P L D 1980 Supreme Court 228 (PLP)

KARAM ELAHEE CHAUHAN, J.--Mst. Shaming Firdaus (plaintiff No. 1) and Adrian Afzal (plaintiff No. 2 through his mother plaintiff No. 1) on 21-5-1964, filed a civil suit against (then) Captain (now Lt.-Ccl.) Sher Afzal (defendant), for a declaration that they were his wife and son respectively. It was pleaded that about four years ago plaintiff No. 1 was married to the defendant according to Shara-i-Muhammadi, and that Rs. 10,000 was fixed as the amount of dower. It was further averred that from that wedlock was born plaintiff No. 2 who at the time of the institution of the suit was of the age of about 11 years. The plaint continued to state that plaintiff No. 1 had been performing her marital obligations towards the defendant for a period of 31 years; that about two years ago the defendant developed illicit relations with a woman Aziza Rehana, but despite protests did not give up those activities and now 3J months ago he has married her and to escape from the rigours of the "Family Laws" has declared himself as a bachelor and started disowning the marital status of plaintiff No. 1 with him and the parentage of plaintiff No.

2. The suit was filed in the Court of the Administrative Civil Judge, Sialkot and it was pleaded that as the marriage had taken place within the limits of Sialkot, therefore, the aforesaid Court had the jurisdiction to try and decide the same, on that ground, as well as because of the residence of the parties, refusal of the defendant and the accrual of the cause of action at that place.

2. The defendant in his written statement denied all the averments of the plaint, pleaded complete ignorance of the whole matter and averred that the plaint lacked in mentioning the precise date, time and place of the ; alleged marriage and that it was not accompanied by any Nikahriajna.

3. The plaintiffs then filed a replication giving more particulars, and pleaded that the marriage had taken place on 12-9-1960 ; a Kabbrnama was executed, which was signed by the defendant in the presence of the witnesses, and that the marriage took place in the house of the plaintiff No. 1 in Sialkot. It was indicated that the Kabinnama will be produced in Court ; the child (defendant No. 2) was born in Siatkot, and entry of his birth existed in the Municipal Register and the marital relations had also been taking place at that place: It was further averred that the defendant had kept that marriage as a secret as he had entered into the same without the permission of his parents who were compelling him to marry Aziza Rehana whom he described as his sister-in-law (being sister of the wife of his elder brother). It was again repeated that the defendant maintained the plaintiff No. 1 in her father's house and (both) used to live as husband and wife.

4. On the pleadings of the parties the learned Civil Judge framed the following issues on which the trial of the case proceeded, viz. (i) whether plaintiff No. 1 is a legally-wedded wife of the defendant and (ii) whether plaintiff No. 2 is a legitimate son of the defendant.

5. The evidence produced by the plaintiffs - can be described as below (a) Direct evidence of marriage which consists of original Nikahnama Exb. P./7 suppor-ed by Ghulam Hussain (P. W. 3) father of plaintiff ado. 1 ; Maulvi Abdul ltarim.(P. W. 4) Nikah Khafvn ; Rehmat son of Fateh Din (P. W. 5) ; Rehmat, son of Ali Muhammad (P. W. 6) ; Havildar Fida Hussain (P. W. 7) (Witnesses of Nikah) and the plaintiff herself who appeared as (P. W. 8) ; she also produced an expoort Mr. A. R. Pasha (P. W. 9) who opined that the Nikahnama contained the signatures of the defendant ; and, his brother Qamar Zaman (P. W. 5) ; (b) Evidence regarding birth of Adrian Afzal (plaintiff No. 2) in Memorial Christian Hospital on 21-3-1963 where plaintiff No. 1 had been admitted on that date and discharged on 23-3-1963. In the relevant documents she was described as Mrs. Sher Afzal who, i.e. Slier Afzal was described as father of the child in birth certificate Exh. P./2. The e ?other relevant Hospital documents in this respect are Exh. P./3 to Exh. P./6 ; and (c) Circumstantial evidence which consists of certain letters and writings written or admitted by the defendant as Exh. P./1 and Exh. P./8 to P./44 ; statement of Lt.-Col. Muhammad Sardar Khan (P. W. 1), Principal, Military College, Serai Alam Gir, who deposed about a visit of plaintiff' No. 1 on 20-9-1960, to meet the defendant whereupon an enquiry was held in which the defendant vide Exh. P./1 dated 23-9-1960 admitted that she was his fiancee and statement of Mr. A. .N. Tareen (P. W. 10) (D.

1. G. Police) on interrogatories whom parties at one time approached for help and who deposed that father of plaintiff No. 1 had told him that Sher Afzal was husband of Shamim Firdaus.

6. The defendant led evidence on the following lines;

(a) To prove his alibi that on 12-9-1960-(the alleged date of marriage)he was in Serai Alam Gir and had not gone to Sialkot, he produced Naib-Subedar (Rtd.) Ahmad Hassan (P. W.4) with record of Mess Register Exh. P./16 to show that the defendant paid for all the meals of that date. He also deposed that the defendant had taken no leave in September, 1960. To similar strain was the statement of Capt. Muhammad Ablam (P. W. 11). He, however, supported the factum of the visit of plaintiff No. 1 at Serai Alam Gir Military College. (b) To prove alibi of plaintiff No. 1 that on 12-9-1960 similarly she had also not taken any leave from the department where she was employed, the defendant produced Malik Ahmad Khan (D. W. 6), Head Clerk, B. D. Training Centre, Lalamusa, who produced Exh. P./17 showing that she was on leave rather on 11-9-1960. (c) To prove alibi of Ghulam Hussain (P. W. 3) (father of plaintiff No. 1) the defendant produced Shaukat Ali (P. W. 7), Assistant Cashier, Wah Factory, to show that the aforesaid Ghulam Hussain had not taken any leave on 12-9-1960. The witnesses produced his service record and attendance register Exh. D./18 and Exh. D./19. (d) To prove that plaintiff No. 1 had been describing herself differently than as wife of the defendant on different occasions, the said defendant produced Tariq Parvez (P. W. 1), Senior Clerk and Ghulam Hussain (D. W. 3) Upper Division Clerk of Passport Office, Lahore ; Ch. Muhammad Sadiq (D. W. 2), Inspector Anti-Corruption, Lahore; A complaint lodged by plaintiff' No. 1 as Exh. D/3 produced by Nizam Din, I;ead Clerk, 2nd Baluch Regiment, Sialkot (D. W. 8) ; which was inquired into by Lt: Col. Bashir Ahmad (D. W. 9) (and in which she was informed to approach a civil Court). (e) Expert evidence in the form of Mr. M. A. Nomani (D. W. 10) to show that the alleged signatures of the defendant and his brother Qamar Zaman (D. W. 5) on Nikahnama were not genuine. (f) Besides the above, the defendant produced various letters written by plaintiff No. 1 and other type of evidence Exhs. D./1 to D./69 and himself appeared as his own witness. He also produced his brother Qamar Zaman as (D. W. 5) who denied his signatures on the Kabinnama Exh. P./7, though admitted his letter to plaintiff No. I as Exh. PAO and her letters to him as Exbs. D./5 to D./8.

7. After a protracted trial extending to a period of about five years the learned Civil Judge ultimately by his judgment dated 22-9-1969, decreed the suit of the plaintiffs. Believing the oral and documentary evidence led by the plaintiffs he held that the marriage of plaintiff No. 1 and the defendant was duly proved and that the Kabinnama Exh. P/7 was a genuine document. He held that the evidence led by the defendant did not successfully rebut or belie the plaintiff's evidence. He further held that the plaintiff No. 2 was born from the wedlock of plaintiff No. 1 and the defendant, and accordingly granted the declaration prayed for in the suit. As one handwriting expert was contradicting the other the learned Civil Judge did not consider their evidence as worthy of any. reliance and, therefore, ignored it and decided to follow the direct evidence. In fact this was the course adopted by the High Court as well.

8. The defendant filed an appeal but without any success as the same was dismissed by the learned Additional District Judge on 9-10-1970.

9. The defendant then filed a second appeal being R. S. A. No. 89 of 1971 and as according to section 100, C. P. C. (Act V of 1908) such an appeal could lie only on the ground that "(a) the decision being contrary to law or to some usage having the force of law : (b) the decision having failed to determine some material issue of law or usage having the force of law ; (c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits, "and as laid down in section 101, C. P. C. that "no second appeal shall lie except on the grounds mentioned in section 100". the defendant was faced with the concurrent findings of fact on the two issues hereinbefore mentioned. He, therefore, argued in the High Court that "the findings of the Courts below," were vitiated by misconstruction and misreading of the evidence and the conclusions could legitimately be re-examined in the second appeal. The High Court in this respect referred to Abdul Majid and others v. Khalil Ahmad P L D 1955 F C 38, where it was observed-(and which observation was quoted by the High Court namely)-that "The High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross and inexcusable the error may seem to be, unless there is an error in the procedure provided by law which may possibly produce an error or defect in the decision of the case on the merits. A fallacy in appraising the evidence as to a fact, unless it amounts to a material mistaken assumption, in merely an error in coming to a finding as to that fact, and such error has never been held to be an error of law justifying interference in second appeal." The High Court also referred to Mst. Fatima v. Khuda Bakhsh P L D 1959 Lah. 826, and observed that in that case it was held that "If there be no proper evidence in support of a finding by the first Court of appeal, or the evidence is misread or misrepresented, the finding, though one of fact, is vitiated and a Court of second appeal is entitled to review it. This is the only exception which is tenable under law and all other exceptions are unwarranted by the provisions of sections 100 and 101, C. P. C."

10. After referring to the above law the High Court held that "In view of the above legal position the evidence on record is re-examined in order to see whether the Courts below had before them proper evidence for consideration in support of the findings or conversely the Courts had misread or misconstrued the evidence." The High Court heard the case for 10 days and in a judgment dated 8-3-1972 extending over 90 pages dealt with the factual side of the case in detail and ultimately held that "taking into account the circumstantial evidence and the direct evidence, I am satisfied that the Courts below rightly believed that the appellant and respondent No. I were duly married. The letters- on record lead to the conclusion that this marriage took place some time in September 1960. The direct evidence on the record shows that the marriage took place on the 12th September 1960. There is no ostensible reason to discredit the evidence. "Since the entire material has been appreciated the questions of fact cannot be reagitated in second appeal. There is no force in this appeal. It is hereby dismissed with costs".

11. The defendant has now come up in appeal to this Court by special leave which was granted on 24-10-1972, in order to consider "whether the findings in the present case are patently improbable or based on correct principles relating to the appreciation of evidence, and whether the alleged disregard of procedural requirements has caused any grave miscarriage of justice." The case has been heard by us for a number of days during which besides his learned counsel, the appellant also addressed us, on few occasions; and then filed lengthy written arguments .and has raised a number of points to which I shall presently refer. Re : Direct Evidence

12. Taking up the direct evidence of the marriage it may be mentioned as an introductory fact that it is a common ground that the defendant/ appellant and plaintiff No. I met one another in February 1960, at the time of the Horse and Cattle Show at Lahore. How and up to what extent their relations developed will be attended to later when I will be referring to their letters etc. but it is again a common ground that in September 1960, the defendant/appellant was posted in the Military College, Serai Alam Gir. as a Captain and plaintiff No. 1 was employed as a undertrainee in Village-Aid Training Institute, Lalamusa,-(the distance between Serai Alam Gir and Lalamusa, we were told at the bar, is only 18/19 miles. It is the case of plaintiff No. I that they were married in Sialkot on 12-9-1969, where Kabinnama Exh. P/7 was executed which was signed by the defendant/ appellant and his brother Qamar Zaman (D. W. 5), Ghulam Hussain (P. W. 3), father of the bride, Maulvi Abdul Karim (P. W. 4), Rehmat son of Fateh Din (P. W. 5), Rehmat son of Ali Muhammad (P. W. 6) and Havildar Fida Hussain (P. W. 7). The learned Civil Judge discussed the evidence of these witnesses in paras. 9, 10 and 31 of his judgment which are worth reproduction. They read as follow :- "Para. 9.-The plaintiff examined Maulvi Abdul Karim (P. W. 4) who performed the Nikah between the parties. He stated that he was also the scribe of the Kabinnama Exh. P/7, that it was signed by the defendant in his presence at Exh. P. B/2; that Qamar Zaman, who described himself to be the elder brother of the defendant and who himself gave out his parentage as Musa Khan, signed the Kabinnama at Exh. P. B/1 as Zamin (surety) for the dower amount and that Rehmat son of Ali Muhammad and Rehmat son of Fateh Din thumb marked the Kabinnama as witnesses of Nikah. In the cross-examination he was asked that he belonged to village Pole-Mahar and that he had been acting as a clerk to Ch. Ghulam Qadir, Advocate, Sialkot, but he stated that at the time when this Nikah was performed, he was the Imam Masjid of the Mosque situated in Mohallah Islamabad, in which mohallah the house of the father of plaintiff No. 1 was situated. He being the nearest Imam available was naturally preferred for performing the Nikah ceremony. In the earlier part of the cross-examination, the suggestion to the witness is that he never lived in Mohallah Islamabad and was not the Khatib of the Mosque there, buy in the later part of the cross-examination, it has been suggested that he was Imam Masjid of the Mosque known as Chah 4jrian from where he was removed. The witness accepted the position that he was the Imam of the Mosque, but stated that he quitted the office himself. Rehmat son of Fateh Din, (P. W. 5) and Rehmat son of Ali Muhammad (P. W. 6) are the witnesses to the Nikahnama Exh. P/7. Both these witnesses stated that the defendant went through the marriage ceremony in their presence; that the Nikah was performed by Abdul Karim (P. W. 4); that a Kabinnama was duly drawn up, which was signed by the defendant as the bridegroom and by his brother Qamar Zaman as a surety while they (P. Ws. 5 and 6) thumb-marked the deed as witnesses of the Nikah. The chief objection against both these witnesses is that they are related to each other and that they were not permanent residents of Mohallah Islamabad. P. W. 5 stated that he was living in Mohallah Islamabad in the house of Ghani Butt. No attempt has been made to prove that P. W. 5 did not reside in the house of Ghani Butt. The details of marriage party given by Abdul Karim, P. W. 4 and P. W. 5, tally to the minutest details. Rehmat son of Ali Muhammad also stated that the Nikah was performed by Abdul Karim (P. W. 4) and that the defendant signed the Nikah Nama in his presence as the bridegroom and his elder brother whose name he bad forgotten had also signed the Niakh Nama. This witness has stated further that after the marriage the defendant used to visit and stay with plaintiff No. 1 at her parent's house in Mohallah Islamabad. This witness was told that the Kabin Nama was a forged document and that P. W. 4 and P. W. 5 and P. W. 6 had deposed in favour of the plaintiff at the instance of Shabibzada Faizul Hassan. The suggestion was refuted by the witness. (P. W. 6) and (P. W. 7) deposed that after the marriage, the defendant had been visiting and staying with plaintiff No. 1 at her parent's house in Islamabad frequently. They further stated that as a result of the wedlock a son was born and on his birth the witnesses offered their greetings to the defendant which was cordially accepted by him and according to (P. W. 7), the defendant distributed sweets on this happy occasion. Although this is not a direct evidence of marriage, but is evidence of acknowledgement .of the marriage. Haveldar Fida Hussain, (P. W. 7) is a resident of Mohallah Islamabad and the defendant has no particular objection against this witness; He was asked the details of his house and the surrounding house and he successfully stood the test in describing those without hesitation, the boundaries of his house and other particulars about the Mohallah dars. He was asked if Rehmat (P, W.) of village Bheelo Mahar(sometimes written as Pheelo Mahar)--ever occupied the house of Ghani Butt, which he (P. W. 7) had described as adjoining the house of the father of plaintiff No.

