Narantakath Avullah vs Parakkal Mammu and Others

Oldfield, J.—We are asked to revise the order of acquittal of the 5th respondent on a charge of bigamy, punishable u/s 494 I. P. C. and of

the other respondents on subsidiary charges. The petitioner is the complainant who prosecuted as 5th respondent''s husband and the Public

Prosecutor who has had notice, has under instructions taken no part in the proceedings. We should not ordinarily proceed at the instance of a

private party in revision of an acquittal ; and we do so here, only because we are satisfied that a question of public improtance relating to the

personal status of a substantial part of the"" Moslem community is raised.

That question is whether petitioner''s adherence to Ahrne-diyan tenets made him a murtad or apostate from Muhama-danism. If it did, it had, it

is not disputed, the effect of dissolving his admitted marriage with 5th respondent ; and such dissolution prior to her remarriage with 3rd respondent

is her first and principal defence to the charge. The reply attempted is that Ahmediyans are merely a sect of Muhamadans, their divergences from

ordinary muhammadanism not involving abandonment of that creed or making them schismatics. Some objection has been taken to our entering on

this controversy in revision, by petitioner on the ground that it is purely one fact since only his religious views and their orthodoxy are in question,

and by respondents on the ground that it relates only to degrees of orthodoxy, which the court has no business to estimate. But, although I feel the

difficulty, involved in an attempt to deal with matters, with which I am necessarily unfamilar, and although I appreciate the improbability that out

decision can commend itself to those with whom personal associations and devotional sentiment must weigh more than the materials, on which we

have to proceed, the issue cannot be avoided. For it is one of mixed law and fact, inasmuch as it relates substantially and ultimately to the personal

status, which petitioner''s religious view determine ; and to say that only degrees of orthodoxy are in dispute is to beg the question whether the

Ahmediyas'' deviation from Islam is such as entails abandonment of any essential thereof.

The lower court has attempted very little by way of direct ascertainment whether that deviation does so, its conclusion appearing really to rest

on the finding that the Ahmediyas are regarded as apostates by orthodox Mahomadans and the principle that: "" What the doctrine and faith

preached in the Koran are, is to be decided, not according to the interpretation put on it by individual persons, but according to the interpretation

generally accepted and adopted by Mussalmans as a whole."" And this test, Secures Judical Orbis may in appropriate circumstances have its value.

But to apply it fair''y, we must make sure that the judgment relied on is really general and has been reached by the community as a whole and that it

has been reached after due deliberation and the passing of sufficient time for the disappearance of the prejudice which new beliefs must always

incur. Ahmed, whom the Ahmediyans follow, died, we are told, in the Punjab in 1908 ; and in the fifteen years, ^which have passed, it is difficult to

suppose that Islam or even Islam in India can have come to any mature conclusion on his teachings. In fact it has not been shown that it has done

so. For, of 4, 6, 7, D Ws, whose evidence alone is relied on, the first is the son of the Government Kazi of Madras, was formerly an Assistant

Kazi and Arabic Professor in a private Madrasa - in this city and describes himself as now chief priest in a district in the Nizam''s Dominions, whilst

the other two are a kazi and a Mnsaliar or religious leader in Malabar The evidence of the second attracts suspicion to the extent of his

acquaintance with Ahamed''s writings and the third said that there was "" no one in the Muhammadan world, whose opinion on religious matters

was binding on the conscience of Mussalmans "". These persons are not, shown and do not appear to have more than a local influence and

reputation ; and there is nothing before us except their assertions in some instances of doubtful value. In the question propounded to P.W.''s father

in the fatwa Ex-1 ,; religious decrees of learned men of Arabia and India,"" declaring Ahmed and his followers apostates, are referred to ; but none

is specified either in the question or answer and none was produced at the trial. In these circumstances it has not been established that the Muslim

community either generally or in India has reached any decision which we can regard as conclusive.

This failing, discussion has turned on the character of the divergences between the teaching of Ahmed and the orthodox creed. The former are

enumerated, it is not disputed, correctly by the lower court. But as regards the latter the parties are at variance, petitioner contending that ''the

formula. "" There is one God and Muhammad is his Prophet "" is exhaustive, and respondents that we must take account of other doctrines

sanctioned by the Koran or other authorities. Petitioner in support of his contention relies on the judgment of Mahmood, J. in Queen Empress v.

