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Petitioner: Ahmed Omar Sheikh 3 others VS Respondent: The State
Court Name: Sindh High Court Judge(s): Muhammad Karim Khan Agha, Muhammad Saleem Jessar Title: Ahmed Omar Sheikh 3 others vs The State Case No.:Special Criminal Anti-Terrorism Appeals Nos. 66, 67 and 68 of 2002 and
JUDGMENT
Reported As: 2021 YLR 1777 Result: Appeal allowed Judgment JUDGMENT MOHAMMAD KARIM KHAN AGHA, J.---Accused (1) Ahmed Omar Sheikh son of Saeed Ahmad Sheikh (2) Fahad Nasim Ahmed son of Nasim Ahmad, (3) Syed Salman Saqib son of Syed Abdul Rauf and (4) Sheikh Muhammad Adil son of Abdul Shakoor were tried by learned Judge, Anti-T errorism Court Hyderabad Division and Mirpurkhas Division, Hyderabad in Special Case No.26 of 2002 arising out of Crime No.24/ 2002 under sections 365-A/ 368/302/109/201/120-A/34, P.P.C. read with sections 7-a 8(a)(v)(c), 11/ A(a)(b)(c), 6(2)(b)(c)(e)(f), 11/H(3-4), 11/ V(I)(a)- (b)(2), 11/L(a)(b)7(a)(b)(2), 11/H(2)(a)(b), 11/W(1)(2), 7 of the Anti-T errorism Act, 1997, Police Station Artillery Maidan, Karachi (South). After trial vide judgment dated 15.07.2002 the appellant namely Ahmed Omer Saeed Sheikh was con-victed and senten ced to death under sections 365-A, 302, P.P.C. read with section 6(a) of the Anti-T errorism Act, 1997 and section 120-A, P.P.C. The other accused perso ns namely Adil Sheikh, Salman Saqib and Fahad Naseem were sentenced under section 7 of the Anti-T errorism Act, 1997 to suffer Life Imprisonment. They were also sentenced to pay fine of Rs.500,000/- each. In case of min-payment of fine, the accused persons were ordered to suffer sentence for five (5) years more. The court directed all the four accused persons to pay jointly a sum of Rs.20,00,000/- (Rupees twenty lacs) which shall be given to the widow of Daniel Pearl and also to his orphan son. All the above sentences were ordered to run concurrently . The appellants were extended the benefit of section 382(b), Cr .P.C. 2. Being aggrieved and dissatisfied by the judgment passed by learned Judge, Anti-T errorism Court Hyderabad Division and Mirpurkhas Division, Hyderabad, these appeals have been preferred by the appellants, whereas, the State has also filed Special Criminal Anti-T errorism Appeal (Revision Application) No.68 of 2002 for enhancement of sentence from life imprisonment to death in respect of Respondents Adil Sheikh, Salman Saqib and Fahad Naseem.
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3. The brief facts of the prosecution case are that on 04.02.2002 one Mariane Pearl residing at 19/1 Zamzama Street, D.H.A. Phase-V , Karachi under her signatures addressed a letter to the Station House Officer of Artillery Maidan Police Station, Karachi wherein she placed information on record in the following terms:-. The contents of the letter have been incorporated in FIR and FIR was registered. "My husband Daniel Pearl, a U.S. National and South Asia Bureau Chief of the Wall Street Journal was on assignment in Pakistan. He disappeared on the 23rd of January; 2002 and has not come back since that date. 1 came to know from driver Nasir Abbas son of Muhammad Din of 'Taxi Registrati on No. PL-1676 that Mr. Abbas dropped my husband in front of the V illage Restaurant in Saddar , Karachi. My husband's whereabouts have not been determined since that time. I first heard of my husband's kidnapping from e-mail message received on the 27th of January 2002. The e-mail message included photographs that showed my husband held in detention in inhuman conditions. The writer(s) of the e-mail wrote that they had abducted my husband in retaliation for the imprisonment of Pakistani men by the US. Government in Cuba and other complaints. The unknown accused persons had demanded the provision of Lawyers to Pakistanis detained in the U.S., the release of the Pakistanis jailed in Cuba to Pakistan, the return of former Taliban Ambassador Mulla Zaeef to Pakistan and the delivery of F-16 fighter jets to Pakistan or the repayment of money allocated for those F-16 jets as well as 15 percent interest. In a subsequent e-mail received on 30.01.2002, the unknown accused threatened to kill my husband within 24 hours if their demands were not met. 1 approached you for registration of this case and request that you return my husband from his kidnappers". Sd/- Mariane Pearl 19/1, Zamzama Street, Karachi" 4. After the kidnapping for ransom of the abductee Daniel Pearl by the appellants working through a pre planned conspiracy , as indicated above, when the ransom demands were not met the abductee Daniel Pearl was murdered by the appellants with his execution being video recorded. 