P L D 1963 Supreme Court 51 (PLP)

Renate They say when calamities befall they never do singly. Little Puppi slipped in the bathroom after his bath and opened his wound. He was out for about twenty minutes. I was afraid of concussion but thank God it is not that bad. He is now in bed asleep. The children cling to me all night in case I too run away. I have not yet told the boys. I only told them that you will be coming soon, but Puppi knows and is terribly upset and crying. Amins have been a great help. They both feel terribly at what you have done and the way you have done it. Renate you do me terrible wrong if you think I could be inhuman enough to deprive my children of their, mother. I asked Raza about it whereas he admits all else, he thinks this was merely your `ausrede'. Whatever it is, Renate, I on my behalf wish you happiness in spite of the fact that I do believe that you cannot build a happy life on the tears and misery of your children. Renate if ever you need a friend or help I shall be there. I love you far too much. You must forgive me for not sending you the children or not letting you see the children. I hope you under stand. But I would very much like to have a final talk with you soon to see if Renatchen is the same girl I used to know or is she really callous. I also do not know if my this letter will reach or there are certain restrictions. Renatchen darling, how soon can I see you. I booked you call to tell you about Puppi. Whoever may say whatever about you Renatchen I am not condemning you. I told Amins yesterday I had no feelings of revenge in spite of what you have done. I shall await (sic) for your detailed reply. (Here followed a couple of lines in German). Love from us all. Nawaz." [Note.‑--The lines in German at the end of the letter were to the effect "Write often ring soon" and "Would it ever be possible that we could live the life together", as explained by the com plainant from the witness‑box]. A plain reading of this document would show that the complainant was wishing Renate happiness in her new life, though he had at the same time made an appeal to her to consider whether she could build a happy life on the tears and misery of their children. He assured her also that if ever she needed a friend or help he would be there and declared that he was not condemning her. It is strenuously argued that this was not the letter of a person who had been deprived of his legally wedded wife by an abductor.

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

21. On the other side, the conduct of Christa Renate after the alleged divorce had been granted, R as not quite consistent with the severance of the marital tie. She remained in the house of the com plainant even after the 16th of November and ostensibly acted as a normal house‑wife. At the two parties: One in connection with her birth‑day on the 14th of December, and the second, a Christmas party to the staff of the complainant on the 23rd of December, she officiated as the hostess. On the 24th of December 1961, according to the evidence, she attended a German Religious Service (to which German ladies and their Pakistani husbands had been invited) at the F. C. College Chapel, along with her husband. It is also in the evidence that they sent Christmas cards to friends signed as "Renate & Nawaz", thus indicating to the world that they were still joined in wedlock. On the 29th of November 1961, she had sent a telegram to the complainant from Loralai or Quetta with the following words: ‑ "ARRIVE MONDAY PIA ALL WELL DON'T WORRY LOVE RENATE" On his insistence she returned from Quetta earlier than she had intended, showing that the complainant had still a hold on her. The tenor of the telegram suggests the intended return of a faithful and loving wife instead of the reverse. She had not informed her mother in Germany, with whom she was in correspondence, that she had obtained a divorce from her husband, nor did she give out this fact to any of their friends till after she had married the respondent at Quetta. All these factors throw a considerable degree of doubt on the genuineness of the divorce‑deed, D/l. The document in question certainly existed on the 2nd of December when S. Darbar Ali Shah, Additional Commissioner, Quetta, D. W. 2, attested three copies of it at Pishin (Baluchistan), at the request of the respondent. The Courts below are agreed on this finding but that of course is no guarantee that Exh. D/1 had been executed by the complainant. The draft of course had to be reproduced and not merely signed, as the complainant would have us believe, for the blanks in the draft did not leave enough space for the relevant entries to be made. But all these circum stances do not establish that the complainant did comply with his wife's demand in this respect. The upshot of the whole discussion is that the evidence is inconclusive and insufficient for arriving at a positive finding about the genuineness or otherwise of the document, D/1.

