P L D 1963 (W (PLP)

ABDUL AZIZ KHAN, J.-This is an appeal under section 411-A of the Code of Criminal Procedure by Lt.-Col. Muhammad Yusuf, who was tried and convicted by a learned Judge of this Court under sections 497 and 498 of the Pakistan Penal Code, and sentenced to fines of Rs. 12,500 and Rs. 7,500, respectively. In default the appellant is to undergo six months' rigorous imprisonment on each charge, and the sentences to run consecutively.

2. Briefly stated, the facts of the prosecution case are Syed Ali Nawaz Gardezi (hereinafter referred to as the com plainant), a Shia Muslim, married a Christian girl, Christa Renate Sonntag by name (hereinafter to be referred to as the lady), who was a German National, at Hull (England), on the 21st of July 1951, in accordance with the provisions of the (English) Marriages Act, 1949. Exh. P. 5 is a certified copy of the entry in the register of marriages issued by the Superintendent Registrar of Marriages at Hull. After the marriage, the spouses lived at Hull up to October 1953. A daughter and a son were born of this union. The complainant returned to Pakistan in October 1953 along with the lady and the two children. The couple had another son in 1954 while they were in Germany. Since their return in 1955, the complainant has been living along with his family in Gulberg, Lahore. The couple last went to Europe in April 1961 and returned to Pakistan by land in August 1961. On reaching Quetta on the 13th of August 1961, they stayed at the Circuit House, where accommodation had been reserved for them by M r. Jamil Ahmad, C. S. P., Political Agent, Noshki, C. W.5, The appellant, who was the Commissioner of Quetta Division, and his wife invited the couple to a coffee party and then to dinner. As they intended to leave Quetta on the morning of the 18th of August 1961, they went to the appellant's house on the 17th of August 1961 to thank him and his wife for the hospitality shown to them during their stay. The appellant told them that as the Quetta-Lahore Road was under water near Sibi, they should go to Lahore via Ziarat-Loralai-Dera Ghazi Khan. As the appellant was himself going on tour to Ziarat on the 18th of August 1961, he asked them to accompany him there, stay with him for the night, and then continue their journey on the morning of the 19th of August 1961. The invitation was accepted and the couple accompanied the appellant to Ziarat. On reaching Lahore, the complainant wrote a letter to the appellant thanking him for his hospitality. A similar letter was written by the lady to the wife of the appellant. While thanking the appellant, the complainant asked him to stay with them on his next visit to Lahore. The appellant availed himself of the invitation and stayed in the complainant's house at Gulberg for two or three days in the beginning of September 1961.

3. In the middle of September 1961, the lady went to Murree to attend the Founder's Day Celebrations of the Lawrence College, Ghoragali, where her two sons were being educated. During her stay in Murree, she put up in the Cecil Hotel. While the lady was in Murree, the appellant happened to be there to attend the Commissioners' Conference. He, too, was putting up in the Cecil Hotel in a room next to that of the lady. She returned from Murree on the 19th of September 1961. The lady's statement Exh. C. W. 1/1 shows that the appellant gave her Rs. 500 during her stay in Murree and that the complainant, having found this amount in her handbag, returned it to the appellant. The latter part of the statement is in the lady's cross-examination by Mr. Batalvi on page 179 of the proceedings.

4. Some time in the middle of November 1951, while the complainant was checking the mail, he found a letter (Exh. P. 1) addressed to the lady. It appeared to be in the handwriting of the appellant. On opening it, the complainant was surprised to see that it contained an expression of love for the lady. It will be useful to reproduce the relevant part of it :-- "Commissioner's House, Quetta. 9 Nov. * * * Your letters of Tuesday morning and night delighted me. But the deliberations of this afternoon and tonight, I find, almost exhausting. The result, however, is successful. She has agreed and when I convinced her that we truly love each other and that I would leave her in any circumstances she even gave her blessings and promised to help counteract scandal. I shall tell you more about it tomorrow morning. The Matter is, therefore, settled so far as my side is concerned and I am ready for you as soon as you are. As you see, determination triumphs in the end. * * * * Do not delay the signing of the declaration-but conduct yourself with prudence and tact, without giving away our impatience. I have snatched a few moments to write to you and I must now hurry back. I have not yet disclosed your identity, nor that we write or telephone. * * * * * * * * * * * * Yusuf." It is important to note that the words "I convinced her" in the letter refer to the appellant's first wife who, according to the appellant, had agreed to the appellant's second marriage with the lady. The complainant talked to the lady on this delicate subject after a few days. At the trial, the complainant was not allowed to state what her reply was as an objection had successfully been raised to the admissibility of such a statement.

5. On the 27th of November 1961, the complainant left Lahore for Rawalpindi and Peshawar on tour. He returned to Lahore on the 29th of November 1961, i.e., a day earlier than his scheduled return, and found the lady missing from the house. On inquiries he learnt that she had gone to Quetta. Thereupon he booked a trunk call to Quetta but could not contact the lady as she had gone to Loralai along with the appellant and his wife. The complainant then booked a trunk call for Loralai and asked the lady to return to Lahore immediately. The same day, the complainant received the following telegram from the lady :- "ARRIVE MONDAY PIA ALL WELL DON'T WORRY LOVE RENATE"

6. On the 1st of December 1961, the complainant received the appellant's telegram from Quetta (Exh. P. 8) informing him that the lady would reach Lahore by Tezgam on the 2nd of December 1961. It will be useful to reproduce the contents of the telegram Exh. P. 8, which are as follows :- "GARDEZI 26H GULBERG LAHORE RENATE DESPATCHED SAFELY BY BOLANMAIL ARRIVING LAHORE TEZGAM SATURDAY ELEVENFORTY AM (.) REGARDS (. ) YUSUF" The prosecution alleges that on her return to Lahore the com plainant took the lady to task for having gone to Quetta clandestinely and gave her a severe beating.

7. The complainant and the lady left Lahore for Rawalpindi on the 5th of December 1961 to bring their sons from the Lawrence College, Ghoragali, and stayed for the night at Rawalpindi in Flashman's Hotel. According to the defence, she wrote letter Exh. C. W. 1/6 to the appellant on Flashman's stationery. The relevant portion of it reads :- "Wednesday night. * * * * * I was expecting your call this morning and although I could think of many reasons why you might have been unable to ring me, having been seething with suppressed fury all day, snapping the head off anyone, who was imprudent enough to come near me-Look, this is what you do to me! He is just having his bath. Hope I can post this unobstru sively. * * Why did you let me go back to him? Do you care for me so little. * * * * God knows how I shall survive these 3 months. Ring me on Thursday. * * * Renate."

8. On the 14th of December 1961, the complainant gave a party to celebrate the birthday of the lady, and on the 23rd of December 1961 he gave a Christmas Party to his staff at which she acted as hostess. The complainant and the lady also attended a Special Christmas Service in the F. C. College Chapel on the 24th of December 1961.

9. According to the complainant, the lady showed him two chits (Exhs. P. 3 and P. 4) on the 29th of December 1961 and asked him to sign them. It will be advantageous to reproduce here Exh. P. 3, which reads :- "While in full possession of -my senses and having considered the matter objectively, I- son of--hereby divorce my wife--d/o

of my own free will and set her at liberty to marry whomsoever she likes. I shall have no cause for any complaint or litigation against her or the person whom she may marry." Exhibit P. 4 is more or less similar to Exh. P.

3. The com plainant refused to sign them and put her off by saying that they could discuss the matter in March 1962 after the boys return to their school on the expiry of the long vacations.

10. On the 30th of December 1961, when the complainant returned from his office, at 1-30 p.m., he found the lady missing from the house. The servants and the children told him that she had left, taking three suit-cases with her. On learning this, the complainant went tot the Lahore Railway Reservation Office to find out if the appellant had booked any accommodation for a journey to Quetta, He was informed that a 1st-Class air-conditioned coupe had been reserved for the appellant by Khyber Mail on the 31st of December 1961. Earlier the complainant had learnt from the appellant that Lt.-General Bakhtiar Rana, Martial Law Administrator Zone `B', was his (appellant's) friend, and he accordingly went to the General's house, hoping to find lady and the appellant there. On inquiry, the General's servants showed him a room occupied by the appellant. On entering the room, the complainant found the appellant and the lady there. He tried to persuade the lady to return home for the sake of the children and to avoid a scandal but she would not agree. The appellant then requested the complainant to divorce the lady so that he (appellant) could marry her, and also said that the lady could only accompany the complainant over his (appellant's) dead body. Being thus disappointed, the complainant left the General's house.

11. On the 1st of January 1962, the complainant posted a letter (Exh. D. 3) to the lady at Quetta. It will be advantageous to reproduce it:- "Lahore 1/62 Renate They say when calamities befall they never do singly. Little Pumpy 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 Pumpy 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 understand. 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 Pumpy. 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 for your detailed reply. (Here followed a couple of lines in German). Love from us all. Nawaz." (What is written in the German language at the end of the letter is to this effect : "Write often ring soon" as deposed to by the complainant and recorded at page 205 of the proceedings). This letter was sent by the complainant in an envelope, Exh. D. 2, which bears the address "Renate c/o Lt: Col. Muhammad Yusuf Khan, Commissioner, Quetta". The name of the appellant, his designation and the word "Quetta- are typed on the envelope. According to the complainant, this was one of those envelopes which the appellant had given to the lady for posting letters to him to avoid female handwriting on the envelope. The words "Renate" and "c/o" are in the handwriting of the complainant. The complainant had found this envelope in a cupboard in the house.

12. The complainant then wrote a letter to his brother, Syed Ali Husain Gardezi (P. W. 6), at Multan, and asked him to reach Lahore immediately. On his brother's arrival on the 2nd of January 1962, the complainant decided to file a complaint against the appellant, and accordingly contacted Mr. M. A. Rahman, Advocate, on the 4th of January 1962.

13. The lady had taken with her the keys of the cupboards. She sent them to a couple, Mr. and Mrs. Amin, referred to in the letter cited in paragraph 11 above, and asked them to hand them over to the complainant along with the letter Exh. P. 13 which was in envelope Exh. P.

