Name: Najeeb Rehman

Roll No. BL- 1724 (VII-A)

Subject: Law of Evidence-I
Instructor: Sir Mujeeb Rehman
Assignment
Topic : Article 11-15 of
Qanoon-e-Shahadat Order, 1984
Introduction of the Assigned Articles:
The Qanun-e-Shahadat Order (QSO), Articles 11 to 15, safeguards the principles of privilege,
confidentiality, and fairness in legal proceedings. Article 11 ensures that a party to a civil suit
does not lose their right to confidentiality simply by giving evidence or calling their advocate as
a witness unless they explicitly waive privilege by questioning their advocate on privileged
matters. Similarly, Article 12 upholds the sanctity of confidential communications between
clients and legal advisers, restricting their disclosure unless the client becomes a witness and
the court finds it necessary to clarify the evidence provided.

Articles 13 and 14 extend privilege to witnesses and third parties. Article 13 prevents witnesses
who are not parties to the suit from being compelled to produce property-related documents,
such as title deeds or incriminating records, unless they consent in writing. Article 14 ensures
that individuals holding documents belonging to others, such as agents or trustees, are not
compelled to produce them unless the owner consents. Both articles emphasize the protection
of third-party rights and the prevention of undue legal jeopardy.

Finally, Article 15 mandates that witnesses cannot refuse to answer relevant questions, even if
their answers might incriminate them or expose them to penalties. However, the article
provides safeguards by ensuring that such answers cannot be used to prosecute, arrest, or
penalize the witness, except in cases of perjury. Together, these articles strike a balance
between protecting privileged information and promoting justice, ensuring transparency and
fairness in both civil and criminal proceedings.

Provisions;
 QSO Article 11 = Evidence Act 1872 Section 128
 QSO Article 12 = Evidence Act 1872 Section 129
 QSO Article 13 = Evidence Act 1872 Section 130
 QSO Article 14 = Evidence Act 1872 Section 131
 QSO Article 15 = Evidence Act 1872 Section 132
Article 11. Privilege not waived by volunteering evidence.
“If any party to a suit gives evidence therein at his own instance or otherwise he shall not be
deemed to have consented thereby to such disclosure as is mentioned in Article 9, and, if any
party to a suit or proceeding calls any such Advocate as a witness, he shall be deemed to have
consented to such disclosure only if he questions such advocate on matters which, but for such
question, he would not be at liberty to disclose.”

Explanation:
A party to a suit does not waive their right to confidentiality simply by giving evidence nor the
party waives such privilege by calling advocate as a witness (unless he asks questions regarding
the confidentiality). The Article further explains that;

 Privilege to the client: This article gives such privilege to only party(client) not the
witness, therefore communication between advocate and witness is not protected.
 Consent by Questioning an Advocate: If the client call his Advocate as a witness and
question him regarding the privilege communications, the client is thereby deemed to
have consented for such disclosure.
 Applicability to Civil Suit: The word “suit” is used in the article hence only applies to the
suits of civil nature.

This Article safeguards the confidentiality of legal communications and ensures that privileged
information cannot be misused merely because a party testified in the proceedings.

Illustrations:
1. A hires Advocate B to handle a civil case. During the trial, A voluntarily testifies about the
case details. However, A’s testimony does not mean B is free to disclose confidential
information A shared during their consultations, unless A specifically questions B on such
matters.
2. If the opposing party calls Advocate B as a witness, Advocate B cannot disclose
confidential communications unless the questioning explicitly requires it. For example, if
Advocate B is asked, “What was your client’s strategy in this case?” B cannot reveal it
unless A allows by questioning Advocate B on the same.
Article 12. Confidential communications with legal advisers.
“No one shall be compelled to disclose to the Court, tribunal or other authority exercising
judicial or quasi-judicial powers or jurisdiction any confidential communication which has taken
place between him and his legal professional adviser, unless he offers himself as a witness, in
which case he may be compelled to disclose any such communications as may appear to the
Court necessary to be known in order to explain any evidence which he has given, but no
others.”

Explanation:
This Article protects confidential communications between a client and their legal advisor,
emphasizing the importance of legal privilege. Key elements include:

 General Protection: This article provided privilege not only for civil suits but to all
Courts, Tribunals, or Authority (Judicial or Quasi-judicial)
 Exception: If a person voluntarily becomes a witness, they may be compelled to disclose
relevant confidential communications, only to the extent of explaining the evidence
produced before such Court, Tribunal or Authority

This Article balances the need for confidentiality with the demands of justice, ensuring that
privileged communication remains protected unless it directly affects the case.

