P L D 1962 (W (PLP)

He also examined Mst. Razia, the mother of the girl, Mst. Saeeda, her sister, Ashiq, a servant of Iftikhar, Doctor Muhammad Iqbal who had performed the first post‑mortem and Col. Abdul Sami, the present petitioner. The Multan Police then sent this case to Lahore where the offence appeared to have been committed and the scene of action accordingly shifted here. The Lahore Police took up the matter and arrested Iftikhar Hussain Khan who appeared before them, and ultimately put up a challan on the 3rd of May 1961 against him under section 302, P. P. C. But before this challan was put up a bail applica tion had been moved on behalf of the accused Iftikhar Hussain which was rejected on the 28th of April 1961 by the learned Magistrate (who passed the order with which we are now con cerned). It is necessary to reproduce a small portion of that order which reads: ‑ "Since the main arguments have been based upon the state ment of Doctor Sami who is no doubt a celebrated personality, I may remark at this stage that I do not know what is going to be the state of Doctor Sami in this case. I can foresee several circumstances from the statement of Dr. Sami, con sidering which the Police may decide to associate him as well as an accused for being a privy to the offence; under sections 314/312, P. P. C. or the Police, may find him innocent and keep him as a witness. I am not expressing my opinion on any point regarding the evidence brut would simply state that it is not possible for me to "give a finding on fact and release the accused on ball, even prior to the submission of the challan by Police."

4. During the proceedings of the case against Khakwani several witnesses were examined by the prosecution and amongst these were Mst. Razia, the mother of the girl, Mst. Saeeda, her sister, and Ashiq, a servant of the accused. The stand that these three witnesses took before the learned Magistrate was that it was one Jamshed Khan who had taken this girl from Multan to Lahore and from there sent a telephonic message to Ashiq informing him of the serious illness of the girl whereupon both Mst. Saeeda and Mst. Razia had proceeded to Lahore where the girl died in their presence in the clinic of Doctor Sami. They were confronted with their statements which they had made before the District Magistrate, Multan, during the second inquest and in which they had stated that ft was the accused Iftikhar Hussain who had taken the girl to Lahore and it was he who had sent the message of illness and by the time these women reached Lahore the girl had already died, but they said those statements were made under the pressure of the Police ; Other witnesses who were more or less of a formal character were also examined apart from Doctor Iqbal who stuck to his opinion that death of Mst. Safia had been caused by strangulation. After the evidence of Doctor Muhammad Iqbal had been concluded on the 23rd of June 1961, the learned Magistrate recorded an order whereby he directed that Doctor Sami and the senior member of the Board constituted at Multan be summoned as Court witnesses. With regard to Doctor Sami he observed in his order that he had been referred to by each and every witness in the case and his evidence would be of "top importance" because if it was believed, corroborated as it was by the opinion of the Board, it would knock out the prosecution case. He observed that neither the Public Prosecutor was willing to have him called as a Court witness nor was the counsel for the defence interested in his being called as a Court witness as the case stood at that stage. He, however, observed that if anything was to go in favour of the accused it was not fair on the part of the prosecu tion to withhold it and, therefore, in the Interest of justice and fairness he thought it fit to summon Doctor Sami as a witness under section 540, Criminal Procedure Code.

5. Accordingly; Doctor Sami was examined by the Court at length on the 26th of June 1961. The first part of his evidence is in the form of narration and thereafter there are questions by the Court and answers by the witness. The learned Magistrate as soon as he finished recording the statement of Doctor proceeded to pass the order whereby he took cognizance against him of offences under sections 314/312/201 read with section 109, P. P. C. It is against this order that the present revision petition is directed.

