1. FAKHRUDDIN G. EBRAHIM, J.-This Leave Petition is directed against the judgment of the High Court of Sind dated 31-8-1980 dismissing the appeal of the petitioner Ilyas son of Jumo Brohi, being Criminal Appeal No. 55 of 1978, and maintaining, inter alia, the conviction and sentence of death for the murder of Shah Nawaz awarded by the learned Additional Sessions Judge, Jacobabad vide his judgment dated 18-2-1978.
2. The incident, resulting in the murder of deceased Shah Nawaz Jakhrani took place on 26-9-1974 at about 11 a.m. In the Bazar of Jacobabad Town. The deceased was accompanied by P. Ws. Ali Nawaz and Ali Gul, his brothers, and his son Mandost. 'they had all come from their village in Patfeedar, to Jacobabad, for shopping. The deceased Shah Nawaz and his son Mandost, who was at that time aged 11 years, were making purchases at the shop of Rewachand (P. W. 7) in old Anaj Mandi, Jacobabad Bazar. Ali Nawaz and Ali Gul were hawing tea at the hotel of Haroon, near the Fish Market, at a distinct of 2/3 paces away from the shop of Rewachans. The petitioner came from the western side, armed with a, double barrel gun and fired at deceased Shah Nawaz, which hit him of his back side. He fired the second shot which hit the deceased on the occipital region and he fell down and died at the spot. P. Ws. Ali Nawaz, whose one leg is cut, and Ali Gul, rushed towards the deceased. The petitioner, after firing at the deceased, ran with the gun, towards the northern side of the Fish Market. Police constable, Muhammad Saleh, who was on duty in the town was on his cycle going towards Taj Mahal hotel. When he reached near old `Anaj Mandi', he heard two gunshot reports. At a distinct of 20 paces away, be found a person lying murdered. He and the other public men present, chased the petitioner, who was running away, carrying the gun. When he was about 30 to 40 paces away from the petitioner, he was challenged by the petitioner, not to follow him, otherwise he would kill him. The petitioner, consequently, did fire at P. C. Muhammad Saleh, but missed him. The pellets hit a labourer P. W, Raza Muhammad, on his right thigh. The petitioner continued running towards Jhatpat Naka, still followed by P. C. Muhammad Saleh. On the way S. I. P.
3. Shamad Ahmad, Seargent and P. C. Bahadur also joined in the chase. The petitioner, while running, had again fired at S. I. P. Shamim Ahmad, but missed, who also fired in the air towards the petitioner from his service revolver and asked the petitioner to stop. The police and the public surrounded the petitioner and caught him. He was carrying a 12 bore D. B. B. L. Gun and a Bandolier containing 27 live cartridges. The licence of the gun, in the name of Ghamthar Jakhrani, his brother, was also secured from the person of the petitioner. The gun was opened and two (2) empty cartridges were found in the barrel, which were also secured under the mashirnama (Exh. 12) to the meantime, Ali Nawaz had already reached the City Police Station and lodged the F. I. R. Exh. 14, which was recorded at about 1 p.m, by S. H. O. Muhammad Akram.
4. The first informer, Ali Naivaz took the S. H. O. To the vardat, situated in old `Anaj Mandi_Jacobabad Bazar. The dead body was lying on the road, in front of the shop of Rewachand and had gunshot injuries,, There was blood at the vardat. Two (2) blood-stained Bags containing the purchased articles were also lying under the dead body. At a distinct of about 12 paces away, one empty cartridge of 12 bore was lying. A mashirnama of the vardat was prepared in the presence of the Mashirs. The dead body of deceased Shah Nawaz was sent to the M. O., Civil Hospital Jacobabad for post-mortem examination. P. W. Raza Muhammad injured had already been taken by the public, to the Civil Hospital for treatment. The S. H. O. Reached the Hospital and noted down the injuries on P. W. Raza Muhammad and recorded his statement. The S. H. O. Returned to the City Police Station, where Sargent Shamim Ahmed produced the appellant, at about 3 p.m. With the double barrel gun and all the other articles secured by him. The placewhere P. W. Raza Muhammad was injured, was also inspected by the police. The S. H. O. Examined the witnesses and recorded their statements. Some of the witnesses were also examined under section 164, Cr. P. C. Before the Mukhtiarkar and F. C. M. Jacobabad. The gun and the three (3) crime empties, one secured from the `vardat' and two from inside the barrel of the gun, were sent to the Ball1stic Expert, who gave his report (Exh. 8) that all the three crime empties were fired from the same gun, secured from the appellant. The blood-stained articles were the earth and clothes of the deceased. Which were sent to the Chemical Examiner and were all found stained with human blood. A separate case, under F. I.
