SHC suspends ATC order in Daniel case
KARACHI- The prosecution in the Daniel Pearl murder case on Thursday frustrated attempts of the four accused to obtain video of the gruesome incident, when it secured an order from a division bench of the Sindh High Court (SHC) to suspend the operation of the order of the trial court until June 4.
The anti-terrorism appellate bench of the SHC, comprising Justice Roshan Essani and Justice Sarmad Jalal Osmany, put all respondents on notice for June 4 when the AG Sindh, Raja Qureshi, moved a criminal revision application for suspension of Tuesday’s order of the trial judge for providing the video to the counsel for the accused, but had granted a 72-hour stay to the prosecution.
Raja Qureshi, after emerging from the chambers of Justice Essani, told reporters that while the application would be decided after hearing the parties, trial of the four accused would continue on Saturday.
Apart from Ahmed Umer Saeed Sheikh, Sheikh Mohammad Adil, Syed Salman Saqib and Fahad Nasim, who are facing trial in Hyderabad central jail, were made respondents in the application.
Although a lap-top with the video of the murder was taken to the chambers of Justice Essani by senior officials, the AG said no visuals were shown.
Defending the state’s move, the AG said the prosecution was opposed to providing the tape to the accused because there were fears that it may land in wrong hands and could generate terror and add to the prevailing insecurity and fear in society.
The applicant has claimed that contents of the video reflected a gruesome murder by way of slaughtering which had not only created fear in the minds of the public at large, but if viewed would also create a sense insecurity in the eyes of the general public at large, nationally and internationally.
“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 the same is released, the same could result in the massacre of Muslims and religious sects nationally and internationally”, the AG had 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, stir up violence and interned disturbance or is likely to affect the external affairs of Pakistan.
Defence counsel for the four accused claimed they wanted to subject the video to an expert review.
The video was sent to the US Consulate in Karachi in February after the Wall Street Journal reporter went missing in January.
A dismembered body, believed to be his remains, was found on May 17 at a derelict place in the outskirts of Karachi along the Superhighway and DNA tests to confirm its identity were continuing.
The videocassette was sought at the stage when the prosecution witness had already been subjected to cross- examination on May 16.
It was the contention of the AG that contents of the videocassette, apart from being extremely sensitive, contained serious material, which was neither in the interest of the prosecution nor in the interest of the defence.
He claimed that it was “in the national interest to withhold the release of the video to become a public document, to be viewed by the members of the public at large, nationally and internationally”, if the same was released to the defence.
It was the case of the prosecution that in case the copy of video recording was provided to the defence (though the same had already been viewed on their insistence), and if the same was released at the fag end of the trial, it was likely to create a serious risk to safety of the public.
It was the contention of the prosecution that the request of the counsel for the accused was designed to frighten the general public and thereby prevent them from coming out and carrying on the lawful trail in daily business and disturb civil life, if the same was exhibited from any channels of electronic media.
The revision application was filed under section 435, 561-A, read with ATA 1997 and Article 199 of the constitution.
The trial at Hyderabad was proceeding pursuant to First Information Report (FIR) No. 24/2002, registered at the Artillery Maidan Police Station Karachi South under Section 365-A, 368/302/109/201/120-A/34, read with Section 7 and 8 of the anti-terrorism act 1997.
On May 28, an application was heard by the presiding judge of the anti-terrorism court Hyderabad and upon hearing the same, the trial court had directed the release of the copy of the video-recoding, reflecting the messages in terms of ransom, the appeal of Daniel Pearl to the American government followed by the physical slaughtering of Denied Pearl with a knife whereby his neck had been cut.
The said videocassette was received by an FBI agent at the American Consulate through a source of which was produced and exhibited as article 1 at trial.
An application under section 265-C and 548 Criminal Procedure Code (Cr.P.C), read with Article 87 of the Qanoon-i-Shahadat Order 1984, was moved by the respondents to obtain a copy of the video recording and on the premise that the same was case property, and, therefore, a public property and consequently under section 265-C Cr.PC all the available evidence be made available to the defence before the court.
It was contended that the videocassette prepared through modern devices, during the process of investigation was also a document, and, therefore, the same could be provided to the accused persons.
The contention of the respondents was heard, and vide an order dated April 23, the same was rejected by the trial court on the premise that the order pertaining to three similar applications, moved earlier for the same cause and purpose, had provided that the advocate of the main accused had admitted that he would be satisfied if the remaining items were provided to him other than the video cassette.
It was also Raja Qureshi’s contention that the application for supplying the video cassette was moved again which was also dismissed on April 12 and the last application for the same cause was moved, but with no fresh ground or cogent reasons; and, therefore, the same was also dismissed in the absence of the any provision for review in the Code of Criminal Procedure.
It was specifically ordered on the undertaking of the applicant that the videocassette could be viewed in the open court or in the chambers with the consent of both the parties before recording evidence of the concerned witness if the defence so desired. Consequently, the said video in original, along with the copy, was viewed by the presiding judge, the prosecution team, the defence team, and the accused persons on May 14, in the presence of the PW-12, John Moligan, an FBI agent from the US.
After having viewed the same, the prosecution witnesses were subjected to extensive cross-examination by the defence and yet another application was filed and argued on 28th wherein the presiding judge had directed that a copy of the videocassette be provided.
However, the applicant had on the same day, after the passage of the order, filed an application seeking the stay of the operation of the impugned order and upon hearing the applicant, the presiding judge of the anti-terrorism court at Hyderabad inside Hyderabad Jail stayed the operation of the order for 72 hours.
Raja Qureshi thus moved an application in the SHC, seeking setting aside the trial court’s directions
Source: Dawn
Date:5/31/2002
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