Decision on Omar’s extradition after Musharraf’s return
KARACHI- The question of extraditing the main accused in the Daniel Pearl case, Ahmed Omar Saeed Shaikh, to the United States, and implications of his indictment by the US authorities will be examined at the highest level on return of President Musharraf from his foreign tour, highly- placed sources said here on Friday.
Six days before the Pakistani prosecution could have framed charges against Omar and others to begin the trial, the US Attorney-General, John Ashcroft, announced on Thursday that a grand jury had indicted Omar for the kidnapping and murder of Pearl and abduction of an American in India in 1994.
A meeting of senior officials of the Sindh government had already taken place with the federal authorities in Islamabad after the Sindh High Court granted extension in remand “as a last chance,” the sources said.
Authorities were mindful of Omar’s statement before the administrative judge of the ATC on Tuesday wherein he had maintained that if he was killed in a false encounter at the behest of the USA, the latter would suffer. In this context, they also examined the security of the interned accused and their safety was being augmented.
Asked to state the official position, the Advocate-General Sindh, Raja Qureshi, said the law would take its own course and emphasized that he had no knowledge or instructions, so far, about the decision or otherwise of Omar’s extradition. He said no law of the land would be violated if a decision was made to fall back on the Extradition Act of 1972.
As regards the existence of extradition treaty, Justice Shafiur Rahman in Mohammed Azam Malik Vs Government of Pakistan case had observed that “we find on the record the extradition treaty itself which is dated 26th of December 1931 and it had been ratified by the government of the United States and Great Britain and in the United States Code Annotated, Title 18, Cumulative Annual Pocket Part for use in 1983 are listed bilateral treaties of extradition between the United States and the other governments…” He had also cited the entries in respect of Pakistan.
Talking to the media, the AG had appeared to be confident that the prosecution’s case had been established to make a complete charge and to establish the guilt to arrive at conclusive convictions.
He said experts evidence from the FBI was to be secured, weapons of offence was also to be secured. He said confessional statements of the accused had been recorded, identification parade been held, the petition of the accused (Omar) been disposed of by a division bench of the SHC on the stand taken on behalf of the state that if and when it was decided to extradite him (Omar), that would be done without the violation of the law of the land.
He had further submitted that handwriting expert’s opinion had already been obtained, and the video cassette was under examination by experts and arrest of the absconding accused were yet to be made.
Legal experts however point out the fact that none of the accused had, so far, agreed to become an approver and the investigators had not yet recovered anything from them which was possessed by Pearl, to link them with his kidnapping or murder. Dead body or its remains have not yet been found.
The present case had not yet reached the trial stage. It was still in the investigation stage. It would attain the trial stage once charge had been framed and the judge had taken cognizance of the charges, the experts said.
The legal position was that in case trial of the accused had begun, then the proceedings had to be completed. If conviction had been awarded, it had to be served before he was handed over to another country, they said.
The legal community was concerned whether history would repeat itself like the case of Aimal Kasee and Yousuf Ramzi, or the Pakistan authorities would follow the procedure as was done by the USA while extraditing Admiral Mansoorul Haq (retd).
The counsel for the three co-accused, Khwaja Naveed Ahmed, has taken the position that the US has no territorial jurisdiction to try Omar for the kidnapping and murder of Pearl.
Referring to the indictment by the US authorities, the counsel asked whether or not its purpose was to frustrate the intent and purpose of the clauses of the treaty between Pakistan and the USA?
He said the question lurked in the mind why indictment had been chosen at this stage while it was fully well known that Omar had been involved in the hijacking of an Indian plane.
Question was asked whether the criminal court proceedings could be allowed to compromise sovereignty of the country and whether extraditing one individual could make the remaining accused to wait for being confronted with the rigours of trial.
“You cannot proceed in criminal trial in a piecemeal manner. You cannot exclude the principal accused and proceed with the trial of co-accused alone against whom the maximum charge could be of abetment or sharing common intention with the principal accused. In case you exclude the principal accused, charge on other accused will be difficult to frame,” said Mr Khwaja.
It was also asked whether the same yardstick could be applied for the appreciation of evidence to cases of terrorism and ordinary cases of criminal jurisprudence.
The question was also raised whether the material available with the prosecution in Pakistan was of a nature, which could be admissible in proceedings before a court in the USA. Whether the material available with the FBI would be given preference to the material collected by the investigating agencies in Pakistan?
It was also pointed out whether surrendering a person to be tried by a jury system in a foreign country would be appropriate or otherwise, despite the fact that the jury system in Pakistan had been abolished more than a decade ago.
Saiful Malook, the Lahore-based counsel for Omar, termed the indictment of his client by the US authorities absurd. He was of the view that the indictment of Omar for abducting a US citizen in India was a violation of international law and amounted to double jeopardy. During his captivity in India nothing had been proved against him in the shape of legal evidence, Malook said, adding Omar could not be tried twice for the same offence.
Source: Dawn
Date:3/16/2002
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