P L D 1969 Supreme Court 435 (PLP)

HAMOODUR RAHMAN, C. J.‑These two appeals by special leave arise out of two separate judgments of two different Division Benches of the High Court of East Pakistan but since the decision of the High Court in Criminal Appeal No. 24‑D of 1968 is based on the decision of the same High Court in Criminal Appeal No. 1‑D of 1969, they have both been heard together and will be disposed of by this judgment. Leave was granted in Criminal Appeal No. 1‑D of 1969 to consider only two points, namely :- (i) whether the petitioner had acted foolishly in this matter without being a party to the forgery? and (ii) whether he was a public servant within the meaning of section 21 of the Pakistan Penal Code and as such his prosecution without obtaining the sanction of the appropriate authority was bad in law? In Criminal Appeal No. 24‑D of 1968, leave was granted to consider only the second point mentioned above. The appellant in Criminal Appeal No. 1‑D of 1969, who was at the relevant time a licensed Nikah Registrar, was prosecuted along with several other persons, on a charge under section 467/34 of the Pakistan Penal Code on three counts for forging the signature of one Mst. Afroza Begum in three Nikahnamas in order to show that she had been legally married to one of the co‑accused, Yaqub Hussain. The said Mst. Afroza Begum was the daughter of a rich end respectable businessman of Mangum in the district of Pabna, called Muhammad Afzal Hussain. Afroza Begum was, at the time o: the occurrence, aged below 20 years and was a student of the third year B. Sc. (Honours) Class in the Dacca University and was also a resident of the Women's Hall Extention at Luxury House in the Dhanmandi area. She was a maiden and neither her father nor she herself had contemplated her marriage at that stage. During the vacations of 1962, which she was spending at her father's house at Bhangura, a registered letter was tendered to her father for delivery to her. The sender of the letter was described on the envelope as Yaqub Hussain of Betuain, Bonwarinagar, Pabna. As Afzal Hussain did not know the sender, he refused the letter. Subsequently on the 1st or 2nd of March 1963, one Muhammad Afsar Ali of village Betuain, who was known to Afzal Hussain, enquired from him as 'to whether his daughter had been married to the said Yaqub Hussain. Afzal Hussain flatly denied knowledge of this whereupon Afsar Ali apprised him of the fact that Yaqub Hussain was giving out in the locality that he‑ had married Afroza Begum by a registered Nikahnama. On the 6th March 1960,. the said Afsar Ali actually handed over to Afzal Hussain a copy of a Nikahnama purporting to have been registered by the appellant Muhammad Osman Gani. It was contained in a registered cover with an acknowledgment receipt. This reminded Afzal Hussain of the registered letter which was earlier tendered to him by the postal peon and was refused by him. On examining the Nikahttama he found that it purported to be signed by Afroza Begum as the bride, Yaqub Hussain as the bride‑groom and Nurul Islam and Mohsinuddin Sarkar as the witnesses of the marriage. Afzal Hussain then sent this document to the officer incharge of the Faridpur Police Station on the 9th March 1963, and an investigation was started. It transpired in the course of investigation that the signature of Afroza Begum on the Nikahnama was forged by Abdus Sattar, after the Nikahnama forms had been procured by Anisur Rahman. There were actually three Nikahnamas on which the signatures of Afroza Begum appeared to have been forged. They were sent to the Handwriting Expert alongwith specimen signatures of all the accused other than Anisur Rahman. The expert opined that the forged signatures appeared to have been made in the same hand which had written the specimen signatures of Abdus Sattar. Six persons, including the appellant, were then sent up for trial. They all pleaded not guilty. Yaqub Hussain, Mohsinuddin Sarkar and Nurul Islam maintained that the documents in question were genuine and that Afroza Begum had executed the Nikahnama with full knowledge and consent but was now, under the pressure of the father, denying the Nikahnama as well as her marriage. Abdus Sattar and Anisur Rahman took the defence that Afzal Hussain being ashamed of the marriage of his daughter with Yaqub Hussain had adopted the device of forging the documents in collusion with others to "kill the rumour". The appellant Osman Gani stated that he was not involved or connected with the forgery nor had any knowledge thereof but had acted bona fade on the representation of some unknown persons and registered the marriage without any knowledge of the forgery or suspicion of foul play. On his behalf a legal plea was also raised to the effect that he being a public servant, was triable exclusively by a Special Judge after obtaining a proper sanction from the appropriate Government and that the Sessions Court had no jurisdiction to try him. The legal objection was overruled and the trial Court found the appellant Osman Gani, Abdus Sattar and Anisur Rahman guilty on two counts. Nurul Islam, Yaqub Hussain and Mohsinuddin Sarkar were, however, found guilty on three counts. All of them were sentenced to rigorous imprisonment for 7 years on each count, but the sentences were made to run concurrently. On appeal the High Court also repelled the legal plea and upheld on merits all the convictions and sentences. Two separate petitions for special leave to appeal were then filed in this Court, one by the appellant Osman Gani and the other by Abdus Sattar and Anisur Rahman. The