Judgement of the Anti-Terrorism Court, Hyderabad, Sindh, Pakistan, in the Daniel Pearl case, July 15, 2002
Wall Street Journal reporter Daniel Pearl was abducted and subsequently murdered. Pearl disappeared on January 23, 2002, while making attempts to establish contact with Islamist groups during the course of his professional investigations.
On January 27, Pakistani and US media organisations received an e-mail stating Pearl was abducted by a hitherto unknown group calling itself "The National Movement for the Restoration of Pakistani Sovereignty" (NMRPS). On January 30, the NMRPS sent e-mails to news organisations threatening to kill Pearl within 24 hours, unless the US set free Pakistani prisoners being held at Guantanamo Bay in Cuba. Even as the series of e-mails and threats continued, Jaish-e-Mohammed (JeM) terrorist Omar Sheikh was arrested in Lahore on February 12 and has been declared prime suspect in the case.
On February 21, the US and Pakistan announced that they have received a videotape showing scenes of Pearl's murder at the hands of his abductors.
The crime was registered in Karahci (South) at the Artillery Maidan Police Station. In the charge sheet, Fahad Naseem Son of Naseem Ahmed, Syed Salman Saqib son of Syed Abdul Rauf, Shaikh Muhammad Adil Son of Abdul Shakoor, Ahmed Umer Shaikh alias Muzaffar Farooq alias Amin alias Bashir Son of Saeed Ahmed Shaikh have been named. They were charged under various sections. The verdict was finally delivered on July 16, 2002.
Presented below is the text of the verdict.
In The Court of Judge, Anti-Terrorism, Hyderabad Division & Mirpurkhas Division, at Hyd.
Spl. Case No. 26/2002
(1) Fahad Naseem Son of Naseem Ahmed, (2) Syed Salman Saqib son of Syed Abdul Rauf, (3) Shaikh Muhammad Adil Son of Abdul Shakoor, (4) Ahmed Umer Shaikh alias Muzaffar Farooq alias Amin alias Bashir Son of Saeed Ahmed Shaikh.
Police Crime No. 24/2002 Under Section 365-A/368/302/109/201/120-A/34 PPC read with Sections 7-a, 8(a) (b) (c) 11/A (a) (b) (c), 6(2) (b) (c) (e) (f) 11/H (3-4), 11/V(I) (a) (b) (2), 11/L(a) (b) 7(a) (b) (2), 11/H(2) (a) (b), 11/W (1) (2), 7 of the Anti Terrorism Act, 1997, Police Station Artillery Maidan Karachi (South).
Mr. Raja Qureshi,learned Advocate General, Sindh along with Barrister Zahoorul-Haq, Special Public Prosecutor, Mr Shahabuddin Memon, assisted by Miss Masooda Siraj Advocate.
Mr Abdul Waheed Katpar and Mr Mohsin Imam, learned Advocate for accused Ahmed Omar Saeed Shaikh.
Mr Rai Bashir Ahmed and Mr Muhammad Waris Parwana learned Advocate for accused Fahad Naseem, Syed Salman Saqib and Shaikh Muhammed Adil, and Mr Choudhry Muhammad Jamil, learned Advocate for the complainant alongwith Mr Muhammed Zaheer Ahmed Advocate.
The instant case has been received in this court under the orders of the Hon'ble High Court of Sindh, Karachi on 2/5/2002 vide such order dt. 30/4/2002.
2. On 29th March 2002, the above named accused were challaned by Hameedullah Memon, Investigating Officer of C.I.A. Police Karachi to face trial for the offences punishable under the aforementioned sections before the learned Administrative Judge, who accepted the final challan and directed the case to be registered, whereafter the case was ordered to be transferred and assigned to the Anti Terrorism Court No. III Karachi, for disposal according to law and the hearing was adjourned to 5/04/2002.
It appears that in the intervening period, the venue for trial was notified by the Home Department, Government of Sindh directing the trial of this case to be conducted inside the Karachi Central Jail w.e. from 5/04/2002 by the learned Anti Terrorism Judge, Court No. III Karachi. On 5/04/2002, compliance of Section 16 of the Anti Terrorism Act appears to have been made by the learned Predecessor of this Court. Copies were supplied to the accused persons in compliance of Section 265(c) Cr. P.C. On 5/04/2002, non-bailable warrants were issued against the absconders reflected in Column No. 02 of the challan sheet and the matter was then adjourned. On 12/04/2002, non-bailable warrants were returned un-executed and accordingly, Proclamation was ordered to be issued to be returned on 22/04/2002.
3. Thereafter, record reveals that the R&Ps of the case was received by way of transfer from the Court of the Judge Anti Terrorism III Karachi vide order passed by the Hon'ble High Court of Sindh in Criminal Misc. Application No. 91/2002 dated 19/04/2002. Prior to the receipt of the case by the learned Anti Terrorism Court No. II, record shows that the case was while being tried by Anti Terrorism Court No. III at Karachi, the accused had filed a Criminal Transfer Application No. 91/2002 on the ground that the learned Anti Terrorism Court No. III presided over by learned Judge Mr. Arshad Noor could not conduct trial of this case against the accused persons as in the challan submitted by the prosecution certain utterances were made before the learned said Presiding Judge by the accused person and four police personnel were cited as prosecution witnesses as to that effect. That the learned Anti Terrorism Court No.II proceeded to frame the charge against all the accused persons on 22/04/2002 and on 22nd April 2002, the case appears to have been bifurcated and separated for trial in respect of the absconding accused and before the commencement of the trial, the learned Presiding Judge took Oath again as required under Section 16 of Anti Terrorism Act, 1997. After completing the formalities, the charge was framed to which the accused pleaded not guilty and wanted trial. As per record of this case reveals that as many as six Prosecution witnesses were examined by the learned Presiding Judge of the Anti Terrorism Court No. II at Karachi (my learned predecessor), when the persecution appears to have filed an application for transfer before the learned Division Bench of the Hon'ble High Court of Sindh bearing Criminal Transfer Application No. 12 of 2002 which was allowed vide order dt. 30/04/2002. In the said application, transfer had been sought by the prosecution on the ground of reports of various intelligence agencies and Government departments from where the following facts had surfaced:-
"a. That there is a threat of blowing up of the premises where the proceedings are taking place; and
b. That there is threat of elimination of the prison staff, Investigating Agency, Prosecution Team and witnesses".
4. Based on the aforementioned grounds, the case was directed to be transferred from Anti Terrorism Court No. II, Karachi to Anti Terrorism Court, Hyderabad, presided over by the undersigned. It further seems that the order of transfer of this case to this court at Hyderabad inside Jail was questioned by the accused persons before the hon'ble Supreme Court of Pakistan vide Crl. Petition for leave to Appeal No. 126 of 2002 which on hearing was dismissed by the Hon'ble Supreme Court of Pakistan. Resultantly, after examination of as many as six Prosecution witnesses, the trial had recommenced in this court and had concluded in this court. The case was received in this court on 2nd May 2002 for continuing to commence with the recording of P.W-7. In order to streamline the process, it would be profitable to mention that the six prosecution witnesses were examined by my learned Predecessor were: P.W 1 Nasir Abbas; P.W. 2 Jamil Yousuf; P.W. 3 Javed Abbas; P.W. 4 Faisal Noor; P.W. 5 ASP Athar Rasheed Butt; and P.W. 6 Asif Mahfooz Farooqi.
5. Now the brief facts of the prosecution case are that on 4/02/2002, one Mariane Pearl residing at 19/1 Zamzama Street D.H.A. Phase-V Karachi under her signatures addressed a letter to the Station House Officer of Artillery Maidan Police Station, Karachi wherein she placed information on record in the following terms:- The contents of the letter have been incorporated in FIR and F.I.R. was registered.
"My husband, Daniel Pearl, a U.S. National and South Asia Bureau Chief of the Wall Street Journal, was on assignment in Pakistan. He disappeared on the 23rd of Jan. 2002 and has not come back since that date. I came to know from driver Nasir Abbas son of Muhammad Din of Taxi Registration No. PL-1676 that Mr. Abbas dropped my husband in front of the Village Restaurant in Saddar, Karachi. My husband's whereabouts have not been determined since that time.
I first heard of my husband's kidnapping from e-mail message received on the 27th of January 2002. The e-mail message included photographs that showed my husband held in detention in inhuman conditions. The writer(s) of the e-mail wrote that they had abducted my husband in retaliation for the imprisonment of Pakistani men by the U.S. Government in Cuba and other complaints.
The unknown accused persons had demanded the provision of Lawyers to Pakistanis detained in the U.S., the release of the Pakistanis jailed in Cuba to Pakistan, the return of former Taliban Ambassador Mulla Zaeef to Pakistan and the delivery of F- 16 fighter jets to Pakistan or the repayment of money allocated for those F-16 jets as well as 15 per cent interest.
