Full Judgment Text & Judicial Ruling

1968 P Cr

1968 P Cr. L J 477

[Dacca]

Before A. K. M. Baquer and Abdul Hakim, JJ

ABDUL KARIM AND OTHER -Appellants

Versus

THE STATE-Respondent

Criminal Appeal No. 326 of 1965, decided on 31st March 1967.

(a) Penal Code (XLV of 1860), S. 366-Abduction-Witness Abducted woman, essential witness-Testimony of such person, albeit not sine qua non for making out intention-Contemplated by S. 366--Abduction with intention of illicit intercourse or forcible marriage not proved-Accused acquitted.

Muhammad Sadiq v. Emperor A I R 1938 Lah. 474 and Haidar Shah v. Emperor A I R 1930 Lah. 52 distinguished.

Siddique and others v. The State P L D 1959 Dacca 956 and Ghulam and another v. Emperor (1927) 28 Cr. L J 277 ref.

(b) Evidence Act (I of 1872), S. 32(5)-Expression "existence of any relationship"-Includes "non-existence of relationship Marriage-Fact of divorce by her husband deposed to by woman who is no longer available-Admissible and relevant to prove or disprove such relationship.

Munir' s Law of Evidence, 3rd Ed., p. 315 and Suba Raut v. Dindayal 1911 C 674 ref.

(c) Evidence Act (I of 1872), S. 32 (S)-Expression "before the question in dispute was raised"-Means ante litem motam, i.e., made not merely before commencement of legal proceedings but even before existence of any actual controversy concerning subject of declaration.

It seems that what is meant by "before the question in dis pute was raised" is that to be admissible, such statement or affidavit must have been made ante litem motam. The clement to be avoided is a bias in the mind of the declarant and this is highly probable if a dispute or controversy is in progress even though it may not have reached the stage of legal proceedings.

The 'lis' should date at least from the time when the parties have respectively assumed hostile attitude and it does not seem that a suit is necessary to constitute the 'lis'. By ante litem motam what is perhaps meant is that the declaration is to be not merely before the commencement of the legal proceedings but before even the existence of any actual controversy concerning the subject matter of the declarations.

Dolgobinda Paricha v. Nimai Charan Misra and others A I R 1959 S C 914; Irahaker Parichha and others v. Nimai Charan Misra and others A I R 1952 Orissa 75 and Muhammad Azim Khan v. Rajo Saiyid Md. Sadat Ali Khan and others A I R 1931 Oudh 177 ref

(d) Evidence Act (I of 1872), S. 32(5)-Evidence-Admis sibility-Affidavit by woman stating to have been divorced by her husband and married to complainant executed after salish over question of divorce resulting in no decision-Deponent no longer available-Such affidavit inadmissible in evidence.

A. Salam Khan with Latifur Rahman and Muhammad Hussain for Appellants.

B. N. Chowdhury for the State.

Dates of hearing : 1st, 2nd, 3rd and 6th March 1967.

JUDGMENT

BAQUER, J.-The nine appellants before us have been convicted under section 366 of the Pakistan Penal Code by the learned Assistant Sessions Judge, Jessore and sentenced in grada tion as under:-Appellants Nos. 1 and 3, namely, Abdu Karim and Mabarak Mollah respectively were sentenced to rigorous imprisonment for five rears each; appellants Nos. 2, 4, 7 and 8 namely, Takabb Shaikh alias Jakabbar Shaikh, Bahadur Mollah, Hamid Mollah and Abdul Khaleque respectively were sentenced to four years rigorous imprisonment each while appellants Nos. 5 and 9, namely, Kalaman Mollab, Wahed Ali Mollah and Reajuddin respectively sentenced to two years rigorous imprisonment each,

Prosecution ass was that one Hena Begum daughter of Akkas Sardar was married to accused Abdul Majid. There having been a scandal over illicit connection between his father and wife, Abdul Majid divorced his wife Hena Begum who was subsequently remarried to Abdul Ali son of Haran Shaikh. On the 10th of Poush 1370 B. S., corresponding to 27th of November 1963, while Hena Begum was living with Abdul Ali, the accused persons armed with deadly weapons forcibly carried away Hena Begum from the but of Abdul Ali son of Haran Shaikh with intent to keep her for having illicit intercourse against her will. At the time of abduction, the inmates of the house came out but they were assaulted and threatened. The inmates of the house as well as some neighbours recognised the assailants by the flash of torches focussed by the accused themselves. On the following day Haran Shaikh lodged an F. I. R. on which the case was started. The Investigation Officer visited the place of occurrence, seized Alamats, examined witnesses, searched for Hena Begum without success and then submitted charge sheet on 22-1-1964. There was a judicial enquiry held by a competent Magistrate who committed all the accused numbering 11 in which the present nine appellants before us were included, to stand their trial in the Court of Sessions charging all of them under section 366 of the Penal Code.