petition of Abdus Sattar and Anisur Rahman was dismissed but leave to appeal was granted, as already stated, to the appellant Osman Gani to examine the two questions metioned earlier in this judgment. Criminal Appeal No. 24‑D of 1968 arises out of a judgment of the High Court of East Pakistan in a reference under section 438 of the Criminal Procedure Code made by the learned Sessions Judge, Rajshahi, recommending the setting'aside of an order of the Sub‑Divisional Magistrate, Rajshahi Saddar, directing the prosecution of the appellant Muhammad Arif on a complaint alleging an offence under section 494/109, P. P. C. .He too was a Nikah Registrar and he was sought to be prosecuted on the complaint of the respondent Muhammad Kawashar Ali for having performed the marriage of one Fatima Bibi with one Muhammad Sulaiman, even though the said Fatima ‑Bibi was at that time the legally married wife of another person. The High Court, relying upon the decision in the case of Muhammad Osman Gani and others, rejected the reference. Leave was granted to Muhammad Arif because leave had already been granted to Osman Gani to consider the same question of law. The common question of law, therefore, that arises in both these appeals is as to whether a Nikah Registrar under the Muslim Family Laws Ordinance (VIII of 1961) is a public servant. It may be mentioned here that both Muhammad Osman Gani and Muhammad Arif were originally appointed as Marriage Registrars by the then Government of Bengal under section 3 of the Bengal Muhammadan Marriages and Divorces Registration Act, 1876 and under section 25 of the said Act a Muslim Marriage Registrar was deemed to be a public officer for the purposes of section 197 of the Criminal Procedure Code. On the 2nd of March 1961, however, the Muslim Family Laws Ordinance was promulgated and subsection (1) of section 3 thereof provided that :‑ "The provisions of this Ordinance shall have effect notwithstanding any law, custom or usage and the registration of Muslim Marriages shall take place only in accordance with those. provisions." Then section 5 prescribed as follows :‑ "5 (1) Every marriage solemnized under Muslim Law shall be registered in accordance with the provisions of this Ordinance. (2) For the purpose of registration of marriages under this Ordinance, the Union Council shall grant licences to one or more persons, to be called Nikah Registrars, but in no case shall more than one Nikah Registrar be licensed for any one ward. (3) Every marriage not solemnized by the Nikah Registrar shall, for the purpose of registration under this Ordinance, be reported to him by the person who has solemnized such marriage. (4) Whoever contravenes the provisions of subsection (3) shall be punishable with simple imprisonment for a term which may extend to three months, or with fine which may extend to one thousand rupees, or with both. (5) The form of Nikahnama the registers to be maintained by Nikah Registrars, the records to be preserved by Union Councils, the manner in which marriages shall be registered and copies of Nikahnama shall be supplied to the parties, and the fees to be charged therefore shall be such as may be prescribed. (6) Any person may, on payment of the prescribed fee, if any, inspect at the office of the Union Council the record preserved under subsection (5) or obtain a copy of any entry therein." This Ordinance did not, however, expressly repeal the Bengal Muhammadan Marriages and Divorces Act, 1876. Rule 7 of the Rules framed under the Ordinance, called the East Pakistan Muslim Family Laws Rules, provided that any person who was not below 25 years of age and possessed sufficient acquaintance with the Arabic language and the Muslim Laws of Marriage and Divorce and who was of good character, could apply in writing to the Union Council for the grant of a licence to act as a Nikah Registrar under section 5 of the said Ordinance. Sub‑rule (2) of this rule had, however, appended .to it a proviso to the following effect :‑ "Provided that, in the case of a person who at the time of the commencement of the Ordinance was already exercising the powers of a Muhammadan Registrar under the Bengal Muhammadan Marriages and Divorces Registration Act, 1876, the Chairmen of all such Union Councils over which such Muhammadan Registrar was exercising such jurisdiction, may grant him licence to perform the duties of Nikah Registrar under the Ordinance within their respective Unions, if he so applies." On the coming into force of the Muslim Family Laws Ordinance, 1961, therefore, both Osman Gani and Muhammad Arif applied for and obtained licences to act as Nikah Registrars. Osman Gani obtained such licences in respect of 4 Union Councils and Muhammad Arif obtained a licence to act as a Nikah Registrar only in Union Committee No. 5 of Rajshahi Municipality and it was while they were acting as such Nikah Registrars that the alleged offences with which they were charged were committed. It has been contended on their behalf that since they were originally appointed under Act I of 1876 and by reason of section 25 of that Act they were deemed to be public officers and their duties public duties they continued to enjoy that status even after the coming into force of the Ordinance of 1961 as the Act of 1876 was not repealed. It is true that Act I of 1876 was not expressly repealed but since the provisions of the Ordinance of 1961 applied by reason of the provisions of section 3 thereof notwithstanding any law, custom or usage and under section 5 thereof all marriages had to be registered by persons licensed to act as Nikah