In a subsequent e-mail received on 30/01/2002, the unknown accused threatened to kill my husband within 24 hours if their demands were not met.
I approached you for registration of this case and request that you return my husband from his kidnappers.
Sd/- Mariane Pearl 19/1 Zamzama Street, Defence Phase V, Karachi.
6. The above complaint was produced by P.W. 17 ASI Aslam Jatt and was taken on record as Ex. 63/A under Section 154 Cr. P.C.
7. Now in this case, the prosecution side has examined the following P.Ws, P.W-1 Nasir Abbas Ex. 28, P.W-2 Jameel Yousuf Ex. 31, P.W-3 Javed Abbas Ex. 32, P.W-4 Faisal Noor Ex. 33, P.W 5 Athar Rasheed Butt Ex. 34 PW 6 Asif Mehfooz Farooqi Ex. 36, P.W-7 Aamir Afzal Ex. 48, P.W-8 Ronald Joseph Ex. 49, P.W-9 Erum Jahangir, Judicial Magistrate Ex. 50, P.W-10 Ghulam Akbar Jafferi Handwriting Expert, Ex. 51, P.W-11 Muhammad Iqbal Awan H.C. Ex. 52, P.W-12 John Molligan Ex. 54, P.W-13 Rajesh Kumar Ex. 55, P.W-14 Shaikh Naeem Ex. 58, P.W.-15 Muhammed Usman Ex. 59, P.W-16 Muhammad Arif Ex. 60, P.W-17 Muhammad Aslam Jatt Ex. 63, P.W-18 Mehmood Iqbal Hashmi Ex. 64, P.W-19 Muhammad Ali Balouch Ex. 65, P.W-20 Zaheer Ahmed Ansari Ex. 66, P.W-21 Ronald D. Bennet Ex. 67, P.W-22 Inspector Rao Muhammad Aslam Ex. 78 and P.W-23 Inspector Hameedullah Memon, I.O. Ex. 80. The prosecution side had dropped the remaining witnesses vide their Statement Ex. 96 dt. 21/06/2002. The prosecution also dropped the complainant vide its Statement Ex. 83 dt. 5th June 2002.
8. The statements under Section 342 Cr. P.C. of the accused persons are at vide Ex. 97, 98, 99 and 100 respectively. The accused Omer Shaikh Ex. 97 had led his defence and examined two defence witnesses namely D.Ws Muhammed Rauf Ahmed Shaikh 101 and Saeed Ahmed Shaikh Ex. 103. The remaining accused persons have produced certain documents viz accused Adil Shaikh produced documents Ex. 106/1 106/2, 106/3, and accused Fahad Naseem Ex. 107 produced his documents Ex. 107/1, 107/2, 107/3, 107/4, 107/5, 107/6, 107/7, 107/8, 107/9, 107/10, 107/11, 107/12, 107/13, 107/14, 107/15, 107/16, 107/17 and accused Syed Salman Saqib Ex. 108 produced defence documents Ex. 108/1 to 78 and 108/79 to 82. The defence Advocates close their sides vide Statement Ex.111 dt. 4/07/2002. The final arguments were made as required under Section 265-C Cr. P.C. Now, since the accused party have led defence, therefore, the arguments of the learned defence counsels were heard and then the prosecution side was heard as required under Section 265-G Cr.P.C. The accused have not examined themselves on oath though opportunity was provided.
9. In the instant case the points for determination are as under:-
(1) Whether the accused along with the absconding co-accused hatched a conspiracy on 11/01/2002 at Room No.411 Akbar International Hotel, Rawalpindi to abduct Daniel Pearl, a Jewish American citizen, a professional journalist belonging to the Wall Street Journal, U.S.A. for raising demands of ransom?
(2) Whether in pursuance of the conspiracy hatched, the accused persons had abducted Daniel Pearl on 23/01/2002 at about 7.00 p.m. near the gate of hotel Metropole, Saddar, Karachi, adjacent to Village Restaurant to an unknown destination and detained him in their captivity?
(3) Whether after abducting Daniel Pearl the accused transmitted the demands for ransom through e-mails dt. 27/1/2002 (with documents) to Wall Street Journal amongst others, and the complainant Mariane Pearl in the following terms:-
a) Lawyers should be provided to the Pakistani detainees with the FBI so that they (Pakistanis) can fight their case.
b) The Pakistani detainees who are jailed in Cuba should be kept in Pakistani Jails so that they could fight their case in Pakistani Courts.
c) The return of former Taliban Ambassador Mulla Muhammed Zaeef to Pakistan.
d) Delivery of F-16 fighter jets to Pakistan or the repayment of money allocated for those F-16 jets as well as 15 per cent interest.
(4) Whether the accused after having failed to receive the demanded ransom had sent yet another e-mail (with documents) to the complainant on 30th Jan 2002 threatening to kill Daniel Pearl within 24 hours if their demands were not met?
(5) Whether the accused on or after 30th January 2002 committed murder of Daniel Pearl by slaughtering and caused the evidence of the dead body to disappear?
(6) Whether the accused in collusion with the absconding co- accused prepared, recorded and transmitted the video cassette of slaughter of Daniel Pearl which conveyed the visual images and sounds, the effect of which has struck terror, fear, sense of insecurity in society?
(7) Whether all accused persons have aided, abetted, participated, committed acts for achieving the objective of the hatched conspiracy of kidnapping for ransom, raising demands of ransom, and causing murder of Daniel Pearl?
(8) What offence, if any, the accused have committed?
9. My findings on the above Points are as under for the following reasons:-
Point No. 01 "Proved" Point No. 02 "Proved" Point No. 03 "Proved" Point No. 04 "Proved" Point No. 05 "Proved" Point No. 06 "Proved" Point No. 07 "Proved"
Point No. 08 :"Accused Fahad Naseem s/o Naseem Ahmed, Syed Salman Saqib S/o Syed Abdul Rauf Shaikh, Muhammed Adil S/o Abdul Shakoor, and Ahmed Omar Saeed Shaikh alias Muzaffar Farooqi alias Amin alias Bashir S/o Saeed Ahmed Shaikh have committed the offences under Sections 365-A, 120-A, 302 PPC read with Section 6 of the Anti Terrorism Act, 1997 and as such accused Ahmad Omer Saeed Shaikh is sentenced and convicted under Section 7 of Anti Terrorism Act, 1997 to death to be hanged by the neck till he is dead and the remaining accused persons namely Fahad Naseem. Syed Salman Saqib, and Muhammed Adil Shaikh are sentenced and convicted under Section 7 of the Anti Terrorism Act, 1997 for life imprisonment and also to pay fine of Rs. 5,00,000/- (Five lacs) each. In case of non-payment of fine, accused shall undergo R.I. for Five (5) Years more. This court also direct all the accused persons to pay jointly a sum of Rs. 20,00,000/- (Twenty lacs) which shall be paid by them in equal share to be paid to the widow of abductee and his orphan. The imprisonment sentences shall run concurrently and benefit of S. 382-B Cr.P.C. is given to the accused persons.
10. Reasons Point No. 01.In order to prove this point, the prosecution side has examined P.W-6 Asif Mehfooz Farooqi and P.W. 7 Aamir Afzal Qureshi. P.W. Asif Mahfooz Farooqi is a Journalist and as per prosecution version and he had association and posted in Pakistan on behalf of J.I.J.I. Press Tokyo. He was previously known to Daniel Pearl and had worked for a week at Islamabad with Daniel Pearl. He had arranged a meeting of Daniel Pearl with accused Ahmed Omar Saeed Shaikh alias Basheer at Room No. 411 at Akbar International Hotel, Rawalpindi and he has identified accused Ahmed Omar Saeed Shaikh alias Bashir to have been the person who had a meeting at Room No. 411 on 11/02/2002 before the Judicial Magistrate P.W. 9 Erum Jehangir. He has identified the accused Ahmed Omar Saeed Shaikh as Bashir in the proceedings of the case.
11. About this witness the learned defence counsel Mr Abdul Waheed Katpar has argued out that this witness is a set up witness and no any conspiracy was made as alleged by the accused Omer Saeed Shaikh regarding the Daniel Pearl. The learned defence counsel Mr Abdul Waheed Katpar in support of this arguments has referred Section 120-A PPC and according to him in this case the total accused are eleven in number and how such huge No. of the accused persons can assemble in a hotel located at Pindi to make a conspiracy as alleged regarding Daniel Pearl. The learned D.C. Mr Katpar has submitted in his arguments that the identification test held before the Judicial Magistrate P.W. 9 Erum Jahangir in the presence of this P.W. regarding accused Ahmed Omer Saeed Shaikh was quite illegal as according to him the accused was not given chance to cross this witness through his advocate.
