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ISLAMABAD: The Supreme Court on Monday declined the Sindh government’s request to grant stay against the Sindh High Court (SHC) order pertaining to release of the accused allegedly involved in Daniel Pearl’s murder.

However, the SC issued notices to Ahmed Umer Saeed Sheikh, and other accused, Attorney General for Pakistan, and the advocate generals of all the provinces and the Islamabad Capital Territory (ICT), on the Sindh government’s petition.

A three-judge bench, headed by Justice Umar Ata Bandial and comprising Justice Sajjad Ali Shah and Justice Muneeb Akhtar heard the Sindh government’s application against the SHC order dated 24th December 2020 to release the accused.

Advocate General Sindh Salman Talibud Din at the end of the proceeding requested the bench to grant stay against the SHC 24th December order.

However, the bench declined his request.

Salman Talib contended that two days after a SC bench, which is hearing the main appeals, will conclude the proceeding and may pass an order.

He said if the Supreme Court dismissed the appeals then the provincial government would have to release the accused.

“We can’t let these people be released as they will go to Afghanistan,” said the AG Sindh.

However, Justice Bandial asked the AG to show the court something that the accused are “Enemy Alien”, on the basis the accused have been detained despite the SHC’s order.

“We are not inclined to pass an interim order unless the Sindh government brings material to rebut the finding of the Sindh High Court impugned,” he added.

The SHC on December 24, 2020 had set aside the provincial government’s detention order of Ahmad Umer Saeed Sheikh, Adil Sheikh, Salman Saqib, and Fahad Nasim, which it ordered eight months ago to set them free.

A division bench of the SHC, Karachi, on 2nd April 2020 had acquitted the accused and held that the subject case does not fall within the purview of the Anti-Terrorism Act, 1997 and Omer Sheikh is entitled to both remissions in accordance with the law and the benefit of Section 382-B, Criminal Procedure Code, 1898.

At the onset of hearing, the AG Sindh informed the court that so far a division bench of the SHC has not passed the detailed judgment of its impugned order dated 24-12-2020. He submitted one of the findings of the SHC’s order is that the respondent (accused) are not “Enemy Alien” under Maintenance of Public Order read with Article 10 of Constitution.

The apex court noted this is [Enemy Alien] hitherto unexplored term and issue of first impression. The Sindh government’s stand is that the accused fall in the category of “Enemy Alien” for which they have placed material before the SHC for justification.

The AG Sindh submitted that the SHC order has barred the provincial government from exercising power which the authorities have under Article 10 of Constitution except with the permission of the High Court.

“As a result the Sindh government has been divested of the power given to the executive under the Constitution,” noted the SC order.

Salman Talib informed that Umer Sheikh was born and bred in Pakistan, but got education in London.

He contended that can he [Umer] be allowed to engage in something against Pakistan on the direction of the enemy country and not to be treated as “Enemy Alien”.

Justice Muneeb Sheikh questioned how a Pakistani be treated enemy alien?

The AGP replied that Umer Sheikh is a dual national.

He informed according to intelligence reports, in 2016 his accomplices tried to break the jail in order to liberate him.

He further said that a SIM which had UK number was recovered from Umer Sheikh in the jail, adding that with that number he remained in contact with the terrorists.

Justice Sajjad Ali Shah questioned how the law Preventive Detention would apply to a person, who is languishing in jail for the last 18 years.

He said when the SHC has acquitted the accused then presumption of innocence is established in their favour.

They inquired why the Sindh government did not frame charges against Umer Sheikh that his accomplices were trying to liberate him.

Justice Muneeb asked the AGP that the government can’t keep the accused in detention under MPO without proving that they are enemy alien, otherwise, it would be a violation of Article 10.

He said the MPOs issued by the Sindh government did not say that Umer Sheikh is an enemy alien.

The AG replied that the last MPO mentioned it.

Ahmed Umer Sheikh, Fahad Naseem and other accused on January 7, 2021, filed an application under Order XXXIII Rule VI, Supreme Court Rules, 1980, to clarify the order dated 28-09-2020 for their release.

The SC bench which has been hearing the main appeals on 28-09-2020 accepting Sindh government’s application directed the jail authorities not to release the accused till the next date of hearing.

However, on the next date of hearing i.e. 7th October 2020, the request of the appellants to extend the detention of the petitioners was not acceded to. The case was adjourned until Thursday.

Copyright Business Recorder, 2021

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