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Petitioner: NARGIS SHAHEN VS Respondent: ADDITIONAL DEPUTY COMMISSIONER (GENERALR)
Court Name: Lahore High Court Judge(s): Raja Afrasiab Khan, Ch. Mushtaq Ahmad, Khan Riaz-ud-Din Ahmad Title:NARGIS SHAHEN vs ADDITIONAL DEPUTY COMMISSIONER (GENERALR)
JUDGMENT
Reported As: K.L.R. 1993 Criminal Cases 409 Result: leave grant Judgment JUDGMENT CH. MUSHTAQ AHMAD KHAN, J.- This judgment shall be read, as facts reasons part, of our short order dated 25.5.1993, whereby after hearing arguments in the writ petition, we had dismissed the same, for reasons to be recorded later. 2. Through this Constitutional petition, Nargis Shaheen, wife of one Mian Muhammad Azam, has challenged the legality and vires of the report/order dated 15.2.1993 submitted by Additional Deputy Commissioner (General) Islamabad, respondent No.4, to the respondent No.1\ recommending extradition of Muhammad Azam accused, to U.S.A, and the order dated 3.5.1993 passed by the Federal Government of Pakistan, respondent No.1\, whereby Mian Muhammad Azam referred to above, has been ordered to be extradited to United States of America, to face investigation and trial in a case Registered against him on the basis of allegations of conspiring to import and trafficking of heroin to the said country, in violation of law of that country. 3. Briefly slated facts of the case out of which this writ petition has arisen are that vide requisition dated 2.6.1992, submitted under the provision of Section 6 of the Extradition Act, 1972, (which shall be referred as "act" in later part of this judgment), Government of the United States of America, through their diplomatic channel, had asked for surrender of Mian Muhammad Azam alias Muhammad Azam resident of House No.11-A, Lane No.6, Officers Colony, Ghazi Road, Saddar Lahore, who is a citizen of Pakistan, to face investigation and trial, for his alleged involvement in conspiracy
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to distribute and possess with the intent to distribute heroin, in violation of 21 U.S.C. 812, 841(A) (I), 841 (B) (1) (A) 812, 952 and 960 (B) (1) (A), in case of indictment No.92 C.R. 431 filed on 18th May, 1992 in the U.S.A. District Court for the Southern District as under:- UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK. UNITED STATES OF AMERICA VS. MIAN MUHAMMAD AZAM AND I AITEMAD LODHI, Defendants. INDICTMENT 92-CRIM.. 431 COUNT ONE. The Grand Jury charges:- 1. From on or about April 8,1992, to on or about May 15, 1992, in the Southern District of New York and elsewhere, MIAN MOHAMMAD AZAM AND AITEMAD LODHI, the defendants, together with others known and unknown, unlawfully, intentionally and knowingly combined, conspired, confederated and agreed together and with each other to violate the narcotics laws of the United Slates, to wit, Sections 812, 841 (a) (I) and 841 (b) (1) (A) of Title 21, United States Code. 2. It was a part and object of this conspiracy that MIAN MOHAMMAD AZAM AITEMAD LODHI, the defendants, and their co- conspirators would and did distribute, and possess with intent to distribute, one kilogram and more of a mixture and substance containing a detectable amount of heroin, in violation of Section 812, 841 (a) (1) and 841 (b) (1) (A) of Title, 21, United Stales Code. OVER ACTS 3. In furtherance of this conspiracy and to effect the illegal objects thereof, the following overt acts, among others, were committed in the Southern District of New York and elsewhere: (a) On or about April 8, 1992, MIAN MOHAMMAD AZAM the defendant, met with a confidential enforcement (Cl) of the Drug Enforcement Administration ("DEA") in Lahore, Pakistan and asked C/l to obtain clearance through Pakistan Customs for a shipment of heroin. (b) On or about April 17, 1992, MIAN MOHAMMAD AZAM, the defendant, gave C/I approximately $ 1,000 in partial payment for C/I's assistance in obtaining clearance through Pakistan Customs for the heroin shipment. (c) On or about April 23, 1992, MIAN MOHAMMAD AZAM, the defendant, requested C.1 to hire a courier to transport a shipment of heroine to New York, New York. (d) On or about April 29, 1992, MIAN MOHAMMAD AZAM, the defendant, placed two suitcases containing approximately two kilograms of heroin inside the trunk of C/I's car. (c) On or about May 15, '1992, AITEMAD LODHI, the defendant, telephoned a DEA Special Agent working in an under-cover capacity ("U/C") at a hotel located in the vicinity of 230 East 51st Street, New York, New York.