1. This witness stated without hesitation that Rehmat did occupy that hose for some time in his Mohallah. Lt.-Col. Sardar Khan is (P. W. 1), who stated that the defendant had admitted before him that plaintiff No. i was his fiancee." "Para. 10.-Ghulam Hussain (P. W. 3), father of plaintiff No. 1 stated that the Nikah of plaintiff No. 1 and the defendant was solemnised in his presence and that he also signed the Nikahnama as Wali Mankooha. 1n the cross-examination he was asked why the members of his own brotherhood had not participated in the Nikah ceremonies and why they were not signatories of the Nikahuama. The witness stated that his brotherhood felt annoyed over plaintiff No. 1 marrying a stranger and in .expression of their annoyance, they boycotted the function of Nikah, especially when the spouses had settled this marriage themselves. It was also asked in the cross-examination as to who besides (P. W. 5) and (P. W. 6) participated in the Nikah ceremony. (P. W. 3) stated in reply that besides (P. W. 5), (P. W. 6) Mr. Abdus Salam, Advocate, Abdul Karim, Contractor and one Muhammad Din were amongst those 20/25 persons, who were present at the occasion. This was a sufficiently large list of persons from amongst whom the defendant could produce, if he so wanted, Abdus Salam Butt, Advocate and Abdul Karim , Contractor.. If not others, but the defendant did not produce any one of them." "Para. 31.-The defendant had once admitted before Lt.-Col. Muhammad Sardar Khan (P. W. 1), that plaintiff No. 1 was his fiancee while now he denies having any relation whatsoever with her. This admission of the defendant before a responsible and independent witness (P. W. 1) goes to show that the claim of plaintiff No. 1 is correct and she is the legally-wedded wife of defendant. P. Ws. 4 to 7 are independent and natural witnesses and there is no reason to disbelieve them. P. Ws. 4 to 6 have duly proved the Nikahnama. I, therefore, hold that the Nikah of plaintiff No. 1 and the defendant was performed on 12-9-1960."

13. The learned Additional District Judge in the first appeal dealt with the testimony of these witnesses in para. 28 of his judgment and held as follows :-- . "It will be noted that the plaintiff had sought to prove her marriage by oral and documentary evidence. The oral evidence is that of her father Ghulam Hussain who deposed about the marriage between the parties at his house. The next witness is Maulvi Abdul Karim (P, W. 4) who performed the Nikah ceremony and prepared the Kabin Nama. The two witnesses of the Nikah are Rehmat (P. W. 5) and Rehmat (P. W. 6). They are illiterate witnesses and not connected with the parties. Havaldar Fida Hussain (P. W. 7) is another witness of the Nikah. The main objection taken by the counsel for the appellant to this evidence is that no witness of the brotherhood of Ghulam Hussain father of the plaintiff was produced. This was explained by the fact that according to the plaintiff, she had married the defendant without the consent of her parents or the parents of the defendant. The brotherhood of the plaintiff was not pleased with this marriage of the plaintiff to somebody outside the brotherhood. They refused to join the function, This explains the absence of any member of the brotherhood as a witness. It was next argued by the learned counsel for the appellant that the Kabin Nama was not produced at the earliest opportunity and, therefore, its authenticity is doubtful. The learned counsel for the respondent has pointed out that the Kabinnama was mentioned in the list of reliance dated 23-9-1964 and that it was produced few days after the institution of the suit. If a Kabinnaame was to be forged for a suit that was contemplated to be filed it could have been so prepared considerable time before the suit. I have gone through the lengthy cross-examination of Abdul Karim, the Nikah Khawan and Havaldar Fida Hussain (P. Ws.) who was also present at the function. There is nothing in the statements of these witnesses to show that they are interested in favour of the plaintiff or inimical towards the defendant. There is nothing in the cross-examination to discredit their statements. The statement of Havaldar Fida Hussain in fact refers to admission of paternity by the defendant about plaintiff No. 2."

14. The High Court in the second appeal went into the details over again by examining the matter from all possible angles and after lengthy discussion proceeded to sum up the matter in para. 38 that "The point that requires determination is whether :-"(a) the appellant and respondent No. 1 were married on the 12th September, 1960, and from the 12th September, 1960, to June, 1962, continued to behave as husband and wife, or (b) they had only intimate relations of sin". The High Court then concluded that "taking into consideration the circumstantial evidence and the direct evidence, I am satisfied that the courts below rightly believed that the appellant and respondent No. 1 were duly married. The letters on record lead to the conclusion that this marriage took place some time in September, 1960. The direct evidence on the record shows that the marriage took place on the 12th September, 1960. There is no ostensible reason to discredit the evidence." Criticism on Direct Evidence 15. (a) Learned counsel in order to overcome the aforesaid concurrent findings of the three Courts below submitted that the relevant witnesses of Nikah as produced by the plaintiffs should not be believed. He tried to point out that there were some variations in the matters of details regarding the exact number of the persons who attended the marriage function because the figure varied from 18-19 to 20-25 : that similarly the number of Baraties also varied in some margin as also the exact time of the Nikah namely Asar time 1. e. immediately after the arrival of the Barat or after evening prayers and also on the point of the time of the departure of the Barat. I have attended to all these matters-(as further elaborated by the defendant/appellant in his written arguments and charts)-but in my opinion the points raised are insignificant and pertain to minor and minute details which in the natural course of human conduct cannot be expected to be provided in exactitude by witnesses of Nikah after the passage of a long time and nor are they of such a nature on which findings of fact recorded after due care and appreciation of evidence should be set aside. Direct evidence cannot be rejected o such flimsy points especially when the said evidence has been believed by alt the three courts below for very solid reasons as above reproduced and as will highlighted hereinafter. (b) When confronted with this situation learned counsel for the appellant tried to argue that as-plaintiff No. 1 had not taken any. leave from her Institute Sit Lalamusa for 12-9-1960, therefore, the question of her being present in Sialkot in the house of her parents on that date did not arise and the plea of any Nikah having taken place on that date was just a concoction. For this purpose he wanted to refer to deposition of D. W. 6 Head Clerk who produced a leave application of plaintiff No.

1. However, as that application did not contain any initials or noting of that witness to show that he dealt with the same, therefore, his evidence in that respect was held to be of no value. The following passage. in para. 23 of the judgment of the learned Civil Judge attended to this aspect of the case and is worth reproduction :-- "Para.

23. D. W. 6 is Malik Ahmad Khan, Head Clerk, Training Institute B. D. Lalamusa. He produced an application which was marked as Exh. D.

17. This application is, neither is the handwriting of this witness nor has been dealt with by him. It bears the signatures of one Hamad Hussain Shah, who has not been produced as a witness." Before the High Court the matter was again pressed and the High Court dealt with it in the middle of para. 16 of its judgment in quite some detail as follows : "The personal file relating to respondent No. 1 was produced in Court. A perusal of it shows that on the 9th September 1960 she applied (vide Exh. D 17) to the Principal, Village :Aid Training Institute, Lalamusa, for grant of station leave for Sunday, the 11th September, 1960, Respondent No, 1, however, stated that she had gone to Sialkot after submitting application for leave for two days. No such application is forthcoming on the record. Two conclusions are possible namely, (a) on the 12th September, 1960, respondent No. I was not present in Sialkot, and therefore, did not enter into the alleged marriage. (b) she was absent from Lalamusa without leave, was present in Sialkot and could possibly enter into the alleged marriage. It was argued at the bar that the 11th September, 1960, being Sunday and otherwise a public holiday on account of the death anniversary of the Quaid-i- Azam the Institute observed a holiday on the 12th September, 1960. Malik Ahmad Khan Head Clerks Village-Aid Training Institute, Lalamusa (D. W. 6), however, was not in a position to state if the 12th September, 1960, was declared a public holiday, Malik Ahmad Hassan, Head Clerk, stated that in the, Institute regular Register was maintained in which presence of the: trainees--(respondent No. I being such a trainee)-was duly marked. No such register was summoned. At the worst, it may be said that respondent No. 1 was present in Sialkot; without leave. This by itself will not invalidate the marriage, if it is otherwise established." The point has been reagitated before us. I have not found any justification to take a different view from the High Court on this subject. I may further add that the point is merely of appreciation of evidence and does not involve any principle of law which could constitute a bar on the part of the High Court in taking the view which it has taken on the subject. ? As regards Ghulam Hussain (P. W. 3) (father of plaintiff No. 1) the case of the defendant was that he too was not on leave on 12-9-1560 from the Wah Factory, where he was employed. The learned Civil Judge dealt with this matter in para. 24 of his judgment as follows :

"D. W. 7 Skaukat Ali, Assistant Cashier, Wah Factory, was produced to prove application from Q0a Ghulam Hussain son of Nizam Din Cutting Shop Clothing Factory, Wah. The witness stated that he had seen the copies of the original record Exh. D. 18 and Exh. D.

19. Ghulam Hussain was not on leave on any date during September, 1960, as there is no application and the letter "p" is throughout written against the name of Ghulam Hussain. This witness admitted that register, copies of which are Exh. D. 18 and Exh. D. 19 are copied from attendance register maintained in the office. The original register, where presence was marked, was not produced. The copies of copies are inadmissible, as this witness is neither the copyist nor the writer of the original register nor any comparison of the two has been made. The register produced by him is unpaged, is not in the writing of the witness and instead of the personal number, ticket number is entered there. So the possibility of these entries relating to some other Ghulam Hussain cannot be ruled out. The witness stated that even the ticket number of Ghulam Hussain was not given in the register as the supervisors were not issued any ticket numbers. The witness admitted that the entries of presence and absence were not initialled. There are several cuttings in the register, which are uninitialled. So no reliance can be placed on the entries when the original has not been produced. This is no evidence of the presence of Ghulam Hussain, father of plaintiff No. 1, in Wah on 11-9-1960." ?The learned Additional District Judge similarly rejected that plea in para. 34 of his: judgment where he held :- "Another circumstance to discredit the marriage version was that Ghulam Hussain father of the plaintiff was asserted to be not-present in the Nikah on the relevant date for the reason that he was stated to be present in Wah Factory where he is employed. Reliance was placed on the statement of Shaukat Ali D. W.

7. This witness bad deposed from documents which were ,not the original but were copies of the original. The evidence, therefore, cannot be said to be worthwhile." The High Court on this subject held as follows on pages 344-345 : "Ghulam Hussain, father of respondent No. 1, appeared as P. W 3, and stated that in his application for leave he had not mentioned that he required the same for the purpose of the marriage of his daughter. The implication was that he did submit an application for leave in this connection. He gave his address as;

