P L D 1961 (W (PLP)

15. Mr. Rashid, another witness, an Assistant Aerodrome Officer, also was not put the question whether the woman whom he saw living with the accused as Mrs. Yunus was the wife of Hamid Hussain. At one place in the statement of this witness it appears that he was shown the photograph Exh. P. 3 and he said that it was the photograph of Farooq Sultana, but it was necessary for the Court to have put this question to him whether the photograph Exh. P. 3 was that of the wife of the complainant. The words used by the witness are: "I have seen Farooq Sultana. I recognise her face. Exh. P. 3 is her photograph." But the most crucial point was whether this Farooq Sultana whom he had recognised was the wife of Hamid Hussain. Simple identification of the photograph would not be enough.

16. Similarly another witness Saleemullah also identified the photograph of the woman who was living with the accused, but no question was put to him whether the photograph was of the wife of the complainant.

17. It has been given in evidence by the complainant that the woman was living as Mrs. Yunus with the accused and she had also got a baby as a result of illegitimate connection, but there is no evidence at all to prove this fact. The doctors who attended on the woman expressed their inability to recognise the face of their patients.

18. Similarly another witness Muhammad Iqbal who also found a woman living with the accused and stated that her photo graph was the same Exh. P. 3, could not say whether the photo graph was of the complainant's wife. The witness further said that he had never any talk with the woman.

19. Habibullah Khan, Assistant Armament Supply Officer, deposed that he knew the complainant and his wife and he could recognise the wife if he saw her photograph. He had seen the woman going with the accused once in a Bus. He, however, is a subordinate of the complainant. He admitted that he was never introduced to the complainant's wife because Purdah was observed. Surprisingly enough the photograph Exh. P. 3 was not put to this witness and he could not say whether the photograph was of his wife or not.

20. Mohammad Hussain in whose house the accused is said to have lived with the wife of the complainant was not pro duced. On the contrary Abdul Samad, D. W. 1, a person living near the quarter where it is alleged that Farooq Sultana was found was produced by the defence and he said that he never saw the accused living there.

21. Mohammad Sarwar, another witness for the defence, who was living about 100 paces away, also could not say whether the accused and the wife of the complainant lived together, but that he never saw the accused living with the wife of the com plainant.

22. Akram Abbas, the Sub‑Inspector who arrested the woman Farooq Sultana also does not say that Mst. Farooq Sultana, whom he found near about the house in which it was alleged that she was living with the accused, was the wife of the complainant. His statement does not by any means suggest that the woman who was living with the accused in the same house as husband and wife was the wife of the complainant.

23. The learned counsel representing the accused urged that Farooq Sultana was not called as a witness. If she was not supposed to give evidence in favour of the prosecution, she should have at any rate been produced in Court so that the witnesses could say that she was the person living with the accused and was the wife of the complainant. It appears that no one cared to get the woman summoned to Court. She made an application that she was not well and that her presence may be excused. Some how or the other, a photograph Exh. P. 3 was brought on record, but no evidence was given to say that this photo was of Farooq Sultana wife of the complainant, and the source of this photograph was not made clear in Court.

24. The learned counsel representing the complainant said that the accused should have taken the objection in the Court below that Mst. Farooq Sultana whose photograph Exh. P. 3 was shown to the witnesses was not the wife of the complainant. It is true that the accused never challenged that Exh. P. 3 was not the Photograph of the complainant's wife.

25. The learned counsel representing the complainant further said that the cumulative effect of the entire prosecution evidence is that Farooq Sultana was identified by the prosecution witnesses by the photograph Exh. P. 3, although it was not said in so many words that this Farooq Sultana was the wife of the com plainant; secondly that as no other Farooq Sultana was meant, no question was apparently asked from the witnesses whether this Farooq Sultana was the wife of the complainant.

26. It is also evidence from the record that the accused was also not asked any question about his having lived with the woman whose photograph, Exh. P.

