2026 P Cr. L J 630

 2026 P Cr. L J 630

[Sindh]

Before Omar Sial and Syed Fiaz-ul-Hassan Shah, JJ

UBAID alias K-2---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeal No. 95 of 2024, decided on

22nd October, 2025.

(a) Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 353, 147, 148 & 149---Anti-Terrorism Act (XXVII of

1997), S. 7---Murderous assault on police, acts of terrorism---

Appreciation of evidence---Accused was charged that he along with

his co-accused persons committed murder of a Sepoy by firing and

caused firearm injuries to a Hawaldar---Evidence led at trial

reflected that, at best, the prosecution was able to prove that

appellant was present in the mob of people that allegedly attacked

the law enforcers---Nobody saw the appellant armed, nor did

anybody except one witness say that appellant had fired upon them-

--Thus, the testimony of said witness did not inspireconfidence or

appeared trustworthy---Said witness stated that the gunfire directed

at the law enforcers originated from the tops of buildings, whereas

the appellant was seen on the ground---Suppose a person sought to

be convicted by the Court was, in fact, involved in the commission of

the offence as alleged by the complainant; in that case, the pertinent

question was whether any of the prosecution witnesses had assigned

appellant a specific role in the entire occurrence---In the absence of

any such attribution in conformity with the requirements of law, the

conviction of that person could not be sustained---Furthermore, the

complete absence of any blood at the scene, coupled with the fact

that the appellant was neither arrested at the spot nor had his

specific role been clearly described by the witnesses-who merely

stated that he was accompanied by a co-accused-and the lack of

recovery of any weapon from him to corroborate the ocular account,

collectively created reasonable doubt in the mind of a prudent

person---Said circumstances raised serious concerns about whether

the incident occurred as alleged by the complainant in the FIR,

thereby casting substantial doubt on the prosecution's version of

events---Appeal against conviction was allowed, in circumstances.

(b) Penal Code (XLV of 1860) .

Ss. 302(b), 324, 353, 147, 148 & 149---Anti-Terrorism Act (XXVII of

1997), Ss. 7 & 19(10)---Qanun-e-Shahadat (10 of 1984), Art. 47---

Murderous assault on police, acts of terrorism---Appreciation of

evidence---Trial in absentia---Scope---Accused was charged that he

along with his co-accused persons committed murder of a Sepoy by

firing and caused firearm injuries to a Hawaldar---As per record, the

appellant had confessed his guilt in front of the investigating officer-

--Trial Court, however, relying on Art.47 of the Qanun-e-Shahadat,

1984, convicted the accused based on the testimonies and

documents produced by the prosecution in the trial in which

appellant was sentenced in absentia---Said witnesses had

subsequently died or were unable to appear to testify---Section

19(10) of the Anti-Terrorism Act, 1997, provided that an accused

could be tried in his absence if the Anti-Terrorism Court, after such

inquiry as it deemed fit, was satisfied that such absence was

deliberate and brought about with a view to impeding the course of

justice---However, the evidence was not recorded under S.512,

Cr.P.C., but appellant was convicted after a full-dress trial under the

Act, 1997---Prosecution was therefore duty-bound to lead all the

evidence to prove its case---Some witnesses had died and others

were unable to come to trial---Article 47 of the Qanun-e-Shahadat,

1984, provided for situations in which a witness died naturally or

was otherwise incapacitated before their statement was recorded in

Court---In such cases, the evidence of that person, previously

recorded in any judicial proceedings or by any person authorized to

record it, becomes relevant for proving the facts---Record showed,

this was not done---Statements of the complainant and eye-witnesses

were neither presented before the Court nor brought into the record

in accordance with the law---Case record remained silent on that

matter---While the statements of those witnesses were recorded

during the trial in absentia, they could not be considered by the

Trial Court unless properly submitted into the judicial record---Said

statements remained part of the trial in absentia file---Moreover, no

questions regarding the earlier statements of those witnesses

recorded during the trial in absentia were posed to the appellant

during his statement under S.342 of the Cr.P.C.---Any incriminating

evidence must be presented to the accused in his statement under

S.342 of the Cr.P.C.---Otherwise, it could not be used against him---In

this case, the Trial Court based itsjudgment of conviction on the

earlier statements of eye-witnesses, which were not legally before

the Court---Appeal against conviction was allowed, in circumstances.

Mohammad Sadiq v. The State 2018 SCMR 71 rel.

(c) Criminal trial...

Role of judge---Scope---Judge cannot be swayed by his own

personal biases, prejudices and experiences when deciding cases---

Judgments cannot be based on perceptions unless the law warrants

those perceptions---Constitution guarantees every citizen certain

rights and these rights cannot be taken away from any citizen.

