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Appeals Nos. 417 and 406 of 1964, decided on 5th June 1967.
S. 5(1) Muhammadan Law‑Marriage‑Can be registered only under Ordinance and not under any other law, custom or usage after promulgation of Ordinance.
read with East Pakistan Family Laws Rules, r. 7‑Nikah Registrar Not an appointee of Government‑Mere fact that his licence is issued by Union Council‑Does not clothe him with character of "public servant" under S. 21, Penal Code (XLV of 1860), or under Art. 97, Basic Democracies Order, (18 of 1959).
S. 467 read with S. 34 -Forgery‑Accused (five in number) joining hands to create and fabricate false documents and committing specific acts of forgery Individually independent of each other‑Offence under 5.467 brought home to all accused‑Case, not of constructive but actual liability of individual accused‑Section 34, held, need not be applied in circumstances‑Conviction of accused under S. 467 upheld.
S. 467 read with Ss. 34 do 109‑Forgery‑Accused not committing any specific act of forgery himself but actively aiding and abetting other accused to commit acts of forgery‑Held, guilty under S. 467/109 and not under S. 467/34.
Badrul Haider Chowdhury with Abul Khair Khan for Appellants in Appeal No. 417 of 1964.
D. L. Rahman for Appellant in Appeal No. 406 of 1964.
Md. Shehabullah for the State in both the appeals.
‑These two appeals have been heard together inasmuch as they arise out of the same case and the same judgment and order passed by Mr. A. R. Khan, Assistant Sessions Judge, Pabna. This judgment will dispose of both the appeals.
The sole appellant in' Appeal No. 406 of 1964 Md. Osman Gani has been convicted on two counts under section 467/34, P. P. C. and similarly appellants 1 and 2 Abdus Sattar and Anisur Rahman in Appeal No. 417 of 1964 have been convicted under the aforesaid section on two counts, while appellants 3 to 5, namely, Md. Nurul Islam, Yaqub Hussain and Mohsenuddin Sarkar alias Mohsen Ali have been convicted of the same offence on three counts. All the appellants have been sentenced to rigorous imprisonment for seven years on each count and the sentences have been directed to run concurrently.
The two appeals arise out of the following circumstances, P. W. 4 Md. Afzal Hussain is a rich and respectable businessman of Bhagura in the District of Pabna P. W. 1. Kanij Fatema Afroza Begum aged below 20 years at the time of the occurrence was a student of 3rd year B. Sc. (Honours) class in the Dacca University and was a resident of the Women's Hall Extension at Luxury House in Dhanmondi area. She was a maiden at the time of the incident and neither her father nor she herself thought of her marriage at that stage.
In the month of Ramzan of the year 1963 one registered letter addressed to Afroza Begum who was then enjoying holidays at her father's house at Bhangura was tendered to Md. Afzal Hussain, for delivery to the girl. In that letter the sender was described as Yaqub Hussain, Betuain, Bonwarinagar, Pabna. As Md. Afzal Hussain could not recognise the sender he scented some foul‑play and refused the letter. Thereafter, on the 1st or second of March 1963, P. W. 6 Md. Afsar Ali of village Betwain who was well‑known to Afzal Hussain enquired of him whether his daughter was married to appellant, Yaqub Hussain of Betwain. This surprised Afzal Hussain who gave a. flat denial. Afsar Ali then apprised him of the fact that appellant Yaqub Hussain was giving out that he had married Afroza Begum by a registered Nikanama. On 6‑3‑63 the said Afsar Ali actually handed over to Afzal Hussain a copy of a Nikanama purported to have been registered by appellant Osman Gani, It was contained in a registered cover with an acknowledgment receipt which reminded Afzal Hussain of the letter which was tendered to him by a postal peon and refused by him sometime back. Afzal Hussain looked into the Nikanama and found it to be a false and forged document. The Nikanama purported to have contained the signatures of Afroza Begum and Yaqub Hussain as the bride and the bride‑groom and of appellants Nurul Islam and Mohsenuddin Sarkar as the witnesses to the alleged marriage. A written information was sent by Mr. Afzal Hussain through his brother‑in‑law Md. Shamsul Hoque to the Officer‑in‑charge, Faridpur P. S. on 9‑3‑63 and the police thereupon took up investigation of the case. In course of the investigation it transpired that the signature of Afroza Begum in the Nikanama was forged by appellant Abdus Sattar and accused Anisur Rahman procured necessary Nikanama forms and handed over the same to Abdus Sattar for the purpose. The impugned Nikanamas, Exhs. 7, 8 and 9 were forwarded to the handwriting expert Ghulam Moula of the C. I. D. Dacca, along with the specimen signatures of the appellants other than Anisur Rahman. After obtaining the opinion of the handwriting expert and completing the investigation Md. Salabuddin, Officer‑in charge, Faridpur P. S. submitted charge‑sheet against the appellants, Md. G. M. Choudhury, Magistrate, Ist Class, Pabna, held preliminary inquiry in the case and committed the appellants to the Court of Sessions for trial.
