PESHAWAR: Peshawar High Court has ruled that killing of a woman in advanced stage of pregnancy should be treated as double murder and the accused persons should also be tried for intentional murder of the unborn child.

A bench consisting of Justice Mohammad Ijaz Khan and Justice Sabitullah Khan has set aside conviction of six persons including a juvenile in an honour-related murder of a woman relative and ordered fresh trials by including charge of intentional murder of the unborn child of the deceased.

The bench accepted two appeals field by convicts named Safeer Khan, Taj Mohammad, Noor Hameed, Sultan Room, Shehzad Khan and a juvenile, and ordered that as they had been imprisoned for around two years, therefore, they should be set free on bail by furnishing two surety bonds of Rs100,000 each.

All the appellants were convicted by trial courts including a juvenile court in two separate trials on Nov 29, 2024, in Dir Lower district.

Bench sets aside conviction of six accused, orders fresh trial

They were sentenced to life imprisonment and fined Rs500,000 each under section 302 (intentional murder) of Pakistan Penal Code. They were also convicted under section 338-C (punishment for causing miscarriage of child some of whose limbs or organs have been formed) of PPC and were sentenced to three years imprisonment and also ordered to pay 1/20th of the diyat amount.

The bench ruled that in facts of present case, where fetus had reached full formation, appropriate provision of law was section 302 PPC (intentional murder) and not section 338-C.

The bench ruled that the present appellants had wrongly been convicted and sentenced under section 338-C PPC instead of section 302 PPC for causing death of fetus of the deceased woman.

Setting aside their conviction, the bench directed that cases of both the minor as well as major appellants were remitted back to respective trial courts for de-novo trial after framing distinct charges against them under section 302 PPC instead of section 338-C PPC for murder of the deceased Yasmeen Bibi as well as her unborn child.

The FIR of the occurrence was registered at Samarbagh police station in Dir Lower, on June 30, 2022, wherein additional SHO Abdul Qayar Khan was complainant.

The complainant claimed that police had received information that body of Yasmeen Bibi had been lying on rooftop of her house. On inquiry, the complainant stated, two minor daughters of the deceased, who were present at the place of occurrence, said that their father and other accused-persons had killed their mother.

Police suspected that the murder was committed on pretext of honour.

The bench noted that by the time when the woman was killed by present appellants including her husband Safeer Khan, she was pregnant having a fetus of 37 weeks in her womb, therefore, prosecution had included section 338-C PPC related to Isqat-i-Janin in the FIR.

Referring to medical evidence related to the deceased, the bench observed that it was an admitted fact on the record that at the time of her death the deceased woman was having 37 weeks pregnancy.

In its 15-page detailed judgement authored by Justice Sabitullah Khan, the bench framed two queries: what was the legal status of the unborn child; and, whether trial court was justified in framing charge against appellants under section 338-C PPC for causing death of fetus carried by the deceased woman.

The bench referred to earlier judgements of the superior courts wherein identical matter was discussed observing that in one of the verdicts related to murder of a woman carrying fetus of about 7/8 months, Sindh High Court had ruled that the accused had committed double murder of his wife and her unborn child.

In another judgement, the bench observed, a bench of Lahore High Court had ruled in light of a tradition of Holy Prophet (peace be upon him) that a fetus which had remained in womb of its mother for more than six months fell within definition of a ‘child’.

The bench ruled that the appellants had wrongly been convicted under section 338-C PPC instead of section 302 PPC for causing death of the fetus of the deceased woman.

Published in Dawn, May 5th, 2025