1. These two appeals Nos. 150 and 151 wore argued together. The same persona are appellants in both appeals. They were charged with and convicted of having instigated certain persons to give false evidence for the purpose of establishing in a pending civil suit that one Nasur Karmali, a deceased brother of the appellants, had divorced his wife Slerbanoo whose claim to maintenance was in litigation.
2. The charges in the case in Appeal. No. 150 against appellant No. 1 Rashid set out that he had given such instigation :-
(1) On 14th October 1905 to Mahomed Dhala.
(2) On 15th October 1905 to Abbas Ebrahim.
3. The charges against appellant No. 2 Issa in the same case were that he had given such instigation.
4. On 14th October l905 to Abdul Russul Peera and Mahomad Dhaln.
5. On 17th October 1905 to Abbas Ebrahim pages 139 and 141).
6. The civil case in connection with which the false evidence in question was solicited was then pending before Mr. Murison.
7. Initial objection has been taken that these proceedings against the accused have been irregularly instituted without the sanction required by Section 195. Criminal Procedure Code. There appears to be good ground for this objection. For the first step against the accused was talem by Mr. Liudsay Snith who iseucd Warrants on 21st October 1905 against the accused on complaints made before him by Mahomed Dhala and Abbas Ebrahim (pages A. Cr. J. 122 to 125). And on reading these warrants Mr. Murison sanctioned the prosecution on 23rd October, purporting to act as Assistant Judge and District Magistrate. This sanction is not adeairikon dressed to any one and would seem therefore to be more in the nature of a proceeding under Section 176 or 178 of the Criminal Rashid Procedure Code, but would be unsustainable under either of these Batty J. sections as the offences cannot be said to have been committed before Mr. Murison or brought to his notice in the course of a judicial proceeding. It seems however unnecessary to consider whether this objection should be regarded as fatal to the validity of the proceedings, for we find on full consideration of the evidence recorded, that it is impossible to sustain the conviction to which appeal No. 150 relates.
8. As regards the first charge against Rashid appellant No. 1 and the second charge against Issa, appellant No. 2, which relates to instigation alleged to have been given to Mahomad Dhala, we find that the evidence of Mahomad Dhala is that of an accomplice and uncorroborated and is in itself unworthy of credence. Mahomad Dhala alleges that he was solicited by both the brothers and mentions no other person as then present. He admits that he accepted the offer and demanded the promised consideration and that the matter fell through merely because the money was not paid. He alleges that his reward was to consist of a loan of Rs. 100, without interest and that Abdul Russul agreed to become his surety for repayment of this loan and as such signed a promissory note for the amount, but that as the money was never paid the note was torn up.
9. Abdul Russul does not profess to have witnessed the solicitation of Mahomad Dhala and even says he does not remember whether Mahomad Dhala told him of the offer of Rs. 100 for Mahomad Dhala's false evidence.
10. If, as Mahomad Dhala alleges, his object was to expose the accused by producing the money given by them in Court, it is incredible that he would have torn up the promissory note which he says Rashid wrote for his signature in favour of Mahomad Karmali. It seems scarcely less improbable, if the accused were anxious to secure the evidence of Mahomad Dhalla, they would have insisted only on his giving them an acknowledgment of his obligation and would luce held back when he asked for the money.
11. The Sessions Judge in his judgment observes that Mahomed Phala was willing enough to be dishonest but only when he was paid for it. And this remark implies that Mahomad Dhala was an accomplice. The improbability that the two accused would withdraw from their offer at once on being asked to give the slight inducement promised, is met by the Sessions Judge with the comment that the accused 'showed their ruling instinct, meanness, even on an occasion like this.' We are unable to accept this comment, as it would appear to he based either on an assumption of the guilt which was to be proved, or in impressions imported from extraneous sources.
12. In this connection, appellants' counsel has drawn our attention to other passages occurring in the judgment which is the subject of Appeal No. l50, wherein references have been made to other litigation and to reflections made by another judge on the conduct of the accused. That such comment is inadmissible in judicial proceedings is shown by the case of Seaman v. Nether clift (1876) 2 C.P.D. 53.