The defence was a denial of the occurrence as alleged by the prosecution and also denial of the alleged divorce of Hena Begum by accused Abdul Majid and also denial of remarriage between Hens Begum and Abdul Ali.

Prosecution examined as many as 18 witnesses besides tender ing one witness for facing cross-examination and tender the evidence of two (2) witnesses recorded in the lower Court under section 33 of the Evidence Act. The defence did not examine any witness. Several exhibits were also filed by both sides.

The trial was held with the aid of four Assessors-three of whom found all the accused including the nine appellants not guilty.

The learned Judge in disagreement with the majority opinion of the Assessors and without even referring to their opinion, convicted the nine appellants as above acquitting two other accused namely, Abdul Majid (still claiming to be the husband of Hena Begum) and Sekamutullah Golder.

Hence this appeal by the nine appellants who have been convicted out of the 11 accused put up for trial.

Mr. Salam Khan, the learned Advocate appearing for the appellants has urges the following grounds of the memorandum of appeal which are grounds Nos. 5, 7, 8,17 and 19.

Ground No. 5."For that there having been no valid talak the learned Assistant Sessions Judge should not have convicted the appellants,"

Ground No. 7.-For that the learned Assistant Sessions judge failed to consider the positive evidence of P. W. 10 Ibrahim Sardar on the point of divorce by accused Majid of Hena Begum. As a matter of fact P. W. 10 deposed to the following terms:

"There was a Shalish on 27-11-63 regarding the truth of the divorce of Hena Begum by accused Abdul Majid. I was one of the Shalish of 10 Matbars. My villagers were present. Statement of both Hena Begum, Majid, Akkas, Ajiz Daoud, Shamsuddin and others'(sic) we could not decide any thing".

Ground No. 8.-For that the learned Assistant Sessions Judge should have disbelieved the occurrence as alleged by the prosecution as P. W. 2 Abdul Ali's father deposed that occurrence took place 10/15 days after my son's marriage whereas P. W. 12 deposed that occurrence took place after one month of the alleged marriage." .

Ground No. 16.-"For that conviction of the appellant under section 366, P. P. C. cannot be sustained in law as they took away the woman in assertion of their right and not for any illicit intercourse."

Ground No. 17.-"For that the learned Assistant Sessions Judge failed to see that even if the accused persons took away in assertion of their lawful claim as wife then the appellant have committed no offence."

Ground No. 19.-"For that the learned Assistant Sessions Judge failed to see that in the present case the most important witness is the abducted woman herself and she having not deposed it is extremely dangerous to convict the appellants under section 366 of the Pakistan Penal Code."

Mr. Salam Khan's contention in substance is that even if the taking away by force from the house of the complainant be accepted, that was not enough for the purpose of driving the charge home against the appellants under section 366 of Penal Code. The Chapter in which section 366 of the Penal Code is included, according to Mr. Salam Khan, deals with taking for various purposes and it is only" the taking with the intention of illicit intercourse of marrying against her will that has been made punishable by the section. He wants to say that by reason of the person abducted not having been brought to the dock in the present case, no inference as to the intention of illicit intercourse or forceful marriage could be inferred.

This inference, according to him, would be justified only when there is positive evidence by witnesses who had seen the attempt at illicit intercourse or there was some evidence of seeking force ful marriage and the person abducted was thereafter spirited away so as to deprive the Court from bearing the victim herself. He has also challenged the admissibility of Exh. 2-affidavit sworn by the victim dated 13-12-1963, showing that she was divorced by accused Abdul Majid (who has been acquitted by the learned Judge) before the date of occurrence on 27-12-1963 Mr. Salam Khan has contended that Exh. 2 showing the divorce of Hena Begum by Abdul Majid was wrongly relied upon by the Learned Judge in convicting the appellants.

With these grounds at the background of our mind, we proceed to give a brief resume of the evidence produced in the case with the salient features.

