Last Updated: Monday August 13, 2007
PLD
1992 Supreme Court 492
Present: Shafnir
Rahman, Saad Saood Jan, Abdul Qader Chaudliry, Ajmal Mian and Rustam S. Sidhwa,
JJ
MOHTARMA BENAZIR
BHUTTO --- Appellant
versus
THE PRESIDENT OF
Civil Appeal No. 59
of 1992, decided on
(On appeal from .the order of the
Special Court of Mr. Justice Muhammad Amir Malik, dated 28-1'-1992. passed, in
Reference No.ll of 1990).
Per Shafiur Rahman, J., Ajmal
Mian and Rustam S. Sidhwa, JJ, agreeing---
(a) Parliament and Provincial
Assemblies (Disqualification for Membership) Order (17 of 1977)-
----Arts. 2(a), 10 &
7---Constitution of
Such a defence need not be
necessarily pleaded or argued. The Court has to be alive to .the interplay of
these two provisions in receiving evidence, in evaluating it and in recording
its finding: Such a duty on the part of the Court necessarily required access
to the material which was sought to be withheld from the Court in proceedings
under this law.
In view of these features of the
trial it is not the letter of the law on privileges that helps Court in
resolving a controversy nor is it the application of any other: law: It is the
principle and the policy underlying the law. It is the demands on any judicial
system of doing even-handed justice and making it equally appear so which alone
can help the Court in resolving such a controversy.
The Court could not without
examining the documents in the light of the requirements of the trial dispose
of the question of privilege.
`A Treatise on the Anglo-American
System of Evidence in Trials at Common Law' by John Henry Wigmore in Vol. V,
p.194; Trial of Maharajah Nundocomar (20 How. St. Tr. 1057); Beatson v. Skene 5
H. & N. 838, 853; S.P. Gupta v. M. Tarkunde AIR 1982 SC 149 and Sankey v.
Whitlam 21 ALR 505 quoted.
(b) Constitution of
----Art.248---Parliament and
Provincial Assemblies (Disqualification for Membership) Order (17 of 1977),
Art.7---Qanun-e-Shahadat (10 of 1984), Arts. 6 & 158---Reference---Claim of
immunity---Provisions of Art.248, Constitution of Pakistan grant an immunity to
the Ministers as well from the answerability in Court of law with regard to
discharge of their duties---To insist on such a privilege being claimed by the
Minister Incharge would in fact deny to the Court the opportunity of examining
the justification or lack of it so far as the claim to privilege for the
documents by a Minister is concerned.
Halsbury's Laws of
(c) Constitution of
----Art.248---Parliament and
Provincial Assemblies (Disqualification for
Membership Order) (17 of 1977),
Arts.10 & 2(a) --- Oanun-e-Shahadat (10 of
1984), Arts. 6 & 158---Rules
of Business of Federal Government, Rr.4(5) &
15(1)(g) & (h) and Entry No.l
in Sched. V-A related thereto ---Reference---
Claim of immunity---List of cases
to be submitted to the Prime Minister for his
orders through Cabinet Division
qualifies Director Intelligence Bureau to be
competent to claim privilege
under the law---Court, however, has to determine
its justification or otherwise.
(d) Constitution of
----Art.248---Parliament and
Provincial Assemblies (Disqualification for
Membership) Order (17 of 1977),
Arts. 10, 2(a) & 7---Qanun-e-Shahadat (10 of 1984), Arts. 6 &
158---Reference---Claim of immunity---Where the Special Court allowed the claim
of privilege without examining the material in respect of which privilege was
claimed, Supreme Court set aside the order of
Per Ajmal Mian, J., Agreeing with
Shaflur Rahman, J
(e) Constitution of
----Art.248---Parliament and
Provincial Assemblies (Disqualification for Membership) Order (17 of 1977),
Arts. 2(a), 10 & 17---Qanun-e-Shahadat (10 of 1984), Arts. 6 &
158---Reference---Claim of immunity---Factum that Art.248, Constitution of
Pakistan (1973), grants immunity to the Ministers from the answerability in
Court of law with regard to discharge of their duties would not affect the
question as to who is competent to claim privilege of nondisclosure or non-production
of a document under the relevant provision of the relevant statute---Such a
question is to be determined in terms of Art.248, Constitution of Pakistan
(1973).
Per Rustam S. Sidhwa, J, Agreeing
with Shaftsr Rahman, J
(f) Qanun-e-Shahadat (10 of
1984)---
----Art.6---Object of
Art.6---Privilege on the basis of public policy forms a class apart and
deserves to be treated as such.
The Explanation to Article 6 of
the Qanun-e-Shahadat, 1984 appears to be a new addition, because the same was
not there previously with section 123 of the Evidence Act. The underlying
object of Article 6 of the Qanun-e-Shahadat is to prevent evidence which is
derived from any unpublished official record relating to an affair of State,
from being given, without permission of the head of the Department concerned,
and to relieve the party withholding to produce such evidence from the
presumption that could be raised against it under Article 129 of the
Qanun-e-Shahadat (the old section 114 of the Evidence Act). The object is
founded on the old English common law rule of Crown Privilege or Privilege on
the basis of public policy which prevents matters of State over which a veil of
secrecy is required to be enforced and maintained, from being laid bare or made
public, and thus severely endangering State or public interest. This privilege
should not be confused with the law touching privilege connected with other
matters, such as legal professional privilege; privilege
barring,self-incrimination; Constitutional or statutory restrains against
disclosure of information or material. Privilege on the basis of public policy
forms a class apart and deserves td be treated as such.
Doypack Systems Pvt. Ltd. v.
(g) Qanun-e-Shahadat (10 of 1984)---
----Art.6---Constitution of
In English law the expression
"affairs of State" signifies the whole concept or principle of Crown
privilege. Article 6 of the Oanun-e-Shahadat, however, deals not only with the
said concept or principle but other related matters; the expression
"affairs of State" referring to the concept or principle of Crown
Privilege and the remaining portion to the nature of the record out of which
evidence sought to be produced is derived and the person who can exercise the
privilege to withhold or to grant the permission to produce the evidence. Is
the expression "affairs of State" relatable to certain distinct
subjects or matters or to subjects or matters generally? Broadly it is
relatable to State activities in all its ramifications, touching a host of
subjects in which the State may be involved or is a participant. The relations
of a State with other States or international bodies or organisations, could
throw up confidential matters relating to treaties, international relations,
foreign policy, internal communication, defence, diplomatic relations, etc. The
internal working and activities of the State could generate confidential
matters relating to interdepartmental communication, advice or notes exchanged
between reports communicated or received, or decisions taken by Ministers,
Heads of Departments or Government officials relating to various fields of
activity within the compass of their jurisdiction. Similar working and
activities 'of bodies under the direct coMrol and management of the State would
no less be covered. Within the ramification of its various involvements in such
diverse and peculiar fields as sports, trade, industry, commerce, social
welfare, etc., all such activities generating confidential matters would be
covered. Basically, therefore, what is covered by the expression "affairs
of State" is a matter of public importance relatable to any subject in
which the State is concerned or involved and (i) which is basically so secret,
that, apart from public policy, by practice or rules it is so required to be
maintained as an essential feature of the proper and due functioning of the
department itself or the maintenance of the system; or (ii) which is of such a
nature that a blanket of secrecy is required to be maintained in the public
interest, to prevent embarrassment, injury or harm that may be generated or be
caused to any person, should its disclosure be made. The first category can be
treated as "class" cases; the second as "contents" cases.
The inherent principle that guides the first category is that the documents
belong to such a class that its secrecy must be taken for granted and its
confidentiality assumed and that interests of national security must blindly be
allowed to override all other interests, irrespective of consequences. The
inherent principle that guides the second category is that where a conflict
arises between public interest and private rights, or injury to the public
interest as opposed to injury to the administration of justice, the former can
justifiably be allowed to override the latter. Since Article 6 covers the
principle of Stag privilege with other diverse matters, the possibility that
whilst referring to
"affairs of State", one
might loosely be referring to other diverse matters, or whilst referring to the
nature of the evidence to be given or the person who can exercise the
privilege, one may loosely be referring to the concept of State privilege,
cannot be excluded. But since the Article is a composite mix of different
matters it is necessary to maintain the distinction.
The expression "affairs of
State", both in
Duncan v. Cammell Laird & Co.
Ltd. 1942 A.C. 624; Begum Sardar Muhammad Hayat Tamman v. Government of
(h) Qanun-e-Shahadat (10 of
1984)---
----Art.6---Constitution of
Pakistan .(1973), Art.248---Production of papers which were connected with the
acts of State and that where the production of State papers was injurious to
the public service---Limit to the duty or the power of compelling production
such papers stated.
There had to be a limit to the
duty or the power of compelling the production of papers which were connected
with the acts of State and that where the production of a State paper was
injurious to the public service, the general public interest had to be.
considered paramount to the individual interest in the suit or in a Court of
justice. Not every document relating to a matter concerning the Government or
State was a privileged document and that only such documents could be withheld
where the public interest, by its disclosure, would be damnified.
It is not sufficient ground that
the documents are "State documents" or "official" or are
marked "confidential". It would not be a good ground that, if they
were produced, the consequences might involve the department or the Government
in Parliamentary discussion or in public criticism or might necessitate the
attendance as witnesses or otherwisenof officials who have pressing duties
elsewhere. Neither would it be good ground that production might tend to expose
a want of efficiency in the administration or tend to lay the department open
to Claims for compensation. In a word, it is not enough, that the Minister or
the de0artment does not want to have the documents produced.
State documents were frequently
absolutely privileged from production and it was the supreme duty of the Court
to protect the privilege where it existed, the privilege was a norrow one, most
sparingly to be used. The foundation for the privilege was that the information
could not be disclosed without injury to the public interest, and not that the
documents were
confidential or official, which
alone could not be- a reason for their nonproduction.
