Syed ALI NAWAZ GARDEZI Appellant versus LT. COL.

MUHAMMAD YUSUF Respondent

Citation: 1963 PLD 51

Result: Order Accordingly
Court: Supreme Court of Pakistan
Date of Decision: 29/11/1962
Judge(s): A. R. Cornelius, C. J., S. A. Rahman, Fazle Akbar, B. Z. Kaikaus and Hamoodur
Rahman, JJ
Case Number: Criminal Appeal No. 98 of 1962
JUDGMENT

JUDGMENT

S. A. RAHMAN, J.-The respondent, Lt.-Col. Muhammad Yusuf, was tried

under sections 497 and 498 of the Pakistan Penal Code by a learned
Single Judge of the High Court of West Pakistan. He was convicted on
both charges and sentenced to pay fines of Rs. 12,500 and Rs. 7,500 there
under, or in default, to suffer rigorous imprisonment for one year on the
first charge and to six months on the second charge. In case the fine was
not paid, the terms of imprisonment for default, awarded on the two
charges, were directed to run consecutively. The case had been tried on a
complaint lodged by the petitioner, Mr. Ali Nawaz Gardezi, (hereinafter
referred to as the complainant), in the Court of the A. D. M., Lahore, but it
had been transferred, on his application, for trial in the High Court, by the
learned Judge, on the ground that the respondent being a Commissioner
of a Division, the Subordinate Courts would feel embarrassed in dealing
with the case.

2. The convict appealed and the Appellate Bench consisting of three

Judges of the High Court, set aside the convictions and sentences and
acquitted him of both the charges.

3. Mr. Ali Nawaz Gardezi was granted special leave to appeal as a large
number of complicated questions of law an, fact arose in the case and on
nearly all of those questions, the judgment of the Appellate Bench had
reversed the findings of the learned trial Judge. A number of the questions
thus arising, were sufficiently important to attract the special jurisdiction
of this Court in criminal cases.

4. The prosecution case was that the complainant, who is a Shia Muslim
and a citizen of Pakistan, married a German girl, Christa Renate Sonntag,
at Hull (England), before the Registrar of Marriages, on 21-7-1951. She
was a Christian at that time. Three children were born of the marriage-
two sons and a daughter. The couple lived for some time abroad but came
to Pakistan in 1953, for the first time. The complainant is aManager of
Siemens Engineering Company Ltd., the Mall, Lahore, a German firm. The
complainant and his wife were visiting Europe off and on, and in August
1961, they returned there from to Pakistan via Quetta. There they
happened to meet the res pondent on the 13th of August 1-961. Friendly
relations were established between them and the complainant and his wife
invited the respondent to stay with them when he visited Lahore.
Accordingly, on two occasions, the respondent stayed as the house-guest
of the complainant, before the end of September 1961. It appears that
Renate and the respondent developed a liking for each other soon after
their first meeting and this turned into a mutual infatuation later. They
corresponded with each other and the respondent made frequent
telephone calls to the lady, from Quetta or Loralai, mostly at times when
the husband was away from his house. In or about the middle of
November 1961, the complainant is said to have intercepted the letter,
Exh. P. 1, written by the respondent to his wife. This was dated the 9th of
November 1961, and shows that matters had advanced so far between the
respondent and the lady that they were thinking of taking active steps to
obtain release from their marital ties (both parties being married persons)
and to marry each other. The letter is reproduced below : -

"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, I 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 tomorrow 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."

The complainant, according to his own statement, waited for two days and
then broached the subject with his wife but took no further action. What
passed between the husband and wife, on that occasion was not brought
on the record, as an objection was raised on behalf of the respondent that
the statement would be within the mischief of section 122 of the Evidence
Act, having been made in marital confidence.

5. Towards the end of November 1961, the complainat went on tour to

Rawalpindi anal Peshawar and returned therefrom on the evening of the
29th of November 1961. He discovered on arrival, that his wife had gone
to Quetta. He immediately booked a trunk-call to her at the respondent's
Quetta telephone number, but learnt that she had proceeded with him to
Loralai. He then spoke to her on the telephone at the latter place and
asked her to come back immediately to Lahore. On the 1st of December.
he received a telegram from the respondent, Exh. P. 8, informing the
complainant that Renate had been despatched by Bolan Mail and would be
arriving in Lahore by Tezgam on the 2nd December. When she reached
the house, the complainant states that he re primanded her, on her having
gone to Quetta and even gave her a beating.

6. The couple brought their two sons, who were studying at the Lawrence
College, Ghoragali, in December, to Lahore, as they were having their
vacation. On the 14th of December, the com plainant gave a party to
celebrate the birth-day of his wife. The object was to placate her and make
her forget her lover. On the 23rd of December 1961, he gave a Christmas
party to his office staff, at which his wife acted as the hostess. On the 29th
of December 1961, after dinner, Renate produced two chits, Exhs. P. 3
and P.4, before the complainant, setting out drafts of what purported to be
a divorce-deed and asked him to sign them. The drafts were almost
identical and were couched in the following terms :-

"While in full possession of my senses and having considered the matter

objectively, I------son of-------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."

7. The complainant claims that he refused to sign the chits. On the 30th of
December 1961, when he returned from his office to the house at 1-30
p.m., he found that his wife had gone away with her belongings. On
inquiry he learnt that the respondent had booked a first-class air-
conditioned coupe by the Khyber Mail, for Quetta, for the 31st of
December 1961. He then went to the house of Lt.-Gen. Bakhtiar Rana,
Martial Law Administrator, Zone `B', as he expected to find the
respondent there. His conjecture proved to be right and he found the
respondent and his wife together in a room of the General's house. The
com plainant went on to relate that the respondent first adopted an
aggressive attitude but later became apologetic and tried to suggest that
such things happened in the world and that it would be advisable to avoid
a scandal. He asked the complainant to divorce his wife so that he could
marry her. The complainant's exhortations to his wife to return home
proved fruitless and he came away. The respondent and Renate left for
Quetta on the 31st of December in the coupe reserved by the respondent.

8. On the 2nd of January 1962, the respondent and Renate were married
at Quetta according to Muslim rites. She was declared to have become a
Muslim and was given the name of Ruqayya. On the 5th of January 1962,
Mr. Gardezi filed his complaint under sections 497 and 498, P. P. C.

9. On the 6th of January 1962, the complainant saw a press report about
the marriage of the respondent to Renate and he then instituted another
complaint, under section 494 of the P. P. C. against the respondent and
his wife, in the High Court. The learned trial Judge directed that it should
remain pending while the first complaint was being dealt with. On the
10th of January 1962, according to the complainant's story, a friend of the
family, Mrs. Amin, handed over to him an envelope containing keys of the
cupboards of the house, along with a letter sent by his wife. On opening
the cupboards, he came upon the letter, Exh.P. 14, in the hand of the
respondent and addressed to his wife. This reads as follows

"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 not available.

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 it, 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."

10. The respondent did not accept the version put forward by the
complainant as correct. According to him, the complainant was informed
by his wife, on the 19th of September 1961, on her return from Murree
where she had gone to attend the Founder's Day of the Lawrence College,
in the interest of her two sons, that she loved the respondent who had
promised to marry her, if she was released from the marital bond by the
complainant. He further stated that he was called from Quetta specially to
meet the complainant and his wife at their house on the 25th of October
1961, and it was decided on that day that the complainant would fall in
with the wishes of his wife and grant a divorce to her provided that, for
three months, she and the respondent did not communicate with each
other and that she did not change her mind, in the interval. On the next
day, i.e., the 26th of October 1961, Renate accepted Islam at the hands of
the respondent in the absence of the complainant who was kept in the
dark about her conversion. In the end of October, the complainant and his
wife again visited Murree to see their children, and on return there from,
the lady, it seems, decided not to abide by her promise of non-
communication with the respondent. She told her husband that she did
not need three months to make up her mind and that she could not live
without the respondent: She, therefore, asked the respondent to resume
telephonic calls and letters, vide her letter, Exh. C/3, which is reproduced
below : -

Monday

My dearest love,

We came back from Murree last night after spending two days with the
children.---Do you know, now at last t 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 airport
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."

11. On the 5th of November 1961, there was an altercation between the
complainant and his wife and the lady threatened to go away, even if she
was not granted a divorce. The com plainant gave her a beating. She gave
out that she would consult a doctor and then proceed against him for
divorce on the grounds of physical cruelty. This broke down the resistance
of the com plainant who agreed to release her from the marital tie.
According ly, the lady sent the telegram, Exh. C/2, to the respondent on
the 6th of November 1961, reading as follows

"RELEASE SECURED SEND LAWYER'S DRAFT AND

INSTRUCTIONS"

"RAUF"

"Rauf" admittedly was the pseudonym under which the lady was
corresponding with the respondent at his official address. The respondent
accordingly wrote her the letter, Exh. P. 14, and enclosed with it a draft of
the divorce writing, Exh. P. 3. (The lady suggested in her evidence that
the letter in question had been taken away by her husband surreptitiously,
while it was lying about the house). This draft, Exh. P-3, was presented by
the lady to the complainant who took it to his office and later pretended to
have lost it. The respondent again visited Lahore and provided another
copy of the draft, Exh. P-4, to the lady who passed it on to the
complainant. The latter eventually copied out the draft in the presence of
the lady and signed it in his own hand, on the 16th of November 1961. The
compact between the parties was, however, that in spite of this divorce
being granted, Renate would continue living in the complainant's house,
till their sons went back to the Lawrence College, Murree, after their long
vacation, about the end of March 1962. The idea was to spare the children
immediate knowledge of the rift between their parents. Towards the end
of December 1961, however, she learnt that the complainant and his
brother who is a doctor, were conspiring to marry off the complainant to a
woman in Mardan and then to push Renate out of the country. She
therefore decided to leave the complainant's house. She joined the
respondent at General Rana's house on the 30th of December 1961, after
having talked to him earlier in the day, and then accompanied him to
Quetta on the 31st of December. She was duly married to him on the 2nd
of January 1962.

