' IJAZ AHMAD CHAUDRHY, J.---This petition under section 491, Cr.P.C. Had been filed with the prayer that the matter relating to the illegal detention of Dr. Aafia Siddiqui, may be referred to International Court of Justice, the statements of Haji Kamal Shah etc be also got recorded and the petitioner be allowed to defend her case on his own expenses.
2. Learned counsel for the respondents-Deputy Attorney-General opposes this petition while raising questions of maintainability of this petition and contends that powers under section 491, Cr.P.C. Can be exercised if the detenue is within the jurisdiction of this Court, but admittedly Dr. Aafia Siddiqui had been arrested by American Police on 17th July, 2008 and she was transported to America to face trial on 3rd August, 2008 and admittedly she is appearing before the Southern District Court, New York having been found competent to face trial during the hearing on 29-7- 2009 and the next date of hearing is fixed for 9th October, 2009; that Government of Pakistan is following the case of Dr. Aafia and efforts are being made to reduce her difficulties during the trial; that on the recommendations of Muhammad Ali Siddiqui brother of Dr. Aafia Siddiqui, a panel of three lawyers has been engaged by the Government of Pakistan to defend her case; that the loyalty of the Government is clear that they have allocated an amount of 2 million Dollars to pay the fee to the said panel, 5,00,000 Dollar each of the Attorney and 5,00,000 Dollars have been kept to meet the administrative needs during the trial; that there is no question of referral fee and no referral fee has been paid whereas said 5,00,000 Dollars have been kept in ESCROW ACCOUNT according to the US Laws; that payment has been made with complete transparency to the lawyers engaged by the brother of Dr. Aafia Siddiqui; that Ministry of Foreign Affairs, Government of Pakistan is continuously making efforts to reduce the miseries to be faced by Dr. Aafia Siddiqui during the jail as well as during the trial and the allegations levelled for the misappropriation of the said amount are false and may be rejected.
3. Mr. Shair Bahadar Khan, learned Legal Advisor for Ministry of Foreign Affairs, Government of Pakistan supports the arguments advanced by the learned Deputy Attorney General and in addition to that has produced statements of the family members of Dr. Aafia Siddiqui that the Attorneys have been engaged on their request. Learned. Legal Advisor for Ministry of Foreign Affairs further contends that direction was issued by the Islamabad High Court for feasibility of the matter and referring the same to the International Court of Law, which is yet under discussion and no stone will be left unturned to get Dr. Aafia released or for referring the matter to the International Court of Justice. He also undertakes to go to any avenue for the release of Dr. Aafia Siddiqui.
4. I have heard the learned counsel for the parties and also gone through the documents attached with this petition.
5. The first objection has been raised by the learned Deputy Attorney General and the learned counsel appearing on behalf of the Foreign Department that the petition is not maintainable as earlier Crl. Misc. No, 5-H of 2008 was filed by the petitioner for the same relief, which has already been disposed of and now the matter cannot be reopened by this Court for the same relief. The judgment of the, then Islamabad High Court, Islamabad dated 4-3-2009 has been placed along with the report and parawise comments. No doubt earlier habeas corpus petition was also filed for the same relief and direction was issued to the respondents for production of Dr. Aafia Siddiqui, a missing Pakistan national and the petition was disposed of with . The following observations:-- "13. In view of what has been discussed above, this petition is disposed of with direction to Foreign Ministry to find ways and means, firstly through diplomatic channels for repatriation of Dr. Aafia Siddiqui and recovery, of the minors and if they fail in their pursuit, examine filing of reference to the United Nations."
' It was also observed that "Pakistan U.S.A. Treaty of Friendship and Commerce" signed on 12th of November, 1959 empowers the Government of Pakistan to refer the matter to the International Court of Justice but the plea of the petitioner was not accepted and only a directive was issued to the Foreign Ministry to find ways and means for the recovery of Dr. Aafia Siddiqui and her minor children and also to examine for filing of reference to the United Nations. However, no progress has been made in this regard by the Foreign Ministry so far in spite of elapse of a long period.
6. Learned counsel for the petitioner has rightly referred to `Pakistan friendship and Commerce Treaty, with protocol, signed at Washington November 12, 1959, as both the countries were desirous of strengthening the bonds of peace and friendship traditionally existing between them and of encouraging closer economic and cultural relations between their peoples and for establishing mutual rights and privileges of their citizens. For ready reference, Article 1 which has been referred by the learned counsel for the petitioner is reproduced as under:-- ' ARTICLE I "Each Party shall at all times accord equitable treatment to the persons, property, enterprises and other interests of nationals and companies of the other Party."
