders for the government to remove Section 59 of the Army Act and Section 3 of the Official Secrets Act from the FIR registered by the Mardan City police station.

They requested the court to declare that the inclusion of provisions of the Army Act and the Official Secrets Act amounted to double jeopardy against Article 13 of the Constitution read with Section 403 of the Code of Criminal Procedure.

The petition is filed through provincial organiser of the Insaf Lawyers Forum Qazi Mohammad Anwar and lawyers Syed Qaiser Ali Shah and Shah Faisal Utmankhel.

Insist in petition that govt move amounts to double jeopardy

The respondents in the petition are the federal government through the attorney general for Pakistan, Khyber Pakhtunkhwa government through its chief secretary, KP inspector general of police, provincial home secretary, and provincial IG (prisons).

The petitioners said that a false and fabricated FIR with “political motives” was registered against them and others.

They said that initially, neither Section 59 of the Army Act nor Section 3 of the Official Secrets Act was incorporated in the FIR.

The petitioners said that they were also detained under Section 3 of the Maintenance of Public Order Ordinance but the high court suspended the detention orders issued by Mardan’s deputy commissioner.

They added that despite suspension of the orders, they hadn’t been released due to the incorporation of Section 59 of the Army Act and Section 3 of the Official Secrets Act in the FIR.

The petitioners said that in spite of the requisition of the armed forces by the provincial government under Article 245 of the Constitution, the high court had assumed the jurisdiction under Article 199 in the MPO-related cases.

They contended that it was a “settled” law that in spite of the constitutional bar of the jurisdiction of the high court under Article 199(3), the high court could assume the jurisdiction when the acts were without jurisdiction, mala fide and the acts amounted to suspension of the fundamental rights of the community by authorities.

The petitioners referred to a 2009 judgement of the Supreme Court, which declared that on the same set of allegations, the police could not register FIR under the civilian laws, including Pakistan Penal Code and the Army Act as the same would amount to double jeopardy, which was against the fundamental rights provided under Article 13 of the Constitution read with Section 403 of the CrPC.

They added that trial for the same act in two different courts, one in civilian court provided under Article 175 of the Constitution and trial in an army court and court-martial provided under the Army Act had been held against the fundamental rights and the action amounted to the ouster of constitutional jurisdiction rendering the civil courts and high court ineffective and without jurisdiction.

The petitioners contended that under Article 14 of the International Covenant on Civil and Political Rights to which Pakistan was signatory, it was held that trying civilians in military courts was contrary to the international law.

Published in Dawn, May 26th, 2023