12. With regard to the visit to Quetta in November 1961, it was the
respondent's case, as supported by Renate's statement, that she had gone
with the permission and consent of the complai nant, in order to find out
the reactions of the respondent's first wife to the proposed marriage of the
respondent with Renate. The suggestion was made that the complainant
was acting as a more or less complacent husband who had given way to
the importunities of a headstrong wife in this matter and had all along
hoped that by his leniency, he might win her back.

13. The complainant did not admit that he had given any writing of
divorce and he described the document, Exh. D. 1, on which the
respondent relied, as a forgery. He also denied the alleged agreement said
to have been arrived at between the parties on the 25th of October 1961.
He challenged the assertion of the respon dent that he had converted
Renate to Islam on the 26tb October, and pleaded in the alternative that
even if Exh. D. 1 could be regarded as his writing, it was ineffective in law
as an instrument of divorce.

14. In the High Court the validity of the complainant's marriage to Renate
in England was also challenged on the ground that the complainant was a
Shia, and under his personal law, his marriage to a non-Muslim lady was
invalid. Reliance was placed in this connection on the rule of private
international law that the formal validity of a marriage had to be judged
by the lex loci contractus, but that the capacity of the parties to enter into
the marriage bond had to be determined according to the law of the
domicile of the party concerned. (See inter alia, Brook v. Brook (1861) 9 H
L C 1921, Halsbury's Laws of England, Vol. 7, p. 91, para. 165, III
Edition). The learned Single Judge as well as the Appellate Bench held,
however, that the marriage of the complainant and Renate, at Hull, was a
perfectly valid one. Syed Amir Ali, in his well-known text-book on
Mohammadan Law, 4th Edition, at p. 327 et seq, has discussed the
question of validity of a Shia, Muslim's marriage to a non-Muslim woman
of one of the scriptural sects. He has pointed out that such a marriage
would be valid among Usuli Shias, and a large section of the Akhbari
Shias, though one school of thought represented by the author of the
treatise "Sharai-ul-Islam" (on which Baillie's Digest, Vol. II is mainly
based) has condemned such a marriage as invalid. The complainant in the
present case declared on oath that he followed the Shia faith, but in case
of a conflict between a clear Quranic injunction and a doctrine of the Fiqh
he would follow the Quran. He appears, therefore, to be a member of the
Us "I persuasion. The Quran clearly permits a marriage of a Muslim with a
woman professing one of the scriptural religions. In the circumstances,
Mr. Mahmud Ali, on behalf of the respondent, did not seriously contest the
concurrent findings of the trial Judge and the Appellate Bench, that the
marriage of the complainant with Christa Renate Sonntag, solemnized in
England, was valid. This view we consider to be plainly right on the facts
of this case.

15. The next question that fall for determination is as to the genuineness
of the alleged deed of divorce, Exh. D. I. The learned trial Judge held that
this was a fabricated document but the Appellate Bench disagreed and
held that the complainant was its author. In this context the complainant
made his own statement on oath to the effect that he never wrote or
executed this document, though he admitted that the subject of divorce
had been discussed between him and his wife and he would have released
her from the marital bond if eventually he found that he could not retain
her. He, however, stated that the question was postponed for further
consideration till after their children had left, in March for their school.
The occasion, therefore, according to him, never arose for the execution of
this document. He was supported by the evidence of one of his brothers
and a co-employee of his own in Siemen's Ltd., who claimed to be familiar
with his handwriting and declared that the document. D. I was not in his
hand.

16. This evidence was countered by the statement of Christa Renate to the
effect that the complainant had first brought a document from his office
which he said he had written and signed there, reproducing the contents
of one of the drafts, P. 3, and P. 4. As it was not in the normal hand of the
complainant, she refused to accept it and asked him to write down
another document in the same terms in her presence. He did so and the
result was Exh. D. 1, which she passed on to the respondent. It struck her
that even this document was written elaborately and was not in the usual
style of writing of the complainant. On her pointing out this fact to the
latter, he told her that if he had no intention of giving her a divorce, he
would not have drawn up the writing at all. This satisfied her. When she
handed over the document to the res pondent, the latter also questioned
her about the unfamiliar handwriting and signatures. She explained to him
what had happened. Renate's statement was supported by calling into the
witness-box, two handwriting experts, Mr. Bhan and Mr. Zaka A. Malik,
who both compared the writing, D. 1, with the admitted writings of the
complainant and on the basis of certain similarities between them, opined
that their author was the one and the same person.

17. The learned trial Judge was not impressed by the evidence of the two
experts and rejected them as wholly unre liable. The Appellate Bench,
however, considered their evidence to be sufficient for lending adequate
support to the statement of Christa Renate.

18. We have considered the evidence on the record and reached the
conclusion that the statements of the two handwrit ing experts were not
cogent or convincing enough to lead to a definite conclusion. They
admitted that there were differences between the document D. 1 and the
other acknowledged writings of the complainant, but they described them
as natural variations. The fact is not denied that the writing, Exh. D. 1,
departs from the normal handwriting of the complainant. Photostat copies
of the original document, Exh. D/1 and the admitted writing of Mr.
Gardezi, Exh. D/3, are appended to this judgment and a cursory
examination of these copies would bear out the obvious disparities
between the two writings.

In the circumstances, it appears to be a risky process to base the finding

of genuineness only on the discovery, by an astute investigation, of certain
similarities which are not of such a striking character as to fix the
authorship of S the questioned writing beyond dispute. There is, of course,
the consideration that a forger would not take the risk of fabricating a
whole document if this purpose could be served by fabricating the
signatures alone. But at the same time the absence of any witnesses to the
execution of the document is a circumstance that calls for adverse
comment. We have merely the interested word of Christa Renate in favour
of the positive assertion that the writer was the complainant and we
should have thought that the elementary precaution of having witnesses
to the execution of the document could have been easily adopted, if the
complainant was a willing party to the divorce.

19. The surrounding circumstances and the subsequent conduct of the

parties are also somewhat equivocal. On the one hand there is the lack of
action on the part of the complainant on the day that his wife finally left
his house to join the res pondent. All that he did was to go to Lt.-Gen.
Rana's house to persuade his wife to come back but he took no further
steps to cut short her escapade. He did not complain to Gen. Rana or to
the Governor of the Province or to the Chief Secretary of the Provincial
Government, against the conduct of the respondent in taking away his
duly-wedded wife. A complaint to the authorities would have been
eminently called for, considering that the respondent was a Government
officer. Not only this but the letter which the complainant wrote to Renate
after she had gone away with the respondent to Quetta, (Exh. D. 3), does
not reveal the complainant in the light of an injured husband. This letter
may be reproduced in extenso: -

"Lahore

1/62

Renate

They say when calamities befall they never do singly. Little Puppi 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 asleep.

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 under stand. 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 (sic) for your detailed reply. (Here followed a couple of lines
in German).

Love from us all.

Nawaz."
[Note.---The lines in German at the end of the letter were to the effect
"Write often ring soon" and "Would it ever be possible that we could live
the life together", as explained by the com plainant from the witness-box].

A plain reading of this document would show that the complainant was
wishing Renate happiness in her new life, though he had at the same time
made an appeal to her to consider whether she could build a happy life on
the tears and misery of their children. He assured her also that if ever she
needed a friend or help he would be there and declared that he was not
condemning her. It is strenuously argued that this was not the letter of a
person who had been deprived of his legally wedded wife by an abductor.

20. It is also argued that the visit of Renate to Quetta about the end of
November had been made with the consent of the complainant and not, as
he suggested in his evidence, without his knowledge. Renate's story was
that she had gone there to sound the first wife of Col. Yusuf as to the new
develop ments and wanted to assure herself that she would not meet with
a hostile atmosphere in her new home. There is evidence on the record to
show that although she travelled to Quetta by plane on the 27th of
November, she had purchased a return-ticket and the booking had been
done five days earlier, i.e., on, the 22nd November, when the complainant
was apparently at Lahore, through Siemen's Ltd. The complainant later
got refund of the return-ticket from the Travel company through whom
the seat was booked as Renate returned from Quetta by train instead of by
plane, in compliance with the complainant's telephone call. The
circumstances do indicate that the complainant must have been aware of
the intended visit of Renate to Quetta, though it is difficult to understand
why, in that case, he sent her a frantic telephone call to return. Reliance
was also placed on reference to the sending of the draft by the respondent
in his letter, Exh. P/14, and the lady's telegram, Exh. C/2, intimating to the
respondent that she had been successful in securing her release, as
circumstances showing willingness on the part of the husband to grant the
divorce.

