' GUL ZARIN KIANI, J.--This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, in The nature of habeas corpus is for setting aside of the inquiry report dated 9-3- 1989 and prohibiting the Federal Government of Pakistan from extraditing Malik Muhammad Saleem (hereinafter referred to as fugitive offender) for his- trial by United States District Court, Southern District of Florida, in respect of an offence of conspiracy to distribute and import Hashish punishable under section 21, U.S.C, 963 of the Code of United States.- ' Fore proper appreciation of the points and to make them more intelligible, some relevant facts need be stated. Fugitive offender is a citizen of Pakistan. He was indited alongwith other persons by a Court at Florida for an offence of conspiracy to import and distribute Marijuana and Hashish, in the United States. Above Court issued warrant for his arrest. As fugitive offender happened to be in Pakistan, Government of United States through their Embassy at Islamabad requested the Federal Government of Pakistan for his extradition for purposes of the trial in respect of the above-noted bffence. Fugitive offender was detained in Jail under an order of the Secretary Ministry of Home, Government of Sind under section 3(1) of Sind Maintenance of Public Order Ordinance, 1960.
Detention order was challenged in the High Court of Sind at Karachi, in Constitutional Petition No,1280-88. On 8-12-1988, when the above Constitutional petition came up for hearing, on behalf of the Government, it was stated that the detenu would be served with a warrant under Extraction Act, 1972. Consequently, constitution petition was disposed of by the High Court on 14-12-1988 in the following terms:-- "Mr. A.A. Mohammedally, Additional Advocate-General, Sind, produces an original letter dated 13th December, 1988, addressed by the Section Officer (Judicial) Home Department, to him, stating therein that non-bailable warrant has been served on the petitioner in the Central Prison, Karachi and that enquiry into the extradition case is being conducted by the Magistrate.
' In view of the above factual position the above petition becomes infructuous and it is dismissed as such."
' Thereafter, on 30-11-1988, the Federal Government passed an order under section 7 of the Extradition Act, 1972. It reads:-
' Whereas it appears that Malik Muhammad Saleem a citizen of Pakistan (Karachi) is alleged to have been involved in the conspiracy to distribute and import Hashish in the United States of America (U:S.A.); And whereas the Government of United States of America has requested for the extradition of said Malik Muhammad ' Saleem in accordance with the terms of the Extradition Treaty between U:S.A.
And Great Britain as adopted by Pakistan; ' And whereas section 5 of the Extradition Act, 1972, lays down that every fugitive offender shall be liable to be apprehended and surrendered' in the manner provided in the ,Act; ' Now therefore, the Federal Government, on perusal of papers and consideration of facts and expediency of the matter and in accordance with the powers conferred by section 7 of the Act, is pleased to direct the District Magistrate, Karachi, to inquire into the case.
(Sd.)
(Muhammad Daud), Section Officer.
' Though the inquiry was ordered by the District Magistrate yet, in tact it was conducted by the A A.D.M. Petitioner who is real brother of the fugitive offender brought a Constitutional Petition (1316- 1288) in the High Court of Sind, to challenge the inquiry on the. Ground that the designated authority could not further delegate its powers. On 22-12-1988, this petition was disposed of with the following observations:- "Mr. A.A. Mohammedally learned. Additional Advocate-General produces letter No,11(67)S0J/88, dated 21st December, 1988 from the Additional Secretary to Government of Sind, Home Department, to the Commissioner Karachi Division, Karachi, asking the Commissioner to conduct the inquiry de novo after giving accused Malik Muhammad Saleem his constitutional right of being heard through the counsel of his choice. Mr. Fazie Ghani learned counsel for the petitioner, requests that Court should direct the Commissioner to nominate some other Magistrate for holding the inquiry stating that A .D.M. Karachi South has already expressed her view. In our view, it will be .Appropriate for the petitioner to make a request to the Commissioner to consider whether it is a fit case in which another Magistrate may be nominated. However, we may observe that it will be advisable that inquiry is entrusted to some other Magistrate so that there may not be any controversy on the above point. The peitition stands disposed of with the direction that the enquiry would be held de novo and the petitioner will be represented by M/s. Fazle Ghani Khan and Sheikh Mir Muhammad Advocates before the enquiry Magistrate. They will be issued notices for the date of hearing."
