' ASIF SAEED KHAN KHOSA, J.--- According to the prosecution Sarfraz Ahmed petitioner had allegedly kidnapped a minor namely Mst. Fatima, aged about 3/4 years, and had committed sodomy with her and had then killed her. On the basis of the said allegations the petitioner had faced a trial and ultimately he was convicted by the trial court for the offences under sections 302(b) and 377, P.P.C. As well as for the offences under sections 12 and 7 of the of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.The petitioner challenged his convictions and sentences before the Federal Shariat Court through an appeal but his appeal was dismissed by the said Court. Hence, the present petition before this Court.
2. We have heard the learned counsel for the parties and have straightaway observed that the alleged kidnapping, commission of Zinabil-Jabr and murder of the minor namely Mst. Fatima had never been witnessed by anybody and the prosecution had utterly failed to bring any direct evidence on the record incriminating the petitioner vis-a-vis kidnapping, Zina-bil-jabr and murder.
The record shows that the only incriminating evidence produced by the prosecution was that the petitioner had allegedly removed the dead body of the deceased from a Bait hak in his occupation as a tenant to a plot of land and had thrown the deadbody in that plot within the view of some members of the complainant party. We have found the said allegation leveled against the petitioner to be fantastic, to say the least. It was hardly believable that the petitioner had a whole night available to him to get rid of the deadbody of the deceased but he had not availed that opportunity and had chosen to come out of his Baithak with the deadbody and to throw the deadbody in a plot within the view of the members of the complainant party. At best the prosecution had come up with an allegation that the petitioner had committed an offence under section 201, P.P.C. But we entertain serious doubts as to whether even the said provision of law was applicable to the case in hand because the act attributed to the petitioner did not amount to making any evidence disappear. Even if the allegation leveled by the prosecution in that respect is accepted as it is still that only amounted to creating of evidence or disclosure of evidence on the part of the petitioner rather than making any evidence disappear. No other evidence was available on the record incriminating the petitioner in any manner. In this view of the matter a conclusion is irresistible that the prosecution had failed to prove its case against the petitioner beyond reasonable doubt.,
3. For what has been discussed above this petition is converted into an appeal and the same is allowed and consequently the convictions and sentences of Sarfraz Ahmed petitioner/appellant recorded and upheld by the courts below are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required to be detained in connection with any other case.