12. On opening the cupboard in his house, the complainant found the letter Exh. P. 14 (page 42 of proceedings). Its relevant contents are :- "6 Nov. morning. * * * This morning's call overjoyed me beyond bounds. I am enclosing the draft declaration, according to law. Forms are not available. This should be written in his own handwriting and signed by him. If it is typed, it shall have to be signed by two reliable witnesses which won't be desirable. I would, therefore, suggest that it should be written and signed by him. * * * * have this done without any delay. 'As for my declaration, it shall be as follows and I'll write it and sign it, whenever you wish it, my love:- `While in full possession of my senses and having con sidered the matter objectively, I hereby declare that I shall release/divorce my wife -d/o--, if after a year of marriage with me she decides to leave me, and set her at liberty to marry whomsoever she likes. I shall have no cause for any complaint or litigation against he; or the person whom she may marry. ' Au Revoir, * * * I must post this letter as I don't want it to miss the mail. * * * * * * * * Yusuf." The above letter, which has been held to be genuine, was obviously written after the receipt of the lady's telegram Exh. C. 2 dated the 5th of November 1961 which will be referred to presently.

14. The defence case, as it emerges from the statement of the appellant, the suggestions made to the complainant by the defence counsel in the course of his cross-examination, and the statement of the lady, is that since the 19th of September 1961, the lady had informed the complainant that she loved the appellant and begged to be released by him (complainant). The complainant did not agree to the suggestion but eventually agreed to discuss the matter with the appellant who, on hearing from the lady, came to Lahore on four days' leave (23rd to the 26th of October 1961, both days inclusive) and stopped at Faletti's Hotel. The lady rang him up and told him that the meeting between the three of them had been fixed at the complainant's house on the 25th of October 1961. In the course of the con versation at the meeting the complainant suggested that the appellant should not have any kind of communication with the lady for three months. The complainant was of the view that if the appellant cut himself off from the lady for three months, the infatuation would pass and everything would be all right. The appellant accepted the proposal. On the 26th of October 1961, however, the appellant again visited the complainant's house at the latter's suggestion. On this date, i.e., the 26th of October 1961, the lady gave up Christianity and embraced Islam in the presence of the appellant, who made her recite the Kalima and explained its meaning and significance to her. The appellant returned to Quetta, and on the 30th of October 1961, he received a telegram (Exh. 1) from the lady. It reads : "TAKE NO FURTHER STEPS AWAIT LETTER AND INSTRUCTIONS RESUME CALLS RAUF." According to the defence, the letter referred to in this telegram is Exh. 3, and reads :- "Monday. * * * We came back from Murree last night after spending two days with the children. Do you know, now at last I under stand the term `romantic holiday' and I assure you that I should not like to have another one We stayed at `Brightlands', a place right opposite Cecil, whence we commanded a full view of all `historical' places. I cannot remember when I have felt so miserable and desolate before-except, may be, at the air port last Thursday. The bearer tells me that you called last Saturday. It made me very, very happy. I should have been hurt had you thought it your duty to stick to a promise given on the spur of the moment, without due consideration Anyway, there is no need for it now. I have told N that I do not need 3 months to make up my mind, but that I have decided that I love you and cannot live without you; and while I will stay with him until March for the sake of children, I shall not only write to you as before, but also insist on your writing and phoning. (He seems to object to phoning more than to your writing). He has now made one last suggestion, it is the only way out, he says, and I am inclined to agree. But will you, I wonder. Since I may not have time to tell you all about this morning, let me at least warn you, that under no circumstances must you be linked with me, as far as `you good lady' is concerned. So no confessions of any kind, until you hear `the plan'. Let me say, good-bye, for now visitors are expected.-Do you know, I am beginning to find you a little more human (after the last morning) but love you all the more. I bet marriage with you is no bed of roses-but I should hate that, anyway. Yours own, R.

15. On or about the night of the 5th of November 1961, the complainant and the lady had an unpleasant altercation and the, complainant told her that he was not going to divorce her. Thereupon the lady said that in case she was not granted a divorce, she would leave him immediately, whereupon the complainant gave her a severe beating. (Page 59 of the proceedings). According to the lady, she threatened the com plainant that she was going to send for a doctor, get herself examined, obtain a medical certificate of the injuries on her person, and then proceed against him for a divorce on ground of physical cruelty. (Page 75 of the proceedings). The complainant admitted having beaten the lady but gave a different reason from the one given by the lady. According to him, he beat her on the 2nd of December 1961 for having gone to Quetta without his permission. (Page 7 of the proceedings). We will consider the factum and the cause of the beating at the proper stage in this judgment.

16. The lady's conduct, inasmuch as she threatened the complainant to proceed against him on the ground of physical cruelty, was quite different from her previous submissive conduct. This change made the complainant realise that she was not the same old submissive Renate who had no one in this country to help her against her husband's tyranny. The complainant's apprehensions were well-founded because now she had a person of the status, influence and position of the appellant to help her and protect her. On realising that the lady was prepared even to go to Court and ask for a divorce on the ground of cruelty, the complainant promised to divorce her.

17. On the 5th of November 1961, the lady sent telegram Exh. 2 to the appellant. It reads:- "RELEASE SECURED SEND LAWYER'S DRAFT AND INSTRUCTIONS." On the receipt of this telegram, the appellant spoke to the lady on the telephone and thin wrote her the letter Exh. P. 14, which contained the form of the divorce. The contents of this letter have already been reproduced in paragraph 13.

18. The lady gave Exh. P. 3 to the complainant for writing the divorce deed. He took it to his office, saying that he would do the needful there and then give it to her. Subsequently, however, the complainant pretended that he had lost Exh. P. 3. n the meantime, the appellant happened to come to Lahore and gave the lady another draft to be written and signed by the complainant, who copied it out and signed the same in the presence of the lady and then delivered it to her at his (com plainant's) house on the 16th of November 1961. The divorce deed Exh. D. 1 reads as under:- "While in full possession of my senses and having considered the matter objectively, I, Syed Ali Nawaz son of S. M. Nawaz, hereby divorce my wife Christa Renate, d/o Emil Sonntag, and set her at liberty to marry whomsoever she likes. I shall have no cause for any complaint or litigation against her or the person whom she may marry. Lahore. Dt. 16-XI-61. (Sd.) S. Ali Nawaz Gardezi."

19. According to the defence version, the marriage between the complainant and the lady was dissolved by the divorce deed Exh. D. 1 as the lady had embraced Islam, as already stated, on the 26th of October 1961. It is also the defence case that the lady, who had been formally divorced by means of the divorce deed Exh. D. 1 on the 16th of November 1961, had agreed to continue living in the complainant's house during the stay of their sons who were coming home from Lawrence College on long vacation. Towards the end of December 1961, however, the lady realised that it was impossible for her to continue living in the complainant's house, away from the appellant for whom she had made a big sacrifice. She, having been divorced, was a free woman and could leave the complainant's house any time she liked. She, therefore, left the complainant's house of her own free will on the 30th of December 1961 and accompanied the appellant to Quetta on the 31st of December 1961 and married him on the 2nd of January 1962 in the presence of very respectable persons.

20. It will appear from the above statement of facts that the following points are admitted and, therefore, are not in dispute :- (1) That the lady and the complainant were married at Hull (England) on the 21st of July 1951 ; (2) that three children were born of this union ; (3) that the complainant and the lady returned from Europe by land in August 1961 ; (4) that they reached Quetta on the 13th of August 1961 and met the appellant, who was very hospitable to them; (5) that the appellant came to Lahore in the beginning of September 1961 and stayed in the complainant's house ; (6) that in or about the middle of November 1961 the com plainant intercepted the appellant's letter Exh. P. 14 to the lady in which the appellant had expressed his love for the lady ; (7) that the lady went to Quetta on the 27th of November 1961 by a P. I. A. plane and returned to Lahore on the 2nd of December 1961 by Tezgam ; (8) that the complainant went on tour to Rawalpindi and Peshawar on the 27th of November 1961 and returned to Lahore on the 29th of November 1961 ; (9) that the appellant came to Lahore towards the end of December 1961 and stayed in the house of his friend Lt.-General Bakhtiar Rana, Martial Law Administrator, Zone B'; (10) that the lady left the complainant's house on the 30th of December 1961 and joined the appellant in the General's house ; (11) that the complainant went to the General's house on the evening of the 30th of December 1961 and tried to persuade the lady to return to his house, to which she would not agree ; (12) that the appellant and the lady left Lahore for Quetta on the 31st of December 1961 by Khyber Mail; and (13) that the appellant married the lady on the 2nd of January 1962 at Quetta.

21. At the trial, the case of the appellant, which was suppor ted by the lady, was :- (1) That the lady, the complainant and the appellant met at the complainant's house on the 25th of October 1961 where it was decided that the appellant should have no communication with the lady for three months and if on the expiry of three months she still wished to marry the appellant, the complainant would let her go and would not stand in her way ; (2) that the lady renounced Christianity and embraced Islam on the 26th of October 1961; (3) that the complainant executed the divorce deed Exh. D. 1 on the 16th of November 1961 and handed it over to the lady who, on the following day, gave it to the appellant; (4) that in spite of the divorce deed, the lady continued to live in the complainant's house as her sons, who were studying in Lawrence College, Ghoragali, were coming to Lahore for long vacation and were expected to remain here till March 1962 ; (5) that the lady realised towards the end of December 1961 that it was not possible for her to live in the complainant's house away from the appellant and accordingly she joined the appellant at the General's house on the 30th of December 1961: (6) that the lady accompanied the appellant to Quetta on the 31st of December 1961 by Khyber Mail; and (7) that the lady and the appellant were validly married at Quetta on the 2nd of January 1962.

22. The above assertions of the defence are not accepted by the complainant. His case is that (1) the lady had been enticed away and taken -away by the appellant during the continuance of a valid marriage between them, and (2) that the appellant committed adultery with her. The complainant also alleged (3) that the appellant was guilty of bigamy. The complainant (4) denies having executed the divorce deed Exh. D. 1 which, accord ing to him, is a forgery.

