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Criminal Appeal No. 742 of 1958, decided on 9th February 1959.
(a) Registration Act (XVI of 1908), S. 82 (c) & 82 (a) High Court competent to alter conviction from S. 82 (c) to S. 82 (a).
(b) Registration Act (XVI of 1908), S. 82 (c)‑Person making no statement regarding any matter in deed but only placing money on table before Registrar for payment to vendor‑Not liable under S. 82 (c).
(c) Registration Act (XVI of 1908), S. 83‑Provision enabling‑Does not forbid prosecution by private person for offences committed under the Act‑Penal Code (XLV of 1860), S. 195 (2).
If section 83 of the Registration Act is read along with subsection (2) of section 195 of the Penal Code, it becomes evident that section 83 of the Registration Act is only a permissive and enabling provision and not prohibitory. Besides the person injured by the offences under the Registration Act, the Inspector‑General, the Registrar and Sub‑Registrar under the Registration Act have also been empowered to lodge prose cution. Private individuals; if a complaint arises to them, are not under any prohibition to institute criminal proceedings against offenders under the Act and previous sanction of the Registra tion authorities mentioned in section 83 of the Registration Act is not necessary.
A I R 1917 All. 400 ; A I R 1934 All. 963 and A I R 1927 Rang. 61 not fol.
169 I C 41 (Bom.) ; 207 I C 552 (Pat.); A I R 1945 Rang. 200 and I L R 40 Mad. 880 fol.
A. H. Najafi for Appellant.
S. M. Latijfor Advocate‑General for Respondent.
Five appeals have been preferred in this Court against the judgment of Mr. Lal Khan, Magistrate 1st Class with section 30 Powers, at Mianwali, dated the 30th August 1958, by which he has convicted the five appellants of an offence under section 467, P. P. C. and sentenced them to four years' rigorous imprisonment. He has also convicted them under section 82 (c) of the Registration Act and sentenced them to three years' rigorous imprisonment on that count. The two sentences except in the case of Musa are to run concurrently. There is also a revision application by Gul Khan complainant in which enhancement of the sentence has been prayed for. This judgment will deal with the five appeals and the revision application.
2. The facts out of which these convictions arose are that Shah Jahan alias Sajjan, his brother Gul Khan and their cousin Gul Jahan were joint owners of occupancy rights in village Dhalla Azmat Khan Wala in the Isakhel Tehsil of Mianwali District. The area in their ownership was 23 Kanals and 10 Marlas.
Though they owned property in Dhalla Azmat Khan Wala, they resided in Sadiqabad Tehsil of Bahawalpur.
3. Three of the appellants, namely, Muhammad Bashir, Haqnawaz and Ghulam Murtaza, showing themselves as owners, executed a sale deed in respect of this area of 23 Kanals and 10 Marlas in favour of one Muhammad Musa, who is a resident of Wandha Muhammad Mehaya, which is at a distance of a mile or two from Dhalla Azmat Khan Wala. The sale was effected for a price of Rs. 640 and the sale deed was written by Ahmad Khan, Deed‑Writer. In that sale deed, Muhammad Bashir falsely personated as Gul Khan Haqnawaz as Shah Jahan and Ghulam Murtaza as Gul Jahan. Under their assumed names, they placed their thumb‑impressions upon it. Muhammad Bashir also signed it as Gul Khan. Amir Khan and Wazir Khan appellants attested this deed as witnesses.