At the trial all the appellants were charged under section 467/34, P. P. C. on three counts each.
All the appellants pleaded not guilty‑Appellants Yakub Hussain, Mohsenuddin and Nutul Islam took the plea that the documents in question were not forged but genuine bearing the genuine and true signatures of the girl Afroza Begum who executed the Nikanama with her knowledge and consent but subsequently under pressure of her father she denied the Nikanama as well as the marriage. Appellants Abdus, Sattar and Anisur Rahman took the defence that there was a rumour in the village of the girl's marriage with Yakub Hussain and being ashamed by such rumour Afzal Hussain adopted the course of forging the documents in collusion with others with a view to "kill the rumour" and fabricated the case by falsely implicating these appellants out of grudge. The specific defence of Md. Osman Gani, the Nikah Registrar, was that he was not involved in or connected with the forgery in the Nikanama nor had he knowledge of any such forgery, but on the representation of some unknown persons he acted on their words and registered the marriage without any knowledge of forgery or foul‑play. He also raised a legal contention that he was a public servant and as such his case was triable exclusively by a Special Judge after obtaining sanction from the appropriate Government and that the trial held by the learned Assistant Sessions Judge was without jurisdiction and as such illegal.
The case was tried with the assistance of four assessors who were unanimous in their opinion that appellants Abdus Sattar, Yaqub Hussain, Nurul Islam, Mohsenuddin and Anisur Rahman were guilty under section 467/34, P. P. C. on all the three counts. Two of the assessors were of the opinion that Md. Osman Gani was also guilty on all the three count sunder section 467/34, P. P. C., while in the opinion of the other two assessors he was not guilty.
We have been taken through the judgment and the material portions of the evidence by the learned Advocates for the appellants. The prosecution examined as many as 26 witnesses and exhibited a number of documents in support of its case. Defence did not examine any witness.
It will be convenient for us to dispose of, at the outset, the only legal contention raised on behalf of the appellants, namely that appellant Osman Gani is a public servant and that being so, the case was not triable in the ordinary Court but could only be tried by a special Judge under the provisions of Act XL of 1958 after obtaining sanction for his prosecution from the appropriate Government. The whole contention turns on the question whether Md. Osman Gani is a public servant or not. If he is held to be a public servant then certainly the trial was without jurisdiction and the conviction and sentences are not sustainable. It has been contended on behalf of the appellants that Md. Osman Gani was appointed a Marriage Registrar under the Bengal Muhammadan Marriages and Divorces Registration Act, 1876 (Bengal Act I of 1876) by an order dated 22nd February 1946 and that although be was granted licences by four Union Councils under the provisions of the Muslim Family Laws Ordinance, 1961, (hereinafter referred to as the Ordinance) he continued to be a Marriage Registrar as appointed under the Bengal Act I of 1876. It has further been contended that by virtue of the authority conferred by section 2 of the Quazis Act, 1880 (Act XII of 1880) the Governor (of the then United Bengal) by another order of the same date appointed him temporarily to be the Quazi within the police station Kamarkhand in the District of Pabna for the celebration of Marriages and the performance of other rites and ceremonies when applications were placed before him for the purpose. The Marriage Registrar appointed under Act I of 1876 was a public servant.
