Official Secrets Act, 1923 is a colonial law which is applicable to all citizens of Pakistan including military personals, Government servants and political leadership. Even the prime minister and president of Pakistan are not exempted from the operation of this Law.
Historically, this law was introduced by Englishmen for the purposes of prevention of spying in Sub Continent. After Pakistan (the “State”) came into existence the act was adopted and some major amendments were made in the Years 1956, 1966 and 1968. The basic purposes of 1966 and 1968 amendments were to introduce the death penalty and/or fourteen years imprisonment in respect of offences committed under the Official Secrets Act.
Crux of the Official Secrets Act:
The law is prima facie designed to protect the state secrets, defense equipment, documents and places. Under the Official Secrets Act the government may declare any area as Prohibited Area.
Section 3 of Official Secrets Act is the vital part of this law and deals with the penalty of spying. A person is guilty of an offence if with an intention of prejudice to safety of the State he or she:
The important thing is that as per sub section 2 of Section 3 of the Official Secrets Act, it is not necessary if the accused person is guilty of any particular act which is prejudicial to the safety or interest of the state. The law enforcement agencies have ample power to assert a conviction on the basis of presumptions and circumstantial evidence in any one of the following cases.
1-A person may be convicted even if from the circumstances of the case; or his conduct; or his known character as proved it appears that his purposes was prejudicial to the safety or interests of the state.
2-A conviction can be made under this section of the Act if a person has made, obtained, collected, recorded, published or communicated any [sketch, plan, model (which includes designs, pattern or specimen), articles, notes, documents or information] relating to or used in any prohibited place; if the circumstances shows that purpose of aforesaid was prejudicial to the safety and interest of the state.
Any such sketch, plan, model, articles, notes, documents or information shall be presumed to have been made, obtained, collected, recorded published or communicated for the purpose prejudicial to the safety or interest of the state.
3-A conviction can be made under this section of the Act if a person has made, obtained, collected, recorded, published or communicated or recorded any secret code or password, published or communicated by any unauthorized person if the circumstances shows that purposes was prejudicial to the safety and interest of the state.
Any such code or password shall be presumed to have been made, obtained, collected, recorded published or communicated for the purpose prejudicial to the safety or interest of the state.
The Act further proceeds with the circumstantial evidences which are relevant to the offence committed under this Act. The communication with foreign agents is evidence of commission of certain offences. The term foreign agent includes a person in respect of whom it appears to be a reasonable ground for suspecting that he or she is employed by a foreign power (whether directly or indirectly) to act prejudicial to the safety or interest of the State. The term foreign agent also includes a person who has committed or attempted to commit such act in the interest of the foreign state. This law is different from the other penal laws which saddle the burden on prosecution to have ample evidence against the guilty. Vide powers on the basis of suspicion and assumptions are given to law enforcement agencies under this law as discussed hereinabove and hereinafter. Continuing further the law provides that a person is presumed to be in communication with a foreign agent if he has visited a person who has visited the address of a foreign agent or a person associated with a foreign agent.
A person is also presumed to be in communication with a foreign agent if:
OFFECES UNDER THE OFFICIAL SECRET ACT
The following categories of persons are also guilty under the Official Secrets Act.
A: Section 5 provides that if a person is in possession of a secret official code, password, sketch, plan, model, article, note, document or information which relates to a prohibited place or which has been obtained in contravention of this Act or which has been entrusted in confidence by any person holding office under the Government and he or she:
B: If a person voluntarily receives any secret official code, password, sketch, plan, model, article, note, document or information which relates to a prohibited place knowing or having a reasonable ground to believe that such code password, sketch, plan, model, article, note, document or information is received in contravention to this act.
C: Sub Sec 1 of Section 6 provides that a person is guilty of an offence under this Act if for the purposes of entering into a prohibited place or for any purpose prejudice to the safety of the State he or she does the following acts:
D: Sub Section 2 of Sec. 6 of the law provides the following instances under which a person is guilty:
E:Any person who misleads, interfere or impede with any police officer or members of armed forces of Pakistan engaged on guard, patrol or similar duty of a prohibited place or within the vicinity of prohibited place is liable under this law.
F:Any person who attempts or commits or abets the commission of an offence under this Act shall be guilty.
G:A person who harbors anybody who has committed or is about to commit an offence under Section 3 (as explained above) is also guilty under this Act.
H:Where an offence is committed under this Act by a company or corporation, every director and officer of the company or corporation with whose knowledge and consent the offence is committed shall be liable.
The Official Secrets Act saddle every citizen of the Pakistan with the responsibility to give information of an offence committed under this Act. Every person is duty bound to given information, which is within his knowledge, on demand to authorized police officer or member of armed forces in respect of an offence or suspected offence committed under this law and/or in respect of a person who harbors a spy.
Arrest and detention: A personal of armed forces/police or law enforcing agency can arrest a suspected person in or within the vicinity of prohibited area without an arrest warrant from magistrate. Furthermore, any person against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been guilty under Section 3 read with Section 9, Section 5 and 6 of this Act (as explained above) can be arrested by police or personal of armed forces. Upon arrest, the person shall be taken before a Magistrate having jurisdiction in the case or taken to the officer in charge of a police-station; and thereupon the provisions of the criminal procedure code applies in a manner as applied to other penal offences under different penal laws.
Court Jurisdiction: The concerned Court authorized to try offences under Official Secrets Act is the Court of first-class magistrate. Since the law is old therefore, now the civil judges having an additional charge of magistrate under Section 30 should have jurisdiction.