' YAHYA AFRIDI, J.---Ahtabar Gul and Behram Gul, the present petitioners, seek the constitutional jurisdiction of this Court praying for:- "that on acceptance of the writ petition, the arrest and detention of the petitioners may kindly be declared to be without lawful authority and it is further requested that the petitioners may kindly be set-at-liberty."
2. Brief and essential facts leading to the present writ petition are that the petitioners are Afghan nationals and presently in Islamic Republic of Pakistan ("Pakistan") having been duly registered under the enabling provisions of Foreigners Act, 1946 ("Act of 1946"); that the Government of the Republic of Afghanistan ("Afghnistan"), through INTERPOL, sought the identification and arrest of certain named persons, including the present petitioners vide intimation dated 13-11-2012, the contents whereof are reproduced as under:-- "Kindly be informed that according to the information that we received from our Attorney General Office in a complaint letter of an Afghan National namely Dilawar Khan resident of KHOST Province, states that he has been beaten brutally by the following persons (Atebar Gull, Miro Gull, Balo Gull, Shaista Gull sons of Atman, Nisha Gul son of Zahir Gul, Shahzad Gull son of Miro Gul and Behmm Gul son of Balo Gul) and it is to be mentioned that the persons are wanted by our judicial authorities for injuring and beating brutally Mr. Dilawar Khan. According to the confirmed information provided to us by the son of Dilawar Khan Mr. Liaq Khan we are assured that they are still residing in (Soba Khyber Pakhtunkhwa District of Mansera Bari Camp) area and for your further information it is to be mentioned that there is a big electricity stand in their house and the area is well known by the name of Sallahuddin son of Latif Khan Mujahid. Now Mr. Liaq Khan son of Dilawar Khan date of birth 14-11-1982 and holder of passport number authorities for identification of the above mentioned criminals and their location in the mentioned address, so we will introduce Liaq Khan to your NCB for cooperating with our concerned authorities in this regard.
' You are kindly being requested to consider Liaq Khan's cooperation with you on this case so the criminals will be arrested by his cooperation in a prompt manner.
' We are attaching the passport copy of Mr. Liaq Khan in this letter for your satisfaction.
' If the accused persons are identified and arrested, their extradition documents will be sent through diplomatic channels to you.
' Thanks in advance for your kind and diligent co-operation. Your prompt response will highly be appreciated".
' In pursuance of the aforementioned requisition of Afghanistan, the Government of Pakistan arrested the petitioners on 5-12-2012 and intended to extradite them to Afghanistan under the Extradition Act, 1972 ("Act of 1972")..
3. Aggrieved thereof, the petitioners nave challenged their said arrest, detention and the proposed action of the respondents through the instant petition.
4. The extradition of the petitioners was, however, restrained by the interim order passed by this Court.
5. Learned counsel for the petitioners vehemently argued that the provisions of Act of 1972, which is claimed to be the basis of the arrest and the proposed extradition of the petitioners was not applicable to the petitioners, as Afghanistan is a "non-treaty State" under section 3 ibid; that there is no separate Notification in the Official Gazette, as provided under section 4 ibid, whereby cases relating to "non-Treaty State" may be proceeded under the provisions of the Act of 1972; that the petitioners are presently in Pakistan through valid permission and documents and they have neither been charged for any offend in Pakistan nor have they violated the terms of their stay as provided under the Act of 1946; and that till the validity of their registration thereunder, the petitioners cannot be deprived of their "liberty" and "freedom" of movement. Learned counsel in support of his contentions placed reliance on cases titled Jawar Arian v. State of Gujarat") (AIR 1979 Supreme Court, 1500) and Muhammad Akbar Cheema, Advocate v. Superintendent Jail, Kot Lakhpat (1994 PCr.LJ 2362).
6. The worthy Deputy Attorney General aggressively opposed the contentions of the learned counsel for the petitioners and stated that the respondents could proceed against the petitioners on the request of INTERPOL and extradite them under Act of 1972; that even when the requesting State, being "Non-Treaty State", the Federal Government has the authority under section 4 of the Act of 1972 to proceed against the petitioners; that there was no need for any "inquiry" in proceeding against the petitioners and extraditing them under sections 7 and 8 of the Act of 1972; that the petitioners are still in Pakistan beyond the period prescribed under section 12 of the Act of 1972 due to the restraint order issued by this Court.
