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ISLAMABAD: The Supreme Court, on Friday, said the whole prosecution evidence is “full of doubts” and it has failed to prove the guilt of the accused persons, namely, Fahad Naseem, Salman Saqib, Sheikh Muhammad Adil, and Ahmed Omar Sheikh.

A three-member bench headed by Mushir Alam and comprising Justice Tariq Masood and Justice Yahya Afridi on January 20, 2021, in a majority 2-1 decision, had dismissed the appeals of the Sindh government and Daniel Pearl’s parents in the murder case of the Wall Street Journal’s (WSJ’s) bureau chief for South Asia.

The court had ordered to release the accused, who were considered to be involved in the abduction and killing of Daniel Pearl.

The majority detailed judgment authored by Justice Tariq Masood states; “We are entertaining no amount of doubt that prosecution has failed to bring home guilt of the accused/respondents and appellant as the evidence furnished during the trial is full of factual and legal defects.”

“In this case, regarding each and every piece of evidence the doubts are emerging from the mouth of the witnesses, and it is settled since centuries that benefit of doubt automatically goes in favour of an accused. Even if a single circumstance creates reasonable doubt in a prudent mind regarding guilt of an accused then the accused shall be entitled to such benefit not as a matter of grace and concession but as a matter of right and such benefit must be extended to the accused person(s) by the Courts without any reservation,” wrote Justice Masood.

A division bench of the SHC, Karachi, on 2nd April 2020 acquitted the accused Ahmad Omer Saeed Sheikh, Adil Sheikh, Salman Saqib, and Fahad Nasim.

It also 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 law and the benefit of Section 382-B, the Criminal Procedure Code, 1898.

Trial Court on 15-07-2002 had convicted Ahmad Omer Saeed Sheikh and awarded him death sentence, while Adil Sheikh, Salman Saqib, and Fahad Nasim, were given life imprisonment under Section 7 of the Anti-Terrorism Act, 1997.

The apex court judgment said the Sindh High Court had “rightly” extended the benefit of doubt to Fahad Nasim Ahmed, Syed Salman Saqib, and Sheikh Muhammad Adil, and acquitted them from all the charges and had also “rightly” extended the benefit of doubt to Ahmed Omar Sheikh qua all other charges.

“However, the High Court ignored these important points and wrongly convicted him [Omer Sheikh] under Section 362 PPC when the evidence of Nasir Abbas (PW-1) was full of doubts and no reliance can be placed on such a doubtful statement.”

“So the conviction of Ahmed Omer Sheikh under Section 362 PPC was not justified,” it added.

“The Court said that even in high profile cases, the benefit of doubt cannot be extended to the prosecution and it is settled since centuries that such benefit can only be extended to the accused, who is facing the trial.

“The trial Court although had convicted the accused persons under section 365-A, 302, 120-A PPC read with section 6(a) of ATA but surprisingly sentenced them only under Section 7(a) of ATA and no sentence was passed independently for each offence rather single sentence in the shape of death to Ahmed Omar Sheikh and life imprisonment in respect of remaining three accused was passed and this illegality was also not curable.

“Even no conviction can be passed under Section 120-A PPC, which deals with the definition of criminal conspiracy, it added.

“Even conviction and sentence under Section 362 PPC awarded by the High Court is illegal as no sentence under Section 362 PPC is provided, so conviction or sentence passed by the High Court under Section 362 PPC was also illegal.

“Admittedly the parameters to deal with the appeal against conviction and appeal against acquittal are totally different because the acquittal carries double presumption of innocence and same could be reversed only when found blatantly perverse, illegal, arbitrary, capricious or speculative, shocking or rests upon impossibility. If there is a possibility of a contrary view even then acquittal could not be set aside as has been settled in many Supreme Court judgments,” noted the judgment.

Justice Yahya Afridi, in his separate judgment, held that the prosecution has been able to prove beyond reasonable doubt that Ahmed Omar Sheikh and Fahad Naseem have committed the offences under Section 365-A, PPC, Section 7 of the Anti-Terrorism Act, 1997 and Section 120-B, PPC, thus, they are convicted for the said offences and sentenced to imprisonment for life on each count. He stated that in the present case, the content and evidential value of the prosecution evidence to prove criminal conspiracy against the accused would have to be viewed and evaluated in accordance with the principles enumerated, on judicial consensus in common law jurisdiction.

Copyright Business Recorder, 2021

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