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Criminal Revision Case No. 735 of 1954, decided on 30th August 1954, reported by Abdul Majid Asghar, Sessions Judge, Lahore, with his No. 850‑J, dated the 13th July 1954, under section 438, Criminal Procedure Code, against the order of M. H. Muniz‑, Additional Sessions Judge, Lahore, dated the 24th May 1954, affirming that of M. A. Nasir, Magistrate 1st Class, Lahore, dated the 10th April, 1954, allowing the in spection of the embezzlement file to the counsel for the accused.
Evidence Act (I of 1872),
S. 123‑Privilege‑Extent Court's duty to decide whether evidence required is of the des cription contemplated by section‑Statements made during police investigation of criminal case, whether privileged apart from S. 162 Cr. P. C.‑Criminal Procedure Code (V of 1898), S. 172.
The discretion given to the head of the department is clearly confined to granting or withholding permission to the giving of such evidence ; but he has not the power to deter mine the question whether the evidence is of the description in respect of which his permission is required. If the Government officer concerned has no right to determine the question, obviously the duty is cast upon the Court to decide it.
At first sight the word "any", immediately preceding the expression "affair of state", in section 123 seems to indicate that all affairs of state are included ; but the word may have been, and I am inclined to think that it has been, used only to indicate that all kinds or classes of affairs, e.g., commercial, political, economical and diplomatic, etc., were intended to be included, and not to indicate that every affair, regardless of its importance or consequence, comes within the purview of the rule.
Statements recorded in an embezzlement case by police during investigation were required to be examined and, if necessary, to be used for purpose of cross‑examination of maker of such statement who was appearing as a witness in a murder case unconnected with the aforesaid embezzlement case.
Held, the Legislature, which at the time of the passing of the Code of Criminal Procedure was aware of the provisions of the Evidence Act, did not consider such statements and the police diaries as relating to affairs of state within the meaning of section 123 of the Evidence Act. It cannot be said that the general provisions of section 123 of the Evidence Act override the special provisions of sections 162 and 172 of the Code of Criminal Procedure. Moreover, such protection of public interests as was considered necessary by the legislature in respect of these documents has been made in section 172 of the Code.
The expression "affairs of state" in section 123 covers only such affairs of state whose disclosure or divulgence would be likely to seriously injure or jeopardise some important interest of the state.
If in a given case it is impossible for it to see with reason able certainty that a document does not relate to affairs of State", the Court must refuse its production. In its anxiety to protect the interest of the individual it must not over‑look its greater duty to the State. Salus populi suprema lax est. If, on the other hand, it is possible for it, on the material and circumstances before it, to reach the conclusion that there is no reasonable likelihood or possibility of public interest being injured by the production of the evidence in question, it must overrule the objection. Since, however, there is always a possibility of error in human judgment, a duty is also cast upon the heads of the departments of the state to do their best, either by pledging their oath or otherwise, to satisfy the Court, to such extent as possible, of the bona fides of their objection ; and also to inspire confidence in Courts by their conduct that objection to production of evidence, the non -production of which may cause the gravest consequence to a citizen, can never be made by any Government Department unless it is necessary and unavoidable for the preservation of some vital public interest.
Further, that there was nothing whatever in the circum stances of the present case to indicate the slightest possibility of any injury to any appreciable interest of the State by the pro duction of the two statements in question.
Province of Punjab v. Fazal Ahmad P L D 1953 Lah. 308 and Muhammad Hayat v. Crown P L D 1951 F C 15 ref.
Khawaja Nazir Ahmad v. Emperor A I R 1944 Lah. 434 dissented from.
[English law referred to.]
C. M. Sharif, Assistant Advocate‑General, for Petitioner.
Jalal‑ud‑Din Qureshi, for Respondent.
AKHLAQUE HUSAIN, J.
