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August 6, 2020

Omer Sheikh, three others challenge 90-day detention under ATA


August 6, 2020

The Sindh High Court (SHC) on Wednesday issued notices to the Sindh home department, advocate general, prosecutor general and others on a petition of British nationality holder Ahmed Omer Sheikh and three others against the extension in their three-month detention. The death and life imprisonment sentences of the petitioners were turned down by the SHC in the kidnapping and murder case of American journalist Daniel Pearl.

Sheikh, Fahad Naseem, Syed Salman Saqib and Sheikh Mohammad Adil were detained by the home department for the maintenance of public order for three months following the acceptance of their appeals on April 2 against their conviction by the trial court.

A counsel for the petitioners informed the SHC’s division bench headed by Justice Mohammad Iqbal Kalhoro that the home department had placed the detainees under the fourth schedule of the Anti-Terrorism Act (ATA) prior to the expiry of their detention order under the MPO, and extended their detention for further three months under the anti-terrorism law on July 1.

He said that the detention under the MPO had also been challenged in a separate petition which was also pending before the court. He submitted that the detention of the petitioners under the anti-terrorism law was unlawful and issued mala fide by the home department.

The counsel submitted that the Sindh government had filed an appeal against their acquittal before the Supreme Court which had refused the provincial government’s request for suspension of the high court’s order pertaining to the acquittal of the petitioners.

He submitted that the three-month detention of the petitioners was extended without referring the matter to the federal review board, which had to be constituted by the chief justice of high court, and the impugned notification for the detention and placement of the petitioners under the fourth schedule of the ATA was unlawful.

He submitted that neither was the review board constituted nor were its views sought for the extension of the detention of the petitioners; hence, the impugned notification with regard to the detention of the petitioners was liable to be set aside.

The counsel also questioned the power of proscription to a person under the fourth schedule by the provincial government and submitted that such power had been only vested to the federal government after amendments in 2014.

He submitted in the petition that the detention orders for the petitioners were issued to defeat the spirit of the SHC judgment which had observed that their appeals had been pending for the last 18 years during which time of the appellants had been in jail.

The high court was requested to set aside the impugned notification with regard to the detention of petitioners and order their release forthwith. The SHC, after the preliminary hearing of the petition, issued notices to the Sindh advocate general, home department and others and called their comments on August 20.

According to the home department notification, the Sindh government was certain that there existed apprehension that the detained men might indulge in terrorism if released and therefore they were required to be detained for the purpose of maintaining peace.

The SHC had on April 2 set aside the death sentence of Sheikh and life imprisonment sentences of the three men, who were Pakistanis, in the Daniel Pearl kidnapping and murder case under after 18 years of hearings on their appeals, observing that the kidnapping for ransom and murder charges could not be established against them.

The high court, however, convicted Sheikh after having found him guilty of abducting Pearl “by deceitful means” inducing him to go with him on the basis of the last scene evidence as “Pearl was never seen live again” and sentenced him to seven years in prison, which he had already undergone, with a fine of Rs2 million.

The SHC observed in its judgment that the court had not found any evidence to prove that Sheikh or any other appellants had hatched up a conspiracy to kidnap Pearl for ransom. The high court observed that it was unknown where and when Pearl was murdered and it would not be safe to convict Sheikh for kidnapping for ransom or murder on the basis of the last seen or last seen together evidence without strong unimpeachable corroborative evidence that was lacking in the case.

Pearl, a US national and the South Asian region bureau chief of the Wall Street Journal, was kidnapped on January 23, 2002, in Karachi and later shown beheaded by his captors in a video tape when their demands were not met. The US journalist came to Pakistan to make contact with Pir Mubarak Shah Geelani in order to seek information in connection with an incident whereby a person known as Richard Reed later dubbed as Shoe Bomber, a follower of Geelani, had tried to blow up a commercial flight abroad after the 9/11 incident in 2001.

According to the prosecution, the appellants had hatched up a conspiracy to abduct Pearl and later demanded of his wife to convey to the US government their demands for providing lawyers’ access to the Pakistanis detained by the US after the US invasion of Afghanistan, repatriation of Pakistani detainees from Cuba, return of former Taliban ambassador Mulla Mohammad Zaeef to Pakistan and delivery of F-16 jets to Pakistan or repayment of money that had been given to the US authorities.