P L D 1959 (W (PLP)

______________|__________________ | | | Mst. Mhandan Mst. Barkar Bibi Ghulam Qadir= Mst. Nawab Bibi And Mst. Allah Rakhi

3. Ghulam Qadir died in the year 1948, leaving two widows Mst. Nawab Bibi and Mst., Allah Rakhi, and two daughters Mst. Sardar and Mst. Nawab. His widow Mst. Allah Rakhi, who was entitled to inherit only 1/16th share of the estate left by the deceased, was in possession of the entire land. Some time after the death of her husband, she married one Bashir of Lyallpur District. A little before her remarriage, she had mortgaged the entire land of her first husband, measuring 76 kanals and 16 marlas for Rs. 16,

000. Ghulam Qadir's reversioners filed a civil suit challenging the validity of the mortgage deed executed by Mst. Allah Rakhi. The suit was decreed in favour of the plaintiff reversioners. According to the decree, the reversioners had to pay Rs. 3,000 for the redemption of the land. This amount had to be contributed by all the plaintiff‑reversioners. A sum of Rs. 3,000 was, however, deposited in the treasury by Hasan Muhammad, Shukar Din and Sardar appellants. The female plaintiff‑reversioners did not contribute anything towards this amount. The treasury challan dated the 15th of July 1957 was in the name of Mst. Mhandan P. W. Since Mst. Mhandan and Mst. Barkat Bibi had not contributed ‑their share, Hasan Muhammad, Shukar Din and Sardar appellants unsuccessfully tried to, persuade them to mortgage their share of the land in their favour in lieu of Rs. 1,

500. They were, however, brought to Sialkot on the pretext that unless a document was executed by them it was not possible to get possession of the land under the decree. Mst. Mhandan and Mst. Barkat Bibi agreed to execute such a document. They came to Sialkot accompanied by Hasan Muhanvad, Shukar Din and Sardar appellants on the 13th of August 1957. After purchasing the non‑judicial stamp for Rs. 58, Ghulam Hussain Petition‑Writer (P. W. 3) wrote the mortgage deed Exh. P. A. on behalf of Mst. Mhandan and Mst. Barkat Bibi who thumb‑marked it. Since no period had been stipulated in the deed, Ghulam Hussain P. W., inquired as to how long the land was to remain under mortgage. It appears that somehow or the other, Mst. Mhandan and Mst. Barkat Bibi became suspicious and refused to get the document Exh. P. A. formally registered.

4. According to the prosecution, Hasan Muhammad, Shukar Din and Sardar appellants got the document Exh. P. A. executed on the 13th of August 1957. According to the endorsement Exh. P. W. 6/E of the Sub‑Registrar, Mst. Fatima Bibi personated for Mst. Mhandan , and Mst. Nawab Bibi personated for Mst. Ba;kat Bibi and thumb‑marked Exh. P. A. Piran Ditta appellant, who is a co‑villager of Hasan Muhammad and others, and Muhammad Akbar (P. W. 4), resident of Bisrat, identified the executants of the document Exh. P. A.

5. On learning that Exh. P. A. had been registered, Mst. Mhadan P. W. submitted application Exh. P. B. to the Joint‑Registrar on the 17th of August 1959 alleging that Hasan Muhammad, Shukar Din and Sardar appellants had played a fraud on the Joint‑Registrar and got the document Exh. P. A. registered by false personation. The Joint‑Registrar recorded Mst. Mhandan's statement Exh. P. C. and then forwarded it to the police on the same day for the formal registration of a case. Sub‑Inspector Chan Pir Shah (P. W. 7) registered the formal first information report Exh. P. B/1 on the 3rd of September 1957 and investigated the case.

6. Mr. Ghulam Qadir, Sub‑Inspector, Finger Print Bureau, (P. W. 6) compared the thumb‑impressions of Mst. Nawab Bibi and Mst. Fatima Bibi on Exh. P. A. with their impressions obtained by the police in the presence of the Magistrate, and as a result of his comparison he opined that the thumb‑impressions on Exh. P. A. were those of Mst. Nawab Bibi and Mst. Fatima Bibi.

