Order reserved in Pearl video case
KARACHI- The anti-terrorism appellate bench of the Sindh High Court (SHC) reserved on Tuesday order on the prosecution’s application for setting aside the trial court’s order for providing the video cassette showing Daniel Pearl’s murder, to the accused, but at the same time held that the impugned order would remain suspended. The bench comprised Justice S. A. Sarwana and Justice Mujeebullah Siddiqui.
Besides the principal accused, Ahmed Umer Saeed Sheikh, Sheikh Mohammad Adil, Syed Salman Saqib and Fahad Nasim, who are facing trial in Hyderabad Central Jail, are respondents in the application.
While the prosecution’s line of argument was that providing the tape to the accused at this stage would be inexpedient in the public interest, counsel for the accused maintained that it was the case property and being used as an evidence against them. Therefore they must have it to defend their clients. It was all the more necessary because some international websites had put the video for viewing.
When the matter came up, Raja Qureshi, the Advocate-General (AG), Sindh, read out the order of the trial court on earlier two applications in this regard. He tried to convince the court to first watch the video and then decide whether to hand over the recording to the accused.
At this point Justice Siddiqui asked the AG to first argue on whether the accused were entitled or not to be provided the videotape.
Mr Qureshi submitted that the said, “Video is not a document but a crime article and therefore it cannot be given to the accused.” He then referred to section 2 (b) of the Qanoon-i-Shahadat and section 29 of Pakistan Panel Code (PPC) to define what was document.
He also referred to section 8 (1) (c) of the Anti-terrorism Act (ATA) of 1997, which was also one of the sections under which the charge had been framed against the accused.
It was his contention that the above section of the (ATA) made the video to be crime article as it contained a recording of visual images and sound which was threatening and creating a sense of fear and insecurity. It was likely to stir sectarian hatred.
“It is a crime article because it conveys through modern devices the commission of crime and promotes terrorism,” he submitted.
The AG submitted that the said video was delivered at the US consulate two days before Eidul Azha, perhaps to send the message to the world how Muslims treated Jews. That could have generated a backlash against Muslims. Justice Siddiqui intervened, saying this line of argument did not seem to be convincing, perhaps as the video was reportedly on international websites.
The AG argued that the original videotape was displayed through an FBI agent, John Moligan, on May 14 and he was cross-examined on May 16. Both the original and copy were watched by the accused, defence team and prosecution team in the presence of the presiding judge on May 14. Such request had not been made then. What was the purpose of making such a demand when the last prosecution witness, ie, the investigation officer, is to be examined on Wednesday. What would be the justification of providing copy of the crime article which had been returned and taken away by the FBI agent to Washington DC, with the permission of the trial court, he argued.
He also invoked articles 40 and 5 of the constitution. Article 5 deals with loyalty to the state and obedience to the constitution and the law. Article 40 deals with strengthening of bonds with the Muslim world and strengthening international peace.
“The viewing of the video reflecting the slaughtering of an American Jew, Daniel Pearl, would be an instrument of advancing acts of terrorism internationally, and therefore if it is released it could occasion massacre of Muslims and religious sects nationally and internationally,” the AG has contended in the application. He was also opposed to providing the video to the defence because it was “likely to incite hatred and contempt on religious, sectarian, or ethnic basis to stir up violence, or is likely to affect the external affairs of Pakistan.”
When the AG referred to the risk of disclosure to the public at large, nationally and internationally and sectarian hatred, Justice Siddiqui observed that sect is a subdivision of a religion. Jews are not a sect.
“If it is perceived to be between the followers of the two religions, will it fall under sectarian hatred clause section 2 (h),” he asked. Mr Qureshi referred to the definition of sectarian hatred under the (ATA).
Counsel for the accused Abdul Waheed Katpar believed it was a faked video, and said during the cross-examination, the FBI agent had said that science had developed to such a level that such things could be faked.
Source: Dawn
Date:6/4/2002
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