Oldfield, J.:— We are asked to revise the acquittal of the fifth respondent on a charge of bigamy punishable under section 494, Indian Penal Code, and of the other respondents on subsidiary charges. The petitioner is the complainant who prosecuted as fifth 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 importance relating to the personal status of a substantial part of the Muslim community is raised.
The question is whether petitioner's adherence to Ahmediyan tenets made him a murtad or apostate from Muhammadanism. If it did, it had, it is not disputed, the effect of dissolving his admitted marriage with fifth respondent; and such dissolution prior to her remarriage with third respondent is her first and principal defence to the charge. The reply attempted is that Adamadiyas are merely a sect of Muhammadans, 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 of 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 unfamiliar and although I appreciate the improbability that our 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 views determine and to say that only degrees of orthodoxy are in dispute is to beg the question whether the Ahmediyans’ 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 Muhammadans 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 Mussulmans as a whole.”
And this test, securus judicat orbis may in appropriate circumstances have its value. But to apply it fairly, we must make sure that the judgment relied on is really general and had 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 were 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 4th, 6th and 7th defence witnesses whose evidence alone is relied on, the first is the son of the Government Kazi of Madras, who was formerly an Assistant Kazi and Arabic Professor in a private Madrassa 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 musaliar or religious leader in Malabar. The evidence of the second attracts suspicion to the extent of his acquaintance with Ahmed'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 the father of D.W 4. in the fatwa Exhibit I, “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 show divergences between the teaching of Ahmed and Islan thodox creed. The former are enumerated, it is which disputed, correctly by the lower Court. But as con???ds the latter the parties are at variance, petitioner wit ending that the formula “There is one God and???mmad is His Prophet” is exhaustive; respond-??? contending that we must take account of other???ines 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, those of Edge, C.J, and Mahmood, J., in Ata-Ullah v. Azim-Ullah, and on Maula Baksh v. Amir-ud-din, 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 bare formula referred to above. For, the latter portion of it cannot be taken as requiring a belief only in the history or legend of Muhammad without reference to the 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 Ahmediyas respondents complain. The materials for a conclusion which the parties have provided are the evidence of the witnesses already mentioned, the fatwa Exhibit I, a book M.O I, “The claim's and teachings of Ahmed” and a pamphlet M.O V, “What distinguishes Ahamedees from non-Ahamedees.” No reliance was placed before us on the works exhibited as M.O's. II, III, IV.
It is first to be observed that the Ahmediyas satedly at least, emphasize their adherence to the Ilamic 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 cap of the Book of God, which is called the Koran. Every Prophethood has found its cu???in-ation 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 manifestations 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 wordly affairs and political greatness for the earlier and more spiritual methods of propagating the faith and an eradication of the errors, into which Moslems from time to time have fallen. And similarly in M.O I, the first chapter maintains Monotheism and the supremacy of the Koran and there are (page 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 religion than Islam “; and “Muhammad is the Prophet of God for all the nations of the world.”
The form moreover to be signed on initiation (Page 104) runs
“I bear witness that there is no God but Allah. 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 Muhammadanism and in fact the respondents’ objection is to the Ahmediyan additions to it and their alleged inconsistency with it. But I 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. Seventh 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 sects 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, in this sense. But 4th defence witness also explained his description of some sects as murtads on the ground that their deviations from the teaching of the Koran were on fundamental points, refusing however to regard the Shiyas’ 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's Muhammadan Law, Vol. II, pages 11 to 14, Abdur Rahim's 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 Ahmediyans in their faith in the six 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 Exhibit I, unfortunately in very 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 will come after me and whose name will be Ahmed” referred to in Koranic verse quoted in Exhibit I; and there is also imputed to the Ahmediyans 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 Exhibit V (page 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, it is obvious and the references in the latter part of 4th defence witness's evidence indicate that much must 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 page 160 in Exhibit 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 connexion with Him;”
and if he did identify himself with the Promised Messiah, he explained at page 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 page 144 that
“no prophet, who is also a law-giver, 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 Exhibit I from the Alamgiri 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 involve 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 Khalil Ahmad v. Malik Israfi and Malik Israfil v. Hakim Khalil Ahmad. It follows that petitioner is not a murtad 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 rea and in the honest belief that the marriage was dissolved. This is unsustainable. For there is not really any question here of the doctrine of mens rea 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 facts; The Queen v. Tolson 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 and must hold that, whatever weight the good faith of respondents might deserve, if the proper sentence 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 s. 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 an 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 accused a Mopla woman was charged with bigamy under s. 494, Indian Penal Code, and the rest with abetment thereof. The Sessions Judge found that the 5th accused 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 Muhammadan theologians that his act amounted to apostacy and severed the marriage tie, she married a second time the third 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 these findings the question to be decided was whether her second marriage amounted to bigamy and that depended on the further question whether the act of an orthodox Muhammadan in joining the Ahmediyan sect amounted to apostacy under Muhammadan law or not; for it is conceded on both sides that one of the recognized consequences of apostacy by a Muhammadan is to sever his marriage 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 marry 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 and 439). On the other hand clause (4) of s. 439 contemplates orders 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 recognized 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 raises two important questions of law, one of them of great interest to the new and growing class of Ahmediyans and to the Muhammadans 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 Muhammadan theology to say that deviation from the recognized doctrines of Muhammadanism 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 three witnesses of the orthodox party who assert themselves to be men learned in Muhammadan theology and who say that the adoption by a Muhammadan 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 Muhammadans 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 Muhammadan 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 opinion as a source of law or the doctrine of Ijma is not universally recognized among Muhammadans; 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 doctrines of Ahmediyans and see whether their adoption by Muhammadans would amount to heresy and make them apostates or murtads and put them outside the pale of Muhammadanism. It may be observed that in doing this we must take the doctrines as propounded by Ahmed 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 Sadr Anjuman Ahmediyya 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 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 Quran.”
