Javed Iqbal, J.--This appeal, with leave of the Court, is directed against the judgment dated 06.11.1998 passed by learned Federal Shariat Court of Pakistan, Bench at Lahore, whereby the criminal appeals preferred on behalf of appellants were dismissed and judgment dated 25.6.1998 passed by learned Additional Sessions Judge whereby both of them were convicted under Section 302(b) PPC and sentenced to death with fine of Rs, 20,000/-each and in default of payment of fine to suffer further simple imprisonment for one year each with the direction that in case of realization of fine which should be given to father of the victim. Muhammad Idrees appellant was convicted under Section 10(3) of the said Ordinance and sentenced to 25 years R.I. and 30 stripes, he was also convicted under Section 377 PPC and sentenced to ten years R.I. and fine of Rs, 10,000/- and in case of default to further suffer six months S.I. which has been kept intact.
2. Precisely stated the facts of the case as disclosed in FIR Ex. PA/1 registered by Hasan Raza P.W. 10 on 24.2.1997 at 5.00 p.m. on the basis of statement Ex. PA made by Muhammad Bashir P.W. 1 before Munir Ahmad SI P.W. 12 on 22.2.1997 at 4.30 p.m. on the same day is to the effect that he was a labourer and had married 20/22 years before with Mst. Hanifan and had got six daughters and two sons from the said wedlock. Mst. Shabana Bibi aged 8/9 years was one of his daughters. On 23.2.1997 at about 6.00 p.m. His daughter Mst. Shabana went to the house of one Maqbool r/o Akram Park, Jamaldin colony, to bring Rs, 50/- regarding the sale of some utensils. When she did not return after half an hour, his wife went to the house of Maqbool in her search. There she was told by the wife of Maqbool that Mst. Shabana had already gone back. His wife met him on the way and informed him that their daughter and returned but had not reached their house. Subsequently both of them started her search. They also made announcement in the mosque to this effect but could know nothing about her. On 24.2.1997 at about 2.45 p.m. children of the Mohallah raised hue and cry that a dead body of a girl was lying with face downward condition in an under construction house. On this information he alongwith Arshad and Muhammad Sharif went over there and saw that his daughter Mst. Shabana who was wearing printed shalwar qameez was lying on the earth with face downward condition. They observed that blood was oozing from her mouth and nosteril. He further stated that he had strong suspicion that Kashif son of Rajab Shakeel son of Abdul Hamid and Muhammad Idrees son of Muhammad Yaqoob Bhatti residents of Akram Park had murdered his daughter." A case was accordingly registered against the appellants and after completion of investigation they were sent up for trial and on conclusion whereof they were convicted and sentenced as mentioned herein above by the learned Additional Sessions Judge Lahore by means of judgment dated 25.6.1998. Being aggrieved both the appellants preferred appeals which have been dismissed by learned Federal Shariat Court vide judgment impugned, hence this jail appeal preferred jointly on behalf of the appellants.
3. Leave was granted by this Court vide order dated 3.1.2001 which is reproduced herein below for ready reference: "We grant leave to consider whether conviction can be based on the confession and other evidence on record keeping in view the rule laid down by this Court from time to time for appraisal/ evaluation of evidence."
4. Heard Mr. Muhammad Zaman Bhatti, learned ASC on behalf of appellants at length who mainly argued that no conviction could have been awarded on the basis of retracted confession which according to him was procured by employing third degree methods. In order to substantiate his contention reliance has been placed on the statement of Muhammad Bashir (P.W. 1/complainant) who admitted during cross-examination that the appellants were maltreated by police. It is next contended that retracted confession does not find support from any corroboratory material and in absence whereof the question of conviction and sentence does not arise. Mr. Muhammad Zaman Bhatti, learned ASC has seriously challenged the admissibility of confessional statement as according to him the appellants were handed over to police after getting their confessional statements recorded. It is urged with vehemence that recoveries were fake and no independent witness was associated to substantiate the factum of recovery. It is also contended that the appellants were not adults and accordingly the extreme penalty of death could not have been imposed which aspect of the matter has been ignored by the learned trial Court and the Federal Shariat Court resulting in serious miscarriage of justice. It is next argued that the alleged murder and zina-bil-jabr could not have been committed in a deserted appeal during cold winter night. It is also argued that no conviction could have been awarded on the basis of circumstantial evidence which is also vague and sketchy. In order to substantiate his contention he referred Muhammad Amjad v. State (PLJ 2003 SC 704), Asadullah u. State (PLJ 1999 SC 1018).
5. Mr. Dil Muhammad Tarar, learned ASC appeared on behalf of State and supported the judgment impugned for the reasons enumerated therein.