‑One Abdul Ghani is being tried by the Sessions Judge of Lahore on a charge under section 302 P. P. C. for the murder of Miss Nasim Chaudhri, who is alleged by the prosecution to have married the accused some time before her death. One Dr. Muhammad Ali was examined in this case in the committing Magistrate's Court as P. W. 2. It transpired from his evidence that about a year before the alleged murder a case (No. 149 dated the 20th of April 1953) of embezzlement of cash and ornaments of the value of Rs. 1,800 was registered at the Naulakha Police Station against the said Dr. Muhammad Ali on the complaint of Dr. Mrs. A. R. Qureshi, and that during the investigation of that case statements of Dr. Muhammad Ali and the deceased Nasim were recorded by the investigating officer.
At the instance of the accused the police file of the case No. 149, dated the 20th of April 1953, was summoned in the Court of the committing Magistrate and the defence wanted to inspect the statement of Dr. Muhammad Ali and to use it to contradict its maker while he was in the witness‑bog‑espe cially with reference to his statement on the question of the existence or otherwise of the alleged relationship between the accused and the deceased Nasim. The Prosecuting Deputy Superintendent of Police took objection to this, taking his stand on the‑ provisions of the 123rd section of the Evidence Act. The learned Magistrate overruled this objection by his order dated the 10th of April 1954 against which the Crown filed a revision petition which was heard and rejected by the learned Additional Sessions Judge of Lahore on the 24th of May 1954. The Crown has filed the revision petition (No. 741 of 1954) against the said order of the learned Additional Sessions Judge. In the meanwhile the accused made a similar request to the committing Magistrate regarding the statement of the deceased Nasim contained in the police file of the embezzle ment case which was likewise allowed by the learned Magis trate by his order dated the 1st of June, 1954. Against this order the Crown went up in revision to the learned Sessions judge, who at the time of its hearing was already trying the murder case against the accused Abdul Ghani. The learned Sessions judge considered it proper that the matter should, in view of the previous decision by the learned Additional Sessions Judge, be decided by this Court, and has submitted the record for the disposal of the question which is the subject‑matter of Crimi nal Revision No. 735 of 1954.
The sole question canvassed before me on both sides of the Bar was whether the two statements can be produced at all in a Court of law. The learned Assistant Advocate-General, relying upon the provisions of section 123 of the Evidence Act, strenuously contended that once privilege in respect of a document from, of a part of, an unpublished official record is claimed by the Head of the Government Department concerned, the Court is bound to uphold it and cannot inquire into its validity or otherwise. It may be pointed out at the outset that though the word privilege' is commonly used to describe such a claim it is obviously inap propriate for the purpose. Strictly speaking the expression privilege' is applicable to the right of a party or litigant to withhold, or have withheld, certain facts from being proved in a Court. In England when the Crown is a party to a civil proceeding, the other part, has no right to discovery against the Crown, who may or may not grant it. This rule is founded upon the "prerogative" and not "privilege" of the Crown. In A. G. v. Nawacastle‑upon‑Tyne Corporation ((1897) 2 Q B 384) Rigby, L. J., observed :‑
" . . . . the law is that the Crown is entitled to full discovery and that the subject as against the Crown is not. That is a prerogative of the Crown . . . . .
"The withholding of documents on the ground that their publication would be contrary to the public interest", said Lord Simon in delivering his opinion in Duncan v. Cammell Laird & Co. Ltd., ((1942) A. C. 624) is not properly to 1 e regarded as a bread: of the law of privilege connected with discovery. "Crown privilege is not for this reason a happy expression. Privilege, in relation to discovery, is for the litigant and could be waived by him." It is interesting to note that according to the judg ment of the House of Lords in Duncan's case the Privy Council erred in deciding Robinson v. State of South Australia ((A. I. R. 1931 P. C. 254)), partly because they regarded the objection of a minister of the State of South Australia to the inspection of certain documents on the ground of public policy as a question of privilege. The word privilege' has not been used in section 123 of the Evi dence Act or in any other section of that Act. The only place in which it occurs is in the marginal note to section 128. That section refers to the right of a "party" to give or with hold his consent to the disclosure of any communications made by him to his attorney, pleader or vakil.
