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Criminal Original No. 1 of 1962, decided on 24th April 1962.
‑(High Court of West Pakistan)‑Complaint instituted before Additional District Magistrate‑Transferred, by High Court, en complainant's application [S.526, Criminal Procedure Code (V of 1898)] to itself, for trial, while complainant had not yet been examined by Additional District Magistrate, under S. 200, Criminal Procedure Code (V of 1898)‑Trial held by High Court, whether in exercise of "Extraordinary Original, Criminal Jurisdiction"‑Letters Patent (Lahore), cl. 17.
‑"Open Court"‑[Trial in High Court (accused, Commissioner of a Division) under Ss. 497 & 498, P. P. C.]‑Complainant's request for trial being held in a camera, declined.
‑Accused called upon (by High Court) "by notice", instead of "summon" or "warrant", to appear to answer complaint under Ss. 497 & 498, P. P. C. transferred to itself from Court of Additional District Magistrate‑(Accused, Commissioner of a Division).
First complaint under Ss. 497 & 498, Penal Code (XLV of 1860)‑Subsequent complaint under S. 494‑Hearing of later complaint postponed till after disposal of earlier complaint.
‑Witnesses for prosecution‑Some recalled more than once for examination and cross‑examination‑Witnesses summoned on more than one application, by complainant, accused ‑ Criminal Procedure Code (V of 1898), Ss. 252, 257.
‑Accused examined on "six" occasions, three of which related to statements of a formal nature.
‑Accused cannot be called upon to answer any question at beginning of proceedings‑Not allowed to file "written statement" at such stage.
‑Wife's answer to husband's inquiry about "love letter" written by third person to wife‑Husband not permitted to disclose in prosecution of third person for adultery‑Husband's statement re such answer recorded in initial statement as complainant, held, "could not be brought on record".
(Adultery; enticing away married woman)‑Wife examined as "Court witness"‑Criminal Procedure Code (V of 1898), S. 540‑Power of Court to examine any person as witness "unlimited".
‑Offences under Ss. 497 & 498, P. P. C ‑Alteration in charge of date of offences from 31‑12‑1961 to 30‑12‑1961‑Not regarded as "material".
‑"Court witness" (complainant's wife alleged to have been "enticed" away by accused) allowed to be re‑cross‑examined, after charge, by both parties‑Evidence Act (I of 1872), S. 165.
‑Examined, as Court witness in case in which Advocate was counsel of accused‑Touching matter forming part of "whispered conversation" between Advocate and Court witness (wife of accused) while latter was in witness‑box.
"Legal" actions of‑Whether can be styled "improper" by counsel or Appellate Court.
It is not open to anyone except an appellate Court to point out to the presiding officer of a Court that any of his actions was improper, though it was open to the parties and their counsel at any stage to point out to him that what he had done offended against the law of the land and was, therefore illegal.
The law either allows a thing or it does not. If the latter is the case, it is obvious that a Judge doing it lays himself open to the charge of having done a thing which the law does not allow and his action can receive stronger epithets than improper. If, on the other hand, a thing done by a Court is allowed by law, there is no ground valid in law on which the thing done can be described by anyone including an appellate Court to be improper, when even the appellate Court is bound by the same law by which the trial Court was.
An appellate or revisional Court would judge actions of Courts from the standards set down by law rather than by those set down by anything else even though that other thing may be the decision of the highest Courts in Pakistan or abroad provided the Courts of ultimate jurisdiction in Pakistan had not said that the thing done was not allowed by the laws in force in Pakistan.
‑No bar to Advocate being examined as witness in case in which he is engaged‑Evidence Act (1 of 1872), S. 118.
‑"Client" means "party to a proceeding"‑" Witness" is not "client"‑Communications between "witness" and Advocate not protected.
‑Evidence Act (I of 1872), S. 165‑Give "unlimited" powers to Courts to examine or re‑call witnesses in order to arrive at truth‑Courts not to sit as "unconcerned statues"‑[Adan Haji Jama and others v. The King P L D 1947 P C 381 considered].
Section 540, Cr. P. C., 1898 and section 165, Evidence Act, 1872 give the Court unlimited powers to arrive at the truth. The person who has to give a decision is not to sit entirely unconcerned during the proceedings like an unthinking statue.
Section 540 of the Code of Criminal Procedure not only authorises but makes it a bouden duty of Courts to call as witnesses persons whose evidence appeared essential to the just decision of the case and section 165 of the Evidence Act gives ample power to ask any question of any witness.
The expression "judicial detachment" does not mean that judicial officers holding criminal trials should either be dummies or act merely like referees in boxing bouts ; the expression means only that the action of judicial officers with regard to a trial should be actuated by no other motive but a desire to do justice between the parties. The invocation of the oft‑invoked judicial maxim to the effect that justice should not only be done but that it may be seen to be done would not be apt in a case where the Court has followed the law because in a Court of law justice means neither more nor less than the administration of the law of the land.
Adan Haji Jama and others v. The King P L D 1947 P C 381 considered.
Fazal Ellahi and others v. The Crown P L D 1953 F C 35 ref.
Cohabitation-- Man and woman merely living together, even though such union be as permanent as a marriage contracted in accordance with law--- Such cohabitation not protected by Ss. 497 & 498.
Sections 497 and 498 of the Pakistan Penal Code protect only a husband and not any other man who may have a woman living with him even though that union may in fact be as permanent as a marriage contracted in accordance with the law.
‑ Marriage ‑ Shia male marrying Christian woman, at Hull (England) before Registrar of Marriages-- Marriage, held, valid,
Held, that the contract of marriage entered into by a Shia man and a Christian woman at Hull (England) before the Registrar of Marriages was "perfectly valid"
The husband (in this case) who was prosecuting his complaint under sections 497 and 498, P. P. C. was not questioned as to whether he was an Asuli or an Akhbari Shia, but he claimed that he differed from the ordinary Imamias in that he followed the Quran in some respects in preference to some of the traditions followed by other Shias, adding that he did not believe in muta marriage at all.
Being of opinion that a person is generally the best witness about his religious beliefs and that his statement in this request was to be accepted unless the contrary was established, the Court accepted the above statement of the husband as to his religious beliefs.
The defence argument that Christians, believing in the Trinity, were Mushriks (polytheists) and that, therefore, such a marriage was invalid, was rejected as entirely untenable, the Court observing that for about 1400 years Christians had been held by all Muslims to be Kitahis.
Muhammadan Law by Amir Ali, 5th Edition, pp. 281, 282, also 3 paras. from "Introduction"; Principles and Precedants of Muhammadan Law by Macnaghten and Muntakhih‑ur‑Rasail In Persian, p. 107 rel.
Mulla's Muhammadan Law, 1961 Edition, p. 227. Note to para. 259 (based on Baillie 29, 40); Shariya‑al‑Islam (in Persian) considered.
‑Divorce (talaq)‑Shia Law insists on talaq being pronounced in presence of wife and two witnesses ---Written deed invalid‑Manner of pronouncing not a matter of "proof" but of "substantive law" affecting validity of talaq.
In order that a talaq given by a Shia male to his wife be valid, it must be pronounced in the presence of the wife and two witnesses and a written divorce deed would be invalid unless it be established that the husband was incapable of pronouncing the talaq in this manner. This is mentioned in all text‑books without exception.
It is not with regard to proof of divorce that the Shia law insists on two witnesses but to the very act of divorce and it cannot, therefore, be held that the requirement of the presence of wife and two witnesses relates to proof and not to substantive law.
‑Parties to marriage one of whom is a Christian‑Marriage can be dissolved only under Divorce Act‑(Muhammadan husband and Christian wife)‑[Farooq Leivers v. Adelaide Bridget Mary P L D 1958 Lah. 431 ref. Russ v. Russ (1962) 2 W L R 708 distinguished].
‑Wife's domicile is domicile of her husband-- Law of domicile of husband allowing oral divorce‑Such divorce if recognised as valid by Courts of country of domicile is binding on Courts of all countries‑[Muhammadan Law‑Divorce].
The domicile of the husband is the domicile of the wife, and the law applicable to a divorce is the law of the domicile of the parties which means the domicile of the husband. If the law in force in Egypt allowed a Muslim husband to divorce his Christian wife by word of mouth and that divorce had been recognised as valid by a Court of law in Egypt, that decision would be a decision which would be binding not only between the parties but on all the world and recognizable by Courts of all countries.
‑Christian wife of Muslim husband, becoming herself a Muslim‑Muhammadan Law of divorce
If a Christian wife of a Muslim has renounced her Christian religion for Islam, the Muslim law of Divorce would become applicable because both parties are Muslims.
Khambata v. Khambata I L R 69 Born. 278 ref.
‑"Citizens" of Pakistan‑Ordinance applies to all Muslims "residing" in Pakistan and Pakistani citizens elsewhere.
The Family Laws Ordinance of 1961 applies to all Muslims residing in Pakistan and to all citizens of Pakistan wherever they may be residing, whether in Pakistan or at any place outside Pakistan. This interpretation would not be against the well- recognised principles of law because the Private International Law regarding divorce is that the law of the domicile of the husband, which is to be presumed to be the law of the domicile of the wife, is applicable to a divorce.
‑Divorce becomes effective after 90 days of pronouncement‑(Muslim husband and Christian wife becoming a Muslim).
Marriage entered into by person in service of Government without previous permission of Government ‑ Not invalid.
"Proved"‑Question whe ther a fact is "proved", essentially one of fact and not of law‑Court's power to determine whether evidence is to be believed.
The question whether or not a fact is proved is essentially a question of fact and not of law, and in each case the statute dealing with evidence gives the Court before which evidence is given the power to determine whether the evidence is to be believed or not to be believed.
‑Presumption that person alleging change of religion had actually changed it‑Rebuttable by other evidence [Mst. Resham Bibi v. Khuda Bakhsh 40 P L R 722 considered].
Statement of‑To be taken with "great caution"‑Evidence Act (I of 1872), S. 45.
‑Disbelieved in another case‑Not "conclusive" for holding that witness is "untrustworthy", but finding of perjury in other case cannot but have effect on Court which has subsequently to assess witness's evidence.
‑Handwriting‑Expert being concerned to discover only "resemblances" between disputed writing and admitted writing‑Strong proof of "bias"‑Forged writing may "resemble" another writing‑Evidence Act (1 of 1872), S. 45.
‑Court may compare admitted writing with disputed writing.
‑ Handwriting ‑ Evidence not of a "conclusive" nature‑"Weak" evidence‑Evidence Act (I of 1872), S. 45.
‑"Without consent or connivance"‑Distinction between two sections with regard to existence of phrase in S. 497 and its omission from S. 498.
‑Adultery‑"Consent or connivance"‑Burden of proof on accused‑What amounts to "consent or connivance"‑Distinction between "connivance" and "condonation."
In a charge of adultery, if there is consent or connivance it is for the man charged to prove the same. If there was no consent or connivance the husband could only give evidence about a negative matter and his word alone would suffice and as soon as the husband said that he had not consented to or connived at the misdeed of his wife, the burden will shift to the shoulder of the man charged with adultery to prove that there was consent or connivance.
Consent is positive permission to do a thing while connivance may be defined as implied consent because it is an act of purposely shutting one's eyes to highly suspicious matters, which are obvious. If, for example, a husband on coming home finds his wife and a man in a nearly sexual embrace and instead of taking any action encourages this sort of thing by keeping out of the way when the man calls again, this would be connivance of adultery on his part. But there is a clear distinction between connivance at adultery and its condonation. If husband on learning of the fact that his wife has been in bed with another man forgives her on the condition that there was to be no repetition, this is a case of condonation and not of connivance of
read with S. 52-- Mistake of law, no defence even if committed in good faith‑Failure to make inquiry whether an alleged divorce deed was in the handwriting of the husband, where the deed obviously was in a suspicious hand‑Plea of "good faith" rejected, in prosecution for offences under Ss. 497 & 498, P. P. C.
"Enticement" "Coaxing" by letter included in expression.
‑"Platonic love."
read with S. 4, Evidence Act (I of 1872)‑Adultery‑Proof‑Inferences from circumstances.
‑Adultery charged in complaint, as having been committed on specific dates-- Evidence showing commission of adultery also previous to such dates‑Accused cannot be punished for adultery of such previous dates, though such adultery may be taken into consideration in matter of sentence.
‑[Accused occupying high official position].
‑Consecutive sentences of imprisonment in default of payment of fines awarded in two offences.
‑Fine imposed by High Court‑Expended in compensation to complainant, in meeting remuneration of amicus curiae, and in paying fees, of handwriting expert called at Court's instance.
letter to Court.
‑[Appeal to High Court from conviction recorded by Single Judge of High Court in exercise of original criminal jurisdiction]‑Case under Ss. 497 & 498, P. P. C., instituted before Additional District Magis trate‑Transferred by High Court, on complainant's application [S. 526, Criminal Procedure Code (V of 1898)] to itself for trial, while complainant had not yet been examined by Additional District Magistrate under S. 200, Criminal Procedure Code (V of 1898) Accused convicted by Single Judge‑Appeal, held, lies to High Court‑Certificate granted, "on facts and law" under S. 411‑A Counsel's request for grant of certificate ,for appeal to Supreme Court, rejected.
M. A. Rahman, Ijaz Husain Batalvi and S. M. Husain for Complainant.
Mahmud Ali and S. M. Zafar for Accused.
Norman Edmunds as amicus curiae.
Dates of hearing : 21st, 22nd, 24th, 26th 27th, 28th, 29th, 30th and 31st of March 1962,
The three persons mainly connected with this case, which has caused some stir in certain circles of society, are these
(1) Christa Renate alias Ruqayya, aged 28 years.
(2) Sayed Ali Nawaz Gardezi, a Shia Muslim, aged 34 years, and
(3) Lt. Col. Muhammad Yusuf, a Sunni Muslim, aged 48 years.
The lady was born in Germany but came to Pakistan in 1953 with Sayed Ali Nawaz Gardezi, with whom she had entered into a contract of marriage at Hull (England) before the Registrar of Marriages on the 21st of July 1951. Two children were born of this union before the couple came to Pakistan in 1953 and another was born some time later in Germany where they had gone from Pakistan. Syed Ali Nawaz Gardezi is the Manager of Siemens Engineering Company Limited, The Mall, Lahore, and has, perhaps for a number of years, been living in Gulberg. Lt. Col. Muhammad Yusuf was till recently the Commissioner of Quetta Division but is now on leave. In what follows Christa Renate alias Ruqayya wilt be referred to as the lady in the case, Syed Ali Nawaz Gardezi as the complainant and Lt. Col. Muhammad Yusuf as the accused.
2. The case is the outcome of a complaint instituted by the complainant in the Court of the Additional District Magistrate, Lahore, on the 5th of January 1962. In this complaint he leveled a charge against the accused of having enticed and taken away the lady in the case who the complainant said was and whom the accused knew and bad reasons to believe to be the wife of the complainant and of committing adultery with her. The two offences mentioned in the complaint which the complainant asserted in the complaint that the accused had committed, are punishable under sections 498 and 497 of the Pakistan Penal Code, respectively. These sections read as follows: ‑
"498. Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
"497. Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor."
3. The complaint was instituted in the Court of the Additional District Magistrate, Lahore, because the allegation of the complainant was that the lady in the case had been taken and enticed away from Lahore and only a Magistrate of Lahore would, have jurisdiction to deal with the complaint. The very day that the complaint was instituted in the Court of the Additional) District Magistrate, Lahore, Mr. Ijaz Husain Batalvi, Advocate, presented an application (Criminal Miscellaneous No. 47 of 19621 for transfer of the case to this Court with a view to its being hear by it in the exercise of its extraordinary original criminal jurisdiction. The application for transfer said that by reason of the fact that the person against whom the complaint had been lodged was a Commissioner of a Division, the Additional District Magistrate, Lahore may not be able to do complete justice between the parties. This application came up for hearing before me on the 5th of January 1962, and I passed an order that notice should issue to the accused and the record should be placed before me the next morning. On the 6th of January 1962, the record of the case was placed before me and the complainant and his counsel also appeared. On going through the record I found that the impression which I had formed at the time when I issued the notice to the accused on the previous day that he had been summoned already by the Magistrate was incorrect and that in fact no proceedings had been taken in the Court of the Additional District Magistrate. An affidavit to the effect that the Additional District Magistrate was delaying the hearing of the case was also presented before me on the 6th of January 1962 and arriving at the conclusion that the interests of justice required that the case should not be heard by a Magistrate, I directed its transfer to this Court, after which I proceeded to record the statement of the complainant on oath. When 'his statement finished, the complainant requested that the proceedings in the case should be held in camera and not allowed to be reported in newspapers. This prayer had been made by him not only in his application for the transfer of the case (Criminal Miscellaneous No. 47 of 1962) but also at the bottom of the complaint. As, however, I felt that the case was not of such a nature as to justify departure from the rule contained in section 352 of the Code of Criminal Procedure which is to tine effect that the place in which any criminal Court is held shall be deemed to be open Court unless the presiding officer directs otherwise. I declined to accept the request and allowed t representatives of the newspapers, who were present in Court, to take a copy of the statement made by the complainant. As it appeared to me that the allegations made against him were not incorrect, I issued a notice to the accused on the 6th of January 1962 to appear in this Court on the 22nd of January 1962. In spite of the fact that representatives of some newspapers had taken copy of the statement of the complainant, the proceedings were not reported in the press and as I felt that the newspaper had been prevailed upon by the complainant to keep the case out of the press in spite of my orders to the contrary, I directed the Deputy Registrar of this Court to make necessary inquiries from the managers of the newspapers concerned. In reply to the inquiry made by the Deputy Registrar, the managers of the newspapers sent letters to the effect that they had been directed by the Martial Law Authorities to refrain from reporting the proceedings of the case otherwise proceedings shall be taken against them. What transpired before me on the 5th of January 1962, however, was reported in the press. The report in the Pakistan Times, an English Daily of Lahore, dated the 6th of January 1962, which has been placed on the record and marked as Exh. P. 15, was as follows:‑
"COMPLAINT AGAINST QUETTA COMMISSIONER JUSTICE SHABIR CALLS FOR RECORDS OF CASE
"Mr. Justice Shabir Ahmad of the West Pakistan High Court on Friday ordered that the record pertaining to a complaint lodged by Syed Ali Nawaz Gardezi, Manager, Siemens Pakistan Engineering Co., against the Commissioner of Quetta, Lt. Col. Muhammad Yusuf Khan, under section 497/ 498, P. P. C. in the Court of the Additional District Magistrate, Lahore, should be placed before him today (Saturday) at 10‑30 a.m.
"Mr. Gardezi in his complaint under section 497, P. P. C. (adultery) and section 498, P. P. C. (enticing with criminal intent a married woman) had alleged that Col. Yusuf had enticed away his German wife.
"Mr. Gardezi had prayed to the High Court that his case should be transferred from the A. D. M's. Court to the High Court as he did not expect a fair and impartial trial in the lower Court in view of the high and influential position' enjoyed by Col. Yusuf.
"The petitioner had submitted that the respondent was on friendly terms with him and used to visit his house whenever he came to Lahore. The respondent, he alleged, however, took advantage of his friendship with him and enticed away his German wife. She was taken away from Lahore by Col. Yusuf while the petitioner was on tour, he further alleged.
"Col. Muhammad Yusuf Khan was reported to have married the German lady Christa Renate on January 2 in Quetta. It was further said that she had embraced Islam and adopted the Muslim name of Ruqayya:
"Praying for the transfer of his case to the High Court, the petitioner stated that he apprehended that he would not be able to secure justice from a Magistrate howsoever independent he might be, because of the fear of annoying a person so mighty as a Commissioner under whom he (the Magistrate) might at any time be asked to serve.'
"His Lordship ordered on the petition: "As the accused is a Commissioner of a Division, it appears desirable that the case should not be heard in the District Court. Notice with record for a very early date. Let the record be sent for and placed before me tomorrow (Saturday) at 10‑30 a.m."
4. A few days later, i.e., on the 11th of January 1962, another application (Criminal Original No. 3 of 1962) was presented by Mr. M. A. Rahman and Mr. Ijaz Husain Batalvi, Advocates, on behalf of the complainant. The gist of this application was that the lady in the case and the accused had entered into a marriage and as the marriage between the lady and the complainant subsisted, she and the accused had committed an offence of bigamy, which is punishable under section 494 of the Pakistan Penal Code. It was said in this application that as one of the two accused persons was the Commissioner of the Division in which the offence of bigamy had been committed, the applicant felt apprehensive that if he went to Quetta to take legal proceedings with regard to the offence of bigamy he would come to grief. A prayer was made that proceedings for the offence under section 494 of the Pakistan Penal Code be taken in this Court. Of this application, I did not issue a notice to the two persons who were stated to have committed the offence of bigamy, but directed that the case should be dealt with after the present case had been disposed of. A few days later a telegram was received from the accused which was to the effect that as he could not appear in Court on the 22nd of January 1962, owing to exigencies of public service, the date of hearing should be changed, whereupon I directed that the case be taken up on the 29th of January 1962 instead of the 22nd and the accused should take leave for a week because the prosecution evidence was likely to take that period and that if the accused did not appear in Court on the 29th January 1962, coercive process allowed by ]awl may be issued against him.
5. In all twenty‑eight witnesses were examined between the 29th of January and the‑‑20th of March 1962 and, as was but to be expected by reason of the status of the complainant and the accused, proceedings were protracted, the oral evidence alone running into about 584 typed pages of foolscape size. Besides the oral evidence, a number of documents were produced by the parties and were placed on the record. The statement of the complainant, who appeared as the 1st witness for the prosecution, was recorded on four occasions, the first time on the 29th of January 1962, the second on the 20th of February 1962, the third on the 15th of March 1962, and the fourth on the 20th of March 1962. On the last occasion he was allowed to be examined by Mr. Mahmud Ali, who said that he wanted to ask questions the E answers to which were likely to deal a fatal blow to the prosecution case. As it appeared from what Mr. Mahmud Ali said that the proceeding would terminate quickly the request of the learned counsel to examine the complainant at an extremely late stage of the case was acceded to. Of the other prosecution witnesses, one who was examined more than once was Mr. Durrani who was produced as the 7th witness for the prosecution. This gentleman is in the Telephone Department and when he appeared on the first occasion, he produced a copy of a bill which had been sent to the complainant. I felt the necessity of knowing at what time of the day the accused used to telephone to the lady in the case and, therefore, recalled Mr. Durrani and directed him to produce a chart showing the dates, time, duration and the bills for the telephone calls made by the accused from his two telephones at Quetta, one of which bore the number 2005 and the other 2383 as well as from Loralai, where the telephone bore the number 2. Another prosecution witness who was examined on more occasions than one was Mr. Ali Mazhar Rizvi who was produced as the eighth witness for the prosecution. This witness had been examined on the 20th of February 1962 after the charge had been framed against the accused on the 1st of February 1962, but on an application made on behalf of the accused to the effect that further examination of this witness was necessary for the purposes of the defence, I recalled him and he was examined by the accused and his counsel Mr. Mahmud Ali on the 14th of March 1962. Besides the prosecution witnesses to whom reference has been made above, the others were Irshad Ali, Chairman of the Quetta Union Committee, F', Maulvi Abdul Aziz, Nikah‑Registrar of Union Committee F', Quetta, Mr. Mohr, a German national, who is working in Pakistan as Advisor to the Pakistan Western Railway, Mr. Muhammad Amin Butt, who is an electrical engineer in the Siemens Engineering Company, Lahore, Syed Ali Husain Gardezi, a half‑brother of the complainant, Syed Faseeh Iqbal, Editor of the Daily "Zamana", Quetta, and Lt. General Bakhtiar Rana, the Martial Law Administrator of Zone 113', who appeared as the 2nd, 3rd, 4th, 5th, 6th, 9th and 10th witnesses of the prosecution, respectively. Of the ten witnesses for the prosecution, 3 were summoned by applications made after the first application regarding the summoning of witnesses on behalf of the complainant. Of these 3 witnesses, two, namely, Ali Mazhar Rizvi and Faseeh Iqbal, who were from Quetta, were summoned when Mr. M. A. Rahman, one of the learned counsel for the complainant, stated that he had received information on telephone from Quetta from a person who had not disclosed his identity that news about the marriage between the lady in the case and the accused, which was solemnised on the 2nd of January 1962, at Quetta, had appeared in the "Zamana", a daily newspaper, on the 3rd of January, and the above‑mentioned was could throw some light on the matter. Lt. General Rana was summoned by me on an application put in on the 19th of February 1962, which was accepted in spite of the resistance which Mr. S. M. Zafar, learned counsel for the accused, offered.
6. Twelve witnesses were examined in defence; and named In the order that they appeared they were as under: ‑
(1) Mr. Abdul Rashid, Acting Commissioner, Kalat Division.
(2) Syed Durbar Ali Shah, Political Agent, Quetta and Acting Commissioner, Quetta.
(3) Mr. A. D. Caleb, a representative of the Universal Express Limited, The Mall,. Lahore.
(4) Mr. Niaz Muhammad, Stenographer, Department of Sociology, Punjab University, Lahore.
(5) Mr. Rahmat Ullah, Clerk, Central Telegraph Office, Lahore.
(6) Mr. Cyril G. Bhan, Handwriting Expert.
(7) Father Eugene of Catholic Cathedral, Lawrence 11901 Lahore.
(8) Syed Ishtiaq, Supervisor, Telegraph Check Office, Lahore.
(9) Mr. Amir Usman, Deputy Director, Tribal Publicity, Government of Pakistan, Quetta.
(10) Mr. Farooq Ahmad, P. A. to the Commissioner, Quetta Division.
(11) Raja Ahmad Ali, Political Agent, Sibi and
(12) Mr. Zaka Malik, a Handwriting Expert.
Of the above‑mentioned witnesses, Mr. A. D. Caleb (D. W. 3), was mentioned in an application dated the 10th of March 1962, Father Eugene (D. W. 7) and Syed Ishtiaq (D. W. 8) both of whom gave evidence on the 17th of March 1962, were mentioned in an application dated the 16th of March 1962, while the rest were mentioned in applications presented within the time fixed by me for putting in an application for summoning the defence witnesses. I might here mention that I recorded the statements of the accused on six occasions, once on the 29th of January 1962, thrice on' the 2nd of February 1962, once on the 10th of March 1962, once on the 12th of March 1962, and once on the 20th of March 1962, but on at least three of these occasions the statement was of a formal R nature. On one of these occasions, i.e., on the 12th of March 1962, 1 recorded the statement of the accused to afford him an opportunity to explain a circumstance mentioned by one of the prosecution witnesses which was deposed to by one of his defence
7. The six persons examined as Court witnesses were: ‑
(1) Christa Renate alias Ruqayya, i.e., the lady in the case, whose statement was recorded on four occasions ;
(2) Sardar Muhammad Iqbal, Advocate, the recording of whose statement on two occasions I considered necessary for reasons which I will detail at the proper place ;
(3) Mrs. Hasan Nawaz Gardezi, a sister‑in‑law of the complainant, who was summoned at the instance of the defence as would appear from the note recorded by me at page 219 of the record on the 20th February 1962, and was examined on two occasions ; '
(4) Mr. Muhammad Nasir, District Sales Manager, Pakistan International Airlines, Shah Din Buildings, Lahore, who was summoned by me so that I may have a clear picture of the plane service between Quetta and Lahore during the relevant period ;
(5) Mr. Jamil Ahmad C.S.P., Political Agent, Chagi, Quetta Division, who was summoned as a defence witness but was not examined as one when he appeared in Court and was examined by me because I was of the view that being a respectable person he would probably be able to give useful
(6) Dr. Hasan Nawaz Gardezi, a' real brother of the com plainant, the recording of whose statement I considered necessary after Mr. Niaz Muhammad (D. W. 4) had made his statement.
8. I might mention that I called upon Mr. Norman Edmunds, an Advocate of this Court, to address arguments on the following points: ‑
(1) If a marriage is solemnised before a Registrar in any part of England between a Christian woman and a Muslim man, is that marriage valid under the law in force in England and continues to be valid when the spouses come to Pakistan
(2) In case of a marriage mentioned above, what are the legal provisions applicable for divorce
The questions arose in the case because the marriage between the lady in the case and the complainant was entered into at Hull in England. I might add that the learned address of Mr. Norman Edmunds convinced me that in calling upon him to act as amicus curiae (friend of the Court) I had taken a correct decision and that I am greatly obliged to him for the great assistance he has rendered me in the decision of some intricate questions of law that arise in this intricate case.
9. When the proceedings in the case started on the 29th of January 1962, the complainant appeared with Mr. M. A. Rahman and Mr. Ijaz Husain Batalvi, Advocates, while the accused appeared with Sardar Muhammad Iqbal and Mr. S. M. Zafar, Advocates. I was about to start the proceedings by taking the statement of the complainant as enjoined by the Code of Criminal Procedure, when, as is evident from the note recorded by me at page 27 of the record on the 29th of January 1962, Sardar Muhammad Iqbal said that he wanted to place on record a written statement of the accused. He explained this unpre cedented request by saying that most of the facts likely to be deposed to by the complainant were admitted by the accused. As the law stands, an accused person cannot at the beginning of the proceedings be called upon to answer any question in a warrant case, i.e., a case in which imprisonment can extend to more than six months and consequently I did not allow the written statement mentioned by Sardar Muhammad Iqbal to be placed on the record and proceeded to take the statement of the complainant. Appearing as the first witness for the prosecution, the complainant deposed that he had met the lady .in the case some time towards the end of the year 1950 at Hull in England and had got married to her at Hull on the 21st of July 1951, the contract of marriage being entered into before the Superintendent Registrar of Marriages at Hull, that after the marriage he started residing at Hull with the lady in the case from whom he got two children, a daughter and a son, in England, the age of the daughter now being about nine years and that of the son about eight years, that he along with the lady in the case and two children came to Pakistan in the middle of October 1953 and again went to Europe in 1954 when their second son was born, that after the birth of their second son, he and she returned to Pakistan in 1955 and started living in Lahore, that in the third week of April 1961 the lady in the case, he and their daughter went to Europe and returned from there in the second week of August 1961, that on the 13th of August 1961, they reached Quetta where Mr. Jamil Ahmad C. S. P., Political Agent, Nushki, who had been informed of their arrival, had made arrangements for their stay in the Circuit House, Quetta, that it was for the first time on the 13th of August 1961, that the lady in the case and the accused who was then the Commissioner at Quetta, that they did this an being invited to the house of the Commissioner through Mr. and Mrs. Jamil Ahmad, that they of stayed at Quetta for about four days during which the accused entertained them to a dinner that on the afternoon of the 17th of August 1961, the lady in the case and he went to say good‑bye to the accused and his wife, that the accused on learning that their destination was Multan told them that as the road between Quetta and Multan near Sibi was flooded with water, it would be better that they went by the Ziarat‑Loralai‑Dera Ghazi Khan Road, adding that as he himself was going to Ziarat on tour, they could accompany him till that place, that this suggestion was acted upon and the lady in the case, he himself and the accused traveled In the same car to Ziarat, that from Ziarat she and he himself went to Multan from where they came to Lahore, that when he reached Lahore, he sent a letter to the accused thanking him for his hospitality and saying that if he ever happened to come to Lahore he would be welcome at his house, that in September 1961, the accused stayed at his house at Lahore two or three times, his visit on each occasion lasting for two or three days, that in the end of September 1961, a brother of his (complainant's) came to stay with him at Lahore and, therefore, the accused could no longer stay at their house, that towards the middle of November 1961 the mail that came to the house was brought to him by a servant and amongst the letters he found one in the handwriting of the accused addressed to the lady in the case, and that the letter marked Exh. P. 1 was contained in the envelope marked Exh. P. 2, This letter was in the following terms: ‑
"Commissioner's House,
Quetta.
