ISLAMABAD: The Sindh government on Tuesday approached the Supreme Court seeking an early hearing of its appeal in the Daniel Pearl case after the high court overturned Ahmed Omar Saeed Sheikh’s conviction for the journalist’s murder.

Daniel Pearl, 38, the South Asia Bureau Chief for The Wall Street Journal, was doing research on religious extremism in Karachi when he was abducted in January 2002 and later killed.

Moved on behalf of Sindh Prosecutor General Dr Fiaz Shah, the application apprised the Supreme Court of Pakistan that there was apprehension about Sheikh’s absconsion as there was strong evidence of his involvement in the kidnapping and murder of the American journalist.

“The matter is of great urgency, therefore, the application for the suspension of April 2 SHC judgement be heard as early as possible,” the fresh application stated.

It requested the apex court to fix the hearing as early as possible, preferably in the coming week.

Fresh application apprehends Omar Sheikh’s absconsion

Through its April 2 order, the Sindh High Court had overturned the murder conviction and found Sheikh guilty of the lesser charge of kidnapping. The SHC also had acquitted three other persons namely Sheikh Adil, Fahad Naseem and Salman Saqib, who had earlier been sentenced to life imprisonment by an Anti-Terrorism Court (ATC) in Karachi.

In 2002, Omar Sheikh was arrested after a graphic video showing the American journalist’s decapitation had been delivered to the US consulate. Subsequently, Sheikh was sentenced to death by the trial court. After the overturning of his conviction early this month, the Sindh government filed an appeal in the Supreme Court.

The appeal pleaded before the apex court that the video showing the committing of murder of the WSJ reporter had been verified by a public official (an expert from PTV) and was never challenged.

In view of the collective proof along with the clear and categorical confessional statements of the accused and the co-accused (Ahmed Omar Saeed Sheikh), the acquittal and modification of sentence by the high court was not sustainable and was liable to be set aside, the appeal urged the Supreme Court.

Similarly, the evidence of natural and independent witnesses confirmed the demand of ransom made by the accused — a fact also stood proven through documentary evidence. As such the acquittal of the accused as well as the modification of sentence to the extent of co-accused is illegal and unlawful.

The accused persons acted to achieve nefarious designs and committed the offences that fall under the Anti-Terrorism Act, 1997 and this factum was also accepted and admitted by the high court in its judgement, the petition highlighted. But the high court took a glaring contradictory view, while acquitting the accused and modifying the sentence of the co-accused — a decision which could not be sustained in the eye of law and thus caused serious miscarriage of justice, it stated.

According to the appeal, this was a fit case for conviction in the light of the 1996 Supreme Court judgement in the Bahadur versus the State, but the SHC ignored the dictum and erred in dealing with the legal question of burden of proof as the prosecution had safely discharged the burden to prove the guilt of the accused by producing cogent and sufficient evidence.

Moreover, the appeal said, the accused persons failed to produce any material to create a doubt against the evidence produced by the prosecution. Rather the co-accused during remand categorically admitted his guilt before the trial judge that he committed the offences in league with other accused who also voluntarily confessed their involvement before the trial court.

Hence the offences were proven that all accused in connivance with each other committed the crime and they were vicariously liable for committal of all offences, including the murder of Daniel Pearl, the appeal contended.

Likewise, the admission of guilt by the co-accused during remand before ATC Karachi is part of judicial proceedings and thus legal sanctity is attached thereto under Article 91 of the Qanun-i-Shahadat Ordinance, 1984, the SC was informed. But the high court did not consider this important fact in true perspective thereby seriously misled itself to the conclusion arrived at in April 2 verdict, the Sindh government contended in its appeal.

It said the high court also failed to appreciate the aggravating factors involved in the case. On the contrary the acquittal of the accused and modification of death sentence in the absence of the mitigating circumstance caused serious miscarriage of justice and violates the principles settled down by the apex court, it argued.

The high court also misconceived the confessional statements to be inadmissible in evidence where no rebuttal came on record against such confessional statements nor any of the accused filed any complaint against the recording of such confessional statement.

In the absence of this irrefutable piece of evidence, the discarding of confessional statement on the ground of delay of 27 days and element of presumptive inducement was completely unwarranted, the appeal argued, adding that the certificate attached with the confessional statement of the accused carried weight and legal sanctity.

According to the appeal, the high court neither referred to nor considered the established impersonation of the co-accused Ahmed Omer Saeed Sheikh alias/Aka Bashir, corroborated through identification parade. The voluntary judicial confessions made by the accused Salman Saqib and Fahad Nasim before the competent court were retracted on flimsy premises, yet the high court while giving undue weightage to such retraction did not consider the principles settled by the apex court.

As per 2019 Supreme Court Shaukat Ali’s case, the petition highlighted, even a retracted confession could form the basis for conviction if found voluntarily and truthful. The rule laid down by the Supreme Court was not followed in the Daniel Pearl case, resulting in grave miscarriage of justice, it argued.

The SHC did not appreciate that there was overwhelming incriminating evidence on record against the accused connecting them to the offences with which they were charged, it said.

Published in Dawn, April 29th, 2020