BA V21, No3, 2020

Editorial

18-year old murder mystery deepens

Who killed Daniel Pearl?

Pushp Saraf

American journalist and author Asra Q. Nomani has recounted her last meeting with slain Wall Street Journal South Asia Bureau chief Daniel Pearl in an article “This is Danny Pearl’s final story” in 2014: “Twelve years ago, on January 23, 2002, Danny left my home in Karachi, Pakistan, for an interview and never came back. Like so many of our peers, we had each put down roots in Pakistan to report on America’s so-called war on terror. I was on book leave from the journal. finishing a memoir. Danny, the newspaper’s South Asia bureau chief, and his wife Mariane were living in Islamabad. They’d come to see me for a few days so Danny could do an interview for a story about Richard Reid, the Englishman who had packed his shoes with explosives and tried to blow up an American Airlines flight from Paris to Miami three days before Christmas 200 I. The plan was for Danny and Mariane to vacation in Dubai after Danny’s meeting. Mariane was five months pregnant He had just texted me: ‘It’s a boy!!!!!’ That afternoon, a swarm of green parrots squawked overhead and the scent of jasmine flowers drifted through the air as Mariane and I stood outside my house on Zamzama Street and watched Danny’s cab pull away. ‘See you later, buddy; I said. We couldn’t have known that Pakistani militants would kidnap Danny. That they would keep him for days and then release strange and confusing ransom notes alternately identifying him as a CIA operative and a reporter and showing photos of him in a striped tracksuit, bound and with his head bowed beneath the barrel of a gun. Not in our worst nightmares could we have imagined what happened after that On February 21, 2002, a courier for Danny’s captors met an FBI agent at the Karachi Sheraton and handed over a three-minute propaganda video glorifying his ghastly end. Danny is without his glasses in the footage, with a few days’ stubble. He professes his Jewish heritage and criticises the alliance between the US and Israel-obviously reading from a script-as the sound of exploding mortars blasts in the background. Then, silence. Suddenly Danny is on his back and a hand holding a long knife saws furiously at his throat The next frame comes quickly-the video has obviously been edited-and shows Danny supine, a bloody swamp in place of his neck. The film cuts to the killer holding Danny’s head up high by his hair for a good ten seconds. Clearly, it was meant for the world to see-and after jihadis circulated it online and CBS News aired parts on its evening broadcast, millions did. A year later, KSM was captured and taken by US intelligence officials to a secret detention centre, where he was tortured and waterboarded throughout months of interrogations. During that time, and again after being transferred to the prison at Guantanamo, KSM confessed to his membership in al-Qaeda and to plotting a long list of terrorist attacks including the 199 3 World Trade Centre explosion, Richard Reid’s botched shoe bombing, and 9/12. He also confessed to cutting off Danny’s head. A US military commission charged KSM and his four accomplices with terrorism, hijacking, conspiracy, and murder for killing 2976 people on September 11.” (KSM stands for Khan Sheikh Mohammed, a Pakistani terrorist and member of al-Qaeda —-also spelt as Al Qaeda, al Qa’eda, al-Qaidah, AI­Qaidah, AI Qaidah, AI Qaida,al-Qaida — who in March 2007 is widely reported to have confessed at the Guantanamo Bay detention camp, a US military prison located within a naval base on the coast of Guantanamo Bay in Cuba, “to masterminding the September 11 attacks, the Richard Reid shoe bombing attempt to blow up an airliner, the Bali nightclub bombing in Indonesia, the 1993 World Trade Centre bombing, the murder of Daniel Pearl.” He was not charged with Pearl’s murder because, according to one report, there was apprehension that the manner of securing evidence against him might not be legally tenable).

