P L D 1957 Supreme Court (Pak (PLP)

CORNELIUS, J.‑

This judgement will dispose of Criminal Appeals Nos. 27 and 28 of 1957, which are brought by the same person by name M. E. N. Rewail, against convic tions and sentences awarded on multiple charges under section 420, P. P. C., in two separate trials by jury. He appealed without success in the Dacca High Court. In material respects the six charges upon which he was tried in the two cases are closely similar and it is therefore possible to deal with both the appeals in a single judgment. The offences of cheating charged against the accused were allegedly committed in the course of medical practice as a specialist in "sexual and nervous diseases and the restoration of health, vigour and vitality." The antecedents of the appellant appearing on the record are as follows. He belongs originally to a place now included in East Punjab in India, and comes of a family of hakims. His father was a hakim and he himself commenced the practice at an early age. He claims to have obtained registration in Calcutta as a hakim from the General Council and State Faculty of Unani Medicine for Registration of hakims (Exh. X) (Exh. 1 in the second case). There is also on the record a certificate produced by him purporting to be issued by the Pioneer International Medical College, Delhi and to be a qualification for practice as a doctor in homeopathy. The appellant claimed to have practised as a unani hakim in Calcutta and thereafter in Bombay, before commencing practice in Dacca about the month of August 1951. It appears that by about the middle of 1952, he had deposited a sum of Rs. 50,000 in an account which he had opened with Lloyds Bank in Dacca. Allowing for personal and other expenses, such as the proved purchase of a car for Rs. 14,000, it becomes clear that his practice could be described as both extensive as well as lucrative i. e., that he drew large fees from a large number of patients. In the present trials, only eight patients are mentioned and charges relating to two such persons were preferred in each of the cases. The remaining four patients were examined, as stated by the learned Judges in the High Court, "to show that the intention of the accused on the particular occasions in question was dishonest and fraudulent". The total amount received from these eight persons is of the order of about Rs. 17,000 of which sum Rs. 11,000 are alleged to have been paid by one patient alone. Shamsuddin Khan by name , who is not among those alleged in the charges to have been cheated. The record of the case shows that Shamsuddin Khan's evidence was interrupted by sobs and other expressions of grief, well calculated to create a strong impression upon the minds of the jury. This was particularly unfortunate since his dealings with the accused did not form the basis of any charge. His production would therefore appear to have resulted in an appreciable measure of prejudice being created in relation to the cases actually charged. These cases were on the facts commendably simple, and if the principles governing the obligations of a medical adviser towards a person whose ailment he undertakes to treat had been sufficiently borne in mind by the learned trial Judges, and if these principles had been placed before the jury, the result in each case would, in our opinion, have probably been different from that actually achieved. Failure to appreciate, at the earliest possible stage, the precise nature of the deception which was attributed to the accused appears from the charges themselves. The first charge in the case out of which the first appeal arises reads as follows:‑ "That you on or about the 30th August 1951, cheated K. Rahman by dishonestly inducing him to deliver to you a sum of Rs. 450 which was the property of the said K. Rahman and that you thereby committed an offence punishable under section 420 of the P. P. C." The second charge in this case relates to one Muhammad Sharif who is similarly alleged to have been cheated out of a sum of Rs. 100 on the 22nd November 1951. The third charge relates to the same person K. Rahman who is mentioned in the first charge, from whom a further sum of Rs. 100 is said to have been taken on the 10th December 1951, by cheating. In the second case in exactly the same language it is said that on the 27th April 1952, Amir Hussain Dewan was cheated and deprived of a sum of Rs. 450 and the second and third charges relate to one Muhammad Sawar from whom sums of Rs. 139 and Rs. 170 are said to have been taken by the method of cheating on the 10th April 1952, and the 27th February 1952, respectively. (It should be noted that the jury returned a verdict of not guilty on the charge in respect of Rs. 139 allegedly taken from Muhammad Sawar on the 10th April 1952). Plainly the charges are defective, inasmuch as they fail to alleged the manner of the deception practised by the accused person. In each case, the learned trial Judge was at great pains to explain to the jury in general terms, the meaning of the offence of cheating as defined in section 415, P. P. C. It was brought out in the charges to the jury that there must be a fraudulent representation that a certain fact exists when indeed it does not exist, in order to supply the element of deception. It was made clear that a fraudulent or a dishonest intention at the time of the commission of the act is a necessary ingredient of the offence. But at no stage was any attempt made to state the exact nature of the alleged deception. It is true that towards the close of the charge to the jury in the first case, the learned trial Judge gave the following directions:-- "It is for you to consider whether the accused was really trying to cure the diseases by