23. It will be useful to reproduce here sections 497 and 498 of the Pakistan Penal Code. They run :- "

497. Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor." "

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 man, 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 imprison ment of either description for a, term which may extend to two years, or with fine, or with both." The essential ingredients of section 497 of the Pakistan Penal Code are-- (i) Sexual intercourse by a man with a woman who is and whom he knows or has reason to believe to be the wife of another man; and (ii) such sexual intercourse must not be with the consent or connivance of the husband.

24. In a case under sections 497/498 of the Pakistan Penal Code, the onus is on the complainant to establish his marriage with the woman. In the case to hand, the complainant and the lady were married at Hull on the 21st of July 1951 according to the provisions of section 45 of the (English) Marriages Act, 1949. The factum of the marriage is admitted by the appellant and the lady. Their admissions are supported by the certificate Exh. P. 5 issued by the Registrar of Marriages. Mr. Mahmud Ali, learned counsel for the appellant, vehemently argued that the complainant and the lady were not validly married at Hull in 1951. He argued that under Private International Law the validity of the marriage under the Marriages Act of 1949 has to be determined according to lex loci domicilli. Mr. Mahmud Ali further argued that according to the law of the complainant's domicile, a Shia cannot marry a Christian woman. In support of his submissions he relied on the following books :- (1) Mulla's Mahomedan Law, 19th Edition, page 227, note in small print. (2) Digest of Muhammadan Law by Baillie, page 29. (3) Muhammadan Law by Tyabji. (4) Muhammadan Law by Shaukat Mahmud, 1960 Edition, page 32. (5) Muhammadan Law by Aziz Ahmad, page 114. (6) Muslim Marriages, Dower and Divorce Laws by C. M. Shafqat, page

30. In the course of his cross-examination, the complainant stated that he is an Imamia Shia. He also stated that if any doctrine of Imamia Shias is in conflict with the Holy Quran, he follows the latter (page 527 of the proceedings). Persons who in case of a conflict between a doctrine of the Shia Sect and the Holy Quran prefer the latter are called Asuli Shias. Although the complainant does not specifically claim to be one, his statement at page 527 of the proceedings is to that effect. According to Asulis, a Muslim can marry a Christian woman (Kitabia) and such a marriage is valid. All the sects of Muslims believe in the Holy Quran, which is the source of all personal laws of the Muslims. In Sura-tul-Ma'ida it has been stated that "the virtuous women of the Believers and the virtuous of those who have been given the book before you are lawful for you when you give them their dowers, taking them in marriage and not in fornication, not taking them as secret concubins." (Page 253 of the translation of the Holy Quran by Maulana Muhammad Ali).

25. In considering the capacity of the complainant to marry, regard must also be had to the provisions of the Pakistan Christian Marriages Act, 1872, section 4 of which lays down that every marriage between persons, one or both of whom is or are a Christian or Christians, shall be solemnised in accordance with the provisions of section 5 of the Act, and that any such marriage solemnised otherwise than in accordance with those provisions shall be void. Section 5 lays down that marriages may be solemnised in Pakistan by various categories of persons, including a Marriage Registrar appointed under the Act. Although, unlike subsection (2) of section 45 of the (English) Marriages Act, 1949, the Pakistan Act does not explicitly lay down that no religious service shall be performed at any marriage solemnised in the office of a Registrar, it is clear that marriages performed before a Marriage Registrar are of a non-religious character. On the other hand, like the English Act, section 51 of the Pakistan Act requires that at some stage in the ceremony each of the parties shill declare as follows or to the like effect :- "I do solemnly declare that I know not of any lawful impediment why I, A.B., may not be joined in matrimony to C.D." Even if it be held that the beliefs of any religious sect constitute such an impediment, a man's religious beliefs are entirely personal to himself. To cite an analogy, the Roman Catholic Church does not recognise the validity of divorce, but if a Roman Catholic were to declare before a Marriage Registrar that he knew of no lawful impediment to his marriage, the Registrar would not refuse to marry him on the ground that his declaration was contrary to Roman Catholic beliefs. In the present case, the complainant stated in evidence that in the event of any conflict between the Holy Quran and the Shia tenets, he adheres to the former, which permits a marriage with a Christian woman. There was therefore no impediment in the marriage of the com plainant with the lady.

26. After considering all the material on the subject on the record, we agree with the learned trial Judge (page 145 of the judgment) that the marriage entered into by the complainant and the lady at Hull on the 21st of July 1951 was a valid marriage.

27. The next point to be determined is whether the lady was the legally wedded wife of the complainant on the 30th of December 1961 when the appellant is alleged to have enticed her away and taken her to Quetta. The complainant's case is that the lady was his legally wedded wife on the material date and that their marriage can be dissolved only by a decree of the Court. On the other hand, the appellant's case is that the lady, who had become a Muslim on the 26th of October 1961, was legally divorced by the complainant on the 16th of November 1961 by means of a divorce deed (Exh. D. 1) and that the marriage was thereby dissolved. We shall consider the question of the dissolution of the marriage and its consequences at a later stage of this judgment. At present we proceed to consider the alleged visit of the appellant to Lahore from the 23rd to the 26th of October 1961 and the incidents that happened during his said stay in Lahore.

28. In the middle of September 1961, the lady went to Murree to attend the function in connection with the Founder's Day of the Lawrence College, Ghoragali, where her two sons were being educated. She stayed in the Cecil Hotel, where the appellant, who had gone to attend the Commissioners' Conference, was also staying. She returned to Lahore and reached her house on the 19th of September 1961 at 9 p.m. She greeted the com plainant, who had gone to bed, but he ignored her. Thereupon the lady went into the adjoining bedroom. The complainant joined her there and asked her why she had arrived so late. The lady replied that she had called on some friends at Rawalpindi and hence the delay. The complainant said that he was tired of her and wished to find out a way of getting rid of her. The lady retorted that he could get rid of her by divorcing her. Previously the complainant's remarks like the one given above never provoked the lady but this time she burst out, hit him back and gave him the above reply. The change in her attitude created a suspicion in the mind of the complainant that it was due to the fact that she had found a protector. The complainant asked the lady the reason for her change of attitude. Thereupon she told him that she was very fond of the appellant and wanted to marry him. The complainant, who was taken aback, asked her to be sure that the appellant would continue to love her after he (complainant) divorced her. The lady then replied that the appellant was agreeable to marry her on her being divorced.

29. Some time in October 1961, the complainant told the lady that he was not sure of the appellant's intentions and, therefore, suggested that the matter should be discussed with the appellant in her presence. Thereupon the lady asked the appellant to come to Lahore on the 23rd of October 1961 and participate in the meeting proposed by the complainant. The appellant came to Lahore on four days' leave from the 23rd to the 26th of October 1961. In the course of the meeting on the 25th of October 1961, it was mutually decided that the appellant should have no further association and communication with the lady for three months. The complainant thought that if the appellant did not communicate with the lady for that period, the infatuation would automatically disappear. The complainant agreed to divorce the lady in case, on the expiry of the said three months, she still desired to marry the appellant. The appellant met the lady at her house on the 26th of October 1961. Accord ing to the defence, she embraced Islam on this day. Two days after the appellant left Lahore, the complainant suggested that the lady should accompany him to Murree to meet their children in Lawrence College, Ghoragali. , The lady had sensed that the complainant was taking her away to Murree. in order to make her forget the appellant. While they were in Murree, the lady told the complainant that she could not adhere to the agree ment that she would not have any communication with the appellant for three months. On their return to Lahore, the lady sent telegram Exh. 1 to the appellant on the 30th of October 1961. The telegram reads :- "TAKE NO FURTHER STEPS AWAIT LETTER AND INSTRUCTIONS RESUME CALLS RAUF." According to the evidence, it is established that the sender "Rauf" is the lady. The learned trial Judge has also held to this effect as would appear from the following passage occurring on page 191 of the judgment :- "Though the name of the sender of this telegram is given as `Rauf', it is established by the evidence on the record that the sender was no other than the lady in the case, and the name `Rauf' was used so that the identity of the lady in the case should not become known."

30. It has been argued on behalf of the appellant that the letter referred to in this telegram is Exh. 3, which has been reproduced in paragraph 14 of this judgment. The following sentences in the letter are noteworthy :- "I have told `N' that I do not need three months to make up my mind and that I have decided that I love you and cannot live without you, and that I will live with him until March for the sake of the children and shall not only write to you as before but I shall insist on your writing and phoning." The above passage leaves no room for doubt that Exh. 3 is the letter referred to in the telegram. It is noteworthy that there is a clear reference to three months' period in Exh. 3 during which period the appellant had agreed not to communicate with the lady. The initial "N" in Exh. 3 denotes Nawaz, i.e., the Complainant. The words "resume call" ill the telegram Exit, 1 mean that the appellant, in spite of his promise, should com municate with her and resume speaking to her on the telephone. This demand is reiterated in the letter Exh.

3. The appellant placed it on the record on the 29th of January 1962 while making his statement under section 342 of the Code of Criminal Procedure. The learned trial Judge has not relied on this letter. In his opinion it was not genuine and had been prepared for the defence of the case. We will deal with the genuineness or otherwise of this letter and the other letters on the record presently.

31. We agree with the learned trial Judge that the appellant was in Lahore from the 23rd to the 26th of October 1961 (both days inclusive), (page 158 of the judgment). The defence case is that it was at the instance of the complainant that the lady had asked the appellant to come to Lahore on the 23rd of October 1961 to discuss her future. According to the learned trial Judge, the object of the appellant's visit was different from the one asserted by the defence, as would appear from the following passage in his judgment:- "I am satisfied that when the accused came to Lahore on four days' leave from the 23rd to the 26th of October 1961, he came at the invitation of the lady in the case. In the statement she made on the 30th of January 1962 she had stated that the complainant was on tour on the 21st of October 1961 with an engineer and was not expected back till the evening of the 23rd of October 1961. She admitted that she had informed the accused that the complainant would be out of Lahore till the evening of the 23rd of October 1961 as is clear from page 69 of the record. The visit of the accused to Lahore from the 23rd of October 1961 to the 26th of October 1961 was clearly made to take advantage of the absence of the com plainant from Lahore. Before the accused could leave Quetta he had to take permission of Government, and it is for that reason that the time between the 21st and the morning of the 23rd of October 1961 could not be availed of by the lady in the case and the accused." (Pages 158-159 of the judgment.) With respect, we do not agree with the above finding of the learned trial Judge. Learned counsel for the appellant stated, without contradiction, that the appellant applied by teleprinter on the 13th of October 1961 for four days' leave from the 23rd to 26th of October, his application being granted on the 16th of October. In support of his statement, learned counsel placed on record attested copies of the teleprinter messages from the record of the Civil Secretariat. If the object of the appellant's visit to Lahore as given by the learned Judge is not accepted, then the material left on the record is to the effect that the lady had asked the appellant to come to Lahore for a discussion with the complainant as contended by the defence. After considering all the material on the record, and the arguments of the parties, we hold that the appellant came to Lahore on the 23rd of October 1961 on the lady's suggestion to discuss her future with the complainant, and that it was decided in the meeting that the appellant should have no association or communication with the lady for three months, anti if at the end of this period she still wanted to marry the appellant, the complainant would have no objection to release her by granting her a divorce.