The Ordinance, was promulgated on 15‑7‑61 and under section 1(2) "it extends to the whole of Pakistan and applies to ill Muslim citizens of Pakistan wherever they may be". Section 3 subsection (1) of the Ordinance provided as follows:‑
"The provisions of this Ordinance shall have effect not withstanding any law, custom or usage and the registration of Muslim Marriage shall take place only in accordance with those provisions.
Subsection (1) of section 5 lays down that every marriage solemnized under Muslim Law shall be registered in accordance with the provisions of this Ordinance. Subsection (2) provides for grant of licences by the Union Councils to one or more persons to be called Nikah Registrar. Subsection (3) lays down that every marriage not solemnized by the Nikah Registrar shall, for the purpose of registration under the Ordinance, be reported to him by the person who has solemnized such marriage.
Subsection (4) provides for punishment for contravention of the provisions of subsection (3).
Subsection (5) provides for Nikahnama forms and the Registers to be maintained by Nikah Registrars, the records whereof are to be preserved by the Union Council.
The provisions for grant of licences to act as Nikah Registrar are contained in rule 7 of the East Pakistan Family Laws Rules (hereinafter referred to as the Rules) framed under section 11 of the Ordinance. The Rules have the force of law as specifically provided in the aforesaid section. The proviso to sub‑rule (2) of rule 7 is important for our purpose. It is couched in the following language:
"Provided that, in the case of a person who at the time of the commencement of Ordinance was already exercising the powers of Mohammadan Registrar under the Bengal Mohammadan 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".
It is clear from the aforesaid provisions of the Ordinance and the Rules that from the date of promulgation of the Ordinance a Muslim Marriage cat be registered only under the Ordinance and not under any other law, custom or usage and that the Registrar of Muslim Marriages is designated as Nikah Registrar and in his capacity as such he registers Muslim Marriages deriving his authority for registration of the marriages under the Ordinance from licences granted to him by the Union Councils concerned. The proviso to sub‑rule (2) of rule 7 quoted above leaves hardly any room for doubt that even the Registrar of Mohammadan Marriages appointed under the Bengal Mohammadan Marriages and Divorces Registration Act, 1876, is to obtain licence from the Union Council for Registration of the Muslim Marriages by applying for the same. He is statutorily debarred from registering Muslim Marriages unless authorised by licence issued by the Union Council under rule 7 of the rules. The Ordinance does not provide that the Nikah Registrar to whom licence is granted for registration of Muslim Marriages by the Union Council is a public servant.
A public servant has been defined in section 21 of the Pakistan Penal Code. It has been strenuously argued by the learned Advocates for the appellants that the Nikah Registrar comes within the definition of "public servant" under the last portion of the 9th clause of section 21 of the Code. Section 21, clause 9, provides, inter alia, that the words "public servant" denote "every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty". The primary requirement under this cause, as far as it is relevant for our purpose, is that he must be an officer in the service or pay of the Government or he must be remunerated by fees or commission for performance of public duties. It is no doubt true that under rule 9 of the rules provision has been made for payment of fees by the bridegroom or his representative to the Nikah Registrar, 80% of which is to be retained by the Nikah Registrar and the remaining 20% is to be paid to the Union Council. It is to be borne in mind that a Nikah Registrar is not an appointee of the Government or even of the Union Council and he is not remunerated by fees or commission by the Government. It may be noted here that the context of the definition of a public servant in the last portion of the 9th clause of section 21 as quoted above indicates that he should be either in the service or pay of the Government or remunerated by fees or commission by the Government for the performance of his public duties. The mere fact that the Nikah Registrar registers Muslim Marriages on the strength of licence issued to him by the Union Council does not clothe him with the character of a public servant.
