MAHMOOD AHMAD Versus GOVERNMENT OF PUNJAB
ORDER
1. Through this constitutional petition 'Ch. Muhammad Mahmood and three others, have questioned the appointment of private respondents as Additional District and Sessions Judges inter alia on the ground that they had been appointed in utter disregard to the recommendations made by the High Court and in contravention of the relevant rules. I called the Advocate‑General at pre‑admission stage who appeared on 23‑11‑1987 and produced parawise comments on behalf of Government of the Punjab, respondent No.2, although I had not called for it. In the parawise comments, the Government of the Punjab, stated that the respondents Nos. 3 to 20 were appointed as Additional District and Sessions Judges in accordance with the recommendations of the Lahore High Court, Lahore. I heard the learned counsel for the petitioners as well as the learned Advocate‑General, Punjab at some length. I felt that in view of the plea raised by the petitioners in the petition and the categorical stand taken by the Government of Punjab in parawise comments, the perusal of the recommendation letter of the High Court received by the Government of Punjab (hereinafter to be referred as the 'letter') was necessary for the determination of a the maintainability or otherwise of the petition, so in my anxiety to know the correct position and resolve the controversy speedily and efficaciously, I passed following order on 29‑11‑1987:
2. "The Government of the Punjab, respondent's stand is that Malik Mumtaz Ahmad and 17 others, respondents Nos. 3 to 20 were appointed as Additional District and Sessions Judges on the recommendation of the Lahore High Court Lahore. It appears to me that the perusal of the letter of recommendation of the High Court is essential for the just decision of the case. The learned Advocate‑General will, therefore produce recom mendation letter in original or copy thereof on 12‑12‑1987."
3. Against this order, the Government of Punjab through Advocate‑General, Punjab, filed petition for special leave to appeal No.896 of 1987 which was disposed of by the Supreme Court on 13‑12‑1987 at limine stage with the following observation:
4. "The petition is, therefore, disposed of with the observation that the learned Advocate‑General may move the learned High Court for further opportunity to canvass his point of view before he is required to comply with the Court's order, ,dated 29‑11‑1987."
5. Pursuant to this observation, Civil Miscellaneous No. .254 of 1988 was filed praying for opportunity to make submissions in respect of order, dated 29‑11‑1987. Alongwith the application, the learned Advocate General filed summary of his submissions raising as many as 15 questions out of which questions Nos. 3, 5 to 8 and 10 which have some relevancy to the order, dated 29‑11‑1987 are as under:‑
6. Q.No.3. Whether the production of letter emanating from the Hon'ble High Court and sent in the strict official confidence to the Chief Executive of the Province could be compelled by a Court of Law?
7. Q. No. 5. Whether the record in question belonging to a Court of Record could be summoned and if it cannot be so summoned, then whether it could be summoned by employing an indirect method and if it can be summoned, then what is the impediment in the way of its being summoned directly?
8. Q.No.6. Whether a person who admittedly had neither the custody nor the possession of a document can be directed to produce that document?
9. Q. No.7. Whether the Advocate‑General who is appearing purely on a Court call could be burdened with the task of procuring and producing a document which neither belongs to him nor is in his possession?
10. Q.No.8. Whether such an unprecedented order is desirable in pursuance of a petition which has as yet not even been found worth a notice?
11. Q.No.10. Whether in view of the fact that presumption of regularity and correctness attaches to all official acts and the fact that this presumption was further fortified by a statement in writing that the act in question had been regularly performed and also the fact that this presumption and statement stood unrebutted on the record, there was any occasion or necessity for an investigation into the unrebutted facts?
12. Allowing reasonable time for preparation to the learned Advocate General, I heard him at length on,21‑2‑1988 and 22‑2‑1988.
13. Canvassing his point of view, the learned Advocate‑General submitted that the 'letter' is not relevant for adjudication of lis before the Court and if presumed to be relevant then it is not a proper stage to send for the same; that this Court cannot compel the production of letter; that since he has been appearing before this Court purely on a 'Court‑call' and has not been authorised by the Government of Punjab to act as Law Officer in this petition, therefore, he could not be asked to produce the letter more particularly when the same was neither addressed to him nor was it in his possession or power; that by directing the Advocate‑General to produce the letter, the authority in whose possession the letter is, has been deprived of legal protection available to him vis‑a‑vis production of the document; that since no process for the production of the recommendatory letter can be issued against the High Court, therefore, it cannot be summoned through indirect method by directing Advocate‑General to produce it in Court; that presumption of regularity is attached to all official acts, therefore, it cannot be presumed that appointment of respondents Nos. 3 to 20 had not been made in accordance with the recommendation of the High Court; that this presumption has not been rebutted by the petitioners in any manner and that in the judicial history of sub‑continent spread over a period of more than a century, such communication between the High Court and the Chief Executive of the province had never been required to be produced in a Court of law and such order will encourage even the subordinate Courts to send for the record of the High Court undermining the dignity and prestige of the Institution. Conversely, the learned counsel for the petitioners maintained that inspection of the letter is very much essential for the adjudication of the lis; that the learned Advocate‑General being representative of the Punjab Government can be directed to produce the letter in possession of the Government and that the reluctance on his part to produce the so‑called recommendatory letter in Court leads to the inference that no such letter exists at all.