The scope of the admitted
privilege ` is not, in litigation extended. Particularly must it be remembered
in this connection that the fact that production of documents might in the
particular litigation prejudice the State's own case or assist that of the
other side is no such `plain overruling principle of public interest' as to
justify any claim of privilege. The zealous champion of State rights may
frequently be tempted to take the opposite view, particularly in cases where
the claim against the State seems to him to be harsh or unfair. But such an
opposite view is without justification. In truth the fact that the documents if
produced, might have any such effect upon the fortunes of the litigation is of
itself a compelling reason for their production---one only to be . overborne,
by the gravest considerations of State policy or security.
The privilege is a narrow one to
be sparingly used
Beatson v. Skene 1860 2 L.T.N.S.
378; Henry Greer Robinson v. State of South Australia AIR 1931 P.C. 254;
Asiatic Petroleum Co. Ltd. v. AngloPersian Oil 1916 1 K.B. 822 and Smith v.
East India Company (1841) 11 L.J. Ch. 71 ref.
(i) Qanun-e-Shahadat (10 of
1984)---
----Arts. 6 &
158---Constitution of
The word "publish",
inter alia, means to make public; to divulge; to announce; to proclaim; to
intimate to the public; to put forth and offer for sale books, magazines or
newspapers; to put into circulation, etc. Thus, documents which have been disclosed
or communicated to a party, or are such as are open for inspection or
information of office staff or public-at-large, or have been printed and-
published and are freely available outside the office or agency in whose
custody they normally remain, or which require to be notified or gazetted, or
which by law a party is entitled to receive, would not fall in the category of
unpublished records. This list, however, is not exhaustive. To fulfil the legal
character, the documents must not only be unpublished i.e. the contents of
which have not been divulged or made public or have remained under a blanket of
secrecy or confidentiality, but are a part of the State's record i.e. part of
the official records of a Ministry, Division, Department, agency, branch, organisation
or limb of the Government. or of a statutory body or corporation or company set
up or controlled by the Government.
(j) Qanun-e-Shahadat (10 of
1984)---
----Arts. 6 &
158---Constitution of
In England, the- affidavit of a
responsible Minister of State (as the political head of the department
concerned) or the Secretary of State or the permanent Under-Secretary of State
is generally expected to claim the privilege. Article 6 of the Oanun-e-Shahadat
refers to the person who can claim privilege as the officer at the head of the
department concerned i.e. the head of the department in whose custody the
relevant record normally remains or is present. All departments, agencies and
offices of Government are under a Division of Government. Each Division is
under a Ministry. Two or more Divisions can sometimes be under the same
Ministry. Over each Division is a Secretary of the Government concerned. Over
each Ministry is a Minister, with the Prime Minister or the Chief Minister at
the apex. Under the Rules of Business of the Government the Secretary is the
official head of the Division over which he is appointed. He is responsible for
its efficient administration and discipline, the proper conduct of its business
and for the due execution of the Government's sanctioned policy. The word
"Secretary" is generally defined in the Rules of Business of the
Government. It includes the Secretary, and a number of other persons in order
of priority who can be treated as such in his absence. Such persons defined can
therefore be treated as the heads of the departments concerned over which they
have jurisdiction. The Prime Minister and Chief Minister sitting at the apex of
all Ministries at the Federal and the Provincial levels and the Ministers,
sitting at the apex of the Ministries controlling the relevant departments
concerned, could lay claim to be treated as heads of the departments concerned.
In
difficulty in the said respect,
reference to the Rules of Business of the Federal or the Provincial Government
concerned would clear the matter.
The Intelligence Bureau, being
the Civil Wing of Intelligence, like the Ministry Intelligence, is a highly
secret and sensitive agency, whose activities and internal working require to
be kept at the highest level of secrecy and confidentiality in the larger
national interest. Its information and .documents, apart from any question of
public interest, by practice and procedure require to be maintained in :the
strictest confidence, as -an essential feature of the proper and efficient
functioning of the Bureau itself and of the maintenance of the system. All
unpublished .records of the Intelligence Bureau therefore constitute a class of
documents which by their very nature require to be maintained in the strictest
secrecy in the highest interests of national security.
There can be no dispute that the
Director of the Intelligence Bureau would be the head of the-said Government
Agency or Office. The fact that the Director is also nominated as ex officio
Secretary of the Bureau would not make him the Secretary of the said Bureau, in
the established sense, but would give the Director the power to make and
execute orders in the name of the President.
Governor-General-in-Council v.
Haji Pir Muhammad AIR 1950 E.P. 228; Amer Chand Butail v. Union of India AIR
1964 SC 1658 and State of Uttar Pradesh v. Raj Narain AIR 1975 SC 865 ref.
(k) Qanun=e-Shahadat (10 of
1984)---
----Arts. 6 &
158---Constitution of
The question
how the privilege should be claimed, assumes importance. Should it be oral or
in writing and, if the latter, supported by certificate or affidavit? Articles
6 and 158 of the Oanun-e-Shahadat are silent in this respect. However, both in
England and in this sub-continent, a practice has grown up that the same should
be claimed under the sanctity of the oath of the head of the department
concerned, not as a guard against falsity, but as a guarantee that the statement
or opinion of the head of the department is not one that has been expressed
inadvisedly or lightly or as a .matter of routine, but is one which, after
inspecting the documents, has been put forward on substantive grounds of public
policy or public interest. The affidavit is intended to clearly show that the
head of the department has himself seen and considered the contents of each and
every document in respect of which privilege is claimed and that he has himself
formed the view that on grounds of public interest, they are not to be
disclosed. In some cases, a certificate of the head of the department concerned
claiming privilege may be received, but the Court would not be barred from
calling upon the person concerned to follow the established procedure and
furnish his affidavit in support thereof and to also appear and be cross‑examined
thereon or to make a statement on oath, should the Court desire to take
evidence to determine the nature of the document and get some idea of the
nature of the injury to the State.
Henry Greer Robinson v. State of
(1) Qanun‑e‑Shahadat (10 of 1984)‑‑‑
‑‑‑‑Arts.
6 & 158‑ ‑‑Constitution of
Where there was clash between the
public interest that harm should not be caused to the nation or the public
service by the disclosure of certain documents and that the administration of
justice should not be frustrated by the withholding of them, their production
would not be ordered if the possible injury to the nation or the public service
was so grave that no other interest could be allowed to prevail over it,
but.where the injury was substantially less, the Court, could balance against
each other the two public interests involved. Where the Minister's certificate
suggested that the document belonged to a class which ought to be withheld,
then, unless his reasons were of a kind that judicial experience was not
competent to weigh, the proper test was whether the withholding of a document
of that particular class was really necessary for the functioning of the public
service. If on balance, considering the likely importance of the document in
the case before it, the Court considered that it should probably be produced,.
it should generally examine the document before ordering the production. Under
Article 158 of the Qanun‑e‑Shahadat, which corresponds with the old
section 162 of the Evidence Act, in the case of a document not connected with
the affairs of State, the Court can decide the objection by looking at the
document and taking other evidence. In the case of a document connected with
the affairs of State, the Court is barred from looking at the document, but it
can take other evidence to determine whether the objection is valid. The Court,
without inspecting the document, but by collateral evidence had the right to
satisfy itself that the document related to an affair of State and once that
was determined, the right of determining whether the document should or should
not be produced being that. of the head of the department alone, the Court had
to hold its hands and not interfere. But if it found that it did not relate to
any matter of State, it could hold that the privilege did not apply. The Court
has abundant powers under Article 158, Qanun‑e‑Shahadat, 1984 to
inspect the document in order to determine the validity of the claim and to
ensure that it was not being claimed inadvisedly or lightly or as a matter of
routine. Since it was sometimes indeed difficult to assess from collateral
evidence whether a document related to an affair of State, the need of the
Court to actually inspect the document had finally been realised.
Where a document
is required to be produced in evidence, in respect of which the Secretary or
the head of the department concerned wishes to claim privilege, the document
should be brought in Court with the affidavit of the head of the department
concerned claiming privileges, which should be filed. If the document does not
relate to an affair of State but some other privilege or statutory bar to its
production is being urged, the document can be inspected and other evidence
taken to determine its admissibility. The Court is not compelled to accept the
claim. It has the jurisdiction to assess its worth. If the document relates to
an affair of State, the Court, in the first instance need not inspect it, but
must examine the affidavit to see if the claim appears to be well founded. 1f the
document belongs to a class where secrecy is required to be maintained as an
essential feature of the proper and due functioning of the department itself or
the maintenance of the system, the Court must give credence to the claim. 1f
the document relates to an affair of State where its disclosure would affect
public interest, the Court has the right to assess it to see if it is well
founded. Whether the document belongs to the "class" category or the
"contents" category, if there is some doubt as regards this matter,
the Court can take other evidence, which would include the examination of the
head of the department in respect of matters stated in his affidavit. The Court
has the power and the duty to hold a balance between the public interest, as
claimed by the head of the department to withhold the production of a document,
and the public interest that must be maintained in the proper and fair
administration of justice; and the right to determine which shall supervene.
Where the Court desires to examine the document to ensure that privilege is not
being claimed frivolously or inadvisedly or in bad faith or on incorrect
premises or as a matter of routine or for other unfair reasons, the Court has a
right and a duty to do so; and more specially in cases where the document
relates to routine or unimportant matters or where the Court considers the
claim more technical than real.
Privilege against disclosure of sensitive documents, when validly
claimed, deserves to be highly respected, and Courts of their own should not be
too free in permitting such documents to be received, without first referring
to the department concerned to find out whether they would be claiming
privilege. However, the Court can, in special case: inspect the document and to
decide which of two competing public inter ests should be allowed to supervene.