21. On the other side, the conduct of Christa Renate after the alleged
divorce had been granted, R as not quite consistent with the severance of
the marital tie. She remained in the house of the com plainant even after
the 16th of November and ostensibly acted as a normal house-wife. At the
two parties: One in connection with her birth-day on the 14th of
December, and the second, a Christmas party to the staff of the
complainant on the 23rd of December, she officiated as the hostess. On
the 24th of December 1961, according to the evidence, she attended a
German Religious Service (to which German ladies and their Pakistani
husbands had been invited) at the F. C. College Chapel, along with her
husband. It is also in the evidence that they sent Christmas cards to
friends signed as "Renate & Nawaz", thus indicating to the world that they
were still joined in wedlock. On the 29th of November 1961, she had sent
a telegram to the complainant from Loralai or Quetta with the following
words:-

"ARRIVE MONDAY PIA ALL WELL DON'T

WORRY LOVE

RENATE"

On his insistence she returned from Quetta earlier than she had intended,
showing that the complainant had still a hold on her. The tenor of the
telegram suggests the intended return of a faithful and loving wife instead
of the reverse. She had not informed her mother in Germany, with whom
she was in correspondence, that she had obtained a divorce from her
husband, nor did she give out this fact to any of their friends till after she
had married the respondent at Quetta. All these factors throw a
considerable degree of doubt on the genuineness of the divorce-deed, D/l.
The document in question certainly existed on the 2nd of December when
S. Darbar Ali Shah, Additional Commissioner, Quetta, D. W. 2, attested
three copies of it at Pishin (Baluchistan), at the request of the respondent.
The Courts below are agreed on this finding but that of course is no
guarantee that Exh. D/1 had been executed by the complainant. The draft
of course had to be reproduced and not merely signed, as the complainant
would have us believe, for the blanks in the draft did not leave enough
space for the relevant entries to be made. But all these circum stances do
not establish that the complainant did comply with his wife's demand in
this respect. The upshot of the whole discussion is that the evidence is
inconclusive and insufficient for arriving at a positive finding about the
genuineness or otherwise of the document, D/1.

22. Even if the benefit of the doubt could be extended to the respondent
as an accused person, and it were to be held that Exh. D/ I might have
been written out by the complainant, there would be other hurdles in the
way of the respondent before he could successfully urge that Christa
Renate had ceased to be the wife of Mr. Gardezi. In the first place it is
contended that the civil marriage contracted, in England, could only have
been dissolved by a decree of a Court and that dissolution of marriage by
means of a talaq pronounced by the husband, would not be recognised as
valid under English law, according to some authorities. Reference in this
connection was invited to para. 200 at page 112 of Halsbury's Laws of
England, Vol. 7, Third Edition. It is stated therein that "a declaration of
divorcement made under Mohammedan law by a person domiciled in India
or in Egypt, has not the effect, in England, of dissolving a marriage
contracted in England, according to English law, with a woman domiciled
in that country". The authorities cited in support of this proposition are
mentioned as R. v. Hammersmith Superintendent Registrar of Marriages,
Ex parte Mir-Anwaruddin(1917) 1 K B 634 C Aand Maher v. Maher(1951)
P. 342. But this dictum would be applicable, as is clear from the state
ment given in Halsbury, only to a woman domiciled in England. In a
recently decided case, Russ v. Russ (1962) 2 W L R 708, Scarman, J. has
held that as a general rule, English law looks to the law of the domicile to
determine the status of parties, though the, learned Judge adds that "the
Courts have a discretion and may, in a proper case, refuse to recognise a
status conferred or imposed upon a person by the law of his domicile and
will reach their decision with due regard to commonsense and some
attention to reasonable policy". In that particular case it was held that the
marriage of an Egyptian Muslim with an English woman, performed
before a Registrar in England, would stand dissolved by a talaq granted by
the husband in Egypt which was the matrimonial domicile of the spouses.
It was found that the woman accompanied her husband to Egypt to live
there and had even gone through a Mohammadan ceremony of marriage
with him in that country. In Dicey's Conflict of Laws, Seventh Edition, at
page 307, the view is expressed that: -

"In spite of earlier dicta to the contrary, it is now clear that English courts
will recognise non-judicial divorces obtained unilaterally by one party to
the marriage in accordance with a religious law (e.g., a Jewish ghet),
provided the parties are domiciled in a country the territorial laws of
which permit such a method . . . . ."

The learned author notes that, according to some authorities, "a method of
divorce, which is appropriate to a polygamous union, will not be
recognised as having dissolved a monogamous marriage even if it has this
effect by the law of the parties' domicile", and proceeds to criticize this
view. Prof. Cheshire in his text-book on Private International Law (IV
Edition) at page 370 et seq has discussed this question and favours the
opinion that a divorce obtained in a foreign domicile, even though
obtained without contentious proceedings and even though it dissolves a
marriage solemnized in England between British subjects, must be
recognised by the Courts of England, since it satisfies the general
principle that alterations of status are governed by the lex domicilii. The
trend of modern authorities, therefore, appears to be that if the law of the
domicile permits a dissolution of marriage by the pronouncement of talaq,
the divorce may be recognised as valid, under the rules of Private
International Law, in other countries as well.

23. The case for the respondent is, however, not placed on this broad
footing. Christa Renate herself stated that she was conscious that her
marriage with the complainant could not be dissolved by the
pronouncement of talaq by the husband, unless she herself had adopted
Islam. Her case was that she had accepted Islam on the 26th October at
the hands of the respondent who made her recite the kalima, though this
conversion was kept a secret from the complainant, as he might have
refused to grant a divorce in the form, Exh. D/1, if he had come to know of
that fact. The question then is whether the allegation that she was actually
converted to Islam on the 26th of October 1961, is sub stantiated by the
evidence on the record.

24. The learned trial Judge negatived this plea, but the Appellate Bench of
the High Court reversed that finding on the ground that a person's
religious belief could best be determined by his or her professions. As a
general proposition, no exception can be taken to this statement. In the
present case, however, it has to be remembered that Christa Renate was
obviously interested in making out that she was free to marry the
respondent and her bare statement, coupled with the state ment of the
respondent as an accused person, that she was converted to Islam on a
particular date, must be accepted with a great deal of reserve. The other
circumstances brought out in the evidence clearly belie her assertion that
she had become a Muslim on the 26th of October 1961.

25. If the lady and the respondent are to be believed, they had kept the
factum of conversion to themselves and had not given it out to any other
person till their marriage was celebrated at Quetta on the 2nd of January
1962. Christa Renate had not informed her mother of her conversion at
the relevant time nor had she talked about it to any of her friends. The
com plainant and this lady had behaved very much as normal spouses at
parties arranged at their house in December 1961. In that month, she had
actually attended a Christian Religious Service at which a German pastor
officiated, in the F. C. College Chapel, and this seems to suggest that she
was still a Christian. It is true that Pakistani husbands of German wives
were also issued invitations to attend, if they so liked, and that differences
of religious beliefs were to be ignored for the occasion as it had a social
aspect also.

26. A Press Note was issued at the time of Christa Renate's marriage to
the respondent at Quetta, a translation of which into Urdu, was published
in the daily Zamana of Quetta, of the 3rd January 1962. The tenor of that
Press Note, which had been drafted under instructions of the respondent
by Mr. Ali Mazhar Rizvi, P. W. 8, a Publicity Officer of the Government,
indicates that she had accepted Islam just before her marriage. The draft
is Exh. P. W. 8/1 and admittedly bears some corrections in the hand of the
respondent. The note published in the Zamana is Exh. P. W. 9/1. This
would be consistent with her being a Christian till then. It was on that
occasion for the first time that her new Muslim name "Ruqayya" found
public mention. The respondent, however, examined some witnesses
including two or three highly placed officers to show that he had told
them that the lady had already become a Muslim before the date of the
celebration of the marriage with him. But no precise date was mentioned
in this connection by the respondent to his acquaintances, and it is far
from being established from their evidence that the conversion, if at all it
preceded the marriage at Quetta, had taken place on the 26th of October
1961.

27. It is significant that the question put in cross-examina tion to the

complainant by respondent's counsel, S. Muhammad lqbal; on 29-1-1962,
suggested that Renate had declared herself to be a Muslim, in the
presence of her husband and the respon dent, on the 25th of October
1961. The suggestion was denied, but the form of the question leads to the
inference that till then, the respondent and Renate had not yet made up
their minds as to what date should be mentioned for the alleged
conversion. The clear reference to the husband's presence on the alleged
occasion in the question, stands in strong contrast to the assertion that at
no stage was he apprised of her change of faith. The question must have
been put, on instructions from the respondent. On that date, Christa
Renate was also apparently present in Court and no attempt was made on
her part to correct the date or other particulars by bringing them to the
notice of the learned counsel who, she acknowledged, was also her own
legal adviser.
28. There is then the further circumstance that in a written statement
prepared for the purpose of this" case, by Christa Renate at Sibi and later
given to Sardar Muhammad Iqbal, her legal adviser and counsel for the
respondent, Exh. C. W. 1/1, although relevant occurrences are detailed
date wise and there is an entry dated the 26th of October 1961, there is
no mention in that entry, of her conversion to Islam. All that appears in
that entry is that in the afternoon of the 26th October, she accompanied
the complainant to the airport, in order to see off the respondent, after
having coffee at the Gardenia Restaurant and that she mentioned to Mr.
Gardezi, at the airport, that she intended to change her nationality and
religion. The complainant was visibly upset on hearing this
announcement. This entry further fortifies the inference arising from the
form of the question put in cross-examination to the complainant by
Sardar Muhammad Iqbal.

