1992 PLP 1357 (SCMR)

(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before the Special Court itself being in the domain highly sensitive and secret, relating to affairs of State and its unpublished record, its uninhibited trial had been possible because of the declassification of the documents by the Prime Minister as Minister in charge of the department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 by the relevancy, the consistency and the nexus of such privileged material with a proper, fair and just trial than the mere fact that privilege in respect of it had been claimed. Necessarily it required 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 was claimed but was not allowed, or request was made for holding the proceedings in camera and was found justified. Raja Muhammad Anwar, Senior Advocate, Ch. Aitzaz Ahsan, Advocate, A.S. Najam, Advocate instructed by Saleem Malik, Advocate‑on -Record (absent) for Appellant. Aziz A. Munish, Attorney‑General for Pakistan, M.B. Zaman, Senior Advocate and Ch. Fazle Hussain, Advocate‑on‑Record for Respondent. Dates of hearing: 18th and 24th March, 1992, SHAFIUR RAHMAN, J.‑‑‑For detailed reasons to be recorded later this appeal is allowed, the impugned 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 is set aside and the Special Court is directed to reconsider the 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before the Special Court itself being in the domain highly sensitive and secret, relating to affairs of State and its unpublished record, its uninhibited trial has been possible because of the declassification of the documents by the Prime Minister as Minister‑in‑charge of the department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 o: privilege, the Court should in the matter of claim of privilege be guided more by the relevancy, the consistency and the nexus of such privileged material with 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 be considered 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. A.A./B‑196/S, Appeal allowed.