2. 1 have anxiously attended to the contentions of the learned Advocate‑General and am not persuaded to agree with him for the reasons that the letter relates to the subject‑matter challenged in this writ petition to which Government of the Punjab is a party; that in comments, the Government of the Punjab has relied on this letter; that in view of the plea of the petitioners that the appointments were made by the Government in utter disregard of the recommendation of; the Lahore High Court and the unambiguous stand taken by the Government of the Punjab in parawise comments that the appointment have been made strictly in accordance with the recommendation of the Lahore High Court, Lahore, the letter has become a pivotal A document and its examination is material for the just determination of the controversy. If the argument of the learned advocate‑General is pushed to the extent of saying that this Court can never ask the Government to show the document on which it claimed to have acted upon then how would a Court be able to satisfy itself that the Government had really acted on the recommendation sent by the High Court. The power of the Court to send for a document examination, of which in its opinion is necessary for the just decision of the case is conferred by the following provisions of law:‑
14. The Qanun_‑e‑Shahadat, 1984.
15. Article 158: Production of Documents.‑‑ (1) A witness summoned to produce a document shall, T 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 by the Court.
(2) The Court, if it sees fit, may inspect the document, unless it refers to matter of State, or take other evidence to enable it to determine on its admissibility."
16. Article 6: Evidence as to Affairs of State.‑‑ 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."
17. Article 7: Official communication.‑‑ No public officer shall be compelled to disclose communications made to him in official confidence when he considers that the public interests would suffer by the disclosure."
18. Order 14 Rule 4, C.P.C.‑‑ Court may examine witnesses or documents before framing issues.‑‑ Where the Court is of opinion that the issues cannot be correctly framed without the exami nation of some person not before the Court or without inspection of some document not produced in the suit, it may adjourn the framing of the issues to a future day, and may (subject to any law for the time being in force) compel the attendance of any person or the production of any document by the person in whose possession or power it is by summons or other process."
19. Order 11 Rule 14, C.P.C.‑‑ "Production of documents. It shall be lawful or the Court, at any time during the pendency of any suit, to order the production by any party thereto, upon oath, of such of the documents in his possession or power, relating to any matter in question in such suit, as the Court shall think right; and the Court may deal with such documents, when produced, in such manner as shall appear just."
20. Order 11, Rule 19(2), C.P.C.
21. Rule 19 ..................................................
22. "Sub‑Rule (2). 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.
23. Section 151, C.P.C.‑‑ "Saving of inherent powers of Court.‑ Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."
24. The position that emerges by reading the aforesaid provisions of law is that a Court has unquestionable, unlimited and unfettered powers to send for any document whether privileged, or not privileged from Government or person in whose possession or power the document may be and the Government/person so directed shall be bound under the law to obey subpoena and bring document to Court notwithstanding any reservation he may have. Therefore, if the Government /person in his right claims privilege for the inspection of the document, he may do so by way of communication in the form of affidavit indicating why the privilege is claimed. Where such a claim is made, the general rule is that the Court can look at document to determine the claim as B the contents of the document are the best evidence of existence or non‑existence of privilege claimed. But if the privilege is claimed on the around that the document relates to the affairs of the State which means matter of public nature in which State is concerned and disclosure of which will be prejudicial to public interest or endangers national defence or is detrimental to good diplomatic relations, then the general rule ceases to apply and the Court shall not inspect the document or show it to the opposite party unless the validity of the privilege claimed is determined. In view of the following observation made by the Hon'ble Supreme Court in its order, dated 13‑1‑1988 passed in petition for Special Leave to Appeal against this Court's t; order, dated 29‑11‑1987:‑
25. "Secondly, the learned Advocate‑General has submitted that neither the Government nor the learned Chief Justice of Punjab who has original recommendation with him has any reluctance whatsoever to produce the aforementioned document. He also repeatedly expressed his willingness to produce the letter in question before this Court for perusal. It is, therefore, evident that the Government does not treat it to be a secret document nor has it claimed any privilege with regard to its production before the Court."
