IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
PRESENT: 
Mr. Justice Mushir Alam 
Mr. Justice Sardar Tariq Masood 
Mr. Justice Yahya Afridi 
 
 
CRIMINAL APPEALS NO. 599 TO 602 OF 2020 AND 
CRIMINAL PETITIONS NO. 1085 AND 1086 OF 2020 
(On appeal against the judgments judgment dated 2.4.2020 passed by the 
High Court of Sindh, Karachi, passed in Sp. Crl. Anti-Terrorism Appeals 
No.66 & 67, 68/2002 and confirmation case No.12/2002) 
 
 
The State thr. P.G. Sindh 
 
 
 
(Crl. As. No. 599 to 601/2020) 
Ahmed Omar Sheikh 
 
 
 
(Crl. A. No. 602/2020) 
Ruth Pearly wife of Judea Pearl & another 
(Crl. Ps. No. 1085 & 1086/2020) 
 
 
 
 
 
 
 
 
Appellants/Petitioners 
 
 
 
 
      Versus 
Ahmed Omar Sheikh 
 
 
 
(Crl. A. No. 599/2020) 
Fahad Nasim Ahmed and others  
 
(Crl. A. No. 600 to 601/2020) 
The State thr. Prosecutor General Sindh etc. 
(Crl. A. No. 602/2020 and Crl. Ps. 
No. 1085 & 1086/2020) 
 
 
 
 
 
 
 
 
Respondents 
 
 
 
 
 
 
 
 
For the appellant/State: 
Mr. Farooq H. Naek, Sr. ASC 
(Crl. As. No. 599 to 601/2020) 
Dr. Faiz Shah, P.G. Sindh 
and Crl. Ps.No. 1085 & 1086/20, 
Assisted by 
 
 
 
 
Resptd in Crl.A.602/20 and  for  
Ms. Rahat Ahsan, Addl. PG Sindh 
R. No.1 in Crls.1085-1086/20) 
Mr. Hussain Bux Baloch, Addl. PG Sindh. 
 
 
 
 
Mr. Adnan Shuja Butt, ASC 
Mr. Feroze Jamal Shah, ASC 
Mr. Usman Waleed Sh, Advocate 
Mr. Muhammad Kassim Mirjat, AOR 
 
(Crl.As.602/20 also for Respdt 
Barrister Mehmood A. Sh, Sr. ASC  
 
in Crl.A.599/20 and Respdt. 
Mr. Mahmood A. Sheikh, AOR 
R.No.1&3 in Crl.A.600 & 601/20 
Respdt in Crl.P.1085/20 and  
R.No.2 2&3 in Crl.P.1086/20)  
 
 
For the petitioner:   
Mr. Faisal Siddiqui, ASC 
(in Cr.P.1085 & 1086/20)  
Assisted by 
 
 
 
 
Ms. Sheza Ahmed, Advocate 
 
 
 
 
Ms. Amna Anjum, Advocate 
 
 
 
 
Mr. Saad Fayyaz, Advocate 
 
For the Respondents:  
Rai Bashir Ahmed, ASC 
(Crl.Ps.600 & 601/20 &  
 
R-2 & 3 in Crl.P.1086/20) 
 
Date of hearings 
: 
25th Nov. 2020, 1st to 3rd, 8th to 10th, 15th to  
 
 
 
 
17th Dec. 2020, 5th to 7th, 12th to 14th, 19th to  
 
 
 
 
21st, 27th and 28th January 2021.  
 
 
Date of decision 
: 
28-01-2021 
 
- - - - - - - - - 
Crl.As.599-602/2020 etc 
2
JUDGMENT 
 
SARDAR TARIQ MASOOD, J.- Through these criminal appeals 
No. 599, 600 and 601 of 2020 by leave of the Court the State 
through Prosecutor General Sindh has impugned the judgment 
dated 2.4.2020 of the High Court of Sindh, Karachi whereby 
sentence of death and other sentences of imprisonment, awarded 
by the trial Court to Ahmed Omer Sheikh were set aside and he 
was convicted under section 362 of the Pakistan Penal Code (PPC) 
and sentenced to seven years imprisonment whereas his co-
accused were acquitted of all the charges. The parents of Daniel 
Pearl have also impugned the same judgment through criminal 
petitions No. 1085 and 1086 of 2020 against all the respondents. 
Ahmed Omer Sheikh through criminal appeal No.602 of 2020 has 
also impugned the judgment against his conviction and sentence of 
seven years rigorous imprisonment under section 362 PPC.  
2. 
Precise facts of the case are that Fahad Nasim Ahmed, Syed 
Salman Saqib, Sheikh Muhammad Adil and Ahmed Omar Sheikh 
(Respondents in Criminal Appeals No. 599, 600, 601 of 2020, 
Criminal Petition No. 1085 and 1086 of 2020) and Ahmed Omar 
Sheikh (Appellant in Criminal Appeal No. 602 of 2020) were 
indicted in case FIR No. 24/20220 registered at Police Station 
Artillery Maidan, Karachi (South) on 4.2.2002 in respect of the 
offences under section 365-A of the PPC read with section 7(a) of 
the Anti-Terrorism Act, 1997 (ATA). Subsequently, sections 368, 
302, 109, 201, 120-A/34 PPC and sections 7(a), 8(a)(b)(c), 
11/A(a)(b)(c), 
6(2)(b)(c)(e)(f) 
and 
11/H 
(3-4), 
11/V(1)(a)(b)(2), 
11/L(a)(b), 7(a)(b)(2), 11/W(1)(2) and 7 of ATA were added. They 
were tried by the learned Judge Anti-Terrorism Court Hyderabad, 
Crl.As.599-602/2020 etc 
3
Division and Mirpurkhas Division in respect of the offences 
mentioned above. After a full dressed trial, the trial Court vide 
judgment dated 15.07.2002 convicted Ahmed Omar Sheikh under 
sections 365-A, 302 and 120-A PPC read with section 6(a) ATA and 
sentenced him to death under section 7 of ATA, whereas Fahad 
Nasim Ahmed, Syed Salman Saqib and Sheikh Muhammad Adil 
were convicted under the same offences but they were sentenced to 
imprisonment for life. They were directed to pay Rs.5,00,000/- as 
fine or in default thereof to further undergo five years R.I. All the 
four accused were also directed to pay Rs.20,00,000/- jointly to be 
paid by them in equal shares to the widow of Daniel Pearl. The 
sentences of imprisonment were ordered to run concurrently. 
Benefit of section 382-B Cr.P.C. was also extended to them.  
(i) 
All the facts of the case and gist of the evidence had already 
been reproduced by the trial Court in its judgment dated 
15.7.2002 which further have been elaborated through the 
impugned judgment, therefore, in order to avoid duplication and 
repetition, the facts of the case are not being reproduced.     
3. 
Being aggrieved of the judgment of the trial Court, Ahmed 
Omar Sheikh filed Special Crl. Anti-Terrorism Appeal No.66/2002 
before the High Court of Sindh whereas trial Court also sent 
confirmation case No.12/2002 for confirmation or otherwise of the 
death sentence of Ahmed Omar Sheikh.  The respondents Fahad 
Nasim Ahmed, Syed Salman Saqib and Sheikh Muhammad Adil 
had also filed Spl. Crl. Anti-Terrorism Appeal No.67/2002 against 
their convictions and sentences. Whereas the State also filed 
Special 
Criminal 
Anti-Terrorism 
Appeal 
No.68/2002 
for 
enhancement of sentence of Fahad Nasim Ahmed, Syed Salman 
Saqib and Sheikh Muhammad Adil from life imprisonment to 
Crl.As.599-602/2020 etc 
4
death. A Division Bench of the High Court of Sindh at Karachi vide 
impugned judgment dated 2.4.2020 acquitted Fahad Nasim 
Ahmed, Syed Salman Saqib and Sheikh Muhammad Adil from all 
the charges and their convictions and sentences passed by the trial 
Court were set aside. Ahmed Omar Sheikh was also acquitted from 
all the charges, however, he was convicted under section 362 PPC 
and sentenced to seven years R.I. Benefit of section  382-B Cr.P.C. 
was also extended to him, whereas confirmation reference of his 
death sentence was answered in negative. Special Criminal Anti-
Terrorism Appeal No.68/2002, filed by the State for enhancement 
of sentence was also dismissed. Hence the State has filed Criminal 
Appeals No.599 to 601/2020 and Ahmed Omar Sheikh filed 
Criminal Appeal No.602/2002 by leave of the Court granted on 
28.09.2020 to re-appraise the entire evidence. On the other hand, 
Ruth Pearl and her husband Judea Pearl has also filed Criminal 
Petitions No.1085 & 1086/2020 against the impugned judgment of 
the High Court of Sindh.   
4. 
We have heard the learned Special Prosecutor, Prosecutor 
General, counsel of Ruth Pearl and another, learned counsel for all 
respondents and learned counsel for appellant Ahmed Omer 
Sheikh. 
5. 
Ahmed Omar Sheikh and other three were charge sheeted on 
22.4.2002 by the trial Court. The first charge was framed against 
Ahmed Omar Sheikh as under:- 
“that you alongwith absconding co-accused hatched a conspiracy 
on 11.01.2002 in Room No.411, Akbar International Hotel, 
Rawalpindi, to abduct a Jewish American citizen, a professional 
journalist, belonging to the Wall Street General, USA for raising 
demand of ransom”      
 
6. 
In order to prove this charge the prosecution mainly relied 
upon Asif Mehfooz Farooqui (PW-6) and Amir Afzal (PW-7). The 
Crl.As.599-602/2020 etc 
5
prosecution is quite pertinent that conspiracy was hatched up on 
11.1.2002, 
in 
Room 
No. 
411, 
Akbar 
International 
Hotel, 
Rawalpindi. Asif Mehfooz Farooqui (PW-6), was the person who 
tried to manage a meeting of Daniel Pearl with one Pir Mubarak 
Shah Jilani. He went with Daniel Pearl and Arif (since tried 
separately and acquitted subsequently), to the residence of Pir 
Mubarak Shah Jilani, but it was told to them that the said Pir 
Mubarak Shah Jilani, after vacating that house had gone away 
about one month back. He remained in contact with Arif accused 
and ultimately, allegedly, he alongwith Daniel Pearl and Arif met 
with Bashir which according to prosecution was Ahmed Omar 
Sheikh. According to him they remained in Room No.411 for about 
three hours and the only purpose was to arrange a meeting with 
Jilani Sahib. During the trial he did not disclose the source that 
who had referred him to the said Arif. This witness categorically, 
during cross examination, stated that no conspiracy took place in 
Room No. 411 on 11.01.2002. He was not even aware of the 
address of accused Arif. He made improvements while making 
statement in Court and he was duly confronted. Although he 
joined the identification parade but he never prescribed any role of 
conspiracy of Ahmed Omar Sheikh while identifying him in the 
identification parade. This witness had not uttered a single word of 
conspiracy on the said date in Room No. 411, rather he denied the 
factum of hatching of any conspiracy there. Nobody from 
prosecution had alleged the hatching of conspiracy by the accused 
person. So the prosecution has failed to establish any conspiracy 
between Ahmed Omer Sheikh and Muhammad Arif accused 
regarding the abduction of Daniel Pearl.  
Crl.As.599-602/2020 etc 
6
7.  
In order to prove that Ahmed Omar Sheikh stayed in Hotel 
Akbar International on 11.01.2002 in Room No.411, the 
prosecution produced Amir Afzal (PW-7), claiming that he was a 
receptionist at Akbar International Hotel. He produced photo 
copies of certain documents. On Exhibit 10/1, the name of waiter 
is not mentioned. On Exhibit 10/2 the position is same and the 
said column of waiter is also left blank. Even on Exhibit 10/3 the 
Room number is not mentioned. He admitted that N.I.C. was given 
by Muzaffar Farooqui @ Ahmed Omar Sheikh but copy of the said 
ID card was never retained. Even the NIC number was not 
mentioned in the record. He did not bring the record of the ledger 
account in the Court. The author of the said documents was not 
produced. In his statement before the police he had stated that 
Room No.417 was booked by Muzaffar Farooqui whereas in the 
Court he claimed that it was Room No.411. He was duly confronted 
with his previous statement recorded under section 161 Cr.P.C. 
where Room No.417 was specifically mentioned. He never claimed 
in his statement under section 161 Cr.P.C. that he could identify 
Muzaffar Farooqui.  He had not stated in his statement under 
section 161 Cr.P.C. that a foreigner had a meeting with Muzaffar 
Farooqui. He did not produce any proof of his service in the Akbar 
International Hotel. He admitted that no statement from the 
management side was recorded by the police proving his 
appointment as Receptionist. The said witness also produced some 
Cash Memos but had not produced the Customer Register where 
all particulars of the customers staying there including name of 
customer, his parentage, ID Card number, Room number,  time of 
arrival and departure etc is mentioned. The address of Muzaffar 
Farooqui is mentioned in Exhibit 10/4 as 18-Nishtar Block, 
Crl.As.599-602/2020 etc 
7
Lahore. The Cash Memo (Exhibit 10/3) shows that Muzaffar 
Farooqui was occupying Room No. 5 and not 411. Although the 
exact address of Muzaffar Farooqui was mentioned on Exhibit 
10/4 but the Investigating Officer, Rao Muhammad Aslam (PW-22) 
did not visit the said address i.e. 18-Nishtar Block, Lahore. The 
said witness claimed that he was receptionist of Akbar 
International Hotel, Rawalpindi but on a question he categorically 
stated that he even does not know the area in which the said Hotel 
was situated. This answer clearly indicates that a false witness was 
introduced as receptionist, to prove the factum of conspiracy in 
Room No. 411 of the said Hotel which was completely denied by 
Asif Mehfooz Farooqui (PW-6).  
(i) 
Amir Afzal (PW-7) never joined any identification parade to 
identify Ahmed Omar Sheikh as Muzaffar Farooqui. There is no 
explanation on record as to why identification parade of Ahmed 
Omar Sheikh was not arranged through this witness. Non- 
arranging of such identification parade had lost the veracity of the 
statement of this witness. Although this witness identified the 
accused in the Court but identification in the Court has no value 
because said witness appeared as PW-7 and prior to that six 
witnesses were examined by the prosecution and on each occasion 
the accused was brought with open face and the witness had all 
opportunity during this time to see the accused in Court. Even 
prior to that the accused was brought many a times before the 
Court during physical and judicial remand and there is every 
opportunity to every one to see him with open face. So the 
identification in the Court, by this witness, has no persuasive 
value. The prosecution failed to prove any conspiracy between 
Ahmed Omar Sheikh and his absconding co-accused Arif in Room 
Crl.As.599-602/2020 etc 
8
No. 411 in Akbar International Hotel, Rawalpindi in presence of 
Asif Mehfooz Farooqui (PW-7). 
8. 
The definition of criminal conspiracy under section 120-A 
PPC clearly indicates that two or more persons, if agree to do or 
cause to be done an illegal act or act which is not legal by illegal 
means, such an agreement is designated as criminal conspiracy. 
The punishment for conspiracy is given under section 120-B of the 
Pakistan Penal Code. So it is to be established by the prosecution 
that prior to the commission of offence two or more persons had 
entered into an agreement for committing an un-lawful offence. As 
already discussed, the statement of witness does not indicate that 
before hatching the conspiracy the accused entered into an 
agreement, written or oral, to do an illegal act and the crime was 
committed in pursuance of a conspiracy by the accused. To 
constitute a conspiracy meeting of two or more persons for doing 
an illegal act through illegal means is the primary condition. To 
ascertain conspiracy it has to be seen and keep in mind by the 
Court that the evidence, concerning each and every circumstance, 
must clearly be established by reliable evidence. There should be a 
prima facie evidence affording a reasonable ground for the Court to 
believe that two or more persons are member of the conspiracy and 
conspiracy consists not merely in the intention of two or more 
persons but in an agreement of two or more persons to do an 
unlawful act.    
       
