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Criminal Revision No. 456 of 1959, decided on 4th November 1960

Ss. 497 & 498‑Adultery----- Strict proof necessary of complainant's marriage‑Mere production of Nikahnamah or mere production of photograph of woman without any witness stating it was that of complainant's wife‑Not enough. The first ingredient of the offence of adultery is that the prosecution must prove that the woman was the wife of the complainant and the accused knew and had reason to believe that she was the wife of the complainant. Strict proof in this respect is necessary. Mere production of a "Nikahnama" is not enough nor mere identification of a photograph of the woman alleged to have been found living with accused sufficient unless the persons identifying the photograph specifically mention at the same time that the photograph was that of the wife of the complainant.

S. 342‑Court should ask accused specific questions and not depend upon sugges tions and implied inference.

S. 428‑Additional evidence at appellate stage‑Evidence although not formal but judged by Court to be essential for just decision of case‑May be introduced even at late stage.

Under the scheme of the Criminal Procedure Code, 1898 a duty is placed on the Court not merely to listen to the evidence, but to inquire into the truth of the matter and so to secure justice. Accordingly if any restriction is to be placed upon the power conferred on the appellate Court by section 428 of the Code it certainly cannot be, that negligence or inadvertence on the part of the prosecution is to be allowed to effect a miscarriage of justice; on the contrary the enactment is, like the other provisions contained in the Code, directed to the attainment of justice even at a late stage in the proceedings by the introduction of further materials which the Court judges to be essential to a just decision of the case. The appellate Court is by no means condemned to countenance a miscarriage of justice because the prosecutor or even the trial Court fails to realise the necessity of bringing certain evidence on the record, even if that evidence is not purely formal.

A I R 1925 Pat. 526 rel.

Technical irregularity by trial Court in not properly examining witness‑May be remedied by ordering proper examina tion by trial Court and not by retrial.

Rajaram v. State A I R=1954 All. 214; Sochiram v. Emperor A I R 1938 Pat. 39 and Executive Officer, Municipal Board, Ghaziabad v. Harsaran Dad A I R 1940 All. 19 considered.

Ishwar Prasad v. Emperor A I R 1918 All. 133 rel.

Anis Yusuf for Applicant.

Murtaza Hussain for A. A. G. for Respondent.

Dates of hearing: 8th & 9th August 1960 and 10th & 28th October 1960. .

This is an application in revision by Nawab Yusuf against the Judgment of the Sessions Judge of Karachi upholding the conviction of the appellant under section 49.7, 1'. P. C. and sentencing him to 6 months .R. I.

2. The facts of the case are that a complaint was filed by Hamid Hussain against the applicant and Mst. Rabia Sultana for offences under section 497/498 read with section 109 P. P. C. The Additional District Magistrate in whose Court the Complaint was filed, issued process against Nawab Yusuf. The allegation was that the applicant kept the wife of the complainant in a house in which both the applicant and the wife of the complainant lived as husband and wife and committed adultery. An application was also made for the production of the two minor children of the complainant from the wife Farooq Sultana under section 100 Cr. P. Code, on 25th April 1958. The complainant submitted a list of witnesses on 10th June.

3. Complainant Hamid Hussain, P. W. 1, stated that he was married to Farooq Sultana daughter of Commander Ismail Jan on 29th October 1948. They both lived happily as husband and wife till July 1954. Mst. Rabia Sultana was her step‑mother and she used to poison the ears of Farooq Sultana against the com plainant with the result that she left his home in July 1954, and took away the two minor children with her. She started living with her father. The accused used to visit Farooq Sultana occasionally in the house of her father, with the result that they both started living as husband and wife in various places in Karachi.

4. She filed a suit for dissolution of marriage against her husband. The Court refused to annul the marriage but decreed Rs. 5,000 as dower. A complaint was filed in April 1958,. but it is alleged that adultery started from the year 1954. The delay in filing the complaint was due to the fact that the complainant did not want to rush to Court as it was bound to bring dishonour to the family.

5. On behalf of the prosecution, complainant Hamid Hussain, P. W. 2, Major Paul, Commander in the Inspectorate of Army Stores, P. W. 3, M. A. Rashid, Assistant Aerodrome Officer, Karachi, P. W. 4 Akram Abbas, S. I. Airport, P. W. 5 Sikandar Ahmad Masood, P. W. 6 Mohammad Iqbal, P. W. 7 Habibullah Khan, Assistant Armament Supply Officer and P. W. 8 Saleemullah were examined.

6. The accused denied the charge and pleaded not guilty. He produced D. W. 1 Abdul Samad, D. W. 2 Mohammad Sarwar and D. W. 3 Bashir Akhtar Malik in defence.

