SABIT ULLAH KHAN, J:-Through this criminal appeal filed u/s 410 f the Code of Criminal Procedure, 1898 (Cr.P.C), the appellant Wahid Ullah has assailed the judgement dated 14.03.2024 rendered by the learned Sessions Judge, Bajaur in case FIR No. 10 dated 07.04.2022 registered u/s 302 PPC at Police Station Warra Mamund, whereby he was convicted u/s 302 (b) PPC and sentenced to undergo imprisonment for life, with directions to pay the compensation of Rs.5,00,000/- to the legal heirs of the deceased u/s 544-A Cr.P.C or in default to suffer six months S.I. The benefit of section 382-B Cr.P.C was extended to the appellant/ convict.
2. On 07.04.2022 at 09:00 hours, the complainant Ikhtiyar Khan (PW-8) reported the matter in the emergency room of DHQ Hospital, Khar Bajaur to the effect that his deceased daughter namely Mst. Salma Bibi was married to the accused some three years ago and on the eventful day at 06:30 hours, the accused attacked the deceased with scissors by inflicting multiple injuries on different parts of her body, resulting in her death on the spot. The motive was stated to be a domestic dispute. The report of the complainant was taken down in shape of murasila (Ex.PW6/1), on the basis of which the FIR (Ex.PA) was registered against the accused.
3. On the arrest of the accused and completion of investigation, the case was sent to the Court for trial. On 24.06.2022, the accused was charge-sheeted, to which he did not plead guilty and claimed trial. Upon conclusion of the trial including the recording of the accused's statement u/s 342 Cr.P.C, the learned trial Court convicted and sentenced the appellant, as detailed above, through its judgment dated 14.03.2024, hence, this appeal.
4. Arguments heard. Record perused.
5. After hearing the arguments at a considerable length, it transpired that the deceased was pregnant at the time of her murder and in this regard, the prosecution has obtained the opinion of Radiologist (Ex.PW10/1), wherein it was opined by Dr. Saman Ali Khan (PW-10) through ultrasound that the deceased was pregnant with a fetus of about 08 weeks and 02 days at the time of her death but the prosecution has not imposed the relevant section of law for causing isqat-e-haml along with the murder of the deceased. In view of the medical evidence on record especially the report of radiologist, the case was attracting the application of section 338 PPC, the punishment for which is provided u/s 338-A PPC. For convenience, the sections 338 & 338-A PPC are reproduced below:
338. Isqat-i-Haml. Whoever causes a woman with child whose organs have not been formed, to miscarry, if such miscarriage is not caused in good faith for the purpose of saving the life of the woman or providing necessary treatment to her, is said to cause isqat-i-haml.
Explanation. A woman who causes herself to miscarry is within the meaning of this section.
338-A. Punishment for Isqat-i-baml'. Whoever causes 'isqat-i-haml' shall be liable to punishment as tazir.
(a) with imprisonment of either description for a term which may extend to three years, if isqat-i- haml is caused with the consent of the woman; or
(b) with imprisonment of either description for term which may extend to ten years if isqat-i-haml is caused without the consent of the woman; Provided that, if as a result of isqat-i-haml any hurt is caused to the woman or she dies, the convict 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 appellant, the prosecution has also examined Dr. Saman Ali Khan as PW-10 during trial. She has stated the deceased was having the pregnancy of 08 weeks and 02 days at the time of her death. It was also confirmed by her that her report was based on ultrasound. Since the deceased was murdered on 07.04.2022 and the gestational age of the fetus at the time of the incident was around 08 weeks and 02 days, so, there remains no ambiguity that the deceased was carrying a 08-week-old fetus at the time of her death but upon commencement of the trial, the charge was framed u/s 302 PPC, and thus, from the very inception of the trial, both the prosecution and the trial Court have committed an illegality by not framing the charge for causing isqat-i-haml of the deceased lady. In the case of "Zam an Shah v. The State" reported as 2015 MLD 795, the Hon'ble Lahore High Court, 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, has 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' and as per medical jurisprudence heart beat starts after 02 months. 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'.
In this view of the matter, we hold that although an unborn child of 08 weeks' gestation is medically not regarded as a separate person and its loss/ miscarriage does not constitute an offence u/s 302 PPC, being referred to as a fetus or embryo, however, it has explicitly been given protection u/s 338-A PPC. This provision of law criminalizes the act of isqat-i-hamal (miscarriage) making any harm or death caused to the unborn child irrespective of the survival of the mother, so it is a distinct and independent offence and hence, it could not be merged with the charge of murder u/s 302 PPC. In such a scenario, we see no reason to depart from the view already taken by the Courts in view of the medical evidence on the file especially the report of the radiologist.
6. In view of the above, the instant appeal is allowed, the impugned judgment dated 14.03.2024 is set aside and the case is remanded to the learned trial court for a de novo trial after framing proper charges against the appellant/accused under sections 302 & 338-A PPC for the murder of Mst. Salma Bibi and causing isqat-i-haml. The appellant shall be treated as under trial prisoner.
Record of the case along with attested copy of this judgment shall be sent to the trial court forthwith. As in this case the appellant was arrested on 16.05.2022, therefore, the learned trial Court is directed to conclude the trial as early as possible.