A two-judge bench, headed by Justice Mohammad Karim Khan Agha of Sindh High Court (SHC) on April 2, 2020, overturned the murder conviction of Ahmed Omer Saeed Sheikh, the man found earlier guilty of killing Wall Street Journal’s South Asia Bureau Chief, Daniel Pearl. Instead, the court found Sheikh guilty of the lesser charge of kidnapping and sentenced him to seven years in prison. The Court also acquitted three others accused in the case, Fahad Nasim Ahmed, Sheikh Mohammad Adil and Syed Salman Saqib, who were earlier sentenced to life in prison. Reportedly, his release order is linked to reports of confession by 9/11 accused Khalid Sheikh Mohammed, who in 2007 claimed to have killed Daniel Pearl. Khalid is currently in Guantanamo Bay prison. He was named as the principal architect in the 9/11 Commission Report.

After the judgment came out, one of Omer’s lawyers, Khwaja Naveed, said, Omer could go free unless the government chooses to challenge the court decision. Omer has already spent 18 years in prison on death row. The seven-year sentence was expected to be counted as time served, said Naveed.

Pakistan administration, however, has decided to appeal against the decision of the court. And in a turn of events, Sindh province’s Home Department issued an order the next day, on April 3, to arrest and detain all four before they were released from the prison. According to an official, “The government of Sindh has sufficient reason that Ahmed Omer Sheikh and Fahad Nasim Ahmed, Syed Salman Saqib, Sheikh Mohammad Adil be arrested and detained for a period of three months from the date of arrest.” The law to keep them in detention is one that the government has often used to keep high-profile suspects, particularly militants, in custody after being unable to successfully prosecute them in court.

Since the restoration of the Judiciary in 2009, there has been a constant tussle between various state apparatuses and the country’s judiciary. The legal experts are of the opinion that although the judiciary has emerged as a powerful institution by giving rulings against all departments and government functionaries, democracy has been weakened in Pakistan.

The prime convict in the case, Omer Sheikh, was sentenced to death for kidnapping and killing Daniel Pearl, and his three accomplices, were sentenced to life imprisonment with a fine of Rs. 500,000 each by a Hyderabad anti-terrorism court on July 15, 2002. The court had also directed the convicts to pay Rs. 2 million to the victim’s widow, Marianne Pearl. The convicts had filed appeals in the High Court on July 19, 2002, pleading to nullify their sentences and conviction. Interestingly, in 2014, an anti-terrorism court had acquitted Qari Hashim, another co-accused in the case due to a lack of evidence.

Pearl, 38, was abducted in Karachi in January 2002 while investigating alleged ties between Richard C. Reid, the British-Jamaican “show bomber” (after he was arrested on a flight from Paris to Miami with explosives in his shoes) and a less known, Jamaat-ul-Fukra (Party of the Poor). The Jamaat recruited African Americans and maintained numerous communes in the US.

Apparently, Reid visited the headquarters of this organisation in Lahore before 9/11. On January 23, Pearl went out to interview Fuqra’s founder Sheikh Mubarak Ali Gilani, and never came back. According to investigators, Omer trapped Pearl into this false interview session. The kidnappers initially demanded that all the Pakistani terrorists lodged in Guantanamo Bay prison be released in exchange for Daniel Pearl. A graphic video showing his decapitation was delivered to the US Consulate in Karachi, nearly a month later. Omer Sheikh was arrested in 2002 and sentenced to death by an anti-terror court.

Sheikh has a history of terror connection even before his name emerged in Pearl’s murder case. In 1994, he had been arrested in India in connection with the kidnapping of four foreigners - three British and an American from Delhi. The kidnapping was in the series of similar acts of terror since the insurgency erupted in Jammu and Kashmir in 1989. He was convicted after a trial and was lodged in the Tihar Jail till 1999. When the hijackers of Air India Flight IC-814 took the airbus to Kandahar and forced the Indian Government to release four most wanted terrorists lodged in Indian jails, one was Omar Sheikh.

Later he went on to have links with al-Qaeda. His role also cropped up in the Federal Bureau of Investigation (FBI) into the 9/11 terror attack in the US. It was suspected that Omer Sheikh sent USD 1,00,000 to Mohammed Atta, one of the perpetrators of the 9/11 terror attacks in the US in 2001, using an alias under the instruction from Pakistan’s ISI. The investigation report on this connection never became public but the then ISI Chief Mahmud Ahmed resigned as FBI investigation headed in the direction of ISI.

However, regarding the judgment of Sindh High Court, the US on April 3, criticised the overturning of Omer’s death sentence. "The overturning of the conviction for Daniel Pearl's murder is an affront to victims of terrorism everywhere," Alice Wells, Acting Assistant Secretary of State for South and Central Asia, said in a tweet.

Also, Commissioner Johnnie Moore from US Commission on International Religious Freedom stated that, "We are appalled by the court's decision to overturn the murder conviction of Omar Saeed Sheikh and release him from prison”.

Pakistan joined the US-led “war on terrorism”, but it has been dogged by suspicion that it has for years covertly backed some militant factions as tools in its decade’s old hostility with India. Pakistan denies that but it has been under the close scrutiny of the global watchdog on terror financing, the Financial Action Task Force (FATF), with its recurrent inability to prosecute terrorism cases a particular concern of the agency. The re-arrest of the four gives the government time to put together a legal appeal against their acquittal. A senior Pakistani government law officer is of the opinion that the state would appeal against the Sindh High Court’s ruling, which the US welcomed.

The FATF, which supervises the effective implementation of legal, regulatory and operational measures for combating money laundering, terrorist financing, in 2018, placed Pakistan on its "Grey List" of countries for failure to curb funneling of funds to terror groups like Lashkar-e-Toiba and Jaish-e-Muhammad.

Under the present scenario, the kidnapping and murder case of Daniel Pearl is not only a target of the ongoing tussle between the judiciary and other departments of state but, at the same time, with its obtuse policy towards terrorism, Pakistan risks cutting a sorry figure in international forums and its fate in the FATF hangs in the balance. 

(The writer is Research Fellow, Institute for Conflict Management)