ISLAMABAD: In a detailed verdict, the Supreme Court on Friday pointed a finger at the prosecution for its failure to prove guilt of the principal accused — Ahmed Omar Saeed Sheikh — in the murder of US journalist Daniel Pearl.

Besides, the evidence furnished during the trial was full of factual and legal defects, noted Justice Sardar Tariq Masood in the 43-page judgement he has authored.

The judgement came to explain reasons why the Supreme Court had on Jan 28 acquitted, by a majority of two to one, Omar Sheikh and others and ordered release of the principal suspect as well as Fahad Nasim Ahmed, Syed Salman Saqib and Shaikh Mohammd Adil from the jail forthwith, if not required to be detained in connection with any other case.

Justice Yahya Afridi, a member of the bench, had dissented from the majority opinion and had partially allowed the appeals in terms that Omar Sheikh and Fahad Nasim were convicted under Sections 365-A and 120-B of the Pakistan Penal Code (PPC) and Section 7 of the Anti-Terrorism Act 1997 and sentenced to life imprisonment on each count.

Evidence furnished during trial contained factual and legal defects, notes detailed verdict

The Supreme Court was seized with a set of appeals filed by the Sindh government through Prosecutor General Dr Fiaz Shah and parents of Daniel Pearl namely Ruth Pearl and Judea Pearl through senior counsel Faisal Siddiqui as well as Omar Sheikh through Advocate Mehmood A. Sheikh.

The appeals challenged the April 2, 2020 Sindh High Court’s (SHC) overturning of Omor Sheikh’s conviction by a trial court for allegedly kidnapping and killing Pearl.

Through its April 2, 2020 order the high court had modified the sentence of Omar Sheikh to seven-year rigorous imprisonment with a fine of Rs2 million.

The high court had also acquitted three other accused, namely Fahad Naseem, Sheikh Adil and Salman Saqib, who were earlier sentenced to life imprisonment by the Anti-Terrorism Court (ATC) of Karachi.

Daniel Pearl, 38, was the South Asia bureau chief of The Wall Street Journal. Omar Sheikh was accused of abducting Mr Pearl in Karachi in Jan 2002 while he was conducting research on religious extremism. Later a graphic video showing his decapitation was delivered to the US Consulate after a month of his abduction. Subsequently, Omar Sheikh was arrested in 2002 and sentenced to death by the trial court.

In the detailed judgement, Justice Masood observed that regarding each and every piece of evidence doubts were emerging from the mouths of the witnesses and it was settled since centuries that benefit of doubt automatically went in favour of an accused.

Even if a single circumstance created reasonable doubt in a prudent mind regarding guilt of an accused then the accused was entitled to such benefit, not as a matter of grace and concession but of right, and such benefit must be extended to the accused persons by the courts without any reservation, the verdict said.

Thus the SHC had rightly extended the benefit of doubt to Fahad Nasim Ahmed, Syed Salman Saqib and Sheikh Mohammad Adil and acquitted them of all the charges and had also rightly extended the benefit of doubt to Omar Sheikh regarding all other charges, the judgement said. But the SHC wrongly convicted him under Section 362 of the PPC when the evidence of Nasir Abbas (PW-1) was full of doubts and no reliance could be placed on such doubtful statement.

So the conviction of Omar Sheikh was not justified, the judgement said, adding that though the counsel for the parents of Mr Pearl argued that it was a high-profile case, even in such cases benefit of doubt could not be extended to the prosecution.

Meanwhile, Justice Afridi in his 52-page dissenting note observed that in cases of conspiracy, direct evidence was seldom available and a conspiracy could be established by circumstantial evidence.

On this subject, it was difficult to establish a general inflexible rule as each case must be adjudged by its own peculiar circumstances, he said.

Therefore, strict proof of conspiracy is not necessary; what is required by Article 23 of the Qanun-i-Shahadat, 1984, is that there should be “reasonable grounds” to believe that the accused and the person whose acts, statements or writings are sought to be given in evidence have conspired to commit an offence or an actionable wrong.

Justice Afridi noted that the motive behind the crime was not any private dispute or vendetta against Mr Pearl, but went beyond it. The contents of the ransom and death threat email of Jan 30, 2002 make it clear that the motive of the accused to carry out the crime did not relate to any private dispute or vendetta with Mr Pearl, but in fact, the matter was clearly the use of a threat designed to intimidate not only the government of Pakistan, but also the foreign government and organisations to create a sense of fear and insecurity in society.

Thus, viewing the ‘design’ and ‘purpose’ of Omar Sheikh and Fahad Naseem to carry out the abduction of Mr Pearl for ransom brought the commission of the crime within the mischief of the term “Terrorism”, as envisaged under clause (b) of subsection (1) of section 6 of the ATA, 1997, Justice Afridi wrote.

He also expressed displeasure over the fact that the appeal of Omar Sheikh against the conviction and award of death sentence passed by the ATC on July 15, 2002 remained pending before the SHC for almost two decades.

Admittedly, it was not the case of the prosecution that Omar Sheikh delayed or was in any manner a cause for the delay in deciding his appeal, Justice Afridi observed. This being so, the state, particularly its criminal delivery system, is responsible for his prolonged incarceration in the death cell, without providing him his right to be dealt with in accordance with the law; of being heard by an appellate court in a reasonable time.

This prolonged incarceration of around two decades in the death cell gave rise to his ‘right to expectancy of life’, entitling him to the sentence of life imprisonment, and not death, Justice Afridi said.

Published in Dawn, March 27th, 2021