P LID 1992 Supreme Court 492

 
Present: Shafnir Rahman, Saad Saood Jan,
Abdul Qade& Chaudliry Ajmal Mian and Rustam S. Sidhwa, JJ
 
MO HTARMA BENAZIR BHUT70 --- Appellant
 
versus
 
THE PRESIDENT OF PAKISTAN through the
Secretary to the President---Respondent
 
Civil Appeal No:59 of 1992, decided on 24th March, 1992.
 
(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 Pakistan (1973), Art.248---Qanun-eShahadat (10 of 1984), Arts.
6 & 158---Reference---Misconduct---Defence--Evidence as to affairs of State---Claim of immunity---
Defence need not be necessarily pleaded or argued---Court has to be alive to the interplay of Arts.2(a)
& 10 of the Parliament and Provincial Assemblies (Disqualification for Membership) Order, 1977 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 . the Order---Court thus could not without examining the documents in the light of
the requirements of the trial dispose of the question of privilege..
 
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 Pakistan (1973)--
 
----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 England, Fourth Edition (Vol. 13), Paragraph 89 ref.
 
(c) Constitution of Pakistan (1973)---
 
----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 Pakistan (1973)---
 
----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
Special Court and directed the Special Court to consider the question of privilege in the light of facts
detailed in the judgment of the Supreme Court.
 
Per Ajmal Mian, J., Agreeing with Shaflur Rahman, J
 
(e) Constitution of Pakistan (1973)---
 
----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. Union of India AIR 1988 SC 782 ref.
 
(g) Qanun-e-Shahadat (10 of 1984)---
 
----Art.6---Constitution of Pakistan (1973), Art.248---Expression "affairs of State"---Meaning stated
exhaustively.
 
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 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.
 
Duncan v. Cammell Laird & Co. Ltd. 1942 A.C. 624; Begum Sardar Muhammad Hayat Tamman v.
Government of West Pakistan PLD 1969 Lah. 985 ref.
 
(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 Pakistan (1973), Art.248--Word "unpublished"---Connotation.
 
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 Pakistan (1973), Art.248---Evidence as to the affairs of the State---
Production of document---Who can claim privilege.
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
India, the affidavit of the Minister concerned is normally expected in support of the privilege. The
political head of the department would be the proper person to consider the question of privilege when
the protection of the rights of the citiaxns as against the State arc involved. However, the affidavit of
the Secretary of the Department concerned is also accepted. In view of Article 248 of the Constitution
of Pakistan (1973), which provides that the Prime Minister, the Chief Ministers and the Ministers of the
Federal and Provincial Governments are not answerable to any, Court for the exercise of powers and
performance of functions of their respective offices or for any acts done or purporting to be done in the
exercise of those powers and performance of those functions, the Court cannot compel any of them to
furnish an affidavit. It is also 'difficult to assume that they would waive their constitutional privilege
and place themselves vulnerable before Courts, when the Secretaries, as heads of the departments
concerned, could very well do so. Of course, if they should desire to waive their constitutional right,
they are welcome, in which case they may render themselves subject to examination by the Court.
Practicafly, therefore, for all purposes, the Secretary of the Department concerned, or the next
appropriate officer included in the definition of the word "Secretary" as defined in the Rules of
Business of the Government concerned, or the next appropriate person under the said Rules of Business
who can effectively be treated as incharge of the department, would he the person who can properly be
treated as the head of the department entitled to claim privilege. In the event of any
 
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 Pakistan (1973), Art.248---Production of document--=Privilege how
to be claimed.
 
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 South Australia AIR 1931 PC 254; Bhaiya
Sahib v. Ramnath Rampratab AIR 1938 Nag. 358; Duncan v. Cammell Laird & Co. Ltd
1942 AC 624; Ijjatali Talukdar v. Emperor AIR 1943 Cal. 539; Governor
General-in-Council v. Haji Pir Muhammad AIR 1950 EP 228; State of Punjab v. Sodhi
Sukhdev Singh AIR 1961 SC 493; Amar Chand Butail v. Union of India AIR 1964 SC
1658; Begum Sardar Muhammad Hayat Tamman v. Government of West Pakistan PLD
1969 Lah. 985 and State of Uttar Pradesh v. Raj Narain AIR 1975 SC 865 ref.
 
(1) Qanun-e-Shahadat (10 of 1984)---
 
----Arts. 6 & 158- --Constitution of Pakistan (1973), Art.248-- -Production of
documents-- -Claim of privilege-- -Who is to determine the validity of the privilege
raised by the head of department ---Principles stated.
 
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 Cal. 539; Khawaja Nazir Ahmad v.
Emperor AIR 1944 Lah. 434; In re: Mantubhai Mchta AIR 1945 Bom. 122; Governor
General-in-Council v. Haji Pir Muhammad AIR 1950 EP 228 and State of Punjab v.
Sodhi Sukhdev Singh AIR 1961 SC 493 ref.
 
