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Criminal Revision No. 366 of 1960, decided on 17th October 1960.

, Ss. 121 to 131‑Matters pro tected from disclosure‑Public Officer sole judge of public interest.

On grounds of, public policy certain matters are protected from disclosure and witnesses cannot be compelled or permitted to answer questions relating to such matter. These matters on which witnesses are privileged from interrogation are stated in sections 121 to 131 of the Evidence Act, 1872.

Although the Court shall have to decide whether the com munication has been made in official confidence, it is the public officer concerned who has been made the sole judge whether the public interest would suffer by the disclosure.

, S. 145‑Document used by cross examiner not necessarily to come from proper lawful custody.

There is nothing in section 145 of the Evidence Act, 1872 or any other provision of law to show that a document which is used by the cross‑examiner under section 145 must come from proper lawful custody or from the custody of the person to whom it was addressed. This of course does not mean that if the document is otherwise privileged or in respect of which privilege could be claimed, then also the cross‑examiner is entitled to use the same although it may have been stolen from proper custody. In such a case, the proper course for a Court would be to give a decision whether the document in question is a privileged document or in respect of which privilege could be claimed. But in the present case this question did not arise because the only 'person who could have claimed privilege was the Doctor who never claimed privilege when the document was put to him.

The question whether the document had been brought on the record from proper or legitimate custody was immaterial and the petitioner should have been allowed to cross‑examine the Witness with respect to the contents of the document.

Emperor v. Raja Ram and another A I R 1934 Nag. 35 rel.

Rab Nawaz and Feroze Din for Petitioner.

M. B. Zaman, A. A.‑G. for the State.

Date of hearing : 17th October 1960.

This revision petition is directed against the order of Mr. S. A. Rahman, Special Judge, Lahore, dated the 5th of May 1960, whereby he disallowed the petitioner to cross‑examine Rehmat Ullah (P. W. 5) with reference to the document marked as Exh. P. W. 2/D‑A, on the ground that it had not been brought on the record through lawful custody'.

2. The relevant facts giving rise to this revision petition are as follows. The petitioner is being tried under section 161, P. P. E. and section 5 (2) of the Prevention of Corruption Act, 1947, in the Court of Mr. S. A. Rahman, Special Judge, Lahore. This case had been originally tried by Mian Muzaffar‑ud‑Din. During the course of those proceedings the document Exh. P. W. 2/DA was produced on the 1st of October 1958, when Doctor Abdul Qayyum Malik, District Health Officer, Montgomery, was being examined as a witness. This document purports to have been addressed by Rahmat Ullah (P. W. 5) to the District Health Officer, Lyallpur, Doctor Abdul Qayyum ‑‑Malik stated that this application had been received in his office on the 7th of May 1957 and he had initialed the application. When Ramat Ullah appeared before Mian Muzaffar‑ud‑Din, he was cross‑examined with reference ‑to the contents of this application. Later on it was found that Mian Muzaffar‑ud‑Din had no jurisdiction to try this case. It was accordingly sent to the Court of Mr. S. A. Rahman, Special Judge, Lahore, who started proceedings afresh. Rehmat Ullah P. W. was examined on the 4th of May 1960, and was cross examined on the 5th of May 1960. During the course of his cross‑examination the counsel for the petitioner wished to put certain questions to the witness with reference to the application Exh. P. W. 2/DA. The learned Special Judge after going through the previous record came to the conclusion that it had been placed on the record by the defence counsel and as such was not brought on the record from proper custody. He accordingly did not permit the counsel for the petitioner to cross‑examine the witness about the contents of this application. Dissatisfied with this order, the petitioner has come up in revision before this Court and has urged that the petitioner was perfectly within his rights to cross‑examine the witness with respect to the contents of the aforesaid application, The learned Special Judge while disallowing the petitioner from using this document did not refer to any provision of law or any authority under which the petitioner could have been deprived of his right to cross‑examine the witness on the basis of this application. It is no doubt true that on grounds of public policy certain matters are protected from disclosure and witnesses cannot be compelled or permitted to answer questions relating to such matter. These matters on which witnesses are privileged from interrogation are stated in sections 121 to 131 of the Evidence Act. So far as this document is concerned, I think that section 125 of the Evidence Act could have applied to it. This section reads as under:‑

"No public officer shall be compelled to disclose communi cations made to him in official confidence when he considers that the public interest would suffer by the disclosure."

It will be seen that although the Court shall have to decide whether the communication has been made in official confidence, but the public officer concerned has been made the sole judge whether the public interest would suffer by the disclosure. In the present case, however, the document was put to the public officer concerned when he was examined before Mian Muzaffar‑ud‑Din. He did not claim any privilege, and although more than two years have elapsed since then, no one has ever claimed privilege in respect of this document. There is nothing in section 145 of the Evidence Act or any other provision of law to show that a document which is used by the cross‑examiner under section 145 must come from proper lawful custody or from the custody, of the person to whom it was addressed. This of course does not mean that if the docu ment is otherwise privileged or is such in respect of which privilege could be claimed, then also the cross‑examiner is entitled to use the same although it may have been stolen from proper custody. In such a case, the proper course for a Court would be to give a decision whether the document in question is a privileged docu ment or in respect of which privilege could be claimed. . But in the present case this question does not arise because the only per son who could have claimed privilege was Doctor Abdul Qayyum Malik who never claimed privilege when the document was put to him.

3. Having regard to the facts of the present case, I am of the considered opinion that the ‑question whether the document had been brought on the record from proper or legitimate custody was immaterial and the petitioner should have been allowed to cross‑examine the witness with respect to the contents of this document. I am fortified in this view by the rule laid down in Emperor v. Raja Ram and another (A I R 1934 Nag. 35). Mr. M. B. Zaman, Assistant Advocate- General, who appeared on behalf of the State, frankly conceded that the order passed by the learned Special Judge was illegal.

4. For the reasons given above, I accept this revision petition and setting aside the order of the Special Judge direct him to permit the defence to cross‑examine the witness Rahmat Ullah with reference to the contents of the document Exh. P. W. 2/D. A. alleged to have been written by him to Doctor Abdul Qayyum Malik.

K. M. A. Petition accepted.

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