MUHAMMAD WAHEED KHAN, J. This judgment shall decide Criminal Appeal No.25 of 2018 filed by appellant (against his conviction and sentence) and M.R. No.79 of 2019 forwarded by the learned trial Court for confirmation of death sentence awarded to the appellant or otherwise. As both the matters have arisen out of the same judgment dated 19.12.2017 passed by the learned Additional Sessions Judge, Rawalpindi in case FIR No.151 dated 13.03.2017 registered u/s 302 PPC at Police Station Pir Wadahi, Rawalpi ndi, whereby the appellant was convicted and sentenced as under;- Under section 302(b) PPC awarded death sentence as Ta'zir. He was also directed to pay compensation of Rs.2,00,000/- u/s 544-A Cr.P.C. to the legal heirs of deceased Khurshid, which was ordered to be recovered as arrears of land revenue and in default whereof, to undergo six months simple imprisonment.
2. Complainant Sh. Naveed Ahmad (PW-6), while lodging the above said FIR narrated the prosecution story as under;- "That he alongwith Sadaqat Nadeem/PW -9 at 4.50 a.m. in connection with some work reached in front of New Khyber Hotel, Pir Wadahi. Meanwhile, his elder brother , namely , Sheikh Khurshid Ahmad, who was taxi-driver , was sitting on a chair outside the above referre d Hotel. On seeing them, Khurshid called them and asked them for a cup of tea. Khurshid made order for tea. Tea was not brought by the hotel waiter , then Khurshid Ahmad went to the counter of the hotel. Again Khurshid asked the waiter for tea but he replied with angry . Khurshid took his mobile from the counter , which he had already put on charging. At that time, waiter was also present at the counter , who started quarreling with Khurshid. In the meanwhile, Munshi/Manager of the hotel also attracted to the counter and tried to pacify the matter . Meanwhile, said waiter namely , Raja Fahad Khan picked up Churi from the counter and inflicted Churri blow at Khurshid Ahmad which landed on the right side of his chest and accused Raja Fahad made second Churri blow which landed under the navel on the abdomen on right side of the navel. Khurshid Ahmad injured fell down on the ground and accus ed Raja Fahad fled from the place of the occurrence while waving Churri.
He alongwith Sadaqat Nadeem also chased accused Raja Fahad but he succeede d to flee away . They returned to attend Khurshid Ahmad. Rescue 1122 also reached at the spot who shifted the injured to Holy Family Hospital.
Khurshid Ahmad succumbed to the injuries in way to the Hospital, hence, this case."
3. Dr. Azhar Farooq CMO, Holy Family Hospital, Rawalpindi appeared as PW-8, who conducted autopsy of Khurshid Ahmad deceased on13.03.2017 at 07:00 a.m. He observed two injuries on person of the deceased and noted probable time between injuries and death was immediate, whereas between death and postmortem was half hour.
4. After registration of the case, investigation was carried out by the police and on completion of the same, report u/s 173 Cr.P.C. was submitted before the learned trial Court. Thereafter , learned trial Court after observing codal formalities, framed charge against the appellant, which was denied by him, hence, the trial commenced.
5. In order to prove the ocular account, the prosecution produced eye-witnesses Sheikh Naveed Ahmad and Sadaqat Nadeem as PW-6 and PW-9. Aamir Mehmood SI, who conducted investigation of the case appeared as PW-7. Whereas remaining PWs were of formal in nature. Thereafter , the prosecution closed its evidence by producing reports of Punjab Forensic Science Agency (PFSA) as Ex-PN, Ex-PO and Ex-PP .
6. After recording the prosecution evidence, appellant was examined u/s 342 Cr.P.C., wherein he denied all the allegations leveled against him. He neither appeared as his own witness u/s 340(2) Cr.P.C. nor produced any evidence in his defence.
7. Learned trial Court after appraisal of prosecution evidence convicted and sentenced the appellant in the above mentioned terms, hence, this appeal and Murder Reference.
8. In support of the instant appeals, learn ed counsel for the appellants have contended that the prosecution has failed to prove the case against the appel lants beyond reasonable shadow of doubt; that although while lodging the instant crime report, the complainant Usman Arshad (PW-11) had not only given the detail of injuries attributed to each accused at the person of the deceased Umar Arshad but also on the person of injured Muhammad Zahid (PW-10), however , the fatal head injury at the person of the deceased had not been attributed to any accused; that same was the position before the learned trial court as no prosecution witness had attributed that injury to any accused; that despite availability of firearm weapon i.e. pistol 30-bore with one of the accused, it had not been used to get away from the deceased, which shows that actually the assailants did not want to kill the deceased; that cause of death was mentioned as head injury by Dr. Qaiser Aziz Medical Officer (PW-8) and he had based his opinion on the CT Scan report but the Doctor/Radiologist, who conducted the CT Scan had not been produced by the prosecution as a witness before the learned trial court, so under the circumsta nces, the appellants cannot be held guilty of committing murder (Qatl-i-A md) of Umer Arshad and at the maximum, they can be held guilty to the extent of injuries, allegedly caused by them on the person of deceased Umer Arshad and injured Muhammad Zahid (PW-10) and lastly prayed that the appellants be acquitted of the charge of murder .