giving medicines or was squeezing the money under pretext of medical treat ment." And in the second case, the direction given at the close of the charge to the jury was in the following words: "In the light of this evidence you should consider whether the accused dishonestly induced the complainants to part with their money under a false representation that he was treating them medically or whether he w as bona fide physician giving the complainants treatment in the honest belief that his treatment would do them good." If the charges to the jury had been confined to analysis of the evidence relating to the particular offences alleges against the accused, such a general indication might perhaps have been sufficient, though it would have been given more effectively at a much earlier stage. What is found is that in each trial, the learned Judge dwelt at length on certain aspects of the accused's conduct, unconnected with the actual treatment of any of the complainants, which bore the appear ance of falsity. These matters will be examined more fully later, but it is relevant to say here that neither of these learned Judges took the precaution of warning the jury against the danger of transferring the colour of these extran eous matters to the consideration of the precise facts on which their verdict was sought. The point was raised in the High Court in a ground of appeal which was expressed as follows:‑ For that the ingredients of an offence under section 420, P. P. C., had not been made out in the case and the learned Judge did not properly explain to the jury to appreciate these elements." The learned Judges of the Appellate Bench in a brief discussion which makes no mention of the facts, came to the conclusion that the directions of the learned trial Judge on the law applicable to the case were exhaustive and correct when read as a whole, and concluded that the ground of appeal had not been made out. Their final conclusion regard ing the conduct of the accused is stated in the following words at the conclusion of their judgment against which Criminal Appeal No. 27 is directed:‑-- "This case discloses a sordid story of an unscrupulous mountebank who by practising a most wicked deception played on the credulity of suffering humanity. The diseases which the appellant pretended to cure were of such a character that those suffering from them would often be prepared to spend all that they have got to be free of them. The method adopted by the appellant reveals a cool, calculat ing and cruel squeezing out of people who were in the grips of a most distressing malady. Those who practise such deception are a menace to society and they deserve the most deterrent punishment that the law can impose on them". On proper examination of the case in the light of what we find to be the correct principles governing the duty of a medical practitioner towards his patients, we have to say with regret that the expressions reproduced above go beyond the necessities of the present case in a marked degree. There are certainly aspects of the present case which are calculated to arouse suspicion regarding the bona fides of the accused. It appears that he has adopted a number of different names, in different places. That fact might have been an element to be taken into account in determining whether his treatment of any of the four patients whose cases were specifically before the Court was a mere colourable pretext, the real object being to extract money from them. But the record does not show that the accused ever had anything to conceal by chang ing his name, e.g., a previous prosecution. He explained that he had a number of brothers who also practised as hakims, and often in the same place as himself, and that it was in order to distinguish his professional description from those of his brothers that he adopted different names from time to time. There is no evidence to show that this explanation is false. Next, some measure of suspicion attaches to the homoe pathic certificate from the Pioneer International Medical College, Delhi. A great deal was about this certificate to the jury in each of the two cases. Interpolations, erasures and corrections appear on its face, rendering its authenticity doubt ful, yet none of these has been shown to be the work of the accused himself. He states that this certificate is a duplicate which he obtained to replace a lost original and there is nothing on the record to disprove this statement, or to show that this plainly defective piece of printing and writing is not the document which he received as a duplicate from India. But a more important ground for discounting almost totally the value which this certificate possesses as evidence is that in none of the four cases charged did the accused even attempt to treat his patients by the homoeopathic method. In each case the mode of treatment was that of a unani hakim and therefore the relevant certificate was that of registration as a hakim by the Bengal General Council and State Faculty of Unani Medicine. It seems clear that an element of prejudice was imported into the case by the stress laid on the defects appearing in the certificate of homoeopathic qualification. It is clear also that the prejudice thus caused was an addi tional factor operating on the minds of the jury in each case, in their estimation of the Unani certificate, as to which we shall presently have more to say. Other indications of deception to which reference was pointedly made in each case in the charge to the jury, may be briefly mentioned. It was said that no person of the name Rewail was ever registered with the East Bengal Council of Medical Registration, and that may be true, for the accused is not shown to have laid any