As stated already, the defence had cross-examined 'him for nearly two days and he had bad to leave Delhi under circumstances over which the Magistrate or the petitioners had no control whatever. Admittedly, his attendance before the conclusion of the inquiry could not be procured without any amount of delay and expense which would be unreasonable. As observed in an American case cited at p. 330 of Sarkar's Law of Evidence, Edn. 5:
no general rule can be laid down in respect of unfinished testimony. If substantially complete and the witness is prevented by sickness or death or other causes (mentioned in Section 33, Evidence Act) from finishing his testimony, whether viva voce or by deposition, it ought not to be rejected entirely, but submitted to the jury, with such observations as the particular circumstances may require. But if not so far advanced as to be substantially complete, it must be rejected.
20. In my opinion, the Courts below were right in holding that Mr. Stott's evidence was admissible. The value to be attached to it was however a matter primarily for the Magistrate, and after giving due weight to the arguments of counsel for the complainant I cannot say that the Magistrate acted foolishly or perversely in regarding Mr. Stott as an unbiassed witness and preferring his opinion to that of the experts produced by the prosecution. But even if Mr. Stott's evidence were excluded, it seems to me that the learned Magistrate was not wrong in rejecting the evidence of Messrs. Afzal and Hardless Junior.
1933 Lawpad(Lah) 154
HIGH COURT OF LAHORE
| Diwan Singh and Others | ...Appellants |
| Versus | |
| Emperor | ...Respondents |
Decided on 24 February 1933
Tek Chand, J.
1. This is a petition presented by Diwan Singh, Azfar Hussain and Nazar Hussain, petitioners, for revision of the order of the Sessions Judge, Delhi, passed under Section 436, Criminal P.C., setting aside the order of Mr. A. Isar, Additional District Magistrate, Delhi, discharging the petitioners in a criminal case which was instituted against them and one Qamarulnabi on a complaint filed by Khwaja Mohammad Akram Khan, Inspector-General of Police, Bhopal State, under Sections 292, 500 and 501, read with Sections 109 and 511, Penal Code. The first petitioner, Diwan Singh, is the proprietor, editor, printer and publisher of a weekly newspaper called "The Riyasat" issued from Delhi. Azfar Hussain is a resident of Amroha in the United Provinces and a caligraphist by profession, who was serving on the staff of the Riyasat. Nazar Hussain also belongs to Amroha and worked as a correspondent of the Riyasat for some time. The fourth accused Qamarulnabi is a caligraphist, doing job work for various presses at Delhi. On 6th January 1930, a complaint was lodged in the Court of the Additional District Magistrate, Delhi, by Khwaja Mohammad Akram Khan against Azfar Hussain alone under Sections 292, 500 and 501/109, 511, Penal Code, on the allegation that he, with the assistance of certain other persons, was secretly preparing for publication, with a view to harm the reputation of the complainant a highly obscene pamphlet containing defamatory matter against the complainant. The Magistrate after briefly examining the complainant, issued a number of search-warrants, in pursuance of which several houses were searched and a large number of documents seized. One of the persons from whose house documents which the prosecution describe as incriminating, were recovered is Fakharuddin, (P.W. 12), who was at the time sub-editor of the Riyasat. He is a person with not very creditable antecedents, having been previously convicted in a case in which he was tried on charges of embezzlement, forgery and falsification of accounts. It is admitted by the prosecution that soon after the search, Fakharuddin "got into touch" with the complainant and other Police Officials of. Bhopal and after some time received a "pardon" from the complainant on condition of his agreeing to give evidence against Diwan Singh.
