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Petitioner: (HAJI) IQBAL BAIG VS Respondent: GOVT. OF PAKISTAN And Other
Court Name: Lahore High Court Judge(s): Raja Abdul Aziz Bhatti Title: (HAJI) IQBAL BAIG vs GOVT. OF PAKISTAN And Other Case No.: Writ Petition No. 182 of 1995 Date of Judgment:1995-04-02 Reported As: K.L.R. 1995 Civil Cases 491 Result: N/A
JUDGMENT
JUDGMENT RAJA ABDUL AZIZ BHATTI, J. This judgment will dispose of the following Writ Petitions as common questions of law are involved therein. So far as the facts and evidence of these affectionered there is variation. These are therefore, being recorded and dealt with separately with reference to each Writ Petition in the judgment:- 1. Writ Petition No,182/95. Haji Mirza muhammad Iqbal Baig. Versus The Government of Pakistan and others. In the matter of detune HAJI MIRZA MUHAMMAD IQBAL BAIG. 2. Writ Petition No. 183/95. Muhammad Anwar Khattak. Versus The Govemment of Pakistan and others. In the matter of detune MUHAMMAD ANWAR KHATTAK 3. Writ Petition No. 179/95. Tariq Butt. Versus , . Director F.I.A, and others. In the matter of detune TARIQ BUTT. 4. Writ Petition No.185/95. ' f Ghulam Muhammad
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Versus The Federation of Pakistan and others. In the matter of detunu GHULAM MUHAMMAD. 5. Writ Petition No. 191/95. Ali Raza Khan. Versus The Federation of Pakistan and others. In the matter of detune UMAR KHANAFREEDI 6. Writ Petition No.188/95. Muhammad Ali Durrani Versus The Federation of Pakistan. In the matter of detune IQBAL PERVEN DURRANI 7. Writ Petition No.983/94. Nasarullah Khan Henjra. . Versus The Federation of Pakistan. In the matter of NASARULLAH KHAN NENJRA 2. The learned counsel for the petitioners raised following law points for adjudication: (i) CONCEPT OF EXTRADITION- Extradition Act 1972 is void on account of its conflict with Article 15 of the Constitution of Islamic Republic of Pakistan. Legality of the Extradition Act, 1972 (hereinafter called as the Act) has been assailed under the law of fundamental rights guaranteed under Article 15 of the Constitution. According to the counsel for the petitioners. The Act empowers the Federal Government to surrender a fugitive offender, who has committed Extradition offence to foreign State, which has Extradition Treaty with Pakistan, According to the counsel for the petitioners every citizen has right to remain in the country and this right is absolute and unqualified, which means that a citizen cannot be expelled from the country. Hence forcible removal from Pakistan fringes fundamental rights. The protection afforded by the Constitution cannot be rendered ineffective by the provisions of the Act. At the outset the arguments are appealing but the Article 15 was never intended to afford protection against extradition to the citizen, who is accused of serious crime allegedly committed by him in any other country. To meet such an eventuality Item 3 of the Federal Legislative List Part I of the Constitution empowers Parliament to make law with regard to surrender of criminals and accused person to the Government outside Pakistan. This conferment of the powers on the Parliament to make law on the subject of extradition refute the contention raised by the petitioner's counsel. Certain conditions, however, have been imposed for the surrender of fugitive offender, even though he may be Pakistani national. Extradition to and from the country is regulated by the Treaties and Statues between the foreign states. In simple words it is an act of surrender of a person from Pakistan to another state whether Pakistan National or alien. The law is based on the Treaties entered into between the independent States. Such law and Treaties have sizeable commitments by the Govemment in the matters of international relations. However, in deciding so Municipal Law is the determining factor. I am conscious of the fact that to uphold the supremacy of law the Court's function do entail to look jealously to protect the rights of individuals by insisting upon strict compliance of restrictions and conditions disposed through law of Extradition. It is bounded duty of the demanding state to send requisition for surrender of fugitive offender, but it must be supported by a prima facie proof of the offence. Though ultimately the matter of surrender is to be decided by the State Functionaries and not be the Courts. The important condition is that in pursuance of the international commitment by having Treaties, before the Federal Govemment