5. R. (Exh. 30) was reg1stered and challaned against the appellant under section 13-D of the Arms Ordinance, for carrying the gun without licence.
6. Both learned trial Judge as well as the learned Judges in the High Court have concurrently found that-
(a) the ocular evidence fully implicated the petitioner,
(b) there was evidence of chase and arrest of the petitioner by the. Police Officers shortly after the commission of the crime,
(c) the weapon of offence, a double-barrel gun was recovered from the person of the petitioner at the time of his arrest which weapon matched an empty recovered from the vardat,
(d) the medical evidence fully corroborated the ocular evidence of three eye-witnesses.
(e) there was no reason, much less any plausible reason, for falsely implicating the petitioner.
7. Before coming to the contentions raised in support of this petition, we may observe that this Court in the exercise of its jurisdiction under Article 185 of the Constitution will not interfere with the concurrent findings of fact arrived at by the two Courts in a Criminal case unless a case is made out of grave miscarriage of justice established either by reason of the fact that the, finding sought to be impugned could not have been arrived at by any reasonable person or whom the Court reaches the conclusion that a person has been dealt with in violation of the established principals of the administration of criminal justice such as misreading of evidence.
8. Mr. Khalid Ishaq, learned counsel for petitioner raised four contentions in support of this petition and these are-
(i) that the medical evidence did not support the eye-witness account of the incident.
(ii) that there was material discrepancy in the evidence as to the time when the F.I. R. Was lodged and the petitioner's arrest,
(iii) that the identification of the petitioner remained unestablished,
(iv) that there was no warrant for the conclusion that the crime empty recovered from the vardat matched with weapon used for no such empty was sent to the Ball1stic Expert.
9. In support of the first contention relating to the medical evidence not supporting the prosecution version of the incident, the learned counsel invited our attention so the medical report which mentioned that all the injuries bore blackening and charring marks which would mean that the deceased had been fired at from a very short distinct, while the sketch of the vardat Exh. 6 shows that the firing was done from a distinct of 21 paces. The learned counsel, however, ignores the evidence of the eye-witness Ali Nawaz that the petitioner had fired at the deceased from a distinct .Of 4 to paces. Furthermore, the evidence of P. W. Rewachand, in front of whose shop the incident took place, is also to the effect that the deceased had been fired from a very short distinct, for he saw a person, at a distinct of 6-4 paces away from his shop, with a gun and bandolier of cartridges A running away towards the north of the Bazar. Thus the ocular evidence fully supports the medical evidence. The site plan prepared subsequently cannot override the ocular evidence. It may also be noticed that the aforesaid eye-witnesses had not been confronted with the site plan.
10. The second contention relates to the discrepancy as to the time 'in the lodging of the F. I. R. And arrest of the petitioner. The learned counsel -invited our attention to the evidence of P. W.
