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Petitioner: NASAR ULLAH KHAN HUNJRA VS Respondent: GOVERNMENT OF PAKISTAN, Ministry of JUDGMENT
Court Name: Lahore High Court Judge(s): Falak Sher, Muhammad Nawaz Abbasi Title:NASAR ULLAH KHAN HUNJRA vs GOVERNMENT OF PAKISTAN, Ministry of
JUDGMENT
Reported As: 1993 P Cr. L J 1082 Result: Petition dismissed Judgment JUDGMENT ' FALAK SHER, J.--- Nasar Ullah Khan Hunjra alias Nasar Ullah Khan, a Pakistani National, the fugitive offender feeling aggrieved by the opinion expressed by the Enquiry Officer/Additional Deputy Commissioner (G), Islamabad in the Magisterial enquiry report of 9-1-1992 affirming sufficiency of evidence tendered during the enquiry proceedings making out prima facie case meriting his surrender to the United States, the treaty State, for facing trial of the charged offences within the contemplation of section 10(b) of the Extradition Act, 1972 (hereinafter referred to as the Act) has recoursed to this Constitutional petition. 2. Necessary facts for disposal of the present petition as divulged from the record are that the petitioner was arrested by the German authorities pursuant to formal extradition request made by the United States through her then Secretary of State James A. Baker III on 17-5-1991 with the certification of the then Attorney-General Dick Thornburgh as to legal competence of A. Semon Chrein District Magistrate of the. Easter District of New York of 14-1-1991 issuing petitioner's warrant of arrest, dated 10-10-1991 and affidavit of Bradly D. Simon, trial Attorney of the petitioner's case dated 4-1-1991 who testifying that in the course of his duties he became familiar with the charges and evidence in the case titled United States v. Nasar Ullah Khan Hunjra et al Docket No,90 CR 841 (EHN), files of the United States District Courts and that of the United States Attorney's office culminating into petitioner's indictment returned by the grand Jury of the Eastern District of New York on 10-10-1990 charging violations of the narcotics laws of the United States, tendered duly authenticated certified copies of the indictment, the warrant of arrest, original being on the Court file, black and white photograph of the petitioner identified by the cooperating individuals CI-1 and
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2, affidavit of Arnold R. Moorin Special Case Agent of the Drug Enforcement Administration (DEA) dated 18-12-1990 as to identification of the petitioner's photograph by its German special agent, Slovenkay (then in Germany) and verification as to effective prevalence of the infringed statute at all material times, enshrining the following charges:-- (i) In or about between 1982 and June 6, 1988 petitioner engaged in a continuing criminal enterprise committing violation of Title 21 United States Code sections 841(a)(1), 952(a), 959(a)(2) and 963 including but not limited to the felony violations set forth in counts 2 through 7 forming part of continuing series of violations undertaken by the petitioner in concert with 5 or more other persons occupying the position of organiser, supervisor or manager obtaining substantial income and resources (in violation of Title 21, United States Code section 848 entitled "continuing criminal enterprise" entailing maximum sentence of life imprisonment with mandatory minimum of 20 years and a fine not more than 2 million dollars); (ii) In or about and between 1982 and June 6, 1988 knowingly and intentionally conspired to import into the United States in excess of one kilogram substance containing heroin a schedule I narcotic drug controlled substance (in violation of sections 963, 952(a) and 960(b)(1)(A) ibid punishable with life imprisonment with a mandatory minimum of 10 years and a fine of 4 million dollars); (iii) In or about and between October 1985 and December, 1985 aided and abetted importation of a substance containing heroin schedule I narcotic drug controlled substance into the United States from a place outside thereof (in violation of sections 952(a), 960(a)(1) and 960(b)(1)(A) ibid and Title 18 section 2 carrying maximum term of life imprisonment with mandatory minimum sentence of 10 years and a fine of 4 millon dollars); (iv) In or about and between October 1985 and December, 1985 aided and abetted distribution and possession with intent to distribute a substance containing heroin in excess of 1 kilogram schedule I narcotic drug controlled substance (in violation of sections 841(a)(1), 841(b)(1)(A)(i) ibid and Title 18 United States Code section 2 carrying maximum term of life imprisonment with mandatory minimum sentence of 10 years and a fine of 4 million dollars); (v) On or about and between April 13, 1988 and April 18, 1988 aided and abetted importation of a substance containing heroin a schedule I narcotic drug controlled, substance into United States from a place outside thereof (in violation of sections 952(a), 960(a)(1) and 960(b)(1)(A) ibid and Title 18 section 2 of the United States Code, entailing maximum sentence of life imprisonment with a minimum term of 10 years and a fine of 4 million dollars); (vi) On or about and between April 13, 1988 and April 18, 1988 aided and abetted distribution and possession with intent to distribute substance containing heroin, a schedule I narcotic drug controlled substance, carrying maximum sentence of 20 years' imprisonment and a fine of one million dollars; (vii) On or about May 26, 1988 distributed in Pakistan in excess of one kilogram of a substance containing a narcotic drug controlled substance knowing that the same would be unlawfully imported into the United States (in violation of Title 21, United States Code, sections 959(a)(2), 959(c), 960(a)(3) and 960(b)(1)(A), carrying a maximum sentence of life imprisonment with a mandatory minimum of 10 years and a fine of 4 million dollars). 