5. After investigation the challon was filed and the accused who had been arrested for the offenses as mentioned above were sent up to face trial. The charge against the accused was framed to which they all pleaded not guilty and claimed trial of the case. 6. To prove its case the prosecution examined 23 prosecution witnesses and exhibited documents and various other items and thereafter side of the prosecution was closed. The statements of the accused were recorded under section 342, Cr.P.C. wherein they proclaimed their innocence. The accused did not examine themselves on oath although appellant Ahmed Omar Sheikh examined two DW's in support of his defense case. 7. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the judgment dated 15.07.2002 passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition. 8. Mr. Mahmood A. Khan, learned counsel for the appellant Ahmed Omar Sheikh has contended that the FIR has been registered after an unexplained delay of 12 days during which period the complainant and the police concocted a false case against the appellants; that with regard to the calls allegedly received at Governor's House by Pearl in front of PW-2 Jameel Yousaf there was no evidence that such calls had come from appellant Omar Sheikh and thus there was no evidence to show that the appellant. Omar Sheikh had abducted Pearl, that Mrs. Pearl who was the complainant and was a very important witness avoided giving evidence and that her complaint was concocted, that there is no evidence of any conspiracy on record, that neither of the judicial confessions of co- accused Salman Saqib and Fahad Nasee m could be safely relied upon as they had not been made voluntarily as admitted by the Judicial Magistrate in her evidence, that the identification of appellant Omar Sheikh at identification parades by PW-6 Asif Mahfooz and PW-1 Nasir Abbas are of no legal consequence as neither of them gave any hulia of the appellant, that there was a delay in the identification parade and that the identification parade was not
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carried out in accordance with the relevant guidelines and rules for safe identification parades. That the handwriting expert's opinion cannot be safely relied upon as he was completely unqualified, that there was no evidence that appellant Omar Sheikh made any ransom demand, that appellant Omar Shaikh was arrested in Lahore 'on 6th February and not in Karachi on 13th February , that the laptop which was used to trace the e-mails allegedly sent by the other appellants on appellant Omar Sheikh's instructions was according to the prosecution evidence seized on 1 1 th February and yet it was with the FBI forensic computer expert on 4th February which shows that the e-mails were planted on appellant Omar Sheikh and the other appellants and this is a false case, that the video which showed the murder of Pearl was not genuine and had not been authenticated and even otherwise it did not link appellant Omar Sheikh or any other appellant to Pearl's murder and as such based on any of the above reasons appellant Omar Sheikh should be acquitted of the charge by extending to him the benefit of the doubt. In the alternative he submitted that this was not a case which justified the death penalty but only life imprisonment. In support of his contentions he has placed reliance on the cases of Mah Gul v. The State (2009 SCMR 4), Muhammad Yameen alias Raja v. The State and others (2009 SCMR 84), Waqar Ahmad and another v. The State (2012 PCr.LJ 170), Abdur Rashid v. The State (2003 PCr.LJ 742), Muhammad Ayaz and others v. The State (2011 SCMR 769), Muhammad Ramzan and others v. The State (2011 PCr.LJ 140), Shafqat Mehmood and others v. The State (2011 SCMR 537), Sabir Ali alias Fauji v. The State (2011 SCMR 563), Umar Farooq v. The State (2006 SCMR 1605 ), Abdul Salam and others v. The State and others (PLD 2005 Quetta 86), Ziaullah alias Jajj v. The State (2008 SCMR 1210 ), Abdul Jabbar and another v. The State (2019 SCMR 129), Zafar v. The State (2018 SCMR 326), G.M. Niaz v. The State (2018 SCMR 506), Nazir Ahmad v. The State (2018 SCMR 787), Muhammad Ashraf alias Acchu v. The State (2019 SCMR 652), Ali Raza alias Peter and others v. The State and others (2019 SCMR 1982 ), Muhammad Mansha v. The State (2018 SCMR 772), Kanwar Anwaar Ali, Special Magistrate in the matter of Criminal Miscellaneou s Application No.183 of 2019 in Criminal Appeal No.259 of 2018 (PLD 2019 SC 488), Mian Sohail Ahmed and others v. The State and others (2019 SCMR 956), Abdul Karim alias Raja and another v. The State (1996 PCr.LJ 503), Immadine v. Pathan and 3 others (2001 P.Cr.LJ 1892) and Abdul Qadir Motiwala v. The State (1971 SCMR 569). 