DORAB PATEL, J.-The appellants have been convicted under section 302/34, P. P. C. By an Additional Sessions Judge, Karachi for the murder of one Munshi Ashiq. The appellant Ghalib Pervez has been sentenced to death, whilst the other appellant has been sentenced to trans--portation for life. Both the appellants have filed an appeal against their conviction and sentence. The case has also come up for confirmation of the sentence of death against the appellant Ghalib Pervez, therefore I shall dispose of the reference and the appeal by this judgment.
2. The prosecution version of the occurrence as stated in the F. I. R. (Exh. 9) lodged by P. W.
Muhammad Shah is as follows On 9th November 1969, at about 2 p. m. P. W. Muhammad Shah was selling his goats in Bakra Piri and Ashiq Munshi (the deceased), was standing near him. This was a few paces from the hotel of one Nizamuddin and the appellants were standing in front of that hotel. (Deceased) Ashiq Munshi told P. W. Muhammad Shah that he had come to collect some motley due to him from the appellant Faiz Muhammad Ashiq Munshi therefore went to speak to Faiz Muhammad. After a few minutes, P. W. Muhammad Shah saw Faiz quarrelling with Ashiq Munshi and giving him flaps, then the other appellant gave Ashiq Munshi a blow with a knife to his chest. Ashiq Munshi started walking to the police station which was only two furlongs away, but ha fell down on account of his wound. Meanwhile P. Ws. Muhammad Shah and Dad Muhammad tried to catch the appellants, but they ran away. P. W. Ghulam Sarwar put Ashiq Munshi in a taxi and took him to the Civil Hospital for treatment whilst P. W. Muhammad Shah went to the police station to lodge the F. I. R. The F. I. R. (Exh.
9) was recorded by P. W. Muhammad Ayoob, S. H. O. Of the Kalakot Police Station. After recording the F. I. R. P. W. Muhammad Ayoob, S. H. O. Went to see Ashiq Munshi in the Civil Hospital, but the doctor told him that the injured was not in a fit condition to make any statement. Accordingly. P. W.
Muhammad Ayoob. S. H. O. Went from the hospital to the wardat and com--menced investigations. He prepared a mashirnama of the wardat, but that is not relevant because no blood could be traced any where. P. W. Muhammad Ayoob, S. H. O. Then recorded the statements of P. Ws.
Dad Muhammad and Ibban and of five or six other persons. A couple of days later, P. W.
Muhammad Ayoob, S. H. O. Wrote to the Civil Hospital for permission to meet Ashiq Hussain but this was refused. Thereafter, the Investigation Officer did not make any attempt to record the statement of Ashiq Munshi. However on 17th November, 1969 he arrested appellant Ghalib at a laundry where that appellant had gone to collect his clothes. P. W. Muhammad Ayoob, S. H. O.
Secured these clothes from this appellant and arrested him. But I may point out here that as the clothes were not blood-stained they are of no relevance. A few days later the appellant Ghalib offered to produce the knife used by him in the occurrence and accordingly P. W. Muhammad Ayoob went with the appellant, accompanied by two mashirs P. Ws. Bundo and Abdul Rehman. The appellant took them to the old Haji Camp and from a pit near a wall he produced a knife which P.
W. Muhammad Ayoob, S. H. O. Secured vide the mashirnama (Exh. 25). However, the knife was not blood-stained. Then, on 2nd Decem--ber, 1969 P. W. Muhammad Ayoob S. H. O. Was informed by the Civil Hospital that Ashiq Munshi had died but that his dead body had been given to his relations. Accordingly, P. W. Muhammad Ayoob rushed there but an inquest report was already being prepared by another police officer. P. W. Lal Hussain then produced the clothes of the deceased, which had been given to him by the hospital, and P. W. Muhammad Ayoob secured them vide the Mashirnama (Exh. 12). In due course, the other appellant was also arrested and after completing investigations, the appellants were challaned as stated.
