P L D 1953 Lahore 308 (PLP)

During the course of the suit alluded to in the last paragraph, the plaintiffs applied to the Court to summon the file of the application which had been made by Muhammad Yousaf before the Sub‑Registrar. When a summons was issued, the Inspector -General of Registration claimed privilege under section 123 of the Indian Evidence Act. The Court, thereupon, called upon him to produce necessary material to enable it to decide that the document in question related to matters of State. With this order the Inspector‑General of Registration did not comply, whereupon the Court directed him to cause the production of the document on a certain date. From this order, a petition has been brought to this Court on the revision side, and the learned Assistant Advocate‑General relies on two Division Bench rulings of this Court reported as I. M. Lall v. Secretary of State (A I R 1944 Lah. 209) and Khawaja Nazir Ahmad v. Emperor (A I R 1944 Lah. 434). In the former case, it was held that the Court can inspect documents for the purpose of deciding the question of privilege only if those documents do not refer to matters of State. In other words, an exception is made in respect of documents that refer to matters of State. This opinion was given with refer ence to section 162 of the Evidence Act and O. IX, rule 2 of the Code of Civil Procedure and it was held that the provisions to the Code being general and those of section 162 of the Evi dence Act being restricted in cases covered by section 162, these special provisions should be enforced in preference to the general provision of the Code. It was, therefore, not open to the Court to peruse the document for which privilege was claimed, in order to determine whether it constituted an official record relating to affairs of State. In the latter case, it was held, with reference to sections 123 and 162 of the Evidence Act, that the head of the department, who is in possession of the document, is the exclusive judge of the fact whether the unpublished records are protected from pro duction on the ground of their being related to affairs of State. This, the learned Judge said, was the effect of section 123, but, when the document itself is asked to be produced and it is not merely a question of giving any evidence derived from unpublished official records, one must go to section 162 which indicates that in regard to the production, as distinguished from the admissibility: of a document, the Court must stay its hands as soon as a claim is made that the document refers to matters of State. The decision that the document cannot be produced will certainly be a decision of the Court; but the Court can, if it is satisfied that the claim has been made by or under instructions of the person who can put forward such a claim, pronounce no other order but to allow the privilege. Teja Singh, J., who concurred with the judgment of Abdur Rahman, J., in the latter case, held in Teja Singh v. Emperor (A T R 1945 Lah. 293), without reference to his previous decision, that the record kept at the police station about the activities of a particular person and the reports about him made by the Sub‑Inspector to the Inspector or by the Inspector to the Superintendent of Police could not be regarded as privileged under sections 123 and 124 of the Evidence Act. In Emperor v. Ch. Raghunath Singh (A I R 1946 Lah. 459) Khosla J., while agreeing with the principle laid down by the two Division Bench rulings, held that the zaildari book not being an unpublished official record, no privilege could be claimed in respect of it, but that such privilege could be claimed for the zaildari file. In other words, he decided the question whether privilege could be claimed for a document and did not leave the decision to the head of the department. I shall reproduce the two sections of the Evidence Act which are in question:‑ Section 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." Section 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 sues fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility." It is cleat that under section 123 evidence cannot be given from an unpublished official record relating to an affair of State, except with the permission of the head of the department. The section does not say, however, that the decision whether the records relate to an affair of State also rests with the head of the department. If indeed any such thing were said in sec tion 123, it would be in repudiation of the first paragraph of section 162 which requires that, notwithstanding any objection as to the production or admissibility of a document, the document must be produced in Court, and it is the Court that shall decide whether the objection as to production or admissibility is valid. This is clear enough and cannot become any the less clear by reason of the fact that in the second paragraph the Court is barred from inspecting a document which relates to an affair of State. It seems tome, however, that the second paragraph has no relation to the production of a document but is intended to guide the Court in the matter of the admissibility of a document. It will have been noticed that in the first paragraph the objections that might be made have been classified as (1) objections as to production and (2) objections as to