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(f) On or about May 15, 1992, AITEMAD LODHI, the defendant, brought approximately $20,000/- to a hotel located in the vicinity of 230 East 51st street, New York, New York, to exchange a suitcase containing approximately one kilogram of heroin. Title 21, United Stales Code, Section 846). COUNT TWO. The Grand Jury further charges: 4. From on or about April 8, 1992, to on or' about May 15, 1992 in the Southern District of New Yark and elsewhere, MIAN MOHAMMAD AZAM AND AITEMAD LODHI, the defendants together with others known and unknown, unlawfully, intentionally and knowingly combined, conspired, confederated and agreed together and with each other to violate the narcotics laws of the United States specifically sections 812, 952(a) and 960 (b)(1)(A) of Title 21, United States Code. 5. It was a part and object of the conspiracy that MIAN MOHAMMAD AZAM AND AITEMAD LODHI, the defendants and their coconspirators, unlawfully, intentionally and knowingly, would and did import into the United Slate from a place outside thereof, to wit, Lahore Pakistan, one kilogram and more of a mixture and substance containing a declarable amount of heroin, in violation of section 812, 952(a) and 960(b) (1)(A) of Title 21, United States Code. OVER ACTS 6. In furtherance of the conspiracy and to effect the illegal objects thereof, the following over acts, among others, were committed in the Southern District of New York and elsewhere:- (a) On or about April 8, 1992, MIAN MOHAMMAD AZAM, the defendant, met with a confidential informant (C/I) of the Drug Enforcement Administration (SEA) in Lahore, Pakistan and asked C/l to obtain clearance through Pakistan Customs for a shipment of heroine. (b) On or about April 17, 1992, MIAN MOHAMMAD AZAM, the defendant, gave C/I approximately $1,000 in partial payment for C/I's assistance in obtaining clearance through Pakistan Customs for the heroin shipment. (c) On or about April 23, 1992, MIAN MOHAMMAD AZAM, the defendant, requested C/l to hire a courier to transport a shipment of heroin to New York, New York. (d) On or about April 29, 1992, MIAN MOHAMMAD AZAM, the defendant, placed two suitcases containing approximately two kilograms of heroin inside the trunk of C/I's car. (e) On or about May 15, 1992, AITEMAD LODHI, the defendant, telephoned a DEA Special Agent working in an under cover capacity (U/C) at a hotel located in the vicinity of 230 East 51st Street, New York, New York. (0 On or about May 15, 1992, AITEMAD LODHI, the defendant, brought approximately $2,000 to a hotel located in the vicinity of 230 East 51st Street, New York, New York, to exchange a suitcase containing approximately one kilogram of heroin.
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(Title 21, United States Code, Section 963). 4. On the receipt of said requisition Government of Pakistan respondent No.1\, initially appointed Mr. Aftab Habib, Additional Deputy Commissioner (General) as Enquiry Officer vide order dated 6th of June, 1992, who partly conducted the enquiry proceedings. On his transfer respondent No.4 was appointed to conduct the further enquiry proceedings vide order dated 6th of October, 1992. 5. During the enquiry proceedings Mian Muhammad Azam accused was arrested and sent to judicial lock-up. Prosecution examined two listed witnesses in support of the prosecution case namely Mr. Muhammad Shoaib Saeed, Section Officer, Ministry of Interior, Govt, of Pakistan Islamabad, and Mr. Sher Gul Khan Investigative Assistant, Drug Enforcement Administration of the United States of America (an attached department of US Embassy in Pakistan). 6. Shoaib Saeed, (PW1) has deposed that the Ministry of Interior, had received the requisition consisting of extradition documents from the USA through the Ministry of Foreign Affairs on 3.6.1992, asking for the surrender of Mian Muhammad Azam accused. This witness has placed on record and proved the following documents:- i) A certificate issued by the U.S. Secretary of State (Ex PI). Li) Certificate issued by the Deputy Assistant Attorney General for administration under the seal of US Department of justice (EX P2). Iii) Certificate of Mr. Georage W. Proctor Director Officer of International affairs US Department of justice Washington D.C. Dated 29th May, 1992 Ex.P/3. Iv) Affidavit of Mr. Sharon L. Davies, prosecutor of States of New York, Country of New York, Southern District of New York, It has been authenticated by M. Sharon E. Grubin, United States Magistrate Judge, Southern District New York, USA (Ex. P4). v) Certified true copy of the indictment of Mian Muhammad Azam, filed on 19th of May, 1992, in the US District Court, Southern District of New York attested by the Foreperson of the Grant Jury and the United Slates Attorney. This is also attested by Deputy Flerk, Mr. James M. Parkison of the Court. (Ex. P5). vi) Original warrant of arrest of Mian Muhammad Azam issued on 19th May, 1992 by the US Magistrate Judge (Ex. P6). Vii) Affidavit of Mr. Sher Gul Khan sworn to before US Magistrate Judge of the US District Court of New York dated 22nd May 1992 and attested by the US Magistrate Judge, Southern District Judge, USA (EX.P7). viii) True copies of two photographs of Mian Muhammad Azam (Ex. P8). Ix) Original affidavit of Mr. Charles Flee sworn to before U.S Magistrate Judge of the U.S. District Court (Ex. P9).
