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Criminal Appeal No. 67 of. 1966, decided on 30th January 1967,

(On appeal from the judgment and order of the High Court West. Pakistan, Karachi Bench Karachi, dated the 7th April 1965, in Criminal Revision No. 151 of 1965/Stay Miscellaneous application No. 118 of 1965).

Official Secrets Act (XIX of 1923), S. 14‑(Trial in camera) . Megistrate ordering trial to be held in camera must exercise discretion properly and judicially"‑ Order cannot be made as matter of course simply because "a Public Prosecutor asks for "Careful and roper" scrutiny of grounds of application Necessary Order set aside where secret official Memorandum divulged by accused had already been published by a newspaper].

The discretion vested in a Magistrate to order that the trial of a case under the Official Secrets Act, 1923, be held in camera, must be exercised properly and judicially. A mere desire on the part of the Public Prosecutor will not been out to exclude public hearing and to justify an order for hearing in camera. It must be shown that the paramount object was safety of the State'. Such an order cannot be made as a matter of course simply because a Public Prosecutor asks for it.

In understanding and applying section :4, Official Secrets Act, 1923, two main features thereof have to be kept in mind. The initiative is that of the public prosecutor but the Magistrate has to determine the matter judicially. It, therefore, follows that the Magistrate in granting the prayer of the Public Prosecutor must exercise a judicial discretion. This would necessarily mean that he has to satisfy himself upon the materials. before him that for safety of the State the trial should be held in camera and that it was not an attempt to interfere with. the normal course of justice for illegitimate reasons or purposes. In other wards. he must not pass an order without a careful and proper scrutiny of the grounds on which the application is made.

Where the secret official Memorandum divulged by the accused to a certain person had, before the trial, been published .in a newspaper:

Held; that no question of secrecy arose as far as the particular Memorandum was concerned. The order directing that the trial be held in camera was, therefore, set aside.

It was, however, observed that if during the trial the Magistrate was satisfied that some evidence, on which the pro secution wanted to rely, was of such character that it would involve disclosure of matters which might be fraud. It with grave consequences to the State, he might then direct that the same might be taken in camera.

Rashid Murtaza Qureshi, Advocate Supreme Court instructed by Siddiq & Co. Attorneys for Appellants.

Raja Said Akbar, Advocate‑General West Pakistan (Adam Riaz Hussain Advocate

Supreme Court with him) instructed by Ijaz AU Attorney for the State.

Date of hearing : 30th January 1967.

FAZLE‑AKBAR, J.=

This appeal, by special leave, arises out of a judgment and order of a learned Single Judge of the High Court of West Pakistan, refusing to interfere, in revision, with an order passed by a ,Sub‑Divisional Magistrate, Harbour, Karachi, under section 14 of the Official Secrets Act, 1923.

These four appellants are being prosecuted in the Court of the said Magistrate under section 5 (1) and 5 (2) of the official Secrets Act. The prosecution case is that the appellant' No. 2, Masood‑ al‑Masqatt, who worked in .the Establishment Division of

President's Secretariat at Karachi, communicated a secret directive and a questionnaire issued by the Ministry of Home and Kashmir Affairs; Government of Pakistan, for official use only to the appellant No. 1, Ghulam Muhammad, Amir Jama'at‑e lslami, Karachi. and the latter passed the said information to appellant No. 4, Mian Tufail Muhammad, the General Secretary of Jama'at‑e‑Islarrn, Pakistan who divulged the said secret direc tive while giving a press statement to the "Pakistan Times", Lahore. Appellant No. 3, Muhammad Ishaq Siddiqui, signed the cyclostyled press statement of appellant No. 4.

The Assistant Public Prosecutor filed an application under section 14 of the Official Secrets, Act, praying that all proceedings in the case be held in camera. The ground urged in the said petition was:‑

"that since it would be prejudicial to the interest of the State to allow the public to watch the proceedings of this case they (the proceedings) tray be held in camera."

The Magistrate, while ordering that the trial be held in camera, expressed himself in these terms:

"The learner prosecutor intends to lead most secret evidence both oral and documentary, which if not excluded from the public, would be prejudicial to the safety of State. In view of the position and in the interest of the State, I grant the application."

Against the above order, the accused filed a revision in the High Court. A learned. Single Judge, who heard the petition, while upholding the order, observed:

"Section 14 of the Official Secrets Act authorises the Magistrate to pass an order of the type he has passed if he comes to be of the view that the publication of the evidence that would be led before him in support of the complaint would be prejudicial to the safety of the State. The Magistrate has a discretion vested in him under section 14 of the Act to pass an order of this type He has exercised that discretion and has passed a detailed order covering about three pages."

The learned Single Judge, however, failed to consider whether the discretion vested in the Magistrate had been exercised properly and judicially. A mere desire on the part of the Public Prosecutor will not be enough to exclude public hearing and to justify an order for hearing it, camera It must be shown that the para mount object was safety of the State'. The learned Single Judge seems to think that such an order can be made as a matter of course simply because a Public Prosecutor asks for it.

Section 14 of the Official Secrets Act, 1923, is in these terms:

"In addition and without prejudice to any powers which a court tray possess to order the exclusion of the public from proceedings if , ,n the course of proceedings before a Court against any person for an offence under this Act or the proceedings or. appeal, or in the course of the trial of a person under this ,pct application is made by the prosecution, on the publication of any evidence to be given or of any statement to be made in the course of the proceedings would be prejudicial to the safety of the Scale, that all or any portion of the public shall be excluded during any part of the hearing, the Court may make an order to that effect, but the passing of sentence shall in any case take place in public."

In understanding and applying this section, two main features thereof have to de kept in mind. The initiative is that of the Public Prosecutor but the Magistrate has to determine the matter judicially. It, therefore, follows that the Magistrate in granting the prayer of the Public Prosecutor must exercise a judicial discretion. This would necessarily mean that ‑he has to satisfy himself upon the materials before him that for safety of the State the trial should b.‑ held in camera and that it was not an attempt to interfere with the normal course of justice for illegiti mate reasons or purposes. In other words, he must not pass an order without a careful and proper scrutiny of the grounds on l which the application is made.

In the present case, the allegation relates to the disclosure of a certain secret directive contained in Memorandum No. 6/8/63‑Pol (1) dated 12‑11‑63 issued by the Ministry of Home and Kashmir Affairs (Home Affairs Division), Government of Pakistan, and the same has already been published in the "Pakistan Times". Hence, no question of secrecy arises so far as this document is concerned. The main question in the trial would be, if the accused were responsible for divulging the secret directive and the questionnaire contained in the said Memo randum. In our opinion, the facts as disclosed fall far short of what was adequate to justify the hearing of the case in camera.

The learned Advocate‑General has failed to satisfy as that for formation of a just decision in the case it would be necessary to enter upon other matters disclosure of which will endanger the safety of the State. In our opinion, no valid reason has been given for hearing the case in camera.

If, however, during the trial the Magistrate is satisfied that some evidence, on which the .prosecution wants to rely, is of such a character that it would involve disclosure of matters which may be fraught with grave consequences to the State, he may then direct that the same may be taken in camera.

For the reasons stated above, we allow the appeal and set aside the order of the Magistrate.

A. A. Appeal allowed.

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