According to Mr Katpar the learned D.C. the evidence of this P.W. can not be believed as true. The learned defence counsel Mr Abdul Waheed Katpar has argued that this witness at the time of identification has not disclosed the role which was played by the accused Ahmed Omer Saeed Shaikh, therefore, according to him the identification test held before the Magistrate is without any legal force. The learned D.C. Mr Katpar in support of his arguments has referred PLD-1981-SC-143 in a Criminal Appeal of Lal Pasand - appellant vs. The State respondent. He also referred Article 129, 122 of Qanun-e-Shahadad Order 1984 in support of his arguments and he contended that the prosecution side has failed to prove this allegation of conspiracy allegedly made by the accused Ahmed Umer Saeed Shaikh.
12. Mr Rai Bashir Ahmed the learned defence counsel for the remaining accused persons and for Ahmed Umer has in his arguments also assailed upon the evidence of this P.W. and has contended that this witness is a false witness and his testimony can not be believed as to be true. No conspiracy as alleged against accused persons regarding Daniel Pearl was hatched. The identification test held before the Judicial Magistrate P.W-9 Erum Jahangir about accused Omer Shaikh does not carry any legal weight. According to these learned defence counsels, the case is full of doubt and benefit of doubt therefore must go to the accused persons. This learned defence counsel in support of their arguments has referred 1989-SCMR-2056 (a) Sher Muhammed - The Petitioner vs. Revenue Officer and others Respondents, 1989-SCMR- 720 Shahmir - appellant Vs. Muhammed Afzal and two others respondents.
13. As against this, the learned Advocate General Mr Raja Qureshi has submitted in his arguments that this P.W. Asif Mehfooz Farooqi is a true witness. This witness has rightly identified accused Ahmed Omer Saeed Shaikh alias Bashir as Bashir in the proceedings of the case.
14. Now about P.W. 7 Aamir Afzal Qureshi. Both the learned defence counsels has argued out that this witness is also false witness and the prosecution side has failed to produce the record of the employment of this witness in Akbar International Hotel Rawalpindi where he was employed as per prosecution story and this witness according to the learned defence counsel has given a false story that accused Ahmed Omer Saeed Shaikh was occupying a room No. 411 in the name of Muzaffar Farooq. The learned defence counsel has also argued out that this P.W. Aamir Afzal Qureshi has not produced a register showing the entries of incoming and outgoing of the customers to whom the rooms of the hotel were allotted and showing that the accused Ahmed Omer Saeed Shaikh was given room No. 411 on the date and time. Both the learned defence counsels in their final submissions has contended that evidence of this P.W. is not trustworthy.
15. As against this, Mr Raja Qureshi the learned Advocate General has argued out that the evidence of this P.W. Aamir Afzal Qureshi is confidence inspiring because this P.W. has produced a record which are the receipt of the hotel confirming Room No. 411 to be in possession of accused Ahmed Umer Saeed Shaikh and this witness has identified accused Ahmed Omer Saeed Shaikh rightly at the time of identification test held before the Judicial Magistrate Erum Jahangir P.W-9 in the proceeding of this case.
16. I have given my considered view to the arguments advanced by the learned defence counsels and the learned Advocate General and I have perused the evidence of above P.Ws on record. I find that P.W 6 Asif Mahfooz Farooqi is a journalist and had association with Daniel Pearl having his meeting on 22nd Dec. 2001 at Islamabad. He was working for a Japanese news agency and the Predecessor of Daniel Pearl for whom Asif Mahfooz Farooqi was working had instructed him to remain in association with Daniel Pearl being the successor from the Wall Street Journal.
It appears from the record that Daniel Pearl and P.W-6 Asif Mahfooz Farooqi worked as Journalist collectively and in discussion it further appears that Daniel Pearl had asked this witness that a news item had appeared in the American newspaper in relation to one Richard Reed, who according to Daniel Pearl had come to Pakistan and had stayed with Syed Mubarak Shah Gilani at Lahore. This Richard Reed was alleged to have planted bomb in his shoes in order to blow up an aircraft in the United States. It was in this perspective that led Daniel Pearl to meet Syed Mubarak Shah Gilani.
Accordingly, P.W-6 Asif Mahfooz Farooqi was asked whether he could arrange a meeting of Daniel Pearl with Syed Mubarak Shah Gilani in response to which the witness said he will make his efforts to do so and accordingly a meeting did take place at Room No. 411 of Akbar International Hotel on 11/01/2002 which appears to have been participated by Asif Mahfooz Farooqi, Bashir and one Arif alias Hashim, absconding co-accused. Though this witness, it has come on the record that Bashir in fact was the alias of accused Ahmed Omar Saeed Shaikh whereas Arif is one of the absconding accused person reflected in the challan in the name of Hashim alias Arif son of Qari Abdul Qadeer.
In this meeting Daniel Pearl in the presence of P.W. 6 expressed his desire to meet Pir Mubarak Shah Gilani when accused Ahmed Omar Saeed Shaikh alias Bashir placed himself as a "Mureed" to Pir Mubarak Shah Gilani before Daniel Pearl. Thereafter, Daniel Pearl informed P.W. 6 that Bashir who in fact was accused Ahmed Omar Saeed Shaikh had already arranged his meeting with Pir Mubarak Shah Gilani but in the city of Karachi. It was on 23/01/02 between 3 to 4 p.m., that P.W-6 received a phone call from Daniel Pearl at Karachi asking him as to whether it was safe for him to be meeting Syed Mubarak Shah Gilani.
In response to this query, a quick answer that was responded to by P.W. 6 was to effect that if Syed Mubarak Shah Gilani is a public figure then there was no harm in meeting him. Thereafter, on the following day, i.e. 24/1/2002 P.W-6 received a call from complainant Mariane Pearl informing that Daniel Pearl has not returned home since the previous day i.e. 23/01/2002 and asked as to whether P.W-6 knew his whereabouts. PW-6 has identified the said Bashir available in Room No. 411 at Akbar International Hotel to be accused Ahmed Omar Saeed Shaikh before the learned Judicial Magistrate (P.W-9) in the identification parade held on 26/02/2002 and has also identified Bashir in Court as accused Ahmed Omar Saeed Shaikh who had in court disclosed his name to be Ahmed Omar Saeed Shaikh, upon being identified as Bashir.
17. It would be seen that the very meeting which took place at Room No. 411 was aimed to conspire and abduct Daniel Pearl, an American Citizen a Journalist of Wall Street Journal to raise their demands for ransom after abducting Daniel Pearl. Such conspiracy was between accused Ahmed Omar Saeed Shaikh and Hashim alias Arif son of Qari Abdul Qadeer (absconding accused). It would thus be seen that on 11/01/2002 at Room No. 411 of Akbar International Hotel, Rawalpindi is the venue where in the conspiracy to kidnap Daniel Pearl takes place and there is a meeting of minds between accused Ahmed Omar Saeed Shaikh and absconding accused person Arif alias Hashim for kidnapping of Daniel Pearl. This conspiracy was based on the fictitious mode of arranging a meeting of Daniel Pearl with Syed Mubarak Shah Gilani by Ahmed Omar Saeed Shaikh posting to be a Mureed of Pir Mubarak Shah Gilani and that by posing under a different name of Bashir.
18. I also find that P.W-7 Aamir Afzal Qureshi who is a receptionist of Hotel Akbar International, Rawalpindi who has provided the record in respect of Room No. 411 to the Investigators as to under whose occupation the said Room No. 411 was on 11/01/2002 upto 12/01/2002. On examining the record, he has stated that the same was occupied by a person named Muzaffar Farooq who had stayed there for one night i.e. checked in on 11/01/2002 and checked out on 12/01/2002. He further stated that it was the investigator to whom record was provided and who had informed him that the person who had occupied Room No. 411 on 11/02/2002 was not Muzaffar Farooq but was actually accused Ahmed Omar Saeed Shaikh. P.W-7 Aamir Afzal Qureshi further disclosed that a foreigner had also come to meet the guest in Room No. 411 which foreigner was disclosed by the investigator to P.W-7 to be Daniel Pearl. Record of Hotel in respect of Room No. 411 of 11/01/2002 and 12/01/2002 are Ex.P-10/1 1 upto Ex. P-10/4.
19. It would thus be seen that P.W-7 identifies accused Ahmed Omar Saeed Shaikh alias Muzaffar Farooq present before this court and had pointed out to him rightly as per the record of this case.
20. It would thus be seen that the elements of conspiracy being hatched could be gathered from the aspect that while accused Ahmed Omar Saeed Shaikh checks into Room No. 411 at Akbar International Hotel, Rawalpindi he gets his name recorded in the Hotel record as Muzaffar Farooq and once he had checked in and a meeting has been arranged between him and Daniel Pearl through absconding accused Arif he identifies himself to be Bashir to Daniel Pearl and P.W-6 Asif Mahfooz Farooqi identifies accused Ahmed Omar Saeed Shaikh in the identification parade as Bashir whereas P.W-7 Aamir Afzal Qureshi identifies Ahmed Omar Saeed Shaikh in court as Muzaffar Farooq. This aspect coupled with the photocopy of the NIC in the name of Bashir and original identity card of Rauf Ahmed Siddiqi reflecting photograph of accused Ahmed Omar Saeed Shaikh recovered at the time of his arrest on 13/02/2002 by P.W-23 reflecting the documents i.e. NIC the photograph of accused Ahmed Omar Saeed Shaikh to be under the identity of Rauf Ahmed Siddiqi which has been duly confirmed by the National Registration Office at Multan Ex. 80/1 to be bogus and corroborates his criminal conduct.