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x) True copies of photographs of Mian Muhammad Azam (Ex. P10). Xi) The witness further stated that on consideration of the affidavit and certificates etc. Contained in the documents, the Ministry of Interior decided to hold an enquiry through a Magistrate 1st class and a copy' was issued on 6.6.1992 (Ex. P.11) for the appointment of Additional Deputy Commissioner (G) Islamabad as an enquiry Officer for determining whether a prima facie case exists against Mian Muhammad Azam accused, to stand trial before the U.S. Court. Xii) The witness also placed on record photo copy of Extradition Treaty between Great Britain and USA (Ex P/12) and it was extended to India by the order of the counsel dated 23.2.1942. He also produced a copy of list of the Extradition states issued vide SRO 211 (l)/73 dated 20.2.1973 (Ex.P.13) in which the name of United Slates of America is mentioned as a Treaty States. During the course of cross-examination, the witness has stated that the documents Ex.PI to Ex.P13 have been authenticated under the seal of Secretary of State of the USA and have. Been attested by the Attorney General of the said country and have been further authenticated by the Deputy Attorney General. According to the witness, the documents in question are original documents which were sworn and subscribed to, before the respective court and that document Ex. P4 to Ex. P10 arc certified as true copies of the documents mentioned in the official file maintained by U.S. Department of Jutice in Washington by its Director, Office of International affairs. This witness has stated that no new treaty of extradition between U.S.A and Pakistan was signed after the promulgation of Extradition Act, 1972, as the previous treaty between the USA and Great-Britain has been adopted as per provisions of the "Act". This witness has further stated that before passing of the order for holding of an enquiry, the competent authorities applied mind to the facts and circumstances of the case and passed a judicious order for holding of an enquiry under provision of section 7 of the "Act". 7. Mr. Sher Gul Khan, Investigative-Assistant, Drug Enforcement Administration of the United States of America, at Lahore, appearing as PW.2, has deposed that he is working as an Investigative Assistant since 1984 with U.S. DEA and that he has been associated with the investigation of the drug related activities of the accused since November/December, 1991. He has stated that during earlier part of April 1992, a confidential informant of the DEA informed us that he had been approached by the accused to help him to export multi kilogram quantities of heroin from Pakistan to USA. Numerous telephonic conversations in this behalf between the confidential informant and the accused, were recorded. On 22.4.1992, the confidential informant made a telephonic call to the accused which was also recorded, in which call Mian Muhammad Azam has asked the C-I to assist him in clearing the consignment of heroin from Lahore and deliver the same in USA. Thereafter, Muhammad Waris a clearing agent who was acting as C-I in this case, was empt by Mian Muhammad Azam at his residence after midnight on 23.4.1992, where he arrived at in a red Suzuki car registration No. Alto LOA 1290. In the meeting the accused asked the C-I to arrange the delivery of heroin from Lahore tp New York which consignment was promised to be delivered to him at Lahore within $ week. This meeting & conversation was recorded on video and audio/tapes. On 29.4.1992 at about 4.00 P.m. Mian Muhammad Azam, accused told the C-Ton telephone that he would be coming to deliver the heroin in the office of the confidential informant at about 5.00 p.m. This conversation was also recorded. At the appointed time, the witness^alongwith other witnesses of DEA parked their cars outside the office of the C-I. It was observed that Mian Muhammad Azam accused arrived in the office of the C-I in a red Suzuki car registration No,LOA.1290 and parkd the vehicle beside the vehicle of C-I. He took out two suit-cases from his car and placed them in the vehicle of C-I. Thereafter he drove away. The C-I drove his vehicle to the place where the witness
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as well as the other members of the trap party were present and handed over the two suit-cases delivered by the accused to the trap party. This activity of the accused was also recorded on a video tape. Subsequently the suit-cases were taken to the DEA Office at Lahore and initial field test was performed on a white powdery substance which Was extracted from the false linings of the suit-cases. As per field test, it was prima facie proved that the powder is a derivative of opium. The two suit-cases were then sealed and placed in a security vault at the DEA Office Lahore. On 8.5.92, the witness alongwith special agent Charles Lee of DEA left Lahore for New York. On reaching New York as per previous arrangement Mian Muhammad d Azam accused was informed by the C-I that the said heroine had safely arrived m New York, which can be collected as per his