SHAFIUR RAHMAN, ACTG. C.J.---Leave to appeal was granted to the defendants on account of the following grounds appearing on the record:-- "(1) The High Court based its decision on the assumption that suit for dower was decreed while in fact it was dismissed.
(ii) In view of section 23 of the West Pakistan Family Courts Act, 1964, the Family Court could not question the registered Nikahnama. "
2. Ghulam Hussain died in 1973. A mutation of inheritance was attested in favour of the appellants.
The plaintiffs/respondents challenged the mutation claiming that Ghulam Hussain on his death had left behind a widow and a son also. Their suit failed in the trial Court but on first appeal it succeeded. The finding recorded was as hereunder:-- "The oral evidence produced by the appellants no doubt suffer from certain lapses but the same could be conveniently ignored in the presence of relevant documents which in any case do not tell lie. It is relevant to point out that Nikahnama Exli. P.1 bearing the seal of the Nikah Registrar was part of public record and hence it was per se admissible. The appellants were not duty bound to have examined Nikah Khawan or the witnesses of Nikah. The copy of judgment could not be ignored on technical ground. It will be noted that this judgment was given by Judge Family Court in a suit filed by Mst. Majeedan against the legal heirs of her husband Ghulam Hussain deceased for recovery of her dower debt. Under this judgment the Judge Family Court did not grant the claim of Mst.
Majeedan but held without reservation that she was the widow of Ghulam Hussain deceased. It is relevant to point out that in view of denial by the respondent regarding Nikah of Mst. Majeedan a specific issue was framed in that suit and Mst. Majeedan otherwise proved the same by examining the Nikah Khawan and the witnesses of Nikah. Presuming for the sake of arguments that similar proof was required in suit under appeal as well the same in my opinion is indirectly furnished by this judgment Exh. P.2 which has not been challenged by anybody till date and it has attained finality. The respondents are therefore estopped by their conduct to deny the fact of Nikah."
3. The revisional Court i,e., the High Court on re-examining the judgment of the first appellant Court found it to be proper, legally passed and dismissed the revision petition in limine.
4. The learned counsel for the appellants has taken up mainly two grounds before us. The first was that Nikahnama was not proved because the Nikah Registrar and the witnesses to the Nikah had not appeared as witnesses.. Instead the appellants had produced one witness to the Nikah who had denied Nikah having ever taken place. The other argument is based on a decree dismissing the claim of the respondents with regard to dower of respondent No,
1. That decision according to the learned counsel for the appellants could not be of any avail to the respondents because her suit was dismissed and the finding recorded therein could not operate as res judicata.
5. Section 74 of the Evidence Act specifies 'public documents', inter alia, as documents required to be maintained by a public servant under any law and documents forming the acts or records of the acts of public officers. Section 5 of the Muslim Family Laws Ordinance, 1961 provides for registration of marriages in the following words:-- "5. Registration of marriages.--(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.
' 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 Registrar, 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 thereof, 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."
'Public Officer' has been defined at serial No, (17) in section 2 of the Civil Procedure Code to include every officer remunerated by fees or commission for the performance of any public duty. The Rules framed under the Muslim Family Laws Ordinance, 1961 (Rule 9) provide as hereunder:-- "(1) For the registration of a marriage registered under section 5, the Nikah Registrar shall be paid by the bridegroom or his representative a registration fee of two rupees, or when the dower exceeds two thousand rupees, a fee calculated at the rate of one rupee for every thousand or part of thousand rupees of such dower, subject to a maximum fee of twenty rupees.
(2) Of the fees received under sub-rule (1) the Nikah Registrar shall retain for himself eighty per cent. And shall pay the remaining twenty per cent. To the Union Council.
(3) Where dower consists of property other than money, or partly of such property and partly of money, the valuation of the property shall, for purposes of fees under sub-rule (1), be the valuation as settled between the parties to the marriage."
6. This duty and system of remuneration to the Nikah Registrar makes the Nikah Registrar a 'public officer' and the Nikahnama a public document. Section 77 of the Evidence Act provides that "such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies". A certified copy of the Nikahnama was produced in evidence and unless appropriate rebuttal was forthcoming, the same would hold the ground. No such rebuttal was forth coming from the appellants' side.
7. It is true that the judgment in the dower case would not operate as res judicata nor has it been taken to so operate. There was no right of appeal against it because in spite of the finding in her favour the plaintiff in that suit failed and the defendants could not agitate against such finding.
8. We find that with the production of the Nikahnama the plaintiffs/respondents had succeeded in proving their claim. Hence, no case is made out for interference and the appeal is dismissed leaving the parties to bear their own costs.