22. Even if the benefit of the doubt could be extended to the respondent as an accused person, and it were to be held that Exh. D/ I might have been written out by the complainant, there would be other hurdles in the way of the respondent before he could successfully urge that Christa Renate had ceased to be the wife of Mr. Gardezi. In the first place it is contended that the civil marriage contracted, in England, could only have been dissolved by a decree of a Court and that dissolution of marriage by means of a talaq pronounced by the husband, would not be recognised as valid under English law, according to some authorities. Reference in this connection was invited to para. 200 at page 112 of Halsbury's Laws of England, Vol. 7, Third Edition. It is stated therein that "a declaration of divorcement made under Mohammedan law by a person domiciled in India or in Egypt, has not the effect, in England, of dissolving a marriage contracted in England, according to English law, with a woman domiciled in that country". The authorities cited in support of this proposition are mentioned as R. v. Hammersmith Superintendent Registrar of Marriages, Ex parte Mir‑Anwaruddin (1917) 1 K B 634 C A and Maher v. Maher (1951) P.

342. But this dictum would be applicable, as is clear from the state ment given in Halsbury, only to a woman domiciled in England. In a recently decided case, Russ v. Russ (1962) 2 W L R 708, Scarman, J. has held that as a general rule, English law looks to the law of the domicile to determine the status of parties, though the, learned Judge adds that "the Courts have a discretion and may, in a proper case, refuse to recognise a status conferred or imposed upon a person by the law of his domicile and will reach their decision with due regard to commonsense and some attention to reasonable policy". In that particular case it was held that the marriage of an Egyptian Muslim with an English woman, performed before a Registrar in England, would stand dissolved by a talaq granted by the husband in Egypt which was the matrimonial domicile of the spouses. It was found that the woman accompanied her husband to Egypt to live there and had even gone through a Mohammadan ceremony of marriage with him in that country. In Dicey's Conflict of Laws, Seventh Edition, at page 307, the view is expressed that: ‑ "In spite of earlier dicta to the contrary, it is now clear that English courts will recognise non‑judicial divorces obtained unilaterally by one party to the marriage in accordance with a religious law (e.g., a Jewish ghet), provided the parties are domiciled in a country the territorial laws of which permit such a method . . . . ." The learned author notes that, according to some authorities, "a method of divorce, which is appropriate to a polygamous union, will not be recognised as having dissolved a monogamous marriage even if it has this effect by the law of the parties' domicile", and proceeds to criticize this view. Prof. Cheshire in his text‑book on Private International Law (IV Edition) at page 370 et seq has discussed this question and favours the opinion that a divorce obtained in a foreign domicile, even though obtained without contentious proceedings and even though it dissolves a marriage solemnized in England between British subjects, must be recognised by the Courts of England, since it satisfies the general principle that alterations of status are governed by the lex domicilii. The trend of modern authorities, therefore, appears to be that if the law of the domicile permits a dissolution of marriage by the pronouncement of talaq, the divorce may be recognised as valid, under the rules of Private International Law, in other countries as well.

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

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

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

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

27. It is significant that the question put in cross‑examina tion to the complainant by respondent's counsel, S. Muhammad lqbal; on 29‑1‑1962, suggested that Renate had declared herself to be a Muslim, in the presence of her husband and the respon dent, on the 25th of October 1961. The suggestion was denied, but the form of the question leads to the inference that till then, the respondent and Renate had not yet made up their minds as to what date should be mentioned for the alleged conversion. The clear reference to the husband's presence on the alleged occasion in the question, stands in strong contrast to the assertion that at no stage was he apprised of her change of faith. The question must have been put, on instructions from the respondent. On that date, Christa Renate was also apparently present in Court and no attempt was made on her part to correct the date or other particulars by bringing them to the notice of the learned counsel who, she acknowledged, was also her own legal adviser.

28. There is then the further circumstance that in a written statement prepared for the purpose of this" case, by Christa Renate at Sibi and later given to Sardar Muhammad Iqbal, her legal adviser and counsel for the respondent, Exh. C. W. 1/1, although relevant occurrences are detailed date wise and there is an entry dated the 26th of October 1961, there is no mention in that entry, of her conversion to Islam. All that appears in that entry is that in the afternoon of the 26th October, she accompanied the complainant to the airport, in order to see off the respondent, after having coffee at the Gardenia Restaurant and that she mentioned to Mr. Gardezi, at the airport, that she intended to change her nationality and religion. The complainant was visibly upset on hearing this announcement. This entry further fortifies the inference arising from the form of the question put in cross‑examination to the complainant by Sardar Muhammad Iqbal.