9 Nov.
My dearest Love,
Your letters of Tuesday morning and night delighted ‑me. But the deliberations of this Afternoon and tonight, ' h find, almost exhausting. The result, however, is successful. She has agreed and when I convinced her that we truly love each other and that I would leave her in any circumstances, she even gave her blessings and promised to help counteract scandal. I shall tell you more about it to‑morrow morning. The matter is, therefore, settled so far as my side is concerned and I am ready for you as soon as you are. As you see, determination triumphs in the end.
My own love, my desire for you knows no bounds. I love you more and more every moment I breathe and I am finding the suspense too much to endure. Do not delay the signing of the declaration‑but conduct yourself with prudence and tact, without giving away our impatience.
I have snatched a few moments to write to you and I must now hurry back. I have not yet disclosed your identity, nor that we write or telephone.
Au revoir, my own darling. I love you and need you most desperately.
Yours own
Yusuf."
10. The complainant went on to say that the contents of the letter surprised him because it contained expressions of love towards the lady in the case which he was not expecting from the accused, not only because the accused had always called him his younger brother and their families had known each other for a very long time but also because the accused was a devout man who said his prayers regularly, and that after considering the matter for a couple of days, he breached the subject with the lady in the case. He wanted to state what her reply was, but an. objection was raised on behalf of the accused that the statement would be hit by section 122 of the Evidence Act and be, therefore inadmissible in evidence. This objection was upheld by me and therefore the statement on the subject which the complainant had while appearing before me on the 6th of January 1962, could not be brought on the record. The complainant added that towards the end of November 1961, he went on tour to Rawalpindi and Peshawar and returned on the evening of the 29th of November 1961, that on reaching his house he found that the lady in the case was not at home and a servant told him that she had gone to Quetta, that he immediately booked a trunk call to Quetta at telephone No. 2005 which was the number of the telephone at the Commissioner's House at Quetta, that he learnt on the telephone that the lady in the case had gone to Loralai with the accused and his wife, that thereupon he booked a trunk call for telephone No. 2, Loralal, and spoke to the lady in the case and directed her to come back to Lahore immediately, that on the 1st of December be received a telegram sent by the accused, which is Exh. P. 8 on the record, and was in the following terms: ‑
"Gurdezi 26‑H Gulberg Lahore
Renate despatched safely by Bolanmail arriving Lahore Tezgam Saturday eleven forty am ( . ) regards ( . ) Yusuf."
11. The complainant added that the lady in the case reached Lahore by the train known as Tezgam on the 2nd of December 1961, when he upbraided her for having gone to Quetta and gave her a thrashing. The witness wanted to state what explanation the lady in the case had given on being upbraided but he was' not permitted to do so because of the provisions of section 1221 of the Evidence Act and, therefore, the statement which he had made on the subject on the 6th of January 1962, could not be j brought on the record. After giving a few other details, one of which was that on the 5th of December 1961, he and the. lady in the case went to Ghoragali to fetch their two sons who were studying in the Lawrence College, Ghoragali, and on that occasion they stayed in the same room at the Flashman's Hotel at Rawalpindi, the complainant said that after dinner on the 29th of December 1961, the lady in the case gave him two chits and asked him to sign them. What was written on these two chits, which are Exhs. P. 3 and P. 4 on the record, was more or less the same, and was to the following effect: ‑
"While In full possession of my senses and having consider ed the matter objectively, I . . : . . . s/o . . . . . . hereby divorce my wife . . . . . d/o . . . . . of my own free will and set her at liberty to marry whomsoever she likes. I shall have no cause for any complaint or litigation against her or the person whom she may marry."
12. The complainant proceeded to say that he refused to sign the chits and added that when he returned to his house from his office at 1‑30 p .m. on the 30th of December, his children and servants informed him that the lady in the case had taken her belongings and left, that on learning this, he went to the Railway Reservation Office at Lahore because he guessed that if the lady in the case intended to leave him, she must be going to Quetta, that he found at the Railway Reservation Office that the accused had accommodation booked for him in the form of an air‑conditioned two‑berthed compartment for the 3 ; st of December 1961, by the Khyber Mail which leaves Lahore in the morning, that from the Railway Reservation Office he went to the house of Lt. General Bakhtiar Rana, Martial Law Adminis trator Zone 'B', because the accused had told him some time earlier that he and the General were friends and he sometimes stayed at the house of the General, that he contacted an orderly at the house of the General and was pointed out the room in which the accused was, that he went into that room where he found the lady in the case and the accused, that at first the accused adopted an aggressive attitude but later on cooled down and became apologetic, saying that things like this happened in this world and he should forget all about it, as otherwise the result would be nothing but a scandal, and that he should release the lady so that he (the accused) could marry her. The complainant said that he pleaded with the lady to return with him, pointing out that the children were miserable, but the accused said that the lady could not go with him except when she walked over his (accused's) dead body. Continuing the statement, the complainant said that on the 10th of January 1962, one Mr. Amin, a friend of his, handed him an envelope which contained the keys of the cupboards of the house as well as a letter which was sent by his wife to Mr. and Mrs. Amin, that he opened the cupboards and in one of them he found the letter Exh. P. 14 which is in the handwriting of the accused. This letter Exh. 14 s in the following terms :‑
"6th Nov. morning.
My own beloved,
This morning's call overjoyed me beyond bounds. I am enclosing the draft declaration, according to law. Forms are
This should be written in his own handwriting and signed by him. If it is typed, it shall have to be signed by two reliable witnesses which won't be desirable. I would, therefore, suggest that it should be written and signed by him.
My own Renate, My Love, have this done without any delay.
As for my declaration, it shall be as follows and I'll write it and sign ft, whenever you wish it, my love: ‑
"While in full possession of my senses and having considered the matter objectively, I hereby declare that I shall release/divorce my wife . . . . . d/o . . . . . if, after a year of marriage with me she decides to leave me and set her at liberty to marry whomsoever she likes. I shall have no cause for any complaint or litigation against her or the person whom she may marry."
Au revoir, my love, more in my tonight's letter. I must post this letter, as I don't want it to miss the mail.
All my love, my dearest heart.
Yours always,
Yusuf."
13. The complainant further added that from a press report which appeared in the Daily Pakistan Times dated the 6th of January 1962, he learnt that his wife had married the accused, that thereafter he instituted a complaint under section 494 of the Pakistan Penal Code against the lady fn the case and the accused, which is still pending in this Court.
14. On the 29th of January 1962, Sardar Muhammad Iqbal, Advocate, cross‑examined the complainant at some length with the object of showing that he had not objected to the lady in the case seeing the accused, that on the 19th of September 1961 on her return from Murree she bad told him that she loved the accused, that there was a meeting between the lady in the case, the accused and himself on the 25th of October 1961 in which ft was decided that he would be willing to divorce her but she and the accused should not see or communicate with each other for three months, that when she went to Quetta in the end of November 1961, he (the complainant) had bought her ticket, that he had allowed her to send a telegram to the accused on the 6th of November 1961, and that he had divorced the lady in the case by means of a deed, Exh. D. 1 on the record, which was produced by the accused, and reads as follows: ‑
"While in full possession of my senses and having considered the matter objectively, I, Syed Ali Nawaz son of S. M. Nawaz, hereby divorce my wife Christa Renate, d/o Emil Sonntag, and set her at liberty to marry whomsoever she likes. I shall have no cause for any complaint or litigation against her or the person whom she may marry.
Lahore, S. Ali Nawazi Gardezi."
Dt. 16‑XI‑61.
15. The complainant denied all the above suggestions made by Sardar Muhammad Iqbal, learned counsel for the accused, as baseless and asserted that the lady in the case continued to be his wife, that she had been taken away by the accused without his consent and that she had entered into an unlawful marriage with the accused. He said in answer to the first question asked by Sardar Muhammad Iqbal In cross‑examination that when be married the lady in the case at Hull in England she was a Christian while he himself was a Muslim. He denied, however, that when he returned to Pakistan in 1953, a marriage under the Muslim Law was solemnized between the lady in the case and himself. He admitted that one of his two real brothers, pr. Hasan Nawaz by name, is married to an American lady. He denied that the draft divorce deeds Exhs. P. 3 and P. 4 were presented to him by the lady in the case on the 9th or the 10th of November 1961 upon which he had said that before signing the documents he would consult his lawyer. He did not admit the suggestion put to him by Sardar Muhammad Iqbal, Advocate that after the divorce deed Exh. D. 1 was completed on the 16th of November 1.961 it was agreed between the lady in the case and himself that In spite of the fact that they were no longer husband and wife she would continue to live with him till the month of March 1962 as their two sons had to come to Lahore from Lawrence College, Ghoragali, for their winter vacation and were to be In Lahore till March 1962. Nor did he admit that he bad purposely disguised his handwriting when writing and signing the alleged divorce deed Exh. D. 1 which he had earlier denied being the author of. He did not accept the suggestion that he had himself sent the lady in the case to Quetta to ascertain from the wife of the accused whether the assertion of the accused that' she had agreed to his taking another wife, was correct. He admitted that on the 14th of December 1961 he had given a party on his wife's birthday but denied that he had undergone the expenses of the party in an attempt to make her change her mind about leaving him and going to the accused He admitted that he bad taken a refund for the aeroplane un‑used return ticket for the journey of the lady in the case to Quetta on the 27th of November 1961 but denied that he had taken the refund because he had himself bought the ticket but said that he had taken the refund because it was his own money and he did not want to lose it. To a question asked by me he replied that he had thought on the 31st of December 1961 of complaining to General Bakhtiar Rana, Martial Law Administrator for Zone 'B' but refrained from doing so as the accused had told him that the Martial Law Administrator was a friend of his with whom he often stayed when at Lahore. Sardar Muhammad Iqbal, learned counsel for the accused, asked the complainant whether he had written a letter to his wife on the 1st of January 1962 which was sent by post in an envelope which is on the record as Exh. D. 2 and bears the address of Renate care of the accused and the reply was in the affirmative. He explained that he had addressed the letter to Renate and not to Mrs. Gardezi because when he tried to contact Mrs. Gardezi on the telephone at the house of the Commissioner Quetta on telephone No. 2005, he had been informed by the telephone operator that the information given was that no lady of the name of Mrs. Gardezi was ‑staying at the house of the Commissioner, Quetta. The letter sent by the complainant on the 1st of January 1962 which he said was actuated by his desire to call back the lady in the case for the sake of their children, Is on the record as Exh. D. 3 (three sheets) and reads as follows: ‑
"Lahore
1/62
Renate.
They say when calamities be fall they never do singly. Little Pupi slipped in the bathroom after his bath and opened his wound. He was out for about twenty minutes. I was afraid of concussion but thank God it is not that bad, He is now in bed sleep.
The children cling to me all night In case I too run away. I have not yet told the boys. I only told them that you will be coming soon, but Puppi knows and is terribly upset and crying. Amins have been a great help. They both feel terribly at what you have done and the way you have done it.
Renate you do me terrible wrong if you think I could be inhuman enough to deprive my children of their mother. I asked Raza about it, whereas he admits all else, he thinks this was merely your 'ausrede'. Whatever it is Renate I on my behalf wish you happiness in spite of the fact that I do believe that you cannot build a happy life on the tears and misery of your children. Renate if ever you need a friend or help I shall be there. I love you far too much. You must forgive me for not sending you the children or not letting you see the children. I hope you understand. But I would very much like to have a final talk with you soon to see if Renatchen is the same girl I used to know or is she really callous. I also do not know if my this letter will reach or there are certain restrictions. Renatchen darling, how soon can I see you. I booked you call to tell you about Puppi.
Whoever may say whatever about you Renatchen I am not condemning you. I told Amins yesterday I had no feelings of revenge in spite of what you have done.
I shall await for your detailed reply. (Here followed a couple of lines in German).
Love from us all.
Nawaz."
(Note.‑What is written in the German language at the end of the letter is to this effect : "Write often ring soon" as deposed to by the complainant and recorded at page 205 of the record.)
16. It would conduce to a better understanding of the case if the statements which the complainant made after the charge are briefly mentioned here. He was cross‑examined on the 20th of February 1962, by Mr. S. M. Zafar, Advocate, because Sardar Muhammad Iqbal had, for reasons that I will detail in their proper places, withdrawn from the case on the 3rd of February 1962 and Mr. Mahmud Ali, Advocate, did not take charge of the case on behalf of the accused till the 10th of March 1962. During his first cross‑examination after the charge, the complainant was asked to give his specimen writing with the object of its comparison with the writing in Exh. D. 1. He was asked by Mr. S. M. Zafar, Advocate, learned counsel for the accused, to state which part of the document Exh. C. W. 1/1, about which all that need be said at this stage is that it con tained the written version of the incidents which the lady in the case had given to Sardar Muhammad Iqbal, was correct and which was incorrect, and his reply was that almost all the things said about him in that document were incorrect. He was asked to explain why he had said in his letter Exh. D. 3 (which has been referred in the last paragraph) that 6e had forgiven the lady in the case for what she had done, he replied that his object was to induce her to come back and that he wanted her for the sake of the children who were feeling miserable without their mother. He was asked to explain why if he had believed that she had not gone for good with the accused he had said in his letter Exh. D. 3 that she should write often and ring soon, he replied that he had used these expressions because he did not know how long she intended to stay at Quetta. He was asked why, If she was his wife as he claimed her to be, be had not gone to Quetta to get her back, he replied that be could not leave the children alone. He was shown a notice he had sent to the accused through Mr. M. A. Rehman, Advocate, on the 6th of January 1962, which is on the record as Exh. P. 16, and was asked to explain why in that notice he had not raised any objec tion to the lady in the case having embraced Islam but had only objected to her having married the accused and his reply was that the marriage between the lady In the case and the accused had been objected to because being bigamy it was an offence made punishable by the law of the land and her embracing Islam bad not been objected to because doing that was not an offence. He was also asked to explain his statement made in Court on the 29th of January 1962 to the effect that when the lady in the case had shown him the draft divorce deed on the 29th of December 1961 he bad said that the question of divorce could be considered only after the children had left at the end of the vacation, the witness said that he had agreed to discuss the question of divorce because he felt that if he could not keep her he had better divorce her.
17. As mentioned already, Mr. Mahmud Ali, learned counsel for the accused, made a request on the 20th of March 1962 that he should be allowed to ask the complainant a few questions. This could not have been claimed as of right but I allowed the learned counsel the permission. The complainant in answer to a question by Mr. Mahmud Ali stated that he and his parents were Shias of the sect which believed in all the twelve Imams. He was asked by Mr. Mahmud Ali whether they were not Imamias and he answered in the affirmative. To another question by Mr. Mahmud Ali the complainant replied that his creed was that if any doctrine of the Shias came into conflict with the Quran he followed the Quran in that regard. He added that he did not believe in Muta which is a marriage for a fixed period recognised by some sects of the Shias. These were the matters he was questioned about by Mr. Mahmud Ali on the 20th of March 1962. The state ment which the complainant made on the 15th of March 1962 related to a formal matter and need not, therefore, be men tioned here.
18. When the statement of the complainant as P. W. 1 finished on the 29th of January 1962, I recorded the statement of the accused under section 342 of the Code of Criminal Procedure. Left to myself, I would not have recorded the statement of the accused after examining only one witness, but as Sardar Muhammad Iqbal, learned counsel for the accused, had stated at the commencement of the hearing that his client wanted to put in a written statement wherein most of the facts mentioned In the complaint would be admitted, I asked the accused the following questions: ‑
(1) The allegation against you is that you enticed the wife of the complainant and took her with you from Lahore to Quetta by Khyber Mail on the 31st of December 1961. What is your answer to this accusation
(2) Is it a fact that on the morning of the 30th of December 1961 when you were staying at the house of General Rana, the complainant came to you and wanted to take his wife with him
(3) Is it a fact that you had told him that the Martial Law Administrator, Zone 'B' was your friend
(4) When was the alleged divorce deed shown to you
(5) Is it a fact that the lady traveled with you in the same compartment to Quetta on the morning of the 31st of December 1961
(6) Is it a fact that she Is still living with you
(7) Is it a fact that your family and the family of the com plainant had known each other for about two generations
(8) Did you call the complainant your younger brother
(9) Is it a fact that the brother of the complainant has been treating your mother for a very long time for some ailment
To the above questions, the accused gave lengthy replies, as is clear from pages 28 to 39 of the record. He admitted that the complainant had seen him and the lady In the case on the 30th of December 1961 at the house of General Rana and wanted to take her with him, that in September 1961 he had told the com plainant that the Martial Law Administrator Zone 'B' was a friend of his and that he used to stay with him sometimes, that the lady in the case and he traveled in the same compartment to Quetta by the Khyber Mail which left Lahore on the 31st of December 1961, that she was living with him, that he used to call the com plainant his younger brother, and that a brother of the complainant had treated his (accused's) mother for a very long time for some ailment. He denied, however, that their families knew each other and asserted that it was for the first time on the 13th of August 1961, on the occasion when, according to the complainant himself, he had stayed at Quetta that he saw the complainant. The case the accused set up was that he had not enticed and taken away the lady in the case, that ever since the 19th of September 1961 the lady in the case had informed the complainant that she loved him (the accused) and wanted to be released by the complainant, and that in the beginning the complainant was not agreeable to divorcing the lady in the case but eventually agreed to have a talk with him, whereupon he (the accused) took leave for four days from the 23rd to the 26th of October 1961, both days inclusive, and came to Lahore and was received at the airport by the lady in the case. He stayed at the Faletti's Hotel but went to the house of the complainant on the 25th of October and that it was decided that he (the accused) should come to the house of the complainant the next day when the complainant would be at his office and discuss the matter with the lady in the case. The gist of the statement was that the complainant had agreed to let the lady in the case go and had for that purpose given her the alleged divorce deed Exh. D. 1 which she handed over to him (the accused) on the 17th of November 1961 at the Imperial Hotel, Lahore, where he was staying on that day. He admitted that when he saw the deed, he noticed that it did not look to be in the handwriting of the complainant upon which the lady in the case told him that it was written in her presence in a disguised handwriting by the complainant. The accused said that he had committed no offence because he had been meeting the lady in the case to the knowledge and with the permission of the com plainant, that he had married her because she had been divorced by the complainant, and that till he married her she was treated by him as his fiancee. He placed reliance on the alleged divorce deed Exh. D. 1 which has been reproduced in paragraph 14, and produced two documents Exhs. C. 2 and C. 3. Exhibit C. 2 is a telegram which purports to have been sent on the 6th of November 1961 by one "Rauf" and reads : "Release secured. Send Lawyer's draft and instructions." Exh. C. 3 is a letter alleged to have been written by the lady in the case to the accused. This letter reads as under: ‑
"Monday
My dearest love,
We came back from Murree last night after spending‑ two days with the children.‑Do you know, now at last I understand the term 'romantic holiday' and I assure you, that I should not like to have another one We stayed at 'Brightlands', a place right opposite Cecil, whence we commanded a full view of all 'historical' places. I cannot remember when I have felt so miserable and desolate before‑except, maybe, at the air‑port last Thursday.
The bearer tells me that you called last Saturday. It made me very, very happy. I should have been hurt had you thought it your duty to stick to a promise given on the spur of the moment, without due consideration Anyway, there is no need for it now. I have told N, that I do not need 3 months to make up my mind, but that I have decided that I love you and cannot live without you; and while I will stay with him until March for the sake of children, I shall not only write to you as before, but also insist on your writing and phoning. (He seems to object to phoning more than to your writing).
He has now made one last suggestion, it is the only way out, he says, and I am inclined to agree. But will you, I wonder. Since I may not have time to tell you all about this morning, let me at least warn you, that under no circumstances must you be linked with me, as far as 'you good lady' is concerned. So no confessions of any kind, until you hear 'the plan.' Let me say, good bye, for now, visitors are expected.‑Do you know, I am beginning to find you a little more human (after the last morning) but love you all the more. I bet marriage with you is no bed of roses‑but I should hate that, anyway.
Yours own
R."
19. Two other witnesses were produced on behalf of the complainant on the 29th of January 1962 the first of them being Irshad Ali, Chairman of Quetta Union Committee F', who appeared as the second witness for the prosecution. He deposed that on the 26th of December 1961, the accused made an applica tion wherein he had said that he wanted to take a second wife in the lifetime of the first and permission should be granted to him to do so and that the application was accompanied by a sum of Rs. 100 for the purchase of stamp paper. He said that the stamp paper was bought on the 1st of January 1962, and was on the record of file No. 9 of 1961, which is entitled "Application of Lt: Col. Muhammad Yusuf Khan." The witness added that he had taken appropriate proceedings under the Families Laws Ordinance, 1961, and had thereafter allowed the accused to take a second wife in the lifetime of his first one. He also deposed that a document, which is on the record of this case as Exh. D. 4 and purports to bear the signature of the first wife of the accused, and a copy of which is on the file No. 9 of the Union Committee 'F' Quetta and has been marked as Exh. D. 9, granting permission to the accused to take a second wife, was shown to him and that he had contacted the first wife of the accused who had said she had no objection to the accused marrying In her lifetime.
20. The next witness was Maulvi Abdul Aziz, who appeared as the third witness for the prosecution. He is the Nikah Registrar of Union Committee 'F', Quetta and deposed that the accused had entered into a marriage with the lady in the case on the 2nd of January 1962, and he himself had made an entry with regard to the marriage in his Nikah Register which he produced in Court but was allowed to take back with him. The witness added that the persons who acted as witnesses of the nikah were Mr. Abdur Rashid Khan, Commissioner, Kalat Division, and Mr. Darbar Ali Shah, Political Agent, Quetta. To the only question asked from him in cross‑examination by Sardar Muhammad Iqbal, the witness replied that the lady to whom the accused got married on the 2nd of January 1962, i.e., the lady in the case, was stated by the accused to be a Muslim.
21. On the 30th of January 1962, three witnesses were produced on behalf of the complainant. The first of these was Mr. M. Mohr, Adviser to the Pakistan Western Railway, who appeared as the fourth witness for the prosecution. He deposed that he had known the complainant since July 1960 and that he thought he was married to the lady in the case who was present in Court. The witness added that the lady came from Germany as he himself did, that to his knowledge she and the complainant were living as husband and wife in Gulberg where he himself and his wife visited them, that in December 1961 the complainant gave a party on the occasion of the birthday of the lady in the case which he himself and his wife attended and that the lady in the case and the complainant attended Special German Christmas Service which was held in the F. C. College Chapel at 4 p.m., on the 24th of December 1961. In cross‑examination P. W. 4 was asked the question whether the meeting in the F. C. College Chapel on the 24th of December 1961, was not a non‑religious meeting to which he replied in the negative.
22. The fifth witness for the prosecution, namely, Mr. Muhammad Amin Butt, deposed that he worked in the same office as the complainant did and as he saw the handwriting of the complainant on many documents received by him in the ordinary course of business, he was acquainted with his handwriting, that the document Exh. D. 1, namely, the alleged divorce deed, did not bear the signature of the complainant, that he had attended a party given by the complainant on the 23rd of December 1961, at which the lady in the case acted as the hostess and that he had seen the lady in the case and the complainant together for the last time on the 28th of December 1961 on the Mall, Lahore.
23. Appearing as the sixth witness for the prosecution, Syed Ali Nawaz Gardezi, a half‑brother of the complainant, who used to be a Provincial Minister in one of the Cabinets of the Punjab after the Partition of British India, deposed that the com plainant had returned with a wife from England in 1953, where he had gone for his studies in 1947, that his wife was no other than the lady in the case who was present in Court, that the last time he met the complainant and the lady in the case was on the 23rd of December 1961, in the office of the complainant when he himself was on his way to Multan from Peshawar and dropped in at the office of the complainant to see him, that at that time the lady in the case was present in the office of the complainant along with her two sons out of the complainant, that one of the children had an injury on his head and on being asked by him the lady in the case replied that the child had happened to fall down and had got his head injured, that the lady in the case had told him that she intended to visit Multan in the first week of January 1962 because she wanted to go to Dera Ghazi Khan for a shikar on the invitation of a real brother of the witness who was an Additional Deputy Commissioner at Dera Ghazi Khan, and that the lady in the case had further told him that she had come to the office of the complainant because she and the complainant intended to take the injured child to a hospital. In another part of his statement the witness said that on the 2nd of January 1962, when he returned to Multan from the village where he has his lands, he found awaiting him a letter from the complainant in which it was mentioned that a great calamity had befallen the complainant and the presence of the witness at Lahore was necessary whereupon he came to Lahore and learnt that the lady in the case had run away with the accused. The witness added that he had seen the accused once at the house of the complainant. The circumstances were that he was at the house of the com plainant when the accused came there and was introduced to the witness by the lady in the case, but left after taking a cup of coffee explaining that he had just happened to pass that way and had dropped in. The witness also said that the accused and Col. A. S. B. Shah, who was the maternal uncle of the complain ant, knew each other well as did their families because when Col. Shah was the Secretary in the Ministry of States and Frontier Regions, Government of Pakistan, the accused was a Deputy Secretary in that Department. The witness further said that the document Exh. D. 1, Le., the alleged divorce deed, was not in the handwriting of the complainant and did not bear his signature. On being cross‑examined by Sardar Muhammad Iqbal, Advocate, the witness was asked whether he was sure that the accused had worked under Col. Shah to which he replied that he was not definite, but that this was the information given to him by Col. Shah. To another question asked by Sardar Muhammad Iqbal in cross‑examination, the witness replied that as far as his knowledge went the lady in the case and the com plainant were on the best possible terms. To yet another question asked by Sardar Muhammad Iqbal to the effect whether it was not a fact that he was denying everything which could be of assistance to the accused simply because the complainant happened to be his (the witness's) brother, he replied in the negative.
24. The statement of Syed All Nawaz Gardezi (P. W. 6) finished before the lunch interval on the 30th of January 1962 and one of the counsel for the complainant made a statement that he had no other witness to produce on that day. The lady in the case was present in Court on the 30th of January as she had been on the previous day and as it was obvious that she was a very necessary witness in the case and Sardar Muhammad Iqbal, learned counsel for the accused, had stated that she will be produced as a defence witness, I decided to take her statement as a Court witness and recorded an order to that effect which is at pages 53 and 54 of the record. No one objected to my examining the lady as a Court witness and, indeed, no one could have raised any objection to my doing so because, as I will show presently, the powers of a Court to examine any person as a witness are so wide that they can, without resort to exaggeration, be described as unlimited.
25. As It had become clear from the material that had come on the record by the time I started taking the statement of the lady in the case as C. W. 1 that the defence case was that she had embraced Islam before she entered into a marriage with the accused and bad been divorced by the complainant before that date, I asked her quite a few questions about religious matters to discover whether or not she knew anything about Islam. The gist of the statement which was made by C. W. 1 on the 30th of January 1962 was that she had married the complainant at Hull in 1951, that she bad borne to the complainant three children, that she and the complainant returned to Pakistan from abroad in the month of August 1961 from their visit to Europe and met the accused for the first time on the 13th of August 1961 at Quetta where he was posted as the Commissioner, that after she and her husband came to Lahore from Quetta the accused came to Lahore and stayed at their house twice, once for three nights and the second time for two nights, that it was at her insistence that the accused bad stayed at the house of the complainant, that she had insisted on the accused coming and stating at the house of the complainant because he had liked the accused from the beginning and liked his company, that her relations with the accused did not go beyond that of friendship, that she started correspondence with the accused after the 19th of September 1961 soon after they had met at Murree where they had stayed at the Cecil Hotel in adjoining rooms, that she wrote one letter a day to him, that fn the earlier stages of her friendship with the accused he used to ring her up at a time at which the complainant was not expected to be at home, that the complainant used to go to his office at 7‑30 a.m. and return at 1‑30 p m., that on one or possibly two occasions the accused had rung her up at a time when the complainant was at home, that on one occasion when she was talking to the accused on the telephone the complainant was standing behind her and tickling her, that the second occasion that she recalled on which the accused had rung up at a time when the complainant was at home was on the 3rd of December 1961 that as far as she remembered the accused had written altogether twenty letters to her between the 19th of September 1961 and the 9th of November 1961 as he used to telephone to her generally, that she had not received the letter marked Exh. P. 1 and bearing the date 9th of November 1961 which had been produced by the complainant along with the complaint, that she had received the letter Exh. P. 14 which bore the date the 6th of November 1961 and had kept it in a drawer from where it had been stolen, that she used to write one letter a day to the accused between the 19th of September 1961 and the 9th of November 1961, that on the 28th of December 1961 she had met the accused at the Railway Station, Lahore, when he had come to Lahore and had dropped him at the house of General Rana, that on the 30th of December 1961 in the afternoon the complainant came to the house of Lt.‑General Bakhtiar Rana, the Martial Law Administrator of Zone B', where she herself had gone that day at 11‑30 a.m., that when he came to the house ‑of General Rana the complainant asked her to accompany him to his house but she refused to do so, that the accused refused to allow the complainant to talk to her in private saying that as he (the complainant) had beaten her before he might beat her again, that the complainant had beaten her on the night of the 5th of November 1961 and that that was not the first beating he had given her, that the reason why the beating was given to her by the complainant was that she insisted on his giving her a divorce, that on the complainant refusing to give her a divorce she told him that she would immediately go to Quetta and live there but would not commit adultery with the accused lest the poor man get into trouble, that she knew that adultery committed in Pakistan was an offence, that she had sent three telegrams to the accused one of which (Exh. C. 2) was sent on the 6th of November 1961, that on the 27th of November 1961, she left Lahore by an aeroplane for Quetta, that her passage to Quetta had been booked by the complainant, that she knew when she left for Quetta that the complainant would return on the following Thursday, i.e., the 30th of November 1961 from the tour on which he left on the 27th November, that her original programme was to return by the morning of the 30th of November 1961 but she could not do so as she accompanied the accused from Quetta to Ziarat where he performed the opening ceremony of a Bank and after that they went to Loralal, that when she was at Loralai she received a telephonic call from the complainant, that this telephonic call was in answer to a telegram which she bad sent to the complainant to the effect that she would reach on Monday, i.e., the 2nd of December, 1961, that on the morning of the 31st of December 1961 she left with the accused by Khyber Mail, that it was on the 30th of December 1961 that she had informed the accused that she would be able to go with him, that she and he had traveled in the same compartment which was a two‑berthed compartment and that there was no other passenger in it, that the first time she learnt of this case was when a friend of hers contacted her on the telephone from Peshawar saying that there was a news Item in the Daily Pakistan Times about the case, that the accused had taken four months' leave for this case and probably as a result of the case, that ever since the 30th of December 1961 she had been living with the accused, that she had embraced Islam on the 26th of October 1961 in the presence of the accused at a time when nobody else was present, that she had not informed the complainant that she had embraced Islam because he would not have liked it, that the complainant had given her a divorce by means of the deed Exh. D. 1, that she had given the deed Exh. D. 1 to the accused on the 17th of November 1961 at the Imperial Hotel, Lahore where he was staying, that when the accused saw the deed Exh. D. 1 he asked her whether the signature on it was the usual signature of the complainant and that till the time that the complainant wrote the deed Exh. D. 1 she was his lawfully wedded wife. During the course of her statement, I asked C. W. 1 the question whether she had at any time contacted the accused on the telephone from the house of the complainant, to which she gave an answer in the negative. Then I asked her the question whether the reason for her not telephoning to the accused from the house was that if she did that the bill would be received by the complainant and he would want to know why she had contacted the accused on the telephone, to which her reply was that she avoided using the telephone because it meant a lot of expenditure which she was not prepared to undergo. I also asked her whether the accused had shown her the letters which she had written to him and she answered in the affirmative, adding that he had not preserved the envelopes.