Ramzan I.L.R.(1885) All. 461 those of Edge, C.J. and Mahmood, J. in Attn Ullah v. Azim Ullah ILR (1889) All. 494 and on Maula Baksh v.

Amiruddin ILR (1920) Lah. 307 as showing that monotheism and belief in Muhammad as God''s Prophet are the only essentials, But it is clear that

the question in those cases was only between one sect and another or the general body of Muhammadans as to the right to worship in a Mosque

or the validity of a Wakf, not as it is here, between orthodoxy and alleged schism. To decide between them something more is evidently required

than the base formula referred to above, for the latter portion of it cannot be taken as requiring a belief only in the history or legend of Muhamad

without reference to acceptance of his message and ascertainment of its terms and of the legitimacy of the constructions placed on them later, of

which in fact in the case of the Ahmediyans respondents complain. The materials for a conclusion, which the parties have provided, are the

evidence of the witnesses already mentioned, the fatwa Ex-1, a book M.O. 1. "" The claim and teachings of Ahmed "" and a pamphlet M. O, V.

What distinguishes Ahmadees from Non-Ahmedees "". No reliance was placed before us on the works exhibited as M. Os. II. III and IV.

It is first to be observed that the Ahmediyas, statedly at least emphasize their adherance to the Islamic formula. In M.O.V. Ahmed''s principles

are stated in his own words, beginning. ""We are Muslims by the grace of God: Mustafa, the Holy Prophet of Arabia, is our leader and guide. The

wine of our spiritual knowledge is from the cup of the Book of God, which is called the Koran. Every Prophethood has found its culmination in that

Messenger of God, whose name is Muhammad. The revelation and inspiration that we receive have not been granted us independently, but it is

through him that we have received this gift;"" and the pamphlet goes on, like the manifestoes of other religious developments, to state the distinctive

features of Ahmed''s teaching as a return to the early fervour of the recipients of the original revelation, an abandonment of worldly affairs and

political greatness for the earlier more spiritual methods of propogating the faith and an eradication of the errors, into which Moslems from time to

time have fallen. And similarly in M.O. 1 the first chapter maintains Monotheism and the supermacy of the Koran and there are (p. 106) extracts

from the latter under headings--""The Almighty God declares that Islam is the perfect and chosen religion "". The Almighty God commands every

soul to follow no other religon than Islam and "" Muhammad is the Prophet of God for all the nations of the world. "" The form moreover to be

signed on initiation (p. 104) runs: ""I bear witness that there is no God but AlUh. He is one, having no partner, and Muhammad is the servant and

Messenger of God.

All this would seem to involve a plenary acceptance of Muhammedanism, and in fact the respondent''s objection is to Ahmadian additions to it

and their alleged inconsistency with it. But we have, in my opinion, been shown no distinct authority as to which doctrines of Islam are regarded as

fundamental or the extent to which additions to them, deviations from them or inconsistencies with them are permitted, 7th defence witness no

doubt said generally that any Mussalman who took away from, added to or tampered with the Koran, was a Murtad and 4th defence witness that

among seels the differences were not in matters of faith, but in ritual ; and there is also the judgment of Mahmood, J, in Queen Empress, v. Ramzan

I.L.R(1885) . All. 450 in this sense. But 4th defence witness also explained his description of some sects as Murtads on the grounds that their

deviations from the teaching of the Koran were on fundamental points, refusing however to regard the Shiah''s disbelief in the first three Caliphs as

a deviation from the faith at all. That private judgment and analogical deduction are, in appropriate circumstances and to a greater or less extent,

legitimate methods of ascertaining the law is recognized in the text books. (Amir Ali Muhammadan Law 11 and 14; Abdur Rahim on

Muhammadan Jurisprudence 25) ; and we have not been shown how they are not also legitimate in theology, so long as fundamental principles are

maintained and the question is only of the development, to which every creed must be subject, so long as it retains life and growth and adapts itself

to altered conditions, This in fact is enough to justify the Ahmadiyans in their fifth and sixth alleged deviations from orthodoxy as enumerated by the

lower court. For'' their abandonment of the sword for peaceful argument as the method of propagation of Islam has been inevitable since the

cessation of militant conditions and the permeation by Muhammadans of countries, to whose-law they owe allegiance ; and their refusal to

acknowledge the spiritual supremacy of the Sultan of Turkey cannot, if only for chronological reasons, be fundamental.