claim to any qualification which would be accepted for registration by that particular council, which deals exclusively with doctors practising the allopathic system of medicine. The fact of major relevancy is that throughout the length and breadth of Pakistan, there are hakims and other indigenous physicians who profess to cure a few, or it may be all, diseases, and each of these persons has his patients and generally enjoys a certain reputation for efficacy in his particular line. We have not been informed of any law under which these indigenous physician, who in their own way undoubtedly help to relieve pain and suffering to a great extent, are required by law to undergo any test of their qualification for the practice of their profession, or to seek registration for the purpose. Indeed, there is a statement by Hakim Khurshid‑ul‑Islam, Principle of the Tibbiya College, Dacca that hakims in Pakistan do not require to be registered before they can practise unani medicine. The position regarding the unani certificate produced by the appellant could have been clarified more thoroughly than it has been by the prosecution, but enough appears from the evidence of Hakim Khurshid‑ul‑Islam, who gave evidence in both the cases, to show that in undivided Bengal, there was a body known as the General Council and State Faculty of Unani Medicine, and that one Hakim Zia‑ul‑Hassan was Registrar of that Council in 1944. The signature appearing upon the certificate produced by the appellant is that of Hakim Zia‑ul‑Hassan, in English. Hakim Khurshid‑ul‑Islam said that to his knowledge Hakim Zia‑ul‑Hassan used to sign his name in Urdu. He was unable to identify the signature in English on the certificate. On the face of it, the certificate has the appearance of genuineness in all respects, including its age. The evidence of Hakim Khurshid‑ul‑Islam serves to confirm its genuineness to a great extent and it does not appear to be a good reason for doubting the authenticity of this document that the signature upon it has not been proved by direct evidence to be that of Hakim Zia‑ul‑Hassan. The question of its authenticity was of crucial importance to the case. The answer to this question determines the further question whether the accused was a medical practitioner in any genuine sense. The manner in which the circumstances affecting the acceptability of this registration certificate were presented to the jury in the second case was as follows. After dealing at length with the doubtful features appearing on the face of the homoeopathic certificate, the learned Judge pointed out that the Unani Certificate was issued to one Hakim Muhammad Ekbal and not to any person of the name of Rewail. He then pointed out that in an issue of the Morning News of Calcutta, dated 11th March 1944, there was an adver tisement of one "Dr. H. M. A. Narang, B. Sc., M. B., B. S.," and went on to suggest that this referred to no other person than the accused himself. The following extract from the charge is of importance on this point:‑-- "In this connection I may draw your attention to the fact that though the certificate of registration purports to have been issued to Hakim Muhammad Ekbal in 1944 the accused practised at Calcutta in that very year under the name of Dr. H. M. A. Narang, B.Sc., M.B., B. S. This will appear from the several advertisements given in the Morning News of Calcutta during March 1944. In the course of his examination under section 342, Criminal P. C. the accused has denied that he gave any such advertisement in the Morning News of Calcutta, but you can see for yourself the photograph of the accused printed in these papers along with the advertisement. (Advertisements in the Morning News shown to the jury). In the light of these circum stances you should consider whether the certificate of registration, Exh. 1 is a genuine document." It is difficult to conceive of a more misleading direction to the jury on a point which was of basic importance to the case. The accused had stated that the initials "ME." in his name stood for "Muhammad Ekbal". He had not admitted in that case ever having used the name Narang. Moreover, the registration certificate being dated the 1st November 1944, its authenticity could scarcely have been safely judged in relation to an advertisement which appeared eight months earlier in March 1944. The accused's statements that several of his brothers had been practising medicine along with him in the various towns which he bad visited, should at the stage have been brought to the attention of the jury. The further step of asking the jury to identify the accused as "Dr. H. M. A. Narang" with the aid of the picture appearing in the advertisement cannot be commended at all. That picture had been taken at least 11 years before the trial, a period it which marked differences in facial appearance should, in the ordinary course have taken place. Moreover, there was the possibility that the picture may have been of one of the F accused's brothers. These factors should have been placed before the jury at the same time as the picture, if it was to be used as evidence against the accused. As the matter was placed before the jury, they were left with no alternative but to con clude that the registration certificate was a ' fraudulent docu ment. In our opinion, the jury were clearly misdirected upon this point in the second case. In the first case, the direction in respect of this certificate is inextricably woven into the discussion of the homoeopathic certificate, and a misleading effect must necessarily have been produced by the emphasis laid on the patent features of ambiguity in the latter certificate, from which the unani certificate is altogether free. Therefore, while