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DAWN - Features; July 16, 2002

July 16, 2002

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When Islamic RSS and Hindu Taliban subverted the Agra summit

AS I try to recollect the last suspenseful moments of the Agra summit exactly a year ago to the day, certain disturbing patterns come to mind.

One such thought stems from a nagging, even perhaps ageing, question. Had Prime Minister Vajpayee’s government not been toppled by a single vote soon after his triumphant return from Lahore, would the Kargil war have happened? I am inclined to believe perhaps not. Ironically enough, this reasoning that Kargil would probably never have blown into the nightmare it became is endorsed by Manoj Joshi in his book on Kashmir “The Lost Rebellion”.

According to the book, released in 1999 by National Security Advisor Brajesh Mishra, a nascent kind of Kargil was already happening as early as July 28, 1998, when prime minister Nawaz Sharif and Vajpayee were facing the cameras in a frozen meeting in Colombo.

Here’s relevant paragraph from the book to support this bizarre- sounding claim: “In 1998, there was a qualitative change in the situation (regarding the Kashmir standoff) brought on by the May nuclear tests. On July 28, 1998, on the eve of the meeting between prime minister Nawaz Sharif and Atal Behari Vajpayee, a Pakistani barrage of bombardments, begun in early July, peaked and the targets shifted inwards, hitting positions as far away as 20 kilometres behind the LoC. The result was an unprecedentedly high level of casualties, both army and civilian.”

Now, therefore, is it not really unlikely that given this kind of vicious assault on Kargil by the Pakistan army in July, Mr Vajpayee would be visiting Mr Sharif in Lahore within six months, completely unaware that something serious was afoot in a sensitive part of the Himalayan region?

In this context it is even harder to believe that the Indian army was caught napping in Kargil as has been widely suggested by its detractors. A region that has faced regular bombardment not only in July 1998, but also in 1997, as Joshi has shown, could not have been left unwatched, unattended, unsoldiered. That’s why doubts linger about the so-called post-Lahore betrayal in Kargil. If there was a betrayal, it was of pre-Lahore vintage and the prime minister of India was aware of it when he sat in the bus to cross the Wagah border.

He could also not have been unaware of the massacre of 16 Hindus by suspected Kashmiri militants just the day before he showed up in Lahore. There is a pattern in all this talk of terrorism. When it suits us, we want to ignore it and hold a summit with Pakistan. When we want to up the ante, we start a war, not counting out even a nuclear war.

Even a child would tell us that the 16 Hindus massacred on the eve of Vajpayee’s visit to Lahore may have been killed by the same people who did not want him to go to Lahore. Why then should it not be seen as possible that these were the same elements that later attacked the Indian parliament, killed innocents in Kaluchak and Kasimnagar and will not rest without causing a serious conflict between India and Pakistan?

India’s roller-coaster approach to ties with Pakistan throws up other amazing examples of decision-making triggered by domestic shadow boxing. For example, when Gen Pervez Musharraf overthrew Nawaz Sharif’s government, India responded by calling off the Saarc summit in Kathmandu. Fine. But then only a few short months later, for no apparent rhyme or reason, New Delhi becomes the first country to greet Gen Musharraf when he declares himself president. Is it whimsical foreign policy or is there a deliberate pattern? Let’s see. In March 2001, tehelka.com exposes corruption in high places and there is fingerpointing at the prime minister’s close associates, including BJP President Bangaru Laxman and Defence Minister George Fernandes who both resign.

In May, just two months later, Prime Minister Vajpayee invites President Musharraf to a summit, a hurried, not the least bit thought through summit. And just when he is going to sign a historic agreement that would etch his name in gold in South Asia’s chequered history, someone standing in the wings trips him and the summit fails.

Of course, it was also tragic that in September, when Vajpayee was yet again planning to meet President Musharraf in New York much to the chagrin of the detractors of Agra, fate decrees otherwise and the events 9/11 overwhelm and recast everyone’s agenda. Ironically, 11th September 2002 was also the date of a landmark interview published by the Indian Express editor Shekhar Gupta.

Since public memory is short, and Sept 11 was an earth-shaking day, the Vajpayee interview has gone virtually unnoticed. As we reflect on the rubble of the Agra talks of July 16, 2001, Vajpayee’s words would seem to have acquired a meaning imbued with archaeological significance, that tell a story of how the Islamic RSS and the Hindu Taliban are interchangeable and how they join hands to discredit, terrorize, even blackmail those who oppose them. Some excerpts:

Q: Were there tricky moments during Kargil?

A: We told Pakistan firmly that the withdrawal should be total before any talks. Then there was also pressure at home that you cross the Line of Control. But I put my foot down. That we should not cross because, ultimately, we will have to withdraw. That we should stick to our principled stand.

Q: Did that pressure come from within the cabinet as well?

A: Yes.

Q: But I am sure there were moments, when casualties were coming, or things looked grim when you thought of crossing the LoC? When did you come closest to taking that decision?

A: Never. It never came to that. But there was always a thought in my mind. That in all the agreements we have had so far the adversary has taken something back as a gain. This time that should not happen.

Q: How sincere is Pakistan now (about talks)?

A: I am not so sure. An obsession seems to have built up there. They also realize that if we actually become friendly, improve trade and cultural relations, Kashmir may not remain such a big issue. They go on and on with this idea of Kashmir being the unfinished agenda of partition.

