1976 P Cr (PLP)

Advocate‑General for the State. Dates of hearing : 3rd and 4th June 1974. This criminal revision application calls in question the judgment delivered on 29‑3‑1971 by an Additional City Magistrate, Karachi, acquitting respondents Nos. 1 and 2 in respect of an offence punishable under section 494, Cr. P. C. By a short order, recorded on 3-6‑1974, I had dismissed the revision petition. I now proceed to give the reasons for the dismissal. The proceedings against respondents No. 1 and 2 were instituted in the Court of the learned Magistrate upon a private complaint. In that complaint it was alleged that the applicant herein had, on 15‑10‑1967; married respondent No. 1 herein, who was then a widow, but in February 1968; while the applicant herein was on duty, she ran away with respondent No: 2; herein, taking away ornaments and cash. It was further stated in the complaint that since then respondent No. 1 herein was living with respondent No. 2. were passing a sinful life and living in adultry. It was also alleged in the complaint that recently the applicant herein had come to know that the respondent No. 2 herein, despite the knowledge that respondent No. I was the legally wedded wife of the applicant herein and had not been divorced, had married her and she had become pregnant from respondent No. 2 herein. At the trial, the applicant herein examined himself and two other witnesses, by name, Yusuf and Bishambi. The applicant herein produced the Nikahnama evidencing his marriage to respondent No. 1. herein and repeated on oath the averments made by him in his complaint. His two witnesses. Yusuf and Bishambi, also supported him on the point that the respondent No. 1 had married the applicant herein and the applicant had not divorced her. In their 342 Cr. P. C. examination, neither respondent No. 1 nor respondent No. 2 specifically denied that they were married to each other or had gone through a form of marriage. The defence of respondent No. 1 was, firstly, that the applicant was not a Muslim but a Zikri, and she produced Fatwas from two Moulvis to the effect that her marriage with the applicant was void on that account, and secondly that she had been given a verbal divorce by the applicant herein. In their defence, respondents Nos. I and 2 examined one Rasool Bux, a labourer, who has deposed that the applicant herein is not a Muslim but a Zikri, and that further, the applicant, in his presence had divorced respondent No.

1. The learned Magistrate did nut accept the defence, and in my opinion rightly so, that the applicant herein had divorced respondent No. I herein but he came to the view on the basis of the testimony of one Mohammad Shafi, who was examined as a Court witness and who claims that he is known as a Mufti and is engaged in Tabligh, that the applicant herein was not a Muslim but a Zikri and hence his marriage with respondent No. 1, who was a Muslim, was void, In consequence of this finding, the learned Magistrate acquitted respondents Nos. 1 and 2 herein. Since the learned Magistrate has based his finding on the testimony of C. W. Mufti Mohammad Shafi, it may be mentioned that this witness stated in his evidence that be could give no definite opinion whether Zikris are Muslims or not since to had not studied their principles and religious beliefs, but in case the Zikris have the same principles which are stated in the questionnaire, Exh. D/1, which incidentally had been sent to another Moulvii he would say that they are not Muslims. The said questionnaire seeks to obtain a Fatwa on the point whether those who do not accept the Holy Prophet Muhammad (may peace be upon him) as the last Prophet, and on the contrary accept one Mohammad Mehdi as their prophet and recite Kalma on him, who do not offer prayers or do fasting in Ramzan nor perform Haj at Mecca, can be considered to be Muslims and whether Nikah of a Muslim of the Sunni sect with such a person is permissible. In accepting this evidence and placing reliance on it, the learned Magistrate, has fallen into a double error. In the first place, the opinion of a person with regard to Interpretation of any law, other than foreign law, inadmissible in evidence and barred by section 45 of the Evidence Act. practically identical question, whey, in also the issue arose whether Zikris are Muslims, was considered by Tyabji, C. J. in Moulabux v. Charuk (P L D 1952 Sind 54) and the learned Judge, while deprecating the course adepted by the Magistrate in relying on the opinion of a witness as to who is a Muslim and whether Zikris are Muslims, stated the law thus :‑ "Now there can be no doubt that the course followed by the learned Magistrate shows a complete misconception of the law applicable to the matter before him. There can be no doubt whatever that evidence of the opinion of a witness, as an expert, on any branch of the law, was wholly irrelevant, except when the question was about a point of foreign law. This is quite clear from section 45 of the Evidence Act (see also Aziz Bano v. Muhammad I L R 47 All. 823. * * * * Another important point of a more general character is that the Muhammadan Law which the Courts have to administer in this State is the law, such as it is, as stated in the recognized authoritative texts of the jurists of the particular faith concerned which have been followed and applied by the Courts in this country, and that the Courts have not to concern themselves with their own opinion of any individuals, no matter how learned, with regard to the true construction or interpretation of the Quran or the authenticity of the Hadith on which Muslim jurisprudence is ultimately based. (of. Agha Mohammad v. Kulsum