9. 
In this case, the other person Hashim @ Arif S/o Qari Abdul 
Qadeer, who allegedly was one of the conspirator in Room No. 411 
alongwith Muzaffar Farooqui, was declared proclaimed offender 
when Ahmed Omar Sheikh and other three accused were being 
Crl.As.599-602/2020 etc 
9
tried. It was the prosecution case at that time that said Arif was 
the person who was part of the agreement with Ahmed Omar 
Sheikh in hatching of a conspiracy. The learned counsel appearing 
on behalf of the State admitted that said Arif was subsequently 
arrested and was tried separately and on 23.10.2014, he was 
acquitted by the trial Court.  The learned Prosecutor General, 
present in Court, categorically concedes that no appeal against his 
acquittal was ever filed. So his acquittal attained finality and story 
of hatching conspiracy of Ahmed Omar Sheikh @ Muzaffar 
Farooqui with him is falsified. The learned Division Bench of the 
High Court while discarding the charge of conspiracy against all 
the accused persons, had rendered valid reasons which are not 
open to any exception.  
(i) 
Although certain judgments qua conspiracy have been 
produced before us from either side but it is now settled that each 
criminal case is to be decided having regard to its own peculiar 
facts and circumstances. A test to be essentially applied in one 
case may absolutely be irrelevant in another, as the crimes are 
seldom committed in identical situations. The criminal cases are to 
be decided on their peculiar facts and circumstance as such the 
rules laid down in the earlier cases cannot be applied in the 
subsequent cases in the ‘Omnibus’ manner.  In this behalf reliance 
can be made upon the cases of Khan alias Khani and another vs. 
the State (2006 SCMR 1744), Imtiaz Ahmad vs. the State (2001 
SCMR 1334), Syed Saeed Muhammad Shah and another vs. the 
State (1993 SCMR 550) and Allah Wadhayo and another vs. the 
State (2001 SCMR 25).     
10. 
According to prosecution and the FIR the occurrence took 
place on 23.1.2002 whereas report was lodged on 4.2.2002 at 
Crl.As.599-602/2020 etc 
10 
11:45 pm. i.e. the last hour of the day. Prior to that Mrs. Daniel 
Pearl has received email on 27-1-2002, including photographs 
showing her husband held in detention. She also received another 
email subsequently on 30-1-2002 through which her husband was 
threatened to kill within 24 hours, if the demands were not 
fulfilled. She did not report the matter when she received emails 
containing photographs of her husband while he was held in 
detention or even when she was threatened that her husband 
would be murdered within 24 hours. Her husband was under the 
thick clouds of danger but she kept quite for long twelve days, 
which cannot be overlooked merely because of gravity of the 
offence. Mrs. Daniel Pearl did not lodge the crime repot promptly 
and the matter was deferred till 4.02.2002, indicating that till that 
time consultation and deliberation was going on and FIR was 
chalked out after such consultation and deliberation, loosing its 
evidentiary value and creating serious doubt upon the prosecution 
story.      
11. 
It was the case of Nasir Abbas (PW-1) that he on the asking 
of Faisal Afridi, another taxi driver, picked up a foreigner from Zam 
Zama street who was standing in front of his bungalow, where two 
ladies were also present, out of them one was foreigner, showing 
that Daniel Pearl was taken away from outside of his house by the 
Taxi Driver Nasir Abbas (PW-1) in presence of the complainant 
(Mst. Daniel Pearl) and another lady but surprisingly the FIR, 
which was chalked out on 04.02.2002, is silent regarding this 
episode.  According to Nasir Abbas (PW-1) he had dropped the said 
foreigner in front of Village Restaurant after Maghrab prayer at 
about 7:00 pm. Subsequently on 5.2.2002 said Nasir Abbas (PW-1) 
while making statement under section 161 Cr.P.C. claimed that in 
Crl.As.599-602/2020 etc 
11 
his presence the said foreigner sat in a Toyota Corolla car after 
shaking hand with another person who had de-boarded from the 
said Toyota Corolla car. He categorically stated that on the 
following day i.e. 24.1.2002, he narrated all these facts to Mrs. 
Daniel Pearl, but surprisingly, the fact of shaking hand with the 
person who had de-boarded from Toyota Corolla car and going 
away with him in the said car is not mentioned by Mrs. Daniel 
Pearl while lodging the FIR. This aspect of the case clearly 
indicates that the Toyota Corolla car and shaking hand of Denial 
Pearl with the person who de-boarded from said Toyota Corolla 
was an afterthought story which was invented on 5.2.2002 i.e. 
after thirteen days of alleged abduction. It is also a circumstance 
that despite receiving threatening emails and photographs showing 
the captivity of Daniel Pearl, she did not lodge the report promptly 
and the matter was reported to police on 4.2.2002. Non-
mentioning of important facts while lodging the FIR is also a 
circumstance indicating that subsequently false story was 
fabricated. Had the story of going of Daniel Pearl with a person 
who de-boarded from a Toyota Corolla car was in existence then 
the same must have been mentioned in the FIR particularly when 
Nasir Abbas (PW-1) claimed that he had given the details of this 
episode of last seen to Mrs. Daniel Pearl. The last seen evidence 
was available with Mrs. Daniel Pearl, well before lodging the FIR 
but was not mentioned therein which create serious doubt 
regarding this piece of evidence.  
12. 
It is a circumstance that it was Faisal Afridi, another Taxi 
Driver, who booked the Taxi of Nasir Abbas (PW-1) as family of 
Daniel Pearl need two Taxis, one for Daniel Pearl and the other for 
Mrs. Daniel Pearl and another lady. Said Faisal Afridi never came 
Crl.As.599-602/2020 etc 
12 
forward to make statement to this affect. His evidence was 
withheld by the prosecution and an adverse presumption can be 
drawn against prosecution in view of Article 129(g) of Qanoon-e-
Shahadat Order, 1984 (Order 1984).  
(i) 
It was the case of the prosecution that it was Faisal Afridi 
who after 23-1-2002, when Daniel Pearl went missing, contacted 
Nasir Abbas (PW-1).  Nasir Abbas categorically admitted that when 
Faisal Afridi asked him about the whereabouts of said foreigner, he 
did not disclose the facts of last seen to Faisal Afridi. Had Nasir 
Abbas seen departure of Daniel Pearl with the accused in Toyota 
Corolla car, he must have told this fact to Faisal Afridi upon his 
inquiry. So it is quite clear that the said story of last seen was 
introduced on 5.2.2002, after arresting Nasir Abbas as suspect 
and thereafter his statement under section 161 Cr.P.C. was 
recorded regarding last seen. So the last seen evidence was not in 
existence, prior to 5.2.2002, that was the reason that same was 
not disclosed to any one by Nasir Abbas (PW-1) prior to 5.2.2002 
and this fact is further strengthened from the fact that this piece of 
evidence is missing in the FIR, creating serious doubt regarding 
this piece of evidence.    
13. 
Learned counsel appearing for the parents of Daniel Pearl 
states that the delay in lodging the FIR can be explained by Mrs. 
Daniel Pearl and non-mentioning of the last seen evidence in the 
FIR, is also explainable by her but surprisingly the evidence of 
Mrs. Daniel Pearl was also withheld. She was an important 
witness. She is the lady who allegedly received emails on 27.1.2002 
and 30.1.2002. She did not explain in the FIR as to from which 
Laptop/Computer she received the said emails. Allegedly she 
handed over the copies of the said emails to the police and same 
Crl.As.599-602/2020 etc 
13 
were 
taken 
into 
possession 
through 
a 
Mushirnama, 
but 
surprisingly said Mushirnama was not signed by her. The FIR is 
silent regarding the above queries regarding emails. She never 
produced the Laptop/Computer through which she received the 
emails. The prosecution even did not produce any person who 
might have delivered the said emails to her. So withholding her 
evidence and her non-appearance is a circumstance indicating that 
till lodging of FIR the story of last seen was not in existence and till 
that time the only information with Mrs. Daniel Pearl was that the 
taxi driver dropped him in front of Village Restaurant. It is also a 
circumstance that during investigation the Police Officer, especially 
the Investigating Officer, tried to meet Mrs. Daniel Pearl but could 
not make contact with her. Even he visited the house of Mrs. 
Daniel Pearl but she did not come out from her house. So one 
thing is quite clear that subsequently she did not join the 
investigation 
despite 
many 
efforts 
made 
by 
Hameedullah 
Memon/IO (PW-23) to join her into the investigation. It was only 
Mrs. Daniel Pearl who could have produced the source or 
Gadget/Computer on which the said email was received. Her 
Computer or Computer of any other person through which said 
emails were received to her, could have led to the Computer from 
which these emails were originated and were received. She did not 
come forward even to join the investigation to support the 
prosecution version. During trial she made request that her 
statement be recorded through commission. She ensured that she 
will appear before the Court with the permission of the doctor, but 
it was the prosecution who ultimately given her up under the 
pretext of her pregnancy. The accused party has also filed 
application under section 540 Cr.P.C. for summoning the said 
Crl.As.599-602/2020 etc 
14 
witness to which prosecution opposed and ultimately she was 
given up. The prosecution can made application for postponing the 
trial till the recovery of Mrs. Daniel Pearl and her availability but 
even such effort was not made. She was the most important 
witness. She being complainant could have explained that how she 
has received the emails, from where she collected those emails, she 
could also produce the Computer through which she or anyone 
else had received the emails. Although she handed over the said 
emails to the Police but she did not come forward to support the 
said facts and even she did not sign the Mushirnama of said 
emails. The said star witness, after lodging of the FIR and handing 
over the emails to the police, never joined the investigation and 
never supported the case of prosecution and her evidence was 
totally withheld by the prosecution. An adverse presumption can 
easily be drawn against prosecution that had she appeared in 
Court, she would have not supported the prosecution version. The 
delay in lodging of the FIR for 12 days and withholding the 
evidence of such important witness, are the circumstances, 
creating serious doubt on the prosecution story, qua last seen and 
abduction. 
14. 
So far abduction of Daniel Pearl is concerned the 
prosecution has mainly relied on two witnesses namely Nasir 
Abbas (PW-1) and Jameel Yousaf (PW-2). Nasir Abbas claiming 
himself to be a taxi driver and denied to be a police official but 
Hameedullah Memon (PW-23) categorically mentioned while 
making statement in the court that he searched H.C. Nasir Abbas, 
driver. This fact clearly indicates that prosecution produced a 
police employee by posing him as a taxi driver and that was the 
reason he was not aware of locations of certain places which being 
Crl.As.599-602/2020 etc 
15 
a taxi driver he should have known. He admitted that he was not 
aware of the location of Laxon Building. He again said that he was 
not aware of the location of CPLC Secretariat. This fact clearly 
indicates that he was a made up taxi driver by the prosecution. It 
is a circumstance that he was arrested on 5.2.2002 and thereafter 
his statement under section 161 Cr.P.C. was recorded as a witness 
in this case. He being a prosecution witness appeared as PW-1 and 
claimed that he dropped a white passenger in front of Village 
Restaurant and on the rear side of Metropole Hotel. According to 
him, he dropped the said person at 7:00 pm. He also admitted that 
during those days Maghreb prayer was offered at about 6 pm. So 
inference can be drawn that darkness had prevailed. It was the 
duty of the prosecution to show the source of light at the place of 
occurrence, in the Mushirnama which was prepared on 5.2.2002 
after about twelve days of dropping of foreigner on the rear side of 
the Metropole Hotel. The said Mushirnama is also silent regarding 
any source of light at the place of occurrence. No site plan was 
prepared of the place of alleged abduction to indicate any source of 
light there. Although the said witness improved his version while 
making a volunteer statement that light was available there but 
this improvement was an attempt to cover up said lacuna. He was 
never shown the photograph of Daniel Pearl to identify as to 
whether the said foreigner was actually Daniel Pearl or not. He did 
not disclose the feature of the person, with whom foreigner had 
gone, to Mrs. Daniel Pearl or anyone else, hence any subsequent 
identification has lost its value as held in the case of Mian Sohail 
Ahmed and others vs. the State and others (2019 SCMR 956) . The 
claim of this witness till 5.2.2002 was that he simply dropped the 
foreigner in front of Village Restaurant and nothing else. He did not 
Crl.As.599-602/2020 etc 
16 
disclose this important piece of evidence to Faisal Afridi when he 
inquired from him on 24.1.2002 about the foreigner. He simply 
told him that he dropped him in front of Village Restaurant. It is a 
circumstance that till 4.2.2002 the stance of Mrs. Daniel Pearl was 
that Nasir Abbas told him that he dropped the foreigner in front of 
Village Restaurant and she mentioned the same fact after about 
twelve days of the alleged abduction and did not mention this 
important piece of evidence of last seen in the company of the 
accused in the FIR. If any person in routine inquires from any 
person regarding departure of a person whom he had taken away 
then the facts that where he dropped him or from where he was 
taken away by any other person, must have been disclosed by that 
person. As this important piece of evidence was not mentioned in 
the FIR so out of necessity Nasir Abbas claimed that he had 
disclosed the evidence of last seen to Mrs. Daniel Pearl. Had such 
disclosure was made, Mrs. Daniel Pearl must have mentioned the 
same in the FIR. Non-mentioning of the important piece of 
evidence of last seen in the FIR clearly negated the version of Nasir 
Abbas regarding last seen evidence which for the first time was 
recorded in his statement on 5.2.2002 that too after his arrest in 
the police station. So no reliance can be placed on such piece of 
evidence. If he had seen the foreigner going alongwith someone in a 
Toyota Corolla car, he should have informed this fact to Faisal 
Afridi who, for the first time, contacted him and asked regarding 
the whereabouts of said foreigner. Had the foreigner, as alleged by 
prosecution, been abducted or taken deceitfully in presence of this 
witness, it would have been expressly mentioned in the FIR as 
while lodging the FIR Mrs. Daniel Pearl also referred the disclosure 
of Nasir Abbas regarding dropping of foreigner in front of Village 
Crl.As.599-602/2020 etc 
17 
Restaurant. The arrest of Nasir Abbas prior to his making 
statement under section 161 Cr.P.C. also indicate that he became 
a false witness under the coercion and threat by the investigating 
officer and he also lost his credibility on this score only.  
(i). 
Daniel Pearl before dropping in front of Village Restaurant 
had visited the office of Jameel Yousaf (PW-2) and there he received 
calls on his cell phone and he assured the caller on the telephone 
that he is aware of his appointment at 7:00 pm. He confirmed his 
appointment and told the caller on the other side that he was very 
close to the office of the caller. So the said call clearly indicates 
that from the office of Jamil Yousaf (PW-2) Daniel Pearl had to go 
to some office where he had an appointment. Jamil Yousaf (PW-2) 
collected the call data from Mobilink and got information that the 
said calls were made from mobile phone having number 0300-
2170244. The alleged call data of Daniel Pearl shows that he also 
received a call from 7:11 pm to 7:15 pm (after his alleged 
abduction) from an unknown number and the prosecution never 
investigated as who was on the said unknown number which 
normally is used by the agencies. Jamil Yousaf (PW-2) claimed that 
he inquired from Mrs. Daniel Pearl regarding phone number 0300-
2170244 and according to her the said number was of Imtiaz 
Siddiqui, a proclaimed offender having family relations, as his 
mobile number was even known to the wife of Daniel Pearl. The 
said facts clearly indicate that Daniel Pearl had an appointment 
with Imtiaz Siddiqui in his office which was near to the office of 
CPLC and who was in contact with Daniel Pearl. So the story of 
abduction by an unknown person through deceitful mean was 
never brought on the surface prior to twelve days of his alleged 
abduction which fully indicate that said piece of evidence was 
Crl.As.599-602/2020 etc 
18 
created on 5.2.2002, that too after the arrest of Nasir Abbas (PW-1) 
as suspect so no reliance can be placed on the statement of Nasir 
Abbas (PW-1) for conviction with regard to abduction, as done by 
the Division Bench of the High Court. The above important aspects 
of the case have totally been ignored by the High Court while 
convicting Ahmed Omer Sheikh under section 362 PPC which is 
not a penal section rather it was just a definition of abduction. The 
High Court had not pinpointed the penal section under which the 
conviction was passed as under section 362 PPC no sentence was 
provided. So convicting and sentencing under section 362 PPC was 
also not warranted rather illegal because prosecution failed to 
prove the alleged abduction of Daniel Pearl.  
15. 
The prosecution also alleged that Denial Pearl was 
subsequently murdered and the charge was also framed to that 
extent. For proving the murder one video clip/tape was produced 
during the evidence through John Molligan (PW-12). According to 
him he was briefed in connection with this case on 01-2-2002. He 
claimed that said video clip/tape (Article-1) was delivered to him in 
Sheraton Hotel, Karachi, by someone. He had not disclosed the 
source, even the nationality of the said source was not disclosed by 
him. The original video clip/tape was never produced during the 
trial and it was Johan Molligan (PW-12) who prepared four copies 
of the said video clip/tape and delivered one copy to the 
investigating agents. Admittedly in this video clip/tape the pictures 
of respondents are not shown, only one hand was shown while 
slaughtering the neck of Denial Pearl and then holding his head. 
The said hand does not lead to identity of anyone. Even otherwise, 
the said video does not lead to any identity of the culprits. The said 
video clip/tape was delivered to Johan Molligan (PW-12) on 
Crl.As.599-602/2020 etc 
19 
21.2.2002, when all the four accused were already in police 
custody. It is a circumstance that no forensic analysis of the said 
video clip/tape was ever carried out nor any report of expert was 
ever produced by the prosecution. If original video clip/tape was 
delivered to the Investigating Officer then the forensic test could 
have been done. The original clip/tape was willfully withheld by 
John Molligan (PW-12) and an adverse presumption can be drawn 
that the said clip was the result of camera trick. It was not 
established by the prosecution that as to when and by whom the 
original video clip was prepared, so there is possibility that the 
same was prepared in the lab or some film studio. In absence of 
any forensic report about the genuineness or otherwise of the said 
video clip, no reliance can be placed on such piece of evidence as 
held in the case of Asfandyar and another vs. Kamran and another 
(2016 SCMR 2084). 
(i) 
The guidelines to prove an audio or video in the Court are 
elaborated in the case of Ishtiaq Ahmed Mirza and others vs. 
Federation of Pakistan (PLD 2019 SC 675). After referring 
numerous judgments on the point following guidelines were 
incorporated in the said judgment. Relevant para is reproduced as 
under: 
“11.  The precedent cases mentioned above show that in the 
matter of proving an audio tape or video before a court of law the 
following requirements are insisted upon: 
*     No audio tape or video can be relied upon by a court until 
the same is proved to be genuine and not tampered with or 
doctored. 
*     A forensic report prepared by an analyst of the Punjab 
Forensic Science Agency in respect of an audio tape or 
video is per se admissible in evidence in view of the 
provisions of section 9(3) of the Punjab Forensic Science 
Agency Act, 2007. 
*     Under Article 164 of the Qanun-e-Shahadat Order, 1984 it 
lies in the discretion of a court to allow any evidence 
becoming available through an audio tape or video to be 
produced. 
Crl.As.599-602/2020 etc 
20 
*     Even where a court allows an audio tape or video to be 
produced in evidence such audio tape or video has to be 
proved in accordance with the law of evidence. 
*     Accuracy of the recording must be proved and satisfactory 
evidence, direct or circumstantial, has to be produced so as 
to rule out any possibility of tampering with the record. 
*     An audio tape or video sought to be produced in evidence 
must be the actual record of the conversation as and when 
it was made or of the event as and when it took place. 
*     The person recording the conversation or event has to be 
produced. 
*     The person recording the conversation or event must produce 
the audio tape or video himself. 
*     The audio tape or video must be played in the court. 
*     An audio tape or video produced before a court as evidence 
ought to be clearly audible or viewable. 
*     The person recording the conversation or event must identify 
the voice of the person speaking or the person seen or the 
voice or person seen may be identified by any other person 
who recognizes such voice or person. 
*     Any other person present at the time of making of the 
conversation or taking place of the event may also testify in 
support of the conversation heard in the audio tape or the 
event shown in the video. 
*     The voices recorded or the persons shown must be properly 
identified. 
*     The evidence sought to be produced through an audio tape 
or video has to be relevant to the controversy and otherwise 
admissible. 
*     Safe custody of the audio tape or video after its preparation 
till production before the court must be proved. 
*     The transcript of the audio tape or video must have been 
prepared under independent supervision and control. 
*     The person recording an audio tape or video may be a 
person whose part of routine duties is recording of an audio 
tape or video and he should not be a person who has 
recorded the audio tape or video for the purpose of laying a 
trap to procure evidence. 
*     The source of an audio tape or video becoming available has 
to be disclosed. 
*     The date of acquiring the audio tape or video by the person 
producing it before the court ought to be disclosed by such 
person. 
*     An audio tape or video produced at a late stage of a judicial 
proceeding may be looked at with suspicion. 
*     A formal application has to be filed before the court by the 
person desiring an audio tape or video to be brought on the 
record of the case as evidence.” 
 
In view of above guidelines, in the present case, the piece of 
evidence i.e. video clip is not worthy of reliance and the High Court 
has rightly discarded this piece of evidence while assigning valid 
reasons.     
Crl.As.599-602/2020 etc 
21 
 