21. Hence a comfortable conclusion could be arrived at that a conspiracy was hatched on 11/01/2002 at Room No. 411 of Akbar International Hotel, Rawalpindi to abduct Daniel Pearl, an American Citizen, a Professional Journalist belonging to the Wall Street Journal under the garb of arranging a meeting for him with Pir Mubarak Shah Gilani. Both these above witnesses were subjected to extensive cross examination and their testimonies could not be shattered by their learned defence counsels. Hence Point No. 1 is proved. This Point is answered accordingly.
Point No. 02.
22. In order to prove this point the prosecution has examined P.W-1 Nasir Abbas and P.W. 2 Jameel Yousuf, Ex. 28 and Ex. 31 respectively. P.W. Nasir Abbas is an eyewitness. He is Taxi Driver, who had last dropped Daniel Pearl in front of Village Restaurant adjacent to Hotel Metropole. He had seen Daniel Pearl to have been made to sit in a white Toyota Corolla Car by accused Ahmed Omar Saeed Shaikh. He has further identified Ahmed Omar Saeed Shaikh sitting in a white car with whom Daniel Pearl also sat. He participated in the identification parade test held on 6/03/2002 before Judicial Magistrate. He is also a mashir of vardat. Such mashirnama was executed on 5/02/2002 at 1445 hours along with co-mashir H.C. Aashiq Ali. He had also got recorded his statement under Section 164 Cr.P.C. before the Judicial Magistrate when he was not cross examined by the counsel for the accused before the Judicial Magistrate, though opportunity was adequately provided. He has also identified the accused in Court.
23. P.W-2 Jameel Yousuf in his deposition on record has stated that he is Chief of CPLC Karachi. He has further stated that Daniel Pearl had taken an appointment on 22/01/2002 from him to discuss Police Rules which appointment was fixed for 23/01/2002 at 5.15 pm. Accordingly, Daniel Pearl reached the Governor's House where the office of CPLC is situated through gate No. 4 of the Governor's House. While Daniel Pearl was sitting with P.W-2, two calls were received by Daniel Pearl, the first call being around 5:50 or 5:52 pm which appeared to have originated from the office of Daniel Pearl which were overheard by P.W-2 to be relating to general discussion of the office of Daniel Pearl.
The second call was stated by this witness to have been received by Daniel Pearl at 6:28 pm while Daniel Pearl was in the office of P.W-2. This witness informs that Daniel Pearl told the caller who had called at 6:28 p.m. that he is very close to the venue for his appointment with the caller and that he will be there at 7:00 p.m. This P.W-2 further testifies that Daniel Pearl departed from his office at 6:45 pm whereafter on the following day he had proceeded to Islamabad to have a meeting with the Minister of Interior and while being in the meeting he had placed his telephone on vibration so as to get the messages recorded.
He states to have received messages of Mariane Pearl amongst others, while in the meeting with the Minister of Interior and after having been free from the meeting, he called Mariane Pearl to ask the reasons as to why she called P.W-2. She informed P.W-2 that where did Daniel Pearl go after he left his office to which he expressed no knowledge but he did specify to her that while Daniel Pearl was sitting with P.W-2, two calls were received by him on 23-01-2002 between 5:15 pm to 6:45 pm when he departed wherein Daniel Pearl had assured the caller to be there for his appointment at 7:00 p.m. stating that he was very close by to the meeting point. The nature and function of P.W-2 is to assist the investigation in criminal cases and high profile cases and it is therefore, that the police had contacted him and he was able to obtain print-outs of the telephone of Daniel Pearl so as to see the incoming calls which were received by Daniel Pearl while he was there with him on the previous day. Such incoming calls were reflected from the Mobil Link record to have been made from telephone No. 0300-2170244 which information was also passed by P.W-2 to Mariane Pearl who had, in turn, informed P.W-2 that this telephone number is of Imtiaz Siddiqui, an absconding co-accused in this case which was learnt from the e-mails received by Mariane Pearl from Daniel Pearl and have been produced on record as Ex. P/5 and Ex. P/6 respectively.
24. Both these witnesses were subjected to lengthy cross examination but their testimonies were not shattered.
25. I have heard the arguments above these P.Ws from the learned defence counsels Mr. Abdul Waheed Katpar and Mr. Rai Bashir Ahmed. It may be pointed here that Mr. Rai Bashir Ahmed was also appearing for all the accused persons as per record.
26. Mr. Abdul Waheed Katpar the learned defence counsel for accused Ahmed Omar Saeed Shaikh has contended in his arguments that both these witnesses named above are the setup witnesses. P.Ws Nasir Abbas is a Taxi Driver and as per record the incident as alleged had taken place on 23rd Jan. 2002, whereas, Nasir Abbas had allegedly identified the accused Ahmed Omar Shaikh at the time of identification in the month of March 2002 and according to him this is quite impossible that after this period how this witness Nasir Abbas could identify the accused. About the second witness P.W. Jameel Yousuf the learned defence counsel Mr. Katpar had stated that he is a policeman and therefore his testimony can not be believed as to be true.
27. Mr. Rai Bashir Ahmed the learned defence counsel has argued out that both these witnesses are the false witnesses and about the abduction of Daniel Pearl the prosecution has failed to discharge their burden successfully. The learned defence counsels in support of their arguments have referred 1996-Pak Cr. L. Journal-Pesh-1811 Ishtiaq Ahmed - Appellant vs. The State Respondent, while relying on this authority the learned defence counsel has contended that therefore the case is doubtful and benefit doubt must go to the accused persons. He placed reliance 1989-SCMR-2056 Sher Muhammed - Petitioner vs Revenue Officer and others.
28. As against this Mr. Raja Qureshi learned Advocate General has argued out that P.W. Nasir Abbas is an eye witness about the abduction of Daniel Pearl by the accused Ahmed Omar Saeed Shaikh and he has narrated the ocular account without any contradictions. He is independent witness, therefore, his testimony can not be discarded, and according to Mr. Raja Qureshi the evidence of P.W. Jameel Yousuf has corroborated the evidence of P.W. Nasir Abbas. The learned Advocate General in support of his arguments has referred 2002-SCMR-820 in a criminal Appeal of Soulat Ali Khan Appellant vs.
The State Respondent. The learned A.G. has also mentioned that evidence of P.W Nasir Abbas on the point of abduction of Daniel Pearl by accused Omar Saeed Shaikh is a last seen evidence and this evidence is a confidence inspiring and can not be discarded. He in support of his arguments has referred 2001-Pak. Cr. L.J. Quetta-1766 (c) in a criminal appeal Muhammed Khan and others Appellant vs. The State Respondents in which it has been held as follows:
"Appreciation of evidence - last seen evidence - circumstances that the deceased was last seen with the accused is a reliable piece of evidence if corroborated by other pieces of circumstantial evidence which are interlinked and which clearly connects the accused with the commission of offence".
29. The learned A.G. Mr. Raja Qureshi has also referred PLD- 1995-SC-01 in a case State through A.G. Sindh Karachi - Appellant vs Salman Hussain and others Respondents, in which it has been held "while trying in a criminal case under Section 365-A and 109 PPC the approach of the court in matters like the case of kidnapping for ransom should be dynamic and if the court is satisfied that the offence has been committed in the manner in which it has been alleged by the prosecution, the technicalities should be overlooked without causing any miscarriage of justice".
30. I have given my considered view to the arguments advanced before by the learned defence counsels and by the learned Advocate General. I have also perused the evidence of above these two P.Ws on record, I find that it is a settled position in law that if some fact is deposed to in examination-in-chief which is not questioned in cross examination, the presumption is that, that part of the evidence is deemed to have been accepted by the party against whom that evidence has been given. Acting on this principle, it would be safe to arrive at a finding that the evidence of P.W. 1 is confidence inspiring and has not been shaken in the process of cross examination and is positively to the effect that Daniel Pearl was last seen with accused Ahmed Omar Saeed Shaikh whereafter he has not been seen.
31. In order to arrive at a positive finding, it would be profitable to examine the definition of "Abduction" defined under Section 362 PPC.
"Abduction: Whoever by force compels or by any deceitful means induces any person to go from any place, is said to abduct that person".
As such the nature of evidence that has come on record through this witness falls on all four to the element of deceit under a hatched conspiracy to kidnap Daniel Pearl.
