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Sunil Dadhwal   22 April 2018

Is foetus is a human being ?

support with article or with any case that foetus is a human being ?



Learning

 11 Replies

Sunil Dadhwal   22 April 2018

sorry that foetus is not a human being support with case laws or article

Kumar Doab (FIN)     22 April 2018

IT is not clear from which perspective the query is posted.

A Medical Specialist; Gynecologist, Obstetrician, Infertility Specialist, Abortionist in a country, state of your choice could have responded the best.

You can ask in your state capitol, national capitol and such locations have counsels par excellence..

IT is said; One human life is heavier than the earth and is precious..

Kumar Doab (FIN)     22 April 2018

Generically speaking;

 

A fetus being or becoming a person could be always an article for debate.

A person is one with personality i.e traits like feeling pain, joy, having self control, intelligence..

The Medical Specialists may point out that human fetus develop such traits in 3rd trimester of pregnancy..while in womb of mother.

The law and courts may not allow termination (end of life?) of pregnancy after 25th week of pregnancy…

A human fetus becomes natural person after birth..

1 Like

Sunil Dadhwal   22 April 2018

we can proof that foetus is not a human being by saying that the medical specialists may point out that human fetus develop such traits in 3 trimester of pregnancy ???

Kumar Doab (FIN)     22 April 2018

Post without ??? and number of times....

 

 

Sunil Dadhwal   22 April 2018

how can I proof in court that foetus is not a human being

Kumar Doab (FIN)     22 April 2018

What exactly is the case before court where you want to prove..

Sunil Dadhwal   22 April 2018

MRA ek case h I am a law student 1 year mko moot court room m present krna h case h ki ek girl h 13 years ki WO doctor k pass medical checkup k lie jati h and doctor uske injection LGA kr unconscious krke uske sth rape krta h after 2-3 months baad pta lgta h ki WO pregnant h 24 weeks ki to hm for me h ki abortion hona chahie hai

Kumar Doab (FIN)     22 April 2018

Aisi sthiti me court medical board ka gathan kar pramarsh le sakta hai or faisla de sakta hai...

Agar nabalig maa ki jan ko khatra hua to pramarsh ho sakta hai ki garabhpat nahi kiya ja sakta..

Media me aise faislon ka vivran uplabdh hai..

Prayas karain or mil jayega...

 

shaukat Ali (Senior Associate)     22 April 2018

2015 M L D 795

 

[Lahore]

 

Before Sayyed Mazahar Ali Akbar Naqvi and Syed Muhammad Kazim Raza Shamsi, JJ

 

ZAMAN SHAH---Appellant

 

versus

 

The STATE---Respondent

 

Criminal Appeal No.138-J of 2013 and Murder Reference No.101 of 2010, heard on 28th April, 2014.

 

Penal Code (XLV of 1860)---

 

----Ss. 302(b), 338-B & 338-C---Qatl-i-amd, Isqat-i-Janain---Appreciation of evidence---Scope and applicability of S.338-C, P.P.C.---Prosecution was consistent that at the time of death, deceased lady was pregnant by 28 weeks, which fact was also corroborated by the statement of Lady Doctor, who had conducted postmortem examination upon the dead body of the deceased lady---While framing the charge, the factum of consequence of death of the unborn baby of 28 weeks, remained unattended by the Trial Court---Trial Court had convicted accused under S.302(b), P.P.C. for the death of deceased lady, but to the extent of death of unborn child of 28 weeks Trial Court had convicted accused under S.338-C, P.P.C.---Present case, did not attract the provisions of S.338-B, P.P.C., which defined 'Isqat-i-Janain', because as per medical jurisprudence, heart beat starts after 2 months, while after 180 days (six months), the child matures and it could be ascertained that 'fetus' having remained more than 6 months in the womb of his mother, would fall within the definition of 'child'---Islamic concepts established that after 120 days, Allah (Almighty) blows soul into the fetus---During the occurrence, not only deceased lady lost her life, but a male child of 7 months, also met unnatural death, and his death in the above scenario, was beyond the provisions of S.338-C, P.P.C.---Conviction/sentence recorded by the Trial Court under S.338-C, P.P.C., was not maintainable in the eyes of law---Case was remanded to the Trial Court for recording evidence of the relevant prosecution witnesses afresh; and also provide opportunity to the defence for cross-examination; and then re-write judgment with regard to the applicability of provisions of relevant provisions of Penal Code, qua the death of unborn 7 months' child---Trial Court was directed to decide the case within three months of the receipt of judgment---Co-accused, though were nominated in the crime report with their specific role, but in the course of trial while extending them the benefit of doubt, Trial Court acquitted them of the charge---Appeal against acquittal of co-accused filed by the complainant, having been withdrawn, which attained finality---Matter to the extent of co-accused, would be deemed to be as a closed transaction, in circumstances.

 

Sahih Al-Bukhari, Volume 4, Book 55 at number 549 and Hakim Ali v. The State 2013 YLR 2169 ref.

 

Ch. Shahid Tabussam for Appellant.

 

Mirza Abid Majeed, Deputy Prosecutor General for the State.

 

Ch. Javed Bashir for the Complainant.

 

Date of hearing: 28th April, 2014.

