The legal discourse surrounding crimes involving foetuses or unborn children presents a complex interplay of penal provisions, judicial interpretations, and societal values. Here is an analysis of the courts’ approaches to such cases with applicable laws and case citations:
1. Legal Framework and Provisions About Unborn and Foetus Deaths
In Pakistan, the Penal Code and related laws recognize crimes involving unborn children through specific provisions, such as:
Section 302, PPC: Pertains to Qatl-i-Amd (intentional murder).
Section 338-B, PPC: Addresses Isqat-i-Janin (miscarriage caused intentionally).
Section 338-C, PPC: Covers unintentional miscarriage or harm to a foetus due to negligence.
Qanun-e-Shahadat Order, 1984 (Art. 128): Establishes the presumption of paternity and legitimacy of children born within a specified timeframe after marriage dissolution.
These provisions recognize a foetus as a legal entity with certain rights, especially in advanced stages of development, equating the foetus to a “person” once it reaches viability (beyond five months of gestation).
2. Judicial Approaches
The courts have taken varying stances based on the facts of the case, evidentiary standards, and the development stage of the foetus. Key observations and judgments are as follows:
(i) Appreciation of Evidence
In 2024 YLR 222 (Sindh High Court), the post-mortem report revealed an eight-month-old foetus, raising questions of paternity. The court criticized the prosecution for failing to investigate the foetus’s murder alongside the mother’s. This oversight cast doubt on the prosecution’s case, leading to the acquittal of the accused.
In 2021 PCrLJ 1706 (Peshawar High Court), the trial court erred by convicting the accused under S. 338-C, PPC, for killing a 39-week-old foetus. The High Court ruled that such a foetus should be considered a “person” under S. 302, PPC, and remanded the case for de novo trial.
(ii) Foetus as a Legal Entity
2015 MLD 795 (Lahore High Court) clarified that a seven-month-old foetus qualifies as a child, not a foetus under S. 338-B, PPC. The court remanded the case for retrial, emphasizing the higher culpability under S. 302, PPC, for causing the death of an advanced-stage foetus.
2021 YLRN 111 (Lahore High Court) underscored inconsistencies in medical evidence and testimonies regarding the foetus’s existence. Benefit of doubt was extended to the accused when evidence failed to substantiate the foetus’s death.
(iii) Interplay with Islamic Law
2015 PLD 327 (Supreme Court) addressed paternity and legitimacy under Islamic law. Art. 128 of the Qanun-e-Shahadat protects the legitimacy of children born during marriage or within two years of its dissolution, barring denial of paternity within specified periods.
In 2006 SCMR 228, the Supreme Court upheld convictions for the murder of multiple individuals, including an eight-month-old unborn child, recognizing the foetus’s rights and the heinous nature of the act.
(iv) Negligence and Intent
1985 PCRLJ 1628 (Lahore High Court) involved the death of a woman carrying a four-month-old foetus. The court considered mitigating circumstances due to provocation, convicting the accused under S. 304, PPC, instead of S. 302, PPC.
2014 MLD 1033 (Sindh High Court) highlighted the need for corroborative medical evidence to establish claims of foetal death due to negligence or assault. The court dismissed a complaint lacking such evidence.
(v) Terrorism Implications
In 2022 YLRN 137, the Sindh High Court ruled that the public murder of a pregnant singer fell under the ambit of terrorism due to its societal impact, affirming the Anti-Terrorism Court’s jurisdiction.
The courts generally recognize the foetus as a separate victim when its development surpasses five months, leading to its treatment as a “person” under S. 302, PPC. Also Evidentiary inconsistencies, such as delayed post-mortem or inadequate investigation, often result in acquittals or retrials.
Islamic principles deeply influence judicial reasoning, especially regarding the legitimacy and rights of the unborn.
Furthermore the context of the crime, including intent and societal impact, can elevate the severity of the charges (e.g., terrorism implications).
The recognition of foetuses and unborn children as victims in criminal and civil matters has emerged in various contexts in Pakistan’s legal system. These situations reflect an evolving judicial understanding of the rights of foetuses as distinct victims under the law. Below are some key contexts where these rights have come up, supported by relevant citations:
1. Murder of the Mother and Foetus
When a pregnant woman is murdered, the foetus she is carrying is often treated as a separate victim. Courts have had to determine whether charges under Section 302, PPC (Qatl-i-Amd) or Section 338-C, PPC (Isqat-i-Janin) apply based on the foetus’s stage of development.