32. In this connection, the evidence of P.W. 2 Jameel Yousuf strongly corroborates the evidence of P.W. 1 Nasir Abbas to establish that P.W.-2 was also the second last person to have been seen or having been available with Daniel Pearl upto 6.45 p.m. on 23-01-2002 where after, Daniel Pearl was last seen at 7.00 p.m. on 23-01-2002 with accused Ahmed Omar Saeed Shaikh by P.W-1. The conversation of Daniel Pearl with telephone caller heard by P.W. 2 in whose office Daniel Pearl was sitting pursuant to an appointment with P.W.-2 is not at all hit by the provision of hearsay evidence under Qanun-e-Shahadat. In this context, reference could be made to Article 71 of Qanun-e-Shahadat which is to the following effect:
"Article 71 - Oral Evidence must be direct. Oral evidence must, in all cases whatever, be direct that is to say: if it refers to a fact which could be seen, it must be evidence of a witness who says he saw it; if it refers to a fact which could be heard it must be the evidence of a witness who says he heard it".
Hence the finding on this point is proved. As regards the citations referred by the learned defence counsels in this connection as quoted above my respectful submission is that the citations are not relevant to this case. As the facts reported therein are not of identical nature of this case, Whereas, the law cases referred by the learned Advocate General Mr. Raja Qureshi have got relevancy to this case. This point is answered accordingly.
Points No. 3 and 4.
33. In order to prove these points the prosecution side has examined as many as seven (7) prosecution witnesses namely P.W. 22 Rao Muhammed Aslam P.W.-3 Javed Abbas, P.W.-8 Ronald Joseph, P.W-14 Shaikh Naeem, P.W-18 Muhammed Iqbal Hashmi, P.W-20 Zaheer and P.W.-10 Ghulam Akbar Jafferi, a handwriting expert.
34. Now, about these P.Ws I have heard arguments from the learned defence counsels and from the learned Advocate General and I have perused the evidence of above these P.Ws they were subjected to lengthy cross examination.
35. The learned defence counsel Mr Abdul Waheed Katpar for accused Ahmed Omer Saeed Shaikh has mentioned in his arguments that Daniel Pearl was never abducted by the accused Ahmed Omer Saeed Shaikh a false story has been cooked out against the accused by the prosecution. According to Mr Abdul Waheed Katpar the demands for ransom through e-mails to Wall Street Journal as alleged in the charge were never transmitted. According to Mr Katpar, the accused Ahmed Omer Saeed Shaikh along with the other accused persons has not sent another e-mails documents to the complainant on 30th Jan 2002 threatening to kill Daniel Pearl within 24 hours if their demands were not fulfilled as alleged by the prosecution side.
The learned Advocate Mr Katpar has further argued out that the accused Ahmed Omer Saeed Shaikh along with other accused persons on 30th Jan 2002 had never committed murder of Daniel Pearl by slaughtering him and he had never talked the evidence of dead body of Daniel Pearl to disappear. According to Mr Katpar the accused Ahmed Omer Saeed Shaikh in collusion with the absconding accused persons had never recorded and transmitted the video cassette of slaughtering of Daniel Pearl which allegedly conveyed the visual images and found no any terror, fear, sense of insecurity in the society was created as alleged.
The learned Advocate Mr Katpar has further argued out that accused Amed Omer Saeed Shaikh alongwith other accused persons has never aided, abetted, participated and committed act for achieving the purpose of making conspiracy of kidnapping for ransom and he has never raised demands of ransom and causing murder of Daniel Pearl. The learned defence counsel Mr Katpar finally has argued out that all the witnesses in this regard are the policemen and they are the false witnesses and they deposed against the accused persons the learned defence counsel Mr A. Waheed Katpar has finally submitted that the case is full of doubt and the witnesses are not independent.
He in support of his arguments has referred PLD-1999-Lah-131 in a criminal appeal of State Pet. Vs. Sameeullah and 16 others. Mr Katpar has also referred PLD-2002-Lah-247 in a criminal appeal The State - Pet. Vs. Secretary health Punjab. Mr Katpar has also referred Article 123 and Article 124 of Qanun-e-Shahadat order 1984 with the further contention that cassette Article-1 is a document and the prosecution has failed to adduce evidence of the person who had prepared this video cassette as has been provided under the relevant provision of Qanun-e-Shahadat Order 1984. Mr Katpar also further submitted that in this case the recovery Mushirs are not inhabitants of that place as required under Section 103 Cr.P.C.
36. Secondly, Mr Rai Bashir Ahmed who is also appearing for all the accused persons has contended in his arguments that in this case the burden of proof lies upon the prosecution side for the entire allegation against the accused party. According to Mr Rai Bashir Ahmed no any e-mail message was made from Pakistan. According to Mr Rai Bashir Ahmed, the recovery of the laptop Computer and writings of e-mail messages and other documents and also video cassette as Article 1 were not witnessed by the independent persons, all the witnesses are the policemen and therefore, according to him their testimony can not be believed as to be true.
The witnesses of the recovery P.W Zaheer Ahmed are not local inhabitants of the place. According to him, the non compliance of Section 103 Cr.P.C has been made in this case and therefore, according to him the entire case is doubtful and false and as such the benefit of doubt is to be given to the accused persons. Mr Rai Bashir Ahmed, in support of his arguments has referred 1996-Pak.Cr.L.J-Pesh-1811 Ishtiaq Ahmed Appellant vs The State Respondent. He has also referred 1989-SCMR-2056 Sher Muhammad Pet. Vs Revenue Officer, 189-SCMR=720 in a case Shahmeer - Appellant vs. Muhammed Afzal and others, 1992-SCMR-196 in a criminal appeal (b) of Daniel body (Saifullah and others) - Appellant vs the State respondent. He has finally prayed that the case is doubtful and the accused persons are entitled to the benefit of doubt, and are entitled to acquittal.
37. As against this Mr Raja Qureshi the learned Advocate General has argued out thatthe witnesses are reliable and their testimony can not be brushed aside because in absence of availability of the private witnesses of that place, these witnesses are as much competent as those of the witnesses of that place provided that any enmity previously existing is proved, between them and the accused party. The learned Advocate General in support of his arguments has placed reliance 2001-Pak. Cr. L.J-Quetta-1543 (b) in a criminal appeal of Abdullah - Appellant vs. The State respondent, in which it has been held as follows:-
(b) Criminal Trial
"Evidence - Police witness - Police witnesses were not always liars and the presumption that a person acted honestly would apply as much in favour of a police officer as of any other person and his testimony could not be excluded except for valid reasons - No justification insisted to exclude testimony of police witnesses from consideration when same was corroborated by independent evidence".
38. Now, about the aforesaid witnesses I would proceed while dealing with the testimony of each of the prosecution witnesses as follows in the light of arguments made by the learned counsels and the facts brought on record of this case:-
P.W 22 Rao Muhammed Aslam.
39. Before, I proceed to examine the evidentiary value of prosecution witness No. 22 Rao Muhammed Aslam, it is necessary for me to observe that it was complainant Mariane Pearl who had sent a written application addressed to the S.H.O. Artillery Maidan Police Station dt. 4th Feb. 2002 (Ex. 63/A). This complaint was recorded in the 154 Cr. P.C Book maintained at the Artillery Maidan Police Station by P.W-17 Muhammed Aslam Jatt which culminated into the assignment of investigation of the complaint and the F.I.R registered by P.W 17 Aslam Jatt to P.W 22 Muhammed Aslam on 4/02/2002.
40. On 5/02/2002, Rao Muhammed Aslam goes to the residence of Mariane Pearl who provides to him two sets of e-mails which are secured under the mashirnama Ex. P/7 and the said two sets of e- mails are Ex. P/8 with attachments (1 to 14). These emails have been secured through mashir P.W-3 Javed Abbas. It appears that these very e-mails had been addressed to numerous users of Internet globally which had also reached Mariane Pearl and thus the fact that Daniel Pearl was an American citizen, the U.S Consulate Karachi contacted P.W-18 Mehmood Iqbal Hashmi who is an internet service provider at Karachi.
P.W 18 Mehmood Iqbal Hashmi.
41. He is a graduate in Computer Science and possesses International Certificate in Microsoft and Brain Bench. He was provided with the e-mails received even at the U.S Consulate from the Security Manager at U.S Consulate namely Mr. Zahoor Bashir asking P.W-18 to locate the I.P address i.e. Internet Protocol Address. As P.W 18 was working for the last six years at Web Net Communication, Karachi, he possesses the capability of locating the service provider as well as the Internet Protocol from where the e-mails may have originated.
Accordingly, by using the database and the hotmail Worldwide hot-web, P.W 18 was able to locate that the number from which the said e-mails have originated is subscribed by Shaikh Naeem which is 8125028. Accordingly, he responded upon locating the same to the U.S Consulate as well as provided the same details of having located the I.P. address of the sender of the e-mails to the second Investigating Officer of this case P.W 23 namely Hameedullah Memon as Ex. 64-A. The emails of which I.P was tracked down by P.W 18 provides the entire data pertaining to abduction of Daniel Pearl which had been tapped which had contained certain pictures of JPG in the form of data and each and every thing which was transmitted on 30/01/2002 and each and every thing which was shown on the papers on the statement was as per International standards.