Before actually deciding the question involved in these two revisions it will be useful to clarify the rule of law on which the decision will rest. Section 123 of the Evidence Act runs as follows:‑
"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."
It will be noticed that the common right of the parties to lead any relevant or admissible evidence, and the obligation of the witnesses to give evidence, has been taken away by this section in so far as the kind of evidence described therein is concerned. Such evidence can be given only with the permission of the head of the department concerned, who may or may not, as a matter of law, accord it at his sweet will; but justice, prudence and public policy require that he should withhold the permission only in those cases where it is unavoidably necessary that rights and liberties of individual citizens should be sacrificed for the greater good of the entire community or, which is the same thing, the vital interests of the State. The points, however, to be noted are that legally the discretion of the head of the department concerned is absolute and a Court of Law cannot demand even the exercise of it. The party concerned has got to go to the official as a suppliant, either directly or through the Court, and it has no means of questioning an adverse or unsatisfactory decision. The Court on the other hand is by the mandatory provision of the law bound to prevent the giving of such evidence as is des cribed in the section, regardless of the fact whether an objec tion to it has been raised or not, or the privilege' claimed.
The question as to whose duty it is to determine whether a particular piece of evidence is of the kind contemplated by the section, does not, upon the language of the section itself, appear to present any difficulty. The discretion given to the head of the department is clearly confined to granting or withholding permission to the giving of such evidence; but he has not the power to determine the question whether the evidence is of the description in respect of which his permis sion is required. If the Government officer concerned has no right to determine the question, obviously the duty is cast upon the Court to decide it. This proposition is also borne out by a reference to the first paragraph of 162nd section of the Evidence Act.
"A witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwith standing any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided by the Court."
The question whether a certain piece of evidence is such as can be given in a Court of law is, when not a question regarding its admissibility, a question relating to its produc tion and as such must, according to tile mandatory provisions of section 162, be judged by the Court. This conclusion is in consonance with a recent ruling by two eminent Judges of this Court in Province of Punjab v. Fazal Ahmad (P L D 1953 Lah.308) in which Munir, C. J. (now the Chief Justice of Pakistan) laid down :‑
"It is true that ordinarily where the Court is not aware of the nature of the contents of a document and privilege for it is claimed on the ground that it refers to affairs of State, the Court will accept the word of the Head of the Depart ment and not order the production of the document, but where it is perfectly clear that the document cannot possibly refer to affairs of State, the Court has undoubted authority to order the production of the document."
It will be observed that the authority of the Court to decide whether a document is or is not covered by the provisions of 7section 123 has been clearly and unequivocally upheld in the passage in the abovesaid case and that the other observa tions therein only lay down general rules of prudence for guidance of Courts in deciding the question.
There are two other important matters to be considered in this connection: (1) What are " affairs of State " and (2) How and upon what material is that question to be decided Before considering these questions it will be useful to refer to the corresponding rule of evidence in the English Law. In Phipson on Evidence (9th Edition) page 196, the rule is thus stated :‑
"Witnesses may not be asked, and will not be allowed, to shake facts or to produce documents, the disclosure of which will be prejudicial to the public service. And this conclusion is not confined to official communications or documents, but extends to all others likely to prejudice the public interest‑ . . . . even relating to commercial matters."
Thus while in Pakistan and in India an objection can be taken under section 123 of the Evidence Act to the giving of only such evidence which is "derived from unpublished official record relating to any affairs of State", in England objection can be taken to any evidence, oral or documentary on the ground of public interest. Up to this stage the English rule is definitely wider in its reach than the one contained in section 123. As regards the further question, viz., the effect of the objection and the correct approach to be made to it by the Judge, it is stated in the 9th Edition of Phipson on Evidence, at page 197 :‑
"Where the head of the department, by person or proxy, objects, the Judge will not compel the production, nor decide upon the validity of the objection, unless it is a palpably futile one." (Hughes v. Vargas, Latter v. Goolden; Attorney‑General v. Nottingham, (supra) ; Beaston v. Stone (supra) ; Akin v. L. of N. E. Railway, (supra) ; Duncan v. Cammell Laird ((1942) A.C.624)).
