1. Saqlain Ahmad, an employee in the office of the Municipal Board, Budaun, was convicted by a Special Magistrate, 1st Class, and sentenced to six months' rigorous imprisonment and a fine of Rs. 50 under Sections 506 and 507, I.P.C. His appeal in the Court of Session at Budaun was dismissed. He has applied to this Court in revision. The circumstances which led to the prosecution of the applicant are as follows:
2. An anonymous letter was received by post on 20th June 1934, by Mr. Abdur Rashid Khan, Reserve Inspector of Police, Budaun. The contents of the letter are of a scurrilous character abounding in filthy abuse and threats. If the applicant is found to be writer of it, the maximum sentence provided by law cannot be considered to be too severe. On 30th June 1934, the Inspector-General of Police, U.P., received an anonymous petition which purports to ventilate a number of grievances against Mr. Abdur Rashid Khan in respect of acts done by him in his official capacity in relation to his subordinate constables in the police lines. The petition is not couched in abusive language like the letter addressed to Mr. Rashid himself. The Inspector-General forwarded the petition to the local Police. In the meantime Mr. Rashid had also taken action on the letter received by himself. The Police started investigation in respect of both communications and the envelopes in which they had been enclosed. Sub-Inspector Majudullah Khan, who took up the investigation, showed the letter to one Safiullah and another person, who, according to the evidence of Majidullah Khan, expressed the opinion that Saqlain Ahmad was the writer of the two letters. Acting on that information and possibly the statements of witnesses who were subsequently examined at the trial and on the report of the handwriting expert, Saqlain Ahmad was prosecuted.
3. The evidence adduced against him consists of the statements of four witnesses: Abid Husain, Mohammad Ismail, Zahur Ahmad and Riaz Ahmad, all of whom said that they were acquainted with the handwriting of the applicant and that, in their opinion, the two letters were in his handwriting. The police could easily obtain documents admittedly in the hand-writing of the accused. These papers and the questioned documents were sent to the hand-writing expert who made photographic enlargements of certain words which were similar or dissimilar in the two sets of the documents. Mr. Stott, the hand writing expert, who examined the documents in question, gave evidence to the effect that, in his opinion, the petition received by the Inspector-General of Police and the letter received by Mr. Abdur Rashid Khan were in the handwriting of the person who wrote, the documents sent to him as exemplars, that is, the documents admittedly written by the applicant. There was no other evidence of any kind, circumstantial or otherwise, from which an inference of guilt could be made against the applicant. Relying on the opinion of the hand-writing expert and the evidence of the other witnesses, the Magistrate found the applicant guilty and sentenced him as already stated.
4. The question arising in the case is not a simple issue of fact on which a finding can be recorded only because the witnesses examined in support of it are believed or disbelieved. I have allowed the learned Counsel for the applicant and the learned Assistant Government Advocate to address meat length on the question whether the opinion the evidence, such as we have in the present case, is sufficient to warrant a definite finding that the applicant is the writer of the two documents. This course was rendered more necessary in view of the learned Sessions Judge's view of the evidence as disclosed by his judgment. To take the evidence of the witnesses other than the hand-writing expert, P.W. 1 Abid Husain is a fellow employee of the accused in the Municipal Board, Budaun. He has been in the service of the Board since December 1932, while the accused was appointed in January 1933. It may be accepted that the witness and the accused have been employed under the same administration for over two, years. The witness is a Lighting Inspector and Tax Superintendent, while the accused is a clerk in the Municipal Office. It cannot be denied that Abid Husain must have had many opportunities of reading papers purporting to have been written by Saqlain Ahmad and of seeing the latter write in his presence. At the same time it is not a case in which the witness and the accused may be employed in the same office and have occasion to see each other write almost every day.
5. The degree of acquaintance with one another's hand-writing will affect the value, though not the admissibility, of the evidence of the witness. Abid Husain did not state in examination-in-chief as to why he thinks that the questioned documents are in the hand-writing of the accused. All he says is that in his opinion the documents in question appear to be in the hand-writing of the accused. Most of the cross-examination, which is extremely meagre, is devoted to showing that there was ill-feeling between Abid Husain and the witness. The witness admitted that the accused complained against him and one Samiuddin, as recently as March 1934. Samiuddin and the witness are near relations and the former was prosecuted on a complaint made by the accused. Like the Prosecuting Inspector, the pleader who defended the accused did not consider it worth while to elicit from the witness the grounds on. which his opinion was based. The learned Assistant Government Advocate contended before me that it was the duty of the defence to impugn the opinion expressed by the witness in examination-in-chief by cross-examining him as to the grounds on which the witness held the opinion deposed to by him. While the force of this contention must be admitted, the fact remains that the Court is not in a position to assess the value of the opinion as evidence given by the witness, except so far that the witness and the accused were not on good terms and the opinion of the witness cannot but be considered to be biased. The second witness, Mohammad Ismail, is an ex-Police Sub-Inspector, and professes to be acquainted with the hand-writing of the accused. In his opinion the questioned documents are in the hand-writing of the accused. He does not state what opportunities he had of becoming acquainted with the hand-writing of the accused. Nor does he give the grounds on which he bases the opinion deposed to by him. Nothing of value has been elicited in cross-examination. He denied suggestions of ill-feeling against the accused, who is a Municipal Librarian, and the witness is said to have done something in the library to which the accused took objection.