3. In support of its case the prosecution examined as eye-witnesses of the occurrence F. Ws. Dad Muhammad, Ibban and Muhammad Shah. It also examined P. W. Muhammad Ayoob, S. H. O. And two doctors P. Ws. Shamim Beg and Aleem ul Haq. It examined the mashirs of the knife secured from the appellant, of his arrest and of the recovery of the clothes of the deceased. The prosecution examined in all 17 witnesses, but apart from those mentioned specifically herein, the evidence of the other witnesses is totally irrelevant.
4. Both "the appellants put up a plea of complete denial and the appellant Faiz Muhammad merely stated that the entire prosecution case was false and that he had been falsely implicated. But- the appellant Ghalib Pervez stated that P. W. Ibban had a cabin at the hotel of P. W. Dad Muhammad, that he had borrowed Rs. 35 from P. W. Ibban and that he has not been able to repay it, P. W. Ibban had threatened to punish him. He therefore stated that he had been, falsely implicated on account of P. W. Ibban's enmity. I But he also stated that the Investigation Officer had made a false case against him because of enmity. This appellant examined two witnesses in his defence. Both these witnesses claimed to have been present at the occurrence, but according to them it was P. W. Dad Muhammad who had stabbed Ashiq Munshi after a fight and they further stated that the appellant Ghalib Pervez, whom they knew, was not present at the occurrence.
5. The, learned Additional Sessions Judge preferred the evidence of the prosecution eye-witnesses to that of the two witnesses examined by the appellant Ghalib Pervez. He also accepted the medical evidence as reliable and accordingly he convicted the appellants as stated. They have now come to appeal against their convictions.
6. I have said that the prosecution examined three eye-witnesses, one of whom. P. W. Muhammad Shah had lodged the F. I. R. But in his evidence in the Sessions Court this witness repudiated the prosecution version of the occurrence as set out in the F. I. R. (Exh. 9), and stated that he had come to the wardat after the attack on Ashiq Munshi and had merely seen him lying injured in a lane. He was questioned about the F. I. R. (Exh. 9) lodged by him and after it was read over to him he admitted having signed it at tide police, station. But in his cross-examination he denied having signed the F. I. R. (Exh. 9) at the- police station. He said that he was at the hospital in the evening and the police had made him sign the F. I. R. At the hospital. Although this witness went against the prosecution case he was not declared hostile. Be that as it may, the other two witnesses fully supported the prosecution case and therefore the real point for determination in the appeal of Ghalib Pervez is whether there is any reason for rejecting their evidence.
7. Mr. Nasiruddin pointed out that P. W. Ibban had a cabin for selling "Pan" in the hotel of P. W. Dad Muhammad and that because P. W. Dad Muhammad had attacked Ashiq Munshi both these witnesses had con--spired to give false evidence. And in support of this argument, learned counsel referred us to a statement in the cross-examination of P. W. Muhammad Shah in which that witness had said "Dad Muhammad was present at the police station." And it would appear that P.
W. Dad Muhammad had admitted in the lower Court that the police had, taken him to the police station and had falsely tried to repudiate this statement in his cross-examination in the Sessions Court. But learned counsel was not able to refer us to any other discrepancy in the evidence of this witness, and we would not be justified in rejecting his evidence only because of his fate attempt to hide the fact that he had been called by the police. Additionally, the evidence of this witness is supported by that of P. W. Ibban. As it is the case of the appellants that this witness had a cabin at the hotel near which the occurrence took place it is clear that the witness was a natural witness.
And although the appellant Ghalib Pervez had alleged enmity on account of a money dispute, the witness denied this allegation in his cross-examination. Therefore I do not see how we can reject his evidence, .The more so as Mr. Nasiruddin cold not refer us to any material discrepancy in the evidence of this witness. It is true however that the evidence of these two prosecution witnesses is not consistent with that of D. Ws. Qutbe---Alam and Sikander Khan. As I have pointed out earlier, both the defence witnesses claimed to have seen P. W. Dad Muhammad' stab Ashiq Munshi, and they further stated that the police had made enquiries from them. But v W. Muhammad Ayoob, S. H.
