Introduction:-
Evidence is a Vital Part of Trial because it is used to establish any Relevant Fact and Reach to a Conclusion. Evidence can be in Many Forms and Testimony of Witness is One of them. A Witness may Testify a Fact by any Event he has Seen, a Communication he has Heard or Being a Part of it, However there are Some Communications which are Protected and cannot be Disclosed even if Required, Such Communications are called Privileged Communications. Privileged Communications are Statements made by Persons to each other's during the Period where they were in a Protected Relationship, when Two Persons are in such a Relationship of Great Confidence where they Communicate Facts which they will Never Communicate if they were not in Such a Relationship, Therefore Law placed Bar upon the Disclosure of Privileged Communications even after the End of Protected Relationship among such Persons. Law Imposed Restrictions upon the Parties to not disclose the Communications made in a Protected Relationship and the Rationale behind such Bar is Public Good because Public Interest is of Permanent Importance.
Relevant
Provisions:-
Article 4 to 14 of Qanoon-e-Shahadat Order, 1984 Read with Article 143 and 161 of Qanoon-e-Shahadat Order, 1984 are the Provisions Related to Privileged Communications.
Definition:-
Black's Law Dictionary defined Privileged Communication as "those Statements made by certain Persons within a Protected Relationship such as Husband and Wife, Attorney and Client and the like, which Law Protects from Force Disclosure on the Witness, Stand at the Option of the Witness, Client and Spouses etc".
Example:-
Saima and Asif are Divorcing, When Asif first
left Saima, He emptied out a joint Bank Account and placed that Money in a
Separate Account. He refuses to tell Saima where the Money is, but He has told
his Lawyer, Shahzad. The discussion between Asif and Shahzad is Protected and
unless Asif authorizes Shahzad to tell Saima where the Money is, or unless Asif
himself tells another Person about his Conversation with Shahzad, Shahzad
cannot be compelled to disclose the Information.
Conditions for
Privileged Communications:-
There are few Conditions that must be Satisfied
to Qualify a Communication as Privileged Communication, Which are Given Below;
·
The Communication Shall Take Place Between the Individuals Who are
are in a Protected Relationship.
·
The Communication Must Happen in a Private Setting.
· The Communicated Information Shall Not Be Disclosed to any Third Person.
Communications Privileged Under QSO, 1984:-
Following are the Communications which are Protected under the Provisions of Qanoon-e-Shahadat Order, 1984;
- Judge or Magistrate:-
As Per Article 4 of Qanoon-e-Shahadat Order, 1984, Neither Judge nor a Magistrate Can be Forced to Answer a Question in Respect of His Own Conduct in the Court as a Judicial Officer or In Respect of Anything Which Came into his Knowledge in the Court as a Judicial Officer. However if the Superior Court of Which he is Subordinate Ask for Such Question or Anything Which Occurs in His Presence in the Court When he was Acting as a Judge, then he may be Compelled to Answer.
- Communication During Marriage:-
Communication between Husband and Wife has been Privileged under Article 5 of Qanoon-e-Shahadat, 1984. It has been Provided in this this Article that no Person who is or has been Married shall be compelled to disclose any Communication made to him during Marriage by any Person to whom he is or has been Married and nor he shall be allowed to disclose any such Communication except with the Permission of each other's, But Consent should be Expressly given and it must not be Implied Consent. However If any of the Spouse gives Consent about the disclosure of Privilege Communication, Proceedings of Suit between Married Persons or in Case where one married person is being Prosecuted for an Offence Committed against Another, then the Bar of Privileged Communication will have no effect in such a Case. The main Reason behind the Enactment of this Provision is to Preserve Domestic Peace and Helps in the Development of Conjgal Confidence between Spouses.
- Public Officers in Case of Public Interest:-
According to Article 6 of Qanoon-e-Shahadat Order, 1984, A Peron Shall not be Allowed to give or disclose any Unpublished Official Records Which is Related to State Affairs, Because the Disclosure of Such Confidential Information of the State Papers will be Against the Public Interest, Injurious to National Defense or Diplomatic Relations. However Such a Document can be produced as an Evidence if the Head of the Concern Department Permis it, When he thinks that it's Disclosure will not suffer the Public Interest. This Provision doesn't Provide Privileges to all Records related to the Affairs of State. Moreover, An Officer Cannot Hold a Permission merely on the Ground that a Document is Confidential or Official.
- Official Communications:-
Article 7 of Qanoon-e-Shahadat Order, 1984, Lays Down that a Public Officer Cannot be forced to Disclose any Communication made to him in the Official Confidence, Because he Thinks that Such Disclosure of Communication will be Against the Public Interest. The Aim of this Provision is to Prevent the Disclosure of Official Communication and the Public Officer Can Refuse to Disclose Such Information if he Considers that it will Suffer the Public Interest.
- Information as to the Commission of Offences:-
Under Article 8 of Qanoon-e-Shahadat Order 1984, A Person Who is a Magistrate or a Police Officer can't be Coerced to Disclose the Source of Information in Respect of the Commission of any Offence which has been Communicated to Him. The Rationale Behind this Provision is Public Policy, Because if the Names of the Informer were Disclosed, then no one will Come forward to give information regarding the Commission of Any Act which is against the Laws, Therefore Law Protected to not Disclose the Source of Information and Such Information will be among the Secrets of State.