"Supervisor, P. O. F. Cutting Factory: The appellant examined Shaukat Ali, Assistant Cashier, Explosive Factory, Wah (D. W. 7). He produced the personal file of Ghulam Hussain son of Nizam, Cutting Shop. Clothing Factory, Wah. The file did not show that Ghulam Hussain applied for any leave in the course of September, 1960 In cross-examination, the witness explained that in Wah Factory, there were several factories comprising dozens of sections each. He explained that during the period from 1959 to 1965, the section Clerk would mark the persons present, would prepare the casualty reports and send the same to the Administration Office. The Administration Office would send a copy of it to the Pakistan Ordinance Factory Board. Exh. D. 18 is the Attendance Roll for the month of September, 1960, Exh. D. 19 is copy of the entries made by Board. Obviously the principal or primary entries are those which are made by the section clerk. Shaukat Ali, Assistant Cashier (D. W. 7; stated that he did not record the attendance in the Attendance Register The result is that the entries in Exh, D. 18 are technically not proved. Besides the entry in Exh. D. 18 relates to "Ghulam Hussain Sup. `B' ", probably it may refer to Supervisor `B'. Shaukat Ali stated that in the Cutting Shop, about two hundred persons were working. He precisely stated as below . "In 1960, no person of the name of Ghulam Hussain was Supervisor in Cutting Shop section. He, therefore, could not state if the entries in Exh. D. 18 related to Ghulam Hussain (P. W. 3). The courts below rightly eliminated this evidence from consideration." The learned counsel repeated the same submissions and reiterated the same arguments about the presence of Ghulam Hussain in Wah Factory on 12-9-1960. He could however, point out no misreading or omission of an record, and in these. circumstances the view taken by all the Courts below o the subject cannot be disturbed when it is supported by cogent reasons and careful analysis of the relevant material referred to in their judgments. I was laid down by this Court in Khan Muhammad Yusuf Khan Khattak v. S. M. Ayub and 2 others P L D 1973 S C 160, at page 190 that secondary evidence cannot be admitted when the original exists and could be produced. (d) The next person who in this respect pleads alibi is the defendant/ appellant himself. His case was discussed by the learned Civil Judge in para. 21 of his judgment which reads as follows :- "D. W. 4 is Naib-Subedar. (retired) Ahmad Hassan. He stated that from 10-10-1958 to 10-6-1962 he was Head Clerk in the Military College, Serai Alam Gir, that the defendant worked as Adjutant in the College and was using single officers accommodation, that from 6-9-1960 to 12-9-1960, Capt. Sher Afzal had not been marked absent from the Mess as Mess Charges had been recovered from him for these dates. But the entry relates to the account of Capt. M. S. A. Khan and not to Capt. Sher Afzal, The witness on his own accord blurted out that this entry relates to the defendant present in the Court although this M. S. A. Khan was not his official name. This register was found unpaged. Entries were not signed by any officer. The witness admitted that the Mess Charges were entered in the cash book, which he had not brought. The witness admitted that the entries were not in his handwriting. Thus what was sought to be proved from the testimony of this witness is that on the relevant date, which falls between 1-9-1960 to 30-9-1960, the defendant throughout stayed in Seral Alam Gir and was not absent even for a day. This is no testimony in rebuttal that the defendant did not go from Serai Alam Gir to Sialkot for a couple of hours to go through the marriage ceremony. Serai Alam Gir is at a distance of 65 miles from Sialkot and intakes not more than four hours in coming and going back on the same date without obtaining leave. As the marriage was being kept a closed secret, the question of obtaining leave did not arise. So a person after tatting his lunch and before taking his dinner can easily travel between Serai Alam Gir and Sialkot and this is the time when the marriage took place in the afternoon." The High Court dealt with this matter as follows : "The leave register maintained at the Military College, Sarai Alam Gir. showed that Captain Sher Afzal .Khan did not apply for or avail of any leave on the 12th September 1960. Learned counsel for the respondents pointed out that the appellant could manage to travel from lalamusa to Sialkot in the afternoon and after going through the marriage ceremony, return to the Military College Sarai Alam Gir, before dinner. Naib-Subedar Ahmad Hassan (D. W. 4) stated that on the 12th September 1960, the appellant was present in the College as he was present at and was charged for, breakfast, lunch, tea and dinner. According to this witness, attendance in the College was deducible from the attendance in the mess and attendance in the mess was deducible from the liability to charge for breakfast, lunch, tea and dinner. If an Officer decided not to protest against the proposed charge although, as, a matter of fact, he did not take evening tea, the inference will be that he was present whereas in fact that day he may be absent during the period after lunch and before dinner. In the instant case, the appellant on the 12th September 1960, may have missed the tea and again may have taken the dinner. These entries per se would not show that he had been actually present in the College premises on the 12th September 1960 (afternoon). This evidence is insufficient to conclude, that, in the circumstances of the case, it was impossible for the appellant to be present at Sialkot; the evidence equally insufficient to warrant the conclusion that the appellant could not possibly have entered into the alleged marriage". In my opinion the finding recorded by the High Court on the point under discussion does not suffer from any infirmity and is rather quite sound and supported by cogent reasons. Learned counsel has not been able to show that the view which the High Court has taken could not be taken at all, or that it suffers from violation of any principle of law relevant in the matter of appreciation of evidence. (e) It was then argued that the opinion of Mr. M. A. Nomani (handwriting expert produced by the appellant) that the two thumb-impressions of Rehmat son of Ali Muhammad (P. W. 6) and Rehmat son o . Fateh Din (P. W. 7) on Kabin Nama Exh. P/7 were in fact the thumb impressions of one and the same thumb, was an indication sufficient to show that the Kabin Noma was a spurious document. The opinion of the other expert produced by the plaintiffs, however, 'vas that the thumb-impressions were not clear and were blurred.. In these circumstances, I am not prepared to rely on the handwriting expert of either part because each has tried to support the party who produced him and their opinions being conflicting the safest course obviously would be, to decide the case with reference to the direct evidence as was done by the Courts below. Mr. Nomani's opinion cannot be accepted for further reason that no attempt was made in Court to get the thumb-impressions of Rehmat son of Ali Muhammad and Rebmat son of Fateh Din or to send those to the expert. Coming to the direct evidence all the witnesses of Nikah have supported the same and as held by the High Court their evidence cannot be brushed aside especially, when they include witnesses who are quite independent and neither had any animus against the defendant nor any relationship with the plaintiffs. (f ) it was then submitted that Kabin Nama Exh. P./7, is a forged document which was prepared after the institution of the suit inasmuch as it was not filed along with the plaint, and because even otherwise it did not contain the signatures of Mst. Shamim Firdaus, though it was alleged that it contained the signatures of the defendant. A perusal of the trial Court file shows that the plaint was filed on 21-5-1964 and a photo copy of this document was duly annexed after alongwith a list of documents. If the plaintiffs as it appears, took care, to preserve and safeguard this document from any possible tempering with etc. and for some time did not produce the original-(which plaintiff No. 1 had stated she had given to her counsel)-no presumption adverse to the plaintiffs can be drawn from the mere fact that it was not immediately annexed with the plaint, particularly when it caused no prejudice - to the defendant who led all the possible evidence during the course of an exceptionally lengthy trial of this case, cross-examined the relevant witnesses at length and also led evidence in defence by taking all possible types of plea. From a mere allegedly somewhat late production of the. `document, no inference of its being forged, can thus be drawn. As regards the no "existence of the signatures of Mst. Sbamim Firdaus on the Kabin Nama the same again has no effect and it rather shows that the document was produced in the form and pattern in which it was at the time it was executed without any addition or interpolation therein, because, had the document been prepared afterwards there was nothing to stop the plaintiff from just affixing hot signatures on it especially when it was being produced by her own-self and from her own custody of course through a counsel. The fact that the lady produced the document in its original shape whatever it -was, giving an open opportunity to all concerned to examine and adjudicate upon the same, points to the truthfulness of the transaction embodied therein and the genuineness of its contents and existence. No doubt 1 have dealt with these two submissions of the learned counsel, but it will be appreciated, that these are not points which involved violation of any principle of law in the matter of appreciation of evidence or otherwise warranting interference by this Court on a question of fact regarding genuineness of a document and existence of marriage between the parties. (g) The next point raised was that during the course of an inquiry by D. W. 9, held on the complaint of the plaintiff Exh. D/3, she had stated that the marriage had taken place in Gujrat, whereas now her case was that it took place in Sialkot. It was submitted that this patently contradictory stand of the plaintiff was quite enough to falsify her plea of marriage. It may be mentioned that when D. W. 9 made such a deposition he was asked as to whether he had recorded any statement of Mst. Shamim Firdaus. He replied in the negative and stated that he was not authorised to record the statement of a civilian. This will show that there does not exist any record of any such statement which was being attributed to her, Moreover, the report of that witness, which he compiled after the inquiry, is not on the record, though it was told to us by the learned counsel, that it, was to the effect that the parties should get their matter thrashed out from a civil Court. Another thing to be noticed is that when Mst. Shamim Firdaus appeared as her own witness she was neither confronted with nor asked anything about any such statement and in these circumstances no point can be made by the learned counsel of the so-called contradiction which is being attributed to her. The High Court in these circumstances rightly attached no importance to this plea of the defendant. (h) I may in this connection and at this stage, refer to a very important letter Exh. P/34 of the defendant which it is a common ground is dated 13-9-1960-(which will be a day after the marriage)-and was written from Serai Alam Gir. Learned counsel for the defendant/ appellant laid a great stress on this document and I have not understood for what purpose he did so, because, this letter thoroughly went against his client. The letter reads as follows :_ "In the peace of night, with melodies so enchanting being transmitted, nothing more thunderous out any one heart could give to another heart, owning it like saying "My heart", though so incapacitated, but sure it owns it and the claim I hope is unquestioned. Incapacitated for factors of time and place, which has an upper hand over official commitment. May gods guard you and (sic) with the faulty focused eye, on a bosom (sic). soft and fleshy-who can dare take it out of the mighty paws of a lion (sic). Sure you shall be feeling quite a bit of change after your return from home and 1 demand no proof. I could trust my "Heart" and a formal permission was granted. How was the family? Naseem and Parveen and your mumy must be having a lot to talk to you and I must be a target for you all. Hope you must have taken my side! Today. I have received a letter from Naseem alongwith it another letter was enclosed from Parveen. She has written that she is coming to Lalamusa on Thursday (15th Sep.) and that she will come to me on the same day or the next day. I will suggest this that, as I shall be busy on Thursday, so you should try to take a jeep, if possible and leave her on Thursday or Friday here. If you cannot do that, then ring me up during the office timing on Thursday or Friday and I shall come to Lalamusa and bring bee here. You must inform me about her arrival on the telephone. In case she does not come normal programme will be to come on Saturday at about 3 o'clock. I hope that this is quite clear to you. Regarding my explanation for my activities on Saturday and Sunday, I do not have to prove it on paper, I shall show it practically on one meeting remember this time "Four in one". Good-bye till then, remember a tender-Yours "all", no portion?' (i) A perusal of this letter will show that it is couched in quite a marital tone of a newly wed husband to his wife inasmuch as it talks of her bosom, soft and fleshy, and a promise on the part o the defendant to remain .with her for ever by stating that "who can dare take it out of the mighty paws of a lion". After the night of marriage one can then appreciate the aforesaid and particularly the next sentence in the letter where it is stated "sure you will be feeling quite a bit change after your return from home." And further it says "I wanted no proof. I could trust my "Heart' and then comes a very significant sentence "and a formal permission was granted" This corroborates the statement of plaintiff No. I that her father was earlier against this marriage but then he granted permission and the marriage was thus solemnised. We asked the learned counsel t state as to what this grant of "formal permission" was but even hi "written arguments" do .not attempt to explain it in any manner. I the written arguments all that has been stated is that "the defendant addressed the letter to the plaintiff at Lalamusa after her return from Sialkot. Indicates no marriage on 12-9-1960." I must say that on the contrary rather it goes to show that on 12-9-1960, she .was not in Lalamusa and had returned the next day and that is why that the letter was written on 13-9-1960 and not on 12-9-1960. The words "after her return from Sialkot" in the comments also support that earlier she was in Sialkot. Similarly the sentence "How was the family? Naseem and Parveen and your mummy must be having a lot to talk to you and I must be a target" is a pointer to talks which generally take place after a marriage regarding a newly wed husband between his mother-in-law and the sister-in-law and his newly-wed wife. If he was not in Sialkot in connection with and on the eve of his marriage how otherwise he could have written in a happy and joyful mood that he must have been the target of their talk. Similarly reference to her feeling quite a bit of change" after her return from home is another indication of the change which takes place in a woman when she returns to her office after having been married. Because otherwise a normal visit of a lady to her house, as is the case of the defendant only ,just for a day cannot be "quite a bit of change". Again the last portions of the letter] where the defendant tried to show his masculine strength fits in with the whole context above explained. ,Examination of the Position of Qamar Zaman

16. The next witness of Nikah is Qamar Zaman (D. W. 5) (real brother of the defendant). As his role was subjected to a great deal of comments by the learned counsel for the appellant I have, therefore, dealt with his position under a separate head though he may have well been put under the previous heading of "criticism on direct evidence". The Nikah Nama Exh. P.7 as stated by the various P. Ws. above mentioned contains his signatures though he has denied the same and has deposed that in the first week of September, 1960, he had taken the wife of his elder brother Col. Mustafa, to Bannu to her parents and remained at that place for one month, implying thereby that on 12-9-1960, he was in Bannu and had not gone to Sialkot to take part in the marriage of the defendant. However, the defendant in his own deposition as D. W. 12 did not make any such statement about presence of his brother on the aforesaid date in Bannu or elsewhere. Similarly no evidence of any kind oral or documentary was produced to support the aforesaid. plea of alibi of Qamar Zaman that on 12-9-60, he was in Bannu and in these circumstances the bare unsupported statement of Qamar Zaman is not a sufficient rebuttal of the direct evidence.

17. Qamar Zaman deposed that the first letter he received from plaintiff No. 1 was towards the end of year 1962 which he handed over to the defendant and further deposed that letter was not contained in the letters which had been placed (by the defendant) on the file. This is very significant and in these circumstances a legitimate presumption can be drawn that had that letter been produced it must have gone against the defendant and that is why that it has not been placed on the record lest it may disclose the nature of the relationship of the parties and the cause for writing of that letter. Another significant thing to be taken note of is that plaintiff No. 1 in her deposition stated that Qamar Zaman came to Sialkot near about the time of her admission in the Mission Hospital, and that in fact he paid for the expenses. Qamar Zaman .in his cross-examination admitted that once. he went to Sialkot on the call .of plaintiff No. 1 and stayed in a Hotel and that next day he went to her house and brought her to the Hotel and there had talks with her. However, he never disclosed the nature and the purpose of his talk or talks, and did not state, as to why he went to her house. The defendant did not produce any record of the concerned Hotel which could have fixed the date and period of his visit. However, as the visit to the house of plaintiff No. 1 is admitted it goes a long way to show that he was very much involved in this marriage and his denial of having participated therein cannot be accepted.

18. The learned Civil Judge dealt with the role of this witness in para. 16 of his judgment at page 282 and observed that "the plaintiff was asked if she had ever addressed letters to Qamar Zaman brother of the defendant, she replied in the affirmative and acknowledged letters Exh. D. 5 to Exh. D

9. Even! this communication with the elder brother of the husband is natural and in these letters there is a mention of the birth of plaintiff No. 2". At page 289 in para. 22 the learned Civil Judge farther observed : "D. W. 5 is Qamar Zaman brother of the defendant He was produced to disown his signatures on the . Nikah Nama. He is elder brother of the defendant. In reply to the question whether he felt it ill on knowing that his brother, the defendant, was in correspondence with plaintiff No. 1, a girl of easy virtues, he said that he felt it very much. Then he was asked whether he himself wrote any letter to Shamim Firdaus and he admitted that he did write those letters. In these letters this witness had addressed plaintiff No. 1 as "sister". He admitted the letter Exh. P. 10 in its entirety, but when confronted with the position as to why he should address a woman of easy virtue as his own sister, he said that this word was not in his hand. He stated the word `your brother' preceding the name was also forged, He had further said that not a single word of this letter was in anybody else's hand. This witness being the real brother of the defendant is highly interested."