Where privilege is waived, the document can be received, for a department which
has the right to claim privilege also has the right to waive the same, if it
finds that the national security is not jeopardized or for any political or
other reason it consciously desires to lift the veil of secrecy. The head of
the department had discretion to permit the production of a document even
though its production could theoretically lead to some kind of injury to public
interest.
Glasgow
Corporation v. Central Land Board 1956 SC H.L. 1; Duncan v. Cammell Laird &
Co. Ltd. 1942 AC 624; Henry Greer Robinson v. State of South Australia AIR 1931
PC 254; Conway v. Rimmer 1968 AC 910 H.L.; Mohan Singh v. Emperor AIR 1940 Lah.
217; Ijjatali Talukdar v. Emperor AIR 1943
(m) Qanun-e-Shahadat (10 of
1984)---
----Arts.6
& .158---Constitution of Pakistan (1973), Art.248---Production of
document---Claim of privilege---Rule with regard to privilege in criminal
proceedings is somewhat restricted and limited, as opposed to civil proceedings
where it has a larger play.
The rule with
regard to privilege in criminal proceedings is somewhat restricted and limited,
as opposed to civil proceedings where it has a larger play. The English Courts
have not permitted privilege to prevail in respect of certain types of
documents which are intended to be used in criminal trials, such as (i)
documents protected by legal professional privilege where such documents have
been used in preparation for, or in furtherance of or as a part of any criminal
design or fraud; (ii) information or documents protected by privilege on
grounds of public policy or legal professional privilege where they are
material for establishing the defence and innocence of an accused. In respect
of documents stated in category (i) the view of the Courts has been that the
prevention and detection of crime and fraud may require the disclosure of such
confidential information; and public policy then overrides all private claims
to privilege. In short, the view is that if the documents are relevant to
establish the commission of crime of fraud by the accused, and are not made for
legitimate purposes, such as for the preparation of the defence of the accused,
which the interests of justice may require to be kept confidential, the
documents would not be privileged. To this test there is another that there is
a bona fide and reasonable tenable charge of crime or fraud present. In respect
of information and documents stated in category (ii) the view is that if
privilege is allowed to prevail, it would obstruct justice and defeat the
attempt of the accused to present his defence and prove his innocence.
The tendency
of the Criminal Courts is to exclude the privilege in criminal trials where it
directly tends to thwart an accused from defending himself in respect of the
incriminating material that may be brought against him, or indirectly obstruct
him from presenting evidence as may be intended to further a point that is
going to be raised in defence of the charges. Unless the accused has a full
opportunity to defend himself, the trial can only be a farce and would suffer
from an inherent vice, that may vitiate the whole proceedings. Truth and
justice are the twin pillars on which the infrastructure of this mighty Islamic
State of Pakistan rests and justice in a criminal trial cannot be allowed to be
sacrificed at the altar of a concept which can only erode the fair
determination of a cause, instead of supporting it.
Williams v.
Quebrada Railway (1895) 2 Ch 751; Reg. v. Cox and Railton (1884), 14 Q.B.D.
153; Bullivant v. Attorney-General for Victoria 1901 A.C. 196 (H.L.); O' RourKe
v. Darbishire 1920 A.C. 581 (H.L.); Butler v. Board of Trade 1971 Ch. 680; Webb
v. Catchclove 1886 3 T.L.R. 159; Rex v. James Clarke 1930 22 Cr. App. Rep. 58;
Rex v. Barton 1972, 2 All E.R. 1192; Rex v. Hardy 24 State Tr. 199; Marks v.
Beyfus (1890) 25 Q.B.D. 494; Hennesy v. Wright (1888) 21 Q.B.D. 509; Rogers v.
Home Secretary 1973 A.C. 388 & 407 (H.L.) 407; Clinton E. Jencks v. United
States of America 353 Y.S. 657 and Roviaro v. United States of America 353 U.S.
53 ref.
(n) Qanun-e-Shahadat (10 of
1984)---
----Arts. 6
& 158---Articles 6 & 158 do not limit the powers of the Courts from
declaring how the rule of State privilege in respect of affairs of State should
be governed---Powers of Court qua the application of rule of State privilege
stated.
Articles 6 and
158 of the Qanun-e-Shahadat do not limit the powers of the Courts from
declaring how the rule of State privilege in respect of affairs of State should
be governed and in what appropriate cases the rule may be applied with
severity, or in what cases it may be relaxed and in what cases it may be
excluded, to maintain, subject to' all just exceptions, the proper
administration of a judicial system which guarantees a just and fair trial in
the public interest. Where in appropriate cases the application of the rule
requires to be relaxed or excluded altogether, the Court can, to maintain the
secrecy required, order the proceedings to be conducted in camera and, where
the strictest secrecy is required, to ensure that proceedings are conducted
under an oath of secrecy, where the Court records can be sealed after Court
proceedings each day and desealed when the proceedings reopen. This would
enable the Court not only to apply the rule intelligently in certain types of
cases, but also maintain strict secrecy.
(o) Parliament and Provincial
Assemblies (Disqualification for Membership) Order (17 of 1977)--
----Arts. 6, 5
& 7---Qanun-e-Shahadat (10 of 1984), Art.6---Constitution of Pakistan
(1973), Art.248---Reference under Art.7, P.P.O. 17 of 1977---Powers of Special
Court to conduct its proceedings and regulate its procedure--Powers of Special
Court under Art.6 of the Parliament and Provincial Assemblies (Disqualification
for Membership) Order, 1977 have some similarity with that exercised by a Court
under Art. 6 of the Qanun-e-Shahadat, 1984.
Under Article 6(1) of the Parliament and Provincial Assemblies (Disqualifications
for Membership) Order, 1977, the Special Court has the powers of a Civil Court
trying a suit under the Code of Civil Procedure (V of 1908), inter alia in
respect of requiring the discovery and production of documents and
requisitioning any public record or copy thereof from any Court or office.
Under Article 6(2) of the Order it has power to require any person, subject to
any privilege that may be claimed for him under law, to furnish such
information as in the opinion of the
Khan Iftikhar Hussain Khan of Mamdot's case PLD 1950 Lah. 12 ref.
Raja Muhammad Anwar, Senior
Advocate Supreme Court, Ch. Aitzaz Ahsan, A.S. Najam instructed by Saleem
Malik, Advocate-on-Record (absent) for Appellant.
Aziz A.
Munshi, Attorney-General for
Dates of hearing: 18th and
JUDGMENT
SHAFIUR RAHMAN, J.---Hereunder is
the detailed judgment containing therein reasons for our short order passed on
1. This appeal
has been filed as a matter of right under Article 7 of the Parliament and
Provincial Assemblies (Disqualification for Membership) Order, 1977 President's
(Post-Proclamation) Order No.17 of 1977 hereinafter referred to as the Order).
It is directed against the order, dated 28-1-199' passed by the. Special Court
of Mr. Justice Muhammad Amir Malik in President's Reference No.ll of 1990,
allowing the claim of privilege preferred by the Director of Intelligence
Bureau, Government of Pakistan in respect of certain documents whose production
was sought for by the appellant during the trial of the proceedings.
2. The brief factual background
in which this appeal has arisen is that a Reference was filed in the name of
the President of the Islamic Republic of Pakistan under Article 4 of the Order
against the appellant on
"As the reference relates to the SS Fund and is therefore of a
confidential nature, the material submitted herewith may, it is respectfully
requested be treated as such. and any further material subsequently
available/submitted in support of the above reference to the Honourable Special
Court may also receive the same confidentiality .'
3, On the material -n furnished
to the
"DECLASSIFICATION OF DOCUMENTS
At the time of making reference under PPO 17 of 1977 or preparing cases
under PPO 16 of 1977 and other laws, a number of classified documents were used
and their copies supplied to the various Courts.
(?The Prime Minister was pleased to verbally approve declassification
of the documents so used. It is requested that he may kindly record his
approval by way of confirmation."
4. The initial proceedings were
held in camera but the counsel Retiring Authority not being satisfied with it
made an application 1s-? 1iQ1, the relevant port inn of which is reproduced as
hereunder:
"That during the proceedings in camera the learned counsel for the
respondent, with a view to prejudice the mind of the learned Court and to
hamper the progress of the case, made certain factually incorrect submissions
on the pretext that the matter .involved is of a sensitive nature and
disclosure of the expenditure of funds in question is against the national
interest and security of the State. In this regard proceedings before the Full
Bench were also referred to.
The true
factual position is that even before the Full Bench learned Attorney-General
categorically stated that he had been instructed by the authorities that Maj.
-Gen. (Retd.) Nasirullah Khan Babar, may give details whatever he wants about
the spending of the money to the Court. It is also submitted that the Prime
Minister was also pleased to approve declassification of the documents used in
reference, copies of which were supplied to the Court.
That the
Referring Authority has nothing to conceal from the Court, public or press.
Holding proceedings in open Court would be in the national interest and will
advance the ends of justice as well.
It is,
therefore, respectfully prayed that the proceedings in the Reference may kindly
be ordered to be held in open Court."
5. During the course of the
trial, on
"(1) That P.W.4 Col. Ikramul Haque has deposed that the amount of
the Secret Service Fund spent during the tenure of the respondent as Prime
Minister exceeded the total amount expended from 1947-1988. Thus the record
relating to the original budgetary provisions, supplementary grants,
allocations, summaries and actual disbursement/spending at the level of
Directorate of I.B. and the Prime Minister/Chief Executive Secretariat during
this period has become important and relevant for the purposes of defence.
(2) That
similarly the record as explained above pertaining to the period from
It is,
therefore, prayed that this learned Court may be pleased to order discovery and
production of the above-said documents/record and the applicant/respondent be
allowed to inspect the same before cross-examination of the witnesses is
conducted."