P. W. I is Haran Shaikh. He is also the informant in the case. He has stated that his son Abdul Ali married Hena Begum daughter of Akkas Sardar in Agrahayan 1370 B. S. after she was divorced by accused

Abdul Maid on 22nd Jaistha 1370 B. S., and his son and daughter used to live in east Bhiti but and that the witness himself used to live in another but in the same Bhiti. At about 2/2-30 a.m. at night following Thursday on the 10th of Poush 1370 B. S., corresponding to 27-12-1963, he woke up on hearing cry of his son Abdul Ali and found the homestead lighted, When he went near his but accused Bahadur dealt a lathi blow on his shoulder. He saw accused Mobarak and Karim Khan standing with two guns in their hands. He saw accused Reajuddin, Abdul Majid Khan, Kolem. Sekmatullah, Jabbar, Wabed Ali Mollah, Hamid Mollah, Khalaque Mollah and Tekabbar Shaikh. Khalaque and Tekabbar had duo and lathi. All others had lathis. Some were beating his wife who came out of her hue; some were cutting the Jhap door of the but of his son Abdul Ali. He found Khalaque and Tekabbar dragging his daughter-in-law Hena Begum who was crying for help. Abdul Ali was also assaulted. The witness along with others raised alarm but no neighbour could come at the place of occurrence out of fear. Soon after the accused decamped with the witness's daughter-in-law. He also stated that Hena Begum was still detained by the accused and that Abdul Majid filed a suit for restitution of conjugal rights over Hena Begum after which he was committed to the Court of Sessions and that that suit was dismissed.

It has been orally stated at the Bar that the suit which was dismissed for default had been later restored.

In cross-examination P. W. 1 stated that his father's name was Anadi Chakraborty and that he embraced Islam in 1309 B. S. He had three wives, his son Abdul Ali's first wife died, his second wife was divorced and Hena Begum was his third wife. He also admitted in cross-examination that Hena Begum was divorced by, Abdul Majid orally in presence of Shamsuddin Sardar, Abdul Aziz Mollah and others. He went on to state that he was not present at the place of divorce but Shamsuddin and Abdul Aziz were present.

On this evidence the divorce does snot seem to be convincingly established particularly having regard to the stringent procedure for divorce as laid down in the Muslim Family Laws Ordinance, 1961, to which we propose to advert hereafter.

He also admitted that he did not remember the date of marri age of Hena Begum with his son but at the same time said that it was in the last part of Araha and that the marriage was solemnised by the Marriage Registrar and that Abdul Khaleque Mollab performed the celebration and the Marriage Registrar was by his side.

It is strange that the date of marriage was not remembered by the father and as we shall see later it does not appear that the marriage was solemnised by the Marriage Registrar. In the committing Court, it appears be said that one Moulvi of the house of Pir Saheb of Noapara solemnised the marriage which was registered by the Marriage Registrar and one Latif was the Vakil. At the trial the witness stated that father of the girl was the Vaki1 of the marriage. He also stated that 10 or 15 days before the occurrence his son married Hena Begum. As we shall see later, according to P. W. 12 Chutu Bibi, the occurrence took place after one month of marriage and besides the nature of the evidence as to the marriage as disclosed, casts a shroud of mystery upon the marriage itself. He also stated that he did not know if the suit in the Munsiff's Court had been reviewed.

P. W. 2 is Abdul Ali claiming to be the present husband of the victim, He has supported his father P. W. 1 substantially as to the manner of the incident. He also claims to have been injured and that he was examined by a doctor. He did not say anything about Hena Begum crying at the first instance but on recall by the Public Prosecutor he stated that when his wife Hens Begum was dragged out of his but by the accused, she cried out for help and that she was crying all the while till she was taken out of hearing.

P. W. 3 is Abdul Shaikh younger brother of P. W. 2. He has also deposed substantially in the same manner as the other two. He found the accused taking away Hena Begum towards the north when she was crying. In cross-examination be stated that he did not remember if he stated in the committing Court that no marriage took place in their house and that it took place in the house of Pir Saheb.

It appears that the witness did say so in the committing Court.

P. W. 4 is Syed Ahmad, a Muktear of the local Courts. He stated that the affidavit Exh. 2 was written by his Moharar Momtazuddin in his presence according to the statement of Hena Begum daughter of Akkas Ali Sardar as identified by the witness. She put her L. T. I. on it finding the statement correctly written after it was read over to her. This is Exh. 2. He also proved the order sheets of the Magistrate before whom the affidavit was affirmed by Hena Begum. These have been marked as Exhs. 3 and 3-A.