instructions, from a Pakistani national named Shahid Ali (code name being used for PW-2) at the given address of a Hotel. On 15th May, 1992, at about 4.00 p.m. The witness received a telephonic call in his room in the hotel, where he was staying, from one person who disclosed his name as 'Amjad' who asked for the delivery of the heroin to him as per instructions of the accused. He was asked to come and collect the drug. After about 30-minutes thereafter, said person arrived in the room. At that time special agent Robin Waugh of DEA New York was also present. Other agents were present in the adjoining room. The said person had brought with him a brown backet containing US currency amounting U.S. Dollars 20. (XK)/- which was to be taken to Pakistan to be handed over to the accused as a return for one suit-case. Other suitcase was to be collected on payment 20 thousands U.S. Dollars more. He further conversed that the heroin was concealed in the two suit cases by the accused in his presence in Pakistan and that he had been a business partner in drugs with Mian Muhammad Azam tor the past several years. This conversation was also recorded on audio tape. Shortly, thereafter, the said person was arrested for receiving and possessing heroin, prohibited drug whereupon he disclosed his correct name as Aitemad Lodhi, and stated that prior to coming to the hotel he had received a telephonic call from the accused who had given him the telephone and room number of the hotel and also the name of the person i.e. Shahid (code name being used by PW.2) from where and from whom the heroine i^ to be collected. During the course of cross- examination, a suggestion has been given to witness that one "sweetie', who is the daughter of Film Star "Laila" and is the Ex-wife of Mian Muhammad Azam, has illicit relations with him and therefore on her asking the witness has involved the accused in this false case. The suggestion has been denied by him. Evidence was dosed by the public prosecutor on 22.10.1992. 7-A. Mian Muhammad Azam was examined under section 3H Cr.P.C., who denied the allegations levelled against him and stated that he is innocent and shall produce evidence in defence. Consequently, he was directed to produce his defence evidence on 18.11.92. On the date fixed however, he was not produced before the enquiry officer from the judicial lock-up and therefore the case was adjourned to 25.11.1992. However on the same date, after the order had been passed, the accused was produced from the judicial lock up but as the case has already been adjourned, it was directed that it shall be taken up on*the date already fixed. On 25.11.1992, the accused refused to get his defence evidence accorded on the ground lh; I there are certain unconcerned persons in the Court room in whose person he will not like to produce his defence witnesses. The objection however was over ruled on the ground that the persons present during the course of proceedings are connected with the enquiry proceedings and as enquiry is being held in open Court, the objection raised by the learned counsel lor the petitioner was not lawful. The accused was directed to produce his complete defence evidence on 5.12.1992 and also to file written statement. On 5.12.1992. No defence evidence was produced by the accused and it was elated that he has not brought any evidence in defence. However, an applications was Hied and a prayer was made therein that Muhammad Waris C-I is sought to be produced as a defence witness, therefore, he
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should be summoned through Court. This application was rejected on the ground that it has been moved just to delay the proceedings and as it was not submitted earlier well in time, hence the witness is not allowed to be summoned as a defence witness by the accused through Court. The accused did neither produce nor requested for producing any other defence evidence. He did not file his written statement either, hence he was directed to file his written statement on 23.12.92. He however placed on record copies of two FIRs in order to prove enmity with Aitmad Lodhi, his co- accused. The accused filed his written statement on 5.1.1993. Enquiry was completed by the enquiry Officer on 12.1.1993 and report was prepared and submitted to the respondent No.1\ on 15.2.1993, wherein surrender of the accused was recommended. A copy of the report was supplied to the accused who submitted his reply to the respondent No. l as per provisions of Section 10 of the "Act." After considering the aforementioned report, the evidence other material produced before the Enquiry Officer and (he reply submitted by the accused, the respondent No.1\ vide order dated 3.3.1993 issued a warrant of extradition of the accused. This order/warrant was challenged by the petitioner before this court in writ petition No.273 of 1993 on 5.3 1993. As no speaking order had been passed, a statement was made by the learned Standing Counsel for the respondents, that the respondent No.1 shall withdraw the order impugned in the writ petition and shall pass a fresh spewing order in accordance with law. Respondent No.1\ again passed a similar older on 5.4.1993 which was again challenged by the petitioner in writ petition No.280/93 before this court. This writ petition was disposed of vide order dated 4.5.1993 as the learned appellate Deputy Attorney General who appeared on behalf of the respondents made a statement that the order dated 5.4.1993 has already been withdrawn and a fresh order dated 3.5.1993 has been passed in accordance with law as per undertaking given before this court in the earlier writ petition. A copy of the fresh order was handed over to the learned counsel lor the petitioner. Hence, the writ petition was disposed of as the petitioner intended to challenge the order dated 3.5.1993 afresh. Hence this petition. 