P.W 14 Shaikh Naeem.
42. He has an Internet concern entitled as "SPEEDY INTERNET". This Speedy Internet of P.W 14 is a provider of Internet Cables to users under contract against payment for such facility. He had entered into a contract with accused Fahad Naseem which contract has been produced in Court as Ex. 58/A. He further maintains the time of the users when they have used the facility which time and the information of the user is automatically generated by the server of their system itself.
He has produced complete record of his business for providing such facility as Ex. 58/B. Along with the information, he has also produced the Register of customers reflecting as to which connection is provided to which particular user and when information was provided to him that from his telephone number at a relevant point of time on a relevant date the questioned e-mails were sent, he had sought time from the investigation agency to provide complete information and ultimately did provide the requisite information that such e- mails were transmitted through connection No. 66 which under a contract was provided by him to accused Fahad Naseem and accordingly, led the Investigation Team to the residence of Fahad Naseem where the connection was provided which resulted into recoveries of two original manuscript of e-mails (Ex. 51/B and Ex. 51/C) in Urdu and English respectively alongwith Scanner, Article-I, Laptop on 11/02/2002 in the presence of mashir P.W-20 Zaheer.
43. It would thus be seen that P.W 18 Mehmood Iqbal Hashmi identified from his system that the questioned e-mails originated from phone No. 8125028 which appears to have led the Investigators to P.W 14 Shaikh Naeem being the subscriber of the phone Number 812028. Upon contact with P.W 14 Shaikh Naeem, it was revealed that he is in the business of providing Internet Cables to users. As the system of P.W 14 Shaikh Naeem automatically generates the information with regard to the time of the user using the facility. Hence P.W 14 was able to locate the originating transmission of e-mail to have been done from connection No. 66 provided by him to accused Fahad Naseem under a Contract, which in the chain of events led the investigator to the home of Fahad Naseem leading to the recoveries of the original manuscript of questioned e-mails in English and Urdu under the handwriting of accused Ahmed Omer Saeed Shaikh and accused Shaikh Adil. These original handwriting in English and Urdu have been duly confirmed by P.W-10 Ghulam Akbar Jafferi a handwriting expert to be the writing of accused Ahmed Omar Saeed Shaikh in English and accused Shaikh Adil in Urdu.
P.W 8 Ronald Joseph.
44. This P.W is a Special Agent of Federal Bureau of Investigation and has been certified by the FBI Laboratory to be in the computer analysis response team as a Computer Forensic Examiner. He has been certified by the FBI to conduct Computer Forensic Examination for DOS/WINDOWS Operating System, APPLE/MACINTOSH Operating System and LINUX/UNIX Operating System. He has attended various examinations and has put in over 800 hours of computer related training as per certificate issued by the U.S. Department of Justice, Federal Bureau of Investigation (Ex. 49-A).
45. The leading of Shaikh Naeem to the recovery of the Laptop being used through connection No. 66 from his system at the house of accused Fahad Naseem on 11/02/2002 was provided to this witness who had examined the same and conducted the Forensic Examination and formulated his report which was conveyed to the investigation from the Consulate General of the United States of America vide Ex. 49/B. On examining the report, he has categorically stated that the Black Soft Computer case contained "PROWORLD" written on the exterior and upon the opening the case a dell latitude Cpi Laptop was found in it. The laptop was identified in the report produced by this witness to be of model PPL with Serial No. of ZH942 and located inside the Laptop was an IBM Travel Star Hard Driver which was stated to have been removed from the Laptop and viewing the label on the Hard Drive Model, the Drive was identified as 4.32 GB of storage capacity and the Model No. was determined by this witness to be DKLA24302 with a serial number of 4ZIM000N81834. On examining articles 1 and 2 of Ex. 49 compared with the mashirnama of recovery of Laptop in juxtaposition with the computer Forensic Examination Report and identifying the numbers of the same, there is no doubt whatsoever that the Laptop is the same equipment which was recovered from the possession of accused Fahad Naseem on 11/02/2002.
The Forensic Examination Report is also Ex. 49/B. It would be seen that the said report reflects the Laptop to have been made available to this witness on 4/02/2002 as suggested by the defence. Availability of the Laptop at the American Consulate on 4/02/2002 is not only un-natural but impossible because of the fact that complainant Mariane Pearl had filed the complaint with the police on 4/02/2002 (Ex. 63/A) at 2345 hours which had in fact set the ball rolling at the hands of the Investigating Agency.
46. Report of this witness relates to demands contained in the Hard Disk of which traces were made and report was formulated. As such it is the substance which is the essence and not the point of time when it was made or else there was no occasion whatsoever for accused Fahad Naseem to be possessed with the original handwritten scripts of the same e-mails which were received by the receivers and certified by the handwriting expert P.W Ghulam Akbar Jafferi to be in the hand of accused Shaikh Adil and accused Ahmed Omar Saeed Shaikh in Urdu and English respectively. Even upon examining the tickets produced by this witness, it would be seen that on 11/02/2002 upto 15/02/2002 he was available at the City of Karachi and thus it is that period when the examination logically could have been conducted by him whereof followed by report coming from Washington D.C based on the notes which were carried by this witness to U.S.A.
47. The evidence of this witness further spells out that he did not bring the entire data out from the Hard Drive but in fact had made mirror images of the data on the other hard drive without disturbing the original Hard Drive. Various suggestions have been made to challenge the credibility of this witness but he has been able to withstand the test of the cross examination by specifically stating that all these suggestions which could allege tampering or manipulation with the Hard Disc was not so done in this case. Even otherwise, there appears to be no reasonable justification for tampering a piece of evidence of this nature in the absence of any alleged animosity.
48. On having dilated upon the aforementioned witnesses on Point No. 03, it would be necessary to state that there was no occasion whatsoever that accused Fahad Naseem be possessed with the two original manuscripts at the time of his arrest, the Laptop which transmitted through connection No. 66 the e-mails containing the demands of ransom to the United States in the terms mentioned herein above while the points for determination had been framed. There was no reasonable justification or photocopies of the same e-mails to have recovered from the possession of accused Ahmed Omar Saeed Shaikh upon his arrest on 13/02/2002. Further, there is no animosity or enmity of the writing experts to have opined positively confirming the admitted documents obtained before the Judicial Magistrate with the disputed documents. Such writing expert being P.W 10 Ghulam Akbar Jafferi who has given his detailed reasons mentioned herein above for arriving at a positive finding that the disputed writings contained on the original e-mails are written by accused Ahmed Omar Saeed Shaikh (English) and accused Shaikh Adil (Urdu) Ex. 51/C and Ex. 51/B respectively. The Text of the same emails have not only been received by Mariane Pearl but also by U.S Consulate, Wall Street Journal and endless number of consumers World Wide.
It would thus be seen that the e-mails dated 27/02/2002 raising demands of ransom upon having not been met culminated into the second set of e-mail dt. 30/01/2002 threatening to kill Daniel Pearl within 24 hours if their demands are not met.
49. Now as regards the contentions of the learned defence counsels that these witnesses named above are not trustworthy. This contention has not been supported by the cogent proof and the citation referred to me by the learned defence counsels have no relevancy to this case. Accordingly, I hold that the prosecution has been successful in discharging its burden about these points and these points therefore, stand proved and are answered accordingly.
Point Nos 5 & 6
50. In order to prove these points, the prosecution has examined P.W 12 John Molligon. This witness had produced the original video cassette alongwith the copy of the same. Both, the original and the copy were viewed by the defence team, the team for the prosecution, the accused persons and myself. The original tape was seen and returned and the copy was also seen but retained as article 1 that was viewed on 14/05/2002. About these points, I have heard arguments from the learned defence counsels Mr. Abdul Waheed Katpar and also Mr. Rai Bashir Ahmed and the learned Advocate General.
The contentions and arguments of both the learned defence counsels are that P.W 12 John Molligon who has produced original video cassette has not disclosed the source from whom he had obtained video cassette and it has also not been disclosed that who had prepared this video cassette. Both the learned defence counsels in their respective arguments have submitted that video cassette Article-1 is not a substantial piece of evidence because this video cassette is a false and it can be prepared falsely because the science nowadays has developed such technology through which the fake video cassette can be prepared for involving any body and innocent men in such instant cases.
Both the learned defence counsels have further argued out that video cassette is a document and for proving this document the person who has prepared should have been examined or in whose presence this video cassette was prepared or edited should have also been examined. But in the instant case, this has not been done therefore, according to the learned defence counsels this video cassette Article-1 has no any evidentiary value.