Q: Do you think you achieved something at Agra?

A: I think so. But I do think we were lacking a bit in communicating with the media, in keeping them briefed. We thought, the talks are still going on, this is a retreat. But possibly we could have kept the media more properly briefed.

Q: So, do you still think some movement can take place in our relations while there is army rule in Pakistan?

A: Yes, it is possible.

Q: Do you still believe the dialogue can carry on bilaterally? Or has time come for us to think of a mediator given the deteriorating situation in Pakistan?

A: Pakistan’s situation is actually improving right now.

Q: You mean the economy?

A: Yes, the economy is doing better. But also in terms of international image. The general is talking of elections, a roadmap for democracy.

Q: Do you see a realistic chance of an understanding with the Congress?

A: Yes, it is possible. But we know Soniaji (Sonia Gandhi) also has problems and compulsions. If she follows a positive approach people say, you are mixed up with the BJP, you are not like the opposition. Of course, she has also sometimes said, where is the need for the Congress to act like the opposition when there is opposition within the BJP itself?

Q: That is what I am coming to. People say the economic consensus exists between your government and the Congress. But not within the BJP or the Sangh Parivar.

A: I am trying to change this.

Q: Did allegations against your office, and family also bother you?

A: Well, a strange atmosphere had been created.

Q: But did you ever suspect that some of these allegations were true?

A: No. Never.

Q: Do you really have a way of finding out?

A: Yes.

Q: In the Tehelka revelations, direct evidence was found against certain people. But so much of the controversy surrounded people around you. Why?

A: Well, people took advantage of the situation. They tried to create this atmosphere deliberately. They tried to use Tehelka against me.

Q: But wasn’t this done by your own people?

A: Yes, by our own people.

Q: Did you take it up with them?

A: But no, our people did not do Tehelka. They only took advantage of Tehelka?

Q: Does that hurt?

A: Yes.

Q: You know who these people are?

A: Yes, I know who they are.

Q: What will you do to them?

A: What will I do? (laughs)

Q: Have you confronted them?

A: Yes.

Q: To go back to the earlier problem, do you feel targeted?

A: This happens because they do not like my style of functioning. Now they say I am liberal. Do they pause to think what we’d be if not liberal? What will be the consequences if we are not liberal? They even say I am doing it for the Nobel peace prize. Do I really care? Will there be something bigger than the prime ministership of India?

Electoral rules of game

KAWISH writes that the government is going to allow only graduates to contest the ensuing general elections. Among our population of tens of millions, the number of graduates is very limited. The imposition of the graduation condition means that only a few thousand people will be given the right to contest the elections and the majority of them will not be able to do so since they do not have resources for expensive election campaign. The government argues that it wants to see educated people in the assemblies to do legislation. But the question arises, what legislation has it left for the elected representatives? It seems that the government is repeating the 1985 scenario.

On the one hand the Supreme Court has upheld the government decision about the graduation condition and, on the other, the Election Commission has ordered the political parties to hold party elections and submit their results up to Aug 12, warning that the parties failing to do so will not be issued election symbols. Besides, the Election Commission has asked the parties to get their funds audited and provide details about their organizational structure, procedure of membership and eligibility of their leadership. The people think that these measures are aimed at keeping Benazir Bhutto and Nawaz Sharif out of the elections.

The Election Commission has also declared that no minister will be allowed to contest the elections unless he/she resigns. However, it has not announced the deadline for the resignations. It will be absurd if a minister resigns from his post a day or two before the elections. The resignation should be offered before he files his nomination papers.

Sach says Sindh is still in the grip of water crisis but the difference is that earlier it was getting less water from the upcountry and now the corrupt officials of the irrigation department are exploiting the arrival of water. They sell the water share of small growers to rich landlords. This theft has created a critical water shortage in Shahdadkot, Miro Khan and other areas. The growers of the former area allege that some irrigation officials have sold out their water share to the farmers of neighbouring Balochistan. An inquiry into the matter should be conducted and if the charge was proved, strict action should be taken against the concerned officials.

Sindhu writes that Sindh has been protesting against the greater Thal canal project from the day this scheme was announced. Recently the police used force to prevent the Jeay Sindh Qaumi Mahaz from holding a sit-in on the issue in Larkana. The baton-charge, tear-gas shelling and firing by the police left many injured. The government representatives do not tire of talking about “real” democracy. Is it a democratic practice to resort to violence against the peaceful protesters?

Tameer-i-Sindh hails the announcement made by Khairpur District Nazim Nafeesa Shah that she will strive to get royalty on oil and gas for her district. Sindh is very rich in natural resources but even then the majority of its people are living below the line of poverty. If the province gets its due share of the Indus water and income generated by the Karachi Port, with royalty on oil and gas being extracted from here, the rising poverty can be changed into prosperity. If the district / city governments begin raising a strong voice for the basic rights of Sindh — including royalty on oil, gas, etc — they will be representing their people in the real sense of the word, and Islamabad will find it difficult to ignore their demands.

Judgment of Anti-Terrorism Court in Daniel Pearl case — text

In The Court of Judge, Anti-Terrorism, Hyderabad Division & Mirpurkhas Division, at Hyd.

Spl. Case No. 26/2002

The State

Versus

(1) Fahad Naseem Son of Naseem Ahmed, (2) Syed Salman Saqib son of Syed Abdul Rauf, (3) Shaikh Muhammad Adil Son of Abdul Shakoor, (4) Ahmed Umer Shaikh alias Muzaffar Farooq alias Amin alias Bashir Son of Saeed Ahmed Shaikh.