Raj Ali Wahid Kunwar for Appellant.

Muhammad Iqbal Awan, Additional Prosecutor General for the

State.

Court assisted by: Saleem Nasir, Research Officer.

Date of hearing: 4th September, 2025.

JUDGMENT

OMAR SIAL, J.---On 02-07-1998, S.I. Noor Nawab Khattak of Sachal

Rangers and his team were patrolling in Liaquatabad when they were

ambushed by Nadir Shah and his nine associates, which also included

the appellant Syed Obaid. Shots were fired by the assailants while

shouting anti-police slogans. As a result, Havaldar Mumtaz Ali and

Sepoy Dildar Hussain were injured; Dildar later died at the hospital.

The Rangers retaliated, but the attackers managed to escape. FIR No.

212 of 1998 was registered under sections 302, 353, 324, 148, and 149

P.P.C., read with section 7 of the Anti-Terrorism Act, 1997, at the

Liaquatabad Police Station.

2. Nadir Shah and Syed Obaid were tried. The difference between

the two was that Nadir Shah was arrested and tried in person,

whereas Obaid was tried in absentia. Both were convicted on

15.05.2002, for an offence under section 302 P.P.C. and sentenced to life

imprisonment. They were also convicted for offences under sections

324, 353, and 147/148 P.P.C. and sentenced to ten years, two years, and

three years imprisonment, respectively. Nadir Shah completed his

sentence on 24.05.2013 and was released from prison. It later

transpired that Obaid had not been able to attend the trial as he was

confined in prison in other cases and was indeed confined when the

judgment dated 15.05.2002 was announced. The learned Anti-

Terrorism Court No. 5 at Karachi, on 17.01.2023, held that the

judgment dated 15.05.2002, to the extent of convicting Obaid in

absentia, was set aside, and that Obaid be tried in accordance with the

law. Obaid, the State, or the complainant did not challenge this order.

3. S.I. Maqbool Ahmed Jafri (PW-1), the Daily Diary Mohrar, testified

that Obaid was arrested while in police custody on 15.05.2000. He,

however, did not identify the person present in court as Obaid, who

was arrested on 15.05.2000. This lapse of memory prompted the

prosecution to declare him a hostile witness. Inspector Malik Rasheed Awan (PW-2) was the officer who had re-arrested Obaid in this case in

2000. Inspector Jawed Hussain Sheikh (PW-3) was the first police

responder to the information that two law-enforcers had been injured.

He reached the hospital to see Dildar's dead body and Mumtaz in an

injured condition. H.C. Rangers Muhammad Mithal Ghangro (PW-4)

was one of the members of the Rangers party that was fired upon. He

testified that the firing had started, in which Dildar and Mumtaz were

injured. He testified that 10 to 15 persons had participated in the firing

and that Obaid was among them. He, however, acknowledged that the

nine persons he had seen at the place of the incident were scattered in

the adjoining streets and that there were people on top of buildings

who were firing. In his own words, "I have mentioned that the name of

the accused disclosed by me was on the ground, and the rest were on

the building tops. It is correct to suggest that I only heard the noise of

firing from the top of the buildings, and not seen any person on the

buildings." Inspector Mohammad Zakir Awan (PW-5) re-arrested the

accused in 2021. S.I. Arif Hussain Syed (PW-6) had interrogated both

Nadir Shah and Obaid and testified that they had told him that they

had fired upon the Rangers and run away. Abid Hussain Jutt (PW-7)

was a member of the Rangers party and testified that four persons,

who had included Nadir Shah and Obaid, had fired upon the Rangers

party. The credibility of this witness was severely impacted when he

claimed at trial that he had identified Obaid in an identification

parade. This was incorrect as the record reflects that no identification

parade was held in this case. Dr. Abdul Aleem Memon (PW-8) was a

colleague of Dr. Maula Bux Chandio (the doctor who did the post-

mortem. Chandio had died, so Memon appeared to verify his signature

on the medical reports. The investigating officer of the case, Inspector

Muhammad Nawaz, had died, so S.I. Syed Arif Hussain (PW-9) verified

his signature. The accused pleaded innocent in his statement under

Section 342 Cr.P.C.

4. At the end of the trial the learned Anti-Terrorism Court No.3 at

Karachi convicted Obaid for offences under section 302 read with

section 7(1)(a) of the ATA 1997; section 324 read with section 7(1)(a) of

the ATA 1997; section 353 read with section 7(1)(b) of the ATA 1997 and

sentenced him to life, ten years and five years respectively. Varying

fines were also imposed.

5. We have heard the learned counsel for the appellant and the

learned Additional Prosecutor General. Our findings and observations

are as follows.