29. The question was raised in the High Court whether this document, C.
W. 1/1, and another document, C. W. 1/2, which contained questions
proposed by Renate to be put in cross examination to the complainant,
were admissible in evidence or not. The learned trial Judge held that as
the lady was only a witness in the case and not an accused person Sardar
Muhammad Iqbal, who was counsel for the respondent, could not be
described as her counsel or legal adviser and anything that passed
between them was not hit by the provisions of section 126 of the Evidence
Act. This view was dissented from by the Appellate Bench of the High
Court mainly on the ground that even the prospect of engagement of a
counsel by a person was sufficient to confer privilege on communications,
made in the course of professional engagement. Her prosecution for
alleged bigamy was anticipated by her, according to this view. The
learned Judges omitted to notice that the documents had been brought on
the record with the express consent of Christa Renate, and consequently
section 126 of the Evidence Act was not, in terms, applicable. The learned
Judge had given a warning that if the document was placed on the record,
it might be used for the purpose of the case. The learned counsel for the
respondent was therefore permitted to consult the witness end then
decide whether she would be willing, to produce the document in these
circumstances. She finally assented and consequently she must be
deemed to have given her consent, while being cognisant of all attendant
risks. The relevant part of section 126 of-the Evidence Act reads as
follows: -

"126. 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, pleader, attorney 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 . . . . ."

What happened in the case was that while Christa Renate was being
examined as a Court witness, (she was intended to be produced as a
witness in defence), she herself mentioned that she had given a written
statement to Sardar Muhammad Iqbal, and on this, the trial Judge asked
her whether she had any objection to his seeing that document. She
declared that she had none. The counsel was permitted to talk to her in
the witness-box and after about fifteen minutes' parley, the counsel
himself requested that the document may be placed on the record in order
that it may form part of the evidence. Sardar Muhammad Iqbal, who was
also examined as a Court witness in the case, stated that he had
persuaded the lady to allow the document to come on the record, as it was
a good opportunity of placing her full version before the Court. In the
circumstances, the question of the application of section 126 of the
Evidence Act did not arise at all. It seems to us that the more' pertinent
provision of the Evidence Act was section 129 and not section 126. This is
in the following terms: -

"129. No one shall be compelled to disclose to the Court any confidential

communication which has taken place between him and his legal
professional adviser, unless he offers himself as a witness, in which case
he may be compelled to disclose any such communications as may appear
to the Court neces sary to be known in order to explain any evidence
which he has given, but no others."

Under this section too the two statements were clearly admissible in
evidence.

30. This being the state of the evidence on record, it is not possible to
accept the assertion made by the respondent in his statement as an
accused person, and the evidence of Renate Christa that she bad become
a Muslim on the 26th of October 1961. If there had been a genuine
conversion on that day, it would not have been at all difficult to arrange
for some witnesses to be present, when she made her declaration of
change of faith. If the intention was to keep the husband in the dark about
it, she could have easily accompanied the complainant to a place outside
the house, so that she could profess her new faith before a Moulvi or even
before a lay-witness. The circum stance that such a solemn ceremony was
performed sub rosa and was attended by the two lovers only, casts a grave
doubt on the truth of the allegation.

31. There is then no escape from the conclusion, that, on her own
showing, Christa Renate had not been properly divorced by the
complainant, as she was not a Muslim on the relevant date.

32. The alleged talaq could at best be described as talaq bidat, which is
not recognised as valid by Shia law. (See Baillie's Digest of Muhammadan
Law, Part II, p. 118, Tyabji's Muhammadan Law, Third Edition, Ss.
136-142, Mulla's Muhammadan Law, P. 662, Fifteen Edition, Amir Ali's
Muhammadan Law, Fourth Edition, Vol. II, P. 533). These text-books
writers, moreover, are unanimous in stating that according to Shia
doctors, the talaq must be orally pronounced by the husband, in the
presence of two witnesses and the wife, in a set form of Arabic words. A
written divorce is not recognized, except in certain circumstances which
do not exist in the present case. The learned trial Judge took the view that;
Exh. D. 1, even if it was executed by the complainant, was not effective in
law to separate the two spouses because of these provisions of the Shia
Fiqh. The Appellate Bench of the High Court regarded the provisions of
the Shia Fiqh with regard to the presence of witnesses and the necessity
of an oral pronounce ment of divorce, as merely rules of evidence which
could be disregarded. The law being, however, laid down in categorical
terms, it is open to question whether the view taken by the Appellate
Bench can be sustained. The learned Judges do not appear to have
adverted to the point that the alleged talaq was in the heretical form
(Talaqul Bidat) which the Shia dispensa tion of Islamic Law does not
sanction.

23. Assuming for the sake of argument, that the technicalities of the Shia
Fiqh could be ignored in respect of the form of divorce, another obstacle
to the document D. I taking effect from the date of its execution, is raised
by the provisions of the Muslim Family Laws Ordinance, 1961. This
Ordinance came into force with effect from the 15th July 1961, and by
subsection (2) of section 1; declares that it extends to the whole of
Pakistan and applies to "all Muslim citizens of Pakistan wherever they may
be". Section 3 inter alia declares that the provisions of the Ordinance
would have effect, "notwithstanding any law, custom or usage". Section 7
of the Ordinance is pertinent to this case and may be reproduced in
extenso :-

"7. Talaq :-(I) Any man who wishes to divorce his wife shall, as soon as
may be after the pronouncement of talaq in any form whatsoever, give the
Chairman notice in writing of his having done so, and shall supply a copy
thereof to the wife.

(2) Whoever contravenes the provisions of subsection (1) shall be

punishable with simple imprisonment for a term which may extend to one
year or with fine which may extend to five thousand rupees or with both.

(3) Save as provided in subsection (5), a talaq unless revoked earlier,

expressly or otherwise, shall not be effective until the expiration of ninety
days from the day on which notice under subsection (i) is delivered to the
Chairman.

(4) Within thirty days of the receipt of notice under sub section (1), the
Chairman shall constitute an Arbitration Council for the purpose of
bringing about a reconciliation between the parties; and the Arbitration
Council shall take all steps necessary to bring about such reconciliation.

(5) If the wife be pregnant at the time talaq is pronounced, talaq shall not
be effective until the period mentioned in sub -section (3) or the
pregnancy, whichever be later, ends.

(6) Nothing shall debar a wife whose marriage has been terminated by
talaq effective under this section from re marrying the same husband,
without an intervening marriage with a third person, unless such
termination is for the third time so effective."

It is common ground between the parties that the complainant in the case
had failed to give notice to the Chairman of the Union Council concerned,
in respect of .the alleged grant of divorce by him to his wife, as required
by this section. The learned trial Judge, therefore, found that, in the face
of this section, the talaq failed to operate as such. The learned Judges of
the Appellate Bench, however, were of the opinion that the Ordinance
itself could not apply to the facts of the case, because Christa Renate was
a non-citizen and the Ordinance was meant to apply only to Muslim
citizens of Pakistan.

34. A brief examination of the provisions of the Ordinance would seem to

be necessary in order to determine its scope. As has been observed above,
undoubtedly subsection (2) of section 1 of the Ordinance makes it
applicable to all Muslim citizens of Pakistan wherever they may be. The
question is whether this; means that the provisions of the Ordinance are
attracted only if both spouses are Muslim citizens; or even where the
husband alone is a Muslim citizen. Mr. Mahmud Ali, on behalf of the res
pondent, has strenuously argued that the Ordinance would be appli cable
only where both parties to a marriage are Muslim citizens.

35. Section 5 of the Ordinance provides that every marriage solemnized

under Muslim Law, shall be registered, in accordance with the provisions
of the Ordinance and for this purpose, the Union Council is authorized to
grant licences to one or more per sons, to be called Nikah Registrars.
Every marriage not solemnized by the Nikah Registrar, is required to be
reported to him by the person officiating at the marriage, for the purpose
of registration, and contravention of this provision is made punishable
with simple imprisonment for a term which may extend to three months,
or with fine up to one thousand rupees, or with both. The section appears
to be general in character, with the only limitation that the marriage
should have been solemnized under Muslim Law. It is impossible to read
into it a further limitation that the marriage should necessarily be
between two Pakistani Muslims. A marriage entered into by a Pakistani
Muslim male with, say, an Indian Muslim woman, would seem to fall
within the purview of this section, if it is performed within) Pakistan.

