Hashim Yeop Sani CJ (Malaya):

This appeal arose from the dismissal by the High Court Penang on 16 October 1991 of an application by the appellant for a declaration that her son, Gurdev Singh s/o Guruvak Singh (deceased) was at the time of his death on 3 October 1991 not a Muslim and/or had renounced the Islamic faith and also for the consequential declaration that she was entitled to claim the body of the deceased from the District Hospital mortuary, Bukit Mertajam.

The deceased was at the time of his death about 23 years old, born a Sikh and brought up in the Sikh faith. He had been living with his mother (the appellant) in the District of Kulim, in the State of Kedah. His body was found on 3 October 1991 at Jalan Mengkuang/Berapit, Kubang Semang, Bukit Mertajam. Prior to his death he was a supervisor at a factory in Kulim. The deceased had a girl friend (or fiancee) a Malay girl named Siti Noraini working at the same factory.

It is not disputed that the deceased converted to Islam on 1 June 1991 before the District Kadi of Kulim. It is also not disputed that the conversion was duly registered with the Majlis Agama Islam, Kedah in accordance with s. 139 of the Administration of Muslim Law Enactment 1962 of Kedah. In her originating summons the appellant contended that subsequent to the conversion and before his death the deceased had by a deed poll on 9 September 1991 renounced the Islamic faith and resumed the practice of the Sikh faith. It was also alleged that the deceased was rebaptised by a Sikh priest at a Sikh temple in Kulim about a month before his death and that the deceased had regularly attended the congregation at the Sikh temple thereafter. It was also contended that the deceased continued to eat pork and had not been circumcised.

In his written judgment the learned Judicial Commissioner set out the chronological events material to the case as follows:

1989 Deceased and Siti Noraini working in the same factory became acquainted.

1 June 1991 Deceased embraced Islam (not disputed).

6 September 1991 Deceased assaulted Siti Noraini in front of the factory because Siti Noraini went out with another man, a Chinese, by the name of Jeffrey. That evening deceased took Siti Noraini to a restaurant together with one Krishna Kumar.

7 September 1991 Deceased took Siti Noraini to Penang.

9 September 1991 The date of the alleged deed poll.

28 September 1991 Deceased and Siti Noraini were engaged at her house. Deceased as well as his brother (Balwinder Singh) went

to the ceremony. Deceased gave a ring to Siti Noraini. According to Siti Noraini in her evidence, the wedding was scheduled to take place on 25 November 1991.

2 October 1991 Deceased came to the house where Siti Noraini was staying at 11 p.m. and sent her to the factory to work. That was the last time that Siti Noraini saw the deceased.

3 October 1991 At 6.45 a.m. the police was informed of the deceased's body.

At the conclusion of the hearing before the learned Judicial Commissioner, he came to the conclusion that the signature on the deed poll was not that of the deceased. He also rejected the evidence of the Sikh priest and that of the deceased's brother with regard to the rebaptism and the congregation at the Sikh temple.

The appellant appealed. At the hearing of the appeal this Court remitted the case to the High Court for the learned Judicial Commissioner to refer certain questions of Islamic law that arose to the Fatwa Committee under s. 37 of the Enactment. The High Court sat again on 26 October 1991 for the purpose of referring the questions.

After receiving the fatwa from the Fatwa Committee the learned Judicial Commissioner sat on 28 October 1991 and confirmed his earlier findings and decision. Thus the present appeal.

The questions referred to the Fatwa Committee and the answers are reproduced below:

S: Adakah seseorang yang beragama Islam yang membuat peristiharan melalui deed poll bahawa dia menolak agama Islam terkeluar daripada agama Islam?

J