(i) 
The learned counsel for parents of Daniel Pearl argued that 
the defence counsel summoned the body of Daniel Pearl when it 
was flashed in the news paper that his dead body was recovered 
from a grave in a courtyard. Although the said postmortem report 
was summoned on the application of the defence but the said 
postmortem report was of an unknown person whose parentage 
and other particulars were not known. It is also not brought on 
record by the prosecution that as to how and on whose pointation 
the said dead-body was recovered. No effort was made by the 
prosecution to produce the doctor who conducted the postmortem 
and prepared the report. At this stage, learned counsel for parents 
of Daniel Pearl cannot claim that the flaws and lacunas left by 
prosecution due to their negligence be filled by invoking 
jurisdiction under section 428 Cr.P.C. The Courts remain impartial 
and they are not meant to fill up the lacunas/gaps and other 
infirmities left by either party. So prosecution remained fail to 
establish the factum of murder through cogent evidence.  
16. 
So far the confession or admission of Ahmed Omar Sheikh 
before the police personnel i.e. Faisal Noor, Inspector CIA (PW-4), 
Ather Rasheed Butt, DSP (PW-5), Rao Muhammad Aslam, 
Inspector (PW-22) and Hameedullah Memon, Inspector (PW-23) is 
concerned, the same was objected to when these witnesses 
appeared during trial and claimed that accused Ahmed Omar 
Sheikh made admission regarding the guilt of offence in their 
presence when he was produced before Mr. Arshad Noor Khan, 
Administrative Judge, Anti-Terrorism Court Karachi, on 14.2.2002. 
According to them, the accused disclosed these things to the judge 
in their presence. The objection regarding Articles 38 and 39 of the 
Crl.As.599-602/2020 etc 
22 
Order 1984, was not decided then and there. All the four witnesses 
who were police officials claimed that the accused Ahmed Omar 
Sheikh while in police custody made confession in their presence. 
Articles 38 and 39 of the Order 1984 are quite clear on the subject 
and such admission, in view of the above said Articles, is 
inadmissible. Both the Articles of the Order 1984 are re-produced 
as under : - 
“38.  Confession to police-officer not to be proved.- No 
confession made to a police-officer shall be proved as against a 
person accused of any offence.  
39. 
Confession by accused while in custody of police not 
to be proved against him.- Subject to Article 40, no confession 
made by any person whilst he is in the custody of a police-officer, 
unless it be made in the immediate presence of a Magistrate, 
shall be proved as against such person.”  
17. 
In the present case admittedly, the admission of Ahmed 
Omer Sheikh was before the police and whether he made any 
admission before the Administrative Judge, is not supported by the 
order of the judge nor the said Judge came forward to confirm 
such admission. Admittedly, at that time, he was in police custody 
and was handcuffed.  Any confession, even recorded under section 
164 Cr.P.C. will become invalid if the accused is produced before 
the Magistrate remained in handcuff while making such 
confession.   
18. 
The plain reading of the above quoted Articles clearly 
indicate that confession made by any person while he is in custody 
of the police officials shall not be proved as against a 
person/accused of any offence.  Learned counsel for parents of 
Daniel Pearl tried to argue that in the presence of the 
Administrative Judge the said words regarding admission were 
uttered by the accused but the orders on the remand paper, 
passed by the learned Administrative Judge does not find mention 
Crl.As.599-602/2020 etc 
23 
any of such admission made by Ahmed Omar Sheikh. The said 
Administrative Judge was never produced by the prosecution to 
prove such admission or confession. Although the order written by 
the Administrative Judge contains certain other conversation made 
by Ahmed Omar Sheikh with the Judge as he asked the learned 
judge for providing him medical treatment including the medicines, 
but order is silent regarding any utterance of Ahmed Omar Sheikh 
qua his admission. Earlier the defence filed an application to the 
High Court for transfer of the case from the Court of Mr. Arshad 
Noor Khan as according to depositions of PW-4, PW-5, PW-22 and 
PW-23, the said Judge became a witness. The prosecution 
conceded before the High Court and the case was transferred to 
another judge. Application for summoning of the said judge was 
filed to make statement in the Court. The said Administrative 
Judge (Mr. Arshad Noor Khan) was summoned and he appeared 
before the Court on 22.5.2002, for making statement but the 
prosecution refused to produce him as witness and categorically 
stated that they do not want to produce him. Learned counsel for 
parents of Daniel Pearl tried to argue that in view of Article 4 of the 
Order 1984, the said witness was not produced. The said witness 
while granting remand was acting as a Magistrate and in that 
eventuality he was subordinate to the trial judge. The trial Judge 
has summoned him for evidence, in that situation, giving him up 
by the prosecution under the garb of Article 4 of the Order 1984, 
amounts to withholding a most important evidence and under 
Article 129(g) of the Order 1984, an adverse presumption can be 
drawn against the prosecution and it can easily be presumed that 
he would have not supported the version put forwarded by PW-4, 
PW-5, PW-22 and PW-23. Even Article 4 of the Order 1984, does 
Crl.As.599-602/2020 etc 
24 
not bar to appear as witness but give an opportunity to the 
Magistrate or the Judge to take privilege not to answer any 
question put to him and then Article 4 of the Order 1984 will be 
operative. Otherwise, if he does not claim privilege he can give 
evidence as there is no bar under the said Article for making 
statement. He even without any permission can be examined as to 
the matter which occurred in his presence while he was so acting 
as Magistrate or Judge. So the evidence of Administrative Judge 
was willfully withheld by the prosecution with malafide and not 
bonafide as claimed by the learned counsel for the parents of 
Denial Pearl. Non examination of Mr. Arshad Noor Khan and non-
mentioning of any admission or confession in the remand order is 
sufficient to discard the evidence of PW-4, PW-5, PW-22 and PW-
23. Articles 38 and 39 of the Order 1984, rendered the statement 
of these four PWs, inadmissible to the extent of alleged 
admission/confession of Ahmed Omar Sheikh.  
19. 
In this case the date of arrest of Fahad Nasim Ahmed, Syed 
Salman Saqib and Ahmed Omar Sheikh remained controversial as 
according to the Investigating Officer the emails were sent from the 
system/link provided to Sheikh Naeem (PW-14) and on the night of 
10/11 February 2002, on the pointation of said Sheikh Naeem 
(PW-14), Fahad Nasim Ahmed was arrested and a DELL laptop 
with hard-disk alongwith other articles i.e. copies of email two 
manuscripts in Urdu and English etc. were recovered from his 
residence and on the same night another accused namely Syed 
Salman Saqib was arrested and certain recoveries were effected.  
The claim of the Investigating Officer regarding the arrest of the 
accused persons and recovery of DELL Laptop on 11.2.2002 is 
totally negated from the statement of Ronald Joseph (PW-8) who 
Crl.As.599-602/2020 etc 
25 
categorically stated that the said Laptop was available in the US 
consulate on 4.2.2002 and he obtained the same on the same day 
from there. The report of said Ronald Joseph (PW-8) clearly 
indicate that he started examining the said Laptop on 7.2.2002. So 
how the Laptop which was already available in the US consulate 
on 4.2.2002 could be recovered from Fahad Nasim Ahmed on 
11.2.2002. In order to meet the contradiction regarding the arrest 
of the accused persons learned Special Prosecutor General and the 
Prosecutor General argued that Ronald Joseph (PW-8) has given a 
wrong date inadvertently. This argument has no force as Ronald 
Joseph, in his report, categorically mentioned that Laptop was 
delivered to him from the lock-room of the US consulate and he 
received the same from there on 4.2.2002. Even in his expert 
report, it is specifically mentioned that he started examining the 
said Laptop on 7.2.2002. So one thing is quite clear that much 
prior to the arrest of Fahad Nasim Ahmed and alleged recovery of 
Laptop the same Laptop was available with Ronald Joseph (PW-8). 
Learned counsel for the parents of Daniel Pearl advanced another 
argument which was contrary to the prosecution version. 
According to him actually the accused were arrested on 4.2.2002 
and Laptop was recovered from them but the Police Officer has 
shown their arrest late i.e. 11.2.2002. On query, he admitted that 
although accused were in illegal detention but in such high profile 
case such illegal detention can be ignored. This argument of the 
learned counsel is sufficient to throw out the whole prosecution 
case because none of the witnesses has ever claimed that the 
accused were arrested on 4.2.2002 or the Laptop which was used 
for sending emails was ever recovered from the accused on 
4.2.2002 or prior to that. Even the arrest of Ahmed Omar Sheikh 
Crl.As.599-602/2020 etc 
26 
shown as 13.2.2002 is also doubtful as according to Ahmed Omar 
Sheikh he surrendered himself on 6.2.2002 at Lahore and later he 
was shifted to Karachi on 12.2.2002. The news paper clipping and 
TV footages indicate that he was arrested in Lahore. The version 
put forward by Ahmed Omar Sheikh gets support even from the 
statement of prosecution witnesses who admitted that the arrest of 
the accused in Lahore was published in the news papers. The 
prosecution’s own witness John Molligan (PW-12) admitted that he 
saw all the four accused present in the CID centre on 11th or 12th 
February 2002. The relevant portion is reproduced here under: 
“I saw four accused person who were present at CID Centre, who 
are present in this court today. But I saw them at about 11 or 
12th Feb. 2002.”  
This admission on the part of the prosecution’s own witness totally 
contradicts the claim of the Investigating Officer who stated that on 
the night of 13th February 2002, he arrested Ahmed Omar Sheikh 
while wondering near the airport. The claim of Ahmed Omar 
Sheikh that he was brought through PIA flight from Islamabad was 
not rebutted by the prosecution by producing the PIA flight inquiry 
and list of passengers. Two DWs were produced by Ahmed Omar 
Sheikh to establish his arrest at Lahore. The prosecution story is 
also not believable that the person who was required by the police 
was found wondering around the airport area at night time while 
keeping incriminating documents i.e. email etc with him.  
20. 
As already discussed the arrest of the accused persons were 
shown subsequently and prior to that they were kept in illegal 
confinement as claimed by the learned counsel for the parents of 
Daniel Pearl but this fact cannot be ignored simply on the logic of 
being a high profile case. Article 10(2) of the Constitution of the 
Islamic Republic of Pakistan (Constitution) clearly mandate that 
Crl.As.599-602/2020 etc 
27 
every person who is arrested and detained in custody shall be 
produced before the Magistrate within a period of twenty-four 
hours of such arrest and no such person can be detained in 
custody beyond the period without the authority of the Magistrate. 
So while keeping the accused persons in illegal detention, the 
prosecution had violated the fundamental rights, constitutional 
mandate and law. Due to this illegal detention of accused persons, 
the recoveries which were planted subsequently are negated from 
the statement of Ronald Joseph (PW-8) and John Molligan (PW-12) 
and have lost its value.  
21. 
The prosecution had mainly relied upon the judicial 
confession of Fahad Nasim Ahmed and Syed Salman Saqib 
recorded under section 164 Cr.P.C. Admittedly, the said 
confessions were retracted and the Court has to see whether such 
retracted confessions have been made voluntarily without any 
inducement, promise or coercion and whether the object of making 
such confession was to state the truth. The confession would be 
voluntarily if it was made without any threat, inducement, 
promise, torture etc. In the present case, admittedly, accordingly to 
the prosecution’s own case, the statements under section 164 
Cr.P.C. were recorded after 17/18 days to the extent of Syed 
Salman Saqib and about 10/11 days of the arrest of Fahad Nasim 
Ahmed and if keeping in mind the date of arrest as 4.2.2002, as 
argued by the learned counsel for the parents of Daniel Pearl, then 
this delay will be 25 days to the extent of Syed Salman Saqib and 
17 days to the extent of Fahad Nasim Ahmed.  This delay by itself 
is indicative of the fact that the confessional statements were not 
made voluntarily.  If the object of the accused person to tell the 
truth and they were volunteered to make such statement the same 
Crl.As.599-602/2020 etc 
28 
must have been recorded on the first or second day of their arrest. 
Keeping them in such long detention clearly made both the 
retracted judicial confession doubtful and non-voluntarily. 
(i) 
Admittedly their statements were recorded with a delay of 
more than 17/18 days of their illegal confinement. Such long 
detention that too illegal, is sufficient to discard the confessional 
statements as the principle that longer police custody of an 
accused lesser the evidentiary value of his confession, will apply in 
this case. This delay has not been explained by the prosecution. All 
the learned counsels appearing on behalf of the prosecution were 
unable to explain as to why such confessions were not recorded on 
the day first of their arrest.  
(ii) 
The complaint of torture by one of the accused to the 
Magistrate and reasons of making confession in order to save 
himself or in order to go jail, are sufficient that the confessions 
were not voluntarily. From the perusal of the confessional 
statement of both the accused we are satisfied that the fear of 
police was not removed from the mind of the accused and the 
confession made by them is not free from extraneous influence 
such as threat, promise or inducement. The confessional 
statements were not made voluntarily and suffer from various 
defects and infirmity as noted by us and confessional statements 
have been retracted which are also enough to make them 
involuntarily and diminish its intrinsic value.   
(iii) 
It was the duty of the Magistrate who recorded the 
confessional statement to remove the impression of fear of torture 
by the police from the mind of accused before recording such 
statement. Although few questions were put to Fahad Nasim 
Crl.As.599-602/2020 etc 
29 
Ahmed but certain mandatory questions have not been asked from 
him. Fahad Nasim Ahmed on a question categorically mentioned 
that he was in the police custody for the last 13/14 days. A specific 
question as to which circumstance induced him to record such 
confession. He categorically stated that in order to save himself he 
was making such statement. This answer clearly depicts that he 
was not making the statement voluntarily, to bring on record the 
truth rather he was making statement under compulsion and fear 
in order to save himself. Relevant answer in Urdu is reproduced as 
under :- 
                          
 
This answer clearly manifests that he was making the statement 
under the threat to his life or liberty or under promise for sorting 
him if he makes such statement. So the ingredient under Article 37 
of the Order 1984, clearly emerged from the above mentioned 
answer making the confession irrelevant. The relevant Article is 
reproduced as under: 
37. 
Confession caused by inducement, treat or promise, 
when irrelevant in criminal proceedings.- A confession made 
by an accused person is irrelevant in a criminal proceeding, 
if the making of the confession appears to the Court to have 
been caused by any inducement, threat or promise having 
reference to the charge against the accused person, 
proceeding from a person in authority and sufficient, in the 
opinion of the Court, to give the accused person grounds 
which would appear to him reasonable for supposing that by 
making it he would gain any advantage or avoid any evil or 
a temporal nature in reference to the proceedings against 
him.”                
 
It appears from the answer that in order to make such statement 
he would gain any advantage, which in the present case is 
apparent when he answered that he wants to make statement in 
order to save him. So the whole confession of Fahad Nasim Ahmed 
only by this sentence becomes irrelevant. Admittedly the accused 
Crl.As.599-602/2020 etc 
30 
were produced before the Magistrate after many days of their 
arrest. In order to remove the fear of the police and the 
apprehension that he may not be handed over again to the same 
police. A mandatory question was formed by this Court in may 
judgments so that the fear of remanding him back to the police 
should be removed but even such question was not asked from the 
accused person and the impression that he will again be handed 
over to the same police had not been removed by the Magistrate 
before recording the said confession. The Magistrate admitted that 
she had not told the accused whether he makes or does not make 
confession he will not be handed over to the same police. So the 
fear of the police and remanding him back to the same police was 
hanging as a sword upon the accused Fahad Nasim Ahmed. There 
is no explanation as to why such impression was not removed from 
the mind of the accused. Although it is the duty of the trial Court, 
appellate or this court to see as to whether the confession was 
voluntarily or not but in this case as the Magistrate had seen the 
accused and had received the answer that accused was making 
statement in order to save himself, she admitted that the said 
confession was not voluntarily and she herself volunteer that her 
answer was in accordance with the circumstances of the case. It is 
prosecution’s own witness who said that the said confession was 
not voluntarily, even then she was not declared hostile.       
22. 
At the end of the certificate the Magistrate Ms. Iram Jehangir 
mentioned that she was satisfied that the confession made by the 
accused was voluntarily for the following reasons, but surprisingly 
no such reasons were mentioned by her. That was the reasons she, 
in the Court, had categorically stated that the confession was not 
voluntarily. So no reliance can be placed on such retracted 
Crl.As.599-602/2020 etc 
31 
confession which on the face of it is the result of inducement, 
promise or threat etc.     
23. 
So far confession of Syed Salman Saqib is concerned, his 
arrest was shown by the police on 11.2.2002 but when the 
Magistrate put him question regarding his incarceration he told 
that he was in the police custody since 4.2.2002. On a question 
whether he had been tortured or maltreated, he categorically 
stated that he had been beaten but not at that time. So the torture 
upon him during custody of police, established from the said 
answer, make the confession irrelevant as mentioned in Article 37 
of the Order 1984. Even the learned Magistrate admitted that if a 
confessing accused say that he was beaten by the police, such 
confession is not correct and is liable to be discarded. She 
categorically stated that the accused told her that he was beaten 
and maltreated but not on that day. The accused had taken a 
specific stance that he was beaten. The Magistrate at page No. 2 
had mentioned that the body of the accused was examined with 
his consent and it was found that ……………………..……………...” 
but the said column was left blank. So the observation regarding 
mark of violence etc was totally withheld and the said column was 
left blank. As already been discussed, it was the duty of the 
Magistrate to ensure the accused before recording his confessional 
statement that his body will not be delivered back to the police if 
he makes or does not make any statement. In this case no such 
assurance was given to the accused. So the impression of torture 
which he had already faced and the fear of further torture at the 
hands of the police were not removed. Question was put to the 
accused as to which circumstances were inducing him to make 
confession, the reply was that he wants to go jail. So the object of 
Crl.As.599-602/2020 etc 
32 
the accused was not to tell truth but to go to jail in order to avoid 
further torture and maltreatment at the hands of the police. Even 
then the Magistrate did not assure him that if he will not make 
statement, he will not be handed over to the police.  
24. 
The argument of the learned counsel for prosecution that the 
guidelines given by this Court are directory in nature and are not 
mandatory. This Court in the case of Azeem Khan vs. Mujahid 
Khan (2016 SCMR 274) had enunciated the following principles of 
law and categorically stated that Magistrate is required to observe 
all these mandatory precautions and observed as under : - 
“………the Recording Magistrate has to essentially observe 
all these mandatory precautions. The fundamental logic 
behind the same is that, all signs of fear inculcated by the 
Investigating Agency in the mind of the accused are to be 
shedded out and he is to be provided full assurance that in 
case he is not guilty or is not making a confession 
voluntarily then in that case, he would not be handed over 
back to the police…..”    
The guidelines given by this Court in numerous judgments have 
binding effect upon all the courts below in view of Article 189 of the 
Constitution.  
25. 
The impression of fear was not removed from the mind of 
both the accused persons and according to the Magistrate it was 
not mentioned in the printed proforma, hence they were not told 
“not to fear”. This Court the case of Intikhab Ahmed Abbasi and 
others vs. the State and others (2018 SCMR 495) had already 
depreciated recording of judicial confession on printed proforma, 
containing questionnaire. This was depreciated because it amounts 
to filling the blanks and not in accordance with the requirement of 
law and rules. Even after recording the alleged confessional 
statement of these accused, the Magistrate had mentioned that the 
confession made by the accused is voluntarily for the reasons as 
Crl.As.599-602/2020 etc 
33 
follows but no such reason or ground for believing the confession  
voluntarily was incorporated by the Magistrate. She also admitted 
as under: - 
“It is fact that in the confession the accused has remained in police 
custody for a month and he wants to go to the jail it makes 
believing that the confession is not voluntarily.”  
 