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decides to surrender, an inquiry is to be held in the matter by a Magistrate. The other condition imposed is that the offence not being political offence nor the requisition being so made is with a view to secure custody for trial for offences other than scheduled offences. The Extradition Act and the Treaties in the cases like the present are the outcome of the necessity to curb the commission of crimes in the interest of humanity. The commission of such offences is not only to be deprecated, but its elimination is so compelling that failure on the part of any state cannot be looked with any sense of pride. In nutshell I have no hesitation to say that the Extradition Law especially the Extradition Act 1972 as not in conflict with Article 15 of the Constitution. Hence it is not void and does not help the present petitioners in any manner. (ii) SCOPE OF INQU IRY held under section 7,8 & 9 of the Extradition Act, 1972. 3. According to the learned counsel for the petitioners the scope of inquiry under the aforesaid provisions of the Act is very vide. They are of the view that a Magistrate on the receipt of order under section 1 shall hold inquiry into the case in the same manner and have the same jurisdiction and powers, as nearly as may be, as if the case is one triable by the court of Sessions. The Magistrate is required to make the recommendation for extradition, if he comes to the conclusion that the material/evidence on the record is of such a nature that most likely it will end into conviction of the detune/accused. For making analysis of this scope, sections 7,8 & 9 of the Extradition Act are reproduced below:- "7.- Order of Magisterial enquiry Where a requisition is made under section 6, the Federal Government may, if it thinks fit, issue an order to enquire into the case to any Magistrate of the first class who would have had jurisdiction to enquire into the extradition offence to which the requisition relates if it had been an offence committed within the local limits of his jurisdiction. P 8. Magisterial enquiry. - (1) On receipt of an order under section 7, the Magistrate shall issue a summon or a warrant for the arrest of the fugitive offender according as the cause appears to be one in which according to the law of Pakistan a summon or warrant would ordinarily issue. (2) When the fugitive offender appears or is brought before him, the Magistrate shall enquire into the case in the same manner, and have the same jurisdiction and powers, as nearly as may be, as if the case were one triable by a Court of Session and shall take such evidence as may be produced in support of the requisition and 0n behalf of the fugitive offender, including any evidence to show that the offence of which the fugitive offender is accused or alleged to have been convicted is an offence of a political character or is not an extradition offence. 9. Receipt in evidence of exhibits deposition etc.--(l) In any proceedings against a fugitive offender under this Act,, exhibits and depositions, whether or, not they are received or taken in die presence of the person against when they are used, and copies thereof, and official certificate of facts and judicial documents stating facts, may, if duly authenticated, be received as evidence. (2) Warrants, depositions or statements on oath which purport to have been issued, received or taken by any Court of justice outside Pakistan or copies thereof, and certificates of, or judicial documents stating the fact of, conviction before any such Court, shall be deemed dully authenticated-- (a) if the warrant purports to be signed by a Judge, Magistrate, or officer of the State where the
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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 deposition or statements or to be true copies thereof, as the case may require; (c) if the certificate of, or judicial document 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 fox such State; and (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. (3) For the purposes of the section, "warrants" includes any judicial document authorising the Certain relaxations have been embodied in section 9 with regard to the receipt of evidence and depositions etc. Section 9 entails concessional provisions making considerable departure from the normal law of evidence in proving and bringing on record the depositions and documentary evidence. They have contended that there is a valuable right of citizen that he must not be sent out to foreign jurisdiction. This right cannot be snatched unless the law is strictly observed and complied with. The Courts must, therefore, give strict interpretation and judiciously regard the rights of the citizen in the matter. However, they concede that section 9 of the Extradition Act do allow the evidence of exhibits, depositions and statements on oath duly authenticated thereby making exceptions to the general procedure laid down in Criminal Procedure Code the Evidence Act as well as by Qanun-e-Shahadat. They submit that the scope of enquiry is that an Enquiry Magistrate shall appraise the evidence in a manner to find out as to whether there is evidence of the nature that if the trial is held it may likely end in conviction. In the present cases, the petitioners maintain that the learned Magistrate has not acted within the scope of enquiry as embodied in sections 7,8,9, and 10 of the Extradition Act, 1972, which resulted in miscarriage of justice. 