O. Has not said so nor was he cross-examin--ed on the allegation that he or anyone case had examined D. Ws. Qutab-e- Alam and Sikandar Khan. Again, as these witnesses claimed to be eye-- witnesses, they should have been able to identify the weapon with which Ashiq Munshi was attacked. And D. W. Qutbe-Alam said in his examina--petition-in-chief that P. W. Dad Muhammad had used a bread knife for attack--ing the deceased. But in his cross-examination he contradicted himself and said that he had not seen the knife. He admitted that he owned a shop which was 100 or 150 yds. From the wardat. In these circumstances, he appears to be a chance witness. Similarly, I am not impressed by the evidence of D. W. Sikandar Khan either. To explain his presence he said that his brother had a shop near the wardat and that was how he and his brother happened to witness the occurrence. Mr. Memon therefore sub--mitted that this witness was also a chance witness and that we would not be justified in interfering with the appreciation of evidence by the trial Court. There is force in this argument because, as I have said, the appellants did not care to cross-examine the Investigation Officer about D. W. Sikandar Khan's presence at wardat, nor did they cross-examine the eye-witnesses produced by the prosecution on the question of D. W.
Sikandar Khan's presence. But D. W. Sikindar Khan claims to have seen P. W. Muhammad Shah and although that witness was hostile to the prosecution case, the appellant did not dare to cross- examine him on the question of D. W. Sikandar Khan's presence at the wardat. In these circumstances, the evidence of D. Ws. Sikandar Khan and Qutub-Alam does not inspire con-- fidence and I see no reason to interfere with the appreciation of evidence by the Sessions Court.
8. The result of this discussion is that the prosecution has proved that the appellant Ghalib Pervez had given a knife bow to the deceased on his stomach. But according to Mr. Nasiruddin, this was not sufficient to prove the guilt of the appellant Gdalib Pervez under section 302, P. P. C. And in support of this argument, learned counsel took us through the medical evidence. I have pointed out that the prosecution examined P. Ws. Dr. Shamim Beg and Dr. Aleemul Haq, and P. W. Dr. Shamim Beg had admitt--ed the deceased into the hospital on 9th November, 1969. And according to the learned Additional Sessions Judge the evidence of this witness proved that the death of Ashiq Munshi had been caused by the knife blow given by this appellant. However, on examining P. W. Dr. Shamim Beg's evidence we find that he has said: "The cause of death in my opinion was cardiac arrest. This was because his heart had stopped functioning. The heart stopped functioning because of Toaema and Empyema Thoracis." It is true that the witness also said that the knife blow was sufficient to cause death in the ordinary course of nature. This I have read in the jurisprudence of Moodi. I do not remember the Chapter of that book." I have quoted the words of the witness because such evidence does not inspire confidence. Further, as the cause of the deceased's death was "cardiac arrest", how could death have been caused by the stab wound? If the cardiac arrest was the consequence of the stab wound, then P. W. Dr. Shamim Beg should have said so, but he has not said so, and, on the contrary, in his cross-examination he was compelled to admit that the wound had become infectious. It is true that he denied negligence on the part of the hospital, but he was compelled to admit that the wound had become infectious 9 days after the injury to the deceased. I regret to say that this admission suggests the obvious possibility that the death of the deceased might have been caused negligence on the part of the hospital authorities,
9. In the circumstances discussed, it was the duty of the prosecution to produce the hospital records and give evidence about the treatment of Ashiq Munshi at the hospital. But this it did not do, and the only other piece of medical evidence is that of P. W. Dr. Aleemul Haq, who said that he had treated the deceased at the time of his admission into the hospital and sent him to the Surgical Ward. With regard to the injury examined by him when the deceased was admitted into the hospital, P. W. Dr. Aleemul Haq said: "The injury was fresh when I examined the patient. It appeared to have caused by a sharp-edged weapon." But this does not advance the case of the prosecution beyond the fact that it corroborates the ocular evidence that the appellant Ghalib Pervez had used a knife. But the question is of the nature of the wound, and P. W. Dr. Aleem ul Haq has described it in the following words: "Incised wound on front of left side chest in 8th intercostal space 1" x -- " and suspected cavity 'deep with corres--ponding cuts marks on the clothes." It cannot be said from this evidence that the wound was cavity deep, because the doctor had only a suspicion that it might be cavity deep. In these circumstances, the opinion of P. W. Dr. Shamim Beg that the injury inflicted on the deceased was sufficient to cause death is not supported by the evidence on the record. And apart from the prosecution's wilful failure to produce evidence about the treatment of the deceased in the Surgical Ward, the most shocking aspect of the case is that no post-mortem was carried out. The explanation of the Investigation officer was that the body of the deceased had been handled over to the relations before he was informed of the death. But even so, he said that when he reached the place where the body was, and it is significant that this was not disclosed, another S. I. P. Was preparing an inquest report. But as the circum. Stances attracted the provisions of section 174, Cr. P. C. Why did the Investi--gation Officer not insist on a post-mortem? Mr. Nasiruddin therefore invited us to draw a strong adverse inference against the prosecution for its failure to have a post-mortem and referred us to authorities in support of his submission that the appellant's conviction could not be sustained on account of the failure of the prosecution to produce a post---mortem.