It was next urged on behalf of the appellants that the Nikah Registrar is a public servant within the meaning of Article 97 of the Basic Democracies Order, 1959 which provides that 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 has been submitted that the Nikah Registrar is empowered to act on behalf of the Local Council, namely the Union Council and for that reason he should be deemed to be a public servant. Our attention has been drawn to item 19 of the fourth schedule of the Basic Democracies Order which provides that registration of "Marriages" is a compulsory function of the District Council, and it has been argued that registration of Muslim Marriages being a compulsory function of the District Council must be held to have been delegated to the Nikah Registrar by the Union Council and thus the Nikah Registrar shall be deemed to be a public servant under Article 97 of the Basic Democracies Order.
We are not impressed by this argument either. The function of registering a Muslim Marriage has been taken out of the jurisdiction of a local council as provided in the Basic Democracies Order, 1959 and has been made an exclusive function of a Nikah Registrar on the basis of a licence issued in accordance with the provisions of the Ordinance and the Rules thereunder. It is important to note that licences are granted not under the provisions of the Basic Democracies Order but in accordance with the provisions of the Ordinance. Thus the Nikah Registrar is not empowered to act on behalf of the District Council or the Union Council but acts on the basis of licence issued under the Ordinance. The provisions of Bengal Act I of 1876 and the Basic Democracies Order, 1959, have been superseded by the Ordinance in so far as their provisions are inconsistent with those of the Ordinance. This is manifest from section 3(1) of the Ordinance read with the proviso to sub‑rule (2) of the rule 7 of the rules. In this connection reference may be made to Maxwell's Interpretation of Statutes at page 171 of the 9th Edn. The following portion of it may be profitably quoted:
"Again, if the co‑existence of two sets of provisions would be destructive of the object for which the later was passed, the earlier would be repealed by the later. When a local act empowered one body to name the streets and to number the houses in a town and another local act gave the same power to another body, the earlier would be superseded by the later Act, for to leave the power with both would be to defeat the object of the Legislature". This established rule of law is a complete answer to the contention of the learned Advocates for the appellants. We have, therefore, no hesitation to hold that a Nikah Registrar holding a licence for registration of Muslim Marriages under the Ordinance is not a public servant under section 21 of the Pakistan Penal Code nor shall he be deemed to be a public servant under Article 97 of the Basic Democracies Order, 1959. It follows from this that the trial by the learned Assistant Sessions Judge was not without jurisdiction and illegal.
Coming to the merits of the case, it is not challenged that P. W. 4 Md. Afzal Hussain is a rich and respectable businessman and that his daughter P. W. 1 Kanij Fatima Afroza Begum was a maiden reading in the third year (honours) class of the Dacca University. It is also not the contention of any of the appellants that there was actually any marriage between Afroza Begum and appellant Yaqub Hussain and that she actually put her signatures in the Nikahnamas Exhs. 7, 8 and 9. We can thus at once come to the conclusion that there was no marriage between Afroza Begum and Yaqub Hussain and that the signature reading 'Afroza Begum' in Exhs. 7, 8 and 9 are not of Afroza Begum but forged.