13. Forming our impressions of Mahomad Bhala's evidence from the record before us, we are unable to accept it as convincing. His own admission discloses that he is in debt to the accused, that they have recently brought suits against him, that he had on a previous occasion signed a paper describing the divorce in question, in token, it seems, of his readiness to give the evidence desired by the accused and in the. present instance, according to his own statements, he encouraged their overtnres and took no steps to expose them till they were withdrawn. A further ground for questioning the probability of the story told by him, has been pointed out by appellant's Counsel and goes far to discredit the other charges which are the subject of this appeal. It appears that both appellants when examined sometime before the alleged subornation, had stated the names of four persons present as witnesses at the divorce in the Hospital and that these did not include any of the witnesses in this case. And it is urged that the accused had by these depositions already made it impossible for themselves to add to the number of the witnesses to the divorce in the Hospital and could have bad no object therefore in soliciting the witnesses in this case to give false evidence as to their presence on the same occasion. It is urged for the Crown that the depositions of the accused did not purport to give an exhaustive list of all whom they alleged then to have been present, but only to state the four witnesses required by law to give formal validity to the divorce. This last contention how- ever, we think, cannot reasonably be sustained in face of the passages pointed out to us in Rashid's deposition of 27th September (page 77 and 79 of Record : compare also pages 81, 88 and 102) which mentions that nurses and priests were also present but that they could not understand the language.
14. We now pass on to the evidence of instigation given to Abbas Ebrahim, which forms the subject of the second charge against appellant; No. 1 and the third against appellant No. 2.
15. The charges state that the evidence solicited in this case was to the same effect as that set forth in the first charge, i.e. as to the divorce in the witnesses' presence at the Hospital, with this addition that Nasur had told Abbas of the divorce and that it had been accepted by the father of the divorcee (pages 139, 141). Mahomad Dhala also deposed at the trial that Issa had told him to procure Abbas as a witness and that 'Abas was to say that in Abbas' presence Nasur divorced his wife in the French Hospital.'
16. Whereas in the complaints (page 123 and 124 dated -21st October both Mahomud Ali and Abbas represent that the evidence solicited was that Abbas had been to the Hospital to see Nasur and been told of the divorce. Mahomad Ali indeed further said that Abas was required also to say that. Nasur had added 'I will give Talak again to my wife in your presence' and that Abbas had been sent to the wife's father to inform him. In the. Sessions trial Abbas adopts the version given in Mahomad Ali's complaint, in preference both to that in his own complaint and to that in Mahomad Dhala's deposition. There are thus four different accounts of the evidence solicited from Abbas-Next Mahomad Dhala speaks of himself as being sent by Issa to solicit Abbas. Abbas speaks only of Mahomad Dhala having come with Issa and that on two occasions. Mahomad Dhala describes Abbas as accepting the offer and asking lor payment, refusing only to write down the evidence he could give. Of this Abbas says nothing, alleging that he entirely refused the offer.
17. Mahomad Dhala says his first visit with Issa was to the house of Abbas and the second meeting was at his own (Mahomad Ali's) house. Abbas says Issa came twice with Mahomad Dhala on both occasions-on the first occasion at Abba's house, on the second occasion he says 'I went to their house (the Karmalis)'' and mentions no visit to Mahomad Dhala's house. The charge states the solicitation to have been on the 17th October and the complaint of Abbas was recorded on 21st October, the depositions on 6th December. The complaint of Abbas states that Rashid came with Issa to suborn him, Mahomad Dhala being present. Mahomad Dhala makes no mention either in his complaint or deposition of Rashid approaching Abbas at all and Abbas in his deposition states Rashid's visit without mentioning Issa or Mahomad Dhalla as present. It would be difficult to imagine more completely discrepant accounts of incidents so important and so recent.
18. Abbas is in debt to Issa. Half his pay is attached for his creditors. According to Mahomad Dhala he was willing to give false evidence. And he made no appeal to the authorities of his own initiative. We are unable to accept his evidence with that of Mahomad Dhala on these charges.
19. As to the charge against Issa alone, of instigation given to Abdul Russul. it is to be observed that no complaint or sanction appears to have been made. The date assigned to it in the charge is 14th October. The judgment states that Abdul Rasul left for Mombasa on the 13th October. This may be a typical error.
