1. JAVID IQBAL. J.--This is a petition for leave to appeal. The petitioner was convicted under section 302 of the Pakistan Penal Code for the murder of Mohammad Ramzan alias Hira deceased aged 9/10 years studying in 3rd Class and was sentenced to death plus fine. He was also convicted under section 377, P.P.C. For having committed sodomy on the deceased before murdering him and was sentenced to nine years' R.I. Plus fine. The trial Court passed its judgment as against him on 4th March, 1980. In appeal the Lahore High Court, Multan Bench maintained the conviction and sentenced awarded to him.
2. The motive for the crime is that the petitioner after committing sodomy murdered the deceased and thereafter threw away his dead body at a distance of about 40/45 Karams away from the place of occurrence in wheat field.
3. The prosecution case is that Hashmat A.I father of the deceased was a cigarette vendor at Khanewal Railway Station during the days of occurrence while his family resided at Sahiwal. He received a message on 6th March, 1979 that his son was missing and he reached home in the early hours of 7th March, 1979. His wife Mst. Hafizan P.W.10 told him that the deceased was playing with his class-mate Rehan Abbas P.W.8 on the previous evening in front of the house but he did not return home even after sunset. Thereupon, she got worried and went out for search for him. She contacted Rehan Abbas P.W. Who told her that they both were playing together near their house when the petitioner came there and asked Rehan Abbas P.W. To buy salt for him but he refused saying that he was going home. Then the petitioner asked the deceased for buying salt for rupee one for him. At first the deceased also refused but when the petitioner offered him two 10 paisa coins, described as "doe anney" in the first information report, the deceased agreed. The petitioner and the deceased were still standing there when Rehan Abbas P.W. Left for his house. On this information Mst. Hafizan P.W. Went to the house of the petitioner who was found absent. She told Mst. Guddi sister of the petitioner that her brother had sent the deceased for purchasing salt but thereafter the deceased had not reached home. Mst. Hafizan P.W. Was still roaming in search of her son when the petitioner met her coming on a bicycle. She stopped him and enquired from him about the deceased. The petitioner told her that the deceased did purchase salt for him but after delivering the same to him he had gone away. He showed her a packet and told her that he had got "Dum" performed on that salt 'from one Mst. Safia an old lady. Having learnt this Hashmat A.I P.W. Went in search of his son. Mst. Hafizan P.W. In the meantime again contacted the petitioner and asked him to take her to the house of Mst. Safia which he did. She learnt from Mst . Safia that the petitioner gave her salt on the previous night for "Dum" but he did not come to collect it. This aroused suspicion in her mind because the petitioner had earlier told her that he had since collected the salt from Mst. Safia. Ultimately Hashmat A.I P.W. Lodged the report with the police at 8-20 p.m. On 7th March, 1979. His statement was recorded by Mohammad Anwar Sub-Inspector P.W.6. In his statement he expressed suspicion against the petitioner to have concealed his son.
4. There is no eye-witnesses of the occurrence. The case of the prosecution is based mainly on the circumstantial evidence which consists of the following:
(a) Evidence of the deceased having been last seen in the company of the petitioner furnished by Rehan Abbas P.W.
(b) Evidence of recovery of the dead body of the deceased at the pointation of the petitioner, and recovery of 2 tenpaisa coins from the pocket of the deceased.
(c) Evidence of the recovery of human blood-stained Chhuri as well as human blood-stained clothes belonging to the petitioner at the pointation of the petitioner.
(d) Medical evidence to the effect that the deceased had been murdered after he had been subjected to sodomy: The deceased had 17 injuries on his person out of which ten were caused by sharp-edged weapon and the remaining with blunt weapon. There were also lacerated wounds as well as incised wounds on the inner side of anus.
(e) Report of chemical examiner showing anal swabs stained with semen as well as showing clothes of the deceased stained with semen.
5. The appellate Court had maintained the conviction as well as the sentence awarded to the petitioner on the basis of the aforesaid circumstantial evidence. Learned counsel for the petitioner did not press the petition before us on merits. He only wanted us to consider the question of reduction of sentence for the reason that the petitioner had been in the condemned cell since March, 1980 i.e. For the past six years. But in our view this cannot be considered as a mitigating circumstances. In that view of the matter this petition is dismissed.