P. W. 5 is Pir Mohammad Mollah, a neighbour hailing from 1 Bigha away. He stated that he woke up on hearing hue and cry from his house and ran to 'the spot and found many people armed with various weapons and torches and that he found some people going away crying and that after the people decamped he entered the house and found the Jhap door of the but of Abdul Ali cut off and Abdul Ali- Haran Shakh and his wife injured. He also stated that they told him that the culprits forcibly took away Hena Begum wife of Abdul Ali. In cross-examination he stated that he did not state in the committing Court that he could not recognise the woman who was carried away by the accused while it appears that what he stated in the committing Court was that he saw the accused taking one woman from inside the house and he did not see who that woman was.

P. W. 6 is Harez Moral hailing from two Rashis away. He found Hena Begum wife of Abdul Ali carried away by the culprits towards the north. There was a suggestion to this witness that he lives in the land of Haran which he denied,

P. W. 7 was tendered; cross-examination was declined.

P. W. 8 is Abdul Aziz Mollah hailing from the village Dhopadi which is the village of accused Abdul Majid. He stated that Hena Begum was the wife of Abdul Majid but he divorced her with Tin Talak on the 27th of Jaistha 1370 B. S., in his house and that he himself, Shamsuddin Sardar, Kanu Mollah, Dobir, Doud and others were present on that occasion to bear testimony of the divorce. Akkas father of Hena Begum was also present. The reason for the divorce was reported to have been illicit intercourse of Hena Begum by accused Karim father of Majid and that Hena Begum left the house with her father soon after the divorce was pronounced. In cross-examination the witness stated that he told the Investigation Officer that Majid divorced Hena Begum on 22nd of Jaistha 1370 B. S. whereas it appears that to the Investigation Officer the witness did not state the date of the Tin Talak of Majid. He also admitted that there was no Talak by any writing and there was writing in Agrahayan.

P. W. 9 is Shamsuddin hailing from the same village as that of Abdul Majid. He also claims to have been present at the divorce

P. W. 10 is Ibrahim Sardar also a resident of Dhopadi the same village as that of Abdul Majid. He has stated that there was a Salish on 23-11-1963, regarding the truth of the divorce of Hena Begum by accused Abdul Majid and that he was one of the Salish A Of ten Matbars and many villagers were also present. He also stated that they could not decide anything. P. W. 11 is Nurul Alam, a formal witness who recorded the F. I. R. and whose B cross-examination was declined.

P. W. 12 is Chutu Bibi wife of P. W. 1 Haran Shaikh. She has tried to support her husband P. W. 1 and her son as to the manner of the occurrence and the personnel involved and stated that the accused party dragged her son's wife Hena Begum who kept crying. She stated in cross-examination that Hena Begum was married to her son about one month before the occurrence and that the marriage was solemnised in their house. She also stated that Hena Begum came to their house for the first time on the date of her marriage with her son and that she did not state in the committing Court that Hena Begum came to their house two months before the marriage with her son.

It appears, however, that in the committing Court she said that Hena Begum came to their house months before the marriage.

As it will appear from the above there is sufficient contro versy as to the date of the marriage and as to when exactly the marriage took place and as to whether Hena Begum was actually free to marry at the time of marriage.

P. W. 13 is Mohammad Ali Mridha also a neighbour of P. W. 1. He saw the fringe of the occurrence and heard the crying of the girl.

P. W. 14 is Ali Akbar Mollah another neighbour of P. W. 1 who also saw the incident and found many people carrying away Hena Begum. He saw the Jhap door of Abdul's but cut off and also heard Hena Begum crying.

P. W. 15 is Hashem Ali Miah, Marriage Registrar of the District of Jessore who was tendered by the prosecution. In cross examination by the defence he stated that he did not register any marriage between Hena Begum and accused Abdul - Majid. Then said that he registered the marriage between Hena Begum and, Abdul Majid. He also stated that some people came to him alleging that Hena Begum was ravished by her father-in-law and that they went to him for a Fatwa on the matter and that he directed them to go to Madrassa. The witness also admitted in cross-examination that he did not celebrate any marriage between Hena Begum and Abdul Ali and that when some people went to him to invite him to perform the marriage between Hena Begum and Abdul Ali the witness declined to perform it. The witness also stated that he did not tell in the committing Court that he was not invited to celebrate the marriage. It appears that in the committing Court he stated that he was not invited to celebrate the marriage but he went there spontaneously.

One thing is clear from the evidence of this witness and that is that the marriage between Abdul Ali and Hena Begum was not solemnised by him when the usual procedure is for the solemnisation to be by the Marriage Registrar.