11. Muhammad Akram, S. H. O. Of the City Police Station, Jacobabad that be had left the Police Station for the vardat at 1 p.m. After recording the F. I. R. Lodged by P. W. Ali Nawaz and that the petitioner vas produced before him at the Police Station at 3 p.m. When he had returned from the vardat, which version according to the learned counsel, is contradicted by P. W. Muhammad Saleh who stated that he along with the police party had chased and arrested the petitioner and reached the Police Station at 1-15 p.m. When P. W. Muhammad Akram was present at the Police Station, to whom they handed over the petitioner and the property recovered. Before the learned trial Judge the petitioner had pressed into service the Above discrepancies relating to his arrest and the lodging of the F. I. R. Which did find favour with the trial Judge, for he concluded that the F. I. R. Had lost its evidentiary value and went on to remark that investigation of the case by S. H. O.
12. Muhammad Akram was carried on in a very perfunctory and callous manner. Notwithstanding these discrepancies, the trial Judge found that there was no material on record to create the slightest doubt about the involvement of the petitioner in the crime. In the High Court the contention was that the F. I. R. Was lodged after about two hours when the petitioner was already arrested and had been brought to the Police Station, which contention was found without force for the complainant had explained that, when he had gone to the Police Station he was made to sit there for B some time and in the meantime, P. W. Shamim Ahmad brought the petitioner and the F.
13. I. R. Was recorded. These discrepancies are of no avail to the petitioner, for the coular evidence against him as well as the circumstantial evidence of his chase and arrest and total absence of false implication over--whelmingly point to his guilt.
14. As to the identity of the petitioner the finding of the High Court is, that all three witnesses P. Ws. Ali Nawaz, Ali Gul and Mandost who had known the petitioner, were unanimous that they witnessed the occurrence when the petitioner fired at the deceased. The learned counsel however relied on the evidence of P. W. Rewachand that the petitioner's face was muted and the evidence of P. W.
15. Raza Muhammad who in addition to sayings that the petitioner's face was muffled gave description of his clothing totally at variance with description given by the three eye-witnesses.
16. Both these witnesses did not know the petitioner and as to the description of the petitioner's clothing given by P. W. Raza Muhammad we find this mentioned in his 164 statement which is not substantive evidence. The finding of the High Court is that the petitioner had a turban on his head with its ends stretching from one ear to the other covering his neck as is usual with the Baluchi people of that area, particularly during the hot month of June, but all the same the petitioner's face was uncovered as deposed by the eye-witnesses. The High Court also observed that the question of identifica--tion did not arise for the petitioner had been chased from the vardat and arrested at a short distinct with the weapon of offence in his hand.
17. The fourth contention relating to absence of proof that one empty recovered from the vardat had been sent to the Ballistic Expert does not find mention in the judgment of the trial Court or the High Court. It would appear that the contention before the trial Court was that there was no evidence on the record to indicate that the crime weapon was sealed at the spot or at the Police Station and then despatched. Be that as it may, in support of the present contention the learned counsel could at best rely on the evidence of P. W. Muhammad Akram who denied to have secured any empty from the place of vardat. However, the mashirnama of the vardat did mention that an empty cartridge was secured from the vardat and sealed which fact was already supported by P. W.
18. Sardar Khan who had acted as a Mashir. Additionally, the Ball1stic Expert P. W. 2 Mukhtar Ahmad did receive all the these crime empties recovered in this case, which would include the vardat crime empty, in a sealed parcel all of which had been fired from the double-barrel gun recovered from the petitioner. We have also noticed that the learned trial Judge who had occasion to see P. W.
19. Muhammad Akram in the witness box was constrained to say that his investigation of the case was perfunctory and callous. This witness was examined when he had ceased to be in the service of the Government. His denial that one crime empty was recovered from the vardat, may either be attributed to his negligence and loss of memory. There was, in any event, evidence that the crime empty recovered from the vardat had been sent to the Ball1stic Expert, which evidence has been believed by the two Courts below.
20. The result, therefore, is that the learned counsel has not been able to show to us that in the appraisal of evidence, the High Court has acted contrary to the well-established principles.
21. Leave is, therefore, refused and this petition is dismissed.