So the circumstances of both the confessions, are quite clear that 
the confessions were not made voluntarily. The High Court had 
discarded both the judicial confessions of Fahad Nasim Ahmed and 
Syed Salman Saqib and alleged admission of Ahmed Omar Sheikh, 
before police officials and for doing so the High Court had given 
valid reasons which are not open to any exception. 
26. 
In this case the recovery of Laptop through which the emails 
were sent to Mrs. Daniel Pearl was affected on the night of 
11.2.2002 from the house of Fahad Nasim Ahmed. Admittedly the 
Laptop of Mrs. Daniel Pearl or any one else on which these emails 
were received were not traced out by the police. Even it is not 
known as to who delivered the said email to Mrs. Daniel Pearl if 
she had not received the emails on her own Laptop. In order to 
prove the recovery of Laptop the Investigating Officer claimed that 
it was Sheikh Naeem (PW-14) who pointed out the house of Fahad 
Nasim Ahmed on the night between 10/11.2.2002 and he also got 
recovered a scanner and a hard drive. Muhammad Ali (PW-19) who 
was a computer expert, working in Anti Car Lifting Cell in Karachi 
claimed that he received the Laptop and two emails at 1:00 pm. on 
11.2.2002, from the Investigating 
Officer for examination. 
Muhammad Ali (PW-19) stated that as he was not having the 
required equipments so he was directed by his superiors to 
handover the Laptop to US consulate as FBI Officer had arrived to 
inspect the same. According to him he delivered the said Laptop on 
Crl.As.599-602/2020 etc 
34 
12.2.2002 to US consulate through a letter. This Laptop was 
having most importance, as according to FBI forensic expert, 
through this Laptop vital information was retrieved and the emails 
were sent from this Laptop.  
(i) 
Ronald Joseph (PW-8) in his evidence admitted that he 
arrived at Karachi on 4.2.2002; that he received the Laptop on 
4.2.2002 in the US Consulate; that he was not aware of the name 
of the person who handed over to him the said Laptop but he was 
told that the Laptop is to be processed; that the Laptop was 
delivered to him from the locker-room of the US consulate; that he 
took six days in examining and processing the said Laptop. It is 
also a circumstance that when he left USA, he had knowledge that 
in Pakistan he was required to process the Laptop. According to 
his evidence he was briefed to process the Laptop/computer two 
days before he left for Pakistan, meaning thereby that he was 
aware on 28th or 29th January 2002 that while going to Pakistan he 
has to process a Laptop/computer because he left USA on 
31.1.2002. Whereas according to prosecution’s own case the 
second email was sent to Mrs. Daniel Pearl on 30.1.2002. It is also 
a circumstance that the emails were delivered by Mrs. Daniel Pearl 
on 5.2.2002 to the police and prior to that the FBI expert had 
received the recovered Laptop and started to examine it. The 
argument of learned counsel for the prosecution that Ronald 
Joseph (PW-8) may have been briefed regarding the Laptop of Mrs. 
Daniel Pearl or Mrs. Nomani, but surprisingly no such Computer 
from these ladies was ever recovered. The name of the sender of 
the said email to the computer of Mrs. Daniel Pearl or Mrs. Nomani 
could be traced out on which the said email have been received. So 
only one laptop was in the field which was allegedly recovered on 
Crl.As.599-602/2020 etc 
35 
11.2.2002 from the residence of Fahad Nasim Ahmed whereas 
Ronald Joseph (PW-8) came to Pakistan on 4.2.2002 only to 
examine the said Laptop. So one thing is quite clear that the 
Laptop which was shown to be recovered on 11.2.2002 from the 
residence of Fahad Nasim Ahmed, was already available in the 
locker-room of US consulate on 4.2.2002. This fact by itself is 
indicative of the fact that all the recoveries were fabricated and 
planted to create an evidence against the accused persons which 
evidence was already available in the locker-room of US consulate. 
It is admitted by Ronald Joseph that he left Pakistan on 15.2.2002 
and Laptop was shown to be recovered on 11.2.2002, as alleged by 
the prosecution, and given to the FBI on 12.2.2002 via Embassy. 
According to Ronald Joseph (PW-8) he completed the examination 
of the Laptop in six days, meaning thereby that he completed the 
examination of the alleged recovered Laptop on 18.2.2002, whereas 
according to his own version he left Pakistan on 15.2.2002. The 
learned counsels appearing on behalf of the prosecution are unable 
to explain as to recovery of the Laptop on 11.2.2002 was genuine 
or the evidence of Ronald Joseph (PW-8) and his expert report was 
truthful and genuine. If the prosecution’s version regarding the 
recovery of Laptop on 11.2.2002 is believed then the examination 
of the laptop by the FBI expert on 4.2.2002 would not be possible. 
If we believe that FBI expert did examined the recovered Laptop, 
then there is no evidence from where, when and from whom this 
Laptop was recovered and under what circumstances. The whole 
prosecution story became doubtful so far recovery of Laptop and 
other recovered articles are concerned. So the recoveries alongwith 
Laptop and the expert report generated from the said Laptop are 
Crl.As.599-602/2020 etc 
36 
clouded in the doubts and no reliance can be place on such 
recovery and expert report.   
27. 
The other recoveries including manuscripts in English and 
Urdu regarding ransom demand which was allegedly recovered at 
the same time when Laptop was recovered, so there is no 
guarantee that such recoveries were also affected on the same 
night. The statement of Ronald Joseph exposed the padding, 
fabrication and illegal detention of accused persons and the 
recoveries from them. His evidence also falsified the statements of 
recovery witnesses and also the statement of Sheikh Naeem on 
whose pointation the arrest of Fahad Nasim Ahmed was shown to 
have been effected on 11.02.2002 and laptop etc. was recovered. 
So all the recoveries allegedly effected on the night of 10th/11th 
February 2002, became doubtful in view of the statements of 
Ronald Joseph. Likewise arrest of Ahmed Omar Sheikh on 
13.02.2002 and the recoveries from him also negated from the fact 
that he was already in illegal confinement and this fact is also 
confirmed by the statement of John Molligan (PW-12).   
28. 
In order to prove the manuscript allegedly written by Sheikh 
Muhammad Adil in Urdu and Ahmed Omar Sheikh in English, the 
prosecution produced Ghulam Akbar (PW-10), who claimed himself 
handwriting expert who gave a positive report that handwritten 
sample taken from Sheikh Muhammad Adil in Urdu and Ahmed 
Omar Sheikh in English have matched with the manuscript which 
was recovered from the residence of Fahad Nasim Ahmed on 
11.2.2002 (already disbelieved in preceding para). Ghulam Akbar 
(PW-10) although claimed that he was handwriting expert but he 
admitted that “I am post graduate in Sindhi Literature from Karachi 
Crl.As.599-602/2020 etc 
37 
University. In that course the process of comparison is not taught to me. I 
have obtained no degree in this connection. It is fact that there are persons 
who can write the same in similar hand writing.”  He also admitted 
during cross-examination that “It is fact that in the opinion I had not 
mentioned the ground in support of my opinion, but I have brought which 
are in my file.”  The above cross-examination clearly indicates that 
Ghulam Akbar (PW-10) had no qualification, knowledge or 
expertise to be regarded as a handwriting expert. A handwriting 
expert who has no requisite qualification and has not been 
designated as handwriting expert, has no value. PW-10 had no 
competency and ability to correctly match handwriting sample to 
the original sample from the same person. The most important 
aspect of the case is that he had not given any reason/ground or 
basis in his report as to how he has formed the said opinion and 
on which ground he came to the said conclusion. He had not 
mentioned identical letters, natural flow of words and formation of 
letter etc. The handwriting report does not mention the reasons 
and the points of similarity, hence the same is not worthy of 
reliance. So no reliance can be placed on such piece of evidence 
and expert report.  
29. 
So far identification parade of Ahmed Omar Sheikh by Nasir 
Abbas (PW-1) and Asif Mehfooz Farooqui (PW-6) is concerned, we 
have observed that both the witnesses have not described his role 
during the identification parade and simply picked him up as an 
accused. Nasir Abbas (PW-1) had seen the accused after one hour 
of Maghrab prayer when darkness has prevailed. In that 
eventuality it was not possible to capture the features of the person 
properly. He even did not describe the feature of the person with 
whom the foreigner left in a Car. Admittedly the dummies with 
Crl.As.599-602/2020 etc 
38 
which Ahmed Omar Sheikh was mixed up wearing different 
dresses, having different features and physics. Their names, ages 
and other particulars have not been mentioned by the learned 
Magistrate. Nasir Abbas (PW-1) admitted that only one person with 
beard was in the said queue. Nasir Abbas (PW-1) admitted that 
20/25 Cameramen were present in the Court room. The Magistrate 
Iram Jehangir admitted that there was visible bullet mark on the 
right shoulder of the accused. So the accused with beard alone in 
the queue with a bullet mark could have been picked up easily by 
any person whose photographs had been published from 10th 
February onward in newspapers. The illegal confinement, as 
already discussed, also gave a presumption that during this period 
he was exposed to the witnesses. Same was the situation regarding 
identification of the same accused made by Asif Mehfooz Farooqui 
(PW-6). Both of them have not described the role of Ahmed Omar 
Sheikh. So the identification proceedings were full of irregularity, 
infirmity and cannot be taken into consideration especially when 
evidence of these two witnesses had already been discarded, as 
mentioned above.   
30. 
Learned counsel for the parents of Denial Pearl had tried to 
highlight the previous involvement of Ahmed Omar Sheikh in a 
criminal case of such nature registered in India but we observe 
that during trial the FIR or other documents regarding the said 
case were never produced in the evidence nor ever the accused was 
confronted during the trial on this aspect of the case. Even 
otherwise while deciding a case the peculiar facts of the said case 
has to be seen.  
Crl.As.599-602/2020 etc 
39 
31. 
Learned counsel had also made stress upon a letter written 
by Ahmed Omar Sheikh from jail during the pendency of his 
appeal in which, according to learned counsel, he had made 
confession that he was having a minor role in the occurrence but 
while going through the said letter we observe that the accused 
Ahmed Omar Sheikh had professed his innocence in many words 
in the said letter and ultimately he made a complaint that the 
sentence awarded to him was very harsh if the role attributed to 
him is seen. It is a circumstance that this letter was never agitated 
or argued before the High Court and there is no finding of High 
Court on this letter. The circumstance of the present case create 
serious doubt and in that eventuality no premium can be extended 
for such letter and same cannot be taken into consideration 
separately rather the whole letter has to be taken in toto in which 
again and again the accused professed his innocence.    
32. 
After careful reappraisal of the entire evidence, as discussed 
above, we are entertaining no amount of doubt that prosecution 
has failed to bring home guilt of the accused/respondents and 
appellant as the evidence furnished during the trial is full of 
factual and legal defects. In this case, regarding each and every 
piece of evidence the doubts are emerging from the mouth of the 
witnesses,  and it is settled since centuries that benefit of doubt 
automatically goes in favour of an accused. Even if a single 
circumstance create reasonable doubt in a prudent mind regarding 
guilt of an accused then the accused shall be entitled to such 
benefit not as a matter of grace and concession but as a matter of 
right and such benefit must be extended to the accused person(s) 
by the Courts without any reservation. Reliance can be made upon 
Crl.As.599-602/2020 etc 
40 
the case of Muhammad Mansha vs. the State (2018 SCMR 772) in 
which this Court held as under : 
“Needless to mention that while giving the benefit of doubt to an 
accused it is not necessary that there should be many 
circumstances creating doubt. If there is a circumstance which 
creates reasonable doubt in a prudent mind about the guilt of the 
accused, then the accused would be entitled to the benefit of such 
doubt, not as a matter of grace and concession, but as a matter of 
right. It is based on the maxim, “it is better that then guilty 
persons be acquitted rather than one innocent person be 
convicted”. Reliance in this behalf can be made upon the cases of 
Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 
others v. The State (2008 SCMR 1221), Muhammad Akram v. The 
State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 
SCMR 749).” 
 
Reliance in this behalf can also be made upon the cases of 
Muhammad Imran vs. the State (2020 SCMR 857), Abdul Jabbar 
and another vs. the State (2019 SCMR 129), Mst. Asia Bibi vs. the 
State and others (PLD 2019 SC 64), Muhammad Ashraf alias 
Acchu vs. the State (2019 SCMR 652), Gul Dast Khan vs. the State 
(2009 SCMR 431) and Daniel Body (Muslim name Saifullah) and 
another vs. the State (1992 SCMR 196).  
(i) 
The High Court had rightly extended the benefit of doubt to 
Fahad Nasim Ahmed, Syed Salman Saqib and Sheikh Muhammad 
Adil and acquitted them from all the charges and had also rightly 
extended the benefit of doubt to Ahmed Omar Sheikh qua all other 
charges. However, the High Court ignored these important points 
mentioned above and wrongly convicted him under section 362 
PPC when, as discussed above, the evidence of Nasir Abbas (PW-1) 
was full of doubts and no reliance can be placed on such doubtful 
statement. So the conviction of Ahmed Omer Sheikh under section 
362 PPC was not justified. Although, learned counsel for the 
parents of Daniel Pearl argued that it is a high-profile case but 
Crl.As.599-602/2020 etc 
41 
even in such like cases the benefit of doubt cannot be extended to 
the prosecution and it is settled since centuries that such benefit 
can only be extended to the accused who is facing the trial. The 
trial Court although had convicted the accused persons under 
section 365-A, 302, 120-A PPC read with section 6(a) of ATA but 
surprisingly sentenced them only under section 7(a) of ATA and no 
sentence was passed independently for each offence rather single 
sentence in the shape of death to Ahmed Omar Sheikh and life 
imprisonment in respect of remaining three accused was passed 
and this illegality was also not curable. Even no conviction can be 
passed under section 120-A PPC, which deals with the definition of 
criminal conspiracy. Even conviction and sentence under section 
362 PPC awarded by the High Court is illegal as no sentence under 
section 362 PPC is provided, so conviction or sentence passed by 
the High Court under section 362 PPC was also illegal.  
33. 
Admittedly the parameters to deal with the appeal against 
conviction and appeal against acquittal are totally different 
because the acquittal carries double presumption of innocence and 
same could be reversed only when found blatantly perverse, illegal, 
arbitrary, capricious or speculative, shocking or rests upon 
impossibility. If there is a possibility of a contrary view even then 
acquittal could not be set aside as has been settled in the cases of 
The State vs. Khuda Dad and others (2004 SCMR 425). Muhammad 
Nazir vs. Muhammad Ali and another (1986 SCMR 1441), 
Rehmatullah Khan vs. Jamil Khan and another (1986 SCMR 941), 
Mst. Daulan vs. Rab Nawaz and another (1987 SCMR 497) and 
Gulzar Hussain vs. Muhammad Dilawar and others (1988 SCMR 
847)  
Crl.As.599-602/2020 etc 
42 
33. 
As already discussed, the whole prosecution evidence is full 
of doubts and the prosecution has failed to prove the guilt of the 
accused persons. Hence Criminal Appeal No.602/2020 filed by 
Ahmed Omar Sheikh is allowed. He is acquitted of all the charges. 
He shall be released from jail if not required to be detained in any 
other case. Criminal Appeals No.599 to 601 of 2020 filed by the 
State against acquittal and Criminal Petitions No.1085 and 1086 of 
2020 filed by the parents of Daniel Pearl against the acquittal of 
Fahad Nasim Ahmed, Syed Salman Saqib and Sheikh Muhammad 
Adil and for enhancement of sentence of Ahmed Omar Sheikh are 
dismissed. The above noted are the reasons of our short order 
passed on 28.1.2021, by a majority of two against one, (Yahya 
Afridi, J. dissenting) which is reproduced as under : 
      
“Mushir Alam, J.- For the reasons to be recorded later, by a 
majority of 2 to 1 (Yahya Afridi, J. dissenting), Criminal Appeals 
No.599, 600 & 601 of 2020, Criminal Petitions No.1085 and 1086 
of 2020 are dismissed, the impugned judgment dated 02.04.2020 
passed by the High Court of Sindh, Karachi is maintained to the 
extent of acquittal of all the four respondents from their charges. 
Criminal Appeal No.602 of 2020 filed by Ahmed Omer Sheikh 
against his conviction under section 362 PPC, is allowed and he 
is acquitted of the charge by extending the benefit of doubt to 
him. Ahmed Omer Sheikh, Fahad Nasim Ahmed, Syed Salman 
Saqib and Sheikh Muhammad Adil shall be released from the jail 
forthwith if not required to be detained in connection with any 
other case. All the miscellaneous applications filed by the either 
party have lost their relevance, hence, disposed of as such. 
Sd/- 
Sd/- 
Yahya Afridi, J.-  For the reasons to be recorded later, Criminal 
Appeals No.599, 600 and 601 of 2020 and Criminal Petitions 
No.1085 & 1086 of 2020 are partly allowed in the terms that 
Ahmed Omer Sheikh and Fahad Nasim are convicted under 
sections 365-A & 120-B, PPC and section 7 of the Anti-Terrorism 
Act, 1997 each and sentenced to imprisonment for life on each 
count. All the sentences passed against both the convicts shall 
run concurrently. The benefit under section 382-B, Cr.P.C. shall 
be extended to them. To the extent of Syed Salman Saqib and 
Crl.As.599-602/2020 etc 
43 
Sheikh Muhammad Adil Criminal Appeals No.599, 600 & 601 of 
2020 and Criminal Petitions No.1085 & 1086 of 2020 are 
dismissed and their acquittal is maintained on all the charges, 
they shall be released from the jail forthwith if not required to be 
detained in connection with any other case. Criminal Appeal 
No.602 of 2020 filed by Ahmed Omer Sheikh is dismissed.”   
 
 
 
 
 
 
 
Sd/-” 
 
 
 
Judge 
 
 
 
Judge 
 
 
 
 
 
 
Judge 
 
 
 
ORDER OF THE COURT 
 
By a majority of two against one, Criminal Appeals No.599, 
600 and 601 of 2020, Criminal Petitions No.1085 and 1086 of 
2020 are dismissed. Criminal Appeal No.602 of 2020, is allowed       
in the terms noted in the opinion recorded by Sardar Tariq 
Masood, J, which opinion is declared to be the judgment of the 
Court.  
 
Judge 
 
 
Judge 
 
 
Judge 
Islamabad, the  
 
M Saeed/**  
NOT APPROVED FOR REPORTING. 
 
 
 
 
 
Judge  
 
YAHYA AFRIDI, J — 
What we have before us are four 
criminal appeals, with the leave of the Court, and two direct 
criminal petitions, all challenging the judgment dated 02.04.2020 
passed by the High Court of Sindh, Karachi in appeals filed by the 
four accused-convicts and the State against the judgment of the 
Anti-Terrorism Court No. II, Hyderabad dated 15.07.2002 in Police 
Crime No. 24 of 2002 of Artillery Maidan Police Station, Karachi 
(South). 
Appeals and petitions 
2. 
All contesting parties in the cases in hand are aggrieved of 
the impugned judgment of the High Court of Sindh. The State has 
impugned in appeal before this Court, the acquittal of the three 
accused, namely, Fahad Naseem, Salman Saqib and Sheikh 
Muhammad Adil and the reduction in sentence of Ahmed Omar 
Sheikh (Criminal Appeals No.599-601/2020). Then we have the appeal 
moved by Ahmed Omar Sheikh, who is aggrieved of the conviction 
and sentence passed against him (Criminal Appeal No.602/2020). 
Lastly, we have the two direct petitions filed by the parents of 
Daniel Pearl, challenging the acquittal of the three acquitted 
accused, Fahad Naseem, Salman Saqib and Sheikh Muhammad 
Adil, and the reduction in the sentence of the fourth accused, 
Ahmed Omar Sheikh (Criminal Petition No.1085/2020 and Criminal 
Petition No.1086/2020). 
Chronology of events 
3. 
In a nutshell, the prosecution story of how the events 
unfolded, can be summarized as under: -  
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
2
i. 
On 08.01.2002, Daniel Pearl, South Asia Bureau Chief 
of the Wall Street Journal on an assignment in 
Pakistan, contacted Asif Mehfooz Farooqui (PW-6), a 
journalist working for a Japanese news agency, to 
arrange a meeting with Pir Mubarik Shah Gilani, who 
was said to be the spiritual guide of Richard Read 
known as the “shoe bomber”. Asif Mehfooz Farooqui 
(PW-6) contacted Arif alias Hashim (absconding accused No. 
3) who arranged a meeting with the contact of Pir 
Mubarik Shah Gilani on 11.02.2002 at Akbar 
International Hotel, Rawalpindi. In this meeting Bashir 
(later identified as Ahmed Omar Sheikh) was introduced to 
Daniel Pearl as a contact (‘Mureed’) of Pir Mubarik Shah 
Gilani. 
ii. 
A week later, Daniel Pearl informed Asif Mehfooz 
Farooqui (PW-6) that “Bashir” had arranged a meeting 
with Pir Mubarik Shah Gilani at Karachi.   
iii. 
Accused Fahad Naseem and Salman Saqib received 
Ahmed Omar Sheikh from Jinnah International 
Airport at Karachi and took him to a house in KDA, 
where they discussed the modalities of sending emails 
to various organizations and agreed to purchase 
polaroid cameras, a scanner and a printer. Later, 
Ahmed Omar Sheikh handed them, scripts in English 
and Urdu, which they agreed to email.  
iv. 
On 23.01.2002, a ‘white man’ hired a taxi driven by 
Nasir Abbas (PW-1), who was dropped around 07.00 
P.M. outside Village Restaurant, Metropole Hotel, 
Karachi, where he met a person (later identified as Ahmed 
Omar Sheikh) with whom he sat with and drove off in a 
white Toyota corolla car.  
v. 
Emails dated 27.01.2002 and 30.01.2002 were 
received by different persons, including media outlets: 
containing 
information 
regarding 
Daniel 
Pearl’s 
abduction, the demand for ransom for his release, and 
death consequences for its non-compliance. 
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
3
vi. 
On 04.02.2002, Marianne Pearl, wife of Daniel Pearl, 
made a written complaint to the S.H.O. Artillery 
Maidan Police Station, Karachi (South) reporting the 
suspicious absence of her husband.  
vii. 
In furtherance of the said complaint, the case FIR No. 
24 of 2002, was registered under sections 365-A, 
Pakistan Penal Code, 1860 (“PPC”) read with section 7 
of the Anti-Terrorism Act, 1997 (“FIR”). Sections 368 
/302 /109 /205/120-A/34, PPC read with sections 7-
A, 8(a)(b)(c), 11/A(a)(b)(c), 6(2)(b)(c)(e)(f), 11/H(3-4), 
11/V(I)(a)(b)(2), 11/L(a)(b), 7(a)(b)(2), 11/H(2)(a)(b), 
11/W(1)(2), 7 of the Anti-Terrorism Act, 1997 (“ATA”) 
were subsequently added to the FIR.  
viii. 
Accused Fahad Naseem, Salman Saqib and Sheikh 
Mohammad Adil were stated to be arrested from 
Karachi on 11.02.2002. While accused Ahmed Omar 
Sheikh was stated to be arrested from a public place 
close to Jinnah International Airport, Karachi on 
13.02.2002.  
ix. 
Ahmed Omar Sheikh, on 14.02.2002 at the time of his 
first remand before Arshad Noor Khan, Judge, Anti-
Terrorism Court-III, Karachi, has been stated to have 
admitted that he abducted Daniel Pearl, who was by 
then dead.   
x. 
Nasir Abbas (PW-1) and Asif Mehfooz Farooqui (PW-6) 
identified Ahmed Omar Sheikh in two separate Test 
Identification Parades carried out by Irum Jahangir 
(PW-9), 
Judicial 
Magistrate, 
on 
21.02.2002 
and 
01.03.2002, respectively. 
xi. 
Irum Jahangir (PW-9), Judicial Magistrate, recorded the 
confessional statements of the accused Fahad Naseem 
and Salman Saqib on 21.02.2002 and 01.03.2002, 
respectively. 
xii. 
John Mulligan (PW-12) received a video cassette from a 
source on 21.02.2002, and the same was viewed in 
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
4
Court, 
showing 
the 
murder 
scene, 
which 
the 
prosecution claims to be that of Daniel Pearl.  
xiii. 
On 28.03.2002, the Challan was submitted before the 
Anti-Terrorism Court (“ATC”) against eleven persons, 
seven of them were declared absconders under the 
relevant provisions of Cr.P.C. 
 
The Trial 
4. 
The Anti-Terrorism Court No.III, Karachi framed the charge 
against all four arrested accused, namely; Fahad Naseem, Syed 
Salman Saqib, Sheikh Muhammad Adil and Ahmed Omar Sheikh, 
for the offences under sections 120-A, 365-A, 302, PPC read with 
section 6(a) of the ATA. All four accused pleaded not guilty and 
claimed trial.  The High Court of Sindh on an application of the 
State vide order dated 30.04.2002 directed for the transfer of the 
trial from ATC Karachi to ATC Hyderabad. Accordingly, trial 
proceedings were transferred from ATC Karachi to ATC Hyderabad, 
and for security reasons, the same were carried out at Central Jail, 
Hyderabad.  
5. 
The prosecution produced twenty-three witnesses to prove 
their case against the accused persons. After closing of prosecution 
evidence, all four accused persons recorded their statements under 
section 342, Cr.P.C. None of the accused wanted to record his 
statement on oath under section 340(2), Cr.P.C. However, Ahmed 
Omar Sheikh produced two witnesses in his defence: his uncle, 
Rauf Ahmed Sheikh, District & Sessions Judge (DW-1), and his 
father, Saeed Ahmed Sheikh (DW-2).  
6. 
The trial Judge, ATC No.II Hyderabad vide judgment dated 
15.07.2002 held that the prosecution had proved the guilt of all 
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
5
four accused beyond reasonable doubt and convicted the accused 
persons, as guilty of offences under sections 120-A, PPC 365-A, 
302, PPC read with section 6(a) of the Anti-Terrorism Act, 1997. 
And sentenced them in terms that; 
“Ahmed Umer  Shaikh it appears that this accused had 
engineered entire plan of creating sense of fear nationally and 
internationally and thereby made conspiracy and he was a 
Principal Offender and he made with his efforts the other 
remaining accused to be his aiders/associates for the purpose of 
completion of his above plan involving the sense of fear, 
insecurity nationally and internationally. I, therefore, convict 
accused persons under section 365-A, 302, PPC read with section 
6(a) of the Anti-Terrorism Act, 1997 and Section 120-A, PPC and 
thereupon as a result accused Ahmed Umer Saeed Shaikh is 
sentenced to death under section 7 of the Anti Terrorism Act, 
1997 to be hanged by the neck till he is dead.  
 