' ARTICLE II
1. Nationals of either party shall be permitted, subject to the requirements relating to the entry and sojourn of aliens, to enter the territories of the other party, to travel therein freely, and to reside at places of their choice. Nationals of either party shall in particular be permitted to enter the territories of the other party and to remain therein: (a) for the purpose of carrying on trade between the territories of the two Parties and engaging in related commercial activities; and (b) for the purpose of developing and directing the operations of an enterprise in which they have invested, or in which they are actively in the process of investing, a substantial amount of capital.
2. Nationals of either Party, within the territories of the other Party, shall be permitted: (a) to enjoy liberty of conscience; (b) to hold both private and public religious services; (c) to gather and transmit material for dissemination to the public abroad; and (d) to communicate with other persons inside and outside such territories by mail, telegraph and other means open to general public use.
' ARTICLE III
1. Nationals of - either Party, within the territories of the other Party, shall be free from molestations of every kind, and shall receive the most constant protection and security, in no case less than that required by international law.
2. If, within the territories of either party, a national of the other party is taken into custody, the nearest consular representative of his country shall on the demand of such national be immediately notified and shall have the right to visit and communicate with such national. Such national shall: (a) receive reasonable and humane treatment; (b) be formally and immediately informed of the accusations against him; (c) be brought to trial with all convenient speed; with due consideration to the proper preparation of his defense; and (d) enjoy all means reasonably necessary to his defense, including the services of competent counsel of his choice.
' ARTICLE IV ' Nationals of either Party shall be accorded national treatment in the application of laws and regulations within the territories of the other Party that establish a pecuniary compensation or other benefit or service, on account of disease, injury or death arising out of and in the course of employment or due to the nature of employment.
2. In addition to the rights and privileges provided in paragraph 1 of the present Article, nationals of either Party within the territories of the other party shall be accorded national treatment in the application of laws and regulations establishing compulsory systems of social security, under which benefits are paid without an individual test of financial need; (a) against loss of wages or earnings due to old age, unemployment, sickness or disability, or (b) against loss of financial support due to the death of father, husband or other person on whom such support had depended.
' ARTICLE V ' Nationals and companies of either Party shall be accorded national treatment and most-favored- nation treatment with respect to access to the Courts of Justice and to administrative tribunals and agencies within in territories of the other Party, in all degrees of jurisdiction, both in pursuit and in defense of their rights. It is understood that companies of either party not engaged in activities within the territories of other party shall enjoy such access therein without any requirement of registration or domestication.
' ARTICLE IX ' Nationals and companies of either Party shall be accorded within' the territories of the Party:
(a) national treatment with respect to leasing land, buildings and other real property appropriate to the conduct of activities in which they are, permitted to engage pursuant to Articles VII and VIII and for residential purposes and with respect to occupying and using such property, and
(b) other rights in real property permitted by the applicable laws of the other party.
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3. Nationals and companies of either party shall be accorded within the territories of the other Party national treatment and most favored-nation treatment with respect to acquiring, by purchase, lease or otherwise, and with respect to owing and possessing, personal property of all kinds, both tangible and intangible. However, either party may impose restrictions on alien ownership of materials dangerous from the standpoint of public safety and alien ownership of interests in enterprises carrying on particular types of activity, but only to the extent that this can be done without impairing the rights and privileges secured by Article VII or by other provisions of the present Treatly.
' ARTICLE XI
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2. With respect to nationals of either party who are not resident within the territories of the other Party, and with respect to companies of either Party which are not engaged in trade or other gainful pursuit within the territories of the other Party, it shall be the aim of such other Party to apply in general the principle set forth in paragraph 1 of the present Article.
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5. Each Party reserve the right to (a) extend specific tax advantages on the basis of reciprocity; (b) accord special tax advantages by virtue of agreements for the avoidance of double taxation or the mutual protection of revenue; and (c) apply special provisions in allowing, to nonresidents, exemptions of a personal nature in connection with income and inheritance taxes.
' ARTICLE XXI 1 The term "national treatment" means treatment accorded within the territories of a Party upon terms no less 'favorable than the treatment accorded therein, in like situations, to nationals, companies, products or other objects, as the case may be, of such party.
2. The term "most-favored-nation treatment" means treatment accorded within the territories of a Party upon terms no less favorable than the treatment accorded therein, in like situations, to nationals, companies, products or other objects, as the case may be, of any third country.