in the first case the jury were not expressly directed to find that the unani certificate was bogus, the direction given to them was such that they would be apt to clothe that certificate with the same elements of doubt as applied to the homoeopathic certi ficate in connection with which its features had been discussed before them. In the circumstances, we find misdirection of the jury in the first case as well. Then in both cases, it was placed before the jury that no medical books were found in the accused's clinic or in his house. As will presently be seen, the accused's method of treatment of cases of nervous and sexual debility followed on the mechanical side a standard routine of a type not requir ing reference to books. Moreover, it is common knowledge that indigenous physicians follow rather their instinct in the treatment of diseases, than any systematic pattern of treat ment based upon processes of inductive or deductive logic, scientifically applied. The acuteness and accuracy of the instinct varies greatly from physician to physician. It is an inherent quality which may be sharpened by practice. It appears to be a quality which can be transmitted from father to son. For the limited purposes of their practice, native physicians do not appear to require to perfect their natural capacity by the aid of study of books. It is sufficiently pre served and developed by the experience gained in actual practice. In more recent times, with the development of scientific research and its application on a large scale to the allopathic system of medicine, the common person is inclined to regard study of books, and the maintenance of tabulated records as an essential equipment of a doctor. Conditions applicable to the system of indigenous medicine which is widely practised, and is not prohibited by law, do not justify the conclusion that such practice cannot be either safely or efficiently conducted without the aid of book learning. There fore, to emphasise before the jury that no medical books H were found among the equipment of this particular doctor was Cleary calculated to create an unjustifiable prejudice in their minds and thus to operate as a misdirection. A misleading impression was also likely to be created on the minds of the jury by the emphasis laid on the fact that the accused wrote no formal prescription, in the modes stated, by Hakim Khurshid‑ul‑Islam to be in vogue among Unani Hakims. The accused did not claim to have received instruc tion in any. Tibbia College. His knowledge of Unani medicine derives from the fact that he comes from a family of hakims. It is common knowledge that the great majority of hakims in actual practice, do not write formal prescriptions. Many indeed cannot write at all. Again in both cases a long list of the medicinal substances taken from the accused's clinic and elsewhere was placed before the jury, along with the evidence of an allopathic doctor, stating their effect on the human system. Briefly it was declared that none of them was effective in venereal dis eases, or for increasing sexual capacity, except (1) cubeb, which is effective in cases of gonorrhoea but is not favoured as a medicine in this respect any longer, and cantharadine which has the effect of inducing erection of the male organ but, it was added, "usually without desire". Emphasis was laid also upon the small intrinsic value of medicines supplied to certain of the sufferers. Thus in the second case one Amir Hussain Dewan had been given certain powders and on analysis by Chemical Analysis it was found that one of these powders contained ironoxide and the other was only chalk. The learned Judge addressed the jury on this point in the following words :‑ "Complainant Amir Hussain Dewan appears to have got only ironoxide and chalk for Rs. 450 he gave to the accused." And in the same case, it was said:‑-- "Muhammad Sawar got a mixture of resin, coconut oil and vaseline for Rs. 139 which he paid the accused on 9th and 10th April 1952 as price of Ghee with which the accused promised to make an ointment for him". Also, in the first case, a good deal of emphasis is laid upon the report by the Chemical Analyst that an ointment given to K. Rahman proved to be merely glycerine on analysis. The Judge observed "this is the thing that K. Rahman got from the accused as a medicine after he had already paid the accused more than a thousand rupees." It is quite clear from the directions reproduced above that neither of the learned Judges who presided at the trials of the accused had a true conception of the functions of a physician particularly in the treatment of such difficult diseases as sexual and nervous debility. We may here deal with the allegation of the man Amir Hussain Dewan in the second case that the ailment which he took to the accused for treatment was merely dysentery coupled with a defective liver and dissention of the lower abdomen. These are not diseases of the kind which the accused professed to treat as a specialist. Amir Hussain Dewan's statement that he protested against the treatment of his sexual organ by the accused declaring that he only wanted to be treated for dysentery seems to us to be clearly disingenuous. The accused himself declared that Amir Hussain Dewan was a decoy patient in order to trap him. There is no direct evidence on this point, yet it is true that Amir Hussain Dewan only endured the doctor's treatment for some eleven days before going to the police. In that time, however, he had received direct attention from the doctor in the following forms viz. (1) consultation on the 25th April 1952, and application of a blister on his male organ after diagnosis of syphilis, (2) treatment of the blister for some seven or eight