26. When called upon by me on the 30th of January 1962 to question the lady in the case if he wanted to do so, Mr. M. A. Rehman, learned counsel for the complainant, pleaded his inability to ask the witness any questions on that day. The reason he gave was that not having known that she would be examined on that day he had made no preparation for the purpose. However, Sardar Muhammad Iqbal asked her questions, most of which were leading in form, i.e., they were questions which suggested the answers that should be given. It came out in the statement of the witness as a result of questions asked by Sardar Muhammad Iqbal that on the 26th of October 1961 when the complainant returned home from his office she and the accused were sitting together and at that time she was filling up the form of an application for the change of her nationality from a German to a Pakistani and that when the complainant came she hid those papers, that when the complainant learnt that she had been filling up an application from for change of nationality the complainant was very angry whereupon she informed him that she was changing her nationality in order to be able to marry the accused who insisted that she should become a Pakistani before he married her. She further said that on the 26th of October 1961 an understanding had been arrived at between herself, the complainant and the accused that the complainant would be willing to release her but she and the accused should have no communication with each other for three months. She also said in reply to a question asked by Sardar Muhammad Iqbal that she had sent to the accused two telegrams besides the telegram Exh. 2 dated the 6th of November 1961. I asked her whether the accused could confer any benefit, monetary or otherwise, on the complainant and the answer was in the negative, but she added that the complainant might have felt that it would raise his prestige if he were seen with the accused who was a Commissioner of a Division. She said that the salary of her husband was Rs. 2,000 per month besides yearly bonus, a free house and two cars at his disposal. She also said that one of the drafts of the divorce deed had reached her with the letter Exh. P. 14 which was sent by the accused to her on the 6th of November 1961 and the other, namely, Exh. D. 4, had been given by him to her at Lahore in the Faletti's Hotel on the 15th of November 1961 and that both the drafts had been taken away by the complainant.
27. During the statement she gave on the 30th of January 1962 and the two following days on which she was examined, the lady in the case made a number of allegations against the com plainant. One of these allegations was that he had deceived her by giving her the divorce deed Exh. D. 1 because he knew that the marriage entered into at Hull (England) before the Registrar of Marriages could not be dissolved by means of a divorce deed. She admitted that she knew that if she remained a Christian the marriage which she had entered into with the complainant at Hull in England could not be dissolved without a decree of a Court which information she said had been given to her by the com plainant. She also admitted that she had given a gist of the statement which she would make in Court as a witness, in writing to Sardar Muhammad Iqbal, learned counsel for the accused. (This document with which I will deal a little later is Exh. C. W. 1/1 on the record). She also said in reply to a question by me that it was only till the 16th of November 1961 that the love between her and the accused remained platonic. The gist of the very lengthy statement of the lady in the case made on the 30th of January 1962 was that ever since their first meeting on the 13th of August 1961 she and the accused had been in love with each other, that in September 1961 she and the accused lived in the Cecil Hotel at Murree at the same time in adjoining rooms for two days and a half, that from the 19th of September 1961 to the 9th of November 1961 there was constant communication by telephone, letters and telegrams between herself and the accused, that when sending telegrams to the accused she did not use her " own name but adopted the name "Rauf ", that the accused came to Lahore on four days' leave from the 23rd to the 26th of October 1961, the object as stated by herself being a discussion between her, the complainant and the accused at the instance of the complainant regarding her future, She admitted, however, that the complainant had left on tour on the 21st of October 1961 and was not expected to be back till the evening of the 23rd of October 1961 and that she had given this information to the accused on the telephone. In answer to a question asked by me on the 1st of February 1962 she had to admit that she did not get letters from the accused in her own Mme but in the name of a friend of hers but as she appealed to me not to force her to disclose the name of that friend, I did not insist on her doing so. She further admitted that one of the letters sent by the accused to her was delivered by the postman to her friend whose address was given on the envelope and that this had happened before the 9th of November 1961 though she could not give the exact date.
28 I have mentioned at the end of paragraph 25 that on the 30th of January 1962 the lady in the case had in the course of her deposition as C, W. 1 stated that she had between the 19th of September 1961 and the 9th of November 1961 written one letter a day to the accused which meant that she had written about fifty letters to him. I have also mentioned in the same paragraph that I had asked the lady in the case on the 30th of January 1962 whether she had seen with the accused the letters she bad written to him and she bad answered in the affirmative but had added that the envelopes had not been preserved. It has been mentioned in paragraph 18 that when making his statement on the 29th of January 1962 the accused had produced a letter marked as Exh. 3 which has been reproduced at the end of paragraph 18 and which according to him had been sent to him by the lady in the case. My object in questioning C. W. 1 about the letters she had sent to the accused was to get the letters in Court and I had intended to ask the accused to bring the same day all the letters written by the lady in the case to him but forgot to do so. On the morning of the 31st of January 1962 I told the accused that because of his position I did not feel inclined to use coercive process against him which the law authorised me to do and to avoid the Issue of coercive process he should himself produce the letters written by the lady in the case to him, whereupon he produced four letters and as this was much too low a number as compared with the number of letters which according to the lady in the case she had written to him I asked her to select out of the four letters those which could in any manner help the accused and she chose the letter Exh. C. W. 1/3 which was brought by me on the record on the 31st of January 1962 while the other three were returned to the accused. This letter Exh. C. W. 1/3 reads as under :‑
"Saturday,
9th Decr.
My dearest love,
It is nice to hear you so cheerful for a change‑last night's dream must have been really good What a pity you could not divulge details; it might have been of interest not only to me but all the telephone operators You should always try to work towards public enlightenment In every sphere
Frankly speaking, I cannot see what you are so happy about
The news you gave me just now, are everything but encourag ing. And that at a time, when I considered everything settled Do you think there are going to be many more surprises like that in store for us. (By the way‑‑‑I hope you have not told S anything about this recent development )‑What would have happened, I wonder, if we had got' married at Quetta last week (I am a great one for indulging in useless speculations, as you may have noticed). Anyway let us forget it all for the time being, or until we know more about it.
Much more important is the fact, that you will be coming here very soon. There is again so much to discuss‑apart from everything else‑and I only hope see will manage to have some time together.
Later Nawaz came home to pick me up for coffee. Quite a usual procedure nowadays. I mentioned the Union Council thing to him. He is quite determined to have nothing to do with it, no matter what consequences. So, where do we go from here
Can't write any more today. He will be back very shortly.
Darling, why don't you trust me I trust you and love you without reservation. It ought to be mutual. More later.
Lots of love.
Yours own,
Renate."
29. When the case came up for hearing on the 1st of February 1962, I felt that the other three letters, which had been produced by the accused on the previous day but had been returned by me to him, should have been kept on the record, and I asked him to produce those letters if he had them with him. He had those letters with him on the 1 st of February 1962 also and they were brought on the record as Exhs. C. W. 1/6, C. W. 1/7, and C. W. 1/8. These letters are reproduced below in the above order:---
"Wednesday night.
I was expecting your call this morning, and although I could think of many reasons why you might have been unable to ring me‑have been seething with suppressed fury all day, snapping the head off anyone, who was imprudent enough to come near me‑Look, that is what you do to me
He is just having his bath. Hope I can post this unobtrusively. I love you darling. Why did you let me go back to him Do you care for me so little
I miss you most disparately. God knows, how I shall survive these 3 months. Ring me on Thursday.
All my love, always,
Your own.
Renate."
Tuesday night.
Yusuf, my darling,
Rather than feel depressed. I fear that I have been most blissfully happy all evening, listening to "our" Mozart records. It was almost like being with you. I imagined that you were sitting by my side, enjoying it all as much as I did The only thing I could not, and would not bear hearing is Vivaldi. I have not ordered any of his music, because I do not want to listen to it without you Oh, my love, how much longer do we have to go on like this Just think of all the precious moments, many days, weeks and even months wasted in this way ' It is wonderful to be alone ' I can be happy or cry, if I feel like it, and no one is asking why and how‑Darling. I love you so much, that it hurts physically, almost. What have you done to me. No peace of mind and boundless frustration of body and soul. I had a whole bundle of your letters today, of the 1st, 2nd, 3rd, 4th, 5th and even 6th, imagine Just as well N was not here‑he might have got a hysterical fit Besides, I had time enough to read them and re‑read them over and over again. Darling, who are you really. The man who writes me letters, or the one I meet, a slightly arrogant and cynical individual (I love them both, so you need not hesitate to answer truthfully)
Six more days of waiting, then two of unimaginable bliss-- another parting and then waiting again My love, I hope this will not go on for ever Do you know, once we are married, we should spend every day as though it was the last. No quarrels over petty matters, no separations if it can be helped And I for one, shall do my best to make you happy.
"Good bye" for now I shall write to you again tomorrow. I love you with all my heart.
'
Yours, for ever and ever and ever,
Renate".
"Lahore.
Thursday.
My dearest love,
This is just a very short note‑since I cannot be sure, that it will reach you before your departure. Just let me assure you, that all is well with me, that I am as happy as circumstances permit that I miss you as much as ever and love you much more than is prudent for me to confess What do you say to that
I hope you have returned safely by now and will find time to ring me this morning. It is misery not to hear from you for days and days. How can you do that to me
With fondest love,
R".
30. I have, in paragraph 18, reproduced the contents of one of the telegrams stated to have been sent by the lady in the case to the accused, namely, the one marked as Exh. 2 and will here reproduce two other telegrams whose sender was shown in them to be Rauf but which according to the defence and the lady herself were sent by her. One of these telegrams is on the record as Exh. I dated the 30th of October 1961 and reads as under :‑
"Take no further steps await letter and instructions resume calls. Rant"
The other one which is dated the 4th of December 1961 and is marked as Exh. C. W. 1/9 read as under :‑‑
"Programme changed call Tuesday. Rauf."
31. C. W. 1, i.e., the lady in the case, was examined on a number of occasions. She was examined on the 30th of January 1962, 31st of January 1962, twice on the 1st of February 1962, and then once again on the 19th of February 1962. After her statement finished on the 1st of February 1962, I framed a charge against the accused under both the sections mentioned in the complaint, namely the offences under section 497 (adultery) and section 498 (enticing and taking away a married woman) of the Pakistan Penal Code. In the two‑headed charge, the date of abduc tion was wrongly mentioned as the 31st of December 1961 and the date with regard to the adultery in the second charge was also mentioned to be the same. This mistake was corrected on the 20th of March 1962, in exercise of the powers vested in Courts by section 227 of the Code of Criminal Procedure to amend the charge at any stage of the proceedings before judgment. The charge under section 498 of the Pakistan Penal Code is that the accused had enticed and taken away the wife of the complainant on the 30th of December 1961 while the charge under section 497 of the Pakistan Penal Code is that before, on and after the 30th of December 11 61, the accused had been having sexual intercourse with the lady in the case and had thereby been guilty of adultery. The change of date was not an altera tion of a material part of the charge, because the accused knew from the beginning that the case against him was.. that he had enticed and taken away the lady in the case on the 30th of December 1961 and, indeed, even the statement which he had made on the 29th of January 1962 made it clear that she and he were together ever since the 30th of December 1961. The accused pleaded not guilty to the charge with the result that under section 256 of the Code of Criminal Procedure he got the right to further cross‑examine the prosecution witnesses who had already appeared before the framing of the charge. He was asked which of the prosecution witnesses he would like to cross‑examine further, and he replied that he would cross‑examine the lady in the case and the complainant only. Though the lady in the case was not a prosecution witness, I summoned her also so that if the accused or his counsel wanted to ask her any questions they may do so and adjourned the case to the 3rd of February 1962. When the case came up on the 3rd of February 1962, Sardar Muhammad Iqbal, Advocate, put in a statement which ran into four or five typed pages and after reading it out in Court asked for permission to withdraw from the case and did so on the permission being granted to him. Upon this rind at the request of the accused the case was adjourned to the 19th of February 1962 to enable him to engage another counsel.
32. When the case came up on the 19th of February 1962, Mr. Ijaz Husain Batalvi, one of the Advocates who appeared for the complainant during the trial, raised an objection that as the lady in the case was not a witness for the prosecution, the accused had no right to further cross‑examine her under section 256 of tae Code of Criminal Procedure. Taken on the technical plane alone, this contention was unassailable, but as the statement of the lady as a Court witness had been taken before the framing of the charge and the powers of the Court to allow a Court witness to be asked questions by any of the parties are unlimited under section 165 of the Evidence Act, I turned down the objection raised by Mr. Batalvi. Upon this, he requested that as the lady was not a witness for the prosecution, he should be allowed to ask h her some questions before she was asked any questions on behalf of the defence. This request was opposed by Mr. S. M. Zafar, learned counsel for the accused on the ground that if the counsel for the complainant wanted to ask C. W. 1 any questions he should have asked those questions before the framing of the charge. The objection raised was patently without force and, consequently, I overruled it. The result was that on the 19th of February 1962, C. W. 1, i.e., the lady in the case, was asked questions not only by the learned counsel for the complainant but also by the learned counsel for the accused. This examination by the two learned counsel along with examination by me interspersed here and there took the whole of the day on the 19th of February 1962.
33. It is desirable to give here the gist of the statement which C. W. 1 made on the 19th of February 1962 and I proceed to do so. In answer to a question asked by Mr. Batalvi, she said that she had not informed her mother that she had em braced Islam and explained this omission by saying that as her mother was a devout Christian and was not keeping good health, she did not want to give her a shock which could result fatally. She was asked by Mr. Batalvi why she had not men tioned in Exh. C. W. 1/1 that she had embraced Islam on the 26th of October 1961 and she said that she had given that information to Sardar Muhammad Iqbal orally and, therefore, did not consider it necessary to repeat it in the document Exh. C. W. 1/1. To another question asked by Mr. Batalvi, the lady replied that she had not informed the complainant that she had embraced Islam because at the discussion which took place at the house of the complainant on the 25th of October 1961 the com plainant had requested the accused not to make her change her religion to Islam and, therefore, she did not want the complainant to know that she had changed her religion from Christianity to Islam. In reply to another question asked by Mr. Batalvi, she said that when she banded over the document Exh. D. 1 to the accused he asked her whether it was in the usual handwriting of the complainant and she had replied that the signature was not his usual signature but added that she did not recollect whether the accused had expressed airy doubt about the body of the document being in the handwriting of the complainant. She had to admit that at no time after the 26th of October 1961 till the date she appeared in Court bad she informed the German Embassy in Pakistan that she had embraced Islam on the 26th of October 1961 and further admitted that she had not informed the Embassy that her name was no longer Mrs. Renate Gardezi, adding that she did not consider giving that information neces sary. Another question which qr. Batalvi asked and the answer which the witness gave had better be reproduced in extenso: ‑
"Q. I draw your attention to Exh. C. W. 1/1 under the date the 13th of November 1961 and point out to you that therein you had mentioned "Saw Col. Yusuf in Faletti's and had breakfast with him. He gave me another draft and asked me to get it written soon as he wanted to put his case before the Governor during his stay at Lahore", but you had scored out the words "as he wanted to put his case before the Governor during his stay at Lahore". How do you explain this
A. After seeing the document Exh. C. W. 1/1 at the relevant place, I am inclined to think that he had probably mentioned to me that he wanted to discuss the matter with the Governor of the Province. The reason why I scored it out was that possibly the interview did not take place and, therefore, I did not consider it necessary that this detail should remain in the document Exh. C. W. 1/l."
To another question asked by Mr. Batalvi, the witness replied that she had sent a telegram to the complainant on the 29th of November 1961 which was worded as follows :‑
In answer to another question asked by the learned counsel for the complainant, she replied that it was probably on the 30th of October 1961 that she and the complainant had decided that she would remain in the house for three months till the middle of March in order to look after the children who would be very soon in Lahore as their College at Ghoragali would close from December to March for the winter vacation. She exhibited indignation at being asked the question whether she could not have taken some money from the accused and started living in a hotel, after she alleged that she had been divorced by the complainant and replied that receiving money from a man to whom she was not married was against her principle. Upon this, her attention was drawn by Mr. Batalvi to the document Exh. C. W. I/1 wherein she had mentioned that on the 18th of September 1961 the accused bad given her Rs. 500 and she came out with the answer that the money was an emergency fund which she afterwards returned to the accused. Asked why the return of the money to the accused was not mentioned in the document Exh. C. W. 1/1 she gave the answer that she did not consider it necessary to mention it and added that the money had been returned by the com plainant who had found it on going through her hand‑bag. In answer to another question asked by Mr. Batalvi, she said that be fore leaving the house for good on the 30th of December 1961 she had burnt all letters which she had received from the accused Because as she was going to marry the accused, she did not consider it necessary to keep his letters. Mr. Batalvi asked the lady a number of questions in order to bring out that from the beginning she had illicit intimacy with the accused about which the complainant knew nothing but she stuck to her statement that the complainant knew all along that she and the accused were meeting. Her attention was drawn to Exh. P. 14, i.e., the letter which the accused sent to her on the 6th of November 1961 and which has been reproduced in paragraph 12 and she was asked whether she had insisted that the accused give her an under taking to release her if after living with him for one year she did not find it possible to continue doing so and she came out with the reply that it was not she but the complainant who had insisted that the accused give such an undertaking. In reply to questions asked by Mr. S. M. Zafer, the lady said that the reason why in spite of the fact that as alleged by her she had been divorced by the, complainant she continued to live with him was that as he had obliged her by giving the document Exh. D. 1, she wanted to return that good deed and that she wanted to live with her children as long as she could. I have already mentioned that in reply to a question asked bar me on the 29th of January 1962, she had said that her love with the accused remained platonic only till the 16th of November 1961, i.e., the date on which she alleged that the complainant divorced her. Mr. Zafar asked her to explain what she meant by the expression "platonic love" which she had used in her statement in Court. Her answer was that platonic love was a purely intellectual relation ship between members of different sexes and that a regard for the opposite sex with a view to marry cannot be described as platonic. To another question asked by Mr. Zafar she said that the signature on Exh. D. 1 (the alleged divorce deed) was not like the usual signature of the complainant. In a nutshell the version of the lady in the case, who was examined by me as the first Court witness, was that she had prosecuted her love affair with the accused with the knowledge of the complainant, that she had embraced Islam on the 26th of October 1961 and this conversion was presided over by the accused and at it no one other than herself and the accused was present, that she had kept her change of religion from Christianity to Islam a secret from the complainant, that she had been divorced by the complainant by means of the document Exh. D. 1 and that acting on the divorce deed she and the accused had entered into a marriage under the Muslim Law at Quetta on the 2nd of January 1962. It cannot escape notice that the statement of the lady in the case is to the same general effect as that of the accused, namely, that by marrying on the 2nd of January 1962 she and he had done no more than the law permitted them to do.
34. Mr. A. U. Khan Durrani, who was the seventh witness for the prosecution, appeared on the 1st of February 1962, and deposed that a bill was sent to the complainant for a telephone call booked by him to Quetta on the 29th of November 1961. He said that in the bill Exh. P. 7, by a typographical error, the number of the telephone to which the call was booked was shown as 2006 instead of 2005. As mentioned by me already, this witness was summoned again. On the second occasion he appeared on the 20th of February 1962 on which date he produced three charts, namely, Exhs. P. W. 7/1, P. W. 7/2 and P. W. 7/3. Exh. P. W. 7/1, which is a chart showing the calls booked from telephone No. 21105, which was at the residence of the Commissioner at Quetta, to Lahore telephone No. 7145, which is the number of the telephone at the residence of Mr. Gardezi, shows that from the 9th of September 1961 to the 21st of December 1961 the accused had spoken to the lady in the case on 88 occasions, that the time taken was 516 minutes and the charges were Rs. 1,027. Of the calls, three made on the 9th of September were at night, one made on the 10th of September was at about 5 p.m., while two others made on the 12th of September were after 10 p.m. According to this chart, on the 21st of October 1961, the accused talked twice to the lady in the case at night and that on the 2nd of October he talked to her on no less than four occasions, two of which were in the forenoon, one in the afternoon at 4 p.m., and the fourth at 10 p.m. The only other occasion at which, according to the chart Exh. P. W.7/1, the accused spoke to the lady in the case at a time when her husband could possibly be at home was on the 5th of November 1961, when according to the chart he booked a call at 10‑15 a.m. Against the date 30th of November 1961 a call booked at 8‑30 p.m. is shown but admittedly on that date the lady in the case was not at Lahore and it is clear that the call was meant for the complainant and not for the lady. The chart Exh. P. W. 7/1 further shows that the accused contacted the telephone at the residence of the complainant on the 3rd of December 1961 at about 1 p.m. This evidently was a call to find out whether the lady in the case had reached safely from Quetta. The chart Exh. P. W. 7/2 shows the telephone calls booked by the accused from telephone No. 2383 of Quetta, which is In the office of the Commissioner Quetta, for Lahore Telephone No. 7145, i.e., the telephone at the residence of the complainant. According to this chart, no less than 90 calls were booked, the duration of which in time was 531 minutes and the cost for which came to Rs. 1,540. None of these calls was booked or made at a time when the complainant could be expected to be at home. Exh. P. W. 7/3 was a chart of calls booked from telephone No. 2, Loralai. According to this chart, only eight calls were booked for telephone No. 7145 Lahore. Of these calls, there were three made on the 18th of October 1961, and all of them were made between 8 a. m. and 9‑30 a.m., four were on the 20th of October 1961, and all of them were made between 8‑30 a.m. and about 9‑30 a.m. The eighth call was booked on the 29th of October 1961 at 9 p.m. This evidently was meant for the complainant because on that date the lady in the case was not at Lahore but at Loralai with the accused and the call must, therefore, have been meant for the complainant with a view to re‑assuring him so that he should not get fidgety. In connection with the telephone trunk calls mentioned in the three charts produced by the witness, it should be borne in mind that according to the statement made by the lady in the case on the 30th of January 1962 the working hours of the office of the complainant were from 7‑30 a. m. to 1‑30 p. m.
35. The eighth witness for the prosecution ads Mr. Ali Mazhar Rizvi, whose statement, as already mentioned, was recorded twice. The gist of the statement which this witness made on the 20th of February 1962 was that on the morning of the 2nd January 1962 he had been called by the accused to his office through Mr. Darbar Ali Shah, Political Agent of Quetta, and that the accused told him in the presence of Mr. Darbar Ali Shah and Mr. Amir Usman, Deputy Director, Tribal Publicity, Quetta, that that afternoon he was marrying a German lady. The witness added that the accused asked him that he wanted a very brief accounts of the marriage to go to the press, explaining that he wanted this to be done lest the press may start a scandal. The witness said in categorical terms that the accused had told him that the lady would be embracing Islam before the marriage. He added that he prepared a draft Exh. P. W. 8/1 at the instance of the accused which the accused corrected. It may be mentioned here that in his statement made on the 12th of March 1962 which is at page 305 of the record, the accused admitted that he had seen the draft Exh. P. W. 8/1 and had made some corrections in it. Exh. P. W. 8/1 is in the following terms :‑
"Lt. Col. Muhammad Yusuf, Commissioner Quetta, was married to Christa Renate, daughter of Emil Sanntag, at a quiet and simple ceremony here today. Earlier Christa Renate embraced Islam and assumed the Muslim name Ruqayya. The marriage was solemnised in accordance with Muslim Family Laws Ordinance."
When the witness appeared on the second occasion, I.e., on the 14th of March, 1962, for which date he was summoned at the request of the learned counsel for the defence, he was asked questions to show that he was not well disposed towards the accused. The document Exh. D. W. 10/1 which is D. O. letter No. PR (5)‑61/44 dated the 12th of December 1961, from the Director, Public Relations Department, West Pakistan, to the address of the accused, wherein it was said that the Director had warned the witness to be more careful In future and not to be remiss in his duties about which remissness a complaint had been made by the accused, was shown to the witness in support of the assertion of the accused that the witness was not well‑disposed towards him. The witness admitted that when he had visited Lahore on an earlier occasion to give evidence he had seen the complainant for quite some time and he and Mr. Faseeh Iqbal had been taken by the complainant to his house.
36. The ninth witness for the prosecution, Syed Faseeh Iqbal, also appeared on the 20th of February 1962. He Is the Editor of the "Zamana", an Urdu daily newspaper of Quetta, and deposed that the news regarding the marriage of the accused (Exh. P. W. 9/1) appeared in his paper on the 3rd of January 1962. The news in question was to the same general effect as Exh. P. W. 8/1 which has been reproduced in the last paragraph when dealing with the deposition of Mr. Ali Mazhar Rizvi (P. W. 8). In cross -examination it was brought out from the witness that he had gone to the house of complainant one day before he appeared as a witness In the Court. He explained this visit by saying that the complainant had come to the Lahore Hotel, Lahore, where the witness and Mr. Ali Mazhar Rizvi (P. W. 8) were staying and had taken them with him to his house. I he witness said that nothing much was discussed about the case though be, Mr. Ali Mazhar Rizvi and the complainant were together for quite some time.
37. The tenth and the last witness produced by the complainant was Lt.‑General Bakhtiar Rana, Martial Law Administrator of Zone B'. He deposed that he had first known the accused In 1937 when they had served together, for one year after which they had not met for about twenty' dears, but in 1958 they came in contact again in their official capacities. The witness added that the accused came to Lahore on the 28th of December 1901 and stayed at his (witness's) house; that he had done so at his invitation which had been extended because the accused had been his host at Quetta in May 1961 ; that he had seen the accused in his house on the 28th of December 1961 at about noon but after that he did not see the accused till they dined together because he became busy with his own official duties ; that on the morning of the 29th of December 1961 he left for his office at about 7‑30 a. m. and after finishing work there left for Kharian at about noon and did not return to Lahore till the evening of the 30th 'of December 1961 ; that he and the accused did not meet on the 30th of December nor on the 31st ; that on the latter day he himself had to meet the Commander‑in‑Chief of the Pakistan Army at the railway station early in the morning ; that he bad not dined at his house on the 30th of December ; that he made no inquiries from his own servants about the accused because the accused had his own servant to attend to him ; and that nobody could stay at his house without his permission. The witness was asked by Mr. Ijaz Husain Batalvi, learned counsel for the complainant, whether he had been informed that the accused will have a lady with him in his room and he replied in the negative. He added that the first time that he came to know that a lady bad stayed at his house with the accused was when some such thing appeared in newspapers and' he was indignant. The witness said that on reading the news in the press he contacted the accused on telephone to inquire what the facts were and that the accused told him on the telephone that he had entered into a valid marriage with the lady who had stayed with him at the house and that on the 9th of January 1962 the lady in the case and the accused saw him and told him that they had entered into a valid marriage. The witness was asked by Mr. Mahmud Ali whether the document Exh. D. 1 (the alleged divorce deed) was shown to him on the 9th of January 1962 by the accused and his reply was in the negative. At another place in his deposition the witness said that neither the document Exh. D. 1 nor any other document relating to divorce was ever shown to him by the accused. He further said that some time in November 1961, possibly on the 16th of that month, the accused had told him at Peshawar, where they had gone in connection with a Conference which was presided over by the Governor of the Province, that he intended to take a second wife but the accused had given no details of the lady whom he intended to marry. I asked the witness the question whether It was at his instance that the publication of the news of this case was stopped, to which his answer was in the affirmative. He said that this was not the only case in which this was done, as general instructions were that no news which were likely to lower a public servant in the public eye were to appear in the press unless it was authentic and both sides of the picture were before the public. He added that when he learnt that the High Court had enquired from the managers of newspapers why the news had not been published, the Martial Law Authorities directed that if the High Court allowed the publication of the news, the news regarding the case against the accused could be published in the newspapers. I might mention here that it was on the 19th of February 1962 that I had first directed that a letter of request be issued to Lt.‑General Bakhtiar Rana to appear as a witness for the prosecution. On the 20th of February 1962, 1 learnt that the General could not appear on the date fixed for his deposition as he would not be back from tour till the 24th of February 1962. As under the law, an accused person cannot be called upon to enter on his defence till the prosecution evidence has finished, 1, in order that no time should be wasted in waiting for General Rana, had directed that he shall be shown as a Court witness. This was done in order to enable the accused to put in a list of witnesses. When, however, General Rana appeared in Court, he was examined as a prosecution witness and not as a Court witness.
38. After the statement of the last witness for the prosecution, namely, Lt.‑General Rana, finished on the 10th of March 1962, one of the learned counsel for the complainant stated that no further evidence was to be led by the complainant and I asked the accused certain questions to enable him to explain some of the circumstances appearing in the evidence against him, and he gave replies to them. To one of the questions which was to the effect whether he had anything else to say he replied that he will put in a written statement, if necessary.
39. Mr. Abdur Rashid, Acting Commissioner, Kalat Division, was the first witness produced by the accused. He deposed that he knew the accused who had entered into a marriage with the lady in the case on the 2nd of January 1962 ; that on the 22nd or the 23rd of November 1961, when he had gone to Quetta, the accused had invited him to a farewell dinner that evening in honour of Mr. Sher Zaman Khan, the then Additional Commissioner, Quetta, who had been transferred to Dera Ismail Khan as a Commissioner ; that though he could not attend the dinner party, he assured the accused on that occasion that he would attend the marriage which the accused said he intended to enter into with a German lady who had been divorced by her husband ; that he did not remember whether the accused had mentioned any divorce deed but he had mentioned that she was a divorcee; that he and the accused attended a meeting in the office of the Board of Revenue on the 29th of December 1961 which was presided over by Mr. Nasir Ahmad C. S. P., Member, Board of Revenue; that at that meeting the accused told him that on the 7th of January 1962 he would probably marry the lady, whom he had already mentioned to the witness in the end of November; that on the 2nd of January 1952 he received an invitation by telephone to the marriage and had attended it and had signed as a witness of the marriage, the nikahnama which is on the record as Exh. D. 6. The witness said that besides him, Mr. Darbar All Shah, then Political Agent, Quetta, Mr. Jamil Ahmad, Political Agent, Chagi, Col. Muhammad Aslam of the Military Staff College, Quetta, retired Major‑General Adam Khan, Brigadier Sardar Ismail, Mr. Ali f Mazhar Rizvi, Information Officer, Quetta, and Mr. Amir Usman, Assistant Director, Tribal Publicity, Quetta, were present at the marriage ceremony. The witness added that when the Maulvi, I.e., the nikah registrar, wanted to read the kalima to the lady and asked her to recite it after him, the accused had told the Maulvi that she knew the kalima as she was a Muslim where upon the Maulvi read out Kalima‑e‑Shahadat, which the lady repeated after him and Col. Muhammad Yusuf translated for the benefit of the lady. The witness was cross‑examined at length by Mr. M. A. Rahman, learned counsel for the complainant, with a view to showing that in certain respects his deposition was not correct and that he had made concessions to favour of the accused because of friendship and also because of the fact that he had participated in a marriage which was punishable as bigamy under the law in force in Pakistan. The suggestions made by the learned counsel for the complainant to the witness that he was making a statement not only to save the accused but also with the object of avoiding all reflections on himself were not accepted by him.
