1. ' MUHAMMAD AFZAL ZULLAH, J.-This appeal through special leave of this Court calls in question judgment dated 28-7-1979 of the Lahore High Court whereby the conviction of the appellants under section 302, P. P. C. Was upheld and the death sentence awarded to Muhammad Ashraf appellant was confirmed. The prosecution case as disclosed by Riasat Ali complainant, P. W. Was that on 31st May, 1977, he was at his tonga-repair-shop at about Mughrib time when Rafique deceased came thereafter the three appellants Muhammad Ashraf armed with a chhuri, Muhammad Iqbal and Fida Hussain armed with knives, arrived. Muhammad Ashraf challenged the deceassed who started running away. The accused chased him. Riasat Ali and two others eye- witnesses--Muhammad Anwar and Sakhi Ullah (P. Ws.) followed them. The deceased and the accused entered the Gali, of Joti Building, where the deceased was overtaken and injured by the accused with their respective weapons. Rafique expired on his way when he was being taken to Nishter Hospital. The motive for the occurrence was that Muhammad Ashraf appellant owed some money to Muhammad Rafique deceased with regard to which there was some altercation at the shop of Riasat Ali, two or three days earlier. Muhammad Rafique had then also slapped Muhammad Ashraf appellant; who, it was further stated, with the help of his two companions wanted to avenge insult.
2. ' The eye-witnesses supported the prosecution case at the trial ; however, Riasat Ali P. W., under cross-examination, stated that although he had seen the entire occurrence from beginning to the end, he did not actually see the infliction of the blows by the accused to the deceased. Evidence was also led to prove the recoveries of blood-stained weapons of offence and the clothes of the accused. The defence plea was of denial and false implication. Both the learned Courts notwithstanding, what was believed to be, a concessional statement by Riasat Ali P. W., relying on the prosecution evidence, found the appellants guilty. Leave was granted to consider the so-called concessional A testimony of Riasat All (P. W.) and also to examine whether correct principle have been followed in the appreciation of evidence.
3. ' With the help of the learned counsel, we have gone through the evidence. No doubt Riasat Ali P. W.
4. Supported and owned what he had dictated in the F. J. R. Wherein the actual attack on the deceased with their weapons, by the appellant was also claimed to have been witnessed by him.
5. Under cross-examination, however, he stated this part of the F. I.R. Was based on what he heard from the shopkeepers and by-standers who had collected at the time of the occurrence and that he had himself not seen the actual infliction of the injuries. Learned judges in the High Court treated this part of the evidence as concessional and relying on Zarid Khan v. Gulsher and another utilized that portion of the statement of the witness which was consistent with other evidence on record.
6. As held in the case of Zarid Khan, it is not always necessary to keep out of consideration a statement made by a prosecution witness which in one B way or the other is beneficial to the accused on the mere ground that he has "turned hostile". It was held, further that "the entire evidence of the witness should have been taken into consideration to see whether any part of his evidence was worthy of belief in the light of other evidence. " In this case, the learned judges in the High Court carefully scrutinized the other evidence including that relating to the recoveries and held that the so-called concession contained in the testimony of Riasat Ali was of no avail to the appellants. There is another aspect of the same matter. Riast Ali supported the prosecution case in its fullest. He also stood the test of cross-examination. Regarding the actual infliction of the blows, he did not make any assertion and attributed knowledge in that behalf to what he heard from the by standers, there and then. He was following the accused at their heels when they were chasing the victim. There was not much distance between him and the accused when they overtook the deceased and inflicted one blow each to him simultanecously or in quick succession. The stab wounds being only 3 in number, reasonable probability cannot be excluded that although Riasat Ali did not actually see the weapons being plunged into the body of the victim, he correctly witnessed everything else. This type of evidence is covered by the definition of "proved" as contained in section 3 of the Evidence Act. He saw the accused chasing and overtaking the victim and he saw them immediately thereafter running away with their weapons. He also saw the victim in an injured condition while there was neither anybody else who could have inflicted blow nor here was any gap of time for that possibility. This is prudent to believe that the same persons (appellants) did inflict the blows which resulted in the injuries particularly when 'there and then the by-standers cried that the appellants had done so. It is, therefore, not correct to say that Riasat Ali did not furnish direct ocular evidence of having seen the occurrence.