9. Conversely , learned Deputy Prosecutor General assisted by the learned counsel for the complainant while defending the impugned judgment has submitted that sufficient irrefutable evidence against the appellants is available on the record; that if depositions of the prosecution witnesses are considered alongwith documentary evidence and Medical evidence, it is crystal clear that their evidence is natural, trustworthy and acceptable, however , learned counsel for the complainant conceded that the fatal injury , which resulted into death of the deceased Umer Arshad, had not been attributed to any of the accused nominated in the FIR including the present appellants and lastly , prayed that the appeals filed by both the appellants are liable to be dismissed.
10. We have heard the arguments of learned counsel for the parties and have perused the record with their assistance.
11. We noted that Usman Arshad complainant of the case, while lodging the crime report before the police, claimed to be present at the crime scene and witnessed the occurrence alongwith Bilal Arshad and Hamza Zahid (given up PWs being un-necessary), when the assailants nominated in the FIR assaulted on his brother Umer Arshad (deceased) and Muhammad Zahid (injured) on 04.07.2013 at about 7:40 a.m. in the area of Malikabad. Firstly , appellant Umer Farooq made a danda blow which hit Muhammad Zahid (injured) on the back of the head, thereafter , he made four danda blows on the tibia of right leg of Muhammad Zahid. Brother in law of co-accused Usman made a danda blow which hit on the right elbow of Muhammad Zahid. Appellant Zaheer Ahmad made a danda blow which hit on the tibia of left leg of Muhammad Zahid. An unknown accused person made a danda blow which hit thumb of left hand of Muhamm ad Zahid. Another unknown accused person armed with pistol 30 bore threatened the complainant party of dire consequences to keep them away . Appellant Umer Farooq made danda blow which hit left leg of Umer Arshad (deceased), brother in law of co-accused Usman gave danda blow on the left knee of Umer Arshad. Appellant Zaheer Ahmad gave danda blow which hit on right arm of Umer Arshad. Unknown person made a danda blow which hit on the middle finger of right hand of Umer Arshad. Unknown accused gave a danda blow which hit on the nose of Umer Arshad. Thereafter , the accused persons fled away from the spot while making aerial firing. Both the injured had been shifted to THQ Hospital, Taxila, where the Investigating Officer prepared their injury statements.
12. Dr. Qaiser Aziz (PW-8) attended both the injured on the same day and issued their Medico Legal Certificates (MLCs). While giving the details of injuries available at the person of Muhammad Zahid (PW-10), the Doctor (PW-8) had mentioned eight injuries at his person, whereas he noted seven injuries at the person of Umer Arshad (injured at that time) and kind of weapon through which the said injuries had been caused was declared as blunt weapon and probable time of injuries was given as within four hours. The opinion regarding injuries No.1 to 7 sustained by Umer Arshad was kept under observati on and referred to DHQ Hospital, Rawalpindi for X-rays, however , he succumbed to the injuries in DHQ Hospital, Rawalpindi on 05.07.2013 and the said Medical Officer (PW-8) conducted his postmortem examination and noted six injuries on his dead body . However , he reserved his opinion regarding cause of death till the receiving of reports of samples from the Chief Chemical Examiner . After receipt of Forensic Toxicology Analysis Report, no drug/poison is detected in liver and gastric contents in item No.1. Since Umer Arshad (injured at that time) was managed to DHQ Hospital, Rawalpindi before his death, so, to get help in knowing the cause of death, the hospital record and investigations done before his death including CT Scan of brain was requisitioned by the Medical Officer (PW-8) and on going through the same, the said PW observed as under;- "Stated that I declared the cause of death on 18.07.2016, after receiving the document from the DHQ Hospital, Rawalpindi which were duly attested by M.S. DHQ Hospital Rawalpindi. The documents included notes by Surgical Unit doctors and Ward files, including notes by Neurosurgery Unit and death slip. The treatment documents suggest that he was labeled as a case of head injury . Though CT Scan films and X-rays were not produced, however , the death slip indicated CT Scan findings i.e. diffuse axonal injury , which is consistent with head injury .
Combining all the information i.e. postmortem finding of multiple injuries, negative forensic toxicology and treatment documents of DHQ Hospital Rawalpindi, it is concluded that the cause of death in this case was head injury secondary to assault."