Police Crime No. 24/2002 Under Section 365-A/368/302/109/201/120-A/34 PPC read with Sections 7-a, 8(a) (b) (c) 11/A (a) (b) (c), 6(2) (b) (c) (e) (f) 11/H (3-4), 11/V(I) (a) (b) (2), 11/L(a) (b) 7(a) (b) (2), 11/H(2) (a) (b), 11/W (1) (2), 7 of the Anti Terrorism Act, 1997, Police Station Artillery Maidan Karachi (South).

Mr. Raja Qureshi,learned Advocate General, Sindh along with Barrister Zahoorul-Haq, Special Public Prosecutor, Mr Shahabuddin Memon, assisted by Miss Masooda Siraj Advocate.

Mr Abdul Waheed Katpar and Mr Mohsin Imam, learned Advocate for accused Ahmed Omar Saeed Shaikh.

Mr Rai Bashir Ahmed and Mr Muhammad Waris Parwana learned Advocate for accused Fahad Naseem, Syed Salman Saqib and Shaikh Muhammed Adil, and Mr Choudhry Muhammad Jamil, learned Advocate for the complainant alongwith Mr Muhammed Zaheer Ahmed Advocate.

JUDGMENT

The instant case has been received in this court under the orders of the Hon’ble High Court of Sindh, Karachi on 2/5/2002 vide such order dt. 30/4/2002.

2. On 29th March 2002, the abovenamed accused were challaned by Hameedullah Memon, Investigating Officer of C.I.A. Police Karachi to face trial for the offences punishable under the aforementioned sections before the learned Administrative Judge, who accepted the final challan and directed the case to be registered, whereafter the case was ordered to be transferred and assigned to the Anti Terrorism Court No. III Karachi, for disposal according to law and the hearing was adjourned to 5/04/2002. It appears that in the intervening period, the venue for trial was notified by the Home Department, Government of Sindh directing the trial of this case to be conducted inside the Karachi Central Jail w.e. from 5/04/2002 by the learned Anti Terrorism Judge, Court No. III Karachi. On 5/04/2002, compliance of Section 16 of the Anti Terrorism Act appears to have been made by the learned Predecessor of this Court. Copies were supplied to the accused persons in compliance of Section 265(c) Cr. P.C. On 5/04/2002, non-bailable warrants were issued against the absconders reflected in Column No. 02 of the challan sheet and the matter was then adjourned. On 12/04/2002, non-bailable warrants were returned un-executed and accordingly, Proclamation was ordered to be issued to be returned on 22/04/2002.

3. Thereafter, record reveals that the R&Ps of the case was received by way of transfer from the Court of the Judge Anti Terrorism III Karachi vide order passed by the Hon’ble High Court of Sindh in Criminal Misc. Application No. 91/2002 dated 19/04/2002. Prior to the receipt of the case by the learned Anti Terrorism Court No. II, record shows that the case was while being tried by Anti Terrorism Court No. III at Karachi, the accused had filed a Criminal Transfer Application No. 91/2002 on the ground that the learned Anti Terrorism Court No. III presided over by learned Judge Mr. Arshad Noor could not conduct trial of this case against the accused persons as in the challan submitted by the prosecution certain utterances were made before the learned said Presiding Judge by the accused person and four police personnel were cited as prosecution witnesses as to that effect. That the learned Anti Terrorism Court No.II proceeded to frame the charge against all the accused persons on 22/04/2002 and on 22nd April 2002, the case appears to have been bifurcated and separated for trial in respect of the absconding accused and before the commencement of the trial, the learned Presiding Judge took Oath again as required under Section 16 of Anti Terrorism Act, 1997. After completing the formalities, the charge was framed to which the accused pleaded not guilty and wanted trial. As per record of this case reveals that as many as six Prosecution witnesses were examined by the learned Presiding Judge of the Anti Terrorism Court No. II at Karachi (my learned predecessor), when the persecution appears to have filed an application for transfer before the learned Division Bench of the Hon’ble High Court of Sindh bearing Criminal Transfer Application No. 12 of 2002 which was allowed vide order dt. 30/04/2002. In the said application, transfer had been sought by the prosecution on the ground of reports of various intelligence agencies and Government departments from where the following facts had surfaced:-

“a. That there is a threat of blowing up of the premises where the proceedings are taking place; and

b. That there is threat of elimination of the prison staff, Investigating Agency, Prosecution Team and witnesses”.

4. Based on the aforementioned grounds, the case was directed to be transferred from Anti Terrorism Court No. II, Karachi to Anti Terrorism Court, Hyderabad, presided over by the undersigned. It further seems that the order of transfer of this case to this court at Hyderabad inside Jail was questioned by the accused persons before the hon’ble Supreme Court of Pakistan vide Crl. Petition for leave to Appeal No. 126 of 2002 which on hearing was dismissed by the Hon’ble Supreme Court of Pakistan. Resultantly, after examination of as many as six Prosecution witnesses, the trial had recommenced in this court and had concluded in this court. The case was received in this court on 2nd May 2002 for continuing to commence with the recording of P.W-7. In order to streamline the process, it would be profitable to mention that the six prosecution witnesses were examined by my learned Predecessor were: P.W 1 Nasir Abbas; P.W. 2 Jamil Yousuf; P.W. 3 Javed Abbas; P.W. 4 Faisal Noor; P.W. 5 ASP Athar Rasheed Butt; and P.W. 6 Asif Mahfooz Farooqi.