32. The learned trial Judge has not relied on letters Exh. 3 and C. W. 1/6 as, in his opinion, they were not genuine and had been prepared for setting up a defence in this case. The circum stances in which these letters were placed on the record will appear from the following passage occurring at pages 54 to 57 of the judgment of the learned trial Judge :- "I have also mentioned in the same paragraph (paragraph 25) that I had asked the lady in the case on the 30th of January 1962 whether she had seen with the accused the letters she had written to him and she had answered in the affirmative but had added that the envelopes had not been preserved. It has been mentioned in paragraph 18 that when making his statement on the 29th of January 1962 the accused had produced a letter marked as Exh. 3, which has been reproduced at the end of paragraph 18 and which according to him had been sent to him by the lady in the case. My object in questioning C. W. 1 about the letters she had sent to the accused was to get the letters in Court and I had intended to ask the accused to bring the same day all the letters written by the lady in the case to him but forgot to do so. On the morning of the 31st of January 1962, I told the accused that because of his position I did not feel inclined to use coercive process against him which the law authorised me to do and to avoid the issue of coercive process he should himself produce the letters written by the lady in the case to him, whereupon he produced four letters and as this was much too low a number as compared with the number of letters which according to the lady in the case she had written to him, I asked her to select out of the four letters those which could in any manner help the accused and chose the letter Exh. C. W. 1/3 which was brought by me on the record on the 31st of January 1962 while the other three were returned to the accused. * * * * When the case came up for hearing on the 1st of February 1962, I felt that the other three letters, which had been produced by the accused on the previous day but had been returned by me to him should have been kept on the record, and I asked him to produce those letters if he had them with him. He had these letters with him on the 1st of February 1962 also and they were brought on the record as Exhs. C. W. I/6, C. W. 1/7 and C. W. 1/8." The learned trial Judge did not rely on Exhs. 3, C. W. 1/3, C. W. 1/6 and C. W. 1/7 as in his opinion they were not genuine and had been prepared for setting up a defence in this case.

33. The reasons given by the learned trial Judge for the above finding are contained in paragraph 80 of his judgment, the relevant passage running: "There is then the circumstance that though the letter Exh. 3 was produced on the 29th of January 1962, Exh. C. W. 1/6 was not In this connection, I would briefly relate the incidents relevant to this matter. I have said in paragraph 25 that when taking the statement of the lady in the case as C.W. 1 on the 30th of January 1962, I had asked her whether she had seen with the accused the letters she had written to him which, according to her, were sent at the rate of one a day from the 19th of September to the 9th of November 1961, and she answered in the affirmative, when asking the question I was not unmindful of the fact that letters of the lady in the case could be manufactured at any time to suit the accused because she was living with him, and I, therefore, asked her whether the accused had preserved the envelopes also and her answer was in the negative. Now, according to the statement of the lady herself, which I see no reason for not accepting on this point, because even Exh. P. 1, namely, the letter of the accused to the lady in the case dated the 9th of November 1961, which has been reproduced in paragraph -9, says that she had written two letters to him in one day, she had written about fifty letters to the accused. The number of letters produced by the accused in Court was one-tenth of the number of the letters which he had received. Why were then these five letters retained and the others destroyed? The destruction of the letters, if it took place in the ordinary course, must have taken place at a time when this case had neither been instituted nor was there any suspicion that it would be instituted. Why should then letters which contained a hint that there was an agreement of the type mentioned by the accused in Court have been preserved and those which would appear to contain declaration (sic) of love have been destroyed? The circumstances make it clear that the letter Exh. P. 3 was prepared before coming to Court and of the other letters which have been placed on record, three, namely, Exhs. C. W. I/3, C. W. 1/6 and C. W. 1/7, were prepared on the night between the 30th and 31st of January 1962. As regards the letter Exh. C. W. 1/8, I am of the view that this alone is genuine. This letter has the natural ring of a letter written by a woman to a man whom she wants to convince of her love for him and contains no hint of any matter which could arise if a case started against the accused, or the lady in the case, or both." With the utmost respect, the finding of the learned trial Judge is not wholly consistent. On the one hand, he holds by implication that the five letters produced by the appellant were fabricated to support the defence put- forward at the trial, while on the other hand he considers one of the five, namely, Exh. C. W. 1/8, to be genuine on the ground that it has a natural ring and contains no hint of any defence. It is obvious that the finding that one of the five letters was genuine throws at least some doubt on the hypothesis that the others were fabricated.

34. It also appears to us somewhat strange that if the letter Exh. 3, which was admittedly produced or shown to the Court on the 29th of January 1961, had been fabricated for the purpose of the case, no attempt should have been made by the appellant to place it on the record at an earlier stage. The circumstances, oil the contrary, show that the appellant only produced Exhs. 3, C. W. 1/3, C. W. 1/6, C. W. 1/7 and C. W. 1/8 on being compelled by the Court to do so.

35. Finally, we must further observe that there is nothing on the record to show when the other letters written by the lady to the appellant were destroyed, and if the destruction was carried out after the institution of the present proceedings, it appears to us that there would be nothing strange in the appel lant's preserving those letters which' helped his case and destroying the others. On this theory, the preservation of the letter Exh. C. W. 1/8 must have been an oversight. In any case, where doubt exists, the benefit must go to the defence and not to the prosecution and, for the reasons given above, we are unable to agree with the learned trial Judge that the letters in dispute are proved to have been fabricated. It has been stated above that these letters were not referred to by the appellant or the lady till they were brought on the record under orders of the Court. In the circumstances, the learned Judge was not justified in holding that these letters were not genuine and had been prepared for supporting the case set up by the lady and the appellant.

36. The above-mentioned letters were not placed on the record voluntarily. Letter Exh. 3 has been reproduced in paragraph 14 of this judgment. This letter read with the telegram Exh. 1 leaves no room for doubt about the meeting (on the 25th of October 1961) referred to in the earlier part of this judgment.

37. On the 5th of November 1961, the complainant gave the lady a severe beating. The circumstances in which the incident occurred have been stated in paragraph 15 of this judgment and need not be reiterated. It has also been stated that the lady threatened to obtain a medical certificate of the injuries on her person and then sue the complainant for divorce on the ground of physical cruelty. Realising the gravity of the situation the complainant agreed to divorce the lady whereupon she sent telegram Exh. 2, which has already been reproduced in paragraph 17 of this judgment. Its words were:- "RELEASE SECURED SEND LAWYER'S DRAFT AND INSTRUCTIONS RAUF". The language of the telegram is clear enough to convey to the addressee that the sender had secured a release. The word "release" with reference to the context means that the lady had been able to secure her release from the matrimonial bond with the complainant. The words "send lawyer's draft and instructions" mean that the appellant should send her the draft of the divorce deed, prepared in consultation with a lawyer, to be signed by the complainant. The complainant while admitting that the words "release secured" in this context referred to a divorce to be granted by him to the lady, contends that the contents of the telegram are false and that it had been sent to persuade Begum Yusuf to give her consent to the appellant's second marriage. It appears to us, however, to be clear that unless the complainant had really promised to divorce the lady, Begum Yusuf's consent to the appellant's second marriage would be meaningless. In paragraph 13 of this judgment we have reproduced the appellant's letter Exh. P. 14, which the com plainant found in a cupboard in his house. According to the letter the appellant forwarded a draft of the divorce deed. There is also a reference to the undertaking to be given by the appellant at the time of his marriage with the lady. According to the defence, the complainant executed the divorce deed on the 16th of November 1961 and the lady handed it over to the appellant on the following day. The appellant's case is that in spite of this divorce deed the lady continued living in the com plainant's house as her children were coming to Lahore in the beginning of December 1961 for three months' vacation. While she was in the complainant's house she went to Quetta on the 27th of November 1961 by a PIA plane. According to the lady, the return ticket was purchased for her by the complainant. This is, however, denied by the complainant. His case, on the other hand, is that the lady clandestinely went to Quetta while he was on tour to Rawalpindi and Peshawar.

38. According to the complainant he went on tour to Rawalpindi and Peshawar towards the end of November 1961. He returned from the tour on the evening of the 28th of November 1961 and on reaching his house found the lady missing. A servant told him that she had gone to Quetta. Thereupon the complainant booked a trunk call to Quetta at telephone No. 2005, which was the number of the telephone at the Commissioner's House. The complainant learnt on the telephone that the lady had gone to Loralai with the appel lant and his wife. He thereupon booked a trunk call for telephone No. 2 at Loralai and spoke to the lady and direct ed her to come back to Lahore. On the 29th of November 1961 he received a telegram sent by the lady. The telegram is worded as follows :- "ARRIVE MONDAY PIA ALL WELL DON'T WORRY LOVE RENATE."

39. On the 1st of December 1961, the complainant received a telegram from the appellant informing him that the lady would reach Lahore on the 2nd of December 1961. The telegram Exh. P. 8 is worded as follows :- "GARDEZI 26H GULBERG LAHORE RENATE DESPATCHED SAFELY BY BOLANMAIL ARRIVING LAHORE TEZGAM SATURDAY ELEVEN FORTY AM (.) REGARDS (.) YUSUF."