(CIA is abbreviation of the US’s civilian foreign intelligence service Central Intelligence Agency. FBI is the US’s investigating agency Federal Bureau of Investigation probing crimes threatening national security and the video mentioned in Nomani’s reminiscence as having been handed over to its agent was titled “The Slaughter of the Spy-journalist, the Jew Daniel Pearl” and showed his mutilated body and his recorded statement: “My name is Daniel Pearl. I’m a Jewish American from Encino, California, USA. I come from, uh, on my father’s side the family is Zionist. My father’s Jewish, my mother’s Jewish, I’m Jewish. My family follows Judaism. We’ve made numerous family visits to Israel.” He was beheaded on February 1 , 2002 and his severed head and decomposed body cut into ten pieces was found buried in a shallow grave about 30 kilometres from Karachi on May 16, 2002).

On February 4, 2002, Pearl’s wife Mariane set in motion the process for investigation by writing to the Station House Officer of Artillery Maidan Police Station, Karachi, about the disappearance of her husband from January 23 and seeking registration of a case with the “request you that return my husband from his kidnappers.” She made a few important observations in her letter: (a) the taxi driver who had driven Pearl had dropped him outside a restaurant after which his whereabouts were not known; and (b) she learnt of her husband’s kidnapping from an email on January 27. The email carried photographs showing him “held in detention in inhuman conditions.” The “writer(s)” of the email wrote that they had abducted him in “retaliation for the imprisonment of Pakistani men by the US Government in Cuba and other complaints.” The email sought “the provision of lawyers to Pakistanis detained in the US, 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 on the repayment of money allocated for those F-16 jets as well as 15 percent interest” In another email received by her on January 30 the “unknown accused” threatened to kill Pearl if their demands were not met within 24 hours.

The police with the assistance of the FBI moved rather swiftly and the Anti-Terrorism Court Hyderabad Division and Mirpurkhas Division on July 15, 2002 sentenced British-born Ahmed Omar Saeed Sheikh (incidentally one of the three terrorists India had flown from its jails to secure the release of passengers of an Indian Airlines flight hijacked to Kandahar in Afghanistan in 1999; he was involved in the abduction and murder of four Western tourists in the south of the Kashmir Valley in 1994) to death and three other accused namely Fahad Nasim Ahmed, Syed Salman Saqib and Sheikh Muhammad Adil to life imprisonment apart from a fine of Rs 5 lakh each in case of non­payment of which they were to undergo sentence for five more years. All four convicts were directed to jointly pay a sum of Rs 20 lakh to be given to the widow and son of Pearl. The convicts approached the Sindh High Court at Karachi challenging the trial court’s order and seeking their release pleading innocence. The Government also filed an appeal seeking the enhancement of sentence from life imprisonment to death for Fahad, Salman and Adil.

A division bench of the High Court consisting of Justice Mohammad Karim Khan Agha and Justice Muhammad Saleem Jesar on April 2, 2020 set aside the trial court order. It acquitted Ahmed Omar Saeed Sheikh of the murder charge and set free three other accused. Omar Sheikh was convicted only of the kidnapping charge and sentenced to seven years rigorous imprisonment and a fine of Rs 20 lakhs to be paid to Pearl’s widow and son.

After 18 years the issue is back to square one. The all-important question is who killed Daniel Pearl: it remains unanswered. The US is furious. Responsible sections of press in Pakistan are up in arms. So is the media across the globe which is haunted by the highly publicised image of a handcuffed colleague with a gun at his head who was subsequently killed in the line of duty. The US State Department has described the overturning of the convictions of four men as an “affront to victims of terrorism everywhere.” Senior US diplomat Alice Wells has tweeted: “Those responsible for Daniel’s heinous kidnapping and murder must face the full measure of justice.” Pakistan’s Minister for Foreign Affairs Shah Mahmood Qureshi justified the US Government’s apprehension as “natural”, saying that the decision will be challenged in the apex court: “The forum of appeal exists, we are going to use it and then see if higher courts decide to keep the SHC’s decision intact or set it aside.”