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

126. No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client; or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment . . . . ." What happened in the case was that while Christa Renate was being examined as a Court witness, (she was intended to be produced as a witness in defence), she herself mentioned that she had given a written statement to Sardar Muhammad Iqbal, and on this, the trial Judge asked her whether she had any objection to his seeing that document. She declared that she had none. The counsel was permitted to talk to her in the witness‑box and after about fifteen minutes' parley, the counsel himself requested that the document may be placed on the record in order that it may form part of the evidence. Sardar Muhammad Iqbal, who was also examined as a Court witness in the case, stated that he had persuaded the lady to allow the document to come on the record, as it was a good opportunity of placing her full version before the Court. In the circumstances, the question of the application of section 126 of the Evidence Act did not arise at all. It seems to us that the more' pertinent provision of the Evidence Act was section 129 and not section

126. This is in the following terms: ‑ "

129. No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal professional adviser, unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the Court neces sary to be known in order to explain any evidence which he has given, but no others." Under this section too the two statements were clearly admissible in evidence.

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

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

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

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

7. Talaq :‑(I) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the Chairman notice in writing of his having done so, and shall supply a copy thereof to the wife. (2) Whoever contravenes the provisions of subsection (1) shall be punishable with simple imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees or with both. (3) Save as provided in subsection (5), a talaq unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under subsection (i) is delivered to the Chairman. (4) Within thirty days of the receipt of notice under sub section (1), the Chairman shall constitute an Arbitration Council for the purpose of bringing about a reconciliation between the parties; and the Arbitration Council shall take all steps necessary to bring about such reconciliation. (5) If the wife be pregnant at the time talaq is pronounced, talaq shall not be effective until the period mentioned in sub -section (3) or the pregnancy, whichever be later, ends. (6) Nothing shall debar a wife whose marriage has been terminated by talaq effective under this section from re marrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective." It is common ground between the parties that the complainant in the case had failed to give notice to the Chairman of the Union Council concerned, in respect of .the alleged grant of divorce by him to his wife, as required by this section. The learned trial Judge, therefore, found that, in the face of this section, the talaq failed to operate as such. The learned Judges of the Appellate Bench, however, were of the opinion that the Ordinance itself could not apply to the facts of the case, because Christa Renate was a non‑citizen and the Ordinance was meant to apply only to Muslim citizens of Pakistan.

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

35. Section 5 of the Ordinance provides that every marriage solemnized under Muslim Law, shall be registered, in accordance with the provisions of the Ordinance and for this purpose, the Union Council is authorized to grant licences to one or more per sons, to be called Nikah Registrars. Every marriage not solemnized by the Nikah Registrar, is required to be reported to him by the person officiating at the marriage, for the purpose of registration, and contravention of this provision is made punishable with simple imprisonment for a term which may extend to three months, or with fine up to one thousand rupees, or with both. The section appears to be general in character, with the only limitation that the marriage should have been solemnized under Muslim Law. It is impossible to read into it a further limitation that the marriage should necessarily be between two Pakistani Muslims. A marriage entered into by a Pakistani Muslim male with, say, an Indian Muslim woman, would seem to fall within the purview of this section, if it is performed within) Pakistan.

36. Section 6 is aimed at restricting polygamy. Sub section (1) thereof reads : "No man, during the subsistence of an existing marriage, shall, except with the previous permission in writing of the Arbitration Council, contract another marriage, nor shall any such marriage contracted without such permission, be registered under this Ordinance." The expression "existing marriage" stands unqualified and would obviously cover the marriage of a Pakistani Muslim male with a Muslim non‑citizen or even a non‑Muslim lady, if it is recognised as valid by the n. laws of Pakistan. The expression "another marriage" occurring subsequently in this subsection, should have the same connotation, prima facie. The generality of the words cannot be cut down by importing into this subsection any extraneous considerations. The Ordinance of course only penalises the person in respect of a marriage, celebrated in contravention of the provisions of the Ordinance by making him liable to imprisonment or fine or both but does not invalidate the marriage itself. But that has no bearing on the question we are considering.