2. Though it was on 7th January 1930, that most of the documents on which the prosecution rely came into their possession, and shortly afterwards they are stated to have succeeded in winning over to their side an important witness-like Fakharuddin, no proceedings were taken on this complaint for about five-months. The explanation offered is that during this period an attempt was being made by the complainant to obtain the sanction of the Local Government to prosecute Azfar Hussain and his alleged confederates for conspiracy under Section 120-B, Penal Code. The Local Government however declined to grant the sanction, and eventually on 13th June 1930, Khwaja Mohammad Akrairn Khan lodged a second complaint under Sections 292, 500, 501/109 and 511, Penal Code, against Diwan Singh, Azfar Hussain, Nazar Hussain and Qamarulnabi. Proceedings on this complaint continued in the Magistrate's Court for a period of two years and three months, in the course of which 43 witnesses, were examined on behalf of the prosecution, and the Magistrate also recorded, at the request of the defence, the statement of Mr. R. Stott, Government Examiner of Questioned Documents, as he was leaving India on long, leave. The record of the Magistrate covers over 2,000 pages of closely typewritten matter, besides a large mass of documentary evidence produced by both parties. On 23rd September 1932, the Magistrate passed a lengthy order by which he discharged Diwan Singh. Azfar Hussain and Nazar Hussain holding that the prosecution had failed to establish a prima facie case against them, but framed charge under Sections 116, 511/500 and 116, 511/292, Penal Code, against the fourth, accused Qamarulnabi, who is still awaiting his trial in the Magistrate's Court.
3. Against the order of the Magistrate discharging the first three accused, the complainant presented a petition for revision under Sections 435 and 436, Criminal P.C., in the Court of the Sessions Judge, Delhi. The learned Sessions Judge in a lengthy order has set aside the order of discharge and has directed "further inquiry" against the petitioners by another Magistrate. The petitioners have moved this Court under Section 439, Criminal P.C., and have urged that the order of discharge has been: set aside by the learned Judge on inadequate and improper grounds and that it should be vacated. I have carefully examined the judgments of the Magistrate and the learned Sessions Judge and have spent considerable time in reading the record. I have also had the advantage of hearing the whole case ably and exhaustively argued for full five days by Mr. Bevan Petman and Mr. Tawakley for the petitioners, and the learned Government Advocate assisted by Khan Bahadur Abdul Rahman on behalf of the complainant. Before dealing with the points which have been raised in the course of arguments before me I think it necessary to mention that the prayer for further inquiry was not based on the ground that' the prosecution intended to produce additional evidence. It was stated by counsel for the complainant in the Sessions Court, and this has been repeated in this Court that the prosecution had produced before the Magistrate the whole of the evidence on which they relied in support of their case.
4. It may also be mentioned that before the learned Sessions Judge it was objected on behalf of the petitioners that as the Magistrate had recorded his findings on the entire evidence on which the prosecution had rested their case and had written a lengthy order which virtually amounted to an order of acquittal, it was not competent to the Sessions Judge to set aside that order under Section 436, Criminal P.C. This objection was overruled by the learned Judge, and Mr. Bevan Petman on behalf of the petitioners has very frankly and properly admitted before me that the contention is without force, and that in an appropriate case the Sessions Judge has the power to set aside an order of discharge passed by the Magistrate, even though no additional evidence is sought to be produced. Section 436 of the Code (as amended) like the corresponding Section 437 in the earlier Code, is couched in somewhat general terms and has been the subject of much discussion and comment in the various Courts, but judicial opinion may now be said to have settled the principles on, and the circumstances in, which the Court of revision should interfere with an order of discharge. In the Punjab the leading case on the subject is Emperor v. Kiru (1911)10 P.R.1911. In that case Kensington, J., who delivered the judgment of the Full Bench, laid down that
generally speaking further inquiry after discharge is improper unless the order of discharge was perverse or foolish or was based upon a record of evidence which was obviously incomplete.
5. The learned Judge pointed out that, while no invariable rule could be laid down and each case must depend on its peculiar facts and circumstances, it was well-settled that further inquiry should be undertaken only in exceptional cases and for good reasons shown. It was also observed that
Where a man is discharged under circumstances which make the order of discharge equivalent to one of the acquittal, no further proceedings should be taken against him under Section 437 (Section 436 of the amended Code).
6. This rule has been followed in a long succession of cases and it has been repeatedly held that, unless the view taken by the Magistrate is palpably unreasonable or perverse, the Sessions Judge or the District Magistrate should not order further inquiry on the same (materials simply because he was inclined to take a view of the evidence different from that of the Magistrate. As pointed out by Chevis, J., in Dani v. Emperor A.I.R.1921 Lah.214:
the mere fact that the District Magistrate places a different value on the evidence from that placed by the trial Court is not a good reason for directing further inquiry under this section.