4. On 29th January 1955, this sale deed was presented to the Sub‑Registrar for registration. Before the Sub‑Registrar, Muhammad Bashir, Haqnawaz and Ghulam Murtaza appeared as executants of this deed, Muhammad Bashir again falsely personating as Gul Khan, Haqnawaz as Shah Jahan and Ghulam Murtaza as Gul Jahan, and admitted the execution of the sale deed in those assumed names. Amir Khan appeared as an attesting witness. As none of these persons was known to the Sub‑Registrar, one Mehr Khan, who was known to him, was brought in as an attesting witness and he stated before the Sub‑Registrar that he knew the executants, Amir Khan, the attesting witness, and Muhammad Musa, the vendee, and it was on his identification and assurance that the Sub -Registrar registered the sale. A sum of Rs. 400 was paid to the alleged vendors in the presence of the Sub‑Registrar. The balance of Rs. 246 was perhaps admitted to have been received sometime before the registration. Wazir Khan, who was one of the marginal witnesses to the sale deed, did not appear before the Sub‑Registrar at the time of Registration. The Thumb‑impressions of Haqnawaz and Ghulam Murtaza and of the witnesses Amir Khan and Mehr Khan were again obtained on the sale deed in the presence of the Sub‑Registrar. Muhammad Bashir at this time affixed his signature as Gul Khan and his thumb‑impression was not taken. Muhammad Musa, in whose favour the deed was executed, also appeared before the Sub‑Registrar and his thumb‑impression was also obtained on the deed.
5. On 11th April 1955, a mutation in respect of this transaction was attested on the authority of the registration slip issued from the office of the Sub‑Registrar. It then became known to the people that by false representations and persona tion sale in respect of this land had been effected by three persons who were not the owners of the property. Sarfraz Khan (P. W. 8), agent of the real owners, Sajjan, Gul Khan and Gul Jahan, made an application to the Deputy Commissioner in which sale was challenged and cancellation of the mutation was requested. After protracted inquiry into this matter, a case was registered with the police in respect of this offence on 16th June 1956.
6. The prosecution case has been made to rest on the evidence of Ahmad Khan, (P. W. 2), who wrote the sale deed on 28th January 1955, the Sub‑Registrar who registered the sale, and the thumb‑impression expert who identified the thumb -impressions of the executants and witnesses of the deed. Ahmad Khan stated that he did not know any of the three pseudo vendors Muhammad Bashir, Haqnawaz, and Ghulam Murtaza who personated as Gul Khan, Shah Jahan and Gul Jahan. He also did not know the real owners of this land, Gul Jahan, Shah Jahan and Gul Khan. He only knew Amir Khan, one of the attesting witnesses, and it was on his identification and assurance that he wrote the deed purporting to have been executed by Gul Khan, Shah Jahan and Gul Jahan.
7. The Sub‑Registrar, Muhammad Munir Khan (P. W. 12) appeared and stated that the feigned vendors who executed the deed and the witness Amir Khan and Muhammad Musa vendee appeared before him, but he did not know any of them at all. He knew Mehr Khan only and it was on his identification and assurance that he registered the deed. According to the Sub‑Registrar's evidence, Mehr Khan assured him that he knew the three executants and Muhammad Musa, the vendee, and also Amir Khan, the attesting witness. He also assured him that the executants were the persons who were present before him. There is an endorsement to this effect in the hand writing of the Sub‑Registrar on the back of the sale deed.
8. One Ataullah, a Police Sub‑Inspector (P. W. 1), appeared and stated that he had been working as finger‑impressions expert in the Finger Print Bureau since 1940. He took thumb- impressions of Muhammad Bashir, Haqnawaz, Ghulam Murtaza, Muhammad Musa, Amir Khan, Wazir Khan and Mehr Khan and compared them with their corresponding thumb‑impressions on the sale deed which were affixed at the time of its execution. From this comparison he found that the thumb‑impressions on the sale deed below the name of Gul Khan was that of Muhammad Bashir, below the name of Shah Jahan was that of Haqnawaz, and below the name of Gul Jahan was that of Ghulam Murtaza. It was clearly proved that the thumb‑impressions of these three persons taken iu Court were identical with the thumb-impressions affixed by them on the sale deed as Gul Khan, Shah Jahan and Gul Jahan.
9. With regard to the witnesses, he said that the thumb-impressions of Wazir Khan and Amir Khan on the sale deed were identical with their thumb‑impressions taken in Court. There was one thumb‑impression of Ghulam Murtaza on the register of the deed‑writer. He also compared that with Ghulam Murtaza's thumb‑impression taken in Court and found the two identical.
