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Petitioner: Atif Pervaiz VS Respondent: State Honorable Justice Muhammad Tariq Nadeem Syed Asim Ali Bukhari and Syed Mujahid Abbas
CITATION: 2026 PCrLJ 1555 CASE: 2026L3055 TITLE: Atif Pervaiz VS State Honorable Justice Muhammad Tariq Nadeem Syed Asim Ali Bukhari and Syed Mujahid Abbas COURT: LAHORE-HIGH-COURT-LAHORE YEAR: 2026 JOURNAL: PCrLJ ============================================================
305 2026 P Cr. L J 1555 [Lahore (Bahawalpur Bench)] Before Tariq Saleem Sheikh and Muhammad Tariq Nadeem, JJ Atif Pervaiz ---Appellant Versus The State
and others---Respondents Criminal Appeal No. 293-J and Murder Reference No. 23 of 2023, decided on 19th February, 2025. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 114, 109 & 34---Qatl-i-amd, abettor present at the time of committing the offence, abetment, common intention---Appreciation of evidence---Delay in lodging FIR not explained---Accused was charged for committing murder of the brother of complainant by firing---Occurrence took place on 16.07.2022 at 01:40 p.m. and matter was reported through oral statement at 04:15 p.m., followed by formal FIR at 04:45 p.m.---Despite availability of police at 02:45 p.m., complainant failed to explain delay in recording his statement---Said delay created doubt about presence of eye-witnesses and veracity of prosecution version---Appeal against conviction was allowed, accordingly. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 114, 109 & 34---Qatl-i-amd---Appreciation of evidence---Delay in postmortem not explained---Possibility of deliberation and fabrication---Occurrence took place at 01:40 p.m. whereas postmortem was conducted at 11:30 p.m. with delay of about 9 hours and 50 minutes---No plausible explanation was offered for such delay---Delay suggested possibility of deliberation and fabrication---Appeal against conviction was allowed, accordingly. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b), 114, 109 & 34---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay in filing private complaint nor plausibly explained---Private complaint was filed after about four months and twenty days without plausible explanation---Such delay indicated afterthought and attempt to fill lacunae---Appeal against conviction was allowed, accordingly. Muhammad Azad v. Ahmad Ali and 2 others PLD 2003 SC 14 rel. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b), 114, 109 & 34---Qatl-i-amd---Appreciation of evidence--- Chance witnesses---Presence not proved---Complainant and eye-witness, though related to deceased, failed to justify their presence at the spot---Their conduct regarding funeral attendance and lack of knowledge about relevant persons cast doubt on their presence---They were held to be interested and chance witnesses---Appeal against conviction was allowed, accordingly. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b), 114, 109 & 34---Qatl-i-amd---Appreciation of evidence---Supplementary statement---Nomination of accused---Scope---Accused were not nominated in FIR and were later implicated through supplementary statement---Such nomination was considered afterthought---Appeal against conviction was allowed, accordingly. (f) Criminal trial--- ----Supplementary statement---Scope---Supplementary statement cannot replace FIR and has limited evidentiary value, particularly when it changes initial version without plausible explanation. (g) Criminal trial--- ----Nomination through supplementary statement---Scope---Nomination through supplementary statement is generally disfavoured and treated as an afterthought. Khalid Javed v. The State 2003 SCMR 1419; Akhtar Ali and others v. The State 2008 SCMR 6 and Rafaqat Ali v. The State 2022 SCMR 1107 rel. (h) Penal Code (XLV of 1860)--- ----Ss. 302(b), 114, 109 & 34---Qatl-i-amd---Appreciation of evidence---Ocular account and medical evidence---Conflict---Burn injuries indicated close range firing whereas site plan suggested otherwise---Such conflict weakened prosecution case---Appeal against conviction was allowed, accordingly. (i) Penal Code (XLV of 1860)--- ----Ss. 302(b), 114, 109 & 34---Qatl-i-amd---Appreciation of