7. Similarly, Harrison, J., in A.I.R.1927 Lah.815, observed that:
the order of the Magistrate may not commend itself to the District Magistrate, the Magistrate may or may not have attached too much importance to the discrepancies and too little to the probabilities, but unless the order can be said to be perverse or foolish, it will not be interfered with.
8. Another important case is Dost Mahomed v. Asa Ram A.I.R.1922 Lah.409in which Broadway, J., held that further inquiry should not be held merely because the revisional Court thinks that "in the interests of justice" it is necessary to do so. Counsel for both parties are agreed that the view of the law stated above is correct, and the question for determination is, whether the learned Sessions Judge has followed these principles in setting aside the order of discharge in this case. Mr. Bevan Petman has referred me to the penultimate paragraph of the judgment of the learned Sessions Judge in which he has summed up his conclusions in the following words:
I am unable to accept the reasons given by the learned Magistrate for holding the prosecution case to be entirely groundless and that the defence has not succeeded in convincing me that a farther inquiry should not be ordered.
9. He has also drawn my attention to an earlier passage in the same paragraph where the learned Judge has observed:
that there has in fact been no proper inquiry and that a further inquiry is necessary in the interests of justice.
10. It is argued that these passages show that the learned Sessions Judge had (misdirected himself as to the law applicable to revision petitions against orders of discharge and that his conclusions are opposed to the principles laid down by the Full Bench and the other Benches of this Court. It is no doubt true that an order of discharge ought not to be set aside merely be-, cause the Sessions Judge considers that the "prosecution case is not entirely groundless," and it is beyond dispute that it is not for the accused person to convince the Court of revision why further inquiry should not be ordered against him, but that it is for the prosecution to bring the case within the rule laid down in the Full Bench judgment. I think however that in a case of this magnitude too much emphasis should not be laid on a sentence here or a sentence there in the judgment of the Sessions Judge, but that his judgment must be considered as a whole, in order to see if it offends against the well-settled rule laid down above. Similarly, in determining whether the order of the Magistrate discharging the accused was "foolish or perverse," it ought not to be sufficient to pick out holes in Ins judgment on matters of detail, but what is to be seen is whether taking a broad view of material points requiring decision in the case and on a consideration of the whole of the evidence, the order could have been passed by a Judge, fairly and impartially dealing with the case.11. A perusal of the judgment of the learned Sessions Judge shows that the main defects which he had discovered in the judgment of the Magistrate are that he had made unwarranted assumptions of fact and had not based his findings on a proper appreciation of the whole of the evidence in the case, nor had he considered the evidence of each witness on its merits, but had rejected it because he felt that the witness belonged to a class of persons whose evidence does not ordinarily carry conviction in a Court of law. It seems to me however that this criticizm is not justified in respect of most of the points mentioned by the Sessions Judge and that such of the errors as exist in the judgment of the Magistrate relate to matters which are not very material to the ultimate decision of the case. It does not appear to me to be necessary to enter into a detailed discussion of all the points mentioned by the learned Judge and I shall deal with a few important ones only. Before doing so, however a few preliminary facts may be stated with regard to which there is no substantial disagreement between the parties.