5. I have considered the contentions raised by the learned counsel in this regard. The function of the Enquiry Magistrate in the matter is very limited. The job of the learned Magistrate is to ascertain, whether on the material placed before him, a prima facie case is made out or not, but the Magistrate is not expected to return a verdict of guilt. From the provisions quoted above, it is evident that the scope of enquiry is to assist the Federal Government to form an opinion as to whether the extradition of the offenders should take place or not and requisite conditions for extradition have been satisfied. In spite of all that, here it may be mentioned that the Govemment is under no obligation to surrender of fugitive even if all these requisite conditions are complied with and satisfied. The ambit of the enquiry is recommendatory and to facilitate the Federal Government to arrive at some conclusion though the final verdict of surrendering is a prerogative of the Federal Government. It is an expression of opinion by the Magistrate keeping in view the material available on the record against the fugitive from the demanding State. In brief, the job to be done by the Enquiry Magistrate is to examine, whether the charge and in support thereof the material before him is sufficient to connect the fugitive offender with the offences for which he is required by the demanding State of face trial in a court of competent jurisdiction. If the finding is negative, he can discharge the accused. (iii) SCOPE OF WRIT PETITION IN THE MATTER.
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6. According to the learned counsel for the petitioners, the High Court is vested with the powers to look into the actions taken by the State, and into the nature of allegation sent by the Demanding State. In case, the High Court is satisfied that the conclusions drawn on facts were such as no reasonable person while properly applying his mind could be reached, then in that case it is the duty of the Court to interfere. The High Court can also look into the affairs regulating the enquiry i.e. Mala fides, ulterior motives, want of good faith, political victimization and other jurisdictional defeats going to the root of the matter. In that eventuality the Corut shall not hesitate for a moment to step in and protect the valuable and inevitable right of a citizen not to be extradited to a foreign plane for trial of the alleged offences. 7. I have considered this part of the arguments cautiously. I have no hesitation to agree and even there is no controversy from the respondents that in writ jurisdiction when there is a mala fide, ulterior motives, want of good faith, political victimization etc. Then in that case this Court must interfere but mere fact that another view of evidence on record is possible, will not make a ground for interference while exercising writ jurisdiction. Reappraisal of evidence is not within the ambit of the High Court under Article 199 of the Constitution. If so is the prayer, the High Court is justified in refusing to interfere. 8. This Court ordinarily is not required in writ jurisdiction to review the evidence with a view to substitute its own opinion for that of the Magistrate on the question of existence of a prima facie case or otherwise. The prayer of the learned counsel during arguments for reappraisal of evidence minutely is such an exercise which is definitely outside the scope of writ jurisdictional ambit. Tentative assessm ent to know as to whether fugitive offender is connected with the scheduled offence or not will however be undertaken while dealing with the factual aspect of each case. I do admit that a fugitive can be extradited if there exists a prima facie case against him. I am also bound to see and satisfy myself with regard to the legality of bis detention. Holding of enquiry and dealing it in writ jurisdiction primarily is meant to proceed forward with the idea that main beneficiary of the proceedings should be detenue if possible. It is a bounded duty of this Court to satisfy itself with regard to-the jurisdictional aspect, lawfulness of the manner of detention, satisfying strictly the provisions of law applicable in the matter for extradition. The scope of enquiry, the scope of writ jurisdiction and the existance of prima facie case against the detune are the three important factors which co-exist in a manner that enquiry proceedings when looked into by way of writ jurisdiction, it is to be kept in mind as to whether there is a prima facie case against the detune or not. What I gather from the arguments of the learned counsel for the parties, they have no dispute in this regard. (iv) PRIMA FACIE CASE. 9. The petitioners contend that there is no prima facie case against them and their extradition to United States of America is not called for. According to them, the material brought on record is of such a nature that it will be highly against the interest of justice to curtail their liberty, to deny their basis fundamental rights guaranteed by the Constitution i.e. Not to be extradited out of Pakistan. 10. To find out the existence or otherwise of a prima facie case, it is appropriate to have regard to the object underlying the law of extradition, its kind and nature. The enquiry conducted by the Magistrate to find out the existence or otherwise of a prima facie case admittedly cannot be equated with a regular trial by a Court of Law. Under section 10 of the Extradition Act, 1972, after the