26. There is nothing whatsoever in the circumstances of the present case to indicate possibility of any injury to any appreciable interest of State or the Institution (High Court) by the production of the document. In the peculiar circumstances of the case the production of the letter before the Court would be rather in consonance with the dignity, prestige, honour and supremacy of the Court as well as the rule of law than withholding it. Although neither Government nor the learned Chief Justice, Lahore High Court, Lahore has any reluctance whatsoever to produce the letter as was stated by the learned Advocate‑General before the Supreme Court at the time of his arguments in Petition for Special Leave to Appeal No. 896 of 1987, yet he seems to be worried that in the history of the Institution spread over a period of more than one century such communication between the High Court and the Chief Executive of the Province of Punjab had never been required to be produced in the Court of law, therefore, such an order might encourage the subordinate Courts to start requisitioning the record of the. High Court which would be detrimental to the prestige and dignity of the Institution. In the first place, this Court has not summoned the record of the appointment of the Additional District and Sessions Judges from the High Court. Secondly, this Court is fully conscious of its duty to maintain the dignity and prestige of the Institution. While passing order, dated 29‑11‑1987, this Court was fully mindful of its duties towards the parties in the petition as well as to the Institution. In my anxiety to resolve the controversy efficaciously and speedily and to eliminate any chance of scandalization, I had directed the Advocate‑General to produce the letter received by the Government before me to know the correct position. As for the arguments of the learned Advocate General that such a communication had never been summoned earlier in the history of the prevalent legal system in the sub‑continent, I would say, he seems to be simply mistaken. There is a long trail of authorities from Indian jurisdiction where entire record relating to the appointment of Additional District and Sessions Judge was made available before the Court for examination on numerous occasions, e.g. in case M.M. Gupta and others v. State of Jammu and Kashmir and others reported as A I R 1982 SC 1579 and in case A . Pandurangam Rao v. State of Andhra Pradesh and others reported as A I R 1975 SC 1922 wherein the validity of the appointment of District Judges was questioned on the ground that the same were not made in consultation with the High Court, the entire record of appointment of District Judges including official communication between the High Court and the Government, the recommendation made by the Acting Chief Justice and the proceedings taken by the committee comprising Acting Chief Justice and the three Honourable Judges of the High Court was not only produced before the Court but was also reproduced in the judgment. In Pakistan this matter is one of first impression as never before appointment of Additional District and Sessions Judges had been challenged on the grounds taken in the present petition, 1538 so, the question of summoning the recommendation letter of the High Court received by the Government had never arisen for consideration. The absence of the precedent is thus quite understandable. The learned Advocate‑General submits that since he appeared at 'Court call' therefore, he cannot be burdened with the task of producing the letter. The record shows that having appeared at the call of the Court, he filed parawise comments on behalf of the Government of Punjab without direction by the Court which I believe was not without receiving instructions from the Government. Again he filed petition for special leave to appeal on behalf of Government of Punjab in the Supreme Court against my order, dated 29‑11‑1987 which provides unrebuttable proof that he remained in constant contact with the Government in the matter and has been acting under instructions of the Government. It is further apparent from the fact that in pursuance to the order of the Supreme Court, he has filed application to canvass his point of view . So it does not lie in his mouth, now, to say that he does not represent Government of Punjab. Since the learned Advocate‑General has expressed his inability to produce the document before the Court, obviously contrary to his express willingness to produce the same before the Supreme Court for perusal, I feel that he should not be compelled to produce the letter. So I direct Government of Punjab, respondent No.2 to send recommendatory letter of the High Court for the appointment of respondents No s. 3 to 20 as Additional District and Sessions Judges which was received by it from the High Court through responsible officer of the department oncerned within 15 days from today. The Officer so deputed will bring the letter in a sealed cover and will deliver the same to the star of the Lahore High Court, Lahore for safe custody. I Regi like to make it clear that the letter will not be indiscriminately would 11 n record or offered for inspection to the petitioners. After the put ante of this order, .by way of delivering the letter in sealed compliance cover to the Registrar of this Court, it would be open to Government of the Punjab respondent No.2 to appear on the next date and raise objection, if any, to the inspection of the document.
27. For further proceedings, to come up on 19‑3‑1988.
28. Order accordingly.
29. H.B.T.IM‑6511L