6. It may be mentioned that the learned Magistrate had written to the District Magistrate that in view of the fact that he had formed an opinion the case should be tried by some other Magistrate. The District Magistrate, however, sent the main case back to him for proceeding with it but the case relating to Doctor Sami of which he had taken cognizance was directed to be heard by another Magistrate, Mr. Rizv

1. In the main case, the learned Magistrate passed the final order on the 31st of August 1961 whereby he discharged the accused Iftikhar Hussain. By the same order he took cognizance against one Jamshed under section 302, P. P. C., in the alternative under sections 314/312/201, P. P. C. It is of interest to note in this order of discharge that the learned Magistrate has believed the evidence of Doctor Muhammad Iqbal according to whom the death of Mst. Safia was caused by strangulation. He went on to observe that the finding of the Board of the three Doctors did not contradict the evidence of Doctor Muhammad Iqbal because these doctors were not in a position to give any definite opinion about the injuries apparent on the body of the deceased on account of decomposi tion. He, however, overlooked that Doctor Muhammad Iqbal had positively stated that he had found the uterus of the girl to be healthy. He further went on to observe that in any case the story of abortion was not inconsistent with tire story of strangula tion, rather one could be the cause of the other. His exact words are these: ‑ "Still the abortion and strangulation are quite consistent facts, rather one can be the cause of the other, that is to say, an abortion induced and performed against the wishes of Mst. Saffo, in all probability could have led to strangula tion." But having discussed all the medical evidence when he came to deal with the case of the accused Iftikhar Hussain he observed that there was not a word to connect him with the commission of the crime, and therefore he discharged him.

7. The version of Doctor Sami which he gave in his evidence was that he had retired in 1957 as a Professor of Midwifery and thereafter had set up a clinic in Gulberg. On the 9th of April 1961, at about 5‑30 p.m., a person named Jamshed came to his clinic and wanted him to see a patient in Gulberg and the description of the ailment that he gave was that the patient was vomiting for two or three days and had pregnancy and that some treatment had been given but there had been no relief. On this he accompanied him to 11‑G, Gulberg Lahore, a place which was known to the doctor because it was in the occupation of One Mr. Nasim (also described as Salim). There the doctor saw a lady lying on a bed tossing about with pain. He tried to Inquire from her about her condition but she was not in a fit state to give any information. He, therefore, gave her a prescription to relieve her of the pain and came back to his clinic, directing Jamshed to give her medicine and let him know about her condition. At about 9‑30 p.m. Jamshed came to him and informed him that the girl was in the same condi tion. He, therefore, sent his nurse to give her morphia. At about midnight Jamshed again came back and informed him that there was no relief. So he told him to remove the patient to the clinic. This was done. The sister of the patient also came there. By the time the patient was brought to the clinic she had become a little quiet, and so no further medicine was given. At about 2‑30 a.m. the nurse woke him up and told him that the patient was restless. He, therefore, instructed the nurse to give her nembutal. He then saw her the next morning can his usual round at about 8 a.m. and she was again quiet. Between 9 and 10 a. m. a woman informed him that the patient was passing blood from her private parts. On inquiry the doctor learnt that this woman was the mother of the girl. He consoled her by saying that there was nothing much wrong if there was little bleeding. A little later the same woman came again and told him that the girl was vomiting blood. The doctor then decided to remove her into the operation theatre and found that a baby of about 4/5 months was half out from the private parts of the girl. He took it out without anaesthesia and as there was further bleeding he sent her to the ward. As her condition was low, he decided to give her intravenous glucose. This was actually given by his assistant. He then went to Jamait Singh Janki Devi Hospital where he got information from his assistant at about 3 p.m. that the condition of the patient was not good and he should better see her. He went there and found her respiration embarrased. He gave her coramine and left the place. The girl, however, died soon thereafter. The same evening the relatives of the patient wanted to take the body to Multan and wanted a short note about the cause of her death. This he gave. This certificate contained a short history of the case from the time that the doctor had seen her and the cause of the death had been given as "acute sceptic abortion."

