WAHIDULLAH vs State Ss — 2021 PCrLJ 1706 PESHAWAR-HIGH-COURT

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WAHIDULLAH VS State Ss. 302(b), 338-C & 449---Criminal Procedure Code (V of 1898), S. 225---Qatl-i-amd, isqat-i-janin, house trespass---Appreciation of evidence---Defective charge---Failure to specify proper provision of law---Accused was charged for committing murder of the daughter of the complainant as well as cephalic foetus of 39 weeks, who was found in her womb, by firing---No denial to the fact that the Trial Court convicted the accused under S. 338-C, P.P.C. instead S. 302, P.P.C., but failed to advance any plausible reason---Trial Court while framing the charge did not take pains to apply its judicial mind to the facts and circumstances of the case to apply the correct section of law, despite the fact that the post mortem report was present before him---In order to ascertain that what should be the correct law on the subject i.e. S. 338-C or S. 302, P.P.C.---Language of S. 338-B, P.P.C. was very much clear which referred to a child, some of whose limbs or organs had been formed---However, in the present case, the child was cephalic foetus of 39 weeks---No controversy in holding that an unborn child whose existence in the mother's womb exceeded five months till its birth was treated no other but a child in existence---Present case was no exception, such a child could be called a person---Section 300, P.P.C. described that whoever, with the intention of causing death or with the intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death, or with-the knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the death of such person, is said to commit qatl-i-amd---Section 338-C, P.P.C., referred to foetus whose some organs were developed and some to develop, so in that eventuality, the exact section of law should have been S. 302, P.P.C. and not S. 338-C, P.P.C.---Thus, Trial Court fell in error while framing the charge under S. 338-C, P.P.C., instead S. 302 P.P.C., as a cephalic child comes within the definition of a person---Needless to mention that framing of the charge under S. 338-C, P.P.C. was a material error and the accused was thereby misled by such omission to defend himself, hence the accused had been prejudiced---Conviction awarded to the accused under S. 338-C, P.P.C., was not maintainable, therefore, appeal was allowed by setting aside the impugned conviction and sentence awarded to the accused and the case was remanded back to the Trial Court for de novo trial after framing charge under S. 302, P.P.C., instead of S. 338-C, P.P.C., to meet the ends of justice.

WAHIDULLAH vs State Ss — 2021 PCrLJ 1706 PESHAWAR-HIGH-COURT

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