19. The learned Additional District Judge expressed his views in paras. 19 and 31 as follows :-- "Para. 19.-Malik Qamar Zaman D. W. 5 a brother of the defendant had deposed to say that he had never attended the marriage function of the defendant with Mst. Shamim Firdaus at Sialkot and that the Kabinnama Exh. P/7 did not bear his signatures," "Para. 31.-The learned counsel for the appellant drew my attention to letter Exh. P. 10 of Qamar Zaman P. W. elder brother of the appellant and addressed to Mst. Shamim Firdaus. In it, he had described himself at the end as brother of Mo. Shamim Firdaus. This witness was cross-examined and he indicated that Mst. Shamim Firdaus was a woman of easy virtues and that he would not like to address her as his sister or to call himself as her brother in view of her loose character. When confronted with his letter he denied that words "your brother" above his name Qamar Zarnan were in his handwriting. It is needless to refer to the handwriting expert as a close perusal of the handwriting clearly indicates that the entire writing is in the hand of Qamar Zaman. The learned counsel for the respondent also drew my attention to letter marked "Z" which was not admitted by Qamar Zaman to have been addressed to Mst. Shamim Firdaus by hint. It appears that Qamar Zaman having become wiser had denied this letter for the reason that it referred to some proposed attempt or effort by him at reconciliation between Mst. Shamim Firdaus and the defendant/appellant. The handwriting of this letter entirely resembles letter Exh. P. 1'.) and I have no reason to doubt that this letter was written by Qamar Zaman to Mst. Shamim Firdaus. Such letters could not be written by the elder brother of the defendant/ appellant to a woman who was not the wife of his brother or who was of loose character."

20. The High Court also attended to this aspect of the matter in para. 23 its judgment as follows - "Letters Exh. D/5 (undated) D. 8, dated the Ist January, 1963 D/7 dated the 9th January 1963, and D/6, dated the 2nd March 1963, were admittedly written by respondent No. 1 to Qamar Zaman (D. W. 3). She expressed her dissatisfaction with the conduct of the appellant. She stated : "I was going straight but he (appellant) wanted to send for me to Karachi and to get me murdered there." She threatened to see the Commander-in-Chief in case the things were not set right. Prior to it, she had written two letters and complained that the same remained unreplied. In Exh. D. 8, she stated;-- "He (appellant) may not give anything to me. I will not protest. I was in service before, and will do the same. But a misfortune has been fallen and this involves honour. I will not tolerate this accusation. Dishonour is nothing short of death. Now that this has been given 6y him, why should he, in order to save himself, accuse me and .should make arrangements for my assassination. 1 shall wait till the 3rd or the 6th instant. Give me a firm date. The eyes of the society are keenly observing me. 1 sense as if a tempest is about to break out." In Exh. D. 7, she requested Qamar Zaman to come to her. She added;-- "I think father has got an inkling. He has enquired in a letter as to when he (appellant) is coming. Come after the 29th January 1963, when my cousin from Sargodha shall return. In her presence I cannot have any discussion. They know only this mush that Shamim has entered into marriage of her own." In Exh. I3. 6, she informed Qamar Zaman that she had taken admission in Christian Memorial Hospital. . . Qamar Zaman admitted that he had written the letter Exh. P. 10, dated the 15th January, 1963, except the last sentence A to A and the subscription 'Bhai'. - He did not admit that he had written -the letter marked 'Z' dated the 7th October, 1962. It appears that with the approach of the date of delivery, respondent No. 1 dissatisfaction with the cold treatment that she was getting from the appellant and she wanted his brother Qamar Zaman to intervene. According to respondent No. 1, she approached Qamar Zaman because he was the brother of the appellant and a surety in the Kabin Nama (Exh. P. 7). The appellant's contention was that by referring to the pregnancy, respondent No. I was blackmailing and compelling the appellant to enter into carriage with her and to recognize the paternity of the child. As shown above, in the early stages, for certain reasons, respondent No. 1, was not in favour of allowing the pregnancy to mature. It appears that finally she settled to accept it and to deliver the child. But she wanted the appellant to accept the responsibility and show the old warmth of love and affection. The conduct of Qamar Zaman is to be analysed in order to determine whether to his knowledge respondent No. I was his brother's wife, invoking his help or was merely a blackmailer. The letter Exh. P/10 dated the 5th Jan4ary 1963, and the letter Exh. P/3 would show that Qamar Zaman did not reply the first two letters. His first ever admitted reply was the letter Exh. P/10. The contents of the first two letters written by respondent No. 1 are not known. Learned counsel for the respondent contended that the same had been withheld purposely. The problem posed in these letters must have been precisely stated. A perusal of Exh. D/5 to D/8 sufficiently indicates that the baby was coming and the appellant (father of the baby) was cold. In the letter Exh. D/ 10, Qamar Zaman did not express any surprise at the so-called accusation. He expressed apologies for delay in the reply and sympathy in her troubles. Then he referred to his own worries why he would not be coming to her soon. In the end, he promised to see her in the following week, more precisely by Thursday. Qamar Zaman and the appellant stated that appellant was betrothed to Miss Khalida Malik on the 4th June, 1962, and was married to her on the 22nd November, 1963. Had Qamar Zaman been completely ignorant about the relations of the appellant and respondent No. 1, his normal reaction would have been one of forthright indignation. Learned counsel for the appellant, however, contended that the compromising attitude was adopted by Qamar Zaman only to gain time to enable him to write to the appellant in America and to know the facts. If this was so, this could have been stated in a straightforward manner, Qamar Zaman denied that he wrote the letter sparked "Z" dated the 7th October, 1962. Apparently, this letter is written by the writer of the letter Exh. P/10, namely, Qamar Zaman. The sum and substance is consistent with the argument now being advanced. I accept that the letter marked "Z" was written by Qamar Zaman. By reading the letters "Z" and Exh. P/10, it is easily deducible that Qamar Zaman knew of the true relationship between the appellant and respondent No. 1 and advised her not to be impatient. Had Qamar Zaman been a complete stranger, it would have been wholly out of place for him to mention to respondent No. 1, in Exh. P. 10, his own difficulties in not coming to sea her promptly. It is in evidence that eventually Qamar Zaman did come to Sialkot and did meet respondent No.

1. He admitted that he actually went to the house of respondent No. I but added that he took her to a hotel where they talked about the matter. In Exh. D. 3, she stated that, as a result of the parleys, Qamar Zaman assured her that the appellant would be back by the 30th April, and would come to Sialkot as his Regiment had been reposted at Sialkot. There was no more exchange of letters between respondent No. 1 and Qamar Zaman. Similarly, no letter was addressed by respondent No. I to the appellant at least none has been placed on record by the appellant. Similarly, no letter was addressed by the appellant to respondent No. 1 at least none has been placed on record by her."

21. Though the findings recorded above are based on relevant evidence and well supported by sound reasons but before us the learned counsel for the appellant referred to all the above-mentioned letters, in detail over again to show that the views as expressed by the Courts below did not flow from these documents. I have gone through these letters (viz. those written to and by Qamar Zaman) with the help of the learned counsel for the parties. I express my views as follows with reference to the relevant submissions made before us, after reproducing the relevant documents so far as decipherable. Re : Letter Exh. D/8 dated 1-1-1963, from Sialkot

22. This is a letter which is dated 1-1-1963, and was sent by plaintiff No. 1 from Sialkot to Qamar Zaman. It reads as follows.:

23. A perusal of the above letter will show that in it she has addressee him as her brother on more than one occasion and herself as his sister an c reminds him of his promise to come to see her and asks when will be not come. She narrates her difficulties and states that it is now a question of her honour and she is not prepared to accept any blame in that respect Here again she very squarely brings out, if it can be so put, that the baby in her womb is given by the defendant and instead he is putting the blame on her and was making efforts to get her killed. She stated that he had seen her so far as a sister but the question now was of .life and death. This letter depicts the betrayal of the defendant as compared to her own loyality, and completely involves the defendant with the parentage of the child in her womb and emphasises that the defendant should not behave the way he was behaving and that the addressee as her brother should get this matter squarely' settled instead of its being settled by Court of law. The letter nowhere shows that she was not a wife of the defendant or that he was not the father of the child in her womb. Instead of supporting the defendant it goes against him. The appreciation of this letter by the Courts below thus suffers from no mistake and their finding on the subject is quit in accord therewith. ?

24. The next letter is of eight days-later, i. e. 9-1-1963, Exh. I3./7. It reads as follows :

25. A perusal of this letter will show that plaintiff No. 1 has again addressed Qamar Zaman as her reverend brother. It emphasises on the addressee the importance of the situation and asks him to come to Sialkot. Learned counsel referred to various portions of this -letter which according to him showed that (i) she, had conceded that it was a matter of regret for her that the circumstances in which she was addressing him were a matter of shame for her ; (ii) that it was her fault that she could not remember the addressee during good days ; (iii) that she had lost the capacity to distinguish between a person who could be sincere to her and a stranger ; she had written "Alas I should not have ignored myself" ; "In my opinion respected father has also got some knowledge of it and he asked through letter to state as to when was he coming . . . . . "I am getting suspicious lest something else may happen. I was getting worried . I should know my destination". My relatives "uptil now only know this much that Shamim of her own has entered into a nikah, but nobody knows this is a blame on me. I have not done anything stealthily". Learned counsel submitted that if there had already taken place a formal marriage vide Exh. P/7 where was the need or justification for all the anxiety and fear expressed in this letter, and why were the epithets of shame and fault being used by her ; why was she pointing out that her father had come to know of everything when being a party to the marriage he knew everything already ; why was she stating that the assumption of her relatives that Shamim had herself married was a wrong and blameworthy assumption.

26. I have attended to the portions above mentioned, and in my opinion instead of supporting the case of the defendant they strongly go against him. Before analysing these portions the background of the case of the plaintiff] has to be kept in view and that is that the defendant had entered into a secret marriage without the blessings of his parents with plaintiff No. 1 and as he feared that his parents would be angry on that marriage therefore, he had desired that it should not be made public in those quarters and especially i In (if I can use this term) "Army Offices and Circles" where too he had not registered any information of that type according to. the relevant direction on the subject. But now the defendant had started showing a cold shoulder, and was contemplating a second marriage--(as D. W. 5 has deposed that h was betrothed with his second wife on 4-6-1962 and later married her on 22-11-1973)-whereas on the other hand she had conceived from the defendant and was in the family way. The defendant was not agreeable to disclose his earlier marriage in concerned quarters-(which obviously were his parent and "Army Office")-and though a kabinnama was there but that was probably not enough as is self-evident from the contest she apprehended to face-(as she has actually faced)-in such type of litigation. She was in these circumstances clarifying that the assumption that it was a marriage which she herself had gone through one sidedly was not correct and according to her she said "this is a blame on me" which means that the defendant was also a party to it. The reference on the little concern which the father of the plaintiff No. 1 had at that stage got was obviously the cold shoulder of defendant No. 1 despite the marriage and consequent conception and his act of not coming to attend to his' responsibility which obviously was a great shock to her as she had chosen the match herself and would also be a shame to her father. This will show that the appreciation of this letter as made by the Courts below is fully supported from its comments and context and calls for no interference especially when it suffers from no mistake of any kind.

27. Re-letter Exh. P/10, dated IS-1-1963.-This letter was written by Qamar Zaman (D. W. 5) and reads as follows :

15-1-1963

28. This letter shows that he considers Mst. Shamim Firdaus justified in expressing the feelings she had expressed in her previous letter and said "that in difficulties a Person brings various types of thoughts in his mind ; you are not to be blamed for this ; probably your think less. If there were anybody else he would have far more". This letter acknowledges the letters of Mst. Shamim Firdaus and notes that it contains no refutation of the plea of mutual nikah--(and not one sided nikah)--mud no refutation of the plea? that the baby in the womb of the lady was of Sher Afzal. It sends salams to the father and mother of the lady. If he was not in the picture why should have he sent such compliments to them. 29, Re-letter Exh. D/6 dated 2-3-1963 from Sealkot.--This letter reads as follows :

30. This letter shows that she addressed Qamar Zaman as "dear Bhai Jan". It also stated that she had of her own taken admission in Mission Hospital, Sialkot, with effect from 20-3-1963. Learned counsel argued that this destroys the case of the plaintiff in her oral deposition where she stated that it was Qamar Zaman who had paid for the Hospital expenses. There is nothing in this letter to falsify that statement on the aforesaid subject. It was then argued that she had not taken admission in C. M. H. (Sialkot) despite her father's suggestion because as put by her , Learned counsel argued that if she was appellant's wife what, she had by getting herself admitted there. The answer is not far to seek in the whole background of the case, as is evident from the discussion which has hereinbefore proceeded. The appellant had kept the marriage secret and had not made any declaration or registration about that in the army quarters. In these circumstances if she felt some embarrassment in getting admission in C. M. H. that was but natural. However, the learned counsel has failed to notice, as is evident from this letter, that Qamar Zaman had sent her an Eid Card. If she was a stranger to the family and had no connection with the appellant and was rather a lady who was allegedly thrusting herself on the brother of the addressee, why was an Eid Card sent to her. It further shows that the father of the plaintiff fully well knew the marital relations of the spouses and that is why that he suggested to her to take admission in C. M. H. because otherwise how could have he made any such suggestion. In this letter she is blaming her luck. Learned counsel submitted that this shows that there was no marriage. The argument, with respect, is misconceived. If the husband has turned out to be a deserter what else should have she done or said if not blamed her luck. It was further argued that this letter showed that she was not looking forward for a visit of Qamar Zaman, and if later on she stated that Qamar Zaman went there to Sialkot, then that statement of her is false. . The contention has no force. If she is not forcing Qamar Zaman to come, it does not mean' that Qamar Zaman could not have gone there. He had sent her an Eid Card few days earlier, and later if he also paid a visit to her, the- present letter does, not show that that visit was either an improbability or an impossibility in any manner.

31. Re-letter D/5 (undated) from Sialkot.--It reads as follows : --. Sialkot

32. The contents of this letter are quite clear and significant. They show that she has levelled a direct accusation against the appellant that had planned to get her murdered by asking her to go to Karachi during the days of pregnancy and she is bringing it to the notice of the brother of the appellant. It also shows that she desired to have face to face talk with to appellant. I do not find any refutation of this charge from the side of Qamar Zaman, nor anything of the kind which may suggest that she was an utter stranger to him or his brother. The letter is suggestive of existence of clear relationship between her and the appellant and it may be. reiterated that it is nobody?s cast that that was a relationship of sin. It makes mention of mediator "Nazir Sahibs" whom the defendant sent to her with some messages, However, the defendant did not produce him to throw light on the types o messages he sent and the stand taken by him at that time.