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enquiry if the Magistrate is of the opinion that a prima facie case has not been made out in support of the requisition for surrender of the fugitive offender he shall discharge the fugitive offender and make a report to that effect to the Federal Government. In case, in his opinion a prima facie case had been made out, he is required to recommend extradition to the Federal Govemment. As far as the word prima facie is concerned it has not been defined anywhere by the provisions , of the State. However, this aspect has been dealt with in number of judgments. In Muhammad Asim Malik vs. Anwar Jalil and 4 others (PLD 1989 Lahore 279), the expression of prima facie case in support of the requisition has been discussed. According to the Honourable Judges "only prerequisite for the enquiry is that a Magistrate is to ascertain whether on the material placed before him in accordance with the requirement of the Act, a prima facie case as understood in legal parlance was made out. Magistrate was not required to return a verdict of guilt upon the offender." "The words of prima facie case is not a term of art and, in law, signifies adequate to establish a fact or raise a presumption of fact unless rebutted. Prima facie case, means a substantial question raised bona fide which at first sight needs investigation and decision. Therefore, the only prerequisite for the enquiry Magistrate is to ascertain whether on the material placed before him in accordance with the requirement of the Extradition Act, a prima facie case as understood in legal parlance was made out. Obviously, the Magistrate was not expected to return a verdict of guilt upon the offender. What he was obligated to find was, whether a Triable case was made out In the event of surrender, full-fledged trail shall take place before a competent Court of Treaty State. Enquiry is merely to assist the Federal Govemment to form an opinion as to whether the extradition of the offender should take place because even where the requisite conditions for extradition are satisfied, the Federal Govemment is under no obligation to surrender the offender to treaty State. It still has a full discretion in the matter as is evident from section 13 of the Extradition Act." "The word "prima facie" under the section 10 of the Extradition Act, 1972 has been defined to be a case at first sight. The words "prima facie case" and "Prima facie evidence" are not terms of art. They have definite meanings. The Magistrate is required to inquire upto the requisition and formulate his opinion whether there exists material against the fugitive warranting his trial in the Demanding State." 11. According to Muhammad Azim Malik vs. Govemment of Pakistan and others (PLD 1989 SC 519), "The Magistrate conducts an enquiry and not a trial and an enquiry, according to the Criminal Procedure Code, also is different from the trial. The jurisdiction has been conferred on the Magistrate 1st Class and is coextensive with his power to hold an enquiry into the offence whether triable by himself or not." "Appraisal of evidence means the evaluation of the admissible and incriminating material, mostly the positive knowledge/statement. Ignorance of facts of the case or absence of suspicion cannot be' considered as evidence of innocence of a person facing a trial." In Nasarullh Khan Henjra vs. Govemment of Pakistan (PSC 1994 SC 156), it is mentioned that while forming opinion whether a prima facie case has been made out or not against the fugitive offender, the Magistrate sized of the proceedings is to see if the evidence laid before him would be admissible and sufficient to committal under the law of Pakistan. It has further been ordained that "it need hardly be added that if the petitioners were tried in Pakistan their testimonies would be admissible in evidence and sufficient to support the petitioners, conviction. In support of that the Honourable Supreme Court has quoted Article 9 of the Extradition Treaty which is quite relevant to understand what is meant by "prima facie Case", which is reproduced below:- "The extradition shall take place only if the evidence be found sufficient, according to the laws of the High Contracting Party applied to, either to justify the committal of the prisoner for trial, in case the . Crime or offence had been committed iq the territory of such High Contracting Party or to prove that the prisoner is the identical person convicted by the Courts of the High Contracting