10. From the expert's evidence it was established that Muhammad Bashir placed his thumb impression on the sale deed showing himself as Gul Khan, Haqnawaz placed his thumb impression on the sale deed showing himself as Shah Jahan and Ghulam Murtaza placed his thumb impression on the deed showing himself as Gul Jahan. From that evidence it was also established that Wazir Khan and Mehr Khan placed their thumb impressions on the deed as witnesses. By this evidence it was sought to connect the three accused, Muhammad Bashir, Haqnawaz and Ghularn Murtaza, as executants of this deed by misrepresenting themselves as Gul Khan, Shah Jahan and Gul Jahan, respectively. It was also established that Amir Khan and Wazir Khan attested the sale deed as witnesses and Mehr Khan as the person who identified the executants and the attesting witness Amir Khan, before the Sub‑Registrar.
11. When the accused were put to their statements, Muhammad Bashir, Haqnawaz and Ghulam Murtaza denied the execution of this deed. They further denied their appearance before the Sub‑Registrar. With respect to his thumb impression on the sale deed, Muhammad Bashir said that the thumb impres sion shown to have been his was in fact not taken at the time of the execution of the deed but was forcibly placed upon the deed by the police when this case was being investigated. Haqnawaz said that he was not aware whether he had ever affixed his thumb impression on the deed or not Ghulam Murtaza denied the affixation of his thumb impression. All the three accused denied their appearance before the Sub‑Registrar.
12. As regards the witnesses, both Amir Khan and Wazir Khan admitted their thumb impressions on the sale deed but Wazir Khan said that he did not know the false vendors and identified them at the bidding of one Ahmad Khan Darogha (P. W. 4). Mehr Khan admitted that he was present at the time of registration and affixed his thumb impressions on the deed before the Sub‑Registrar, but said that he only identified Amir Khan and did not identify the three pseudo‑vendors with whom he had no previous acquaintance at all.
13. Muhammad Musa admitted that he was present at the time of the execution of the deed and again when it was registered and on the later occasion affixed his thumb impression on it, but he said that he was of the honest belief that the three false vendors were the real owners of this land. He said that in fact he himself had been a victim of their deceit. He produced two defence witnesses who said that he had mortgaged his land for Rs. 750 a little before this incident. One Faiz Muhammad appeared as D. W. 3, and stated that in his presence Amir Khan was called by Ahmad Khan Darogha (P. W. 4) for the purpose of doing some verification in the Tehsil. The perusal of the defence evidence will show that it does no service to any of the accused at all.
14. In so far as the case of Muhammad Bashir, Haqnawaz and Ghulam Murtaza goes, they have been proved to be the persons who executed this deed and placed their thumb impres sions on it on 28th January 1955. Their thumb impressions have been identified and through those thumb impressions they can be connected with the execution of the deed by which land was sold by them which did not belong to them. It was the property of Gul Khan, Shah Jahan and Gul Jahan who appeared as witnesses and stated that they were the owners of this land and they had given no authority to any of those three accused to effect any sale on their behalf. In fact, they said that they did not know them at all. As the thumb‑impressions of all the three of them appear on the sale deed and those have been identified to be theirs, they are undoubtedly the persons who executed this deed under the names of the real owners. In their case, the offence of making a false document by personation under section 467, P. P. C. is amply proved.
15. Muhammad Bashir's contention was that he is shown to have signed the deed and his thumb impression was also obtained and this is unusual that a person should both sign and place his thumb impression. His defence is that his thumb impression was obtained after the execution of the deed, during the investigation of this case. This plea cannot be accepted as true. Ahmad Khan (P. W. 3), the scribe of this deed, appeared as a witness and stated that Muhammad Bashir both signed and thumb marked the deed. In certain cases, he said thumb impres sions are also obtained from literate persons who sign, and this is specially done when the executant is not known to the scribe. There is no evidence on record to suggest that Muhammad Bashir's thumb impression was obtained under the circumstances alleged by him. In the absence of any, evidence in support of his con tention and in the face of the evidence of Ahmad Khan who said that his thumb impression was obtained at the time of the writing of the deed, his plea that it was taken afterwards is not capable of acceptance.