33. Re-letter marked "2" dated 7-,10-1962.--This letter was written by Qamar Zaman on 7-10-1962. It reads as. follows : 7-10.62

34. D. W. 5 denied to have written this letter. However, the Courts below have attended to it and in their view it was written by and was in the handwriting of D. W. 5. 1 have already quoted the relevant passages from their judgments in that respect. I have no ground to differ from them on the subject. This letter is very significant. It concedes the existence of very thick relations between the parties and renders an advice that it is not justified to quarrel on trifles. As the contents of this letter have properly been attended to and commented upon by the Courts below I need not do that exercise over again.. I have attended to the relevant findings in this respect and I find nothing wrong in them.

35. If in the face of the above letters the position of Qamar Zaman D. W. 5 is examined it will be as clear as day that his pretence in Court that he was not concerned about or connected with the marriage of 12-9-1960, is baseless. The letters fully connect him with the whole show and his deposition to the contrary is not correct. In this correspondence the lad has duly pleaded mutual Nikah and also the fact that the baby in her womb was that of the defendant. These pleas of fact were not refuted by this D. W. in any of his letters. The conclusions drawn by the High Court in the circumstances were not such which could not have .been drawn and as such the factual finding recorded by the High Court cannot be said to be based on mishading or misconstruction of evidence. The above evidence and letter do not in any manner successfully rebut or falsify the direct evidence o marriage and rather strengthen the case of existence of a matrimonial relationship between the defendant and plaintiff No. 1 as is evident from the various relevant aspects highlighted by the Courts below on the subject. I have used the word "matrimonial relationship" as distinct from a "relationship of sin" because that is not the plea of any of the parties and as such obviously the Courts cannot-make out a case which none of the parties pleads. To excuse repetition neither the defendant nor D. W. 5 has been able to show that on 12-9-1960, D. W. 5 was in Bannu and in this respect the direct evidence of his being present on that date in Sialkot on the eve of the marriage of his brother remains unrebutted on the record. One strong factor which further goes to support this view is that blood being thicker than water, and as has been borne out from the record wherein he has supported his brother it could very well be visualised much in advance that if at all Kabin Nama Exh. P/7 was to be forged then in the very nature of things the name of Qamar Zaman at least should not have been put therein, because, being brother of the defendant he was to be the first person to disown and deny the same and give a direct blow to that document. On the other hand the fact that his name is there shows that Kabin Nama Exh. P/7 is a genuine document and despite his expected opposition the plaintiff was obliged to produce the same in Court for its open scrutiny and adjudication. I confronted the learned counsel for the defendant/appellant with this aspect of the case but he had no answer except that it was the choice of the person or persons who forged that document to explain as to why they put his name therein Obviously this submission does not explain the circumstances highlighted above. All this discussion will show that the view of the High Court regarding Qamar Zaman is fully borne out from the record and cannot be said to be arbitrary in any manner and calls for no interference by this Court. Re-alleged different description of plaintiff No. 1 and plaintiff No. 1, in certain Passport applications.

37. Learned counsel for the defendant/appellant argued that plaintiff No. 1 filed an application Exh. D/15, dated 22-5-1962, for obtaining an Indian Passport No: PSC-743128, in which she described herself as wife of one Ch. Abdul Majeed son of Ch. Wazeer Khan, Tehsil and District Sialkot and which passport she received vide receipt Exh. D/15-1, dated 10-9-1962, on behalf of or on the asking of her so described husband. The particulars of thi3 application are attested by one Capt. M. T. Chaudhary. Learned counsel on the basis of the aforesaid argued that these documents are- clear proof of the fact that Mst. Shamim Firdaus was wife of Abdul Majeed and Adrian Afzal was son of that Abdul Majeed. I must say, that I am not impressed about the genuineness of these documents and the pleas for various reasons. The defendant has not produced the aforesaid Abdul Majeed who is the principal applicant of that passport to prove the relevant' application or the passport. In the trial Court the defendant summoned rather the real wife of Abdul Majeed . but then gave her up. Similarly Capt. M. T. Chaudhary who is alleged to have attested the entries and particular.3 of the relevant application has also not been produced. In cross-examination a suggestion was put to Mst. Shamim Firdaus that. on 30-8-1963, she had gone to India alongwith that child which was denied by her in all respects, when she replied that she neither applied for nor obtained any such passport . and nor ever went to India. Learned counsel repeated his assertion before us during arguments but I must say that it appears to be palpably false because plaintiff No. 2 on the date of the main application, viz. - 22-5-1962 was no m the land of the living inasmuch as he was born on 21-3-1963. Again .at the time of the birth of the child and even before that as discussed in another part of this judgment his parentage in writing-(in various letters) had duly been fixed and attributed to the defendant with great persistence on the pa of the child's mother. In this context the suggestion that on 7-5-63, 1. e. within less than two months she Would have changed the parentage of the child cannot be comprehended, particularly when the matter had already been taken to a Court of law by means of an application under section 488, Cr. P. C. which was instituted on 9-4-1963, for claiming maintenance of the child from the defendant. (See Exh. D/71). The handwriting expert Mr.! Nomani was produced to prove the signatures of Mst. Shamim Firdaus as a recipient of that passport. However, as earlier observed the expert evidence produced in this case by the parties for the various reasons already given by all the Courts below is not worthy of any reliance. In the chart of arguments prepared by the defendant he submitted that "entry of plaintiff No. 2 in the relevant column is dated 7-5-1963," which if read with the statement of the defendant indicates that the case of the defendant was that this was made by Abdul Majeed and not the plaintiff. This makes the situation all the more worst because there is no application of Mst. Shamim Firdaus for correction of any passport and at least none has been produced. All the Courts below have attended to this evidence and have not found it genuine or trustworthy. The High Court dealt with this matter very analytically in some detail and its view is quite sound based on proper appreciation of evidence and the attending circumstances. I endorse the same and have also added my own comments. There is not an iota of evidence to show the going of Mst. Sbamim Firdaus or of any child (Adrian Afzal) or with Abdul Majeed to India. Learned counsel in this respect wanted to refer to the deposition of Ghulam Hussain (D. W. 2) a clerk of the Passport Office but in view of the inherent fallacies of this plea as highlighted above and for the reasons given by the Courts below his testimony cannot be accepted. It may be further pointed out that no such plea was raised by the defendant in his written statement and I really wonder how the civil Court allowed evidence to be led about it. - Be that as it may the plea appears to be totally false and is hereby rejected.

38. The next document on the subject of the different description of the plaintiff. to which learned counsel referred is an attested copy of an application of the plaintiff Exh. D/13 for an International. Passport No. 85301, dated 4A-1964. In this application she is allegedly described as a "divorcee" though the child mentioned therein is shown as Adrian Afzal (born in 1963). The attestation of entries and guarantee in this application is alleged to have been made and given respectively by one Muhammad Nasurallah Malik. This document in one respect goes against the defendant inasmuch as it shows the child to have the name after his own name as "Adrian Afzal", the name of the defendant being "Sher Afzal", and corroborates with the name given to the boy at the time of his birth and also with the name given in complaint under section 488, Cr. P. C. already mentioned above on 9-4-1963. However, it is nobody's case that in that complaint case she described herself as a divorcee which will show that how could she so describe herself later in a passport application Exh. D/13, on 4-4-1964. Again the original International Passport was produced before and examined by the learned trial Judge who in para. 14 of his judgment held that there in the name entered was "Mst, Shamim Firdaus" and she is nowhere described as "Miss" or "divorced" This explodes the complete myth of the argument advanced which was bases on making interpolations in the relevant papers after the issuance of than Passport. The evidence produced in my opinion m the circumstances does no succeed in establishing that any other person and not the defendant was the husband of plaintiff No. 1 or father of plaintiff No.

2. At this place I ma refer to the deposition of the defendant himself as his own witness of page 1003 of the civil Court file wherein he stated that he had according to him, for the bust time learnt -on 3-8-1963, when she made application Exh. D/3 to the Commander that she was claiming herself to be his wife and the child as his child from her. This statement is not correct because as disclosed in another part of this judgment the parentage of the child bad already been attributed to him far earlier. However, , for the present confining myself to the Passport- Application under discussion, it is obvious that in this context the question of her later on describing herself to be a "divorcee" obviously does not fit in the whole context. The matter has bee attended to by the High Court very elaborately and it has found that the word "divorced" in the relevant application seems to be a later interpolation and insertion. It is nobody's case that Mst. Shamim Firdaus was divorced bb] Sher Afzal or by anybody else, and if so, then who he was; when was shed married to him and where. In the absence of any such plea to build a ca s merely on some surreptitiously interpolated and added words in the Passport Application under discussion was not justified especially when this status of the plaintiff No. 1 was not pleaded by the defendant in his written statement. It appears that all such documents were perjured and prepare during the trial of the case to humiliate and bring bad name to the ,plaintiff as held by the Courts below. Re :Incident of 20-9-196Q

39. The next event seriatim to be mentioned is an incident which took place on 20-9-1960, and that is, that on that date Mst. Shamim Firdaus reached the Military College, Serai Alamgir, with some bananas to meet Sher Afzall who was staying there in bachelor's wing, where no girls were permitted to go or to meet arty cadet. Consequently objection was taken to her having entered those permises, which was coincidentally followed by a police raid. At that time Sher Afzal was contacted and asked about the presence of Mst. Shamim Firdaus in his quarter/bungalow--(whatever it may be called). He stated that she was his "fiancee" who had brought some bananas for him which were sent by her mother. The concerned officials wanted to record a statement of the" girl but Sher Afzal did not permit that to be done. The news reached higher-up on which some inquiry was initiated in connection with which Sher Afzal gave a reply in the ,form of Exh. P/l, wherein he reiterated the same position. These facts are broadly admitted by both sides. The Courts below attended to all the facts and relevant circumstances of this incident in the light of the admittedly very thick relations of the parties and came to the conclusion that the description at that time given of the girl as a "fiancee" was an under statement on the part of Sher Afzal-(or as a matter of fact on the part of both of them) and that actually their marriage had already taken place, and the word "fiancee" was used to keep that marriage as agreed to by the parties secretive from the army quarters or circles, because, under Army Disciplinary Instructions an officer was required to inform in advance about his contemplate marriage with particulars, and as deposed to by P. W. (S. S. P.) Tareen, the probably existed an age bar also in that respect. The conclusion drawn by t three Courts below is not such which was neither probable nor possible. .l have again attended to this matter very dispassionately, and am of the opinion, that there existed no legal ground to take exception to this finding, and I feel that on the contrary there exists other evidence also for its support and correctness and that is, that in the letter Exh. P/34 dated 13-9-1960, the defendant had himself invited Mst Shamim Firdaus and others to come to him. In that letter-(quoted and discussed in para. 15(h) herein)-the had expressed joy and thrill by saving "and formal approval. Was given" which I have while discussing that letter heremuetore held mat, in the context it referred to approval given by the father of the girl to the marriage on 12-9-1960. Coupled with this are the expressions of the defendant in that letter which was sent to Shamim Firdaus on her office address in Lalamusa, stating "you must be feeling quite a bit change on your return from home", which change. I have held was no other than a change by her having undergone a marriage; and to excuse repetition, the last portion of the letter, which as discussed earlier had reference to such incidents which normally take place on a marital occasion. Mr. Tareen (S. S. P.) whose statement was recorded on interrogatories while deposing) this incident stated that the parties had approached him for help in that respect and that the father of the girl had told him that the defendant was the husband of Mst. Shamim Firdaus. There is no justification to disbelieve the aforesaid witness who has no animus against the defendant and whom the defendant himself also approached as deposed to by him for help. The finding recorded by the Courts below regarding the position and implication of the incident above mentioned thus appears to be quite sound and befitting in the overall context and cannot be taken exception to.

40. Next in the series of the important events in the form of letters are (a) Exh. D/47, dated 24-2-1961 and (b) Exh. D/51, dated 1-7-1962, which is to be read alongwith its reply Exh. P/12. As these have been dealt with separately in the relevant context ahead, therefore, I postpone their discussion for the present to other pages of this judgment though I may mention ink passing that in these letters, the marriage and the parentage of the child is squarely brought home to the defendant, who sent no reply in refutation thereof. Examination of Exh. D-3, dated 3-8-1963

