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Petitioner: Haroon-Ur-Rashid and another VS Respondent: Federation Of Pakistan and others
Court Name: Islamabad High Court Judge(s): Aamer Farooq, Miangul Hassan Aurangzeb Title: Haroon-Ur-Rashid and another vs Federation Of Pakistan and others Case No.: I.C.A. No. 225 of 2019 Date of Judgment:2020-08-18 Reported As: 2021 [M] C L R 52, PLD 2020 Islamabad 469 Result: Case remanded
JUDGMENT
JUDGMENT MIANGUL HASSAN AURANGZEB, J.---Through this judgment, we propose to decide Intra Court appeals (I.C.A. No.224 of 2019 and I.C.A. No.225 of 2019) since they entail certain common features. 2. Through I.C.A. No.225/2019, Haroon-ur-Rashid ("appellant No.1 ") and his son, Talha Haroon ("appellant No.2 ") impugn the judgment dated 03.05.2019 passed by the learned Judge-in-Chambers whereby writ petition No.1159/2017 filed by the appellants praying for the discharge of appellant No.2 against whom the Enquiry Magistrate, in his report dated 16.01.2017 , had found a prima facie case for his extradition to the United States of America ("USA ") under the provisions of the Extradition Act, 1972 ("the 1972 Act") was disposed of by setting aside the said enquiry report and remanding the matter to the Enquiry Magistrate with certain directions. 3. Through I.C.A.No.224/2019, the Federation of Pakistan also impugns the said judgment dated 03.05.2019 only to the extent of the learned Judge-in-Chambers holding that the witnesses who submit their affidavits in support of the extradition request have to be cross-examined and that the investigation officer of the country making the extradition request has to appear before the Enquiry Magistrate and record his evidence. 4. In this judgment, Haroon-ur-Rashid and Talha Haroon, the appellants in I.C.A. No.225/2019, shall be collectively referred to as "the appellants " whereas the Federation of Pakistan, the appellant in I.C.A. No.224/2019, shall be referred to as " the respondent ." 5. It is an admitted position that there exists an extradition treaty between the USA and the Islamic Republic of Pakistan ("Pakistan "). After the USA made a request to Pakistan for appellant No.2's extradition to USA, the Ministry of Interior , Government of Pakist an, vide order dated 03.11.2016 passed under Section 7 of the 1972 Act, directed Mr. Abdul Sattar Esani, Additional Deputy Commissioner (G), Islamabad to inquire into the case. Appellant No.2 was alleged to have been involved in a conspiracy to commit acts of terroris m in USA. The specific charges against appellant No.2 were stated to be as follows:-
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i) Count One: Conspiracy to use weapons of mass destruction, in violation of Title 18, United States Code (U.S.C.), Section 2332a(a)(2)(A), (a) (2) (B), and (a)(2)(D); ii) Count Two: Conspiracy to commit acts of terrorism transcending national boundaries, in violation of 18 U.S.C. and 2332b(a) (1) (A), (a) (1) (B), (a) (2), (b) (1) (A), (b) (1) (B), and (b) (2); iii) Count Three : Conspiracy to bomb a place of public use and ' public transportation system, in violation of 18 U.S. C. and 2332f(a)(1)(A), (a)(1)(B), (b) (1), and (b) (2); iv) Count Four : Conspiracy to provide material support or resources to terrorists, in violation of 18 U.S.C. and 2339A; and v) Count Five: Conspiracy to provide material support or resources to a designated foreign terrorist organization, in violation of 18 U. S.C. and 2339B. " 6. Vide Memorandum dated 09.11.2016, the Enquiry Magistrate was request ed by the office of the Chief Commissioner , Islamabad Capital Territory to hold an enquiry and furnish findings in the matter concerning appellant No.2's extradition to USA. On 03.11.2016, the Enquiry Magistrate issued non-bailable warrants for appellant No.2's arrest. Appellant No.2 was arrested on 18.1 1.2016 and is presently confined in judicial custody . 7. The Enquiry Magistrate, after inquiring into the matter , submitted his report to the Federal Government on 16.01.2017. In the said report, the Enquiry Magistrate concluded that on the basis of sufficient incriminating documentary evidence available on the record, a prima facie case for appellant No.2's extradition to USA was made out. Furthermore, it was ordered that appellant No.2 be kept in prison till the Federal Government issues the final orders regarding his extradition. 8. On 14.03.2017, the Ministry of Interior (Government of Pakistan) issued a warrant under Section 11 of the 1972 Act for the custody and removal/extradition of appellant No.2. In the said warrant, it was explicitly stated that it had been decided to deliver appellant No.2's custody at Islamabad to a representative of the Government of the United States for his extradition to USA for facing a trial for the charges against him. 9. On 25.03.2017, the appellants filed writ petition No.1159/2017 before this Court. In the said writ petition, the appellants/petitioners prayed for the issuance of an order for appellant No.2's discharge. Along with the said petition, the appellants filed an applicatio n for an interim injunction against appellant No.2's extradition. The effect of the interim order dated 27.03.2017 passed by this Court in W.P.No.1 159/ 2017 was that appellant No.2 was not extradited. The said writ petition was decided vide impugned judgment dated 03.05 .2019. As mentioned above, the said judgment has been assailed by the appellants as well as the respondent. 