7. Valuable arguments of the learned counsel for the parties heard and available record perused.
8. At the very outset, this Court was conscious of the fact that the matter for resolution in the present petition related to detention of two foreign individuals, whose freedom of movement and liberty, protected under Articles 9 and 10 of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution") were at peril and demanded a prompt judicial pronouncement. In such like cases, it is by now a settled principle of safe administration of justice that the Courts are under a strict duty to first ensure the jurisdictional power of the detaining authority. The said principle was initially very comprehensively discussed by the apex Court in Government of West Pakistan and another v.
Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 Supreme Court 14) and later followed in other valuable judgments of our superior Courts but most eloquently described by his lordship Shafiur Rahman, J, in the case of Muhammad Azimm Malik v. A.G. & D.C. Preedy (South) Karachi and others (PLD 1989 Supreme Court 266), in terms that:-- "Law enjoins the Court to satisfy itself. It does not leave the duty to the appellant or to anyone else. The duty is that of the Court, to satisfy itself with regard to the jurisdictional aspect and with regard to the lawfulness of the manner of detention. The law laid down further makes it clear that once the attention of the Court is properly drawn to a case of detention, the onus immediately shifts to the detaining authority to show the lawfulness of its authority in detaining the detenue. The duties are therefore, specifically that of the Court and the detaining authority in the first instance and it is only incidentally that the relator or the applicant comes to the forefront in such a situation."
' In view of the above re-affirmation of the basic cardinal legal principle, this Court also, at the very outset, sought from the respondents to explain the jurisdictional authority of the detaining agency.
Accordingly, the worthy Deputy Attorney General was asked to justify the arrest and detention of the petitioners. In response, he referred to the requisition issued by the Government of Afghanistan, as a "requesting State", for the extradition of the petitioners under the enabling provisions of the Act of 1972. At this stage, the worthy Deputy Attorney General was further asked to comment; whether Afghanistan and Pakistan had any extradition Treaty. His response was in the negative. To further clarify the position, the learned Deputy Attorney General was asked; whether the notification under section 4 of the Act of 1972 had been issued in favour of Afghanistan being "non-treaty State" or in regard to the present case. His response was again in the negative.
9. Our Constitution has expressly empowered the Parliament, under item 3 of the Federal List, to enact laws on "extradition, including surrender of criminal and accused persons to Governments outside Pakistan". Accordingly, the Parliament enacted the Act of 1972. In fact, in the apex Court, while confirming the constitutionality of the Act of 1972 in Nasrullah Khan Henjra's case (PLD 1994 Supreme Court 23) clearly explained the aims thereof, in terms that:- "It may be mentioned that the Act empowers the Federal Government to surrender fugitive offenders, even though they may be Pakistani nationals, who have committed certain offences, called the extradition offences, to foreign states which have an extradition treaty with Pakistan."
10. It is also noted that the Act of 1972 has in order to safeguard the freedom of movement and liberty of a person, provided certain crucial safeguards. The same are as follows:- Firstly, there has to be an Extradition Treaty between Pakistan and the requesting State, which requires a formal notification to be issued by the Federal Government (Sections 2 and 3).
There is no Extradition treaty between Pakistan and Afghanistan.
Secondly, in case of no Extradition treaty between the two States, the Federal Government may through a notification allow the extradition to proceed under the Act of 1972 (Sections 2 and 4).
The Federal Government has issued no Notification under section 4 of the Act of 1972 in the present case.
' Thirdly, the offence for which the person is being extradited has to be an "extradition offence", listed in the Schedule to the Act of 1972 ("Schedule").
The offence stated at serial No, 2 of the Schedule states "Maliciously or willfully wounding grievous bodily harm" which has been attributed to the petitioners in the subject requisition.
Hence, the offence for which the petitioners have been requisitioned to be extradited is an "Extradition offence".
Fourthly, a Magistrate has to conduct an inquiry only to ascertain whether a "prima facie" case is made out against the person who is sought to be extradited (Sections 7 and 8).
No inquiry has been conducted in the present case. This inaction on the part of the respondents is blatantly against the command of the clear provisions of the Act of 1972. No person can be extradited from Pakistan without complying with the inquiry envisaged under sections 7 and 8 of the Act of 1972.
Fifthly, in case the inquiry by the designated Magistrate cannot be concluded within the specified period of two months, the person detained has to be released (section 11).
11. In the present case, the essential conditional precedent for considering an extradition requisition of Afghanistan by the Government of Pakistan under the Act of 1972 relates to the first two safeguards stated hereinabove. In this regard, it would be pertinent to mention subsection (4) to section 2 of the Act of 1972, states that:-- "It shall apply in relation to the return of persons to and to person returned from:
(a) A treaty State subject to a declaration under section 3, if any; and
(b) A Foreign State not being a treaty State, subject to a direction under section 4."