9. Mr. Ria Bashir Ahmed and Mr. Khawaja Naveed Ahmed, learned counsel for the appellants Fahad Nasim Ahmed, Syed Salman Saqib and Sheikh :Muhammad Adil have adopted the arguments of learned counsel for appellant Omar Sheikh in so far as it relates to them and have further contended that the appellants are completely innocent, that there is no evidence of any conspiracy against them, that the judicial confessions of appellants Salman Saqib and Fahad Naseem were not made voluntarily and were retracted and as such cannot be relied upon, that there is no evidence that they were involved in any kidnapping or making any ransom demand or were involved in the murder of Pearl and as such for any of the above reasons they should be acquitted of the charge based on being given the benefit of the doubt. They submitted that it was a case of acquittal and certainly not a case which justified the enhancement of their sentences if this court maintained their convictions due to the relatively minor role which they played in the offenses. In support of their contentions they placed reliance on the cases of Gul Munir and another v. The State (1990 PCr.LJ 1878), Munir Ahmed and others v. The State (1988 PCr.LJ 116), Ali Akbar v. The State (2001 PCr.LJ 890), Mst. Darya Khatoon v. The State (1996 PCr.LJ 1477), Wali Muhammad alias Mandhoo v. The State (1986 PCr.LJ 1153), Moharram v. The State (1983 PCr.LJ 471), Miskeen v. The State (1983 PCr.LJ 1113), Hamzo and another v. The State (1083 PCr.LJ 892), Minhon and another v. The State (1996 PCr.LJ 528), Ghulam Abuzar and another v. The State (1991 PCr.LJ 697), Shah Nawaz v . The State (1989 PCr .LJ 621) and Murtaza and 2 others v . The State and another (1996 PCr .LJ 358). 10. On the other hand Mr. Saleem Akhtar Buriro, learned Additional Prosecutor General has fully supported the impugned judgment. He has contended that the delay in the filing of the FIR has been fully explained, that it is not relevant whether the complainant was examined or not as it is up to the prosecuti on to decide which witnesses to call and even otherwise Mrs. Pearl has explained her inability to come to Pakistan as she had just given birth and had been advised not to travel on medica l grounds, that there was sufficient evidence on record through the PW's, identification of the appellants before identification parades, the judicial confes sions of two of the appellants
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Salman Saqib and Fahad Naseem, last seen evidence, recoveries of bills for the international hotel, recoveries of e-mails sent to Mrs. Pearl and their original manuscripts and laptop along with expert forensic report along with appellant Omar Sheikh's confessions before the police that he had abducted Pearl and that Pearl was dead to prove that the appellants had kidnapped Pearl for ransom, although he did fairly concede when confronted by the court that there was little evidence on record to link the appellants to the video which showed the execution of Pearl and that the hand writing expert appeared to lack the required qualifications and his report lacked reasons for his conclusions but none the less he contended that when all the prosecution evidence was viewed in a holistic manner the prosecution had proved its case against the appellants beyond a reasonable doubt and that the appeals should be dismissed and all the sentences of life imprisonment be enhanced to the death penalty as the appellants who had been sentenced to life imprisonment were on the same footing as the appellant Omar Sheikh who had been sentenced to death keeping in view the brutality of the offense committed. In support of his contentions, he placed reliance on Sh. Muhammad Anijad v. The State (PLD 2003 SC 704), Ghulam Husain Soomro v. The State (PLD 2007 SC 71), Zakir Khan and others v. The State (1995 SCMR 1793 ), Raz Muhammad v. The State (PLD 2002 SC 56), Nazeer alias Wazeer v. The State (PLD 2007 SC 202), Muhammad Amin v. The State (PLD 2006 SC 219), Khan Muhammad v. The State (1999 SCMR 1818 ), Ghazanfar Ali alias Pappu and others v. The State (2012 SCMR 215), The State v. Minhun alias Gul Hassan (PLD 1964 SC 813 ) and Ghulam Nabi v . The State (2007 SCMR 808 ). 11. We have heard the arguments of the learned counsel for the parties, gone through the entire evidence which has been read out by the appellants, the impugned judgment with their able assistance and have considered the relevant law including that cited at the bar . 12. In a nutshell the case of the prosecution is that an American Journalist Daniel Pearl (Pearl) whilst on assignment in Pakistan was trying to make contact with Pir Mubarak Shah Geelani (Geelani) in order to seek information from Geelani in connection with an incident whereby a person known as Richard Read later dubbed "the shoe bomber" had tried to blow up a commercial airliner while in the air. That the appellants taking advantage of Pearl's search for Geelani hatched a conspiracy in Room 411 of Akbar International Hotel Rawalpindi on 11-01- 2002 to kidnap Pearl for ransom. In his search for Geelani, Pearl along with two colleagues had met Bashir aka Omer Sheikh aka Farooq Muzafer who claimed to be a Murid (follower) of Geelani and was very close to Geelani at Room. No.41 1 of Akbar International Hotel Rawalpindi where Bashir