3. This photograph was not at all shown to him when he was examined by the Court under section 342, Cr. P. C. He was, however, asked if he lived with the complainant's wife, and he denied it.

27. The learned counsel representing the complainant urged that this omission on the part of the Court to put this question to the accused was not a material irregularity vitiating the trial because the accused really knew who Farooq Sultana was and he was not misled in any way. In my opinion, this contention cannot be accepted. This would lead to dangerous situations. It is the duty of the Court to ask specific question to the accused and not to depend upon suggestions and implied inferences.

28. The first ingredient of the offence of adultery is the prosecution must prove that the woman was the wife of the complainant and the accused knew and had reason to believe that she was the wife of the complainant. When the question was not put to the accused and the accused knew that the prosecution witnesses were giving evidence about a woman whose photograph was Exh. P‑3 and Exh. P‑3 was not proved to have been the photograph of Farooq Sultana, wife of Hamid Hussain com plainant, the accused would naturally be under the impression that he was not to fill the gaps in the prosecution case. If the witnesses had said in Court that Exh. P. 3 was the photograph of Farooq Sultana, wife of the complainant, the accused would have been under no misapprehension.

29. The difficulty in this case arises because of the omission in asking important questions from the witnesses as well as the accused. It is, therefore, clear that the conviction in this case cannot be allowed to stand.

30. The question, therefore, arises whether a retrial in this case should be ordered. The learned counsel for the accused said that in this case a retrial may result in prejudice to the accused in as much as the lacuna in the prosecution case could now be filled up.

31. A reference was made to some cases. In Rajaram v. State (A I R 1954 All. 214) a single Judge of the Allahabad High Court has held that in a revision against a conviction a retrial would not be ordered where the prosecution has failed to produce the right type of evidence to sustain a conviction so as to allow them an opportunity to fill up the lacuna in evidence.

32. In the above case Rajaram was in possession of illicit liquor. Although there existed a report of the Excise Inspector, yet the report was silent about the strength necessary to make it illicit. The High Court declined to order a retrial. It would appear that in this case the basis of the prosecution case did not exist.

33. The next case quoted was a judgment in Sochiram v. Emperor (A I R 1938 Pat. 39). In this case the prosecution failed to adduce the necessary evidence which would justify the conviction of the accused. It was held that no further opportunity could be allowed to the prosecution to fill in the gaps deliberately left by them by remanding the case for a retrial. The learned Judge held that the prosecution should have realised that they were required to produce all the evidence available in order to bring home the charge to the accused, and they could not be allowed to produce evidence at their pleasure piecemeal. Here the only thing left was an important question regarding the identity of the woman.

34. The third case quoted was the case of the Executive Officer, Municipal Board, Ghaziabad v. Harsaran Das (A I R 1940 All. 19) in which it was not thought advisable to order a retrial because the prosecution had been launched not with any desire to vindicate the law in the public interest but only with a view to humiliate the accused who has been sufficiently punished for the offence committed by him by having had to undergo the trial, and the interests of the public have been sufficiently protected for the future.

35. There is, however, another case Ishwar Prasad v. Emperor (A I R 1918 All. 133) decided by Tudball, J. in which one Ishwar Prasad was convicted of an offence under section 411, I. P. C. by a Second Class Magistrate. He appealed against his conviction to the District Magistrate who directed the case to be retried in another Court in accordance with law. In ordering the retrial the learned District Magistrate observed:‑‑ "that from its appearance the case would seem to have been hurriedly tried and one in which the evidence is deficient. In particular it is not clear why the evidence of the ekkawala who was present at the search, was not taken as he is one of the main witnesses whose evidence is intended by law to be of importance in a case of this type. The procedure adopted is open to criticism. It is necessary that the case should be re tried."

