Prosecutor General Sindh V Ahmed Omer Shaikh & Others

Court: Supreme Court of Pakistan (Appellate Jurisdiction)

Date of hearing: 28-01-2021

Judges present: Mr. Justice Mushir Alam, Mr. Justice Sardar Tariq Masood, Mr. Justice Yahya Afridi

Case Title: The state through Prosecutor general Sindh V Ahmed Omer Shaikh & Others- Criminal Appeal No. 559-602 of 2020 and Criminal Petition No. 1085 & 1086 of 2020 (The Daniel Pearl case)

Background and Facts: This case came into public notice after the 2002 abduction and murder of the American journalist Daniel Pearl in Karachi. There were four accused: Ahmed Omar sheikh, Fahad Naseem Ahmed, Syed Salman Saqib and Sheikh Muhammad Adil. These four were convicted by the Anti-Terrorism Court (ATC) in 2002. As a result, Sheikh was sentenced to death while the other three were given life imprisonment for charges including criminal conspiracy, abduction for ransom, murder and terrorism. The prosecution alleged that Sheikh, operating an alias, enticed Pearl to Karachi with the offer of an interview, after which Pearl was last seen with him. Ransom emails were sent and a video of Pearl’s execution surfaced. In 2020, on appeal the Sindh High Court acquitted the three co-accused and decided to reduce Sheikh’s conviction to simple abduction under Section 362 of the Pakistan Penal Code (PPC), sentencing him to seven years. The state, Sheikh and pearl’s parents all filed appeals before the Supreme Court leading to this final judgement.

Legal Issues: There were four main legal issues in this case:

1. Whether the prosecution proved the charges of criminal conspiracy, abduction for ransom, murder and terrorism against the accused beyond a reasonable doubt.
2. Whether the judicial confessions of Fahad Naseem and Salman Saqib were voluntary and admissible under the Qanun-e-Shahdat order, 1984
3. Whether the last-seen evidence, recovery of incriminating material and digital/forensic evidence were reliable and free from doubt.
4. Whether the High Court was justified in acquitting the thee co-accused and reducing Sheikh’s conviction.

Arguments Presented: The State and Pearl’s parents argued that the high court had wrongly overturned convictions that were based on solid evidence. They relied on the “last seen” evidence, judicial confessions and on forensic reports linking ransom emails to Fahad Naseem’s internet connection and Sheikh’s alleged judicial admission. They argued that the crime was intended to intimidate governments and create fear, squarely falling under the Anti-Terrorism Act, 1997. Conversely, the defence argued that the prosecution’s case was built on fabricated evidence, illegal detentions and coerced confessions. They further highlighted the fatal contradictions: the laptop used for emails was forensically examined days before its alleged recovery from an accused, key witnesses like pearl’s wife and the recording magistrate were not produced, the video evidence lacked a verifiable source and forensic authentication, the video evidence lacked verifiable source and forensic authentications and lastly that the judicial confessions were retracted and recorded after prolonged illegal custody rendering them involuntary.

Judgment and Reasoning: By a 2-1 majority (Justice Mushir Alam and Sardar Tariq Masood, with Justice Yahya Afridi dissenting) the Supreme Court upheld the Sindh High Court’s decision, thereby dismissing the state’s appeal, allowing Ahmed Omer Sheikh’s appeal and acquitted all four accused. The majority found that the prosecution’s evidence to be fatally flawed and utterly unconvincing. Justice Sardar Tariq Masood anchoring the judgement in a foundational principle, the justice authored the foundational principle that “even if there is a single circumstance creating reasonable doubt in the mind of the Court about the guilt of an accused, the accused would be entitled to the benefit thereof not as a matter of grace and concession but as a matter of his right…. He grounded this in the cardinal principle of criminal jurisprudence, ‘’it is better than ten guilty persons be acquitted rather than one innocent person be convicted.”

The court held that the prosecution failed to prove criminal conspiracy, as the alleged meeting in Rawalpindi was not established and the co-conspirator Arif had already been acquitted in a separate trial. The “Last seen” evidence was rejected due to unexplained delays in lodging the FIR, major improvements in the witness’s accounts and the non-production of the complainant. The judicial confessions of Fahad and Salman were discarded as involuntary. The courts observed that a warning given to one accused “to save himself” indicated inducement and the magistrates failed to remove the threat of police custody, with recordings made after illegal detention. The video evidence of murder was also deemed as inadmissible for lacking a verified source, and for violating established guidelines. Crucially, the recovery of the laptop was exposed as fabricated when an FBI expert testified, he had examined it days before the police claimed to have recovered it from an accused. This led the court to conclude it “exposed the padding, fabrication and illegal detention.” The prosecution’s withholding of key witnesses which included the magistrates before whom the Sheikh allegedly confessed which drew an adverse inference. Given that the evidence was illegally obtained and contradictory the court granted the benefit of the doubt as a legal right.

In dissent, Justice Yahya Afridi found sufficient evidence against Sheikh and Naseem to convict them under Sections 365-A and 120-B of the PPC and under Section 7 of the ATA, sentencing them to life imprisonment. While upholding the acquittal of the other two he agreed with the majority’s skepticism regarding the recoveries, observing that “it is difficult to fathom that a criminal would retain such incriminating evidence in his dwelling place after committing the crime.”

Key Takeaways and Significance: This landmark judgement affirms the inviolable primacy and strict evidentiary standards within Pakistani criminal jurisprudence, regardless of case’s profound public or international significance. The courts firm decision to apply the “benefit of doubt” doctrine and refusal to admit evidence that was collected through illegal arrest, coercion or lies. This action taught a powerful lesson about the rule of law. It reinforces the principle that the government must prove guilt according to the law and the unethical or illegal actions by investigators will fatally undermine the entire process. This decision also establishes high standards for admitting modern evidence such as video footage and digital forensic. Summing up the judgment stresses that protecting the integrity of the legal system stands above all. This reflects the long held maxim that it is better for ten guilty persons to be acquitted than one innocent person to be wrongfully convicted.