The remaining four points of divergence, referred to by the lower court are set out in its judgment, the evidence and Ex. I unfortunately inivery

general language, which was not made more specific before us. But they amount, as I understand them, to assertions that Muhammad and other

earlier recognized prophets, for instance Jesus Christ, have not been the sole channels of communication between God and Man ; that others, for

instance Buddha, Rama and Krishna have been bearers of the divine message ; and that the last of such messengers was Ahmed himself, who is to

be identified with the Prophet '''' who wiil come after me and whose name will be Ahmed "" referred to in the Koranic verse quoted in Ex. I ; and

there is also imputed to the Ahmcdiyans a novel doctrine that "" Jesus Christ is still dead and buried and not in Heaven."" As regards this doctrine it

is sufficient that it is presented in Ex. V. (p. 49) '' the only source of information available, as founded on the interpretation of the Koran and

tradition and that it has not been shown how rejection of any dogma, which is fundamental or affects the position and supremacy of Muhammad or

has been defined by any final or general authority is involved. As regards the remaining, points if is obvious and the references in the latter part of

4th defence witness''s evidence indicates, that much depend on the sense, in which the expressions used by Ahmed are understood and the

significance of his teaching as a whole. If, for instance, he did (and we have not been referred to any particular passage) speak of Krishna and

Rama as heavenly messengers or avatars, the corrective is given in the far less definite claim at p. 160 in Ex. V. "" I do not say it to please anybody,

but God has revealed to me that Krishna and Rama were also righteous servants of God and had true connection with him;"" and, if he did identify

himself with the Promised Messiah, he explained at p. 143 that "" the perfect follower of God''s revelation cannot be called an independent prophet,

for this is a disrespect towards the prophethood of Muhammad,"" and in the note on p. 144 that "" no Prophet, who is also a lawgiver, can appear

after the Holy prophet, even from among his followers. For this door is completely closed"". That Ahmed identified himself with the Ahmed, whose

advent is foretold in the verse above referred to, can involve no unorthodoxy, much less rejection of any fundamental tenet, unless, what we have

not been shown, all speculation as to the fulfilment of Koranic prophecy is forbidden ; and the quotation in Ex, I from the Alangari Fatwa must be

inconclusive in the absence of information as to its context or the method, by which its author would have reconciled it with the Koranic text.

Reference has been made to the extent, to which Ahmed statedly accepted and proceeded from the fundamental tenets of Islam. It was then for

respondents to show that his additions to and divergences from them involved their abandonment ; and it is not possible on the materials before us

to hold that they do so. It is satisfactory that a similar conclusion was reached in Hakim Kalib v. Malik (1916) 2 Pat. L.J. 108 . It follows that

petitioner is not a pturtad and his marriage with 5th respondent is subsisting.

This conclusion makes it necessary to consider the further defence, accepted in the alternative by the lower court that the respondents are

entitled to acquittal, because they acted without mens rca and in the honest belief that the marriage was dissolvedThis is unsustainable. For there is

not really any question here of the doctrine of means rca or of the application of Section 79, Indian Penal Code, since the respondents acted under

a mistake of law or under a mistake of mixed law and fact, R. v. Tolson (1889) 23 Q.B.D. 168 being distinguishable on that ground. I am with all

respect unable to follow the authority relied on by the lower court, the judgment of Holmwood, J in Abdul Ghani v. Azizul Huq I.L.R(1911) . Cal.

409 and must hold that, whatever weight the goodfaith of respondents might deserve, if the proper sentences to impose were in question it is

irrelevant to their liability to conviction.

