Official Secrets Act – Explained in Detail - Khalid Zafar & Associates

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:

  1. approaches or trespass the prohibited area; or
  2. makes any sketch, plan, model (which includes designs, pattern or specimen) or notes which can be useful for the enemy; or
  3. any person who obtains, collects, records, publishes or communicates any third person any sketch, plan, model (which includes designs, pattern or specimen), articles, notes or documents which might be useful for the enemy.

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:

  1. the name or address of a foreign agent found in his/her possession; or
  2. he or she has obtained any such information by a third person.

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:

        1. willfully communicates the code or password, sketch, plan, model, article, note, document or information to an unauthorized person;
        2. uses the information for the benefit of a foreign power;
        3. retains the password, sketch, plan, model, article, note, document where he is not authorized to retain it; or
        4. does not take reasonable care and put such password, sketch, plan, model, article, note, document or information to danger.

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:

        1. uses or wears, without lawful authority, any naval, military, air force, police or other official uniform, or any uniform so nearly resembling the same as to be calculated to deceive;
        2. falsely represents himself to be a person who is or has been entitled to use or wear naval, military, air force, police or other official uniform;
        3. makes any false statement whether oral or written;
        4. forges, alters, or tampers with any passport or any naval, military, air force, police, or official pass, permit, certificate, license, or other document of a similar character or knowingly uses or has in his possession any such forged, altered, or Irregular official document;
        5. personate or falsely represents himself to be a person holding Government office with Intent to obtain an official document, secret official code or pass word, whether for himself or for any other person; or
        6. personate or falsely represents in employment of a person who is holding Government office with an intent to obtain an official document, secret official code or pass word, whether for himself or for any other person;
        7. personate or falsely represents to be or not to be a person to whom an official document or secret official code or pass word has been duly issued or communicated;
        8. knowingly makes a false statement with Intent to obtain an official document, secret official code or pass word, whether for himself or any other person;
        9. uses or has an unauthorized possession or control of any die seal or stamp of any government department, any diplomatic, naval, military or armed forces, authority appointed by or acting under authority of the Government or has in possession/control of any die, seal or stamp resembling to any such die, seal or stamp; or
        10. counterfeits any such die, seal or stamp or has possession/control of any such counterfeit die, seal or stamp.

D:   Sub Section 2 of Sec. 6 of the law provides the following instances under which a person is guilty:

          1. If any person retains any official document (whether complete or incomplete), when he/she has no right to retain it, or when it is contrary to his/her duty to retain it or fails to act on the instructions of the authorized government department for disposing it;
          2. allows any other person to have possession/access of any official document issued for his/her use alone;
          3. communicates any secret official code or pass word issued to him/her without lawful authority or excuse;
          4. has any document or official code in his/her possession which is issued for the use of some other person other than himself/herself;
          5. on obtaining possession of any official document by finding it or otherwise, willfully fails to restore it to a police officer; or to the person or authority by whom or for whose use it was issued; or
          6. without lawful authority or excuse, manufactures or sells, or has in his possession for sale, any such die, seal or stamp as aforesaid.

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.