40. The second witness for the defence was Mr. Darbar Ali Shah C. S. P., who on the day he appeared in the Court was Additional Commissioner, Quetta, as well as the Political Agent of Quetta‑Pishin District. He deposed that he attended the marriage of the accused with the lady in the case on the 2nd of January 1962 and had signed the nikahnama as one of the witnesses of the marriage. With regard to what took place at the nikah ceremony, the deposition of this witness was to the same general effect as that of Mr. Abdur Rashid (D. W. 1). However, the witness was questioned by Mr. Mahmud Ali, Advocate for the accused, about two other matters. One of these matters was the document Exh. D. 7 which is a typed copy of the divorce deed Exh. D. 1. This copy bears the attesta tion of Mr. Darbar Ali Shah and shows that it was attested on the 2nd of December 1961. The witness said that at Pishin where the accused and he had gone in connection with official duties he had attested three copies of Exh. D. 1 on the 2nd of December 1961 and two copies of Exh. D. 4, the document evidencing the permission by the wife of the accused to him to take a second wife, of which copies one, namely Exh. D. 9, was on the record of the Union Committee 'F' Quetta, which was produced by Mr. Irshad Ali (P. W. 2) and to which a reference has been made in paragraph 19. The second point on which the statement of this witness went beyond the statement of Mr. Abdur Rashid (D. W. 1) was that he deposed having been present in the office of the accused at about 10 a. m. on the 2nd of January 1962 when the hand‑out Exh. P. W. 8/1, which has been reproduced in paragraph 35, was written. He said that the language of Exh. P. W. 8/1 was rather ambiguous and could be interpreted as meaning that the lady who married the accused on the 2nd of January 1962 was converted to Islam on the 2nd of January 1962 shortly before the marriage, while in fact that was not the case. The witness also said that he was at Sibi from the 11th to the 18th of January 1962 in connection with the Sibi Darbar at which the Sanads were givers by the Governor of West Pakistan and that all the other Political Agents posted in Quetta Division were also at Sibi from the 11th to the 18th of January 1962. The witness was cross‑examined by Mr. M. A. Rahman at length with a view to showing that he was giving evidence in favour of the accused not only because i.e. had known him for a long tune but also with a view to warding off all suspicion of his own conduct in attending the marriage of the accused to a foreign lady for marrying whom the accused had not obtained the permission of the Central Government which was necessary for entering into such marriages and also because he had been a witness to the marriage and had possibly abetted the offence of bigamy committed by the lady in the case and the accused but the witness refuted these suggestions. When asked to say why the accused had considered it necessary to have copies of Exh. D. 1 attested on the 2nd of December 1961, the witness replied that he did not know what the object of the accused was.
41. The third witness for the defence was Mr. A. D. Caleb, a representative of the Universal Express, which is a travel agency. He produced certain documents to show that a ticket for Mrs. Gardezi's journey to Quetta and back bad been bought on the 22nd of November 1961 by P. I. A. air service under which ticket the outward journey was to begin on the 27th of November 1961 and the inward journey on the 30th of November 1961. Receipt for the fair was given to Mrs. A. N. Gardezi. Some documents were produced by the witness. The first was the document Exh. D. W. 3/1 in which the entry was to the effect that the bill was to be sent to Messrs Siemens Pakistan Ltd., The Mall, Lahore. Another document was Exh. D. W. 3/2 in which the address of Mrs. A. N. Gardezi was mentioned as care of Messrs Siemens Pakistan Limited, The Mall, Lahore. The witness said that these entries had been made by a Receptionist and not by himself and that as the inward journey had not been undertaken by plane, part of the fare paid became refundable and a sum of Rs. 97 on that account was realised by the complainant on the 4th of December 1961. The witness produced the receipt book in which receipt No. 25311 dated the 22nd of November 1961 showed that the money bad been received from Mrs. A. N. Gardezi. The receipt book was returned as a copy of the receipt Exh. D. W. 3/4 was produced by the witness for keeping on the record but the other two documents mentioned above were retained on the record in original. The witness produced two or three other documents but as they are not very material, they need not be mentioned here.
42. The fourth witness for the defence was Mr. Niaz Muhammad, Stenographer, Department of Sociology, Punjab University, Lahore. He was produced by the defence to show that Dr. Hasan Nawaz Gardezi, a real brother of the complainant, who worked as a lecturer in the Punjab University in the Depart ment of Sociology, had taken leave only on the 15th of November 1961. The witness had to admit, however, that though no other leave application of Dr. Hasan Nawaz Gardezi existed on the
records of the University, yet he had not given any lecture to any class In the University on the 29th and 30th of November 1961. It was to clarify certain matters mentioned in the statement of this witness that I summoned Dr. Hasan Nawaz Gardezi as a Court witness on the 13th of March 1962, and he appeared the same day.
43. The fifth witness for the defence was Mr. Rahmat Ullah, Clerk, Central Telegraph Office, Lahore, who, by the summons that was issued to him, was directed to produce the original of telegram No. 3 dated 30‑10‑1961, telegram No. 3 dated 5‑11‑1961 and telegram No. 233 dated the 4th of December 1961. He produced originals of only the last two of the above mentioned three telegrams saying that the third, i.e., the one relating to the telegram dated the 30th of October 1961 had been destroyed before summons from the Court reached him. Exh. D. W. 5/1, said the witness, was the original of Exh. 2 and Exh. D. W. 5/2 the original of telegram Exh. C. W. 1/9, which have been already reproduced, the former in paragraph No. 18 and the latter in paragraph No. 30.
44. The sixth witness for the defence was Mr. Cyril G. Bhan who said that his opinion, as a handwriting expert, was that the document Ex. D. 1 was in the handwriting of the com plainant. He gave his reasons for his opinion which need not be detailed here because I will deal with them when discussing his evidence in a later part of this order.
45. The seventh witness for the defence was Father Eugene, whose evidence, as mentioned already, bad been recorded on 17th of March 1962, because of an application put in by the learned counsel for the accused on the 16th of March 1962. The witness stated that he was working in the Catholic Cathedral, Lawrence Road, Lahore, of which institution the Catholic Bishop of Lahore is the head ; that about a month or a month and a half before Christmas last year, an unknown lady by the name of Mrs. Jackson sent a telegram from Quetta that a lady who was in trouble wanted to change her nationality and religion and that Mr. Gardezi of Siemens, Lahore, should be contacted ; that thereupon he contacted the complainant on the phone and asked him to come to see him; that the complainant saw him and was shown the telegram and that the complainant said that he did not know to whom the telegram related. This telegram which was brought on record as Exh. D. W. 7/1 was produced by the complainant and shown to the witness who said that that was the telegram that he had received and added that he had handed over the telegram to the complainant. This telegram Exh. D. W. 7/1 was worded as follows:‑
46. The next witness for the defence was Syed Ishtiaq Husain, Supervisor, Telegraph Check Office, Lahore, who appeared as the eighth witness for the defence. He produced Exh. D. W. 8/1 which is the original of the telegram Exh. D. W. 7/1 handed over at Quetta on the 23rd of November 1961.
47. The ninth witness for the defence was Mr. A. Amir Usman, Deputy Director, Tribal Publicity, Government of Pakistan, Quetta. He deposed that he had gone to the Commissioner's office at Quetta on the 2nd of January 1962, that at that time Mr. Darbar All Shah, Political Agent, Quetta, and Mr. Ali Mazhar Rizvi, Assistant Director Information, Quetta, were also present ; that the accused said at that time to the three of them present there that that afternoon he was marrying a German lady who was a divorcee and who had already embraced Islam ; that soon after he and the other two persons present there left the office of the Commissioner; that on the afternoon of the 2nd of January 1962, the marriage between the lady in the case and the accused was held ; that the nikah was read by a Maulvi whose name was Maulvi Abdul Aziz ; that when the Maulvi started reading out kalma tayyaba to the lady and asked her to repeat it after him, the accused said that the lady already knew it as well as its translation, as she was already a Muslim ; that upon that the Maulvi said that he would read kalma‑e‑shahadat to her which he did ; that the lady repeated the kalma‑e‑shahadat after the Maulvi and the accused translated it into English for the benefit of the lady and the lady repeated the translation after the accused. In cross‑examination, the witness was asked by Mr. M. A. Rahman, learned counsel for the complainant, whether the accused did not own some land in District Mardan, which was the home district of the witness, and the witness replied that he did not know whether the accused has any land in the district of Mardan. He further said that he and the accused could not be called friends because their relations with each other were more or less official. It was suggested to the witness that he was under obligation to the accused but the witness refuted the suggestion. The witness was also asked whether it was not a fact that because of the good offices of the accused he had been given a post carrying a much higher salary than would ordinarily have come his way, and he answered in the negative. He was also asked whether it was not a fact that posing as her brother he had given away the lady in the case at the marriage ceremony on the 2nd of January 1962 and his answer again boas in the negative. He further said that he had been called to the office of the Commissioner Quetta and the accused had explained that a short note about his marriage should appear in newspapers as he did not want the papers to indulge in any scandal regarding his marriage.
48. The tenth witness for the defence was Mr. Farooq Ahmad, Personal Assistant to the Commissioner, Quetta Division. He deposed that he had worked as the Personal Assistant to the accused when he was the Commissioner of the Quetta Division. He produced the letter sent by the Director of Public Relations, West Pakistan, to the accused in December 1961 to which letter a reference has been made in paragraph 35 while discussing the evidence of Mr. Ali Mazhar Rizvi (P. W. 8). The witness said in examination‑in‑chief that it was probably on the 17th or 18th of January 1962, that he had typed out the document Exh. C. W. I/ 1 at Sibi at the instance of the lady in the case and that at the time be typed the document out the accused vim not in Sibi as he had gone to Harnai with the President. In cross‑examination he admitted that for some time be bad been living in the out houses of the Circuit House, Lahore, where the accused and the lady in the case were putting up. He said that he had attended the office at Quetta from the 1st to the 6th of March 1962 but before that he bad been working at Lahore with the accused. The witness was asked whether he was not selected for the post of a Naib Tahsildar by the accused and he answered in the affirmative.
49. The next witness produced by the accused was Raja Ahmad Ali (D. W. 11). This gentleman who was the Political Agent at Sibi said that he knew the accused because when the accused was the Additional Commissioner, Kalat Division, he himself was the Deputy Commissioner of Kalat District. The witness further deposed that be joined as Political Agent, Sibi in November 1961 on transfer from Lahore ; that when he took over at Sibi as Political Agent the accused was the Commissioner of Quetta Division in which Division Sibi is situate ; that he paid a courtesy call on the accused and the next time he called on him was in January 1962 probably one day after the news had appeared in newspapers about the present case having been lodged against the accused ; that he and the accused discussed the case ; that he asked the accused what the real facts were and was told that as far as the accused was concerned he had married a woman who was a divorcee and that he bad a divorce deed in his possession which was shown to him (the witness). On the document Exh. D. 1 being shown to him by Mr. Mahmud Ali, learned counsel for the accused, the witness said that that was the docu ment that the accused had shown to him at Sibi and added that the accused told him that he intended to go to Lahore to arrange for his defence and that it was possible that he would contact Sardar Muhammad Iqbal, Advocate. The witness added that be told the accused that Sardar Muhammad Iqbal was slightly acquainted with him, whereupon the accused asked him to introduce him to Sardar Muhammad Iqbal either on the telephone or by some other means and that he (the accused) would decide when at Lahore which counsel to engage. The witness proceeded to say that it was probably on the 9th of January 1962 that the accused sent him a telegram the purport of which was that the witness should speak to Sardar Muhammad Iqbal, that thereupon he contacted Sardar Muhammad Iqbal on the telephone and talked to him about the case of the accused ; that Sardar Muhammad Iqbal said that he had got the facts of the case from a newspaper wherein it was mentioned that the accused had married a woman who was already married ; that he told Sardar Muhammad Iqbal that the accused had a divorce deed with him ; that upon hearing this Sardar Muhammad Iqbal said that that changed the entire complexion of the case and that if the accused saw him he would discuss the case with him. In cross‑exami nation the witness was asked by Mr. Ijaz Husain Batalvi whether the document Exh. D. 1 was in the same condition in which it was in Court and he answered in the affirmative. Asked whether he had inquired from the accused why the document was in that condition the witness said that he did not care to put that ques tion to the accused. In answer to another question the witness said that he himself had broached the subject of criminal com plaint with the accused. The witness also said that every year an annual Jirga takes place at Sibi and that the period is known as the Sibi Week.
50. The last witness for the defence was Mr. Zaka A. Malik (D. W. 12) who too, like Mr. Cyril G. Bhan (D. W. 6), gave evidence as a handwriting expert. The witness said that after examining a number of documents, some of which were admittedly in the handwriting of the complainant, he had arrived at the conclusion that the document Exh. D. 1 (the alleged divorce deed) was in the handwriting of the complainant, though the handwriting appeared to be disguised. At this stage, I need not give details of the deposition of this witness and will do so when I discuss the question whether or not any weight should be attached to his deposition.
51. I have said in paragraph 7 that six persons were exa mined by me as Court‑witnesses and have given their names in that paragraph. The most important of the Court‑witnesses was the lady in the case who was examined as C. W. 1 and whose deposition has been detailed by me in paragraphs 25, 26, 27, 31 and 33, and I will now deal with the evidence given by the other five persons examined as Court‑witnesses. The second Court witness was Sardar Muhammad Iqbal, Advocate. He was appear ing as a counsel in the case but I examined him as a witness on the 1st of February 1962. This course had been followed by me because on the 30th of January 1962 he held a whispered conversation lasting for about fifteen minutes with the lady in the case when she was in the witness‑box in the middle of her deposi tion when he was asking her questions. Soon before I examined Sardar Muhammad Iqbal as C. W. 2, I had asked the lady in the case what had passed between her and C. W. 2 during the lengthy whispered conversation in the Court room and I asked the same question from Sardar Muhammad Iqbal. On the second occasion, I examined Sardar Muhammad Iqbal on the 14th of March 1962. An application had been made by the complainant himself on the 10th of March 1962 that Sardar Muhammad Iqbal be re‑called and the complainant allowed to ask some questions from him. This application did not bear the signature of any of the counsel of the complainant but only that of the complainant himself but the absence of the signature of a counsel would not establish that none of the counsel, for the complainant had given his approval or drafted the application because it is not unusual with legal practitioners to draft or correct a document but not to proclaim its authorship if the application deals with a matter with which the legal practitioner did not want to appear associated. I passed order on this application put in by the complainant that Sardar Muhammad Iqbal would be summoned if and when I felt the necessity of examining him. On the 14th of March 1962, Sardar Muhammad Iqbal was examined by me and as Mr. Mahmud Ali had said on the day that the complainant had put in his applica tion for summoning Sardar Muhammad Iqbal as a witness that he would like to be heard before Sardar Muhammad Iqbal is examined and I had believed that Mr. Mahmud Ali's view was that it was beyond my power to examine as a witness a person who was or had been a counsel in the cane in which it was intended to examine him as a witness, I asked Sardar Muhammad Iqbal some questions to find out whether the lady in the case had at any time been his client. I had started the examination of Sardar Muhammad Iqbal without allowing Mr. Mahmud Ali to address arguments on the point whether or not an Advocate could be examined as a witness in the circumstances In which Sardar Muhammad Iqbal had been or was intended to be examined but made it clear to Mr. Mahmud Ali that it will be open to him to object to any question that may be asked and if, his objection was upheld the question and its answer if any would not form a part of the record. The statement which Sardar Muhammad Iqbal made on the 14th of March 1962 was to the effect that the document Exh. D. 1 had been shown to him by the accused on the 10th of January 1962, that on that date the accused had told him that the lady in the case had embraced Islam on the 26th of October 1961 and that after he withdrew from the case on the 3rd of February 1962 he had discussed the case with Mr. Mahmud Ali but that he had done that because Mr. Mahmud Ali had expressed a desire to his doing that and not at the request of the accused.
52. Mrs. Hasan Nawaz Gardezi, who Is the wife of a full brother of the complainant Dr. Hasan Nawaz Gardezi, as already mentioned by me in paragraph 7, was summoned at the instance of the defence, the case of the accused being that on the 27th of November 1961 this lady had accompanied the complainant when according to the accused the complainant had gone to see the lady in the case at the airport when she left for Quetta. Ordinarily, I should have left it to the accused to summon the witness if he considered her deposition would be of benefit to him; but as it was felt by me that the counsel for the accused may not be able to get anything in favour of the accused out of the witness unless she was asked questions which could be asked In cross‑examination, I summoned her as a Court witness. She deposed that she had come to Lahore on 25th November 1961 as the wife of Dr. Hasan Nawaz Gardezi, a real brother of the complainant; that she and her husband started living in the house of the complainant on her arrival at Lahore and lived there for about two months; that she bad entered into a marriage with Dr. Hasan Nawaz Gardezi at Karachi a few days before she came to Lahore with her husband, that at this marriage Muslim rites were observed though she had not turned a Muslim and continued to be a Lutheran by religion ; that the two real brothers of her husband, namely, the complainant and Dr. Ali Raza Gardezi, who Is a Professor of Surgery at Peshawar, were married to foreigners and the wife of Dr. Ali Raza Gardezi was a Briton; that on the 27th of November 1961 the lady in the case saw her at about noon and told her that she was going out of Lahore to visit some friends and she (the witness) should take care of her daughter; that the lady in the case left Lahore on the 27th of November 1961 and returned some days later that her own husband left Lahore on the evening of the 27th of November for Multan and returned from there on the morning of the 30th of November ; that the complainant returned to Lahore on the 29th of November 1961 from tour ; and that she told him that the lady In the case had left on the 27th of November and asked him when she was expected to return, whereupon he said that he did not even know that she had left. On the 2nd occasion this witness was examined on the 14th of March 1962, when Mr. Mahmud Ali asked her a number of questions as he had done on the occasion when she appeared as a witness on the 10th of March 1962. The only thing that could be brought out in her statement was that the date she gave of the departure of her husband for Multan and of his return from there and that of the return of the complainant from tour were different by one day from the dates given in the depositions of the complainant and her husband. In answer to a question asked by Mr. M. A. Rahman, the witness said, as is clear from a note on the record made by me on the 19th of March 1962 at pages 485 and 486, that she had given the dates from memory as she was not keeping a diary.
53. The fourth Court witness was Mr. Muhammad Nasir, District Sales Manager, Pakistan International Airlines, Shah Din Building, The Mall, Lahore, who produced a chart marked Exh. C. W. 4/1, wherein the flights of P. I. A. planes between Quetta and Lahore from the 1st of September 1961 to the 21st of December 1961 are shown. The witness said that the plane service between Quetta and Lahore had stopped on the 22nd of December 1961. This chart shows that a plane which went from Lahore to Quetta on the 27th of November 1961, left at 1 p.m. and that a plane reached Lahore from Quetta on the 30th of November at 11‑40 a.m.
54. The next person examined by me as a Court witness was Mr. Jamil Ahmad C.S.P. who, on the date when he appeared in Court, was the Political Agent at Chagi. As already mentioned by me in paragraph 7, this gentleman though summoned as a witness by the accused was not examined on behalf of the defence. The witness deposed that he had seen the document Exh. D. I at Sibi in possession of the accused either on the 13th or 14th of January 1962 ; that he had gone to Sibi in connection with Sibi Darbar which was presided over by the Governor of the Province of West Pakistan ; that the document Exh. D. 1 had been shown to him by the accused at his own house ; that as far as he remembered besides him, the persons present at the time when the accused showed him the document were his own wife and the lady in the case ; that he was not definite whether the Additional Commissioner, Quetta, namely Mr. Darbar Ali Shah, was present at that time. On being questioned by Mr. Batalvi, on behalf of the complainant the witness said that when he saw him the accused had expressed his indig nation at the complaint having been lodged' against him by the complainant in spite of the fact that the complainant had given the divorce deed Exh. D. 1 to the lady in the case. The witness, in answer to questions asked by Mr. Batalvi, said that he had attended the marriage solemnised between the lady in the case and the accused on the 2nd of January at about 4‑30 p.m. at Quetta and that he was definite that it was only after the lady in the case had read the kalma after Maulvi Abdul Aziz, Nikah of Registrar, (P. W. 3), that she was referred to as Ruqayya.
55. The last person to appear as Court witness was Dr. Hasan Nawaz Gardezi, a real brother of the complainant. The state ment of this witness was considered necessary after the statement of Mr. Niaz Muhammad (D. W. 4) had been made in Court on the 13th of March 1962. Doctor Hasan Nawaz Gardezi said that he did not know at what time on the 27th of November 1961 the lady in the case had left the house of the complainant; that the complainant had left his house that morning to go to his office ; that when he himself returned to the house of the complainant after doing work at the Punjab University Office, the complainant had left for Peshawar on tour ; that he did not know for how many days the complainant had gone on tour; that when he himself returned to the house at about 1‑30 p.m. on the 27th of November 1961 he did not find the lady in the case there ; that he made inquiries from his own wife about the lady in the case and was told that she had gone out of town to see some friends but it was not known for how long she had gone ; that though he was at Lahore on the 28th of November 1961 he was not here either on the 29th or 30th of November 1961 because on those two days he was at Multan from where be returned on the 1st of December or the 2nd of December 1961 by the morning train ; that there was no conversation between him and the complainant about the lady in the case because he had taken it for granted that she had left with the knowledge of the complainant ; that she returned to Lahore on the 2nd of December 1961 and that she did not take lunch in the dining room as his wife, he himself and the complainant did. When the above statement, which was given on being questioned by me, finished, I called upon Mr. Rahman to ask any question that he chose from the witness and Mr. Rahman replied that he did not want to ask any question. When called upon to ask questions from the witness, Mr. Mahmud Ali stated that he would not like to ask questions from the witness unless the wife of the witness, namely, C. W. 3, was available as he wanted to question the husband and wife about the same matter. This request of Mr. Mahmud Ali was acceded to and he asked C. W. 6 questions the next day, i e., the 14th of March 1962. When questioned by Mr. Mahmud Ali, the witness said that he had lived in the house of the complainant approximately from the beginning of September 1961 to the beginning of January 1962 ; that he shifted to his own house in the second week of January 1962 which house was bought by his father for him in Gulberg ; that his own bed‑room in the house of the complainant was next to that of the lady in the case and the complainant ; that he had not discussed with the complainant the fact that the lady in the case had left Lahore when he (the complainant) was not in Lahore ; that he had not considered the discussion necessary because he had been under the impression that her departure was not sinister and that during his stay at the house of the complainant he had not noticed that the lady in the case and the complainant were not on good terms or that they were quarrelling and that the complainant had not beaten her in his presence or to his knowledge.
55‑A. From the evidence on the record which has been detailed by me above, it is clear that some of the facts relating to this case are not in dispute. They are as follows :‑
(1) That the lady in the case and the complainant entered into a contract of marriage at Hull (England) on the 21st of July 1951;
(2) that three children, namely, one daughter and two sons, of whom the daughter is the eldest, were born of this union ;
(3) that the last time that the complainant and the lady in the case returned from Europe was In August 1961 and that they came into contact with the accused at Quetta on the 13th of August 1961 for the first time ;
(4) that the accused was rather nice to the couple when they were at Quetta ;
(5) that after their first meeting on the 13th of August 1961 the lady in the case and the complainant on one side and the accused on the other developed a friendship and indeed the accused started calling the complainant a younger brother ;
(6) that the accused came to Lahore a number of times and on two of such visits stayed at the house of the complainant before the end of September 1961 ;
(7) that a letter written by the accused on the 9th of November 1961 to the lady in the case happened to fall into the hands of the complainant and that this letter contained profuse declarations of love ; (the letter has been reproduced in paragraph 9) ;
(8) that on the 27th of November 1961, the lady in the case went from Lahore to Quetta by plane and on the same day the complainant left for Peshawar on tour ;
(9) that when on the evening of the 29th of November 1961 the complainant returned to Lahore, one day earlier than he was expected to return, he found the lady in the case missing and contacted her on the telephone at Loralai ;
(10) that the lady in the case returned to Lahore from Quetta on the 2nd of December 1961 ;
(11) that when the accused came to Lahore on official business on the 28th of December 1961 he stayed at the house of Lt.‑General Bakhtiar Rana, Martial Law Administrator of Zone B' ;
(12) that on the 30th of December 1961, when the com plainant was at his office, the lady in the case left his house and went to the accused who was in the house of Lt.‑General Bakhtiar Rana;
(13) that in the afternoon on the 30th of December 1961 the complainant went to the house of Lt.‑General Rana and tried to persuade the lady in the case to return with him to his house but did not succeed ;
(14) that the lady in the case and the accused left Lahore by the Khyber Mail on the morning of the 31st of December 1961 and entered into a marriage under Muslim rites at Quetta on the 2nd of January 1962 at which ceremony and in the docu ments executed at the time of the ceremony the name of the lady was stated to be Ruqayya ;
(15) that on the 5th of January 1962, the complainant lodged a , complaint of which the outcome is the present
(16) that on the 7th of January 1962 the lady in the case and the accused learnt of the present proceedings.
56. The case of the accused, which was supported by the lady in the case, was :
(1) That an understanding was entered into on the 25th of October 1961 between the lady in the case, the complainant and the accused that as she loved the accused she would be allowed to go with him after ‑three months if in the meantime she did not 'change her mind.
(2) That on the 26th of October 1961, the lady in the case gave up Christianity and became a Muslim in the presence of (3) That on the 16th of November 1961 the complainant gave a writing to the lady in the case which was intended to be a deed of divorce. '
(4) That In spite of this divorce deed, the lady in the case continued to live in the house of the complainant because two of her children, who were studying at Lawrence College, Ghoragli, were to come to Lahore on their annual winter vaca tion and were to remain at Lahore till March 1962.
(5) That as the lady in the case came to the conclusion in the end of December 1961 that it was not possible for her to continue to live with the complainant she left his house and went to the accused and that as the lady, having been divorced by the complainant, was a free woman, the accused had entered into a valid marriage with her and had thereby committed no These assertions were not accepted as correct by the complainant whose case is that the lady in the case had been enticed and taken away by the accused during the continuance of her marriage with the complainant, that the accused has committed adultery with the lady in the case, and that the marriage entered into between the lady in the case, and the accused is unlawful and thereby the lady in the case has been guilty of bigamy.
57. The evidence in the case finished on the 20th of March 1962 and the arguments started from the next day. The first person to address me regarding the case was Mr. Norman Edmunds who, as mentioned by me in paragraph 8, had been requested by me to address me on the two questions of law which I felt arose in the case. The address of Mr. Norman Edmunds, which lasted for four days, was learned and thorough, and I feel that I cannot thank him enough for the labour he put in without any monetary remuneration. He cited a number of authorities in support of his view that the marriage solemnised between the lady in the case and the complainant was valid under the English Law which at the relevant time was contained in the English Marriage Act, 1949, 12 and 13 George VI, Chapter 76. He drew my attention to sections 5, 26, 28, 45, 46, 47 and 48 of the Act to support his contention that the marriage was valid. During his address, Mr. Norman Edmunds touched upon the point that if, as mentioned in Mulla's Book on Muhammadan Law, a Shia man could not enter into a marriage with a Kitabia woman unless the marriage was in the form of Muta (temporary marriage) for a fixed period, the marriage entered into in England would cease to be binding as soon as the spouses set foot on Pakistan soil. He added, however, that if permanent marriage between a Shia man and a Kitabia woman was not invalid under the Shia Muslim Law, the marriage of the lady in the case and the complainant solemnised in England before the Registrar of Marriages at Hull would continue to be a valid marriage which could not be dissolved except by the decree of a Court of law of competent jurisdiction. Mr. Norman Edmunds contended that the only manner in which a marriage solemnised under the English Marriage Act, 1949, could be dissolved in Pakistan was by a decree of a Court and that, at any rate, the decree of a Court was absolutely necessary if one of the parties happened to be a Christian by religion, as the lady in the case was. He added that if it be found by the Court that the lady in the case had embraced Islam in Pakistan, the marriage entered into at Hull between her and the complainant could not be dissolved except by a decree of a Court, and that even if it could be dissolved by the pronouncement of talak by the husband in the case of Shia Muslims the talak had to be pronounced not only in the presence of the wife but also in that of two witnesses. Mr. Norman Edmunds asserted that decision which had taken the view that if persons who at the time when they entered into a marriage were Christians became Muslims later on, the marriage could be dissolved y pronouncement of talak by the husband had not laid down the law correctly. He also criticised the views expressed by Mr. Justice Scarman in Russ v. Russ ((1962) 2 W L R 708). I might mention here that an anonymous letter received by me contained a cutting from the newspaper Times published in London on the 2nd February 1962, wherein it was said that Mr. Justice Scarman of the High Court of Justice in England, Probate, Divorce and Admiralty Division, had held that the pronouncement of talak by a Muslim husband terminated the marriage between him and his Christian wife, though the marriage had been entered into in England, in which country the pro nouncement of talak could not affect the termination of the relationship of husband and wife between the spouses. I had sent a copy of the cutting from the newspaper Times to Mr. Norman Edmunds, Mr. S. M. War, counsel for the accused, and Mr. M. A. Rahman, counsel for the complainant, so that they may be In a position to address me on the point that was stated in the Times to have been adjudicated upon by Mr. Justice Scarman of the High Court of Justice in England.
58. To support his contentions to the effect that the marriage entered into between the lady in the case and the complainant at Hull wits valid and could not be dissolved by any means other than the decree of a Court, Mr. Norman Edmunds cited a number of decisions of English Courts, such as :‑
(1) Chetty v. Chetty 1909 Probate 67.
(2) Warrender v. Warrender 37 Revised Reports 188.
(3) Ann Sugden otherwise Lalley v. William Martin Lalley 37 Revised Reports 249.
(4) Brook v. Brook (1868) 9 House of Lords 193.
(5) In Ex Parte Anwar‑ud‑Din 115 L T 882.
(6) Middford v. Middford 129 L T 153.
(7) Hyde v. Hyde (1866) 1 Probate 130.
(8) Harney v. Farnic 48 L T 273.
59. With regard to his contention that the marriage entered into at Hull between the lady in the case and the complainant was a monogamous marriage, which could be dissolved only by a decree of a Court of law, Mr. Norman Edmunds relied on the following authorities: ‑
(1) Juggomohun Ghose v. Manickchand and Kaisreachand 7 Moore Indian Appeals 263.
(2) B. Nand Kishore v. Behari Lal and others A I R 1932 All. 6C0.
(3) Farooq Leivers v. Adelaide Bridget Mary P L D 1958 Lah. 431.
(4) Amir Ali's Muhammadan Law, Third Edition, page 201.