 

JUDGMENT

 

SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Zaman Shah son of Muhammad Ali, caste Qureshi, resident of Chah Jewan Wala, Pindi Sheikh Musa, District Faisalabad, appellant, along with Mubarik Ali, Muhammad Hussain Shah, Ibrar Shah, Israr Shah and Anser Bibi (since acquitted) was involved in case FIR No.3, dated 3-1-2009, offence under sections 302, 148, 149, P.P.C., registered at Police Station Bahalak, Tandalianwala, District Faisalabad and was tried by Ch. Tariq Javed, learned Additional Sessions Judge, Tandalianwala. The learned trial court seized with the matter in terms of judgment dated 19-12-2009 convicted the appellant under Section 302(b), P.P.C., and sentenced him to death as Ta'zir with direction to pay Rs.2,00,000 as compensation to the legal heirs of deceased in terms of section 544-A, Cr.P.C. to be recovered as arrears of land revenue and in case of default in payment thereof, to undergo S.I. for six months. The appellant was also convicted under section 338-C, P.P.C., and sentenced to undergo R.I. for seven years. He was also held guilty to pay 1/20th of diyat amount. Benefit of Section 382-B, Cr.P.C. was extended in favour of the appellant.

 

2. The appellant has assailed his conviction through filing Criminal Appeal No.138-J/2013 while the learned trial court forwarded Murder Reference No.101 of 2010 for confirmation of sentence of death inflicted upon the convict in terms of section 374, Cr.P.C. As both the matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed of through consolidated judgment.

 

2A. Prosecution story as contained in the FIR (Exh.PA /3) lodged on the complaint (Exh.PA) of Ishaq Shah son of Mouj Shah, caste Qureshi Hashmi (P.W.1) moved against (1) Zaman Shah son of Muhammad Ali Shah, caste Qurashi Hashmi, resident of Chah Jeewan Wala, Pindi Sheikh Musa armed with gun .12-bore, (2) Mubarik Ali son of Muhammad Ali Shah, caste Qurashi Hashmi, resident of Chah Jeewan Wala, Pindi Sheikh Musa armed with gun .12-bore, (3) Ibrar Shah son of Asghar Shah, caste Qurashi Hashmi, resident of Chah Jeewan Wala, Pindi Sheikh Musa armed with gun .12-bore, (4) Israr Shah son of Muhammad Hussain Shah, caste Qurashi Hashmi, resident of Chah Jeewan Wala, Pindi Sheikh Musa armed with gun .12-bore, (5) Muhammad Hussain son of Noor Shah caste Queshi Hashmi, resident of Chah Jeewan Wala, Pindi Sheikh Musa armed with gun 12-bore, (6) Ansar Bibi daughter of Muhammad Ali Shah, caste Qurashi Hashmi, resident of Chah Jeewan Wala, Pindi Sheikh Musa armed with pistol, is that he is resident of Chah Jeewan Wala, Dakhli Pindi Sheikh Musa and involved in zamindara. Mst. Noor Bibi wife of Zahoor Ahmed, daughter of the complainant, was residing in a house situated on other side of the road while there was dispute between son-in-law (damad) of the complainant with the accused persons over a piece of land. On 3-1-2009 at about 9:00 a.m. the complainant along with Talib Shah son of Badar Shah Zahoor son of Muhammad Ali, both Qureshi Hashmi by caste and residents of Chah Jeewan Wala had approached the house of Zahoor Shah in order to settle the issue. At that time daughter of the complainant was kneading in the kitchen when all the accused persons armed with firearms emerged there. Ibrar Shah and Israr Shah while standing in the door raised lalkara to teach lesson for not settling the issue of 'ihata'. Zaman Shah and Mubarik Shah stepped in the house of Ansar Bibi and on hearing the noise Noor Bibi came out of her room. On the lalkara raised by Ibrar Shah etc. Zaman Shah made a straight fire shot with his gun .12-bore, which landed on left cheek of Noor Bibi. Mubarik Ali made a fire shot with his gun .12-bore, which landed on left tricep, as well as, in between neck and shoulder. On receipt of injuries, daughter of the complainant fell down on the ground. Ansar Bibi, Israr Shah and Ibrar Shah remained making firing with their firearms while Muhammad Hussain son of Noor Shah, who was standing at the road armed with gun .12-bore while making firing raised lalkara that in case any person comes forward he would be done to death. The complainant alongwith Talib Talib Shah and Zahoor witnessed the occurrence from inside the room. In the meanwhile many persons of the vicinity attracted to the spot whereas the accused persons while making firing made their good escape. The complainant rushed towards his daughter, who had succumbed to the injuries at the spot.

 

Motive behind the occurrence as portrayed in the crime report was that there was dispute of Zaman Shah etc. with their bother and damad of the complainant Zahoor Shah and prior to the occurrence the parties had quarreled with each other so many times. Due to this grudge the accused had committed the occurrence in which daughter of the complainant, who was pregnant of seven months was done to death.

 

3. The complainant while leaving Talib Shah and Zahoor Shah, P.Ws., to safeguard the dead body was going to report the matter, however, on way to Police Station he met with Muhammad Akbar, S.I. (P.W.5) presented his complaint (Exh.PA) and after endorsing police karvai (Exh.PA/1), P.W.5 transmitted the same through Shahadat 3140/HC to Police Station for lodging the crime report.