3. The trial Attorney's deposition also engraved the fact that the offences charged occurred within the statutory period of five years preceding filing of the indictment contemplated by section 3282, Title 18 of the United States Code i,e. Although the offences alleged in counts 1 and 2 began in the year 1982 but the period of five years is to commence after conclusion of the offending conduct because the statute of limitation is tolled as to the charges contained in the indictment and that the petitioner will not be prosecuted for crimes other than the set out above forming basis of the Extradition Request.
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4. The trial Attorney, on the basis of the review of the investigative reports of the special agent of the Drug Enforcement Administration and the files of the United States Attorney's office englossing upon the charges divulged the following summary of facts:-- (a) Two cooperative individuals CI-1 and CI-2 provided information detailing international heroin operations of the petitioner during the period 1982 to June, 1988 for regular smuggling into United States and United Kingdom multi-kilograms of heroin concealed in clothing, false bottoms of suit- cases and mail parcels, couriers whereof were arrested both in New York and the U.K. (b) CI-1 revealed to have worked for the petitioner's heroin business from 1982 till his arrest in England in July, 1986 for possession of mail parcel approximately containing 225 grams of heroin despatched by the petitioner from Pakistan for which he was sentenced to 5 years' imprisonment and was released upon entering plea of guilty and deported to Pakistan in November, 1989 who since his return has agreed to cooperate with the DEA. (c) CI-2, the second cooperative individual has also worked for the petitioner's heroin business since 1982 till his arrest on June 6, 1988 in England, during the journey he had undertaken to pick up payment of $ 80,000 being the sale consideration of two kilograms of heroin which he had delivered in Pakistan to an under cover DEA informant for importation to New York, subsequent whereto CI-2 was extradited to the United States and pleaded guilty before the District Court of Eastern District New York on June 21, 1989 for which he was sentenced on December 19, 1989 to 151 months (12 years 7 months) with five years term of supervised release and $ 5,000 fine in addition to costs, whereafter he too agreed to cooperate with the DEA and have implicated the petitioner in the following manner: (d) In or about 1982 the petitioner recruited CI-1 into his heroin business and asked him to carry heroin to Holland for which he did not receive a visa; however, thereafter, on petitioner's asking he took up a suit of clothing from Gujranwala and delivered to "Mr. Malik" in Rawalpindi in lieu of Rs,1,500 qua which he was informed by the petitioner that the jacket lining contained heroin and the "Malik" was Malik Aslam who carried it to New York through Tokyo. (e) In or about October 1982, petitioner required CI-2 and Shahzad Khan with whom he was staying in Brighton Beach, New York (got arrested on August 9, 1990 for taking delivery of 5 kilograms heroin from one under cover DEA informant) to arrange transfer of 1 kilogram heroin smuggled into the United States by Malik Aslam and upon contact by the latter the two called on his hotel room in Manhattan who asked CI-2 to take green suit with heroin sewn into its jacket lining which he refused and instead instructed Aslam to remove the heroin from the lining whereupon the same was entrusted unto him in a shopping bag which CI-2 and Shahzad Khan sold in portions over a period of time to two brothers namely Spiros and George Firovantes in Queens, New York for a total consideration of Pounds 63,000 (who were arrested in September 1986 in New York for selling heroin to under cover police man and were respectively convicted and sentenced to 20 years to life and 8 to 25 years), out of which CI-2 retained Pounds 16,000 and securing hank draft for the remaining Pounds 47,000 wired it to his personal account in Pakistan which upon return he withdrew and converting into Pak rupees, passed on to the petitioner who also apprised him of the fact that Malik Aslam had gone to New York via Tokyo and Seattle. (f) In or about end of 1982 the petitioner asked CI-1 in Pakistan to fill up United States visa application forms for Muhammad Yasin and his wife to whom subsequently visas were accorded and before their departure to the United States CI-1 saw a suit-case beneath Yasin's bed with a false bottom. (g) During this period the petitioner alongwith his associate Nasarullah Chatha visited CI-2's office in Lahore for the purchase of 1,200 grams of heroin which Yasin was to transport to New York whose travelling alongwith CI-2 was arranged to the United States.