The case, however, is before us in revision and with reference to-the last clause of Section 439, Criminal Procedure Code, the only course open

to us is to order a retrial. Mr. Zafrullah Khan for petitioner does not ask us to take this course, since he desires only to obtain as authoritative

settlement of the questions argued. Further proceedings are in my opinion unnecessary, since respondents acted in a mistaken, but honest, belief as

to the law and only nominal sentences would be the result. In these circumstances and for this reason, the petition is dismissed.

Krishnan, J.

This is a criminal Revision Petition filed by the complainant against the order of acquittal, by the learned Sessions Judge of North Malabar, of

the accused, in Sessions Case No. 12 of 1922, of whom the 5th acOused a Mopla woman was charged with Bigamy u/s 49-4, I.P.C., and the

rest with abetment thereof. The Sessions Judge found that the 5th jaccused was lawfully married to the complainant but that he subsequently joined

the new sect of Ahmediyans and that thereupon after obtaining the opinions of certain Mahomedan theologians that his act amounted to apostacy

and severed the marriage tie, she married a second time the 3rd accused in the case. She had also pleaded that the complainant had actually

divorced her but that plea was found against by the Judge and has not been renewed before us. On theseIfindings the question to be decided was

whether her 2nd marriage amounted to bigamy, and that depended on the further question whether he act of an orthodox Mahomedan in joining

the Ahmediyan sect amounted to apostacy under Mahomedan law or not ; for it is conceded on both sides that one of the recognised

consequences of apostacy by a Mahomedan is to sever his marrigage tie with his wife. All the authorities are agreed on that point. The learned

Sessions Judge has upheld the contention of the accused that her husband did become an apostate by joining the Ahmediyans. He has also held

that even if that view was wrong, the woman acted with due care and caution and bona fide believed that her first marriage had come to an end in

law and that she was free to rriarry again and therefore she was not guilty as there was an absence of mens rea or guilty intention. He thus

acquitted all the accused on those two grounds and we have to consider in revision the correctness of his views on the two points.

Before doing so it is necessary to mention that a preliminary objection was taken by the learned Counsel for the accused to our hearing the

petition on the ground that no revision lies against an order of acquittal. It cannot however be said that the High Court has no power to interfere in

revision with an order of acquittal, for there is no such restriction in the sections of the Criminal Procedure Code which deal with our powers in

revision, Sections 435?nd 439. On the other hand Clause (4) of Section 439 contemplates order is of acquittal being revised, for it lays down a

restriction on what the High Court can do on such a revision. It enacts that the Court cannot convert a finding of acquittal into one of conviction.

This Court, however, as a -matter of sound and recognised practice has always refused to revise orders of acquittal at the instance of private

parties except in very exceptional cases. This, however, is in my opinion, one of those exceptional cases as it raised two important questions of law

one of them of great interest to the new and growing class of Ahmediyans and to the Mahomedans in general and the decision of the case turns

entirely upon the decision of those two points of law and not on any appreciation of evidence. In these circumstances we have decided to overrule

the objection.

Turning now to the question of apostacy raised, it is undoubtedly a question of Mahomedan theology to say what deviation from the

recognised doctrines of Mahomedanism would amount to apostacy; but as civil rights and legal status of parties are based on its decision, we must

decide it ourselves. The accused has called 3 witnesses of the orthodox party who assert themselves to be men learned in Mahomedan theology

''and who say that the adoption by a Mahomedan of the tenets of Gulam Ahmed Mirza the founder of the sect of Ahmediyans amounts to apostacy

under that law ; but we cannot accept their opinion as settling the question as argued for the accused, particularly as they are interested as

orthodox Mahomedans in denouncing the members of the new sect as unbelievers and as they have not given satisfactory reasons for their

opinions. As pointed out by Sir Abdur Rahim in his Mahomedan Jurisprudence page 250 some people are too prone to charge others with

unbelief and treat them as heretics, but the correct law is that when heretical doctrines are opposed to clear and indisputable - texts they would

amount to unbelief and not otherwise. Consensus of opinions as a source of law or the doctrine of Ijma is not universally recognised among

