1. ' In this case a witness had been summoned from the Income-tax Department, Lahore, for the purpose of giving evidence and producing some documents.While the witness has attended this Court, it is pointed out that the production of documents sought pertain to the assessment record of defendant No,1, Hussain Mumtaz, and that there is a prohibition in section 150 of the Income-tax Ordinance, 1979, whereunder, except in the exclusions provided, statements made, returns furnished or accounts or documents produced under the provisions of the said Ordinance or any evidence tendered or affidavit submitted or deposition made in the course of proceedings under the said Ordinance or any record of any assessment proceedings or any proceedings relating to a demand under the said Ordinance, have been treated to be confidential and no public servant is permitted, except as provided in the said Ordinance, to disclose any such particulars or matters.
2. Besides, notwithstanding the provisions of the Evidence Act or any other law for the time being in force, no Court or other authority, except as provided in the said Ordinance, is entitled to require any public servant to produce before it any return, accounts or documents contained in or forming part of the record relating to any proceedings under the said Ordinance or any record of the Income-tax Department jointly or in part thereof or to give evidence before it in respect thereof. In the exceptions to this rule, which are spelled out in subsection (3) of Section 150, itself, a number of situations are envisaged but none of them confers any power on a Court of Law to direct the production of any such confidential record etc., aforesaid.
3. ' Mr. Muzaffarul Haq, appearing for the plaintiff, points out that section 54 of the Income-tax Act, 1922 was the original provision on lines whereof Section 150 of the Income-Tax Ordinance 1979, has been enacted and, therefore, case law in respect of section 54, would be relevant in the context of interpretation of section 150 ibid. The contention is properly based and is acceptable in that where two Statutes cover the same field successively and are in parti materia, the provisions of one, where synonymous with or comparable to those of the other, can certainly be referred to with a view to ascertain the meanings and significance of the later provision with reference to the law earlier codified on the subject. Case law, a priori, reflecting on the earlier provision can also be referred to for aid and assistance.
4. ' Learned counsel for the plaintiff, accordingly, relied on the undermentioned dicta on section 54 of the Act of 1922.
5. ' In the case of Promatha Nath Pramanick v. Nirode Chandra Ghose ((1939)
7. I.T.R. 570) Pankridge, J., in the context of section 54 ibid, held that the object of the section to assure confidentiality was that the Department may not disclose the relevant particulars "save with the express consent of the assessee" but then the privilege was one which the assessee may waive if he thought fit so to do. It was , however, opined that it would be impermissible for a joint assessee to use a copy of the assessm ent order in contentious proceedings between the assessees. Assuming that such an order was a public document it could not for that reason alone be inferred that it was one to which the public or specified members thereof could have a right of access.
6. ' In a Full Bench decision from the Madras jurisdiction in the case of Rama Rao v. Venkata Ramayya ((1940) 8 I.T.R. 450), the learned Judges of the Madras High Court came to the conclusion that whereas it was not permissible to summon the record and proceedings of the Income-tax Department in relation to the assessment of a particular individual, it was permissible for that individual to produce relevant certified copies, including that of the Income Return, as the income tax record consisted of public documents certified copies whereof could be obtained, produced and relied upon by the Assessee.
7. ' Reliance is next placed on the case of Suraj Narain v.Seth Jhabhu Lal and others, reported in ((1945) 13 I.T.R. 13), in which the rule laid down is that the documents specified in Section 54 being confidential, no Court shall require a public servant to produce the same but that could not preclude an assessee from filing a certified copy of the assessment order in relation to himself to show that he is partner in a particular firm.
8. ' Reliance is lastly placed on the case of Buchibai v. Nagpur University, (1947) 15 I.T.R. 150) which also lays down that whereas there is a prohibition insofar as officials of the Income-Tax Department are concerned from producing the exempted documents or to tender evidence about such documents, it is open to an assessee to waive such right and to give evidence pertaining to the relevant record in that behalf. This is more so as statements recorded or orders passed by Income- tax Authorities are public documents as defined in section 74 of the Evidence Act. It was further held that under section 76 of the Evidence Act, in order to qualify as public documents, it was not necessary that the public generally should have a right to inspect such documents or record and that it was sufficient if any single individual had such a right.
9. The underlying principle in section 54 of the Income-tax Act, 1922 and its corresponding provision in section 150 of the Income-tax Ordinance, 1979, therefore, is that the confidentiality of the record and proceedings of the Income-tax Department pertaining to assessee (s) is restricted between the Department and all or any third parties alone and that such confidentiality does not go beyond and the record and proceedings comprising of public documents as they do, certified copies thereof can be obtained by the assessee which he is free to use anywhere, for the privilege, being restricted to himself, is capable of waiver by him.