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(h) Shortly thereafter Yasin entrusting CI-2 and Shahzad Khan 200/300 grams of heroin in New York City refused to release further shipment pending clearance of the earlier payments. CI-2 and Shahzad sold the heroin to Spiros Firovantes for Pounds 18,000 against receipt of Pounds 10,000 down payment which they passed on to Yasin who thereafter released the remaining 1 kilogram heroin which CI-2 and Shahzad Khan sold to Spiros and George Firovantes and their associates for Pounds 85,000 out of which CI-2 wired Pounds 60,000 to the petitioner in Pakistan. (i) In or about May/June, 1983 the petitioner engaged CI-2 for selling 2 kilograms of heroin in New York to be carried by Suleman Khokhar and had him flown in providing the latter's telephonic contact whereafter CI-2 alongwith Spiros and George Firovantes secured the delivery at Elmhurst Avenue, Queens, New York and handed it over to George Firovantes for a consideration of Pounds 1,79,800. CI-2 gave Pounds 66,800 to a courier named Saleem Khalid (got arrested in England in July 1986 with CI-1 possessing 225 grams heroin shipped by the petitioner from Pakistan in a mail parcel and upon serving incarceration was released-in October 1990) and out of the balance Pounds 80,000 were converted by CI-2 into money orders and delivered unto the petitioner in Pakistan. (j) CI-1 vouched payment of Rs,80,000 by the petitioner to Suleman Khokhar in the latter's hotel room at Lahore as quid pro qua for the trip. (k) On October 8, 1983 CI-1 on pre-paid trip by the petitioner and in lieu of Rs,1,20,000 delivered a pair of shoes with 750 grams heroin concealed in the soles of petitioner's associate Nasar Ullah Chatha in London who in his presence gave two samples in match boxes to Muhammad Feroze and another person for which he was paid 1,000 $ by Chatha. (1) In December 1983 CI-2 was engaged by the petitioner for arranging sale of 5 kilograms of heroin in New York to be shipped through couriers which he negotiated with Spiros and George Firovantes at the rate of 100,000 Pounds per kilogram; however, subsequently learnt that the courier Muhammad Yasin has been arrested at John F. Kennedy Airport with five kilograms of heroin on December 15, 1983 concealed in false bottom of a suit-case for which he was sentenced. (m) In or about April 1984 CI-1 entrusted with a suit-case by the petitioner containing heroin concealed in false bottom which he retained for nearly 6 months due to non-availability of a courier and during the period he was required to expose the heroin to sunshine lest it becomes too moist but the exercise was not ventured upon since it necessitated breaking up of the false bottom. (n) In or about Summer 1984 CI-1 was required by the petitioner to examine a hold-all with a lining and a pair of shoes with heroin concealed therein to be transported by Khawar Ikram Bhatti to the United States in consideration of Pounds 1,000. He also got his air reservation confirmed and delivered the tickets with travel route from Lahore to Karachi, Switzerland and Paris by train, who upon return revealed that the consignment was delivered to Nasar Ullah Chatha who contacted Feroze (arrested in England with 2-1/2 kilograms of heroin) and a Chinese man factum whereof was also confirmed by CI-2. (0) In or about October 9, 1984 on CI-1's request for re-location in England petitioner entrusted him 140 grams of heroin sewn in a waistband of his trousers which he delivered to Nasar Ullah Chatha and in return was secured job in a Manchester restaurant where he received approximately 7 mail parcels despatched by the petitioner containing 250 grams of heroin each concealed in cut-out parts of magazines which after rolling up and re-wrapping in brown paper alongwith 11 newspaper consignments each approximately containing 28 grams of heroin was delivered to Nasar Ullah Chatha in England save for 15 ounces which he sold to another contact with the petitioner's permission for $ 850 to 900 per ounce. (p) On or about July 1986 CI-1 received delivery of a mail parcel approximately containing 225 grams of heroin from the petitioner on which count he was arrested by the British Law Enforcing
