This appeal is directed against the judgment dated 18.12.2009 passed by the learned Additional Sessions Judge, Gujranwala, whereby respondent No. 1 Ehsan Ullah has been acquitted from the charge in the case F.I.R. No. 478/2008, dated 13.12.2008, registered at Police Station, Qila Didar Singh District Gujranwala, in respect of, offence under Section 302, PPC, with the allegation that on 13.12.2008 at about 4.30 a.m. Muhammad Saleem (deceased) was proceeding to the 'Daira' of Ch. Muhammad Ashraf for collection of milk, followed by Sana Ullah (PW-1) at some distance when some unknown assailant resorted to firing upon Muhammad Saleem (deceased), which occurrence was informed to the complainant Muhammad Mursaleen (brother of the deceased) by said Sana Ullah telephonically and he alongwith Qaisar PW reached at the place of occurrence and saw that his brother had succumbed to the injuries.
2. Respondent No. 1 Ehsan Ullah was involved in this case on the basis of statements made by PWs Azmat Ullah and Faisal alleging that on 13.12.2008 at 4.45/5.00 a.m. They were proceeding on their motor-cycle to village Bahmni via Minor Gobindpurwhen they reached near Pulli Abdullahpur, in the light of motor-cycle they saw Ehsan Ullah coming towards them in running position who was holding 12-bore pump action gun; when he reached near to them they called him and asked what happened who replied that it is all right and crossed the Pulli and they proceeded to village Bahmni where they received telephone of Mursaleen who informed about the hitting of fire-shot by some unknown person to Saleem deceased whereupon they arrived at the place of occurrence and informed about their Wajtakkar' with Ehsan Ullah.
3. Learned counsel for the appellant in support of this appeal contends that there is sufficient evidence in the shape of 'Wajtakkar' comprising of PW-8 Azmat Ulah, medical evidence, motive and recoveries; that the complainant/appellant had no mala fide intention to falsely involve the respondent No. 1 in this case; that it is a case of single accused and there was no reason for substitution; that during the investigation the police has found the respondent No. 1 fully involved in this occurrence; that recovery of weapon of offence (12-bore gun) at the instance of respondent No. 1 and positive report of the Forensic Science Laboratory were sufficient to strengthen the prosecution version; that acquittal of respondent No. 1 is the result of mis-reading and non-reading of the prosecution evidence on record; that in the afore-referred circumstances, the learned Trial Court was not justified to acquit respondent No. 1 from the charge of murder of Muhammad Saleem and that he is liable to be convicted and sentenced in accordance with law.
4. Heard. Record perused.
5. After going through the impugned judgment, we are of the considered view that the learned Trial Court has given convincing and plausible reasons for acquittal of respondent No. 1 Ehsan Ullah while observing as under:-- "Sana Ullah PW-1 claims himself as the eye-witness of the occurrence committed by unknown assailants 0n 13.12.2008 at 4.25 a.m. When Muhammad Saleem deceased was proceeding ahead of him at a distance of 1-1/2 or 2 acres when unknown persons fired at Saleem near to the Bore of tube-well of Saif Ullah Tarrar. This PW stated that on the day of occurrence, was the month of December, It was cold and foggy night and at that time Fajar Azan has not yet been pronounced.
He accepted that it is correct due to fog and darkness he could not recognize the culprit.
Thereafter, there comes evidence of PW-8 Azmat Ullah in the shape of Wajtakkar................................... ......
This PW is husband of sister of the deceased in his second marriage and the deceased was husband of the daughter of this PW. The place of Wajtakkar is open fields all around and the time of occurrence advanced by PW-1 Sana Ullah is 4.25 a.m. Whereas time advanced by Azmat Ullah PW- 8 for Wajtakkar is 4.45 or 5.00 a.m. Meaning thereby that the difference between the time of occurrence and that of Wajtakkar is hardly 20 or 30 minutes approximately. Taking into consideration the scenario of occurrence as month of December, cold and foggy night PW-1 Sana Ullah could not recognize the culprits due to fog and darkness besides the fact that PW-1 Sana Ullah was a young man of 32 years of age then PW-8 Azmat Ullah aged about 55 years, riding on a motor-cycle in the cold foggy weather at 4.45 a.m. Or 5.00 a.m. The recognition of the accused by the said PW-8 Azmat Ullah is not appealable to the ordinary prudence."
As far as recovery of gun at the instance of respondent No. 1 and positive report of the Forensic Science Laboratory are concerned, suffice it to say that recovery of weapon of offence is only a supportive piece of evidence in a murder case and mere recovery without any substantive evidence does not advance the prosecution case, In this context, we respectfully rely on the case of Noor Muhammad Vs. The State and another (2010 SCM R 97) wherein the Hon'ble Supreme Court of Pakistan has observed as under:- "Even otherwise the recovery of crime-empty or rifle with matching report of F.S.L, is a corroborative piece of evidence, which by itself is not sufficient to convict the accused in the absence of substantive evidence. Reference is invited to Ijaz Ahmed. v. State (1997 SCM R 1279). It was held in the case of Asadullah Muhammad Ali (PLD 1971 SC 541), that corroborative evidence is meant to test the veracity of ocular evidence. Both corroborative and ocular testimony is to be read together and not in isolation. In the case of Saifullah v. The State (1985 SCM R 410), it was held that when there is no eye-witness to be relied upon, then there is nothing which can be corroborated by the recovery."
Even otherwise, it is a settled principle of the criminal dispensation of justice that when an accused is acquitted from a case after regular trial, he enjoys the double presumption of innocence and his acquittal cannot be disturbed without any strong and exceptional reason, In this context we rely on the case of Haji Amanullah vs Munir Ahmed and others (2010 SGMR 222) and the case of Iftikhar Hussain and others Vs. The State (2004"SCM R 1185)
In view of all above, the findings of the learned Trial Court cannot be said to be the result of any misreading or non-reading of the evidence and we find that acquittal of the respondent No. 1 is based upon sound and cogent analysis and appreciation of the evidence available on the record.
Resultantly, this appeal against acquittal of respondent No. 1 Ehsan Ullah has no merits and is hereby dismissed, in limine.