The State V. Dr. Muhtari Kura (1975)

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A. G. IRIKEFE, J.S.C. 

The respondent, Dr. Muhtari Kura, was tried in the Kano Judicial Division on two heads of charge framed thus:-

Head  of Charge No. 1 – “That you, Doctor Muhtari Kura, on or about the 17th day of  March, 1973 at Rano within Kano and North Western States Judicial Division, voluntarily caused a woman to wit: Hawa Shettima who then was pregnant with child, to miscarry the said pregnancy and whereas such miscarriage was not caused by you in good faith for the purpose of saving the life of the said Hawa Shettima, you did thereby commit an offence contrary to and punishable under Section 232 of the Penal Code.

Head  of Charge No. 2 -That you, Doctor Muhtari Kura, on or about the 17th day of March, 1973 at Rano within Kano and North-Western States Judicial Division, voluntarily caused a woman to wit:

Halima Usman who then was pregnant with child, to miscarry the said pregnancy and whereas such miscarriage was not caused by you in good faith for the purpose of saving the life of the said Halima Usman, you did thereby commit an offence contrary to and punishable under Section 232 of the Penal Code.”

At the end of the trial, the court (Jones J.), discharged the respondent on both heads of charge, and this appeal had been brought by the prosecutor against the verdict of the said court.

After hearing Mr. Onu, the learned Acting Director of Public Prosecutions, Kano State, on the only ground of appeal available to him, and without calling upon Mr. Adewunmi, learned counsel for the respondent, we dismissed the appeal, affirmed the decision of the lower court and indicated that we would give our reasons at a later date. We now do so.

As we indicted above, the only ground relied upon by the appellant reads thus:

“That the learned trial Senior Puisne Judge was wrong in law by failing to convict the accused when he was of the view that accused performed an illegal abortion.”

On this ground, we were referred by learned counsel for the appellant to a portion of the printed record wherein the learned trial Judge had attempted  an evaluation of the entire evidence in the case, but had, in fact, failed to arrive at any specific findings thereon.   We are in no doubt that the passage, the subject of counsel’s complaint, was taken out of con as could be seen when the learned trial judge observed thus at page 23 of the record:-

“Hawa gave evidence as the first witness and she said that she escorted her friend Halima Usman to Rano for the weekend to have an enjoyable time. They stayed in Dr. Kura’s house and Halima started talking to him about pregnancy and then asked him why he should not terminate their pregnancies. At first she was afraid but later Halima convinced her, with the result that Dr. Kura did effect on abortion on both girls the following day. While I agree with Mr. Akanbi that the evidence of Hawa alone, is not direct evidence of an abortion, taken together with the evidence of Dr. Thomas, Dr. Imam and Dr. Fattah, it is my view that Dr. Kura then performed an illegal abortion.

However, there are two adverse comment to be made about this evidence. I cannot accept that a girl went to stay with a friend of hers fit and prepared to have an enjoyable weekend and then, out of the blue as it were, decided to allow the friend to procure her abortion. In my view she went there either with the intention of asking Dr. Kura to procure her abortion or because as Dr. Kura claims she had already procured an abortion. In the latter case, the inference would be that she went there in order to ask Dr. Kura to treat the complications which that abortion appeared to be causing. The second comment is that she admitted later in the evidence that she had not previously discussed her pregnancy with Halima.Thus there does not appear to have been any reasons for Halima to have known of her pregnancy. If Halima did not know of other pregnancy she could never have asked the doctor to terminate our pregnancies.”

It is indisputable from the state of this record that the prosecution’s case against the respondent would stand or fall, depending on what view the learned trial Judge formed on the credibility of the evidence of the 1st prosecution witness, HAWA SHETTIMA and the 2nd prosecution witness, HALIMA USMAN. Credibility however, was not the only hurdle that the prosecution had to cross, as the learned trial Judge also held, as he was perfectly entitled to do, that these two prosecution witnesses were accomplices whose evidence required corroboration.

The testimony of the 2nd prosecution witness did nothing to advance the prosecution’s case, and as the learned trial Judge was of the view that there was no corroboration of Hawa’ (P.W.1) evidence, he thought, quite rightly in our view, that he had a special duty to examine with care, this evidence for whatever it was worth.