6. The evidence led at trial reflects that, at best, the prosecution was

able to prove that Obaid was present in the mob of people that

allegedly attacked the law enforcers. Nobody saw him armed, nor did anybody (except Abid Hussain Jutt (PW-7)) say that Obaid had fired

upon them. Abid's testimony, for the reasons given above, does not

inspire confidence or appear trustworthy. As noted above, one of the

prosecution's witnesses stated that the gunfire directed at the law

enforcers originated from the tops of buildings, whereas the appellant

was seen on the ground. Suppose a person sought to be convicted by

the Court was, in fact, involved in the commission of the offence as

alleged by the complainant. In that case, the pertinent question is

whether any of the prosecution witnesses have assigned him a specific

role in the entire occurrence. In the absence of any such attribution in

conformity with the requirements of law, the conviction of that person

cannot be sustained. It is a settled principle that a person who causes

injury to another must be held liable for the act of causing such injury,

and one who causes death must be convicted accordingly.

7. Furthermore, the complete absence of any blood at the scene,

coupled with the fact that the appellant was neither arrested at the

spot nor had his specific role clearly described by the witnesses-who

merely stated that he was accompanied by a co-accused-and the lack of

recovery of any weapon from him to corroborate the ocular account,

collectively create reasonable doubt in the mind of a prudent person.

These circumstances raise serious concerns about whether the

incident occurred as alleged by the complainant in the FIR, thereby

casting substantial doubt on the prosecution's version of events.

8. It is pertinent to point out that the learned Trial Court itself, in

paragraph 30 of its judgment, concluded that the only evidence against

the appellant was that he had confessed his guilt in front of the

investigating officer. The Trial Court, however, relying on Article 47 of

the Qanun-e-Shahadat Order, 1984, convicted the accused based on the

testimonies and documents produced by the prosecution in the trial in

which Obaid was sentenced in absentia. These witnesses had

subsequently died or were unable to appear to testify. In our opinion,

an error crept into the judgment at this stage.

9. Section 19(10) of the Anti-Terrorism Act, 1997 provides that an

accused can be tried in his absence if the Anti-Terrorism Court, after

such inquiry as it deems fit, is satisfied that such absence is deliberate

and brought about with a view to impeding the course of justice. We

have not delved deeper into this aspect, as on 17.01.2023, the learned

Trial Court accepted that Obaid's trial in absentia had violated his

right to a fair trial and ordered that he be tried again. The Supreme

Court in Mohammad Sadiq v. The State (2018 SCMR 71) observed that:

"The law on the point is very much clear and settled. When an

accused is absconding, the trial Court has to issue proclamation

and attachment under sections 87/88, Cr.P.C. When the absconsion is established and proved on the record, then the

trial Court can proceed with the matter under section 512, Cr.P.C.

and record the evidence of all the witnesses which later on can

be used against the accused in the circumstances provided in

section 512(1), Cr.P.C. But it was not the case where proceedings

under section 512, Cr.P.C. were to be initiated and completed

against the appellant instead the appellant was tried in absentia

by the Special Court under the Act of 1975 as provided under

section 5-A(4) of the said Act. The basic difference between the

two is that in the former case, only evidence in absentia is

recorded under section 512(1), Cr.P.C. which can be used against

the accused in the circumstances as provided in section 512(1),

Cr.P.C. but the Court cannot record conviction after recording

evidence in absentia under section 512, Cr.P.C. whereas in the

latter case, it is full fledge trial of the accused in absentia under

section 5-A(4) of the Act of 1975 and the Court under Special Law

is empowered to record conviction of the person in absentia as

was done in the earlier trial of the appellant.

While coming back to the facts and circumstances of the case, the

High Court in earlier Jail Appeal after arrest of the appellant had

set aside the conviction so recorded in absentia and sent back

the case to the trial Court for fresh regular trial. Here in this

situation the prosecution again was duty bound to lead entire

evidence to prove its case beyond any shadow of doubt against

the appellant."

10. The facts of the current case are similar to the case above. The

evidence was not recorded under section 512 Cr.P.C., but Obaid was

convicted after a full-dress trial under the ATA 1997. The prosecution

was therefore duty-bound to lead all the evidence to prove its case. As

mentioned above, some witnesses had died and others were unable to

come to trial. Article 47 of the Qanun-e-Shahadat Order, 1984, provides

for situations in which a witness dies naturally or is otherwise

incapacitated before their statement is recorded in court. In such

cases, the evidence of that person, previously recorded in any judicial

proceedings or by any person authorized to record it, becomes

relevant for proving the facts. It would facilitate reference if Article 47

is reproduced:

47. Relevancy of certain evidence for proving, in subsequent

proceeding, the truth of facts therein stated.