6. The third witness is Hafiz Zahur Ahmad who was a Municipal Commissioner and a member of the Education Committee till 1934. His familiarity with the handwriting of the accused must be admitted. The extent of it, however, does not appear from the evidence. In his opinion also, the two documents are in the handwriting of the accused. He was cross-examined at considerable length and it was elicited that he is the husband of Samiuddin's sister and that the ill-feeling between Samiuddin and the accused has, in all probability, affected the impartiality of the witness. He is also related to Safiullah, to whom the questioned documents had been shown by the police before action was taken against the accused, and who is alleged to have then expressed the opinion that they were in the hand-writing of the accused. But the evidence of Safiullah did not support the prosecution case and he was lightly treated as a hostile witness. The learned Assistant Government Advocate argued that Zahur Ahmad's evidence should not be discounted by the fact that he is related to Samiuddin as his relation, Safiullah appears to have favoured the accused. The cross-examination of Zahur Ahmad however shows that he is very much interested in his wife's brother, Samiuddin, for whom he gave evidence in a case under Section 324 and 452, I.P.C., and in the case to which reference has been made previously. Like the other witnesses, he is silent as regards reasons which led him to think that the two documents in question are in the hand-writing of the accused. The last witness, Biazul Hasan, is the Education Superintendent in the Municipality of Budaun. He has kept that position since 1931. He must be acquainted with the hand-writing of the accused. In his opinion the English writing on the envelopes and certain admitted English writings of the accused are in the hand-writing of the accused. Nothing of any value has been elicited in cross-examination. It does not appear from his evidence also as to what common characteristics of the questioned writing and the admitted writing have influenced his opinion, which he expressed in giving his evidence.
7. I have laid some stress on the absence from the evidence of the four witnesses referred to above of the grounds on which the opinion expressed by them is based. In the absence of any specific grounds the witnesses should be considered to have merely made a general comparison between the writings in question and the impression in their minds of the writing of the accused with which they are familiar. Evidence of this kind is nothing but opinion expressed by the witnesses after comparing the writing in question with a certain image in their own mind of the writing of the accused. The process by which the witnesses arrived at a conclusion is similar to the process which any other person well acquainted with the characters in which the questioned documents are written would employ in arriving at his conclusion, that is, by comparing the writing in question with the writings admitted or proved to be those of the accused. The learned Magistrate is presumably well acquainted with Urdu characters; and I think that the learned Sessions Judge is also in the same position. They do not seem to have addressed themselves to the question whether the documents are such as would appear to a man well acquainted with Urdu characters, on a comparison with the admitted writing of the accused, to be in the hand-writing of the same person so far as their style and general characteristics go. I have carefully examined the documents in question and compared them with the admitted writing of the accused, and am of opinion that the petition addressed to the Inspector-General of Police and the letter received by the Reserve Inspector are not similar to each other in their general characteristics and styles and that neither of them is similar to the writing admitted to be that of the accused as regards the style of writing and general characteristics. So far as the evidence of the witnesses is based on the style and general characteristics of the questioned documents, and wholly apart from any special features which the witnesses did not refer to, I am unable to accept it as reliable. Their evidence is further discounted by the fact that many . of them, if not all, are not well disposed towards the accused. In dealing with this point the learned Sessions Judge has observed: Carried to its logical conclusion, such an argument would make the testimony of one colleague against another, in ordinary proceedings, absolutely worthless; and the result would be the bringing to a standstill all business. No one would dare to make a report for fear of being taken for an enemy, since the word 'enemy' would ipso facto make the report worthless.
8. I am unable to appreciate the view which has prevailed with the learned Judge. The accused has scores of fellow employees, who must be acquainted with his hand-writing; and if the prosecution choose to produce only such of them as are not well disposed towards him, the Court must, take into consideration the possible motive which the witnesses may have in expressing an opinion which they did not in fact hold.