5. Now the brief facts of the prosecution case are that on 4/02/2002, one Mariane Pearl residing at 19/1 Zamzama Street D.H.A. Phase-V Karachi under her signatures addressed a letter to the Station House Officer of Artillery Maidan Police Station, Karachi wherein she placed information on record in the following terms:- The contents of the letter have been incorporated in FIR and F.I.R. was registered.

“My husband, Daniel Pearl, a U.S. National and South Asia Bureau Chief of the Wall Street Journal, was on assignment in Pakistan. He disappeared on the 23rd of Jan. 2002 and has not come back since that date. I came to know from driver Nasir Abbas son of Muhammad Din of Taxi Registration No. PL-1676 that Mr. Abbas dropped my husband in front of the Village Restaurant in Saddar, Karachi. My husband’s whereabouts have not been determined since that time.

I first heard of my husband’s kidnapping from e-mail message received on the 27th of January 2002. The e-mail message included photographs that showed my husband held in detention in inhuman conditions. The writer(s) of the e-mail wrote that they had abducted my husband in retaliation for the imprisonment of Pakistani men by the U.S. Government in Cuba and other complaints.

The unknown accused persons had demanded the provision of Lawyers to Pakistanis detained in the U.S., the release of the Pakistanis jailed in Cuba to Pakistan, the return of former Taliban Ambassador Mulla Zaeef to Pakistan and the delivery of F- 16 fighter jets to Pakistan or the repayment of money allocated for those F-16 jets as well as 15 per cent interest.

In a subsequent e-mail received on 30/01/2002, the unknown accused threatened to kill my husband within 24 hours if their demands were not met.

I approached you for registration of this case and request that you return my husband from his kidnappers.

Sd/- Mariane Pearl 19/1 Zamzama Street, Defence Phase V, Karachi.

Karachi, 4/02/2002.

6. The above complaint was produced by P.W. 17 ASI Aslam Jatt and was taken on record as Ex. 63/A under Section 154 Cr. P.C.

7. Now in this case, the prosecution side has examined the following P.Ws, P.W-1 Nasir Abbas Ex. 28, P.W-2 Jameel Yousuf Ex. 31, P.W-3 Javed Abbas Ex. 32, P.W-4 Faisal Noor Ex. 33, P.W 5 Athar Rasheed Butt Ex. 34 PW 6 Asif Mehfooz Farooqi Ex. 36, P.W-7 Aamir Afzal Ex. 48, P.W-8 Ronald Joseph Ex. 49, P.W-9 Erum Jahangir, Judicial Magistrate Ex. 50, P.W-10 Ghulam Akbar Jafferi Handwriting Expert, Ex. 51, P.W-11 Muhammad Iqbal Awan H.C. Ex. 52, P.W-12 John Molligan Ex. 54, P.W-13 Rajesh Kumar Ex. 55, P.W-14 Shaikh Naeem Ex. 58, P.W.-15 Muhammed Usman Ex. 59, P.W-16 Muhammad Arif Ex. 60, P.W-17 Muhammad Aslam Jatt Ex. 63, P.W-18 Mehmood Iqbal Hashmi Ex. 64, P.W-19 Muhammad Ali Balouch Ex. 65, P.W-20 Zaheer Ahmed Ansari Ex. 66, P.W-21 Ronald D. Bennet Ex. 67, P.W-22 Inspector Rao Muhammad Aslam Ex. 78 and P.W-23 Inspector Hameedullah Memon, I.O. Ex. 80. The prosecution side had dropped the remaining witnesses vide their Statement Ex. 96 dt. 21/06/2002. The prosecution also dropped the complainant vide its Statement Ex. 83 dt. 5th June 2002.

8. The statements under Section 342 Cr. P.C. of the accused persons are at vide Ex. 97, 98, 99 and 100 respectively. The accused Omer Shaikh Ex. 97 had led his defence and examined two defence witnesses namely D.Ws Muhammed Rauf Ahmed Shaikh 101 and Saeed Ahmed Shaikh Ex. 103. The remaining accused persons have produced certain documents viz accused Adil Shaikh produced documents Ex. 106/1 106/2, 106/3, and accused Fahad Naseem Ex. 107 produced his documents Ex. 107/1, 107/2, 107/3, 107/4, 107/5, 107/6, 107/7, 107/8, 107/9, 107/10, 107/11, 107/12, 107/13, 107/14, 107/15, 107/16, 107/17 and accused Syed Salman Saqib Ex. 108 produced defence documents Ex. 108/1 to 78 and 108/79 to 82. The defence Advocates close their sides vide Statement Ex.111 dt. 4/07/2002. The final arguments were made as required under Section 265-C Cr. P.C. Now, since the accused party have led defence, therefore, the arguments of the learned defence counsels were heard and then the prosecution side was heard as required under Section 265-G Cr.P.C. The accused have not examined themselves on oath though opportunity was provided.

9. In the instant case the points for determination are as under:-

(1) Whether the accused along with the absconding co-accused hatched a conspiracy on 11/01/2002 at Room No.411 Akbar International Hotel, Rawalpindi to abduct Daniel Pearl, a Jewish American citizen, a professional journalist belonging to the Wall Street Journal, U.S.A. for raising demands of ransom?