36. Section 6 is aimed at restricting polygamy. Sub section (1) thereof

reads : "No man, during the subsistence of an existing marriage, shall,
except with the previous permission in writing of the Arbitration Council,
contract another marriage, nor shall any such marriage contracted
without such permission, be registered under this Ordinance." The
expression "existing marriage" stands unqualified and would obviously
cover the marriage of a Pakistani Muslim male with a Muslim non-citizen
or even a non-Muslim lady, if it is recognised as valid by the n. laws of
Pakistan. The expression "another marriage" occurring subsequently in
this subsection, should have the same connotation, prima facie. The
generality of the words cannot be cut down by importing into this
subsection any extraneous considerations. The Ordinance of course only
penalises the person in respect of a marriage, celebrated in contravention
of the provisions of the Ordinance by making him liable to imprisonment
or fine or both but does not invalidate the marriage itself. But that has no
bearing on the question we are considering.
37. Coming next to the important section 7 itself, it seems to us that the
Legislature had attempted to incorporate the Islamic Law provisions with
regard to the two forms of "Talaq- us-Sunnat", viz., "Talaq Ahsan" and
"Talaq Hasan", as far as may be, in this section. The first of them is that
form in which a single pronouncement of divorce is made during a period
of menstrual purity, no intercourse having taken place during that period,
and is followed by a period of iddat. The second is one in which the first
pronouncement made in similar circumstances is followed by two further
pronouncements in succeeding periods, no intercourse taking place at any
time during the three periods. Such a divorce becomes irrevocable on the
third pronouncement. Whether the result achieved is in strict conformity
with Islamic Law is a question which does not fall within the province of
this Court to determine by reason of Articles 5 and 6 of the Constitu tion.
The section clearly contemplates a machinery of conciliation whereby a
husband wishing to divorce his wife unilaterally, may be enabled to think
better of it, if the mediation of others can resolve the differences between
the spouses. The talaq pronounced is to be ineffective for a period of 90
days from the date on which notice under subsection (1) of this section is
delivered to the Chairman and this period is to be utilized for the attempt
at reconciliation. Subsection (6) makes it clear that even if talaq has
become effective under the previous subsections, the spouses would not
be prevented from re-marrying, without an intervening marriage with a
third person, unless such termination is effective for the third time. All
that the section requires is that the marriage in question should be
dissolvable by means of a talaq and it does not seem necessary to adopt
the narrow construction contended for on behalf of the respondent, that
the wife mentioned in the section must necessarily be a Pakistani citizen.
To suggest, as Mr. Mahmud Ali has done, that unless she is such a citizen
she would have no right to appoint an Arbitrator on her behalf, under
section 2 (a) of the Ordinance, appears to beg the question,

38. Mr. Mahmud Ali also put forward the suggestion that the word
"effective", occurring in subsection (3) of this section.) means "effective
against the husband only", and that if the husband failed to give the
required notice to the Chairman, the talaq would be effective at once. This
interpretation would make the section itself wholly nugatory. All that the
husband has to do then is that he should refrain from giving the requisite
notice and the talaq would automatically take effect. This is exactly the
mischief which the section seems designed to remedy. The alternative
contention raised by the learned counsel that Talaq Bidat is altogether
outside the purview of the section is plainly untenable as it takes no
account of the words "talaq in any form whatsoever" occurring in
subsection (1) of section 7.

39. Mr. Mahmud Ali also tried to maintain that in the present case, to
permit the complainant to say that by not giving the notice to the
Chairman, the divorce granted by him had been robbed of legal effect,
would be tantamount to allowing him to take advantage of his own wrong.
Learned counsel referred to pages 200-203 of Maxwell's Interpretation of
Statutes, Eleventh Edition, in support of the proposition that on the
general principle of avoiding injustice and absurdity, any construction
would, if possible, be rejected (unless the policy and object of the Act
required it) which enabled a person to defeat or impair the obligation of
his contract by his own act or otherwise to profit by his own wrong. But
here it is obvious that the object of section 7 is to prevent hasty
dissolution of marriages by talaq, pronounced by the husband,
unilaterally, without an attempt being made to prevent disruption of the
matrimonial status. If the husband himself thinks better of the
pronouncement of talaq and abstains from giving a notice to the
Chairman, he should perhaps be deemed, in view of section 7, to have
revoked the pronouncement and that would be to the advantage of the
wife. Subsection (3) of this section precludes the talaq from being
effective as such, for a certain period and within that period,
consequently, it could not be said that the marital status of the parties had
in any way been changed. They would still in law continue to be husband
and wife. The result in the present case, so far as the question of legality
of the subsequent marriage of the respondent to Chrita Renate is
concerned, would not be in any way different, even if the period envisaged
by this section is deemed to start from the time of the pronouncement of
talaq or as soon as may be thereafter, instead of postponing the start to
the date of receipt of a notice by the Chairman, in order to avoid giving
the benefit of his own default to the husband. Ninety days had not yet
elapsed from the date of alleged pronouncement of talaq, when the
respondent went through his marriage with the lady.

40. The sphere of attempted conciliation seems to be further extended by

section 8 of the Ordinance to cases of "Talaq Tafviz" and also to other
forms of dissolution of marriage at the instance of either party, mutatis
mutandis, and this throws further light on the objective aimed at by the
Ordinance. It would be idle to speculate what alternative forms of
dissolution are contemplated by this section.
41. There is nothing in section 9 of the ordinance (which relates to
maintenance to be provided by the husband for the wife) that could cut
down the connotation of the term "wife" to a Muslim citizen of Pakistan
alone.

42. To hold that the Ordinance could not be pressed into service except in
cases where both spouses were Muslim citizens, would lead to the result
that a male Muslim citizen, could, with impunity, have more than one wife,
without recourse to the provisions of the Ordinance, provided that he
confines himself to non-citizen Muslim ladies, for marriage purposes. On
this interpretation, if a Muslim male citizen of Pakistan, is already married
to a Muslin non-citizen, he could marry another wife, whether a Muslim
citizen or not, without incurring any penalty under the Ordinance
Similarly, he could go on divorcing non- citizen Muslim ladies, without
limit, if he was so minded. Such absurd results would apparently rob the
Ordinance of almost all its utility and the narrow interpretation which
leads to such' results, would not, in all probability, be in consonance with
the intention of the Legislature. The policy of the Ordinance seems to be
to provide some curbs on too facile pronouncements of divorce and
unnecessary or unjustified plural marriages.

43. We are, therefore, disposed to agree with the learned, trial Judge that
on the 2nd of January 1962, when Christa Renate went through a form of
marriage with the respondent, she was still the wife of the complainant as
the divorce, even if granted by the latter, could not have become effective,
without recourse to the provisions of section 7 of the Muslim Family Laws
Ordinance, 1961. It is also fairly clear that by the 2nd of January 1962,
even the iddat period prescribed by Islamic Law for a divorced wife, had
not yet expired.

44. The learned counsel for the respondent then contended that his client
had not been guilty of any offence under section 498, P. P. C. as he had
not "enticed" or "taken" away Christa Renate, from her husband or from
any person having the care of her on his behalf, and that, in the
alternative, the accused did not know or had reason to believe that she
was the wife of Mr. Gardezi at the time. He had been told by Christa
Renate that she had been divorced by her husband and the document Exh.
D. 1 passed on to him, led him to believe bona fide that this was the
correct position. Moreover, it is urged that his intention, all along, was to
marry the lady and not to subject her to illicit intercourse. Section 498 of
the P. P. C. is in the following terms: -
"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
roan, 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."

45. Mr. Mahmud Ali pointed out that there was evidence to show the
existence of a compact between the parties, under which Christa Renate
had decided to stay in the complainants house and to have no
communications with the respondent, for a period of three months, but
that she herself decided to end that arrangement and eventually she left
the house of her husband, not at the instigation of the respondent, but
because she found herself in danger of being pushed out of Pakistan after
the complainant had married another worn n from Mardan. He suggests,
therefore, that she left the matrimonial residence voluntarily and not
because of any enticement by the respondent. The "evidence" referred to
in this connection, consists merely of rumours said to have been current in
Peshawar about such a "conspiracy" and the suggestion seems to have no
solid founda tion. Further, this contention appears to us to omit from
consideration the history of previous relations between the parties. It is in
the evidence that respondent used to make frequent telephone calls to the
lady, at the complainant's house, mostly during his absence and that he
was in constant correspondence with her. The respondent and the lady
stayed in contiguous rooms in Hotel Cecil at Murree from the 16th to the
18th September 19611, and the attachment they formed there is said to
have impelled the lady to declare her love for the respondent to her
husband on her return to Lahore on the 19th September. On that occasion
she admittedly received from the respondent the sum of Rs. 500 as
"emergency fund"-this sum is alleged to have been returned to the
respondent who discovered it in his wife's purse. He was urging her to
come away to him as is evidenced by his own letter to Christa Renate,
Exh. P/1, dated the 9th November 1961. During the visits of the
respondent to Lahore, even when he was not staying as a guest of the
complainant, the lady frequently met him without her husband and on one
such occasion at least, we have it in the evidence that the complainant
objected to her conduct when she came late to the house, after meeting
the respondent. The circumstances, therefore, are sufficient to spell out
"enticing" of the lady on the part of the respondent. The mere fact,
moreover, that he did not himself actually go to the house of the
complainant to take away the lady but that she joined him, by
arrangement, while he himself stayed at the house of Lt. Gen. Rana, does
not lead to the conclusion that he was not "taking" her away. It is the
respondent who had booked a coupe in order that he might take her with
himself, by Khyber Mail to Quetta. The datewise entries in Exh. C. W. 1/1,
the statement prepared by Christa Renate herself and placed on the
record with her consent, also throw a good deal of light on the genesis of
the relations between the respondent and the lady. Against the date, the
17th of August 1961, she mentions that when they went to say good-bye to
the respondent at Quetta, on that day, Col. Yusuf invited them to go to
Ziarat with him and spend a night with him there. Her husband accepted
the invitation and she then adds:

"I was happy at this decision, being attracted to Col. Yusuf from the very
beginning and also being aware that he was paying me very much more
attention than is customary. I welcomed this opportunity of spending yet
another day in his company."