37. Coming next to the important section 7 itself, it seems to us that the Legislature had attempted to incorporate the Islamic Law provisions with regard to the two forms of "Talaq- us‑Sunnat", viz., "Talaq Ahsan" and "Talaq Hasan", as far as may be, in this section. The first of them is that form in which a single pronouncement of divorce is made during a period of menstrual purity, no intercourse having taken place during that period, and is followed by a period of iddat. The second is one in which the first pronouncement made in similar circumstances is followed by two further pronouncements in succeeding periods, no intercourse taking place at any time during the three periods. Such a divorce becomes irrevocable on the third pronouncement. Whether the result achieved is in strict conformity with Islamic Law is a question which does not fall within the province of this Court to determine by reason of Articles 5 and 6 of the Constitu tion. The section clearly contemplates a machinery of conciliation whereby a husband wishing to divorce his wife unilaterally, may be enabled to think better of it, if the mediation of others can resolve the differences between the spouses. The talaq pronounced is to be ineffective for a period of 90 days from the date on which notice under subsection (1) of this section is delivered to the Chairman and this period is to be utilized for the attempt at reconciliation. Subsection (6) makes it clear that even if talaq has become effective under the previous subsections, the spouses would not be prevented from re‑marrying, without an intervening marriage with a third person, unless such termination is effective for the third time. All that the section requires is that the marriage in question should be dissolvable by means of a talaq and it does not seem necessary to adopt the narrow construction contended for on behalf of the respondent, that the wife mentioned in the section must necessarily be a Pakistani citizen. To suggest, as Mr. Mahmud Ali has done, that unless she is such a citizen she would have no right to appoint an Arbitrator on her behalf, under section 2 (a) of the Ordinance, appears to beg the question,

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

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

40. The sphere of attempted conciliation seems to be further extended by section 8 of the Ordinance to cases of "Talaq Tafviz" and also to other forms of dissolution of marriage at the instance of either party, mutatis mutandis, and this throws further light on the objective aimed at by the Ordinance. It would be idle to speculate what alternative forms of dissolution are contemplated by this section.

41. There is nothing in section 9 of the ordinance (which relates to maintenance to be provided by the husband for the wife) that could cut down the connotation of the term "wife" to a Muslim citizen of Pakistan alone.

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

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

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

498. Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that roan, or from any person having the care of her on behalf of that man with intent that she may have illicit intercourse with any person, or conceals or detains with that intent, any such woman, shall be punished with imprisonment, of either description, for a term which may extend to two years, or with fine, or with both."