evidence---Presence of eye-witnesses---Not proved---Witnesses were not associated with inquest or postmortem proceedings---Their absence in such documents indicated non-presence at scene of occurrence---Appeal against conviction was allowed, accordingly. (j) Penal Code (XLV of 1860)--- ----Ss. 302(b), 114, 109 & 34---Qatl-i-amd---Appreciation of evidence---Co-accused acquitted---Effect---Once co-accused was acquitted on same evidence, remaining accused could not be convicted without independent corroboration---Appeal against conviction was allowed, accordingly. (k) Penal Code (XLV of 1860)--- ----Ss. 302(b), 114, 109 & 34---Qatl-i-amd---Appreciation of evidence---Recovery of weapon from open space---Scope---Recovery from open place accessible to all and after disbelieved ocular account lost evidentiary value---Appeal against conviction was allowed, accordingly. Arshad Khan v. The State 2017 SCMR 564 and Mian Sohail Ahmad and others v. The State and others 2019 SCMR 956 rel. (l) Criminal trial--- ----Call Data Record---Scope---CDR is not conclusive proof of involvement of accused. (m) Penal Code (XLV of 1860)--- ----Ss. 302(b), 114, 109 & 34---Qatl-i-amd---Appreciation of evidence---Motive---Not proved---Alleged motive of illicit relations remained unsubstantiated and contradicted by Investigating Officer---Failure of motive weakened prosecution case---Appeal against conviction was allowed, accordingly. (n) Criminal trial--- ----Benefit of doubt---Principle---Single reasonable doubt is sufficient to extend benefit to accused. Rehmat Ullah and 2 others v. The State and others 2024 SCMR 1782 rel. Syed Asim Ali Bukhari and Syed Mujahid Abbas for Appellant. Asghar Ali Gill, Deputy Prosecutor General for the State. Muhammad Sufiyan for the Complainant. Date of hearing: 19th February, 2025. Judgment Muhammad Tariq Nadeem, J.--- Through this single judgment, we intend to dispose of Crl. Appeal No. 293-J of 2023 filed by Atif Pervaiz against his conviction and sentence, whereas Murder Reference No. 23 of 2023 has also been transmitted by learned trial court for confirmation or otherwise of death sentence of Atif Pervaiz, appellant, both the matters being originated from the same judgment dated 14-06-2023 passed by learned Addl. Sessions Judge, Fort Abbas, District Bahawalngar in private complaint under sections 302,109, 114, 34 P.P.C emanated from case FIR No.285 dated 16-07-2022, under Sections 302,109, 34 P.P.C registered at Police Station Khichiwala whereby, at the conclusion of the trial in the said case, the learned trial court, while acquitting rest of the co-accused namely Mst. Abida Perveen, Muhammad Naveed and Muhammad Latif alias Changa, convicted and sentenced the appellant as under:-:- Under Section 302 (b) PPSC. Sentenced to death with the direction to pay a sum of Rs.3,00,000/- as compensation under Section 544-A Cr.P.C. to the legal heirs of Muhammad Nawaz, deceased, recoverable as arrears of land revenue and in default thereof to further undergo six months S.I. 2. The prosecution story as given in the judgment of the Trial Court reads as under: "...2. Brief facts of the written complaint Exh.P.D are that the complainant Muhammad Abbas is resident of Chak No.134/6R and retired ranger person; that about 17/18 years ago, complainant's brother Muhammad Nawaz was married with Mst. Abida Perveen daughter of Muhammad Shafique, Caste Arian, resident of Chak No.308/HR Marrot; that there was death in the in-laws of complainant's brother Muhammad Nawaz where they wanted to go and on 16.07.2022 at about 01:00 p.m, complainant's brother Muhammad Nawaz and his wife Mst.Abida Perveen departed on CD-70 Motorcycle towards chak No.308/HR Marrot while the complainant Muhammad Abbas along with his brother Muhammad Riaz and his son Tanzeel Abbas also departed on motorcycle towards Chak No.308/HR; that complainant's brother Muhammad Nawaz and his wife were ahead at some distance and at about 01:40 p.m, they reached at metaled road of chak No.179/7R and saw that complainant's brother Muhammad Nawaz along with his wife Mst. Abida Perveen were standing on Eastern side of metaled road at the distance of 1-1/2 acre, accused persons Atif Pervez