The entry of the 18th August 1961, talks of an evening spent at Ziarat in
the company of the D. I. G., Police, Quetta, Mr. Anwar Afridi, who "seemed
to understand the situation immediately and took Mr. Gardezi aside to
drink vodka and discuss mutual acquaintances, while Col. Yusuf and I sat
in a corner near the record player, pretending to listen to music, but really
discussing our feeling for each other. We both realized that we had fallen
in love but felt that as we were married, very little could be done about it."
She tried to water down some of these recitals, when in the witness-box
but was not successful in doing so. This is how the affair started and
subsequently, the frequent phone calls in which the respondent indulged,
at great expense, for talking to Christa Renate are tell-tale evidence of
how things were shaping. The three charts of telephone calls made by
respon dent, between 22-8-61 and 4-12-61, Exhs. P. W. 7/1 to P. W. 7/3, on
the record, are remarkable documents, in this context. They show that
altogether 192 trunk-calls were made by the respondent in this period. On
some dates repeated calls were made and some of the calls lasted for as
long as 9 minutes. Surely they could not have merely discussed the
weather during these calls. There was obviously a strong influence
emanating from the respondent and operating on the lady's mind (which
may be also co-operating with her inclination), to leave her husband's
house, all the time. We are, therefore, convinced that the respondent was
guilty of "enticing" and "taking" away Christa Renate from the house of
her husband, at Lahore.

46. That the respondent was very much aware of the existence of the
Muslim Family Laws Ordinance, 1961, is clear from the fact that he
himself resorted to its provisions, in order to obtain the consent of his first
wife and that of the Chairman of the Union Council, for a second
marriage. The plea that he did not know that Christa Renate, when he
took her away, was the wife of another man, sounds hollow, when we
remember that according to the respondent's own statement as an
accused person, his suspicions had been aroused on seeing the document,
D. 1, in a disguised hand and he had even questioned the lady about it. It
would have been easy for him to have ascertained from the complainant
himself, whether he had granted a divorce to his wife. He took no such
step. As an educated person and a Commissioner of a Division, he should
have realized that he was taking a big risk, in enticing away a woman who
was obviously married to another man. Christa Renate has stated as a
witness in the case that she had been informed by the complainant that
their marriage could not be dissolved except by a Court decree, but that if
she turned a Muslim, a document of the type of Exh. D. 1 "might be
enough to hoodwink a Moulvi". This information must have been imparted
by her to the respon dent also and at best, the document, D. 1, even if
obtained, was to serve the purpose of deluding a Moulvi, into performing a
second marriage. The respondent apparently was reckless of
consequences in taking her away, without caring to satisfy himself
whether she was a free woman or not. The provisions of section 7 of the
Ordinance appear, on their wording, to be clearly applicable and the
respondent had even been told in a letter by the lady to the effect that the
complainant had refused to take any action under the Ordinance, by way
of sending a notice to the Chairman of the Union Council, vide Exh. C. W.
1/3. The last part of this letter, reads as follows: -

"Nawaz came home to pick me up for Coffee Quite a usual procedure now-
a-days. 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,
Your own

Renate"

It would appear from this document that the question of com pliance with
the provisions of the Ordinance was very much present to the minds of the
parties, and the respondent cannot now be heard to say that he bona fide
believed that the Ordinance was not applicable. The learned trial Judge
appears to have held that this letter was not genuine, but the Appellate
Bench of the High Court, it seems to us rightly, accepted its genuineness
and pointed out that this as well as three other letters, had been produced
by the respondent at the behest of the learned trial Judge himself. The
contents of this letter also provide intrinsic evidence of its genuineness, as
the recital therein about the necessity of following the provisions of the
Ordinance, would appear to be an admission against the interest of the
lovers.

47. The position that emerges therefore is that the respondent was guilty
of enticing or taking away Christa Renate, when she was still the lawfully-
wedded wife of the complainant, from the latter's house and he, therefore,
committed an offence which fell within the purview of section 498, P. P. C.
The circumstances clearly point to the inference that he knew her to be
the wife of Mr. Gardezi at the relevant time. The intention to "marry" her,
had no genuine basis as he must have known that there was no legal
separation between her and her first husband and no marriage ceremony,
even if gone through, could wipe out that fact from his consciousness. The
subsequent marriage, in the circumstances, must be regarded merely as a
disingenuous device to put up a facade of respectability over an illegal
union. We, therefore, hold that the acquittal of the respondent, of the
charge under section 498, P. P. C., by the Appellate Bench, was not
justified on the evidence on record. We allow the appeal to that extent, set
aside his acquittal on this charge and restore the order of conviction
passed by the trial Judge, with` reference to section 498, P. P. C.

48. With regard to the charge under section 497, P. P. C. it may be

observed that although the respondent has apparently committed adultery
with Christa Renate, when she was still the wife of the complainant, the
charge must fail on the ground that there was connivance on the part of
the complainant. In the return, he kept quiet and allowed Quetta by train,
without further Exh. D. 3, which he wrote to her when they had reached
Quetta, is tell-tale evidence of his connivance to the adultery which he
knew was being committed with his wife and which he took no step to
prevent. Of course, mere passive inaction is not enough for a finding of
connivance, but as was said by the House of Lords in Gipps v. Gipps
(1864) 11 H L C 3, "conniving" means "no merely refusing to see an act of
adultery but also wilfully abstaining from taking any step to prevent
adulterous inter course which, from what passed before the husband's
eyes, he must reasonably accept, will occur". In Halsbury's Laws off
England, Vol. 12, Third Edition, para 589, at page 297, it is stated that
connivance is not limited to active conduct. "I includes the case where a
spouse acquiesces in the adultery alleged, that is to say, where the spouse
is aware that a certain result will follow, if he does nothing and desires the
result to come about. On the principle of volenti non fit injuria, a person
cannot complain of any act, he passively assents to." It is to be
remembered that in the letter, Exh. D. 3, the complainant even wished his
wife happiness in her new life, knowing that she was living in adultery
with the respondent. In the circumstances, it is difficult to maintain that
the respondent was guilty of an offence under section 497, P. P. C. The
acquittal of the respon dent on that charge, consequently, must stand.

49. The question is then of the sentence. The complainant in the case
seems to have allowed things to develop under his very nose, without
taking effective restrictive action in respect of his erring wife, or to
counteract the conduct of the respondent who was subject to service
discipline as an officer of Government. We are also conscious that the
conviction might conceivably entail departmental action by Government,
against the respondent in respect of his service. Taking all the
circumstances of the case into consideration, we are of the opinion that
the ends of justice would be met by sentencing the respondent under
section 498, P. P. C. to pay a fine of Rs. 2,000. In default of payment of
fine, he will suffer rigorous imprisonment for 3 months. We order
accordingly. The fine will be paid within 15 days from date.

50. Before parting with this case, we have a heavy and unpleasant duty to
perform. Simultaneously with the institution of the petition by Mr.
Gardezi, there was filed also a petition by the learned trial Judge, for
expungement from the judgment of the Full Bench, of a number of
passages, namely, paragraphs 78 to 83, which contain a somewhat
pungent criticism of his conduct of the trial. That petition, being directed
against a judgment of the Court of which the petitioner is a member, was
of an unprecedented character and was eventually withdrawn, but the
request was made at the same time that this Court should grant the relief,
in the exercise of its power to do full and complete justice in any cause or
matter. It was founded on allegations of a nature such as renders it
undesirable that they should be repro duced in this judgment. At an
intermediate stage of the proceedings, the trial Judge, at the instance of
the Court, agreed to strike out these allegations. The grounds for
expungement were mainly that the observations were injurious to the trial
Judge, who had been given no opportunity to explain the matters held
against him, that they were made in ignorance of, or through failure to
note, a number of reasons and explanations furnished in his judgment,
that consequently they were ill-founded, and being in addition,
unnecessary for the determination of the matters arising out of the appeal
before the Full Bench, it was appro priate that the passages should be
excised from the judgment, an operation which could be performed
without damaging the fabric of the judgment.

51. It is a small point but worthy of note that there are two paragraphs
numbered 77 in the judgment of the Full Bench. The first of these
concludes the examination of the appeal. The second sets out certain
contentions of Mr. Mahmud Ali, arguing for the appellant, viz., that the
trial Judge had entertained a "biased view" against Col. Yusuf, that the
trial was conducted in a manner which handicapped the defence, that in
an application to the Supreme Court, seeking transfer of his case, Col.
Yusuf had said that "the learned trial Judge had assumed the role of a
prosecutor," and that these matters should be borne in mind when
assessing the value to be attached to findings of fact recorded at the trial.
In the words of the Full Bench judgment, the learned counsel had
contended that these findings "should not be given the same weight which
a Court of Appeal ordinarily gives to the findings of the original Court,
particularly when the trial is conducted by a learned Judge of this Court"
(meaning the High Court). Whether ill-founded or well-founded, that was
an astonishing submission to make before Judges of the same Court.