(2) Whether in pursuance of the conspiracy hatched, the accused persons had abducted Daniel Pearl on 23/01/2002 at about 7.00 p.m. near the gate of hotel Metropole, Saddar, Karachi, adjacent to Village Restaurant to an unknown destination and detained him in their captivity?

(3) Whether after abducting Daniel Pearl the accused transmitted the demands for ransom through e-mails dt. 27/1/2002 (with documents) to Wall Street Journal amongst others, and the complainant Mariane Pearl in the following terms:-

a) Lawyers should be provided to the Pakistani detainees with the FBI so that they (Pakistanis) can fight their case.

b) The Pakistani detainees who are jailed in Cuba should be kept in Pakistani Jails so that they could fight their case in Pakistani Courts.

c) The return of former Taliban Ambassador Mulla Muhammed Zaeef to Pakistan.

d) Delivery of F-16 fighter jets to Pakistan or the repayment of money allocated for those F-16 jets as well as 15 per cent interest.

(4) Whether the accused after having failed to receive the demanded ransom had sent yet another e-mail (with documents) to the complainant on 30th Jan 2002 threatening to kill Daniel Pearl within 24 hours if their demands were not met?

(5) Whether the accused on or after 30th January 2002 committed murder of Daniel Pearl by slaughtering and caused the evidence of the dead body to disappear?

(6) Whether the accused in collusion with the absconding co- accused prepared, recorded and transmitted the video cassette of slaughter of Daniel Pearl which conveyed the visual images and sounds, the effect of which has struck terror, fear, sense of insecurity in society?

(7) Whether all accused persons have aided, abetted, participated, committed acts for achieving the objective of the hatched conspiracy of kidnapping for ransom, raising demands of ransom, and causing murder of Daniel Pearl?

(8) What offence, if any, the accused have committed?

9. My findings on the above Points are as under for the following reasons:-

Point No. 01 “Proved” Point No. 02 “Proved” Point No. 03 “Proved” Point No. 04 “Proved” Point No. 05 “Proved” Point No. 06 “Proved” Point No. 07 “Proved”

Point No. 08 :”Accused Fahad Naseem s/o Naseem Ahmed, Syed Salman Saqib S/o Syed Abdul Rauf Shaikh, Muhammed Adil S/o Abdul Shakoor, and Ahmed Omar Saeed Shaikh alias Muzaffar Farooqi alias Amin alias Bashir S/o Saeed Ahmed Shaikh have committed the offences under Sections 365-A, 120-A, 302 PPC read with Section 6 of the Anti Terrorism Act, 1997 and as such accused Ahmad Omer Saeed Shaikh is sentenced and convicted under Section 7 of Anti Terrorism Act, 1997 to death to be hanged by the neck till he is dead and the remaining accused persons namely Fahad Naseem. Syed Salman Saqib, and Muhammed Adil Shaikh are sentenced and convicted under Section 7 of the Anti Terrorism Act, 1997 for life imprisonment and also to pay fine of Rs. 5,00,000/- (Five lacs) each. In case of non-payment of fine, accused shall undergo R.I. for Five (5) Years more. This court also direct all the accused persons to pay jointly a sum of Rs. 20,00,000/- (Twenty lacs) which shall be paid by them in equal share to be paid to the widow of abductee and his orphan. The imprisonment sentences shall run concurrently and benefit of S. 382-B Cr.P.C. is given to the accused persons. 10. Reasons Point No. 01.In order to prove this point, the prosecution side has examined P.W-6 Asif Mehfooz Farooqi and P.W. 7 Aamir Afzal Qureshi. P.W. Asif Mahfooz Farooqi is a Journalist and as per prosecution version and he had association and posted in Pakistan on behalf of J.I.J.I. Press Tokyo. He was previously known to Daniel Pearl and had worked for a week at Islamabad with Daniel Pearl. He had arranged a meeting of Daniel Pearl with accused Ahmed Omar Saeed Shaikh alias Basheer at Room No. 411 at Akbar International Hotel, Rawalpindi and he has identified accused Ahmed Omar Saeed Shaikh alias Bashir to have been the person who had a meeting at Room No. 411 on 11/02/2002 before the Judicial Magistrate P.W. 9 Erum Jehangir. He has identified the accused Ahmed Omar Saeed Shaikh as Bashir in the proceedings of the case. 11. About this witness the learned defence counsel Mr Abdul Waheed Katpar has argued out that this witness is a set up witness and no any conspiracy was made as alleged by the accused Omer Saeed Shaikh regarding the Daniel Pearl. The learned defence counsel Mr Abdul Waheed Katpar in support of this arguments has referred Section 120-A PPC and according to him in this case the total accused are eleven in number and how such huge No. of the accused persons can assemble in a hotel located at Pindi to make a conspiracy as alleged regarding Daniel Pearl. The learned D.C. Mr Katpar has submitted in his arguments that the identification test held before the Judicial Magistrate P.W. 9 Erum Jahangir in the presence of this P.W. regarding accused Ahmed Omer Saeed Shaikh was quite illegal as according to him the accused was not given chance to cross this witness through his advocate. According to Mr Katpar the learned D.C. the evidence of this P.W. can not be believed as true. The learned defence counsel Mr Abdul Waheed Katpar has argued that this witness at the time of identification has not disclosed the role which was played by the accused Ahmed Omer Saeed Shaikh, therefore, according to him the identification test held before the Magistrate is without any legal force. The learned D.C. Mr Katpar in support of his arguments has referred PLD-1981-SC-143 in a Criminal Appeal of Lal Pasand — appellant vs. The State respondent. He also referred Article 129, 122 of Qanun-e-Shahadad Order 1984 in support of his arguments and he contended that the prosecution side has failed to prove this allegation of conspiracy allegedly made by the accused Ahmed Umer Saeed Shaikh.