12. It is common ground that in 1924 a very acute controversy arose over the succession to the Gaddi of the State of Bhopal, which was at that time occupied by Her Highness Begam Sultan Jahan. The Begam was advanced in years and the heir-apparent, her eldest son, Nasrullah Khan, was expected to succeed her. In September 1924 however Nasrullah Khan died leaving two sons of whom the elder was Habib Ullah Khan. The second son of the Begam, Obedullah, Khan, had died a few months earlier in June 1924, and her sole surviving male issue was the youngest son, Hamid Ullah Khan. On Nasrullah Khan's death disputes arose between Habib Ullah Khan and Hamid Ullah Khan, as to the succession to the Begam, in which important personages in Bhopal and outside appear to have arrayed themselves in rival camps. Some newspapers in British India espoused the cause of Habib Ullah Khan while others lent their support to Hamid Ullah Khan. The Riyasat, of which the first petitioner Diwan Singh is the proprietor and editor admittedly sided with Habib Ullah Khan and wrote a series of articles supporting his claims as against those of his uncle Hamid Ullah Khan, who was believed to be the favourite of Her Highness the Begam. The question however was set at rest in 1926 by the Paramount Power announcing its decision in favour of Hamid Ullah Khan. Shortly, after this announcement, the Begam abdicated and, Hamid Ullah Khan succeeded her as the ruler of Bhopal. Habib Ullah Khan and his supporters however were not silenced by this decision and the controversy continued for some years, longer. (The Court after pointing out mistakes in the judgments of both the lower Courts proceeded). As stated already, the complaint against the petitioners was filed under Sections 292, 500 and 501/109 and 511, Penal Code, in respect of a pamphlet which the accused persons were alleged to have prepared for publication.
13. Admittedly, the so-called pamphlet had not seen the light of the day. Indeed, according to the prosecution themselves, it had not even been printed. All that is alleged, is that it had been copied and written on yellow lithographic paper and was ready for the press, when the complainant got information and arranged to have portions of it seized by the police. These portions and the original transcript in long hand are Exs. P.G. and P.F. both alleged to be in the handwriting of Qamarulnabi, against whom the Magistrate has framed charges under Sections 500 and 292/511 and whose case is not before me. In order to connect the three petitioners with the preparation of this pamphlet the prosecution relied upon a number of documents and the oral testimony of certain witnesses. So far as Dewan Singh is concerned, the only document which is alleged to contain his writing is Ex. P.N., which purports to be the draft of a letter meant to be sent by Diwan Singh to some person on the staff of Prince Habib Ullah Khan, who was residing at the time in Poona. The draft is written in caligraphic Urdu by a copyist and contains several corrections and interlineations in Shikasta Urdu apparently made by another person. These corrections and interlineations are alleged to be in the hand-writing of Diwan Singh, who is also alleged to have affixed his signatures at the end. Diwan Singh denies that the signatures or the corrections and interlineations are in his hand-writing. This document (Ex. P.N.) therefore had an important bearing on the case, and naturally was the subject of much discussion before the Magistrate and the Sessions Judge and of considerable argument before me. Besides Ex. P.N., the prosecution relied strongly on several documents in "Ex. P.J. series," which were recovered from Fakharuddin, (P.W. 12), when his house was searched on 7th January 1930. These documents appear to contain the "material" on which the draft-pamphlet (Exs. P.F. and P.G.) was based, and some of them are stated to be in the hand-writing of Azfar Hussain, and others are letters alleged to have been written by Nazar Hussain to Diwan Singh. Azfar Hussain and Nazar Hussain denied that any of these documents was in their hand-writing and Diwan Singh declared that he had never received or seen them before. The question of their genuineness or otherwise was therefore one of the points for decision in the case.
14. In order to prove that Ex. P.N. had been signed by Diwan Singh and contained corrections in his hand and that the documents in Ex. P.J. series had been written by Azfar Hussain, and Nazar Hussain the prosecution relied on the evidence of: (1) two handwriting experts; (2) persons claiming to be familiar with the writings of the petitioners, and (3) the oral testimony of witnesses who stated that they had seen the documents in question with one or other of the petitioners. The learned Magistrate rejected the evidence of all these witnesses as unsatisfactory ,and held that the prosecution had failed to establish their contention in respect of any of the documents in dispute. The learned Sessions Judge has strongly criticized the Magistrate's consideration of this evidence and has come to the conclusion, that the witnesses had been disbelieved without a proper appreciation of their testimony. In order to satisfy myself as to whether this criticizm is justified, I have examined the whole of the evidence, but find myself unable to agree with the Sessions Judge.