45. Mr. Mahmud Ali pointed out that there was evidence to show the existence of a compact between the parties, under which Christa Renate had decided to stay in the complainants house and to have no communications with the respondent, for a period of three months, but that she herself decided to end that arrangement and eventually she left the house of her husband, not at the instigation of the respondent, but because she found herself in danger of being pushed out of Pakistan after the complainant had married another worn n from Mardan. He suggests, therefore, that she left the matrimonial residence voluntarily and not because of any enticement by the respondent. The "evidence" referred to in this connection, consists merely of rumours said to have been current in Peshawar about such a "conspiracy" and the suggestion seems to have no solid founda tion. Further, this contention appears to us to omit from consideration the history of previous relations between the parties. It is in the evidence that respondent used to make frequent telephone calls to the lady, at the complainant's house, mostly during his absence and that he was in constant correspondence with her. The respondent and the lady stayed in contiguous rooms in Hotel Cecil at Murree from the 16th to the 18th September 19611, and the attachment they formed there is said to have impelled the lady to declare her love for the respondent to her husband on her return to Lahore on the 19th September. On that occasion she admittedly received from the respondent the sum of Rs. 500 as "emergency fund"‑this sum is alleged to have been returned to the respondent who discovered it in his wife's purse. He was urging her to come away to him as is evidenced by his own letter to Christa Renate, Exh. P/1, dated the 9th November 1961. During the visits of the respondent to Lahore, even when he was not staying as a guest of the complainant, the lady frequently met him without her husband and on one such occasion at least, we have it in the evidence that the complainant objected to her conduct when she came late to the house, after meeting the respondent. The circumstances, therefore, are sufficient to spell out "enticing" of the lady on the part of the respondent. The mere fact, moreover, that he did not himself actually go to the house of the complainant to take away the lady but that she joined him, by arrangement, while he himself stayed at the house of Lt. Gen. Rana, does not lead to the conclusion that he was not "taking" her away. It is the respondent who had booked a coupe in order that he might take her with himself, by Khyber Mail to Quetta. The datewise entries in Exh. C. W. 1/1, the statement prepared by Christa Renate herself and placed on the record with her consent, also throw a good deal of light on the genesis of the relations between the respondent and the lady. Against the date, the 17th of August 1961, she mentions that when they went to say good‑bye to the respondent at Quetta, on that day, Col. Yusuf invited them to go to Ziarat with him and spend a night with him there. Her husband accepted the invitation and she then adds: "I was happy at this decision, being attracted to Col. Yusuf from the very beginning and also being aware that he was paying me very much more attention than is customary. I welcomed this opportunity of spending yet another day in his company." The entry of the 18th August 1961, talks of an evening spent at Ziarat in the company of the D. I. G., Police, Quetta, Mr. Anwar Afridi, who "seemed to understand the situation immediately and took Mr. Gardezi aside to drink vodka and discuss mutual acquaintances, while Col. Yusuf and I sat in a corner near the record player, pretending to listen to music, but really discussing our feeling for each other. We both realized that we had fallen in love but felt that as we were married, very little could be done about it." She tried to water down some of these recitals, when in the witness‑box but was not successful in doing so. This is how the affair started and subsequently, the frequent phone calls in which the respondent indulged, at great expense, for talking to Christa Renate are tell‑tale evidence of how things were shaping. The three charts of telephone calls made by respon dent, between 22‑8‑61 and 4‑12‑61, Exhs. P. W. 7/1 to P. W. 7/3, on the record, are remarkable documents, in this context. They show that altogether 192 trunk‑calls were made by the respondent in this period. On some dates repeated calls were made and some of the calls lasted for as long as 9 minutes. Surely they could not have merely discussed the weather during these calls. There was obviously a strong influence emanating from the respondent and operating on the lady's mind (which may be also co‑operating with her inclination), to leave her husband's house, all the time. We are, therefore, convinced that the respondent was guilty of "enticing" and "taking" away Christa Renate from the house of her husband, at Lahore.

46. That the respondent was very much aware of the existence of the Muslim Family Laws Ordinance, 1961, is clear from the fact that he himself resorted to its provisions, in order to obtain the consent of his first wife and that of the Chairman of the Union Council, for a second marriage. The plea that he did not know that Christa Renate, when he took her away, was the wife of another man, sounds hollow, when we remember that according to the respondent's own statement as an accused person, his suspicions had been aroused on seeing the document, D. 1, in a disguised hand and he had even questioned the lady about it. It would have been easy for him to have ascertained from the complainant himself, whether he had granted a divorce to his wife. He took no such step. As an educated person and a Commissioner of a Division, he should have realized that he was taking a big risk, in enticing away a woman who was obviously married to another man. Christa Renate has stated as a witness in the case that she had been informed by the complainant that their marriage could not be dissolved except by a Court decree, but that if she turned a Muslim, a document of the type of Exh. D. 1 "might be enough to hoodwink a Moulvi". This information must have been imparted by her to the respon dent also and at best, the document, D. 1, even if obtained, was to serve the purpose of deluding a Moulvi, into performing a second marriage. The respondent apparently was reckless of consequences in taking her away, without caring to satisfy himself whether she was a free woman or not. The provisions of section 7 of the Ordinance appear, on their wording, to be clearly applicable and the respondent had even been told in a letter by the lady to the effect that the complainant had refused to take any action under the Ordinance, by way of sending a notice to the Chairman of the Union Council, vide Exh. C. W. 1/3. The last part of this letter, reads as follows: ‑ "Nawaz came home to pick me up for Coffee Quite a usual procedure now‑a‑days. I mentioned the Union Council thing to him. He is quite determined to have nothing to do with it, no matter what consequences. So, where do we go from here? Can't write any more today. He will be back very shortly. Darling, why don't you trust me? I trust you and love you without reservation. It ought to be mutual. More later: Lots of love, Your own Renate" It would appear from this document that the question of com pliance with the provisions of the Ordinance was very much present to the minds of the parties, and the respondent cannot now be heard to say that he bona fide believed that the Ordinance was not applicable. The learned trial Judge appears to have held that this letter was not genuine, but the Appellate Bench of the High Court, it seems to us rightly, accepted its genuineness and pointed out that this as well as three other letters, had been produced by the respondent at the behest of the learned trial Judge himself. The contents of this letter also provide intrinsic evidence of its genuineness, as the recital therein about the necessity of following the provisions of the Ordinance, would appear to be an admission against the interest of the lovers.