' ARTICLE XXIII 1 Each Party shall accord sympathetic consideration to, and shall afford adequate opportunity for consultation regarding, such representations as the other Party may make with respect to any matter affecting the operations of the present Treaty.
2 Any dispute between the Parties as to the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice, unless the Parties agree to settlement by some other pacific means."
7. From the perusal of this Article there is no need to follow the statute of the International Court of Justice. Article 36 of the Statute of the International Court of Justice provides the jurisdiction of the Court, which is reproduced as under:-- "ARTICLE 36 ' The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.
2. The State parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: a the interpretation of a treaty; b. Any question of international law; c. The existence of any fact which, if establishment, would constitute a breach of an international obligation; d. The nature or extent of the reparation to be made for the breach of an international obligation.
3. The declarations referred to above may be made unconditionally or on condition or reciprocity on the part of several or certain States, or for a certain time.
4. Such declaration shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the parties to the Statute and to the Registrar of the Court.
' Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms.
6. In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court."
8. From the above it is clear that the matter can be referred to the Court of International Justice with the consent of concerned countries/States, but under the above-said "Pakistan Friendship and Commerce Treaty, with protocol, signed at Washington November 12, 1959; in case or violation of any of the conditions referred above, it provides that the Govt. In case its citizen's rights are violated can approach International Court of Justice without consent of other country. The then Islamabad High Court in its judgment dated 4-3-2009 passed in Criminal Miscellaneous No, 5-H-2009 has already issued direction to the Foreign Ministry to find ways and means, firstly through diplomatic channels for repatriation of Dr. Aafia Siddiqui and recovery of the minors and if they fail in their pursuit, examine filing of reference to the United Nations, which has not taken any decision after the elapse of a long period. Again, the Foreign Ministry is directed to examine the matter after considering the above-said Article and the undertaking given on its behalf by the learned Law Officer for referring the. Matter, of Dr.Aafia Siddiqui, who is a Pakistani national, to the Court of International Justice for fair trial which is the right of every accused under the law. It is directed that the said matter shall be decided within 30 days from the announcement of this judgment and copy of the decision shall also be supplied to the petitioner. The other issues raised in this petition do not come within the domain of habeas corpus and those also involve factual controversy, which cannot be resolved without recording the evidence and this is not permissible.
10(sic). During the pendency of the main case, the petitioner also filed different petitions (Criminal Miscellaneous No, 2115-M-2009, Criminal Miscellaneous No,2136-M-2009 and Criminal Miscellaneous No,2190-M-2009) alleging therein that the Government of Pakistan had engaged three advocates for the defense of Mrs. Aafia Siddiqui in U.S.A. And an amount of Rs,2 Million Dollors was being paid to them and according to him it was being done only for the benefit of some high officials as there is practice that 99% fee is referred back and drama of paying the huge fee to the lawyers in America had been played only to usurp the said huge amount. According to the learned counsel such a huge amount has been paid in advance while preparing ante dated cheques as stay was issued by this Court, which shows mala fide on the part of the concerned officials and their nefarious design whereas there is the procedure that the lawyers used to submit the bill for payment of fee after the each hearing of the case. On the other hand the stance has been taken on behalf of the Government through its representatives that the said lawyers have been engaged with the consent of Muhammad Ali brother of Dr. Aafia Siddiqui and other family members. What is the status and the competence of the said attorneys engaged by the Government of Pakistan cannot be determined by this Court in these proceedings as these also involve factual controversy although, learned counsel/petitioner has relied upon some SMS allegedly received from sister of Dr. Aafia Siddiqui that their consent has been obtained forcibly. It is up to the Government to take necessary steps that when a huge amount has been reserved/paid for defence of Dr. Aafia Siddiqui, a Pakistani national, to ensure that the best lawyers are chosen. The allegation that the said huge amount has been paid for receiving kick backs is based on suppositions and no proceedings can be initiated merely on suspicion unless some proofs are provided in support of the allegations, which for the time being are lacking and the petitioner may approach afresh, if he lays hand on sound and, cogent evidence to supplement the said allegations. All these miscellaneous petitions along with the main habeas petition stand disposed of accordingly.
11. Before parting with this petition, the relevant authorities in the Government are directed to consider that the petitioner has filed different petitions before this Court and earlier at Islamabad High Court, Islamabad. In the public interest and if the petitioner/Advocate is entitled to any fee under the rules as it is fight for the rights of the citizens of this country, who are not in a position to pay fee that shall be determined and paid to him.