A perusal of what is stated in the pamphlet shows clearly that the Ahmediyans subscribe to the Kalma that there is no God but one God and Muhammad is 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 Muhammadans only in some six points which are set out in the pamphlet and also by the learned Judge in his judgment.
They are briefly stated as follows:—
1. While both parties believe that God has been speaking to his prophets in the past the Non-Ahmadees hold that Muhammad was the last prophet with whom God spoke and since then He has not spoken to and will not speak to any until 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.
2. While both sides accept that Muhammad was Khatamun-Nabiyyin (the seal of the Prophets) they differ as to its inter pretation. Ahmadees say that it means that no new prophet can arise except as a follower of Muhammad and bearing his seal and not that no new prophet can arise at all as the Non-Ahma dees hold.
3. Ahmadees admit into the list of prophets before Muhammad world-teachers such as Zoroaster, Budha, Krishna and Ramachandra and this they say is according to the Koran but Non-Ahmadees refuse to acknowledge them as prophets. Of course the Ahmadees hold that Ahmed was himself a prophet of God but unlike the earlier prophets he got his prophethood through Muhammad who was made a prophet-maker by God.
4. 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 away to heaven by God before crucifixion. The Ahmadees think that the prophecy of the second advent of Jeans 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 Ahmed himself.
5. While the Non-Ahmadees believe that the promised 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.
6. 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 the Ahmadees are not Muhammadans but apostates. As already stated they accept the Kalma the prophethood of Muhammad and the authority of the Quran. These undoubtedly are the essential conditions for a person to be a Muhammadan and they are complied with by the Ahmedees; that would seem to make them Moslems governed by the Muhammadan Law. Sir Ameer Ali says in his book on Muhammadan 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 Muhammad is a Moslem and is subject to the Mussalman Law. So long as the individual pronounces the Kalma of Tauhid, the Credo of Islam, it is not necessary for him or her to observe any of the rites and ceremonies or to believe in particular doctrines which imply Imam or belief” and again on page 112
“Every person who acknowledges the Divine Unity and the messengership 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 Muhammadan Jurisprudence, page 249, where he says “the Islamic faith consists in acknowledging the authority of one God the Law-giver and the truth of Muhammad's mission as his prophet. Similar expressions of opinion are found in the judgment of Mahmood, J., in Queen-Empress v. Ramzan, and in Ata-Ullah v. Azim-Ullah, 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 Muhammadan lawyers have looked upon the question as to who are Muhammadans. Besides these 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 Khalil Ahmad v. Malik Israfi and Malik Israfi v. Hakim Khalil Ahmad. It was expressly ruled there that the sect known as Ahmadees are Muhammadans notwithstanding their pronounced dissent on several important matters of doctrine from the orthodox Muhammadan faith. In view of these authorities which I accept, it follows that a Muhammadan does not become an apostate by merely accepting the doctrines of Ahmadees. The Ahmediyans are in my view only a reformed sect of Muhammadans.
If we examine the six points of difference set out above between the Ahmadees and the Non-Ahmadees none of them seem to refer to any essential principles of Muhammadanism or to conflict with the Quran. The point that has been most pressed before us is that Ahmed 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 (Exhibit 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 prophethood of Muhammad 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 re-marry and her learned counsel has relied on The Queen v. Tolson, and on s. 79 of the Indian Penal Code. Now in this matter I think we must be guided more by the wording of the section of the Code than by 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 in 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, 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. Sherfuddin, 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 second marriage was contracted and therefore no charge for bigamy would lie. On the other hand it has been held in Bombay in Reg v. Sambhu Raghu, and again in Emperor v. Bai Ganga, that believing in good faith that the accused was justified in re-marrying is not a defence to a charge of bigamy but can be considered only in mitigation of sentence. This same view has been taken in Punjab: (see Mst. Nandi v. The Crown. 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.
N.R
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