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Party who makes the requisition, and that the crime or offence of which he has been convicted is one in respect of which extradition could, at the time of such conviction have been granted by the high Contracting Party applied to." ( 12. From the above discussion, the following conclusions can be drawn regarding this aspect of the case:- (a) That the Enquiry Magistrate has a discretion keeping in view the principles enunciated by the Superior Courts to come to the conclusion as to whether prima facie case exist against the fugitive. Offender or not. For that matter, direct evidence, admissible evidence, evidence of the nature mentioned in section 9 of the Extradition Act are important factors. Above all, there is no doubt to say that nature of the evidence needed for extradition purposes is that the offender is connect d with the crime. He may not be convicted which is the job of the. Trial court and not of the Magistrate. The standard of appreciating and appraising the evidence for returning the verdict of conviction or acquittal is not the requirement of section 10 of the Extradition Act. But at the same time he is to be at guard that the detune is not be to surrendered if the case is of no evidence or the material on record is of the nature which on its first sight compels to say that there is no sufficient evidence to substantiate the charge. In the latter case, the law does not justify the fugitive offender to be extradited. (b) that the petitioners are not entitled to discretionary relief from this Court on the basis of imaginary technical defects in the enquiry proceedings; (c) that the Enquiry Magistrate having jurisdiction to deal with the matter and has the authority to form his opinion independently. It is not within the scope of writ jurisdiction that the opinion be viewed to come to another opinion on the same material favouring or disfavouring the detenue. If reasonable approach is made for the assessment of evidence, it must not be beyond tentative in its nature. Thus in the light of aforesaid observations, the evidence and the material placed on the record in each case will be discussed in the judgment while dealing with this aspect of the cases in hand. (v) SEPARATION OF JUDICIARY. 13. The learned counsel for the petitioners contends that in these cases the learned Enquiry Magistrate has no jurisdiction to hold enquiry, as he is not a judicial Magistrate. He relied upon the case reported as Muhammad Azim Malik Vs. AC and others (PLD 1989 SC 266). Wherein it has been held that the proceeding can be initiated by a Judicial Magistrate and not by an Executive Magistrate. He has further maintained that PLD 1989 SC 266 leaves no scope for an Executive Magistrate to hold an enquiry in the matter because the Executive Magistrate cannot t>e designated by the Federal Government to hold an enquiry in the extradition matter. The learned counsel vehemently stated that only a judicial Magistrate has the competency to hold the enquiry to make recommendation far or against the detenues. 14. Quite surprisingly note 'C of the judgment at page 267 frustrates the very argument of the learned counsel which is reproduced below:- "Ss. 6 & 7-Extradition proceedings-Federal Government on receipt of requisition has unfettered
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right to select any First Class Magistrate for the I impose of holding an enquiry-Such Magistrate on receipt of order of selection, becomes a persona designate-Powers so conferred on the m urinated Magistrate First Class are non-delegatable." 15. In the present cases, the ADC(G) having the powers of Magistrate 1st Class held enquiry and gave the findings. Here, it may be mentioned that in section 7, the word trial has not been mentioned. According to section 7, the Federal Govemment has unfettered powers to designate any Magistrate of 1st Class v/ho would have had jurisdiction to enquire into the Extraditon offences to which the requisition relates if it had been committed within the local limits of his jurisdiction. Probably, the learned counsel is confused taking the word "Enquiry" at part with that of "trial". 16. Section 4(1) of Criminal Procedure Code defines the word Inquiry which includes any enquiry conducted under Cr.P.C, by a Magistrate or Court. Hence there could be no defect in the conduct of enquiry under sections 7 & 8 of the Exatradition Act by a designated Magistrate notwithstanding the fact the trial could take place only before the Sessions Court. In addition to that it is not the requirement of section 7 that Magistrate designated should be a Magistrate having jurisdiction to try the case. This…
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