2021 PCrLJ 1706 (Peshawar High Court)
Context: A woman carrying a 39-week-old cephalic foetus was murdered. The trial court charged the accused under S. 338-C, PPC (foetal harm) instead of S. 302, PPC.
Outcome: The High Court held that a foetus beyond 5 months should be treated as a “person,” warranting S. 302, PPC for intentional murder. The case was remanded for re-trial under S. 302, PPC.
2015 MLD 795 (Lahore High Court)
Context: A seven-month-old foetus died along with the mother during a murder. The court criticized the trial court for applying S. 338-C, PPC, and emphasized the foetus’s recognition as a separate victim under S. 302, PPC.
Significance: Highlighted the higher culpability for advanced-stage foetal deaths.
2023 PCrLJ 387 (Quetta High Court)
Context: A man was convicted of murdering his pregnant wife (three months pregnant) and injuring his mother.
Outcome: The court recognized the unborn baby as a victim, affirming that the prosecution had sufficiently proven the charges, including the unborn child’s murder.
2. Miscarriage or Harm to Foetus by Assault
Assault causing miscarriage or harm to a foetus raises questions of intentionality and negligence under Sections 338-B and 338-C, PPC.
2018 PCrLJ 1326 (Karachi High Court)
Context: A woman alleged she miscarried due to an assault by her neighbors.
Outcome: The court granted bail to the accused, citing lack of immediate medical evidence and delayed reporting of the incident.
2014 MLD 1033 (Sindh High Court)
Context: A complainant claimed police officers assaulted his wife, causing a miscarriage.
Outcome: The court dismissed the application due to insufficient medical evidence and lack of credibility in the allegations.
3. Foetus as a Victim in Domestic Violence
Foetuses have been considered victims in cases of domestic violence leading to death or harm.
2021 YLRN 111 (Lahore High Court)
Context: A woman alleged her pregnancy was terminated due to domestic violence.
Outcome: The court extended the benefit of doubt to the accused due to contradictions in medical evidence and witness testimonies.
4. Terrorism and Public Impact
Foetal deaths resulting from acts of terrorism or public crimes are treated as serious aggravating factors.
2022 YLRN 137 (Sindh High Court)
Context: A pregnant stage performer was killed in a public event, causing the death of her unborn child.
Outcome: The court ruled that the case fell under the ambit of terrorism due to the public fear caused and upheld the jurisdiction of the Anti-Terrorism Court.
5. Legal Recognition of the Foetus’s Personhood
The courts have clarified that a foetus becomes a “person” in the legal sense once it reaches viability or advanced development.
2021 PCrLJ 1706 (Peshawar High Court)
Key Principle: A foetus beyond five months (120 days) with formed organs is considered a child under Islamic law and S. 302, PPC.
2015 MLD 795 (Lahore High Court)
Key Principle: After six months of gestation, the foetus matures into a “child,” warranting full legal protections as a person.
6. Complications in Investigations and Prosecution
Foetuses’ rights as victims are sometimes overlooked due to investigative lapses, delayed post-mortems, or lack of forensic evidence.
2024 YLR 222 (Sindh High Court)
Context: A victim was carrying an eight-month-old foetus, but the prosecution failed to investigate the unborn child’s death.
Outcome: The court acquitted the accused, noting the prosecution’s failure to prove the foetus’s murder.
7. Grave and Sudden Provocation
Courts have considered foetal deaths in the context of grave and sudden provocation in mitigating or altering charges.
1985 PCrLJ 1628 (Lahore High Court)
Context: A woman carrying a four-month-old illegitimate foetus was killed by her relative.
Outcome: The court convicted the accused under S. 304, PPC (culpable homicide not amounting to murder), instead of S. 302, PPC, recognizing provocation.
8. Paternity Disputes and DNA Evidence
Foetal rights also intersect with paternity issues, particularly under Islamic law, when legitimacy or paternity is contested.
2015 PLD 327 (Supreme Court)
Key Issue: The Supreme Court emphasized the protection of the legitimacy of unborn children under Art. 128 of the Qanun-e-Shahadat Order, 1984, barring baseless challenges to paternity.
The rights of foetuses and unborn children in Pakistan have been recognized across diverse legal contexts, including murder, domestic violence, negligence, and terrorism. Courts have repeatedly emphasized the importance of medical evidence and the advanced stage of gestation in determining culpability and applicable legal provisions. These judgments reflect a nuanced approach to protecting foetuses while balancing evidentiary and procedural fairness.