days, after receipt of Rs. 450 for the treat ment, upon a promise of curing "all ailments". (3) supply of 32 powders and (4) daily examination and bandaging of the sore on the male organ. It was when the accused offered to commence a more effective form of treatment on payment of a further sum which varied between Rs. 200 and Rs. 1,000, according to the potency of the treatment, that Amir Hussain Dewan protested and the accused took his protest badly and drove him out of his clinic. Thereupon Amir Hussain Dewan reported the matter to the police. Now, it is clear from the evidence that the system of treatment of sexual debility followed by the accused was based upon the creation of a blister upon the male organ with the aid of irritants. The theory was that through the blister, noxious fluids would pass out of the male organ, which would then be restored to health firstly by dealing with the sore and secondly by the provision of tonics calculated to strengthen the nerves. To those who accepts the modern technique of blood‑examination, and the isolation of viruses and bacilli, this theory may appear laughable, and they may immediately reach the further conclusion that any person who put this theory into practice is an impostor, in the sense that he does not believe in the efficacy of the treatment at all. From that point it is but a short step to the further conclusion that if such a person takes money for applying this treatment to a patient, there is criminal deception, and he is guilty of cheating. To argue in this wise is to ignore the fact that such a method of treatment is still undoubtedly prevalent among the people of this country. There is the direct and valuable evidence of Hakim Khurshid‑ul‑Islam on this point in the following words‑ "Very often we give gild for use on male organ". Tila means an irritant substance capable of creating a blister. In his statement at the trials, the accused gave a clear description of the treatment which he followed, making no secret whatsoever of his belief regarding its efficacy. It thus appears that the treatment which he applied was not peculiar to himself. It is a well‑tried and commonly practised mode of treatment. It may be based upon what scientific doctors of the allopathic school regard as a falsity, where the disease in question is due to a virus of some kind, which could not be destroyed by the mere production of a blister. But it must be remembered that the cases which the accused professed to be able to treat were not exclusively cases of venereal diseases. In fact, although it is said that he declared to some patients who have given evidence in the present case that they were suffering from venereal diseases, there is no proof by any scientific method that this was the case. All of them were however cases of definite sexual weakness, and as to such cases, it is common knowledge that the treatment is both difficult and delicate. It is difficult because no specific remedies can be indicated, although a great many medicines are in fact on sale regarding which claims of varying strength are made on the point of their efficacy. To great extent, the treatment of impotence is based upon psycho‑therapy, of which the principal essential might be said to be the creation of the right degree of con fidence in the minds of the patients. This can be done in a variety of ways and not only in the manner practised by modern psychiatrists. It is true that sexual weakness and failure constitute a gold‑mine for quacks. When faced with impotency a man will pay any price, and try every resource, hopeful or otherwise, in order to be saved from the sense of shame and inferiority which it implies. This profound feeling is exploited in many quarters. A great deal of trash is pro duced and patented as specific for the treatment of this infirmity. And there is no doubt that a large number of hakims and others profess to treat the condition, and make their livelihood thereby, though few indeed advertise them selves in the uninhibited terms employed by the present appellant. Yet, it would be going too far to say that every person who professes to treat such a condition, is an impostor, or that the medicines he uses are mere trash. The first and most important step in the treatment is psycho‑therapeutic, i.e., to gain the confidence of the patient, and it would obviously be pre judging the issue to suppose that when such a person advertises himself in glowing terms, or pro fesses to have cured a number of famous persons, or claims to employ medicines of high potency using precious metals or pearls, etc., in their preparation, he does so only for the purposes of perpetrating a fraud The gaining of the patients, confidence is not necessarily the precludes to the consumma tion of a confidence trick in such cases. Among the non‑charged cases which the prosecution adduced at each of the trials was that of Shamsuddin Khan, who paid Rs. 11,000 in all; for protracted treatment of debility, without, as he said, receiving any benefit. Yet, it is in evidence that over and above the fees charged, this man gave valuable presents to the accused, on two occasions. From this it may safely be concluded that the physician had both gained the patient's confidence and given him relief by his treatment. Shamsuddin Khan's explanation for the presents is that they were offered as inducements to the physician to continue his treatment, at concession rates, but this only confirms that he had confidence in the physician and a lively expectation of further relief at his hands. There seems no reason to doubt that among the number of patients from whom the accused drew the very consi derable income which appears from the rapid increase of his bank balance, the