16. With regard to Wazir Khan, his thumb impression on the sale deed has been proved by the evidence of the expert. He also admitted it in his statement in Court. Since he was a witness of the deed and identified Muhammad Bashir, Haqnawaz and Ghulam Murtaza as Gul Khan, Shah Jahan and Gul Jahan, he took part in the execution of a false deed and his guilt under section 467, P. P. C. is also clear. In so far as Muhammad Bashir, Haqnawaz, Ghulam Murtaza and Wazir Khan are con cerned, their guilt under section 467, P. P. C. rests on strong mid foundation and is maintained.
17. The three accused, Muhammad Bashir, Haqnawaz and Ghulam Murtaza have also been convicted under section 82 of the Registration Act in that they appeared before the Sub -Registrar at the time of the registration of the deed and made a false statement that they were the owners of the land and had the right to sell it. Before him Muhammad Bashir stated that he was Gut Khan, Haqnawaz stated that he was Shah Jahan and Ghulam Murtaza said that he was Gut Jahan. By these false, represent ations and personations they induced the Sub‑Registrar to register the sale deed. Their conduct constitutes an offence within the language of section 82 (c) of the Registration Act. They are guilty of an offence under section 82 (c) of the Registration Act as well.
18. As regards Mehr Khan, he took no part in the execution of the document. But he appeared before the Sub‑Registrar to identify Muhammad Bashir, Haqnawaz and Ghulam Murtaza as Gul Khan, Shah Jahan and Gut Jahan and in doing so made a false statement before him. It was on his assurance that the deed was registered. His conduct falls within the ambit of section 82 (a) of the Registration Act and he is guilty of an offence on that count.
19. The learned counsel on his behalf contended that he appeared to identify Amir Khan only, but that defence has been belied by the evidence of the Sub‑Registrar. The Sub‑Registrar stated in very clear terms that Mehr Khan identified the three executants and also Amir Khan witness. This is also supported by the Sub‑Registrar's endorsement on the deed.
20. Mehr Khan was convicted of an offence under section 82 (c) of the Registration Act although his conduct falls within part (a) of section 82. The evidence discloses that he was guilty of an offence under part (a) of section 82 and not under part (c) of that section. This Court is competent to alter his conviction from part (c) to part (a) of section 82 and his conviction is altered from section 82 (c) to section 82 (a) of the Registration Act.
21. Muhammad Musa's conviction is based on the ground that it was at his instance that this false document was prepared and executed. He has been convicted of an offence under section 467/109, P. P. C. It has been very vehemently urged on his behalf that a fraud was committed upon him and he himself fell victim to the deceit of Muhammad Bashir, Haqnawaz and Ghulam Murtaza. He said that he was not known to the real owners of this land, Gut Khan, Shah Jahan and Gut Jahan. In that he has been supported by them. They, when in the witness box, stated that they did not know Muhammad Musa at all. But Muhammad Musa knew Muhammad Bashir, Haqnawaz and Ghulam Murtaza who live in his vicinity and belong to his village. He knew that they were not Gut Khan, Shah Jahan and Gut Jahan and yet he entered into a transaction with them under those names. This proves his complicity in this fraud. It is also in evidence that Muhammad Musa obtained a Fard of this land on the 28th of January 1955 from the Patwari. On the same day, the sale deed was written and on the next day it was registered. The resort to baste is indicative of fraud in his mind. Recourse was had to registration for the sale of land whose value was Rs. 640 while sales of higher value are effected by means of mutations to save money and expenses of registration. But as mutations are attested in public in the presence of big gathering, such frauds cannot escape detection there. Resort was, therefore, had to registration. This also indicates that Muhammad Musa who obtained sale through registration had fraud in his mind. He is no doubt responsible for arranging this false sale in his favour. Gut Khan, Shah Jahan and Gut Jahan were selected as victims because they lived in a distant place and it was expected that the fraud would not come to their knowledge. He is guilty of the offence of preparation of false document under section 467, P. P. C. But as Muhammad Musa made no statement before the Sub‑Registrar with regard to any of the matters mentioned in the deed and only placed the money at his table for payment to the vendors, his conduct does not fall under any of the three clauses of section 82 of the Registration Act. His conviction on the charge under section 82 (c) is not maintainable and is set aside.