Mahomedans; but even if we take consensus of opinion as a proper source of law there has not been, as pointed out by my learned brother, such

a lapse of time since the founding of the new sect of Ahmediyans as to have developed any such general consensus of opinion regarding the status

of its members, we must therefore consider the doctrine of Ahmediyans and see whether their adoption by Mahomedans would amount to heresay

and make them apostates or murtads and put them outside the pale of Mahomedanism. It may be observed that in doing this we must take the

doctrines as propounded by Ahmad himself and accepted by his followers and not the distorted version of them as given by their opponents. It is

accepted by the complainant that the, Ahmediya doctrines are correctly stated in a small pamphlet by Mr. Sher Ali, B.A. and published by Sadar

Anjuman Ahmediya of Qadian, Punjab, entitled, ""What distinguishes Ahmadees from non-Ahmadees"" filed as an exhibit in this case--M. O. 5. The

creed of Ahmed is set out in it on pages 2 and 3. It begins by saying: "" we are Muslims by the Grace of God, Mustapha (the Holy prophat of

Arabia) is our leader and guide.... The Wine of our spiritual knowledge is from the cup of the Book of God which is called the Quran."" A perusal

of what is stated in the pamphlet shows clearly that the Ahmediyans subscribe to the Kdlma that there is no God but one God and Mahomed in

His Prophet and unreservedly accept the prophethood of Muhammad and the supreme authority of the Quran. In fact it would seem that they differ

from the orthodox Mahommedans only in some 6 points which are set out in the pamphlet and also by the learned Judge in his judgment.

They are briefly stated as follows:

While both parties believe that God had been speaking to his Prophets in the past the non-Ahmadees hold that Mahomed was the last prophet

with whom God spoke and since then He has not spoken to and will not speak to any one till the end of time. The Ahmadees on the other hand

believe that God continues to hold communion with His Holy servants now as in the past.

While both sides accept that Mahomed was Khatamum-- Nabiyyin (thje seal of the Prophets) they differ as to its interpretation. Ahmadees say

that it means that no new prophet cm arise except as a follower of Mahomed and bearing his seal and not that no new prophet can arise at all as

the non-Ahmadees hold.

Ahmadees admit into the list of prophets before Muhamed world - teachers such as Zoroaster, Buddha, Krishna and Ramachandra - and this

they say is according to the Koran but non-Ahmadees refuses to acknowledge them as prophets. Of course the Ahmadees hold that Ahmad was

himself a prophet of God but unlike the earlier prophets he got his prophethood through Mahomed who was made a prophet-maker by God.

Ahmadees believe that Jesus Christ was actually crucified but he did not die on the cross. He came out alive and went to Kashmir and died and

is buried there. Whereas the non-Ahmadees hold that Jesus was bodily carried to heaven by God before crucifixion. The Ahmadees think that the

prophecy of the second advent of Jesus is to be fulfilled not by Jesus coming back in person but by his spirit entering another man and they believe

this has been fulfilled by the advent of Ahmad himself.

While the non-Ahmadees believe that the promised to Mahdi will carry on a holy war or Jihad and spread Islam by the sword, Ahmadees

repudiate this doctrine and hold the promised Mahdi and the Messiah are the same and that he will spread Islam by arguments and heavenly signs

and not by violence. They accept Ahmed as that Messiah,

Ahmadees deny the claim of the Sultan of Turkey to the Caliphate and hold that every Muslim is bound to remain loyal to the Government under

which he lives and which protects him.

These are said to be the main differences. I agree with my learned brother in thinking that these differences are not sufficient to justify us in

holding that that the Ahmadees are not Mahomedans but apostates. As already stated, they accept the Kalma, the prophethood of Mahomed and

the authority of the Koran. These undoubtedly are the essential conditions for a person to be a Mahomedan, and they are complied with by the

Ahmadees. That would seem to make them Moslems governed by the Mahomedan Law. Sir Ameer Ali says in his book on Mahomedan Law

(4th Edition - Vol. II) page 36 that: ""Any person who professes the religion of Islam, in other words, accepts the unity of God and the prophetic

character of Mahomed is a Muslim subject and is subject to the Mussalman Law. So long as the individual pronounces the Kalma of Tauhid, the

creed of Islam, it is not necessary for him or her to observe any of the rights and ceremonies or to believe in particular doctrines which imply I man

or belief"" and again on page 112: ""Every person who acknowledges the Divine Unity and the messenger-ship of the Arabian prophet is regarded

as within the pale of Islam ; nothing more is required."" To the same effect, is the opinion of Sir Abdur Rahim in his Mahomedan Jurisprudence page