10. Primarily , the appellants' case is that since the evidence produced by the prosecution before the Enquiry Magistrate against appellant No.2 was found by the learned Judge-in-Chambers to be insuf ficient to justify his extradition he should have been discharg ed, and that the order to remand the case to the Enquiry Magistrate was unjustified. The respondent's case, in essence, is that the report dated 16.01.2017 issued by the Enquiry Magistrate did not suffer from any legal or jurisdictional infirmity , and that the law neither required the deponents of the affidavits filed in support of the extradition request to be cross-examined nor required the investigating officer in the requesting State to appear before the Enquiry Magistrate and give evidence. CONTENTIONS OF THE LEARNED COUNSEL FOR THE APPELLANTS (HAROON-UR-RASHID AND TALHA HAROON):- 11. Mr. Idrees Ashraf, Advocate, learned counsel for the appellants, submitted that the appellants agree with the major portion of the impugned judgment; that there is no legal infirmity in the obse rvation of the learned Judge-in- Chambers that an affidavit is inadmissible unless the deponent appears before the Court/Authority before which the affidavit is submitted and subjected to cross-examination; that as a result of the said observation, the prosecution's case is rendered as a case of no evidence; that in this scenario, the learned Judge-in-Chambers should have ordered for appellant No.2 to have been discharged and released; that the order to remand the case with the direction to hold a fresh enquiry is against the law; and that the direction for a fresh enquiry amounts to giving another opportunity to the prosecution to fill lacunae in their case. 12. He further submitted that the evidence produced before the Enquiry Magistrate in support of the request for appellant No.2's extradition was inadmissible; that the affidavits of the Assistant District Attorney and the
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Investigating Officer are entirely based on communications between an un-name d co-conspirator , an un-named undercover agent in USA, and appellant No.2; that in the said affidavits filed in support of the extradition request, the depositions of the deponents are based on information provided to them by the undercover agent; that such information is clearly hearsay in nature and cannot form the basis for an extradition order; that the affidavits of the co-conspirator and the undercover agent were not produced before the Enquiry Magistrate; that the Investigating Officer, in his affidavit, does not depose that he had collected any material connecting appellant No.2 with the Islamic State of Iraq and the Levant; that nothing incriminating was recovered from appellant No.2's house when it was raided by a local intelligence agency; that the offence which appellant No.2 is alleged to have committed is not an extradition offence either under the 1972 Act or the extradition treaty between Pakistan and USA; that an extradition treaty is to be strictly construed; that the offence of murder cannot be equated with the offence of terrorism; that since appellant No.2 had not committed any extradition offence, there was no reason for the learned Judge-in-Chambers to have remanded the matter for a fresh enquiry to the Enquiry Magistrate; and that since appellant No.2 is a citizen of Pakistan by descent, he has the protection of all the fundamental rights under the Constitution. Learned counsel for the appellants prayed for the impugned judgment dated 03.05.2019 to be modified and for appellant No.2 to be discharged and released. CONTENTIONS OF THE LEARNED ADDITIONAL ATTORNEY GENERAL ON BEHALF OF THE FEDERA TION OF P AKIST AN:- 13. Mr. Tariq Mehmood Khokhar , learned Additional Attorney General, on behalf of the Federation of Pakistan submitted that the report of the Enquiry Magistrate holding that a prima facie case for appellant No.2's extradition had been made out does not suffer from any legal infirmity; that appellant No.2 had conspired to commit acts of terrorism in USA; that ample evidence had been brought on record, in the form of affidavits, to show that appellant No.2 was involved in the commission of an extradition offence; that appellant No.2 in his communication with an undercover agent in USA had disclosed his plan to carry out acts of terrorism in USA; that appellant No.2 also had a co-conspirator with whom he intended to execute the acts of terrorism; and that appellant No.2 was not required in USA for any act of a political character . 