' Admittedly, in the present case, neither is Afghanistan a Treaty State nor has the Federal Government issued the requisite notification in favour of the proceedings against the petitioners under section 4. Thus the very applicability of the provision of the Act of 1972 to the case of the petitioners was beyond the mandate of law.
' Accordingly, the very arrest of the petitioners was and their present detention is illegal and without lawful authority.
12. This Court is alive to the pressing need of our country to maintain and respect the bilateral relations with Afghanistan, especially in the present turbulent times. Accordingly, this Court also reviewed the subject requisition of Afghanistan in order to see whether Pakistan had any international obligation to accept the same under International Law.
' It was noted that:-- Firstly, that there is no International Treaty on Extradition. Thus, it is difficult for this Court to formulate a definite definition to the said term under International Law. However, we found the said term has been described in acclaimed legal treatises. Some record the term as follows:?
Corpus Juris Secundum (Volume 35)
"Extradition is surrender by one state or nation to another of an individual accused or convicted of an offence outside of its own territory, and within the territorial jurisdiction of the other, which being competent to try and punish him, demands the surrender"
Encyclopedia Britannica "Extradition is the process by which one state, upon the request of another, affects the return of a person for trial for a crime punishable by the laws of the requesting state and committed outside the state of refuge. Extraditable persons include those charged with a crime but not yet tried, those tried and convicted who have escaped custody, and those convicted in absentia.
The request distinguishes extradition from other measures-such as banishment, expulsion, and deportation-which also result in the forcible removal of undesirable persons".
Secondly, the United Nation's Charter is silent regarding any express obligation upon a member State to extradite any person within its territorial jurisdiction on a request of another State for the extradition.
Thirdly as noted earlier, as there are no International Treaties on extradition, there are only bilateral treaties and regional conventions on matter. As far as regional conventions are concerned, we have European Conventions on Extradition, which was entered by all Members of the Council of Europe at Paris in 1957. These bilateral or regional treaties by the contracting nations regulate the terms on which extradition is to be requisitioned, processed and finally given legal effect by surrender of the person sought to be extradited.
Fourthly, canvassing the bilateral treaties, Regional Conventions and the Municipal Laws on extradition, it is noted that there are certain common bar to allow extraditions, which includes:--
(1) Failure to fulfill dual criminality: generally the act for which extradition is sought must constitute a crime punishable by some minimum penalty in both the requesting and the requested parties.
(II) Political nature of the alleged crime: most countries refuse to extradite suspects of political crimes.
(III) Possibility of certain forms of punishment: some countries refuse extradition on grounds that the person, if extradited, may receive capital punishment or face torture. A few go as far as to cover all punishments that they themselves would not administer.
(IV) Death penalty: Many countries, such as Australia, Canada, Macao, New Zealand, South Africa, and most European nations except Belarus, will not allow extradition, if the death penalty may be imposed on the suspect unless they are assured that the death sentence will not be passed or carried out.
(V) Torture, inhuman or degrading treatment or punishment. Many countries will not extradite, if .There is a risk that a requested person will be subjected to torture, inhuman or degrading treatment or punishment.
(VI) Jurisdiction: Jurisdiction over a crime can be invoked to refuse extradition. In particular, the fact that the person in question is a nation's own citizen causes that country to have jurisdiction.
VII) Own nationals: Some countries, such as Brazil, the Czech Republic, France, Germany, Japan, the People's Republic of China, the Republic of China (Taiwan) forbid extradition of their own nationals. These countries often have laws in place that given them jurisdiction over crimes committed abroad by or against citizens. By virtue of such jurisdiction, they prosecute and try citizens accused of crimes committed abroad, as if the crime had occurred within the country's borders.
Fifthly, that the established International Customary Law also does not impose any obligation upon a State to accept a requisition of another State for an extradition of a person within its territorial jurisdiction.
' Thus, it may safely be stated that there is no International obligation upon a Sovereign State to accept the request for extradition of a person within its territorial jurisdiction. What we have is the sovereignty of a State having legal authority over the people within its territorial borders. It is for the host State to enter into arrangements with others sovereign States, whereby it may divest some of its sovereign powers including the power to try a person for an offence or to allow the person to remain within its territorial jurisdiction and to allow his extradition to another State to face trial.
