1. HAMOODUR RAHMAN, C. J.-The petitioner aged 17 or 18 years has been convicted under section 302 of the Pakistan Penal Code for the murder of his co-villager Murtaza aged 16 or 17 years, and sentenced to death. On appeal and reference the High Court has upheld his conviction and confirmed his sentence. He now seeks special leave to appeal.
2. The petitioner at the trial admitted that he gave the fatal blow to the deceased but stated that it was given in entirely different circumstances. According to him at khurtan time when he was guarding the melon crop in the field of his maternal uncle the deceased, who was some two years ago a class-mate of his, came to him and suggested that he should submit to his lust. He refused.
3. Thereupon the deceased drew out a knife for attacking him, He had a small knife with him and in self-defence he gave one blow with it to the deceased and ran away towards the village.
4. The prosecution case, on the other hand, was that on the 27th June 1967, at about 9-30 p.m. When the deceased had gone to the fields for easing himself, it was the petitioner who stopped him and demanded that the deceased should submit to his lust. On his refusal the petitioner drew out a knife and stabbed him on the left side. On the cries of the deceased a number of persons arrived there and heard from him that the petitioner had stabbed the deceased.
5. The first information report was recorded at Police Station Akora which is only two furlongs away, at 10-15 p.m. On the basis of the statement of the deceased himself. In this he had disclosed the motive as also mentioned the name of Zain Khan (P. W. 7) as the first person to arrive there on his outcries, followed by some others. He claimed that he had informed them about the incident.
6. The petitioner was found to be absconding till the first of July 1967. A warrant was accordingly, issued but he was later produced before the police by his uncle and taken into custody. On the 7th July 1967 he led the police to a bush near the place of occurrence and from out of the bush brought out a knife. The knife was stained with blood.
7. The Courts below have convicted the petitioner on the basis of the dying declaration of the deceased as it was, according to them, amply corroborated by the statements of Zain Khan (P. W.
8. 7) and Azam Khan (P. W. 8), two disinterested persons who had come immediately after the occurrence on hearing the outcries of the deceased. The version of the deceased was also found to be corroborated by the abscondence of the petitioner and the recovery of the knife at his instance.
9. The defence version has been disbelieved by the Courts below as neither the investigating officer nor any of the prosecution witnesses had accepted that there was any melon crop in the fields round about the spot. The maternal uncle of the petitioner was not, of course, called to support the petitioner's version about the melon crop. No knife was recovered from the possession of the deceased nor was any suggestion put to any prosecution witness regarding the possession of any knife by the deceased.
10. The request made in the High Court to at least reduce the sentence of death to transportation for life on the ground of the tender age of the petitioner was refused on the ground that tender age by itself was not a mitigating circumstance.
11. It is now suggested on behalf of the petitioner that the Courts below were wrong in taking the view that the prosecution witnesses (P. W. 7 and P. W. 8) had corroborated the dying declaration of the deceased. They both had stated that the deceased did tell them that he had been stabbed by the petitioner but refused to disclose in public the reason for the attack out of shame, According to P.
12. W. 8, Azam Khan, even at the Police Station the deceased told the Station House Officer that he would give the reason for the stabbing only when the persons standing nearby were removed. On the basis of this admission it is sought to be contended that the reason was as suggested by the defence and, therefore, the defence plea of grave and sudden provocation should have been accepted.
13. The mere fact that the deceased did not give the reason fort the stabbing in the presence of the witnesses does not belie the story given in his dying declaration which has been substantially corroborated in all other material particulars. We are inclined to agree with the Courts below that the defence version does not find support from any circumstance established in the evidence. No melon field was discovered in the vicinity of the place of occurrence nor is there anything on the record to suggest that the deceased was armed with any kind of weapon. There is also no evidence on the record to show that there was any quarrel or altercation between the deceased and the petitioner.
14. This Court cannot do so now as it does not interfere with a legal sentence. Leave cannot, therefore be granted to the petitioner, in the circumstances of this case, either to consider the question of the nature of the offence committed or the sentence imposed upon him. The petitioner may, if he is so advised, move the Government for the commutation of his sentence.
15. This petition is, accordingly, dismissed.