He (PW -8) further observed that;- "I also endorsed injury statement of deceased Ex.PM when he was examined in injured condition and Ex.PN (application for postmortem examination). I also endorsed the inquest report Ex.PO (2 pages).
13. After going through the depositions of eye-witnesses, namely , Muhammad Zahid (PW-10) and Usman Arshad (PW-11), evidence of Medical Officer (PW-8) and the documents, i.e. Medico Legal Report, postmortem report, injury statement and inquest report prepared by the Investigating Officer, we noted that neither the injury resulted into death of deceased Umer Arshad was attributed by either of the eye-witnesses to any accused nor the Investigating Officer nor the Medical Officer while conducting MLC and postmortem of the deceased observed that injury . While giving answer to a question put to the Medical Of ficer (PW -8), he replied as under; "It is correct that no head injury is mentioned in Ex.PM. It is correct that as per physical condition of Umer Arshad at the time of examination as mentioned in Ex.PJ, he was well oriented in time, place and person. After his medical examination, I mentioned his pulse 80/Muhammad, BP 110/70, Temperature A/F (normal), respiratory rate 16 (normal). It is correct that during medical examination I did not mention in Ex.PJ head injury on the person of Umer Arshad (deceased)."
Meaning thereby that till that point of time, everybody related to the case was of the view that there was no head injury available at the person of Umer Arshad (deceased)
14. Another aspect of the case is that the Medical Officer (PW-8) had given his opinion regarding the cause of death while going through the documents produced before him by the M.S. DHQ Hospital, Rawalpindi, which included notes by Surgical Unit doctors and Ward files, including notes by Neurosurgery Unit and death slip and the treatment documents suggested that he was labeled as a case of head injury . Although CT Scan Film and X-rays were not produced before him, however , the death slip indicated CT Scan findings, which was consistent with head injury . But during the course of trial, the prosecution has produced only Dr. Qaiser Aziz Medical Officer (PW-8), who conducted medical and postmortem examination of the deceased but the Techni cian and doctor/radiologist, who got conducted the CT Scan had not been adduced as prosecution witnesses before the leaned trial court. Even both of them were not associated by the investigating agency during the course of investigation. So under the circumstances, no probative value can be attached with the CT Scan report or other documents on the basis of which, the Medical Of ficer (PW -8) formed his opinion regarding cause of death of Umer Arshad (deceased).
15. Upshot of the above discussion is that according to the case of prosecution, injury (head injury), which resulted into the death of the deceased had not been attributed to any of the accused including the present appellants, so, it is not clear till date that how and when the deceased received that fatal injury . The law is very clear that only report of Chemical Examiner or Serologist etc, are per se admissible under section 510 of the Code of Criminal Procedure, 1898 (Cr.P.C.) and the CT Scan report submitted by the Radiologist was not covered under the said provision of law and it was incumbent upon the prosecution to produce the said witness, who got conducted the CT Scan as a witness.
16. There is yet another aspect of the case that according to the prosecution case, one accused/assailant was having a pistol 30 bore in his hand and he also made ineffective firing while fleeing from the spot and the Investigating Officer had also secured four crime empties of pistol 30 bore from the crime scene but admittedly , the said unknown accused had not made firing on any member of the complainant party including the deceased and the injured Muhammad Zahid. So there is force in the assertions of learned counsel for the appellants that assailants had not intended to kill any person from complainant side. Had there been any intention on part of the assailants, the firearm weapon must had been used to get away from the decease d. Even, learned counsel for the complainant and learned Law Officer have conceded this point that since the prosecution has not established its case that who caused the fatal blow to the deceased and also there was no intenti on of any of the assailants to kill the deceased, so, the instant case was not a cause of Qatl-i-Amd. So under the circumstances, convictions and sentences u/s 302(b)/324 PPC cannot be sustained. However , the prosecution case is consistent from the day one regarding attribution of injuries to both the appellants and their co-accused, who are still proclaimed offenders (P.Os), so, we observe that convictions and sentences of both the appellants under u/s 337-F(v)/337-F(i)/337- F(iv)/337-A(ii) PPC had been rightly awarded to them by the learned trial court.
17. For the foregoing reasons, we partly allow the appeals filed by both the appellants and acquit them of the charges u/s 302 (b)/324 PPC. Convict ions and sentences awarded to them against the said offences (as mentioned above) are set aside, as the prosecution remained failed to prove its case against them. Whereas, convictions in rest of the offences u/s 337-F(v)/337-F(i)/337-F(iv)/337-A(ii) PPC and sentences awarded against the said offences to both the appellants (as mentioned above) are maintained. All the sentences shall be run concurrently and benefit of section 382-B Cr.P.C. is also extended to both the appellants. Consequently , Murder Reference No.106 of 2017 is answered in the NEGA TIVE and death sentence of the appellant Umar Farooq is NOT CONFIRMED . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.