Farid-ud-Din Masood, who is respondent in this petition, has filed a complaint under sections 497 and 498 of the Pakistan Penal Code against Air Marshal (Rtd.) M. Ashgar Khan and Mrs. Tahira Masood, petitioner herein. Rana Shaukat A.I, a local Magistrate, has issued process against both the accused in the complaint. Mrs. Tahira Masood has now approached this Court with this petition under section 561-A of the Code of the Criminal Procedure, praying that the criminal proceedings initiated against her by the learned trial Magistrate on the basis of the respondent's complaint be quashed.
2. Section 497 of the Pakistan Penal Code lays down that "whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor". Sec--petition 497 thus expressly excludes the "wife" from punishment even as an abettor. Therefore, the petitioner could not be accused of the offence of adultery.
3. Section 498 of which also the petitioner has been accused provides for a minor offence as compared to its preceding section and enacts that "whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term, ,which may extend to two years, or with fine, or with both." A bare reading of this section shows that it does not apply to the "wife". The only question which needs examination is whether a married woman can be proceeded against for the offence of abetment of her abduction, In Crown v. Syed Ahmad and another (1868 P R 17the facts were that the trial Magistrate convicted Syed Ahmad under section 498, P. P. C. And sen--tenced him to one year's rigorous imprisonment and Rs. 50.00 fine. He also convicted Mst.
Mariam under section 498 for the offence of abetment of her own removal for a criminal purpose by Syed Ahmad, and sentenced her to six months' imprisonment. Mr. Justice Boulnois and Mr. Justice Simson of the Chief Court of Lahore upheld the conviction of Mst. Mariam by observing: "As to the punishment of the woman for abetment of her own removal there may be some doubt. Mr. Cust, when Judicial Commissioner, ruled that a woman who abetted her own removal could be so punished, on the ground that the taw of abetment applied to the whole Code except where it was distinctly stated that it did not apply. In the case of adultery (section 497) it is distinctly enacted that the wife is not punishable as an abettor, and on the principle that `the expression of one is the exclusion of another', the Chief Court concurs in that ruling, and upholds the conviction of Mst.
Mariam". I have not been able to persuade myself to agree to the view expressed by Bouinois and Simson, JJ. The "wife" has been distinctly exempted under section 497 from being charged as an abettor of the major offence of adultery, and it would frustrate the intention of the Legislature if she is to be punished under section 498 as an abettor of her own removal for a criminal intent. In Phalia v. Jiwan Singh and another (1871. P R 6), Mst. Raju was convicted by the trial Magistrate under section 109/498. In revision, a Full Bench of the then Chief Court of Lahore, comprising Mr. Justice Boulnois, Mr. Justice Lindsay and Mr. Justice Campbell, held that a woman cannot be punished for her own abduction under section 109/498 and, therefore, set aside the conviction of Mst. Raju. It is worth special mention that Boulnois, J., who was a member of the Division Bench in Mst. Mariam's case was a party to the judgment in Mst. Raju's case, just mentioned. A Division Bench of the same Court, of which Boulnois, J. Was again a member ruled in Mohun v. Gunsham and another (1871 P R 8that the wife is not punishable under section 498 as an abettor, and further observed: "As the woman is ex--pressly exempted from being charged as an abettor under section 497 in cases of adultery, it is inconsistent to punish her as an abettor of the minor offence mentioned in section 498, viz., enticing or taking away, or detaining with a criminal intent a married woman". My view finds support also from the observations in In re : Balambal 1 L R 26 Mad. 463), where it was said that when a man is convicted of "enticing away" a woman under section 498, the woman cannot be held guilty as an abettor.
4. In the view of the matter I take, it was not legally competent fore Farid-ud-Din Masood to have accused Mrs. Tahira Masood, his lawfullwedded wife, of any of the offences contemplated by sections 497 and 498, P. P. C. Accordingly, I would accept this petition, quash the criminal proceedings initiated by Rana Shaukat A.I, Magistrate, Lahore, on the complaint under sections 497 and 498, P. P. C. Of Farid-ud-Din Masood, so far as the petitioner herein is concerned, and direct the cancellation of the process issued against her.
5. Before parting with the case I would, however, like to observe that under a Qur'anic Injunction, a married woman, if found guilty of adultery, has to be stoned to death. Thus, the Islamic Law in this respect and sec--petition 497 of the Pakistan Penal Code are poles apart, and in order to dispel doubts which may crowd into the minds of the people of our country about my above finding, based, as it is, on the interpretation of sections 497 and 498, P. P. C., I think it necessary to add here that under the Constitution the Legislature is pledged to mould the entire body of laws to conform to the Islamic system of life, but till such time it is done by the elected representa--tives of the people, the Courts are constitutionally bound to follow the written law. A decision, if given against such written law, may be absolu--tely in accordance with a Qur'anic Injunction or a Hadith, and still the Judge giving such decision may be accused of being guilty of violating the law of the land. It is true that it will be difficult to switch over to the entire body of Islamic Law all at once till the whole structure of the society undergoes a complete transformation and the new social order is firmly established, but there can be no difficulty to the gradual enforcement of the Islamic Law, and, if the Legislature thinks so, section 497 of the Code can be amended at any time to make punishable also a married woman who may be proved to have been guilty of adultery.