41. Now I come to Exh. D/3, which is an application or complaint which was submitted by plaintiff No. 1 on 3-8-1963 to the "Divisional Commander Division 15 Sialkot". This application extends to 13 full scape pages and gives a graphic picture as to how the relations of plaintiff No.1 and the defendant started and through which stages they passed. It states that she is the wife of the defendant from whose wedlock she has a son toy whom she gave birth in the Mission Hospital Sialkot on 21-3-1963, but ofd late he had started defrauding and deserting her. It is not understood as to why the defendant produced this application because virtually it goes through and through against him. However, the learned counsel for the appellant wanted us to note a few portions of this application (which he has tabulated in his written arguments). I deal with the same as below :-- (i) It is submitted that in that application plaintiff No. 1 had stated that one Major Masood Ali Khan of grid Baluch Azad Kashmir had written to her father that Sher Afzal was playing a fraud with him. It was argued that Major Masood Ali Khan was never produced as a witness. The objection is misconceived because if the defendant wanted to take exception to the contents of this application he could have easily called Major Masood Ali Khan, and if he failed to do so be cannot blame the plaintiff for the same, because, as stated earlier this document was produced by the defendant and it was for him to see as to how to get out of the same, because, so far as the plaintiff was concerned it supported her in this respect that as far back as the date of this application her case was the same as today , viz. that she was wife of the defendant. (ii) In that application she had stated that on his return from Rawalpindi the defendant came to her on the evening and had a coitus with her on the night of. 2-6-1962 and the next morning left for Dacca. In this respect she is supported from her letter Exh. D/51, dated 2-7-1962, in which she told all these details to the defendant and stated that actually her last menstruation course had stopped on 30-5-1962. After he left, it was added she fell ill, and then (after 6 days) showed herself to a Lady Doctor Ghulam Fatima of Lady Aitchison (Hospital), Lahore. It was argued that the pregnancy by the plaintiff No. 1, could not have been conceived or detected so soon within three/six days of the alleged coitus with the defendant because such an early conception or detection according to the medical science was not possible. It was further argued that according to plaintiff No. 1 she had a coitus with the defendant on 2-6-1962 about three days of stopping of her last menstruation, It was accordingly submitted that from medical point of view a coitus on third day after stopping of menstruation could never result in conception and therefore from that point of view also the claim of the plaintiff No. 1 was not maintainable. The plea raised has no force and cannot be accepted for various seasons and nor can he escape his liability, if I can so observe, by such technicalities. Firstly it was not raised as such in any of the Courts below and cannot be allowed to be urged for the first time in this Court. Secondly no evidence of medical science was led during the course of the trial and no expert doctor was produced as a witness to depose on this subject. Thirdly the plaintiff No. 1 appeared as her own witness and she was not asked as to how she conceived and then detected so soon that she had conceived though indications to this effect are clearly mentioned in her letter(s) that after the defendant left she had a very sound sleep, and even thereafter in the days to follow (see letter Exh. D/51, dated 2-1-1962). Obviously, in the absence of any question on the subject having been put to her, the point even otherwise cannot be taken up, inasmuch as a lot in this respect would depend upon her health and other relevant circumstances etc. for which no material worth the name has been placed on record to justify the point now sought to be urged. Fourthly it all depends upon a woman and a woman and many other attending circumstances and I do not think that any universal rule in this respect can be accepted without first bringing all the relevant data on the subject on the record which the defendant failed to do. Woodroffe and Ameer Ali in their Law of Evidence 11th Edition, Volume 111, published by Law Book Co,. Allahabad, at page 2161 state that "In some cases the union of the ovum and spermatozoa may occur within a few hours after intercourse; in others, it may not take place for a number of days." Fifthly the point even otherwise is of not much importance because if the marriage between the parties is accepted as having taken place on 12-9-1960, then the birth of a child after that date when parties had opportunities of "seclusion" and "meeting" will be sufficient to bestow legitimate paternity to the child as having been born during a subsisting wedlock. Sixthly it may be pointed out that in this respect the defendant was in no darkness. It was as far back as 2-7-1962, when by letter Exh. D/51 of that date the plaintiff No. 1 informed him that her last menstruation started on 26-5-1962 and ended on 30-5-1962; that they had a coitus on -6-1962, and she got conceived with the result that her menstruation which was to come on 20-6-1962 did not come. In that letter plaintiff No. 1 further told the defendant that the child in her womb was as stubborn as his father, viz. the defendant. That was the proper occasion for the defendant to have at once written back to her that this was all a lie or a sheer concoction that any coitus or conception was being attributed to him and that any conception in that context could not have taken place. However, no such reply was claimed by the defendant even in his oral statement as having been sent by him, and no letter or copy of any such letter which may have been sent by him was produced. Rather by letter Exh. P/12, the defendant advised her to go to Karachi for treatment by his friend lady doctor mentioned therein. Further in Exh. D/54, dated 27-11-1960, plaintiff No. 1, wrote to the defendant/appellant that "For a woman one night's love is entire life's love and I have spent several nights with you." To this letter also the defendant sent no refutation. Here it may be pointed out that "Mere cohabitation of man and woman, or their behaviour in other respects as husband and wife always affords an inference of greater or lesser strength that a marriage has been solemnised between them. Their conduct being susceptible of two opposite explanations, the Court giving effect to the presumption of innocence (V ante) is bound to be moral rather than immoral."--(This is on the principle that law in general presume against vice and immorality) Woodroffe and Ameer Ali (Law of Evidence Vol. 111,-11th Edition, Commentary under section 114 of Evidence Act under the heading "marriage" page 2337. See also Mohabat Ali v. Muhammad Ibrahim Khan AIR1929PC

135. In that case it was further held that the law presume in favour of marriage and against concubinage, when a man and a woman have cohabited for a number of years--(in the instant case from 196 to 1962). We asked the defendant a specific question that if it had come to his knowledge through these letters that she claimed to have cohabitation with him or that she was claiming him as her husband and the boy as his son why did he not send any notice refuting all this. The reply of the defendant was-(if I can so state)-somewhat arrogant and he state that it is not laid down in any statute that any such notice of protest should have been sent. The question is not of making reference to an statute law of this type, but of expecting adoption of an ordinary court of conduct in a situation of this type which a Court can always look for under section 114 of the Evidence Act. In this factual state of affairs the plea now being raised loses all significance. As a matter of fact when the learned counsel for the defendant/appellant read letter Exh. D/5 making mention of all the aforesaid facts we. told him that he should no' down that the matrimonial relationship, coitus, conception and parental of child were all attributed to him and brought to his knowledge even before the birth of the child and he should be ready to meet this aspect the matter as to why he did not refute all these attributes at that tin and stage. He made a note of this subject to be attended to by him later but then gave no reply thereto or comments thereon. He also was confronts with letter Exh: D/47, dated 24-2-1961, where he was told that he was b husband but that also does not seem to have been refuted and no rep thereto was pointed out to us from the record. On the contrary we note that the defendant by letter Exh. P/12, dated nit advised her to go Karachi for treatment from his friend (lady) doctor which subject has already been attended to by all Courts below and dealt with by me at another part this judgment.? (iii) It was then submitted that in that application/complaint she had stated that the defendant had-been asking her (at page 452). It was submitted that the aforesaid talk showed that the defendant was disowning the marriage and the parentage of the child. I regret that I do riot accept this construction of the document but as much emphasis was put on these portions of the application and also because the defendant owned these statements as attributed to him but wanted to construe them in his own favour it is necessary to reproduce them alongwith the context in which they appear. On page 450 plaintiff No. 1 refers to a visit of the defendant first along with his friend Nazir Butt before whom she did not open up to talk freely. Both of them then left but the defendant again came after 10 minutes and this is what she writes ; The above conversation has a reference to a letter Exh. P/12, wherein he had suggested to plaintiff No. 1, who was ill

(in a family way)-to go to Karachi--(as she deposed on solemn affirmation)-which she did not comply with. This was thus to take her to task when she was told that if she had not gone to Karachi, she should now rear up the child herself. These words thus do not advance the case of the defendant to show that there was no marriage between them and that he was not the father of the child and rather when read with letter of the plaintiff Exh. D/51 the whole position stands exposed as above analysed and similarly the question of asking plaintiff No. 1 regarding proof of marriage in an oppressive manner speaks for. itself and shows that in this way he wanted to check and find out whether-(if I can say so)-any set of Nikahnama was still with her. Here it may be pointed out that according to the plaintiff, the document was prepared in two sets ; one was kept by the defendant and one by the plaintiff. The defendant may have had his own reasons to find and trace out the whereabouts of that document, but the argument advanced does not improve his case in any manner. (iv) At page 452 then comes another passage which is very important and will be shortly reproduced. The background of that passage is that according to that application/complaint after the birth of plaintiff No. 2, the plaintiff No. 1 sent a telegram to the father of the defendant, whereupon Qamar Zaman (D. W. 5) brother of the defendant came and gave a present of a few rupees to the child and said that Sher Afzal will come back by the 30th April as his "Unit" from Bengal has reached Sialkot and that he i.e. Qamar Zaman will come to her by morning of 2-5-1963. According to his promise he came on the morning of that date, and took plaintiff No. 1 with him to Sher Afzal defendant and said . However, the thoughts of Sher Afzal were revolting who put questions of the kind, which she repeated in her application as follows : (v) This part of the statement of the defendant came under a good deal of arguments before us. The position taken up by the defendant o~ page 42, para. 18 of his written arguments is as follows :

That any averment in Exh. D/3 (p. 452) does not amount to acknowledgment or acceptance of paternity of plaintiff No. '2 by the defendant in view of the following points :- (a) That the defendant was not confronted with this document or with this portion of the document ; (b) That the defendant has not owned the child in any terms and a offer to help the plaintiff to save against blasphemous propaganda is not an acknowledgment, either express or implied. (c) That to save oneself from infame and public disgrace any promise of succour or education to the child does not amount to giving praternity, though at the most it may be an adoption to take responsibility for the said purpose. (vi) The answer to the first objection is that this document was produced by the defendant himself which meant that he himself relied upon the same and for that purpose got it admitted "in the process of admission and denial" from plaintiff No. I and then himself referred to the portion noted in point (iv) above in support of his case. In these circumstances the point raised at (a) above has no merit and is hereby repelled. This document in the relevant portion under discussion referred to a meeting of the two namely the defendant and plaintiff No. 1 and it may be pointed out that the factum of this meeting is not denied before us nor the passages attributed to him. It is only the meaning of these words which are being debated by the defendant. (vii) As regards the submissions at (b) and (c) the very nature of these points indicates that the defendant owns that conversation and tries to explain that what he said (as reproduced above) was "an offer to help the plaintiff" which he adds (was) "to save against blasphemous propaganda" and "is not an acknowledgement either express or implied" of the paternity of the child. He supplements this plea by raising argument at "c" reproduced above and is trying to put .the aforesaid conversation even as "adoption" for the purpose of "succour or education of the child" though he never made any statement while . appearing as his own witnesses that on occasion like this or others be had showed any attitude of the kind contained in the above passage. The plea now raised in the arguments thus appears simply to be a after thought to get out of the document which he himself put forward to advance his case. Furthermore even otherwise the plea of adoption is totally misconceived because it is well known, that there is no institution of adoption in Islamic Law. Here I must say that by putting forward the above-mentioned plea and the document the defendant has involved himself in a very serious situation. For appreciating the true import of this talk of the defendant, we asked his learned counsel as to what was the position and stand of his client. Were the relations of plaintiff No. 1 with him as that of mistress, a keep or a concubine with whom he was having illicit intercourse or indulging in adultery. His answer was emphatically in the negative and he submitted that this was not his plea in his written statement, either, and how could he now put it forward In these circumstances a question then arises as to why was the defendant prepared to take over a child with whom or with whose mother he had no connection or relationship whatever. He had married a second wife on 22-11-1963, with whom he claims he was betrothed on 4-6-1962. He had not lost hope of getting children from the new wife.--(We were told that he has children from the new wife).-Why should have he therefore, at that young age thought of adopting a child, or taking over the lifelong liability burden for himself of nourishing, supporting and educating him and make him a and his relatives and others. Connected with him in the Some from or the other. If he suggested that it was to save blasphemous propaganda the taking over of the child in the context would not have stopped it but would have rather increased orb --tinned by retention of the child in his own house and at the same time not owning the mother of the child as his wife. This would not have advanced his status, position and prestige in any manner but on the contrary would have , involved it further and brought it down in the reverse. The explanation for the passages above reproduced therefore, does not hold water and the true position which emerges is that the above passages go a long way to show acknowledgement of the paternity of the child and bring the real state of things out, namely, that the defendant was the real father of the child, and if read with my earlier finding, that there existed a matrimonial relationship between him and the mother of the child, it will show that he was his legitimate offspring. Placing the above passage even at their lowest against the plaintiff and their highest in favour of the defendant, they show that the defendant definitely had a "relationship" with the plaintiff No. 1 and as it is no body's case that they were carrying on an illicit relationship or leading a life of adultery, a Court of law cannot set up a case which is not pleaded by an party and will rather be justified to hold that the aforesaid relationship was marital and the child was a lawful child of the defendant. (viii) In Fazeelun Beebee y. Omdah Beebee (1868) 10 Suth. W R 469 at page 474 it was laid down that "when a man acknowledges a person to be his daughter, he must be taken to mean his legitimate daughter unless contrary appears" This case was cited with approval in Sadik . Hussain Khan v. Hashim Ali Khan and others 43 I A 212 (P C) where on the facts of that case, their Lordships observed, "now four persons have proved distinctly that Nawab acknowledged him to be his son. That prima facie means his legitimate son", and quoted the case hereinbefore mentioned in support thereof with approval. Similar view was expressed in Muhammad Allahadad Khan and another--v. Muhammad Ismail Khan and others I L R 10 All. 289 where Edge and Straight, JJ. held that "The rules of the Muhammadan Law relating to acknowledgement by a Muhammadan of another as his son are rules of the substantive law of inheritance. Such an acknowledgement, unless certain impediment exists, confers upon the person acknowledged the status of a legitimate son capable of inheriting. "Where there is no proof of legitimate birth or of illegitimate birth, and the paternity of a child is unknown, in the sense that no, specific person is shown to be the father, then the acknowledgement of him by another who claims him as a son affords a conclusive presumption that he is the legitimate child of the acknowledges, and places him in that category. Such a status once conferred cannot be destroyed by any subsequent act of the acknowledges or of any one claiming through him. "Mahmood, J., on the subject expressed his views to the same effect by holding that "although, according to the Muhammadan Law, ikrar or acknowledgement in general stands upon much the same footing as an admission as defined in the Evidence Act, acknowledgements of parentage and other matters of personal status stand upon a higher footing than matters of evidence, and form a part of the substantive Muhammadan Law. So far as inheritance through males is concerned, the existence of consanguinity and legitimate descent is an indispensable condition precedent to the right of succession, and such legitimate descent depends upon the existence of a valid marriage between the parents. Where legitimacy cannot be established by direct proof of such marriage acknowledgement is recognised by the Muhammadan Law as a means whereby marriage of the parents or legitimate descent may be established as a matter of substantive law. Such acknowledgement always proceeds upon the hypothesis of a lawful union between then parents and the legitimate descent of the acknowledged person from the acknowledger, and there is nothing in the Muhammadan Law similar to adoption as recognised by the Roman and Hindu systems, or admitting of an affiliation which has no reference to consanguinity or legitimate descent." At this place I may also refer to another passage of Mahmood, J. on page 337, where he stated "and it is important to observe that in the very text with which I am now dealing it is expressly indicated that an acknowledgement of parentage is ineffective if accompanied by an intimation that the acknowledged off spring was the result of an illicit intercourse. The words of the text are :-"if he says that the child is born of me by illicit intercourse, the descent is not established and he will not inherit from him". See also Mst. Hamida Begun v. Mst. Murad Begun and others P L D 1975 S C 624. (iix) Judging the acknowledgement under discussion in the instant case, it is not accompanied by any such intimation that the parties were carrying on an illicit relationship and as emphasised earlier the defendant has not taken and is not prepared to take up any such position. Even before us that is not the case of the defendant/ appellant. In these circumstances the acknowledgement and the overall context above mentioned is a very significant factor to support the plaintiff's case. Some arguments were addressed before us that the passages above quoted were not an acknowledgement stricto senso ; that it was not pleaded in the plaint ; nor deposed to as such by plaintiff No. 1 in her deposition ; that acknowledgement theory was applied where direct proof of marriage was not put forward but as in this case the plaintiff led direct proof of marriage the case should be decided in the light of that and that evidence alone and the above passages should not be taken into consideration. I have attended to these pleas and the short answer is that it was the defendant who put forward Exh. D. 3 in evidence and relied upon the passages aforesaid in support of his case. However, when he has now seen the rigour of his own words he has tried to wriggle out of the same by advancing the types of pleas which I have not accepted. The above passages in my opinion, throw a great deal of light on the conduct of the parties ; their relationship and dealings with one another, and even from that point of view, would go against the defendant as they highlight the position of the parties at the time relevant in that behalf, Without intending to attempt any repetition, the document (a) like Exh. P. 34 letter of defendant dated 13-9-1960, (b) the incident of 20-9-1960 and the position taken therein, (c) the statement of S. S. P. (Tareen), (d) the letter of the plaintiff No. 1, Exh. D 47, dated 24-2-1961, (e) the letter of the plaintiff Exh. D. 51, dated 2-7-1960 to be read with its reply Exh. P. 12, (f) the correspondence with Qamar Zaman and (g) and the other correspondence and conduct in general-(all referred to elsewhere for the purpose of their proper consideration)-lend direct and circumstantial support to the finding above recorded as justifiably held by the High Court. As earlier mentioned there being a history of consistent cohabitation between the parties extending over a period of two years or so from 12-9-1960 onward, the knowledge of the neighbours and . the parents of the girl, the knowledge of those to whom they were known as S. S. P. Tareen, all these factor can legitimately be relisd upon for raising a presumption of marriage between them, which presumption not having been rebutted in any manner remains operative in the field and proves the case of the plaintiff' particularly when D. W. 5 Qamar Zaman also did not refute parentage of the boy when so attributed to the defendant in letters addressed to him i. e. D. W.