9. Coming to the evidence of the handwriting expert, we are not faced with the same difficulty. Mr. Stott has enabled the Court to Judge for itself the grounds on which he has based his conclusion. Exs. Y-11 and Y-12 are two enlarged photographs made by him of certain words extracted from the two documents in question, the documents admittedly written by the accused and two documents written by him at the instance of the Magistrate before whom the enquiry first took place. I attach less weight to Ex 11-A which contains in juxtaposition the words taken from the documents purposely written by the accused for the purpose of this case as he might have attempted to disguise his hand-writing. Ex. A-12, which contains enlarged photographs of certain words occurring both in the questioned documents and the documents written by the accused at a time when there was no controversy, are more reliable. Mainly on a consideration of these words the handwriting expert has arrived at the conclusion that the questioned documents are in the hand-writing of the accused. Mr. Stott admitted that neither the petition addressed to the Inspector-General of Police nor the letter received by the Reserved Inspector betrays any indication of the writer having attempted to disguise his hand-writing. There can be no doubt whatever that the writing of the accused, taken from the Municipal Office and made in the ordinary course of business, cannot be suspected of being disguised. Mr. Stott had to admit, in cross-examination, that several letters, in which the words shown by him in juxtaposition terminated, are quite dissimilar. I have carefully studied the photographed words and find that the points of dissimilarity are more than the points of similarity.
10. The similarity consists of such characteristics as will be found in a large percentage of those who write Persian characters in the 'shikast' form. For instance, the half (Ain), which is common to the two sets of documents, is frequently used by Urdu writers. There are two features which have convinced me that the conclusion of the expert if not right. The letter (Fay) wherever it occurs in the questioned documents, has a broad termination, as the result of firm pen pressure at the end, while the same letter, wherever it occurs in the handwriting, admittedly that of the accused, tapers towards the end terminating in & point, indicating a sudden pen-lift, when the writing of the letter was finished. Another significant feature is that the word (tabey) is written in the questioned document as (tabey) which is a wrong spelling. The same word where it occurs in the papers written by the accused is correctly spelt and is written as (tabey). Similarly in the English writing on the questioned document the letter is quite different from that admittedly written by the accused. The accused correctly writes 'Hollins' while on the questioned document it is misspelt as 'Hallins'.
11. Mr. Stott admits that he is not acquainted with the Urdu characters. He cannot read or write them. This will not however make him incompetent as an expert in hand-writing. But he is undoubtedly not possessed of an advantage which one well familiar with the Urdu characters has in comparing two writings in their general style and characteristics. So far as Mr. Stott's evidence is based on a comparison of words shown by him in juxtaposition, I have no hesitation in. saying that it is not of great value. It was argued before the learned Sessions Judge, with reference to the dissimilarities shown by Ex. A-12 and admitted by Mr. Stott that the questioned documents are not in the hand-writing of the accused. The learned Judge brushed aside this contention, remarking ' Naturally the writer of letter Ex. A would like to conceal his familiarity with the Urdu language.' This reason is, in my opinion, untenable in view of Mr. Stott's evidence that he could not detect any attempt on the part of the writer of the questioned documents to disguise his hand-writing. It is in the highest degree probable that if the writer had made a deliberate attempt in that respect, he would not only deliberately misspell words but also would have disguised his hand-writing. Apparently the writer, whoever he was, was certain that his identity could not be traced. The value of the expert evidence depends largely on the cogency of the reasons on which it is based. In general it cannot be the basis of conviction unless it is corroborated by other evidence. In the present case the evidence offered in corroboration, namely, the evidence of the witnesses is itself unsatisfactory.
12. The expert evidence is further discounted by the fact that the impression which the questioned writing produces on the mind of one conversant with the Urdu characters is quite different from that produced by the admitted writing of the accused. There is absolutely no evidence of a circumstantial nature from which an inference of guilt can be drawn. The contents of the two documents clearly show that they were written by or at the instance of subordinate Policemen or men having some grievance, real or fancied, against the Reserve Inspector. An attempt was made by the prosecution to drag in the name of one Miss Chand, and insinuations were allowed to be made behind her back. This was wholly unjustified. The question of motive in a case of this kind is not very material. Even if the accused had no personal grudge against the Reserve Inspector, it was not impossible for him to have written the letters at the instance of or for the benefit of his friends in the Police force. The main question however is whether the evidence establishes the fact of the accused being the writer of the two communications. I am not satisfied that this has been established. Accordingly I allow this revision, set aside the conviction and sentence passed on the applicant and direct that his bail bond be discharged. The fine, if paid, shall be refunded.