36. The learned Judge of the Allahabad High Court thought that the only defect was that certain evidence had not been brought upon the record which ought to have been there. The learned Judge held that it would not be quite fair to the accused in the present case to direct his retrial. There was only one witness left for examination and a few questions to be put to the police officer who conducted the case. He, therefore, ordered that instead of the trial Court retrying the accused, the District Magistrate might summon the witnesses named by him in his report, examine them and after so doing, to decide the question of the appellant's innocence or guilt. The idea of summoning the prosecution witnesses before the trial Court was not favoured.

37. In this case all those witnesses who have said that the accused was living with a woman whose photograph is Exh. P‑3 as Mr. and Mrs. Younas, and who had recognised the photograph Exh. P‑3 of the woman, would have to be produced in Court, examined, cross‑examined and re‑examined, if necessary. The learned counsel representing the State vehemently suggested that the sentence in the statement of P. W. Rashid that he knew Farooq Sultana, whose photograph is Exh. P‑3 should be considered sufficient for the identification of Farooq Sultana, the wife of Hamid Hussain complainant. I am unable to accept this view.

38. It seems to me that the trial Court did not attach much importance to the question of identification of the woman. The trial was protracted and long, and perhaps this important question slipped out of the mind of every one. The complainant claimed that Farooq Sultana had come in Court and was actually identified by P. W. Rashid, who said that Exh. P. 3 was her photograph. There was no other Farooq Sultana meant during the course of the proceeding, except the wife of Hamid Hussain, and therefore reference to Farooq Sultana should be considered as reference to the wife of the complainant, Hamid Hussain. According to the complainant, nobody disputed in the trial Court that Exh. P. 3 was not the photograph of the wife of the complai nant. It appears to me, however, that the most material question whether the woman living with the accused, whose photograph was Exh. P‑3, was the wife of the complainant was not asked.

39. The question which now remains to be considered is whether this omission on the part of the Magistrate would be a mere technical irregularity or whether it cuts the root of the prosecution case, and whether, if the case is remanded, it would be tantamount to enabling the prosecution to fill the gap existing in the prosecution evidence.

40. I feel inclined to agree with Tudball, J. of Allahabad High Court that in this case in the interest of justice the technical irregularity should be remedied by the learned Sessions Judge by summoning the woman and the witnesses who had deposed that Exh. P‑3 was the photograph of the woman who was living with the accused.

41. There is no doubt that this case has not been properly conducted in the trial Court where the most material question was not put to the witnesses. Under the scheme of the Criminal Procedure Code a duty is placed on the Court not merely to listen to the evidence, but to inquire into the truth of the matter and so to secure justice. Accordingly if any restriction is to be placed upon the power conferred on the appellate Court by Section 428, quote the words of McPherson, J. in A I R 1925 Pat. 526 it certainly cannot be, that negligence or inadvertence e on the part of the prosecution is to be allowed to effect a mis carriage of justice; on the contrary the enactment is, like the other provisions referred to in the Criminal Procedure Code, directed to the attainment of justice even at a late stage in the proceedings, by the introduction of further materials which the Court judges to be essential to a just decision of the case. In my opinion, the appellate Court is by no means condemned to countenance a miscarriage of justice because the prosecutor or even the trial Court fails to realise the necessity of bringing certain evidence on the record, even if that evidence is not purely.

42. Under the circumstances, the only solution which seems to be equitable is to set aside the order passed by the learned Sessions Judge and direct him to exercise his powers in appeal and examine such witnesses as have deposed about the identity of the woman and of the photograph Exh. P. 3 and then to decide the whole case on merits afresh either way in accordance with law.

43. All the witnesses in this case need not be questioned on this point, but it would be necessary to ascertain in the interest of justice from those witnesses who have deposed about the photograph Exh. P‑3 and also from the complainant whether the photograph Exh. P‑3 was of the complainant s wife. It would be necessary to mention here that the accused should be‑ given an opportunity to question those witnesses and to explain further his position to Court.

44. With the direction given above, the order passed by the learned Sessions Judge is, therefore, set aside. A. R. KHAN, J.‑--Announced by me to‑day on behalf of Mr. Justice M. B. Ahmad. K.B.A. Order accordingly.