1992 SCMR 1357

Mohtarma BENAZIR BHUTTO vs THE PRESIDENT OF PAKISTAN through the Secretary to the President

Share on WhatsApp ⭐ Prefer in Google

Citation1992 SCMR 1357

CourtSupreme Court of Pakistan

Case No.Civil Appeal No,59 of 1992

Date1992-03-24

Judge(s)Shafiur Rahman, Saad Saood Jan, Abdul Qadeer Chaudhry Ajmal Mian and Rustam S. Sidhwa

Authored byShafiur Rahman

ResultAppeal allowed

AI Summary — generated from this judgment; read the full text below and verify before relying on it.

This appeal before the Supreme Court of Pakistan challenges the order of the Special Court dated 28-1-1992, which allowed a claim of privilege over certain documents without examining the underlying material. The core legal question concerns the proper procedure for determining a claim of privilege regarding sensitive state documents in a sensitive trial where partial waiver and declassification have already occurred. The Supreme Court allowed the appeal, set aside the impugned order, and directed the Special Court to reconsider the question of privilege by examining the material itself, guided by relevancy, consistency, and nexus to a fair trial, while also considering in camera proceedings where justified. The key principle laid down is that a court must examine the privileged material itself and weigh its relevancy and nexus to a fair and just trial rather than blindly accepting a claim of privilege, particularly where sensitive state documents are involved and partial declassification has taken place.

Questions settled in this judgment

Can a court allow a claim of privilege over documents without examining the material in respect of which privilege is claimed?
What factors should a court consider when determining a claim of privilege over sensitive state documents in a criminal trial?
Is a court required to consider holding in camera proceedings when dealing with sensitive documents for which privilege is claimed?

claim of privilegestate documentsfair trialspecial courtdeclassificationin camera proceedings

ORDER

1. ' 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 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 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.

ORDER

Cited by 4 cases