The expression "unless it is a palpably futile" should have been omitted by the learned Editor from the above‑mentioned passage in view of the ruling of the House of Lords in Duncan v, Cammell Laird. Its non‑deletion is obviously due to oversight‑especially as Duncan's case has been noted in the passage quoted. The House of Lords have most clearly and unambiguously laid down in this case that the objection is "Conclusive". Obviously when the judge has to treat an objection as "conclusive" he ceases to possess the authority to examine its merits and he has to uphold it even if it is "palpably futile" or false.
A misapprehension may possibly arise from the following passage in the opinion expressed in Duncan's case:‑
"Although an objection validly taken to production on the ground that this would be injurious to the public interests is conclusive, it is important to remember that the deci sion ruling out such documents is the decision of the judge.
" In this connection, I do not think it is out of place to indicate the sort of grounds which would not afford to the minister adequate justification for objecting to production. It is not a 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 criti cism, or might necessitate the attendance as witnesses or otherwise of officials who have pressing duties elsewhere. Neither would it be a 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 compensa tion. In a word, it is not enough that the minister or the department does not want to have the documents produced. The minister, in deciding whether it is his duty to object, should bear these considerations in mind, for he ought not to take the responsibility of withholding production except in cases where the public interest would otherwise be damnified, e.g., where disclosure would be injurious to national defence, or to good diplomatic relations, or where the practice of keeping a class of documents secret is necessary for the proper functioning of the public service."
On a careful perusal of this passage it is quite clear that the proposition of law laid down is that whenever an objec tion is taken to the production of any evidence on the ground that it would be injurious to public interests the objection is conclusive and binding upon the Judge and that it would not he so if it is based upon any other ground, in which case the judge is equally bound to reject it. Other observations of the noble and learned Lord who framed the opinion do not contain any proposition of law and merely constitute an "appeal" by the judiciary to the execu tive to exercise their absolute discretion or power with restraint and justice. The fact remains that if a way word or irresponsible official wrongly or even falsely objects to the production of evidence on the ground of detriment to public interests, the judge cannot go behind it and is bound to uphold it. Thus after Duncan's case the law in England is that whenever objection is taken on the ground of injury to public interest, the Court has no say in the matter and has only to exclude the evidence. But for Courts bound by the provisions of the Evidence Act such a situation cannot arise. They have a clear duty and authority to consider and to decide whether the evidence to be produced is of the description mentioned in section 123. If it decides that it is not, the evidence will be brought on record, protests and objections from anybody on any ground notwithstanding. On the other hand, if it rules in the affirmative it has to exclude the evidence even though the permission to its production is wantonly withheld by the head of the depart ment. The interested party is thrown, entirely at the mercy or discretion of the head of the Government department concerned and the Court becomes powerless to help him. Looked at from this aspect the rule, as now propounded by the House of Lords, is more rigorous in England. There the executive, if it so desires, can keep out any evidence from production in Court; under the Evidence Act that absolute power is given only in respect of a specified class of evidence. Also in England in exercising the discretion it must be asserted that it is being exercised on grounds of public policy; while in Pakistan the question of exercise of the discretion by the executive need not come up before the Court at all; in fact it need not be exercised at all. Before the decision of the House of Lords in Duncan's case, the position in England as commonly accepted by the judges and lawyers in that country was the same as stated in the passage in Phipson quoted above, namely, that the judge had authority to examine the objection although in practice he would overrule it only when it appeared to him to be palpably futile or manifestly unfounded. The point to be noticed is that since the Evidence Act is founded upon the English Common Law of Evidence as it was understood in the time of Sir James Fitzjames Stephen, it may well be that the rule embodied in section 123 of the Evidence Act, although more technically and differently expressed, in effect is the same as the rule obtaining in England before Duncan v. Cammell Laird. If this assumption be legitimate, then the import of the expression "affairs of State" in section 123 must in its ultimate and practical effect, be the same as that of "injury to public interest" . . . . the Court in both cases having the authority to decide upon the validity of the objection. It is interesting to note that the heading of the paragraph in Phipson, in which the rule in question is discussed, is "Affairs of State".