51. As against this Mr. Raja Qureshi the learned Advocate General has submitted that this video cassette is a cogent piece of evidence and it can certainly be relied upon. He in support of his arguments has referred Article 164 of Qanun-e-Shahadat Order 1984.
52. Now, the accused persons in their respective statements under Section 342 Cr.P.C. have merely made denial of the prosecution charges against them, without providing of furnishing any documentary proof to reflect that the instant case involving all the allegations against them is based on pre-existing enmity between the witnesses and the complaint party and the deceased.
53. Now, I want to discuss about this video cassette. This video cassette upon being viewed reflects the same demands which are contained in the e-mails sent in Urdu and English under the hands of accused Ahmed Omar Saeed Shaikh (English) and Shaikh Adil (Urdu). It further conveys the atrocities being committed in Palestine, Kashmir and various other places.
The tape through in law is admissible in evidence under the Provisions of Article 164 of the Qanun-a-Shahadat and this witness was subjected to extensive cross examination wherein he had stated that such tapes could be fake tapes also prepared but at the same time the same witness on record is stated to have said that fakeness of such tape could be and has been determined by the experts of the FBI who certified the same not to be fake.
54. Therefore, I find that what surfaces from viewing this tape is the motive of the accused persons, which stands proved for raising the demands of ransom, the actual and physical slaughtering of Daniel Pearl being decapitated and this action about the accused persons falls within the provisions of Section 6(e) of the Anti Terrorism Act, 1997 thereby conveying the scene of fear, insecurity and terror. It is further transpires that the captivity of Daniel Pearl stands proved in the hands of all the accused persons and when their demands as mentioned in the e- mails were not met or not fulfil, therefore, the un-natural death of Daniel Pearl was caused in a brutal manner by the accused persons. These points are answered accordingly and the prosecution side has been successful in discharging its burden. Point No. 07
55. About this point, I have heard the arguments of the learned defence counsels and the learned Advocate General.
56. Mr Abdul Waheed Katpar the learned defence counsel has in arguments submitted that accused Ahmed Omer Saeed is a innocent man and he has been involved falsely in this case. The prosecution side has miserably failed to prove this case beyond any reasonable doubt against accused Ahmed Omer Saeed Shaikh. According to Mr Katpar accused Ahmed Omer Saeed Shaikh has neither aided, abetted, participated in the alleged crime. He had never made any conspiracy for kidnapping for ransom raising demands of ransom and causing murder of Daniel Pearl.
According to Mr Katpar the witnesses in this case against the accused persons are mostly police men and their testimonies can not be believed as to be true. The recoveries shown against the accused Omer Saeed Shaikh were not witnessed by the local inhabitants of the place as required under Section 103 Cr.P.C. Therefore, according to him the case is very much doubtful.
57. Mr Rai Bashir Ahmed the learned defence counsel for all the accused persons including Ahmed Omer Saeed Shaikh contended that the accused persons are innocent the case is false against them. They had never participated in the alleged offence, in any manner. The witnesses in this case are the set up witnesses and most of the witnesses are from the Police party and other witnesses are not the respectable persons of the locality. The recoveries of the Laptop computer and e-mail writings and the messages are false. Their confessions before the Judicial Magistrate is very much defective and not voluntary. The identification test held regarding the accused persons is not legal therefore, according to him the case is doubtful and the state or the prosecution has failed to prove it's the onus successfully against the accused persons.
58. As against this Mr Raja Qureshi the learned Advocate General has argued out that no doubt major portion or number of the witnesses regarding the alleged offence against accused persons or from police party, but their evidence can not be brushed aside due to non-availability of the private witnesses.
The police party/P.Ws are therefore, in such cases competent witnesses as those of private witnesses, unless any malafide is proved against them. According to Mr Raja Qureshi he has further submitted in his arguments that the defence side have failed to prove any malafide against the police witnesses. He has further submitted in his arguments that the accused party in their respective statements u/s 342 Cr.P.C. have only made denial of the allegations against them and their oral denial can not be accepted on absence of producing the recorded enmity or any cogent proof to dis-proving the charges against them.
59. I have given my considered view to the arguments advanced before me, I find that the accused persons in their respective statements u/s 342 Cr.P.C. has made oral denial of the allegation against them. They had not produced any record showing the pre-existing enmity between the prosecution side and themselves. One of the accused Ahmed Omer Saeed Shaikh has examined two defence witnesses namely Mr Rauf Ahmed Shaikh D.W. and Mr Saeed Ahmed Shaikh, who is father of accused Omer Saeed. Mr Rauf Ahmed Shaikh who is District and Sessions Judge of Muzaffargarh and is maternal uncle of accused Omer Saeed Shaikh and the second defence witness Saeed Ahmed is his father.
The defence plea that he was arrested by the police from Lahore and as such Ahmed Omer Saeed Shaikh was handed over to DIG Police Lahore because of the reasons that his parents were harassed. Accused Ahmed Omer Saeed Shaikh has taken the plea that he was arrested by the Lahore Police and arrest shown by I.O. Hameedullah Memon in this case by him @ Karachi is a false story. In this connection, D.W. No. 1 Mr Rauf Ahmed Shaikh has also deposed that he had handed over the custody of accused Ahmed Omer Saeed Shaikh to DIG and he was arrested by him. D.W. No. 02 Saeed Ahmed Shaikh has also deposed the same story. Now, it can be easily said that a criminal or any body else during this scientific age can easily arrive at Lahore or at any other far place after committing any crime at any other place. So the plea of arrest from Lahore raised by Omer Saeed Shaikh has no any legal weight. I further find that D.W. 1 Mr Rauf Ahmed Shaikh in his defence evidence (Ex. 101) in cross examination has disclosed that accused Omer Saeed Shaikh was previously involved and arrested by the Indian Police and was tried in a case. This admission and the disclosure of D.W. Muhammad Rauf Shaikh reflects very much that present accused Ahmed Omer Saeed Shaikh appears habitual offender in making the conspiracy Internationally.
60. Now, in order to deal with the aspect as to whether the accused have aided, participated or committed acts for achieving the objectives of the hatched conspiracy of kidnapping for ransom, raising demands of ransom and causing murder of Daniel Pearl. Therefore, it would be necessary to first touch upon the acts done by accused Ahmed Omer Saeed Shaikh in brief. First, he had hatched a conspiracy at Room No. 411 at Akbar International Hotel, Rawalpindi with absconding accused Arif alias Hashim and in the presence of P.W-6 Asif Mahfooz Farooqi. Based on the said conspiracy between absconding accused Arif and Ahmed Omar Saeed Shaikh on the pretext of arranging a meeting of Daniel Pearl with Syed Mubarak Shah Gilani, it was planned and to implement the said conspiracy and plan, it was Ahmed Omer Saeed Shaikh who under his own handwritten duly certified by the writing expert to be his handwriting recorded the demands raised in English.
Simultaneously, the same demands were recorded under the hand of Shaikh Adil duly confirmed by the writing expert in Urdu. These demands were transmitted from the Laptop of accused Fahad Naseem through connection No. 66 provided to him by P.W 14 Shaikh Naeem which was tracked down leading to the recoveries of the equipments used for transmitting of the e-mails along with the scanner and the Polaroid and Zoom Camera with films.
61. About the e-mail messages the accused persons Adil Shaikh and Fahad Naseem have made confessions before the P.W-9 Judicial Magistrate Erum Jahangir and P.W. Erum Jahangir in her deposition on record has deposed that these accused persons had made confessions and she had given a note at the foot of the confessional statement on record that the confessions was voluntary. Apart from the Hand Writing Expert Ghulam Akbar Jafferi in his respective deposition on record has confirmed the hand writing of the messages as sent by the accused persons.
62. Coming to the acquisition of Polaroid and Zoom Camera, there is evidence to the effect which has come on record and which has not been shaken by the defence through P.W 16 Muhammed Arif who had sold the Polaroid Camera and Zoom Camera Films to accused Salman and Fahad Naseem, whereas, the scanner was purchased from P.W-13 Rajesh Kumar of Jogi Computers by Salman Saqib and Fahad Naseem (Ex. 55/A and Ex. 55-E). All these instruments including Laptop were necessary for transmitting the e-mails of the same text hand-written by Ahmed Omar Saeed Shaikh and Shaikh Adil in English and Urdu respectively. The said e- mails were sent with attachments, which attachments could have only been possible after having obtained the Zoom Camera, the Polaroid Camera and the scanner which were purchased by accused Fahad Naseem and Salman Saqib.
63. Coming to the aspect of kidnapping of Daniel Pearl, there is strong piece of evidence of independent P.W-1 Nasir Abbas, Taxi Driver whose evidence has not been shaken in any manner while he testified that it was on 23/01/2002 in front of Village Restaurant adjacent to Metropole Hotel, Saddar Karachi at 7.00 p.m., that he says that accused Ahmed Omar Saeed Shaikh to have taken Daniel Pearl in his car after Daniel Pearl left his taxi and boarded into the car after coming from the office of CPLC at 6.45 p.m., which aspect is duly supported by P.W 2 Jameel Yousuf. Hence Daniel Pearl was last seen alive in the company of accused Ahmed Omer Saeed Shaikh till 7.00 p.m. on 23/01/2002.