15. A large part of the record is taken up with the evidence of the handwriting experts, of whom two were produced by the prosecution. One of them is a gentleman "who describes himself" as Russel Gregory Afzal of Lucknow, (P.W. 26), and the other is Charles Hardless (Junior) of Allahabad, (P.W. 40). When the evidence for the prosecution was being led the defence brought it to the notice of the Magistrate that one of the persons, who could throw light on the case was Mr. R. Stott, Government Examiner of Questioned Documents, who had been asked by the Political and Foreign Department of the Government of India, at the instance of the Bhopal Durbar, to give his opinion in respect of the alleged writings of Diwan Singh on Ex. P.N., but who had not been called by the prosecution as a witness, as his opinion was unfavourable. It was pointed out that the defence proposed to summon him as a witness if it became necessary for them to do so, but as Mr. Stott was leaving the country on long leave, it was prayed that in the interests of justice the Magistrate should summon him as a Court witness under Section 540, Criminal P.C. The learned Magistrate decided to examine Mr. Stott at that stage of the inquiry, but a question arose as to who was to pay his fees. The prosecution were naturally unwilling to do so, and as it was a private prosecution, the Crown could not be burdened with the expense. It was therefore arranged that the defence should pay the necessary fees, and accordingly Mr. Stott was examined and cross-examined on 23rd and 24th October 1931. In his examination-in-chief Mr. Stott expressed his opinion that the signatures and the interlinear writings in Ex. P.N. were not in the hand of Diwan Singh, but that they bore indications of an attempt by the writer to imitate his hand-writing. The witness gave elaborate reasons in support of his conclusion and was cross-examined at length by counsel for the complainant. His evidence as recorded covers 23 pages of the record, but before the cross-examination could be completed, Mr. Stott had to leave Delhi for other Government work and he sailed from Bombay on 28th October 1931.
16. The learned Magistrate has rejected the evidence of Messrs. Afzal and Hardless (Junior) and in doing so has relied inter alia on the evidence of Mr. Stott. It was argued before the learned Sessions Judge that the evidence of this witness was not admissible as his cross-examination had not been completed before he left India. The learned Judge overruled this objection, but, while holding that the evidence was admissible, he has passed strictures on the Magistrate for remarking that further cross-examination of the witness was not likely to make him change his opinion, formed after an examination of the document and its enlargements with the necessary instruments, as
experience shows that once a hand-writing expert had recorded his opinion, no amount of cross-examination subsequently alters his first opinion.
17. In this connexion the Magistrate incidentally referred to the evidence of Messrs. Afzal and Hardless (Junior) who, in spite of the lengthy cross-examination occupying several days and covering over 200 pages of type-written matter, had not modified in the least their original opinion. The learned Sessions Judge has taken these observations as indicative of the biassed standpoint from which the Magistrate had approached the whole case, and this appears to have largely influenced him in holding that the order of the Magistrate discharging the petitioners was perverse and foolish. After reading the evidence of the experts however I cannot say that the learned Magistrate was not right in his estimate of the testimony of Messrs. Afzal and Hardles, nor, if I may say so with all respect, does the Magistrate appear to me to be alone in holding the view of expert evidence, which he has expressed, somewhat bluntly and perhaps not in very elegant language. In this connexion it will be interesting to refer to a passage at p. 127 of Ryen of Criminal Evidence in India, which has been cited with approval by a Division Bench of this Court presided over by the Hon'ble the Chief Justice and Leslie-Jones, J., in Hari Singh v. Lachmi Devi A.I.R.1921 Lah.126, (at p. 226 of 59 I.C.):
It must be borne in mind that an expert witness, however, impartially he may wish to be, is likely to be unconsciously prejudiced in favour of the side which calls him. The mere fact of opposition on the part of the other side is apt to create a spirit of partisanship and rivalry, so that an expert witness is unconsciously impelled to support the view taken by his own side. Besides, it must be remembered that an expert is often called by one side simply and solely because it has been ascertained that he holds views favourable to its interests.
