2025 PLP 2129 (YLR)

Qazi Jawad Ehsanullah, J.

This single judgment is directed to decide the instant appeal Cr.A. No. 375M/2023 as well as the connected Cr.A. No. 376-M/2023 and Cr.R. No. 96-M/2023 as all these cases are emanating from the same judgment handed down by the learned Additional Sessions Judge/Izafi Zilla Qazi, Malakand at Batkhela dated 22.11.2023 in case FIR No. 31 dated 20.02.2022 under sections 302/324/338-C/114/201/203 P.P.C, 15 A.A. registered at P.S Sakhakot, District Malakand whereby the appellants were convicted and sentenced as follows: Section of Law Detail of sentence awarded S.302(b)/I14 P.P.C Imprisonment for life each with further order to pay Rs.1,000,000/ to LRs of the deceased as compensation under Section 544-A, Cr.P.C. Ss.201/203 P.P.C Imprisonment for 07 years each with fine of Rs.100,000/- each. In case of non-payment of fine, they were directed to undergo further 02/02 months S.I. S. 338-C(c) P.P.C (Aftab-ud-Din) Imprisonment for seven years. S. 15 A.A(Muhammad Jalal) one year imprisonment with fine of Rs.30,000/- or, in case of default thereof, to suffer further simple imprisonment for one month. The sentences were ordered to run concurrently. Benefit of Section 382-B, Cr.P.C. was also extended to appellants.

2. According to the prosecution's version, on 20.02.2022 at about 8:55 PM, complainant Shahabuddin with the assistance of other relatives brought the dead body of his sister-in-law (bhabi) namely Noreen Bibi wife of Aftab to hospital at Dargai for medical examination. He reported that his brother Aftab had contracted love marriage with deceased Noreen Bibi a few months earlier, due to which both of them were residing in a house belonging to one Tahir in Arab Dhandha. He further stated that on the night of the occurrence, he was present in his own house when, at around 8:20 PM, some unknown accused person(s) opened fire on Aftab and Noreen, as a result of which both sustained injuries and were found lying in a wounded condition. The complainant immediately rushed to the spot and with the help of Zahid Khan's Datsun vehicle, shifted the dead body of his sister-in-law to the hospital at Dargai, while other relatives shifted his injured brother to RHC Sakhakot. It was suspected that someone might have witnessed the occurrence. The Incharge of the casualty ward at Dargai Hospital, upon receiving the report from the complainant, prepared a formal written memo. and forwarded it to Police Station Sakhakot which led to the registration of the ibid FIR against unknown accused persons. Subsequently, the injured Aftab recorded his statement under Section 164 of the Code of Criminal Procedure, nominating Ghawas, Naveed and Muhammad Ali as the culprits. During further investigation, Aftab Ud Din himself was implicated as an accused in the case. Based on his confessional statement, another accused Muhammad Jalal was nominated in the case. Consequently, both Aftab Ud Din and Muhammad Jalal (the appellants) were formally included as accused persons in the present case.

3. Upon completion of the investigation, the appellants were sent up for trial on the charge of committing the murder of Mst. Noreen Bibi. They were formally indicted for the said offence; however, they pleaded not guilty and claimed trial, therefore, the prosecution examined as many as fifteen witnesses in support of its case and thereafter closed its evidence. The appellants were then examined under Section 342, Cr.P.C. Appellant Aftab Uddin also recorded his statements on oath under Section 340(2), Cr.P.C, however, both the appellants did not produce any evidence in their defence. Upon conclusion of the proceedings, the learned trial court, on the basis of the evidence available on record, found the appellants guilty and vide impugned judgment convicted them for the murder of Mst. Noreen Bibi. The sentences awarded to them have already been detailed earlier in this judgment.