14. He further submitted that the learned Judge-in-Chambers erred by not appreciating that there was no provision in the 1972 Act which required an officer investigating an offence in the requesting State to appear before the Enquiry Magistrate in Pakistan in order to give evidence in support of the extradition request; that there are several precedents where fugitive offenders, required by a requesting State to undergo a trial in such a State, have been extradited without the investigating officer being required to appear before the Enquiry Magistrate; that there is also no requirement in the 1972 Act for the deponent of a duly authenticated affidavit filed in support of an extradition request to appear before the Enquiry Magistrate for the purpose of cross-examination; that as long as the documents produced before the Enquiry Magistrate in support of an extradition request are executed in accordance with Section 9(2) of the 1972 Act, they are admissible in evidence; that the documents on which reliance was placed by the prosecution were authentic ated in accordance with Section 9(2) of the 1972 Act; that it is well settled that the proceedings before the Enquiry Magistrate are not a trial but simply an enquiry; that in such an enquiry the guilt of the fugitive offender need not be established; and that in such proceedin gs, the Enquiry Magistrate is to determine whether , on the basis of the documents on record, a prima facie case had been made out in support of the fugitive offender's extradition. The learned Additional Attorney General praye d for I.C.A. No.224/2019 to be allowed and for I.C.A.No.225/2019 to be dismissed. 15. The learned amici curiae submitted well-prepared briefs on the subject duly supported by case law . 16. We have heard the contentions of the learned counsel for the appellants and the learned Additional Attorney General as well as the learned amid curiae and have perused the record with their able assistance. The facts leading to the filing of the instant appeals have been set out in sufficient details in paragraphs 5 to 10 above, and need not be recapitulated. 17. Appellant No.2 is a citizen of USA. He was born in the United States on 14.10,1997. He possesses United States passport bearing No.510566088 issued on 27.01.2014. The gist of the allegations against appellant No.2 is that the investigation conducted by the Federal Bureau of Investigation ("F.B.I.") revealed that from April 2016
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onwards appellant No.2 and a Co-conspirator ("C.C.") (whose identity was not disclosed in any of the documents accompanying the request for appellant No.2's extradition) plotted to carry out deadly bombings in heavily populated areas of New York City for and in the name of the Islamic State of Iraq and the Levant ("I.S.I.L"), which was designated as a Foreign Terrorist Organization (" F.T.O.") by the United States Government. 18. On 27.09.2016, special agent Oscar M. Gifford of the U.S. Air Force Office of Special Investigations filed a criminal complaint (16 Mag. 6132) before United States Magistrate Judge Gabriel W. Gorenstein for the Southern District of New York, formally charging appellant No.2 with the commission of criminal offences against the laws of the United States. On 27.09.2016, Judge Gorenstein signed a warrant for the arrest of appellant No.2 based on the charges in the complaint. 19. Appellant No.2's extradition to USA was being sought so that he could undergo a trial for the offences he was alleged to have committed. Under the provisions of the 1972 Act, a fugitive offender suspected to be in any part of Pakistan can be extradited. "Fugitive offender " has been defined in Section 2(1)(d) of the 1972 Act to mean a person who is (i) being accused of an extradition of fence, or (ii) convicted of an extradition of fence. 20. The learned Judge-in-Chambers has drawn a distinction between a request for extradition of a fugitive offender who is alleged to have committed an extradition offence and the matter is at the investigation stage in the requesting State, and a request for extradition of a fugitive offender against whom a judgment, specifying his role, has already been passed in the requesting State. After drawing the said distinction, it has been held that in cases where a judgment has not been passed against the fugitive offender and the matter is at an investigation/enquiry stage in the requesting State, "the Inquiry Magistrate with a view to reach at just conclusion should also call the Investigation Officer of the requesting state, who inquired and investigated the crime in his own jurisdiction due to the reason that such Investigation Officer has collected the evidence and other incriminating articles, recorded the statements of witnesses through which he believes that fugitive offender is linked with the alleged crime." Furthermore, it was held that "such Investigation Officer of foreign jurisdiction has to appear before Inquiry Magistrate in Pakistan to record his statement and such witness is put to test of cross-examination so as to reach at just decision of the case in which the Inquiry Magistrate comes [to] a definite conclusion that as to whether a prima facie case has been made out against the fugitive offender or otherwise, failing which the admissibility of statement placed before the Inquiry Magis trate in shape of affidavit is of no legal worth." The above-referred ratio in the judgment passed by the learned Judge-in-Chambers is what the Federal Government is most aggrieved by . 