MUHAMMAD HALEEM, J.-Hussain Bux stands convicted under section 302, P. P; C., for the murder of Usman Ghani and sentenced to transportation for life by the 1st Additional Sessions Judge, Hyderabad, vide judgment dated 16th November, 1971. He has appealed to impugn his conviction and sentence.
2. According to the prosecution case the incident occurred at 04-30 hours on 13th January, 1969 in front of Habib Hotel, on Station Road, in the city of Hyderabad. Both the deceased and the appellant were employed by Allah Noor in his hotel called "Allah Noor Hotel" and while the former worked as a Bearer, the latter was engaged as a Dish-washer 5/6 days before the incident. The deceased after finishing his work at 02.00 hours went to sleep to his shop. At the stated time, Shamshad who lived in another room close to the shop of the deceased came and informed Khalil-ur-Rehman, another employee of Allahnoor Hotel who was sleeping in the hotel, that Hussain Bux had run away after inflicting knife blow on the deceased who was lying outside the shop.
Khalil-ur---Rehman alongwith Majeed sent towards the shop and found Usman Ghani lying injured who informed them that Hussain Bux had run away after inflicting a knife blow on him. He was taken in a Rickshaw Station City, where Khalil-ur-Rehman lodged the F. I. R. At 05-15 hours giving out the description of the appellant as "fair complexioned tall with left leg defective age about 25- 30 years."
3. Farooq Ahmed A. S. I. After recording the report sent the deceased who was unconscious to the hospital and then examined Shamshad and Majeed, and thereafter left for the wardat which he inspected in the presence of mashies. He did not find any blood on the ground. The appellant however was not arrested as he absconded. Muhammad Sirajuddin, City Inspector of Police, Hyderabad, recorded the statement of the deceased in the hospital on 16th January 1969 after the doctor certified that he was in his senses and able to give his statement.
4. Doctor Speed Shaikh A.I examined the deceased when he was brought to hospital on 13th January 1969 at 05.10 hours. He noticed "an incised wound 3 cm x 2 cm x omentum and on the front of abdomen 2 cm above the umbilicus'", on his person, and referred him to the Surgical Emergency Ward for treatment. The deceased expired on 4th February 1969 and thereafter he performed autopsy on the dead body and found the same injury as he had noticed earlier which was however stitched: In his opinion the injury was caused by a sharp-cutting weapon such as knife and was sufficient to cause death in the ordinary course of nature.
5. The appellant was arrested at the pointation of Khalil-ur-Rehman on 19th June 1969 as he was outside Odeon Cinema. Karachi, by Abdul Hameed, Head Constable C. I. A. Police. He was brought to Hyderabad and put to identification test in the presence of IIIrd Class Magistrate in which P. Ws.
Abdul Majeed, Shamshad and Allah Noor correctly picked him out. A challan was then presented against him before the Inquiry Magistrate.
6. The appellant when examined denied the prosecution case and stated that neither he has seen the deceased nor the P. Ws. And that he did not know as to why the P. Ws. Had deposed against him. He gave out his name as Hussain Bux alias Muhammad Hussain, his case as Khoja and his residence as Korangi, Karachi.
7. The prosecution relies on the dying declaration Exh. 21 of the deceased, corroborative evidence of Khalil-ur-Rehman, Abdul Majeed, Shamshad and Allah Noor and his abscondence for a period of five months and six days. The appellant disputed his identity and in that context he relied on the medical certificate to show that his left leg was not defective; he also produced a passport to establish that his name is not Hussain Bux. Apparently the medical certificate does not show any defect in his leg, whereas what is stated in the English translation of the F. I. R. Is that "his left leg was defective." With a view to ascertain as to whether he suffered from any physical deformity in his left leg we called him from jail but we found none on him. In the context of the fact that the witnesses stated that he slightly limped it was not clear as to what was meant by Khalil-ur-Rehman while giving his description. We got the F. I. R. Retranslated by the Head translator of this Court who translated that portion of Sindhi as "limping by left foot" which means walking limply either due to stiffness or injury in the leg. No defect in the leg is apparent from this description. The medical certificate is therefore of no significance as it was obtained after many months when the appellant must have recovered from the cause which induced limping. Examining the passport we found that the first four pages were mussing, while the name "Muhammad Hussain deceased" was mentioned as father's name of the applicant whoever he was. Again on page 7, the name of Muhammad Hussain is shown under the heading "children", the year 1952 and the word "male" against it. No one was examined in defence to establish that it was the passport of his father and to remove the confusion as to the similarity of names on pages 5-7 of the passport. Even for arguments' sake, if we were to accept that his name was Muhammad Hussain none--theless he could have had another name, which is amply borne out from the fact that he himself gave out his name as Hussain Bux alias Muhammad Hussain when he was examined by the Courts below. There is, therefore, no doubt as to his identity. The case against him mainly rests on the dying declaration of the deceased. There is unimpeachable evidence that the deceased was in senses when he gave the statement, for not only has the doctor certified on the statement, but