- Professional Communication
The Privilege which Permits an Attorney to Refuse to Testify as to Communication from Client to him though it belongs to Client not to Attorney. Article 09 of QSO, 1984 deals with Professional Communication between an Advocate and Client. It has been provided in this Article that no Advocate shall at any time be permitted to Disclose any Communication made to him in the course and for the purpose of his Employment as such Advocate by or on behalf of his Client or to state the contents or to disclose any advice given by him to his Client in the course and for the purpose of such Employment. As Per Article 10 of QSO 1984, The Provisions of Article 9 Extends to Interpreters, and the Clerks and Servants of Advocates.
- Exceptions:-
«
Consent of Client Where he discloses a fact coming in the knowledge
of an advocate during the course of his employment with the express consent of
his client, then article 9 would not be held applicable.
«
Communication held in furtherance of illegal purpose
« Facts showing commission of crime or fraud.
Confidential Communication with Legal Advisors:-
Confidential Communication with Legal Advisors has been Privileged in Article 12 of Qanoon-e-Shahadat Order, 1984. It provides that no one shall be Compelled to Disclose to the Court, Tribunal or other authority exercising Judicial or Quasi-judicial powers or Jurisdiction any Cofidential Communication which has taken place between him and his Legal Professional Advisors. Unless he offers himself as Witness and which is, he may be compelled to disclose any such Communication as may appears to the Court necessary to be known in order to explain any Evidence which he has given. Statements recorded for the purpose of being shown to a legal advisor to see whether there are sufficient causes to Court are privileged Under Article 12 of Qanoon-e-Shahadat Order, 1984. The Theme Behind the Enactment of this Article is to protect the interest of Client and to ensure the proper Administration of Justice by declaring Communication between Attorney and Client or any person and his Legal Advisors as Privileged.
- Production of Documents:-
Article 13 of Qanoon-e-Shahadat Order, 1984 Provides that a Person who is Not a Party to the Suit Cannot be Compelled to Produce or Disclose the Contents of a Document which is a Title Deed of his any Property, Document which is by Nature a Title Deed or a Document the Production of which may Criminate him, Except when such person agrees in Writing for the Production of Such Document. On the Other Hand, Article 14 States that A Person Cannot be Compelled to Produce a Document Which is in his Possession and the Other Person will Refuse to Produce it if such document were in his Possession, However if the Refusing Person Allow the Production of Such Document, then the Possesser of the Document can effect the Production of the Document.
Article 143 of
QSO, 1984:-
"Court to Decide When Question Shall be
Asked and When Witness Compelled to Answer"
Article 143 of Qanoon-e-Shahadat Order, 1984,
States that if a Question is not Directly Material to the Issue but Merely
Relevant to the Matter Only and it effects the Character of the Witness, then
it is the Court Discretion that Whether the Witness is or not Compelled to
Answer it and the Court May Warn the Witness that he is not Under Obligation to
Answer Such Question.
Article 161 of
QSO, 1984:-
"Judge's Power to Put Question or Order
Production"
Article 161 of Qanoon-e-Shahadat, 1984, Weapons
a Judge with Vast Powers to Discover the Truth and to Obtain Proper Proofs of
Relevant Facts and Put Any Question in
Any Form at Any Time upon any Witness or to the Parties about any Fact Relevant
or Irrelevant, and May Also order for the Production of Any Document or Thing.
By the Leave of the Court a Party to the Proceeding may Cross-Examine the
Witness Upon Answers given by him to Questions put by the Court. Furthermore,
the Judge is empowered to ask irrelevant Questions to obtain proof of Relevant
Facts, But his Judgement Shall be Based Upon Relevant Facts and Which are Duly
Proved. Moreover, the Privileges which are given under Article 4 to 14 of Qanoon-e-Shahadat
Order, 1984 to a witness for answering a
question or regarding the production of a Document Shall be Valid and he cannot
be Compelled to Answer Such Questions or Produce Documents which are under the
Umbrella of Privileged Communications.
Admissibility
of Privileged Communications:-
Privileged Communications are made in a private
setting and are Protected from disclosure to third parties. The rule of
Privileged Communications is based on Public interest which is of Great
importance and it exists because privacy of Confidential Relationships is
Valued in the Society. This is why they are not admissible as Evidence in the
Court of Law.
Conclusion:-
Law relating to Privileged Communication Play a
Key Role in Justice System, as it bounds the Person who are in a certain
Relationship with other/others to remain faithful with him/them and Avoid
Disclosure of facts which would have never came in their Knowledge except due
to their Protected Relationship. This rule of Privilege Communication not only protect
Public Interest but also Prevent loss of Confidence between certain
Relationships, if Wife and Husband had been allowed to disclose Privileged
Statements, it would severely affect the Sanctity of Husband and Wife
Relationship and they would not Develop better Relationship and loss Confidence
upon each other. Same is applicable in Attorney-Client Relationship, as if
client had no Confidence in his Attorney due to fear of subsequent Disclosure
of Facts told to him, he would never had been able to tell all Facts and
Circumstances to seek his Attorney Legal Assistance.
0 Comments