Seeking a just conclusion

April 4, 2021

A nearly two-decade long incarceration for Sheikh, the main accused in the Daniel Pearl case, amid weak prosecution highlights the problems in the criminal justice system

Ahmad Omar Saeed Sheikh, accused of abducting Daniel Pearl, American journalist and South Asia bureau chief of the Wall Street Journal newspaper – for ransom and putting him into a situation that led to his horrific beheading in Karachi, is making his way towards freedom.

After an anti-terrorism court awarded him and three alleged accomplices the death penalty in 2002, his appeal remained pending before Sindh High Court for more than 18 years, a huge delay analysts say “for unexplained but well understood reasons.” A Supreme Court judge has describes this delay as a travesty of justice.

In the view of Justice Yahya Afridi, Sheikh was involved in the abduction for ransom but the delay in the hearing of his appeal was so long that it will be an injustice to sentence him to death after spending almost two decades in prison.

“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 wrote in a lengthy judgment.

“The confession of Fahad Naseem, shows the ease with which each material fact relating to his introduction to Sheikh and their discussions in the two meetings they had, was narrated with all essential details, which provides a complete picture of the criminal conspiracy leading to sending the ransom and death threat emails,” the judge wrote.

However, the judge added, “It is extremely disturbing that his appeal remained pending for almost two decades. This being so, the State, and in particular, 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. And even otherwise, when two worthy brother Judges having acquitted Sheikh of all charges, convicting and saddling him with the sentence to death, would not be akin to safe administration of criminal justice.”

The other two SC judges in the bench – Justice Mushir Alam and Justice Sardar Tariq Masood – gave a clean chit to Sheikh and his alleged accomplices.

“The entire prosecution evidence is open to doubt. The prosecution has failed to prove the guilt of the accused persons. Sheikh is acquitted of all the charges,” the judges wrote giving the accused persons the benefit of doubt as per law.

These two judges wrote that the sentence awarded by Sindh High Court for abduction, too, was not justified.

The government is keen to fight the legal battle till the end and take every possible measure to block his release. However, it seems that the flawed criminal justice system has paved the way for his freedom.

Ironically, the PPP-PML-N fallout is also a reflection of any eventual post-Khan political landscape and individual interests of these two political giants.

In a major development a few weeks ago the three-member bench of the Supreme Court of Pakistan, while deciding his final appeal, acquitted Sheikh. In the split order, two judges gave him a clean chit on the principle of “double presumption of innocence”; the one remaining judge declared that Sheikh and his aid Fahad Naseem were guilty of abducting the journalist and could be punished under the anti-terrorism law that prescribed death penalty in such cases. The SC issued a detailed verdict in this case just a few days ago.

In April 2020, the Sindh High Court had decided Sheikh’s appeal and ordered his release. It took a year for his counsel to get his final appeal decided upon; now he will fight the case against a review sought by the government as well as tackle matters pertaining to official obstacles in his release.

The government has also challenged Sheikh’s release in the Supreme Court, and the matter is pending for a final decision. Up until now, his counsel Barrister Mehmood A Sheikh has succeeded in getting court orders to take him out of jail and keep him at a safe and secure place and allow his family to see him.

“We cannot treat Sheikh and others as convicted persons or detainees,” a senior judge of the SC remarked while deciding his counsel’s appeal. It was ordered that he be shifted from Karachi jail to Lahore to the residence of a jail official and to live like a free person with his family. The order, however, awaits implementation.

“Sheikh has a background of terrorism at the international level and his release will have international complications for Pakistan. He must not be released,” a senior government official told the SC earlier.

Justice Afridi wrote in his judgment, “The motive of the accused to carry out the crime was not related to any private dispute with the victims, it clearly was the use of a threat designed to intimidate not only the Government of Pakistan, but also foreign governments and organisations to create a sense of fear and insecurity.

The respective governments have filed review petition against this judgment which will take another few weeks to decide upon. Most legal experts believe that the review of a final appeal in such situations has very limited scope.

“We know the case has been badly dealt with by the prosecution… the scope of a review petition is very limited but we will fight till the end,” says a senior law officer of the federal government. The United States has officially expressed displeasure on the news of acquittal of Sheikh and called it shocking.

The author is a staff reporter. He can be reached at          Twitter: @waqargillani

Seeking a just conclusion