7. The learned Magistrate who heard the case came to the conclusion that both the accused and Mst. Farooq Sultana lived together as husband and wife under the assumed name of Mr. and Mrs. Yunus, and that adultery in such cases could not be proved by direct evidence but could be presumed because they passed their nights together in the same room and there was none else in the house. He further thought that there was no question of compromise and consent because the complainant was merely waiting for the time to get all the necessary evidence. The Magis trate accordingly found the applicant guilty and sentenced him to rigorous imprisonment for six months.

8. The learned Sessions Judge agreed with the finding of the learned Magistrate that marriage between the complainant and Mst. Farooq Sultana was subsisting at the time she went over to live with the accused.

9. The learned Sessions Judge believed the statements of the witnesses. Both the Courts have believed the story that the applicant had rented a house near the Airport where he lived with the wife of the complainant Farooq Sultana as husband and wife under the assumed name of Mr. & Mrs. Yunus. Both the Courts below believed that by so living together there was no other con clusion possible, except that the accused had committed adultery with her.

10. The learned counsel for the accused urged the following points for consideration. Firstly, that the charge was defective in as much as the place of occurrence was not given in the charge sheet. Secondly Farooq Sultana was not called as a witness to support the prosecution case, and in case where her photograph was shown to the witnesses, the photograph was only a printed copy of the original negative, and it was not put to the accused. Thirdly, that the prosecution witnesses were liars, and lastly the two Courts below had given a perverse finding.

11. I have heard the learned counsel for both sides at length and gone through the evidence in the case. In my view there has been a material irregularity in the trial of this case in as much as it was not established at all that the woman alleged to have been found living with the accused was the wife of the complainant.

12. The witnesses who gave evidence in this case are:

(1) The complainant Hamid Hussain. His evidence does not disclose anywhere that Mst. Farooq Sultana found to have been living with the accused was produced in Court and that he admitted that she was his wife.

13. There is no doubt that he produced a "Nikahnama" that he married one Farooq Sultana daughter of Commander Jan Saheb, but it was necessary for the prosecution in this case to prove that Farooq Sultana the woman who was arrested along with the accused was the wife of the complainant Hamid Hussain and strict proof of this fact was necessary.

14. The second witness is Major Paul. On 15th July 1958, the Court wanted to put the question to Major Paul whether Farooq Sultana was the same woman as introduced to him as Mrs. Yunus, but the woman was found to be absent on that day, and on the next hearing namely 22nd July 1958, Major Paul identified a photograph Exh. P. 3 as that of Mrs. Yunus. It is not clear who produced this photograph Exh. P. 3; who was the photographer and no negative was produced. It is not stated by anyone that Exh. P. 3 was the photograph taken of the wife of the complainant. The evidence of Major Paul therefore does not prove that the accused lived with the wife of the complainant. Major Paul himself was not personally aware to whom Hamid Hussain the complainant was married.

15. Mr. Rashid, another witness, an Assistant Aerodrome Officer, also was not put the question whether the woman whom he saw living with the accused as Mrs. Yunus was the wife of Hamid Hussain. At one place in the statement of this witness it appears that he was shown the photograph Exh. P. 3 and he said that it was the photograph of Farooq Sultana, but it was necessary for the Court to have put this question to him whether the photograph Exh. P. 3 was that of the wife of the complainant. The words used by the witness are:

"I have seen Farooq Sultana. I recognise her face. Exh. P. 3 is her photograph."

But the most crucial point was whether this Farooq Sultana whom he had recognised was the wife of Hamid Hussain. Simple identification of the photograph would not be enough.

16. Similarly another witness Saleemullah also identified the photograph of the woman who was living with the accused, but no question was put to him whether the photograph was of the wife of the complainant.

17. It has been given in evidence by the complainant that the woman was living as Mrs. Yunus with the accused and she had also got a baby as a result of illegitimate connection, but there is no evidence at all to prove this fact. The doctors who attended on the woman expressed their inability to recognise the face of their patients.

18. Similarly another witness Muhammad Iqbal who also found a woman living with the accused and stated that her photo graph was the same Exh. P. 3, could not say whether the photo graph was of the complainant's wife. The witness further said that he had never any talk with the woman.

19. Habibullah Khan, Assistant Armament Supply Officer, deposed that he knew the complainant and his wife and he could recognise the wife if he saw her photograph. He had seen the woman going with the accused once in a Bus. He, however, is a subordinate of the complainant. He admitted that he was never introduced to the complainant's wife because Purdah was observed. Surprisingly enough the photograph Exh. P. 3 was not put to this witness and he could not say whether the photograph was of his wife or not.

20. Mohammad Hussain in whose house the accused is said to have lived with the wife of the complainant was not pro duced. On the contrary Abdul Samad, D. W. 1, a person living near the quarter where it is alleged that Farooq Sultana was found was produced by the defence and he said that he never saw the accused living there.