4. After hearing the learned counsel for the parties at length, it is evident from the record that the deceased was pregnant at the time of her murder. In view thereof, the prosecution has incorporated Section 338-C of the Pakistan Penal Code in the FIR, which prescribes punishment for Isqat-i-Janin as defined under Section 338-B P.P.C. For convenience, the relevant provisions are reproduced below: 338B. Isqat-i-janin.__Whoever, causes a woman with child some of whose limbs or organs have been formed, to miscarry, if such miscarriage is not caused in good faith for the purpose of saving the life of the woman, is said to cause isqat-i-janin. Explanation.__A woman who causes herself to miscarry is within the meaning of this section. 338C. Punishment for Isqat-i-janin. Whoever causes Isqat-i-janin shall be liable to__ 338C. Punishment for Isqat-i-janin__Whoever causes Isqat-i-janin shall be liable to _ (a) one-twentieth of the diyat if the child is born dead; (b) full diyat if the child is born alive but dies as a result of any act of the offender; and (c) imprisonment of either description for a term which may extend to seven years as ta'zir: Provided that, if there are more than one child in the womb of the woman, the offender shall be liable to separate diyat or ta'zir, as the case may be, for every such child: Provided further that if, as a result of isqat-i-janin, any hurt is caused to the woman or she dies, the offender shall also be liable to the punishment provided for such hurt or death, as the case may be. In support of the above allegation against the appellants, the prosecution has examined Dr. Maryam Rahman, a Gynecologist, as PW-4. She stated that the deceased had been under her routine medical care and had visited her for prenatal checkups. PW-4 testified that she had conducted ultrasound examinations of the deceased on 01.01.2022 and 03.02.2022 and had issued corresponding reports which are available on record as Ex.PW-4/1 to Ex.PW-4/3. She further verified the documents marked as Ex.PW-4/5 and Ex.PW-4/6. According to the ultrasound report (Ex.PW-4/3), the fetus was approximately 16 weeks old with an expected date of delivery (EDD) noted as 16.07.2022. Since the deceased was murdered on 20.02.2022, the gestational age of the fetus at the time of the incident was around 19 weeks. In light of the evidence available on record, there remains no ambiguity that the deceased was carrying a 19-week-old fetus at the time of her death.

5. Upon commencement of trial, the learned trial court had famed formal charge against the appellants under the following heads: Appellant Aftab-ud-Din i. under section 302 P.P.C for the murder of deceased Mst. Norin. ii. under section 338-C P.P.C for miscarriage of the fetus of the of deceased Mst. Norin. iii. under sections 201 and 203 P.P.C for providing false information to police. Appellant Muhammad Jalal iv. under 302/114 P.P.C for providing a pistol to appellant Aftab-ud-Din for committing murder of his wife. v. under section 15 A.A. for keeping unlicensed pistol in his house which was taken into possession as the crime weapon.

6. In the above backdrop, two important legal questions emerge: first, what is the legal status of an unborn child; and second, whether the learned trial court was justified in framing a charge against appellant Aftab-ud-Din under Section 338-C P.P.C for causing the death of the fetus carried by the deceased. These questions have been addressed in various pronouncements of the Sindh High Court, Lahore High Court and of this Court. In the case of Hakim All v. The State reported in 2013 YLR 216, where the accused had murdered his pregnant wife carrying a fetus of approximately 7/8 months, the Hon' ble Sindh High Court held as under: "

14. It is also observed that the appellant not only committed murder of Mst. Raheela Sultana but of her unborn son of about 7/8 months and thereby he committed double murders in a brutal manner. A person has been murdered before his birth, this act is highly condemnable and requires strict punishment. However the learned trial Court taken lenient view while awarding him life imprisonment perhaps for lack of ocular evidence". In another pronouncement, namely Zaman Shah v. The State reported in 2015 MLD 795, the Hon'ble Lahore High Court placed reliance on the judgment rendered in Hakim Ali's case supra. While referring to Article 128 of the Qanun-e-Shahadat Order, 1984, and a tradition of the Holy Prophet (peace be upon him) recorded in Sahih al-Bukhari, Volume 4, Book 55, Hadith No. 549, the Court held that a fetus which has remained in the womb of its mother for more than six months falls within the definition of a 'child'. The relevant portion of the judgment is reproduced below: "10. [....] Admittedly section 338-B, P.P.C., deals with "Isqat-i-janain", while in the case in hand it is the prosecution version that at the time of death of Mst. Noor Bibi, she was having 7 months male child in her womb, who also died in consequence of injuries sustained by Mst. Noor Bibi and it resulted into his death. Therefore, the case in hand does not attract the provisions of section 338-B, P.P.C., because as per medical jurisprudence heart beat starts after 2 months while after 180 days (six months) the child becomes mature and in our part of the world, oftenly some times even after seven months the women give birth to healthy babies. Hence, in this view of the matter it can be ascertained that 'fetus' having remained more than 6 months in the womb of his mother falls within the definition of 'child'.