This
application for discovery, inspection and production of record, dated
"The list
of witnesses filed by the Referring Authority Mr. Muhammad Ikramul Haq, Deputy
Director, Mr. Imtiaz A. Malik, Assistant Director, Major (Retd.) Masood Sharif
. Khan, ex-Joint Director, Sardar Noor Ellahi Lughari, ex-Director and Mr.
Ghulam Mujtaba, Cashier of I.B. have been cited. If from their examination case
is made out for the production and inspection of some record for the just, fair
and equitable disposal of the matter under Reference, the respondent may well
avail of the opportunity at the proper time.
Therefore, subject to the above
observation, the petition is dismissed:'
The second
application (dated
"So,. to enable the respondent to cross-examine the record
mentioned in sub-para (i) of para 2 of the petition, seems to be relevant and
germane to the matter in issue. The certificates of the Chief Executives and
audit reports of the Cabinet Secretary may be relevant. The Referring Authority
is, therefore, directed to produce the above record for the inspection of the
Court. With respect to the record mentioned in sub-para (i), the respondent is
allowed to inspect as well subject to any claim of privilege which when raised,
would be considered on its own merits. The certificates of Chief Executives and
Audit Reports of Cabinet Secretary would only be produced for the inspection of
the Court. The application is disposed of in the above terms:"
6. In the
background of these two applications and orders, the application, dated
16-12-1991 was resisted and privilege was claimed in respect of the documents
as hereunder by Brig. Imtiaz Ahmed (Retd.), Head of the Intelligence Bureau,
Government of Pakistan, Islamabad:--
"That the
above documents namely the record of allocations, supplementary allocations
(excepting the figures of allocations) and "summaries" are
unpublished official records.
That after
carefully examining the records mentioned above and having applied mind thereto
the deponent is of the firm opinion that the record in question pertains to
matters of State and its production/inspection would severely damage national
interest, national defence and diplomatic relations with foreign powers and
above all it will completely demolish unwritten code of Intelligence ethics
between the organization and the members of the Intelligence network within
both inland and abroad.
That for the
aforesaid reasons the deponent has decided to withhold production and
inspection of the above record under the constraints o1 National
security/interest."
7. This application
was contested by the appellant and came to be disposed of by the impugned
judgment/order, dated
8. The Special
Court considered the provisions of law namely, sections 123 and 162 of the
Evidence Act, 1872 as incorpoEated in Articles 6 and 158 of Oanun-i-Shahadat,
1984 and examined it in the light of the precedent law namely, Khawaja Nazir
Ahmad v. Emperor AIR 1944 Lah. 434, I.M. Lail v. Secretary of State AIR 1944
Lah. 209, Emperor v. Ch. Raghunath Singh and others AIR 1946 Lah. 459, Ghulam
Ali v. Abdul Harz PLD 1962 Lah. 765, Ch. Mehmood Ahmad and others v. Government
of the Punjab and others 1988 CLC 1532, Government of West Pakistan and another
v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14, State of Punjab v.
Scxfhi Sukhdev Singh AIR 1961 SC (India) 493 and Amar Chand Butail v. Union of
India and others AIR 1964 SC 1658. The Director, Intelligence Bureau was held
to be Head of the Department and competent to file the Affidavit and claim the
privilege. On the preponderance of the authority, the Special Court held that
the Court could itself not examine the documents once it was found to be
unpublished record pertaining to the affairs of the State. It passed the
following operative order disposing of this application:--
"Critical
look at the affidavit indicates that the documents to which privilege was not
claimed and those to which it has been claimed had been separated, meaning
thereby that mind had been applied and documents inspected. Averments have also
been made that the record of allocations contained materials touching
organisational structure sensitive ingredients of the Intelligence dynamics of
the Intelligence Bureau, the particulars of the projects for which allocations
were made and also the identity of the persons involved in the execution of
these projects and the linked `Intelligence Nets'. The record pertained to
matters of State and its production/inspection according to the affidavit,
would severely damage the national interest, national defence and diplomatic
relations with foreign powers and above all, it will completely demolish
unwritten code of Intelligence ethics between the organisation and the members
of the Intelligence network. In view of the exhaustive affidavit I do not think
that the argument put forward by the learned counsel for the respondent can be
upheld. The upshot is that the privilege is allowed and the applications for
discovery, production and inspection are dismissed."
9. Raja Muhammad Anwar, Senior
Advocate, the learned counsel for the appellant has in the first instance
challenged the authority of Brig. Imtiaz Ahmed (Retd.) to act as Head of the
Department and to claim privilege. He has referred to the decisions of the
Indian Supreme Court in the case of Sodhi Sukhdev Singh AIR 1961 SC (India)
493, Amar Chand Butail AIR 1964 SC 1658, The State of Uttar Pradesh v. Raj
Narain and others AIR 1975 SC 865, M/s. Doypack Systems Pvt. Ltd. v. Union of
India and others AIR 1988 SC 782 and Queen Bench Division decision in
Attorney-General v. Jonathan Cape Ltd. and others (1976) 1 Q.B. 752 to contend
that the Prime Minister being the Incharge of the Department had to exercise the
privilege and could act as the Head of the Department and not anyone else. He
has also referred to the fact that the Cabinet Secretariat has been authorises
to deal with the Intelligence Bureau and the Cabinet Secretary could on the
basis of authorisation under the Rules of Business act as Head of the
Department. He has also drawn our attention to the very fact that documents
identical in nature and of a more recent date were declassified for the
purposes of making a Reference and in the application filed by the counsel for
the Referring Authority claiming open trial of the Reference indicated that no
such privilege as was claimed in respect of the matter relevant and admissible
at the trial was to be claimed and every thing was to be publicly exhibited as
was done in the case of material forming the basis of the Reference. In any
case, according to the learned counsel, the Court should have itself perused
the documents and material in respect of which the privilege was being claimed.
10. The
learned Attorney-General for Pakistan has taken us through the extensive
precedent law on the subject starting with Robinson v. South State of Australia
AIR 1931 PC 254, Duncan v. Cammell Laird & Company 1942 AC 624, Miss Rajul
Rao Ji Bhai Shah v. Provincial Government of C.P. & Barar and another AIR
1951 Najpur 212, Wamanrao v. Emperor AIR 1926 Nagpur 304, Government of West
Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14
and Bcgum Sardar Muhammad Hayat Khan of Tamman v. Government of West Pakistan
and another PLD 1969 Lah. 985 to justify the claim of the privilege, the
sensitive nature of the documents and the reluctance of the
11. There are three peculiar features of this
case which distinguish it from every other that has been cited before us or has
come to our notice otherwise.
The first
conspicuous feature of the proceedings before the
The second
feature, and a very noticeable one, is that not the State but the appellant
made a request for the trial to be held in camera or restricted and it was the
State which responded to the request by saying that the "Referring
Authority has nothing to conceal from the Court, public or press. Holding proceedings
in Court would be in the national interest and will advance the ends of justice
as well". This further strengthens the initial assumption that the Court
will have free access to all the relevant material for a proper and fair trial.
The third peculiar
feature of the case to be noted is that the law under which the trial of the
appellant is taking place while defining the offence of "misconduct"
the Order itself provides a defence to the person facing trial. The
"misconduct" has been defined in Article 2(a) of the Order as
hereunder:-
" `misconduct' refers to conduct after
December 1970, and includes bribery, corruption, jobbery, favouritism,
nepotism, wilful maladministration, wilful misapplication or diversion of
public moneys or moneys collected, whether by public subscription or otherwise,
and any, other abuse of whatsoever kind of power or position, and any attempt
at, or abetment of, such misconduct."
A defence for
it has been provided in Article 10 of the Order in the following words:--
"No proceeding under this Order shall lie against any person who
holds or has held an office mentioned in Article 4 for anything which has been
in good faith done or intended to be done in pursuance of or in exercise of
powers vested, or in good faith believed to be vested, in him at the material
time by virtue of that office."
Such a defence
need not be necessarily pleaded or argued. The Court has to be alive to the
interplay of these two provisions in receiving evidence, in evaluating it and
in recording its finding. Such a duty on the part of the Court necessarily
required access to the material which was sought to be withheld from the Court
in proceedings under this law.
12. In view of these features of the trial it is not the letter of the
law on privileges that helps us in resolving such a controversy nor is it the
application of that law found in the cases cited at the Bar as precedent. It is
the principle and the policy underlying the law. It is the demands on any
judicial system of doing even-handed justice and making it equally appear so
which alone can help us in resolving such a controversy and we had very little
assistance, almost none, on these aspects of this appeal.
13. The first principle finds expression in second edition of `A
Treatise on the Anglo-American System of Evidence in Trials at Common Law' by
John Henry Wigmore in Volume V at page 194, in the following words:--
"The question is then reduced to this, Whether there are any
matters of fact, in the possession of officials, concerning solely the internal
affairs of public business, civil or military, which ought to be privileged
from disclosure when material to be ascertained upon an issue in a Court of
justice?
Ordinarily, there are not. In any community under a system of representative
government and removable officials, there can be no facts which require to be
kept secret with that solidity which defies even the inquiries of a Court of
justice. "To cover with the veil of secrecy", said Patrick Henry,
"the common routine of business, is an abomination in the eyes of every
intelligent man and every friend to his country". Such a secrecy can
seldom be legitimately desired. It is generally desired for the purposes of
partisan politics or personal self-interest. The responsibility of officials to
explain and to justify their. acts is the chief safeguard against oppression
and corruption. Whether it is the relations of the Treasury to the Stock
Exchange, or the dealings of the Interior Department with Government lands, the
facts must constitutionally be demandable, sooner or later, on the floor of
Congress. To concede to them a sacrosanct secrecy in a Court of justice is to
attribute to them a character which for other purposes is never maintained, a
character which appears to have been advanced, only when it happens to have
served the interests of some individual to obstruct investigation into facts
which might fix him with a liability."