12. Mr Rai Bashir Ahmed the learned defence counsel for the remaining accused persons and for Ahmed Umer has in his arguments also assailed upon the evidence of this P.W. and has contended that this witness is a false witness and his testimony can not be believed as to be true. No conspiracy as alleged against accused persons regarding Daniel Pearl was hatched. The identification test held before the Judicial Magistrate P.W-9 Erum Jahangir about accused Omer Shaikh does not carry any legal weight. According to these learned defence counsels, the case is full of doubt and benefit of doubt therefore must go to the accused persons. This learned defence counsel in support of their arguments has referred 1989-SCMR-2056 (a) Sher Muhammed — The Petitioner vs. Revenue Officer and others Respondents, 1989-SCMR- 720 Shahmir — appellant Vs. Muhammed Afzal and two others respondents.

13. As against this, the learned Advocate General Mr Raja Qureshi has submitted in his arguments that this P.W. Asif Mehfooz Farooqi is a true witness. This witness has rightly identified accused Ahmed Omer Saeed Shaikh alias Bashir as Bashir in the proceedings of the case.

14. Now about P.W. 7 Aamir Afzal Qureshi. Both the learned defence counsels has argued out that this witness is also false witness and the prosecution side has failed to produce the record of the employment of this witness in Akbar International Hotel Rawalpindi where he was employed as per prosecution story and this witness according to the learned defence counsel has given a false story that accused Ahmed Omer Saeed Shaikh was occupying a room No. 411 in the name of Muzaffar Farooq. The learned defence counsel has also argued out that this P.W. Aamir Afzal Qureshi has not produced a register showing the entries of incoming and outgoing of the customers to whom the rooms of the hotel were allotted and showing that the accused Ahmed Omer Saeed Shaikh was given room No. 411 on the date and time. Both the learned defence counsels in their final submissions has contended that evidence of this P.W. is not trustworthy.

15. As against this, Mr Raja Qureshi the learned Advocate General has argued out that the evidence of this P.W. Aamir Afzal Qureshi is confidence inspiring because this P.W. has produced a record which are the receipt of the hotel confirming Room No. 411 to be in possession of accused Ahmed Umer Saeed Shaikh and this witness has identified accused Ahmed Omer Saeed Shaikh rightly at the time of identification test held before the Judicial Magistrate Erum Jahangir P.W-9 in the proceeding of this case.

16. I have given my considered view to the arguments advanced by the learned defence counsels and the learned Advocate General and I have perused the evidence of above P.Ws on record. I find that P.W 6 Asif Mahfooz Farooqi is a journalist and had association with Daniel Pearl having his meeting on 22nd Dec. 2001 at Islamabad. He was working for a Japanese news agency and the Predecessor of Daniel Pearl for whom Asif Mahfooz Farooqi was working had instructed him to remain in association with Daniel Pearl being the successor from the Wall Street Journal.