22. An argument was raised at the bar in support of the contention that no conviction in this case can be maintained under section 82 of the Registration Act on the ground that no sanction for the prosecution of that offence has been obtained from the inspector‑General, the Registrar or Sub‑Registrar, and without that sanction no trial on that charge can be. maintained. In support of this view reliance was placed on the decisions of Allahabad and Rangoon High Courts A I R 1917 All. 400, A I R 1934 All. 963 and A I R 1927 Rang. 61. It is true that according to the view of the Allahabad and Rangoon High Courts no prosecution by private person without the permission of the Inspector‑General or Registrar or Sub‑Registrar can be com menced, but High Courts of Calcutta, Madras, Patna, Bombay and Nagpur have placed different construction upon section 83 of the Registration Act, 169 I C 41 (Bom.) 207 I C 552 (Pat.) A I R 1945 Rang. 200 and I L R 40 Mad. 880. According to their view, section 83 is not mandatory and does not forbid prosecution by private person of offences committed under the Registration Act. According to that view, it is an enabling provision which permits, besides private individuals, against whom offences under this Act may have been committed, the Inspector‑General or the Registrar or Sub‑Registrar, to lodge prosecution in respect of the offences committed under the Act.
23. The reasoning behind the dictum that sanction or permission of registration authorities is essential for prosecution is that as section 81 of the Act creates offences which are committed by the officers of the Registration Department, it is not correct to expose them to prosecution by private individuals without the permission of the Departmental chiefs. It is conceivable that in certain cases on inquiry by the departmental chief innocence of an officer in respect of offence attributed to him may have been established, and yet he may be criminal Court on private complaint. It is to save the from such vexation that section 83 of the Registration been inserted. It would defeat that object if it to permit private prosecution without sanction. On this the learned Judges have expressed themselves as under in A I R 1927 Rang. 66 :‑
"If the intention was not to bar private prosecutions in respect of offences under the Registration Act, it is open to any person to drag a Registering Officer or his Clerk into a criminal Court for an incorrect registration, and he can do so in spite of the fact that the superior of the registering official has made enquiries and has satisfied himself that the incorrect registration was due to accident without any intention to cause injury. I hardly think that such a result was contem plated."
24. There is nothing in the Registration Act itself which suggests that section 83 of the Registration Act is intended for the protection of officers of the Department. In fact certain classes of officers of that Department are under protection of section 197 of the Code of Criminal Procedure, and for them no further protection is necessary. If an officer of the Registration Department, who is removable from his office by the Provincial Government, commits an offence under section 81 of the Registration Act, he‑ cannot be prosecuted in respect of that offence in any criminal Court without the sanction of the Provincial Government under section 197 of the Code of Criminal Procedure. He is well protected against private prosecution under that provision of law and is not in need of further protection from any other quarters. Double protection is contrary to the principles of jurisprudence and has always been avoided in legislation.
25. Apart from this, according to Allahabad and Rangoon view, it is possible to arrive at the construction which they have placed upon section 83 of Registration Act only if we read something more in the language of that section than it contains. Where private prosecution has been subjected to sanction, the language employed for that purpose is explicit. A specimen of that language will be found in sections 195 and 197 of the Code of Criminal Procedure. If the intention in section 83 of the Registration Act had been the same as was in sections 195 and 197 of the Code of Criminal Procedure, then the language used in those sections of the Code should have been used in section 83 of the Registration Act as well. Wherever that was the intention that specimen was adopted. Section 70 of the Stamp Act and section 6 of the Prevention of Corruption Act have, for this purpose, been modelled on that specimen. But as that language has been cast aside and a different phraseology has deliberately been adopted in section 83 of the Registration Act, the indisputable inference is that different intention was in contemplation and there was no plan to forbid private prosecution.