18. Similarly, Taylor in his great work on the "Law of Evidence," (Edn. 12), Vol. 1, p. 59, para. 58, observes:
Perhaps the testimony which least deserves credit with a jury is that of skilled witnesses. These witnesses are usually required to speak, not to facts, but to opinions; and when this is the case, it is often quite surprising to see with what facility, and to what an extent, their views can be made to correspond when the wishes or the interests of the parties who call them. They do not, indeed, wilfully misrepresent what they think, but their judgments become so warped by regarding the subject in one point of view, that, even when conscientiously disposed, they are incapable of forming an independent opinion. Being zealous partisans, their belief becomes synonymous with faith as defined by the apostles, and it too often is; but 'the substance of things hoped for, the evidence of things not seen'.
19. The learned Government advocate has however repeated before me the objection that the evidence of Mr. Stott ought not to have been relied on by the Magistrate because: (1) he was not a witness for the prosecution, but had been produced at the instance of the defence and consequently his statement was not "evidence" which the Magistrate could have considered under Section 254, Criminal P.C., at that stage of the inquiry; and (2) the witness had not been fully cross-examined by the prosecution before he left the country. In my opinion, both these contentions are devoid of force and must be rejected. As stated above, the defence applied to the Court to examine Mr. Stott under Section 540, which gives the Court ample powers to summon any material witness "at any stage of any inquiry, trial or other proceeding under the Code." It has been held that under this section the "Magistrate may admit evidence on behalf of either side at the trial" Queen v. Kassy Singh (1874)21W.R.61, and once such evidence has been admitted on the record, the Magistrate is bound to consider it while deciding whether a charge should or should not be framed. Nor can Mr. Stott's evidence be ruled out as inadmissible simply because his cross-examination was technically incomplete. As stated already, the defence had cross-examined 'him for nearly two days and he had bad to leave Delhi under circumstances over which the Magistrate or the petitioners had no control whatever. Admittedly, his attendance before the conclusion of the inquiry could not be procured without any amount of delay and expense which would be unreasonable. As observed in an American case cited at p. 330 of Sarkar's Law of Evidence, Edn. 5:
no general rule can be laid down in respect of unfinished testimony. If substantially complete and the witness is prevented by sickness or death or other causes (mentioned in Section 33, Evidence Act) from finishing his testimony, whether viva voce or by deposition, it ought not to be rejected entirely, but submitted to the jury, with such observations as the particular circumstances may require. But if not so far advanced as to be substantially complete, it must be rejected.
20. In my opinion, the Courts below were right in holding that Mr. Stott's evidence was admissible. The value to be attached to it was however a matter primarily for the Magistrate, and after giving due weight to the arguments of counsel for the complainant I cannot say that the Magistrate acted foolishly or perversely in regarding Mr. Stott as an unbiassed witness and preferring his opinion to that of the experts produced by the prosecution. But even if Mr. Stott's evidence were excluded, it seems to me that the learned Magistrate was not wrong in rejecting the evidence of Messrs. Afzal and Hardless Junior. It is no doubt true that in his judgment, which covers over 29 pages of closely typed matter, the Magistrate has not entered upon an elaborate examination of the evidence of these witnesses and has not set out in detail the technical grounds given by them to support their conclusion; but, I think, that the Magistrate has given ample reasons for not accepting their opinion. I have read the decisions of both these witnesses with great care and am constrained to say that the impression which they have left on my mind is far from favourable. Indeed, the claim of one of them, Mr. Afzal, to be an expert in hand-writing appears to me to be highly pretentious. After passing the Senior Cambridge Examination at the age of eighteen, he proceeded to England and joined the University College, London, with a view to obtain a degree. He was there for nearly seven years, but did not sit for the Degree Examination as he "went up for the I.C.S.," in which he was unsuccessful. He returned to India in 1928 and set himself up as a handwriting and finger-print expert. In the printed advertisement (Ex. D-86) which he has issued to the public he described himself as:
Bussell Gregory Afzal,(London University, France, Germany).
* * * *
Document, Hand-writing and Finger-print expert, Analyses of age and type of ink, paper, etc., Documents micro-photography, Bullet or Gun-markings.