son of Faryad Hussain and Muhammad Latif alias Changa while armed with pistol 30-bore were present there on motorcycle; that on seeing the complainant and PWs, accused person Atif Pervez and Muhammad Latif alias Changa made fires with their pistols, which hit on right upper side of ear of Muhammad Nawaz, neck and belly, who fell in the ground and the accused persons succeeded to run away on their motorcycle towards chak No.178/7R by brandishing their weapons; that complainant and PWs rescued Muhammad Nawaz, who succumbed to injuries at the spot; that accused Mst. Abida Perveen is involved in the murder of Muhammad Nawaz and she had illicit relations with accused Atif Pervez. Complainant's brother Muhammad Nawaz used to forbade the accused Atif Pervez from his house and the accused persons in furtherance of their common intention made planning and lady accused Mst. Abida Perveen called the accused persons Atif Pervez and Muhammad Latif alias Changa at the spot and the accused person Atif Pervez obtained the pistol from the accused Muhammad Naveed and accused persons Atif Pervez and Muhammad Latif alias Changa committed the murder of Muhammad Nawaz with firing of their pistols. On the oral version/statement of complainant, case FIR No.285/22, under section 302/114/109/34 P.P.C., PS, Khichiwala was registered and later-on, the post mortem examination of complainant's brother was conducted at THQ Hospital Fortabbas; that accused Muhammad Latif alias Changa was an influential person. Investigating officer malafidely did not investigate the case and declared the accused Latif Alias Changa only to the extent of abetment as well as taking sapari of Rs.2,80,000/- under section 109 P.P.C, while he is a real culprit of committing the murder of Muhammad Nawaz deceased with his pistol by taking sapari of Rs.2,80,000/- from accused Atif Pervez through accused Muhammad Naveed; that accused Latif alias Changa along with accused Atif Pervez committed the murder of deceased Muhammad Nawaz in the presence of accused Mst. Abida Perveen, but the local police did not investigate the case on merits. Hence, feeling aggrieved from the police investigation, he has filed the instant private complaint Exh.P.D....." 3. After recording cursory statements of the complainant and PWs the accused were summoned to face trial. Learned trial court, after observing all the pre-trial codal formalities, framed charge under sections 302,114,109,34 P.P.C against the appellant along with his acquitted co-accused on 03-01-2023, to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case produced as many as 05 PWs and 11 witnesses were examined as CWs. The ocular account of the incident in issue had been provided by Muhammad Abbas, complainant (PW.1) and Muhammad Riaz (PW.2). Waris Ali 838/C (CW.4) was the recovery witness of CDRs of appellant, Mst. Abida Perveen and Muhammad Naveed, co-accused (since acquitted) taken into possession vide recovery memo (Exh.CW-3/C). He was also the recovery witness of Samsung mobile (P.8) having SIM No. 0344-1089134 recovered from the appellant vide seizure memo (Exh.CW-4/D). He was also the recovery witness of motorcycle (P.9) used by the appellant during the occurrence, vide recovery memo (Exh.CW-4/E). Zulfiqar Ali Halqa Patwari (CW.7), who prepared scaled site plan (Exh.CW-7/G). Asim Ali Touqeer, ASI (CW.11) was the investigating officer of the case who stated about the various steps taken by him during investigation of this case. The medical evidence was furnished by doctor Zain-ul-Harmain (CW.2). The remaining evidence produced by the prosecution was formal in nature. The prosecution gave up Rustam Ali 1116/C, PW being unnecessary and after tendering reports of the Forensic Science Agency, Lahore (Exh.PL, Exh.PM and Exh.PN) closed its evidence. 4. Thereafter the statements of the appellant and his co-accused under section 342 Cr.P.C. were recorded wherein they refuted the allegations levelled against them and professed their innocence. The appellant neither opted to appear as his own witness on oath as provided under Section 340(2) of the Code of Criminal Procedure, 1898 in disproof of the allegation levelled against him, nor produced any defence evidence. 