Sensing the angry reaction, the Sindh Government of the Pakistan People’s Party (PPP) acted fast and rearrested and detained the four before their release (A notification issued by the Sindh Home Department in this regard said inter alia: ” … whereas the Government of Sindh on the basis of request and considering the merits of the case is satisfied that there is serious apprehension of public safety in case the persons are released, that they may act against the interest of the country and public and presence of Ahmed Omar Sheikh, Fahad Nasim Ahmed, Syed Salman Saqib and Sheikh Muhammad Adil at any public place is likely to prove great threat to the public safety and cause breach of peace and tranquility… In exercise of the powers under Section 3(I) of the West Pakistan Maintenance of Public Order Ordinance, 1960, the Government of Sindh has sufficient reason to believe that Ahmed Omar Sheikh, Fahad Nasim Ahmed, Syed Salman Saqib and Sheikh Muhammad Adil be arrested and detained for a period of three months from the date of arrest Their custody shall be placed under the senior superintendent of Central Prison, Karachi.” A newspaper report quoting “a source privy to the development” has said: “The security administration believes that the police and other law enforcement agencies cannot take any risk involving security of the city, province and of the freed persons at these challenging times when focus of the entire security apparatus is to maintain the lockdown imposed to prevent the coronavirus outbreak in the country”).

Although governed by the rival Pakistan Tehreek-e-lnsaf (PTI) of cricketer-turned-Prime Minister lmran Khan the Federal Government shared the concern of its provincial government saying that it is “well aware of the facts of the judgment .. Federal Government is concerned about the decision … however, as per constitutional scheme of things prosecution in criminal matters is a provincial subject, therefore similar concern has been shared with the Government of Sindh. .. Government of Pakistan has asked Government of Sindh to dedicate its best resources in the pursuance of appeal before the Honorable Supreme Court of Pakistan … Government of Sindh has been advised to consult Attorney General for Pakistan in the matter as well.” lt has added: “Government of Pakistan reiterates its commitment to follow due process under the laws of the country to bring terrorists to task”.

Following up its commitment the Sindh Government moved the appeal before the Supreme Court on April 22 challenging the High Court order. Provincial Prosecutor General Dr Fiaz Shah based the appeal on the grounds that the “last seen evidence”, “impersonation” and “identification parade” was proved against the accused persons and maintained by the trial court. In addition, the Sindh Government has put forward the following arguments while seeking death penalty for all the accused in three separate criminal petitions filed on the same grounds: the offences created a sense of fear and terror in the minds of the public at large, both nationally and internationally, and as such all the accused were guilty of the charges leveled against them on all counts; the video showing the committing of murder of the reporter had been verified by a public official (an expert from the Pakistan Television Corporation) and was never challenged; in view of the collective proof along with the clear and categorical confessional statements of the accused and the co-accused, the acquittal and modification of sentence by the High Court was not sustainable and was liable to be set aside; the evidence of natural and independent witnesses confirmed the demand of ransom made by the accused – a fact also stood proven through documentary evidence. As such the acquittal of the accused as well as the modification of sentence to the extent of co-accused was illegal and unlawful; the accused persons acted to achieve nefarious designs and committed the offences that fall under the Anti­ Terrorism Act, 1997 and this factum was also accepted and admitted by the High Court in its judgment, but the High Court took a glaring contradictory view while acquitting the accused and modifying the sentence of the co-accused – a decision which could not be sustained in the eye of law and thus caused serious miscarriage of justice; the High Court erred in dealing with the legal question of burden of proof as the prosecution had safely discharged the burden to prove the guilt of the accused by producing cogent and sufficient evidence; the accused persons failed to produce any material to create a doubt against the evidence produced by the prosecution. Rather the co-accused during remand categorically admitted his guilt before the trial judge that he committed the offences in league with other accused who also voluntarily confessed their involvement before the trial court; the offences were proven that all accused in connivance with each other committed the crime and they were vicariously liable for committal of all offences, including the murder of Daniel Pearl; the admission of guilt by the co-accused during remand before ATC Karachi is part of judicial proceedings and thus legal sanctity is attached thereto under relevant law but the High Court did not consider this important fact in true perspective thereby seriously misled itself to the conclusion arrived at in April 2 verdict; the High Court also failed to appreciate the aggravating factors involved in the case. On the contrary the acquittal of the accused and modification of death sentence in the absence of the mitigating circumstance caused serious miscarriage of justice and violates the principles settled down by the apex court; the High Court also misconceived the confessional statements to be inadmissible in evidence where no rebuttal came on record against such confessional statements nor any of the accused filed any complaint against the recording of such confessional statements; in the absence of this irrefutable piece of evidence, the discarding of confessional statement on the ground of delay of 27 days and element of presumptive inducement was completely unwarranted as the certificate attached with the confessional statement of the accused carried weight and legal sanctity; the High Court neither referred to nor considered the established impersonation of the co-accused corroborated through identification parade. The voluntary judicial confessions made by the accused Salman Saqib and Fahad Nasim before the competent court were retracted on flimsy premises, yet the High Court while giving undue weightage to such retraction did not consider the principles settled by the apex court — according to a 2019 judgment even a retracted confession could form the basis for conviction if found voluntarily and truthful. The rule laid down by the Supreme Court was not followed in the Daniel Pearl case, resulting in grave miscarriage of justice; the High Court did not appreciate that there was overwhelming incriminating evidence on record against the accused connecting them to the offences with which they were charged adding that they had committed offences they were charged for in league with each other with their common intention and object and were liable to be punished accordingly (the mention of the co-accused is about Ahmed Omer Saeed Sheikh).