7. The appellants pleaded not guilty to the charge and denied the prosecution allegations against them. Hasan Muhammad and Shukar Din appellants stated that they were not present at the time of the registration of the mortgage deed. The appellants examined Muhammad Ali (D. W. 1), Lai Din (D. W. 2), Nawab Din (D. W. 3) and Muhammad Shafi (D. W. 4), in their defence. Muhammad Ali D. W. stated that Mst. Barkat Bibi and Mst. Mhandan had agreed to mortgage their share of the land in lieu of the decretal amount which had been paid by Hasan Muhammad, Shukar Din and Sardar appellants. Lai Din and Nawab Din D. Ws. deposed about the alleged alibi of Hasan Muhammad appellant. Muhammad Shafi D. W. made a similar statement to that of Muhammad Ali D. W. The learned trial Magistrate has rightly disbelieved this evidence.

8. The short question for determination is whether Mst. Nawab Bibi and Mst. Fatima Bibi personated Mst. Mhandan and Mst. Barkat Bibi. The evidence of Mr. Ghulam Qadir P. W. leaves no room for doubt that Mst. Nawab Bibi and Mst. Fatima Bibi appellants did thumb‑mark the mortgage deed Exh. P. A. Further, the evidence of Syed Said‑uz‑Zafar, Registration Moharrir (P. W. 9) and the evidence of Malik Muhammad Azim, Joint Registrar (P. W. 10) establishes that Mst. Nawab Bibi and Mst. Fatima Bibi appellants gave their names and identity as Mst. Barkat Bibi and Mst. Mhandan, respectively. The Registrar's endorsement Exh. P. W. 6/E corroborates the statement of the Moharrir and the Joint‑Registrar. This endorsement is admissible under section 60 of the Registration Act.

9. Muhammad Akbar (P. W. 4) deposed that he had gone to the District Courts, Sialkot, on the 15th of August 1957, where he met Hasan Muhammad, Shukar Din and Sardar appellants. Sardar approached and asked him to attest Exh. P. A. as the Lambardar of his (Sardar's) village was ill. Muhammad Akbar refused to attest Exh. P. A. on the ground that he did not know the women who had to execute the document. On being assured by Hasan Muhammad, Shukar Din and Sardar appellants that Mst. Nawab Bibi and Mst. Fatima Bibi appellants were the real executants, he agreed to attest the mortgage deed Exh. P. A. The evidence of this witness establishes the fact that Hasan Muhammad, Shukar Din and Sardar appellants were present in the compound of the District Courts and that all of them prevailed upon him to attest the document. Further, the evidence shows that they were also present in the office of the Joint‑Registrar at the time of the execution of the deed Exh. P. A. I have carefully considered the evidence of Muhammad Akbar P. W. and see no reason to disbelieve him. The acceptance of his statement leads one to the irresistible conclusion that :‑ (i) Hasan Muhammad, Shukar Din and Sardar appellants prevailed upon him to attest Exh. P. A. ; . (ii) they assured him that Mst. Nawab Bibi and Mst. Fatima Bibi were the real executants of Exh. P. A. ; and (iii) they were present in, the office of the Joint Registrar at the time of the execution f the document Exh. P. A. His evidence conclusively establishes the charge against Hasan Muhammad, Shukar Din and Sardar appellants.

10. So far as Piran Ditta appellant is concerned, he thumb -marked Exh. P. A. at the portion Exh. F/4. as an attesting witness. While making statement under section 342, Cr. P. C., Piran Ditta admitted having thumb‑marked Exh. P. A. but was unable to explain why he had wrongly identified Mst. Fatima Bibi and Mst. Nawab Bibi as Mst. Mhandan and Mst. Barkat Bibi, the real executants of the document Exh. P. A. The evidence on the record establishes that Piran Ditta appellant abetted the person ation of Mst. Nawab Bibi and Mst. Fatima Bibi.