5. Re : Correspondence between Plaintiff No. 1 and the Defendant

42. Raja Muhammad Anwar learned counsel for the appellant submitted that there has taken place a lengthy correspondence and exchange of letters between the plaintiff No. 1, and the defendant but the High Court has not drawn correct inferences from that correspondence nor appreciated the same properly. The High Court has referred to that correspondence at different places in the relevant context and I have gone through the same carefully particularly from paras. 21 to para. 38 (pages 358 to 380 of the paper-book). 1 find that the appreciation of that evidence was perfectly in order and there exists no reason to differ from the view of the High Court in that respect, which was recorded after perusing the relevant copious letters and their critical examination and analysis. The High Court in para. 38 of its judgment then observed :- . "The point that requires determination is whether;- (a) the appellant and respondent No. 1 were married on the 12th September, 1960 to June, 1962, continued to behave as husband and wife, or. (b) they had only intimate relations of sin." The pledge to confirm to the pledge of katcha pitcher was merely anamorous assurance of two lovers (married or otherwise). It did not necessarily negate the tie of legal marriage. Respondent No. 1 in the letter Exh. D. 51, expressed her determination not to deliver the child of sin. It did not necessarily indicate that the child was conceived in sin-out of the wedlock. Respondent No. 1, who felt that she had been thrown down from the high pedestal and can no longer command the high esteem of love, was not prepared to recognise that after this disunion in love, they should continue to remain united in the biological world through her child in the ashes of love even this cinder was unbearable. It is remarkable that these disparaging observations were made by a soul in anguish, that is to say, at the fag end of their career as lovers. In order to determine whether there was a marriage on the 12th September, 1960, attention is to be focussed on the period immediately following the 12th September, 1960. As seen above, from September, 1960, to June, the mother of respondent No. 1, and other family members of respondent No. 1 treated the appellant and respondent No. 1 as husband and wife. They were accepted as such by their common friends.

43. When faced with all the aforesaid lengthy discussion which ended with the above conclusion of the High Court, the defendant in his chart of written arguments submitted that, the passages as contained in the relevant corresponding letters as quoted in his chart have not been taken note of, or properly appreciated in particular, by the High Court, due to which, according to him, miscarriage of justice has taken place. I proceed to deal with these;-- (a) Taking up Exh. D. 43 dated 22-9-1960, it may be mentioned that it was written by the plaintiff from her office in Lalamusa (and not from Sialkot). From the passage ,picked up by the defendant and quoted by him in his chart, he submits that a wife could not have written after eight days of her marriage the type of things mentioned therein. The comment is not well founded. In earlier portion of this letter she mentions that she had been waiting for the defendant who had not come and yet he was feeling angry with her. In this context she then quotes a couplet the theme of which was that a beloved was asking her lover not to be angry as she will not do any mistake in future.. She then makes mention of the situation prevalent in her office and states that why should office people focuss their discussion on them f. e. defendant and plaintiff: There is nothing in this passage to warrant comment of the kind made by the defendant. ?(b)? As regard D. 44, dated 26-9-1960, this is also written by the plaintiff from her office (In Lalamusa). In the passage quoted in the chart, the plaintiff refers to a telephonic call which she received from S. S. P. Tareen, who assured her that she should not worry and the matter will be looked into. She further writes in this letter that she has obtained three days leave and then in the last sentences she states "The comments of the defendant are "Telephone from A. N. K. Tareen Khan and proceeding to stay with him "This is neither here nor there as S. S. P. Tareen was known to the father of the plaintiff: He has appeared as a P. W. on interrogatories. According to the plaintiff, after the raid of 20-9-1960, in Serai Alamgir, both parties sought his help. In that context she informs the defendant of the progress of the matter in these quarters. This passage rather supports the plaintiff's case that the help of that officer was sought and if later in his evidence he deposed that he was told by father of the lady that Sher Afzal was her husband, it goesto project the case of the plaintiff and not of the defendant in anymanner The emphasis on the sentence that " is rather a pointer towards their pious relations and not any sinful relations. As regards Exh. D. 45, dated 5-10-1960, this again is a letter after the raid of 20-9-1960, when probably the inquiries processed in that behalf by the Army Quarters and others, had not yet closed down, because, formal reply in that connection had been sent by the defendant to his high ups by Exh. P. 1 only on 23-9-1960. In the incident of 20-9-1960 as the defendant had taken up the position that she was his fiancee, therefore, obviously she was making reference to that incident in the same terms i.e "Mangani", and consequent astonishment (of others) over such a relationship with an outsider. Learned counsel argued that if actually there had already taken place a marriage on 12-9-1960 then the surprise if any should have been over that marriage and not the "mangani ". Again he submitted that if father of the girl was a party to that marriage why should have he then quarrelled-(as stated in the letter)-with the mother of the plaintiff as to why he was not told anything. As regards the later part of these comments the surprise of the father can be understood with regard to going of the plaintiff to Military College, Serai Alamgir with the consent of the mother and as regards surprise of others over manganl" outside the family, if word "mangani" in this letter is understood as a convenient substitute for marriage--(as they chose to adopt it at the time of the raid on 20-9-1960)-then any writing indicating surprise of others over "mangani" really must be a surprise over marriage. And it is quite clear that this marriage was outside the family which obviously gave rise to consequent criticism from various quarters if any. This letter is quite detailed and its main focuss is the incident and raid of 20-9-1960 and should be read in that context and should not be detatched from the same. Again it is nobody's case that parties had entered into any "mangani" therefore, from this point of view the aforesaid word "mangani" was a substitute used for marriage both in the official inquiry and the letters of the parties inter se who very well knew as to what it really meant. Because otherwise, at once the reply of the defendant would have been where is that "mangani" and when, how, and where was it performed. The aforesaid strategy which was at that time adopted by them thus fits in with the case of the plaintiff that the marriage was to be kept secret from certain quarters and that is why that in letters too she was referring to it in its agreed disguised form or name. The defendant himself having agreed to such a terminology could not now exploit it by saying that why she did not use the word "marriage" instead of "mangani" in this letter. Had that been done then that would have destroyed the very strategy which was adopted by the parties at or after the raid to wriggle out of the disciplinary violation on the part of the defendant or both. The point raised by the defendant is hereby repelled. (d) As regards D. 46, dated 9-12-1960, objection is being taken as to why she wrote in this letter that she had some talk with Naseem (mentioned therein). According to the defendant this showed her friendship with Naseem Gul. The point is neither here nor there as it has no relevancy to the marriage of the parties or the defendant being father of Adrian Afzal. It is just an objection, for objection's sake. (e) Taking up Exh. D/47, dated ?4-2-1961, from the passage quoted . in the chart the defendant makes a point that it shows that? up to 24-2-1961, there could be no marriage. The passage quoted by? the defendant in his chart, I am sorry to say is incomplete and? misleading. On checking with the original I found that it contained a? further sentence also viz. : This passage makes all these attributes to the defendant which were the subject of adjudication before us, and to say that she nowhere described him as her husband is not correct. This is much before any controversy regarding their relationship had arisen and has a great evidentiary value against the defendant. He produced nothing to show that he refuted this relationship or sent any reply to this letter denying all these attributes. (f ) Regarding Exh. D/48, dated 28-2-1961, it has been stated that it shows connection with Tareen (S. S. P). The comment made is neither here nor there.. Tareen has appeared as a witness on interrogatories and has deposed that the parties sought his help with regard to the incident of 20-9-1960, and that he was told by the father e of the girl that the defendant was her husband. He seems to have no motive to attribute that status to the defendant and his evidence has great value on the subject as to how the people in general knew about the inter se relations of the parties. Such type of evidence for determining the said relationship is always important in cases of this nature. (g) Taking up Exh. D/49, dated 14-3-1962, with reference to the passage picked up by the defendant, it was argued that the plaintiff No. 1 was, according to that passage, "still not certain of her future, viz. (marriage with the defendant)". The uncertainty is, I must say, due to the prolongation of the period of secrecy for which obviously anybody would be inquisitive, as to when it would be lifted. It was then argued that in this passage she has described the defendant as ?KANWARA AUR BOORAH? which according to the learned counsel is a proof of the. fact that the defendant was till then a bachelor. It is a strange logic. I asked the learned counsel, then would the above words also mean that he had grown or was in fact old as stated therein. The learned counsel had no answer. These are passages, if I can say so, with reference to the traits of the character of the defendant who could afford various girl friends and in that context it was being mentioned that her own future should not be lost sight of. Though I am dealing with these passages but I must say that such like trivial points here and there are not sufficient to upset the effect of the voluminous direct or circumstantial evidence as highlighted above which speaks glaringly against the defendant. (h) With regard to Exh. D/51, it is argued that in that letter she had written that "you were hard-pressed for time but after all you did not accept what I said. What was the harm if you had stayed for one day". The comment offered by the defendant is that "the plaintiff herself denies stay of the defendant on 2-6-1962" with her. The passage picked up, I must say, does not come to the defendant's rescue and rather involves him through and through, because as commented upon by the defendant, if it relates to the visit of 2-6-1962, then it fixes the visit of that night of coitus on him and further status only this much that he should have stayed on more-(at least)?a day. This letter as discussed at another place attributes so many things to the defendant which he never refuted in any letter. It is a very damaging letter against him out of which he has not been able to wriggle out. It is the same letter which is to be read with Exh. P/12 as stated at various places earlier. (i) As regards Exh. D/52, dated 15-5-1961, it was stated that the passage quoted therefrom shows "she is longing to be united" I would say then what 7 Of course she would so desire ; if I can say so by desiring him to now lift or unveil the mask of the secrecy of the marriage in proper quarters. In this letter she had given the address of an illiterate cousin for correspondence through him. It was objected to as to why should have she done so if she was defendant's wife. These are their own arrangements and I must say that the point is too trivial to be given any serious credence. (j) It was argued that Exh. D/53 contains a passage which shows that she wrote that she did not consider herself qualified for asking anything from the defendant, and that according to her his happiness was enough for her and that so long she was to live she would live for him and not for herself. I do not know what is wrong in this expression of devotion on her part. It shows that she is fully devoted to him and has no desire of any other kind and would like to live only for him and him alone. She went to the extent of saying that she will not object even to his remaining single. What more selflessness should have a wife expressed or what more sacrifice should have she given 7 It is sad that after receiving such a devotion and after fully comprehending the same the defendant is trying to give it a twist and a different meaning. The criticism put forward by the defendant is totally misconceived. (k) As regards Exh. D/54, dated 27-11-1960, it is stated that in this passage she informed the defendant that she should not be forgotten?(more properly should not be given up).-It is being commented that only after 2J months of marriage a wife would not have made such an appeal. I must say that in the context of their relations which were so fresh at that time there was nothing wrong with expression of such a devotion and longing for the man. (/) Similar type of objection is being raised with regard to passages contained in Exh. D/55, dated 12-10-1960. The objection is too frivolous to be attended to. Same is the position of comments on Exh. D/57, Exh. D/58, Exh. D/59, Exh. D/60 and Exh. D/61. (m) As regards the passage in Exh. D/62, there is some difference of opinion. The date on the letter is

290. The High Court has held it is 2nd of September 1960. The comment of the defendant is that it is 29-12-1960. The plea cannot be accepted because the digits "12" do not exist on the letter. The defendant has tried to explain the date now with reference to envelope Exh. D/62/1 by contending that it was posted on 29-12-1960 and received by the defendant on 31-12-1960. Assuming without conceding that this is so, the point remains that in this letter she is showing her devotion and also drawing a picture of her marriage. The letter depicts their thickness and oneness in love with one another. (n) Exh. D/ 63 does not destroy her case. Similarly description "Miss Shamim" is immaterial so long as there was a promise to keep this marriage secret from certain quarters. It is quite consistent with her case. (o) As regards Exh. D/64, dated 8-2-1962, Exh. D/65, dated 2-12-1960, Exh. D/66, dated 16-5-1961, Exh. D/68, dated 23-9-1961 and D/69, dated 27-9-1961, when examined in the background of the secrecy of the marriage they too do not detract anything from the same. As regards Exh. D/67, the same has already been dealt with at another place earlier."

44. The sum total of the above discussion is that as held by the Courts: below these letters point out a secret oneness of the defendant and plain?tiff No.

1. These letters are full of pathos, affection and smiles drawn some. times in a poetic form and sometimes full of deep sentiments for one another. As it is nobody's case that the relationship was sinful, and as the background shows, it is all supportive of their matrimonial relationship and to put it to the extreme, does not destroy the worth of the direct evidence and rather in many respects and from various angles corroborates the same. Ultimate finding recorded by all the Courts below cannot be said to be whimsical, arbitrary or perverse in any manner warranting interference by this Court. And merely because the defendant does not feel satisfied with the finding of those Courts that is no ground to 'upset the same because a disgruntled and a hostile suitor would not be satisfied at all. I have done the onerous exercise of attending to each letter, because, it was argued that they have not been understood in their proper prospective. However, I must say that despite this careful and analytical scrutiny I could find nothing in favour of the defendant to upset the concurrent findings of the three Courts below. The High Court like me devoted considerable time and examined various documents in detail. I find no misreading in the views of the High Court on the subject in hand, and nor can its view be said to be improbable or impossible which in no circumstances could at all have been taken by it.