60. After Mr. Norman Edmunds closed his address, Mr. Mahmud Ali, the senior of the learned counsel for the accused, started his arguments. He addressed me at length both on the factual and legal aspects of the case. When Mr. Mahmud Ali finished his arguments, Mr. M. A. Rahman addressed me on facts while Mr. Ijaz Husain, Advocate, addressed me on legal questions including those that were raised by Mr. Mahmud Ali. In reply to the arguments addressed by the learned counsel for the complainant, Mr. S. M. Zafar, Advocate, addressed me briefly. On the arguments addressed by Mr. Norman Edmunds and the learned counsel for the parties the following questions fall for determination: ‑
(1) Whether the marriage entered into between tale lady in the case and the complainant at Hull (England) in the year 1951 was invalid under the Shia law and, therefore no offence against accused, under sections 497 and 498 of the Pakistan Penal Code was established
(2) If the marriage entered into at Hull was not invalid, was it dissolved on the 16th of November 1961 by means of the document Exh. D. 1
(3) Whether, as stated by the lady in the case herself and the accused, she had embraced Islam on the 26th of October 1961, and, therefore, even if she could not have been divorced by the complainant if she had continued to be a Christian he was competent to terminate the marriage by divorce when she became a Muslim
(4) Whether the rule of Shia Law to the effect that a talak could not be valid unless it was pronounced in presence of two witnesses was not a rule of substantive law but only that of evidence and the fact that the divorce in the present case was stated to be in writing, i.e., by means of Exh. D. 1, did not prevent the termination of the marriage between the divorcer and the divorcee
(5) Whether section 7 of the Muslim Family Laws Ordinance, 1961, did not apply in the present case because though the person who pronounced the divorce was a Muslim and a citizen of Pakistan, the person who was divorced was not a citizen of Pakistan and the divorce could, therefore, become operative in spite of the fact that a period of three months had not elapsed from the date of the pronouncement of the divorce
(6) Whether even if the marriage between the complainant and the lady in the case subsisted and had not been dissolved by means of Exh. D. 1, the love affair between the lady in the case and the accused was consented to and connived at by the complainant and, therefore, the accused could not be con sidered guilty of either of the two offences with which he was charged
(7) Whether in case it be held that the divorce deed Exh. D. 1 was not genuine, the accused had acted in good faith and, therefore, could not be criminally punished
61. Before I take up the consideration of the questions mentioned in paragraph 56 and the last paragraph, I will deal with some points which, though not argued‑ by Mr. Mahmud Ali or Mr. S. M. Zafar, Advocates, when they addressed me on behalf of the accused. were at times hinted at by the former. I recall that before he began his address on the case, Mr. Mahmud Ali said that he did not intend to comment upon some of the actions taken by me during the trial, but he was not to be under stood to be accepting those actions as either legal or proper, whereupon I pointed out to him that it was not open to anyone' except an appellate Court to point out to the presiding officer of a Court that any of his actions was improper, though it was open to the parties and their counsel at any stage to point out to him that what he had done offended against the law of the land and was, therefore, illegal. Whether a thing which the law of the land allows to be done can be considered to be Improper by anyone including a Court of law is a matter with which I do not consider it necessary to deal, because the thing having been hinted at with regard to my own proceedings, my opinion may perhaps be biased. Speaking for myself, I have not, during my twelve years' career as a Judge of this Court, even once considered it necessary or desirable to class any action of a subordinate court to be improper if it was allowed by the law which governed the trial. The law either allows a thing or It does not. If the latter is the case, it is obvious that a Judge doing it lays himself open to the charge of having done a thing which the law does not allow and his action can receive stronger epithets than improper. If, on the other hand, a thing done by a Court is allowed by law, I cannot think of any ground valid in law on which the thing done can be described by anyone including an appellate Court to be improper, when even the appellate Court is bound by the same law by which the trial Court was. My own attitude as a Judge in such matters has been to judge the actions of the Courts, the decisions of which I deal with in the exercise of the appellate or the revisional jurisdiction of the Court of which I have the honour of being a member, from the standards set down by law rather than by those set down by anything else even though that other thing may be the decision of the highest Courts in Pakistan or abroad provided the Courts of ultimate jurisdiction in Pakistan had not said that the thing done was not allowed by the laws in force in Pakistan.
62: But though Mr. Mahmud Ali, Advocate, would not openly say what actions of mine, pertaining to the trial of this case, had not met with his almost silent disapproval, he either intentionally or unintentionally dropped hints now and then that I had acted improperly in calling some persons as Court witnesses and examining Sardar Muhammad Iqbal who was, in the opening stages of the case, a counsel for the accused, as a witness in the case. It is necessary to record here in some detail the reasons why I took the unusual step of examining Sardar Muhammad Iqbal as a witness. In this connection, I refer to the proceedings in the trial after the lunch interval on the 30th of January 1902 on which day I had started the examination of the lady in the case as the first Court witness. I examined her before the lunch interval and asked her some questions after which Sardar Muhammad Iqbal asked her questions. After the lunch interval, Sardar Muhammad Iqbal asked the witness a question with regard to a matter about which I myself had asked her a question. The answer she gave to the question asked by Sardar Muhammad Iqbal was different to the one she had given to precisely the same question when asked by me, whereupon I asked her if she could explain why the answer she bad given to the question asked by Sardar Muhammad Iqbal was more elaborate than her answer to the same question asked by me, and she gave the reply that she had given a written statement which contained all the facts. As I had not seen any written statement of the witness, I asked her to state whom she had given that written statement to and she said she had given it to Sardar Muhammad Iqbal. I asked her whether she had consulted Sardar Muhammad Iqbal with regard to what statement to make in Court and her reply was that she had given a written statement to him so that he should know exactly what her statement in Court would be. On‑being questioned by me who told her that she would be a witness in the case, she replied that she had just guessed it and that her commonsense had helped her in making that guess. On being questioned by me whether she had any objection if I saw that statement, she replied that she had none. A little later, Sardar Muhammad Iqbal made a statement that as the witness, who was his client, had no objection to her written statement which she had given to him being placed on the record and as he himself had done, he had no objection to the written statement being placed on the record. It would be better if I reproduce here from the record of the proceedings matters that transpired shortly after the above statement of Sardar Muhammad Iqbal. A reference to pages' 41 to 93 of the record will show what follows: ‑
"Q. Did you give Sardar Muhammad Iqbal any fee
A. Not yet.
Q. Was any fee fixed to be paid to him by you
A. No.
Q. Did you tell him that you had come to him as a client or that you had just accompanied Col. Yusuf
A. No. Mr. S. M. Zafar was also present when I consulted Sardar Muhammad Iqbal.
(Note :‑After consulting the witness, Sardar Muhammad Iqbal has decided after a quarter of an hour, to place the typed document, which the witness gave to him, on the record of this case. I have made it clear to him that if it is necessary for the purposes of the decision of this case to mention any part of this document in the judgment, I will do so. This document is Exh. C. W. 1/1 (fourteen sheets) each sheet typed on one side.)"
When questioned further by me about the document, the lady in the case stated that the document did not contain any note after the 30th of December 1961. Sardar Muhammad Iqbal asked her the following question which is recorded at the bottom of page 92 of the record.
''Q. Are these papers I am showing to you the questions in your own handwriting which you instructed me to ask , Mr. Gardezi
A. Yes."
The note made by me at the top of page 93 of the record is in the following terms: ‑
"Mr. Iqbal states that these questions be placed on the record along with the other document and as the witness has no objection to it, I accede to the request of Sardar Iqbal."
The consultation between Sardar Muhammad Iqbal and the lady in the case with regard to the document Exh. C. W. 1/l, which lasted for quite fifteen minutes, was in whispers, as is clear from the statement of C. W. 1 made on the 1st of February 1962 which is recorded at the bottom of pages 136 and 137 of the record. At page 137 occurs the following statement of the lady: ‑
"Q. Would you recall that when Exh. C. W. 1/1 was given to me day before yesterday, you and Sardar Muhammad Iqbal whispered about this for about a quarter of an hour before it was handed over to me
A. This is correct.
Q. Would you tell me what transpired between you and Sardar Iqbal at that time
A. There were certain facts mentioned in Exh. C. W. 1/1 which I did not want to be disclosed in open Court.
Q. Could you tell me what those facts were
A. The facts related to the proposed marriage of Mr. Gardezi with a young lady from Mardan.
Q. This discussion could not have taken a quarter of an hour
A. I also did not wish it to be known that there was a party at the house of some friend of ours at Lahore. I enquired of Sardar Iqbal whether it was absolutely necessary that this kind of statement should be placed on the record. My reason for my original refusal was that I thought that the counsel of the complainant might cross‑examine me by reference to this statement. Sardar Iqbal re‑assured me and I finally agreed to submit‑"
I will not comment here on that part of the statement of the lady in the case which is to the effect that she had originally refused to show the statement to the Court If she intended to say that her refusal was addressed to me and will merely point out that, as I have already indicated, she had declared her willingness to the statement being seen by me. Under the statement of C. W. 1 made on the 1st of February 1962, I recorded this note: ‑
"When the statement of C. W. 1 was taken with regard to the conversation that took place between her and Sardar Muhammad Iqbal day before yesterday, Sardar Iqbal was asked to go out."
When Sardar Muhammad Iqbal was called in after that, I examined him as the second Court witness, and the statement he made on the 1st 'of February 1962, occurs at pages 137 and 138 of the record. The statement reads as under :‑
"Q. Would you recall that when Exh. C. W. 1/1 was given to me by C. W. 1 day before yesterday, you and she whispered for about a quarter of an hour before she handed over that statement to me. What transpired at that time
A. I told her that since Exh. C. W. 1/1 contained the facts of the case that were given to me, this was a good opportunity to present what the actual facts were.
Q. Can you recall what were the precise facts which she mentioned
A. She said that some matters mentioned in that statement had not been brought on the record of the Court and she did not wish them to be brought on the record.
Q. Any other reason
A. I merely persuaded her that it would be all right even if the document were placed on the record.
Q. Is it your practice to get written statements from clients
A. My practice is that in case of educated clients, in order to know the full facts, I generally ask them to give me the statement in writing. I did not inspect the record of this vase. The record was inspected on the 2 7th of January 1962 by some counsel but the application was given by Mr. S. M. Zafar Earlier than that, I had requested Mr. Rahman to give me a copy of the complaint and I had got it from him."
1t appears necessary to point out here that on the 1st of February 1962, 1 recorded an order, the gist of which was that I had considered it necessary to take the statement of Sardar Muhammad Iqbal because during the examination of C. W. I there was a whispered conversation for about a quarter of an hour between him and the witness, and I wanted to know what had passed between them, adding that I would have examined Sardar Muhammad Iqbal soon after the incident but as the witness was in the witness‑box and Sardar Muhammad Iqbal might have felt embarrassed in acting as the counsel of the accused after that, I refrained from doing so. After I had recorded his statement, I made it clear to Sardar Muhammad Iqbal that as the statement he had made did not concern the merits of the case, the fact that his statement had been recorded as a witness need not, in any manner, embarrass him in the defence of the accused, but added that if he felt that he should withdraw from the case, it would be his duty to return the entire fee to the accused, because the situation that had arisen had been due to his unusual behaviour in talking in whispers to a person who was in the witness‑box.
63. That Mr. Mahmud Ali felt that by examining Sardar Muhammad Iqbal, I had done a thing which no one and not even the law would look at with favour is clear from the fact that when I considered it necessary to take the statement of Sardar Muhammad Iqbal at that stage in the trial at which Mr. Mahmud Ali had taken charge of the case on behalf of the accused, Mr. Mahmud Ali requested that he should be heard before that was done. The second statement of Sardar Muhammad Iqbal as the second Court‑witness was, as mentioned by me in paragraph 51, taken on the 14th of March 1962. Mr. Mahmud Ali wanted to argue before the statement of Sardar Muhammad Iqbal started that he could not be examined as a witness, but I pointed out to him that as under section 118 of the Evidence Act all persons] were competent witnesses unless the Court, for some reason, considered that they were not, it was open to Mr. Mahmud Ali to object on behalf of the accused to any question that he R considered contravened the law, but it was not open to him to urge that a legal practitioner who was engaged by a party to a proceeding could not be examined as a witness in that case. After that Mr. Mahmud Ali was not prepared to go the length of saying that as soon as a legal practitioner was engaged by a party to a proceeding in a Court he became immune from being called as a witness, yet he raised objections to almost all questions that I asked Sardar Muhammad Iqbal, including questions whether he had charged any fee from the lady in the case and on what day she had seen him. However, it gave me some satisfaction that Mr. Mahmud Ali did ask Sardar Muhammad Iqbal some questions which I had wanted to ask the witness but which Mr. Mahmud Ali would probably have objected to if I had asked them.
64. In view of what happened during the trial, and I refer here not only to the whispered conversation which Sardar Muhammad Iqbal bad with a person who was still in the witness‑box and was being asked questions by him, but also to a lengthy statement which he put in Court when he withdrew from the case on the 3rd of February 1962, which statement he insisted for some reason to read out in open Court, I consider it my duty to say that it would probably not have done either him or the legal profession any harm if Sardar Muhammad Iqbal had exercised some restraint. That some portions of the statement put in by Sardar Muhammad Iqbal were objectionable can hardly be doubted, but I had overlooked them because from what he stated it appeared to me that his fear was that the fact that I had examined him as a witness might make some people draw inferences against him. This fear, if it existed, should have vanished and I trust did vanish when I mentioned in the order passed on the 3rd of February 1962, whereby I allowed Sardar Muhammad Iqbal to withdraw from the case, what my reason for examining Sardar Muhammad Iqbal was.
65. It appeared to be the view of Sardar Muhammad Iqbal, Mr. S. M. Zafar and Mr. Mahmud Ali that all statements made to a legal practitioner in connection with his engagement in a case are immune from examination in a Court of law but that, in my opinion, is not the law. The Evidence Act grants protec tion to some statements made by a client to his counsel and a provision in that regard is contained in section 126 of the Evidence Act, which reads as under: ‑
"No barrister; attorney, pleader or vakil shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, attorney, pleader or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment
Provided that nothing in this section shall protect from dis closure :‑
(1) any such communication made In furtherance of any Illegal purpose ;
(2) any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment.
It is immaterial whether the attention of such barrister, pleader, attorney or vakil was or was not directed to such fact by or on behalf of his client.
Explanation.‑The obligation stated In this section continues after the employment has ceased."
It will be noticed that the above‑reproduced section says that a legal practitioner cannot be compelled to disclose without the consent of his client a communication which passed between him and his client. The question that arose, therefore, was whether the lady in the case, who at the time she saw him was not a party to the present case but only a possible witness, could be considered to be a client of Sardar Muhammad Iqbal. I have given the matter my most anxious consideration and have arrived at the conclusion that the word "client" used in section 126 of the Evidence Act means a person who is a party to a proceeding. Can anybody seriously urge that a woman, who is alleged to have been enticed away and with whom adultery is alleged to have been committed, is a party to the proceedings against the man alleged to be the enticer and adulterer when it is clearly mentioned in section 497 of the Pakistan Penal Code that the wife shall not be punishable as an abettor. Section 498 of the Pakistan Penal Code does not make the wife alleged to have been enticed away an accused person and, therefore, it could not be believed that she could be a party to the case. In the present proceedings, the lady in the case was nothing but a witness and ii' it were to be held that a witness can engage a legal practitioner, and claim the protection mentioned in section 126 of the Evidence Act, this will amount to encouragement of perjury which, I am S clear in my mind, is not the object of section 126 of the Evidence Act. The law, no doubt, allows a person who Is a party to a proceeding the right to engage a legal practitioner, but this right is not extended to a witness, with the result that if a witness consults a legal practitioner with regard to the statement that Is intended to be made in Court, neither the legal practitioner nor that person can claim the privilege given by section 126 of the Evidence Act and the legal practitioner can be asked questions with regard to the statement which the witness had made to him in order to contradict the witness. I need hardly say that what I have said above about a witness in relation to section 126 of the Evidence Act has no application when the case under con sideration is of a person who is a witness in a proceeding in which he is a party because in that case section 126 of the Evidence Act will clearly have application. ,
66. But apart from general considerations which apply to such cases, the claim that Sardar Muhammad Iqbal should have been treated as a legal adviser of the lady in the case is hard to accept. It was hinted at in the 5‑page written statement which Sardar Muhammad Iqbal put in on the 3rd of February 1962, which he described as his application for permission to withdraw from the case, that a bigamy case was in the offing and she would have been an accused person in that case. What would happen if the bigamy case starts, God knows alone It is clear that if there were a conviction in the present case, the counsel who conducted the present case will, probably, not be engaged In the bigamy case because it would be believed either that he was not competent or that he had not put in his best. In order to clear all ambiguity on the point, I asked Sardar Muhammad Iqbal when he appeared on the 14th of February 1962 to state whether he had a registering which he made entries with regard to the fees he accepted from clients. He came out with a reply which I confess surprised me. This reply was to the effect that he had not got a register and that even the Income Tax authorities bad never insisted on his showing them a register when dealing with the matter of assessment of income‑tax on his income. I should have thought that the income‑tax authorities would insist on the account books being produced, but as I have no reason to doubt the statement of Sardar Muhammad Iqbal on this point, I have to change my opinion with regard to the rules in the matter being very strict. Here, another matter which is not without significance may be mentioned. Mr. S. M. Zafar, who was also engaged along with Sardar Muhammad Iqbal as a counsel for the accused, put in a slip for inspecting the record and in the slip, which has been marked as C. W. 2/1, the offence has been mentioned to be one under section 494, Pakistan Penal Code, and the only person shown as an accused is the accused. Can't one infer from the inspection slip that it was believed that the lady was not an accused person in the case under section 494 of the Pakistan Penal Code either. It was in the circumstances detailed above that I considered that I was doing no injustice nor committing an illegality in using the written statement Exh. C. W. 1/1 for contradicting the lady in the case under section 145 of the Evidence Act.
67. The second matter which did not appear to meet with the approval of Mr. Mahmud Ali and with regard to which he now and then dropped merely oblique hints, namely, that so many persons were examined as Court witnesses, and many questions were asked by me from various witnesses may now be taken up. Whether this was proper or not so, for obvious reasons, not for me to say. I must point out that I did nothing more than what the law permitted me to do. In this connection, I will make a reference to section 540 of the Code of Criminal Procedure as well as section 165 of the Evidence Act, which read as follows: ‑
"540. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re‑examine any person already examined, and the Court shall summon and examine or recall and re‑examine any such person if his evidence appears to it essential to the just decision of the case."
"165. The Judge' may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the produc tion of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross‑examine any witness upon any answer given in reply to any such question.
Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved:
Provided also that this section shall not authorise any Judge to compel any witness to answer any question or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the question were asked or the document were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted,"
Can anyone doubt that these two provisions of law 'give the Court unlimited powers to arrive at the truth If the intention of the law is that the person who has to give a decision is to sit T entirely unconcerned' during the proceedings like an unthinking statue, I have never thought so, because I have not read one single word to that effect in any law. To my mind, the position of a person who presides over a criminal trial as a Judge is just as important as of any of the parties and, in certain respects, his responsibilities are much greater than of the legal practitioners who represent one party or the other. One has to be a party or the counsel of a party to be of the view that the interests of justice can be served only if he succeeds, but that should not be the view of the Judge who has to do justice not to one party alone but between the parties in the proceedings before him. Persons who have been entrusted with the duty of doing justice have to do things which cannot meet with the approval of all the parties because if one party considers an action of the presiding officer to be just the opposite party, but with very few excep tions, will describe it as unjust. The Legislatures which enacted section 165 of the Evidence Act and section 540 of the Code of Criminal Procedure could not have been unaware of the fact that unlimited powers to ask questions were being conferred on Courts and if the source of the authority of the Courts of law to decide disputes between parties before them chose to confer powers which appear unlimited it is, 1n my opinion, not open to anyone to urge that a person should not have been called as a Court witness by a Court or a certain question should not have been asked by the Court. Those, therefore, who think that they can curtail the power of a Court regarding calling of Court‑witnesses or asking Court questions think on wrong lines. I am clearly of the view that the term "badgering" which appears to have found favour with some Judges with regard to questions by investigating officers cannot be applied to Courts. I am not unaware of the fact that a decision of their Lordships of the Privy Council in Adan Haji Jana and others v. The King (P L D 1947 P C 381), which is often cited before Courts, is to the effect that a Judge cannot undertake the duties of a prosecutor but I cannot accept the view that the case has application to all conceivable circumstances or that if the answer to a question asked from a witness by the Judge results in a reply which goes against the accused the Judge is doing the duty of the prosecutor. Their Lordships of the Privy Council were dealing with a case from Somaliland where the trials of cases were governed by the Administration of Criminal Justice Ordinance of 1926 (Somaliland) and in that particular case the Public Prosecutor did not appear though the law applicable enjoined that the prosecution was to be conducted by the Public Prosecutor, and the Judge examined the prosecution witnesses. It was in these circumstances that their Lordships of the Judicial Committee of the Privy Council of England made the above‑mentioned observations. It is settled law, as has been laid down by the highest Court in Pakistan in Fazal Elahi and others v. The Crown (P L D 1953 F C 35 at p.58) that a decision of a Court is meant to be a binding precedent in regard to the facts on which it is given and I am clear in my mind that the general remarks made in the judgment in Adan Haji Jama and others v. The King cannot be used to curtail powers given to Courts in Pakistan by section 165 of the Evidence Act and section 5:60 ct the Code of Criminal Procedure. 1 should have thought that if any party objected to the lady in the case being examined as a Court witness it would be not the accused but the complainant because if she had been produced as a defence witness she could not have been asked questions in a leading form, i.e., questions which suggested the answers but when she appeared as a Court witness she could be and was asked questions in a leading form by learned counsel for the accused. And if asking questions from a witness during the course of the examination of that witness by a party is an error, I unhesitatingly plead guilty of having committed many an error of this type during this trial. My object in asking Court questions in the course of the examination of witnesses by the parties was to fully understand the deposition of the witness or to remove an ambiguity which had crept in and section 165 of the Evidence Act gave me that power. The posi tion in law, therefore, is that section 540 of the Code of Criminal Procedure not only authorised me but made it my bounden duty to call as witnesses persons whose evidence appeared to me essential to the just decision of the case and section 165 of the Evidence Act gave me ample power to ask any question from any witness. I took care to ensure that I did not ask any question which related to a matter which was not strictly relevant, and I do not see by what standards, legal or moral, I can be held to have erred in calling Court witnesses or asking Court questions and thereby been guilty of what the party against whom the decision may be will possibly call judicial tyranny. The expression " judicial detachment ", which some persons including some) Judges are fond of employing, has no doubt a high‑sounding ring about it but it does not mean that judicial officers holding criminal' trials should either be dummies or act merely like referees in boxing bouts leaving it to the contestants to do what they like and should not interfere unless they violated the rules of the game, and to my mind the expression means only this that the action of judicial officers with regard to a trial should be actuated by no other motive but a' desire to do justice between the parties. The invocation of the oft‑invoked judicial maxim to the effect that justice should not only be done but that it may be seen to be done would not be apt in a case where the Court has followed the law because in a Court of law justice means neither more nor less than the administration of the law of the land.
68. I will now deal with the questions mentioned in paragraph 60. The first and one of the most vital of these questions Is whether the lady in the case was Aloe lawfully wedded wife of the complainant because if she wag not, the accused could not be guilty of the offences with which he has been charged in spite of the fact that he may have enticed and taken away the lady in the case and have had sexual intercourse with her without the consent of the complainant. It will be noticed that sections 497 and 498 of the Pakistan Penal Code protect only a husband and note any other man who may have a woman living with him even though that union may in fact be as permanent as a marriage con ‑1 in accordance with the law. I have said in paragraph 57 that) when addressing arguments on the points on which I had requested him to express his views as amicus curiae Mr. Norman Edmunds had made a passing reference to a marriage between a Shia male and a Christian female being invalid under the Muslim Law, unless it were a muta marriage, i.e., a marriage for a fixed period. In his address, Mr. Mahmud Ali laid stress on this point and said that as there was no valid marriage between the lady in the case and the complainant, the accused could not be held guilty of any offence. In support of his contention, Mr. Mahmud Ali relied on the following books: ‑
(1) Mulla's Mahomedan Law, 1961 Edition, page 227, where in a note in small print at the bottom of paragraph 259 reads as under: ‑
"Shia Law. In the Shia Law, a marriage between a Muslim male and a non‑Muslim female is unlawful and void; and so also is a marriage between a Muslim female and a non- Muslim male. But a Muslim male may contract a valid muta marriage with a Kitabia. The Shias reckon fire‑worshippers among Kitabias: Baillie, 29, 40."
(2) Digest of Muhammadan Law by Baillie, at page 29.
(3) Muhammadan Law by Tyyabji.
(4) Muhammadan Law by Shaukat Mahmud, 1960 Edition page 32.
(5) Muhammadan Law by Aziz Ahmad, at page 114.
(6) Muslim Marriages, Dower and Divorce Laws by C. M. Shafqat, page 30.
(7) Shariya‑al‑Islam in Persian.
The proposition of law propounded by Mr. Mahmud Ali was very strenuously opposed by Mr. Ijaz Husain Batalvi who, as I have said earlier, addressed arguments on most of the law points that arose in the case, while Mr. M.A., Rahman argued questions relating to other aspects of the case. Mr. Batalvi, who appeared to have devoted to the matter the careful research that it called for and deserved and went to the length of sending for a book on the subject from Najaf, contended that it was wrong to say that the Shia Muslim Law did not allow a marriage between a Shia male and a Kitabia woman and in this connection referred to the following books: ‑
(1) Muhammadan Law by Ameer Ali, 5th Edition, pages 281 to 282 which corresponds to pages 327 and 328 of the 4th Edition. ‑
(2) Wilson's Muhammadan Law, 1930 Edition, pages 113 and 114.
(3) Saxena's Muhammadan Law (1954) 3rd Edition.
(4) Principles of Muhammadan Jurisprudence by Abdur Rahim, 1958 Edition, pages 237 and 329.
(5) Religion of Islam by Muhammad Ali, page 613.
(6) An abstract of Muslim Law by Fitz Gerald,
(7) Muntakhib‑ur‑Rashil in Persian, page 107 (Tills was the book which Mr. Batalvi got from, Najaf for the purposes of this case).
(8) Riaz‑ul‑Masail in Arabic according to which Imam Jafar Sadiq, the 6th Imam, when asked whether there could be a marriage with a Kitabia woman replied that there was no objection.
(9) Rasail Sheikh Murtaza, pages 69 and 70.
69. No doubt, Baillie in his Digest of Muhammadan Law, Part II, which according to the author contained the doctrines of Imamia Code of Jurisprudence on the most important subjects has said that a Shia male cannot enter into a permanent marriage with a Kltabia woman, but his remark is not as wide in scope as it would appear to be from the note at page 227 of the Principles of Muhammadan Law by Mulla, 15th Edition. This is what is said at page 29 of Baillie's above‑mentioned book :
" It is not lawful for a Muslim to marry any woman who is not a Kitabeeah ; and so far all are agreed. With regard, again, to a Kitabeeah who is a Jewess or a Christian, there are two traditions, and, according to the most notorious or generally received of these, a permanent marriage with either of them is forbidden to him, but a temporary marriage, or one by right of property, is lawful. And the rule is the same with regard to a Majooseeah or fire‑worshipper."'
Again, In Chapter 11, of which the heading is " of Tem porary Marriage ", It is said at page 40 as under :
" With regard to the subject of the contract, it is a necessary condition that the wife be a Mooslimah or a Kitabeeah, by which is meant a Jewess or a Christian, or even a Majooseeah, according to the most common or generally received of two traditions ; and the husband should restrain her from drinking wine and other unlawful practices."
It is on the above‑mentioned passages occurring in Baillie's book that the passage which occurs at page 227 of the 15th Edition of Mulla's book is based. Of the other books mentioned by Mr. Mahmud Ali, none gives any authority for the proposition mentioned so categorically in it. There is force in the contention of Mr. Ijaz Husain Batalvi that the books written by Mr. C. M. Shafqat and Mr. Shaukat Mahmud, on which reliance had been placed by Mr. Mahmud Ali, cannot be of much assistance because they are at best meant for school boys. As regards the other books relied upon by Mr. Mahmud Ali, the contention of Mr. Ijaz Husain Batalvi was that what is said therein cannot justify .the broad proposition that a Shia Muslim male cannot marry a Kitabia woman but in the form of a muta marriage.
77. The book sent for from Najaf by Mr. Ijaz Husain Batalvi is clearly to the effect that a marriage between a Shia male and a Christian female should best be avoided, but if it takes place it is not unlawful. Ameer Ali In his very exhaustive and learned book made the following observations at pages 281 and 282 of the 5th Edition of his book :‑
"The Sunnis recognise as legal and valid a marriage contracted between a Moslem on one side and a Hebrew or a Christian woman on the other.
They hold, however, that a marriage between a Musulman and a Magian or a Hindoo woman is invalid. The Usulis, the M'utazilas and a large section of the Akhbaris is agree with the Sunni doctrine. They recognise the validity of a permanent contract of marriage between a Moslem and a female belonging to the Scriptural sects or believing in God. Some of the Akhbari Shias, however, do not recognise as legal a permanent contract of marriage between a Moslem and a woman follow ing any other creed.
They allow, however, temporary contracts (mutaa) extending over a certain specified period with a Christian, Jew, or a Magian female.
This does not mean, however, that if a permanent marriage (nikah) be contracted in fact it would be unlawful."
That Amir Ali's book has received highly appreciative recognition for a number of years is hardly open to question because one finds his book cited and more often than not acted upon in deci sions of the highest Courts and of the Judicial Committee of the Privy Council of England and many eminent Judges paying his great work many attribute on different occasions. Baillie's book shows that its author had consulted no other book but Shariya‑al‑Islam on the subject of Shia Law of marriage. This book was written by Sheikh Najm‑ud‑Din Abul Kasim Jaafar Abu Ali Yahya, surnamed " al‑Mohaqqiq ", which means the learned. Three paragraphs occurring in the introduction of Ameer Ali's book on Muhammadan Law may here be reproduced with advantage: ‑
" Unfortunately, the narrow conceptions of Shaikh Najm‑ud -Din‑Abul Kasim Jaafar Abu‑All Yabya, surnamed " al -Mohaqqiq " " the learned " have gained ground among the Akhbari Shiahs and stopped all growth. This doctor was born at Hilleh on the Euphrates in the year 602 of the Higira. Al‑Mohaqqiq exercised his magisterial and professoreal func tions until 676, at which time he died of a fall from the terrace of his house. He was buried at Najaf, near the tomb of the Caliph Ali. He is the author of the An‑Nafe; of several commentaries on the Nihaya of the Shaikh Tusi, and of the well‑known work called the Shiraya‑al‑Islam fimasail ul‑halal wa'l haram ("the Mussulman Law regarding what is lawful and what is unlawful"), which has been paraphrased by Baillie and translated into French by Querry.
" This work is divided into four parts: the first treats of religious duties; the second of contracts and synallagmatic obligations the third, 'of unilateral acts, and the fourth com prises the prescripts relating to hunting, food etc., and treats of the penalty applicable to crimes and delinquencies, from the point of view of canonical as well as civil law. It is hardly possible to exaggerate the baleful influence of this legist among the Shia communities who have adopted his views. His literal views, which have paralyzed all movement of the intellect, ate chiefly in force among the Akhbaris,
" There are several commentaries on the Shiraya in existence. Among these the Masalik‑ul‑Ajham by Zain‑ud‑Din Ali as‑Saili commonly called the Shahid‑i‑Sani (second martyr), and the Jawahir‑ul‑Kalam by Shaikh Muhammad Hasan an‑Najafi are by far the most copious and crudite. This latter work, though called a commentary on the Sharaya of al‑Mohaqqiq, discusses legal questions from an independent basis, gives the dicta of other jurists and displays a great amount of critical spirit. It also gives references to the opinions of the Caliph Ali and his immediate descendants."
Mr. Batalvi drew my attention to the fact that Baillie's Book on Imamia Law had not received very complimentary comments from another commentator on Muhammadan Law, and in this connection he drew my attention to page VII of the Preface to the Second Edition of the Principles and Precedents of Muhammadan Law by Macnaghten.