5. The learned trial court vide judgment dated 14-06-2023 found the appellant guilty, convicted and sentenced him as mentioned above, however , acquitted his co-accused namely Mst. Abida Perveen, Muhammad Naveed and Muhammad Latif alias Changa of the charge through the same judgment by giving them the benefit of doubt, hence, the criminal appeal, and connected Murder Reference before us. 6. We have heard the arguments of the learned counsel for the appellant and learned Deputy Prosecutor General assisted by learned counsel for the complainant meticulously and also scanned the record minutely with their able assistance. 7. The incident in the present case, according to the prosecution case, the occurrence was alleged to have taken place on 16-07-2022 at about 01:40 p.m. within the area of Chak No.179/7.R, about 19 kilometers away from Police Station Khichiwala, District Bahawalnagar and the same was reported by Muhammad Abbas, complainant (PW.1) through his oral statement (Exh.PA) on the same day at 04:15 p.m. whereafter on the basis of which formal FIR (Exh.CW6/F) was chalked out on 16-07-2022 at 04:45 p.m. There is a delay of 02 hours and 35 minutes in reporting the matter to the police. According to the testimony of Muhammad Abbas, complainant (PW.1) police reached at the spot at 02:45 p.m. Same was the statement of other eye-witness Muhammad Riaz (PW.2.). No reasoning has been described by Muhammad Abbas, complainant (PW.1) to the effect that why he recorded his statement (Exh.PA) with the delay of one and half hour after the arrival of police. This fact is sufficient to hold that that supra-mentioned eye-witnesses were not present at the time and place of occurrence, even otherwise, there was no justification for the above-mentioned delay. Therefore, we hold that this delay in setting the machinery of law into motion speaks volume against the veracity of prosecution version. 8. We have further noted that according to the prosecution story, Muhammad Nawaz kissed to dust at the spot on 16-07-2022 at 01:40 p.m. whereas postmortem on the dead body of Muhammad Nawaz was conducted on 16-07-2022 at 11:30 p.m. According to the statement of doctor Zain-ul-Harmain, Medical Officer (CW.2), dead body of Muhammad Nawaz was brought by Asim Ali Touqeer, ASI (CW.11) for postmortem examination on 16-07-2022 at 11:00 p.m. and he (CW.2) conducted autopsy on 16-07-2022 at 11:30 p.m. thus, the postmortem on the dead body of Muhammad Nawaz (deceased) was conducted with the delay of 09 hours and 50 minutes, after the occurrence. Keeping in view, the above-mentioned gross delay in the post mortem examination, an adverse inference can be drawn that the prosecution witnesses were not present at the time of occurrence and the intervening period had been consumed in fabricating a false story after preliminary investigation, otherwise there was no justification of delay for conducting post-mortem examination on the dead body of the deceased. 9. We have further noted that Muhammad Abbas, complainant (PW.1) being dissatisfied with the police investigation, while changing the prosecution version as reproduced supra, filed private complaint (Exh.PD) on 06-12-2022 with the delay of almost 04 months and 20 days of the occurrence. Prosecution has not given any plausible reasoning qua such delay meaning thereby that the private complaint has been filed after due deliberation and consultation just to fill up the lacunas left in the FIR. We fortify our view from the dictum laid down in case law titled as Muhammad Azad v. Ahmad Ali and 02 others" (PLD 2003 SC 14) wherein the Supreme Court of Pakistan has held as under:- "S. 302---Constitution of Pakistan (1973), Art. 185 Appeal against acquittal Private complaint suffered from an unexplained delay of three months and four days which apparently had been filed after due deliberation, consultation and in consonance with the injuries shown in the post-mortem report---Complainant and eye-witnesses had improved the prosecution case by exaggerating the matter beyond the contents of the FIR registered earlier by the complainant, in order to bring the case in consonance with the medical evidence..." 