“Adil Shaikh, Salman Saqib and Fahad Naseem are sentenced 
under section 7 of the Anti-Terrorism Act, 1997 to suffer Life 
Imprisonment. They are also sentenced to pay fine of Rs. 
5,00,000/- each. In case of non payment of fine, these accused 
persons shall undergo sentence for five (5) years more.  
 
“This court also direct all the four accused persons to pay jointly 
a sum of Rs. 20,00,000/- (Twenty Lacs), which shall be paid by 
them in equal share and if this amount is paid it shall be given to 
the widow of Daniel Pearl and also to his Orphan son. The 
imprisonment sentences shall to run concurrently and benefit 
under section 382-B, Cr.P.C. is given to the accused person. The 
death sentence awarded will be executed subject to the 
confirmation by the Hon’ble High Court of Sindh, for which the 
reference is separately made to the Hon’ble High Court of Sindh.” 
 
Appeal and Judgment of the High Court of Sindh 
 
7. 
All four convicted accused assailed the trial court judgment 
recording their convictions and sentences in appeal before the High 
Court of Sindh, Karachi. The High Court did not concur with the 
findings of the trial court on crucial issues for the following 
reasons:  
(i) On the charge of criminal conspiracy against the accused, the 
appellate court found that the same was not proved, as there 
was no evidence of Fahad Naseem, Syed Salman Saqib, and 
Sheikh Muhammad Adil being present with Ahmed Omar 
Sheikh in room No. 411 of Akbar International Hotel, 
Rawalpindi on 11.01.2002. The lack of evidence to show 
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
6
their physical presence together at the relevant time and 
place was found crucial by the High Court to render a 
finding that the said charge of conspiracy was not proved 
against all the four accused.  
(ii) On the charge of abduction, the appellate court found 
Ahmed Omar Sheikh guilty of having committed the offence 
of abduction under section 362, PPC, based on the reasons 
that: the delay in submitting the complaint to the police by 
Marianne Pearl was not unnatural, as she was not only a 
foreigner, but was also expecting a child; Asif Mehfooz 
Farooqui (PW-6) and Amir Afzal (PW7) were independent and 
not chance witnesses, and their evidence legally sufficed to 
prove the deceitful means by which Ahmed Omar Sheikh 
managed to set up a plan for a meeting between Daniel Pearl 
and Pir Mubarak Shah Gilani at Karachi; that Asif Mehfooz 
Farooqui (PW-6) identified Ahmed Omar Sheikh as Bashir in 
the 
test 
identification 
parade 
which 
despite 
some 
irregularities, was found to be of legal weight; the testimony 
of Amir Afzal (PW-7) and the hotel receipts (Exh.P/10/1 and 
Exh.P/10/4), which he produced corroborated the testimony 
of Asif Mehfooz Farooqui (PW-6); Nasir Abbas (PW-1) was also 
found to be an independent witness, and his testimony 
regarding Daniel Pearl being “last seen” with Ahmed Omar 
Sheikh on 23.01.2002, and his identifying Ahmed Omar 
Sheikh in the test identification parade was found worthy of 
legal credence; the testimony of Jameel Yousaf (PW-2) was 
found to corroborate the testimony of Nasir Abbas (PW-1).  
(iii) On the charge of abduction for ransom, the appellate court 
found that the prosecution evidence did not prove the fact 
that the demand of ransom was made by the accused. In so 
concluding, the appellate court passed crucial findings of 
facts that: the prosecution evidence regarding the time and 
place of arrest of the accused was not legally proved and was 
contrary to other prosecution evidence; the recoveries made 
from the accused at the time of their arrests were not legally 
reliable; the Forensic Reports based on the data from the 
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
7
recovered laptop rendered by Ronald Joseph (PW-8) could not 
be legally relied upon, as there was a possibility that the 
laptop was manipulated by the investigating agency and 
later was shown to have been recovered from Fahad Naseem 
at the time of his arrest; the testimony of Shaikh Naeem (PW-
14) was found lacking to prove that the ransom emails of 
27.01.2002 and 30.01.2002 were sent by Fahad Naseem; the 
prosecution evidence to prove that the polaroid camera was 
purchased by Fahad Naseem and Salman Saqib from 
Mohammad Arif (PW-16) was nullified, when the same were 
not produced in evidence; the confessions of Fahad Naseem 
and Salman Saqib were inadmissible, lacking the essential 
ingredients of being voluntary as required under Article 37 of 
the Qanun-e-Shahadat, 1984; the stance of the prosecution 
that, Ahmed Omar Sheikh made an admission before the 
Judicial 
Magistrate 
granting 
his 
police 
remand 
on 
14.02.2002 were not accepted as the same was neither 
recorded in the remand order nor was the Judicial 
Magistrate granting the remand order produced as a witness 
by the prosecution to prove the said fact; Ghulam Akbar 
Jaffari (PW-10) lacked the technical expertise to be worthy of 
rendering any opinion as a handwriting expert.  
(iv) On the charge of murder, the appellate court held that the 
prosecution had failed to produce any evidence to prove the 
guilt of the accused, and it held that: the death of Daniel 
Pearl was not in close proximity to the date of his being “last 
seen” with Ahmed Omar Sheikh; the video cassette produced 
by John Mulligan (PW-12) showing the murder of Daniel Pearl 
did not show that the execution was being carried out by all 
or any one of the four accused; no crime weapon was 
recovered to link the same to the accused.  
8. 
Based on the above findings, the High Court allowed the 
appeals filed by Fahad Naseem, Syed Salman Saqib, Sheikh 
Muhammad Adil and they were acquitted of all charges; while the 
appeal of Ahmed Omar Sheikh was partially allowed, and he was 
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
8
acquitted of all framed charges, and convicted for the offence 
under section 362, PPC and sentenced to seven years R.I. and a 
fine of Rs. 2,000,000/-. 
Maintainability of the petition filed by the parents of Daniel Pearl 
9. 
Before adverting to the legal merits of the controversy 
involved in the cases in hand, it would be pertinent to address the 
maintainability of the direct criminal petitions filed before this 
Court by the parents of Daniel Pearl against the acquittal of the 
three accused and reduction in sentence of fourth accused by the 
High Court. When confronted with the above challenge, the learned 
counsel representing the parents of Daniel Pearl contended that 
the scope of Article 185(3) of the Constitution of Islamic Republic 
of Pakistan, 1973 (“Constitution”) was wide enough to entertain 
petitions filed by “person aggrieved”, which included the parents of 
the person wronged. In this regard, the learned counsel sought 
reliance on Muhammad Shafi v. Muhammad Asghar.1 In this judgement, 
the Court held that the paramount consideration for the exercise of 
jurisdiction, in terms of Article 185(3) of the Constitution, has been 
to foster the dictates of justice, and not to look at the person 
invoking the jurisdiction of Supreme Court. The jurisdictional 
contours of the Supreme Court for entertaining criminal petitions 
under Article 185 of the Constitution can be flexed for bolstering 
the ends of justice.    
10. 
In the given circumstance, it is difficult to hold that the 
parents of Daniel Pearl are not the “persons aggrieved”, within the 
contemplation of Article 185 of the Constitution. Accordingly, the 
                                                
1 Muhammad Shafi v. Muhammad Asghar (PLD 2004 SC 875). 
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
9
present Criminal Petition No. 1085/2020 and Criminal Petition No. 
1086/2020 are held to be maintainable. 
Remand for additional evidence – Post-Mortem Examination Report 
11. 
The learned counsel representing the parents of Daniel Pearl 
prayed for the remand of the case to the appellate court for 
recording of additional evidence in terms of section 428, Code of 
Criminal Procedure, 1898 (Cr.P.C.) to prove that the Post-Mortem 
Examination Report available on the record of the Trial Court was, 
in fact, that of Daniel Pearl. It was urged that proving this fact was 
necessary for the just adjudication of the case and submitted 
further that the DNA report of the deceased confirmed that the 
dead body so recovered and examined, was of Daniel Pearl, who, 
he further asserted, now remains buried in Los Angeles, United 
States of America.  
12. 
This issue of the Post-Mortem Examination Report arose 
when a report published in Daily “Umat” dated 28.05.2002 stated 
that the dead body of Daniel Pearl had been recovered and 
examined by a Medical Board of doctors. Based on the said report, 
Ahmed Omar Sheikh, moved an application to the trial court 
seeking the said Post Mortem Report to be placed on record of the 
case. This application was opposed by the State. However, the trial 
court vide order dated 28.05.2002 allowed the Post Mortem 
Examination Report to be placed on the record of the case. The 
contents of the Report stated that a Special Medical Board 
comprising of six doctors was constituted to examine a corpse, and 
after examination, the report inter alia noted; that the exhumation 
was carried on at 09.00 A.M. on 17.05.2002, while the post-
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
10
mortem examination of the corpse was carried out on the same 
day; the place of exhumation was a plot in Ahsanabad, Karachi; 
the name and parentage of the dead person was clearly marked as 
“unknown” and “the body is partially decomposed and adipocered. 
Facial features are not identifiable due to decomposition changes in 
all soft tissues”. 
13. 
It is by now a settled principle of criminal administration of 
law that the appellate courts are to be cautious in allowing the 
production of additional evidence at an appellate stage, especially 
when such fact was available and in the knowledge of the party 
seeking to produce it, as additional evidence.2 The underlying 
reason for the Appellate Court to exercise restrain is that it might 
prejudice the case of the accused3 or be used to fill the lacunas of 
the prosecution case.4 Therefore, unless the said evidence could 
not have been collected earlier, despite due diligence or where the 
said party was prevented from collecting and producing the same 
at the trial for reasons beyond its control and power, the appellate 
courts are not to allow production of such additional evidence.5  
14. 
Given the above principles governing the production of 
additional evidence, request of the parents of Daniel Pearl for the 
production 
of 
additional 
evidence 
does 
not 
merit 
legal 
consideration. It is noted that the Post Mortem Examination Report 
sought to be produced in evidence and proved by adducing 
additional evidence was available before the Trial Court, and no 
                                                
2 Dildar v. The State through Pakistan Narcotics Control Board, Quetta (PLD 2001 SC 384), Fazal Ellahi and others v. 
Crown (PLD 1952 Lahore 388) and Nasir Khan and others v. The State (2005 P.Cr.L.J.1) 
3 Ali v. Crown (PLD 1952 FC 71); Ghulam Muhammad v. State (PLD 1957 Lah. 263); Muhammad Ismail v. State (PLD 
1970 Kar. 261); Muhammad Ehsan v. State (PLD 1975 Lah. 1431); Gullan v. State (PLD 1977 Lah. 1103); Barkat Ali v. 
Crown (1969 SCMR 448) 
4 Ibid No.2 and 3.  
5 Dildar vs. The State (PLD 2001 SC 384) 
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
11
positive step was taken by the petitioners during the trial or 
appellate stage. Hence, the belated request of the parents of Daniel 
Pearl for the production of additional evidence being bereft of legal 
merit is denied.  
Letter of Ahmed Omar Sheikh 
15. 
The learned counsel for the parents of Daniel Pearl also 
urged, as an additional ground, for remand of the case to the 
appellate court to consider the letter dated 25.07.2019, stated to 
be written and signed by Ahmed Omar Sheikh from the Hyderabad 
Central Jail addressed to the High Court of Sindh, which allegedly 
contained his admission of criminal culpability. According to the 
learned counsel, the High Court failed to consider the said letter 
while deciding the appeals. The learned counsel for Ahmed Omar 
Sheikh raised serious objections to the consideration of the said 
letter. The learned counsel was directed to obtain instructions from 
accused Ahmed Omar Sheikh. Upon receipt of the instructions, it 
was stated that Ahmed Omar Sheikh admitted to writing the letter 
but denied having any part in the commission of the offence. It was 
stated that the letter was meant only to attract the attention of the 
High Court for the early hearing of his appeal, which at the time 
had been pending for the last two decades.   
Suffice it to state that the letter dated 25.07.2019 does not find 
any mention in the record of judicial proceedings before the High 
Court. In fact, there are well defined rules under the enabling 
provisions of the Qanun-e-Shahadat, 1984 for the admissibility of 
evidence and the recording of statement of the accused, which do 
not allow consideration of material, such as the letter of 
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
12
25.07.2019. In fact, subject to law, none can be allowed to pitch a 
document before the Supreme Court for consideration, which was 
never formally tendered or produced in evidence and proved at the 
appropriate stage.6 Allowing such a practice will not only 
undermine the sanctity of the judicial record and judicial 
proceedings, but also violate the rule of admissibility of evidence. 
Hence, the request of the parents of Daniel Pearl for considering 
the letter of 25.07.2019 is denied. 
Production of Press Reports    
16. 
The parents of Daniel Pearl through Crl.M.A. No. 1744/2020 
and Crl.M.A. No. 18/2021 prayed to place on record certain 
newspaper reports; the first application related to Ahmed Omar 
Sheikh’s alleged admission during the remand proceedings, and 
the second was regarding his activities during his incarceration in 
Central Jail Hyderabad. Our courts have generally, allowed 
relevant and uncontradicted news items published in newspapers 
or magazines regarding contemporaneous events to be admissible, 
to form the basis for drawing inferences and accepting as material 
for forming an opinion. In Islamic Republic of Pakistan vs. Abdul Wali 
Khan7, newspaper articles that provided a contemporaneous 
account were held to be admissible, in the terms that: 
“[I]t cannot be denied that so far as newspaper reports of 
contemporaneous events are concerned, they may be admissible. 
Particularly where they happen to be events of local interest or of 
such a public nature as would be generally known throughout 
the community and testimony of an eye-witness is not readily 
available. The contemporary newspaper account may well be 
admitted in evidence in such circumstances as has often been 
done by Courts in the United States of America not because they 
are `business records' or 'ancient documents' but because they 
may well be treated as a trustworthy contemporaneous account of 
                                                
6 Khan Muhammad Yusuf Khan Khattak v. S. M. Ayub and 2 others (PLD 1973 SC 160), Province of the Punjab though 
Collector, Sheikhpura vs. Syed Ghazanfar Ali Shah [2017 SCMR 172] 
7 Islamic Republic of Pakistan vs. Abdul Wali Khan (PLD 1976 SC 57) 
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
13
events or happenings which took place a long time ago or in a 
foreign country which cannot easily be proved by direct ocular 
oral testimony.” 
 
17. 
The 
above 
view 
has 
resounded 
in 
the 
judicial 
pronouncements that have followed.8 However, in criminal cases 
such evidence must be viewed with strict caution. In Muhammad 
Ashraf Khan Tareen v The State9, the appellant wanted the Court to 
rely on a newspaper reporting of the incident. The Court refused to 
accept the newspaper report as proof of the fact in issue, 
essentially on the ground that the author of the said report was 
not produced in Court to prove the fact he had so reported therein. 
Similarly, in the present case, the author of the reports urged to be 
considered, were not produced as witnesses, therefore, the said 
reports did not suffice as proof of the facts stated therein. Thus, 
admitting such newspaper reports as prayed for by the parents of 
Daniel Pearl, would be against the safe administration of criminal 
justice.  Hence, the request is declined. 
Production of acquittal order of Hashim alias Arif  
18. 
On the other hand, the learned counsel for the accused 
Ahmed Omar Sheikh, through Crl. M.A No. 2074/2020 in Criminal. Appeal 
No. 599/2020 prayed that the Copy of the judgement of Anti-
Terrorism Court dated 23.10.2014 Hyderabad in ATC Case No. 1 of 
2008 “State Vs. Muhammad Hashim alias Arif” in FIR No. 24 of 
2002 to be allowed to be placed on record. The learned defence 
counsel submitted that the accused Hashim alias Arif, who was 
declared a proclaimed offender in the instant case was 
                                                
8 Muhammad Nawaz Sharif's case (PLD 1993 SC 473); Mrs. Mamoona Saeed vs. Government of the Punjab (2003 YLR 
2379) 
9 Muhammad Ashraf Khan Tareen vs. The State (1996 SCMR 1747); Ishtiaq Ahmed Mirza vs. Federation of Pakistan 
(2019 PLD 675) 
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
14
subsequently arrested, tried and acquitted by ATC Hyderabad. The 
learned Counsel argued that since the co-accused has already 
been acquitted, the present accused Ahmed Omar Sheikh cannot 
be held guilty of the offence of criminal conspiracy. 
19. 
It is a fundamental principle of criminal jurisprudence that 
evidence of one case cannot be read into another case, and each 
case is to be decided in the light of evidence, so produced in that 
case alone.10 Therefore, the said ATC judgement of acquittal 
cannot be considered, as an additional piece of evidence by either 
party (prosecution or defence) in the present case. Even otherwise, the 
said judgement would be of no legal avail to the defence, as the 
same clearly states that the prosecution witness, namely, Asif 
Mehfooz Farooqui (PW-6) during his cross-examination did not 
recognise the person being tried, as Arif alias Hashim, whom he 
had met with Daniel Pearl on 11.01.2002 in Akbar International 
Hotel Rawalpindi.  
20. 
Now to the valued opinion of my respected brothers on the 
merits of the case. With all deference, I am unable to agree with 
their evaluation of prosecution evidence, the reasoning leading to, 
and their conclusion thereon. I, therefore, would most humbly offer 
my own reasons of dissent.  
Charge of Criminal Conspiracy 
21. 
The charge of criminal conspiracy is easy to allege and 
difficult to prove. However, it is one of the very serious offences, 
and it cannot be lightly adjudicated upon. Therefore, before 
adverting to the prosecution evidence, it would be appropriate to 
                                                
10 Khushi Muhammad alias Natho v. The State (PLD 1986 SC 146), Akbar Ali v. Qazi Javed Ahmad and others (1986 
SCMR 2018), Ali Sher v. The State (PLD 1987 Kar. 507) and Malik Aman v. Haji Muhammad Tufail (PLD 1976 Lah. 
1446) 
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
15
elaborate the substantive, procedural and adjective law relating to 
the offence. 
22. 
“Conspiracy” derives from the Latin words “con” and 
“spirare”, meaning “to breathe together”.11 In Halsbury's Laws of 
England, the English Law as to conspiracy consists of:  
“[an] agreement of two or more persons to do an unlawful act, or 
to do a lawful act by unlawful means. It is an indictable offence at 
common law, the punishment for which is imprisonment or fine 
or both in the discretion of the Court”.12  
 
A similar definition of conspiracy is provided in Black’s Law 
Dictionary as:  
“An agreement by two or more persons to commit an unlawful 
act, coupled with an intent to achieve the agreement’s objective, 
and (in most states) action or conduct that furthers the 
agreement; a combination for an unlawful purpose. Conspiracy is 
a separate offense from the crime that is the object of the 
conspiracy. A conspiracy ends when the unlawful act has been 
committed or (in some states) when the agreement has been 
abandoned. A conspiracy does not automatically end if the 
conspiracy’s object is defeated.” 13  
 
Therefore, the word “conspiracy” in its ordinary dictionary meaning 
has been described as: “an agreement by two or more persons to 
commit an unlawful act, coupled with an intent to achieve the 
agreement’s objective, and action or conduct that furthers the 
agreement; a combination for an unlawful purpose;14 to plot or 
scheme together: to devise: to act together to one end.15 
23. 
In 
American 
Jurisprudence, 
the 
concept 
of 
“criminal 
conspiracy” is not different, as being defined in the terms:  
“an agreement between two or more persons to accomplish 
together a criminal or unlawful act or to achieve by criminal or 
unlawful means…..[T]he unlawful agreement and not its 
accomplishment is the jist or the essence of the crime of 
conspiracy”.16 
 
                                                
11 Ibid No.4.  
12 Halsbury's Laws of England (vide 4th Ed. Vol. 11, pages 44, 58). 
13 Black’s Law Dictionary, 9th edn.  
14 Ibid.  
15 Chambers English Dictionary.  
16 American Jurisprudence (2nd Edition, Volume-16, page-129). 
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
16
24. 
The English Law on this matter is well settled, as Russell on 
Crime notes: 
"The gist of the offence of conspiracy then lies, not in doing the 
act, or effecting the purpose for which the conspiracy is formed, 
nor in attempting to do them, nor in inciting others to do them, 
but in the forming of the scheme or agreement between the 
parties, agreement is essential. Mere knowledge, or even 
discussion, of the plan is not, per se enough."17 
 
25. 
According to Dr. Sri Hari Singh Gour’s “Commentary on Penal Law 
of India”, the legal position is summed up in the following words:  
"In order to constitute a single general conspiracy, there must be 
a common design. Each conspirator plays his separate part in 
one integrated and united effort to achieve the common purpose. 
Each one is aware that he has a part to play in a general 
conspiracy though he may not know all its secrets or the means 
by which the common purpose is to be accomplished. The evil 
scheme may be promoted by a few, some may drop out and some 
may join at a later stage, but the conspiracy continues until it is 
broken up. The conspiracy may develop in successive stages. 
There may be general plan to accomplish the common design by 
such means as may from time to time be found expedient."18 
 
26. 
In our jurisdiction, the offence of criminal conspiracy has 
been defined in section 120-A, PPC and its punishment is provided 
under Section 120-B, PPC. There are also special rules of evidence 
regarding this offence embodied in Article 23 of the Qanun-e-
Shahadat, 1984. For ease of reference, the aforementioned 
provisions are reproduced, hereunder:  
“120-A. Definition of Criminal Conspiracy-  
When two or more persons agree to do, or cause to be done — 
(1) 
an illegal act, or 
(2) 
an act which is not illegal by illegal means,  
such an agreement is designated a criminal conspiracy: 
Provided that no agreement except an agreement to commit an 
offence shall amount to a criminal conspiracy unless some act 
besides the agreement is done by one or more parties to such 
agreement in pursuance thereof.  
 