admissibility and that the second paragraph says nothing about the production of a document but states that the Court may inspect the document or take other evidence to enable it to determine on its admissibility. In other words, the inspection of the document is intended merely to determine its admissibility, not for the determination of an objection as to its production. The words "unless it refers to matters of State" in the second paragraph should be read parenthetically without any effect on the main purpose of the paragraph, which is to suggest a method of enabling the Court to decide whether a document is admissible. It was observed in the second of the two Division Bench cases that, although the validity of any objection as to the production of the document is a matter for the decision of the Court, since the Court cannot inspect a document which relates to affairs of State and since secondary evidence of its contents cannot be admitted, there is nothing left for the Court except to accept the statement of the head of the department that the document relates to an affair of State and, accepting that state ment, the Court has merely to give blessing to it by a formal order under section 162 that the objection of the head of the depart ment is valid. I respectfully submit that the language of the first paragraph of section 162 that "the validity of any such objection shall be decided on by the Court" does not admit of any such compromise and that the Court is not bound by the opinion of the head of the department, which opinion, as in the present case, may prima facie be absurd. As for the difficulty envisaged in respect of the second paragraph, which prevents the Court from inspecting documents relating to affairs of State, it does not seem to me to be real, for, even without inspecting a document, it is possible to take other evidence, not necessarily regarding the contents of the document, which should enable the Court to decide whether a document relates to a matter of State. In the present case, for instance, an enquiry made in relation to the application of a party that a document purporting to have been presented by himself for registration had not been so presented, could not by any stretch of imagination be regarded as a file relating to an affair of State. In view of the decisions of two Division Benches, however, I would refer this case to a larger Bench. MUHAMMAD MUNIR, C. J.‑‑This is an application by the Provincial Government for the revision of an order of Mr. Aziz Ahmad,‑Sub‑Judge 1st Class, Gujar Khan, by which disallowing the claim for privilege, he ordered the Inspector‑General of Registration to produce a document in Court. The history of the matter is as follows. In May 1949, a sale‑deed purporting to convey some land situate in village Pariparhal in the district of Rawalpindi was registered in the office of the Sub‑Registrar, Rawalpindi. The sale‑deed purported to be by one Muhammad Yousaf in favour of one Muhammad Sarwar. Muhammad Yousaf died in October 1949 and a suit was instituted by his heirs Fazal Ahmad and Mst. Ali Begum for a declaration that the document, on the basis of which Muhammad Sarwar defendant claimed the land in question as having been sold to him by Muhammad Yousaf, was fictitious, that Muhammad Yousaf had never sold any Ian I to Muhammad Sarwar and that the sale‑deed in Muhammad Sarwar's favour had been executed by some one who had impersonated Muhammad Yousaf. In proof of their case, the plaintiffs requested the Court to send for an application which had been made to the Sub‑Registrar by Muhammad Yousaf in his lifetime alleging that he had never appeared before the Sub -Registrar at the time of the registration, together with the proceed ings taken by the department on that application. The Inspector‑General of Registration, however, claimed privilege for the application and the proceedings on the ground that the documents called referred to affairs of State and were privileged from disclosure under section 123 of the Evidence Act. The learned Sub-Judge, however, held that the claim was untenable on the ground that by no stretch of language could an application, made to a Sub‑Registrar and the proceedings taken on that application, be held to refer to affairs of State. The present application for revision has been made by the Punjab Government at the request of the Inspector‑General of Registration who feels dissatisfied with the lower Court's order compelling the production of the document in question. 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 Department 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. In the present case, if the document is, as described by the Inspector‑General of Registration, an application and the office notes on that application, it cannot possibly be said to relate to the affairs of State. The lower Court was, therefore, justified in ordering its production. The petition for revision is dismissed with costs. We are sure that the documents production of which has been ordered, will not be indiscriminately put on record and offered for inspection to the plaintiffs. Only that portion of the file which is held by the Court to be relevant and which has been properly proved or is per se admissible will be made a part of the record. A. H. Petition dismissed.