majority did not have occasion to complain in the manner of the eight patients who gave evidence at these two trials. It might be asked why none of them has been produced as a witness, and the obvious answer is that no self‑respecting person would willingly disclose in public such an affliction as sexual debility, least of all when the ordeal would have to be undergone for the benefit of another, namely the accused. Therefore, the admissions of a prosecution witness like Shamsuddin, possessed great value as evidence favouring the adoption of a uniform professional technique, by the accused, which was sometimes successful and, therefore, cannot be characterised as merely a colourable pretence of treatment. This aspects of Shamsud din's evidence was not presented to the jury at all. As regards, the nature of the medical substances found in the accused's possession, the adverse opinion which was emphasised in the addresses to the jury was that of doctors trained in a rival school of medicine, namely, the allopathic school. Despite the general prevalence of allopathic medicine, it would be far from correct to say that the indigenous doctrine and practice in the treatment of disease have been entirely swept away. Therefore, this condemnation of the substances found, as being ineffective in the treatment of the diseases in question must be regarded as irrelevant. Each system of medicine employs medicinal substances which are either unknown to, or not recognised by the other systems in vogue. Where such a substance is used by two or more systems, it may be used as a specific for one disease by one system and for quite a different disease by another. Or, if used in the treatment of the same disease, there may be marked differences in the method of use, e.g., as to concentrations It is common knowledge that in the homoeopathic and bio chemical systems, medicines are used in concentrations of infinitesimal strength, such as might be regarded in other systems as utterly useless. A pill of medicine prescribed by a doctor following either of these systems might easily prove on analysis to be pure chalk. Then as to the intrinsic ,value of some of the medicines given, it seems plain that the point was quite irrelevant to the genuineness of the treatment, as medical treatment. It is clear that the medicines were prepared individually for each patient. They were not mass‑produced articles which might be expected to sell at a standard price, bearing some relation to the market value of the materials which went into the manufacture. Where K treatment is individual, and a special medicine is concocted) for each patient, the major element in the value of the medicine must lie in the skill that enabled the physician to discover the particular substance whether pure or mixture which in the patient would produce the desired reaction. The intrinsic value may be practically nil. In the native schools of medicine, much use is made of dried herbs of wild growth in jungles, whose intrinsic, value in the market is precisely nothing. The point of view indicated in this and the preceding paragraphs, in relation to the allopathic estimate of the efficacy of the medicines found, and as to their intrinsic value, was not placed before the jury at all it is a view‑point which is directly relevant to the question of the genuineness of the treatment employed. On the contrary, these matters were pressed as affording proof that the treatment was itself, ineffective and the charge for it was altogether disproportionate to the cost, and placed in that light, they must necessarily have inclined the jury towards the view that the treatment was fraudulent and that to take large sums of money for it was criminal cheat ing. We may conclude our discussion of this part of the case by mentioning that on these points, only one question was put to the accused and that was in the second trial where it was put to him that all the medicines found in his possession were allopathic, and he replied that they were almost all unani. We find misdirection in this respect as well. In addition, it nowhere appears in either of the charges to the jury what they were instructed to find was the duty owed to his patient by a hakim who undertakes to treat such a condition as sexual debility. The general principle governing the duty of a physician towards his patient has been stated with clarity in an old English case, cited as Lamphiet v. Phipos (173 E R p. 581) in the following words:‑-- "Every person who enters into a learned profession undertakes to bring to the exercise of it a reasonable degree of care and skill. He does not undertake, it he is an attorney, that at all events you shall gain your case, nor does a surgeon undertake that he will perform a cure: nor dose he undertake to use the highest possible degree off skill" (Tindal C. J.) With this statement, we are in agreement, and we con sider that it was the duty of the trial Judges to direct the jury in this respect. In view of the accused's claim to be not only an experienced hakim but also a registered hakim, and in that sense a registered medical practitioner, and in view of the evidence that his mode of treatment of sexual debility is one that is in common use, viz., by the use of tila, an important question which should have been placed before the jury was whether he had failed in his duty as a physician, or performed it in such a manner as to justify an inference that he did not know his business at all, and his whole course of treatment was a mere fraud. If such an inference were possible then the fact that he took fees which were pitched fairly and in some cases, very high might sustain the charges of cheating. In the absence of such an inference, the charging