11. Relying on section 83 of the Registration Act, the learned counsel for the appellants urged that the authority men tioned in that section had not commenced the prosecution of the appellants and, therefore, the trial was bad in law. In support of his contention he relied on Emperor v. Muhammad Mehdi and others (A I R 1934 All. 963 (F. B.)) and Nga Pan Gaing and others v. King‑Emperor (A I R 1927 Rang. 61) section 83 of the Registration Act reads :‑ "(1) A prosecution for only offence under this Act coming to the knowledge of a registering officer in his official capacity may be commenced by or with the permission of the Inspector‑General, the Registrar or the Sub‑Registrar in whose territories, district or sub‑district, as the case may be, the offence has been committed. (2) Offences punishable under this Act shall be triable by any Court or officer exercising powers not less than those of a Magistrate of the second class." The use of the word "may" by the Legislature is significant. There is a conflict of opinion as to whether the permission referred to in this section is, a condition precedent to the prosecution of a person for an offence mentioned in section 82 of the Registration Act.

12. It has been held by the Calcutta High Court in Gopi Nath v. Kuldip Singh and others (I L R 11 Cal. 566 (F.B.)), that the provisions of section 83 are not obligatory. In Palani Goundan (A I R 1921 Mad. 140), a Division Bench of the Madras High Court held that, section 83 of the Registration Act does not bar q prosecution by a private person for an offence under section

82. In Emperor v. Jesa Nana Didwagh and others (I L R 1937 Bom. 359), Beaumont, C. J. and Macklin, J. held that section 83 is not prohibitory either in terms or Intention. On the contrary it is an enabling section and provides that a prosecution for any offence which comes to the knowledge of the registering officer in his official capacity may be commenced by or with permission of specified registration officers. This being so, for prosecution for offence coming to the knowledge of the registering officer in his official capacity, sanction of registration officers under section 83 may or may not be obtained. Their Lordships followed the Calcutta and Madras views and dissented from the Allahabad and Rangoon views. In Ganga Dibya and another v. Emperor (A I R 1943 Pat. 227), the Patna High Court held :‑ "Permission under section 83 is not necessary for the institu tion of a prosecution by a private person for‑an offence under section 82." Their Lordships of the Patna High Court followed the Calcutta and the Madras views and dissented from the Allahabad view. In Onkar Shamu Narathe v. Emperor (A I R 1945 Nag. 220), Hemeon, J. considered section 83 and held‑ "Section 83 is not a prohibitory but an enabling section. The section does not inhibit a prosecution by a private person but enables a prosecution to be commenced by or with the permission of the authorities specified therein where an offence comes to the knowledge of a registering officer in his official capacity. The section has however no application to cases in which offences are committed under the Act but do not come to the knowledge of the registering officer." His Lordship followed the Bombay view and dissented from the Allahabad and Rangoon view.

13. Having attentively considered the view of their Lordships in the cases cited above, I respectfully agree with the principle laid down in Gopi Nath v. Kuldip Singh and others which has been consistently followed by the Bombay, Madras, Patna and Nagpur Courts.

14. The question of sentence in the case of Mst. Nawab Bibi and Mst. Fatima Bibi requires consideration. The pedigree table would show that Mst. Nawab Bibi is the sister of the male appellants and Mst. Fatima Bibi is the wife of Hasan Muhammad appellant. In view of their relationship, I cannot escape the feeling that the female appellants were acting under the influence of the male appellants to whom they are closely related. Main taining their conviction under section 82 of the Registration Act, I reduce their sentence to the term of imprisonment already under gone by them. In the case of Hasan Muhammad, Shukar Din, Sardar and Piran Ditta, I dismiss their appeal in toto and maintain their convictions and sentences.

15. Except for the modification made above, the appeal is dismissed. K. B. A. Appeal dismissed.