This principle was put to test in 1775, Trial of Maharajah Nundocomar
(20 How. St. Tr. 1057), where it was observed as hereunder:--
"Mr. Stewart, for the Governor and Council of the East India
Company, wished not to produce the Council records, because it would lead to
"many inconveniences and ill consequences to exhibit the proceedings of
the Council in an open Court of justice, especially as they may sometimes
contain secrets of the utmost importance to the interest and even to the safety
of the State."
The Court recorded its opinion as hereunder:--
"We are
not surprised that the Governor -General and Council should be desirous to
prevent their books being examined, which might tend to the consequences they
mention. It would be highly improper that their books should be wantonly
subjected to curious and impertinent eyes. But at the same time it is a matter
of justice that, if they contain evidence material to the parties in civil
suits, they may have an opportunity of availing themselves of it. Humanity
requires it should be produced when in favour of a criminal, justice when
against him. The papers and records of all the public companies in
14. The second
principle as to whether in such a controversy the public interest has always to
prevail and is not required to be balanced has been discussed as hereunder, in
Wigmore's ibid, at page 195:--
"It is
urged, to be sure (as in Beatson v. Skene 5 H. & N. 838, 853), that the
"public interest must be considered paramount to the individual interest
of a suitor in a Court of justice". As if the public interest were not
involved in the administration of justice! As if the denial of justice to a
single suitor were not as much a public injury as is the disclosure of any
official record! When justice is at stake, the appeal to the necessities of the
public interest on the other side is of no superior weight."
15. As regards
the Court's duty in resolving such a controversy, the following illuminating
discussion appears at page 199 of Wigmore's ibid:--
"The
truth cannot be escaped that a Court which abdicates its inherent function of
determining the facts upon which the admissibility of evidence depends will
furnish to designing officials too ample opportunities for abusing the privilege.
The lawful limits of the privilege are extensible beyond any control, if its
applicability is left to the determination of the very official whose interest
it is to shield his Wrongdoing under the privilege. Both principle and policy
demand that the determination of the privilege shall be for the judge."
16. In a more
recent judgment from the, sub-continent, S.P. Gupta v. M. Tarkunde AIR 1982 SC
149 openness of the administration, minimum of secrecy and privileges and right
to know. have been held to be a
necessary requirement of a democrative society and an extension of the
fundamental rights guaranteed. The Court proceeded to hold as hereunder:--
"The Court would allow the objection if it finds that the document
relates to affairs of State and its disclosure would be injurious to public
interest, but on the other hand, if it reaches the conclusion that the document
does not relate to affairs of State or that the public interest .foes not
compel its non-disclosure or that the public interest in the administration of
justice in the particular case before it overrides all other aspects of public
interest, it will overrule the objection and order disclosure of the document.
The basic question to which the Court would therefore have to address itself for
the purpose of deciding the validity of the objection would be whether the
document relates to affairs of State or in other words, it is of such a
character that its disclosure would be against the interest of the State or the
public service and if so, whether the public interest in its nondisclosure is
so strong that it must prevail over the public interest in the administration
of justice and on that account, it should not be allowed to be disclosed. The
final decision in regard to the validity of an objection against disclosure
raised under section 123 would always be with the Court by reason of
S.162_"
17, In Sankey v. Whitlam (21
Australia Law Reports 505), the proceedings initiated on private complaint
related to alleged offences against Mr. Whitlam, a former Prime Minister and
others and the Court dealt with the ground of privilege in such a case in the
following words:---
"I consider that although there is a class of documents whose
members are entitled to protection from disclosure irrespective of their
contents. the protection is not absolute, and it does not endure for ever. The
fundamental and governing principle is that documents in the class may be
withheld from production only when this is necessary in the public interest. In
a particular case the Court must balance the general desirability that
documents of that kind should not be disclosed against the need to produce them
in the interests of justice. The Court will of coarse examine the question with
special care, giving full weight to the reasons for preserving the secrecy of
documents of this class, but it will not treat all such documents as entitled
to the same measure of protection--the extent of protection required will
depend to some extent on the general subject-matter with which the documents
are concerned.".
18. In this
background of events and the law, the
19. There are
two legal issues which require determination, nevertheless, because the learned
counsel for the appellant has been very emphatic on it. Both the parties have
relied on an Order of the Prime Minister issued in 1973, prior to the framing
of the Rules of Business, whereby the Prime Minister had directly taken over
the charge of the Intelligence Bureau and the Director of the Intelligence
Bureau had been given the status of an ex officio Secretary. 1t was contended
by the learned counsel for the appellant that as Minister Incharge, the Prime
Minister should have issued the certificate of privilege and not the; Director
Incharge. He has relied for this on the decisions of the Indian Supreme Court
and we find that such is requirement also in the United .Kingdom wherein, in
paragraph 89 in Halsbury's Laws of England, Fourth Edition (Volume 13) it is
stated that "the claim to Crown privilege must be made by the Minister who
is the political head of the department concerned or where it. is not
convenient or practicable for the political minister to act,: it is reasonable for the claim to be made by
the permanent head:".
We find that the position in
20. ' As
regards the capacity of the Director Incharge, we find that reading the
instructions of the Prime Minister of 1973 with sub-rule (5) of rule 4 of the
Rules of Business and the exclusion of such material from Cabinet Secretary by
entry No.l in Schedule V-A relatable to Rule 15(1)(g) and (h) containing list
of cases to be submitted to the Prime Minister for his orders through the
Cabinet Division qualifies him as Head of the Office. The Director,
Intelligence Bureau was, therefore, competent to claim privilege under the law
but 'it was for the Court to determine its justification or otherwise.
21. For the
foregoing reasons, we accept this appeal, set aside the order of the Special
Court -of Mr. Justice Muhammad Amir Malik, dated 28-1-1992 ,allowing- the claim
of privilege without examining the material in respect of which such privilege
was claimed, and direct the Special .Court to reconsider [lie question of
privilege in the light of following facts:--
.(i) The inquiry/trial before the
Special Court itself being in the domain highly sensitive and secret, relating
to affairs of State -and its unpublished record, its uninhibited trial has been
possible because of the declassification of the documents by the Prime Minister
as Minister in Charge of the Department by his order, dated 2-10-1990 in
respect of material of more recent date forming the very basis of the Reference.
(ii) Such being the substance of
the inquiry/trial, followed by partial waiver of privilege, the Court should in
the matter of claim of privilege be guided more b,, the relevancy, the
consistency and the nexus of such privileged material Nvith a proper. Fair and
just trial than the mere fact that privilege in respect of it has been claimed.
Necessarily it requires examination of such material by the. Court itself.
(iii) The
Court should consider the desirability of holding proceedings in . camera in
respect of document/material for which privilege is claimed but is not allowed,
or request is made for holding the proceedings in camera and is found
justified.
AJMAL MIAN, J.---I have had the
advantage of reading the draft of the proposed judgment of my learned brother
Shafiur Rahman, J. I :am in respectful agreement with his Lordship but with all
due deference to my learned brother, I have different view as to the effect of
Article 248: of the Constitution of Islamic Republic of Pakistan, 1973,
hereinafter referred to as the `Constitution' on the controversy in issue. In
my humble view, the factum that above Article grants an immunity to the
Ministers from the answerability in Court of law with regard to discharge of
their duties would not affect the question as to who is competent to claim
privilege of non-disclosure or non-production of a document under the relevant
provision of the relevant statute. The above question is to be determined in
terms of the latter provision.
RUSTAM S. SIDHWA, J.---I have read the judgment of my learned brother
Shafiur Rahman, J., with whose final findings I ,agree. Since there are a
number of matters on which I wish to express myself, I take 'the liberty of
writing this separate note.
2. Before dealing with the
question confronting us, it is necessary to reproduce Articles 6 and 158 of the
Qanun-e-Shahadat, 1984, which read as follows:--
"6:No one
shall be permitted to give any evidence derived from unpublished official
records relating to any affairs of State, except with the permission of the
officer at the head of the Department concerned, who shall give or withhold
such permission as he thinks fit.
Explanation.---In
this Article "official records relating to the affairs of State"
includes documents concerning industrial or commercial activities carried on,
directly or indirectly, by the Federal Government or a Provincial Government or
any statutory body or corporation or company set up or controlled by such
Government.
158. (1) A
witness summoned to produce a document shall, if it is in his possession or
power, bring it to Court, notwithstanding any objection which there may be to
its production or to its admissibility. The validity of any objection shall be
decided on by the Court.
(2) The Court, if it sees fit, may inspect
the document, unless it refers to matters of State, or take evidence to enable
it to determine on its admissibility.
(3) If for such a purpose it is necessary to
cause any document to- be translated, the Court may, if it thinks fit, direct
the translator to keep the contents secret, unless the document is to be given
in evidence, and, if the translator disobeys such direction, he shall be held
to have committed an offence under section 166 of the Pakistan Penal Code Act
(XLV of 1860)."
These articles correspond to the old sections 123 and 162 of the
repealed Evidence Act, 1872, which may also be reproduced below:--
"123. No one shall be
permitted to give any evidence derived from unpublished official records
relating to any affairs of State, except with the permission of the officer at
the head of the department concerned, who shall give or withhold such
permission as he thinks fit.
162. A witness
summoned to produce a document shall, if it is in his possession or power,
bring it to Court, notwithstanding any objection which there may be to its
production or to its admissibility The validity of any such objection shall be
decided on by the Court.
The Court, if it sees fit, may
inspect the document, unless it refers to matters of State, or take other
evidence to enable it to determine on its admissibility.