Bibi I L R 25 Cal. 9 at p. 18). The second point on which the learned Magistrate has fallen into error is in holding that the applicant herein is not a Muslim and hence his marriage with respondent No. 1 herein is void on that account. It is well settled law and one of the fundamental principles of Mohammadan Law, as pointed out by Tyabji, C. J. in Moulabux v. Charok "that no Court can test or guage the sincerity of religious belief, and in order to hold that a person was Sunni Muslim, it was sufficient for a Court to be satisfied that he professed to be a Sunni Muslim and that "it is not permissible to any Court to enquire further into the state of the mind and the beliefs of a person who professed to belong to a particular faith and to enquire whether his actual beliefs conformed to the orthodox tenets of that particular faith." in that case, Tyabji C. J. held that the word Zikri, of course, cannot be applied to any person who professes to be a Muslim, but only to an idolator, to an infidel who does not believe in the unity of God and in the prophet-hood of the holy Prophet, Mohammed (may peace be upon him). Reference may also be made to a decision a Division Bench of Madras High Court in Narantakath Ayullah v. Parakkal Mammu (71 I C 6S.) where it has been held that members of a sect who recite the Kalma, accept the Prophet-hood of Mohammad (may peace be upon him) and the authority of Qur'an are Muslims, for these are the essential conditions for a person to be a Muslim. The Sind decision in Moulabux v. Charuk was referred to and followed by the Lahore High Court in Atia Warts v. Sultan Mohammad Khan (P L D. 1959 Lah. 205) where it was held that "it is a well recognized principle of Shariat that a person, who has read 'Kalma' even once, believes in the unity of God and that the Prophet Muhammad (peace be upon him) is the last Prophet and professes to be a Muslim, must he accepted as such". I may also refer to a decision of this High Court in Mrs. Aiyasha Koreshi v: Hishmatullah Qureshi (P L D 1972 Kar. 653) where the question arose whether a person who was a Bahai but had renounced that faith and had recited 'Kalma' was a Muslim. It was held that a mere recital of 'Kalma' was sufficient for a person to become a Muslim and that all authoritative books of Islam are agreed that if a person believes in the unity of God (Allah) and Mohammad (may peace be upon him) to be his last Prophet and also says that he is a Muslim, then he becomes a Muslim. In the instant case, the applicant herein professes to be a Muslim, has expressly denied that he is a Zikri, has testified that he sometimes offers prayers, though admitting that he does not know how many Rak'sats there are in each prayer and also asserted that he recites the 'Kalma' and does not pronounce his Kalma as 'Lailaha Illallah, Mehdi Sardarullah'. Despite this statement by the witness, the learned Magistrate has misquoted his evidence as saying that the applicant herein recites 'Kalma' on the Mehdi. It is quite clear that the applicant herein believes in the unity of Allah and the prophethood of Mohammad (may peace be upon him) and that he professes to be a Muslim. Since the applicant herein accepts fundamentals of Islam and also professes himself to be a Muslim, it is sufficient for a Court to be satisfied that he is a Muslim. The next question which arises for consideration in the instant case is whether mens rea is an essential ingredient of an offence under section 494, P. P. C. and if so, whether it has been established that respondents 1 and 2 herein had the requisite guilty knowledge. The consistent view of the English Courts has been that in cases of bigamy, no conviction can be held unless guilty knowledge or mens rea is established or can reasonably be inferred. In the well known case of The Queen v. Tolson (13 Q B D 168) the jury found that at the time of the second marriage the wife in good faith and on reasonable grounds believed her husband to be dead. It was held by the majority of the learned Judges who decided that case that a bona fide belief on reasonable grounds in the death of her husband at the time of her second marriage afforded a good defence to the indictment. In the subsequent case of Re. v. Dolman ((1949) 1 All E L R 813), it was observed: "It would; of course, be a defence if the accused could show that his first marriage was, in fact, null and void, for instance, if his wife was already married, for then he would not be a person when already married, had gone through a form of marriage with another person." The law in the Indo‑Pakistan sub‑continent in this behalf is substantially similar to the English Law. In Kunju Ismail v. Md. Kadeja Umma (A I R 1959 Ker. 151), which is a decision from the Indian jurisdiction and it was held that despite the fact that section 494 makes no reference to intention, knowledge, fraud or deceit but constitutes the mere contracting of the second marriage a crime, but in the absence of words in the statute dispensing with proof of mens rea it should be held that the crime can be committed only intentionally or recklessly." A similar view was taken by the Dacca High Court in Jahanara Khatun v. The State (P L D 1967 Dacca 704) wherein reliance was placed on Tolson's case in taking the view that mens rea is an essential ingredient of an offence under section 494, P. P. C. Reliance was also placed in that case upon the maxim : Actus non facit reum, nisi mens sit rea (the intent and act must both concur to constitute the crime). The question whether mens rea is an essential ingredient of every offence was considered by their Lordships of the Supreme Court in Pakistan v. Haracasite Waud (Pak) Ltd. (PLD1967SC1). That was a cape under the Sea Customs Act, 1878, and the question which fell for determination was whether mens rea had to be established before a person could bay convicted of an offence under section 167 (37‑B) of the said Act or whether the said section creates cases of absolute statutory liability and does not require mens rea: It was held by the majority of the learned Judges that the said section suggested absolute statutory liability and hence, mens rea was, not an essential requirement for establishing an offence there-under. The decision of their Lordships of the Supreme Court would appear to be distinguishable on the footing that that it is in respect of an offence created by a special statute and not an offence under the Pakistan Penal Code, which provides certain general exceptions applicable, to all offences defined in the said Code. Section 79 of the said Code provides that nothing is an offence which is done by any person who by mistake of fact, in good faith, believes himself to be justified by law in doing it. If, therefore, it is found that a person was honestly labouring under a misconception of fact, this could be a good defence in respect of any offence under Ore Pakistan Penal Code, even if the offence does not require any specific knowledge, or intention. Thus, if a wife, in good faith, believing her husband to he dead, contract a second marriage, she would not be liable for bigamy, it after he second marriage the missing husband turns up. In the instant case, however, the circumstances do indicate that respondent No. I did have the requisite mens rea and did not honestly believe that the applicant herein was not a Muslim acid therefore her marriage with him was void. The most important circumstance which has inclined me to this view is the application which respondent No. 1 had tiled in the Family Court at Karachi for the purposes of dissolution of marriage and maintenance. In this application, which was made by, respondent No. I some ton months after she married the applicant and: about five months after she left the applicant, the only charge which she has levelled against the applicant herein is that he brings women of ill repute to the house and mixes with them. No allegation is, made therein that the applicant herein is a non‑Muslim. If the applicant herein was really a 'non‑Muslim or a Zikri or the respondent No. 1 honestly held this belief, she could not have failed to gain knowledge of this fact or confirmation of her suspicion soon after her marriage, specially if there is any substance to the allegation made by her in her 342, Cr. P. C. statement that he was restraining her from offering her prayers. It may also be pointed out that whereas respondent No. 1 according to the testimony of the applicant herein, left his house ire 1967, she sought the Fatwas several months later in March,

196. The very fact that the applicant herein married the respondent No. 1 by means of a `Nikah', which was registered under the Muslim Family Laws Ordinance, 1961, and which law is applicable on IV to Muslims, further supports the inference that not only the applicant herein is a Muslin but that respondent No. 1 herein could not have honestly beep of the view that the applicant herein was not a Muslim. Since an offence under section 194, P. P. C. consists in unlawfully going through a form of marriage during the subsistence of an earlier valid marriage, the second marriage must be proved. The Allahabad High Court, in Shafiullah Emperor (AIR 1934 All. 589) has held that "in order to succeed in a prosecution for abetment of bigamy, it must be established that the person who is alleged to have committed bigamy was lawfully married already had gone through a second marriage ceremony". In the instant case, there is no evidence to show that respondent No. 1 has married respondent No. 2 or gone through a second marriage ceremony. All that the applicant herein has deposed in his evidence is that he came to know that she is living with respondent No. 1 herein and that she has got one issue from him. Nowhere has he stated that respondent No. I has gone through a second marriage ceremony nor has any evidence in respect of the alleged second marriage been produced. The mere fact that respondents No. 1 and 2 are staying together or even that respondent No. I has become pregnant from respondent No. 2 herein, are by themselves insufficient to lead to a positive conclusion or even a reasonable inference that they have married each other or gone through a form of marriage. The only inference that can reasonably be drawn from the above circum stances, assuming that they have been established, is that respondents I and 2 are cohabiting with each other and living a sinful life. No doubt, in her written statement, which respondent No. 1 filed in the trial Court, she has stated that she has married respondent No. 2, but no value can be attached to this admission, firstly, because section 342, Cr. P. C. does not contemplate written statements, and secondly, as the written statement is in English, while respondent No. 1 is an illiterate woman, it cannot be said that she was fully aware of what was in the statement to which she has affixed her thumb impression. There is nothing to indicate that this statement was read over to her or the trial Court had explained its contents to her. Since an essential ingredient of an offence under section 494, P. P. C. namely, proof of a second marriage or of a second marriage ceremony is wanting in the instant case the impugned order has to be sustained and the revision application must fail. It is accordingly dismissed. Revision dismissed.