8. Mr. Abdul Basir Qureshi, Advocate, has appeared on behalf of the petitioner whereas Mr. Mumtaz Ali Mirza learned Deputy Attorney General of Pakistan has appeared on behalf of the respondents. 9. Mr. Abdul Basir Qureshi, learned counsel for the petitioner has raised the following contentions:- 1. That the extradition Act 1972 as well as the treaty, under which the impugned order has been passed is ultra vires of the Constitution of Islamic Republic of Pakistan 1973 as it is violative of the provisions of Article 8 and 15 of the Constitution and is also against injunctions of Islam as the same confers upon the Government power to surrender a Muslim citizen of Pakistan to a non- muslim state where Pakistani Muslims arc treated with haired and discrimination. Hence the impugned order is without a lawful authority. 2. That the order impugned is the writ petition is not a speaking order and therefore is not maintainable in law. 3. That no prima facie case has been made out against the accused, hence no order for his surrender could have been passed. 4. That no proper requisition for surrender of the accused has been received by the respondent No.1\ from the Government of the USA. Hence the proceedings which have culminated in passing of the impugned order of surrender, are corum non-judice.
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5. That the Enquiry Officer has failed to hold the enquiry in accordance with the procedure laid down for holding of a session trial as required under section 8 of the Act hence the enquiry report is erroneous in law. 6. That the accused has not been given a right of defence inasmuch as his request to summon Muhammad Waris C-I, who was the star witness of the prosecution in this case and had not been produced in evidence, has illegally been turned down by the Enquiry Officer. Hence the enquiry report being violative of the principles of natural justice and provisions of Section 8 of the Act, is a nullity in the eyes of law and as such same infirmity is attached to the impugned order of surrender passed by the respondent No.1\. 7. That the learned Enquiry Officer has tampered with the record inasmuch as during the course of the recording of the evidence he had written certain orders in his own hand writing but on receipt of copies of the statements of the witnesses by the accused, it has transpired that the original record does not contain any orders in the handwriting of the Enquiry Officer. This tampering with the record has caused a serious prejudice to the accused. 8. That the accused was committed on 152.1992 and the order of surrender could have been passed within a period of two months w.e.f, that date. As the impugned order has been passed on 3rd of May, 1993 therefore, it is illegal and is not maintainable in law as per provisions of section 12 of the Act. 10. In giving his pointwise elaboration to his arguments learned counsel, has taken us through the provision of Article 8 and Article 15 of the Constitution of Islamic Republic of Pakistan 1973 and has contended that under these articles no law can be enacted which may offend against the right of a citizen of Pakistan, to reside in Pakistan. Learned counsel has further referred to Article 11 of Constitution of Islamic Republic of Pakistan 1956, Article 5 of the Constitution of Islamic Republic of Pakistan 1962 and Article 19 of the Indian Constitution, which provides a restrictive rider over the right of liberty of residence in the home country as the right is to be exercised subject to reasonable restrictions imposed by law, and contends that Article 15 of the Constitution of Islamic Republic of Pakistan, 1973 docs not provide any such restrictive rider, therefore omission being intentional, no law or treaty can be framed or entered into or adopted which offends against the right of residence of a person in Pakistan. Amendment 14 of the American Constitution has also been referred to in support of his above arguments. The gist of the arguments addressed by the learned counsel for the petitioner on this point is that the Extradition Act 1972 permits the Federal Government to direct the surrender of a citizen of Pakistan to a foreign state. This amounts to imposition of restriction upon a citizen of Pakistan to reside in Pakistan which is his constitutional right and therefore the Act as well as the extradition…
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