21. As mentioned above, the 1972 Act provides a mechanism and procedure for the extradition of fugitive offenders who are alleged to have committed an extradition offence in the requesting State or have been convicted of such an offence by a Court in the requesting State. But the said Act does not differentiate between the manner in which evidence is to be produced before the Enquiry Magistrate during the enquiry proceedings for either category of the fugitive of fenders. 22. The mandate of Section 9(1) of the 1972 Act is that exhibits and depositions (whether or not they are received or taken in the presence of the person against whom they are used) and official certificates of facts and judicial documents stating facts, may be received as evidence in the proceedings before the Enquiry Magistrate if such documents are duly authenticated. Section 9(2) of the 1972 Act provides that warrants, depositions or statements on oath (which purport to have been issued, received or taken by any Court of justice outside Pakistan) and certificates of, or judicial documents stating the facts of, conviction before any such Court, shall be deemed to be duly authenticated if the requirements of Section 9(2)(a) to (d) of the 1972 Act are fulfilled. These requirements are as follows:- "(a) if the warrant purports to be signed by a Judge, Magistrate, or officer of the State where the same was issued or acting in or for such State; (b) if the depositions or statements or copies thereof purport to be certified, under the hand of a Judge, Magistrate or officer of the State where the same were taken or acting in or for such State, to be the original depositions or statements or to be true copies thereof, as the case may require; (c) if the certificate of, or judicial docum ent stating the fact of, a conviction purports to be certified by a Judge, Magistrate or officer of the State where the conviction took place or acting in or for such State; and
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(d) if the warrant, depositions, statements, copies, certificates and judicial documents, as the case may be, are authenticated by the oath of some witness or by the official seal of a minister of the State where the same were respectively issued, taken or given." 23. Section 9(1) of the 1972 Act does not provide a different mode for the production of evidence in the enquiry proceedings for the extradition of a fugitive offender alleged to have committed an extradition offence but not convicted of such an offence in the requesting State than the mode for the production of evidence in the case of a fugitive of fender who has already been convicted of an extradition of fence in the requesting State. 24. It is an admitted position that along with the request for appellant No.2's extradition, affidavits of Oscar M. Gifford (Special Agent with the Air Force Office of Special Investigations assigned as Task Force Officer with the New York Joint Terrorism Task Force of the Federal Bureau of Investigation) and George D. Turner (Assistant United States Attorney) were submitted. The said affidavits were sworn by the deponents before the United States Magistrate Judge, Southern District of New York. The request for appellan t No.2's extradition was also accompanied by a certification dated 17.10.2016 by Jeffrey M. Olson, Associate Director , Office of International. Affairs, Criminal Division, Department of Justice, USA, certifying that the affidavits of Oscar M. Gifford and George D. Turner were sworn before the United States Magistrate Judge on 14.10.2016. A certificate executed on 18.10.2016 by the Attorney General of the United States bearing the seal of the United States Department of Justice was also issued in support of the certification of Jeffery M. Olson. The request for appellant No.2's extradition was also accompanied by a certificate from John F. Kerry , then Secretary of State, Department of State, USA. All these documents were produced in evidence by Khalid Naeem, Public Prosecutor , FIA/Assistant Director Legal, Islamabad, during the enquiry proceedings before the Enquiry Magistrate. These affidavits were produced as Exhibits PG.3 to 13 and PG.47 to 63. The Enquiry Magistrate had put a differen t exhibit number on every page of the af fidavits. 