13. The apex Court of our country in the case of Nasrullah Khan Henjra's Case (Supra) has highlighted the need for international commitments to curb criminality beyond territorial borders and its lofted position in our Constitution. It was explained in terms that:- "It may be mentioned that those who fought the battle for the creation of Pakistan were inspired by the ideal that the new State should play an effective role in international affairs and occupy an honoured place among the nations of the World. Thus, in the Objectives Resolution which was passed within a few years of the creation of Pakistan, they described the ultimate goal of the people of Pakistan in the following terms: "So that the people of Pakistan will prosper and attain their rightful and honoured place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity."
' This goal of the Pakistan nation was reiterated in the various Constitutions that held sway in Pakistan at different times and is repeated in the Preamble to the present Constitution as well. It may also be mentioned that the Objectives Resolution now forms a substantive part of the Constitution. It does not stand to reason that, on the one hand, one Constitution after another should be reiterating the commitment of the Pakistan nation to attainment of an honoured place amongst the nations of the World, yet on the other hand it should incorporate a provision which would make Pakistan- a safe haven for those of its citizens who commit serious crimes abroad and then take refuge in Pakistan to avoid punishment."
We are not to lose sight of the established legal principle prevalent in our legal jurisdiction that when International obligations and bilateral commitments come in conflict with municipal laws, the later are to prevail. This matter was initially discussed by our superior Courts in A.M. Qureshis's case (PLD 1981 SC 377) and Indus Auto Mobile (Pvt.) Ltd.'s case (PLD 1988 Karachi 1999), and finally the principle was elaborately reiterated in Messrs Najeeb Zarab Ltd.'s case (PLD 1993 Karachi 1993), wherein it was held that:- "We are of the view that nations must march with the international community and the municipal law must respect rules of international law, even as nations respect international opinion. The comity of nations requires that rules of international law may be accommodated in the municipal law even without express legislative sanction provided they do not run into conflict with Acts of Parliament. But when they do run into such conflict, the sovereignty and the integrity of the Republic and the supremacy of the constituted Legislatures in making laws, may not be subjected to external rules except to the extent legitimately accepted by the constituted Legislatures themselves. The doctrine of incorporation also recognizes the position that the rules of international law are incorporated into national law and considered to be part of the national law, unless they are in conflict with an Act of Parliament, comity of nations and municipal law must prevail in case of conflict. National Courts cannot say "yes" if Parliament has said "no" to a principle of international law. National Courts will endorse international law but not if it conflicts with national Law. National Courts being organs of the National State and not organs of international law, must perforce apply national law if international law conflicts with it. But the Courts are under an obligation within the legitimate limits, so to interpret the municipal statute as to avoid confrontation with the comity of nations or the well-established principles of international law. But if conflict is inevitable, the latter must yield".
14. In the present case, the aim of the legislature enacting the Act of 1972 was in recognition to the International obligations of a civilized nation in respect to a requisition made by the requesting State and to regulate the extradition of persons, "citizen" or "non-citizen", within the territorial limits of Pakistan. But, most importantly, the legislature has provided the protection to valuable rights of the persons: who are subjected to the said legal regime, as described in Para. 11 above.
15. Before parting with the judgment, it would be. Important to note that the petitioners are duly registered with the competent authority under the Act of 1946. Needless to state that under subsection (2) of section 3 of the Act of 1946, Federal Government is vested with authority to pass an appropriate order not only for "restricting" the movement of the petitioners, but also their "arrest". Surely, the provisions so provided therein have to be strictly followed by the respondents, as any provision of law, which restricts the "freedom of movement" or impairs the "liberty" of a person and thereby infringing his fundamental Rights enshrined in Articles 9, 10 and 15 of the Constitution, has to be strictly construed. This Court is in total consonance with the view recorded by the Indian Supreme Court in Vimal Chand Jawantrai Jain v. Plradhan and others (AIR 1979 SC 1250), wherein it has gone to the extent of superimposing the fundamental Rights of "freedom of movement" in all detention laws, in terms that:- "It is now settled law that the power to preventively detain a person cannot be exercised except in accordance with the Constitutional safeguards provided in clauses (4) and (5) of Article 22 and if any order of detention is made in violation of such safeguards, it would be liable to be struck down as invalid. It is immaterial whether these Constitutional safeguards are incorporated in the law authorizing preventive detention, because even if they are not, they would be deemed to be part of the law as a superimposition of the Constitution which is the supreme law of the land and they must be obeyed on pain of invalidation of the order of detention. ".
16. These are the reasons furnishing basis for our short order dated 22-5-2013, wherein it was held that "the petitioners be released forthwith, if not required in any other case".