 

4. After registration of the case the investigation came up before Muhammad Iqbal, S.I. (P.W.8), who reached the place of occurrence, inspected the dead body, drafted injury statement (Exh.PE), prepared inquest report (Exh.PF) and sent the dead body through Umar Hayat 3228/C for postmortem examination. Thereafter, he prepared rough site plan of the place of occurrence (Exh.PH). From the spot he secured bloodstained earth vide recovery memo Exh.PB. After the postmortem examination last worn clothes of the deceased dopatta (P-2), shirt (P-3), shalwar (P-4) alongwith two sealed phials were produced before the Investigating Officer, which he took into possession vide recovery memo Exh.PG. On 6-1-2009, on the direction of the Investigating Officer and pointing out of the P.Ws., Akbar Ali Nizami draftsman (P.W.10) took rough notes of the place of occurrence and thereafter prepared scaled site plan (Exh.PJ and Exh.PJ/1), which was made part of the file on 9-1-2009.

 

Thereafter, the investigation was entrusted to Abdul Ghani, S.I. (P.W.9), who on 27-3-2009, arrested the appellant and obtained his physical remand. During the course of investigation the appellant after making disclosure led to the recovery of gun .12-bore (P-1), which was taken into possession by the Investigating Officer vide recovery memo Exh.PC.

 

4(sic) After conducting the investigation, the Investigating Officer submitted report under section 173, Cr.P.C. On 10-7-2008, the learned Additional Sessions Judge formally charge sheeted the appellant and his other co-accused to which they pleaded not guilty and claimed trial. Prosecution in order to substantiate its case produced as many as twelve (12) prosecution witnesses.

 

5. Occular account in this case consists of the statements of Ishaq Shah complainant (P.W.1), Zahoor Ahmed (P.W.2) and Talib Shah (P.W.3). The complainant had presented his application before Muhammad Akbar S.I. (P.W.5) while Umar Khan ASI (P.W.6) had chalked out formal FIR. Akbar Ali Nizami draftsman (P.W.10) had prepared scaled site plan of the place of occurrence whereas investigation in this case was carried out by Muhammad Iqbal A.S.-I. (P.W.8) and Abdul Ghani, S.I, (P.W.9).

 

Lady Dr. Rehana Tamkeen (P.W.4) had conducted postmortem examination upon the dead body of deceased and found following injuries on her person:--

 

"(1) A fire arm wound of entrance 5 cm x 3 cm on the left mandible left lower jaw and left mandible bone was broken. Dark coloured blood was coming out of this wound. No exit wound of this injury was found.

 

(2-i) A fire arm wound of entrance 7 cm x 5 cm on the inner side of left upper arm near shoulder. Left humurus bone was broken.

 

(ii) A fire arm wound of exit 8 cm x 6 cm on the back of left upper arm with everted margins.

 

(iii) An interrupted dark brown mark on the top of front of left shoulder 1.5 cm x 8 cm."

 

After conducting the postmortem examination, the doctor had rendered the following remarks:--

 

"In my opinion, the death of lady was mainly due to injury No.1 by fire arm on the left mandible that damaged the main vessels of the left side of neck and mouth leading to huge external haemorrhage, internal haemorrhage shock and death. Injury No.2 was also by fire arm and contributing factor towards death. Both the injuries were ante-mortem and were sufficient to cause death in the ordinary course of nature. The probable time that elapsed between injuries and death was 5 to 10 minutes about and between death and post mortem was 8 hours about."

 

Statements of rest of the prosecution witnesses are formal in nature.

 

6. Vide his statement recorded on 18-11-2009 learned ADPP gave up Dilshad Ahmed Moharrar, Aish Behadar son of Badar Shah and Rizwan Shah, P.Ws., being unnecessary and after tendering in evidence the report of Chemical Examiner (Exh.PL) and report of Serologist (Exh.PM), he closed the prosecution evidence.

 

7. The appellant was also examined in terms of section 342, Cr.P.C; wherein he opted neither to appear as his own witness in terms of Section 340(2), Cr.P.C. in disproof of allegations levelled against him in the prosecution evidence nor opted to adduce evidence in his defence. While replying to the question why this case against him and why the P.Ws. deposed against him, the appellant made the following deposition:--

 

"It is a case in which facts were not truly stated. Zahoor shah P.W. is my real brother, whereas Mst. Noor Bibi deceased was his wife. Ishaq Shah P.W. is father in law of Zahoor Shah, Anser Bibi is my real sister and Talib Shah is other close relative of Ishaq Shah. There is admitted enmity between Talib Shah and myself. I, Mubarik Shah, Zahoor Shah were living in one Haveli but in different rooms. Mst. Anser Bibi, accused is my sister as well as that of Zahoor P.W. In the days of occurrence, she along with her minor child was living with me in the same Haveli. Unluckily, the occurrence has taken place all of sudden because just before the occurrence, minor son of Mst. Anser Bibi who had fallen ill and we were bound to bring him to Hospital for treatment. I was standing outside the Haveli whereas Mst. Anser Bibi had gone to fetch underlay/cover for her minor son from the room but she was stopped from opening the door and an altercation took place between Answer Bibi and Mst. Noor Bibi deceased. Mst. Noor Bibi picked up a hatchet and gave a hatchet blow from its wrong side on the hands of Anser Bibi. On hearing noise reached at the spot and admonished Mst. Noor Bibi who used filthy language against me and also tried to launch attack with hatchet. I was provocated by this act of Mst. Noor Bibi and under sudden provocation without any intention, background of enmity, pre-meditation in the given circumstance acted in the manner, which resulted into the present occurrence. I had no intention to commit her murder and there was no direct motive directly to me. I had no intention to kill un-born child. Un-born child died in womb of her mother sequel to my first act, which was unintentional. The P.Ws. are related inter se and with the deceased and thus inimical towards me having a background of admitted enmity. P.Ws. after consultation and deliberation lodged the present FIR by twisting real facts. My first version during the investigation was also the same as stated supra, which was found correct by all the Investigating Officers including S.P./RCB, Faisalabad. I am innocent."