Explanation.- It is immaterial whether the illegal act is the 
ultimate object of such agreement, or is merely incidental to that 
object.” 
 
“120- B Punishment of criminal conspiracy: 
(1) Whoever is a party to a criminal conspiracy to commit an 
offence punishable with death, imprisonment for life or rigorous 
imprisonment for a term of two years or upwards, shall, where no 
                                                
17 Russell on Crime notes: (12 Ed. Vol. I, p. 202) 
18 Dr. Sri Hari Singh Gour, 'Commentary on Penal Law of India', (Vol. 2, 11th Edn. page 1138) 
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
17
express provision is made in this Code for the punishment of 
such a conspiracy, be punished in the same manner as if he had 
abetted such offence.  
(2) Whoever is a party to a criminal conspiracy other than a 
criminal conspiracy to commit an offence punishable as aforesaid 
shall be punished with imprisonment of either description for a 
term not exceeding six months, or with fine or with both.” 
 
Article 23, Qanun-e-Shahadat, 1984 
“Things said or done by conspirator in reference to common 
design:   
Where there is reasonable ground to believe that two or more 
persons have conspired together to commit an offence or an 
actionable wrong anything said, done or written by any one of 
such persons in reference to their common intention, after the 
time when such intention was first entertained by any one of 
them, is a relevant fact as against each of the persons believed to 
be so conspiring, as well for the purpose of proving the existence 
of the conspiracy, as for the purpose of showing that any such 
person was a party to it.” 
 
27. 
Given the above statutory provisions, it can be noted that to 
constitute criminal conspiracy under section 120-A, PPC two 
essential elements are required to be proved: (i) intent to do or 
cause to be done an illegal act, or an act which is not illegal but by 
illegal means; (ii) existence of a conspiratorial agreement. Realising 
the clandestine nature of the offence, the legislature has employed 
a special rule of evidence, as provided under Article 23 of the 
Qanun-e-Shahadat, 1984. The said rule is an exception to the 
general rules of proof. This rule provides that there should be 
‘reasonable ground’ that a person was a party to the conspiracy 
before his acts, statements or writings can be used against his co-
conspirators. Mere association of a person with a conspirator or 
even a serious suspicion of one’s involvement with the other is not 
sufficient to constitute ‘reasonable ground’ for the former to be in 
conspiracy with the latter. Similarly, it is not necessary to establish 
by direct evidence that the accused and the person whose acts, 
statements or writings are sought to be given in evidence against 
the accused, entered into a formal agreement to commit an offence. 
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
18
In cases of conspiracy, direct evidence is seldom available and a 
conspiracy can be established by circumstantial evidence. On this 
subject, it is difficult to establish a general inflexible rule, as each 
case must be adjudged by its own peculiar circumstances. 
Therefore, strict proof of conspiracy is not necessary; what is 
required by Article 23 of the Qanun-e-Shahadat, 1984, is that 
there should be “reasonable grounds” to believe that the accused 
and the person whose acts, statements or writings are sought to be 
given in evidence have conspired to commit an offence or an 
actionable wrong.19 Where once the prosecution proves the 
existence of ‘reasonable grounds’ that two or more have committed 
an offence or an actionable wrong, anything said done or written 
by one of the conspirators in reference to the common intention, 
after the said intention was entertained, is relevant against the 
others, not only for the purpose of proving the existence of the 
conspiracy but also for proving that the other person was a party 
to it.   
There appears to be a judicial consensus in common law 
jurisdiction that: - 
I. 
The 
essential 
ingredients 
for 
constituting 
criminal 
conspiracy are; an agreement between two or more 
persons and the agreement must relate to doing or 
causing to be done either an illegal act or an act which is 
not illegal in itself but is done by illegal means. Mere 
common intention or discussion would not constitute the 
offence unless, there is an agreement.  
 
                                                
19 Bhagwan Swarup Lal Bishan Lal and others v The State of Maharashtra  (AIR 1965 SC 682) 
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
19
II. 
In most of the cases, criminal conspiracy is hatched in 
secrecy and no direct evidence could be obtained. 
Therefore, the circumstances and manner in which each 
accused plays his role and his level of involvement would 
be the relevant factors. The circumstances indicating the 
guilt of the accused would be cumulatively considered in 
view of the common design and object. The isolated 
approach, by evaluating the role of individual accused, 
cannot be adopted. However, the acts or conduct of the 
parties must be conscious and clear enough to infer their 
concurrence as to the common design and its execution. 
 
III. 
Each one of the accused is aware that he has a part to 
play in a conspiracy though he may not know all the 
details or the means by which the common purpose is to 
be accomplished.  
 
IV. 
The conspiratorial scheme may be promoted by a few, 
some may drop out and some may join at a later stage, 
but the conspiracy continues until it is broken up. 
 
V. 
The offence of criminal conspiracy is an exception to the 
general principle of criminal law requiring both, mens 
rea and actus reus. The offence of criminal conspiracy 
does not require any actus reus, and stands completed 
when the conspiratorial agreement is made.  
 
VI. 
Criminal conspiracy is an “independent offence”, and the 
means adopted by the conspirators may lead to 
commission of independent offences, for which they 
would be criminally liable in addition to the offence of 
criminal conspiracy. The marked yet subtle distinction 
between the offence of ‘criminal conspiracy’ and that of 
‘abetment’ has always remained a touchy issue. Any 
person, who is not privy to the conspiratorial agreement 
but aids and abets any person in achieving the unlawful 
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
20
goal of the criminal conspiracy would be committing 
abetment of the substantive offence, so committed in 
achieving the unlawful goal. In such cases, the person 
abetting 
would 
be 
charged 
for 
abetment 
of 
the 
substantive offences committed in achieving the ultimate 
unlawful goal and not for criminal conspiracy. 
   
VII. 
Criminal conspiracy is a ‘continuing offence’. The offence 
continues till the illegal object is achieved or when the 
same is abandoned by the conspirators.  
 
28. 
In the present case, the content and evidential value of the 
prosecution evidence to prove criminal conspiracy against the 
accused, would have to be viewed and evaluated in accordance 
with the principles enumerated, hereinabove. This would take us 
to first consider, Asif Mehfooz Farooqui (PW-6), who introduced 
himself as a journalist working for a Japanese news agency, and 
deposed that on 08.01.2002, he was contacted by Daniel Pearl 
through a mutual contact, seeking to arrange a meeting with Pir 
Mubarik Shah Gilani, who was said to be the spiritual guide of 
Richard Read known as the “shoe bomber”. He added that, he after 
making enquiries made contact with one Arif alias Hashim 
(absconding accused No. 3), who agreed to help, and took them to a 
house in Rawalpindi, where they were informed that Pir Mubarik 
Shah Gilani had moved out from the said house. He then on behalf 
of Daniel Pearl requested Arif alias Hashim to help in finding the 
whereabouts of Pir Mubarik Shah Gilani. Arif alias Hashim, after a 
few days called him to confirm a meeting with a Contact (‘Mureed’) of 
Pir Mubarik Shah Gilani for the evening of 11.02.2002 at Akbar 
International Hotel, Rawalpindi. Asif Mehfooz Farooqui (PW-6), 
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
21
further stated that on 11.01.2002, Arif alias Hashim after receiving 
him and Daniel Pearl at Akbar International Hotel, Rawalpindi 
went to the reception, to enquire about the contact of Pir Mubarik 
Shah Gilani. He was told that the said person was booked in room 
No. 411. When they got to room No. 411, it was locked. Daniel 
Pearl waited outside room No. 411, while they went down to the 
dining area, where Arif alias Hashim introduced him to the contact 
under the name of Bashir (later identified as Ahmed Omar Sheikh). 
Thereafter, all three went to room No. 411, where they along with 
Daniel Pearl discussed Pir Mubarik Shah Gilani for around three 
hours. A week later, Daniel Pearl informed him that Bashir (later 
identified as Ahmed Omar Sheikh) had arranged a meeting with Pir 
Mubarik Shah Gilani in Karachi.  
29. 
The testimony of Asif Mehfooz Farooqui (PW-6) was supported 
by Amir Afzal (PW-7), who introduced himself, as a receptionist in 
Akbar International Hotel, Rawalpindi. He independently confirmed 
that one Muzaffar Farooq (later identified as Ahmed Omar Sheikh) 
checked in room No. 411 of Akbar International Hotel, Rawalpindi 
at 18.15 hours on 11.01.2002 and checked out at 14.13 hours on 
12.01.2002, and that an ‘English man’ came to meet him during 
his stay at the hotel. More importantly, the witness admitted 
having prepared the ‘check-in sheet’ (Exh.P10/4), which confirmed 
the particulars about the name of the guest (Muzaffar Farooq-later 
identified as Ahmed Omar Sheikh), and the time and date of check-in 
and check-out of the said guest. Thus, the contact of Pir Mubarik 
Shah Gilani, who had introduced himself as Bashir to Asif Mehfooz 
Farooqui (PW-6) and Muzaffar Farooq to Amir Afzal (PW-7), was later 
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
22
identified by both the witnesses, as the same person, namely, 
Ahmed Omar Sheikh. Additionally, the evidence establishes that 
the deceit of Ahmed Omar Sheikh was fully known to Arif alias 
Hashim, as he was in complete knowledge of the two names he 
used in the hotel to hide his true identity, namely “Muzaffar 
Farooq”, when checking in as a guest, and as “Bashir” when being 
introduced to Asif Mehfooz Farooqui (PW-6) and Daniel Pearl. Still, 
the true extent of the deceitful design forming the conspiratorial 
agreement between Ahmed Omar Sheikh and Arif alias Hashim, 
was by then not clear, and only became evident as events were to 
unfold later in Karachi.  
30. 
The next prosecution witness is Nasir Abbas (PW-1), who 
deposed that he was a taxi driver, and a ‘white man’ hired his taxi 
at around 3.30 P.M., who was dropped at around 07.00 P.M. on 
23.01.2002, outside Village Restaurant, Metropole Hotel, Karachi, 
where he met a person (later identified as Ahmed Omar Sheikh) and sat 
with him and left in a White Toyota Corolla car.  
31. 
Nasir Abbas 
(PW-1) and Asif Mehfooz Farooqui 
(PW-6) 
identified Ahmed Omar Sheikh in two separate Test Identification 
Parades carried out by Irum Jahangir (PW-9), Judicial Magistrate, 
on 26.02.2002 and 06.03.2002, respectively. Both courts below 
have held not only that the two identifying witnesses are 
independent and trustworthy, but also declared the proceedings of 
the Test Identification Parades carried out by Irum Jahangir, 
Judicial Magistrate (PW-9) to comply with the governing law. These 
findings on fact and law appear to substantially comply with the 
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
23
settled principles on the matter and thus would have legal 
credence.  
32. 
The objection raised by the defence to the veracity of the 
testimony of Nasir Abbas (PW-1) was that he did not mention to 
Faisal Afridi and Marianne Pearl on 24.01.2002 that Daniel Pearl 
met and went with someone in a white Toyota Corolla car after he 
dropped him outside Village Restaurant, Metropole Hotel, Karachi. 
This challenge of the defence, is not of much factual or legal 
significance.  One must appreciate that when Nasir Abbas (PW-1) is 
first confronted by Faisal Afridi and Marianne Pearl on 24.01.2002, 
it was but natural and reasonable for them to be concerned with 
Daniel Pearl’s absence and not his abduction. In fact, according to 
the prosecution, the abduction of Daniel Pearl first surfaced when 
the email of 27.01.2002 was received. In these circumstances, it 
was logical and reasonable for Nasir Abbas (PW-1) in his initial 
statement of 05.02.2002 to the police under section 161, Cr.P.C., 
to not only mention but describe the person, Daniel Pearl last met 
and sat with in the white Toyota corolla car on 23.01.2002. It is 
worth noting that, when Nasir Abbas (PW-1) recorded his statement 
to the police under section 161, Cr.P.C. describing the “last seen” 
evidence, Ahmed Omar Sheikh was by then not in police custody, 
even according to the defence version. Thus, the assertion of the 
defence of police tutoring Nasir Abbas (PW-1) about the “last seen” 
evidence is contrary to the facts and bereft of merit.  
33. 
More importantly, the findings of the two courts below 
regarding the veracity and the evidential value of the testimony of 
Nasir Abbas (PW-1) qua the “last seen” evidence of Daniel Pearl with 
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
24
Ahmed Omar Sheikh on 23.01.2002 is neither absurd nor does it 
suffer from any misreading or non-reading of evidence. Similarly, 
the testimony of Asif Mehfooz Farooqui (PW-6), Amir Afzal (PW-7), 
and Nasir Abbas (PW-1) has concurrently been accepted as reliable 
and truthful, and the said three witnesses have been rightly 
declared to be independent and trustworthy. The careful review of 
their testimony establishes:  
i. 
that accused Ahmed Omar Sheikh was using multiple 
fake names 
(Bashir and Muzaffar Farooq) and was 
consistently trying to conceal his identity. 
 
ii. 
that accused Ahmed Omar Sheikh was the person who 
on 11/12.01.2002 met Daniel Pearl at Room No. 411 
at Akbar International Hotel, Rawalpindi. 
 
iii. 
that Daniel Pearl was “last seen” with accused Ahmed 
Omar Sheikh on 23.01.2002 in a White Toyota Corolla 
car near Metropole Hotel, Karachi. 
 
34. 
To ascertain what transpired after Daniel Pearl arrived in 
Karachi, and his being ‘last seen’ with Ahmed Omar Sheikh on 
23.01.2002, the confessional statements of the accused and the 
digital evidence produced by the prosecution would become very 
crucial.  
35. 
Starting with the confessional statement of Fahad Naseem. It 
was made before Irum Jahangir, Judicial Magistrate (PW-9), on 
21.02.2002. The questions asked, the certificate signed by her, and 
Fahad Naseem’s response thereto, would be relevant. The same, as 
noted therein, are reproduced for reference, hereunder: 
 
 
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
25
“FORM OF PROCEEDINGS IN RECORDING CONFESSION OF 
ACCUSED PERSONS 
(Section 164 of the Code of Criminal Procedure) 
 
In the Court of 1st Magistrate, South, Karachi 
 
The accused Fahad Naseem S/o Naseem Ahmed is brought by 
CIA Investigation Branch-II, Karachi Police Station before me at 
my Court at 1300 hours to have his confession recorded. A letter 
is given to me dated 21.02.2002 from the I.O. which is attached 
to the record. The offence is alleged to have been committed at 
Near Village Restaurant Towards East on 23.01.2002 at Nil and 
the accused is said to have been arrested at Flat No.01, Noman 
Grand City 6-C-J-B/No. 17 Karachi on 11.02.2002 at 0130 hours 
by Inspector Hameedullah Memon.  
The accused is placed in custody of Court staff and the 
Police is directed to leave the premises.  
 
The accused is warned that he is not bound to make a 
confession and that any statement he makes will be taken 
down in writing and may thereafter be used against him. He 
is then allotted time for reflection from 1300 to 1330 and 
during this period, the investigating police have had not 
access to him.   
 
The accused is again brought before me not in open Court 
but in my chamber because it is more appropriate.  
 
I have satisfied myself that there is no policemen in the 
Chamber or in any place whence the proceedings could be seen or 
heard.  
The accused is asked if he is disposed to make a 
confession of his own free will. He replies as follows: 
 
I want to give my statement with my own will.  
The body of the accused is examined with his consent 
and it is found that no mark of hurt or maltreatment.  
 
The accused is asked details as to the length of time 
during which and the duration wherein he has been in the 
custody of the police, do replies as follows:- 
 
I am in Police custody from 13/14 days.  
 
The accused is examined as follows, in order to ascertain 
whether he is disposed to make a confession of his own free will 
or under any inducement, threat or promise, the following and 
such other questions as may appear necessary to be made.  
 
(Every question and every answer to be recorded in full) 
Question:- 
Have you been given any inducement, threat or 
promise by the police or anyone else which induce you to 
make this confession? 
Answer: 
No. 
Question:- 
Have you been beaten, tortured or maltreated 
by the police? 
Answer: 
No. 
Question:- 
Has any family member of yours, male or female, 
been sent for by the police in order to pressurize 
you to confess? 
Answer: 
No.  
Question:- 
What are the circumstances which are inducing 
you to confess? 
Answer: 
I want to give this statement for my safety. 
Question:- 
Are you aware that I am a Magistrate, and if you 
make a confession, I am required to record it? 
Answer: 
Yes. 
Question: 
Are you aware that if you make a confession, it will 
be used against you at your trial and on its basis 
you 
may 
be 
convicted 
and 
sentenced 
for 
committing the offence of …..? 
Answer: 
Yes. 
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
26
Question:- 
What have to say? 
Answer: 
I am Computer Programmer and I am free now a 
days because I am searching job. On 22-1-2002 
my cousin Salman asked me to go with him for 
some important work and we will go at House No. 
D-17 in Muhammad Ali Society.  
Continued….. 
CERTIFICATE 
 
The accused make his confession and every question and 
answer is taken in full in writing, which is signed by him and also 
signed by me. The declaration required by Section 164(3) 
Criminal Procedure Code, is signed by me and appended and the 
whole is attached to the record. The confession has read over to 
the accused and he admitted it to have been correctly recorded.  
 
I am satisfied, for the following reasons that the 
confession made by the accused is voluntarily.  
 
The accused, after his confession has been recorded by 
me, is forwarded to the Central Jail, Karachi.  
Note: Mark of identification of accused Mole on left elbow. 
21.02.2002 
 
 
 
(Signature of Magistrate)  
  
 
 
 
 
 
(emphasis Provided)” 
 
36. 
Given the above, it is noted that the steps taken by Irum 
Jahangir, Judicial Magistrate (PW-9), before and during the 
confessional statement of Fahad Naseem, clearly indicates that: 
firstly, all the requisite information to be communicated to the 
accused and questions to be asked therefrom, as mandated under 
sub-section 3 of section 164, Cr.P.C, were duly complied with; 
secondly, Irum Jahangir, Judicial Magistrate (PW-9) provided 
sufficient time and free space to Fahad Naseem to contemplate his 
decision to record the confession or otherwise; thirdly, the 
statutory certificate was signed by Irum Jahangir, Judicial 
Magistrate (PW-9), the recording Judicial Magistrate, and thereby 
raising a presumption of correctness within the contemplation of 
Article 91 of the Qanun-e-Shahadat, 1984; and finally, though the 
assurance to send Fahad Naseem was not recorded in the ‘form of 
proceedings’, he was not handed over to the police but remanded 
to judicial custody.   
37. 
Additionally, there are three striking answers of Fahad 
Naseem to the questions asked by Irum Jahangir, Judicial 
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Criminal Petitions No. 1085 & 1086 of 2020 
 
27
Magistrate (PW-9) before recording his confession, which would be 
relevant, within the contemplation of the exclusionary rule 
safeguarding voluntariness of confessions, as provided under 
Article 37 of the Qanun-e-Shahadat, 1984. The said questions, and 
the answers thereto by Fahad Naseem are that: 
Question:- 
Have you been given any inducement, 
threat or promise by the police or any one 
else which induce you to make this 
confession? 
Answer: 
 
No. 
Question:- 
Have 
you 
been 
beaten, 
tortured 
or 
maltreated by the police? 
Answer: 
 
No. 
Question:- 
What are the circumstances which are 
inducing you to confess? 
Answer: 
I want to give this statement for my safety. 
 
