JUDGMENT Walsh, J.
1. This is a remarkable case and whether I am right or wrong in the view which I take on the merits nobody can doubt that the result o£ the original trial was in the highest degree unsatisfactory.
2. The charge against the accused is that he, as Pleader, having had certain drafts contained in an envelope entrusted to him, either for safe custody, or to have fair copies of them prepared on some subsequent date, which drafts represented a compromise which had been arrived at in an unfortunate and protracted dispute between a brother and his sister, in a subsequent civil suit which the brother brought against his sister upon an allegation which the Subordinate Judge, who tried it, found to be wholly false, being called as a witness, swore that the document shown to him and known as Exhibit 4 in that civil suit was one of the documents which bad been entrusted to him. It was not that fact, I think, is one of the few facts, which has been clearly established in the criminal enquiry.
3. The question to be decided in this criminal enquiry is whether he knew that it was not, and falsely and wilfully swore that it was when he knew that it was not. The answer to that question depends upon whether it is proved that he knew the contents of the documents handed over to him. The contents and appearances of the false and true documents were very similar. Of course, he might have known; that goes without saying. His guilt or innocence, however, cannot depend upon speculation. Further, if portions of the prosecution evidence are believed and portions are disbelieved he did know. But the guilt of accused persons cannot depend on vacillating and contradictory statements of witnesses, who either contradict themselves or are contradicted by persons called to support them.
4. It seems to me, therefore, that, although this is not an appeal, I am bound to look careful y into the evidence to see whether the evidence as a whole was such that any Court would be justified in acting upon it t in such a serious matter.
5. The application before me is a revision application from an appeal to the Sessions Judge from the original trial of this matter, which was before a Magistrate. The judgment of the Sessions Judge dealt mainly with one or two technical points, one of which I shall have to refer to in a moment; so far as the merits are concerned, it is a general acceptance of the judgment of the Magistrate as being satisfactory without, as I think, analysing very carefully the strange features of the evidence and without really seeing whether the Magistrate bad, in fact, satisfactorily dealt with all the difficulties in it.
6. Therefore, I have followed my usual practice, namely, that when a revision is brought from the decision of an Appellate Court and the Appellate Court has not gone into the questions dealt with at the trial by the first Court with any great thoroughness, I make a point of investigating the original trial and seeing whether the nature of the procedure and the decision arrived at were such as to leave no doubt that the accused had a fair trial and that the decision was given according to law. The result of the investigation of the trial of the first Court in this case discloses several most unsatisfactory feature? In the first place, the difficulties of the case were such that it was net really a case which could be handled satisfactorily by a Magistrate of the first class. Inasmuch as the charge was confined to perjury and the case was within his jurisdiction, he had no option, but, the fact that he had to try the case was due to the unfortunate course, which this case has taken. If the Pleader was guilty of a false statement with reference to these documents in the civil suit in which he gave evidence on behalf of Fyaz Husain, those documents must have been false to the knowledge of Fyaz Husain, and somebody must have forged his sister's thumb impressions upon them and the Pleader, at any rate, must have been a party to uttering them in the trial of the suit. This would make Fyaz Husain a principal not only in the perjury complained of but also in the forging of the documents and the uttering of them in the suit. The same learned Judge, who directed proceedings against the Pleader, refused to direct them against the principal.
7. It should be noted here that Fyaz Husain admittedly had in his possession blank pieces of paper bearing his sister's thumb-impression, and that his son was a clerk in the accused's employment and presumably had access to these drafts.
8. Secondly, the charge found by the decision of the Magistrate against this Pleader is one of the most discreditable and serious of which a legal practitioner can be found guilty. It renders him unfit for his profession; it is of the worst public example and deserves, in his case, punishment of a very severe character. The Magistrate dealt with this Pleader, so convicted, by giving him the nominal punishment of one day's, imprisonment and a fine of Rs. 51, because, he said, he was an old Pleader, which, if it is true, aggravates the offence, and also because he thought he might have acted out of sympathy for his client, which is, if true, a further aggravation of the offence. If that is the class of punishment and the character of matters which are supposed to mitigate misconduct of professional gentlemen, it is not to be wondered at, if perjury becomes rampant in Courts which so deal with it. I cannot believe that the Magistrate really regarded it as a fitting mode of dealing with the case. I have an uncomfortable feeling in my mind that having been directed by the Subordinate Judge to try the Pleader for perjury, the Magistrate arrived at a compromise while entertaining doubt on the evidence as to the guilt of the accused. The procedure at the trial was unsatisfactory in the highest degree. The number of witnesses, was few and the difficulties of the case rendered a continuous application to the facts and a careful determined effort to clear up all unexplained statements essential.
9. In fact, the hearing was spread over several weeks. The most important witness of all was heard on no less than five occasions during a whole month and other witnesses were sandwiched in between portions of his evidence; although the sequence of events was essential to a clear understanding of the evidence, no attempt Was made to deal with it; hardly any dates are given and inconsistent and unintelligible statements follow each other in a kind of ramble which is by no means easy to follow. If there was any truth in the allegation against this Pleader, he ought to have been committed to Sessions and tried by a Court competent to try such a case for conspiring with his client to put forward false and forced documents.