7. ' Other arguments have also been raised at the bar during the hearing of this appeal. It has been urged that the two eye-witnesses other than Riasat All are chance witnesses ; that Anwar Ali (P. W.) was related to the deceased even at the time of the occurrence but he concealed it. That it being a bazar no other independent witness was produced particularly Rashid, depot holder and, that the recoveries are supported by the same witness who furnished ocular evidence. In addition to the foregoing submissions, learned counsel appearing on behalf of lqbal and Fida Hussain appellants, argued that if Riasat Ali (P. W.) could not be held to be an eye-witness then Anwar and Sakhi Ullah who were with him, would also be excluded from the category of eye-witnesses; that the eye- witness could not in any case, see the infliction of the injuries because there is a band, the path which was followed by all concerned during the chase-if the witnesses had not crossed the band when the' injuries were inflicted they could not have witnessed the same ; that the lane in which the occurrence took place is covered at the spot, therefore the light for identification of the culprits was1 not sufficient ; and, that it is nowhere in the evidence that the accused were aware of the fact that the deceased was to come to the bazar otherwise they could not have come there to attack him.
8. ' The fact that there was no relationship between Anwar and the deceased at the time of the occurrence has duly been noticed by the High Court. The material produced in the High Court in this behalf would not negate Anwar's assertion that he had no relationship with the deceased when the occurrence took place.
9. ' It has been argued on the one hand that none from the bazar has been produced as a witness on, the other hand Anwar and Sakhi Ullah (P. Ws.) who were in the bazar though at a different place and Riasat Ali who runs a shop there, have been criticised as a chance witness. Everyone of them has adequately explained the reason for his presence. They are in the circumstances of this case not chance witnesses. The scrutiny of their testimony does not reveal any infirmity so as to insist upon any corroboration. That being so, there was nothing wrong in their having attested the recoveries as witnesses thereto. The alleged darkness in the lane is relevant only for the purpose of identification with regard to which there seems to be no doubt otherwise. The accused were outside the covered lane when their initial encounter took place in presence of the eye-witnesses.
10. They were identified there and then. During the chase towards the covered lane, the eyewitnesses were in no doubt, that there was no substitution of the assailants. None joined them during the chase and even if the place where they overcame the victim is covered, and the light from outside was not reaching, the identity of the culprits would stand proved by direct evidence as also by application of the afore-referred definition of the word "proved". In addition the lane where the occurrence took place, it is not denied, is itself a bazar and there was sufficient light in the shops in front of which the occurrence took place. Rashid depot-Holder was not examined at the trial. Even if the occurrence took place in front of his shop, this circumstances would not dilate effect of the other evidence led by the prosecution, and when the same had been found without any infirmity.
11. The argument that Anwar and Sakhi Ullah would be in the same position as Riasat Ali (P. W.) with regard to the actual seeing of the infliction of injuries also, would be of no advantage to the appellants accused. As discussed earlier, Riasat Ali's testimony goes against them inasmuch as he has finished direct evidence. Moreover, it may be only a difference of capacity of each one of them to perceive an object ; in that in the rush and excitement of chase one of them did not notice on the spur of the moment the actual infliction of the injuries, while the other, two did. Thus, there is no inherent infirmity in this behalf either.
12. After carefully consideration of all the relevant aspects of the case, there is no reason to differ with the learned Courts below, in so far as, the finding against the appellants of their being guilty is concerned. The plea of reduction of sentence raised on behalf of Muhammad Ashraf appellant, on the ground that he inflicted only one blow and that the slap suffered C by him at the hands of the deceased three days earlier, would furnish some amount of provocation, are in the circumstances of the case, not enough for reduction of the sentence. It was a pre-planned attack in which the assailant armed themselves with formidable weapons. The fact that there is no direct evidence on record to show that the accused knew that the deceased would be coming to the bazar would not show that they could not have become aware of it. The so-called provocation was neither grave, and sudden nor there was any such element in that behalf which could be considered for reduction of sentence. The incident regarding slaps had taken place three days prior to the main occurrence which in the circumstances shows that during this period some plan must have been hatched to kill the deceased. In this background even, if Ashraf appellant gave one blow which as apparent from the medical evidence mainly contributed to the death, he would deserve the penalty of death imposed on him. Therefore, there is no justification for reduction of sentence either.
13. ' This appeal fails and is accordingly dismissed.