P. W. 16 is Abdul Latif Sardar who claims to have been present at the marriage between Hena Begum and Abdul Latif as the witness of the marriage in Agrahayan 1370 B. S. He did not remember the date. He also stated that the Marriage Registrar of the locality was present and Akkas father of the girl was himself the Vakil of the marriage. In cross-examination the witness admitted that he was suspected for the theft of a cow which he claims to have purchased.

P. W. 17 is Yusuf Ali who also claims to have been present at the marriage between Hena Begum and Abdul Ali as a witness of the marriage in Agrahayan 1370 B. S. He also did not remember the date of the marriage and stated that the Marriage Registrar of Noapara was present.

P. W. 18 is Abdul Khaleque. This Abdul Khaleque who works in the house of Pir Saheb of Noapara also claims to be present at the marriage. He stated that in Agrahayan 1370 B. S. the Marriage Registrar took him to the house of Haran Shaikh where he performed the marriage between Hena Begum and Abdul Ali. In his cross-examination the witness stated that he did not obtain any licence for performing marriages and that he went to perform this marriage as called upon by the Marriage Registrar and that Hena Begum was not known to him from before. He also stated at the trial that the Den Mohar was fixed at Rs. 500 whereas it appears that in the committing Court he stated that he could not say the amount of Den Mohar.

The evidence as above makes the very marriage between Abdul Ali and Hena Begum rather shaky. .

The next witness is P. W. 19 Abdul Jalil, S. I. of police who investigated into the case. He seized various Alamats including the remnants of the broken Jhap door. In cross-examination the witness stated that Hashem Ali P. W. 15 at the trial, Abdul Khaleque P. W. 18 at the trial, Abdul Latif P. W. 16 at the trial and Yusuf Ali P. W. 17 at the trial were not witnesses in the charge sheet and that Ali Ahmad-Moulvi of Noapara Madrassa was a charge sheet witness.

It will thus appear that some crucial witnesses in the case were not even charge sheet witnesses and that an important witness like Ali Ahmed had not stated to him the date of Tin Talak of Majid, that P. W. Shamsuddin did not state to him that after taking Fatwa from Moulvi P. W. he requested Majid to divorce Hena Begum of that Haran did not name Khaleque and Reajuddin to him and that Ali Akbar stated to him about his recognition of accused Wahed Ali. He also stated that he did not examine Hashem, Khaleque, Latif and Yusuf under sec tion 161 of the Code of Criminal Procedure.

The evidence of P. W. 4 Akkas Sardar of the committing Court has been put in under section 33 of the Evidence Act by reason of the fact that he died by the time the case came to be beard at the trial. He stated in the committing Court that Hens Begum was his daughter and that she was married to Abdul Majid about one year prior to the date of occurrence and that by reason of illicit intercourse between his daughter and Majid's father there was Salish and in that Salish Majid gave Tin Talak to Hena Begum in presence of all. Thereafter he took her to his house and that his daughter, came to Jessore to S. D. O.'s Court and made an affidavit and that the Marriage Registrar and the Pir Saheb of Noapara gave Fatwa that his daughter was divorced.

It will be recalled that the evidence with regard to the Salish as given by P. W. 10 does not show that there was any utterance of any Tin Talak by Abdul Majid at the Salish. In cross-examina tion the witness stated that Hena Begum was married with Akbar before Majid and he admitted that he had no document to show that Majid bad given Talak to her and he also stated that he did not remember the date on which Hena Begum was married to Abdul Ali, and that the marriage took place in the house of Abdul Ali. The witness also stated that the marriage was registered and that the registration form was given to the Daroga.

It is to be noted that the Daroga does not speak of having received any registration form as stated by the witness.

That is all the oral evidence adduced by the prosecution.

Of the three defence witnesses examined D.W. 1 is the Muktear of the Sadar Court who proved Exh. B. In cross-examination he stated that it was customary that petitions are read over after writing and that there was nothing in the petition to show that it was read over.

D. W. 2 is another Muktear of the Sadar Court who proved Exh. C. In cross-examination he stated that one person claiming to be Abdul Majid and produced before him said that the woman accompanying him was his wife bearing name Hena Begum and that none was known to him.

D. W.- 3 is Aminul Islam who said that he wrote the plaint and petition and affidavit marked Exh. D. E. and C according to the instruction of his senior pleader. In cross-examination the witness stated that he was junior to the Advocate who was moving in the case for the accused and that the suit was restored to file on 19-6-1965.

We do not feel called upon to dilate on these exhibits as produced by the defence having…

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