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EDITORIAL: The Supreme Court (SC) verdict on January 28, 2021 by a 2-1 majority in the appeal of the Sindh government against the Sindh High Court’s (SHC’s) April 2, 2020 overturning of Omer Sheikh’s conviction for kidnapping and killing a US journalist, Daniel Pearl, has raised a number of contentious issues. Although the SC verdict is still only a short order extending the benefit of the doubt to Omer Sheikh and the co-accused and ordering their release, the Sindh government, without waiting for the detailed judgement, has filed a petition for review/suspension of the order. The federal government is preparing to join and file its own review petition soon. Daniel Pearl’s parents, too, will challenge the SC verdict. Two factors have impelled the two governments to make haste in this matter. One, the verdict has to be complied with immediately as no other charges exist against the accused and they are being held, since the SHC verdict reducing Omer Sheikh’s sentence to seven years rigorous imprisonment and a fine of Rs two million, under the West Pakistan Maintenance of Public Order Ordinance 1960, which translates into preventive detention since he has been in prison since 2002. Two, the US’ virulent reaction has forced the authorities’ hand. The US Secretary of State Antony Blinken, the White House spokesperson and the US Justice Department have expressed outrage at the verdict and the last has sent a formal proposal to Pakistan on January 29, 2021 to take custody of Omer Sheikh to stand trial in a US court. The Pearl family too have reacted with shock and anger at the outcome of the case and pleaded for justice to be done, if necessary through US intervention. The US reaction prompted Foreign Minister Shah Mahmood Qureshi to call US Secretary of State Antony Blinken, ostensibly to congratulate him on his appointment and discuss a broad range of issues, but observers were quick to note that the Daniel Pearl case also came up. Despite Shah Mahmood Qureshi’s formulation that the case should be resolved through legal means, this remains a hollow assurance since it is the SC alone that will pronounce judgment on the review petitions, starting February 1, 2021.

The case has once again highlighted the poor quality of our law enforcement agencies’ investigation and prosecution abilities. Interestingly, the conviction of the accused by an anti-terrorism court and sentence of death was badly exposed in the appeals procedure that indicated the absence of the theoretically higher bar of evidentiary evidence in the terrorism courts. Nor does the fact that the accused have been in prison longer than the SHC reduced sentence speak well of the creaking judicial system’s ability to bring cases to a timely conclusion, such an important case not excepted. The result is the absurd outcome of being forced to retain the accused in prison through a preventive detention law. Omer Sheikh’s track record indicates the character and proclivities of this man. British-born, he dropped out of the London School of Economics, disappeared into the Balkans, and resurfaced in India, where he was imprisoned for the kidnapping of four foreign tourists in Illegally Indian Occupied Jammu and Kashmir (including a US citizen). Omer Sheikh was subsequently released in a hostage swap. He was believed to be part of the conspiracy to assassinate Pervez Musharraf, and called then President Asif Zardari from his prison cell in Pakistan pretending to be the Indian External Affairs Minister and threatening an impending attack. But his most heinous and grisliest adventure was the decapitation of Daniel Pearl after he was kidnapped and circulating the horrible crime via a video. In the last case, he was not just an abettor but widely considered the mastermind. Does such a person deserve clemency or freedom? The problem of course is that judges can only decide cases on the basis of what is presented before them in court. If that material is inadequate, flawed or unconvincing, judicial principles lay down that the accused must be given the benefit of the doubt. The real fault of course lies with the investigation and prosecution process, about which, in the light of this debacle, the less said the better.

Copyright Business Recorder, 2021

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