 

9. After hearing the arguments advanced by the learned counsel appearing on behalf of both the parties, the learned trial court, while evaluating the evidence available on record found version of the prosecution proved beyond shadow of reasonable doubt, resulting into conviction of the appellant in the above stated terms.

 

10. Today during the course of arguments it was pointed out that nevertheless the prosecution is consistent from day one that at the time of her death Noor Bibi deceased was pregnant by 28 weeks, which was also corroborated by the statement of Lady Dr. Rehana Tamkeen (P.W.4), who had conducted postmortem examination upon the dead body of deceased, however, while conducting trial, the learned trial court vide order dated 10-7-2008 had framed the following charge:-

 

"Firstly, that on 3-1-2009 at about 9-00 a.m. (day) in the area of Chah Jewan Wala Pindi Sheikh Musa falling within the territorial jurisdiction of Police Station Bahalak, you above mentioned accused persons while armed with deadly weapons in prosecution of your common object committed rioting, thus, you have committed an offence punishable under section 148, P.P.C. which is within the cognizance of this court.

 

Secondly, that on the same day, time and place, you all the above mentioned accused persons while armed with deadly weapons in prosecution of your common object committed Qatl-i-Amd of Noor Bibi daughter of Ishaq Shah complainant of this case by firing. Thus, you all have committed offences punishable under sections 302/49, P.P.C. which are within the cognizance of this court.

 

And I hereby direct you to be tried by this court on the aforesaid charges."

 

Hence, while framing the charge the factum of consequence of death of the unborn baby of 28 weeks remained unattended by the learned trial court. Admittedly under the provisions of section 237, Cr.P.C. if the court comes to the conclusion that from the evidence adduced during the course of trial ingredients of some offence other than the charge already framed are made out, it is empowered to record conviction even under that offence. Provisions of section 237, Cr.P.C. are reproduced as under:-

 

"237 When a person is charged with one offence, he can be convicted of another. (1) If, in the case mentioned in section 236, the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed although he was not charged with it."

 

Perusal of record also reveals that while passing the impugned judgment the learned trial court had convicted the appellant under section 302(b), P.P.C., for the death of Mst. Noor Bibi, however, to the extent of death of unborn child (28 weeks), the learned trial court had convicted the appellant under section 338-C, P.P.C. Now the question before this Court is whether to the extent of death of unborn child facts of the case satisfy the provisions of section 338-B, P.P.C.? In order to resolve this anomaly it would be advantageous to go through the provisions of section 338-B, P.P.C., which are reproduced here in below:--

 

"338-B. Isqat-i-janain. Whoever, causes a woman with a 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-janain."

 

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'. Analogy in this regard can be drawn from Article 128(1) of the Qanun-e-Shahadat Order, 1984, which reads as under:--

 

"128. Birth during marriage conclusive proof of legitimacy.--(1) The fact that any person was born during the continuance of a valid marriage between the mother and any man and not earlier than the expiration of six lunar months from the date of the marriage, or within two years after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate child of that man..."

 

From the above provision of Article only inference can be drawn is that after six months of pregnancy, a female can give birth to a child.

 

12. As far as Islamic concepts on this issue are concerned, from the books of 'Ahadiths' it is established that after 120 days Allah (Almighty) blows soul into the fetus. In Sahih Al-Bukhari, Volume 4, Book 55 at number 549, it finds narrated as under:--

 

"Narrated Abdullha: Allah's Apostle, the true and truly inspired said, "(as regards your creation), every one of you is collected in the womb of his mother for the first forty days, and then he becomes a clot for an other forty days, and then a piece of flesh for another forty days. Then Allah sends an angle to write four words: He writes his deeds, time of his death, means of his livelihood, and whether he will be wretched or blessed (in religion). Then the sould is breathed into his body....".

 

13. Moreover, while dealing a similar question in the case of Hakim Ali v. The State (2013 YLR 2169), the Hon'ble Singh High Court had held that murder of a woman having unborn child of 7/8 months tantamounts to double murder. Relevant portion of the judgment reads as under:--

 

"---Accused had committed double murder, of his wife and an unborn son of about 7/8 months in a brutal manner, which act of accused was highly condemnable and required strict punishment..."

 

14. In sequel to what has been discussed above this Court has arrived at an irresistible conclusion that during the occurrence not only Mst. Noor Bibi lost her life rather a male child of 7 months also met unnatural death and his death in the above scenario is beyond the provisions of section 338-C, P.P.C. Hence, conviction/sentence recorded by the learned trial court under section 338-C, P.P.C., is not maintainable in the eyes of law. For the foregoing reasons, we have been persuaded to remand the case to the learned trial court for recording evidence of the relevant prosecution witnesses afresh and also provide opportunity to the defence for cross-examination, if any, and then re-write judgment with regard to applicability of provisions of relevant provisions of Pakistan Penal Code qua death of unborn 7 months child. Learned trial court is directed to decide the case within three months of the receipt of this judgment while keeping itself within the four corners of law. Resultantly, Criminal Appeal No.138-J of 2013 filed by Zaman Shah/appellant is DISMISSED. It is, however, made clear that till re-writing the judgment, the trial of the case in hand to the extent of Zaman Shah/appellant shall be deemed pending before the learned trial court. Murder Reference No.101 of 2010 is answer in NEGATIVE.