Unfortunately the phrase "affairs of State" has not been defined of explained in the Evidence Act. The word "affair" means that which is done or is to be done ; matter ; concern ; business of any kind. The second paragraph of section 162 of the Evidence Act reads :‑
"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."
Here the word "matters" has been obviously used as a synonym of "affairs" and thus we know that according to the framer of the Evidence Act "affairs of State" mean the same thing as "matters of State". "Matter" means that which is, or is to be considered, dealt with, or carried out; concern; affair worth of account, thing of consequence; importance. The expressions "affair of State", and "matters of State" therefore, may mean anything from the most inconsequential thing which any officer of the State may, in any manner or at any stage, have to do or to consider, to things which are of particular consequence or importance to the State. The real difficulty, however, arises in determin ing whether the expression should, in the context of section 123 of the Evidence Act or other relevant provisions of that Act, be given a restricted or a wide meaning It cannot be gainsaid that in the absence of any other considera tions or indications to the contrary, the words must be understood in their widest sense. At first sight the word "any" immediately preceding the expression "affair of State", in section 123 seems to indicate that all affairs of State are included; but the word may have been, and I am inclined to think that it has been, used only to indicate that all kinds or classes of affairs, e.g., commercial, political, economical and diplomatic, etc., were intended to be included, and not to indicate that every affair, regardless of its importance or consequence, comes within the purview of the rule. A greater insight into the real meaning of the words may be gained by considering the question as to why was it necessary for the legislature to add the words "relating to any affairs of State". Everything in official record must necessarily relate, in greater or lesser degree, to some "affair of State" in the widest sense of that expression. Therefore, according to the Legislature an official record may relate to "affairs of State" and may also relate to other matters which cannot, according to the real intention of the legislature be termed as such; and in this view, the expression must be understood in some restricted sense. This conclusion is further supported by the considerations that the legislature cannot, in the absence of very clear words, or necessary and irresistible implication, be presumed to have intended to confer upon‑ the executive the unfettered power to ride rough‑shod over the rights and interest of citizens at its sweet will ; and that the Courts in this sub‑continent have in numerous cases, where the documents in question did relate to "affairs of State" in the widest connotation of that term, held that they did not relate to "affairs of State". See Harbans Sahai and others v. Emperor (15 1 C 77), Kaliappa Udayan v. Emperor (A I R 1937 Mad. 492), Ibrahim Sheriff Yazdani v. Secretary of State (A I R 1236 Nag. 25), Mohan Singh Bath and others v. Emperor (A I R 1940 Lah. 217) Ijjatali Talukdar and another v. Emperor (A I R 1943 Cal, 539) Punjab Province v Fazal Ahmad and another (P L D 1953 Lah. 308).
In Harbans Sahai's case privilege was claimed in respect of statements of witnesses recorded in the course of an inquiry by the police department into the conduct of a certain police officer, in Kaliappa Udayan's case it was claimed in respect of statements recorded by a Forest Officer in the course of his investigation into an alleged offence under the Madras Forests Act and the question in Ibrahim Sheriff Yazdani's case again related to certain papers in the file relating to a departmental inquiry by the police. In the last‑mentioned case it was observed that the privilege was a "narrow" one and that "there can be no room for doubt that it is for the Court in the first instance to satisfy itself, that the documents relate to any affair of State or that their produc tion will be detrimental to public interest". These observa tions are intelligible only on the basis that the expression "affairs of State" should be ascribed a restricted meaning, in the sense that they are of such importance to the State that their production will, or will be likely to, injure its interests. A Division Bench of this Court ruled in Mohan Singh's case that the diary of a foot constable who was shadowing the movements of a suspect could not possibly become an affair of the State within the accepted meaning of the word. Unfortunately it was not explained what was the accepted meaning. A similar view was taken in Ijjatali's case where the decision of the learned Judges rests on the great jealousy with which the Courts guard the rights and liberties of citizens and, in that connection, reliance was placed upon the following observations of Greer, L. J. in a case reported in (1936) 2 K B 226 :‑
"Privilege is governed by well settled principles, and the Courts have always jealously safeguarded their powers of compulsion against encroachments by claims of privilege."