In an editorial appropriately titled “Whodunnit,” The Express Tribune has noted that “the names of high-profile figures like alleged 9/11 mastermind Khalid Sheikh Mohammed and al-Qaeda member Saif al-Adel also came up during the course of investigation.” The newspaper has observed: “… murder mystery deepens – nearly two decades on… The abduction of Pearl, 38, from Karachi and his subsequent decapitation somewhere in Pakistan – captured on camera and released in the form of a video clip – led to massive international outrage at a time when Islamabad was – in the wake of 9/11 – under severe pressure from the US to eliminate terror networks operating on its soil… That all four who remained under trial for years and years could not be sentenced over the gruesome murder shows that either the prosecution had lost interest in proving the long-running case or it was under some sort of pressure. And if the acquittal of the mentioned accused has really come on merit, it means that the years of investigation had been wasted on the wrong people while real culprits remained untroubled … The search for the killer thus continues”

Dawn too has referred to Khalid Sheikh Mohammad and dwelt at length about the antecedents of Omar Sheikh, ” … one of the most dangerous and wily militants the world has yet seen,” in a hard-hitting editorial “Verdict in Daniel Pearl case”: “Pearl’s abduction and beheading in January 2002, a few months after 9/11, is a grisly signpost in the history of militancy in Pakistan. It catapulted local terrorist networks into the global ‘war on terror’, and not only because of the victim’s nationality: the operation that culminated in Pearl’s murder was an early example of the nexus between homegrown extremists and Al Qaeda, the foremost international terrorist outfit at the time. Moreover, his death marked the beginning of an open season on journalists reporting on militancy …. there were many reasons for police and intelligence agencies to build a watertight case against the individuals involved – 2 7, according to details unearthed by two international, highly regarded investigative journalism bodies. As it turned out, only four, including Sheikh, were eventually charged and convicted. Some were killed in ‘police encounters’ while others remained free. Over the course of nearly two decades, several names surfaced as being part of the conspiracy- among them the alleged mastermind of the 9111 attacks, Khalid Sheikh Mohammed … Aside from the Daniel Pearl case, Sheikh is also suspected of having played a role in planning one of the assassination attempts against Gen Musharraf. Indeed, so cunning and resourceful is he that even from behind bars, he attempted to heighten Pakistan-India tensions in the aftermath of the Mumbai attacks by making hoax calls to Pakistan’s then president and chief of army staff. An individual like Omar Saeed Sheikh is a danger to state and society … must bring to book all those responsible for Daniel Pearl’s terrible fate.” This is a voice of reason and sanity and must prevail.