52. The impression that from the second of the two paragraphs numbered
77 up to the penultimate paragraph of the judgment, is a section of
supplementary attachment, is hard to resist. Paragraphs 78 to 81, are
devoted to development of criticism of the proceedings of the learned trial
Judge on the lines of the contentions of Mr. Mahmud Ali in terms which
are of a most unusual character. It has to be said, with regret, on a fair
reading of the observations of the Full Bench, that while stopping short of
themselves saying that the trial was vitiated by bias, they have condemned
the attitude and behaviour of the trial Judge in the proceedings, in no
uncertain terms.

53. As the Bench hearing the appeal, it was no doubt within the province
of the power and duty of the learned Judges, to comment upon the mode
of trial adopted, if it was in contravention of law, or had aspects of
unfairness or impro priety. The degree of sharpness that could be
permitted, in the comment, would be determined by the gravity of the
irregularity or the injury resulting therefrom. For, in all circumstances,
the criticism offered would of necessity fall within the requirements of the
dispensation of justice. One of the requirements is that the Judge offering
the criticism upon the work of an equal, should bethink himself, more than
once, of the possibility that he might himself be mistaken. In other words,
he should devote more than ordinary care to the ascertainment of the
facts on which his censure is to be founded. He would need to satisfy
himself that the blame he lays upon his brother, and the terms in which he
expresses it, are both necessary for the doing of justice in the matter
before him, or, in a rarer case, for the advancement of justice generally. It
is imperative that the criticism offered should not only be well-informed,
but also that it should be well-intentioned, in a strictly judicial sense.

54. These are, of course, necessary conditions of anything said by way of

reproof or admonition in a solemn judicial pronouncement. But where it is
said about a Judge of a superior Court, if these conditions are not
satisfied, the mischief which might follow is of incalculable proportions,
for a judgment of a Court of Record is a document of a public character,
and is preserved in perpetuity. Such criticism directly diminishes the
capacity of the Judge, who is criticised, to do justice in matters coming
before him. Equally, it affects the standing of the Court, of which he is an
integral part. For nothing is better calculated to destroy the image and the
edifice of justice, as it has been built up in the course of many centuries
than that the Judges of the superior Courts, at the apex should engage in
lowering one or more of their number, as instruments for the dispensation
of justice, in the estimation and in full view of the public. We take judicial
notice of the fact that the judgment of the Full Bench, a lengthy document,
appeared in a number of daily newspapers on the day after its
pronouncement, including the passages to which exception has been
taken. It is difficult to overstate the potentiality possessed by these
passages, to produce an adverse effect upon the dignity, the prestige and
the integrity of the superior Courts. We are conscious that in certain
circumstances, it might be necessary to take the risk of such damage, for
the removal of an evil. And, correspondingly, when the evil is found, not in
the Judge who is criticised, but in the criticism itself, there is a call which
we cannot ignore, to exercise the high duty, however hard it might be, to
exercise the blemish, in the way of fairness to the Judge and for the
restoration of true dignity to the proceedings of the appel late Bench. It is
in that spirit, and bearing fully in mind the duty of proper respect to the
expressed opinions and views of the learned Judges of that Bench that we
have felt impelled to make the observations which follow.

55. In paragraph 78 the learned Judges state that their attention was
drawn to the "undue publicity" given to the proceedings of the case in the
press, with the result that the Court was overcrowded, "contributing to an
atmosphere charged with dramatic effect". This was said to have caused
"considerable embarrassment to the accused, the lady and to ether
witnesses in the cage". The learned Judges were conscious that "if the
facts of the case created such an atmos phere, the accused had no reason
to complain", but they apparently thought that the learned trial Judge had
directed that the proceedings of the case should be reported by The
Pakistan Times and The Civil & Military Gazette, which are English dailies
with very wide circulation, and should be further circulated through a
press agency, namely, the Associated Press of Pakistan. This inference
was founded on a letter sent by the Deputy Registrar of the High Court,
under directions of the trial Judge, to these three concerns. The learned
Judges while referring to the nature of the prosecution case and the
evidence led therein, have asked themselves the rhetorical question "What
more juicy scandal was needed by the press, who splashed it on front
pages of the dailies"- They have mentioned that the complainant had
himself prayed that the proceedings of the case be conducted in camera,
and that, in their view, would have been the most appropriate course to
adopt. They have suggested obliquely that the learned trial Judge was
desirous of seeking publicity in the press for proceedings in his Court and
that he was "looking to the general public for approval of his views or
gaining general applause"-a course which would, in the opinion of the
learned Judges, cause "the ends of justice to fail". They have also
mentioned an allegation made at the Bar before them that on certain
occasions there was clapping in the Court during the proceedings of the
case and when the counsel for the complainant had, with a dramatic
gestures requested the Court, for Gen. Rana, the then Martial Law
Administrator, to be summoned as a witness. They have pointed out that
they themselves heard the appeal in camera and they felt that there were
occasions "when the presence of third parties could not have been
desirable in the Court-room". In the end they have added "'This lends
support to the statement of Mr. Mahmud Ali that a case of this nature
should have been tried in camera, as has been done in many divorce
matters, instead of being given wide publicity, under an order of this -
Court, for which, as observed above, we find no warrant in law."

56. It is extremely surprising that while making these observations, the

learned Judges should have completely ignored what the learned trial
Judge had himself said in his judgment as to the reasons that prevailed
with him, for not holding the trial in camera and for directing the Deputy
Registrar to write to the press agency and the Managers of the two
papers, as he did. If the learned Judges had given some attention to those
reasons, they would have found no occasion to make the remarks
summarised above. The learned trial Judge had pointed out that section
352 of the Criminal Procedure Code normally required the hearing of a
case in open Court and that he had found no special features in this case,
such as would have justified departure from that rule. Indeed, it seems to
us that the circumstances that a high officer of Government, who also held
military rank, was cited as an accused person, by a private com plainant,
and this at a time when the country lay under Martial Law, were
compelling considerations that favoured an open trial, so that justice
should not only be done but should manfestly be seen to be done. The
learned trial Judge therefore does not appear to have exercised his
discretion improperly in ordering an open trial. The appellate Bench were
within their rights t hear the appeal, in camera, but it falls to be observed
that certain of the suspicions aroused by the observations they have seen
fit to make might have been avoided, had the hearing been in public. In
this Court, neither before nor during the hearing was the feeling ever
entertained that the case was one that could not be argued in public
without detriment to any private or public interest.

57. We are also of the opinion that the learned Judges of the Appellate
Bench misconstrued the letter sent by the Deputy Registrar of the High
Court to the press agencies. The letter merely called upon the addressees
to explain why the copies of the proceedings taken by their
representatives from the High Court, had not been put to the use for
which they had been ostensibly taken. The letter contained no directions
for future publication of the proceedings. All that was said was that unless
a satisfactory reply was received, the trial Judge would not permit the
report of any proceedings in his Court to appear in the press with which
the addressee was concerned. The idea clearly was to prevent abuse of
copies of proceedings issued under orders of the Court. The learned trial
Judge had evidently suspected, as he mentions in his judgment, that the
complainant had probably used his influence to stop publication. It
transpired, however, that the Martial Law Authorities had intervened for
that purpose. In either view, his action was fully sustainable in reason.
The criticism about the learned trial Judge seeking publicity therefore,
rests on a misconceived assumption.

We understand further that the learned counsel appearing for the

complainant had denied before the Appellate Bench that any persons had
indulged in hand-clapping during the proceedings before the trial Judge,
or that the complainant's counsel had made a dramatic gesture at any
stage of the proceedings. We confess, we are unable to comprehend by
what process the learned Judges of the Appellate Bench had satisfied
themselves about the correctness of the ipse dixit of the counsel for one
side, without an enquiry. On the other hand, mention of the incident
should have been a sufficient indication that the public interest was
attracted to the case not only because it involved a matrimonial scandal in
high places, but also because it raised the question whether, under
Martial Law, justice was dispensed equally between a high ranking
Military Officer, and a member of the public.

58. In paragraph 79 of their judgment, the Appellate Bench have referred

to the circumstances in which the complaint lodged by Mr. Gardezi, was
transferred to the High Court. The exercise of discretion in this behalf by
the learned trial Judge was not found to be open to any just exception, but
the learned Judges have complained that the trial Judge had withdrawn
the notice which he had initially ordered to be issued to the respondent, of
the transfer application, when he discovered that the respondent had not
yet been summoned as an accused person in the case. The learned Judges
have expressed the wish that such a course had not been adopted, as in
their opinion, "though in itself a matter of small consideration", taken
along with certain other features of the case, it was calculated to "cause
an apprehension in the mind of the accused that he would not get a fair
trial". We regret, we cannot share the learned Judges opinion in this
respect. It is expressed in terms which convey the sense that the trial
Judge was "snatching at" jurisdiction, to be in a position to try the case. It
ignores entirely the very good reasons given by him for his action, namely
that he transferred the case to the High Court, because of the high status
of the accused person and he did so without notice to the latter, because
no summons had yet gone out to him from the Magistrate's Court. -
59. In the same paragraph, the learned Judges a1so com mitted
themselves to the view that the affidavit of the complainant dated 6th
January 1962, accompanying the transfer application, in the High Court;
"must have been untrue to his knowledge and belief", for "it is obvious
that the complaint, the transfer application as well as the accompanying
affidavit, were drafted and typed simultaneously." Here again, the learned
Judges appear to have reached a precipitate conclusion without due
inquiry into the facts and have consequently misdirected them selves.
There were two affidavits of the 5th and the 6th January respectively, and
that of the 6th January was plainly subsequent to the complaint. We find
no material on the record in support of their conclusion which is
challenged as completely untenable, on behalf of the complainant. If the
learned Judges had carefully perused paragraph 3 of the judgment of the
trial Judge, they would have found the correct facts recited therein.