8. It may be convenient now to quote from the order of the learned Magistrate dated the 26th of June 1961, by which he had taken cognizance of the case against Doctor Sami. The order begins as follows: ‑ "I have had many doubts in my mind about the conduct of Dr. Col. Sami. Prosecution did not cite him as a witness, even though he was a very material one, and defence did not cite him, or even pray for his being called as a Court witness for reason best known to themselves. I called Dr. Sami to sift the truth and also to afford him an opportunity to explain his suspicious conduct. I have given anxious consideration to his statement and find that there is over‑whelming circumstantial evidence against him to show that he is guilty of having performed an illegal abortion or alternatively of having con cealed the commission of that offence. Some of the circums tances which are proved against Dr. Sami, In spite of his guarded, well considered and well thought out statement, which has probably been made, keeping in view all the charges that could be leveled against him are (1) That he knew Mst. Saffo was not the wife of Salim, as being the family doctor he knew the wife of Salim, and also from the status of Mst. Saffo she did not appear to be of the status of Khakwanis. (2) That he knew from Jamshed that Mst. Saffo was pregnant, and she had been administered medicine, and a person of the eminence of Dr. Saint would have at once detected the mischief. (3) That he knew that Jamshed on being asked to remove the patient to hospital had shown embarrasment. (4) That he knew that Jamshed was not a person of the status, who could afford his treatment, and Dr. Sami has admitted that Salim the supposed husband of Mst. Saffo never contacted him. (5) That she died during abortion and yet he did not report the matter to the Police. Whether Mst. Saffo was the mistress of Iftikhar, Jamshed, Salim or Qamroo Nail it does not make any difference qua the conduct of Dr. Col. Sami, as far as he is concerned, he knew that an illegal act was being performed."

9. The question immediately arises whether the learned Magistrate properly exercised his powers under section 540, Cr. P. C., in summoning the petitioner as a Court witness in the circumstances of this case. It must be remembered that his inquiry was directed against the accused Iftikhar Hussain Khakwani At the stage when he decided to summon the petitioner as a Court witness, all other evidence had already been led by the prosecution. In that evidence there was nothing to connect Iftikhar Hussain Khakwani with the offence. The learned Magistrate gave this finding in his order of discharge which has already been referred to above. That being so, it is difficult to see what useful purpose could be served In invoking the power under section 540, Cr. P. C., for the purpose of summoning the petitioner as a Court witness. Whatever he might say, it would not have in the least advanced the case of the prosecution against the accused Iftikhar Hussain Khakwani, and if the learned Magistrate was summoning the petitioner to "afford him an opportunity to explain his suspicious conduct" as he himself has observed in his order then this was clearly a misuse of the power under section 540, Cr. P. C. That section reads as follows: ‑ "Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re‑examine any person already examined ; and the Court shall summon and examine or recall and re‑examine any such person if his evidence appears to it essential to the just decision of the case." It would be observed that though the section is express in the widest possible terms in empowering the Court to summon any person as a witness but the condition expressly attached is that his evidence must appear to the Court to be essential to the just decision of the case. In the present instance the case before the learned Magistrate related to an inquiry into offences alleged to have been committed by the accused Iftikhar Hussain Khakwani. I have pointed out that the evidence of the petitioner could not have, in any manner, affected that inquiry inasmuch as there was no evidence before the Court connecting him with the alleged offence. There was, therefore, no occasion for the exercise of power under section 540, Cr. P. C. It has been argued before me by Sardar Muhammad Iqbal, learned counsel for the petitioner, with considerable force that the only purpose for which the learned Magistrate summoned the petitioner as a Court witness was to probe Into his own conduct and obtain admissions from him. The argument derives support from the fact that as far back as the 28th of April 1961, while rejecting the application for bail of the accused Iftikhar Hussain Khakwani, the learned Magistrate had indicated the possibility of the petitioner being associated as an accused in the case for being a privy to the offences under section 314/312, P. P. C. I cannot approve of the course followed by the learned Magistrate in this regard. I have no doubt that he was actuated by no other desire than to see that if there was any foul‑play in connection with the death of Mst. Sofia, any one responsible for it must not go unpunished. That may be a commendable spirit, but it must be remembered that a Magistrate trying a criminal case acts as an arbiter between the parties. He is the Judge in the cause and not the investigating agency. That is the function of the prosecutor. In discharging his functions it is no doubt the duty of a Judge to administer justice without fear or favour regardless of who the parties are in the case, but he is not to abandon his high place of an impartial arbiter, and assume the role of a prosecutor, however, altruistic his motives may be.

