SC dismisses Omar’s plea for transfer of case from Hyderabad
ISLAMABAD- The Supreme Court on Thursday dismissed appeals filed by Ahmed Omar Saeed Sheikh and three other accused persons in the Daniel Pearl kidnap and murder case.
The bench comprised Chief Justice of Pakistan Justice Sheikh Riaz Ahmed, Justice Mian Muhammad Ajmal and Justice Nawaz Abbasi. Advocate General Sindh Raja Qureshi appeared on behalf of the Sindh government.
On May 6, the court had refused to stop the proceedings of the case in Hyderabad and to transfer the hearing back to Karachi. K M Samdani appeared on behalf of Ahmed Omar Seed Sheikh, while Rai Bashir Advocate appeared on behalf of Fahad Naseem, Adil Sheikh and Salman Saqib.
Raja Qureshi submitted before the court a set of documents comprising reports of the sensitive agencies about the security situation in Karachi and its possible repercussions on the trial. The division bench of the Sindh High Court, he said, was justified in withholding the information from the petitioners or their counsel being reports of various intelligence and government departments from where it was gathered by the division bench that there is a threat of blowing up of the premises where the proceedings are taking place and that there is threat of elimination of the prison staff, investigating agency, prosecution team and witnesses.
When the counsel of the petitioners demanded a copy of the reports, Raja Qureshi submitted that it was up to the court to decide whether such sensitive information should be shared with the counsels or not. “It is (the reports), however, undertaken to be produced for consideration of this honourable court who could then exercise its discretion as may be deemed fit and proper in the circumstances of the case,” said Raja Qureshi.
Raja Qureshi also filed a written statement replying to the grounds taken by the petitioners about transfer of case from Hyderabad to Karachi. He submitted that the division bench of the Sindh High Court (SHC) was justified in directing the transfer of the case for trial to a court outside the metropolitan city of Karachi, keeping in view the sensitivity and seriousness of the matter being of a degree which warranted immediate shifting of the venue for the protection of the prosecution team, prosecution witnesses and the investigators of the case.
Raja Qureshi said indeed judicial notice could also be taken by the apex court as to the incidents of bomb blasts in the city of Karachi. As such there has been conscious application of judicial mind by the bench of the high court in the light of the constitutional obligations of providing safety and security to those engaged in the trial by the state.
The advocate general stated that the respondent did not allege any personal bias against the presiding judge, but the order of transfer has been passed by the division bench on the basic principles of criminal jurisprudence that administration of justice requires that no party should be allowed to presume that he would not get proper justice in view of the pressure being exerted by the accused on the presiding judge, as justice should not only be done but should manifestly and undoubtedly be seen to be done.
It was in this perspective that the respondent had raised no objection to the application for transfer made by the petitioner earlier and the same was ordered to be transferred by consent for ensuring and complying with the legal mandate that justice should not only be done but should manifestly and undoubtedly be seen to be done, he added.
He said the government had earlier submitted before the court that in order to demonstrate complete transparency for fair and impartial trial, the state will have no objection if the matter is transferred to any judge from the Court of Arshad Noor but subject to the condition that this action of transfer does not occasion delay in the proceedings scheduled for 22.4.2002 and onwards.
He said based on the investigation of the case, the trial court has proceeded to frame the charge against the petitioners under Section 365-A Pakistan Panel Code (PPC) read with Section 120-A, 109 PPC, Section 302, 201 PPC and Section 7,8 and 11 of Anti-Terrorism Act 1997.
He further submitted that the trial of the petitioner is being conducted by the Special Court constituted under the Anti-Terrorism Act and the Supreme Court may take into consideration that only four petitioners are being tried, whereas there are seven co-accused persons who are reflected as absconders against whom the same charge could have been framed, but as they have yet not been apprehended, the division bench was lawfully justified in observing that Karachi being a very big city would facilitate associates of the accused to put into effect their plans of terrorism to achieve the desired results.
He said the order of transfer is not solely based on the non-submission of rebuttal but is in fact based on overall consideration of all the surrounding circumstances. Raja Qureshi argued that reliance is placed on the legal principle that no party to a judicial proceeding can choose the court of its own choice and it was in this perspective that the respondents had sought transfer of the case for trial to any court outside the city of Karachi. KM Samdani, counsel for Ahmed Omar Saeed Sheikh, submitted that it was for the first time that the state had moved the court for transfer of case. On this the Chief Justice of Pakistan Justice Sheikh Riaz Ahmed observed that it was not the first case.
He said it has been alleged that the accused is threatening the members of prosecution team and investigation officers and advocate general is receiving abusive and threatening calls at his residence not to pursue the case and stop its proceedings.
Samdani said the government has submitted the reason of shifting the case to Hyderabad that Karachi Prison is not a safe place. He questioned that whose duty it is to provide security. The counsel said the court should also see the attitude of the prosecution. He said the investigation officer has been issued a show-cause notice by the judge for misconduct during proceedings.
He said the conduct of the Hyderabad judge had also become objectionable as he is addressing press conferences. Rai Bashir advocate, representing the other accused persons, submitted that the law was not followed while transferring the case from Karachi to Hyderabad.
Source: The News
Date:5/10/2002
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