60. We next come to paragraph 80. The learned Judges have taken note of
the contention that a large number of Court witnesses had been
summoned by the learned trial Judge, including the lady, "from whose
testimony the prosecution case was sought to be established". How this
was sought-to be done, has not been explained. Grievance was apparently
also made before the learned Judges, of the repeated examination of the
accused, during the course of the trial, on as many as seven occasions.
The learned Judges have observed that out of 576 questions put to Christa
Renate, during her examination on four occasions, the learned trial Judge
had asked no fewer than 212 of which 50 related to the statement, Exh. C.
W. 1/1. In their opinion:

"She was subjected to gruelling cross-examination and her

embarrassment must have been considerable, because of the large
audience who must have gazed at her intently, as each word dropped from
her lips. Questions of an intimate nature, for example, as to when did she
sleep with the appellant, were asked from her. Mr. Mahmud Ali had no
grievance against such questions being asked for it 'was a necessary
ingredient of the charges brought against the appellant, but he disputed
the propriety of the Court in assuming the role of a prosecutor."

61. The learned Judges have pointed out that this was a case of a private
complaint based on personal, and not public, injury. They have then
opined that the lady and other persons should not have been summoned
as Court witnesses, and that such witnesses should only have been called,
at the conclusion of the trial, "if it was found that a satisfactory judgment
could not be delivered without examining them and the interests of justice
so demanded". They have wound up the paragraph by saying that "in the
present case as soon as the complainant's statement was recorded a
charge was framed against the accused and the lady was the first to be
examined as C. W. 1."

62. In this context again, the first thing that strikes us is that the lengthy
reasons given by the learned trial Judge for examining the lady or other
persons as Court witnesses, and for interrogating the accused repeatedly,
were not adverted to at all, by the Appellate Bench, although they had
been detailed in his judgment. It even appears that one of the Court
witnesses was summoned at the instance of the defence. If the lady was
examin ed as a Court witness, it was but natural that a large number of
questions should have been put to her by the Court. The learn ed trial
Judge has observed that he found the lady attending the Court during the
examination of the prosecution witnesses and he considered it to be in the
interest of justice, to examine her at an early stage of the case, so that she
could not make adjustments in her own statement in the light of what fell
from the lips of other witnesses. Indeed, her examination as a Court
witness gave an advantage to the accused whose learned counsel was
enabled to put leading questions to her in cross-examination. She had
been originally intended to be called as a defence witness. The defence
could not consequently have any legitimate complaint on this score. The
learned Judges were wholly wrong in saying that questions of an intimate
nature, e.g., as to when she slept with the appellant, were put to the lady.
No questions in these or similar terms appear on the record. If the learned
Judges had taken the trouble of examining the record of the evidence,
they could have easily seen that their premise that as soon as the
complainant's statement was recorded, a charge was framed against the
accused, was unwarranted. The charge was actually framed after eight
witnesses had been examined, including Christa Renate who was
examined as C. W. 1, on the fourth day of the trial. It is a matter for
extreme surprise that the learned Judges should have committed an error
of this nature on a point of fact easily verifiable from the record, in a case
in which they heard arguments at length, for a whole month, and in which
they took a further month to consider the judgment. For our part, we find
the reasons given by the learned trial Judge for examining certain persons
as Court witnesses and the reasons for recalling certain others or accused
at the stages that he did, to be sound and convincing. The impression we
have gained from a perusal of the record is that though he may have been
somewhat over anxious to elucidate all the relevant facts of the case, he
held the balance equally between the parties and did not reject any
reasonable prayer by either of them for re-examination of any witness. We
find nothing in the record to support the suggestion made on behalf of the
respondent in the High Court, that the learned trial Judge had assumed
"the role of a prosecutor", or that his conduct of the proceedings was
calculated to assist in establishing the prosecution case.

63. In paragraph 81, the learned Judges discuss the circum stances in
which Sardar Muhammad Iqbal who was initially engag ed as counsel for
the respondent in the High Court, was examined twice as a Court witness,
by the trial Judge. He had eventually withdrawn from the case vide his
application dated the 3rd of February 1962. In the learned Judges opinion:
-

"A fair reading of the proceedings in the case shows that the lady was not
willing to allow the written statement which she had given to Sardar
Muhammad Iqbal (Exh. C. W. 1/1) to be utilized in the defence of the
appellant, as well as in her own defence in the bigamy case, to be made a
part of the present proceedings."

The learned Judges have asserted that "as a counsel, Sardar Muhammad
Iqbal must have found himself in a very awkward position to persuade his
client to waive a legal privilege". They have then referred to the fact that
the counsel was permitted to talk to the lady in the witness-box, for about
fifteen minutes and have pronounced as follows: -

"To allow this whispering for a quarter of an hour, which resulted in the
lady's waiving her legal privilege and exposing herself to a further long-
drawn cross-examination, does not appear to be a voluntary act on her
part. That was not all. On the following day, both she and her counsel
were examined separately to ascertain what transpired between them
during that whispering."

64. We have already held in the course of this judgment that no privilege
was, attached to the document, Exh. C. W. 1/1, and that it was placed on
the record voluntarily, with the full consent of Christa Renate, who had
ample opportunity to consult Sardar Muhammad Iqbal before doing so.
Indeed, this was done in the face of a warning by the trial Judge that if
produced, the docu ment may be used for other purposes in the case. To
castigate the learned trial Judge on this account, therefore, would be tanta
mount to condemning him for a lapse of which he was not guilty. By virtue
of section 129 of the Evidence Act, further, the learned trial Judge does
not appear to have acted beyond the scope of his powers in examining the
lady and her counsel, to find out what had passed between them, before
they decided to produce the document in question. The proceedings may
have been unusual, but there was nothing unjudicial about it, for the possi
bility of a witness being advised as to the evidence he is to give, and the
nature of such advice, if any, are matters of great impor tance to a Court
in evaluating evidence led before it.

65. Paragraph 82 of the judgment of the Appellate Bench deals with the
legal question of privilege in respect of the docu ment, C. W. 1/1, and
requires no further comment.

66. Paragraph 83 stems to be intended as a peroration to the observations

of the learned Judges on the conduct of the trial Judge, and is couched in
the following terms: -

"Nothing more need be said about this unhappy aspect of the case, for we
have differed from the learned trial Judge on facts as well as on some of
the legal issues arising in the case; and the appellant has won his
acquittal,"

67. As we have already said, the Full Bench hearing an, appeal no doubt
had power to make fair comment on the mode of trial adopted by the trial
Judge or on any irregularity that) might have been committed therein, in
so far as it was relevant or necessary for the disposal of the appeal or
even in the larger interests of justice. In the present case, however, we
regret to find that in each of the paragraphs 78, 79, 80 and 81, the basis
of the learned Judges criticism was extremely insubstantial and even
hypothetical in some respects. The carelessness displayed by the learned
Judges even in stating matters of fact which were appar ent on the face of
the record, is quite inconsistent with the normal standards that might
have been expected to be maintained in such a case. It is clear that one of
the necessary conditions of validity of such censure of the work of a Judge
of a superior Court, namely, that the criticism should be well-informed is
entirely absent.

68. The fact of the criticism being offered in what seems to be a

supplement to the main judgment itself serves to indicate that it was not
necessary for the purpose of doing justice in the case. We are quite unable
to see what benefit can have been intended to accrue to the general
interest of public justice from these observations. Since it is not part of
the ordinary function of the learned trial Judge to hold original trials,
there can have been no intention to offer advice to him as to the conduct
of future trials, and in any case, the observations are not couched in the
language of counsel or advice. It is difficult to describe these observations
as well-intentioned, in the judicial sense.

69. On a careful examination of all relevant matters, and bearing in mind

the solemn duty resting upon us, while doing full and complete justice in
this case, also to consider and correct, so far as lies in our power, any
injury that we find to have been I done to the very means and instrument
by which justice is dis pensed at the highest level, we are compelled to
reach and record the following conclusions. The criticism of the learned
trial Judge contained in paragraphs 78 to 81 of the judgment of the Appel
late-Bench is neither well-informed nor is it supported by intention to
advance justice either in the case or generally. As it is also less than fair
to the trial Judge, it constitutes a blemish upon the judgment, and it is
desirable in the highest interests of justice that this blemish should be
removed. Along with these para graphs should be removed also the
second of the two paragraphs numbered 77, which serves as an
introduction to the succeeding four paragraphs, and without them will
become devoid of useful purpose. Equally, paragraph 83 making mention
of "this unhappy aspect of the case" will have no place in the continuity of
the judgment, if the paragraphs dealing with the "unhappy aspect" are
eliminated. These six paragraphs contain matter which was not necessary
for the disposal of the appeal, and they may easily be excised, without
impairing the integrity of the judg ment. We accordingly direct that the
second of the two Para graphs numbered 77, and paragraphs 78, 79, 80,
81 and 83 should be expunged from the judgment of the Appellate Bench,
as pre served in the records of the High Court.