The Supreme Court of Pakistan’s order to release Ahmad Omar Saeed Sheikh, the main accused in the Daniel Pearl abduction and murder case, threatens to mar the ties between Pakistan and the new US administration.

On January 28, the apex court dismissed appeals filed against Sindh High Court’s earlier decision to overturn Sheikh’s murder conviction.

On April 2 last year, the SHC had overturned Sheikh’s conviction in Pearl’s murder case. However, the court had upheld his conviction on the lesser charge of abetting the kidnapping, for which he was sentenced to seven years in prison. The Sindh government and Pearl’s parents, Ruth and Judea Pearl, had then filed an appeal in the SC against the acquittal.

Pearl’s wife, parents and the US government have strongly reacted to the judgment. US authorities have expressed deep concern and outrage, demanding that Pakistan ensure justice in the case and sought Sheikh’s custody for a fresh trial in the US if one is not possible in Pakistan.

A day after the SC verdict, US Secretary of State Antony J Blinken telephoned Foreign Minister Shah Mahmood Qureshi. “Secretary Blinken and Foreign Minister Qureshi discussed how to ensure accountability for the prime accused, Ahmed Omar Saeed Sheikh, and others responsible for the kidnapping and murder of American journalist Daniel Pearl,” a State Department statement later stated. The secretary reiterated US concern about the Supreme Court ruling and potential release of these prisoners.

Following Sheikh’s acquittal order, a separate bench of the SC hearing the matter of his continuous detention, ordered authorities to free him from the jail and keep him at a rest house giving a residential environment and allowing his family to stay with him till the disposal of the case pertaining to his post-acquittal detention by the state. “This is not dark ages; we cannot allow such malafide detentions without proper evidence.”

Pearl had been working on a story on militancy in January 2002 when, according to the prosecution, Sheikh trapped and abducted him. A video circulated later showed his gruesome beheading. His remains were later found on the outskirts of Karachi in May 2002.

An anti-terrorism court, deciding the case within three months, awarded death sentence to Sheikh and life imprisonment to three others. Appeals against the judgment were moved before Sindh High Court. After a period of 17 years, the Sindh High Court, in April 2020, decided the appeal. It acquitted three of the convicts and approved the sentence of Omar Sheikh only in the matter of abduction (a sentence of up to eight years that he had already completed).

The SHC exonerated all of them of murder charges for lack of proof. The Sindh government then appealed against the SHC judgment and asked for an enhancement in the punishment of Sheikh and against acquittal of the other three. Sheikh sought a clean acquittal as there was no proof against him. He argued that the evidence presented against them before the trial court was “flawed, fabricated, and contradictory.”

The SC, after an unusually long hearing, not only maintained the acquittal of three accused but also exonerated Omar Sheikh of abduction charges. Two judges of the three-member SC bench, acquitted Sheikh of abduction charges “by extending the benefit of doubt to him.” The SC ordered that he and the other three - Fahad Nasim Ahmed, Syed Salman Saqib and Shaikh Muhammad Adil – be released from the jail ‘forthwith.”

The third judge of the bench also acquitted Sheikh of the murder charge but enhanced his sentence for abduction to life imprisonment (practically a period of 12 years that he has also completed in jail).

The Sindh government has now filed a review petition against the SC judgment.

On April 2, 2020, the Sindh High Court overturned Sheikh’s conviction in the Pearl murder case. However, the court upheld his conviction on the lesser charge of abetting the kidnapping, for which he was sentenced to seven years in prison. The Sindh government and Pearl’s parents then filed an appeal in the SC.

The judgment points out that the evidence relied on for the conviction and sentencing was circumstantial, flawed and contradictory. Some of the key persons involved in this case including Fazle Karim, Atta-ur-Rehman alias Naeem Bukhari (a leader of the sectarian outfit Lashkar-i-Jhangvi who later joined the ranks of the Taliban) and Saud Memon, were never made part of the case. Some legal experts say that this would have called for fresh investigations amid a strong pressure from the US to ensure justice. Fazle Karim, according to some media reports, was identifiable in the video of Pearl’s killing. The murder weapon was recovered from a compound “owned by Memon”.

In 2019, in a letter written from jail to the SHC, Sheikh had urged the court to investigate Naeem Bukhari, who, according to him, was the key person in abduction and killing of Pearl. Sheikh had claimed that he was made a “scapegoat” and had only a minor role in the plot. Bukhari was in state custody at that time. According to Sheikh’s counsel, the letter was never officially acknowledged and never delivered to the SHC. Another flaw in the process was that the accused was taken into custody on February 4, 2002, but his formal arrest was shown a week later.

Sheikh, a British-born dual national, has had a checkered past. While studying in London School of Economics in 1992, he quit in the middle of his degree and went to Bosnia to help Muslims. He never went back and allegedly developed links with the militant group Harkatul Mujahideen (HuM).

He went to India in 1994 where he was arrested for his alleged involvement in the abduction of a group of foreign tourists. Six years later, he was released in exchange for the passengers of a hijacked Indian airliner.

His family acknowledges his sympathy for his coreligionists in Bosnia. However, they have denied his links to militant groups, and insist that they would go to any lengths to prove him innocent and secure his release.

Such acquittals in terrorism cases are not unprecedented. In the past, courts have acquitted many people accused of suicide attacks and bomb blasts on account of poor prosecution and lack of evidence.

This case is different in that the victim in this case is an American citizen. Pearl’s abduction has been described as one of the earliest violent responses of the Al Qaeda-linked Pakistani militant groups to the American invasion of Afghanistan.

Sheikh’s release may cause serious and deep concerns for Washington and severe challenges for Islamabad as the authorities are running out of options to keep Sheikh behind bars.

“It is a very difficult case for the state/government to prove. The accused get relief over lack of evidence, faulty investigation and poor prosecution all the time. The courts are independent and if they acquit Sheikh, we will have no other but choice to accept their final order,” a senior federal government official told The News on Sunday. In legal terms, he says, the prosecution case was a very weak one.

Pakistan may detain Sheikh on other charges but not for a long time. The scope of the review petition is very narrow. Pakistan may also bring some reforms in its criminal justice system in future to ensure that people involved in heinous crime do not escape justice but those would not have retrospective effect.

The real question for the government now appears to be: how to satisfy the US government in this case if Islamabad loses the review in the top court. A key Al Qaeda member, Khalid Sheikh Muhammad, who was handed over to the United States, earlier, also confessed to his role in killing Pearl.

Even after the passage of two decades, the case continues to resonate in the US-Pakistan diplomatic relations.

The author is a staff    reporter. He can be reached at vaqargillani@gmail.com