25. It is not the appellants' case that any of the exhibits, depositions, official certificates of facts, warrants, or statements on oath filed along with the request for extradition were not duly authenticated in the manner as required by Section 9(2) of the 1972 Act. Nevertheless, it is our view that since the documents produced in evidence in support of the request for appellant No.2's extradition satisfied the requirements of Section 9(2) of the 1972 Act, they could have been taken into consideration and relied upon by the Enquiry Magistrate to form an opinion as to whether a prima facie case had been made out in support of the requisition for the surrender of appellant No.2. 26. In terms of Entry No.18(5)(c) in Schedule II read with Rule 3(3) of the Rules of Business, 1973, the subject of admission of persons into and departure of persons from Pakistan, including extradition and expulsion from Pakistan, is a subject to be dealt with by the Interior Division. We would tend to agree with the learned Judge-in- Chambers that henceforth, in order to eliminate any doubt as to the genuineness of the request for extradition and the affidavits, depositions and other docu ments accompanying such a request ought to be produced before the Enquiry Magistrate appointed pursuant to Section 7 of the 1972 Act by an officer duly authorized by the Section of the Ministry of Interior designated to deal with extradition requests. Furthermore, we also agree with the learned Judge-in-Chambers that the Federal Government ought not to act like a post office by simply forwarding an extradition request to an Enquiry Magistrate appointed pursuant to Section 7 of the 1972 Act. 27. When a requisition for the surrender of a fugitive offender is made to the Federal Government in accordance with Section 6 of the 1972 Act, the Federal Government, before issuing an order to an Enquiry Magistrate to inquire into the case in terms of Section 7 of the 1972 Act, is expected in the very least to satisfy itself on the following matters:- i) Whether the requesting State is included in the list of foreign States published by the Federal Government in the official gazette under Section 3(1) of the 1972 Act, with which an extradition treaty is in operation, and is therefore a treaty State for the purposes of the 1972 Act. ii) Whether the offence, which the fugitive offender is alleged to have committed or for which he has been convicted in the requesting State, is specified in the declaration made by the Federal Gove rnment pursuant to Section 3(2) and (3) of the 1972 Act.
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iii) Whether the offence, which the fugitive offender is alleged to have committed or for which he has been convicted in the requesting State, is an "extradition offence" as defined in Section 2(1)(a) of the 1972 Act and finds mention in the Schedule to the said Act. iv) Whether the request for the extradition of a fugitive offender has been made to the Federal Government in accordance with the manner prescribed in Section 6 of the 1972 Act. v) Whether the Federal Government is satisfied in terms of Section 5(2)(a) of the 1972 Act that the offence in respect of which the surrender of a fugitive of fender is sought is not of a political character . 28. Now, the learned Judge-in-Chambers has taken the view that a fact deposed in an affidavit produced in evidence would be considered admissible if the deponent appears before the Court or authority before whom the affidavit has been submitted. In holding so, the learned Judge-in-Chambers placed reliance on Article 10A of the Constitution and the law laid down by the Superior Courts in the cases of Bank of Punjab v. Messrs Anmol. Textiles Mills Ltd. and others (2017 CLD 631), Muhammad .Tabbasum v. Mehmood (2017 CLC 1221 High Court AJK), Abdul Majeed v. Abdur Rashid (PLD 2016 Lahore 383), Mst. Iqbal Bibi v. Learned Additional District Judge and others (2014 MLD 1206 ), and Bashir Ahmad v. Abdul Wahid (PLD 1995 Lahore 98). Indeed in the said judgments, it has been held inter alia that where the deponent of an affidavit produced before the Court does not appear before the Court to unde rgo the test of cross-examination, the facts deposed, in the affidavit would be of no evidentiary value. 29. We have noted that none of the judgments referred to by the learned Judge-in -Chambers relate to extradition proceedings under the provisions of the 1972 Act. Additionally , the said judgments relate to the evidentiary value of an affidavit where the deponent does not appear before a Court to make a statement in support of the facts deposed in the af fidavit or to be cross-examined during a trial as opposed to enquiry proceedings. 30. We find the observations of the learned Judge-in-Chambers to the effect that the affidavit produced in support of an extradition request to be no evidentiary value unless the deponent is produc ed for cross-examination not to be in consonance with the law laid down by the Superior Courts. In the case of Abdul Ghaf far v. Federation of Pakistan (PLJ 1999 Lahore 348), the Enquiry Magistrate, in his enquiry report, had recommended that the petitioner be extradited to USA. In the said case, the prosecution had produced before the Enquiry Magistrate depositions of special agents of the Drug Enforcement Agency of USA. These…
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