More Twists and Turns

(This is to be read in continuation of my earlier article titled UnansweredQuestions.)

The one-judge Anti-Terrorism Court in Hyderabad, Sindh, constituted by Judge Syed Ali AshrafShah, pronounced judgement on July 15, 2002, finding guilty Ahmed Omar Saeed Sheikh and three others in thecase relating to the kidnapping of Daniel Pearl, the American journalist of the Wall StreetJournal, on January 23, 2002, at Karachi and his subsequent murder in custody.

While Omar Sheikh, the prime accused, was awarded the death sentence, the other three co-accused-- Salman Saqib, Fahad Nasim and Shaikh Muhammad Adil -- were each sentenced to life imprisonment. Allthe four of them have since appealed to the Sindh High Court against their conviction. If the Sindh HighCourt rejects their appeal, they could appeal further to the Pakistan Supreme Court. Simultaneously, theState too has appealed to the Sindh High Court to enhance the life imprisonment awarded to the threeco-accused to death penalty.

Under Pakistan's anti-terrorism laws, recording of evidence has to be completed by the anti-terrorismcourts within a week on a day-to-day basis without granting any adjournment, and the sentence pronounced withina week of the completion of the recording. These regulations were not strictly followed in this case and theaccused were granted many adjournments. As a result, the case went on for more than three months.If a similar laxity is followed during the hearing of the appeals also, the case may not reach its logicalconclusion at least for another six months.

Omar Sheikh had voluntarily surrendered on February 5, 2002, to the Home Secretary of Punjab, an ex-officer of the Inter-Services Intelligence (ISI). But his arrest was officially shown only on February 12,2002, and he was handed over to the Karachi Police, which was investigating the Pearl case. During thisperiod, he was reportedly taken to Rawalpindi, where Gen. Mohammad Aziz Khan, Chairman of the Joint Chiefs ofStaff Committee, and serving ISI officers persuaded him not to disclose to the police details of his pastassociation with the ISI and bin Laden. He was handed over to the Karachi Police, after he hadreportedly promised to remain silent.

After his transfer to the Karachi Police, he went back on his promise to Gen. Aziz and made a completeconfession to the police of his past contacts with the ISI and bin Laden. That was not all. He confessed alsoto his orchestration fromPakistan of the terrorist attacks on the Jammu & Kashmir Legislative Assembly at Srinagar onOctober,1, 2001; on the Indian Parliament in New Delhi on December,13,2001; and on the security personnelguarding the American Centre in Kolkata (Calcutta) on January 22, 2002. He also confessed abouthis involvement in the planning for the kidnapping of Pearl and in the execution of the plan.

But during the trial, he totally retracted from his confession and denied any role in any of theabove-mentioned terrorist attacks. However, he and his father, who testified as a witness, admittedhis role in the kidnapping of a group of British and American tourists in India in 1994 in an attempt tosecure the release of Maulana Masood Azhar, presently the leader of the banned Jaish-e-Mohammad (JEM), who wasthen in an Indian jail. They also admitted that an Indian Airlines aircraft was hijacked by his supporters toKandahar in December, 1999, to secure his release as well as that of Azhar. Omar Sheikh alsoadmitted that after his release he had met bin Laden in Kandahar.

Omar Sheikh did not retract from his previous statement that he had voluntarily surrendered onFebruary 5, 2002. Throughout the trial, he, his father and a maternal uncle, who had accompanied him when hesurrendered to the Home Secretary of Punjab in Lahore, maintained that the claim of the Karachi Police thatthey arrested him on February 12, 2002, was a lie. However, the court did not accept his version.

In the face of his retraction of the confession, the only direct evidence available to the court was thestatement of a driver who testified that Pearl and Omar Sheikh hadtravelled in his taxi, on the day Pearl was kidnapped  Despite the absence of any other significant direct evidence, the court held thecharge of being a terrorist proved against him. There was no evidence to connect Omar Sheikh with themurder of Pearl after he was kidnapped. Despite this, the court took cognisance of the statement of hisfather about his involvement in the kidnapping incident in India in 1994 to prove that he was a habitualterrorist and sentenced him to death.

After the verdict was pronounced, the Advocate-General of Sindh, Raja Qureshi, who conducted theprosecution, was asked by pressmen what convinced the court that it was a fit case for the death penalty.He replied that it was the cross-examination of Raoof Sheikh, the maternal uncle, and Saeed AhmedSheikh, the father, of Omar Sheikh. According to the Advocate-General, in the cross-examination both thesewitnesses conceded that Omer Sheikh was involved in the kidnapping of four foreigners in India and he wasreleased from Tihar Jail on the demands of the hijackers of an Indian airliner.