' Thereafter, required inquiry under section 7 of the Extradition Act was undertaken by Mr. Rashid Bashir Mazari, A.C. And S.D.M. Preedy, South Karachi. He submitted his report to the Federal Government on 14-1-1989. Petitioner again filed a Constitutional Petition (No,D-73 of 1989), in. The High Court of Sind at Karachi. It was dismissed in limine on 19-171989. Against this order, petitioner filed a petition for leave to ,appeal in the Supreme Court of Pakistan. Leave was granted on 5-2- 1989. Later, by a short order passed on 19-2-1989, appeal was. Accepted and the order of the High Court dismissing the Constitutional Petition, in limine was set aside. Order passed by the Supreme Court reads:- "For the reasons to be recorded later, the judgment of the High Court in Constitutional Petition No,D-73 of 1989 dated 19th of January, 1989, is set aside with the result that the proceedings of extradition held before the Magistrate other than the Magistrate designated by the Federal Government under section 7 of the Extradition Act, 1972, who in this case was the District Magistrate, Karachi, are declared to be without lawful authority and of no legal effect.
' The appeal is thus allowed, but with no order as to costs."
' Detailed reasons in support of the short order have been annexed to the Constitutional petition. It appears that the inquiry was set aside on the short ground that the District Magistrate to whom it was entrusted could not delegate his authority to any other person. Consequently, results of the inquiry were found to be of no avail. On 19-2-1989, a further development took place. On this date, District Magistrate Islamabad acting under section 3(7) of the West Pakistan Maintenance of Public Order Ordinance, 1960, ordered arrest and detention of the fugitive offender for 90 days. This order was challenged by the wife of the fugitive offender, in writ petition No,84 of 1989, before this Court.
However, petition was dismissed as not pressed on 25-3-1989. It may be observed that the wife of fugitive offender had also filed petition (W.P.24/1989) to assail the inquiry proceedings. This petition was also not pressed and was dismissed on 22-2-1989. On 20-2-1989, Federal Government nominated Mr. Anwar Jalil, Magistrate First Class, Rawalpindi, to hold an inquiry into the case. Upon receipt of this order, the inquiry Magistrate acting under section 8 of the Extradition Act directed that the fugitive offender be detained in custody in jail and shall be produced before him for purposes of inquiry. Inquiry was stated to have been held within the precincts of Adiala Jail. After taking the evidence, oral as well as documentary, the inquiry Magistrate submitted his report dated 9-3-1989 to the Federal Government holding that in his opinion, a prima facie case was made out in support of the requisition from the requesting State for surrender of fugitive offender for his trial in respect of the above-noted offence by a Court at Florida. Alongwith, the report, written statement of the fugitive offender was also submitted to the Federal Government. On 15-3-1989, warrant for the custody of fugitive offender and his removal was issued by the Federal Government. It reads:- "Whereas a request has been received from the Government of the United States of America, a treaty. State, for the extradition of Malik Muhammad Saleem son of Malik Mehar Din, a Pakistani national against whom a case has been registered in the U.S.A. Under section 952, Article 21 cf the U.S.Code, for allegedly having involved in import of Hashish and Marijuana in U.S.A., and who is at present committed to Central Jail, Rawalpindi; ' And whereas the Government of .Pakistan is of the opinion, after a proper Magisterial Enquiry, that the said Malik Muhammad Saleem ought to be surrendered; ' And, therefore, you are hereby directed to take in custody the said Malik Muhammad Saleem and deliver him at Islamabad to Mr. Harlan Bowe representative of the Government of the U.S.A, to take over the custody of the said Malik Muhammad Saleem for extraditing him to the U.S.A.: ' Provided that the said Malik Muhammad Saleem shall not be so delivered until after the expiration of fifteen days from the date he has been taken in custody under this warrant."
' The warrant was issued under section 11 of the Extradition Act, 1972. It is agreed that United States of America is a Treaty State and the offence of conspiracy to distribute and import Marijuana is an extraditable crime, both in terms of the Extradition Treaty and the Extradition Act, 1972.