The answer of Fahad Naseem to the first two questions distinctly 
reflects his relaxed state of mind and ease, reflecting his 
voluntariness in rendering the statement. It is, indeed, the answer 
to the third question that raises doubt regarding the reason for his 
making the confessional statement. The matter is clarified when 
Fahad Naseem is put the same question in his statement under 
section 342, Cr.PC. The question and his response thereto, were 
recorded in terms that:   
Q. 16. It has come in evidence that you in your judicial 
confession Ex. 50-A before the Judicial Magistrate authorized to 
record the same in which you have implicated yourself as well as 
other accused persons regarding commission of crime of 
abducting ransom conspiracy raising of demand and taking all 
such steps which were necessary and incidental to the 
establishment of the offence committed by you. What have you to 
say? 
 
Ans. This is incorrect as the learned J. Mag. has frankly admitted 
before the court during the trial that judicial confession was 
result of torture and it was extorted from me by the police under 
duress. This statement being not voluntarily and is inadmissible 
in evidence and can not be accepted.    
 
38. 
On a careful review of the above question and the response 
thereto, establishes that instead of explaining who or what 
threatened his safety, he introduced the factum of police torture, 
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Criminal Petitions No. 1085 & 1086 of 2020 
 
28
which he had categorically denied at the time of recording his 
confession before Irum Jahangir, Judicial Magistrate (PW-9). Thus, 
it would not be appropriate to accept this new stance and that too 
at a belated stage. Had he explained the ‘inducement’ for his 
confessing, without being contrary to his earlier response, it could 
have been considered a valid ground to discard his confession, but 
he did not do so.   
39. 
It seems the confusion regarding police torture on Fahad 
Naseem during his police custody first crept in, when Irum 
Jahangir, Judicial Magistrate (PW-9), during her cross-examination 
by the counsel for the accused Ahmed Omar Sheikh, stated that: 
“it is fact that the confession is not correct if it appears to the court, 
in case of the confession accused says that he is beaten by the 
police such confession is discarded. It is fact that to my question 
that whether accused was beaten tortured or maltreated by the 
police he replied that he has been maltreated and beaten and not 
today and not now. I am shown the confession at Page No. 02 it has 
been mentioned that body of the accused is examined which 
contains no finding and it is found that the finding as blank.” Later, 
the witness referring to the confessional statement of Fahad 
Naseem stated: “it is fact that from the confessional statement of the 
accused I am of the conclusion that the confession was not 
voluntarily, Because, voluntarily says that it is according to the 
circumstances of the case.” This assertion of Irum Jahangir, 
Judicial Magistrate (PW-9), has to be contextualized with her 
statement as a whole, and should not be considered in isolation, 
and that too without considering what Fahad Naseem actually 
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
29
stated in response to the query of ‘police torture’ sought by the 
Judicial 
Magistrate 
before 
recording 
his 
statement. 
More 
importantly, there is no specific statutory requirement stipulated 
in section 164, Cr.P.C. mandating the Magistrate to inform the 
accused that he would not be sent back to police custody should 
he decide to render a confession or not. The essential element was 
the satisfaction of the recording Magistrate that the confessional 
statement was voluntary. The fact that the recording Magistrate 
affixed her signature on the certificate revealed her state of mind, 
that at the relevant time when the confessional statement was 
being recorded, the said confession was voluntary. Thus, the 
absence of the said specific instruction to the accused by the 
recording Magistrate cannot be the sole reason for the court to 
discard the voluntariness or relevancy of the confessional 
statement.20  
40. 
On reviewing the matter, the picture that emerges is that: 
firstly, the issue of ‘police torture’ of Fahad Naseem was introduced 
during 
the 
cross-examination 
of 
Irum 
Jahangir, 
Judicial 
Magistrate (PW-9); secondly, that Fahad Naseem in his confessional 
statement out rightly denied being tortured during police custody; 
and lastly, Fahad Naseem, instead of explaining the ‘inducement’ 
he had for his ‘safety’, as referred to in his statement under 
section 342, Cr.P.C., took the cue of ‘police torture’ from the 
statement of Irum Jahangir, Judicial Magistrate (PW-9), and 
introduced the same in his statement under section 342, Cr.P.C., 
as a completely new stance.  
                                                
20 Nanji vs The State (1957 CriLJ 199); Nakula Chandra Aich vs. State of Orissa (1982 CriLJ 2158) 
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
30
41. 
Moreover, 
as 
noted 
earlier, 
there 
was 
a 
statutory 
presumption 
of 
correctness 
attributed 
to 
the 
confessional 
statement of Fahad Naseem, within the contemplation of Article 91 
of the Qanun-e-Shahadat, 1984, and thus to rebut the same, 
prompt, serious and effective grounds were required to be agitated, 
which are not forthcoming in the present case. One may, in such 
circumstances, ignore the belated and bold retraction of his 
confession and proceed to consider his confession, as a substantial 
piece of incriminating evidence against him, and circumstantial 
evidence against the other co-accused.  
42. 
Alternatively, the opinion of Irum Jahangir, Judicial 
Magistrate (PW-9), regarding the voluntariness of Fahad Naseem’s 
confession, which she expressed during her cross-examination, 
would best be appreciated, once we consider the same in 
juxtaposition with the confessional statement of Salman Saqib, 
and her opinion thereon at the time of recording the same, and her 
testimony as a witness. In this regard, it is noted that Salman 
Saqib rendered his confessional statement before Irum Jahangir, 
Judicial Magistrate (PW-9) on 01.03.2002. Two crucial glaring facts 
come to light, which appears to have escaped the attention of the 
recording judicial magistrate: firstly, the marked delay in recording 
his confessional statement qua his cousin, the co-accused Fahad 
Naseem, whom she had examined and recorded his confessional 
statement nine days earlier; second, the disturbing reply of Salman 
Saqib admitting to police torture during his police custody.  
The question and the reply thereto were as under:   
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
31
Question:- 
Have you been beaten, tortured or maltreated by 
the police? 
Answer: 
I have been beaten but no at present. 
  
43. 
What is pertinent to note is that there can be no single 
formula or set criteria for determining the voluntariness of a 
confessional statement. Each case has to be considered on its own 
particular circumstances and facts. In the case of Salman Saqib, it 
is noted with concern that there is a marked unexplained delay in 
his approaching the Judicial Magistrate for recording his 
confessional statement. This delay is made more profound because 
his cousin, Fahad Naseem, a co-accused in the present case, 
arrested on the same day as him, had earlier recorded his 
confessional statement, wherein he had implicated Salman Saqib. 
There is no explanation or circumstance, which would justify the 
said delay. Coupled with the distinct delay is the categoric 
statement of Salman Saqib being subjected to ‘police torture’ 
during his police custody. Thus, viewing these circumstances 
accumulatively, there remains no manner of doubt that the 
confessional statement of Salman Saqib is not voluntary, and thus 
it fails to pass the statutory test provided under Article 37 of the 
Qanun-e-Shahadat, 1984.  
44. 
Given the above, the opinion of Irum Jahangir, Judicial 
Magistrate (PW-9), qua the voluntariness of the judicial statement of 
Fahad Naseem is contrary to the facts, and thus would not be of 
much legal value. Moreover, it is alarming to note that when it 
came to the confessional statement of Salman Saqib, who had 
actually stated to have been tortured in police custody, she did not 
with the same vehemence declare his confessional statement to 
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Criminal Petitions No. 1085 & 1086 of 2020 
 
32
lack voluntariness. Even otherwise, the legal jurisdiction of the 
Judicial Magistrate recording the confessional statement of an 
accused is vested under section 164, Cr.P.C., which provides wide 
power to the recording Judicial Magistrate to refuse recording the 
confession, if it finds the same to lack voluntariness. But once, the 
certificate of correctness is signed, then the jurisdiction to adjudge 
the relevancy of confessional statement, within the contemplation 
of Articles 37, 38, 39 and 40 of the Qanun-e-Shahadat, 1984 vests 
upon the trial court, and not the Judicial Magistrate, who recorded 
the same. Thus, it may be safe to state that the opinion of Irum 
Jahangir, Judicial Magistrate (PW-9), as to the qualitative value of 
the statement made before her or the legal effect of existence of 
certain conditions or facts amounts to appreciation and evaluation 
of evidence, falls exclusively within the domain of the trial court to 
adjudge, and not the Judicial Magistrate, who had recorded the 
confessional statement. 
45. 
To sum up, the confession of Fahad Naseem, shows the ease 
with which each material fact relating to his introduction to Ahmed 
Omar Sheikh and their discussions in the two meetings they had, 
was narrated with all essential details, which provides a complete 
picture of the criminal conspiracy leading to sending the ransom 
and 
death 
threat 
emails 
of 
27.01.2002 
and 
30.01.2002, 
respectively.  
46. 
Now, moving to the digital evidence, which links the accused 
Ahmed Omar Sheikh and Fahad Naseem to the charge of criminal 
conspiracy. Jawed Abbas (PW-3) produced different emails dated 
27.01.2002 and 30.01.2002 (Exh.P/8). Importantly, the email dated 
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
33
27.01.2002 (Exh.P/8) was stated to be sent from internet café and 
the identity of the sender could not have been established. 
Whereas, the email dated 30.01.2002, which according to the 
prosecution’s case was also sent by Fahad Naseem was proved 
through independent and qualified witnesses, namely, Shaikh 
Naeem (PW-14) and Mehmood Iqbal (PW-18). The said email read as 
under: 
“Our purpose was not to cause any trouble for Pakistan, only to 
take it out of the slave-mentality it has towards Amreeka. Look, 
we took captive only one amreekan and our government kicked 
up such a fuss. Are not those Pakistanis detained in Cuba human 
being? Why is our government silent about them? Are there not 
amongst them some who may be wrongly accused? Why are they 
not allowed to prove themselves in a proper court instead of being 
left to the brutal decision of a vengeful amreekan war machine? 
Pakistanis have a right that their government should try to 
safeguard their right to the utmost of its ability. Then there are 
those Pakistanis who are languishing in detention in amreeka but 
who has no connection to terrorism or to any crime whatsoever. 
Why are they not allowed access to courts and lawyers to speedily 
clear themselves? 
Mula Zaif was the ambassador to Pakistan. How dare Amreeka 
break all international standards and take him into custody? Is 
this not a great insult for all Pakistanis? Amreeka took the 
payment for the f-16s and it then refused to deliver them and also 
to return the money, why is the government tolerating such 
outrageous high-handedness by amreeka? That money belongs to 
the Pakistani government and we will damn well get it back.  
Brother pakistanis, we may be militarily and economically weaker 
than some countries, but we are not cowards. 
We have interrogated mr.D.Pearl and we have come to the 
conclusion that contrary to what we thought earlier he is not 
working for the cia. Instead he is working for mossaad. therefore, 
we will execute him within 24 hours unless amreeka fulfils our 
demands. we apologise to his family for the worry caused and we 
will send them food packages just as amreeka apologised for 
collateral damage and dropped food packets on the thousands of 
people whose mothers, fathers, sisters and brothers, wives, sons 
and daughters, grandparents and grandchildren it had had killed. 
We hope Mr danny’s family will be grateful for the food packets 
that we send them just as the amreekan public expected the 
afghans to be grateful for the food packets its airforce was 
dropping on them. 
We warn all amreekan journalists working in Pakistan that there 
are many in their ranks spying on Pakistan under the journalist 
cover. therefore we give all amreekan journalists 3 days to get out 
of Pakistan. anyone remaining after that will be targeted. Some of 
our brothers in the Pakistani government have assured us that 
they will do their best to ensure the rights of all Pakistanis in 
custody the world over. May God enable them to fulfil their 
promise. If they break their promise then rest assured that there 
are many pakistanis who are ready to take steps for their 
wrongfully suffering brothers. and many amreekans who are 
sitting ducks.” 
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
34
 
47. 
Mehmood Iqbal (PW-18) deposed that he worked for the last 
six years in Web-Net Communication (“company”), an internet 
service provider firm, and he produced record from the computer 
server of the company, as Exh. 64-A. He testified that Mr. Zahoor 
Bashir the Security Manager of U.S Consulate on 31.01.2002, 
requested him to locate Internet Protocol (“IP”) addresses of two 
emails, including the forwarded email (pages 1 and 2 of Exh. 64-A), 
which in fact was the crucial ransom/death threat email of 
30.01.2002, with following particulars: 
I. 
Sender’s email address as  
strangepeoples@hotmail.com 
II. 
Public IP address 202.5.147.3 
III. 
Date and time (30-01-2002, 9:19:14 GMT)  
 
48. 
From the record of Web-Net Communications (Exh. 64-A page 
3 to 6), Mehmood Iqbal (PW-18) submitted that at the relevant time 
on 30.01.2002, the person, who emailed from strangepeoples@ 
hotmail.com used an internet connection, which was in the name 
of Shaikh Naeem (PW-14) against telephone number 8125028, who 
was one of the customers of the company (page 6 of Exh. 64-A). It 
may be noted that pages 4 and 5 of Exh-64-A contain the 
hyperlinks 
of 
the 
images 
sent 
through 
email 
ID 
strangepeoples@hotmail.com.   
49. 
In this sequence, the testimony of Shaikh Naeem (PW-14) was 
that he was an internet cable provider and extended internet 
service to the users through cable. He further testified that on 
08.02.2002, Hameedullah Memon, Inspector of Police (PW-23), 
visited him and inquired about how many users he had, and asked 
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
35
about complete record of a specific user, who emailed on specific 
date and time. The witness further submitted that he provided him 
the Contract Form of the user, who had emailed the specific email, 
and the same was in the name of Fahad Naseem (Exh.58-A), a 
Compact Disk (CD) of log files from his local Server (three system 
generated log files) (Exh.58-B), and Payment Register/billing record 
(Exh.58-C). The Contract Form (Exh.58-A) was examined, it was in 
the name of Fahad Naseem, with a signature affixed thereon. I 
compared the said signature on the Contract Form with his 
admitted signatures on his two Wakalatnamas already placed on 
the record, and found the same to be of the same person.  
50. 
During his cross examination, Shaikh Naeem (PW-14) further 
explained that Fahad Naseem was assigned a special User ID, 
which was password-protected, and the user was at liberty to 
change it at any time. He further deposed that the user was 
registered as User 66 in his internal record. He elaborated further 
that, he allocated private IP addresses to his users and the system 
at his end converted them to Public IP address allocated to him 
during 
transmission/translation 
process. 
The 
witness 
was 
subjected to a lengthy cross-examination, however, he established 
through system generated record (Exh.58-B), that an email from 
Hotmail account on 30.01.2002 at 14:19:43 PST was sent from the 
system of user allocated to Fahad Naseem.  
51. 
Thus, from the digital foot-prints, as produced by Shaikh 
Naeem (PW-14) and pointed out by Mehmood Iqbal (PW-18), the two 
totally independent and professionally qualified persons, it is 
established beyond any reasonable doubt that email dated 
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Criminal Petitions No. 1085 & 1086 of 2020 
 
36
30.01.2002 at 14:19:43 PST, which was sent from a Hotmail 
account, and it contained the information regarding kidnapping of 
Daniel Pearl and demands for ransom, originated from a 
connection owned by Fahad Naseem accused. These crucial pieces 
of evidence, regarding the email of 30.01.2002, create a complete 
digital chain, which leads to its origin, an account maintained in 
the name of Fahad Naseem. Accordingly, the requisite legal 
independent corroboration to the confession of Fahad Naseem has 
been duly provided by the two independent witnesses - Shaikh 
Naeem (PW-14) and Mehmood Iqbal (PW-18).  When the digital foot 
print linking the email of 30.01.2002 to Fahad Naseem is 
considered in juxtaposition with his confessional statement, it 
completes the picture of how he met accused Ahmed Omar Sheikh 
and their discussions regarding the preparation and execution of 
sending ransom demands.  
52. 
Keeping the prosecution evidence in its true and correct 
perspective, it is established beyond any reasonable doubt that: 
the identity of accused Ahmed Omar Sheikh, and him being part of 
the conspiratorial agreement with Arif alias Hashim and Fahad 
Naseem has been duly established; Ahmed Omar Sheikh was the 
person who met Daniel Pearl in Room No. 411 Akbar International 
Hotel, and was also ‘last seen’ with Daniel Pearl on 23.01.2002; the 
email dated 30.01.2002 at 14:19:43 PST was sent from the 
Hotmail account of accused Fahad Naseem on the directions of 
Ahmad Omar Sheikh.  
53. 
As for Fahad Naseem, his confession confirms his guilt of 
being part of criminal conspiracy to abduct Daniel Pearl for 
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
37
ransom. In this regard, he stated with such clarity that when he 
first asked about the details of the abduction, he was snubbed by 
Ahmed Omar Sheikh not to interfere in the said matter. However, 
he further candidly confessed that on 22.01.2002, Ahmed Omar 
Sheikh handed over to him, the written scripts of ransom note to 
be emailed, which he consented to send. Thus, the moment Fahad 
Naseem communicated his acceptance to Ahmed Omar Sheikh 
that the ransom demand in the written scripts would be emailed, 
he entered in the conspiratorial agreement to commit a crime, 
namely, a criminal conspiracy of abduction for ransom. His 
subsequent actions, thereafter, would not materially affect his 
culpability of committing the offence of criminal conspiracy. 
Indeed, it may constitute committing another crime – aiding or 
abetting the actual crime. In the present case, it is noted that his 
very act of emailing the ransom notes would constitute another 
crime - abduction of Daniel Pearl for ransom under section 365-A, 
PPC, which would be independent of his criminal culpability to 
commit the offence of criminal conspiracy of abducting him for 
ransom under section 120-A, PPC.  
54. 
The confessional statement of Salman Saqib, as discussed 
earlier, lacks voluntariness within the purview of Article 37 of the 
Qanun-e-Shahadat, 1984. The other pieces of prosecution evidence 
that connect him to the crime are the testimony of Rajesh Kumar 
(PW-13) and Mohammad Arif (PW-16). These two witnesses depose the 
purchasing of printer, scanner and polaroid cameras by Salman 
Saqib. To my mind, their testimony is of no legal credence or value, 
as the very recoveries of the said incriminating articles, at the time 
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Criminal Petitions No. 1085 & 1086 of 2020 
 
38
of arresting Fahad Naseem, are not beyond reproach. It is the case 
of the prosecution that Fahad Naseem was arrested from Flat 
No.01, Noman Grand City 6-C-J-B/No. 17 Karachi on 11.02.2002 
at 0130 hours, and on search of the said premises, a Del laptop, 
printer, scanner and written scripts of notes in Urdu and English 
were recovered. It does not appeal to reason and common sense 
that a person, who has sent via emails, ransom and death threats, 
would retain the written scripts thereof, to be recovered from his 
dwelling after eleven days of committing the crime. More than that, 
what has cast a serious doubt upon the time, place and manner of 
arrest and the recoveries made therefrom, is the testimony of 
another prosecution witness, Ronald Joseph (PW-8) who testified 
that he was handed over a Del Laptop for forensic examination on 
the evening of 04.02.2002 at the United States of America 
Consulate at Karachi.  
In addition, Ronald Joseph (PW-8) produced two Reports, which the 
prosecution claims to have forensically confirmed that the 
examination of the hard disc of the subject Del Laptop by Ronald 
Joseph (PW-8) had commenced on 07.02.2002. These facts 
completely contradict the prosecution’s version of recovering Del 
laptop on 11.02.2002. Similarly, the other recoveries made in the 
same raid on 11.02.2002, and in particular, the printer and the 
scanner would also become doubtful. Indeed, when one piece of 
evidence recovered is found to be tainted, then relying on the other 
incriminating material recovered therewith would not be just and 
legally correct. Thus, reliance thereon in any manner would be 
against the safe administration of criminal justice.  
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
39
55. 
Thus, the only evidence to link Salman Saqib with the crime 
is the confession of the co-accused Fahad Naseem. This single 
piece of evidence could not be more than circumstantial evidence, 
and would not alone, suffice to prove that Salman Saqib is guilty of 
committing criminal conspiracy to abduct Daniel Pearl for ransom. 
Convicting a person solely on the basis of the confession of a co-
conspirator on the strength of Article 23 of the Qanun-e-Shahadat, 
1984 would surely run counter to the settled principles of safe 
administration of criminal justice enshrined in Article 37 (supra). 
Thus, when the judicial confession of Salman Saqib has been 
legally discarded, then there remains no reliable evidence, other 
than mere suspicion of him being part of the conspiracy. This 
being so, the condition precedent of there being ‘reasonable 
grounds to believe’ Salman Saqib was part of a conspiratorial 
agreement, as envisaged under Article 23 of the Qanun-e-
Shahadat,1984 was starkly lacking.  Accordingly, the statements, 
writings or actions of Fahad Naseem could not implicate Salman 
Saqib to be part of the criminal conspiracy, within the 
contemplation of Article 23 of the Qanun-e-Shahadat, 1984.  In 
these circumstances, one can safely conclude that the prosecution 
did not produce sufficient trustworthy evidence to prove the charge 
of criminal conspiracy against Salman Saqib. 
As compared to Salman Saqib, the case of the prosecution against 
Sheikh Adil, is much weaker. Apart from the judicial confessions of 
Fahad Naseem and Salman Saqib, prosecution was unable to 
produce any credible evidence against him. And when the judicial 
confession 
of 
Salman 
Saqib 
has 
been 
legally 
discarded  
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
40
for being not voluntary, the only evidence against Sheikh Adil for 
committing criminal conspiracy to abduct Daniel Pearl for ransom 
is the statement of a co-conspirator, namely Fahad Naseem. As 
discussed earlier, the sole statement of a co-conspirator would not 
fulfill the condition precedent of there being ‘reasonable grounds to 
believe’ Sheikh Adil was part of a conspiratorial agreement, as 
envisaged under Article 23 of the Qanun-e-Shahadat,1984.    
Charge of Abduction 
56. 
Both the courts below have concurrently found that the 
prosecution has proved the charge of abduction of Daniel Pearl 
against Ahmed Omar Sheikh. It is with regard to the proof of 
demand of ransom by the accused that the appellate court has 
rejected the stance taken by the prosecution. This has led Ahmed 
Omar Sheikh to challenge his conviction and sentence for 
abduction under section 362, PPC awarded by the appellate 
court.21  
57. 
The prosecution has built the case of abduction on the 
following pieces of evidence: (i) the “last seen” evidence of him 
being with Ahmed Omar Sheikh, as testified by Nasir Abbas (PW-1); 
(ii) and also his identifying Ahmed Omar Sheikh in an 
identification parade carried out by a Judicial Magistrate; (iii) the 
supporting testimony of Jameel Yousaf (PW-2); (iv) and the adverse 
inference drawn from Ahmed Omar Sheikh being unable to 
reasonably justify his meeting and taking Daniel Pearl in the white 
Toyota Corolla car on 23.01.2002, and his whereabouts thereafter, 
in his statement under section 342, Cr.P.C.  
                                                