P. W. 2 Hosen Ali who is a tea‑stall keeper of Bhangura Bazar has deposed that after five days of Ramzan in the year 1963 after Iftar time appellants Anis, Sattar and two others sat in his tea‑stall. Anis then abruptly left and returned soon after with two Khatas (Exhs. 1 and 2) and seven or eight forms including Exhs. 3 and 3(b). He placed them on the table where lantern was burning. Ania asked appellant Sattar to write the signature of Afroza. He first wrote the signature of Afroza on the book Exh. 1 and then on the similar book Exh. 2 and then he wrote the signatures on Exh. I and Exhs. 1 to 1/10 in presence of the witness. Thereafter fie wrote the forged signatures on Exh. 2‑Exhs. 1(11) to 1(14) in his presence. Thereafter he wrote the other signatures of Afroza, Exhs. 1/15 to 1(18). Then they left the tea‑stall. At the time of his departure Anis took away those Khatas and the forms. The credibility of this witness could not be shaken by cross‑examination. It may be pointed out here that this witness was cross‑examined only on behalf of appellants Sattar and Anis and one Anwar Hussain, but he was not cross‑examined by or on behalf of the remaining appellants. P. W. 1 Afroza Begum has denied that she was ever‑ married to Yaqub Hussain and the signatures purporting to have been put by her on Exhs. 7, 8 and 9. She has further stated in her deposition that Mr. Yunus, father of Anis was a friend of her father and Ants sometimes visited their .house and thus she knew him but she did not know the other accused. She was not at all cross‑examined by Anis or Sattar. P. W. 7 Abdul Bari has testified that on 8‑2‑63 at 8 or 8‑30 p.m. he saw appellants Yakub Hussain, Anis, Sattar, Mohsin, Nurul Islam and two others in the platform of the Railway Station. They purchased cigarettes and Biris from his shop. He asked about their destination in reply to which Nurul Islam stated that they were going to Jamtali by the 9 O'clock train in that night which they actually did. It has been stated by this witness that Afroza was not with them. This witness was cross‑examined on behalf of all the appellants except Osman Gani but nothing could be elicited from him to affect his veracity. He emphatically denied the suggestion that he was deposing falsely at the instance of Md. Afzal Hussain.
It will be useful to refer to the statement under section 342 of the Criminal Procedure Code of appellant Osman Gani which will facilitate proper appreciation of the evidence in the case. He stated, inter alia:
"The bride's and the bridegroom's parties, that is one bride and the bride's ukil on behalf of the bride including two witnesses to the appointment of ukil appeared and showed me a loose form with bride's signature thereon and the bride's ukil Motahr Hussain. told me that the bride had appointed me ukil and gave her consent in presence of these witnesses and asked me to solemnise the marriage and get it registered as the evidence of the fact that the bride was agreeable to this marriage he showed me a filled up loose form with bride's signature thereon. (Refers to Exh. 8). The signature in my name thereon is not mine. As the bride was not present and she did (not) sign in my presence I did not sign the same (i.e., Exh. 8) thereafter in good faith upon their words under the ukalati of Motaharul Islam I solemnised the marriage. I then filled in the Nikanama form by my hand signed it I gave to the bridegroom the copy meant for him (refers to Exh. 9). I signed the same by my hand. It then did not contain any signature of the bride. That has been added later on. The bride's ukil having demanded the copy for the bride, I said that I would not give it as the bride was not present and as there was no letter of authority from her. Then the bride's ukil took out a loose form from his pocket and asked me to matte a copy thereon. I got it filled in by the clerk and I handed it over to him after signing and sealing it. That also did not contain any signature of Afroza.
In answer to a question by the Court, he further stated:‑
"When they went to me none of the bridegroom, bride, ukil or witnesses was known to me. Now I having stayed with them as an accused have known them. Now I have known that Yaqub Hussain was the bridegroom, Motaharul Islam was the ukil and Mohsinuddin and Nurul Islam were the witnesses, I cannot say whether it we‑e they who had gone to me."
This gives a complete picture of what Osman Gani did and how the papers were produced before him and under what circum stances he registered the marriage.
We have already referred to the evidence of P. Ws. 2 and 7. The evidence of P. W. 2 is that appellant Sattar wrote the signatures reading Afroza Begum in a number of papers including Exhs. 7, 8 and 9, the Nikahnama.