If for such a
purpose it is necessary to cause any document to be translated, the Court may,
if it thinks fit, direct the translator to keep the contents secret, unless the
document is to be given in evidence: and, if the interpreter disobeys such
direction, he shall be held to have committed an offence under section 166 of
the Pakistan Penal Code:"
The Explanation to Article 6 of the Oanun-e-Shahadat, appears to be a
new addition, because the same was not there previously with section 123 of the
Evidence Act. The underlying object of Article 6 of the Oanun-e-Shahadat is to
prevent evidence which is derived from any unpublished official record relating
to an affair of State, from being giver:, without permission of the head of the
Department concerned, and to relieve the party withholding to produce such
'evidence from the presumption that could be raised against it under Article
129 of the Oanun-e-Shahadat (the old section 114 of the Evidence Act). The
object is founded on the old English common law rule of Crown Privilege or
Privilege on the basis of Public Policy which prevents matters of State over
which a veil of secrecy is required to be enforced and maintained, from being
laid bare or made public, and thus severely endangering State or public
interest. This privilege should not be confused with the law touching privilege
connected with other matters, such as legal professional privilege; privilege
barring self-incrimination; Constitutional or statutory restraints against
disclosure of information or material. (see Doypack Systems Pvt. Ltd. v. Union
of India AIR 1988 SC 782), etc. Privilege on the basis of Public Policy forms a
class apart and deserves to be treated as such.
2. The first
question that arises is, what-do we mean by the expression "affairs of
,State" as used in Article t, of the Qanun-e-Shahadat. In English law the
expression "affairs of State" signifies the whole concept or
principle of Crown Privilege, as stated above. Article 6 of the
Oanun-e-Shahadat, however, deals not only with the said concept or principle
but other related matters; the expression "affairs of State"
referring to the concept or principle of Crown Privilege and the remaining
portion to the nature of the record out of which evidence sought to be produced
is derived and the person who can exercise the privilege to withhold or to
grant the permission to produce the evidence. Is the expression "affairs
of State" relatable to certain distinct subjects or matters or to subjects
or matters generally. Broadly it is relatable to State activities in all its
ramifications, touching a host of subjects in which the State may be involved
or is a participant? The relations of a State with other States or
international bodies or organisations, could throw up confidential matters
relating to treaties, international. relations, foreign policy, internal
communication, defence, diplomatic relations, etc. The internal working and
activities of the State could generate confidential matters relating to
inter-departmental communication, advice or notes exchanged between reports
communicated or received, or decisions taken by Ministers, Heads of Departments
or Government officials relating to various fields of activity within the
campass of their jurisdiction. Similar working and activities of bodies under
the direct control and management of the State would no less be covered. Within
the ramification of its various involvements in such diverse and peculiar
fields as sports, trade, industry, commerce, social welfare, etc., all such
activities generating confidential matters would be covered. Basically,
therefore, what is covered by the expression "affairs of State" is a
matter of public importance relatable to any subject in which the State is
concerned or involved and (i) which is basically so secret, that, apart from
public policy, by practice or rules it is so required to be maintained as an
essential feature of the proper and due functioning of the department itself or
the maintenance of the system (see Duncan v. Cammell Laird & Co. Ltd. 1942
A.C. 624; Begum Sardar Muhammad Hayat Tamman v. Government of West Pakistan,
PLD 1969 Lah. 985 at 999; or (ii) which is of such a nature that a blanket of
secrecy is required to be maintained in the public interest, to prevent
embarrassment, injury or harm that may be generated or be caused to any person,
should its disclosure be made. The first category can be treated as
"class" cases; the second as "contents" cases. The inherent
principle that guides the first category is that the documents belong to such a
class that its secrecy must be taken for granted and its confidentiality
assumed and that interests of national security must blindly be allowed to
override all other interests, irrespective of consequences. The inherent
principle that guides the second category is that where a conflict arises
between public interest and private rights, or injury to the public interest as
opposed to injury to the administration of justice, the former can justifiably
be allowed to override the latter. Since Article 6 covers the principle of
State privilege with other diverse matters, the possibility that whilst
referring to "affairs of State", we might loosely be referring to
other diverse matters, or whilst referring to the nature of the evidence to be
given or the person who can exercise the privilege, we may loosely be referring
to the concept of State privilege, cannot be excluded. But since the Article is
a composite mix of different matters it is necessary to maintain the
distinction.
3. The expression "affairs
of State", both in England and in this subcontinent as applicable in
matters relating to evidence, has not earned a liberal meaning to include each
and every affair or matter in which the State may be involved. It has always
been interpreted in a narrow sense. In Beatson v. Skene (1860, 2 L.T.N.S. 378),
Pollock C.B. observed that there had to be a limit to the duty or the power of
compelling the production of papers which were connected with the acts of State
and that where the production of a State paper was injurious to the public
service, the general public interest had to be considered paramount to the
individual interest in the suit or in a Court of justice. In Duncan's case
(supra), Viscount Simon L.C. clearly held that not every document relating to a
matter concerning the Government or State was a privileged document and that
only such documents could be withheld where the public interest, by its
disclosure, would be damnified. The Lord Chancellor also cautioned:--
"It is not. sufficient ground that the documents arc "State
documents" or "official" or are marked.
"confidential". It would not be a good ground that, if they were
produced, the consequences might involve the department or the Government in
Parliamentary discussion or in public criticism or might necessitate the
attendance as witnesses or otherwise of officials who have pressing duties
elsewhere. Neither would it be good ground that production might tend to expose
a want of efficiency in the administration or tend to lay the department open
to claims for compensation. In a word, it is not enough, that the minister or
the department does not want to have the documents produced."
In Henry Greer
Robinson v. State of South Australia (AIR 1931 P.C. 254), Lord Blanesburgh,
while accepting the rule that State documents were frequently absolutely
privileged from production and that it was the supreme duty of the Court to
protect the privilege where it existed, also observed that it was now
rccognised that the privilege was a narrow one, most sparingly to be used. A
little later, the learned Judge commented that the foundation for the privilege
was that the information could not be disclosed without injury to the public
interest, and not that the documents were confidential or official, which alone
could not be a reason for their non-production. Sec: Asiatic Petroleum Co. Ltd.
v. Anglo-Persian Oil (1916, 1 K.B. 822) and Smith v. East India Company (1841,
11 L.J. Ch 71). Lord Bianesburgh in Robinsur.', case (supra) sounded a note of
warning to the Courts in the following terms:--
" they must see to it that the scope of the
admitted privilege is not, in such litigation extended. Particularly must it be
remembered in this connection that the fact that production of documents might
in the particular litigation prejudice the Crown's own case or assist that of
the other side is no such `plain overruling principle of public interest' as to
justify any claim of privilege. The zealous champion of Crown rights may
frequently be tempted to take the opposite view, particularly in cases where
the claim against the Crown seems to him to be harsh or unfair. But such an
opposite view is without justification. In truth the fact that the documents if
produced, might have any such effect upon the fortunes of the litigation is of
itself a compelling reason for their production--one only to be overborne by
the gravest considerations of State policy or security."
The principle
that the privilege is a narrow one to be sparingly used has been recognised in
Pakistani and Indian rulings.
4. The law
prevents evidence derived from unpublished official records relating to affairs
of State from being given without the permission of the head of the Department.
What do we mean by the word "unpublished"? The word
"publish" inter alia means to make public; to divulge; to announce;
to proclaim; to intimate to the public; to put forth and offer for sale books,
magazines or newspapers; to put into circulation; etc. Thus, documents which
have been disclosed or communicated to a party, or are such as are open for
inspection or information of office staff or public-at-large, or have been
printed and published and are freely available outside the office or agency in
whose custody they normally remain, or which require to be 'notified or
gazetted, or which by law a party is entitled to receive, would not fall in the
category of unpublished records. This list, however, is not exhaustive. To
fulfil the legal character, the ,documents must not only be unpublished i.e.
the contents of which have not been divulged or made public or have remained
under a blanket of secrecy or confidentiality, but are a part of the State's
record i.e. part of the official records of a Ministry, Division, Department,
agency, branch, organisation or limb of the Government or of a statutory body
or corporation or company set up or controlled by the Government.
5. The next
question is, who should claim the privilege? In
6. Still further, the question how the privilege should be claimed,
assumes importance. Should it be oral or in writing and, if the latter,
supported by certificate or affidavit? Articles 6 and 158 of the
Qanun-e-Shahadat are silent in this respect. However, both in England and in
this sub-continent, a practice has grown up that the same should be claimed
under the sanctity of the oath of the head of the department concerned, not as
a guard against falsity, but as a guarantee that the statement or opinion of
the head of the department is not one that has been expressed inadvisedly or
lightly or as a matter of routine, but is one which, after inspecting the
documents, has been put forward on substantive grounds of public policy or
public interest. See Robinson's case (supra). The affidavit is intended to
clearly show that the head of the department has himself seen and considered
the contents of each and every document in respect of which privilege is
claimed and that he has himself formed the view that on grounds of public
interest, they are not to be disclosed. See Bhaiya Sahib v. Ramnath Rampratab
(AIR 1938 Nag. 358;
7. ' The last
question that remains is, who is to determine the validity of the privilege raised
by the head of the Department. Through a long line of decisions in Scotland, it
was held that the Scottish Courts not only had the power to determine the
validity of an objection but an inherent right to disregard a Ministerial
objection taken on ground of public interest. See Glasgow Corporation v.