Registrars under the Ordinance, it cannot be said that they continued either to act as Marriage Registrars or to retain their status of a Marriage Registrar under the Act of 1876. The provisions of R the Ordinance prevailed notwithstanding the provisions of the Act of 187'5 and to that extent the provisions of the Act stood impliedly repealed. An intention to repeal the previous law may well be gathered from the repugnancy of its provisions with the general course of the subsequent legislation or from the incongruity of keeping both the enactments in force. This is further confirmed by the fact that both the appellants also took the same view of their legal position, for they actually applied for and obtained licences under the Ordinance of 1961. It is not also correct to say that under the proviso to sub‑rule (2) to rule 7 of the East Pakistan Muslim Family Law Rules the Muslim Marriage Registrars, appointed under the' Act of 1876, were to be automatically granted licences under the Ordinance. This proviso merely had the effect of making Muslim Marriage Registrars, appointed under the Act of 1876, qualified to apply for licences under the Ordinance, for, the words used in the proviso are that the Chairman of the Union e Council "may grant" a licence to perform the duties of a Nikab Registrar under the Ordinance within his Union to a person who. was already exercising the powers of a Muhammadan Marriag Registrar under the Act of 1876 if the latter so applies for it. This makes it clear beyond any doubt that there was no automatic, grant of licence to Muslim Marriage Registrars appointed under) the Act of 1876. The next question, therefore, that has been raised is that even, Nikah Registrar licensed under the Muslim Family Laws Ordinance is a public servant either under Article 97 of the Basic Democracies Order or section 21 of the Pakistan Penal Code. Article 97 of the Basic Democracies Order is in these terms: "Every member and every servant of a Local Council, and every other person duly empowered to act on behalf of a Local Council, shall be deemed to be a public servant within the meaning of section 21 of the Pakistan Penal Code (Act XLV of 1860)." It is manifest that a Nikah Registrar is neither a member of a local Council nor a person employed in the service of a Local Council, but it is said that he is a "person duly empowered to act on behalf of a local Council". In support of this contention reliance has been placed on item No. 18 of the Fourth Schedule of the Order to show that Registration of Marriages was one of the functions of a District Council. But it is significant that a similar entry is not to be found in the Third Schedule which enumerates the functions of a Union Council. It may also be pointed out here that after the Muslim Family Laws Ordinance came into force in 1961, item No. 18 itself was deleted from the Fourth Schedule. It is thus clear that after the Muslim Family Laws Ordinance came into force, registration of marriages was not a function to be undertaken either by a District Council or a Union Council. Indeed it could not be, for, under the Ordinance of 1961 the registration had to be done by a Nikah Registrar in accordance with the provisions of the Ordinance itself as prescribed by sections 3 and 5 thereof, and the Union Council was only entrusted with the function of granting a licence to a person applying to act as a Nikah Registrar. The reference to item No. 8 of the Fifth Schedule, which gives power to a Local Council to levy a tax on births, marriages and feasts and to item 1 of the Seventh Schedule, which gives power to a Local Council to make by‑laws and regulations for the registration of births, deaths and marriages is not of any help either, for, a local authority may well regulate the doing of a thing even though it may not itself undertake to do that thing as a part of its own functions. In our view the words "every other person duly empowered to act on behalf of a Local Council" in Article 97 of the Basic Democracies Order have necessarily to be read in conjunction with the words preceding it, namely, a member or a servant of the local Council and, therefore, must mean a person acting as an agent of the Local Council in the discharge of the functions undertaken by it. Now the functions of a Local Council are under Article 27 of the Basic Democracies Order such as may be declared by Government to be its appropriate functions or such as are delegated to it by the District Council or such as are entrusted to it under any law for the time being in force. The registration of marriages was not a function declared to be a function of the Union Council by the Government. In the Third Schedule of the Basic Democracies Order, nor is there anything on the record to show that such a function was delegated to it by the District Council. The question is whether it acquired such a function under the Ordinance of 1961. Section 5 of the Ordinance of 1961, as already indicated, only entrusts to the Union Council the power to grant licences to persons to act as Nikah Registrar and then imposes upon the Nikah Registrar the duty of registering the marriages and maintaining registers for that purpose. The forms of the Nikahnamas, the registers to be maintained, the records to be preserved by the Union Council, the manner in which marriages are to be registered and copies of Nikahnamas supplied and the fees to be charged therefor are prescribed by Government under the Ordinance by Rules framed in that behalf. Under rule 10 of the Rules the only record to be maintained by the Union Council is the quadruplicate