PESHAWAR: The Peshawar High Court has upheld the trial of political activist Mohammad Idrees Khattak by a field general court martial (FGCM) for allegedly providing ‘official secrets’ regarding military operations in Pakistan to an official of the UK’s Secret Intelligence Service commonly known as MI6.

A bench consisting of Chief Justice Qaiser Rashid Khan and Justice Syed Arshad Ali dismissed a petition filed on behalf of Idrees Khattak by his brother, Owais Khattak, against his trial by the FGCM under the Pakistan Army Act.

Contending that being a civilian, Idrees Khattak was not covered by that law, the petitioner had requested the court to declare the trial illegal, without jurisdiction and based on mala fide.

Idrees Khattak, who is also a human rights defender, was taken into custody on Nov 13, 2019, near Swabi and was kept incommunicado for many months.

Idrees Khattak facing charge of sharing ‘secrets’ about military operations with MI6

Later, the defence ministry revealed that Idrees Khattak was in the custody of military authorities under section 2(1)(d) of Pakistan Army Act, 1952, read with Section 3 of Official Secrets Act, 1923.

Initially, the petitioner had filed a habeas corpus plea against the alleged illegal detention of his brother, a former general secretary of National Party, and when the information about his trial by a FGCM became public, the instant petition was filed.

In Oct last year, a high court bench headed by the then high court chief justice, Waqar Ahmad Seth, had stayed the trial and issued notices to the respondents, including defence ministry, seeking their response on the petition.

In its detailed judgment on the petition, the bench has reproduced the charges under which the detainee has been tried by the FGCM. He has been tried on eight charges falling under the Official Secrets Act.

In all eight charges, he has been accused of communicating with an official of MI6, Michael Semple, on different dates in 2009 and providing him with different information regarding military operations in different areas of Pakistan, including Bajaur, Swat and South Waziristan.

A panel of lawyers, including Supreme Court Bar Association president Abdul Lateef Afridi, Sajeed Afridi and Tariq Afghan, appeared for the petitioner and contended that the detainee was a civilian and neither he had committed any offence in connivance with a member of the armed forces nor was he subject to the Army Act and therefore, his trial by FGCM was illegal.

The counsel insisted that allegations against the detainee did not amount to the disclosure of official secrets.

They argued that the entire prosecution of the detainee was based on mala fide as MI6 official Michael Semple, who was the son-in-law of a retired general of Pakistani Army, had not been associated with the case despite being present in the country.

Deputy attorney general Aamir Javed contended that the FGCM had the exclusive jurisdiction under the Army Act to try not only military personnel but also all persons, who are subject to that Act.

The bench ruled: “In the present case, the arguments of the counsels of 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.”

The bench ruled that the detainee was charged for offences under the Official Secrets Act and under Section 2(1)(d)(ii) of the Army Act the detainee was subject to the latter law.

It added that reading Section 2(1)(d) in juxtaposition with Section 59(4) of the Army Act, these provisions had overriding effect over mechanism of the trial provided under the Official secrets Act and thus the FGCM was competent to try the detainee.

About the petitioner’s plea that the action of respondents was based on mala fide as the alleged agent of MI6 had not been prosecuted, the bench ruled: “Though these arguments have some weight in view of the law laid down by the Apex Court in the case of ‘Ghulam Abbas Niazai’ however, since the prosecution is at initial stage and there is no conclusive evidence before us that the detainee was intentionally singled out for prosecution and despite the availability the availability of Michael Semple in Pakistan, he was not tried for the said offence.”

“Let the trial be completed, and then this question can well be raised by the detainee before the appropriate forum established on the record,” the court ruled.

The bench has referred to different Supreme Court judgments, especially in the FB Ali case (PLD 1975 SC 506), in support of its decision.

Published in Dawn, February 2nd, 2021