ISLAMABAD: Ahmed Omar Saeed Sheikh, the principal accused in the murder case of American journalist Daniel Pearl, will be moved out of his death cell to some comfortable environment like a rest house but will remain in state custody, according to an apex court verbal order.

Heading a three-judge Sup­reme Court bench, Jus­tice Umar Ata Bandial after Tuesday proceedings obser­ved: “Though the detenue (Omar Sheikh) is entitled to be freed, he should be moved to a comfortable residential environment out of the Karachi prison to something like a rest house.”

The bench also observed that the court would issue a written order asking the state to allow Sheikh’s family to meet him between 8am and 5pm.

The SC had taken up an appeal moved by the Sindh government against the December 24, 2020 Sindh High Court (SHC) order of declaring illegal the provincial government notification (dated June 29, 2020) of placing all accused in the case on the Fourth Schedule of the Anti-Terrorist Act (ATA) of 1997 pursuant to Section 11-EE with an observation that none of the accused was “enemy aliens” as contemplated under Article 10(9) of the Constitution and as such their detention under this provision was found to be illegal.

The verbal order also requires the state to place his family at some good rest house with transportation facility, while the government has been directed to arrange his shifting from the jail within a couple of days. During these two days, the government will keep the Sheikh at some comfortable place within Karachi prison, but out of the death cell, and allow his interaction with the family there, according to the verbal order.

It said the Sheikh would be kept in Karachi and would not be allowed to communicate with the outside world.

Soon after the order, Saeed Sheikh — father of the British Pakistani — said this was not complete freedom but a ‘step towards freedom’.

Earlier at the hearing, Attorney General for Pakistan Khalid Jawed Khan said the accused were not ordinary criminals but hardcore militants, who could pose a direct threat to ordinary people of Pakistan as they might disappear after being released from jail.

The attorney general argued that enemy combatants enjoyed no rights, as they could again plan and conspire after being freed. He also reminded the court that recently valiant jawans of the armed forces had shed their lives while fighting with the militants and embraced martyrdom.

Justice Muneeb Akhtar observed that the court did not deny the sacrifices rendered by the armed forces, but the court was bound to go with the Constitution.

Justice Sajjad Ali Shah wondered if courts could declare ‘illegal confinement’ as ‘legal’.

When the law officer pleaded before the court that the ground realities warranted suspension of the December 24 Sindh High Court order, arguing that the accused should not be allowed to live with family as they could use mobile phones, Justice Shah reminded him that Sheikh reportedly used cell phones with impunity even during the period of his confinement.

Justice Muneeb also wondered how the federal government could intervene in this matter when it had already delegated powers to the provincial government. It was only the concern for the provincial government and the federal government was no one in the picture from A to Z, he remarked.

In its appeal before the apex court, the Sindh government through the advocate general, additional chief secretary, police chief and senior superintendents of central jail Karachi and Sukkur had pleaded that the government had lawful authority to place the names of the accused on the Fourth Schedule of the Anti-Terrorism Act. The provincial authorities argued that the third preventive detention order of Sept 28, 2020 was not violative of Article 2A, 4, 9, 10(A), 14, 15 and 25 of the Constitution.

The provincial government was of the opinion that the SHC had passed the December 24 order in clear disregard of the provisions of the Constitution, the West Pakistan Maintenance of Public Order Ordinance 1960 (MPO), ATA and in particular the established principles of the executive discretion in matters concerning national security, public policy, integrity and defence.

In view of the scenario where the country is grappling with terrorism amid internal and external security threats, the Sindh government in its appeal argued that jurisprudence in this area of the law needed to take a realistic and practical approach adhering to the principles of legal realism.

The law of preventive detention is a law, the jurisprudence in respect of which must and does indeed develop with changing times and always contains within itself room for such change, the appeal contended.

The Sindh government argued that the detention order was immune to judicial review by a court of law but the acquittal of the detained persons had no bearing on the preventive detention as that it was an established principle that acquittal, discharge or unsuccessful judicial trial was not a bar to subsequent preventive detention order.

Published in Dawn, February 3rd, 2021