8. I would, therefore, hold that
where- a document is required to be produced in evidence, in respect of which
the Secretary or the head of the department concerned wishes to claim
privilege, the document should be brought in Court with the affidavit of the
head of the department concerned claiming privileges, which should be filed. If
the document does not relate to an affair of State but some other privilege or
statutory bar to its production is being urged, the document can be inspected
and other evidence taken to determine its admissibility. The Court is not
compelled to accept the claim. It has-the jurisdiction to assess its worth. If
the document relates to an affair of State, the Court, in the first instance
need not inspect it, but must examine the affidavit to see if the claim appears
to be well founded. If the document belongs to a class where secrecy is
required to be maintained as an essential feature of the proper and due
functioning of the department itself or the maintenance of the system, the
Court must give credence to the claim: If the document relates to an affair of
State where its disclosure would affect public interest, the Court has the right
to assess it to see if it is well founded. Whether the document belongs to the
"class" category or the "contents" category, if there is
some doubt as regards this matter, the Court can take other evidence, which
would include the examination of the head of the department in respect of
matters stated in his affidavit. The Court has the power and the duty to hold a
balance between the public interest, as claimed by the head of the department
to withhold the production of a document, and the public interest that must be
maintained in the proper and fair administration of justice; and the right to
determine which shall supervene. Where the Court desires to examine the
document to ensure that privilege is not being claimed frivolously or
inadvisedly or in bad faith or on incorrect premises or as a matter of routine
or for other unfair reasons, the Court has a right and a duty to do so-and more
specially in cases where the document relates to routine or unimportant matters
or where the Court considers the claim more technical than real.
9. The above
represents a fair legal evaluation of Articles 6 and 158 of the
Qanun-e-Shahadat (representing the old sections 123 and 162 of the repealed
Evidence Act) in respect of civil proceedings. The same is not intended to be authoritative,
but basically to explain the essential features of the expression "affairs
of State" and the various elements that go to form the ingredients of
Articles 6 and 158. '
10. In the
context of what I have stated above as regards the rule of privilege relating
to public interest, as embodied in Articles 6 and 158 of the Qanun-e-Shahadat,
one thing is clear that the Intelligence Bureau, being the Civil Wing of
Intelligence, like the Military Intelligence, is a highly secret and sensitive
agency, whose activities and internal working require to be kept at the highest
level of secrecy and confidentiality in the larger national interest. Its
information and documents, apart from any question of public interest, by
practice and procedure require to be maintained in the strictest confidence, as
an essential feature of the proper and efficient functioning of the Bureau
itself and of the maintenance of the system. All unpublished records of the
Intelligence Bureau therefore constitute a class of documents which by their
very nature require to be maintained in the strictest secrecy in the highest
interests of national security. Privilege against disclosure of sensitive
documents, when validly claimed, deserves to be highly respected, and Court: of
their own should not be too free in permitting such documents to be received,
without first referring to the department concerned to find out whether they
would be claiming privilege. However, as stated in para 8 above, the Court can,
in special cases, inspect the documents and to decide which of two competing
public interests should be allowed to supervene. Where privilege is waived, the
document can be received, for a ,department which has the right to claim
privilege also has the right to waive the same, if it finds that the national
security is not jeopardised or for any political or other reason it consciously
desires to lift the veil of secrecy. Id Sodhi Sukhdev Singh's case (supra),
Gajendragadkar, J., who wrote the leading judgment, remarked that the head of the
department had discretion under section 123 of the Evidence Act to permit the
production of a document even though its production could theoretically lead to
some kind of injury to public interest.
11. In the
background of what I have stated above, one would imagine that in a criminal
trial, if such an important and sensitive document covering national security
was required by an accused in his defence and was not allowed to be produced on
the ground of privilege, the fate of the accused would be doomed. A claim for
privilege in respect of such a document in a criminal trial can seriously work
against the accused, prejudice his defence and destroy his claim to innocence.
With constantly wavering and varying views emanating from Courts in respect of
national security and public interest, all differing with each other on the
nature of the document sought to be tendered, the agency involved, the facts of
the case, the national security endangered, the question whether such decisions
would not place different citizens involved in different cases on an unequal
footing and thus deprive them of equal protection of the law and thereby render
Article 6 of the Oanun-e-Shahadat, to the extent that it obstructs the defence
of an accused in a criminal trial, void, as violating an important fundamental
right allowed by the Constitution, deserves serious examination. Likewise,
whether such a claim for privilege would not obstruct or debar an accused from
fully and fairly meeting the case of the prosecution or asserting his defence
and thus vitiate the whole trial, on the ground of its suffering from an
inherent vice or being against the elementary principle of natural justice,
also would call for careful examination.
12. The rule
with regard to privilege in criminal proceedings is somewhat restricted and
limited, as opposed to civil proceedings where it has a larger play. Over the
years the English Courts have not permitted privilege to prevail in respect of
certain types of documents which are intended to be used in criminal trials,
such as (i) documents protected by legal professional privilege where such
documents have been used in preparation for, or in furtherance of or as a part
of any criminal design or fraud; (ii) information or documents protected by
privilege on grounds of public policy or legal professional privilege where
they are material for establishing the defence and innocence of an accused. In
respect of documents stated in category (i) the view of the Courts has been
that the prevention and detection of crime and fraud may require the disclosure
of such confidential information; and public policy then overrides all private
claims to privilege. In short, the view is that if the documents are relevant
to establish the commission of crime or fraud by the accused, and are not made
for legitimate purposes, such as for the preparation of the defence of the
accused, which the interests of justice may require to be kept confidential,
the . documents would not be privileged. See Williams v. Quebrada Railway (1895,
2 Ch. 751). To this test has been added another that there is a bona fide and
reasonable tenable charge of crime or fraud present. See Reg. v. Cox and
Railton,(1884, 14 Q.B.D. 153); Bullivant v. AttorneyGeneral for
13. In Webb's
case (supra), a sergeant had refused to give particulars of the house in which
he had secreted himself when keeping a watch over the appellant's licensed
premises, on the Superintendent's claim for privilege, which was allowed by the
trial Court. The Queen's Bench Division, on a special case stated for its
opinion, did not accept the privilege. Justice Hawkins observed that if the
rule of privilege were to be allowed to prevail, it would be almost allowing no
cross-examination at all to take place on behalf of an accused. In James
Clarke's case (supra), the Court of Criminal Appeal held that the accused, who
had been convicted for burglary, was entitled to see a report of himself given
by a police officer to his superior, with a view to cross-examining that
officer on alleged discrepancies between the contents of that document and his
sworn testimony. In Barton's case (supra), a Solicitor who was to appear to
give evidence against the accused, had also been summoned on behalf of the accused
in defence, which in fact was an indirect method of calling him to produce
documents for the benefit of the accused's case. The documents were not the
subject of the charge against the accused and were not those on which the Crown
relied, but such as were intended to help to further a point that was going to
be raised in defence of those charges. It was contended that justice would not
be done unless the documents were disclosed. The Solicitor took the objection
that the documents were privileged and he had a right to take the objection on
behalf of his client, even though the client had not had the opportunity to
take it. Rejecting the claim for privilege, Caulfield, J. stated:
I think the correct principle is this, and I
think that it must be restricted to these particular facts in a criminal trial,
and the principle I am going to enunciate is not supported by any authority
that has been cited to me; I am just working on what I conceive to be the rules
of natural justice. If there are
documents in the possession or control of a solicitor which, on production,
help to further the defence of an accused man, then in my judgment no privilege
attaches. I cannot conceive that our law would permit a solicitor or other
person to screen from a jury information which, if disclosed to the jury, would
perhaps enable a man either to establish his innocence or to resist an
allegation made by the Crown. I think that is the principle that should be
followed:'
14. In certain
cases even where the privilege has been upheld, observations showing that in
criminal trials the same should not be allowed, if it would prevent an innocent
man from proving his case, have often been made. In Marks v. Beyfus (supra),
Lord Esher M.R. observed:
"I do not say it is a rule which can never be departed from; if
upon the trial of a prisoner the Judge should be of opinion that the disclosure
of the name of the informant is necessary or right in order to show the
prisoner's innocence, then one public policy is in conflict with another public
policy, and that which says that an innocent man is not to be condemned when
his innocence can be proved is the policy that must prevail."
Somewhat
similar observations made in Rex v. Hardy (supra), Hennesy v: Wright (1888, 21
Q.B.D. 509) and Marks v. Beyfus (supra) were approved by the House of Lords in
Rogers v. Home Secretary (1973 A.C. 388 at 407 (H.L.) 407 where Lord Simon
of-Glaisdale in his speech mentioned:
"It is
true that the public interest which demands that the evidence be withheld has to'
be weighed against the public interest in the administration of justice that
Courts should have the fullest possible access to all relevant material."
and a little later stated:
"Sources
of police information are a judicially recognised class of evidence excluded on
the ground of public policy, unless their production is required to establish
innocence in a criminal trial:"
In 1956 and 1962 the Lord Chancellor, Viscount Kilmuir, made statement
in the House of Lords, declaring Government's policy towards privilege to serve
as guides to Ministers who had to swear affidavits. Lord Reid refers to these
statements in his speech in Conway v. Rimmer (supra at page 942) where he
mentions that in the said statements a number of cases were set out in which the
Crown privilege could not be claimed, one of the most important being:
"We also propose that' if medical documents or indeed other
documents, are relevant to the defence in criminal proceedings, Crown.
privilege should not be claimed:'
15. In the American
jurisdiction too privilege is not allowed to prevail where disclosure is found
to be essential for determination of the defence of the accused or is essential
to a fair determination of a cause, and where the Government insists on
claiming privilege, the Court can, if it so thinks fit, acquit the accused. See
Clinton E. Jencks v. United States of America (353 U.S. 657) and Roviaro v.
United States of America (353 U.S. 53).