(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 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
the provisions of Chapter XI of the Pakistan Penal Code (XLV of 1860). Under Article
6(4) of the Order, 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) (bl & (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 Oanun-e-
Shahadat. Article 6(4) of the Order enables the Special Court to conduct its proceedings
 and regulate its procedure in a manner so as to exclude the rigours of any provision of
any adjective law which it may find as stifling its hands to do complete justice. The
inquiry under P-P.O. Nn-17 of 1977 is one pursued by the State and therefore impliedly
relates to a criminal wrong. Article 5 of the Order 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 quasi-criminal nature.
 
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 Pakistan; M.B. Zaman, Senior Advocate
instructed by Ch. Fazle Hussain, Advocate-on-Record for Respondent.
 
Dates of hearing: 18th and 24th March, 1992.
 
JUDGMENT
 
SHAFIUR RAHMAN, J.---Hereunder is the detailed judgment containing therein reasons
for our short order passed on 24-3-1992.
 
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 1-10-1990 by Secretary to the President of Pakistan.
The entire subject-matter of the Reference concerned the secret service fund and its
utilisation and particulars of the disbursement etc. were shown without any reservation,
privilege or qualification. The concluding para (paragraph 5 of the Reference), however,
contained the following caution:--
 
 "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 Special Court, a charge was framed on 13-5-1991
and the replies of the appellant elicited more in the form of written application submitted
the same day. In respect of the privileged material furnished alongwith the Reference
export facto written approval of the Prime Minister was obtained on 2-10-1990 on the
following note submitted by the Minister without portfolio:
 
"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 16-12-1991, an application was filed on behalf of the
appellant -under Article 6(1)(b) of the Order claiming discovery and production of the
record. The application was as hereunder:---
 
"(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 6-8-1990
uptodate has also become relevant for the purpose of defence. It is submitted that more
than Rs.20 crores have been spent during this period of one year.
 
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 16-12-1991
was preceded by two other such applications, one dated 28-10-1991 and the other dated
18-11-1991. While disposing of the first application, dated 28-10-1991 (C.M. 22/1991)
by order, dated 12-11-1991, the Special Court passed the following operative order:-
 
"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 18-11-1991) was disposed of with the following operative
order, dated 19-11-1991:--
 
"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 28-1-1992 which was expressed to be in continuation
of and incorporating the orders passed on 12-11-1991 and 19-11-1991 on the subject.
 
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 Special Court to see the record once it was
found established that it related to the affairs of the State and was unpublished record.
 
?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 Special Court is that it has
been lodged by the State itself. The core of the controversy, the subject-matter of trial,
the details of the events to be examined and scrutinized, all relate to unpublished
material relating to affairs of the State, highly sensitive and secret in nature and of a
more recent past. The disclosure of it has been made by the State itself. The Prime
Minister as Minister Incharge was pleased to approve the declassification of the
documents., submitted in support of the Reference. It followed from such submission
and exposure that Court during the course of the trial was not to be denied access to any
document for determining its relevancy, value and admissibility in the matter of trial.
 
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
England -- of the Bank, South Sea House, and the East India House -- are liable to be
called for, when justice shall require copies of the records and proceedings, from the
highest Court of judicature down to the Court of pie-powder, and continually given in
evidence. When it is necessary they should be produced, the Court will take care they are
not made an improper use of."
 
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 Special Court could not without
examining the documents in the light of the requirements of the trial dispose of the
question of privilege.
 
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 Pakistan is different because of the constitutional provision
contained in Article 248 of the 1973 Constitution, Articles 116 and 117 of the 1972
Constitution and in the earlier constitutional instruments. These .provisions 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.
 
 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 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. See
Duncan's race (supra). Beatson's case (supra) and Robinson's case (supra). Article 6 of
the 0anun-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
Ministers 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 India,
the affidavit of the Minister concerned is normally expected in support of the privilege.
See 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. This follows the view stated by Kapur, J., in Haji Pir
Muhammad's case that the political head of the department would be the proper person
to consider the question of privilege when the protection of the rights of the citizens as
against the State are involved. However, the affidavit of the Secretary of the Department
concerned is also accepted. In view of Article 248 of the Constitution of Pakistan (1973),
which provides that the Prime Minister, the Chief Ministers and the Ministers of the
Federal and Provincial Governments are not answerable to any Court for the exercise of
powers and performance of functions of their respective offices or for any acts done or
purporting to be done in the exercise of those powers and performance of those
functions, the Court cannot compel any of them to furnish an affidavit. It is also difficult
to assume that they would waive their constitutional privilege and place themselves
vulnerable before Courts, when the Secretaries, as heads of the departments concerned,
could very well do so. Of course, if they should desire to waive their constitutional right,
they are welcome, in which case they may render themselves subject to examination by
the Court. Practically, therefore, for all purposes, the Secretary of the Department
concerned, or the next appropriate officer included in the definition of the word
"Secretary" as defined in the Rules of Business of the Government concerned, or the
next appropriate person under the said Rules of Business who can effectively be treated
as incharge of the department, would be the person who can properly be treated as the
head of the department entitled to claim privilege. In the event of any difficulty in the
said respect, reference to the Rules of Business of the Federal or the Provincial
Government concerned would clear the matter. As to who is the head of the Department
in the instant case, I will deal with this matter a little later.
 