' Mr. S.M. Zafar learned counsel for the petitioner contended that; (i) Magisterial inquiry did not disclose even, prima facie, the commission of an extraditable crime; '(ii) that inquiry Magistrate relied upon inadmissible material to form his opinion about the existence of a 'prima facie case' in support of the requisition; (iii) that statements on oath, affidavits and the other related material could not have been looked into by the Inquiry Magistrate because of a clear prohibition in the Qanun-e-Shahadat 1984; (iv) that inquiry report does not disclose conscious application of mind by the Magistrate for finding out that prima facie case existed for surrender of the fugitive offender; and (v) that rule of natural justice gave a right of personal hearing to fugitive offender by the Federal Government before final order for surrender could be made and its denial would render the final determination as altogether void and of no legal effect.
' Raja Muhammad Anwar, learned counsel for the respondents submitted that procedure provided in the-Extradition Act, 1972 was scrupulously observed and all that was admissible under section 9 of the Extradition Act was taken note of by the Magistrate and material foreign to the inquiry was not allowed to influence the result. It was also submitted that in terms of section 10 of the Act, the Magistrate was to report, on the existence of a prima facie case and no more. As to the personal right of hearing by the Federal Government, learned counsel submitted that no such right is contemplated by the Act. Argument raised was that consideration of the 'written statement accompanying the report was equivalent to a hearing and was a proper substitute for the right claimed by the fugitive offender. It was further pointed out that all the grounds taken in the writ petition have been elaborately mentioned in the 'written statement' covering 19 pages and the Federal Government had taken these points in consideration before a final decision was made.
' Before we advert to the contentions of the learned counsel for the rival parties and take up the relevant provisions in the Extradition Act, 1972, having some bearing upon the points' involved, for examination, we must observe that extradition to and from foreign countries is regulated between Sovereign States by treaties and the statutes. In State of West Bengal and another v. Jugal Kishore More and another AIR 1969 SC 1171, it was observed that "Extradition is the surrender by one State to another of a person desired to be dealt with for crimes of which he has been accused or convicted and which are justiciable in the Courts of the other State. Surrender of a person within the State to another State--whether a citizen or an alien--is a political act done in pursuance of a treaty or an arrangement ad hoc. It is founded on the broad principle that it is in the interest of civilized communities that crimes should not go unpunished, and on that account, it is recognised as a part of the comity of nations that one State should ordinarily afford to another State assistance towards bringing offenders to justice. The law relating to extradition between independent States is based on treaties. But the law has operation--national as well as international. It governs international relationship between the sovereign States which is secured by treaty obligations. But whether an offender should be handed over pursuant to a requisition is determined by the domestic law of the State on which the requisition is made. Though extradition is granted in implementation of the international commitments of the State the procedure to be followed by the Courts in deciding, whether extradition should be granted and on what terms, is determined by the municipal law. As observed in Wheaten's International Law, Vol.1, 6th Edn., P.213: "The Constitutional doctrine in England is that the Crown may make treaties with foreign States for the extradition of criminals, but those treaties can only be carried into effect_ by Act of Parliament, for the executive has no power, without statutory authority, to seize an alien here and deliver him to a foreign power". Sanction behind an order of extradition is, therefore, the international commitment of the State under which the Court functions, but Courts jealously seek to protect the right of the individual by insisting upon strict compliance with the conditions precedent to surrender. The Courts of the country which make a requisition for surrender deal with the prima facie proof of the offence and leave it to the State to make a requisition upon the other State in which the offender has taken refuge. Requisition for surrender is not the function of the Courts but of the State. A warrant issued by a Court for an offence committed in a country from its very nature has no extra-territorial operation. It is only a command by the Court in the name of the sovereign to its officer to arrest an offender and to bring him before the Court. By making a requisition in pursuance of a warrant issued by a Court of a State to another State for assistance in securing the presence of the offender, the warrant is not invested with extra-territorial operation. If the other State requested agrees to lend its aid to arrest the fugitive the arrest is made either by the issue of an independent warrant or endorsement or authentication of the warrant of the Court which issued it. By endorsement or authentication of a warrant, the country in which an offender has taken refuge signifies its willingness to lend its assistance, in implementation of the treaties or international commitments and to secure the arrest of the offender. The offender arrested pursuant to the warrant or an endorsement is brought before the Court of the country to which the requisition is made, and the Court holds an inquiry to determine whether the offender may be extradited. International commitment or treaty will be effective only if the Court of a country in which the offender is arrested after enquiry is of the view that the offender should be surrendered.