It appears from the record that Daniel Pearl and P.W-6 Asif Mahfooz Farooqi worked as Journalist collectively and in discussion it further appears that Daniel Pearl had asked this witness that a news item had appeared in the American newspaper in relation to one Richard Reed, who according to Daniel Pearl had come to Pakistan and had stayed with Syed Mubarak Shah Gilani at Lahore. This Richard Reed was alleged to have planted bomb in his shoes in order to blow up an aircraft in the United States. It was in this perspective that led Daniel Pearl to meet Syed Mubarak Shah Gilani. Accordingly, P.W-6 Asif Mahfooz Farooqi was asked whether he could arrange a meeting of Daniel Pearl with Syed Mubarak Shah Gilani in response to which the witness said he will make his efforts to do so and accordingly a meeting did take place at Room No. 411 of Akbar International Hotel on 11/01/2002 which appears to have been participated by Asif Mahfooz Farooqi, Bashir and one Arif alias Hashim, absconding co-accused. Though this witness, it has come on the record that Bashir in fact was the alias of accused Ahmed Omar Saeed Shaikh whereas Arif is one of the absconding accused person reflected in the challan in the name of Hashim alias Arif son of Qari Abdul Qadeer. In this meeting Daniel Pearl in the presence of P.W. 6 expressed his desire to meet Pir Mubarak Shah Gilani when accused Ahmed Omar Saeed Shaikh alias Bashir placed himself as a “Mureed” to Pir Mubarak Shah Gilani before Daniel Pearl. Thereafter, Daniel Pearl informed P.W. 6 that Bashir who in fact was accused Ahmed Omar Saeed Shaikh had already arranged his meeting with Pir Mubarak Shah Gilani but in the city of Karachi. It was on 23/01/02 between 3 to 4 p.m., that P.W-6 received a phone call from Daniel Pearl at Karachi asking him as to whether it was safe for him to be meeting Syed Mubarak Shah Gilani. In response to this query, a quick answer that was responded to by P.W. 6 was to effect that if Syed Mubarak Shah Gilani is a public figure then there was no harm in meeting him. Thereafter, on the following day, i.e. 24/1/2002 P.W-6 received a call from complainant Mariane Pearl informing that Daniel Pearl has not returned home since the previous day i.e. 23/01/2002 and asked as to whether P.W-6 knew his whereabouts. PW-6 has identified the said Bashir available in Room No. 411 at Akbar International Hotel to be accused Ahmed Omar Saeed Shaikh before the learned Judicial Magistrate (P.W-9) in the identification parade held on 26/02/2002 and has also identified Bashir in Court as accused Ahmed Omar Saeed Shaikh who had in court disclosed his name to be Ahmed Omar Saeed Shaikh, upon being identified as Bashir. 17. It would be seen that the very meeting which took place at Room No. 411 was aimed to conspire and abduct Daniel Pearl, an American Citizen a Journalist of Wall Street Journal to raise their demands for ransom after abducting Daniel Pearl. Such conspiracy was between accused Ahmed Omar Saeed Shaikh and Hashim alias Arif son of Qari Abdul Qadeer (absconding accused). It would thus be seen that on 11/01/2002 at Room No. 411 of Akbar International Hotel, Rawalpindi is the venue where in the conspiracy to kidnap Daniel Pearl takes place and there is a meeting of minds between accused Ahmed Omar Saeed Shaikh and absconding accused person Arif alias Hashim for kidnapping of Daniel Pearl. This conspiracy was based on the fictitious mode of arranging a meeting of Daniel Pearl with Syed Mubarak Shah Gilani by Ahmed Omar Saeed Shaikh posting to be a Mureed of Pir Mubarak Shah Gilani and that by posing under a different name of Bashir. 18. I also find that P.W-7 Aamir Afzal Qureshi who is a receptionist of Hotel Akbar International, Rawalpindi who has provided the record in respect of Room No. 411 to the Investigators as to under whose occupation the said Room No. 411 was on 11/01/2002 upto 12/01/2002. On examining the record, he has stated that the same was occupied by a person named Muzaffar Farooq who had stayed there for one night i.e. checked in on 11/01/2002 and checked out on 12/01/2002. He further stated that it was the investigator to whom record was provided and who had informed him that the person who had occupied Room No. 411 on 11/02/2002 was not Muzaffar Farooq but was actually accused Ahmed Omar Saeed Shaikh. P.W-7 Aamir Afzal Qureshi further disclosed that a foreigner had also come to meet the guest in Room No. 411 which foreigner was disclosed by the investigator to P.W-7 to be Daniel Pearl. Record of Hotel in respect of Room No. 411 of 11/01/2002 and 12/01/2002 are Ex.P-10/1 1 upto Ex. P-10/4.

19. It would thus be seen that P.W-7 identifies accused Ahmed Omar Saeed Shaikh alias Muzaffar Farooq present before this court and had pointed out to him rightly as per the record of this case.

20. It would thus be seen that the elements of conspiracy being hatched could be gathered from the aspect that while accused Ahmed Omar Saeed Shaikh checks into Room No. 411 at Akbar International Hotel, Rawalpindi he gets his name recorded in the Hotel record as Muzaffar Farooq and once he had checked in and a meeting has been arranged between him and Daniel Pearl through absconding accused Arif he identifies himself to be Bashir to Daniel Pearl and P.W-6 Asif Mahfooz Farooqi identifies accused Ahmed Omar Saeed Shaikh in the identification parade as Bashir whereas P.W-7 Aamir Afzal Qureshi identifies Ahmed Omar Saeed Shaikh in court as Muzaffar Farooq. This aspect coupled with the photocopy of the NIC in the name of Bashir and original identity card of Rauf Ahmed Siddiqi reflecting photograph of accused Ahmed Omar Saeed Shaikh recovered at the time of his arrest on 13/02/2002 by P.W-23 reflecting the documents i.e. NIC the photograph of accused Ahmed Omar Saeed Shaikh to be under the identity of Rauf Ahmed Siddiqi which has been duly confirmed by the National Registration Office at Multan Ex. 80/1 to be bogus and corroborates his criminal conduct.

21. Hence a comfortable conclusion could be arrived at that a conspiracy was hatched on 11/01/2002 at Room No. 411 of Akbar International Hotel, Rawalpindi to abduct Daniel Pearl, an American Citizen, a Professional Journalist belonging to the Wall Street Journal under the garb of arranging a meeting for him with Pir Mubarak Shah Gilani. Both these above witnesses were subjected to extensive cross examination and their testimonies could not be shattered by their learned defence counsels. Hence Point No. 1 is proved. This Point is answered accordingly.

Point No. 02.

22. In order to prove this point the prosecution has examined P.W-1 Nasir Abbas and P.W. 2 Jameel Yousuf, Ex. 28 and Ex. 31 respectively. P.W. Nasir Abbas is an eyewitness. He is Taxi Driver, who had last dropped Daniel Pearl in front of Village Restaurant adjacent to Hotel Metropole. He had seen Daniel Pearl to have been made to sit in a white Toyota Corolla Car by accused Ahmed Omar Saeed Shaikh. He has further identified Ahmed Omar Saeed Shaikh sitting in a white car with whom Daniel Pearl also sat. He participated in the identification parade test held on 6/03/2002 before Judicial Magistrate. He is also a mashir of vardat. Such mashirnama was executed on 5/02/2002 at 1445 hours alongwith co-mashir H.C. Aashiq Ali. He had also got recorded his statement under Section 164 Cr.P.C. before the Judicial Magistrate when he was not cross examined by the counsel for the accused before the Judicial Magistrate, though opportunity was adequately provided. He has also identified the accused in Court.