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Authorities, qua which he furnished a fictions name of the despatcher under the impression that petitioner would provide financial assistance to his family during incarceration which didn't mature into reality. (q) In later part of 1985 petitioner and his associate Nasar Ullah Chatha respectively discussed with CI-1 and CI-2 smuggling of heroin to England and United States through mail parcels, in the furtherance whereof petitioner arranged a trip of C1-2 to New York where he met Firovantes Brothers who agreed to furnish addresses for shipment, inter alia, ... Atlantis International Real Estate Corporation, 15-25 Hart Place, Coney Island, Brooklyn, New York; Jet Construction Company 258, 59th Street, Brooklyn New York and Nicoles Restaurant, West 57th Street New York (which addresses alongwith telephone numbers were found recorded in CI-2's diary seized on June 6, 1988 alongwith particulars of Nasar Ullah Chatha's telephone numbers in CI-2's address book). Mode of transferring money to Pakistan was discussed by Firovantes Brothers from Jet Construction Company's telephone and agreed to wiring the payment to CI-2's bank acco int in England who would arrange its onward transmission to Pakistan to the petitioner. Pursuant whereto about 13 parcels were ' mailed to Firovantes Brothers each containing 200/300 grams of heroin, 3/4 shipments whereof were received within the presence of CI-2 in Jet Construction Company, quality whereof they were not satisfied with for the burning point being too low, resultantly CI-2 contacted the petitioner in Pakistan whereupon the latter shipped four additional parcels with which they were pleased and released the payment. (r) In or about April 1988 CI-2 was contacted in Brooklyn New York by an acquaintance named Muhammad Iqbal contractor, M.D. (convicted and sentenced for heroin smuggling by the United States District Court of Eastern District of New York) for supplying heroin to a buyer in New Yolk named Jake to which he agreed in sending a sample and then supply to Jake's courier in Pakistan and around April 18, 1988 Doctor Contractor delivered two grams of heroin sample to Jake, an under-cover DEA agent to whom CI-2 identified the petitioner as the supplier from Pakistan. (s) On or about May 26, 1988 CI-2 handed over two kilograms of heroin to the under-cover DEA agent supplied by the petitioner, posing to be a courier for Jake in Lahore for distribution in New York for which CI-2 expected to receive Pounds 80,000 in London with a promise to supply further stock of 8 kilograms heroin within 10 days. Thereafter CI-2 met the under-cover DEA agent in London and upon arrest on June 6, 1988 was extradited to the United States. 5. Concluding the deponent testified that having reviewed the documents, affidavits and exhibits etc. He attests that the evidence is indicative of the petitioner's guilt of the federal criminal offences charged in the indictment formally returned by the grand jury in the United States District Courts for the Easter District of New York. 6. Pursuant whereto as per deposition of Kennith Harris Trial Attorney United States of America Department of Justice office of International Affairs Criminal Division dated 18th October, 1991 then responsible for all extraditions between the United States and the Federal Republic of Germany and the assigned attorney to pursue petitioner's extradition from Germany to the United States, petitioner was provisionally arrested by the German authorities on November 27, 1990 in accordance with Article 16 of the Extradition Treaty between Germany and the United States with a view to extraditing him to the United States, clause 4 whereof envisaged submission of formal request for extradition alongwith supporting documents by the requesting state within 40 days of the provisional arrest extendable by 20 days upon request which was availed of and duly accorded by the German authorities on 3-1-1991 on account 9f procedural involvement as to translation of documents from English to German; however, due to lack of timely communication thereof by the German authorities to the Court concerned, petitioner was released by the Second Criminal Senate of Frankfurt Superior Court in view of the prescribed limitation without adverting to merits of the extradition request.