6. We have carefully examined the respective contentions as agitated on behalf of appellants and for State in the light of relevant provisions of law and record of the case. We have scanned the entire evidence with eminent assistance of learned counsel. We have also perused the judgment dated 25.6.1998 passed by learned Additional Sessions Judge Lahore as well as judgment impugned. We have examined the statements of Muhammad Bashir (P.W. 1/complainant), Sharif Muhammad (P.W. 2), Arshad (P.W. 3), Muhammad Riaz (P.W. 4), Faryad Khan (P.W. 5), Ahmad Yar (P.W. 6), Muhammad Siddique (P.W. 7), Younas Ali Shah (P.W. 8), Mr. Abdul Razzaq Malik (P.W.
9/MIC), Hasan Raza (P.W. 10), Dr. Azhar Masood Bhatti (P.W. 11) and Munir Khan S.I. (P.W. 12). A careful scrutiny of the statements would reveal that admittedly no direct evidence connecting the appellants with the commission of murder and zina-bil-jabr has come on record. In so far as the statement of Muhammad Bashir (P.W. 1/ complainant) who is father of Mst. Shabana is concerned he has not specifically mentioned the names of appellants as accused but expressed his strong suspicion that the alleged offences were committed by them. It is wroth mentioning that he has supported the contents of FIR (Ex. PA). No serious enmity whatsoever was alleged against him. He stood firm to the test of cross-examination instead of various searching questions and his testimony remained unshattered: No doubt that the names of appellants were not mentioned in an unambiguous manner while lodging the FIR but it would have no substantial effect on merits of the case as FIR was got lodged prior to the investigation which otherwise is a simple device to set the law in motion and no adverse inference can be drawn due to the omission of the names of the appellants. It is worth mentioning that conviction could not be based on the contents of FIR alone unless substantiated by evidence. In this regard we are fortified by the dictum laid down in cases titled Ghulam Hussain u. Zainullah (PLD 1961 SC 230), Mokha v. Zulfiqar (PLD 1978 SC 10), Abdul Rehman v. The State (PLD 1975 SC 275), Umar Said v. The State (PLD 1994 SC 255). The statement of Sharif Muhammad (P.W. 2) has rightly been discarded who is real brother of Muhammad Bashir (P.W. 1/ complainant) and claimed that Mst. Shabana was seen in the company of appellants on 23.2.1997 while he was returning from Shandara as he could have asked Mst. Shabana regarding her presence alongwith the appellant but, no such query was made which is against the normal human conduct being real uncle of Mst. Shabana. In the same wake of events we have examined the statements of Arshad (P.W. 3) by whom Kashif (acquitted accused) has been seen running from the place of occurrence where the deadbody of Mst. Shabana was subsequently found. The rest of the witnesses are formal in nature. As mentioned herein above no direct evidence connecting the appellants with commission of alleged murder of zina-bil-jabr has come on record but strong circumstantial evidence has been produced by the prosecution to substantiate the accusation in the shape of confessional statements, factum of recovery, medical evidence and positive report of Chemical Expert. We have examined the prima contention of Mr. Muhammad Zaman Bhatti, learned ASC that appellants could not have been convicted on the basis of retracted confession procured by torture and in the absence of any corroboration. A careful scrutiny of the record would reveal that confessional statements were got recorded by Mr. Abdul Razzaq Malik (P.W. 9/MIC) who has mentioned in an unequivocal manner that the confessional statements were recorded after having complied with all the necessary and mandatory requirements. He has admitted that no specific question was asked regarding the duration during which they remained in police custody which, in our opinion, does not affect the genuineness, voluntariness and authenticity of the confessional statements. It is worth mentioning that the appellants were arrested on 26.2.1997 and their confessional statements were got recorded on 27.2.1997, hence the question of any torture and maltreatment as pressed time and again does not arise. No doubt that Muhammad Bashir (P.W. 1/complainant) has mentioned that the appellants were maltreated by the police but he could not explain that what was the nature of maltreatment and besides that this part of his statement appears to be a concessional and obliging statement which can be ignored for another reason as the unfortunate incident was referred to the Punchayat for fixation of the responsibility of the appellants to defeat the legal process which, however, could not be materialized. We are of the view that confession being voluntary and true has rightly been considered and relied upon by the learned trial and appellate Courts. It is well settled by now that "Retracted confessions, whether judicial or extra-judicial, could legally be taken into consideration against the maker of those confessions himself, and if the confessions were found to be true and voluntary then there was no need at all to look for further corroboration. As against the maker himself his confession, judicial or extra-judicial whether retracted or not retracted, can in law validly from the sole basis of his conviction, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture of coercion or inducement.
The question, however, as to whether in the facts and circumstances of a given case the Court should act upon such a confession alone is an entirely different question, which relates to the weight and evidentiary value of the confession and not to its admissibility in law". (The State v.