 

15. As far as case of rest of the co-accused (Mubarik Ali, Muhammad Hussain, Ibrar Shah, Israr Shah and Mst. Anser Bibi) is concerned, nevertheless they were nominated in the crime report with their specific role, however, during the course of trial while extending them benefit of doubt, the learned trial court had acquitted them of the charge. Subsequently the acquittal was assailed by the complainant through filing Criminal Appeal No.130 of 2010 before this Court, however, it also met the same fate having been withdrawn vide order dated 13-12-2011, which admittedly has attained finality. Hence, at this stage it would not be appropriate to interfere into the matter and to their extent it shall be deemed as a close transaction.

 

16. Case remanded.

 

HBT/Z-20/L Case remanded.

shaukat Ali (Senior Associate)     22 April 2018

2015 M L D 795

 

[Lahore]

 

Before Sayyed Mazahar Ali Akbar Naqvi and Syed Muhammad Kazim Raza Shamsi, JJ

 

ZAMAN SHAH---Appellant

 

versus

 

The STATE---Respondent

 

Criminal Appeal No.138-J of 2013 and Murder Reference No.101 of 2010, heard on 28th April, 2014.

 

Penal Code (XLV of 1860)---

 

----Ss. 302(b), 338-B & 338-C---Qatl-i-amd, Isqat-i-Janain---Appreciation of evidence---Scope and applicability of S.338-C, P.P.C.---Prosecution was consistent that at the time of death, deceased lady was pregnant by 28 weeks, which fact was also corroborated by the statement of Lady Doctor, who had conducted postmortem examination upon the dead body of the deceased lady---While framing the charge, the factum of consequence of death of the unborn baby of 28 weeks, remained unattended by the Trial Court---Trial Court had convicted accused under S.302(b), P.P.C. for the death of deceased lady, but to the extent of death of unborn child of 28 weeks Trial Court had convicted accused under S.338-C, P.P.C.---Present case, did not attract the provisions of S.338-B, P.P.C., which defined 'Isqat-i-Janain', because as per medical jurisprudence, heart beat starts after 2 months, while after 180 days (six months), the child matures and it could be ascertained that 'fetus' having remained more than 6 months in the womb of his mother, would fall within the definition of 'child'---Islamic concepts established that after 120 days, Allah (Almighty) blows soul into the fetus---During the occurrence, not only deceased lady lost her life, but a male child of 7 months, also met unnatural death, and his death in the above scenario, was beyond the provisions of S.338-C, P.P.C.---Conviction/sentence recorded by the Trial Court under S.338-C, P.P.C., was not maintainable in the eyes of law---Case was remanded to the Trial Court for recording evidence of the relevant prosecution witnesses afresh; and also provide opportunity to the defence for cross-examination; and then re-write judgment with regard to the applicability of provisions of relevant provisions of Penal Code, qua the death of unborn 7 months' child---Trial Court was directed to decide the case within three months of the receipt of judgment---Co-accused, though were nominated in the crime report with their specific role, but in the course of trial while extending them the benefit of doubt, Trial Court acquitted them of the charge---Appeal against acquittal of co-accused filed by the complainant, having been withdrawn, which attained finality---Matter to the extent of co-accused, would be deemed to be as a closed transaction, in circumstances.

 

Sahih Al-Bukhari, Volume 4, Book 55 at number 549 and Hakim Ali v. The State 2013 YLR 2169 ref.

 

Ch. Shahid Tabussam for Appellant.

 

Mirza Abid Majeed, Deputy Prosecutor General for the State.

 

Ch. Javed Bashir for the Complainant.

 

Date of hearing: 28th April, 2014.

 

JUDGMENT

 

SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Zaman Shah son of Muhammad Ali, caste Qureshi, resident of Chah Jewan Wala, Pindi Sheikh Musa, District Faisalabad, appellant, along with Mubarik Ali, Muhammad Hussain Shah, Ibrar Shah, Israr Shah and Anser Bibi (since acquitted) was involved in case FIR No.3, dated 3-1-2009, offence under sections 302, 148, 149, P.P.C., registered at Police Station Bahalak, Tandalianwala, District Faisalabad and was tried by Ch. Tariq Javed, learned Additional Sessions Judge, Tandalianwala. The learned trial court seized with the matter in terms of judgment dated 19-12-2009 convicted the appellant under Section 302(b), P.P.C., and sentenced him to death as Ta'zir with direction to pay Rs.2,00,000 as compensation to the legal heirs of deceased in terms of section 544-A, Cr.P.C. to be recovered as arrears of land revenue and in case of default in payment thereof, to undergo S.I. for six months. The appellant was also convicted under section 338-C, P.P.C., and sentenced to undergo R.I. for seven years. He was also held guilty to pay 1/20th of diyat amount. Benefit of Section 382-B, Cr.P.C. was extended in favour of the appellant.