The functions which the Courts in the two countries perform are therefore different. The Court within whose jurisdiction the offence is committed decides whether there is prima facie'evidence on which a requisition may be made to another country for surrender of the offender. When the State to which the requisition is made agrees consistently with its international commitments to lend its aid, the requisition is transmitted to the Police authcirities, and the Courts of that country consider, according to their own laws, whether the offender should be surrendered--the enquiry is in the absence of expresS provisions to the contrary relating to the prima facie evidence of the commission of the offence which is extraditable, the offence not being a political offence nor that the requisition being a subterfuge to secure custody for trial for a political offence." It is settled law that it is a valuable right of a citizen that he should not be sent out to a foreign jurisdiction without the law relating to extradition being strictly observed and complied with and the Court must, therefore, give a strict interpretation to the provisions of the Extradition Act, and jealously guard his this right. Therefore, basic legal issues requiring decision are as to whether the magisterial inquiry was conducted in accordance with the provisions in the Extradition Act, 1972 and whether a prima facie case was made out in support of the requisition received from the requesting State. For proper answers to these issues, reference to the relevant provisions in the Extradition Act becomes necessary. Chapter 2 in the Act deals with surrender of fugitive offenders. Section 5 which concerns itself with the liability of fugitive offenders to be surrendered and its exceptions are not in point.
Section 6 deals with the requisition for surrender of fugitive offender. It reads:- "A requisition for the surrender of a fugitive offender shall be made to the. Federal Government--
(a) by a diplomatic representative in Pakistan of the State asking for the surrender; or
(b) by a Government of the State asking for the surrender through the diplomatic representative of Pakistan in that State; or
(c) in such other manner as may have been settled by arrangement between the Federal Government and the Government of the State asking for the surrender."
There is no dispute that 'requisition' is in order and was properly made. Section 7 deals with the inquiry. It reads:- "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."
' Section 8 to the extent of its relevance provides:- "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 ordiparily issue."
' Section 9 deals with receiving in evidence of exhibits, depositions, etc. Section 10 concerns itself with the report of the Magistrate after inquiry.
' It provides that:- "If after the enquiry under section 8, the Magistrate is of opinion--
(a) 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;
(b) that a prima facie case has been made out in support of such requisition, he shall--
(i) report the result of his enquiry to the Federal Government;
(ii) forward, together with such report, any written statement which the fugitive offender may desire to submit for the consideration of the Federal Government; and
(iii) subject to any provision relating to bail, commit the fugitive offender to prison to await the orders of the Federal Government."
' Section 11 empowers the Federal Government to order surrender. It reads:- "If, upon receipt of the report and statement Under clause (b) of section 10, the Federal Government is of opinion that the fugitive offender ought to be surrendered, it may issue a warrant for the custody and removal of the fugitive offender and for his delivery at a place and to a person to be named in the warrant: ' Provided that the fugitive offender shall not be so delivered until after the expiration of fifteen days from the date he has been taken in custody under such warrant."
' Here, we may pause for a while, and, observe that presumably fifteen days are allowed to the fugitive offender to avail of remedies against the order for hiss surrender to a requesting State.
Section 12 which empowers High Court to discharge the offender is not relevant to our present inquiry. Section 13, however, is in point. It provides that "If it appears to the Federal `reason that by reason of the trivial nature .Of, the, case or by reason of the application for the surrender of a fugitive offended not being made in good faith or, in the interest of justice or for any other reason, 'it would be Unjust or inexpedient to- surrender -the fugitive offender, it. May, by order, at any time stay the proceedings under this Act against him and direct any summons or warrant issued under this Act to be cancelled and the fugitive offender, if he is in custody or under detention, to be discharged."
' As said above, objections of the petitioner related to absence of a prima facie ease for surrender of the fugitive offender; defects in the inquiry and its results and personal non-hearing by the Federal Government. Extradition is a special branch of law dealing with a special subject, ,Therefore, provisions of section 9 in so far as they allow the evidence of exhibits, depositions, statements on oath, duly authenticated in the manner provided therein to be received in the inquiry are an exception to the general procedure laid down in the Code of Criminal Procedure and the Evidence Act, l872/Qanun-eShahadat, 1984. Having regard to the object underlying the law of extradition and its kind and nature, the inquiry conducted by a Magistrate to find out the existence or otherwise of a prima facie case could not be equated with, a regular trial by a Court of law.