10. In an attempt to make it a case of direct evidence against the appellant, the prosecution has heavily relied upon the statements of Muhammad Abbas, complainant (PW.1) and Muhammad Riaz (PW.2), who happened to be the real brothers of Muhammad Nawaz (deceased) respectively. The alleged occurrence took place on 16-07-2022 at about 01:40 p.m. within the area of Chak No.179/7.R, about 19 kilometers away from Police Station Khichiwala, District Bahawalnagar It was, therefore, mandatory for the above-mentioned eye-witnesses to justify their presence at the place of occurrence at the relevant time through some cogent reason but they have failed to establish their presence at the relevant time and place of occurrence rather they are related and chance witnesses. According to the prosecution story on the fateful day at 01:00 p.m. they along with their brother Muhammad Nawaz (since deceased), Mst. Abida Perveen, co-accused (since acquitted) as well as Tanzeel Abbas (jettisoned PW) proceeded to Chak No. 308/HR Marrot, Tehsil Fortabbas for the purpose of condolence in the family of in-laws of Muhammad Nawaz (deceased). According to the statement of Muhammad Abbas, complainant (PW.1), the daughter of maternal uncle of Mst. Abida Perveen, co-accused (since acquitted) was died about 07/08 days before the occurrence in Chak No. 308/HR Marrot, Tehsil Fortabbas and for the condolence, he (PW.1) along with Muhammad Riaz (PW.2) and his son Tanzeel Abbas (jettisoned PW) as well as his brother (deceased) and sister-in-law Mst. Abida Perveen, co-accused (since acquitted) were going there but he (PW.1) failed to disclose the name of daughter of maternal uncle of Mst. Abida Perveen, co-accused (since acquitted) nor he knew the name of her father. He (PW.1) further did not go to the funeral prayer as well as Qul Khawani of deceased daughter of maternal uncle of Mst. Abida Perveen, co-accused (since acquitted). Moreover, according to his statement, neither Mst. Abida Perveen, co-accused (since acquitted) nor her husband Muhammad Nawaz (deceased) went to attend the funeral prayer as well as Qul Khawani. According to his testimony, the distance between Chak No.134/6R and Chak NO. 308/HR was about 50 kilometers. He (PW.1) further stated in his cross-examination as under:- "...I along with PWs, accused Mst. Abida Perveen and deceased Muhammad Nawaz jointly departed from our house on two motorcycles. I was driving the motorcycle and my brother Muhammad Riaz was sitting behind me and my son Tanzeel Abbas was also sitting behind my brother Muhammad Riaz. I do not know the name of owner of that motorcycle which I was driving at the time of occurrence....." Similarly, Muhammad Riaz (PW.2) deposed in line with the statement of Muhammad Abbas, complainant (PW.1). Relevant lines of his (PW.2) cross-examination read as under:- "...The niece of Abida Perveen accused was passed away and we were going for her condolence at chak No.308/HR. I do not know the name of Mamo of Abida Perveen accused and I also do not know the name of deceased girl. The deceased girl was expired 6/7 days prior to the occurrence. I do not know the age of deceased girl..." We have further observed that occurrence took place in broad daylight at 01:40 p.m. on 16-07-2022 but the alleged eye-witnesses Muhammad Abbas, complainant (PW.1) and Muhammad Riaz (PW.2) have not described any specific injury to any of the accused persons. Had they present at the time of occurrence, they must have described the exact locale of injuries on the body of Muhammad Nawaz (deceased), this fact further negates the version of the prosecution qua the presence of supra-mentioned eye-witnesses at the time and place of occurrence. In the eventuality of supra mentioned facts, we are of the considered view that Muhammad Abbas, complainant (PW.1) and Muhammad Riaz (PW.2) have failed to establish their presence at the spot at the relevant time rather they are interested and chance witnesses and as such their evidence is not reliable. 