16. These
cases show that the tendency of the Criminal Courts is to exclude the privilege
in criminal trials where it directly tends to thwart an accused from defending
himself in respect of the incriminating material that may be brought against
him, or, as held in Barton's case (supra), indirectly obstructs him from
presenting evidence as may be intended to further a point that is going to be
raised in defence of the charges. Unless the accused has a full opportunity to
defend himself, the trial can only be a farce and would suffer from an inherent
vice, that may vitiate the whole proceedings. Truth and justice are the twin
pillars on which the infrastructure of this mighty Islamic State of Pakistan
rests and justice in a criminal trial cannot be allowed to be sacrificed at the
altar of a concept which can only erode the fair determination of a cause,
instead of supporting it.
17. A question
arises whether Articles 6 and 158 of the Oanun-e-Shahadat do not confirm the
rule of privilege in respect of a civil and criminal proceedings absolutely,
making it impossible for either Court to lessen the severity of the rule or
exclude its application altogether in certain types of cases. Such an argument
was raised in the House of Lords by the. AttorneyGeneral in
18. 1 would
now turn to the reference filed by the President of Pakistan, the present
respondent, against the petitioner, Mohtarama Benazir Bhutto. In brief, the
reference alleges misapplication, misuse and/or diversion of large sums of
money from the Secret Service Fund by the petitioner, her party members and
officials working under her authority from April 1989 to June, 1990, during the
period that she was the Prime Minister of Pakistan, ostensibly with a view to
win over members of the National Assembly to stave off a `No Confidence
Resolution' that was moved against her in October, 1989, to win over members of
the N.-W.F.P. Provincial Assembly (presumably so as to prevent any such
resolution being moved there) and to win over members of the Azad Jammu and
Kashmir Assembly to ensure the election of a Prime Minister there of her
choice. The reference also refers to the Annual Budgets and Supplementary
Grants of the Secret Service Fund sanctioned for the years 1988-89 and 1989-90
as exhibiting disproportionately excess spending from April 1989 to June, 1990.
A list of certain amounts drawn, the persons by whom drawn, the dates when the
amounts were so drawn and summary particulars relating to the drawings, is also
given in the reference. The reference alleges that the disbursements were
against the objects for which the fund could be used and alleges that the rules
and the procedure laid down for the proper utilisation of the same were
flagrantly disregarded. The reference finally alleges that as a result of the
said transgrc scions, the petitioner is guilty of misconduct, within the
meaning of Article 4 of P.P.O. No.17 of 1977, and that she be dealt with in
accordance with law. '
19. In answer
to the reference, the reply of the petitioner contains a large number of legal,
constitutional and political objections, which need not be detailed here,
except some, namely, Preliminary Objection No.9, which relates to her not being
answerable to any Court in respect of the faithful performance of her duties as
Prime Minister, by virtue of Article 248 of the Constitution of Pakistan and
Article 10 of P.P.O. No.17 of 1977, Preliminary Objection No.1.2. which relates
to the power of disqualifying a member as being only available to the Speaker
of the National Assembly, by virtue of Article 63(2) of the Constitution, and
Preliminary Objection No.16, which relates to her being bound by her oath of
office as Prime Minister and therefore not being compellable by a Court to
divulge any secrets relating to the affair-, of State, by virtue of Article
91(3) read with the form of oath set out in the Third Schedule to the
Constitution. On merits the reply mentions that the funds were sanctioned for
highly sensitive national goal-, that they were disbursed directly by the
Finance Ministry to the agencies and departments concerned and that the
petitioner, as the Prime Minister, was duty bound not to reveal the details, as
that would amount to high treason. The reply finally denies all the allegations
levelled against her.
20. I now come
to the various applications made by the petitioner for production and discovery
of documents. At the time of the framing of the charge, the petitioner claimed
privilege in respect of information arising out of matters directly referred to
in the charge, under Article 10 of the P.P.O. No.17 of 1977 read with Article
248 of the Constitution. At that time the Government had decertified all the
documents which directly related to the items of misuse and/or diversion of
funds as stated in the charge and had also claimed an open trial; clearly
waiving privilege and all vestiges of secrecy and confidentiality. On
28-12-1991 the petitioner moved an application for inspection of the record as
detailed in that application. On 11-11-1991 the learned Special Judge ordered
that if from the examination, case was made out for the production and
inspection the petitioner could well avail of the opportunity at the proper
time. On
21. Now a
peculiar position arises. The learned Special Judge has by order, dated
9-7-1991, held the petitioner's claim for privilege pressed under Article 10 of
P.P.O. No.17 of 1977, read with Article 248 of the Pakistan Constitution and
the form of Oath of Office of Prime Minister, as matters intimately connected
with facts and which could only be disposed of after full evidence was
recorded, but with regard to the State's claim for privilege, by order, dated
28-1-1992, he accepted the same without inquiring into the principle governing
privilege in criminal trials. But even if, for a matter of argument, this be
treated as an omission, because the learned Special Judge was not properly
guided in the matter, the fact remains that the charge refers to Annual and
Supplementary Grants, the procedure for obtaining these, the duty of
maintaining accounts as per detailed instructions, the purpose of expenditure,
the maintenance of receipts giving details of the nature of the disbursement,
the wrongful misuse and/or diversion of the funds, etc. Due to the highly
sensitive nature of the matter, I would not like to summarise important matters
stated by the prosecution witnesses in their examination-inchief, but one thing
is clear, they have referred to past practices as indicating glaring
non-compliance of rules, instructions and procedure and the fact that the
petitioner requires inspection of the documents so that she can confront these
witnesses with these documents when they appear for their cross-examination,
which cross-examination has been reserved, to prove similar omissions and
non-compliance of rules, instructions and procedure as the standard form of
operation of the Intelligence Bureau, clearly shows that she has some case that
the documents are vitally necessary for her defence, which require examination.
22. This
brings me to the next question as to who is the head of the Intelligence
Bureau. Prior to March 1973 the Intelligence Bureau used to be an Attached
Department of the Cabinet Division under Schedule III of the Federal
Government's Rules of Business, 1962. In Match 1973 it was decided to transfer
the administrative and financial control of the Intelligence Bureau to the
Bureau itself. It was decided that the Director, Intelligence Bureau, would
deal independently with all matters pertaining to administrative sanctions,
budgetary provisions etc. and would correspond directly with all authorities of
the Federal and of Provincial Governments Departments and Agencies as may be
deemed necessary. This decision was communicated to all Ministries/Divisions
etc. vide Cabinet Division's memo, dated 3-3-1973. In June 1973 when the
existing Federal Government's Rules of Business were being framed under the
1973 Constitution, the subject of Federal Intelligence Bureau was allocated to
the Cabinet Division in Schedule II to the Rules of Business. Under rule 4(5)
of the Rules of Business, the business of Government other than the business
done in the Federal Secretariat or the Attached Departments has to be conducted
through such agencies and offices as the Prime Minister may determine from time
to time. The Intelligence Bureau not being an Attached Department or Division
of the Government, is an' Agency of the Federal Government, as laid down in
rule 4(5), and a "subordinate office" in terms of rule 2(1)(xx) of
the said Rules. Under the definition of the word "Secretary" as
contained in rule 2(xviii), he is the Principal Officer in charge of a Division
or a Ministry. Since the Intelligence Bureau is neither under a Division or a
Ministry, the Director of the said Bureau, like the head of any other
Government Agency ox Office, would be the head of the Bureau concerned. It need
not be forgotten that under rules 15(1)(g) read with item 1 of Schedule V-A of
the said Rules, the Prime Minister alone can appoint Joint Directors and above
of the Intelligence Bureau. In these circumstances, there can be no dispute
that the Director of the Intelligence Bureau would be the head of the said
Government Agency or Office. The fact that the Director is also nominated as ex
officio Secretary of the Bureau would not make him the Secretary of the said
Bureau, in the established sense, but would give the Director the power to make
and execute orders in the name of the President.
23. The
learned Special Judge in the case, in instance is bound by the provisions of
P.P.O. No.17 of 1977. Under Article 6(1) the Special Court Chas the powers of a
Civil Court trying a suit under the Code of Civil Procedure (V of 1908), inter
alia in respect of requiring the, discovery and production of documents and
requisitioning any public record or copy thereof from any Court or office.
Under Article 6(2) it has power to require any person, subject to any privilege
that may be claimed for him under law, to furnish such information as in the
opinion of the Special Court can be of assistance to it in carrying out its
inquiry under the Order. Under Article 6(3), the proceedings before a Special
Court are treated as judicial proceedings for the purposes of I the provisions
of Chapter XI of the Pakistan Penal Code. (XLV of 1860). Under Article 6(4)
notwithstanding anything contained in any other law for the time being in
force, a Special Court has power to conduct its proceedings and regulate its
procedure in all respects as it may deem fit, including – in particular--the
power to refuse to examine any witness or summon any document. Under Article
6(5), the proceedings before a Special Court are open to the public, unless
otherwise directed by the Special Court. The powers of the Special Court under
Articles 6(1) (b) & (e) and 6(2) of P.P.O. No.17 of 1977 have some
similarity with that exercised by a Court under Article 6 of the
Qanun-e-Shahadat. Article enables the Special Court to conduct its proceedings
and regulate its procedure in a manner so as to exclude the rigours or any
provision of any adjective law which it may find as stifling its
hands to do complete justice. The
inquiry under P.P.O. No.17 of 1977 is one pursued by the State and therefore
impliedly relates to a criminal wrong. Article 5 gives the impression that `in
case the respondent is found guilty' then he can be disqualified for a period
of seven years from being elected or chosen as a member of Parliament or a
Provincial Assembly. The penalty entails loss of civil status and the right to
hold a public office. All these matters cumulatively indicate that the inquiry
intended is of a criminal or quasicriminal nature. See in the matter of Khan
Iftikhar Hussain Khan of Mamdot PLD 1950 Lah. 12 at 20.
24. For the
foregoing reasons, I agree with the final order proposed by my learned brother
Shafiur Rahman, J. and would allow this appeal
M.BA./B-198/S Appeal
allowed.
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