The defence lawyers have strongly criticised the verdict on the ground that it was politically motivatedand pronounced under American pressure. They have also alleged that the English language used in thejudgement differed from the language used by the same judge in his past judgements and that this showedthat he merely read out a judgement, which had been drafted in Islamabad. They also cited comments made byGen. Pervez Musharraf, Pakistan's military dictator, during media interviews about the possibility of OmarSheikh being hanged after the trial thereby rendering pointless the question of his possible extradition tothe US and contended that these showed that the order to award the death penalty came from Musharraf himself.

It was clear from the day in February, 2002, when the News, the prestigious daily newspaper ofPakistan, reported the details of Omar Sheikh's confession to the Karachi Police that themilitary-intelligence establishment was determined not to extradite him to the US, whatever the pressure fromWashington DC, lest he talk to the US authorities about his links with Musharraf, the ISI and bin Laden andabout what transpired between February 5 and 12,2002, when he was reportedly in the informal custody of theISI.

There are many factors to consider:

• The anxiety to go ahead with the trial even before the investigation was complete. 
  
  
• The decision not tosuspend the trial when new evidence on the involvement of the Lashkar-e-Jhangvi (LJ) in the murder of Pearlemerged leading to the recovery from an isolated plot in Karachi of the dismembered parts of a dead body,which have since been reportedly identified by forensic experts as those of Pearl.
  
  
• The total silencemaintained by the police and the military-intelligence establishment on the presence in their informal custodyof one Fazal Karim and some others of the LJ, who have confessed to their involvement in the murder. 

Which all  showthat a major objective of Musharraf in the devious manner in which the case has been handled was topre-empt any legal move for the extradition of Omar Sheikh. Which he achieved  by having the trial started, even prematurely, inorder to show the case as sub-judice and, hence, beyond his control. And by having him convicted in order to beable to take up the stand subsequently that the legal bar on double jeopardy would not permit his extradition.

Interestingly, the USA was reported to have sought his extradition not in connection with the kidnappingand murder of Pearl, but in connection with the 1994 kidnapping incident, in which one of the personskidnapped was an American national. The surprising action of the judge in taking cognisance of the 1994incident too while awarding the sentence is probably meant to enable the military-intelligenceestablishment to invoke the double jeopardy bar in respect of an extradition request in connection with the1994 case too.

It remains to be seen how Musharraf now handles the fresh evidence of the involvement of the LJ leading tothe recovery of the dead body of Pearl. And what view the Sindh High Court takes of the consciousfailure of the anti-terrorism court to take notice of the reports in the Pakistani media about theinformal detention of some LJ cadres leading to the recovery of the dead body and of the deliberate failure ofthe State not to bring these fresh facts to the notice of the court during the trial. The speculation inthe Pakistani media is that the Sindh High court may order a re-trial, provided it does not succumb to thepressure of the military-intelligence establishment.

While the devious handling of the case by Musharraf is not a surprise, what is surprising and beyondcomprehension is the seeming willingness of the US to go along with him in his devious efforts. Afterthe announcement of the verdict, the Pakistani media has reported that even when the dismembered parts of adead body were recovered it was clear that the dead body was that of Pearl, that the forensic examinationreports subsequently confirmed this, and that the US authorities had informed Marianne, the widow ofPearl, about the forensic finding, but requested her not to disclose it to the public till the trial was over.

From this, one finds it difficult not to suspect that the US itself is not really keen on the extraditionof Omar Sheikh lest his interrogation by the Federal Bureau of Investigation in the US lead to his admissionof his links with Musharraf, the ISI and bin Laden and of his involvement in the terrorist incidents in India,thereby calling into question the US policy of backing Musharraf.

This case takes one's mind back to the early 1990s when the Government of India repeatedly pressedWashington DC to declare Pakistan a state-sponsor of international terrorism, but the US rejected every Indiandossier on the subject as based on interrogation reports. It contended that since the Indian Police waswidely known to be using torture during interrogation, their evidence was not trustworthy.

In 1992, Lal Singh alias Manjit Singh of the International Sikh Youth Federation (ISYF), Canada, who waswanted by the USA in connection with a terrorist case in the US and had escaped to Pakistan, was caught by theGujarat Police when he entered India from Pakistan to organise a series of terrorist incidents.For more than five years, he had been living in a safe house of the ISI in Lahore and orchestrating terroristincidents in Indian Punjab from there. During his interrogation by the Indian authorities, he gavedetails of his links with the ISI and the role of the ISI in sponsoring terrorism in Punjab.

The Government of India suggested that US officials could interrogate him in India without the presence ofthe Indian Police so that they could satisfy themselves that no torture was used and that, if necessary, theGovernment of India could consider extraditing him to the US so that he could be prosecuted there inconnection with the case pending against him. The USA did not avail of the offer. It was obviousthat Washington DC was afraid that if Lal Singh told the FBI during an independent interrogation about thesponsorship of terrorism by Pakistan, the US could be faced with the dilemma of having to declare Pakistana state-sponsor of terrorism.