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7. Subsequently Embassy of the United States in Islamabad, in anticipation of petitioner's arrival in Islamabad on 20-5-1991, under section 6 of the Act made a request to the Government of Islamic Republic of Pakistan through the Ministry of Foreign Affairs for his provisional arrest for extradition to the United States awaiting delivery of formal extradition request alongwith the appropriate documents within a week lest he absconds and his re-location becomes difficult, within the contemplation of Article 11 of the United States and the United Kingdom Extradition Treaty of December, 1931 applicable to India in accordance with provisions of Article 14 entered into force on March 9, 1942, devolved unto Pakistan by virtue of the schedule to the Independence (International Arrangements) Order, 1947, Article 3(24) whereof encampasses narcotics drug offences, the offence charged in the indictment. 8. In the furtherance whereof the set of documents furnished to the German authorities for the petitioner's extradition were routed to the Ministry of Interior, Government of Pakistan, and upon the latter's query as to the addressee state being Germany and not Pakistan suggestion for substitution of the expression Germany by Pakistan was put forth; however, on unfavourable response a revised request was submitted alongwith fresh set of documents for the petitioner's extradition from Pakistan to the United States with necessary mutatis mutandis viz. Certification of full faith and credence under the signatures of Lawrence S. Eagle Burger, the then Actg. Secretary of State dated 18-10-1991 and that of Willian P. Brough the then Acting Attorney-General qua Rex Young, Deputy Director Office of International Affairs of even date, affidavit of Kenneth Harris Trial Attorney of the office referred to above, Bradley D. Simon Trial Attorney of the Eastern Districts of New York dated 17-10-1991, warrant of petitioner's arrest issued by the District Magistrate, Eastern District Court of New York A. Simon Chrein dated 10-10-1990, black and white photograph of the petitioner and affidavit of Arnold R. Moorin, Special Case Agent of DEA dated 18-12-1990 verifying the latter's photograph. 9. Pursuant whereto Additional Deputy Commissioner (G), Islamabad was notified as the Enquiry Officer for holding magisterial enquiry perceived by section 7 of the Act, who taking cognizance of the matter on 25-7-1991 issued non-bailable warrants of petitioner's arrest under section 8 of the Act effected through the Federal Investigating Agency on 31-7-1991 and was remanded to judicial custody on August 1, 1991 in Adiala Jail, Rawalpindi pending enquiry where he was served the charged documents on 25-8-1991. 10. During the course of enquiry proceedings Muhammad Daud, Section Officer, Ministry of Interior, Government of Pakistan P.W.1 tendered in evidence the documents referred to supra while Arnold R. Moorin, Special Case Agent of DEA P.W.2 testified to have interviewed CI-1 and CI-2 without disclosing their identity, though well-known to the United States Government recording of their sworn statements before the grand jury of Eastern District of New York, empanelling 23 members belonging to non-Government sector with subjection to cross-examination before whom he also deposed and testified as to additional witness and documentary evidence culminating into the returned indictment envisaging 7 charges, issuance of petitioner's warrant of arrest and opining the same to be well-based in view of his prolonged experience in the department, affirmed that statements of CI-1 and CI-2 corroborated each other qua petitioner's involvement in the offences charged factum whereof was contemporaneously confirmed by the DEA's computer data and upon petitioner's return to the Eastern District of New York would stand trial of the charged offences by a Jury comprising 12 citizens. 11. Responding 'to questions he confirmed that CI-1 and CI-2 are convicted drug pedlars, the former in England in the year 1986 and the latter in the United States, their statements were reduced into writing, original being on the record of the Grand Jury out of which the charged documents have stemmed, these statements were recorded in the presence of the U.S. Attorney and that of the defence as well as in the initial phase, as per charged documents CI-1 was operating in England in
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drug peddling on petitioner's instructions, however, he did not implicate the petitioner at the trial expecting financial assistance, Khalid Salim from Pakistan was putting up with CI-1 in the house where he was arrested from. Pleading ignorance as to the former's implication as Manager/Supervisor, CI-2's sister being Khalid Salim's wife and CI-1 his servant as well as to signing of any document tending to extend any concession to CI-1 for implicating the petitioner; affirmed to be a signatory to the agreement made by the United States Attorney (Barrel A. Horvell) with CI-1 forming the basis of his statement against the petitioner envisaging that CI-1 will not be prosecuted for his involvement in any crime punishable in the United States which he reveals but would be subjected to prosecution for the unrevealed ones, similar was the agreement with 0-2, Khalid Salim's involvement in the case was investigated, he was tried in England for drug peddling alongwith CI-1, CI-2 was extradited to the United States from England, Jake was sent as an under- cover agent who sent a courier to CI-2 for purchase of two kilograms of heroin in consideration of I, 80,000 payment whereof was agreed to be made in London where CI-2 was arrested, no probe was made into financial position of Khalid Salim in Pakistan on account of his transfer prior to that stage, lack of record as to petitioner's visit or stay in the United States since 1982 under the present name, no person other than CI-1 and CI-2…
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