• SHC points out several flaws in prosecution’s case
• Lawyer says Omar Sheikh is likely to be set free soon

KARACHI: The Sindh High Court (SHC) on Thursday cited lack of evidence and overturned the death penalty handed down by a trial court to main accused in the abduction and murder of American journalist Daniel Pearl; it also set aside life terms given to three co-accused.

The SHC acquitted all the appellants of the charges of murder and kidnapping for ransom and only found the main accused, Ahmed Omar Saeed Sheikh, guilty of abducting the journalist and sentenced him to seven-year imprisonment.

One of the defence lawyers, Khawaja Naveed, however said British national Sheikh is likely to be set free along with the co-accused in a few days because he has already spent around 18 years in detention.

Sindh’s prosecutor general Dr Faiz Shah said an appeal would be filed before the Supreme Court against the high court’s judgement.

An antiterrorism court in Hyderabad had sentenced Sheikh to death in 2002 for the murder and kidnapping of the 38-year-old bureau chief for South Asia of The Wall Street Journal for ransom and handed down life sentences to co-accused Fahad Naseem, Salman Saqib and Sheikh Adil for helping the main convict commit the crimes.

The appeals were filed back in 2002 and after marathon hearings the appellate bench of the SHC overturned the trial court’s verdict and allowed the appeals of convicts, but with slight modification in Shaikh’s case. The appeal filed by the state for enhancement of life terms of the co-accused was dismissed.

The two-judge SHC bench headed by Justice Mohammad Karim Khan Agha pointed out many loopholes and major inconsistencies in the prosecution’s case.

The bench discarded the confessions of two of the appellants for not being made voluntarily and found material contradictions in the evidence regarding the laptop reportedly used for making the ransom demand, as well as about the arrest of the main accused.

In its judgement, the bench observed there was no evidence against the appellants regarding hatching a criminal conspiracy to abduct the victim; nothing came on record to link any of the appellants with Pearl’s murder, no one else was shown in the video containing scenes of his beheading and the body of slain journalist has still not been found.

Sheikh was convicted of abduction of the victim only because he was last seen with him, it added.

The verdict said the main accused could not be convicted of kidnapping for ransom or murder merely on the basis of being seen with the victim, without strong and unimpeachable corroborative evidence that was lacking in the present case.

The court noted that it could not rely upon the confessional statements of Salman Saqib and Fahad Naseem recorded by a judicial magistrate as these were recorded after a delay of 27 days. More importantly the magistrate concerned admitted before the trial court that the confessions were not voluntary.

As it was an “extremely high-profile case”, police were under huge pressure to recover the abducted journalist or arrest the responsible persons. “Under these circumstances it would not be surprising if police resorted to rough tactics in order to extract confessions,” it added.

It also pointed out a glaring contradiction regarding the arrest of Omer Sheikh and said he had surrendered to police in Lahore on Feb 6, 2002, instead of being arrested on Feb 13 in Karachi as alleged by the prosecution.

The bench further observed that police claimed to have recovered the laptop which was allegedly used to send emails to Mrs Pearl to demand ransom, on the night between Feb 10 and 11 from a house where Fahad was staying and where FBI officials had arrived to inspect it.

However, according to police, the laptop was recovered on Feb 10 and 11 while according to the evidence of FBI expert he examined the same on Feb 4, it added. “We cannot rule out the possibility that the FBI was given a doctored laptop by the police who then conveniently recovered it from where Fahad Naseem was residing once it was returned by the FBI. Thus, we have grave doubts about the recovery of this laptop and as such do not place any reliance on the expert report generated from it,” said the verdict.

The bench also did not give any legal weight to the report of an expert about matching of Sheikh and Adil’s handwriting regarding demand of ransom and ruled that the prosecution had not proved the necessary qualifications and expertise of the handwriting expert.

“There is no direct evidence that any of the appellants sent the e-mails in respect of the kidnap for ransom and the laptop from which it was allegedly sent is also in doubt for the reasons discussed above,” the judgement said.

The bench ruled that Omar Shaikh was convicted under Section 362 (abduction) of PPC; as this did not fall within the ambit of the Anti-Terrorism Act, he was entitled to remission in accordance with the law.

According to the prosecution, the American journalist was on an assignment in Pakistan and trying to contact Pir Mubarak Shah Geelani in order to seek information about an incident whereby a person known as Richard Reid, later dubbed “the shoe bomber”, had tried to blow up a commercial airliner in the air.

While taking advantage of the situation, the appellants hatched a conspiracy at a hotel in Rawalpindi on Jan 11 to kidnap Pearl for ransom as they claimed to be followers of Mr Geelani and told the slain journalist they could arrange his meeting with him, it maintained.

On Jan 23, they allegedly abducted him, demanded ransom from his wife and later murdered him and filmed his killing, the prosecution contended.

Hashim, Asim alias Qasim, Hassan, Ahmed Bhai, Imtiaz Siddiqui and Amjad Farooqui had been declared proclaimed offenders by the trial court. In October 2014 the trial court acquitted Hashim for lack of evidence.

Published in Dawn, April 3rd, 2020