71. 1 do not agree that Baillie's book on Imamia Law can be considered to be useless and 1 think that he did quite useful service. The book was written at a time when it was difficult to get Muslims with education to help him and he must have expended a good deal of labour and study to produce the book. It must, however, be borne in mind that even Baillie does not say that there is a complete prohibition against a Shia male marrying a Christian woman and all he says, on the authority of Sharaya‑ul‑Jslam, is that with regard to that matter there are two traditions of which the generally received is that the marriage is unlawful.
72. It appears to me that even if the passages in Baillie's Imamia Law regarding the marriage between a Shia male and a Christian woman be accepted as wholly correct, the contention of Mr. Mahmud Ali that no marriage existed between the lady in the case and the complainant cannot succeed. 1 do not consider it necessary to detail here the different sub‑sects of Shias but I will only mention that, broadly speaking, they are the following three :
(i) Zaidis,
(ii) Ismailis, and
(iii) Ithna Asharis or Twelvers
and of them Ithna Asharis are to be commonly found in Pakistan: This sect is sub‑divided into two groups, one being Asuils and the other Akhbaris. It will be noticed that Ameer Ali has said at page 282 of the second Volume of the 5th Edition of his book that it is only some Akhbari Shia Muslims who consider com pletely unlawful a permanent marriage between a Shia man and a Christian woman, though they too deem a muta marriage between a Shia male and a Christian woman valid. Asuli Shias allow the exercise of Kit‑as can every legal question and, according to Ameer Ali, coincide in this respect with the principal Sunni School, while in their acceptance of the doctrine of evolution they approach most closely the Mutazalas f e., these who maintain that justice is the animating principle of human actions, and is the embodiment in action of the dictates reason, Mr. Mahmud Ali could not point to any evidence which might even suggest that the complainant was not an Asuli Shia. When the complainant was examined by Mr. Mahmud Ali on the 20th of March 1962, he was not asked any question as to whether he was an Asuli or an Akhbari. The complainant was asked in what respect he differed from the ordinary Imamias and his reply was that he followed the Quran in some respects in preference to some of the traditions followed by other Shias and added that he did not believe in Muta marriage at all. The argument of Mr. Mahmud Ali that this statement was made by the complainant to serve the purposes of the present case cannot be accepted not only because the complainant was examined on the point without any warning but also because though it was open to the defence to lead evidence to the effect that in the past the complainant and his family had followed the Akhbari system of Shia Law, the complainant had in the present case stated that he followed some other system. No evidence on the point was led and even the complainant was not asked even a single question on the point. It is not without significance that two brothers of the com plainant are married to Christians A person is generally the best witness about his religious beliefs and his statement is to be accepted regarding them unless the contrary 1s established and) I do not see why the statement of the complainant that he belongs to that sect of the Shias which does not consider the marriage of a Shia male with a Christian female as invalid should not be accepted.
73. When Mr. S. M. Zafar, Advocate, addressed me in reply to the arguments addressed by learned counsel for the complai nant, he raised an argument which he said he had been directed by Mr. Mahmud Ali to raise. This was to the effect that because Christians believed in the Holy Trinity, i.e., God, the Holy Ghost and Jesus Christ being the son of God, they were Mushriks (Polytheists) and marriage between a Muslim male and a Christian female would be invalid. Evidently, Mr. S. M. Zafar was dot prepared to take the responsibility of addressing the argument and, therefore, made it clear that he had been directed by Mr. Mahmud Ali to raise it. Though the different sects of Muslims have differed with regard to followers of some religions being Kitabies or not‑the term Kitabi means a person who follows a religion about which there is a Revealed Book‑all are agreed that Christians are Kitabis, and there can be no manner of doubt that they are and are not Polytheist. For about 1400 years Christians have been held by all Muslims to be Kitabis and I cannot but reject the argument raised by Mr. S. M. Zafar as entirely untenable. The evidence pertaining to the point and the law applicable being as mentioned by me, I have no hesitation in giving a finding that the marriage between the lady in the case and the complainant entered into at Hull (England) in July 1961 was perfectly valid.
74. Having dealt with the subject of the legality of the marriage between the lady in the case and the complainant, I might dispose of another point which does not relate to marriage but to its termination, the point mentioned at No. 4 in paragraph 60. It is mentioned in all text books without an exception that in order that a talaq given by a Shia male to his wife be valid, it must be pronounced in the presence of the wife and two witnesses) and that a written divorce deed would be invalid unless it be established that the husband was incapable of pronouncing the talak in the manner mentioned above. Mr. Mahmud Ali could not deny that if this doctrine is acted upon, the divorce deed Exh. D. 1, even if it was genuine, would be of no avail to the accused, because it would be hit by the rule of Shia law as is was not the case for the defence that at the time when the deed Exh. D. 1 is alleged to have been executed by the complainant he was incapable of pronouncing divorce in presence of two witnesses. Mr. Mahmud Ali argued, however, that the presence of two witnesses at the time of pronouncement of talak was for the pur poses of proof of a divorce and not a condition for its validity and, therefore, according to him, the rule would be inapplicable because the law of evidence applicable in Pakistan Is the Evidence Act, 1872, and not the rules of evidence under the Muhammadan Law. I have no hesitation in rejecting the argument of Mr. Mahmud Ali that the presence of two witnesses at the time of the pronouncement of talak enjoined by the Shia law of divorce pertains to the law of evidence. It will be noticed that it is note with regard to proof of divorce that the Shia law insists on two witnesses but to the very act of divorce and it cannot, therefore, be held that the matter related to proof and not to substantive law. It follows, therefore, that even if it were to be held that the divorce deed Exh. D. 1 was genuine‑a point with which I will deal a little later‑it could not validly affect the termination of marriage between the lady In the case and the complainant.
75. Another point relating to the termination of marriage between the lady in the case and the complainant may also be dealt with here. The point is a part of the point mentioned by me at No. 2 in paragraph 60. I have indicated in an earlier part of this judgment that the statement of the accused which receives support from the deposition of the lady in the case as C. W. 1, was that she had embraced Islam on the 26th of October 1961. The complainant did not accept this assertion as correct but that aspect of the case which is mentioned at point No. 3 in paragraph 60, I will deal with at its proper place. It was contended by Mr. Norman Edmunds that even if the lady in the case had embraced Islam the marriage entered into at Hull (England) between her and the complainant would subsist and could be terminated only in the manner that the marriage as originally entered into could be terminated, i.e., by means of a decree of a Court. With the question whether or not this is a correct exposi tion of law and whether the lady is proved to have embraced Islam on the 26th of October 1961, I will deal a little later and will proceed to dispose of the contention of learned counsel who addressed me on the assumption that she had not embraced Islam. If the lady in the case was a Christian on the date when Exh. D. 1 is alleged to have been executed, one of the spouses was a Muslim and the other a Christian. The result, in my opinion, would be that the Divorce Act of 1869 (Act 1V of 1869), which is applicable to cases of divorce in which even one of the spouses is a Christian, would be applicable. Mr. Mahmud All contended that the Divorce Act of 1869 could not apply to cases in which a Muslim male wanted to divorce his Christian wife. He further contended that the Act was not mandatory but was only an enabling, i.e., to say it enabled certain Courts to pronounce divorce between spouses of whom at least one was a Christian but that it did not say that marriage between such spouses could not be dissolved by any other means. I concede that nowhere does the Divorce Act of 1869 say that no ether law shall be applicable to divorces in which at least one of the spouses is a Christian; but I am clear in my mind that after the passing of the Divorce Act of 1869 the law for the places to which the Act was applicable was that if one of the spouses to a marriage was a Christian by religion, the marriage could be dissolved only in accordance with the provisions of the Act and by no other means. It should not be forgotten that the Divorce Act was passed at a time when the rulers of the sub‑continent of British India in which the Act was made applic able were Christians. At the time it was passed, the Divorce Act of 1869 was applicable only to those cases in which the person who applied for Divorce was a Christian but by reason of an amendment brought about by Divorce (Amendment) Act, 1927 (Act XXX of 1927) it was made applicable even if only the respondent was a Christian. The Act was evidently passed to safeguard the interests of those English women who might come to British India with Indians. The rulers did not want that their country‑women should be thrown away at the sweet‑will of the husbands who had married them in England where no husband could divorce his wife unless he obtained a decree from a Court of law. A similar question came up for decision before my brother Changez, J. in Farooq Leivers v. Adelaide Bridget Mary (P L D 1958 Lah. 431) and he held that the Divorce Act of 1869 would be applicable if a Muhammadan husband wants to divorce his Christian wife. It may be that I do not agree with all the reasons given by my learned brother for arriving at this conclusion of his, but I unhesitatingly agree with his conclusion. Mr. Mahmud Ali contended that it would be para doxical that a law which in order to benefit Christians made the Muhammadan law of divorce inapplicable to a Muhammadan husband should be enforced in Courts in Pakistan which was a Muslim State, on grounds of justice, equity and good conscience on which grounds the Act was held by Changez, J. to apply to a case in which the wife was a Christian. I see nothing wrong in this because not only as civilised persons but also as Muslims we are governed by the law which is in force in the country in which we reside. It is undeniable that the Divorce Act of 1869, remains on the statute book even now, and I am clear in my mind that if I were to ignore its provisions for the reasons urged by Mr. Mahmud Ali, I would not only be doing an injustice but also violating the principles of the law of the land as well as the Muslim law. In this connection, Mr. Mahmud Ali relied also on the decision of Scarman, J. of England in Russ v. Russ ((1962) 2 W L R 70) wherein It was said that a marriage solemnised in England between a Muslim male and Christian female could be dissolved by talak in Egypt to which place the husband belonged. Mr. Norman Edmunds had devoted quite some time to show that the decision of Scarman, J. was incorrect, but I do not consider it necessary to consider that question, because it appears to me that the decision of Scarman, J. was given because a Court of law in Egypt had granted a decree to the effect that the Muslim husband had divorced his Christian wife in accordance with the law that was in force in Egypt. It is well settled that the domicile of the husband is the domicile of the wife, and that the law applicable to a divorce is the law of the domicile of the parties, which means the domicile of the husband. If, therefore, the law in force in Egypt allowed a Muslim husband to divorce his Christian wife by word of mouth and that divorce had been recognised as valid by a Court of law in Egypt, that decision would be a decision which would be binding not only between the parties but on all the world and recognizable by Courts of all countries.
76. Before taking up other matters, I will now take up the question whether or not the alleged divorce deed Exh. D. 1 would have any validity if the lady in the case had embraced Islam as is claimed by the defence that she had done. It should be borne in mind that what I say in this paragraph is subject to what I have said about the Shia law of divorce. In other words, if the deed Exh. D. 1 was not enforceable for the reason that the divorce was not pronounced by the husband in the presence of two witnesses, as enjoined by the Shia law of divorce, it would not result in a divorce fn spite of the fact that the husband could divorce without resort to a Court of law. Mr. Norman Edmunds was of the view that the marriage having been contracted in England, it would retain all the rights and liabilities as they existed at the time when it was entered into in spite of the fact that the wife may change her religion. I find myself unable to accept this con tention of Mr. Norman Edmunds. If a Christian wife of a Muslim has renounced her Christian religion for Islam, the Muslim law of Divorce would become applicable because both parties are Muslims. The view was expressed in Khambata v. Khambata (I L R 59 Bom. 278) that if the Christian wife of a Muslim who married her in Scotland embraces Islam, when she comes to India and the husband divorces her in accordance with the Muslim law, the divorce would be valid, and I respectfully agree with the view. If, therefore, it be established that the lady in the case had embraced Islam on the 26th of October 1961, as she and the accused claim that she had done, and if the divorce deed were not invalid for some other reason the fact that the husband bad divorced her would terminate her marriage with the complainant.
77. Another question of law that arose during arguments with regard to the validity of divorce deed Exh. D. 1‑assuming that it was a genuine document‑was that it was hit by subsec tion (2) of section 7 of the Family Laws Ordinance, 1961 (Presi dent's Ordinance VIII of 1961) which came into force in the beginning of the last year. The contention of Mr. M. A. Rahman, learned counsel for the complainant, was that under subsection (2) of section 7 of the Ordinance the divorce pronounced by a Muhammadan could not become effective after the promulgation of the Ordinance unless three months had elapsed from the date of the divorce and that even if it be assumed that the divorce deed was executed by the complainant, it could not become effective till the 16th of February 1962, because it was stated to have been executed on the 16th of November 1961. Mr. Mahmud Ali said that the Ordinance by its first section made it clear that it applied only to Muslims who were citizens of Pakistan and could not, therefore, apply fn the present case, because the lady in the case m as not a citizen of Pakistan. It appears to me that the contention of Mr. Mahmud Ali is unsustainable. As I read the provision on which Mr. Mahmud Ali places reliance it means that the Ordinance applies to all Muslims residing in Pakistan and to all citizens of Pakistan wherever they may be residing, whether in Pakistan or at any place outside Pakistan. This inter pretation would not be against the well‑recognised principles of law because the Private International Law regarding divorce is that the law of the domicile of the husband, which is to be presum ed to be the law of the domicile of the wife, is applicable to al divorce. Mr. M. A. Rahman, learned counsel for the complainant, contended that even if the contention of Mr. Mahmud Ali to the effect that the Family Laws Ordinance, 1961 applied to citizens of Pakistan alone be accepted the accused could not benefit because divorce was an act of the husband and the com plainant being a citizen of Pakistan the Ordinance applied to him and to all his acts which are covered by the Ordinance of which divorce was one. There is much force in this contention and I am not impressed by the objection of Mr. Mahmud Ali to the effect that though the law in force in Pakistan could change the Muslim law in so far as the Muslim citizens of Pakistan were concerned, that law of Pakistan could not change the Muslim Laws as far as those who were not citizens of Pakistan were concerned. People who come to this country are bound by its laws unless they be persons who by reason of the principles of International Law are deemed to be carrying their own law with them, of which persons Ambassadors from other countries are an apt example. No question of any injustice arises on the facts of this case by applying subsection (3) of section 7 of the Family Laws Ordinance, 1961 to the alleged divorce deed Exh. D. 1 because the lady in the case asserted that she embraced Islam on the 26th of October 1961 and assuming in her favour that it was so, it follows that she acquired the status of a Muslim woman on the 26th of October 1961 in Pakistan. The result would be that when she became a Muslim the law applicable to the divorce, which the husband could pronounce only on her becoming a Muslim, was that the pronouncement could not become effective for three months. I would, therefore, hold that even if it be held that the lady in the' case had embraced Islam on the 26th of October 1961 and it be' further held that Exh. D. 1, was executed by the complainant on the 1 6th of November 1961, the document could not be effective before the 16th of February 1962.
78. Here another question also arises and before I pass on to another subject, I might dispose of that question. The Laws (Continuance in Force) Order, by its tenth clause, which was inserted as long ago as the 23rd of October 1960 by means of President's Order No. 23 of 1960, says that no servant of Pakistan call marry 4 foreigner or even get betrothed to one without the permission of the Central Government. Recently, 1f reports in the press are correct, it has been directed that in relation to members of certain Services the Governors of Provinces were competent to grant permission for such betrothels and marriages. I asked Mr. Mahmud Ali to address me on the point but all that he said about it was that the matter was between the accused and the Government and the Court was not concerned with it. I am prepared to grant that this matter is mainly the concern of Government and the accused, but I cannot help remarking that the fact that the accused without the permission of the Central Government entered into a marriage with the lady in the case, who is not a citizen of Pakistan, would reflect on the evidence in the case and, therefore, would be relevant for the purposes of the present case. From the fact that in the presence of the accused Mr. Mahmud Ali said that he was not in a position to say that the accused had obtained the permission of the Central Govern ment before entering into a marriage with the lady in the case on the 2nd of January 1962, it can be safely inferred that the permission of the Central Government had not been taken, I might, however, make it clear that the fact that the permission of the Central Government was not taken by the accused for entering Into this marriage would not invalidate the marriage provided It was not invalid for any other reason.
79. In paragraph 56, I have detailed the five points on which the version of the accused is different from that of the complainant, and I now proceed to consider whether those points, which were controverted by the complainant, were established by any evidence on the record. The first of these points is that on the 26th of October 1961, an understanding had been entered into between the lady in the case, the complainant and the accused that as she loved the accused, she should be allowed to go with him after three months if in the meantime she did not change her mind. The statement of the accused, which was supported by that of the lady in the case when she appeared as C. W. 1, was that the complainant had requested that in this period of three months the lovers should not communicate with each other and according to the lady in the case and the accused this condition was imposed by the complainant because he was not sure that the intentions of the accused were honourable and that he would not discard her when she left her husband and her home. That the agreement is novel in character can hardly be denied and before a Court of law can accept the existence of any such agreement the evidence to prove it must be strong. What is the evidence regarding this understanding, which appears to have been borrowed from some book of fiction, except the statement of the accused without oath and the deposition of the lady in the case, both of whom are vitally interested in the matter. It is true that the accused was in Lahore on the 26th of October 1961 but from that to the entering into of the alleged agreement is a very long cry. The defence claimed that the accused had been invited by the lady in the case at the instance of the complainant to come to Lahore. I am satisfied that when the accused came to Lahore on four days' leave from the 23rd to the 26th of October 1961 he came at the invitation of the lady in the case. In the statement she made on the 30th of January 1962 she had stated that the complainant went on tour on the 21st of October 1961 with an engineer and was not expected back till the evening of the 23rd of October 1961. She admitted that she had informed the accused that the complainant would be out of Lahore till the evening of the 23rd of October 1961 as is clear from page 69 of the record. The visit of the accused to Lahore from the 23rd of October 1961 to the 26th of October 1961 was clearly made to take advantage of the absence of the complainant from Lahore. Before the accused could leave Quetta be had to take permission of Government and It is for that reason that the time between the 21st and the morning of the 23rd of October 1961 could not be availed of by the lady in the case and the accused. The alleged agreement to which one of the parties is stated to be a Muslim living in Pakistan has to have much more than the statements of the two persons who are highly interested in the matter before a Court could hold that it was entered into. It is no doubt true that the complainant had entered into a marriage with a lady who belonged to Germany where things like this may possibly be not looked upon with such disfavour as they are in Pakistan, but the person who was primarily agreeing to an arrangement of this kind was a husband who was born and bred in Pakistan and was residing there at the relevant time. My attention was drawn to the letter Exh. 3 (reproduced in paragraph 18) in which an indirect reference with regard to the alleged agreement exists. As mentioned in paragraph 18, the letter Exh. A. 3 was produced by the accused when he made his statement on the 29th of January 1962. Another document, on which Mr. Mahmud Ali, learned counsel for the accused, relied in this regard was Exh. C. W. 1/6 which was brought on record on the 1st of February 1962. I am of the view that these letters are not genuine and were prepared for the purposes of this case.
80. Now, the undisputed facts, as mentioned by me in paragraph 55, are that on the 30th of December 1961, the lady in the case left the house of the complainant and went to the accused who was at that time at the house of Lt.‑General Bakhtiar Rana, Martial Law Administrator of Zone B' ; that both of them left for Quetta by Khyber Mail on the 31st of December 1961 ; that on the 2nd of January 1962 they entered into a marriage ; and that on the 7th of January 1962 they learnt that the present proceedings had been started by the complainant against the accused. It must have been apparent to the accused, who was holding a high official position, that the charge against him would cause scandal and even If the criminal case started against him did not succeed he will suffer seriously in his official position. me had, therefore, a very strong motive to try to convince the Court, the Government and the public that his taking away the lady in the case with him and his subsequently marrying her did not contravene any. provision of the law of the land. Nor could he have been unaware that his word, even though it may be supported by that of the lady in the case, would not easily be accepted by a Court of law. There is then the cir cumstance that though the letter Exh. 3 was produced on the 29th of January 1962, Exh. C. W. 1/6 was not. In this connection, I would briefly relate the incidents relevant to this matter. I have said In paragraph 25 that when taking the statement of the lady in the case as C. W. 1 on the 30th of January 1962, I had asked her whether she had seen with the accused the letters she had written to him which, according to her, were sent at the rate of one a day from the 19th of September to the 9th of November 1961, and she answered in the affirmative. When asking the question I was not unmindful of the fact that letters of the lady in the case could be manufactured at any time to suit the accused, because she was living with him, and I therefore, asked her whether the accused had preserved the envelopes also and her answer was in the negative. Now, according to the statement of the lady herself, which I see no reason for not accepting on this point, because even Exh. P. 1, namely, the letter of the accused to the lady in the case dated the 9th of November 1961 which has been reproduced in paragraph 9 says that she had written two letters to him in one day, she had written about fifty letters to the accused. The number of letters produced by the accused in Court was one‑tenth of the number of the letters which he had received. Why were then these five letters retained and the others destroyed , The destruction of the letters if it took place in the ordinary course must have taken place at a time when this case had neither been instituted nor was there any suspicion that it would be instituted. Why should then letters which contained a hint that there was an agreement of the type mentioned by the accused in Court have been preserved and those which would appear to contain declaration of love have been destroyed The circumstances make it clear that the letter Exh. 3 was prepared before coming to Court and of the other letters which have been placed on record, three, namely Exh. C. W. 1/3, C. W. 1/6 and C. W. 1/7, were prepared on the night between the 30th and 31st of January 1962. As regards the letter Exh. C. W. 1/8, I am of the view that this alone is genuine. This letter has the natural ring of a letter written by a woman to a man whom she wants to convince of her love for him and contains no hint of any matter which could arise if a case started against the accused, or the lady in the case, or both. After considering the question carefully, I have arrived at the conclusion that the agreement alleged to have been entered into on the 26th of October 1961 is a figament of imagination.
81. I pass on to the consideration of the question whether as asserted by the lady in the case and the accused she had embraced Islam on the 26th of October 1961. The question whether the complainant executed the deed of divorce Exh. D. 1 is to some extent connected with the alleged conversion and as some evidence that requires examination is common to both, I will deal with these two questions together. It was stated by the accused and the lady in the case that they were the only two persons present when she took by no means unimportant step of changing her religion from Christianity to Islam. The change of religion of a Christian to Islam cannot, In a country like Pakistan which is almost entirely inhabited by Muslims, be considered to be a thing that need have been kept a secret. But even if one overlooks the initial secrecy which is attributed to the desire of the lady in the case to have been actuated by a desire not to hurt the feelings of the complainant, because he had wanted her not to change her religion from Christianity to Islam, one finds that the complainant was not taken into confidence about this matter even till the day that the lady in the case left his house for the last time on the 30th of December 1961 as is clear from her statement at page 116 of the record. The case of the defence is that on her changing her religion from Christianity to Islam the lady in the case changed her name from Christa Renate to Ruqayya. It is very strange that even when the complainant executed the alleged divorce deed (Exh. D. 1), which has been reproduced in paragraph 14, he was not told that he was divorcing not a Christian but a Muslim. The lady in the case said in her statement on the 30th of January 1962, as is clear from page 64 of the record, that in the beginning of November 1961 she had been told by the complainant that the marriage entered into by them in Hull (England) could be dissolved only by a decree of a Court. Can anyone believe that in spite of that assertion of the complainant the lady in the case would not inform him that as she had embraced Islam the necessity of going to a Court of law for divorce no longer existed if she had actually embraced Islam. It was not possible for the accused and the lady in the case to take up the position that the complainant had been informed about it soon after the alleged conversion on the 26th October 1961 because the assertion would at once be proved false by pointing to the document Exh. D. 1 alleged to have been executed on the 16th of November 1961, wherein the name of the lady in the case is mentioned as Christa Renate and not Ruqayya. Mr. M. A. Rahman, learned counsel for the com plainant, pointed to the evidence of Mr. All Mazhar Rizvi (P. W. 8) and that of Mr. Jamil Ahmad (C. W. 5) which, according to him, showed that the lady in the case changed her religion to Islam on the 2nd of January 1962, soon before she entered into a contract of marriage with the accused. The state ment of Mr. Jamil Ahmad (C. W. 5) as is clear from page 319 of the record is to the effect that it was only after verses from the Holy Quran had been read and the nikah had been performed that the lady in the case was referred to as Ruqayya and the witness had no doubt about this, while that of Mr. Ali Mazhar Rizvi (P. W. 8) is to the effect that in the morning on the 2nd of January 1962 the accused had told him that the lady he was marrying that afternoon will embrace Islam soon before the marriage. The statement of Mr. Jamil Ahmad (C. W. 5) lends support to that of Mr. Ali Mazhar Rizvi (P. W. 8), but even if one were to over look the statement of C. W. 5 on the ground that it is not definite, the statement of P. W. 8 is supported by what appeared in the newspaper 'Zamana' on the morning of the 3rd of January 1962. What appeared in the 'Zamana' is marked as Exh. P. W. 9/1 and corresponds with what is contained in the document Exh. P. W. 8/l. This document Exh. P. W. 8/1 which has been reproduced In paragraph 35, may with advantage be reproduced here. It reads as follows :‑
"Lt.‑Col. Muhammad Yusuf, Commissioner, Quetta, was married to Christa Renate, daughter of Emil Sanntag, at a quiet and simple ceremony here to‑day. Earlier Christa Renate embraced Islam and assumed the Muslim name Ruqayya. The marriage was solemnised in accordance with Muslim Family Laws Ordinance."
This document was admitted by the accused in his statement dated the 12th of March 1962, which is at page 305 of the record, to have some corrections in his handwriting and it cannot, therefore, be . doubted that it was prepared at his instance as deposed to not only by Mr. Ali Mazhar Rizvi (P. W. 8) but also by Mr. Darbar Ali Shah (D. W. 2). The simple and unambiguous language used in this document is open only to the con struction that shortly before the marriage on the 2nd of January 19ks2 the lady in the case had embraced Islam. Mr. Darbar Ali Shah (I:. W. 2) said that the document was not happily worded because it was open to the construction that the lady in the case embraced Islam soon before the marriage while, according to him, that was not the case. Mr. M. A. Rahman urged, and in my opinion not without justification, that what appeared in Exh. P. W. 8/1 should be taken at its face value and the statements of Mr. Darbar Ali Shah (D. W. 2), Mr. Abdur Rashid (D. W. 1) and Mr. Amir Usman (D. W. 9) on the point should not be accepted as they could not be considered entirely independent. It is not without significance that the news item Exh. P. W. 9/1 in the Zamana' dated the 3rd of January 1962, which is a translation of Exh. P. W. 8/1, shows that the lady in the case had embraced Islam soon before her marriage to the accused. No doubt, Mr. Ali Mazhar Rizvi (P. W. 8) cannot be said to be well disposed towards the accused who had reported against him as is clear from the D. O. letter of the Director of Public Relations, West Pakistan, dated 12th of December 1961 (Exh. D. W. 10/1) but he would not have the courage to give out wrong information about the Commissioner of the Division in which he himself was posted. The document on which the news item Exh. P. W. 9/1 is based, namely Exh. P. W. 8/1, is clearly open to the construction that the conversion of the lady in the case to Islam was soon before her marriage to the accused, and I do not see why the statement of Mr. Ali Mazhar Rizvi (P. W. 8) should not be accepted.
82. With regard to the alleged conversion of the lady in the case to Islam on the 26th of October 1961, it was urged by learned counsel for the accused that the lady having said that she had embraced Islam on the 26th of October 1961, it was not open: to the Court to hold that she had not. In this connection, reliance was placed on a decision reported as Msr. Resham Bibi v. Khuda Baksh (40 P L R 722). I do not think that the intention of the learned Judges who decided that case was to lay down how much evidence would suffice to prove the fact that a person has changed religion because they could not have been unaware that the question whether or not a fact is proved is essentially at question of fact and not of law, and that in each cast; the statute dealing with evidence gives the Court before which evidence is given the power to determine whether the evidence is to be believed or not to be believed. In my view, the proper approach to a question like this is to start with the presumption that the person who alleges having changed religion had actually changed it ; but if the other evidence on the record proves that there had been no e change of religion, the Court can and is indeed duty‑bound to say that the assertion that religion had been changed is false. If, for example, a person says in the month of April 1962 that in the month of January 1962 he had changed his religion to Christianity from Islam and had since then continued a Christian but it is established that in the month of February 1962 he had taken a second wife, which would be against the canons of Christianity under which religion a marriage can be but monogamous and had in other respects also not acted on Christian doctrines, will the Court be precluded from saying that the assertion of the man that he had changed his religion to Christianity in January 1962 and had continued to stick to that religion till April 1962 was false It may be that in certain cases the assertion of a person will suffice, but to say that this was the invariable rule of evidence regarding change of religion is going beyond the length to which law permits anyone to do. At any rate, the question before me is whether the lady in the case changed her religion to Islam on the 26th of October 1961 and even the decision in Mst. Resham Bibi v. Khuda Bakhsh does not preclude me from giving a finding that the date of conversion to Islam was not the 26th of October 1961. It may be that the remarks of an English Judge cited by Din Muhammad J., who wrote the leading judgment in the above‑mentioned case, to the effect that "even the devil himself knoweth not the heart of man" is correct, but I am clear in my mind that a Court is not precluded from deciding whether or not one religion was given up for another on a particular date. I would, consequently, hold that it is not established that the lady in the case had given up her religion of Christianity for Islam on the 26th of October 1961.
83. As regards the document Exh. D. 1, the complainant denied that it was in his handwriting or bore his signature, while the lady in the case asserted that the document was genuine, There are a few matters about this document which have their own significance. Lt.‑General Bakhtiar Rana (P. W. 10) stated that when he read in the newspapers that the accused had been complained against in Court for having run away with a married woman and of having used his (General's) house to facilitate his illicit design he was indignant and contacted the accused on the telephone to know what the real facts were and that not only did the accused give his version to the General on the telephone but the lady in the case and he saw him on the 9th of January 1962. The statement of General Rana is clear on the point that the accused had not, on the 9th of January 1962, shown him the document Exh. D. 1 or any other document evidencing a divorce given to a woman whom the accused had said that he intended to marry. Is it not very strange that though the accused had gone to see Lt.‑General Bakhtiar Rana, who was not only the Administrator of Martial Law but also a gentleman who was naturally indignant because his house was used for facilitating what was believed to be an offence, the document which would convince the General that the allegations against the accused were baseless was not shown to him Learned counsel for the accused pointed out that there is on the record evidence of Mr. Darbar Ali Shah (D. W. 2) and Mr. Ahmad Khan (D. W. 11) that they had seen this document in possession of the accused earlier than the 9th of January 1962 i.e., the date on which the accused saw General Rana at Lahore, and, therefore, according to the learned counsel the fact that General Bakhtiar Rana was not shown the document was immaterial. Mr. Darbar Ali Shah, who appeared as the second witness for the defence, stated that he had attested a copy of this document at Pishin on the 2nd of December 1961, while Mr. Ahmad Khan said that the accused had shown him this document on the 7th or 8th of January 1962 when he had gone to see the accused and had in the course of conversation discussed the present criminal case with him. Mr. M. A. Rahman, learned counsel for the complainant, urged that the statements of these two witnesses should not be preferred to that of General Bakhtiar Rana (P. W. 10) because the two wit nesses, who appeared in defence, were interested in making a state ment in favour of the accused. The learned counsel pointed out that Mr. Darbar Ali Shah (D. W. 2) was interested because not only had he known the accused for a long time but also because he was one of the witnesses at the marriage of the lady in the case and the accused and, therefore, wanted to show that if that marriage suffered from any defect he was not aware of it. With regard to Mr. Ahmad Khan (D. W. 11), Mr. M. A. Rahman urged that he had worked for a long time under the accused and appears to have been prevailed upon by him to make a statement in favour of the accused. The contentions of Mr. M. A. Rahman regarding Mr. Darbar Ali Shah and Mr. Ahmad Khan cannot be brushed aside summarily, but as it is not necessary for me for the purpose of this case to find out on what date the Exh. D. 1, if it was a forged document, was forged, I need not give a finding on the point whether the document existed before the 9th of January 1962 or not. In all fairness to Mr. Darbar Ali Shah (D. W. 2), however, I might mention that it is by no means unlikely that he had been shown the document on the 2nd of December 1 961 but that fact could not establish that the document was Genuine. If, for example, the accused was determined to marry the lady in the case, and it would appear from the statement of Mr. Abdur Rashid, Acting Commissioner, Kalat, who appeared as the first witness for the defend, that the accused was so determined, because he had told that witness on the 22nd or 23rd of November 1961 that he intended to marry a German lady who, he had added, was a divorcee, then It is probable that a document evidencing the divorce was manufactured earlier than the marriage. The existence of a document, which could pass for a divorce deed at the time of the marriage was absolutely necessary because it was intended to enter into a contract of marriage at Quetta where the lady In the case had been staying for some days in the month of August 1961 and must have been seen by a number of persons who would attend the intended marriage and who must have known that during the time that she was in Quetta in August 1961, she was the wife of another man. Sardar Muhammad Iqbal, Advocate C. W. 2, has deposed that he had seen the document on the 10th of January 1962, and though it could possibly be urged that this statement could not be accepted because according to Mr. Jamil Ahmad C. S. P. (C. W. 5) who, like Mr. Ahmad Khan and Mr. Darbar Ali Shah, was one of the Political Agents working under the accused when he was Commissioner at Quetta, the document had not been shown to him till the 13th or 14th of January 1962, I do not find any ground to hold that Sardar Muhammad Iqbal, Advocate, C. W. 2, had not told the truth.
