Published On: Mon, Nov 26th, 2012

`I am the authority’

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By Dr. Syed Nazir Gilani –

I am writing this column to further the constituency of merits and balance the facts of an article titled `I am the authority’ written by Zahir Din, on Wednesday, 14 Nov 2012. The author is one of my favourite writers domiciled in the Valley. He has been making lead contributions and this one is no different except that some facts of the article merit an update.

There would be hardly a person who would not support Zahir Din’s suggestion that a court room in the Sadder Court complex where Mr.  M. A. Jinnah, Bar-at-Law .(Quid-e-Azam) and Mr. Asad Ullah Advocate  appeared for the Appellant in a Criminal Appeal No 45 of 1935 in June 1936, has a historical significance and as such needs to be preserved. Any steps to undo or vary the character of the court room would be a great loss and the effort may very rightly be regarded as a criminal neglect towards our history. Politics apart, Mr.  M. A. Jinnah has been regarded as a leading lawyer of the Commonwealth and everyone in the Commonwealth countries in particular would wish to take pride in any event which is associated with this great legal mind.

The article stands as a testimony to the fact that Zahir Din has an exceptionally very high sense of social conscientiousness and helps us to answer the non-Kashmiri commentators who have remained very unkind in defining the character of a Kashmiri.

In 1919 C E Tyndale Biscae in his book “Kashmir and its Inhabitants” in this regard at page  80 writes, “The Kashmiris have a virtue, a very important one – viz, the saving grace of humour. Sir Walter Lawrence, who was such a blessing to the tillers of the soil when he was the Land Commissioner thirty years ago (1889) was on tour in the district, and on entering a village he saw a man standing on his head. On asking him the reason for taking that uncomfortable position, the man said that his family matters were in such an utter muddle that he did not know whether he was standing on his head or on his feet. I did not hear the end of the story, but I feel certain that the Commissioner Sahib put him right side up and helped him to find himself, for he had great sympathy with these downtrodden cultivators of the soil. They are all Mohammedans, and all the officials in those days were Hindus”.

There are some material facts in the article which need a correction. The Case was not State v/s Haneefa Begum and Maher Ali but it was Mst. Hanifa Begum (Accused) – Appellant Versus State Through Pirzada Abdul Kabir (Complainant) – Respondent. It is also incorrect that Mr.  M. A. Jinnah appeared before three judges namely CJ Saberjor Lal, Justice Abdul Qayoom and Justice Seini. The fact is that Quid-e-Azam appeared before Sir B J Dalal, Chief Justice of The High Court of Judicature of Jammu and Kashmir, at Srinagar.

Zahir Din writes, “The Chief Justice, according to noted columnist, Tabasum Kashmiri, sought an authority to support his contention. Jinnah said, “I am the authority.” The case was decided in his favour.”

It beggars belief that a Barrister of the standing of Mr.  M. A. Jinnah would have answered the chief justice in the manner suggested in the article. Every lawyer has a duty to the Court, duty to his client and duty to his professional conduct.  A lawyer would never rest his or her case by quoting himself or herself as an authority. And an error of this kind would constitute disrespect towards Court and entail very serious consequences. A Barrister trained at Lincolns Inn would not be expected to go so poor on his professional expectations and be so out of character to offer himself as “an authority” in a Criminal Appeal.

Courts never decide a case on the physical appearance, status or geography of a lawyer. It was not a difficult case in a juridical sense but may have appeared so in 1935/36 because the access to competitive legal knowledge for a Kashmiri lawyer at Srinagar may of course have been very scarce.

If one reads the judgment it is very clear that the Chief Justice was very clear on the law applicable in the case. After reading the judgement of the Sessions Judge which had acquitted the Sub Inspector Mehar Ali and convicted Hanifa Begum, Chief Justice observed that “It may be complained that in a man presided court it is the woman who pays”.

It was a case brought under section 494 of the Ranbir Penal Code and a lawyer could not afford to say that “I am the authority”. There were two Quranic authorities available in the case.  Hanifa Begum case was covered by the Quranic authority laid down in Surah Al-Baqarah Verse 234. It states “And those of you who die and leave wives behind them, they (the wives) shall wait (as regards their marriage) for four months and ten (days), then when they have fulfilled their term, there is no sin on you if they (the wives) dispose of themselves in a just and honourable manner (i.e. they can marry). And Allah is well-Acquainted with what you do”.

Lawyers of the standing of   Mr.  M. A. Jinnah and Mr. Asad Ullah Advocate would have been well aware that their case was that, “if the marriage had taken place within the period of Iddat, the charge of bigamy could not be laid” and also that, “In a Criminal Prosecution particularly when evidence is based on breach of social laws, the view most favourable to the accused person should be taken by the Criminal Court”.

Quranic injunction in regard to Iddat of four months and ten days in the case of the death of a husband has to be established in accordance with Lunar Calendar. There is no bar on using the English calculation either.

It was conceded that marriage with Sub Inspector had taken place. The High Court had to decide, (1) whether the marriage actually took place between the woman and Abdul Kabir, and (2) whether the marriage, if it took place, was a valid one.

The Court was conscious (as referred in the judgement) that “this was a criminal prosecution brought by the man who had waited for more than 3 years for establishing his claim as a husband and took criminal proceedings when the woman married”. In fact the bad faith of Abdul Kabir to bring the case after more than 3 years was floating on the surface of the case.

According to the English dates the first husband, Ali Rishi had died on 24 September 1931 and the marriage with Abdul Kabir took place on the 31st January 1932. Therefore the Iddat of 4 months and 10 days had not completed. According to English calculation only 4 months and 7 days had passed and Iddat was not complete. The argument then was to calculate the Iddat according to Mohammaden calculation, of four months and ten days. It was said that Ali Rishi had died on 10th of Jammadi-ul-awal and that marriage took place on the 22nd of Ramzan.

The High Court found that, “The marriage took place after 129 days and not after four months of thirty days each and eleven days”. It also found that, “As regards the date of death the balance of evidence is in favour of the 11th being the date of death of Ali Rishi”. Chief Justice in his findings said, “I think taking all these matters into consideration a view most favourable to the woman ought to have been taken by the learned Judge of the Trial Court”.

Chief Justice concluded, “In disagreement with the trial court I hold that the marriage with the complainant took place within the period of Iddat….In the result I set aside the conviction and sentence and order that the woman shall be released. Her bail bond shall be cancelled. The fine, if any recovered, shall be refunded”. The case was decided on 4th June 1936 according to 23rd Jeth 1993 at Srinagar. It is reported at pages 60-63 in Volume XXXVIII 1936 of The Punjab Law Reporter.

Author is London based Secretary General of JKCHR – NGO in Special Consultative Status with the United Nations.  He could be reached on email dr-nazirgilani@jkchr.com


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