 

2. The appellant has assailed his conviction through filing Criminal Appeal No.138-J/2013 while the learned trial court forwarded Murder Reference No.101 of 2010 for confirmation of sentence of death inflicted upon the convict in terms of section 374, Cr.P.C. As both the matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed of through consolidated judgment.

 

2A. Prosecution story as contained in the FIR (Exh.PA /3) lodged on the complaint (Exh.PA) of Ishaq Shah son of Mouj Shah, caste Qureshi Hashmi (P.W.1) moved against (1) Zaman Shah son of Muhammad Ali Shah, caste Qurashi Hashmi, resident of Chah Jeewan Wala, Pindi Sheikh Musa armed with gun .12-bore, (2) Mubarik Ali son of Muhammad Ali Shah, caste Qurashi Hashmi, resident of Chah Jeewan Wala, Pindi Sheikh Musa armed with gun .12-bore, (3) Ibrar Shah son of Asghar Shah, caste Qurashi Hashmi, resident of Chah Jeewan Wala, Pindi Sheikh Musa armed with gun .12-bore, (4) Israr Shah son of Muhammad Hussain Shah, caste Qurashi Hashmi, resident of Chah Jeewan Wala, Pindi Sheikh Musa armed with gun .12-bore, (5) Muhammad Hussain son of Noor Shah caste Queshi Hashmi, resident of Chah Jeewan Wala, Pindi Sheikh Musa armed with gun 12-bore, (6) Ansar Bibi daughter of Muhammad Ali Shah, caste Qurashi Hashmi, resident of Chah Jeewan Wala, Pindi Sheikh Musa armed with pistol, is that he is resident of Chah Jeewan Wala, Dakhli Pindi Sheikh Musa and involved in zamindara. Mst. Noor Bibi wife of Zahoor Ahmed, daughter of the complainant, was residing in a house situated on other side of the road while there was dispute between son-in-law (damad) of the complainant with the accused persons over a piece of land. On 3-1-2009 at about 9:00 a.m. the complainant along with Talib Shah son of Badar Shah Zahoor son of Muhammad Ali, both Qureshi Hashmi by caste and residents of Chah Jeewan Wala had approached the house of Zahoor Shah in order to settle the issue. At that time daughter of the complainant was kneading in the kitchen when all the accused persons armed with firearms emerged there. Ibrar Shah and Israr Shah while standing in the door raised lalkara to teach lesson for not settling the issue of 'ihata'. Zaman Shah and Mubarik Shah stepped in the house of Ansar Bibi and on hearing the noise Noor Bibi came out of her room. On the lalkara raised by Ibrar Shah etc. Zaman Shah made a straight fire shot with his gun .12-bore, which landed on left cheek of Noor Bibi. Mubarik Ali made a fire shot with his gun .12-bore, which landed on left tricep, as well as, in between neck and shoulder. On receipt of injuries, daughter of the complainant fell down on the ground. Ansar Bibi, Israr Shah and Ibrar Shah remained making firing with their firearms while Muhammad Hussain son of Noor Shah, who was standing at the road armed with gun .12-bore while making firing raised lalkara that in case any person comes forward he would be done to death. The complainant alongwith Talib Talib Shah and Zahoor witnessed the occurrence from inside the room. In the meanwhile many persons of the vicinity attracted to the spot whereas the accused persons while making firing made their good escape. The complainant rushed towards his daughter, who had succumbed to the injuries at the spot.

 

Motive behind the occurrence as portrayed in the crime report was that there was dispute of Zaman Shah etc. with their bother and damad of the complainant Zahoor Shah and prior to the occurrence the parties had quarreled with each other so many times. Due to this grudge the accused had committed the occurrence in which daughter of the complainant, who was pregnant of seven months was done to death.

 

3. The complainant while leaving Talib Shah and Zahoor Shah, P.Ws., to safeguard the dead body was going to report the matter, however, on way to Police Station he met with Muhammad Akbar, S.I. (P.W.5) presented his complaint (Exh.PA) and after endorsing police karvai (Exh.PA/1), P.W.5 transmitted the same through Shahadat 3140/HC to Police Station for lodging the crime report.

 

4. After registration of the case the investigation came up before Muhammad Iqbal, S.I. (P.W.8), who reached the place of occurrence, inspected the dead body, drafted injury statement (Exh.PE), prepared inquest report (Exh.PF) and sent the dead body through Umar Hayat 3228/C for postmortem examination. Thereafter, he prepared rough site plan of the place of occurrence (Exh.PH). From the spot he secured bloodstained earth vide recovery memo Exh.PB. After the postmortem examination last worn clothes of the deceased dopatta (P-2), shirt (P-3), shalwar (P-4) alongwith two sealed phials were produced before the Investigating Officer, which he took into possession vide recovery memo Exh.PG. On 6-1-2009, on the direction of the Investigating Officer and pointing out of the P.Ws., Akbar Ali Nizami draftsman (P.W.10) took rough notes of the place of occurrence and thereafter prepared scaled site plan (Exh.PJ and Exh.PJ/1), which was made part of the file on 9-1-2009.

 

Thereafter, the investigation was entrusted to Abdul Ghani, S.I. (P.W.9), who on 27-3-2009, arrested the appellant and obtained his physical remand. During the course of investigation the appellant after making disclosure led to the recovery of gun .12-bore (P-1), which was taken into possession by the Investigating Officer vide recovery memo Exh.PC.