copy of the Nikahnama sent to it by the Nikah Registrar. Thus even under the Muslim Family Laws Ordinance the Union Council is not entrusted with the duty of registering the marriages but is merely entrusted with the function of granting licences to Nikah Registrars and preserving copies of the Nikahnamas. Apart from this every thing else is to be done by the Nikah Registrar himself. Rule 10 only prescribes that one of the quadruplicate copies of the Nikahnama is to be forwarded to the Union Council for preservation. Thus having regard to the functions of the Union Council under the Ordinance it cannot be said that a Nikah Registrar is a person acting on behalf orl the Union Council or discharging any of its functions. Article 971 of the Basic Democracies Order, therefore, has, in our view, no application. We come now to consider the question as to whether a Nikah Registrar is a public servant within the meaning of section 21 of the Pakistan Penal Code. The relevant portions of section 21 of the Pakistan Penal Code, so far as material for our present purposes, are as follows :‑ "

21. The words "public servant" denote a person falling under any of the descriptions hereinafter following, namely :‑ Ninth.‑Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government or to execute any revenue‑process, or to investigate, or to report, on any matter affecting the pecuniary interests of the Government, or to make authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government and every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty ; Tenth.‑Every officer whose duty it is as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district." It seems to us that a Registrar acting under the provisions of subsection (5) of section 5 of the Ordinance of 1961 and rule 10 of the Rules framed under the said Ordinance is a person who has to discharge a public duty on being remunerated by fees to be received from the parties. The compulsory registration o marriages provided for by the Ordinance is clearly a public duty undertaken by Government, because, the failure to register exposes the culprits to penal liability under subsection (4) of section 5 of the Ordinance. Under subsection (5) of the said section the Government also provides the forms and registers required to be maintained and prescribes the manner of registration and the fees to be charged therefor. By making non‑registration punishable the Government had thus accepted the responsibility of providing the machinery of such registration. This is therefore in every sense of the term a public duty. The Nikah Registrar is also, in our view, a person charged with the duty of making any authenticating documents and registers necessary for the ascertainment of the rights of people within the meaning of the tenth clause of section 21 of the Pakistan Penal Code. Rights to succession, maintenance, dower, divorce, legitimacy of children and several other rights may, flow from a valid marriage. We have, therefore, come to the conclusion that a Nikah Registrar under the Muslim Family Laws Ordinance is a public servant within the meaning of section 21 of the Pakistan Penal Code. The mere fact that he has under rule 9 of the rules framed under the Ordinance to be remunerated by fees to be received from the Parties does not prevent his becoming a public servant, if he is otherwise discharging a public duty. The contention of the learned counsel for the State in Criminal Appeal No. 1‑D of 1969 that a Nikah Registrar is a mere licensee, is without any substance. 'He is clearly appointed to discharge a public duty, namely; the registration of marriages and he does so on a fee prescribed by Government of which, under the said rule 9 framed by Government, he receives 80 per cent. and gives 20 per cent. to the Union Council. In this view of the matter we think it undesirable to express any opinion as to the respective merits of the cases of the appellants before us, for, upon this finding it is patent that their convictions cannot be upheld. The appellant Osman Gani was admittedly prosecuted without obtaining the necessary sanction from the appropriate Government, as required both under the Pakistan Criminal Law Amendment Act, 1958 and section 197 of the Criminal Procedure Code. His trial by the Assistant Sessions Judge. Pabna, was also without jurisdiction, because, the offence under section 467, P. P. C. was exclusively triable by a Special Judge appointed under the said Pakistan Criminal Law Amendment Act, 1958. His convictions and sentences are, accordingly, set aside. It will now be for the Provincial Government to consider whether it will grant a sanction for his fresh prosecution. If such sanction is granted, he will have to be) retried by a competent Court. In the case of Muhammad Arif, his appeal is also allowed, the judgment of the High Court is set aside and the reference made by the District and Sessions Judge, Rajshahi is accepted. He can be prosecuted in respect of an offence alleged under section 494/109 of the Pakistan Penal Code only if the Provincial Government accords the necessary sanction under section 197 of the Criminal Procedure Code. In the result both these appeals are allowed. The convictions and sentences of the appellant Osman Gani are set aside and he is directed to be set at liberty forthwith if not required in any other case. Similarly in the case of Muhammad Arif his appeal too is allowed and the order of the Sub‑Divisional Magistrate, Rajshahi passed on the 8th July 1966, for his prosecution is set aside and the proceedings quashed. K. B. A. Appeals accepted.