Illustrations
1. C consults Legal Adviser D about a criminal matter, and they discuss confidential defense
strategies. In court, the prosecution cannot force D to disclose these communications
because they are privileged.
2. If C offers himself as a witness and makes statements contradicting the confidential
communications with D, the court may compel D to disclose only the specific
communications necessary to clarify C’s evidence. For example, if C testifies, “I never
told my lawyer I was present at the crime scene,” D may disclose communication proving
otherwise, but not unrelated matters.
Article 13. Production of title deed of witness, not a party.
“No witness who is not a party to a suit shall be compelled to produce his title deeds to any
property or any document in virtue of which he holds any property as pledgee or mortgagee or
any document the production of which might tend to criminate him, unless he has agreed in
writing to produce them with the person seeking the production of such deeds or some person
through whom he claims.”

Explanations:
 Privilege for Witnesses: A witness who is not a party to the suit cannot be compelled to
produce the following documents;
a. title deeds to property they own
b. documents that grant them property rights (e.g., as a pledgee or mortgagee),
c. any other incriminating documents (document rendering civil liability is not
protected under this Article).
 Exception: If the witness has written agreement to produce these documents to the
person seeking their production, if is obligated to do so.
 Applicability to Civil Suit: The word “suit” is used in the article hence only applies to the
suits of civil nature. The privilege doesn’t extend to witnesses called in Criminal cases.
 Limits of Privilege: This article gives such privilege to only witness (not party) to the suit.
 No Proceedings against witnesses privileged: No proceedings u/s 175 and 204 of PPC
shall be initiated against the witness privileged under Article 13 or 14 of QSO.
 QSO Art.13 versus Art.158 : Under Art. 158 of QSO, Court is empowered to summon a
witness to produce a document, which a witness is bound to bring before the Court.
Afterwards the witness may object to have privilege of non-production of such
document under Art. 13 or 14, and then the validity of his objection shall be decided by
the Court.
 QSO Art.13 versus Art.161 : Under Article 161 of QSO, A judge is not authorised to
compel a witness to produce any document which he would be entitled to refuse to
produce under Articles 4-14 of QSO.

This Article protects third parties from unnecessary interference or legal jeopardy arising from
their involvement in court proceedings as witnesses.
Illustration:
1. For example, if A (party) argues that X’s title deed (X is witness) proves the boundaries of
the disputed land (Between A and B parties), X cannot be compelled to produce it unless
he agreed in writing to produce it.

Article 14. Production of documents which another person, having

possession, could refuse to produce.
“No one shall be compelled to produce documents in his possession, which any other person
would be entitled to refuse to produce if they were in his possession, unless such last mentioned
person consents to their production.”

Explanation: The Article extends the concept of privilege to documents held by individuals
who have possession but do not own them.

 Third-party Privilege: If a person possesses documents that another individual has the
legal right to refuse to produce, the possessor is also entitled to refuse production unless
the owner consents.
For Example: Agent, Mortgagee, Advocate, Trustee, etc. can not be compelled tp
produce the privileged Documents of Principal, Mortgagor, Client, Trust Property
respectively.
 General Applicability:
a. This article is applicable to All the civil and criminal proceedings and other
Authorities (Judicial or Quasi-judicial)
b. This Article also extends to all persons either Witness or a party to the suit.
 Exception: The documents can only be produced if the owner, who holds the privilege,
gives explicit consent.

This provision is designed to protect sensitive information and third-party rights, ensuring that
no one is unfairly compelled to disclose privileged documents.

Illustration:
1. A works as a secretary for B, and owns confidential business documents of B. During a
court case involving B, A is asked to produce these documents. However, since B, as the
owner, has the right to refuse to produce the documents due to confidentiality, A cannot
be compelled to produce them unless B consents.
Article 15. Witness not excused from answering on ground that
answer will criminate.
A witness shall not be excused from answering any question as to any matter relevant to the
matter in issue in any suit or in any civil or criminal proceedings, upon the ground that the
answer to such question will criminate, or may tend directly or indirectly to criminate, such
witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty
or forfeiture of any kind:

Provided that no such answer, which a witness shall be compelled to give, shall subject
him to any arrest or prosecution, or be proved against him in any criminal proceeding,
except a prosecution for giving false evidence by such answer.