 

4(sic) After conducting the investigation, the Investigating Officer submitted report under section 173, Cr.P.C. On 10-7-2008, the learned Additional Sessions Judge formally charge sheeted the appellant and his other co-accused to which they pleaded not guilty and claimed trial. Prosecution in order to substantiate its case produced as many as twelve (12) prosecution witnesses.

 

5. Occular account in this case consists of the statements of Ishaq Shah complainant (P.W.1), Zahoor Ahmed (P.W.2) and Talib Shah (P.W.3). The complainant had presented his application before Muhammad Akbar S.I. (P.W.5) while Umar Khan ASI (P.W.6) had chalked out formal FIR. Akbar Ali Nizami draftsman (P.W.10) had prepared scaled site plan of the place of occurrence whereas investigation in this case was carried out by Muhammad Iqbal A.S.-I. (P.W.8) and Abdul Ghani, S.I, (P.W.9).

 

Lady Dr. Rehana Tamkeen (P.W.4) had conducted postmortem examination upon the dead body of deceased and found following injuries on her person:--

 

"(1) A fire arm wound of entrance 5 cm x 3 cm on the left mandible left lower jaw and left mandible bone was broken. Dark coloured blood was coming out of this wound. No exit wound of this injury was found.

 

(2-i) A fire arm wound of entrance 7 cm x 5 cm on the inner side of left upper arm near shoulder. Left humurus bone was broken.

 

(ii) A fire arm wound of exit 8 cm x 6 cm on the back of left upper arm with everted margins.

 

(iii) An interrupted dark brown mark on the top of front of left shoulder 1.5 cm x 8 cm."

 

After conducting the postmortem examination, the doctor had rendered the following remarks:--

 

"In my opinion, the death of lady was mainly due to injury No.1 by fire arm on the left mandible that damaged the main vessels of the left side of neck and mouth leading to huge external haemorrhage, internal haemorrhage shock and death. Injury No.2 was also by fire arm and contributing factor towards death. Both the injuries were ante-mortem and were sufficient to cause death in the ordinary course of nature. The probable time that elapsed between injuries and death was 5 to 10 minutes about and between death and post mortem was 8 hours about."

 

Statements of rest of the prosecution witnesses are formal in nature.

 

6. Vide his statement recorded on 18-11-2009 learned ADPP gave up Dilshad Ahmed Moharrar, Aish Behadar son of Badar Shah and Rizwan Shah, P.Ws., being unnecessary and after tendering in evidence the report of Chemical Examiner (Exh.PL) and report of Serologist (Exh.PM), he closed the prosecution evidence.

 

7. The appellant was also examined in terms of section 342, Cr.P.C; wherein he opted neither to appear as his own witness in terms of Section 340(2), Cr.P.C. in disproof of allegations levelled against him in the prosecution evidence nor opted to adduce evidence in his defence. While replying to the question why this case against him and why the P.Ws. deposed against him, the appellant made the following deposition:--

 

"It is a case in which facts were not truly stated. Zahoor shah P.W. is my real brother, whereas Mst. Noor Bibi deceased was his wife. Ishaq Shah P.W. is father in law of Zahoor Shah, Anser Bibi is my real sister and Talib Shah is other close relative of Ishaq Shah. There is admitted enmity between Talib Shah and myself. I, Mubarik Shah, Zahoor Shah were living in one Haveli but in different rooms. Mst. Anser Bibi, accused is my sister as well as that of Zahoor P.W. In the days of occurrence, she along with her minor child was living with me in the same Haveli. Unluckily, the occurrence has taken place all of sudden because just before the occurrence, minor son of Mst. Anser Bibi who had fallen ill and we were bound to bring him to Hospital for treatment. I was standing outside the Haveli whereas Mst. Anser Bibi had gone to fetch underlay/cover for her minor son from the room but she was stopped from opening the door and an altercation took place between Answer Bibi and Mst. Noor Bibi deceased. Mst. Noor Bibi picked up a hatchet and gave a hatchet blow from its wrong side on the hands of Anser Bibi. On hearing noise reached at the spot and admonished Mst. Noor Bibi who used filthy language against me and also tried to launch attack with hatchet. I was provocated by this act of Mst. Noor Bibi and under sudden provocation without any intention, background of enmity, pre-meditation in the given circumstance acted in the manner, which resulted into the present occurrence. I had no intention to commit her murder and there was no direct motive directly to me. I had no intention to kill un-born child. Un-born child died in womb of her mother sequel to my first act, which was unintentional. The P.Ws. are related inter se and with the deceased and thus inimical towards me having a background of admitted enmity. P.Ws. after consultation and deliberation lodged the present FIR by twisting real facts. My first version during the investigation was also the same as stated supra, which was found correct by all the Investigating Officers including S.P./RCB, Faisalabad. I am innocent."

 

9. After hearing the arguments advanced by the learned counsel appearing on behalf of both the parties, the learned trial court, while evaluating the evidence available on record found version of the prosecution proved beyond shadow of reasonable doubt, resulting into conviction of the appellant in the above stated terms.

 

10. Today during the course of arguments it was pointed out that nevertheless the prosecution is consistent from day one that at the time of her death Noor Bibi deceased was pregnant by 28 weeks, which was also corroborated by the statement of Lady Dr. Rehana Tamkeen (P.W.4), who had conducted postmortem examination upon the dead body of deceased, however, while conducting trial, the learned trial court vide order dated 10-7-2008 had framed the following charge:-

 

"Firstly, that on 3-1-2009 at about 9-00 a.m. (day) in the area of Chah Jewan Wala Pindi Sheikh Musa falling within the territorial jurisdiction of Police Station Bahalak, you above mentioned accused persons while armed with deadly weapons in prosecution of your common object committed rioting, thus, you have committed an offence punishable under section 148, P.P.C. which is within the cognizance of this court.