84. It is not only the circumstances and facts that I have mentioned in the last paragraph that cast suspicion on the docu ment Exh. D. 1. Let us here consider the version of the lady in the case and of the accused with regard to this document. Accord ing to her, it was given to her on the 16th of November 1961. There is no assertion that the complainant had been coerced into giving this document to the lady in the case. What then would a lady, who had been divorced, do when she had been given a divorce‑deed Would she not keep it with herself But, says the lady, she did not do what any ordinary woman would do in the circumstances but took it to her lover and gave it to him. And what is the story about this document The lady has been divorced according to herself on the 16th of November 1961 but continues to live in the house of the man who has divorced her till the forenoon of the 30th of December 1961. It is in evidence that till the day that she left the house of the complainant for good on the 30th of December 1961, she was sleeping in the same bed‑room with the complainant was going about with the complainant and behaving in exactly the same manner as if she were his wife. One can understand that even if she were not his wife she would, in order to keep up appearance, behave as if she was, but who can accept the statement that the divorce deed was taken by her but she wanted to oblige the man she did not want to live with as a wife by staying with him till the two boys, the complainant had out of her, went back to their school after the winter vacation. It is too much to expect that the complainant would want to keep her in the house after he had divorced her as he is alleged to have done by means of Exh. D. 1. According to the statement of the lady in the case she had been asking the complainant for a long time to divorce her. It is obvious, therefore, that if her version is correct, the complainant knew on the 16th of November 1961 that she hated him and had a lover and that she had no regard for the welfare of her own children. And yet what is one called upon to believe the complainant did. According to the version of the accused, which receives support from the deposition of the lady in the case but from no other evidence, in spite of knowing that she had not the least regard for the children and their father, she was allowed to live amidst them, use their cars, use their house, use their tele phone and enjoy all other amenities that a wife of the complainant would be entitled to.
85. The question arises why the document Exh. D. 1, if it was forged, should have borne the date of 16th of November 1961, because if it was forged the accused and the lady in the case could not but have known that the story that even after the divorce she continued living with a man who had divorced her would look strange to all who hear it and false to almost all of them. There is a complete answer in the evidence on the record to this question. I have mentioned already that the letter written by the accused to the lady on the 9th of November 1961, which has been reproduced in Paragraph 9, happened to fall into the hands of the complainant, In this letter, there is a mention of a deed which would terminate the marriage between the lady In the case and the complainant and as she and the accused knew that this letter was in existence and had been produced in Court, their case could not be that the divorce had been given before the 9th of November 1961, because if that had been the version, anxiety exhibited about divorce in the lever of the 9th of November 1961 would have been entirely misplaced. Then, there is the fact that on the 16th of November 1961 at Peshawar, where he had gone to attend an official conference, presided over by the Governor of West Pakistan, the accused had mentioned to General Bakhtiar Rana that he intended to take a second wife. In his deposition the General said that he did not remember whether the accused had told him that the lady whom he wanted to take as second wife was a divorcee. In the document Exh. C. W. 1/l, which is the version which the lady In the case had given to Sardar Muhammad Iqbal, in order to help him ask her questions when she appeared as a witness in Court, it was originally mentioned, as is clear from the document itself and also from paragraph 33 of this judgment, that on the 13th of November 1961 the accused had told the lady in the case that the matter of the divorce should be hurried up because he intended to discuss the question of his second marriage with the Governor of the Province on that visit of his own to Lahore. It is in the statement of the accused dated the 29th of January 1962, at page 35 of the record, that he left Lahore for Quetta on the 19th of November 1961. It is by no means unlikely that the accused had given Information to the Governor of the Province before leaving for Quetta that the lady be intended to take as second wife was a divorcee. But even if the accused did not say anything to the Governor in this regard, there was another fact to be kept in view. According to the accused, he had had, and he is supported in this by Mr. Darbar Ali Shah (D. W. 2), three copies of the document Exh. D. I attested by Mr. Darbar All Shah (D. W. 2) on the 2nd of December 1961. The document had, therefore, to bear a date which should be after the 9th of November 1961 but before the 2nd of December 1961 and an explanation had to be furnished how the document which should ordinarily be at Lahore with the lady in the case came to be with the accused at Quetta on the 2nd of December 1961. The best explanation was that it had been handed over to him when he was at Lahore on the 17th of November 1961. It is for this reason that the document bears the date it does, namely, the 16th of November 1961. I asked Mr. Mahmud Ali, learned counsel for the accused, when he was addressing me about the document and Its copy prepared by Syed Darbar All Shah (D. W. 2), to mention any good reason why the accused should have had copies of this document prepared and the only reply learned counsel gave on the next day, presumably after consulting his client, was that the copies may have been required for so many purposes but no infor mation of any purpose for which any of the copies was used by the accused was mentioned. Was it intended that at an appropriate time the original will be destroyed and its copies shown to persons who wanted to see any documentary proof of the alleged divorce given to the lady in the case by the complainant
86. The defence version that the complainant executed the alleged divorce deed Exh. D. 1 on the 16th of November 1961 and the document was banded over by the lady in the case to the accused on the 17th of November 1961, when be was, according to himself, at Lahore as mentioned by him in his statement dated, the 29th of January 1912, at page 31 of the record, as well as in his statement dated the 1st of February 1962, at pages 141 and 142 of the record, cannot be accepted for another reason also. It is clear from the three charts, Exhs. P. W. 7/1, P. W. 7/2 and P. W. 7/3, that the accused used to talk to the lady in the case on the telephone from Quetta and even from Loralai. If the version regarding the execution of the divorce‑deed by the complainant on the 16th of November 1961 were correct, there would be nothing to induce the accused to telephone to the lady in the case at a time when the complainant, when office hours were from 7.30 a.m. to 1.30 p.m., could not be expected to be in the house. One finds from the above‑mentioned three charts, however that even after the 16th of November 1961 the accused did not telephone from Quetta to the lady in the case at Lahore at any time when the complainant was likely to be in the house. The chart Exh. P. W. 7/1, which relates to telephone No. 2005 at the Com missioner's House, Quetta, shows that of the 48 calls made to telephone No. 7145 at Lahore which is at the residence of the complainant, after the 16th of November 1961, only one, made on the 3rd of December 1961 which lasted for seven minutes, was made at a time at which the complainant could be expected to be at home As regards the chart Exh. P. W. 7/2, which gives a list of the telephone calls made by the accused from telephone No. 2333, which was at the Commissioner's office at Quetta, one finds that though 28 telephone calls were made after the 16th of November 1961 not one of them was at a time at which the complainant could possibly be at home. The chart Exh. P. W. 7/3, which relates to Loralai shows that on the 29th of November 1961, tele phone No. 7145‑Lahore was contacted at 9.30 p.m. On the 29th of November 1961 the lady in the case was at Loralai with the accused and therefore this call mentioned in the chart Exh. P. W. 7/3 which was booked at a time when the complainant was expected to be at home was meant for the complainant him self. The telephone call on the 3rd of December 1961 was made one day after the lady in the case had returned from Quetta where she had admittedly gone to the accused on the 27th of November 1961 and could easily be converted into an inquiry about the safe arrival of the lady in the case if the husband happened to be at home. The absence of any telephonic communi cation between the lady in the case and the accused after the 16th of November 1961 at a time when the husband could possibly be at home is a very strong circumstance negativing the claim of the defence that the lady in the case had been divorced by the com plainant on the 16th of November 1961.
87. The evidence given by Mr. Cyril G. Bhan (D. W. 6) and Mr. Zaka A. Malik (D. W. 12) may now be dealt with. Mr. Mahmud Ali did not address any lengthy arguments with regard to the evidence of these witnesses and, indeed, said only this much that as far as be was concerned, be relied on the evidence which, in his view, was correct, but' some arguments were addressed by learned counsel for the complainant in order to show that these two witnesses were entirely unreliable. It would perhaps be rash to say that no expert should be believed for the reason that by the very nature of things when appearing as a witness he is wedded to the case of the party for whom he appears as a witness, but it can be safely laid down that the statement of an expert should be taken with great caution because of his bias, which in some cases may be entirely unintentional, in favour of the party whose case the expert has come to Court to support. Taking first the evidence of Mr. Bhan (D. W. 6), it was brought on the record that he had been disbelieved in a number of cases by the highest Court of the Province. The fact that a person has been disbelieved in another case cannot an law be conclusive for saying that he is an untrustworthy witness, but it can hardly be denied that a finding of a Court of competent jurisdiction that a person had perjured himself cannot but have some effect on the Court which has to deal with his evidence. That Mr. Bhan is a clever man I am prepared to admit; nor can it be denied that he has appeared as a witness in a very large number of cases during the last thirty years or so that he has been practising as a hand‑writing and a finger‑print expert, but I cannot hold on the basis of his evi dence in this case that he is a competent hand‑writing expert. Inconsistent with each other on some points though some parts of his statement were, his explanation on certain points was con sistent. Consistent explanation was given by him whenever it was pointed out to him by either the learned counsel for the complai nant or by myself that the letters in the disputed document Ex. D. 1 and some documents admittedly in the handwriting of the com plainant which he had said were alike did not appear to be so. He would first of all say that there was no difference but when the differences were pointed out to him he would say that the differ ence was "allowable variation." When it was pointed out to him that a certain letter written in the same document by the same person looked different from the same letter written in that docu ment by that very person, and if his answer in the affirmative was likely to adversely affect the case for the defence, he used his panacea, namely, "allowable variation". One thing noticeable was brought out in the statement of Mr. Bhan (D. W. 6) and that was that during his examination of the documents he concerned himself only with finding out whether there were any similarities between the admitted handwriting of the complainant and the writing in the disputed document Exh. D. 1. If an expert rivets all his attention on the question in what respects the writing in a disputed document resembles the admitted writing of a person, he furnishes strong proof of his bias in favour of the party to whose benefit it would be that the Court give a finding that the documents in question were written by the same person. In view of the fact that very learned people have said that there is a science of handwriting identification, I would not say that there is no such science, but have no hesitation in saying that the science would appear not to be as perfect or reliable as handwriting experts would claim it to be. Even if I believe the statement of Mr. Bhan (D. W. 6) that the handwriting in Exh. D. I resembled the admitted handwriting of the complainant‑though I might say that I find it difficult to believe that statement‑the inference cannot be that the document Exh. D. 1 was written by the com plainant because the mere fact that the handwriting in two documents resembles each other is not conclusive proof of the assertion that they were written by the same person. It was admitted by Mr. Bhan, and indeed his admission on the point is r not necessary, that a person with some knowledge of handwriting r can produce a document the handwriting in which resembles that in another document.
88. I will now take up the evidence of Mr. Zaka A. Malik (D. W. 12). From what was brought on record during the examination of this witness, I am not prepared to accept him as an expert. The witness reminded me of a reviewer of books who, when called upon to review a book, sat down to write the review there and then, and when asked how he could do that without reading the book, he replied that his practice was to write reviews on books without reading them because if he read the books he would get prejudiced. The witness claimed that by merely looking at a document he would be in a position to say whether it was a forgery or not, because, according to him, a forged document bore on itself the hall‑marks of an attempt to make the handwriting resemble some other handwriting. I pointed out to the witness that if he had no other document but the one he was examining even according to his own premises he could not say whether the handwriting was the natural hand writing of the person who had written it but he insisted that he could form a view about the document being forged or not by simply looking at that one document. If the witness expected that I would accept this claim of his he must be a very optimistic man. I pointed out to him that if a person wrote in a disguised handwriting he would be forging the whole of the document because he would be trying to write in a handwriting not his own and, therefore, if the document Exh. D. 1 was written by the complainant in a disguised hand‑writing, as was the theory of the defence, the document should bear hall‑marks of forgery which he said he could discover at a glance and he replied that a writing in a disguised handwriting could be distinguished from a forged document. Under the Evidence Act, opinions of witnesses are not relevant except in certain cases which are mentioned in sections 45 to 51. Section 45 of the Evidence Act gives the definition of Experts. This section reads as follows: ‑
"When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of hand writing or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts. Such persons are called experts."
Questions were asked from Mr. Zaka A. Malik about his academic qualifications and the experience he had had in the science of identification of handwritings. The answers he gave, which were contradictory to each other at places, disclosed that his claim to have received education in identification of handwriting in England was doubtful. It is established on the record that he is a man of very little education. His behaviour in the witness -box made it clear that he was bent upon supporting, at all costs, the ease of the party that had produced him as a witness. He said that he had appeared as a handwriting expert in about 500 cases, of which he mentioned those he believed to be the most important ones. It is a sad thought that this semi‑literate man with extremely sketchy knowledge of the subject of identification of handwriting should have been allowed by Courts for such a long time to pose as a handwriting expert. I have come to the conclusion that as this witness cannot be considered to be an expert, his opinion that the document Exh. D. I was written by the complainant is not to be taken into consideration. It was brought on the record that this witness is a brother of Mr. Salim A. Malik, a junior of Sardar Muhammad Iqbal, Advocate, who, as I have already mentioned, appeared as a counsel of the accused in the initial stages of the case, and it was hinted by learned counsel for the complainant that it appeared that the document Exh. D. 1 was prepared by this witness after the accused came to Lahore on learning of this case. It was said that the statement of Lt.‑General Bakhtiar Rana would show that the document Exh. D. 1 was not in existence on the 9th of January 1962 and, therefore, it must have come into existence after the lady in the case and the accused had seen the General on the 9th of January 1962. Though I am not saying that this line of reasoning is easily assailable, I think that on the material on the record it is difficult to hold that the document was created by this witness.
89. It is established by his statement that on the 1st of January 1962, the complainant had written the letter Exh. D. 3 to the lady in the case which means that even if there was no other writing of the complainant in possession of the lady in the case or the accused, the letter Exh. D. 3 certainly was. It is not without significance that some of the letters in Exh. D. 1 bear a marked resemblance to the same letters occurring in Exh. D. 3. For example, the word "Lahore" in both the documents appears even to the naked eye to be patently alike. At the bottom of Exh. D. I, where '16‑11‑61" is mentioned, it is preceded by small letters "dt". It is a strange circumstance that the "d" at this place has a striking resemblance with "a" in the letter Exh. D. 3 which "a" appears to have a slightly bigger oblique than an "a" ordinarily has. In order to satisfy myself by all possible means whether or not the document Exh. D. 1 was in the handwriting of the complainant, I had some of his writings brought from his office and had those writings examined by Mr. Bhan who gave the opinion that some letters in these writings resembled letters existing in Exh. D. 1. The reasons which he gave for this view were not convincing and I have, therefore, come to the conclusion that the evidence of the two experts is of no avail to the accused.
90. When I took the statement of the accused on the 20th of March 1962 at the conclusion of the defence evidence, he said that he had nothing more to say but would request that I should have the document Exh. D. 1 examined by an expert from a foreign country. I did not consider any expert evidence about the document necessary and did not, therefore, send the document Exh. D. I to some foreign country for obtaining opinion. My reasons for this were more than one. The first was that whether or not the Court should call a person as a Court‑witness is for the Court and not any one else to decide. The second was that I consider that opinions about handwriting being no more than opinions, ordinarily cannot be considered to be conclusive regarding authorship of a document. The fact that the hand writing In which a document which contains the disputed writing is written resembles the handwriting of the person who is alleged to have written it is not conclusive proof of the assertion that that person had written it because it could be the handwriting of a person who was an adopt at forging and it is for this reason that the other evidence brought on the record with regard to the authorship of a document has to be considered by Court along with the opinion of an expert. The opinion of a handwriting expert that the document appeared to have been written by a person is at best a weak kind of evidence and, therefore, I did not consider it necessary to have the document examined by a handwriting expert residing in a foreign country because doing that would in addition to entailing a lot of unnecessary expense of foreign exchange have resulted in delaying the disposal of the case to get evidence which could not be considered to be con clusive.
91. In support of his contention that the complainant had executed the alleged divorce‑deed Exh. D. 1, Mr. Mahmud Ali placed a good deal of reliance on the fact that a telegram sent by the lady in the case on the 5th of November 1961 contained a reference to divorce. The telegram relied upon is on the record as Exh. 2 and though it has been reproduced earlier I would reproduce it here for facility of reference. The telegram Exh. 2, which was sent from Lahore on the 6th of November 1961, reads as under: ‑
"Release secured. Send lawyer's draft and instructions. Rauf."
Though the name of the sender of this telegram is given as "Rauf" it is established by the evidence on the record that the sender was no other than the lady in the case, and the name "Rauf" was used so that the identity of the lady in the case should not become known. This telegram requires some detailed examina tion. According to the deposition of Mr. Rahmat Ullah of the Central Telegraph Office, Lahore, who was the fifth witness for the defence, the original of the telegram Exh. 2, namely, Exh. D. W. 5/1, was received at the Central Telegraph Office, Lahore, at 9'5 p.m. On being sent by the Gulberg Telegraph Office and the message was transmitted onwards to Quetta at 6' 10 a m. on the 6th of November 1961. In the statement the lady in the case made on the 30th of January 1962 she stated, as is clear from pages 59 and 60 of the record, that the com plainant had given her a severe beating on the night of the 5th of November 1961 and the next day, i.e., on the 6th of November 1961, she sent the telegram Exh. 2. The date of the telegram has been mentioned as the 6th of November 1961 by the lady evidently because the stamp, on Exh. 2 was of that date by reason of the fact that it was received at Quetta on the 6th of November 1961. There is no mention of the telegram in the letter Exh. P. 14, reproduced in paragraph 12, which the accused sent to the lady in the case and which shows that it was written on the morning of the 6th of November 1961. The letter Exh. P. 14 was accompanied by a draft divorce‑deed which could not have been sent because of the telegram Exh. 2. How then did the accused know on the morning of the 6th of November 1961, when he wrote the letter Exh. P. 14, that the lady in the case was wanting him to send a draft divorce‑deed to her. It is true that the letter says and the chart Exh. P. W. /2 shows that the accused had, on the telephone, contacted the lady in the case on the morning of the 6th of November 1961 but one does not know what transpired between them in those conversations. In the statement which the accused made on the 29th of January 1962 he said, as is clear from page 31 of the record, that it was on receipt of the telegram Exh. 2 which he produced that he had sent the letter Exh. P. 14 on the 6th of November 1961 and had attached to it a draft divorce‑deed and it may, therefore, be taken that it was not because of anything said on the telephone that the draft divorce‑deed Exh. P. 3 was sent. The evidence, therefore, shows that the draft divorce‑deed was sent on the morning of the 6th of November 1961 before the telegram Exh. 2 was received by him. It would, therefore, appear that the telegram Exh. 2 was sent not because the complainant had agreed to set the lady in the case free but in order to create evidence that he had agreed to do so. Is it not very significant that while the letters which the lady in the case sent to the accused are almost entirely unavailable, the telegram Exh. 2 was preserved. In his letter Exh. P. 1 dated the 9th of November 1961 the accused advised the lady in the case to conduct herself in the matter of divorce‑deed with prudence and tact. Why was the exercise of prudence and tact necessary if the assertion in the telegram Exh. 2 to the effect that release had been secured was correct. That the advice contained in the letter Exh. P. 1 struck a note discordant to the telegram Exh. 2 is clear from the fact that the accused dwelt upon it in his statement dated the 29th of January 1962 though he had not been asked any question about it. The accused said in his statement dated the 29th of January 1962, as is recorded at page 31 of the record, that he had sent the letter Exh. P. 14 at the address of the house of the complainant. The envelope in which this letter came has not been placed on the record and, therefore, the statement of the accused is not supported by anything on the record. The com plainant said in his deposition that he had found the letter Exh. P. 14 in one of the cupboards which he opened about two weeks after the lady in the case had left for Quetta on the 31st of December 1961. He said that he opened the cupboards with keys sent by her to him through a friend, while the lady in the case deposed that the letter had been stolen. It is obvious that the statement of the complainant is correct because if he had the letter with him at the time he lodged the complaint, there 'vas no reason for not attaching it to the complaint as was done in the case of Exh. P. 1. which is the letter of the accused dated the 9th of November 1961 to the lady in the case which happened to fall into the hands of the complainant. I am clear in my mind that the telegram Exh. 2 cannot be used as evidence in proof of the allegation that the lady in the case was divorced by the complainant.
92. Another document which was relied upon to support the allegation that the lady in the case had been divorced by the complainant is Exh. D. 2 which is the envelope in which the letter Exh. D. 3, which the complainant sent to the lady in the case, on the 1st of January 1962, was enclosed. It was pointed out by learned counsel for the accused that the address on the envelope was "Renate c/o Lt.‑Col. Muhammad Yusuf etc. etc." and it was urged that it was very significant the lady in the case was not described in the address as Mrs. Gardezi. The name of the accused and his address on the envelope Exh. D. 2 was typewritten and the word "Renate" was added in the handwriting of the complainant. The complainant deposed that he had found the envelope in one of the cup boards and T see no reason to doubt his statement because it appears that in order that the accused should not receive a letter written in a feminine handwriting lest some one get sus picious the lady in the case sent the letters In envelopes which had the address of the accused typed on them. The explanation of the word "Renate" in the address was given by the com plainant by saying that he had tried to contact the lady in the case on telephone in the name of Mrs. Gardezi but could not do so and the telephone operator at Lahore had told him that the information given to him by the telephone operator at Quetta was that no lady of that name was residing at the Commissioner's house at Quetta, and it was for that reason that he had addressed the envelope Exh. D. 2 to "Renate" and not to "Mrs. Gardezi." I see no ground for rejecting this explanation because it is clearly mentioned in the letter Exh. D. 3, which has been reproduced in paragraph 15, that the complainant had tried to contact the lady in the case on telephone but had not been able to do so. I am clearly of the view that the evidence relied upon by learned counsel for the accused to prove that the alleged divorce‑deed Exh. D. 1 was genuine does not support his contention.
93. I will deal here with another circumstance which clearly points in the direction that the alleged divorce‑deed Exh. D. 1 was nothing but the creation of the brain of a person who knew that unless there be a divorce‑deed the accused would stand condemned by the Government, the public and even the Court. The lady in the case, the complainant and the accused are all agreed on the point that on the after‑noon of the 30th of December 1961 the complainant had gone to the house of General Bakhtiar Rana and pleaded with her and the accused that the lady in the case should return with him to the house but she refused to do so and the accused refused to allow her to go with the complainant. Here then was the guest of the General with whom, if his version is correct, his betrothed stayed in the house of the General. The lady does not observe purdah and yet one finds that the lady was not mentioned to the host; nor intro duced either to the host or to the hostess. In the statement which he made before me on the 10th of March 1962, Lt: General Bakhtiar Rana (P. W. 10) said that till he read in the newspaper that his house had been used in connection with the incident which was the subject of the criminal case in Court against the accused, he did not know that any such thing had happened.
The demeanour of Lt: General Bakhtiar Ran& (P. W. 10) in the witness‑box impressed me very greatly. I confess that before Lt.‑General Bakhtiar Rana (P. W. 10) made his statement, before if me on the 10th of March 1962, a suspicion had at times crossed my mind that possibly he knew that the accused had used his house to facilitate the taking away of the lady in the case and for that reason the publication of the news about the case had been stopped but the witness made his statement in Court in such a straightforward manner that I was convinced that he was telling the truth, the whole truth and nothing but the truth, when he deposed that he had no knowledge at all of any woman having come to the accused when he was a guest at his house. If the lady in the case had been a divorced woman on the 30th of December 1961, when the accused was staying at the house of Lt.‑General Bakhtiar Rana, the accused would have had no hesitation in introducing her to his host, but one finds that there was a complete concealment of the lady from the host and the other inmates of the house. Having considered the matter from all aspects, I have come to the conclusion that the statement of the accused and the lady in the case that the divorce‑deed Exhibit D. 1 was executed by the complainant on the 16th of November 1961 is incorrect and that the statement of the complainant to the effect that the document Exh. D. 1 is not in his handwriting, which statement is supported by those of Mr. Muhammad Amin (P. W. 5) and Syed Ali Nawaz Gardezi (P. W. 6), both of whom knew the handwriting of the complainant, is correct.
94. I will now take up the contention of Mr. Mahmud All to the effect that the complainant had consented to and connived at the illicit intimacy between the lady in the case and the accused and, therefore, even if it he assumed that she had not been divorced by the complainant, no offence would be made out. It will be seen that while section 497 of the Pakistan Penal Code contains a provision which makes the consent or conni vance of the husband a complete answer to the charge of adultery, section 498 contains no such provision. The reason perhaps is this that the law wants to draw a distinction between cases in which the husband did not object to anyone having sexual intercourse with his wife at the house of the husband and those in which such a woman without the consent of the husband is taken to some other place. But be that as it may, it is clear that this distinction between section 497 and section 498 of the Pakistan Penal Code exists in law. What is the proof about the consent of the husband and what is the proof about the connivance Nothing but the words of two highly interested persons whose future depends on this version being accepted. Mr. Mahmud Ali urged that the lady in the case went to Quetta with the permission of the complainant on the 27th of November 1961 and this circumstance would show that the husband was not objecting to her having a connection with the accused. The complainant refuted the assertion of the accused and the lady in the case to the effect that he had bought the ticket of the lady in the case for Quetta and back. This ticket for travel by P. I. A. plane was bought from the Universal Express, The Mall, Lahore. No person from that agency was summoned in the first instance and it was only on the 10th of March 1962 that an application was put in to summon the representative of that company. This delay may possibly be due to the fact that when Sardar Muhammad Iqbal, Advocate, questioned the complainant on the point it was the American Express and not the Universal Express that was mentioned. But there is the fact that Mr. A. D. Caleb (D. W. 3), who was summoned from the Universal Express, was not the person who had made the entries in the documents which he produced. The receipt given for Rs. 216 which were taken as fare was in the name of Mrs. A. N. Gardezi ; but one finds that in one of the documents produced namely Exh. D. W. 3/1 it is said that the person to be billed was the Siemens Company. How was the Siemens Company concerned with the matter of the bill when payment was made before taking the ticket. I am inclined to think that the entry on Exh. D .W. 3/1 with regard to the Siemens Company was made at a later stage. In another document the address of Mrs. A. N. Gardezi was given "c/o Siemens Company Limited" from which Mr. Mahmud Ali wanted me to draw the inference that the ticket had been bought by someone from Siemens Company at the instance of the complainant. I do not see how this Inference can be drawn. First of all, I am not satisfied that the address c/o Siemens Company Limited was not inserted afterwards for the purposes of this case to support the plea that the lady in the case went to Quetta with the permission of the complainant, and, secondly, there is no evidence that the person who made the entry had not made it on the basis of his own knowledge of the fact that the lady was the wife of the complainant who was a Manager of the Siemens Company Limited. One circumstance which deals a fatal blow to the assertion that the lady had gone with the permission of the complainant to Quetta on the 27th of November 1961 is that the dates of her visit which were fixed from the 27th of November 1961 to the 30th of November 1961 coincided with the dates of the visits of the complainant to Rawalpindi and Peshawar on tour. If her programme had been adhered to, the lady would have been back in the house before the complainant returned there because she knew that the complainant was returning to Lahore on Thursday on which day the date was the 30th of November 1961. The complainant happened to return a day earlier and found the lady in the case missing, whereupon he rang up the official residence of the accused at Quetta. This the complainant did because from the letter of the accused Exh. P. 1, which he had caught in the second week of November 1961, he knew that there was some connection between the lady in the case and the accused. If the lady in the case and the complainant had stuck to their programmes and she had returned o n the 30th of November 1961 she would have reached Lahore at I1‑45 a.m., because according to the chart Exh. C. W. 4/1 the scheduled time for the plane from Quetta to reach Lahore was 11‑45 a.m. on the 30th of November 1961, and in that case the complainant, if he bad stuck to his own programme, would have found the lady in the case in the house and probably would never have learnt that she had been away. It is inconceivable that the complainant allowed the lady in the case to go when he himself was absent from Lahore and thus leave their daughter about ten years of age unattended to Mrs. Hasan Nawaz Gardezi (C. W. 3) stated that at about 11 or 12 a.m. the lady in the case told her that she was going out of town and that her daughter should be taken care of in her absence. An attempt was made by the accused to show that Mrs. Hasan Nawaz Gardezi and the complainant had gone to the airport to see off the lady in the case when she left for Quetta on the 27th of November 1961 but this attempt met with miserable failure. It is in the statement of the complainant that when the lady in the case returned from Quetta on the 2nd of December 1961 he gave her a thrashing and I see no reason for doubting this statement especially when it received corroboration from the deposition of Dr. Hasan Nawaz Gardezi (C. W. 6) to the effect that the lady in the case had not come to the dining room for lunch on the 2nd of December 1961. Mr. Mahmud Ali contended that the complainant should be held to have consented to the lady in the case going to Quetta on the 27th of November 1961 because if he had not done that, there was no reason why Mrs. Hasan Nawaz (C. W. 3) or her husband Dr. Hasan Nawaz (C. W. 6) should not have sent information to the complainant at once about the lady in the case having gone out of Lahore. Learned counsel for the accused overlooked that Mrs. Hasan Nawaz had come to Lahore for the first time only a couple of days earlier, i.e., on the 25th of November 1961, and was not expected to know what was happening in the house in which she was a guest, and she inferred that the lady in the case had gone with the permission of the complainant. A slight error in dates crept into her statement but as she had given evidence from memory t has to be held to be immaterial. Dr. Hasan Nawaz (C. W. 6) stated that he had been under the impression that the lady in the case had left with the permission of the complainant and as that would be the impression of a person who did not suspect foul‑play, I see no ground for not accepting the statement of the witness.