aka Omer Sheikh aka Farooq Muzafer on 11.01.02 took Pearl's business card and told Pearl that if he was able to arrange a meeting for Pearl with Geelani he would let Pearl know . According to the prosecution about a week later. Bashir aka Omer Sheikh aka Farooq Muzafer contacted Pearl and told him he could arrange such meeting in Karachi. On 23-01-02 Pearl left his wife and where he was staying in Karachi by taxi and after a meeting with Jameel Yousaf at the CPLC at the Governor's House took the same taxi to the Metropole hotel near the village restaurant where he was supposed to meet Bashir aka Omer Sheikh aka Farooq Muzafer who was to take Pearl to his meeting with Geelani. When Pearl reached outside the Metropole Hotel in a taxi a white corolla pulled up in front of the taxi. Pearl got out of the taxi and was greeted by Bashir aka Omer Sheikh aka Farooq Muzafer who was to take him to his meeting with Geelani and Pearl left with Bashir aka Omer Sheikh aka Farooq Muzafer and the other appellants for his meeting with Geelani in the white corolla. Pearl did not return, home after his meeting. Mrs Pearl the next day contacted Jameel Yousaf head of the CPLC who Pearl had met before leaving for his meeting with Bashi r aka Omer Sheikh aka Farooq Muzafer and informed him that her husband had not returned home. Hence efforts were made to track down Pearl's whereabouts by Mrs. Pearl and the police assisted by the FBI since Pearl was an American citizen and the US authorities had sent the FBI to assist the Pakistani police in their investigation. That on 27-01-2002 Mrs. Pearl received an e-mail from the appellants stating in effect that her husband had been kidnapped and would be returned provided that certain demands were met as set out in the letter reproduced above and which was incorporated in the FIR. On 30-01-2002 the appellants sent Mrs. Pearl another e-mail stating that unless the demands were met within 24 hours Pearl would be murdered. That according to the prosecution all the appellants were involved in one way or another as part of the conspiracy to kidnap for ransom Pearl through playing a role in his abduction, sending the e-mail ransom demands and when these demands were not met in executing Pearl
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which execution was video recorded where he was in essence murdered by churri by cutting his head from the rest of his body as shown in a recovered video film. His body however was not recovered. 13. In considering and reassessing the evidence on record we have scrutinized, examined and taken account individual pieces of evidence whilst considering the whole context of the case so that all the evidence can be viewed in a holistic manner . In our view this is important especially in cases of kidna pping for ransom which is often carried out in a highly organized fashion with each participant carrying out his separate role without which the kidnapping for ransom could not be achieved. For example, One person could have abducted the person, another could have held him captive, another could have made the ransom demand whilst yet another person could have collected the ransom demand. Thus, the role of each appellant must be seen in this background. No doubt some of the accused may have played a lesser role. For example, the person who fed the accused as opposed to the person who adducted him but the important point in our view is that without all the accused playing their designated role the kidnapping for ransom could not have been achieved and would have failed and 'thus each accused involved in the kidnapping for ransom bears equal responsibility and liability for the of fense. 14. We are acutely aware that this is a very sensitive case where a foreign journ alist was murdered in the most brutal circumstances whilst on assignment in Pakistan and would have spread terror amongst other foreigners in Pakistan and the journalist community as a whole with the result that freedom of expression would be impugned upon. We are also cognizant of the human tragedy whereby Mrs. Pearl who was pregnant at the time had to endure the agony 'of her husband going missing and eventually being murdered in a barbaric manner and the fact that on account of such an unspeakable crime a child will never know his father: However , as Judges we have to put such aspects aside and decide the guilt or innocence of the appellants by dispassionately assessing the evidence before us and coming to a decision which is supported by the evidence on record and the governing law and not by our emotions or own personal feelings. We can only be guided by the evidence and the law and nothing else. In this respect we refer to the case of Azeem Khan v.Mujahid Khan (2016 SCMR 274) which held at P.290 Para 32 as under; "Similarly , mere heinous or gruesome nature of crime shall not detract the Court of law in any manner from the due course to judge and make the appraisal of evidence in a laid down manner and to extend the benefit of reasonable doubt to an accused person being indefeasible and inalienable right of an accused. In getting influence from the nature of the crime and other extraneous consideration might lead the Judges to a patently wrong conclusion, In that event the justice would be casualty". 