11. There is yet another crippling feature of the prosecution case is that the appellant and his co-accused Muhammad Latif alias Changa (since acquitted) were not nominated in the FIR (Exh.CW6/F). They were implicated in this case through the supplementary statement (Exh.PB) of Muhammad Abbas, complainant (PW.1), which was allegedly got recorded by him on the same day of occurrence wherein he (PW.1) stated that at the time of registration of case, he was in anxiety and shock due to the reason that his real brother was murdered in his eye view and he incorporated two unknown accused persons in the FIR. At the time of occurrence, the appellant and his co-accused Muhammad Latif alias Changa (since acquitted) were armed with pistols 30 bore and Mst. Abida Perveen, co-accused (since acquitted) was empty handed, where appellant and his co-accused Muhammad Latif alias Changa (since acquitted) made fire shots with their respective pistols 30 bore upon his brother Muhammad Nawaz (deceased), which landed on the different parts of his body, who succumbed to the injuries at the spot. It is settled by now that a supplementary statement is a statement made by a complainant or witness after the initial First Information Report (FIR) has been recorded. It is typically used to provide additional information or clarify details that were not included in the original FIR However, the legal standing and evidentiary value of supplementary statements can be quite limited. In the context of Pakistani law, supplementary statements are not considered equivalent to the FIR and do not carry the same weight in legal proceedings. The Supreme Court of Pakistan has emphasized that any statement or further statement recorded during the investigation by the police should not be equated with the FIR and its value is determined based on the principles established by superior courts. The courts have also noted that supplementary statements should not be relied upon if they change the initial version of events without a plausible explanation for change. In nutshell, while supplementary statements can provide additional context or details, their legal significance is often scrutinized, and they are treated with caution in judicial proceedings. After careful scrutiny of the prosecution evidence, it manifests that the appellant was a close relative of the complainant party. Muhammad Abbas, complainant (PW.1) during his cross-examination has stated as infra:- "...Father of accused Atif Pervez is my paternal cousin and we are living in the same village. Father of accused Atif Pervez is also the owner of about five acre land. Our land is situated in the same khata but we have mutually partitioned our respective agricultural land...." Likewise, Muhammad Riaz (PW.2) has also admitted this fact in his cross-examination. Relevant lines of his cross-examination are mentioned below:- "...The father of accused Atif Pervez is the son of my Taya. It is correct that the land of accused Atif Pervez as well as my land situated in the same Khata..." Moreso, Asim Ali Touqeer, ASI/I.O (CW.11) during his cross-examination stated as under.- "...It is correct that he complainant Abbas and Atif accused are neighbourer with single common wall between their house. It is correct that complainant and Atif accused are paternal cousins . We have further noted that no medical evidence was produced before the court that at the time of recording of statement Muhammad Abbas, complainant (PW.1) was in a serious anxiety and shock condition. While, it is not the case of prosecution that Muhammad Riaz (PW.2), who is also real brother of Muhammad Nawaz (deceased), was also mentally disturb at the time of recording of his first statement under section 161 Cr.P.C. about the occurrence. In this way, it is abundantly clear that above-mentioned PWs have implicated the appellant after due deliberation and consultation; even otherwise, due to the close relationship of the eye-witnesses with the appellant being residents of adjacent houses, there was no occasion for not mentioning the name the appellant and his co-accused in the FIR. Even otherwise, the courts have always deprecated such kind of statement, which is made with the purpose to strengthen the case of the prosecution at the behest of the police officials or some other…
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