 

Secondly, that on the same day, time and place, you all the above mentioned accused persons while armed with deadly weapons in prosecution of your common object committed Qatl-i-Amd of Noor Bibi daughter of Ishaq Shah complainant of this case by firing. Thus, you all have committed offences punishable under sections 302/49, P.P.C. which are within the cognizance of this court.

 

And I hereby direct you to be tried by this court on the aforesaid charges."

 

Hence, while framing the charge the factum of consequence of death of the unborn baby of 28 weeks remained unattended by the learned trial court. Admittedly under the provisions of section 237, Cr.P.C. if the court comes to the conclusion that from the evidence adduced during the course of trial ingredients of some offence other than the charge already framed are made out, it is empowered to record conviction even under that offence. Provisions of section 237, Cr.P.C. are reproduced as under:-

 

"237 When a person is charged with one offence, he can be convicted of another. (1) If, in the case mentioned in section 236, the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed although he was not charged with it."

 

Perusal of record also reveals that while passing the impugned judgment the learned trial court had convicted the appellant under section 302(b), P.P.C., for the death of Mst. Noor Bibi, however, to the extent of death of unborn child (28 weeks), the learned trial court had convicted the appellant under section 338-C, P.P.C. Now the question before this Court is whether to the extent of death of unborn child facts of the case satisfy the provisions of section 338-B, P.P.C.? In order to resolve this anomaly it would be advantageous to go through the provisions of section 338-B, P.P.C., which are reproduced here in below:--

 

"338-B. Isqat-i-janain. Whoever, causes a woman with a 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-janain."

 

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'. Analogy in this regard can be drawn from Article 128(1) of the Qanun-e-Shahadat Order, 1984, which reads as under:--

 

"128. Birth during marriage conclusive proof of legitimacy.--(1) The fact that any person was born during the continuance of a valid marriage between the mother and any man and not earlier than the expiration of six lunar months from the date of the marriage, or within two years after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate child of that man..."

 

From the above provision of Article only inference can be drawn is that after six months of pregnancy, a female can give birth to a child.

 

12. As far as Islamic concepts on this issue are concerned, from the books of 'Ahadiths' it is established that after 120 days Allah (Almighty) blows soul into the fetus. In Sahih Al-Bukhari, Volume 4, Book 55 at number 549, it finds narrated as under:--

 

"Narrated Abdullha: Allah's Apostle, the true and truly inspired said, "(as regards your creation), every one of you is collected in the womb of his mother for the first forty days, and then he becomes a clot for an other forty days, and then a piece of flesh for another forty days. Then Allah sends an angle to write four words: He writes his deeds, time of his death, means of his livelihood, and whether he will be wretched or blessed (in religion). Then the sould is breathed into his body....".

 

13. Moreover, while dealing a similar question in the case of Hakim Ali v. The State (2013 YLR 2169), the Hon'ble Singh High Court had held that murder of a woman having unborn child of 7/8 months tantamounts to double murder. Relevant portion of the judgment reads as under:--

 

"---Accused had committed double murder, of his wife and an unborn son of about 7/8 months in a brutal manner, which act of accused was highly condemnable and required strict punishment..."

 

14. In sequel to what has been discussed above this Court has arrived at an irresistible conclusion that during the occurrence not only Mst. Noor Bibi lost her life rather a male child of 7 months also met unnatural death and his death in the above scenario is beyond the provisions of section 338-C, P.P.C. Hence, conviction/sentence recorded by the learned trial court under section 338-C, P.P.C., is not maintainable in the eyes of law. For the foregoing reasons, we have been persuaded to remand the case to the learned trial court for recording evidence of the relevant prosecution witnesses afresh and also provide opportunity to the defence for cross-examination, if any, and then re-write judgment with regard to applicability of provisions of relevant provisions of Pakistan Penal Code qua death of unborn 7 months child. Learned trial court is directed to decide the case within three months of the receipt of this judgment while keeping itself within the four corners of law. Resultantly, Criminal Appeal No.138-J of 2013 filed by Zaman Shah/appellant is DISMISSED. It is, however, made clear that till re-writing the judgment, the trial of the case in hand to the extent of Zaman Shah/appellant shall be deemed pending before the learned trial court. Murder Reference No.101 of 2010 is answer in NEGATIVE.

 

15. As far as case of rest of the co-accused (Mubarik Ali, Muhammad Hussain, Ibrar Shah, Israr Shah and Mst. Anser Bibi) is concerned, nevertheless they were nominated in the crime report with their specific role, however, during the course of trial while extending them benefit of doubt, the learned trial court had acquitted them of the charge. Subsequently the acquittal was assailed by the complainant through filing Criminal Appeal No.130 of 2010 before this Court, however, it also met the same fate having been withdrawn vide order dated 13-12-2011, which admittedly has attained finality. Hence, at this stage it would not be appropriate to interfere into the matter and to their extent it shall be deemed as a close transaction.

 

16. Case remanded.

 

HBT/Z-20/L Case remanded.


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