21. Mohammad Sarwar, another witness for the defence, who was living about 100 paces away, also could not say whether the accused and the wife of the complainant lived together, but that he never saw the accused living with the wife of the com plainant.

22. Akram Abbas, the Sub‑Inspector who arrested the woman Farooq Sultana also does not say that Mst. Farooq Sultana, whom he found near about the house in which it was alleged that she was living with the accused, was the wife of the complainant. His statement does not by any means suggest that the woman who was living with the accused in the same house as husband and wife was the wife of the complainant.

23. The learned counsel representing the accused urged that Farooq Sultana was not called as a witness. If she was not supposed to give evidence in favour of the prosecution, she should have at any rate been produced in Court so that the witnesses could say that she was the person living with the accused and was the wife of the complainant. It appears that no one cared to get the woman summoned to Court. She made an application that she was not well and that her presence may be excused. Some how or the other, a photograph Exh. P. 3 was brought on record, but no evidence was given to say that this photo was of Farooq Sultana wife of the complainant, and the source of this photograph was not made clear in Court.

24. The learned counsel representing the complainant said that the accused should have taken the objection in the Court below that Mst. Farooq Sultana whose photograph Exh. P. 3 was shown to the witnesses was not the wife of the complainant. It is true that the accused never challenged that Exh. P. 3 was not the Photograph of the complainant's wife.

25. The learned counsel representing the complainant further said that the cumulative effect of the entire prosecution evidence is that Farooq Sultana was identified by the prosecution witnesses by the photograph Exh. P. 3, although it was not said in so many words that this Farooq Sultana was the wife of the com plainant; secondly that as no other Farooq Sultana was meant, no question was apparently asked from the witnesses whether this Farooq Sultana was the wife of the complainant.

26. It is also evidence from the record that the accused was also not asked any question about his having lived with the woman whose photograph, Exh. P. 3. This photograph was not at all shown to him when he was examined by the Court under section 342, Cr. P. C. He was, however, asked if he lived with the complainant's wife, and he denied it.

27. The learned counsel representing the complainant urged that this omission on the part of the Court to put this question to the accused was not a material irregularity vitiating the trial because the accused really knew who Farooq Sultana was and he was not misled in any way. In my opinion, this contention cannot be accepted. This would lead to dangerous situations. It is the duty of the Court to ask specific question to the accused and not to depend upon suggestions and implied inferences.

28. The first ingredient of the offence of adultery is the prosecution must prove that the woman was the wife of the complainant and the accused knew and had reason to believe that she was the wife of the complainant. When the question was not put to the accused and the accused knew that the prosecution witnesses were giving evidence about a woman whose photograph was Exh. P‑3 and Exh. P‑3 was not proved to have been the photograph of Farooq Sultana, wife of Hamid Hussain com plainant, the accused would naturally be under the impression that he was not to fill the gaps in the prosecution case. If the witnesses had said in Court that Exh. P. 3 was the photograph of Farooq Sultana, wife of the complainant, the accused would have been under no misapprehension.

29. The difficulty in this case arises because of the omission in asking important questions from the witnesses as well as the accused. It is, therefore, clear that the conviction in this case cannot be allowed to stand.

30. The question, therefore, arises whether a retrial in this case should be ordered. The learned counsel for the accused said that in this case a retrial may result in prejudice to the accused in as much as the lacuna in the prosecution case could now be filled up.

31. A reference was made to some cases. In Rajaram v. State (A I R 1954 All. 214) a single Judge of the Allahabad High Court has held that in a revision against a conviction a retrial would not be ordered where the prosecution has failed to produce the right type of evidence to sustain a conviction so as to allow them an opportunity to fill up the lacuna in evidence.

32. In the above case Rajaram was in possession of illicit liquor. Although there existed a report of the Excise Inspector, yet the report was silent about the strength necessary to make it illicit. The High Court declined to order a retrial. It would appear that in this case the basis of the prosecution case did not exist.

33. The next case quoted was a judgment in Sochiram v. Emperor (A I R 1938 Pat. 39). In this case the prosecution failed to adduce the necessary evidence which would justify the conviction of the accused. It was held that no further opportunity could be allowed to the prosecution to fill in the gaps deliberately left by them by remanding the case for a retrial. The learned Judge held that the prosecution should have realised that they were required to produce all the evidence available in order to bring home the charge to the accused, and they could not be allowed to produce evidence at their pleasure piecemeal. Here the only thing left was an important question regarding the identity of the woman.

34. The third case quoted was the case of the Executive Officer, Municipal Board, Ghaziabad v. Harsaran Das (A I R 1940 All. 19) in which it was not thought advisable to order a retrial because the prosecution had been launched not with any desire to vindicate the law in the public interest but only with a view to humiliate the accused who has been sufficiently punished for the offence committed by him by having had to undergo the trial, and the interests of the public have been sufficiently protected for the future.