P. W. 25 Md. Ghulam Moula, the handwriting expert attached to C. I. D. Government of East Pakistan, Dacca, examined the questioned writings and signatures. The signatures reading Afroza Begum in Exhs. 7, 8 and 9 were marked 'C' series by him but he did not give any opinion with regard to authorship of these signatures at the first instance. He was later re‑called by the prosecution when he stated that he compared the specimen writings Exh. F (6) of Abdus Sattar with the signatures reading 'Afroza Begum' in the Nikahnamas referred to above and that in his opinion they agree with one another in movement, speed, reathom, allignment, execution of characters with their relative combination having no fundamental divergences. He also stated that they agreed with the individual characters of the writings and upon those data he was of the opinion that all the signatures in F(6) series and 'C' series are the product of the same hand. This amounts to saying that in his opinion the questioned signatures of Afroza Begum in Exhs. 7, 8 and 9 were of the appellant Abdus Sattar. In view of the evidence of P. Ws. 2 and 7 supported by the opinion of the handwriting expert, we are left in no doubt that appellant Abdus Sattar forged the signatures reading "Afroza Begum" on Exhs. 7, 8 and 9.
The signatures reading 'Md. Nurul Islam and Md. Mohsenuddin Sarkar' as witnesses in the questioned Nikahnamas were also examined by the aforesaid handwriting expert who compared them with their specimen signatures and came to the conclusion that the authors of these signatures are the appellants Nurul Islam and Mohsenuddin Sarkar themselves. This handwriting expert also compared the writings on Exhs. 7, 8 and 9 with the specimen writings E(2) series of appellant Yaqub Hussain and gave his definite opinion that these writings are the product of one and the same hand. He also opined that the signatures in the Nikah Register Forms Exhs. 7, 8 and 9 in the column of signature of bridegroom reading 'Md. Yaqub Hussain' tally with his specimen signatures Exh. E(2) series. In his opinion, the signatures reading 'Md. Yaqub Hussain' on Exhs. 7, 8 and 9 and the specimen signatures, Exh. E(2) series are product of one and the same hand, or in other words, these are the signatures of Md. Yaqub Hussain.
Finally, the handwriting expert is of the opinion that the signatures reading 'Md. Osman Gani' on Exhs. 7, 8 and 9 marked by him as C.'(5) series tally with the specimen signatures in Bengali of appellant Md. Osman Gani, Exh. E(6) series. It may be re‑iterated that appellant Md. Osman Gani has not challenged those signatures except the one in Exh. 8. The trial Court also did not accept the evidence that the signature reading 'Osman Gani' on Exh. 8 is actually the signature of the appellant Osman Gani. That, however, does not make any difference, having regard to the fact that at least two of the forged Nikah forms bear his signatures. The evidence of the handwriting expert was not challenged by appellants Yaqub, Mohsenuddin and Nurul Islam by way of cross‑examination.
There is no gain‑saying the fact that Exhs. 7, 8 and 9 are false and fabricated documents showing the solemnisation of a marriage between Afroza Begum and appellant Yaqub Hussain, which never took place. Such false documents were brought into existence for the purpose of creating evidence of solemnisation arid registration of a marriage between Afroza Begum and appellant Yaqub Hussain. The plea of bona fide of appellant Osman Gani as taken by him in his statement under section 342 of the Code of Criminal Procedure has no legs to stand upon. It has been admitted by him that none of the persons who appeared before him posing as ukil and witnesses of the marriage were known to him. In the first sentence of his statement quoted above, this appellant said that one bride and the bride's ukil on behalf of the bride including two witnesses to the appointment of a ukil appeared before him. But subsequently he made it clear that neither the bride nor any relation of hers appeared before him and those who actually came were strangers. This Nikah Registrar did not take the most ordinary precaution of being satisfied that the marriage was actually solemnised and that the bride was represented by a close relation of hers, He should have demanded the presence of the bride for solemnisation of the marriage particularly in view of the fact that the bride's alleged signatures were found in the Nikah forms showing that she is an educated girl. Besides, this registration of the fake marriage took place at midnight, i.e. at a most unearthly hour of the night. The very terms of the alleged marriage are also clearly indicative of the fact that there was no marriage of Afroza Begum with Yaqub Hussain. According to the Nikah forms the dower was fixed at Rs. 8,000 out of which Rs. 7,925 was shown as already paid by ornaments leaving a balance of Rs. 75 only. Furthermore, it was provided in the alleged contract of marriage that Mr. Afzal Hussain, the father of the bride would bear the bridegroom's educational expenses up to the end of M. B. B. S. course. Another significant fact is that we have it in evidence that the alleged bridegroom Yaqub Hussain is a non‑Matriculate having got plucked as many as five times in the Matriculation examination whereas Afroza Begum was Honours student in the 3rd year B. Se. Class of the Dacca University. These circumstances clearly demonstrate the false character of the so‑called marriage and the fabricated nature of the Nikahnamas Exhs. 7, 8 and 9 and yet Md. Osman Gani with his eyes wine open signed the Nikah forms not only as Registrar but also as solemniser of the marriage. On his own admission he did not solemnise the alleged marriage. These are hard facts which completely negative his contention that he acted bona fide in registering the marriage. This Nikah Registrar had an experience of about twenty years and yet he would ask the Court to believe that his act was bona fide. The dishonesty on the part of this Nikah Registrar, Md. Osman Gani is patent from the circumstances detailed above.