95. Mr. Mahmud All Qasuri next pointed to certain documents which in his view could be considered to be proof of consent and connivance of the complainant. In the chronological order these documents are these: ‑
(i) Telegram received by Father Eugene (D. W. 7) on the 23rd of November 1961.
(ii) Telegram sent by the lady in the case to the complainant on the 29th of November 1961 stating that she was at Quetta
(iii) Telegram sent by the accused to the complainant on the 1st of December 1961 intimating that the lady in the case was reaching Lahore on the next day.
(iv) Receipt Exh. D. W. 3/5 dated the 4th of December 1961 showing that the complainant had taken a refund of the money representing the price of the ticket for the return journey from
(v) Letter Exh. D. 3 which was sent by the complainant to the lady in the case on the 1st of January 1962.
The telegram Exh. D. W. 7/1 was sent from Quetta on the 23rd of November 1961 in which it was said that a woman was changing her religion from Christianity to Islam as well as her nationality and that Mr. Gardezi of Siemens Company should be contacted as he was in need of help. The deposition of Father Eugene (D. W. 7) was to the effect that on receipt of this telegram he contacted the complainant who told him that he knew nothing about the matter. Mr. Mahmud Ali contended that the telegram proved two things; one being that even in Quetta it was known that the lady in the case was changing her religion and the other that the complainant took no steps in the matter. If it be assumed that the telegram was sent by a person who knew anything definite about the conversion of the lady in the case to Islam it is clear that the document will be of no avail to the accused and will in fact go against him because it will show that till the 23rd of November 1961 there had been no conversion and one was merely contemplated. As regards the inaction of the complainant which Mr. Mahmud Ali wanted me to infer as the complainant took no steps and told Father Eugene (D. W. 7) that he knew nothing about the matter, I need only say that even according to the lady in the case she had not informed the complainant till the date she left him on the 30th of December 1961 that she had embraced Islam which she claimed she had done on the 26th of October 1961 and the complainant could not dream that the telegram related to her. I am inclined to think that the wife of the accused, who had by that time somehow learnt about the lady in the case and also that she was a Christian, sent the telegram in an attempt to prevent the accused taking a second wife.
96. The telegram which the lady in the case sent to the complainant on the 29th of November 1961, the one which the accused sent to him on the 1st of December 1961 and the matter relating to refund of fare may be dealt with together. In the telegram sent by the lady in the case it was said that she was at Quetta and would be returning soon while in the telegram sent by the accused on the 1st of December 1961 it was said that the lady in the case was reaching Lahore the next day by the Tezgam. Mr. Mahmud Ali contended that the fact that the lady in the case sent a telegram to the complainant from Quetta was con clusive proof of the fact that she had gone there with his permission. This argument cannot be accepted because the inference which the learned counsel wanted to be drawn from the telegram cannot be drawn. Now if the lady in the case had left for Quetta without the consent of the complainant and could not reach Lahore before he was expected to return, she and the accused would be anxious to inform him where she was so that he may not start any legal proceedings which might well have been done. It is in the deposi tion of the complainant that he contacted the lady in the case on the telephone. This is admitted by the lady in the case but they are not agreed as to what transpired between them. I accept the version of the complainant to the effect that he directed the lady in the case to return at once. As regards the telegram of the accused sent to the complainant oar the 1st December 1961
Mr. Mahmud Ali said that if the accused had not known that the visit of the lady in the case to Quetta was an absolutely above board affair he would not have sent the telegram. This argument would have had some weight if the lady in the case had not already informed the complainant on 29th December 1961 that she was in Quetta and the complainant himself had not contacted her on the telephone. It was, however, pointed out by Mr. Mahmud Ali that the accused expressed his regards for the com plainant in the telegram and he wanted me to infer from this that he was acting like an innocent man. The conveying of regards by means of the telegram was not such a weighty circumstance as Mr. Mahmud Ali said it was. It should not be forgotten that as asserted by the complainant and admitted by the accused be used to call the complainant his younger brother. As regards the price of the unused half of the return ticket to Quetta, the complainant said that as it was his money that the lady in the case had used he bad taken the refund, and I do not think any inference adverse to the case of the complainant can be drawn from the fact that he had had the price of the unused half of the return ticket refunded.
97. Much stress was laid on the language in which the letter Exh. D. 3, which has been reproduced in paragraph 15, was couched. The first sentence of the letter makes it clear that some great calamity had befallen the writer. If the lady in one case had been divorced by the complainant her leaving for Quetta could not have been termed by him as a calamity. The entire tone of the letter shows that it was written by a man who wanted to induce his wife to return to him so that the lives of the children she had borne him may not be ruined.
98. The party which the complainant said had been given on the 14th of December 1961 on the birthday of the lady in the case did not escape the notice of Mr. Mahmud Ali during argu ments. He contended that if the lady in the case had on the 27th of November 1961 gone to Quetta without the knowledge and per mission of the complainant It is unlikely that he would give a sumptuous party on her birthday. The complainant said that this party was an attempt on his part to wean the lady in the case from the evil influence of the accused. It is clear from the evidence on the record that being aware of the fact that if the lady in the case left him the future of their three children would suffer greatly the complainant wanted her to keep chaste. Unfortunately the explanation which the lady in the case had given on her return from Quetta and when the letter of the accused Exh. P. 1 fell into the hands of the complainant could not be brought on the record because of the provisions of section 122 of the Evidence Act which is to the effect that a communication by one spouse to another cannot be disclosed except where the spouses are parties to the proceedings in Court. The lady in the case was not a party in the present proceedings and consequently the statement she made to the complainant on her return from Quetta could not be brought on the record. The complainant was in the unenviable position of a man who would rather not believe that his wife, who had borne him children, was unfaithful to him unless he has conclusive proof about it. But at any rate the point that he gave a party on the birthday of the lady in the case after he had caught a letter written to her by the accused and she had gone to Quetta cannot, as I will presently show, be used against the complainant or in favour of the accused.
99. If a married woman willingly has sexual intercourse with a man who is not her husband, the man commits the offence of adultery unless the sexual intercourse was with the consent or connivance of the husband. Mr. Mahmud Ali contended that the burden of proving that the husband had not consented to or connived at the adultery Is on the husband and in support of this be relied on the language in which section 497 of the Pakistan Penal Code was couched. I cannot accept this contention. If there was consent or connivance it is clearly for the man charged with adultery to prove. But even if I accept the contention of Mr. Mahmud Ali, ft is obvious that if there was no consent or connivance the husband could only give evidence about a nega tive matter and his word alone would suffice and as soon as the husband said that he had not consented to or connived at the misdeed of his wife, the burden will shift to the shoulder of the man charged with adultery to prove that there was consent or connivance. Consent is positive permission to do a thing while connivance may be defined as implied consent because it is an act of purposely shutting one's eyes to highly suspicious matters which are obvious. If, for example, a husband on coming home finds his wife and a man in a nearly sexual embrace and instead of taking any action encourages this sort of thing by keeping out of the way when the man calls again, this would be connivance of adultery on his part. But there is a clear distinction between connivance at adultery and its condonation. If a husband or, learning of the fact that his wife has been in bed with another man forgives her on the condition that there was to be no repeti tion, this is a case of condonation and not of connivance. It may be that on account of his giving a party on the birthday of the lady in the case, the complainant can be deemed to have condoned her previous misdeeds, which I might point out had not been proved to have amounted to adultery, but he cannot be said to have connived at adultery, if adultery had in fact occurred before that.
100. It can be safely asserted that only those husbands connive at the adultery of wives who have some motive to do so. A man may connive at his wife's adultery because he is in need of money. So may a man to whom the adultery can yield a benefit, or a man who is devoid of sexual strength and even a man who is himself having his pleasures with another woman and wants his wife to have an affair with some other men either to keep her quiet or to act fairly. None of these things exists in the present case. The complainant is a well‑to‑do man because according to the lady in the case his salary is Rs. 2,000 a month besides which he gets a yearly bonus, a free furnished house and the use of two cars. As regards the other above‑mentioned things, with regard to the third and the fourth no allegation was made by any one not even the lady in the case who accused him of many things that he was either a man of bad character or one who did not deserve the name of man in the sexual sense. As regards the expectation by the complainant of benefit of any kind from the amused, I asked the lady in the case a specific question. Her reply was that she could think of no benefit which the accused could confer on the complainant but added that he might be of the view that being seen in the company of a man who was the of Commissioner of a Division would enhance Ws prestige. I am inclined to think that when giving this answer the lady in the case was judging the complainant by her own standards and that the fact that a man holding the position of a Commissioner‑and the Commissioner of Quetta at that‑was Interested in her and made her succumb to him.
101. The direct evidence on the record with regard to the matter does not establish the consent or connivance of the com plainant and on the other hand there are circumstances which prove that the husband had neither consented to nor connived at the connection of the lady in the case with the accused. One of these tell‑tale circumstances is that of the 192 trunk calls made by the accused on telephone from Quetta to the lady in the case, those that were made at a time when the husband could be expected to be at home are, as mentioned in the Charts Exhs. P. W. 7/1, P. W. 7/2 and P. W. 7/3, the following :‑
Exh. P. W. 7/I (From Commissioner's House, Quetta Telephone No. 2005).
(i) Three calls made on the 9th of September 1961.
(ii) Three calls made on the 10th of September 1961.
(iii) Two calls made on the 21st of October 1961.
(iv) Two calls made on the 22nd of October 1961.
(v) One call made on the 5th of November 1961.
(vi) One call made on the 30th‑of November 1961.
(vii) One call made on the 3rd of December 1961.
Exh. P. W. 7/2. (From Commissioner's Office, Quetta, Telephone No. 2383)
NIL.
Exh. P. W. 7/3 (From Loralai).
(i) One call made on the 29th of November 1961.
The three calls each on the 9th and 10th of September 1961 are not very material because they were made not very long after the return of the lady in the case and the complainant from Quetta after enjoying his hospitality and the accused may have told them that he was coming to Lahore and would probably be staying with them. The two calls each made on the 21st and 22nd of October 1961 are immaterial because the lady in the case said in the statement she made on the 30th of January 1962 that the complainant was on tour from the 21st of October to the evening of the 23rd of October 1961, and that she had conveyed this information to the accused. The call on the 29th of November 1961 and that on the 30th of November 1961 are also immaterial because on both these days the lady in the case was at the place from which the call came. This leaves only the call made on the 5th of November 1961 and the one made on the 3rd of December 1961. I have said in an earlier paragraph that the call made on the 3rd of December 1961 has no significance because it may well have been one of inquiry whether the lady in the case, who had left Quetta on the 1st of December 1961, had arrived safety. As regards the call made on the 5th of November 1961, it cannot be definitely said that on that date the complainant was not on tour. But even if the complainant was not on tour and happened to receive the call, the accused could easily make it appear to be a call for some purpose other than contact with the lady in the case. It has to be borne in mind that if the accused had contacted the lady in the case on telephone at night the charges would have been half. Nor should this be forgotten that not even once did the lady in the case ring up the accused from the complainant's house and the reason clearly was that the bill will come to the complainant who would want to know why she had rang up the accused and not the one she gave, i.e., a desire to save money.
102. The correspondence between the lady in the case and the accused by mail tells the same tale as their communication by telephone. The lady in the case admitted that the letters which the accused sent to her were not addressed to her direct but used to bear the name of someone else. She further admitted that one of these letters was delivered to the addressee and that appears to have been the reason why the letter Exhibit P. 1 dated 9th of November 1961, which has been reproduced in paragraph 9, had to be addressed to the lady in the case herself and happened to fall into the hands of the complainant. There is a lot of wisdom in the saying that though witnesses may lie circumstances hardly ever do. The lady in the case and the accused may assert that the complainant was not only not objecting to their love affair but was actually encouraging it but the evidence furnished by their methods of communicating with each other clearly show that they were taking scrupulous care to ensure that the complainant did not get apprised of the fact that they were in communication with each other. I am clear in my mind that soon after their receipt the lady in the case destroyed the letters of the accused lest they fall in the hands of the complainant and lead to trouble. One of these letters, however, namely Exh. P. 14 dated the 6th of November 1961, which has been reproduced in paragraph 12, she did not destroy at once. The reason may have been sheer forgetfulness or the fact that it contained the undertaking which the accused had promised to give her to let her go after a year of the marriage if she wanted to go. With regard to this under taking the story put forward by the lady in the case and the accused was that the husband insisted on It‑a story which I reject without the least hesitation. The desire of the lady in the case and the accused to keep the fact of their communicating with each other a secret from the complainant even after the date of the alleged divorce‑deed Exh. D. 1 dated the 16th of November 1961, makes it clear that the story of the consent and connivance of the complainant and that of the execution of the divorce‑deed by him is incorrect.
103. I have mentioned In paragraph 56 that it was said by the accused that the lady in the case informed him on the 28th of December 1961 that she could not carry out her undertaking t; the complainant that in spite of the complainant having divorced her she would live in his house for three months to look after the children, two of whom were coming from Lawrence College, Ghoragali, on account of the winter vacation in the College. I cannot accept this story not only because I have held that the story of the divorce‑deed Exh. D. 1 is incorrect but also because I find that on the 26th of December 1961 before leaving Quetta for Lahore the accused had put in an application to the President of the Union Council Quetta for permission to take a second wife in the lifetime of his first. The putting in of this application on the 26th of December 1961 would show that before the accused reached Lahore he knew that he would be able to take a second wife very soon, and this would point to a deter mination to bring the lady in the case with him on his return to Quetta.
104. Another aspect of the case may be dealt with here. I have mentioned in paragraph 78 that the lady in the case, being a foreigner, the accused who is in the service of Pakistan, could not marry her without taking permission from the Central Government to do so. One finds, however, that he did not take the requisite permission. Learned counsel for the accused contended that the accused was probably unaware that a provision to that effect was contained in the Laws (Continuance in Force) Order, 1958, as the learned counsel said that he himself was till I mentioned the provision. This contention cannot be accepted not only because every one is presumed to know the law but also because it was clearly stated by the lady in the case that when the complainant returned home from office on the 26th of October 1961 the accused and she were sitting in the drawing room and she was preparing an application for permission' to change her nationality from German to Pakistani and that she hid the application on the arrival of the complainant. This preparation of the application on the 26th of October 1961 which the lady in the case said she was doing at the instance of the accused would in addition to showing that the accused was not unaware of the law on the point also shows that marriage between themselves had been decided upon by the lady in the case and the accused as long ago as the 26th of October 1961 on which date, even on their own version, they could not have known that the complainant would be obliging enough to divorce the lady in the case. His marrying the lady in the case without prior permission of the Central Government and thereby contravening a condition of his service would clearly show that the accused was bent upon marrying the lady in the case at all cost.
105. Another argument which was addressed by Mr. Mahmud Ali, learned counsel for the accused, while pressing for the acceptance of the plea of the accused in preference to the evidence of the complainant and the witnesses produced by him, was that it was improbable that the accused, who was holding such a respon sible post as that of a Commissioner of a Division should have broken the law willfully and thereby run grave risks including that of conviction for an offence by a Court of law. This argument cannot be accepted in face of the evidence on the record. History teems with cases in which persons in love have done things one would consider impossible. A recent case in point is that of the Duke of Windsor who in order to marry the woman he loved gave up the British throne which he was occupying as Edward the Eighth of Great Britain and Ireland and of the Dominions beyond the seas, Emperor of India. Cupid, the blind god of love, is a very hard taskmaster and no sacrifice made at his altar is too great.
106. The story put forward by the accused, which has the support of the lady in the case, is proved false by another circum stance which is that in less than a week of the departure of the lady in the case with the accused, the complainant came to Court for redress. It was contended by learned counsel for the accused that if the version of the complainant had been correct, he would have acted more promptly than he did. It is clear that police aid could not be sought because offences under sections 497 and 498 are two of those offences made punishable by the Pakistan Penal Code regarding which the police cannot take action. Moreover, the accused was in the house of Lt: General Bakhtiar Rana, Administrator of Martial Law, Zone B', and even if a police officer could have taken any action he would have thought not only twice but perhaps twenty times before entering the house. It is not unlikely that the accused had chosen the house of General Rana for his stay on the occasion of his eventful visit to Lahore in order to make immediate action against himself improbable. Of course the General did not know anything about the matter as I have held in paragraph 93 but that would be immaterial for the purposes of immunity of his house from any hasty action by the police and the other authorities, civil or military. One should not lose sight of the fact that respectable people in this country are loath to bring matters relating to their women to Court and it was clearly for this reason that the com plainant made a request to me as mentioned in paragraph 3 that the matter should be dealt with in camera and not allowed to go to the press‑a request which I turned down because I am of the view that the knowledge that people are hearing what is being said and very many more would read it acts as a check on a desire to make false statements. The complaint was lodged on the 5th of January 1962, i.e., within one week of the incident, and in view of what had to precede the lodging of the complaint, it was lodged very promptly. It is clear that if the complainant had executed the divorce‑deed Exh. D. 1, as he is stated to have done, he would not have rushed to Courts as he did, because he would then know that the‑document executed by him would be flung in his face as the unanswerable reply to his charge against a person who held a very high official position.
107. This takes me to the question whether one can accept the contention of Mr. Mahmud All, learned counsel for the accused, to the effect that even if the document Exh. D. 1 was not genuine, the accused believed it to be genuine and acting on it took away and married the lady in the case, and consequently committed no offences. I have held that Exh, D. 1 is a forged document, and though I am clear fn my mind that it could not have been prepared without the assistance of the accused, I will assume that the accused had nothing to do with its preparation. The provision of the Pakistan Penal Code making good faith a complete defence of a charge of an offence is contained in section 79. This section reads as follows: ‑
"Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it."
It will be noticed that it is only a mistake committed in good faith with regard to a question of fact that can be availed of by the accused. What is good faith is defined in section 52 of the Pakistan Penal Code which reads as follows: ‑
"Nothing is said to be done or believed in good faith' which is done or believed without due care and attention."
The question that arises, therefore, is whether the accused acted in good faith in accepting the document Exh. D. 1 as genuine. It was stated by the accused himself in his statement dated the 29th of January 1962, as is mentioned at page 32 of the record, that when the document was shown to him by the lady in the case, he noticed that it did not appear to be in the handwriting of the complainant and he is supported in this by the lady in the case. It follows, therefore, that the document at once roused suspicions of the accused. Was it not the duty of the accused to try to find out from the complainant whether he was the author of Exh. D. 1 But even if no inquiry by the accused from the complainant was necessary before the 30th of December 1961, it was clearly indicated in the afternoon of that day when the complainant un ceremoniously entered the guest house in the compound of the house of Lt.‑General Bakhtiar Rana and wanted the lady in the' case to accompany him. The accused did not consider any inquiry necessary even on the 30th of December 1961, and I am clear in my mind that even on the assumption that he did not definitely know that Exh. D. 1 was a forged document, he cannot claim to have acted in good faith as defined in the Pakistan Penal Code. I have already mentioned that a mistake of law is not a defence even if it was committed in good faith and as I have shown that the document could not result in a divorce to the lady in the case even if it were held to have been executed by the complainant, the offence if it had been committed would be punishable but a mistake of law in good faith may be a ground of mitigation of the sentence.
108. This brings us to the question whether the two offences with which the accused was charged by me on the 1st of February 1962, or either of them, has been brought home to him. The offence under section 498 of the Pakistan Penal Code, which the accused was charged with having committed on the 30th of December 1961, may be taken up first. The section, which has been reproduced in paragraph 2, applies if a person takes or entices away a woman who is and whom he knows or has reason to believe to be the wife of another man. I have shown already that the lady in the case was the wife of the complainant on the 30th of December 1961, and it is established by the evidence on the record that the accused definitely knew that the lady in the case was a married woman. It is further established that she and the accused stayed at the house of Lt.‑General Bakhtiar Rana, Martial Law Administrator of Zone B', from about 11 a.m. of 30th of December 1961 to about 9 a.m. on the 31st of December 1961 and that after that they left together by the Khyber Mail for the place at which the accused was posted as the Commissioner of the Division. These facts prove the taking away of the lady in the case by the accused. It would appear that an element of enticement also entered into the taking away. Broadly speaking, enticement may be defined as coaxing. Of this one finds evidence in the letter Exh. P. 14 which the accused admits having written to the lady in the case on the 6th of November 1961. The letter contains the draft of an undertaking which the accused was prepared to give in writing to the lady in the case and which was to the effect that if after one year of her having remained with him as his wife she found that she could not live with him any longer the accused would be willing to release her. But even if one assumes that the lady in the case herself went to the accused, who was at the house of General Bakhtiar Rana, and thereafter accompanied the accused to Quetta‑an assumption not easy to make because if the accused were unwilling to take or keep her with him he could have repulsed her and refused to allow her to travel in the two‑berthed compart ment which he had booked for himself in the train by which they traveled‑the position does not alter in law because then even the offence under section 498 of the Pakistan Penal Code would stand established against the accused. That the object of the accused in taking away the lady in the case was that she may have illicit intercourse with himself is hardly open to question and consequently I convict the accused under section 498 of the Pakistan Penal Code.
109. The question whether the offence under section 497 of the Pakistan Penal Code, mentioned in the charge framed on the first of February 1962, has been established, may be taken up now. The charge was that before, on and after the 30th of December 1961, the accused had bad sexual intercourse with the lady in the case who was, and whom he knew to be the wife of the complainant, without the consent or connivance of the complainant. About,' the accused having sexual intercourse with the lady in the case, there is no evidence other than what can be spelled out from the statements of the two persons who are stated to have indulged in it. The accused denied that he had slept with the lady in the case before the 2nd of January 1962, i.e., before the day on which he claimed he had married her, but on the part of the lady in the case there is no such denial. When I questioned her on the 31st of January 1962 with regard to the matter she said that it was only till the 16th of November 1961, [e., the date on which the document Exh. D. 1, the alleged divorce‑deed, was stated by her to have been executed by the complainant, that her love with the accused remained platonic. She had given this answer to a question which occurs at page 96 of the record. The question and answer read as under :‑
" Q. You said yesterday that till you married Colonel Yusuf, your love with him remained platonic
A. Our love remained platonic only till the 16th of November
As this answer was likely to damage the accused, Mr. S. M. Zafar, Advocate, asked the lady in the case on the 19th of February 1962 to explain what she meant by platonic love. The question of Mr. S. M. Zafar and the answer which occur at page 189 read as follows:‑
"Q. What do you mean by the expression platonic love mentioned in your statement in Court
A. Platonic love is a purely intellectual relationship between members of different sexes. Regard for a member of the opposite sex with a view to marriage cannot be described as platonic."
110. The definition which the lady In the case gave of the expression "platonic love ' 6 is substantially correct. This spiritual regard divorced from physical desire for a member of the opposite sex is called "platonic love" because it was dealt with in detail by the Greek Philosopher Plato. If, however, by giving the definition on the 19th of February 1962, the lady in the case wanted me to believe that what she meant by saying on the 31st of January 1962 that her love with the accused remained platonic only till the 16th of November 1961 was that there was no physical contact between them but they started only on the 16th of November 1961 to entertain an idea of marriage with each other she has not succeeded because it is clear even from the letter sent by the accused on the 6th of November 1961 that she and he were talking and had been talking of marriage with each other before that date. The answer given on the 19th of February 1962 was an attempt to withdraw a statement which admitted adultery on the 16th of November 1961 and afterwards. I cannot help remarking that from the circumstances which flow from the evidence brought on the record, a Court would be justified in inferring that ever since the time the lady in the case and the accused lived for a couple of days In the Cecil Hotel at Murree in September 1961, after which she admitted having received Rs. 500 from him which she described as an "emergency fund" that their love had changed into physical contacts. It is established that they bad a keen desire for each other and as this vital circumstance Is there, I agree with what Byron said about Plato in stanza CXVI of Canto I of Don Juan, which reads as under :‑
" Oh Plato 1 Plato 1 you have paved the way
With your confounded fantasies, to more
Immoral conduct by the fancied sway
Your system feigns 're the controlles core
Of human hearts, than all the long array
Of poets and romancers : You, 're a bore
A charlatan, a coxcomb‑and have been,
At best, no better than a go‑between."
111. I need hardly say that by agreeing with the tirade of Lord Byron on Plato, I am not ignoring any provision of law. It is said in section 4 of the Evidence Act, 1872, that for the purpose of the Act a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act on the supposition that it exists. The established facts are that: (1) the lady in the case and the accused i.e., a female and a male of the human species wanted each other very much; (2) the female was the wife of another man and, therefore, the male could not have connection with her which would not be looked at with disfavour by the other human beings, (3) they had ample opportunities to possess each other, and (4) when the female returned from Murree after living in Cecil Hotel in the room next to that of the male for a couple of days and nights she did not feel any compunction in taking from him a sum of Rs. 500. The inference that should be drawn) from the above facts is obvious,
112. But though I am satisfied that the claim of the accused that he did not have sexual intercourse with the lady in the case till the 2nd of January 1962, on which date he claims he entered into a valid marriage with her, and the claim of the lady in the case that their love remained platonic till the 16th of November 1961 are incorrect, I am equally satisfied that the accused cannot be punished for what he did In this direction before the 30th of December 1961. The Impotency of a Court of law regarding this matter is born of the law of the land. By reason of section 199 of the Code of Criminal Procedure no Court can take cognizance of an offence of adultery except on the complaint of the husband of the woman or in his absence on that of some person who has care of her on his behalf. No doubt the complaint put in on the 5th of January 1962 levels a charge of adultery against the accused but that charge pertains to the 30th of December 1961 and after that. It follows, therefore; that even if the accused had committed adultery with the lady in the case before the 30th of December 1961, he cannot be punished for it on the basis of the present complaint. The adultery committed on dates prior to the 30th of December 1961 could, however, possibly he taken into consideration for the purposes of the sentence. I have no hesitation in finding that the accused committed adultery with the lady in the case on and after the 30th of December 1961. On the 30th of December 1961, they were the only two persons in a room attached to the house of General Bakhtiar Rana ; on the 31st of December 1961 they were the only two persons in a railway compartment of the highest class and no one dare enter the compartment. After they reached their destination they remained together and continue doing so even now. I, hold, therefore, that the accused has been proved guilty of having committed adultery with the lady in the case on the 30th of December 1961 and the dates following it for which reason I convict him under section 497 of the Pakistan Penal Code..
113. This takes me to the question of sentence, and I make no secret of the fact that this question has given me many hours of hard and anxious thinking. On the one hand there are the following facts: ‑
(1) that taking advantage of the hospitality the complainant extended to him in return for the hospitality be had extended to the lady in the case and the complainant, the accused won the favours of the lady in the case who was the wife of the complainant ;
(2) that the accused called the complainant his younger brother evidently with the object of lulling him into a suspicion -less state ;
(3) that the accused added insult to the injury that he had done the complainant by trying to depict him as a man who did not object to his wife having an affair with a man; and
(4) that the accused was holding a high office under Govern ment and in the belief that action would not be taken against him took away the wife of the complainant in spite of his pleading that his home should not be broken up.
In the statement he made on the 29th of January 1962; the accused said that he loved the lady in the case more than any man had ever loved any woman. To my mind, this could not be true because if it had been he would not, for the satisfaction of his own desires, have made her lose the esteem of the world and be looked upon by the majority of the people as an untrustworthy woman who had, for the sake of a lover, given up her three children and a man with whom she had lived as wife for about ten years. But even if the claim of the accused be held to be correct and it be believed that he found life without the lady in the case a blank and not worth living the position does not alter materially because Justitia, the blind‑folded goddes of justice, has but scant regard for the helplessness of the victims of Cupid, the Juvenile blind god of love.
114. The other facts which I have to bear in mind like those mentioned in the last paragraph are these :‑
(i) That though the accused was a highly placed official he cannot be held to have taken a mean advantage of his position which would have been the case if he had run away and committed adultery with the wife of a man residing within his jurisdiction ;
(ii) that his conviction will, In all probability, result in his losing the important official position he took years to achieve ; and
(iii) that his reputation would be lost and people would look upon him as a person who was unfit for the company of respect able women.
Weighing all the relevant facts, I have come to the conclusion that the sentence should not be one of imprisonment but one of heavy fine. Consequently, I sentence the accused to a fine of Rs. 12,500 (Twelve thousand and five hundred) for the offence under section 497 of the Pakistan Penal Code, default of payment of which shall entail rigorous imprisonment for one year, and to a fine of Rs. 7,500 (Seven thousand and five hundred) for the offence under section 498 of the Pakistan Penal Code In default of payment of which he shall suffer rigorous imprisonment for six months. I need hardly add that imprisonment for default of payment of fine for one offence shall run consecutively with the imprisonment that has to be suffered for default in payment of the fine imposed for the other. The accused is given time till the 24th of Ma 'y 1962 to deposit the fine with the Deputy Registrar of this Court and till the 25th of May 1962 neither shall proceedings be taken to recover the fine nor shall he be arrested for not paying it. In exercise of the powers detailed in section 545 of the Code of Criminal Procedure, I direct that out of the fine a sum of Rs. 17,500 (Seventeen thousand and five hundred shall be paid to the complainant, Mr. Norman Edmunds, Advocate, will be given Rs. 2,000 (Two thousand) as his fee and Mr. Bhan (D. W. 6) will get his fee for examining docu ments at my instance. If only a part of the fine is realised, the money will be divided between the abovementioned three persons in proportion to the amount awarded.
115. It is not unlikely that in the opinion of some people this judgment of over 230 pages and more than 110 paragraphs ceased to be exhaustive and became exhausting pages and para graphs earlier, but I cannot close it without touching upon a matter which I think has its own importance in the adminis tration of justice. After the hearing in the case had finished, and I had adjourned it for writing judgment, I received al threatening letter to the effect that if Colonel Muhammad Yusuf came to the least harm at my hands, my family to eight generations and I will not be spared because Col. Muhammad Yusuf was very dear to the writers. The letter which purports to have been written by the residents of the Tribal Areas of the Frontier and purports to be a second warning‑I have not received any other warning in writing was cleared from Camp Post Office L‑427 on the 4th of April 1962 at 21.15, and received by me on the 6th. On the receipt of the letter, I asked the Registrar of this Court to find out where this post office was and he informed me, after making inquiries from the Postal Department, that the post office was in Meva Mandi Peshawar. This method of trying to obtain the verdict of a Court of law in favour of someone cannot receive the support of but a handful of the residents of Pakistan. I have mentioned the matter so that, if possible, Government should nip in the bud this tendency to overawe public servants whose duty it is to do justice between the parties before them, lest in Pakistan, the largest Muslim State in the world, administration of justice deteriorate Into the carrying out of the dictates of those who happen to be rich, strong, influential or desparate, as it did in those of the States in British India which were mal‑administered. I am attaching to this judgment the letter and the envelope in which it was contained, and would direct the Registrar of this Court to send the letter which bears an endorsement by me and its envelope to the Home Secretary to Government of West Pakistan along with a copy of this paragraph of the judgment for such action as may be deemed called for. The Registrar shall keep a copy of the letter himself and attach one to the judgment but the letter should not be deemed to be a part of the judgment for the purposes of grant of its certified copies.
At the request of Mr. Mahmud Ali, Advocate, I certify under section 411‑A of the Code of Criminal Procedure than the case is fit for appeal on facts and law. The prayer that the case be certified as fit for appeal to the Supreme Court is rejected because an appeal lies to this Court which under' the Rules will be heard by two or more Judges.
A. H.
s
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