that Dr. Speed Suaikh A.I has also noted that he was in senses in form 25239 on 13th January 1969, which entry is timed 5-30 a. m. Additionally Muhammad Sirajuddin has stated that he was conscious and that he recorded his statement after it was certified that he was able to make a statement. His evidence is without any doubt on this aspect of the case. What led to the incident, is thus stated by the deceased:- "I am a servant in Ala Noor Hotel Station Road, Hyderabad. I have taken a shop in New Municipal market Hyderabad, where I used to sleep. I am not literate. About four to five days before 13-1-1969, Hussain Bux Punjabi also started serving in Ala Noor Hotel on cleaning utensils there. Hussain Bux wanted to sleep in my shop room of New Municipal market. I had not given my consent but had told him that I would consider. On the night between 12-1-69, and 13-1-69 at about 3 a.m. i.e., 13-1- 69, I was sleeping in my abovesaid shop room when, Hussain Bux came to the door of the room which was half open. He wanted to sleep in my room. I did not agree on which he started abusing me. I got up from my bed and came at the door where Hussain Bux gave me a knife blow on my stomach. I after being injured ran after him to catch Hussain Bux but could not capture him. I fell down near Habib Hotel. Hussain Bux had told me that he belongs to Lahore proper. I do not know his full address. Hussain Bux is aged about 30 or 32 years. He is strong built. I do not know if he bad any friend in Hyderabad. He was new to Hyderabad. Hussain Bux had run away with the knife with which he had injured me. As Hussain Bux had come to the hotel only three to four days before I was injured by him I cannot give his whereabouts. I was brought in the hospital by Khalil or Majeed of Allah Noor Hotel Hyderabad. Shamshad Fakir had informed Khalil and Majeed about my being injured. I do not know if Allah Noor knows the address of Hussain Bux. I have nothing else to say."
The deceased has also described the appellant by the name of Hussain Bux Punjabi, though the word Punjabi must have been used in the context of what was conveyed to him by the appellant and his built. He was engaged 5 or 6 days earlier as "dish-washer." No reason appear to us as to why he would falsely name him as his assailant in the absence of any bias. There is also no possibility of any mistake about identity as the deceased was given a knife blow from a close distance in which case it is not possible to make a mistake. The name of the appellant transpires in the F. I. R. Which was lodged within a short interval of time. Although Shamshad stated that on his enquiry the deceased told him that the new employee of Allah Noor Hotel had inflicted a knife blow on him yet this cannot create a doubt as to the identity of the appellant, for he was the only new employee of the hotel. Shamshad had seen the appellant, as he lived in one of the shops close to that of the deceased which were in the same row, and working in Allah Noor Hotel. It was therefore that he picked out the appellant in the identification test. He has however softened his evidence by saying that be might have seen the appellant before the test which appears to us to be an obliging admission, for nothing beyond it is apparent as to where he had seen him. Abdul Majeed who was employed as a Cook in Allah Noor Hotel, had accompanied Khalil-ur---Rehman to the wardat. He also stated that the deceased told him that it was the "gutter master" who had inflicted a knife blow on him. He also stated that there was no other gutter master except the appellant. From what he stated, the identity of the appellant cannot be doubted. Ire had also picked cut the appellant in the identification test but again softened his evidence by saying that he was brought at the hotel from the railway station where he and others bad seen him which also appears to us to be an obliging admission. Khalil-ur-Rehman bad pointed out the appellant before his arrest and therefore his identification of the appellant is beyond any doubt. Allah Boor had gone to see the deceased in the hospital, who gave out the name of the appellant as his assailant. Having seen him earlier. Allan Noor; the employer of the appellant, also picked him out in the identification parade and we see no reason to doubt his identification of the appellant. However there are some discrepancies in their statements as to the other details but nothing turns on them.
8. While Allah Noor stated that he did not maintain any register of his employees, but there is an admission of Abdul Majeed that he used to put thumb-impression on a register when he got his wages, in which the names of all the employees were entered. To the same effect is the admission of Khalil-ur-Rehman, but nothing can turn on it for if his engagement rested on it alone, then his name could have been written in the register after the incident. The non-production of the register can therefore have no significance.
9. Lastly is his abscondence. The appellant stated that he resided at Korangi in the city of Karachi but the evidence on record points out that he was engaged by Allah Moor in his Hotel at Hyderabad and that be disappeared after the incident anti was arrested from outside Odeon Cinema at Karachi five months and six days after the incident. He has not led any evidence in defence to show that he resided at Korangi at that time In the absence of reasonable explanation as to why he left his engagement abruptly, his disappearance from there for so many month weighs in favour of his guilt. The prosecution has accordingly established its case against him beyond any reasonable doubt. While maintaining his conviction and sentence, we dismiss the appeal.