40. The prosecution alleges that the complainant returned to Lahore a day earlier than the scheduled programme and found the lady missing from the house. According to the lady, she had become a free woman on being divorced on the 16th of November 1961 and was only living in the complainant's house for the reason given above: Her visit to Quetta could not be a secret visit at all. A brother of the complainant. Dr. Hasan Nawaz Gardezi (C. W. 6), and his wife (C.W.3) were staying with the complainant at the material time. It was, therefore, impossible for the lady to keep her absence from the house for four days a secret, Mrs. Hasan Nawaz Gardezi (C. W. 3) stated as under :- "She (Christa Renate) had told me on the morning of the 27th of November that she would be going to visit some friends for a few days and would I look after her daughter." (page 251 of the proceedings). The lady did not leave the house for good. She intended to come back. In arriving at this conclusion, we are sup ported by the fact that she had a return ticket for her journey from Quetta to Lahore by a PIA plane. The complainant realised from the Universal Express Rs. 97 as the price of the unused return ticket held by the lady. This fact supports the lady's version that the complainant had purchased the return ticket for her. There is no evidence on the record except the bare statement of the complainant that he returned from tour a day earlier than the scheduled programme. Even his tour programme has not been placed on the record. The fact that the complainant got information from his bearer that the lady had gone to Quetta negatives the prosecution suggestion that she had gone to Quetta on a secret visit. If the servants knew about it, it cannot be said that she intended to keep her visit a secret.

41. The lady described the object of her visit to Quetta in the following words :- "It is correct that in order to find out whether his first wife was prepared to allow Col. Yusuf to marry me I had gone to Quetta on the 27th of November 1961 (not October 1961 as mentioned in the proceedings)." (Page 180 of the proceedings). The telegram sent by the lady is inconsistent with the conduct of a run-away wife. The appellant's telegram to the com plainant is also inconsistent with the conduct of a person who has given shelter to a run-away wife. As already stated in the middle of November 1961, the complainant had inter cepted the appellant's letter to the lady, which contained expressions of love. The lady would not have ventured on a secret visit to the appellant after the interception of the afore said letter. The complainant too could not have allowed the lady to go and live with the appellant at Quetta. All the above circumstances lead to the irresistible conclusion that the lady had gone with the knowledge of the complainant, which is consistent with the defence version that the complainant had divorced the lady who, however, was staying in his house for the sake of the children, who were expected to arrive in the beginning of December 1961.

42. We now proceed to consider the question of the Conversion of the lady on the 26th of October 1961. The direct evidence on this point consists of the statements of the appellant and the lady. In his statement under section 342 of the Code of Criminal Procedure, the appellant stated :- "On the 26th of October I told the lady that I would marry her if she becomes a: Muslim and after she was divorced, because after the divorce a Muslim can marry a Muslim. I actually made her to recite Kalima and translated it for her on the 26th of October when I was at their house. Thereafter the deliberations started. She did recite the Kalima and she recited the translation and she knows it and its translation now." (Pages 31-32 of the proceedings). The lady made the following statement on the subject :- " I became a Muslim on the 26th of October 196,1." (Page 73 of the proceedings).

43. The complainant relied on the following evidence to controvert the allegation of the lady's conversion to Islam on the 26th of October 1961 :- (1) The evidence of Mr. Ali Mazhar Rizvi (P. W. 8) and the press note Exh. P. W. 8/1 issued by him to the Daily "Zamana" of Quetta ; (2) the fact that the complainant and the lady attended the service at the F. C. College Chapel, Lahore, on the 24th of December 1961 ; and (3) the fact that the lady did not disclose the factum of her conversion to the complainant or anyone else till her marriage with the appellant. We proceed to consider the above evidence relied upon by the complainant seriatim.

44. Mr. Ali Mazhar Rizvi (P. W. 8), who was then the Assistant Director Public Relations, Quetta, stated that the appel lant sent for him in his office on the 2nd of January, 1962 at about 10 a. m. When the witness saw the appellant, the latter told him that he was going to marry a German lady in the evening and that he wanted a brief account of the marriage ceremony to go to the press. The witness further stated that the appellant, Mr. Darbar Ali Shah, Political Agent, Quetta, D. W. 2, and Mr. Amir Usman, Deputy Director, Tribal Publicity (D. W. 9) drafted the press note Exh. P. W. 8/1. The appellant then made certain corrections in the draft in his own hand. Before the draft was finalised the appellant informed the witness and others that the lady whom he proposed to marry would embrace Islam and would take the Muslim name Ruqayya. The witness later attended the marriage ceremony at the house of the appellant at 4-30 p. m. and according to him a Maulvi asked the lady to recite the Kalima, which she did. The appellant then translated the Kalima into English and the lady repeated the translation as well. It was proclaimed that the lady's Muslim name would be Ruqayya. The witness categorically stated that the marriage ceremony was performed immediately after the conversion of the The evidence of Mr. Rizvi has to be accepted with care on since,, as pointed out by the learned trial Judge himself, he cannot be said to be well-disposed towards the appellant, who had reported against him as is clear from the D. O. letter to the Director of Public Relations, West Pakistan, dated the 12th of December 1961, (D. W. 10/1), (page 167 of the judgment). The learned trial Judge considered that in spite of his feelings towards the appellant, the witness would not have the courage to give wrong information concerning the Commissioner of the Division in which he himself was posted. This argument would have had considerable substance if the present case had not by then been brought against the appellant, but the witness may have been emboldened by the situation in which the appellant then found himself. Mr. Rizvi's version is not supported by the evidence of Maulvi Abdul Aziz (P. W. 3), Mr. Abdur Rashid Khan, C. S. P:, acting Commissioner, Kalat (D. W. 1), Mr. Darbar Ali Shah, C. S. P., Political Agent, . Quetta (D. W. 2) and Mr. Amir Usman, Deputy Director, Tribal Publicity, Quetta (D. W. 9). Maulvi Abdul Aziz stated that the lady whom he married was stated to be already a Muslim. Mr. Abdur Rashid Khan and Mr. Darbar Ali Shah D. Ws., who hold responsible positions in life, very categorically stated that the lady who was married to the appellant in their presence had already embraced Islam and, therefore, the question of her conversion at the time of the marriage did not arise. The learned trial Judge has not relied on the evidence of these responsible officers for reasons which appear from the following passage occurring in his judgment :- Mr. M. A. Rahman urged, and in my opinion not without justification, that what appeared in Exh. P. W. 8/1 should be taken at its face value and the statements of Mr. Darbar Ali Shah (D. W. 2), Mr. Abdur Rashid (D. W. 1) and Mr. Amir Usman (D. W. 9) on the point should not be accepted as they could not be considered entirely independent." (Page 167 of the judgment). We have carefully considered the evidence of these witnesses and the reasons given by the learned Judge, but find no good reason for disbelieving there. The learned Judge's view that they could not be considered entirely independent does not appear to us, in the circumstances, to be justified. Mr. Ali Mazhar Rizvi, on the other hand, is definitely a hostile witness for the reasons which we have already given.

46. It appears that the learned trial' Judge was also clearly influenced by the language of Exh. P. W. 8/1 and its translation which appeared in the form of a news item Exit. P. W. 9/1 in the Daily "Zamana" of Quetta dated the 3rd of January 1962. It would be advantageous to reproduce Exh. P. W. 8/1. It read as follows :- "Lt.-Col. Muhammad Yusuf, Commissioner Quetta, was married to Christa Renate, daughter of Emil Sonntag, at aquiet and simple ceremony here today. Earlier, Christ Renate embraced Islam and assumed the Muslim name Ruqayya. The marriage was solemnised in accordance with Muslim. Family Laws Ordinance." No doubt, if taken at its face value, the above document gives the impression that the lady was converted to Islam very shortly before the marriage, but it must not be ignored that the factum of the lady's conversion to Islam was made public for the first time on the 2nd of January 1962, and the hand-out referred to may be taken as a source of that publication.

47. As regards the Service in the F. C. College Chapel, Lahore, on the 24th of December 1961, the lady stated that she attended the Service as a sentimental German and not as a Christian (page 84 of the proceedings). This function was no doubt of a religious character but at the same time it was entirely non-denominational as will appear from the sentence in the trans lation of the invitation (page 124, proceedings):- "Differences of confessions should not disturb anyone." The invitation also extends a welcome to Pakistani husbands of the "wives originating from Germany". It is thus clear that the occasion was not exclusively religious but also social and that the lady's attendance at it does not lead to the conclusion that on that date she was still a Christian.

48. The learned trial Judge seems to have been very much influenced by the fact that the lady did not disclose her con version on the 26th of October 1961, to the complainant or anyone else but he has apparently overlooked the necessity for secrecy in the circumstances of the case. We see no reason to reject the appellant's contention that if the complainant had become aware that his wife had been converted to Islam, he might have changed his mind about granting her a divorce. The evidence on the record shows that the lady was extremely desirous of marrying the appellant, who had imposed two conditions for his further association with her. The first condition was that she should embrace Islam and the second that she should be a free woman, i.e., she should obtain a divorce from the complainant. It is on the record that when the lady asked the complainant for a divorce in order to marry the appellant, the complainant told her that their marriage, which was solemnised at Hull (England) could be dissolved only by a decree of the Court. Subsequently the complainant consulted a lawyer and then informed the lady that if she embraced Islam, a divorce deed executed by him (complainant) according to Muslim law would be enough to hoodwink a Maulvi into performing her second nikah (page 64 of the proceedings). The learned trial Judge has relied on the lady's statement that the complainant' told her that the marriage could be dissolved only by a decree of the Court (page 164 of the judgment), but has apparently not taken into consideration her further assertion above referred to. Our feeling is that the lady had by then been told that in case of her conversion to Islam a divorce granted to her under Muslim law would be valid. She, therefore, did not want to disillusion the complainant, who had received the contrary advice that the divorce under Muslim law would not be legal and valid in the eye of law. The complainant's position even at the trial was that his marriage with the lady could only be dissolved by a decree of the Court. In our vie\" the complainant was not willing to release the lady from the matrimonial bond with him. He had promised to divorce her as he had been forced by circumstances to do so because the lady had threatened to sue him for a divorce on the ground of physical cruelty. This could have had repercussions on the career of the complainant who was the head of a Pakistan branch of a German firm. He was certain that a divorce granted according to the rites of Muslim law to his Christian wife would not dissolve the marriage. This may explain why the complainant asked the appellant not to convert the lady to Islam nor let her change her German nationality to Pakistani (page 30 of the proceedings). The lady in answer to a Court question also replied that the complainant had objected to her becoming a Pakistani (pages 71-72 of the proceedings). It appears that the appellant had also sought legal advice on the subject and had been told that in case the lady embraced Islam a divorce given by the complainant under Muslim law would be effective. The lady was, therefore, jealously guarding the secret of her conversion so that the complainant might not change his mind on learning of it because the lady's conversion to Islam would render the divorce effective.