of fees or their amount, would be irrelevant to the charge. For if the accused was acting as a doctor, in good faith, he was entitled to charge fees, and as for the amount of fee, that was a matter of free contract between him and his patient. Special factors appear e.g., the need for concealment of the patients' shame, the difficulties in the way of successful treatment, the value to the patient of the chance of restoration to full vigour, and these might serve to explain the high fees charged. In regard to his fees, the accused's attitude was one of candour, and he is supported by the patients who gave evidence against him. The rate charged for the initial treatment, viz., the creation of a blister on the male organ, and the subsequent treatment until the blister was healed, appears to have been uniform. The charge for the consequential treatment with tonics was separate, and the amount which varied from patient to patient, was always mutually agreed. In the case of K. Rahman no blister was applied, but an initial charge of Rs. 450 was made, for which 40 doses of medicine were supplied, to be taken once daily; in this period, the accused saw the patient about twice a week. A further course of treatment followed with a different medicine, for which the charge was Rs. 530, and this was succeeded by a third course, for which Rs. 960 were paid, in exchange for which a new medicine and some ointment for body massage were supplied. All this covered a period of some eight months, commencing August 1951 and ending April 1952. The accused did not say, nor was he required to say what medicines he gave this patient. It seems im possible to say that this long course of treatment was throughout an imposture or that he displayed less than reasonable care and skill in the treatment. It is equally difficult to assert that K. Rahman, continued the treatment, at such high expense, only because he was under a delusion induced in his mind by a course of deception practised by the accused. and not because he was gaining any perceptible relief thereby, If these‑ matters had been placed in this light before the jury, we are unable to say with assurance that they would not have found that there was bona fide course of medical treatment, for which fees were fixed and charged by mutual agreement. The other patient in the first case whose treatment formed the subject of the charge is Muhammad Sharif who paid altogether Rs. 450 for the treatment of debility, in instalments of which the first Rs. 100 was paid on the 22nd November 1951, and the only payment mentioned in the charge. In this case, a blister was created, and was regularly examined and bandaged up to the 15th of December 1951. Eventually, he was offered the advice that further treatment would cost him a minimum of Rs. 1,

000. This he declined to pay. Enough has been said already to indicate our opinion that the treatment which Muhammad Sharif received was not an experimental or adventitious treatment devised by the accused himself. There is no allegation of lack of reason able care and skill in its application. The patients alleged to be cheated in the second case are Amir Hussain Dewan and Muhammad Sawar. Amir Hussain Dewan's statement that he was only suffering from dysentery seems disingenuous, for if that were so, it was unlikely that he would have gone to this doctor, or submitted to the blister treatment for which he paid Rs:

450. He received powders for internal use, as well as attention to the blister for 7 or 8 days, before he fell out with the doctor through demanding tonics with out extra payment. The remarks made with reference to Muhammad Sharif's case apply here as well. Muhammad Sawar received the blister treatment, the powders, and attention to the blister for a week in return for his first payment of Rs.

450. A further charge of Rs. 200 was made for a special bandage, as the blister was not res ponding to the treatment first applied. This treatment was continued for 10 or 12 days, during which the blister was daily bandaged. A fresh course of treatment was then started on payment of Rs. 640, for which a medicine was supplied for internal use, and the blister was washed and bandaged daily. Finally a payment of Rs. 139 was made, for a more effective ointment, which was supplied and used for another 10 days. Muhammad Sawar declared that he obtained no relief from the entire course of treatment, but despite any assurances that the accused may have given during that period, it is clear that the mere failure of the treatment is C not by itself a proof of fraud or even of absence of skill or failure to apply reasonable skill and care. The same considerations arise in this case of a protracted course of treatment, obtained at high expense, as have already been mentioned in connection with K. Rahman's case which has been discussed above. It thus appears that in each of the two cases, the charge to the jury was vitiated by misdirection as well as by non‑direction on matters which were of direct importance to the charges preferred against the accused. Those charges were themselves defective and vague, since they failed to set out the mode in which deception was alleged to have been practised upon the alleged victims. Having ourselves examined the evidence in the light of what we consider to be the correct principles governing the obligation of a person who undertakes to effect the cure of a disease in another in a professional capacity, we cannot say that if all the relevant considerations had been properly placed before the jury, they would not have returned, in each case, a verdict of not guilty. The accused is accordingly entitled to acquittal, and we hereby acquit him in each case. A.H. Appeal accepted.