10. ' Learned counsel for the plaintiff contends that, in view of the foregoing, it is permissible to the Court to direct the Defendant No,1 to obtain the certified copies of the Income-tax Returns filed by him in the context of the relative period (s) as also of the orders passed in such proceedings and that thereafter it would be within the powers of the Court to require Defendant No,1, to file such certified copies, which course of action, if followed, would entirely meet the ends of justice and the requirements of law. This contention, however, overlooks the fact that what is not permissible directly cannot be undertaken indirectly and what is prohibited cannot be divested of such prohibition merely by adoption of a circuitous and, may be, even a questionable course. If certain proceedings or record are deemed by law to be of a confidential nature, it is not normally permissible to denude such proceedings or record of their confidentiality. In fact the norms laid down in the nature of Principles of State Policy and Fundamental Rights, as enshrined in the Constitution, preclude any Court or Authority from encroaching upon the privileged domain reserved to the citizens of Pakistan and any interference with such rights will constitute violations of a serious nature touching upon the liberties and Fundamental Rights guaranteed to the citizens.
11. ' Learned counsel relies upon the following referring observation in the Madras Full Bench Case:- "If it has been so given then by the terms of Section 65 of the Evidence Act it is, no matter who produces it, good evidence of the original, provided that the original is a public document; and we do not think that consideration of public policy can warrant its exclusion from evidence."
12. ' But this observation was expressly made subject to the "prohibition against disclosure in Section 54" and is no license for a direction from a Court of Law to an Assessee to produce a document which the law classified as confidential and which can be withheld by him if he so chooses.
13. I am, therefore, of the view that such a direction as asked for by the I plaintiff cannot be issued to defendant No,1.
14. ' The next contention of Mr. Muzaffarul Haq for the plaintiff. Is that he had served a notice under Order 12, Rule 8, C.P.C., and in virtue of service of such notice a direction in the nature asked for can be issued. However, Mr.Afzal Nabi, appearing for the defendants, points out that the provision of Order 12, Rule 8, C.P.C., is only meant for production of a copy in the event the original is not produced by the recipient of notice under that provision provided ways that the addressee of the notice is obliged to produce such original and is not protected by any law. I think, this is a correct exposition of law and, that being the case, even a purported copy of such Return or Order, as is excepted by section 150 of the Income-tax Ordinance, 1979, cannot be sought to be produced by the plaintiff because law does not oblige the defendant No,1, to produce the original or certified copy of such document.
15. However, before parting with this subject, it would be in the interest of justice for me to point out that if arid when the defendant No,1, is in the witness-box, it may be open to the plaintiff to put across suggestion (s) to that defendant in his capacity as a witness under cross-examination and this may cover the question as to what he may or may not have stated in his Income-tax Return for a particular or specified period. Mr. Afzal Nabi even objects to such a course being followed and maintains that a witness under cross-examination can only be confronted with specific docuni,ent
(s) and can be made to answer with regard to the same and if a document is not available, such confrontation cannot be made. This objection, however, overlooks the fact that a witness may be asked a question with regard to his previous statements to impeach his credit and it is irrelevant whether the same may have been made orally or in writing and, if the witness desires to refresh his memory, he can refer to such copies as he may have kept with himself or be in a position to obtain by exercise of ordinary diligence. If the witness's answer to such a question be one, which is confirmed by a document to which he alone can have access he can produce such a document in support of his averment or deposition but, if that be not so, or if there be some provision which protects him, he may choose not to produce a certified copy which he could be in a position to produce, and the matter would then rest at that and such inferences, if any, may be drawn in accordance with law. But this will and can only be for the Court which finally hears and determines this case. This is an observation which binds nobody and least of all the Judge in the particular case in which such a question is put and who records the resultant answer. This is also subject to the power of the Court to put such questions to a witness as the Court may be competent to.
16. With the foregoing observations, I discharge the witness of the Income-tax Department who has appeared in response to the summons of this Court and reject the aforementioned contentions of the learned counsel for the plaintiff. This case shall now stand adjourned to a date in office for further proceedings.
17. ' In conclusion, it has been pointed out by Mr. Afzal Nabi that on a previous occasion, in this very Suit, one S.M. Manzoor Ali had been summoned from the Income-tax Department, who came and deposed in the Court in regard to the assessment proceedings pertaining to the National Tyre and Rubber Company, from 1948 upto 12-5-1981, i.e, the date of the deposition. It is pointed out that on that occasion also an objection was raised by such witness to a question put to him regarding the assessed income for the year 1948-49. In that context the witness sought the protection of section 150 of the Income-tax Ordinance, 1979, and such protection was conceded to by the then learned counsel for the plaintiff. The pointation of Mr. Afzal Nabi is relevant and, in fact, imposes an element of consent on the part of the plaintiff in respect of the order which has been passed, as above.
18. However, on such pointation and consequent recourse to record, I find that witness, S.M. Manzoor Ali, did depose about the assessm ent proceedings pertaining to National Tyre & Rubber Company, which he said was a proprietorship concern and which also, according to the view which I have expressed, he was not obliged to say.