249 where he says the Islamic faith consists in acknowledging the authority of one God the Law-giver and the truth of Mahomed''s mission as this

prophet. Similar expressions of opinion are found in the judgment of Mahmood, J. in Queen Empress v. Ramzan I.L.R(1885) . All. 461 and in

Atta Ullah v. Azimulla (1889) L.R. 12 All. 494 which was a case relating to the sect of Wahabis; though the decisions in those cases referred to

worship in a Mosque, they are of value to show how eminent Mahomedan Lawyers have looked upon the question as to who are Mahomedans.

Besides those cases the learned Counsel for the petitioner has brought to our notice one recent decision in which the very question raised before us

as to the status of Ahmadees seems to have been raised, viz., the case of Hakim Khallil Ahmed v. Malik Istafi (1916) 2 Pat. L.J. 108. It was

expressly ruled there that the sect known as Ahmadees are Mahomedans notwithstanding their pronounced dissent or several important matters of

doctrine from the orthodox Mahomedan faith. In view of these authorities which I accept it follows that a Mahomadan does not become an

apostate by merely accepting the doctrine of Ahmadees. The Ahamadiyans are in my view only a reformed sect of Mahomedans.

If we examine the 6 points of difference set out above between the Ahamadees and the non-Ahmadees none of them seem to refer to any

essential principles of Mahomedanism or to conflict with the Quran. The point that has been most pressed before us is that Ahmad having set

himself up as a prophet has by that very act become an Apostate and his followers as followers of an apostate are also apostates. No authority has

been cited for this contention. We cannot act on what D. W. 4 says in his answer Ex. I is stated in the Fatwa Alamgiri. The original passage has

not been shown to us nor has it been shown that it applies to a case like the present where the pro-phethood of Mahomed is unreservedly

accepted.

For the above reasons I have come to the conclusion that the complainant never became an apostate and that his marriage with the 5th

accused was subsisting at the time of her second marriage, we have now to consider whether the plea of good faith and absence of mens rea is

established in the case and is a proper defence to the charge. It is said that the accused acted in good faith because she obtained the opinion of

D.W. 4 and others that she was entitled to remarry and her learned Counsel has relied on R. v. Tolso (1889) 2 Q.B.D. 168 and on Section 79 of

the I.P.C. Now in this matter, I think, we must be guided more by the wording of the section of the Code than on the English Law. Section 79 only

excuses a person who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be justified by law in

doing the act in question. So far as I can see there is no question of fact on which the 5th accused made any mistake. It was purely one of law

whether the fact of her husband becoming an Ahmadee made him an Apostate in law and severed her marriage tie. Her acting on the opinion of

others is thus no answer to the charge against her though as observed by my learned brother it may be considered it mitigation of sentence. The

English Case cited is distinguishable on the ground that there the mistake was one of fact. The opinion of Holmwood J in Abdul Ghani v. Azizul

Huq ILR (1911) Cal. 409 relied on by the Sessions Judge cannot with all respect be accepted as an authority as the learned Judge has not

discussed the question or referred to any authority and has not noticed the difference between the effect of a mistake of law and of a mistake of

fact. Sharfuddin, J., who sat with him put the case on the ground that the marriage which was broken by the husband becoming a Christian could

not be held to be subsisting during the period of iddut when the 2nd marriage was cacted and therefore no charge for bigamy would he. I.e the

other hand it has been held in Bombay in Reg. v. Sambu Raghu I.L.R.(1876) 1 Bom. 347 and again in Emperor v. Bai Ganga (1916) 19 Bom.

L.R. 56 that beleiving in good faith that the accused was justified in remarrying is nota defence to a charge of bigamy but can be considered only in

mitigation of sentence. This same view has been taken in Punjab (See 1 Lahore page 440). I hold therefore that the 2nd ground of defence of the

accused also fails. In the result the acquittal must be set aside but in the circumstances of this case I agree that it is not necessary to order a retrial.