Unpublished Record Article 6 of Qanun-e-shahdat order,1984

1. Document is an unpublshedofficialrecord
relating to anyaffairs of state
The officer of the Head of Department concerned may
give or withholdthe permission for giving the evidence
derived there from
Scheme
of
Article 6
public
policy
confidential
documents
Srutinizationof
documentsbyHead
of the Department
before giving
permission
Sanction by
Head of the
Department

2. Unpublished Record
 The word ‘Publish’ means to make public, to divulge, to announce, and
to proclaim or to intimate to the public.Thus documents which have
been disclosedor communicatedto a party or are such as are open for
inspection or information of office staff or public at large or have been
printed and are freely available would not fall in the categoryof
unpublished documents
 To fulfill the legalcharacter, the documents must not only be
unpublished ie, the contents of which have not been divulged or made
public or have remained under the blanket of secrecyorconfidentiality
but are a part of the State’s recordie the official records of a
Ministry,Division, Department, agency etc (PLD 1992 S.C. 492)
Injurious to public Interest
[AIR 1946 Nag 385]:- The only ground sufficient to justify non production of an
official document marked confidential is that production would not be in the
public interest, for example where disclosures would be injurious to national
defense or to good diplomatic relations or where the practice of keeping a class of
documents secret is necessary for the proper functioning of the public service.
 The principle of this Article is that it is not all records relating to the affairs
of State that are privilege but only those the disclosure of which would
result in an injury being caused to the public interest. The Article gives
effect the principle that public interest must be paramount ( AIR 1951
Bom 72)
Affairs of State
In English law the expression “affairs of state” signifies the whole conceptor
principle of Crown Privilege. Article 6 of the Qanun-e-shahadat Order, however
deals not only with the said conceptor principle but other related matters; the
expression “ affairs of State” referring to the conceptor principle of Crown
privilege and the remaining portion to the nature of the record out of which
evidence sought to be reproduced is derived and the person who can exercise the
privilege to withhold or to grant the permission to producethe evidence. The
relation of a State with other States or International bodies or organizations could
throw up confidential matters relating to treaties, International relations, foreign

3. policy, internal communication, defense, diplomatic relations etc.The Internal
working and activities of the State could generate confidential matters relating to
Inter departmental communication, advice or notes exchanged between reports
communicated or received or decision taken by Ministers, Heads of Departments
or Government officials relating to various fields of activity within the compass of
their jurisdiction. Basically what is covered by expression ‘affairs of state’ is a
matter of public policy.
Who is to determine the validity of the privilege raised by the Head of
Department
When a public officer is summoned to producea document in respect of which he
desires to claim a privilege , he is bound to appear before the court notwithstanding
any objection that he may have as to its inadmissibility. It is then for the court to
decide as to whether the document in question relates to any affairs of the state.
Once the court hold that the document is of the kind in regard to which privilege
can be claim , that is an unpublished official record relating to the affairs of the
state , the question whether the disclosure of the contents would be against public
interest and whether the privilege should be claimed for it or not is entirely within
the Head of the Department ( PLD 1969 Lah 985)
A court has unquestionable, unlimited and unfettered powers to send for any
document whether privileged or not privileged from Government or personin
whose possessionor power the document may be and the Government or personso
directed shall be bound under the law to obey and bring document to court.
Thereafter if the Government or 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 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 ground 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 prejudice to public interest or
endangers national defense or is detrimental to good diplomatic relations then the
general rule ceases and the court shall not inspect the document or show it to the

4. oppositeparty unless the validity of the privilege claimed is determined (1988
CLC 1532)