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

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

49. The question is then of the sentence. The complainant in the case seems to have allowed things to develop under his very nose, without taking effective restrictive action in respect of his erring wife, or to counteract the conduct of the respondent who was subject to service discipline as an officer of Government. We are also conscious that the conviction might conceivably entail departmental action by Government, against the respondent in respect of his service. Taking all the circumstances of the case into consideration, we are of the opinion that the ends of justice would be met by sentencing the respondent under section 498, P. P. C. to pay a fine of Rs. 2,

000. In default of payment of fine, he will suffer rigorous imprisonment for 3 months. We order accordingly. The fine will be paid within 15 days from date.

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

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

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

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

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

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

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

57. We are also of the opinion that the learned Judges of the Appellate Bench misconstrued the letter sent by the Deputy Registrar of the High Court to the press agencies. The letter merely called upon the addressees to explain why the copies of the proceedings taken by their representatives from the High Court, had not been put to the use for which they had been ostensibly taken. The letter contained no directions for future publication of the proceedings. All that was said was that unless a satisfactory reply was received, the trial Judge would not permit the report of any proceedings in his Court to appear in the press with which the addressee was concerned. The idea clearly was to prevent abuse of copies of proceedings issued under orders of the Court. The learned trial Judge had evidently suspected, as he mentions in his judgment, that the complainant had probably used his influence to stop publication. It transpired, however, that the Martial Law Authorities had intervened for that purpose. In either view, his action was fully sustainable in reason. The criticism about the learned trial Judge seeking publicity therefore, rests on a misconceived assumption. We understand further that the learned counsel appearing for the complainant had denied before the Appellate Bench that any persons had indulged in hand‑clapping during the proceedings before the trial Judge, or that the complainant's counsel had made a dramatic gesture at any stage of the proceedings. We confess, we are unable to comprehend by what process the learned Judges of the Appellate Bench had satisfied themselves about the correctness of the ipse dixit of the counsel for one side, without an enquiry. On the other hand, mention of the incident should have been a sufficient indication that the public interest was attracted to the case not only because it involved a matrimonial scandal in high places, but also because it raised the question whether, under Martial Law, justice was dispensed equally between a high ranking Military Officer, and a member of the public.

58. In paragraph 79 of their judgment, the Appellate Bench have referred to the circumstances in which the complaint lodged by Mr. Gardezi, was transferred to the High Court. The exercise of discretion in this behalf by the learned trial Judge was not found to be open to any just exception, but the learned Judges have complained that the trial Judge had withdrawn the notice which he had initially ordered to be issued to the respondent, of the transfer application, when he discovered that the respondent had not yet been summoned as an accused person in the case. The learned Judges have expressed the wish that such a course had not been adopted, as in their opinion, "though in itself a matter of small consideration", taken along with certain other features of the case, it was calculated to "cause an apprehension in the mind of the accused that he would not get a fair trial". We regret, we cannot share the learned Judges opinion in this respect. It is expressed in terms which convey the sense that the trial Judge was "snatching at" jurisdiction, to be in a position to try the case. It ignores entirely the very good reasons given by him for his action, namely that he transferred the case to the High Court, because of the high status of the accused person and he did so without notice to the latter, because no summons had yet gone out to him from the Magistrate's Court. ‑

59. In the same paragraph, the learned Judges a1so com mitted themselves to the view that the affidavit of the complainant dated 6th January 1962, accompanying the transfer application, in the High Court; "must have been untrue to his knowledge and belief", for "it is obvious that the complaint, the transfer application as well as the accompanying affidavit, were drafted and typed simultaneously." Here again, the learned Judges appear to have reached a precipitate conclusion without due inquiry into the facts and have consequently misdirected them selves. There were two affidavits of the 5th and the 6th January respectively, and that of the 6th January was plainly subsequent to the complaint. We find no material on the record in support of their conclusion which is challenged as completely untenable, on behalf of the complainant. If the learned Judges had carefully perused paragraph 3 of the judgment of the trial Judge, they would have found the correct facts recited therein.