15. Before proceeding to decide these appeals we were pained to have noticed with concern that these appeals have been pending for the last 18 years during which time the appellants have been in jail. An appeal is a continuation of a trial and in our view under Article 10(A) of the Constitution which envisages an expeditious trial it also envisages an expeditious hearing and decision of an appeal if one is filed. In our view to keep an appeal pending for years on end regardless of who is at fault is tantamount to violating Article 10(A) of the Constitution and ultimately it is for the judges before whom such cases are fixed to use their judicial authority to ensure that such appeals are decided expeditiously . In our humble view the High Courts need to put in place a system for expediting the hearing and deciding of old appeals to ensure that Article 10(A) of the Constitution is complied with and an appeal is a meaningful right. For example, appeals which are up to 5 years old could be put in yellow files, between 5-10 years in blue files and over 10 years in green files. If a person is released after serving out his sentence and his appeal still remains pending then an appeal can only be regarded as a right on paper which is completely illusionary and would amount to a fraud on both the appellant and the criminal justice system. If a convict is acquitted after serving 18 years in jail he cannot make up for the loss of such precious time and is not compensated for it. In such a case if a man had a young child of say 3 years old, at the time of sentencing he would completely have missed that child growing up who would be almost an alien to him at the time of his release. Even if a convicts conviction is up held by a High Court he can at least, if he so chooses, expeditiously move on to the next level of the appellate process which is his right and from where he may still get relief, A right of appeal will only become meaningful, as opposed to illusionary , in criminal cases if such appeals are decided expeditiously which is an obligation which the State owes to its convicted citizens which objective is to ensure that no person is
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deprived of his liberty for longer than is legally justified since a persons liberty is in our view the highest expression of his right to life which is also guaranteed by the Constitution. Turning to the evidence in respect of each ingredient of the offense charged. The appellants have all been convicted for conspiracy under S.120 (A), P .P.C. 15. Section 120 (A) and (B), P.P.C. which define the offense of conspiracy and its punishment is set out below for ease of reference; 120-A. Definition of criminal conspiracy . When two or more persons agree to do, or cause to be done, - (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation. It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object. 120-B. Punishment of criminal conspiracy . (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years, or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy , be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to -a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprison-ment of either description for a term not exceeding six months, or with fine or with both". 17. After our reassessment of the evidence we are of the view that it shows through PW 6 Asif Mehfooz Farooqui and PW 7 Amir Afzal that appellant Omar Sheikh aka Bashir aka Farooq Muzafe r stayed at Room 411 of Akbar International Hotel Rawalpindi on 11.01.2002 and met with Pearl, PW 6 Asif Mehfooz Farooqui and a person named Arif and that Geelani was discussed. There is no evidence that any of the other appellants were present and that any conspiracy/plan was made to abduct Pearl on that date in that room of the Hotel which in the presence of Pearl himself would have been absolutely absurd. Thus, we have not found any evidence to prove that either appellant Omar Sheikh aka Bashir aka Farooq Muzafer or any other appellant hatched a conspiracy to kidnap Pearl for ransom in room 411 of the Akbar International Hotel in Rawalpindi on 11-01-2002 within the meaning of section 120(A), P .P.C. and thus all the appellants are acquitted of this charge. 18. The appellants have been convicte d for Kidnapping for Ransom which is defined under section 365(A), P.P.C. as is set out below; "365-A, Kidnapping or abduction for extorting property , valuable security , etc.…
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