26. The language of section 83 of the Registration Act shows that this section enables certain authorities of the Registration Department as well to institute proceedings against delinquents if the commission of the offence comes to their knowledge. There was in fact an urgent need for extending the right of prosecution to the authorities of the Registration Department because without entrusting that power to them the object of the Registration Act would have been defeated. Offences under sections 81 and 82 of the Registration Act are always committed against persons who suffer loss by false registration. If a person by making false statement and by obtaining the illicit aid of officers of the Registration Department secures false registration of a document which inflicts loss on another person, it is the person wronged who is in law the complainant and prosecution is open to him. The registration authorities suffer no loss and are not complainants in the case and possess no legal right to institute criminal proceedings against him, even if the offence comes to their knowledge, because no injury has been inflicted upon them. But for the good and efficient administration of the Registration Department, it is necessary that they should have power to get the delinquent punished. If prosecution is exclusively in the hands of private individuals, then they, either in order to save themselves from expenses and worry or by compromise with the offenders, may refuse to prosecute them for offences under the Act and the offender would go unpunished. It is to enable the Registration authorities to institute prosecutions in those circumstances that this provision has been inserted. The authorities of Registration Department have been empowered to assume prosecution when it is abandoned by private individuals.
27. Apart from this, offences committed before the Registrar or Sub‑Registrar under the Registration Act, 1877, have been excluded from the provision of subsection (1) of section 195 of the Code of Criminal Procedure by inserting subsection (2) of that section. That subsection says
"In clauses (b) and (c) of subsection (1) the term "Court" includes a Civil, Revenue or Criminal Court, but does not include a Registrar or Sub‑Registrar under the Registration Act, 1877."
This means that if any forged document is produced before a Sub‑Registrar and it comes before him for registration, the offender can be prosecuted without the permission of the Registrar or Sub‑Registrar. His previous sanction is not necessary. If, it were necessary to subject prosecution of offences committed before the Registrar and Sub‑Registrar under the Registration Act to their previous sanction, subsection (2) would not have been inserted to section 195 of the Code of Criminal Procedure. On the contrary Registrar and Sub‑Registrar would have been included in the word "Court" occurring in subsection (2) of section 195, Cr. P. C. In that case section 83 of the Registration Act would not have been necessary. But as the intention of the law was that sanction of the Registrar or Sub Registrar should not be indispensable for prosecution of offenders under the Registration Act, subsection (2) was inserted in section 195 of the Code of Criminal Procedure. But as they had no right of prosecution, and for certain reasons it was considered necessary that they should also have power to institute proceedings, they were again enabled to do so by section 83 of the Registration Act. If section 83 of the Registration Act is read along with subsection (2) of section 195 of the Code, it will become evident that section 83 is only a permissive and enabling provision and not prohibitory. Besides the person injured by the offences under the Registration Act, the Inspector‑General, the Registrar and Sub‑Registrar under the Registration Act have also been empowered to lodge prosecution. Private individuals, if a complaint arises to ‑them, are not under any prohibition to institute criminal proceedings against offenders under the. Act. In view of these considerations, I am of opinion that the view taken by the Bombay, Madras, Patna and Nagpur High Courts is entitled to preference, and on that view I am also of opinion that for the prosecution of offences under the Registration Act, previous sanction of the Registration authorities mentioned in section 83 of the Registration Act is not necessary.
28. The result is that Muhammad Bashir, Haqnawaz and Murtaza's convictions and sentences, both under section 467 of the Pakistan Penal Code and section 82 (c) of the Registration Act are maintained, the conviction and sentence of Wazir Khan under section 467, P. P. C. is also maintained, the conviction of Musa Khan under section 82 of the Registration Act is quashed and his sentence on that count is set aside, but his conviction and sentence under section 467/109, P. P. C. are maintained. Mehr Khan's conviction is altered from section 82 (c) to section 82 (a) of the Registration Act, but the sentence will stand. Except for these modifications, these appeals are dismissed.
29. As regards the revision application presented on behalf of Gul Khan, the sentences are adequate and there appears to be no room for enhancement. The petition is rejected.
K. B. A. Appeal dismissed.
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