45. The defendant has similarly offered his comments to a few out of a big lot of letters written by him which were got exhibited by the plaintiff after their admission by the defendant as Exh. Ps. He has, however, offered no comments on his letters Exh. P/8 dated . 5-11-1961, Exh. P/9, dated 05-12-1960, (another) Exh. P/10 dated 21-9-1960, Exh. P/1 1, dated 17-12-1960, Exh. P/19, dated 14-5-1962, Exh. P/20, without date; Exh. P/21 without date, Exh. P/24, undated; Exh. P/25, dated 9-8-1961, Exh. P/26, dated 15-11-1961. Exh. P/27; dated 22-1-1962, Exh. P/29. dated 20-5-1961, Exh. P/31, dated 19-9-1961; Exh. P/32, dated 23-1-1961; Exh. P/33, dated 5-6-1961; Exh. P. 35, dated 22-2-1961, Exh. P/36, dated 11-3-1961 ; Exh. P. 37, dated 15-3-1962; Exh. P/38, dated 30-11-1960; Exb. P/39, dated nil containing family details of the defendant ; Exh. P/40, dated 4-3-1962 ; Exh. P/43, dated in 28-2-1961 and Exh. P/44 dated 9-4-1961. These letters are written from various places of posting of the defendant where he at the relevant time was stationed, viz. from Sialkot, Azad Kashmir, Rawalpindi, Military College Serai Alamgir, Jessore (East Pakistan), Dacca (East Pakistan), Nomal (Gilgit) and Kakul. They are all very passionate and affectionate letters, and as held by the Courts below the nature of the correspondence in the general shows that the defendant was very much enamoured of plaintiff No. 1, with life long promises of fulfilling the pledges of sincerity and oneness. All these letters, it will be noticed, are e of post-marriage period between the parties. There is not an iota of suggestion, at least, none was pointed out to us, that in these letters the defendant ever refuted that the nature of their relationship was different from that as expressed in letter Exh. P/34 dated 13-9-1960, wherein he had expressed satisfaction "as formal permission was granted" which as have held in the very context had reference to the then recent affair of marriage of 12-9-1960 (a) The only documents to which some stray comments have been offered by the defendant are listed in his chart of arguments. I proceed to deal with the same. Taking up in the order of the number of exhibits, the defendant with regard to Exh. P/12 has picked up the following passage in his favour therein, viz. Further you know it well that you cannot visit me. You know what had happened in Jhelum and you can imagine how much serious repurcussion it can have. That is next to impossible you can find me. Since you told me about your sickness, I have a friend who is a doctor and may look after you well." The only comment offered is that it was in reply to plaintiff's letter Exh. D/67, dated 4-5-1961. 1 have already repelled this submission in another part of this judgment and need not comment on it over again. Learned counsel submitted that in the above passage it was also stated by the plaintiff "that is next to impossible that you can find me". He says it was a clear indication that she was not his wife. The argument is baseless. The whole burden of the letter is to pursuade plaintiff No. 1 as not to visit his place of posting at that time. "(b) In letter Esh. P/22 dated May, 1961, the defendent refers to the following passage as written by him. To me as I said earlier, your letters are a company, if I do not get this form of company, well I can go without company . . . . , You are to choose the way you like . . . . . We are moving on certain unwritten laws and purely on understanding. I know you more and you know me too. We have been now thick for a considerably long time, hence all the more straight and clear." It has been suggested that the above passage shows that the defendant wrote letters merely for the sake of company pastime, and that it indicates friendship and an understanding only, and according to him, the marriage in this passage is ruled out. I must say that the inference drawn by the defendant as aforesaid is not correct and the passage above mentioned cannot be read to detract anything from a relationship of marriage between the addressor and the adressee. The passage shows that the parties are very thick and know one another quite intimately. The "unwritten laws and understanding" are unwritten promises as not to disclose the marriage in any army and other quarters, from which, it had been pledged orally by the parties. to be kept secret. It emphasises that their relations should remain straight and clear which I must say was a natural advice of a man to his wife. (c) Reference is then made to Exh. P/23, written from Jessore (East Pakistan) on 10-12-1961, wherein the defendant wrote that" I know you are free and unshadowed these days assure me you are not playing the game of love". The comment offered by the defendant is that "the defendant being at Jessore asks the plaintiff if she was playing the game of love with some one else." The answer is that how is this inconsistent with the existence of marital relations of the two. A husband could naturally and quite competently always ask his wife that in his absence she should remain devoted, careful, and should not go astray particularly when behind their relationship there is an history of love and achievement of one by the other and a marriage which would obviously require both of them to be straight and clear to one another. (d) In Exh. P/28, dated 24th June (year not given) the defendant has referred to the following passage: I write to you all because it releases my burden? your mother at times takes an optimistic view of our meeting each? other. I really do not try to be arrogant, but still some sort of? misunderstanding is taken. . . , , .. The defendant has commented on this passage as follows "The plaintiff's mother is hoping that the friendship of the plaintiff and defendant may culminate into marriage." The criticism of the defendant I must say is not well placed. The letter is undated and it is not known as to when it was written and from where. It makes no reference to and contains no details of the facts, talks, events'or actions about which any optimistic view was allegedly being taken by the mother of the plaintiff. The mother is neither a party nor a witness in the case and taking the comments of the defendant at their face value, even if at any relevant time the mother allegedly unjustifiably became optimistic, but later on that optimism, turned out to be true, as the parties got married, any adverse comment on the earlier optimism at some previous time is neither here nor there, especially when later on the defendant himself acknowledged in Exh. P/34 that "approval was given". (e) With reference to the rest of the letters-(and as a matter of fact of all his letters Exh. P/8 to Exh. P/44),-he has offered only one general comment on page 17 portion under (d) (2) that these letters had been written by him "in friendship merely to pass time". This is not correct. As discussed at various places of this judgment the relationship was not merely of friendship, but was of something more, viz. of friendship matured into a marital tie though its foundation was always to be traced to friendship indeed. (f) The High Court discussed this matter at various places as reproduced below on page

368. It held as follows:- "In letter Exh. P/30, the appellant wrote as below:- "I would like to share your company tonight, it is quite a few days past that we met in harmony. I would like to feel the softness of your breast, I want to feel the sizzing of your lovely fingers on my body, I want to feel the press of your beautiful round thighs, I want the warmness of your abdomen, I want to see a flow of passions in your lillied eyes and finally relax in your arms." in letter Exh. D/54, dated the 27th November, 1960, respondent No. 1 wrote as below: "For the woman one night's love is entire life's love and 1 have spent several nights with you." The appellant was cross-examined to state why he continued correspondence with respondent No. 1, when he had allegedly from the very beginning come to know that she was of immoral character. The answer was: "I carried on the correspondence only for the purpose of making psychological analysis. I wanted to see at what stage a sexual pervert expresses herself. I did not subject any other person to such experimentation. I am interested in psychology. So far I have not taken up a fresh case." (g) It is obvious the explanation of the defendant is ridiculous, and if he was entering upon an exercise of studying the psychology of a woman, then I must. say, that he sank too deep into it, and to take his study to its logical end he completed it by marrying the lady and in the bargain has now learnt that after marrying it is not so easy to escape the consequences thereof by taking up the plea of only being a student in that adventure. He appears , to think that as from this point of view this was also a part of his experiment, therefore, he could disown it, on the aforesaid plea. He has only to be told that law does not permit him to do so. (h) In Para. 32 of the High Court's judgment it was held as follows: "Do the letters on record indicate that the appellant and respondent No. I behaved as duly wedded husband and wife. The following extracts from the letter written by respondent No. 1 to the appellant deserve notice." The High Court then discussed Exh. D/62, Exh. D/44, Exh. D/45, Exh. D/57, Exh. D/54, Exh. D/46, Exh. D/47, Exh. D/52, Exh. D/66, Exh. D/60, Exh. D/53, Exh. D/61, Exh. D/64, Exh. D/49, Exh. D/50 and Exh. D/51. The High Court after referring to the relevant passages in the aforesaid context held that they supported the plaintiff's case and did not detract anything from the direct evidence of marriage. I find nothing wrong in the view taken by the High Court on the subject.

46. Another finding recorded and another aspect on which th High Court expressed its views was that from the conduct of the parties, their relatives and of those who knew them and the various correspondence which passed between them it was clear, that the appellant was behaving and was treated as a member of the family of Mst. Shamim Firdaus, which lend support to the only possible view that he had married her because such a conduct was indicative of no other type of his relationship with her. In this respect the High Court referred to (i) the letters of the appellant wherein he very often sent "salams" and respects for her mother and "pats" for her younger sisters. (ii) In one letter Exh. P/26, it appears that he was consulted whether the hand of Mst. Parveen younger sister of Mst. Shamim Firdaus should be given over to one Sajjad or not. The appellant stated that though he did not know much about him but he advised and emphasised that if the hand of the girl was to be given then straightaway marriage should be performed-(and no other preliminary ceremonies should be gone into and nor any time lag should be allowed. He also advised that in any case Mst. Parveen should not be allowed to loiter about with him before marriage, and similarly Mst. Shamim Firdaus should also remain at a distance from him and none of them should go to see any picture with him. Such like pieces of advice could have been rendered only by a close relation or a family member and not strangers or those who were just an acquaintance.

(iii) The High Court further held that from the conduct of the parties and even oral evidence led by plaintiff No. 1 it is manifest that the appellant was a frequent visitor to the house of the girl to the knowledge of all house-mates, particularly the mother and it cannot be imagined that a mother could be a party to all that intimacy between the parties unless they were married to one another. (iv) It was further held with reference to Exh. P/30, that the sceneric picture drawn by the defendant in his aforesaid letter, describing the way, style and manner he yearned to be lying with or in the company of Mst. Shamim Firdaus was indicative of existence of marital relations between the two and not a mere acquaintance or friendship or attempt to make a study of an alleged perversity of a woman. (v) The evidence of the S. S. P. Tareen who was known, to the father of Mst. Shamim Firdaus and who deposed that he was told by the father of the girl that Sher Afzal was her husband corroborates the aforesaid view. (vi) The sending of gift of bananas by the mother of the girl to Sher Afzal on 20-9-1960, at Serai Alamgir, and remittance of other things like sweets, sweater etc. by the plaintiff to the defendant at various far-off places of his posting was indicative of existence of some real relationship and not mere gestures of a simple acquaintance. (vii) Similarly testimony of the witnesses of Nikah who even after the Nikah saw the defendant in the house of the plaintiff and (viii) last but not the least the letters, posture and conduct of Qamar Zaman the real brother of the defendant points out clear existence of a marital relationship and not a relationship of sin or adultery. These are very strong aspects of the case and constitute a very formidable circumstantial evidence against the defendant. Neither the learned counsel nor the written arguments gave any successful rebuttal of all the aforesaid. A desperate argument which the defendant in frustration at one stage made regarding the status of the plaintiff and her relatives was that this was all a family of easy virtues. I can only observe that this was not fair and obviously cannot advance his case because instances are available when people of various types of virtues have been marrying one another and it is well established that such like marriages under Islamic Law are not illegal-(I have put the matter in very mild phraseology). But I would say why go so far. The short answer is that the stand taken by the defendant and his learned counsel was not in good taste, who did not appreciate that by saying so it was not being realised that in the aforesaid situation `with whom was the defendant then having all that love affair and whether was this plea in keeping with his own family, personal and official status. When I emphasised this aspect of the case in Court they just kept quiet particularly when I observed that was their intention to have a finding from the Court that the son was a result of an adultery (Zina), incest, o fornication of the defendant with the plaintiff, because the parentage of the child qua him- now stood fully established on the record. The reply was t that there was no adulterous relationship, and such a finding was not being 1f asked for. If this is so then the parentage, obviously was legitimate' parentage giving a further support to the existence of marital relationship because as laid down in Macnagthen's Principles of Mahomedan Law, and as! reproduced by their Lordships of the Privy Council in Khajah Hidayut Oollah v. Rai Jan Khanum ((1841-46) 3 Moo. Ind. Appl. 295 (P C)), at page 317 :- , "The Mahomedan lawyers carry this disinclination (that is against bastardizing) much further; they consider it the legitimate of reasoning to infer the existence of marriage from the proof of cohabitation-(of which there is ample proof in this case) .... None but children who are in the strictest sense of the word spurious are considered incapable of inheriting the estate of their putative father. The evidence of persons who would, in other cases, be considered incompetent witnesses is admitted to prove wedlock, and, in short, where by any possibility a marriage may be presumed, the law will rather do so than bastradize the issue." In. view of the position taken up by the defendant the matter, in my opinion, ends there though even otherwise after the establishment of a continuous cohabitation as has been found in this case, if any body wants to get out of the presumption that the cohabitation was as a husband and wife, the burden would be on him who alleges that the cohabitation was illegal or was as a concubine as held by the Privy Council in the above-mentioned precedent. In the instant case rather there exists copious proof direct and circumstantial to give effect to the above principle of Mabomedan Law on the subject, which inter alia, has duly been kept in view by me while deciding this case. The defendant has on his part miserably failed to disprove the said evidence and the inference as arising therefrom against him.

47. Before parting with this case I may state that the defendant-appellant during arguments and particularly while closing his address again, prayed for a remand of the case for leading additional evidence and for recall and also for further cross-examination of some witnesses. This, it is obvious, is an attempt to prolong an already exceptionally prolonged litigation which started over sixteen years back and which the defendant wishes to drag on for the rest of the life of the parties or for a considerable part thereof The effort seems to misuse the process of law for an ulterior motive. It is a well-contested case on the part of the defendant as will be evidence from its bulky record and various types of points and pleas and evidence led from his side. There is no justification whatever to allow the reopening of the case at this late stage.

48. The upshot of the above discussion is that the appellant has not been able to make out any case for interference by this Court on the relevant factual findings of the Courts below. The appeal has no merit and is dismissed with no order as to costs. ASLAM RIAZ HUSSAIN, J.--I agree. NASIM HASAH SHAH, 1.-I agree. E. A. H. Appeal dismissed.