49. The learned trial Judge has drawn an adverse inference from the fact that the lady's conversion was not disclosed to anyone till the 2nd of January 1962, as would appear from the following passage occurring at page 164 of his judgment :- "One finds that the complainant was not taken into confidence about this matter even till the day that the lady in the case left his house for the last time on the 30th of December 1961, as is clear from her statement at page 116 of the record. The case of the defence is that on changing her religion from Christianity to Islam the lady in the case changed her name from Christa Renate to Ruqayya". It is very strange that even when the complainant executed the alleged divorce deed (Exh. D. 1), which has been reproduced in paragraph 14, he was not told that he was divorcing not a Christian but a Muslim." We have carefully considered the reasons given by the learned trial Judge for finding against the appellant on the question of the lady's conversion on the 26th of October 1961, but in our opinion her evidence that she embraced Islam on the 26th of October 1961, and the circumstances referred to above, are sufficient to establish the factum of her conversion to Islam. Moreover, while discussing whether the complainant was an Imamia Shia or an Asuli Shia, the learned trial Judge has observed as follows :- "A person is generally the best witness about his religious beliefs and his statement is to be accepted regarding them unless the contrary is established, and I do not see why the statement of the complainant that he belongs to that sect of Shias which does not consider the marriage of a Shia male with a Christian female as invalid should not be accepted." (Page 144 of the judgment). Applying this principle to the alleged conversion of the lady, we are of the opinion that her statement on the point has not been controverted by any reliable evidence.

50. There is another circumstance which supports the inference that the lady embraced Islam much earlier than the 2nd of January 1962. Father Eugene (D. W. 7) is attached to the Roman Catholic Cathedral, Lawrence Road, Lahore. He stated that he had received a telegram dispatched from Quetta on the 23rd of November 1961 and signed "Mrs. Jackson". This telegram, which is Exh. D. W. 7/1, on the record, was worded as follows:-- "BISHOP OF LAHORE WOMAN CHANGING RELIGION NATIONALITY PLEASE CONTACT MR. GARDEZI WORKING IN SIEMENS COMPANY HE NEEDS YOUR HELP MRS. JACKSON." On receipt of this telegram, Father Eugene contacted the com plainant on the telephone and asked him to come and see him. Accordingly the complainant saw Father Eugene, who showed him the telegram Exh. D. W. 7/1 and. asked him if he knew the person to whom it related. The complainant replied in the negative. The fact that the sender of the telegram had referred to Mr. Gardezi who needed help leads to the irresistible con clusion that the lady referred to in the telegram is Christa Renate. It is also significant that in spite of professing ignorance of the identity of the woman referred to, the complainant should have taken the trouble to preserve the telegram. The telegram supports the defence version that the conversion did not take place at the time of the marriage or a little earlier on the 2nd of January 1962. On the contrary, the fact that this telegram was handed over for transmission at Quetta on the 23rd of November 1961, shows that by that date there were rumours of the lady's conversion to Islam and that those rumours had even reached Quetta. The complainant argued that the telegram shows that the conversion was not complete by the 23rd of November 1961. There is, however, nothing on the record to show that the sender of the telegram was in communication with the lady or had any knowledge of the real state of affairs. It is, perhaps, not without significance that the appellant's first wife (Begum Safia Yusuf) gave her written consent (Exh. D. 4) on the 20th of November 1961, to the second marriage of her husband.

51. After considering the evidence on the subject, we have no hesitation in holding that the lady embraced Islam on the 26th of October 1961 as stated by her. '

52. The next important question to be determined is whether the lady was divorced or not. The defence version is that the complainant wrote the divorce deed Exh. D. 1 in her presence and signed it. Its contents have already been reproduced in paragraph 18 of. this judgment. As already stated, the com plainant denies having divorced the lady by means of this deed. According to him, Exh. D. 1 is neither in his handwriting nor signed by him. In support of his contention, the complainant examined Mr. Muhammad Amin Butt (P. W. 5) and his own stepbrother, Mr. Ali Husain Gardezi (P. W. 6). Mr. Butt is an Electrical Engineer in the Siemens Co. Ltd., Pakistan Branch at Lahore, of which the complainant is the local manager. Mr. Butt claimed to be familiar with the handwriting and signature of the complainant as during the course of their business they exchange communications. On this basis, he stated that Exh. D. I was neither in the handwriting of the complainant nor bore his signature. Mr. Ali Husain Gardezi the stepbrother of the com plainant, stated that Exh. D. I did not appear to be in the handwriting of the complainant nor did it bear his signature. We have already stated that the complainant had sent for his brother, Mr. Ali Husain Gardezi, from Multan on the 31st of December 1961 and, after consulting him, had handed over his case to his lawyer for filing a complaint. As against this evidence, the appel lant relied on the statement of the lady that the complainant wrote and signed Exh. D. 1 in her presence and then gaffe it to her. In cross-examination she stated that the complainant wrote Exh. D. 1 in an "elaborate handwriting". In support of the lady's statement, the appellant examined Mr. Cyril G. Bhan (D. W. 6) and Mr. Zaka A. Malik (D. W. 12) handwriting experts. The learned trial Judge has not relied on the evidence of the two experts.

53. A perusal of the judgment of the learned trial Judge shows that he is profoundly sceptical regarding the existence of a science of handwriting study. At page 184 he remarks :- "In view of the fact that very learned people hive said that there is a science of handwriting identification, I would not say that there is no such science, but have no hesitation in saying that the science would not appear to be as perfect or reliable as handwriting expert (sic) would claim it to be." Again, one of his reasons for declining to accede to the defence request that a foreign handwriting expert be examined is that the evidence of the said expert would not be conclusive. (Page 191 of the judgment).

54. In thus almost completely condemning the science of handwriting study, the learned trial Judge has in our opinion gone too far. As remarked by Osborn in his standard work "Questioned Documents", Second Edition, on page, 659, "a jury, a referee, or even a Judge, may be wholly, uninformed on the particular technical problem under consideration-that is the reason the expert testimony is offered-and the business of the technical expert is to present the testimony as explained and clarified by his illustrations, his special knowledge, and his experience. Fortunately, there are many uncommon and difficult questions that become clear and understandable when properly explained and illustrated and the problem of the hearer is not then merely that of believing or not believing the witness but of understanding the witness and determining whether or not the conclusion presented is justified by the facts and conditions upon which it is based. The whole purpose of this kind of testimony is to enable the hearer himself to reach a conclusion instead of taking a conclusion readymade from the witness. It is just in this important phase of the subject, in which testimony relating to questioned documents permits understandable explanation, that it differs radically from much alienist and medical testimony which the hearer cannot possibly interpret and weigh and which finally amounts to no more than a mere opinion. Conflicts by opposing witnesses in this latter testimony often largely nullify it, which is not true of illustrated and interpreted testimony."

55. The part which experts ought to play in Court cases has been thus defined by their Lordships of the Privy Council in Wakeford v. Lincoln (A I R 1921 P C 168): "The expert called for the prosecution gave his evidence with great candour. `It is not possible, he says, to say definitely that anybody wrote a particular thing. All you can do is to point out the similarities and draw conclusions from them. This is the manner in which expert evidence on matters of this kind ought to be presented to the Courts, who have to make up their minds, with such assistance as can be furnished to them by those who have made a study of these matters, whether a particular writing is to be assigned to a particular person. Questions depending upon handwriting are in many cases doubtful, and in the past have given, and in the future will give, cause for great anxiety in Courts of justice. But upon them, as upon other matters, it is necessary to come to a conclusion * * * *."

56. The principle underlying the science of handwriting study has been well expressed in Rogers on "Expert Testimony", 9th Edition, 449, cited in Monir's Law of Evidence, as follows :- "Experiments and observation have disclosed the fact that there are certain general principles which may be relied upon in questions pertaining to the genuineness of handwriting. For instance, it is asserted that in every person's manner of writing there is a certain distinct prevailing character which can be discovered by observation, and, being once known, can be afterwards applied as a standard to try other specimens of writing, the genuineness of which is disputed. Handwriting, notwithstanding it may be artificial, is always, in some degree, the reflex of the nervous organization of the writer. Hence, there is in each person's handwriting some distinctive characteristic which, as being the reflex of his nervous organization, is necessarily independent of his own will, and unconsciously forces the writer to stamp the writing as his own."

57. While, therefore, it is true that the opinion of hand writing experts must always be received with great caution, such evidence, and the reasons on which it is based, are entitled to careful examination before being rejected.

58. At page 182 of the judgment, the learned trial Judge remarks concerning Mr. Cyril G. Bhan (D. W. 6) :- "The fact that a person has been disbelieved in another case cannot in law be conclusive for saying that he is an untrustworthy witness, but it can hardly be denied that a finding of a Court of competent jurisdiction that a person had perjured himself cannot but have some effect on the Court which is to deal with his evidence." Although we asked the complainant and his counsel to cite any case in which Mr. Bhan was held to have perjured himself, they were unable to do so, and it is obvious that the fact that the evidence of an expert witness has not been accepted by a Court is a very different thing from saying that he was held by the Court to have committed perjury. For example, in Nawab Din v. Crown (P L D 1952 Lah. 345), one of the cases relied upon by the complainant against Mr. Bhan, the learned Judges merely remarked :- "The expert has given four reasons for his view that the letters were written by the person who also wrote the specimen writing. We have checked these reasons by reference to the four documents and their enlarged photographs and consider them to be too meagre and inconclusive to form the conclusion that they were all written by the appellant." Again, in Saadat Ali Khan v. Crown (P L D 1952 Dal. I) Mr. Bhan gave evidence regarding the alleged dissimilarity between an impression on one of the exhibits and those on certain allegedly forged challans, but the Court pointed out that the exhibit in question was made from a sample stamp and not from the actual stamp exhibited in Court. The evidence of Mr. Bhan was consequently not accepted.