21 Criminal. Appeal No. 602 of 2020  
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41
58. 
It is important to note that the prosecution claims to have 
arrested Ahmed Omar Sheikh during the night of 13.02.2002 from 
a place near Jinnah International Airport, Karachi and recovered 
from his possession his personal belongings, which included 
written scripts of the ransom and threat emails of 27.01.2002 and 
30.01.2002, CNIC in the name of Muzaffar Farooq, a photocopy of 
CNIC in the name of Bashir, and receipts of purchases of polaroid 
cameras, scanner and printer. To start with, it does not hold to 
reason for any criminal, more so of one, whom the prosecution 
claims to be an international terrorist, to have in his possession 
such incriminating pieces of evidence almost twenty-one days after 
having committed the crime. Reason, logic, and common sense 
belies this very stance of the prosecution. Hence, all the recoveries 
made from Ahmed Omar Sheikh at the time of his arrest are 
undoubtedly suspicious, and thus, warrant to be discarded from 
consideration against the accused. 
59. 
Similarly, the prosecution version relating to the arrest of 
Fahad Naseem from a flat on 11.02.2002 at 0130 hours, and the 
recovery of a Del laptop, and other incriminating evidence also 
begs reasonable explanation.22 It is difficult to fathom that a 
criminal would retain such incriminating evidence in his dwelling 
place after committing the crime. More strikingly, the testimony of 
another prosecution witness, Ronald Joseph (PW-8) casts a very 
serious doubt on the recoveries so adamantly presented by the 
prosecution. These facts completely contradict, the case of the 
                                                
22 Paragraph 54.  
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
42
prosecution, as to the recovery of Del laptop on 11.02.2002 at the 
time of arresting Fahad Naseem. 
60. 
The worthy counsel for the parents of Daniel Pearl, when 
confronted to the above contradiction in the prosecution evidence, 
contended that the same be considered, as being ‘fruits of a 
poisonous tree’ and be held reliable, being admissible in evidence. 
The contention of the learned counsel, in the circumstances of the 
present case, is rather misplaced. From the forensic reports it has 
not been legally established that the recovered Del Laptop was 
linked to Fahad Naseem. The only evidence to link the two was the 
recovery of the Del laptop from the flat, wherefrom Fahad Naseem 
was arrested on the night of 11.02.2002. When the date of his 
arrest is made doubtful by the very statement of Ronald Joseph 
(PW-8) and the Reports, the link between the emails in the hard disc 
of the Del Laptop and Fahad Naseem is broken. Had the Report 
contained any private material relating to Fahad Naseem, 
independent of the ransom notes, the crucial independent link 
between him and the Del laptop would have been established, and 
the principle of ‘fruits of a poisonous tree’ could have been applied. 
In absence thereof, the contents of the Reports would be of no legal 
effect against accused Fahad Naseem. Similarly, the recovery of the 
printer and the scanner and its link to Fahad Naseem would also 
become doubtful, and thus could not be taken in evidence against 
him or any other co-accused. 
61. 
The defence has also produced Rauf Ahmad Sheikh (DW-1), a 
serving District & Sessions Judge, who testified that he on 
05.02.2002 personally took Ahmed Omar Sheikh to the residence 
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
43
of Mr. Javed, D.I.G. Lahore situated at G.O.R-I, Lahore, and made 
him surrender in the instant case. The very fact that a serving 
District & Sessions Judge undertakes to render his testimony in a 
criminal case in support of the accused, even if he is related to 
him, should not be taken lightly, especially, when he states, the 
time, place and person before whom Ahmed Omar Sheikh 
surrendered. In such circumstances, the prosecution could have 
moved the trial court to summon Mr. Javed, a serving Deputy 
Inspector General of Police, as a witness to testify otherwise which 
they did not.  
 
62. 
The above discussion, safely establishes, without any 
manner of doubt, that Daniel Pearl was ‘last seen’ with Ahmed 
Omar Sheikh, and the evidence to that effect has correctly and 
concurrently been held worthy of credence by the two courts 
below. To my mind, there appears no valid ground to differ with 
the said findings of the two courts below.  
63. 
Once the prosecution has proved that Daniel Pearl was “last 
seen” with Ahmed Omar Sheikh, then the “legal burden” under 
Article 117 of the Qanun-e-Shahadat, 1984 on the prosecution 
would stand discharged. And then for the accused to avoid 
conviction for the charge of abduction, he would have to discharge 
the “evidential burden” under Article 122 (supra) to provide a 
plausible explanation or produce evidence of facts to nullify the 
stance established by the prosecution. A mere bold evasive denial 
of Ahmed Omar Sheikh in his statement under section 342, 
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
44
Cr.P.C. would not legally suffice to escape criminal culpability.23  
Similarly, the confessional statement of Fahad Naseem duly 
corroborated by independent evidence has established beyond any 
manner of doubt that accused Fahad Naseem in the execution of 
conspiratorial agreement with accused Ahmed Omar Sheikh sent 
the email, making the demand for ransom for the release of Daniel 
Pearl.    
64. 
In view of the above, the prosecution has successfully proved 
the charge of abduction for ransom under Section 365-A, PPC 
against accused Ahmed Omar Sheikh and Fahad Naseem. 
Charge of Murder 
65. 
The main thrust of the prosecution to prove the charge of 
murder against the accused was based on four pieces of 
evidence:(i) “last seen” evidence of Nasir Abbas (PW-1); (ii) the video 
recording of the murder scene tendered in evidence by John 
Mulligan (PW-12); (iii) the admission of Ahmed Omar Sheikh that 
Daniel Pearl was dead during the remand proceedings before the 
Judicial Magistrate on 14.2.2002; and (iv) the wide press reporting 
of the said admission.  
(i) 
Last Seen Evidence  
66. 
“Last seen” evidence is merely a circumstantial evidence, and 
that too a weak type of evidence, which alone cannot sustain the 
weight of a capital punishment, and would require other 
independent corroborative evidence to effect conviction. In a case of 
murder, where the prosecution case rests on “last seen” evidence, 
then corroboration would be required from other circumstantial 
                                                
23 Rahmat v The State (PLD 1997 SC 515); (AIR 1927 Lah. 541); (PLD 1956 FC 123); (1972 SCMR 15); PLD 1966 SC 
644.  
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
45
evidence; each piece of such evidence would have to be proved to 
complete the chain, stemming from the accused being “last seen” 
with the deceased, leading to his death. To achieve this, the 
prosecution has to prove that the death of the deceased took place 
in close proximity to the time and place, where the accused was 
“last seen” with the deceased. Thus, the evidentiary value of the 
“last seen” evidence of an accused with the deceased will depend 
upon the facts and circumstances of each case, and for a court to 
reach a conclusion of guilt of the accused, such circumstances 
must not only be proved, but must also be found to be 
incompatible with the innocence of the accused, and incapable of 
explanation upon any other reasonable hypothesis than that of 
guilt.24  
67. 
Given that the prosecution proved the “last seen” evidence of 
Daniel Pearl before his disappearance being in the company of 
Ahmed Omar Sheikh, would not legally suffice to prove the charge 
of murder against Ahmed Omar Sheikh. As correctly observed by 
the appellate court, what was essential for the “last seen” evidence 
to be materially relevant in proving the charge of murder was when 
there was evidence to prove that the time and place of the murder 
of Daniel Pearl was in close proximity to where Daniel Pearl was 
“last seen” with Ahmed Omar Sheikh. As the prosecution failed to 
produce any such evidence, the said confirmed judicial finding on 
the “last seen” evidence would be of no avail to prove the charge of 
murder against Ahmed Omar Sheikh, much less the other three 
accused. 
                                                
24  Khurshid vs. The State (PLD 1996 SC 305) Muhammad Amin vs The State (2000 SCMR 1784)  
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
46
(ii) 
Video Recording 
68. 
John Mulligan (PW-12) produced a video cassette recording of 
a murder scene. The prosecution contended that the same was of 
Daniel Pearl, while the defence vehemently disputed the same. The 
law regarding admission of audio or video evidence has recently 
been considered in the case of Ishtiaq Ahmed Mirza and others v Federation 
of Pakistan25, wherein, inter alia, it was held that not disclosing the 
source of obtaining the video or forensically confirming it not to be 
tampered would render its admissibility at naught. In the present 
case, it is noted that the prosecution was neither able to produce 
any evidence regarding the source of the said video recording nor 
proved forensically that the same was not tampered. More 
importantly, as recorded by the appellate court, the video cassette 
recording did not show any of the accused committing the offence 
or being present at the time and place of occurrence shown in the 
video. Thus, the video cassette recording produced by the 
prosecution is of no legal avail to prove the charge of murder 
against all four accused.  
(iii) 
Admission made on 14.2.2002 
69. 
The prosecution has produced four witnesses namely Faisal 
Noor (PW-4), Ather Rasheed Butt (PW-5), Rao Muhammad Aslam (PW-
22) and Hameedullah Memon (PW-23), all contending that Ahmed 
Omar Sheikh during his first remand proceedings before the 
Arshad Noor Khan, Administrative Judge, Anti-Terrorism Court-III, 
Karachi admitted, inter alia; that he had abducted Daniel Pearl, 
who was by then dead. The prosecution further contends that this 
                                                
25 (PLD 2019 SC 675) 
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
47
admission on the part of Ahmed Omar Sheikh was widely 
published in the national newspapers.  
70. 
Arshad Noor Khan, Administrative Judge, Anti-Terrorism 
Court, Karachi before whom the alleged admission was stated to 
have been made on 12.04.2002 was not produced as a witness by 
the prosecution. The reason asserted by the prosecution for not 
producing him as a witness was that Article 4 of the Qanun-e-
Shahadat, 1984 barred a Magistrate to be produced for the said 
purpose. This submission is contrary to the record. All four 
prosecution witnesses produced to prove the said admission of 
Ahmed Omar Sheikh, in consonance testified that the admission of 
Ahmed Omar Sheikh was made, while he addressed the Presiding 
Judge, Arshad Noor Khan, Administrative Judge, ATC, Karachi in 
the court room, and that too in the presence of local and foreign 
journalists. This being so, the non-production of Arshad Noor 
Khan, Judge, ATC, Karachi after applying for the requisite 
permission from the Federal Government and the High Court of 
Sindh nullifies their final contention that the judicial officer could 
not be produced in view of the bar contained in Article 4 of the 
Qanun-e-Shahadat, 1984. The matter became more profound, as 
Arshad Noor Khan, Judge, ATC was present before the Anti-
Terrorism Court, Hyderabad on 22.05.2002 to record his 
testimony, when on the same day, the prosecution moved an 
application for his withdrawal, as a prosecution witness.   
71. 
It is also noted that the order sheet of the remand 
proceedings of 14.02.2002 is silent regarding the asserted 
admission of Ahmed Omar Sheikh. It was, thus, more of a reason 
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
48
for the prosecution to have produced Arshad Noor Khan, Judge, 
ATC, Karachi, as a prosecution witness. His testimony was the 
‘best evidence’ available with the prosecution to prove the asserted 
admission of Ahmed Omar Sheikh. This act of withdrawing the 
name of Arshad Noor Khan, as a prosecution witness, by itself, 
renders an adverse inference against the prosecution, within the 
contemplation of Article 129(g) of the Qanun-e-Shahadat, 1984.  
(iv)  
Press reports of Ahmed Omar Sheikh’s admission 
72. 
As for Press reports regarding the alleged statement of 
Ahmed Omar Sheikh is concerned, as discussed in detail earlier26, 
when the authors of press reports have not been produced to own 
their reporting, admitting the said reports, and that too, as proof of 
the contents thereof, would be against safe administration of 
criminal justice.  
73. 
In view of the above deliberations, we find that the 
prosecution has failed to prove the charge of murder against all 
four accused. 
Charge of Terrorism  
74. 
The term “terrorism” has been defined in section 6 of Anti-
Terrorism Act, 1997. A Larger Bench of this Court in the case of 
Ghulam Hussain v. The State27, has explained what acts would constitute 
an offence triable under the ATC. After deliberating exhaustively on 
the conflicting precedents, this Court finally held that: 
“16. 
For what has been discussed above it is concluded and 
declared that for an action or threat of action to be accepted as 
terrorism within the meanings of section 6 of the Anti-
Terrorism Act, 1997 the action must fall in subsection (2) of 
section 6 of the said Act and the use or threat of such action 
must be designed to achieve any of the objectives specified in 
clause (b) of subsection (1) of section 6 of that Act or the use 
                                                
26 Paragraph 16 and 17.  
27 (PLD 2020 SC 61) 
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
49
or threat of such action must be to achieve any of the 
purposes mentioned in clause (c) of subsection (1) of section 6 
of that Act. It is clarified that any action constituting an offence, 
howsoever grave, shocking, brutal, gruesome or horrifying, does 
not qualify to be termed as terrorism if it is not committed with the 
design or purpose specified or mentioned in clauses (b) or (c) of 
subsection (1) of section 6 of the said Act. It is further clarified 
that the actions specified in subsection (2) of section 6 of that Act 
do not qualify to be labelled or characterized as terrorism if such 
actions are taken in furtherance of personal enmity or private 
vendetta.”    
 
 
 
(emphasis supplied) 
 
75. 
When the facts of the present case are reviewed, it is noted 
that the motive of the crime was not any private dispute or 
vendetta against the Daniel Pearl, but went beyond it. The contents 
of the ransom and death threat email of 30.01.2002, make it clear 
that the motive of the accused to carry out the crime did not relate 
to any private dispute or vendetta with Daniel Pearl, but in fact, 
the matter was clearly the use of a threat designed to intimidate 
not only the Government of Pakistan, but also the foreign 
government and organisations to create a sense of fear and 
insecurity in the society. Thus, viewing the ‘design’ and ‘purpose’ of 
the Ahmed Omar Sheikh and Fahad Naseem to carry out the 
abduction of Danial Pearl for ransom, in the light of the principle 
laid down in Ghulam Hussain’s case (supra), brought the commission of 
the crime within the mischief of the term “Terrorism”, as envisaged 
under clause (b) of subsection (1) of section 6 of the ATA, 1997  
76. 
Thus, it would be correct to state that the prosecution was 
not only able to prove that the acts of Ahmed Omar Sheikh and 
Fahad Naseem, constituted ‘abduction for ransom’ within the 
purview of clause (e) of sub-section 2 of section 6, and the ‘design’ 
and ‘purpose’ of the crime, fall squarely in term of clause (b) of 
sub-section 1 of section 6 envisaged under ATA, 1997. Accordingly, 
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
50
Ahmed Omar Sheikh and Fahad Naseem are found guilty of the 
offence of terrorism punishable under Section 7 of the ATA, 1997.  
77. 
As for the reliance of the learned counsel for the parents 
of Daniel Pearl upon the judgment in Nazir Khan and others v. State of 
Delhi28 delivered by the Supreme Court of India, wherein, Ahmed 
Omar Sheikh along with others were stated to be nominated 
accused persons in FIRs registered in different Police Stations in 
Delhi, India for the offences of kidnapping foreigners for ransom; 
suffice it to state that Ahmed Omar Sheikh was never charged, 
tried or convicted in any of said cases. Thus, the cited judgement 
cannot be read or construed against him in any manner, 
whatsoever. 
 
Inordinate delay- Right to expectancy of life 
78.  It is extremely disturbing to note that the appeal of Ahmed 
Omar Sheikh against the conviction and sentence of death passed 
by the Anti-Terrorism Court dated 15.07.2002 remained pending 
before the High Court of Sindh for almost two decades. Admittedly, 
it is not the case of the prosecution that Ahmed Omar Sheikh 
delayed or was in any manner a cause for the delay in deciding his 
appeal. This being so, the State, and in particular, its criminal 
delivery system, is responsible for his prolonged incarceration in 
the death cell, without providing him his right to be dealt with in 
accordance with the law; of being heard by an appellate court in a 
reasonable time. This prolonged incarceration of around two 
decades in the death cell gave rise to his ‘right to expectancy of 
life’, entitling him to the sentence of life imprisonment, and not 
                                                
28 (AIR 2003 SC 2247) 
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
51
death. Even otherwise, when two worthy brother Judges having 
acquitted Ahmed Omar Sheikh of all charges, convicting and 
saddling him with the sentence to death, would not be akin to safe 
administration of criminal justice.   
Conclusion 
In view of the above deliberations, it is my considered view that: 
I. 
The prosecution has not been able to prove the charges 
framed against Salman Saqib and Sheikh Mohammad Adil, and 
they have been rightly acquitted by the learned Appellate 
Court. Therefore, Criminal Appeal No. 600 of 2020 & 
Criminal Petition No. 1086 of 2020 against their acquittal 
are dismissed and the judgement of the learned Appellate 
Court is maintained. 
II. 
The prosecution has been able to prove beyond reasonable 
doubt that Ahmed Omar Sheikh and Fahad Naseem have 
committed the offences under Section 365-A, PPC, Section 7 
of the Anti-Terrorism Act, 1997 and Section 120-B, PPC, 
thus, they are convicted for the said offences and sentenced 
to imprisonment for life on each count. Hence, Criminal 
Appeal No. 599 of 2020 and Criminal Appeal No. 600 of 2020 
(to the extent of Fahad Naseem) are allowed and Criminal 
Petition No. 1085 of 2020 and Criminal Petition No.1086 of 
2020 (to the extent of Fahad Naseem) are converted into 
appeal and is also allowed and the judgement of learned 
Appellate Court is modified, accordingly.  
III. 
Criminal Appeal No. 601 of 2020 for enhancement of 
sentences (passed by the trial court) of Fahad Naseem, 
Criminal Appeals No. 599, 600, 601 & 602 of 2020 and  
Criminal Petitions No. 1085 & 1086 of 2020 
 
52
Salman Saqib and Sheikh Muhammad Adil accused is 
dismissed.  
IV. 
Criminal Appeal No. 602 of 2020 filed by Ahmed Omar Sheikh 
against his conviction and sentence is also dismissed. 
The above deliberations were in furtherance of views rendered in 
the short order (minority view) dated 28.01.2021, which reads:  
“For the reasons to be recorded later, Criminal Appeals No. 599, 
600 & 601 of 2020 and Criminal Petitions No. 1085 & 1086 of 
2020 are partly allowed in the terms that Ahmed Omer Shaikh 
and Fahad Nasim are convicted under sections 365-A & 120-B, 
PPC and section 7 of the Anti-Terrorism Act, 1997 each and 
sentenced to imprisonment for life on each count. All the 
sentences passed against both of the convicts shall run 
concurrently. The benefit under section 382-B, Cr.P.C. shall be 
extended to them. To the extent of Syed Salman Saqib and 
Shaikh Muhammad Adil Criminal Appeals No. 599, 600 & 601 of 
2020 and Criminal Petitions No. 1085 & 1086 of 2020 are 
dismissed and their acquittal is maintained on all the charges, 
they shall be released from the jail forthwith if not required to be 
detained in connection with any other case. Criminal Appeal No. 
602 of 2002 filed by Ahmed Omer Shaikh is dismissed.” 
 
 
Judge 
 