20. Abdul states that Issa came at the beginning of October and three times before the 9th of that month. Yet he mode no complaint and only sent for advice to the clerk of the Vakil for the opposite side and as a result asked for the proffered money. All that he was offered was a loan of Rs. 250 for one year without interest. He had been lent Rs. 300 before without interest by accused and says that was because he did clerical work for them. He still owes them money. He says the evidence solicited from him was that he had been told by Nasur of the divorce. The charge states that he was instigated 'to wear falsely that in his hearing or presence Nasur Karmali at the French Hospital had divorced his wife' etc. He refused apparently only on the ground that he did not want to give a written statement of the evidence recpuircd. He says the day that Issa called, Mahomad Dhala came to see him about indents but had no conversation with him then. Mahomad Dhala says Issa urged Abdul Rasul in his presence to give evidence of the divorce in the Hospital and Abdul Rasul said he would do so if Issa would bring the money first and refused only when Issa asked Abdul to give the evidence in writing. The evidence and conduct of Abdul Rasul do not impress us favourably. The corroboration by Mahomad Dhala is, we think, quite worthless. As to Abdul Rasul himself, the Sessions Judge observes, that he is a partner in a firm of merehants and of good education. These matters even if relevant do not appear on the record. It does on the other hand appear from his own recorded admissions that he has been under the necessity of aecepting a petty loan of Rs. 300 from the accused of which Rs. 200 still remain unpaid. The Sessions Judge points out that the interview with Issa at which the bribe was refused because a memo of the evidence to be given was required, that is to say the interview 'which Abdul and Mahomad Dhala say took place at the former's office, was described by Abdul in his deposition before the Magistrate, as having taken place in the sheet. It is (rue that, ay the Sessions Judge observes, the defence did not ask for an explanation of this contradiction. But a criminal trial is not a litigious proceeding and when there is unmislakeable conflict in the evidence of a witness for the prosecution the alternative most unfavourable to the accused is not to be accepted as of necessity, merely because the witness has not been asked which version he prefers. The Sessions Judge appears to have inferred that Issa must have solicited Abdul Rasul. in Mahomad Dhala's presence, because Abdul told Mahomad I Dhala to see Mr. Recce's clerk about it. Rut Abdul Rasul's account shows that Mr. Recce's clerk had been informed before that interview as it was in consequence of his advice Abdul Rasul says he asked for the money, a demand met by Issa's requiring the evidence in writing. Abdul Rasul. does not leave it as a matter for inference from the information given to Mr. Recce's clerk that Mahomad Dhala must have been present at the refusal of the bribe. For he himself says he told Mahomad Dhala to go to Mr. Recce's clerk for advice and the next clay asked for the money, was told to give a memo in writing and then refused : and neither Abdul nor Mahomad Dhala suggests that Mr. Reece's clerk was asked for advice after the bribe had been refused. Moreover Abdul Rasul distinctly says he had no conversation with Mahomad Dhala on the day that he came to see him when Issa called. There seems to be therefore no room for the cxplanation suggested by the Sessions Judge of the important contradiction which he has noticed in Abdul Rasul's depositions, a contradiction which discredits not only Abdul Rasul's evidence but also Mahomad Dhala's corroboration.
21. We are unable to accept the suggestion that any corroboration of value is afforded to the witness by the fact that they told other persons of the offers made. Their present statements arc too in consistent to warrant the assumption that they have been consistent from the first. Nor can we understand the suggestion that it was for the defence to call Mr. Reece to prove that the story had not been repeated to him. That: the witnesses are of different religions races, oecupations and neighbourhoods, can afford no guarantee against collusion. The consultation with a clerk engaged on the other side and the long delay in disclosing to the autherities the criminal overtures made, indicate a. preference for intrigue rather than desire to aid the cause of justice. And ii it be true that Kassam Rahimtulla was informed early in October of the illegal Offorts that were being made and urged a report to the authorities; it is still more discreditable that the matter should have been concealed until Mr. Nariman, the Clerk of the Court. had insisted on its being brought to light.
22. Holding as we do that the evidence is that of needy and uncorroborated accomplices under obligations to the accused, and unable to give consistent accounts on any one detail of their stories, we must allow the appeal set aside the convictions and sentences and direct the fines, if paid, to be refunded.
23. We now proceed to deal with appeal No. 151.
24. The charges against the accused in this case at the Sessions trial are that each of them on or about the 15th October 1905 instigated one Sadik Ismail to give false evidence to the effect that he had gone to the French Hospital and there heard deceased Nasur ask the present accused Issa if he had given a letter to one Jan Hahomad Hirji and that thereafter Sadik and Issa had met Jan Mahomad Hirji at the Palace Square and given him a letter saying it was so given at Nasur's request.
25. In the original charge the second appellant Issa was also charged with having instigated Sadik in March 1903 to give the above evidence in the probate case then pending. But this charge was dropped at the trial, apparently on technical grounds.
26. Sadik Ismail the person mentioned in the charges, it appears, gave evidence in the probate case 1903 to the effect stated in the charges. He was summoned again in 1905 to give evidence on the same point in civil proceedings then pending. He was examined on 21th October 1905 and then repudiated as false and suborned, the evidence he had given in 1903 in the probate case (page 67) and added that the accused had both pressed him to repeat that evidence and had taken over a claim which one Chhabildas had on the witness in 220 order to give them a hold over him, offering him favourable terms if he consented and threatening him with serious consequences if ho did not. Sadik Ismail deposed that he refused to perjure himself as he has now a wife and children.
27. Mr. Murison, before whom as a Civil Judge this deposition was made, purports to have taken cognizance of the case as a Magistrate under Section 190 (c) of the Code of Criminal Procedure, on the statement in the deposition and thereon issued warrants for the arrest of the accused.