21. In his evidence before the Magistrate he explained that the advertisement was not intended to convey the idea that he was an expert trained in the London University, or that he had studied the subject in any institutions in France or Germany; but stated that the reference to the London University was made because in London his Professor of English had given him a "course of lectures on hand-writing." He also stated that he had used the word "France" in the advertisement as his father (and not he) had studied the subject of hand-writing under an expert Bertillon, and that though personally he did not know much of French, his wife was a graduate with honours in French and had translated into English a book on Criminology by a French author, whose name he had forgotten. His connexion with Germany is of an equally flimsy character. He appears to have had very little practical experience; he came to India only two years before he appeared as a witness in the case and he frankly admitted that he had not made a special study of Urdu caligraphy. Further, a comparison of the evidence of the two experts shows that their conclusions do not agree on all points. For instance, with regard to Ex. D-71, which is stated to be an important document in the case, they have given contradictory evidence. While Mr. Afzal was of opinion that it was in the hand-writing of Diwan Singh, Mr. Hardless was emphatic that it was not the original document, but was a tracing from the original. 22. The next set of witnesses claimed to be familiar with the hand-writing of one or other of the petitioners and pretended to identify the alleged writing of Diwan Singh on Ex. P.N., and of the other petitioners on various other documents. As stated already, the Magistrate found himself unable to accept their evidence and has rejected it as unsatisfactory or unreliable. The reasons given by him for coming to this conclusion have not been accepted by the Sessions Judge, and have been commented upon by the learned Government advocate. He has read the evidence of these witnesses, before me and, after considering it, I cannot say that the view taken by the Magistrate is palpably unreasonable, perverse or foolish so as to bring the case within the rule enunciated above. Indeed it seems to me that it would have been highly unsafe to rely on the testimony of these witnesses as to the identity of hand-writing, more especially when we find that with regard to several documents they have expressed opinions contradictory to those of the experts produced by the prosecution themselves.
23. For instance, Ex. D-22 was described by Fakharuddin, (P.W. 12) as being in the hand-writing of Diwan Singh, while both Messrs. Afzal and Hardless have declared it to be a tracing. Similarly, Fakharuddin stated that Ex. D-25 had been written by Diwan Singh, but P.W. Shamasuddin stated that it was not in Diwan Singh's hand and the two experts have deposed that this document also was a tracing. There are several other discrepancies of this kind, but it is not necessary to set them out in detail here. It will be sufficient to say that with these materials on the record the Magistrate had ample justification for rejecting the testimony of these witnesses. (His Lordship then considered other evidence and proceeded). After giving the case most anxious and careful consideration I have reached the conclusion that there is no ground for holding that the Magistrate's order was foolish or perverse or was based on a record which was obviously incomplete. It may be that with regard to certain matters of detail the learned Magistrate has fallen into error; it may be that in some passages in his judgment he has used language stronger than was perhaps necessary; it may also be that in some others he has not expressed himself clearly; but I have no doubt that, taken as a whole, his decision was not such as could be justifiably set aside by the Sessions Judge under Section 436, Criminal P.C. I therefore hold that the learned Sessions. Judge was in error in setting aside; the order of the Magistrate and directing further inquiry on the same materials. I accordingly accept this petition, set aside the order of the Sessions. Judge, dated 3rd December 1932, and restore that of the Additional District Magistrate dated 23rd September 1932, discharging the petitioners.
24. In conclusion, it may be mentioned, that a faint-hearted attempt was made on behalf of the complainant to argue, that the order of the Magistrate dismissing the first complaint instituted, on 6th January 1930, against Azfar Hussain was erroneous as no "inquiry" had been made on it; in fact no evidence had been recorded at all. It was conceded however that the subject-matter of the first complaint was included in the allegations made in the second complaint which was much more comprehensive, and that all the evidence that could have been produced in support of it was actually brought before the Magistrate in the course of the inquiry into the second complaint. In view of my finding, that the decision of the learned Magistrate on the second complaint was correct and that no-prima facie case had been established, for framing a charge against any of the petitioners, the first complaint must, automatically fail. In these circumstances, it would be a travesty of justice to order "further inquiry" into the same allegations and on the same materials, on the highly technical ground that no formal order had been passed consolidating the two complaints. I therefore restore the order of the Magistrate dismissing the complaint of 6th January 1930'also.
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