35. There is, however, another case Ishwar Prasad v. Emperor (A I R 1918 All. 133) decided by Tudball, J. in which one Ishwar Prasad was convicted of an offence under section 411, I. P. C. by a Second Class Magistrate. He appealed against his conviction to the District Magistrate who directed the case to be retried in another Court in accordance with law. In ordering the retrial the learned District Magistrate observed:‑‑

"that from its appearance the case would seem to have been hurriedly tried and one in which the evidence is deficient. In particular it is not clear why the evidence of the ekkawala who was present at the search, was not taken as he is one of the main witnesses whose evidence is intended by law to be of importance in a case of this type. The procedure adopted is open to criticism. It is necessary that the case should be re tried."

36. The learned Judge of the Allahabad High Court thought that the only defect was that certain evidence had not been brought upon the record which ought to have been there. The learned Judge held that it would not be quite fair to the accused in the present case to direct his retrial. There was only one witness left for examination and a few questions to be put to the police officer who conducted the case. He, therefore, ordered that instead of the trial Court retrying the accused, the District Magistrate might summon the witnesses named by him in his report, examine them and after so doing, to decide the question of the appellant's innocence or guilt. The idea of summoning the prosecution witnesses before the trial Court was not favoured.

37. In this case all those witnesses who have said that the accused was living with a woman whose photograph is Exh. P‑3 as Mr. and Mrs. Younas, and who had recognised the photograph Exh. P‑3 of the woman, would have to be produced in Court, examined, cross‑examined and re‑examined, if necessary. The learned counsel representing the State vehemently suggested that the sentence in the statement of P. W. Rashid that he knew Farooq Sultana, whose photograph is Exh. P‑3 should be considered sufficient for the identification of Farooq Sultana, the wife of Hamid Hussain complainant. I am unable to accept this view.

38. It seems to me that the trial Court did not attach much importance to the question of identification of the woman. The trial was protracted and long, and perhaps this important question slipped out of the mind of every one. The complainant claimed that Farooq Sultana had come in Court and was actually identified by P. W. Rashid, who said that Exh. P. 3 was her photograph. There was no other Farooq Sultana meant during the course of the proceeding, except the wife of Hamid Hussain, and therefore reference to Farooq Sultana should be considered as reference to the wife of the complainant, Hamid Hussain. According to the complainant, nobody disputed in the trial Court that Exh. P. 3 was not the photograph of the wife of the complai nant. It appears to me, however, that the most material question whether the woman living with the accused, whose photograph was Exh. P‑3, was the wife of the complainant was not asked.

39. The question which now remains to be considered is whether this omission on the part of the Magistrate would be a mere technical irregularity or whether it cuts the root of the prosecution case, and whether, if the case is remanded, it would be tantamount to enabling the prosecution to fill the gap existing in the prosecution evidence.

40. I feel inclined to agree with Tudball, J. of Allahabad High Court that in this case in the interest of justice the technical irregularity should be remedied by the learned Sessions Judge by summoning the woman and the witnesses who had deposed that Exh. P‑3 was the photograph of the woman who was living with the accused.

41. There is no doubt that this case has not been properly conducted in the trial Court where the most material question was not put to the witnesses. Under the scheme of the Criminal Procedure Code a duty is placed on the Court not merely to listen to the evidence, but to inquire into the truth of the matter and so to secure justice. Accordingly if any restriction is to be placed upon the power conferred on the appellate Court by Section 428, quote the words of McPherson, J. in A I R 1925 Pat. 526 it certainly cannot be, that negligence or inadvertence e on the part of the prosecution is to be allowed to effect a mis carriage of justice; on the contrary the enactment is, like the other provisions referred to in the Criminal Procedure Code, directed to the attainment of justice even at a late stage in the proceedings, by the introduction of further materials which the Court judges to be essential to a just decision of the case. In my opinion, the appellate Court is by no means condemned to countenance a miscarriage of justice because the prosecutor or even the trial Court fails to realise the necessity of bringing certain evidence on the record, even if that evidence is not purely.

42. Under the circumstances, the only solution which seems to be equitable is to set aside the order passed by the learned Sessions Judge and direct him to exercise his powers in appeal and examine such witnesses as have deposed about the identity of the woman and of the photograph Exh. P. 3 and then to decide the whole case on merits afresh either way in accordance with law.

43. All the witnesses in this case need not be questioned on this point, but it would be necessary to ascertain in the interest of justice from those witnesses who have deposed about the photograph Exh. P‑3 and also from the complainant whether the photograph Exh. P‑3 was of the complainant s wife. It would be necessary to mention here that the accused should be‑ given an opportunity to question those witnesses and to explain further his position to Court.

44. With the direction given above, the order passed by the learned Sessions Judge is, therefore, set aside.

--Announced by me to‑day on behalf of Mr. Justice M. B. Ahmad.

K.B.A. Order accordingly.

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