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; Duncan's case (supra), Ijjatali Talukdar v. Emperor . AIR 1943
Cal. 539; Haji Pir Muhammad's case (supra), State of Punjab v. Sodhi Sukhdev Singh
AIR 1961 SC 493; Amar Chand Butail's case (supra); Begum Sardar Muhammad Hayat
Khan Tamman's case (supra); and Raj Narain's case (supra). 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. See Article 158 of the Qanun-e-Shahadat and Haji Pir
Muhammad's case (supra) and Sodhi Sukhdev Singh's case (supra).
 
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. Central Land Board (1956 S.C. H.L. 1).
Through a long line of decisions in England, it ws fairly settled that though it was for the
Court to determine the validity of an objection to the production of a document, but if an
objection about privilege was validly taken, the Judge had to accept the Minister's
decision to exclude the evidence. See Duncan's case (supra) and Robinson's case (supra).
However, in Conway v. Rimmer (1968 A.C. 910 H.L.), the House of Lords, as is
apparent from the Head Note, held that where there was a 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 documents before ordering
the production. Under Article 158 of the Oanun-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. Through a long line of decisions in this sub-continent, it was fairly
settled that 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. See 'Mohan Singh v. Emperor AIR 1940 Lah. 217, Ijjatali's case
(supra), Khawaja Nazir Ahmad v. Emperor AIR 1944 Lah. 434, in re: Mantubhai Mehta
(AIR 1945 Bom. 122), Haji Pir Muhammad's case (supra) and Sodhi Sukhdev. Singh's
case (supra). But if it found that it did not relate to any matter of State, it could hold that
the privilege did not apply. See Haji Pir Muhammad's case (supra), Sodhi Sukhdev
Singh's case (supra) and Begum Sardar Muhammad Hayat Khan Tamman's case (supra).
However, the Supreme Court of India in Amar Chand Butail's case (supra) and Raj
Narain's case (supra) and this Court in Government of West Pakistan v. Begum Agha
Abdul Karim.Shorish Kashmiri PLD 1969 SC 14 at 35 later held that section 162 of the
Evidence Act gave to the Court abundant powers 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. A little later the
Supreme Court of India in S.P. Gupta v. President of India AIR 1982 SC 149 also
overruled its earlier view end held that even if the document was one relating to an affair
of State and belonged to the "class" category, the Court could itself look into the matter
and decide whether privilege should be upheld; the duty of weighing and deciding which
of two competing public interests should supervene being treated as the solemn duty of
the Court.
 
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
Victoria (1901, A.C. 196. (H.L.); O'RourKe v. Darbishire (1920 A.C. 581 (H.L.) and
Butler v. Board of Trade (1971 Ch. 680). 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. See
Webb v. Catchclove (1886, 3 T.L.R. 159, Rex v. James Clarke (1930, 22 CrApp. Rep.
 58), Rex v. Barton (1972, 2 All. E.R. 1192), Rex v. Hardy (24 State Tr.199) and Marks
v. Beyfus (1890, 25 Q.B.D. 494).
 
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 Conway v. Rimmer (supra), drawing strength
from section 28 of the Crown Proceedings Act, 1947. Prior to this Act, the Crown was
immune from making discovery of or producing documents for inspection. By section 28
ibid, the said immunity was lifted in respect of civil proceedings, without prejudide,
however, to any rule of law which authorised or required the withholding of any
document or the refusal to answer any question on the ground that the disclosure of the
document or the answering of the question would be mjunous to the public interest. Lord
Hodson in his speech clearly held that he did not think that the language of this section
limited "the power of the Courts to make declarations as to the law or in any way
crystalising the law as contained in a judicial system. Following this view, I do not think
that Articles 6 and 158 of the Oanun-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 maintain strict secrecy.
 
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 18-11-
1991 Col. Ikramullah P.W.4, the Deputy Director, Intelligence Bureau, deposed inter alia
to various matters including drawings from the Secret Service Fund aggregating
Rs.7,73,82,114 from 14-8-1977 to 1-12-1988. On the same day i.e. 18-11-1991 the
petitioner moved an application for discovery of record relating to the period 1947 to
1988. On 19-11-1991 the learned Special Judge ordered inspection of record referred to
in sub-para (i), subject to the claim of privilege that may be raised. After some time, the
petitioner again pressed for inspection so as to be ready for cross-examining the
prosecution witnesses: On 9-12-1991 the Referring Authority claimed privilege, through
affidavit of the Director of the Intelligence Bureau. The petitioner through her reply
dated 16-12-1991 objected to the claim. The learned Special Judge allowed the claim for
privilege on 28-1-1992.
 
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.