ISLAMABAD: The Supreme Court on Monday restrained the Sindh government from releasing Ahmed Omer Saeed Sheikh, the principal accused convicted and sentenced for kidnapping and killing Wall Street Journal journalist Daniel Pearl.

The directive was issued by a three-judge SC bench headed by Justice Mushir Alam since an earlier 30-day detention period of the accused under Section 11 of the Anti-Terrorism Act (ATA) 1997 is expiring on Sept 30.

The Sindh government and the parents of Danial Pearl had through their counsel expressed apprehensions that the four accused, including Omer Sheikh, could be released and requested the apex court to keep the accused in jail since their detention orders were expiring on Sept 30.

On April 2, the Sindh High Court had overturned the death sentence of Omer Sheikh and sentenced him to seven years in prison. The high court had acquitted three other accused — Fahad Naseem, Sheikh Adil and Salman Saqib — who were earlier sentenced to life imprisonment by an anti-terrorism court (ATC) in Karachi.

Daniel Pearl, 38, was the South Asia bureau chief for Wall Street Journal when he was abducted in Karachi in January 2002 while researching a story about religious extremists in Karachi. A graphic video showing his decapitation was delivered to the US consulate in the city nearly a month after his abduction.

Omer Sheikh was arrested in 2002 and sentenced to death by the trial court.

Farooq H. Naek, the counsel for the Sindh government, later told reporters that under Order 23, Rule 9 of the Supreme Court Rules 1980, the apex court had the authority to order arrest of any accused and treat him under-trial prisoner.

Barrister Faisal Siddiqui, the counsel for Pearl’s parents, meanwhile, said that since Omer Sheikh’s lawyer Mehmood A. Sheikh was not well and the apex court wanted to hear him, it decided to adjourn further proceedings for a week while granting the stay.

Though this time the Sindh government detained Omer Sheikh under Section 11 of the ATA, the convict was earlier detained under the Maintenance of Public Order for three months. He has already spent 18 years in prison on death row.

Appeals admitted for hearing

The Supreme Court also admitted for hearing all six appeals filed against the SHC’s April 2 decision to overturn Omer Sheikh’s death sentence.

The petitions were instituted by Prosecutor General for Sindh Dr Fiaz Shah and the mother and father of Daniel Pearl through their counsel Faisal Siddiqui, as well as Omer Sheikh himself.

Mr Naek argued before the court that taxi driver Nasir Abbas had identified Omer Sheikh in front of a magistrate during an identification parade, adding that the accused was arrested on Jan 13, 2002, and charges against him were framed on April 22, 2002.

Moreover, the counsel said, Amir Afzal, a receptionist at Akbar International Hotel where Omer Sheikh and Daniel Pearl met, also identified the accused during an identification parade, adding that he was among the total 23 witnesses.

Mr Naek argued that when Omer Sheikh met the journalist, he used the fake name of Bashir because his intentions were bad.

During the hearing, the court wondered how charges against Omer Sheikh could be proven when neither the body of the victim was found nor was an autopsy conducted.

The counsel contended that kidnapping charges were proven and the high court should have ordered a retrial instead of overturning the death sentence.

Justice Qazi Amin Ahmed observed that the testimony of the taxi driver was the basis for the government’s case, but the journalist’s body was never found. How the taxi driver identified Pearl, he wondered.

The taxi driver had identified Pearl after looking at a picture, the counsel replied.

Faidal Siddiqui contended that the high court judgement was perverse for two reasons since it was a rare occasion when nobody was happy with the judgement, everybody had filed the appeal; even the accused had filed the appeal. “This is a clear sign of being perverse,” he said.

Secondly, the counsel argued, the high court decision could not be seen as an acquittal judgment because there was no concurrent finding. The trial court decided one way while the high court decided another way, he said, adding that even the high court had not simply acquitted but convicted the principal accused for the abduction at least.

“Therefore, this judgement cannot be seen as an acquittal judgement and interference can be made by the apex court,” the counsel argued, adding that the high court misapplied the law and misread the evidence since after considering all evidence, it stated that Omer Sheikh was guilty of abduction and then went on to say that he was not guilty of abduction for ransom.

“Under the law, no one can be convicted simply of abduction; either you are convicted of abduction for ransom or abduction for confinement,” the counsel said.

Since this was a case for abduction for ransom, the only logical sentence which could have been passed was for abduction for ransom, he said. “An accused cannot be convicted of the same offence and acquitted of another connected offence. There were eyewitnesses, forensic and confessional admission by Omar himself,” he argued.

Published in Dawn, September 29th, 2020