60. We next come to paragraph

80. The learned Judges have taken note of the contention that a large number of Court witnesses had been summoned by the learned trial Judge, including the lady, "from whose testimony the prosecution case was sought to be established". How this was sought‑to be done, has not been explained. Grievance was apparently also made before the learned Judges, of the repeated examination of the accused, during the course of the trial, on as many as seven occasions. The learned Judges have observed that out of 576 questions put to Christa Renate, during her examination on four occasions, the learned trial Judge had asked no fewer than 212 of which 50 related to the statement, Exh. C. W. 1/1. In their opinion: "She was subjected to gruelling cross‑examination and her embarrassment must have been considerable, because of the large audience who must have gazed at her intently, as each word dropped from her lips. Questions of an intimate nature, for example, as to when did she sleep with the appellant, were asked from her. Mr. Mahmud Ali had no grievance against such questions being asked for it 'was a necessary ingredient of the charges brought against the appellant, but he disputed the propriety of the Court in assuming the role of a prosecutor."

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

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

63. In paragraph 81, the learned Judges discuss the circum stances in which Sardar Muhammad Iqbal who was initially engag ed as counsel for the respondent in the High Court, was examined twice as a Court witness, by the trial Judge. He had eventually withdrawn from the case vide his application dated the 3rd of February 1962. In the learned Judges opinion: ‑ "A fair reading of the proceedings in the case shows that the lady was not willing to allow the written statement which she had given to Sardar Muhammad Iqbal (Exh. C. W. 1/1) to be utilized in the defence of the appellant, as well as in her own defence in the bigamy case, to be made a part of the present proceedings." The learned Judges have asserted that "as a counsel, Sardar Muhammad Iqbal must have found himself in a very awkward position to persuade his client to waive a legal privilege". They have then referred to the fact that the counsel was permitted to talk to the lady in the witness‑box, for about fifteen minutes and have pronounced as follows: ‑ "To allow this whispering for a quarter of an hour, which resulted in the lady's waiving her legal privilege and exposing herself to a further long‑drawn cross‑examination, does not appear to be a voluntary act on her part. That was not all. On the following day, both she and her counsel were examined separately to ascertain what transpired between them during that whispering."

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

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

66. Paragraph 83 stems to be intended as a peroration to the observations of the learned Judges on the conduct of the trial Judge, and is couched in the following terms: ‑ "Nothing more need be said about this unhappy aspect of the case, for we have differed from the learned trial Judge on facts as well as on some of the legal issues arising in the case; and the appellant has won his acquittal,"

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

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

69. On a careful examination of all relevant matters, and bearing in mind the solemn duty resting upon us, while doing full and complete justice in this case, also to consider and correct, so far as lies in our power, any injury that we find to have been I done to the very means and instrument by which justice is dis pensed at the highest level, we are compelled to reach and record the following conclusions. The criticism of the learned trial Judge contained in paragraphs 78 to 81 of the judgment of the Appel late‑Bench is neither well‑informed nor is it supported by intention to advance justice either in the case or generally. As it is also less than fair to the trial Judge, it constitutes a blemish upon the judgment, and it is desirable in the highest interests of justice that this blemish should be removed. Along with these para graphs should be removed also the second of the two paragraphs numbered 77, which serves as an introduction to the succeeding four paragraphs, and without them will become devoid of useful purpose. Equally, paragraph 83 making mention of "this unhappy aspect of the case" will have no place in the continuity of the judgment, if the paragraphs dealing with the "unhappy aspect" are eliminated. These six paragraphs contain matter which was not necessary for the disposal of the appeal, and they may easily be excised, without impairing the integrity of the judg ment. We accordingly direct that the second of the two Para graphs numbered 77, and paragraphs 78, 79, 80, 81 and 83 should be expunged from the judgment of the Appellate Bench, as pre served in the records of the High Court. A. H. Order accordingly. [Note: ‑ Paras. 50 to 69 have been approved by the Hon'ble Supreme Court for printing in Law Journals and Reports only.]