10. The next question that has been urged before me is that the whole of the evidence given by the petitioner as a Court witness is covered by the proviso to section 132 of the Evidence Act, and considering that all the conclusions recorded by the learned Magistrate in his order dated the 26th June 1961, are based upon that evidence, the learned Magistrate was clearly in error in taking cognizance against the petitioner upon that material. The proviso to section 132 reads as follows: "Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecu tion, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer." The question is as to what amounts to compulsion within the meaning of the proviso has been the subject of conflicting judicial opinion. Some of the cases have laid down that in order to entitle the witness to the protection under the proviso, he must have objected to the questions, which have the tendency of being incriminating. On the other hand, it has been held that the mere fact that a witness is put in the box, sworn in and is questioned about the relevant facts, it must be held that he was compelled to answer. I am of the opinion that the latter view is too broadly set out. The questions whether a certain statement was made by a witness under compulsion must depend upon the facts of a particular case. The compulsion may either be express or implied, but if from the circumstances of a case it can be safely inferred that the witness believed himself to be under compulsion to make a statement, he would be entitled to claim the protection of the proviso to section 132 of the Evidence Act regardless of the fact whether he had objected to the question or not. But whatever may be the position of a witness who is called by a party, ft seems to me that when a person is called as a Court witness in a case and he is questioned by the Court I there would be an inference of an implied compulsion within the meaning of the proviso. In an Oudh decision reported in Jagan Nath v. Emperor (A I R 1934 Oudh 386), It was held that where a question, the answer to which had laid open the witness to a criminal prosecution under section 500,

1. P. C., had been put by the Court itself, the witness must be deemed to have been compelled to answer that question and was, therefore, entitled to the benefit of section 132, Evidence Act. A similar view was taken in two Allahabad cases Kashi Ram v. Emperor (A I R 1930 All. 493) and Emperor v. Ganga Sahai (I L R 42 All. 257). I have not found any decision to the contrary, nor has my attention been drawn to any by the counsel for the State. I am, therefore, of the view that at least that part of the evidence of the petitioner, which was given in answer to questions put by the Court, and these were numerous, is clearly protected by the Proviso to section 132 of the Evidence Act. That really concludes the matter. But I shall also examine the question whether the learned Magistrate was justified In taking cognizance of offence against the petitioner even if the whole of his evidence was to be taken into consideration.

11. The conclusions recorded by the learned Magistrate, which have been reproduced above, would at best lead to an inference that the petitioner knew or should have known that the pregnancy of Mst. Sofia was the result of an illicit liaison and the persons attending upon Mst. Sofia were acting in a clandestine manner. The non‑disclosure of these facts by the doctor would not expose him to criminal prosecution. As regards the abortion, the circumstances referred to by the learned Magistrate do not necessarily lead to the inference that the petitioner knew that this was a case of induced abortion or that he was a party to it. Even the Medical Board, which consisted of three eminent doctors, was not able to give a finding whether this was a case of spontaneous or induced abortion. Mr. Zaman for the State vigorously argued that all the circumstances taken together point to the inference that the petitioner had not acted innocently and was aware that there had been a case of induced abortion and in not mentioning this fact in the certificate given by him, he had committed an offence under section 201, P. P. C. When his attention was drawn to the possibility of different inference arising from the admissions made by the petitioner and the circumstances referred to by the learned counsel he contended that in any case the circumstances give rise to a very strong suspicion against the conduct of the petitioner. That may be true but suspicion does not take the place of proof. I pointedly asked him whether there was any other evidence against the petitioner, apart from his own admission, and the circumstances referred to by the Learned Magistrate in his order in question and he frankly admitted that there was none. The case against the petitioner, therefore, at best depended upon circumstantial evidence. The undisputable rule as regards sufficiency of circums tantial evidence to be the basis for conviction is that the facts proved must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypo thesis than that of his guilt. I have already indicated that the circumstances referred to by the learned Magistrate taken together are not capable of leading to the only inference that the petitioner had the knowledge that the abortion which Mst. Safia had was an induced one much less to the inference that he was a party to it. The circumstances are equally compatible with his innocence. In the circumstances, the prosecution of the petitioner for the offences of which cognizance has been taken by the learned Magistrate would be a waste of public time and money because the only result in the case would be that the accused would be acquitted.

12. For the reasons given above, I set aside the order of the learned Magistrate dated the 26th June 1961, by which he took cognizance of the offences against the petitioner and in exercise of powers under section 561‑A, Cr. P. C., I quash all proceedings emanating from that order. K. B. A. Proceedings quashed.