P L D 1952 Sind 54 (PLP)

TYABJI, C. J.‑This transfer application has been made by one Moulabux son of Swali, who is the complainant in a bigamy case now pending before the Sixth Additional City Magistrate at Karachi against Charuk son of Toukal and two others. The main ground on which a transfer of this case is sought is that the learned Magistrate had improperly and in disregard of the law admitted evidence which was not admissible and which was of a character calculated to embarress the parties and the Court to the prejudice of the complainant. One of the defences raised by the accused before the Magistrate in this case was that the marriage alleged to have been contracted between Mst. Jano and complainant Moula bux was, even if contracted not a valid marriage, because, as the accused contended, applicant Moulabux was not a Sunni Muslim, but a "Zikree", i.e., an infidel. Syed Abdul Rahim was examined as a witness on behalf of the accused, and during his examination made the statement :‑ "According to the Muslim Shariat there can be no marri age between a Zikree and a Sunni". Mr. Ramchand objected to this statement being admitted in the evidence and this objection was recorded by the Magis trate, who noted : ‑ "Mr. Ramchand objects to this opinion going on record as there is a codified law on the subject"., Therefore Mr. Ramchand made an application to the Magis trate in which he stated :‑ "It is prayed that this Honourable Court will be pleased to adjourn the case as this Honourable Court has expressed the view that I am not bound by the law of the land defining a Muslim but what Shariat recognizes. As expert is being examined on question of validity of marriage it would be proper to have ruling of the High Court on the point, and move for transfer". The learned Magistrate passed the following order on the ap plication :‑ "The words expressed by the undersigned were that the definition of the word "Muslim" would be that laid down by the Holy Quran and not necessarily the one in a. code, as all the codified law is derived from the Holy Quran. If that has caused apprehension in the mind of the applicant, the case is adjourned" Now there can be no doubt, that the course followed by the learned Magistrate shows a complete misconception of the law applicable to the matter before him. There can be no; doubt whatever that evidence of the opinion of a witness, as an expert, on any branch of the law, whether it be the Muhammadan Law or any other law, was wholly irrelevant, except when the question was about a point of foreign law. This is quite clear from section 45 of the Evidence Act (See also Aziz Bano v. Muhammad, I L R 47 All. 823). The ques tion raised before the Magistrate was whether Moulabux, who professed and claimed to be a Sunni Muslim, was a Sunni Muslim. Evidence of the character given by Syed Abdul Rahim, besides being inadmissible, was wholly beside the point. For, it is well settled law, and one of the fundamental principle of the Muhammadan Law itself, that no Court can test or guage the sincerity of religious belief, and in order to hold that a person was Sunni Muslim, it was sufficient for a Court to be satisfied that he professed to be a Sunni Muslim.' It is not permissible to any Court to enquire further into the, state of the mind and the beliefs of a person who professed to, belong to a particular faith and inquire whether his actual beliefs conformed to the orthodox tenets of that particular faith of : (Mulla Muhammadan Law, 1944 Edn. p. 17 para. 14, and Tayabji Muhammadan Law, 3rd Edn., pp. 56‑57). Another important point of a more general character is that the Muhammadan Law which the Courts have to administer in this State is the law, such as it is, as stated in the recognized authoritative texts of the jurists of the particular faith concerned which have been followed and applied by the Courts in this Country, and that the Courts have not to concern themselves with their own opinions or the opinions of any individuals, no matter how learned, with regard to the true construction or interpretation of the Quran or the authenticity of the Hadith on which Muslim jurisprudence is ultimately based. (cf : Agha Muhammad v. Kulsum Bibi, I L R 25, Cal. 9 at p. 18). But although the learned Magistrate in this case was not aware of the law relating to the matter before him and adopted a course which was not correct, there is no reason whatever for thinking that he was not willing to consider what the law was and to apply it strictly. The statement made by Syed Abdul Rahim that "according to the Muslim Shariat, there can be no marriage between a Zikree and a Sunni", although it was wholly irrelevant as the evidence of the opinion of a witness, was nevertheless not only a correct statement. but in fact so obviously axiomatic as to be wholly worthless. The word Zikree of course, cannot be applied to any‑person who professes to be a Muslim, but only to an idolator, to an infidel who does not believe in the unity of God and in the prophethood of the prophet. Mr. Ramchand's objection to the statement was made in terms which were palpably incorrect. The Muhammadan law as everyone ought to know is not codified in this Country and only a very small part of it is statutory. It is clear that Mr. Ramchand did not make his objection on a ground which could have been accepted, or in a manner which could have assisted the Court. He did not refer to section 45 of the Evidence Act, or to any of the standard works on Muhammadan law, or to any decisions of the Courts on the point urged. It is true that the learned Magistrate's statement : The definition of the word "Muslim" would be that laid down by the Holy Quran and not necessarily the one in a Code "is hardly intelligible as no Code exists". The proper course for Mr. Ramchand under the circumstances was to cite to the learned Magistrate section 45 of the Evidence Act, the relev ant passages in standard works on the Muhammadan Law, and the relevant decisions on the point which he wished to rely upon. I have no doubt that if he had done so, the learned Magistrate would have considered the law placed before him and attempted to follow it. Under these circumstances I can see no reason for transferring this case, and this application is accordingly dismissed. Application dismissed.