59. In another case (No. 9/S.K. of 1960), the Election Tribunal, Sheikhupura, in its judgment dated the 28th of April 1960, after referring to the fact that the opinion of Mr. Bhan and Mr. Zaka A. Malik that the thumb-impression of one Mehraj Din taken by the Tribunal was identical with a thumb-impression on the document Exh. P. A. was dissented from by the experts representing the Finger Print Bureau, remarked :- "Taking all the facts into view, I am inclined to fall in line with the experts of the Finger Print Bureau. It is very sad that the experts have been able to differ on a matter in which had they given their opinion honestly, there could have been no two opinions." The full facts of the case are not, however, before us and though it is, of course, true that when a disputed thumb -impression is absolutely clear and distinct, there should be no two opinions as to whether it is identical with the sample taken by the Court or Tribunal, such a condition is not always fulfilled, and if the impression is, wholly or partly smudged, it is obvious that there is room for a perfectly honest difference of opinion as to whether it coincides with the sample.

60. It is, therefore, not established that Mr. Bhan has ever been held to have committed the offence of perjury and it must also, in fairness, be remarked that by comparison with the large number of cases in which he has given evidence over a period of some thirty years, the number in which his opinion is shown to have been rejected, is small.

61. Mr. Bhan has also been accused by the learned trial Judge of adopting the technique of first refusing to recognise any differences between various letters and words and then, when those differences were pointed out to him, of falling back on the explanation that they amounted to "allowable variation". With respect, we have been unable to find any instance in Mr. Bhan's long cross-examination in which he had first claimed that there were no differences between the letters and words concerned but was later compelled to admit that such differences existed. As for the term "allowable variation" on which scorn has been poured by the learned trial Judge, it is a well-known fact of everyday experience that a certain amount of variation does occur in the handwriting of every person, though the limits vary from writer to writer, and that such variation points to genuineness. In the matter of signature, for example, it has been rightly held that a complete correspondence between several samples of the same signature is a strong indication of forgery.

62. In our opinion, therefore, the learned trial Judge was not justified in rejecting Mr. Bhan's evidence on the grounds he has given. A study of the witness's report reveals that some of his reasons for his opinion are such as can be confirmed by obser vation. For example, in holding that the document Exh. D. 1 is written in a disguised, or as the lady puts it, "an elaborate" handwriting, he has called attention to the fact that some of the letters show added initial strokes while in other cases the same letters do not. One example is the letter "a". Again, he points out that the document yields evidence of two conflicting styles. For example, if the style of writing adopted in Exh. D. I were uniformly followed the middle hump of the letter `D' should be a curve but is in fact angular, which is the complainant's normal manner as revealed in Exh. D. 3 and other samples. Mr. Bhan has also called attention to the fact that although the handwriting in Exh. D. 1 is bold, the writer has repeatedly reverted to curtailment of letters, such as the letter "I", this curtailed form being again a characteristic of the complainant's admitted writing.

63. On the whole, however, we found the evidence of Mr. Zaka A. Malik more helpful than that of Mr. Bhan, but before entering into details we must refer to the general criticism levelled against him by the learned trial Judge.

64. In paragraph 88 of his judgment, the learned Judge remarks as follows :- "The witness reminded me of a reviewer of books who, when called upon to review a book sat down to write the review there and then, and when asked how he could do that without reading the book, he replied that his practice was to write reviews on books without reading them because if he read the books he would get prejudiced. The witness claimed that by merely looking at a document he would be in a position to say whether it was a forgery or not, because, according to him, a forged document bore on itself the hall-marks of an attempt to make the handwriting resemble some other handwriting. I pointed out to the witness that if he had no other document but the one be was examining even according to his own premises he could not say whether the handwriting was the natural handwriting of the person who had written it; but he insisted that he could form view about the document being forged or not by simply looking at that one document. If the witness expected that I would accept this claim of his he must be a very optimistic man. I pointed out to him that if a person wrote in a disguised handwriting he would be forging the whole of the document because he would be trying to write in a handwriting not his own and, therefore, if the document Exh. D. I was written by the complainant in a disguised handwriting, as was the theory of the defence, the document should bear hall-marks of forgery which he said he could discover at a glance and he replied that a writing in a disguised handwriting could be distinguished from a forged document." In the first place, we must point out, in fairness to the witness, that he never claimed that any final opinion as to the genuineness or otherwise of a document could be formed without comparing it with admitted samples. For instance, at page 511 of the record, in answer to a question by the Court as to whether he could tell by looking at one document alone whether 'it is genuine or not, the witness replied: "I can say whether there are indications of forgery." Again, on the next page, the following question and answer occur:- "Q.-So I take it that by looking at a document you are prepared to give an opinion whether this was a forgery or not ? A.-While looking at a document the first thing that I will do will be to form an opinion whether it shows indi cations of forgery or not but definite opinion about the document being forged or not can only be given when it is compared with some other document."

65. Although the learned Judge condemned Mr. Malik largely on the above basis, the witness is supported by Osborn who, on page 364 of the work already cited, remarks :- "No final and definite opinion should be given regarding a disputed writing without finally comparing it with proved genuine writing, but there are certain of these inherent qualities in handwriting that, by the observing, can be seen without comparison with any standard writing whatever, that point towards genuineness and others that are highly significant symptoms of forgery. These qualities in either case cannot alone be relied upon but in any thorough examination should be kept in mind and given their proper weight. This of course is not comparison, but is reasoning from knowledge which is an essential part of a handwriting investigation and also of handwriting testimony. "When writing shows by any quality or in any way that it is the result of unconscious habit this always is a forceful indication of genuineness. This quality is shown by repeated significant characteristics executed with ordinary attention to the operation as indicated by incompleteness, illegibility, natural variation, and the carelessness already referred to. All of these qualities in writing are inconsistent with forgery because they are inconsistent with the mental condition accompanying the act of forgery." When asked what were the indications of forgery, the witness cited blunt terminals, tremor of forgery, careful re-touchings and attention paid to the details. (He also mentioned pencil outlines and signs of tracing, which have no relevance to the present case). The trend of the further questions put by the learned trial Judge to the witness in respect of the above answer shows that he was not impressed by it, but with respect, we are of the view that the answer was correct, all the characteristics the witness has mentioned being based on the essential fact that when a person is imitating the handwriting of another, he generally proceeds slowly and carefully. No doubt, blunt terminals are found in the natural handwriting of many persons and tremors in hand writing may be due to other causes besides forgery, while retouchings are often necessary, as, for instance, when the ink fails, but the following passage from Osborn's book may be cited with advantage :- "In his tense anxiety for a perfect result the forger is naturally dissatisfied with his work as first produced and is its severest critic, often attempting to perfect it by careful overwriting and retouching, thus marking it as unquestionably fraudulent. He knows it is not genuine and attempts to correct that he thinks are its worst faults. "Tremor of extreme weakness and tremor of age have many similar characteristics, and cannot readily be distinguished from each other, but even, the most feeble genuine writing usually has about it a certain carelessness or abandon that marks it as genuine, while tremor of fraud shows a painstaking and unnatural care at every point that indicates an effort to follow an unfamiliar copy."

66. The learned trial Judge has also thrown doubt on Mr. Malik's competence as an expert by holding that he is a man of very little education, in fact, so little as to be only semi-literate (Page 187 of the judgment). With respect, however, this finding, even if correct, is not sufficient to discredit the witness, since the quality demanded of a handwriting expert is that of a keen and discerning observation rather than academic education. An analogy may be found in the case of trackers. Some of the best trackers in West Pakistan are completely, or almost completely, illiterate, but it would be dangerous to discard their opinion as to the identity of disputed tracks merely on that account. Further, Mr. Malik's report does not appear to us to be that of a semi-literate man.

67. What we found most helpful in Mr. Malik's evidence, however, was not his report but the charts Exhs. D. W. 1.2/29-33 which he prepared to illustrate his opinion. Exhibits D. W. 12/29 and 30 show the characteristics of letters taken from Exh. D. 1 on the one hand and admitted samples of the complainant's hand writing on the other. Exhibit D. W. 12/31 is headed "Inconspicuous Unconscious Connecting Strokes", Exh. D. W. 12/32 relates to inconspicuous unconscious characteristics of `t' and 'i', Exh. D. W. 12/33 deals with unconscious pen-lifts, and Exh. D. W. 12/34 is headed. "Pen Position Shown By Location of Shading". It is, in our opinion, unnecessary to discuss the above charts in detail, since it is primarily a matter of observation whether the similarities alleged by Mr. Malik exist or not. In our opinion they do, and the cumulative effect is such as to lead us to the conclusion that the document Exh. D. 1 is in the handwriting of the complainant. Two points may, however, be mentioned. The first is that the letter "G" in the signature "Gardezi" as written in Exh. D. 1 is completely different from that in the complainant's admitted signature. The appellant, however, had received at least one letter (Exh. D. 3) from the complainant and, therefore, knew his normal signature, while the lady was, of course, thoroughly familiar with it. If the document Exh. D. 1 were a forgery, we are at a loss to under stand why the forger should invite suspicion by changing the customary signature to such a radical extent. The second point relates to the formation of the capital `I'. In the disputed document Exh. D. 1 it is written with a loop at the top and a hook at the bottom. In the document Exh. C. 3, written by the complainant in Court, the pronoun `I' occurs seven times. On six occasions the complainant wrote it as a vertical stroke but in the eighth line unconscious habit apparently asserted itself and he reverted to the loop and hook formation found in Exh. D. 1.

68. In assessing the value of the experts' evidence it is also necessary to bear in mind that it does not stand alone, there being other material on the record. There is, for example, the statement of the lady that Exh. D. 1 was written in her presence, while if the evidence of Mr. Darbar Ali Shah that he attested three copies of the document on the 2nd of December 1961 is accepted, the conclusion of the learned trial Judge that the document was forged after the institution of the present pro ceedings obviously cannot be sustained.