7. This Court, in the case of Wahidullah v. The State and others reported in 2021 PCr.LJ 1706, undertook an elaborate discussion on the aforementioned two issues in light of various verses from the Holy Quran and Ahadith of the Holy Prophet (peace be upon him). While interpreting the term 'cephalic fetus' as referred to by the medical expert in that case, the Court observed that it denotes the position of the fetus within the mother's uterus towards the final stage of pregnancy. As delivery approaches, the fetus typically repositions itself; turning head-down in the womb and descending into the birth canal in preparation for childbirth. Based on this medical and physiological development, the Court held that there remained no doubt that at the time of the mother's death, the fetus had attained the form of a complete child who also lost his life. The killing of such a developed fetus, therefore, must be construed as the killing of a human being. The Court further observed that Section 338-C P.P.C pertains where the fetus is still in a formative stage, with some organs developed and others still developing. However, in the facts of the case, where the fetus had reached full formation, the appropriate provision of law was Section 302 P.P.C, not Section 338-C P.P.C. In arriving at this conclusion, the Court drew guidance from verses 12 to 14 of Surah Al-Mu'minoon, which detail the various stages of fetal development, particularly emphasizing the seventh stage referred to as 'Khalqan Akhar' indicating the creation of a complete human being. The Court also referred to Ayah 67 of Surah Ghafir, Ayah 5 of Surah Al-Hajj, Ayah 151 of Surah Al-An'aam and Ayah 31 of Surah Al-Isra, along with various Ahadith of the Holy Prophet (peace be upon him). For the sake of convenience the relevant portions of the judgment and the conclusion so drawn are reproduced below: "

20. The matter does not end here rather we would like to travel a little longer in order to understand that when human being comes into existence. In the Books of Sahih-Ahadith this period is generally recognized as 120 days after conception, at which time, according to the Hadith, the process of ensoulment' occurs i.e. the time, in which, the soul (r h) enters the foetus post-conception. In this respect reference can be made to Hadith No.549, Volume-IV, Book- 55 of the Sahih AlBukhari, which guides us in the following manner:

22. From the above quoted versus of the Holy Qur'an as well as Sahih Ahadith, we have no doubt left in our mind that after the stage of mudgha , the Allah Almighty blesses soul in the foetus and also writes down his/her fate. From this stage onward, the development towards Khalqan Aakhar starts. Hence, we are firm in our view that accused killed two innocent souls one the mother and second the child. (Emphasis supplied)

8. Lastly, this Court in Wahidullah's case (supra), while placing reliance on the authoritative pronouncement of the apex in S.A.K. Rehmani v. The State reported in 2005 SCMR 364, underscored the significance of framing a formal charge, and held as under: "24. [ ] While deriving wisdom from the guidance provided in the SAK Rehmani's case (supra), we are not hesitant to hold that the learned trial Court fell in error while framing the charge under section 338-C, P.P.C., instead section 302, P.P.C., as a cephalic child comes within the definition of a person. Needless to mention that framing of the charge under section 338-C, P.P.C. is a material error and the accused/ appellant was thereby misled by such omission to defend himself and we cannot hold otherwise, but that the accused/appellant has been prejudiced".

9. In the present case, the circumstances are strikingly similar, wherein appellant Aftab-ud-Din has been convicted and sentenced under Section 338-C P.P.C instead of Section 302 P.P.C for causing the death of the fetus. In such a scenario, we see no reason to depart from the view already taken by this Court in Wahidullah's case (supra).

10. In view of the above, the instant as well as the connected appeals are allowed, the impugned judgment dated 22.11.2022 is set aside and the case is remanded back to the learned trial court for de novo trial after framing of distinct charges against the appellants/accused facing trial under section 302 P.P.C (instead of section 338-C P.P.C) for the murders of both Mst. Noreen Bibi as well as unborn child. Appellant Muhammad Jalal son of Muhammad Rasool was on bail during the trial proceedings, therefore, he shall be released on bail against the bail bonds already furnished by him during the trial proceedings, provided he is not required in any other case. Record of the case along with attested copy of this judgment shall be sent to the trial court forthwith. Needless to mention that the trial proceedings shall be concluded as early as possible. The connected Cr.R. No. 96-M/2023 has become infructuous for the time being, therefore, same is accordingly dismissed.

11. Above are the reasons of our short order of the even date in the intent appeal. JK/97/P Order accordingly.