Explanations:
 Privilege for Witnesses: This Article further extended the Privilege to the Witness that if
he is compelled to answer any Question, Such answer would not be used in following
situations;
a. To arrest him, or
b. To initiate prosecution against him, or
c. In any criminal proceedings against him
 General Applicability: This Article is applicable in both Civil and Criminal Proceedings
 Mandatory to Answer: A witness cannot refuse to answer questions relevant to the
matter in issue on the grounds that the answer might;
a. Incriminate him (directly or indirectly) or,
b. expose him to penalties (directly or indirectly) or
c. expose him to forfeiture of any kind (directly or indirectly)
 Exception: Prosecution for giving false Evidence (Perjury) may be initiated against him.
 Scope: The witness is bound by this strict mandate in Art. 15 to answer the questions
asked in Criminal and Civil Proceedings, while the proviso affords such witness a
protection to encourage him to come forward and help in administration of justice.

Illustration
1. A witness admits under oath to forging a document but cannot be arrested or prosecuted
for this admission, except for lying under oath (perjury).
 Case Law-1
Citation
 2016 PTD 2043, Lahore High Court
 Decided on April 22, 2016, by Justice Syed Mansoor Ali Shah and Justice Shujaat Ali
Khan.

Facts of the Case:

The Directorate of Intelligence and Investigation, Inland Revenue, investigated fraudulent tax
adjustments by M/s Pearl Enterprises. The registered person caused significant financial losses
to the national exchequer. Aslam Hashim Butt, the advocate representing the registered person
before the Commissioner, Inland Revenue, was summoned under Section 37 of the Sales Tax
Act, 1990, to disclose the identity of his client. The advocate refused, arguing that such
disclosure violated attorney-client privilege under Article 12 of the Qanun-e-Shahadat Order
(QSO), 1984. A single bench of the Lahore High Court quashed the summons, prompting the
department to file an intra-court appeal.

Arguments:
 Appellant (Directorate of Intelligence): The department argued that the client’s identity
was crucial for the investigation and that attorney-client privilege under Article 12 did
not extend to disclosing basic information such as the identity of a client. They
emphasized that this information was necessary to pursue individuals responsible for
defrauding the national exchequer.
 Respondent (Aslam Hashim Butt): The advocate maintained that revealing the client’s
identity would breach privileged communication and undermine the fiduciary nature of
the lawyer-client relationship. He contended that the summons was unlawful since he
was not personally involved in the alleged offense and that professional ethics
prohibited him from complying.

Decision and Reasons Given by the Judges:

The Lahore High Court dismissed the intra-court appeal and upheld the decision of the single
bench. The judgment was based on the following key reasons:
1. Attorney-Client Privilege (QSO, Article 12): The court emphasized that privileged
communication between a lawyer and client is a cornerstone of the legal system,
enshrined in Article 12 of the Qanun-e-Shahadat Order, 1984. This privilege applies not
only to the content of communications but also extends to client identity if disclosure
would prejudice the client’s case. The judges noted that compelling such disclosure
would erode trust in the legal profession and disrupt its ethical framework.
2. Fiduciary Relationship: The court highlighted the fiduciary nature of the lawyer-client
relationship, which demands confidentiality. It held that the entire legal system could
collapse if lawyers were forced to disclose privileged information, as no client would feel
secure in seeking legal advice.
3. Professional Ethics and Bar Council Rules: Under Rule 134 of the Pakistan Legal
Practitioners and Bar Councils Rules, 1976, advocates are ethically bound to maintain
confidentiality about matters learned during their engagement.
4. Investigative Powers of the Department: The judges clarified that Section 37 of the
Sales Tax Act, 1990, empowers officers to summon individuals for evidence or
documents. However, this power does not extend to compelling an advocate to disclose
privileged information unless the advocate is personally involved in the offense under
investigation.
5. Alternative Avenues for Investigation: The court advised the department to pursue
other means, such as summoning the registered person directly or using available
investigative tools, instead of breaching the advocate-client privilege. It stressed that
compelling the advocate to reveal the client’s identity was neither lawful nor necessary.
6. No Involvement of the Advocate in the Crime: The court found no evidence suggesting
that the advocate was involved in the alleged fraudulent tax adjustments. Since his role
was limited to legal representation, the summons issued to him was unjustified.
7. Constitutional Protection (Article 10-A): The court highlighted the constitutional right
to a fair trial under Article 10-A of the Constitution of Pakistan. It held that forcing the
advocate to disclose the client’s identity would undermine this right and prejudice the
client’s case.
8. Universal Recognition of Privilege: Drawing upon international jurisprudence,
including cases like *Upjohn Co. V. United States* (1981) and *Regina v. Derby
Magistrates Court* (1995), the court reaffirmed that attorney-client privilege enjoys
universal recognition and is vital to the administration of justice.
 Case Law-2
Citation:
 PLD 1990 Karachi 173,
 Decided on August 31, 1989, by Justice Sajjad Ali Shah of the Sindh High Court.