28. Initial objection is taken that sanction was required under Section 195, Code of Criminal Procedure and it is urged that action by Mr. Murison as District Magistrate was not tantamount to a sanction by him as a Civil Judge.
29. We think that the action taken by Mr. Murison was in effect action which as a Civil Judge he was perfectly competent to take under Section 478, as the offence was brought under his notice as a Civil Court in the course of a judicial proceeding. And the mere fact that ho unnecessarily referred to Section 190 (c) as the authority for his procedure, can neither have prejudiced the accused nor affected the validity of his action. As Civil Judge he could either transfer the case to himself as a Magistrate for inquiry, or completing the inquiry as a Civil Judge, commit the accused. We think there was no real irregularity and that the question of Section 190(c) is immaterial and that Section 537 would cover the formal defect alleged if indeed it exists.
30. We regret to find that there is more ground for certain other objections that have been raised. And specially with reference to the citation in the Sessions Court's judgment of certain passages recording Mr. Pigott's opinions in other proceedings. We think, however, that quite apart from any influence the views of another judge or information derived from other cases may have had in the Sessions Court, there are in this case incontestable circumstances sufficiently strong to leave a Court no alternative but to hold Sadik's story a true one.
31. It is objected that he is an accomplice and uncorroborated.
32. No doubt ho was an accomplice in respect of the evidence given by him in 1903. But it is impossible to say ho is an accomplice in respect of the evidence which he refused to give in 1905.
33. His admission of his guilt in his former statements, it is true, shows that his character has notalwaysbeen unimpeachable and that his story should not be accepted without corroboration. But the evidence of Usman Dada and Usuf, both of whom are unim-pugned by the defence and whose presence on the occasions to which they depose is admitted by the accused, leaves no room for doubt that Sadik was solicited in October 1905, by the accused to give evidence on their behalf. It is contended that no independent testimony in this case has shown that the evidence Sadik was asked to give was false. And this is correct so far as direct evidence is concerned. As to Sadik's knowledge that what ho was asked to say was false, we have only his own testimony. But wo think he has given the strongest grounds for believing that his present statement is true. His previous deposition is of no force to contradict him. For he has produced documentary evidence, Exhibits L.M. and N, of the strongest character to show that it was given under the pressure of an influence obtained over him by the accused, the existence of which the accused denied and could not explain and which they could have had no object in denying had it been unconnected with any guilty action on their part. He has also demonstrated the acquisition by the accused of a further hold over him at the time when his evidence was again required. The transaction evidenced by Exhibit K appears to have had no assignable motive except that stated by Sadik, viz., the design of the accused to influence the evidence which as Chhabildas' shows was under discussion at the time. Chhabildas appears to have been quite content that Sadik should remain his debtor and has, he admits, since made a further advance to him. The transfer to accused of the debt due by Sadik to Chhabildas with a remission of Rs. 50 and without interest for a year, coupled with the evidence of Oosman and Usuf as to pressure by accused to induce Sadik to give evidence which he was unwilling to give, is strong confirmation of Sadik's story and had the evidence solicited been true it was certainly to Sadik's interest to give it rather than to denounce his own perjury committed in the probate proceedings. It is suggested that in repudiating his former evidence he was influenced by the arrest of the accused on 21st October. But this arrest could not have influenced Sadik in rejecting the offer of accused at the time to which the evidence of Oosman Dada and Usuf relates. And assuming that Sadik was alarmed at the proceedings taken against the accused, that would hardly account for his repudiation of his own previous evidence if he knew that previous evidence was true.
34. We therefore think there is no reason to question the genuineness and good faith of the evidence given By Sadik in this case, confirmed as it is by the documentary evidenee and by the statements of Usuman Yusuf and even Chhabildas as to the efforts of the accused to secure his testimony in their favour. The statements made by the accused to explain their transactions with Sadik appear to be thoroughly and tiansparcutly disingenuous and suggest that no explanations of those transactions can be given except the consistent and circumstantial account which has been given by Sadik.
35. We avoid discussing the views which the Sessions Judge has expressed as to the goneral character ho ascribes to the accused and the comments cited by the Sessions Judge from the judgment of another Judge in other proceedings. Apart from such irrelevant and inadmissible matter, we think it is established beyond the possibility of reasonable doubt that the accused solicited Sadik to give evidence on their behalf and deliberately provided themselves with the means of exerting pressure on him to that end. and persisted though they knew that Sadik repudiated their suggestions in spite of the inducements they held out. And we see no reason for distrusting in these circumstances the deposition of Sadik in the Sessions Court that he refused to give the evidence suggested, because it was false.
36. We, therefore, confirm the convictions and sentences passed by the Sessions Judge in this case.