69. We hold that the statement of the lady that Exh. D. 1 was written and signed by the complainant in her presence is, strongly corroborated by the evidence of the two experts. We have, therefore, no hesitation in holding on the above evidence that Exh. D. 1 is in the handwriting of the complainant and signed by him. The complainant's denial of having executed Exh. D. 1 is a deliberate perjury based on jealousy and vindictiveness.

70. The next question that arises for determination is whether the divorce deed Exh. D. 1 dissolved the marriage between the complainant and the lady. According to the com plainant, his marriage with the lady solemnised in England can be dissolved only by a decree of the Court. We have already held that the lady embraced Islam on the 26th of October 1961. We have also held that Exh. D. 1 is in the handwriting of the complainant and is signed by him. In the circumstances, the marriage solemnised at Hull stands dissolved by the divorce deed Exh. D.

1. We are fortified in this view by Munscherji Cursetji Khambata v. Jessie Grant Khambata (A I R 1935 Bom. 5 : I L R 59 Bom. 278). The facts of that case were that on the 4th of December 1906 the petitioner, who was domiciled in Scotland, married at the General Registry Office in Edinburgh, Ghulam Muhammad Ebrahim, who was a Sunni Mahomedan, domiciled in India. In 1912, the petitioner became a convert to Islam and continued to profess that religion up to the middle of April 1923. Between the years 1914 and 1923, Ghulam Muhammad Ebrahim permanently resided at Secunderabad and was still residing there permanently. On the 27th of June 1922, Ebrahim pronounced talaq against the petitioner in accordance with Muhammadan Law at Secunderabad. On the 10th of April 1923, the petitioner obtained a declaration from the District Court at Secunderabad that she was no longer the wife of Ghulam Muhammad Ebrahim. On the 24th of April 1923, the petitioner was married to the respondent under the Special Marriages Act (III of 1872). It was held that at the time of the marriage, Ebrahim was domiciled in British India and that in 1912, when the petitioner embraced Islam, both Ebrahim and the petitioner were domiciled in British India. In the circumstances it was held that the marriage was dissolved. Even if the husband's right of pronouncing talaq against a Christian wife was taken away when the principles upon which the Courts in England would act became applicable in India to a Christian wife, when the Christian wife renounces Christianity by adopting another religion those grounds and that procedure cease to apply as between her and her Muhammadan husband, and his personal law applies to the marriage. Otherwise, no system of law would apply as regards divorce, and the marriage tie would remain indissoluble. The Bombay case applies to the facts of the case before us, and respectfully agreeing with this view, we hold that the lady, who had embraced Islam, was validly divorced by the complainant by granting her the divorce deed Exh. D. 1 which is in his hand writing and is signed by him.

71. It has been argued that if it be held that the divorce deed Exh. D. 1 is in the complainant's handwriting and bears his signature, even then his marriage with the lady is not dissolved because the divorce deed is defective inasmuch as no action was taken under section 7 of the Muslim Family Laws Ordinance (VIII of 1961). It would be advantageous to reproduce section 7 of the Ordinance, which runs as follows :- "(1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form what soever, 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 (1) 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 (2) 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." Subsection (2) of section 1 of the Ordinance provides that the Ordinance extends to the whole of Pakistan and applies to all Muslim citizens of Pakistan wherever they may be. In the present case, it cannot be denied that the lady had not changed her nationality by then and had not taken up Pakistani citizenship. She is registered as a foreigner under the Registration of Foreigners Act, 1939. She had also been issued a residential permit, of which Exh. P. 11 is a copy, for her residence in Pakistan as a foreigner. Moreover, the non-compliance of the provisions of section 7 of the Ordinance will not render the divorce invalid. It may, however, render the person concerned liable to prosecution under the second subsection of this section.

72. It was further argued by the complainant that according to Shia Law, a divorce must be oral and be pronounced in the presence of two witnesses. There is nothing on the record to show that the lady, who had embraced Islam on the 26th of October 1961, was a Shia on the 16th of November 1961, when the complainant divorced her. There is no evidence that on conversion the lady had become a Shia. On the contrary, she stated that as the appellant was a Sunni, she would also be a Sunni (page 105 of the proceedings). The great majority of Muslims of this country being Sunnis, the presumption is that the parties to a suit or proceeding are Sunnis unless it is claimed and proved by a party that he belongs to the Shia sect. The following authorities support this view :- (i) Bafatun v. Bilaiti Khanum I L R 30 Cal. 683. (ii) Mst. Iqbal Begum v. Mst. Syed Begum 140 I C 829. (iii) Ramautar Sah v. Langat Singh 130 I C 810. (dV) Mst. Sardar Bibi v. Muhammad Bakhsh P L D 1954 Lah. 480. (v) Mst. Sahib Bibi v. Muhammad P L D 1961 Lah. 1036. A Sunni woman contracting marriage with a Shia does not thereby become subject to the Shia Law. See Nasrat Husain v. Hamidan (I L R 4 All. 205). It is well settled that the law to be observed in the trial of suits shall, in the absence of any enactment or usage having the force of law, be the law of the defendant, and in the absence of any specific law and usage, justice, equity and good conscience. Aziz Bano v. Muhammad Ibrahim Husain (A I R 1925 All, 720) supports this view. In the present case, the lady must be presumed to be Hanafi unless proved to the contrary, for which there is no evidence.

73. In the case in hand, if the divorce deed Exh. D. 1 is valid according to Sunni law, the lady stands divorced from the date of the deed. Even looking at it from the point of view of justice, equity and good conscience, she stands divorced because the intention of the complainant to divorce his wife is quite clear from the deed Exh. D. 1, whatever his mental reservations may have been a. the material time. The complainant claims to be a Shia. It is he who had divorced the lady, who is not proved to be a Shia. The complainant cannot be allowed to take advantage of his own acts of omission. Moreover, the rule of Shia Law regarding the presence of two witnesses is a rule of evidence which stands replaced by the Evidence Act. On being granted Exh. P. D. 1, the lady believed in good faith that the complainant had divorced her and that the divorce deed had terminated the matrimonial bond between them.

74. We now proceed to consider the question whether the appellant has committed any offence under section 497 or 498 of the Pakistan Penal Code after the grant of the divorce deed Exh. D.

1. If it be held for one reason or the other that the marriage was not legally and validly dissolved, even then the appellant has committed no offence. There is nothing on the record to show why the appellant should have suspected the word of the lady that the complainant had written and signed Exh. D. 1 in her presence, particularly when she was throwing in her lot with him for the rest of her life and was giving up her husband, children and house for his sake. In the circumstances, the appellant bona fide believed that the lady had been divorced and that his marriage with the lady on the 2nd of January 1962, is a valid marriage even under Muhammadan Law. Under Muhammadan Law if the parties believe in good faith that there is no impediment in their marriage, the marriage is, so far as they are concerned, valid and legal for all purposes. If at a later stage it is found that there was such an impediment, the marriage is no doubt null and void but the children born of such a marriage are legitimate. We have held that the divorce deed Exh. D. 1 is valid and legal and that it dissolved the marriage between the complainant and the lady. In the circumstances, the marriage of the appellant with the lady is legal and valid.

76. For the reasons given above, we accept the appeal, set aside the convictions and sentences of the appellant, and acquit him. The fine, if paid, will be refunded.

77. One matter arising out of our decision has caused us some concern. The learned trial Judge enlisted the services of Mr. Norman Edmunds, Barrister-at-Law, as amicus curiae to assist the Court on certain points, of law, and eventually directed that he be paid a fee of Rs. 2,000 out of the amount of fine imposed on the appellant. As the latter has been acquitted, that direction has become infructuous, and as the State was not a party to the proceedings, we cannot make the suggestion. that Mr. Edmunds be compensated by the State for his lobours in the cause of justice. This result is highly unfortunate, but no solution of the difficulty presents itself to us. 77. (Second)| | 78. |

Expugned under the orders of the Supreme | 79. |

Court dated 29-11-1962, in Criminal | 80. |

Appeal No. 98 of 1962 (1). | 81. |

82. Another question raised for determination in this case was the scope of privilege under sections 126 to 129 of the Evidence Act. The learned Judge has discussed the question of privilege under sections 126 to 129 of the Evidence Act in para graph 65 of the judgment. With the utmost respect, we are unable to agree with the view of the learned trial Judge that -the privilege conferred by section 126 of the Evidence Act is confined to clients who are parties to the proceedings in which the privilege is claimed. Nothing in the wording of section 126 of the Evidence Act justifies such a limitation. On the contrary, in Rex v. Withus (P L D 1963 S C 51), referred to in Monir's Evidence Act, Fourth Edition, page 818, it was held that communications are privileged whether, at the time they were made, there was or was not any pending or prospective litigation, and whether the client is or is not a party to the proceedings, and that a legal adviser is forbidden to disclose professional communications even if the client is not in any way concerned in the case. Attention may also be drawn to a Full Bench judgment of the Bombay High Court reported as In re An Attorney ((1811) 2 Camp. 578). The following observations made by the learned Judges are noteworthy :- "The section (126 of the Evidence Act) contains no such limitation as is suggested by him, and it is enough to refer to the observations of Lord Selborne in Minet v. Morgan (1878) 8 Ch. 361(A I R 1925 Born. 1) which clearly show that the obligation to keep undisclosed matters which ought not be disclosed has nothing to do with the questions whether at the time when the com munications were made there was any pending litigation or any prospect of it." We are in respectful agreement with the observations of Lord Selborne reproduced above, as well as those of the learned Judge in Rex v. Withus and hold that the statement Exh. C. W. 1/1 attracted the provisions of sections 126 to 129 of the Evidence Act, and was fully protected from scrutiny by the Court.

83. Expunged under the orders of the Supreme Court dated 29-11-1962, in Criminal Appeal No. 98 of 1962 (1).

84. We very much appreciate the assistance of Mr. Mahmud Ali, Advocate. His responsibility was greatly increased by the abrupt withdrawal of Messrs M. A. Rahman and Ijaz Husain Batalvi, counsel for the complainant, at an early stage of the appeal, but he performed his duties very frankly and fairly. A. H. Appeal accepted.