As such, an irresistible conclusion could be arrived at that the conspiracy was hatched at Akbar International Hotel, Rawalpindi in Room No. 411 which has been testified by the receptionist of the Hotel P.W-7 Aamir Afzal Qureshi as well as P.W 6 Asif Mehfooz Farooqi followed by P.W 1 last seen Daniel Pearl in the company of accused Ahmed Omer Saeed Shaikh at Karachi while sitting in his car, followed by the raising of demands through the e-mails coupled with the aspect that for transmitting the e-mails with attachments it was necessary to procure the equipments which had been so done by accused Salman Saqib and Fahad Naseem in the process of meeting of minds to achieve the objective of the hatched conspiracy.
64. Now, coming to the aspect as to how were the e-mails transmitted and how was accused Fahad Naseem, Shaikh Adil, Ahmed Omar Saeed Shaikh and Salman Saqib become instrumental in aiding abetting and committing the acts for transmitting the demands of ransom, it would be necessary to cursorily look at the evidence of P.W 8 Ronald Joseph P.W-14 Shaikh Naeem and P.W 18 Mehmood Iqbal Hashmi. Indeed P.W-8 is the F.B.I. agent and an expert who has examined the Laptop possessed by accused Fahad Naseem and recovered from his possession, P.W. 14 Shaikh Naeem is the internet service provider who had provided connection No. 66 to accused Fahad Naseem under a contract executed between accused Fahad Naseem and the proprietorship concern of P.W. 14 and finally through P.W. 18 Mehmood Iqbal Hashmi who was approached by the U.S. Consulate to identify and track down the I.P address which is the Internet Protocol address which was tracked down by him resulting into the finding of the telephone number 8125028 by him of P.W 14 Shaikh Naeem leading to connection No. 66 provided to accused Fahad Naseem who used the Laptop which is testified from the images transmitted from the Hard Drive of the Laptop of accused Fahad Naseem by P.W-8 Ronald Joseph an F.B.I. agent and an expert on the Forensic Examination of Computers.
65. The Process of Tracking e-mails messages was duly conducted by P.W 18 Mehmood Iqbal Hashmi, P.W-14 Shaikh Naeem, P.W 8 Ronald Joseph, an FBI agent. It was P.W 18 Mehmood Iqbal Hashmi who had tracked down the telephone number being 8125028 which led to the connection of P.W-14 Shaikh Naeem and on approach to Shaikh Naeem, it reveals that he was an Internet service provide who has provided as many as 70 connections out of which connection No. 66 was provided by P.W 14 Shaikh Naeem to accused Fahad Naseem, who had used his Computer Laptop and employed connect No. 66 to transmit the e-mails raising demands of ransom in English and Urdu. This aspect stands duly confirmed by the Forensic Examination Report conducted by P.W 9 Ronald Joseph FBI agent who had taken images of the Hard Disk of the Laptop Computer possessed by accused Fahad Naseem. For the purposes of convenience, reference could be made to Ex. P-8 (1- 14) and Ex. 49-C/1 to Ex. 49-C/64 and Ex. 64-A with six leaves produced by P.W. 18 Mehmood Iqbal Hashmi. Consequently this point stands proved.
66. Now, at this stage I come to the submissions made by the defence counsels that the FIR is delayed by 12 days without any reasonable explanation. My reply in this connection is that complainant is a Mariene Pearl wife of Daniel Pearl and it is therefore, clear that a woman always fear in lodging FIR promptly at the police station in such case of murder and abduction and therefore, this delay in lodging FIR can be overlooked when there is Lady complainant in such cases..
67. The learned defence counsels have also contended that the FIR of this case should have been produced by the complainant herself. Such contention was resisted by the prosecution side on the ground that FIR is not a substantive piece of evidence and can be used only for conveying the information to the police and the police had investigated the instant case and had brought all the materials on record and also evidences, thereupon, the accused persons were arrested and their confessions were recorded by the learned Judicial Magistrate regarding the e-mail messages sent by them through Laptop computer and the video cassette was recovered Article-1 and finally the case was challaned. The complainant being Lady was in France and she had given birth to a son, therefore in these circumstances the complainant could not undertake the Journey from France to Pakistan therefore, the complainant was given up by prosecution. In assessing these contentions, I find that the prosecution side had rightly not examined the Lady Complainant. The contentions of DGs are replied accordingly.
Point No. 08.
68. In the light of aforesaid findings and evidence of P.Ws brought on record, I find that the motive of the occurrence against the accused as alleged stood proved and established beyond any doubt. The minor discrepancies pointed out in evidence of P.Ws did not hit or touched the root of the case. The accused had not been able to establish any pre-existing enmity between themselves and the prosecution side for their false implication in the case, there is judicial confession of the accused persons on the record and the recoveries of the e-mail messages and the Laptop computers and so also the scanner and the receipts for the purchase of cameras and there is opinion of the handwriting expert on the writings of the e-mails and there is evidence of identification test by the P.Ws on the point of kidnapping of Daniel Pearl and conspiracy regarding Daniel Pearl.
The oral denial of the charges of the prosecution made by the accused party and the evidence of the defence witnesses do not result the instant case in a doubtful position. The captivity of the Daniel Pearl in possession of the accused party stands proved and the non-fulfilment of their demands has presumably resulted the murder of Daniel Pearl at the hands of accused party.
69. I have therefore, arrived at the conclusion that all the four accused persons are guilty of offences under Sections 120-A PPC, 365-A, 302 PPC read with Section 6(a) of the Anti Terrorism Act, 1997. Now coming to the aspect of sentence in view of the Terrorist Activities of accused Ahmed Omer Saeed Shaikh it appears that this accused had engineered entire plan of creating sense of fear nationally and internationally and thereby made conspiracy and he was a Principal Offender and he made with his efforts the other remaining accused to be his aiders/associates for the purpose of completion of his above plan involving the sense of fear, insecurity nationally and internationally.
I therefore, convict accused persons under Section 365-A, 302 PPC read with Section 6(a) of the Anti Terrorism Act 1997 and S. 120- A PPC, and thereupon as a result accused Ahmed Omer Saeed Shaikh is sentenced to death under Section 7 of the Anti Terrorism Act, 1997, to be hanged by the neck till he is dead. The other accused persons namely Adil Shaikh, Salman Saqib and Fahad Naseem are sentenced under Section 7 of the Anti Terrorism Act, 1997 to suffer Life Imprisonment. They are also sentenced to pay fine of Rs. 5,00,000/- each. In case of non-payment of fine, these accused persons shall undergo sentence for Five (5) Years more. This court also direct all the four accused persons to pay jointly a sum of Rs. 20,00,000/- (Twenty Lacs), which shall be paid by them in equal share and if this amount is paid it shall be given to the widow of Daniel Pearl and also to his Orphan son. The imprisonment sentences shall to run concurrently and benefit of Section 382-B Cr.P.C. is given to the accused persons. The death sentence so awarded will be executed subject to the confirmation by the Hon'ble High Court of Sindh, for which the reference is separately made to the Hon'ble High Court of Sindh.
70. Before I part with this Judgment, I would like to record my appreciation of all the members of the prosecution team and their assistance and also members of the defence team and their assistance.
71. Now, the accused persons who are present in judicial custody, they are remanded back to serve out their sentences so awarded. It is pointed out here that absconding accused persons of this case have been allotted a separate case No. as Spl. case No. 9/2002 by the Hon'ble Administrative Judge A.T.Cs Karachi therefore, on their arrest their case will be tried separately by the competent Anti Terrorism Court Karachi as their case has been kept on dormant file by the A.T.C. Karachi having competent jurisdiction.
Announced in open Court in Jail (C.P. Hyd). Dated this the 15th day of July 2002.
(Syed Ali Ashraf Shah) Judge Anti Terrorism Court Hyderabad & Mirpurkahs Divisions @ Hyderabad.
ORDER FOR DISPOSAL OF CASE PROPERTY
The following property will be disposed of after appeal period over:-
1. One Scanner,
2. Laptop Computer and disk
3. One video cassette Article-1
4. One C.D. Cassette
5. Hand bag of the accused Omer Shaikh containing tooth brush, one towel, photocopies of NICs, visiting cards, two purses and Rs. 300/- and two e-mails messages in Urdu dt. 27/1/02, 30/1/2002 regarding Daniel Pearl, and one e-mail in English language written by Ahmed Omer Saeed Shaikh about abductee Daniel Pearl, etc.
(Syed Ali Ashraf Shah)
Judge Anti Terrorism Court Hyderabad & Mirpurkhas Divisions @ Hyd.