Apart from this consideration, the only other reason given by the learned judges is based on the language of Order XI, rule 19 of the Code of Civil Procedure which runs as follows :‑
"Where on an application for an order for inspection privilege is claimed for any document, it shall be lawful for the Court to inspect the document for the purpose of deciding as to the validity of the claim of privilege".
The learned judges themselves have, however, observed that this rule was in the same terms as rule 14 (2) of Order XXXI, of the South Australian Rules of Court, which was considered by the Privy Council in Henry Greer Robinson v. State of South Australia (A I R 1931 P C 254). This case was dissented from by the House of Lords in Duncan's case on the ground that the Australian rule was inapplicable inasmuch as the objection did not relate to a question of "privilege". As I have already explained in an earlier part of this judgment, the objection under section 123 of the Evidence Act is not founded upon the word "privilege". Besides the provisions of section 162 of the Evidence Act, being special provisions governing documents relating to affairs of State, must override the general provisions contained in Order XI, rule 19 of the Code of Civil Procedure. It was., however,, opened to the learned judges to have carried their first argument to its logical conclusion by adding that in view of the solemn duty upon the Courts to guard the rights and privileges of citizens, they should assign as restricted a meaning to the words "affairs of State" in section 123, as possible. In Fazal Ahmad's case the document objected to was an application made to the Sub‑Registrar, alleging "that he was not present at the registration and that someone else had personated him" and the office notes on that application. It will be observed that in none of these cases, unless a narrow interpretation is placed upon the expression "affairs of State", the document in question can be said to be unrelated to affairs of State ; everything done by an official of the State in his official capacity is an affair of State in the wider sense of that word.
The case of Khwaja Nazir Ahmad v. Emperor (A I R 1944 Lah.434) the judgment in which was delivered by (Sir) Abdur Rahman J., supports the contention of the learned Assistant Advocate- General. I am, however, bound by the recent ruling of a Division Bench of this Court in Fazal Ahmad's case which has ruled to the contrary. The judgment in Khwaja Nazir Ahmad's case suffers from two serious defects. An earlier Division Bench ruling of this Court in Mohan Sangh's case, in which the objection by the head of the department was overruled, has not been mentioned by Abdur Rahman, J ; and, if I may say so with the greatest respect, the entire decision in that case is founded upon an obviously erroneous reading of the section. The learned Judge said :‑
"The words at the end of .this section 'who shall give or withhold such permission as he thinks fit' clearly indicate that the Head of the Department, who is in possession of the document, is the exclusive judge of the fact whether the unpublished records are protected from production on the ground of their being related to affairs of State,"
There is not the slightest indication to be found in the language of that section itself that it was intended to make the Head of the Department the judge of the fact whether the evidence in question relates to "affairs of State". This conclusion cannot be justified upon any possible meaning of the language used in the section.