10. Not only has the prosecution failed to produce a post-mortem report, but its explanation of its failure invites suspicion, as it did not --examine any one to prove the far-fetched allegation that the hospital authori--ties had handed over the body of the deceased to his relations. And on an-- other hand, the evidence of P. W. Dr. Shamim Beg itself raises the possibility that the death of the deceased could have been caused by negligence on the part of the hospital authorities. In these circumstances. I agree that the prosecution has failed to prove the appellant Ghalib Pervez's guilt under section 302, P. P. C. But aft it has proved that he inflicted-a knife blow on the deceased, the next point for determination is of the offence committed by him. Here it is relevant to point out that even according to P. Ws. Dad, Muhammad and Ibban, the deceased had walked over to the two appellants and demanded money. And I may quote here P. W. Dad Muhammad's description of the occurrence. "The deceased had a talk with accused Faiza. On this account there was a quarrel between accused Faiza and deceased Ashiq. Both of them exchanged blows with each other. The accused Ghaliba, stabbed Ashiq in his stomach. Ashiq kept his hand on the injury and went towards the lane...". Thus, the prosecution case itself proves that solitary blow inflicted by the appellant Ghaiib pervez was in the course of e sudden quarrel, and it is clear that provocation was not sought by the appellant because it was the deceased who wont ever to the appellants an there was a resulting altercation. Bearing in mind also P. W. Dr. Aleemul Haq's statement that the wound was only suspected to be cavity deep, it seems to me that the appellant Ghalib Pervez cannot be credited with the knowledge that the injury inflicted by him was likely to cause death, the more so as it was done on the spur of the moment. Accordingly, for the reasons given herein, after hearing arguments yesterday, we altered the conviction of the appellant Ghalib Pervez from section 302, P. P. C. To section 326, P. P. C. And sentenced him to five years' R. I.
11. I now turn to the case of the other appellant Faiz Muhammad. I have quoted P. W. Dad Muhammad's description of the occurrence, and, as I have pointed out, that evidence establishes that the fight which led to the fatal occurrence was sudden and was not started by the appellants.
Secondly, neither P. Ws. Dad Muhammad nor Ibban have described how the appellant Ghalib Pervez produced his knife, therefore there is no evidence whatever to show that the appellant Faiz Muhammad was aware that his friend, the other appellant, was carrying a knife with him. In these circumstances, bearing in mind the fact that the quarrel between the deceased and this appellant Faiz Muhammad was a sudden and unpremeditated quarrel, I agree with Mr. Nasiruddin that the prosecution has failed to make out the ingre--dients of section 34, P. P. C: against the appellant Faiz Muhammad. Accordingly, we invited Mr. Memon to refer us to any evidence which could bring the case under section 34, P. P. C. But he conceded that there was no such evidence. Therefore, what the prosecution has proved against the appellant Faiz Muhammad is that there was an altercation between him and the deceased in the course of which he slapped the deceased and the deceased returned the compliment. The result is that no once has been proved against this appellant, and for the reasons given herein we set aside his conviction and allowed his appeal on 9-1-1973. As he is on bail his bail bond stands discharged.