Minhun (PLD 1964 SC 813). We are not persuaded to agree with Mr. Muhammad Zaman Bhatti, learned ASC that the retracted confession was without any corroboration for the reason that two rugs (Ex. P1 & Ex. P2) were got recovered duly stained with blood and semen at the pointation of appellants which were in their exclusive knowledge and admittedly this recovery was effected at their pointation. Mr. Muhammad Zaman Bhatti, learned ASC was pointedly asked that as tohow the recovery of ruge could have been effected without pointation of the appellants as it was within their exclusive knowledge, no satisfactory answer could be given. The factum of recovery has been supported by Muhammad Siddique (P.W. 7) who has no animosity or ill-will against the appellants besides the factum of recovery of blood/semen stained rugs the retracted confession finds full support from medical evidence furnished by Dr. Azhar Masood Bhatti (P.W. 11) who opined as follows:-- "The injuries stated above were antimortem and were caused by the blunt means. Cause of death is interference at. the level of neck and face. Under Injury Nos, 1 and 2 leading to asphyxia and death which was sufficient to cause death in the ordinary course of nature. However, the above- mentioned viscerae, a piece of shalwar, vaginal and annal swabs were sent to the chemical examiner to rule out poisoning/drug/semen if any.
Time between injury and death was 3 to 5 minutes and time between death and post-mortem were 1 to 2 days. After the postmortem examination, I handed over last worn clothes of the deceased and one sealed parcel and one small sealed parcel and sample of swab one copy of post-mortem report and all police-papers signed- by me to the concerned police. The copy of post-mortem report which is signed by me is Ex. P.M.
The pictorial diagram on Page No, 6 is also signed by me and preferred by me which is Ex.PM/1.
I received the result from chemical examiner, Government of the Punjab, Lahore follows: That poison is not detected in above viscerae, the above Articles Nos, 4, 5 & 6 are stained with semen.
My comments on the report of chemical examiner is that the cause of death had already been given, however the autopsy findings and the report of chemical examiner were strongly confirmed inhuman severe sexual assault."
7. According to the report of Chemical Examiner the above mentioned uges (Ex. P1 and P2) were found stained with semen and human blood. It can, therefore, safely be inferred that the confessional statements were not only true and voluntary but find full corroboration from factum of recovery, medico legal evidence and chemical examination report which cannot be ignored.
We are not impressed by the argument that a false and concocted case was got registered against the appellants who were arrested due to the pressure of the then Chief Ministry in view of the overwhelming incriminating material which has come on record. The then Chief Minister was MNA at the relevant time from the constitutency where the Unfortunate incident occurred and his visit to the place of occurrence could be considered a routine visit to extend his sympathy to the family of victim being his voters.
8. We have examined the alternate plea of Mr. Muhammad Zaman Bhatti, learned ASC that the punishment and sentence awarded by the learned trial Court and upheld by Federal Shariat Court does not commensurate with the gravity of offence and a lenient view should have been taken in view of the tender age of the appellants which according to Mr. Muhammad Zaman Bhatti, learned ASC were not adults. The question of age has been examined by the learned Federal Shariat Court in the judgment impugned, relevant portion whereof is reproduced herein below for ready reference: "13. Regarding the contention raised by learned counsel for the appellant Muhammad Shakil that the appellant at the time of occurrence was aged about 14 years and therefore deserves lesser sentence, we may mention that there is nothing on record to show that the appellant at the time of commission of offence was actually a minor. No certificate of his age is available on record to determine his age. His age has been reflected as 17 years at the time of recording of his statement u/S. 342 Cr.P.C. Moreover we may also mention that age, as in the present case, alone is not that much an extenuating circumstance as to justify awarding of lesser punishment. However it should be taken into consideration with other facts. Considering the circumstances of this case where a minor girl has been brutally murdered after having been subjected to zina-bil-jabr as well as sodomy we don't consider it a case that entitles the appellant to lesser penalty. Therefore, we are not inclined to reduce the sentence of death awarded to him by the trial Court."
9. The factum of age being question of fact has rightly been determined by the learned trial as well as the appellate Courts which cannot be reversed without sufficient lawful justification which is badly lacking in this case. Even otherwise in the absence of mitigating circumstances the question of alteration of the sentence of death to any other punishment does not arise. In this regard we are fortified by the dictum laid down in the following authorities:--
(i) Muhammad Sharif v. Muhammad Javed (PLD 1976 SC 452).
(ii) Wazir Ali v. The State (1999 SCM R 1469).
(iii) Muhammad Afzal v. Ghulam Asghar (PLD 2000 SC 12). (vi) Sakhawat v. The State (2001 SCM R 244).
(v) Ijaz u. The State (2002 SCM R 294).
10. In the light of what has been stated herein above we are of the considered view that prosecution has established the accusation beyond shadow of doubt by producing worthy of credence and confidence inspiring evidence. The appellants have committed the murder of innocent child in a merciless, callous and brutal manner hence the question of any leniency does not arise. The conclusion as arrived at by the learned trial Court and affirmed by the learned Federal Shariat Court being well based and unexceptionable does not admit interference. The appeal being devoid of merits is dismissed.