23. P.W-2 Jameel Yousuf in his deposition on record has stated that he is Chief of CPLC Karachi. He has further stated that Daniel Pearl had taken an appointment on 22/01/2002 from him to discuss Police Rules which appointment was fixed for 23/01/2002 at 5.15 pm. Accordingly, Daniel Pearl reached the Governor’s House where the office of CPLC is situated through gate No. 4 of the Governor’s House. While Daniel Pearl was sitting with P.W-2, two calls were received by Daniel Pearl, the first call being around 5.50 or 5.52 pm which appeared to have originated from the office of Daniel Pearl which were overheard by P.W-2 to be relating to general discussion of the office of Daniel Pearl. The second call was stated by this witness to have been received by Daniel Pearl at 6.28 pm while Daniel Pearl was in the office of P.W-2. This witness informs that Daniel Pearl told the caller who had called at 6.28 p.m. that he is very close to the venue for his appointment with the caller and that he will be there at 7.00 p.m. This P.W-2 further testifies that Daniel Pearl departed from his office at 6.45 pm whereafter on the following day he had proceeded to Islamabad to have a meeting with the Minister of Interior and while being in the meeting he had placed his telephone on vibration so as to get the messages recorded. He states to have received messages of Mariane Pearl amongst others, while in the meeting with the Minister of Interior and after having been free from the meeting, he called Mariane Pearl to ask the reasons as to why she called P.W-2. She informed P.W-2 that where did Daniel Pearl go after he left his office to which he expressed no knowledge but he did specify to her that while Daniel Pearl was sitting with P.W-2, two calls were received by him on 23-01-2002 between 5.15 pm to 6.45 pm when he departed wherein Daniel Pearl had assured the caller to be there for his appointment at 7.00 p.m. stating that he was very close by to the meeting point. The nature and function of P.W-2 is to assist the investigation in criminal cases and high profile cases and it is therefore, that the police had contacted him and he was able to obtain print-outs of the telephone of Daniel Pearl so as to see the incoming calls which were received by Daniel Pearl while he was there with him on the previous day. Such incoming calls were reflected from the Mobil Link record to have been made from telephone No. 0300-2170244 which information was also passed by P.W-2 to Mariane Pearl who had, in turn, informed P.W-2 that this telephone number is of Imtiaz Siddiqui, an absconding co-accused in this case which was learnt from the e-mails received by Mariane Pearl from Daniel Pearl and have been produced on record as Ex. P/5 and Ex. P/6 respectively.

24. Both these witnesses were subjected to lengthy cross examination but their testimonies were not shattered.

25. I have heard the arguments above these P.Ws from the learned defence counsels Mr. Abdul Waheed Katpar and Mr. Rai Bashir Ahmed. It may be pointed here that Mr. Rai Bashir Ahmed was also appearing for all the accused persons as per record.

26. Mr. Abdul Waheed Katpar the learned defence counsel for accused Ahmed Omar Saeed Shaikh has contended in his arguments that both these witnesses named above are the setup witnesses. P.Ws Nasir Abbas is a Taxi Driver and as per record the incident as alleged had taken place on 23rd Jan. 2002, whereas, Nasir Abbas had allegedly identified the accused Ahmed Omar Shaikh at the time of identification in the month of March 2002 and according to him this is quite impossible that after this period how this witness Nasir Abbas could identify the accused. About the second witness P.W. Jameel Yousuf the learned defence counsel Mr. Katpar had stated that he is a policeman and therefore his testimony can not be believed as to be true.

27. Mr. Rai Bashir Ahmed the learned defence counsel has argued out that both these witnesses are the false witnesses and about the abduction of Daniel Pearl the prosecution has failed to discharge their burden successfully. The learned defence counsels in support of their arguments have referred 1996-Pak Cr. L. Journal-Pesh-1811 Ishtiaq Ahmed - Appellant vs. The State Respondent, while relying on this authority the learned defence counsel has contended that therefore the case is doubtful and benefit doubt must go to the accused persons. He placed reliance 1989-SCMR-2056 Sher Muhammed - Petitioner vs Revenue Officer and others.

28. As against this Mr. Raja Qureshi learned Advocate General has argued out that P.W. Nasir Abbas is an eye witness about the abduction of Daniel Pearl by the accused Ahmed Omar Saeed Shaikh and he has narrated the ocular account without any contradictions. He is independent witness, therefore, his testimony can not be discarded, and according to Mr. Raja Qureshi the evidence of P.W. Jameel Yousuf has corroborated the evidence of P.W. Nasir Abbas. The learned Advocate General in support of his arguments has referred 2002-SCMR-820 in a criminal Appeal of Soulat Ali Khan Appellant vs. The State Respondent. The learned A.G. has also mentioned that evidence of P.W Nasir Abbas on the point of abduction of Daniel Pearl by accused Omar Saeed Shaikh is a last seen evidence and this evidence is a confidence inspiring and can not be discarded. He in support of his arguments has referred 2001-Pak. Cr. L.J. Quetta-1766 (c) in a criminal appeal Muhammed Khan and others App