Section 124 of the Evidence Act deals with communica tions made to public officers in official confidence. When ever these communications are made in writing they would obviously form an official record and would also, in the wider sense, relate to affairs of State. The fact that these communications have been dealt with separately in a section immediately following section 123 furnishes an indication that the expression "affairs of State" has been used in section 123 in an exclusive sense. Statements recorded by the Police during an investigation and the diary of the investigation prepared in accordance with section 172 of the Code of Criminal Procedure do, in one sense, relate to "affairs of State"; and it has in fact been held in some cases that they ate covered by the provisions of section 123 of the Evidence Act. It would be interesting to note that in the second proviso to subsection (1) of section 172, the question whether it would be "inexpedient in the public interest" to supply the accused with a copy of any portion of the statement, is left to the discretion of the Court who is authorised to "exclude such part from the copy of the statement, furnished to the accused". 'Similarly by section 172 of the Code of Criminal Procedure the Court has a discretion to look into the diaries; and their contents may be used under certain circumstances for certain purposes. It is thus clear that the legislature, which at the time of the passing of the Code of Criminal Procedure was aware of the provision of the Evidence Act, did not consider such statements and the police diaries as relating to affairs of State within the meaning of section 123 of the Evidence Act, It cannot be said that the general provisions of section 1.23 of, the Evidence Act override the special provisions of sections 162 and 172 of the Code of Criminal Procedure. Moreover, such protection of public interests as was considered necessary by the legislature in respect of these documents has been mad:: in section 172 of the Code.
The cumulative effect of the reasons mentioned in the foregoing part of this judgment lead me to the conclusion that the expression "affairs of State" in section 123 covers only such affairs of State whose disclosure or divulgence would be likely to seriously injure or jeopardise some important interest of the State.
The next question which falls to be considered is how is a Court to decide whether the production of a document is or is not likely to cause injury to public interest=especial ly when it is debarred from looking into the document itself The non‑accessibility of the document may make the task of the Court difficult, but it cannot, at any rate in every case, make it impossible. And if in a given case it is impossible for it to see with reasonable certainty that a document does not relate to "affairs of State", the Court must refuse its production. In its anxiety to protect the interest of the individual it must not overlook its greater duty to the State. Salus populi suprema lax est. If, on the other hand, it is possible for it, on the material and circumstances before it, to reach the conclusion that there is no reasonable likelihood or possibility of public interest, being injured by the production of the evidence in question, it must overrule the objection. Since, however, there is always a possibility of error in human judgment, a duty is also cast upon the heads of the departments of the state to do their best, either by pledging their oath or otherwise, to satisfy the Court to such extent as possible, of the bona fides of their objection; and also to inspire confidence in Courts by their conduct that objection to production of evidence, the non production of which may cause the gravest consequences to a citizen, can never be made by any Government Depart ment unless it is necessary and unavoidable for the preser vation of some vital public interest. In conclusion I may point out that in a criminal case, and more so in a Sessions trial, a Court would require a comparatively greater satisfaction regarding the validity of the objection to the production of evidence than in a civil proceedings. In Duncan's case Lord Simons observed :‑
"The judgment of the House in the present case is limited to civil cases and the practice as applied in criminal trials where an individual's life or liability may be at stake, is not necessarily the same."
There is nothing whatever in the circumstances of the present case to indicate the slighest possibility of any injury to any appreciable interest of the State by the production of the two statements in question. The stake in this case is nothing less than the very life of the accused and, in the circumstances of this case, his right to produce all the evidence in his favour before the Court cannot be set aside. The learned Sessions judge, however, Will, before making the two statements available to the defence, satisfy himself that their production will not jeopardise any vital interest of the Sate; and if he is not so satisfied he will exclude the statements, in part or in whole, as may be necessary. I overrule the contention of the learned Assistant Advocate General that these statements are also covered by section 124 on the short ground that it was never alleged that the public interest would suffer by the disclosure of these two statements. Indeed the Federal Court have in Muhammad Hayat v. Crown (PLD1951FC15) gone to the extent of declaring :‑ ‑
" If a public officer claims privilege without due care and caution, the Court is not relieved of the duty of determining whether section 124 is not being made a device for keeping back from the Court information which the Court is entitled to obtain."
Nor is there anything to indicate that the statements constitute communications made in official confidence. I, therefore, uphold the orders of the learned Additional Sessions Judge of Lahore and the learned committing Magistrate in so far as they relate to the production of the statements of Dr. Muhammad Ali and the deceased Nasim. I wish to make it clear that the question of the admissibility of these two statements was not argued before me and it would be decided by the learned Sessions Judge.
A. H. Petition dismissed.
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