Facts of the Case:

Dr. Asaf Hussain Jafri, the complainant, was the landlord of premises rented out to Khawaja
Tariq Siddique under an agreement dated 1st September 1972. He filed a rent case against the
tenant for eviction based on default and personal need. The eviction was granted on the ground
of default, but the issue of personal need was ruled against the complainant as he did not
testify in the case. The tenant appealed against the eviction order (FRA No. 992/83) in the Sindh
High Court. The complainant engaged Advocate K.B. Bhutto to represent him in the appeal. On
22nd November 1987, the appeal was disposed of by a consent order, which remanded the case
to the Rent Controller for fresh proceedings on the issue of personal need. The complainant
later claimed that his counsel had no authority to consent to the remand and alleged that he
was engaged only to argue the appeal on the issue of default.

Initially, the complainant accepted the remand order and contested the case before the Rent
Controller on the issue of personal need. However, after the Rent Controller ruled against him,
he raised objections to the consent order. He filed a complaint with the Sindh Bar Council and
also initiated contempt proceedings against his counsel, alleging misconduct and unauthorized
consent.

Arguments
 Complainant’s Arguments: The complainant alleged that the consent given by the
advocate to the remand order was unauthorized and against his instructions. He claimed
that the advocate was engaged solely to argue the appeal on the issue of default and
had no authority to agree to remand the case on the issue of personal need. He further
accused the counsel of acting under compulsion or pressure from the court, as reflected
in a letter the counsel wrote to him explaining the circumstances of the remand order.
  Contemner’s Defense: The advocate, K.B. Bhutto, defended his actions, arguing that the
consent to the remand order was given in the best interest of his client. He maintained
that the remand provided an opportunity for the complainant to present fresh evidence
on the issue of personal need. The advocate denied being coerced by the court and
stated that the complainant initially accepted the remand order and participated in the
subsequent proceedings without protest. He also argued that his letter to the
complainant explaining the circumstances of the remand was part of privileged
communication protected under Article 12 of the Qanun-e-Shahadat Order, 1984.

Decision and Its Reasons

The court dismissed the contempt case and acquitted the advocate, holding that the allegations
against him were not proven.

1. No Compulsion or Unauthorized Consent: The court found no evidence to support the

complainant’s claim that the advocate acted under compulsion from the court. The
letter written by the advocate did not suggest any pressure or coercion but merely
explained the factual circumstances leading to the remand order.
2. Privilege of Communication (Article 12, QSO): The court emphasized that the letter
written by the advocate to his client was a confidential communication protected under
Article 12 of the Qanun-e-Shahadat Order, 1984. It criticized the complainant for
breaching this privilege by submitting the letter to the court as evidence. The judge
noted that such actions undermine the sanctity of the lawyer-client relationship.
3. Lack of Bona Fides by the Complainant: The court observed that the complainant
initially accepted the remand order and participated in the proceedings before the Rent
Controller without objection. His protest arose only after the decision went against him.
This delayed objection demonstrated a lack of bona fides (good faith) on the part of the
complainant.
4. Consistent Defense by the Advocate: The court noted that the advocate’s version of
events was consistent throughout the proceedings and supported by evidence, including
the testimony of the opposing counsel, Mr. Khalid Ishaq. The court held that the
advocate acted within his professional capacity and in the best interest of his client.
5. No Contempt of Court: The court ruled that the advocate’s actions and his letter did not
constitute contempt as defined under Section 3 of the Contempt of Court Act, 1976. The
letter did not scandalize the court or lower its authority, nor did it impute any improper
motives to the judge.