On the basis of the evidence and circumstances discussed, we are convinced that appellants Yaqub Hussain, Abdus Sattar, Nurul Islam, Mohsenuddin Sarkar and Md. Osman Gani joined hands to create and fabricate the false documents Exhs. 7, 8 and 9 and committed specific acts of forgery individually. Abdus Sattar forged the signatures of Afroza Begum and the four others put their signatures on the false Nikahnamas and thus every one of them committed distinct acts of forgery independent of each other. The offence under section 467 of the Pakistan Penal Code has been brought home to these appellants and there was no need for applying section 34, P. P. C. in this case. It is not a case of constructive liability of the appellants but an instance of actual liability of the individual appellants referred to above, We, therefore, uphold the conviction of these five appellants under section 467 of the Pakistan Penal Code on different counts as found by the learned' Assistant Sessions Judge.
As regards Anisur Rahman he was at the root of this foul game. Taking advantage of the fact that he was previously known to the girl as his father and the girl's father were friends, he played the most important role in the whole nefarious affair. He procured the questioned Nikah forms as well as two registers from the railway station whereon Abdus Sattar practised the signature of the girl and it was at his request that Abdus Sattar forged the signatures of Afroza Begum. He also accompanied the other appellants to the office of the Nikah Registrar as deposed to by P. W. 7. There is no scope for doubt that it was through his instrumentality that the forged Nikahnamas were brought into existence. He actively aided and abetted the other appellants to commit acts of forgery and accordingly we find him guilty under section 467/109, P. P. C. instead of under section 467/34, P. P. C., inasmuch as there is no specific act of forgery to his credit but the documents in question were actually forged in consequence of his abetment.
The sentence of rigorous imprisonment for seven years appears to us to be rather severe having regard to the fact that only false Nikahnamas were created and forged but the girl was not actually claimed as the legally married wife of Yaqub Hussain on the basis of such forged documents. Of course we cannot also ignore the outstanding fact that a highly educated girl of a respectable family was designed to nave been claimed as the wife of an undesirable groom, an ignorable person and the facts of the appellants affected the honour and prestige of the family of Md. Afzal Hussain. Taking all these factors into consideration, we think that a sentence of rigorous imprisonment for three years for each of the appellants will be appropriate in this case.
In the result, both the appeals are dismissed subject to the following modifications: The conviction of Anisur Rahman under section 467/34, P. P. C. is altered to one under section 467/109, P. P. C. and the conviction of the rest of the appellants under section 467/34, P. P. C., is altered to one under section 467, P. P. C. and the sentence of each of these appellants is reduced to rigorous imprisonment for three years on each count, which shall run concurrently. Appellants Abdus Sattar, Anisur Rahman and Osman Gani shall now surrender to their respective bail bonds to serve out the remainder of the sentences of imprisonment now imposed upon them.
.‑I agree.
Appeals partly accepted.
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