10. Finally, (although Mr. Dillon quite rightly drew my attention to the point, he asked me, at the same time, not to decide the case upon this point) there is grave doubt as to whether in any event, the conviction could stand, having regard to the fact that the prosecution failed to prove that the Statements were made by the Pleader on oath. It is not pretended that any proof of that essential fact on which the guilt of the accused depends wan expressly given. The learned Sessions Judge has dealt with the matter by a kind of inference or implied proof based upon a section of the Evidence Act. I do not think it necessary to decide whether this view is right or wrong, but I do not hesitate to express my opinion that in every case it is desirable, as Mr. Dillon and Mr. Malcomson stated to be the usual practice of the Criminal Courts, that in cases of perjury the due administration of the oath to the accused person on the occasion in question should be proved like any other fact.
11. Having examined the recorded evidence of the four witnesses upon whom the prosecution relied to establish the allegation against the accused (the fifth and sixth were purely formal), I come unhesitatingly to the conclusion that if I were sitting as the sole Judge of fact, I should have refused to convict anybody on such unsatisfactory evidence; and further if I were sitting as a mere Judge with a jury to decide the facts, I should have directed them that they ought not to convict on such evidence., That being the state of my mind, after a careful consideration of the evidence, I come unhesitatingly to the conclusion that the conviction should be set aside. It is only right both in the interests of the Pleader concerned as well as the trial Court that I should give my reasons.
12. The Magistrate in his judgment referred to discrepancies. They are a good deal more than discrepancies. If the documents were handed to the accused person to obtain fair copies so that the said fair copies might be compared with the drafts, and he did, as Mujtaba swore at a subsequent date, compare them with the drafts, then he must be taken to have known their contents. To that extent I accept Mr. Malcomson's argument. But the evidence on that point depends entirely upon the credibility of Mujtaba. He contradicts himself on that very point, stating in one portion of his evidence that they were given to him to take care of. He admits that he entertains ill-feelings towards the accused and is contradicted on the question as to whether the documents were taken out of an envelope at the particular moment when they were handed over to the accused. I regard the evidence of Abrar Husain and Fjaz Husain as in the main correct. No doubt there was a small gathering of persons, interested in the settlement of this case, collected upon the verandah outside the Munsif's Court at the time when these documents were put in an envelope, which according to the recollection of the witnesses was open and handed over to the accused. The accused was at the time (it was sometime in the afternoon) busily engaged in Court. He was fetched out of Court and according to these witnesses, the documents contained in the envelope were handed to Alay Ahmad. One of the witnesses said that Mujtaba Husain, who banded them over, said 'I entrust them to you'. That he thereupon looked at them, which means, of course, that he took them out of the envelope and gave them a sufficient external inspection to enable him to identify them and to know what was in the envelope. He put them back and went back to Court; that nobody read them on that occasion and the idea of their being read presumably never entered into anybody's bead, So far as I can see, there is no reason in the world why they should have been read on that occasion.
13. Mujtaba says that they were, not taken out of the envelope hut that Fyaz Husain told the Pleader the nature of the documents. Upon this he was flatly contradicted by the witnesses I have just mentioned, and he himself on a later date, when he seems to have forgotten what he had sworn before, said that the accused took them out of the envelope. Whether the fourth witness Samin Husain was a discovery made by the prosecution with a view to patching up the very considerable number of inconsistencies which existed in the case or it was desired to strengthen the evidence of Mujtaba, is uncertain. But the strange point about his evidence is this that whereas he went further then anybody else had had the courage to do up to the time he was called and actually committed himself to the statement that Alay Ahmad not only took them out of the envelope but carefully and fully read the documents through and that he did it in such a fashion that he (Samin Husain) was able to read their contents as well--I might mention by the way that if I did not think that enough had already been heard of this case 1 should have unhesitatingly directed this man's prosecution for perjury--he apparently had never been heard of in connection with this case until the 4th of September He was not called at the hearing of the civil case, although his evidence, if true, would have been vital. He was not mentioned in the applications or orders which came before or were made by the Subordinate Judge and at the hearing before the Magistrate, his presence at the banding over of the envelope, which could not, if his evidence is true, have failed to have been observed by the witnesses who were present, was not mentioned by a single witness either by Mujtaba or Abrar Husain or Ejaz Husain. This is a most significant fact which has been entirely missed by the Magistrate and by the Sessions Judge. I do not think that either of the Courts below appreciated the difficulties of accepting the evidence adduced by the prosecution. Certainly neither of them attempted adequately to deal with them.
14. As I have already said, it leaves in my mind considerable doubt and upon the merits, I think, the case against the accused has not been made out. For the reasons given in this judgment and that taken as a whole the investigation and trial of this matter from first to last have been in the highest degree unsatisfactory, I quash the conviction and direct that the fine, if paid, be refunded.