__Evidence given by

a witness in a judicial proceeding, or before any person

authorised by law to take it, is relevant for the purpose of

proving, in a subsequent judicial proceeding, or in a later stage

of the same judicial proceeding, the truth of the facts which it

states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the

adverse party, or if his presence cannot be obtained without an

amount of delay or expense which, under the circumstances of

the case, the Court considers unreasonable:

Provided that

__

i. the proceeding was between the same parties or their

representatives-in-interest;

ii. the adverse party in the first proceeding had the right and

opportunity to cross-examine.

iii. the questions in issue were substantially the same in the first as

in the second proceeding.

11. Article 47 would not come to the aid of the prosecution as the

provisos at serial (i) and (ii) above were not fulfilled. An argument

could have been made that the evidence of those who could not come

to trial subsequently could be considered had the prosecution, at the

very least, brought on record the previous testimonies and documents

from the second trial. This, the record shows, was not done. Taking

into account the above-mentioned provisions of law, along with the

facts and circumstances of the prior judicial proceedings against the

appellant (though conducted in absentia), it was the prosecution's duty

to have presented this evidence in the judicial record. The statements

of the complainant, Inspector Noor Nawab (eye-witness), Muhammad

Nawaz (eye-witness), Hawaldar Noor Muhammad (eye-witness), Driver

Iftikhar (eye-witness), and Mumtaz Ali (eye-witness) were neither

presented before the court nor brought into the record in accordance

with the law. The case record remains silent on this matter. While the

statements of these witnesses were recorded during the trial in

absentia, they could not be considered by the trial court unless

properly submitted into the judicial record. These statements remain

part of the trial in absentia file. Moreover, no questions regarding the

earlier statements of these witnesses recorded during the trial in

absentia were posed to the appellant during his statement under

Section 342 of the Cr.P.C. It is a well-established legal principle that any

incriminating evidence must be presented to the accused in his

statement under Section 342 of the Cr.P.C. Otherwise, it cannot be used

against him. In this case, the trial court based its judgment of

conviction on the earlier statements of eye-witnesses, which were not

legally before the court.

12. This boy Obaid, more commonly known as Obaid K2, for reasons

best known to him, has had 10 cases against him. He has been

acquitted in 7 cases and in none has the State or any other person filed

appeals. Though K2 might argue otherwise and say that the only reason he is in jail is because of his political affiliation, there is ample

evidence to suggest that K2 has most certainly been on the wrong side

of the law for many years. That perception or reality about K2,

however, would not mean that he is deprived of his fundamental

rights under Article 10 and Article 10-A of the constitution. He must be

treated in accordance with law. It would also not be out of place to

note that in accordance with Article 68 of the Order of 1984, in

criminal proceedings the fact that the accused person has a bad

character is irrelevant, unless evidence has been given that he has a

good character, in which case it becomes relevant. No such effort to

present K2 as a man of stellar character was made by his counsels at

trial. In this particular case, as it seems in seven other cases the

prosecution has failed to prove its case beyond reasonable doubt.

Matters for the prosecution in this case were further aggravated

because of the two decade interim period between the incident and

trial. State prosecutors were perhaps not aware at the stage of trial

about how the case was to be handled in its particular situation. This

lapse on part of the State has worked to K2's advantage.

13. There is another argument raised in the proceedings by the

State. This is that in the earlier trial(s), appeals of some accused were

dismissed till the Supreme Court. It is correct that they were. There are

two things though. One, there was no question of law settled by the

Supreme Court nor was there any ratio laid down. As a matter of fact

the State failed to point out even one obiter which would be violated.

Two, no where did the Supreme Court in those judgments say that K2

would be deprived of the equal treatment of the law and not be

entitled to due process when caught. With much respect and humility,

we are of the view that the State's reliance on the Supreme Court is

mis-conceived.

14. The evidence reflects that K2 is not a savoury character. For

many from the generation that saw and heard of K2s antics, his

notoriety should bring him the harshest of punishments. We

respectfully disagree. A judge cannot be swayed by his own personal

biases, prejudices and experiences when deciding cases. Judgments

cannot be based on perceptions unless the law warrants those

perceptions. The constitution guarantees every citizen certain rights

and these rights cannot be taken away from any citizen. K2 is also

entitled to the same treatment, unless Parliament says he is not. The

Parliament, to date, has not said that. We conclude that due process

was not followed in K2s trial.

15. Given the above, we are of the opinion that prosecution failed to

prove its case against Obaid K2. The benefit of such doubt must go to the accused. He is therefore acquitted of the charge. He may be

released if not required in any other case.

JK/U-7/Sindh Appeal allowed.