Therefore, the argument of the learned counsel for the petitioner that the provisions in Qanun-e- Shahadat prohibiting the reception of a 'particular kind of evidence, at inquiry, must prevail over the special provisions in the Extradition Act, with respects to him, is not correct and we see no force in it. At this stage, it, may be observed that as to authentication of documentary evidence, learned counsel for the petitioner raised no dispute.
' Next comes the question as to whether a prima facie, case was made out for extraditing of the offender.- Section '10 of the Extradition Act has two limbs. Its first limb is that, in case the Magistrate to whom the inquiry was entrusted finds that no prima fade case was made out in support of the requisition, it is open to him to discharge the offender and make a report to that effect to the Federal Government, and that is the end of it. Conversely, if ;the Magistrate is of the opinion that prima facie case was made 'out in, support Of the requisition, he is enjoined, by law to send his report E to the Federal Government alongwith the written statement which the... Offender may have filed for consideration of the Federal Government. Key words in the section are 'a prima facie case in support of the requisition'. The phrase '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. Chambers 20th Century Dictionary defines the term 'prima facie' as "on the first view: at first sight: (of evidence) sufficient to support the bringing of a charge (law): (of a case) supported by prima facie evidence (law)." Black's Law Dictionary defines 'prima facie case' as "Such as will prevail until contradicted and overcome by other evidence". Pacific Telephone and Telegraph Co. v. Wallace, 158 0. 210, 75 P.2d 942, 947. A case which has proceeded upon sufficient proof to that stage where it will support finding, if evidence to contrary is disregarded. In re: Hoagland's Estate, 126 Neb. 377, 253 N.W.416. A prima facie case consists of sufficient evidence in the type of case to get plaintiff past a motion for directed verdict in a jury case or motion to dismiss in a non-jury case; it is the evidence necessary to require defendant to proceed with his case. White v. .Abrams, C.A.Cal.,495 F.2d 72,4,729. Courts use concept of "prima facie" case in two senses: (1) in sense of plaintiff producing evidence sufficient to render a reasonable conclusion in favour of allegation he asserts; this means plaintiff's evidence is sufficient to allow his case to .Go` to. Jury, and (2) Courts used "prima facie to mean not only that plaintiff's evidenced would reasonably allow co-conclusion plaintiff seeks, but also that plaintiff's evidence compels such a conclusion if the defendant produces, no evidence to rebut it.
Husbands v. Corn. Of Pa., D.C.Pd.,395 F.. 1107,,1139." In Sher Singh.' v, Jatindara Nath. AIR .1931 Ca1.607, side note B reads "A 'prima facie' case only means that there is ground for proceeding. It is not the same thing as 'proof' ,which comes later when the Court has to find whether the accused is guilty and is nothing but the belief according to the conditions laid down in the Evidence Act." In a case reported as 1971 Rajdhani L.R.84 (Delhi) it was observed that prima facie case is not to- be confused with title that has to be established after taking evidence. Prima facie case, F thus means a substantial question raised bona fide which at first sight needs investigation and decision.
Therefore, the only prerequisite for the inquiry Magistrate is to ascertain whether on the material placed before him, in accordance with the requirements 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 the surrender, full-fledged trial shall take place before a competent Court at Florida. Inquiry is merely, to assist the Federal Government 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 Government is under no obligation to surrender.
The offender to a treaty. State. It still has a full discretion in the matter as is evident from section 13 of the Extradition Act. We have carefully looked into the evidence oral as well as documentary, taken in the inquiry and are of the clear opinion that the finding of H the Magistrate holding that a prima facie case existed against Muhammad Saleem Malik is not incorrect. From the report and the findings in it, no appeal or revision has been provided to any Court or Tribunal. In the petition for habeas corpus, ordinarily the Court will not review the evidence to substitute its own opinion for that of the Magistrate on the question of existence of a prima facie case. But if the Court is satisfied that the conclusions on facts as found were such as no reasonable person properly applying his mind to the issues could have reached those conclusions, it is clear duty of the Court to interfere.
Likewise, if rules regulating inquiry are disregarded or the requisition was product of ulterior motives or it suffered from want of good faith or there were other jurisdictional defects, the Court shall not hesitate even for a moment to step in and interfere to protect a right of a citizen of this country not to be extradited to a foreign land for trial of a particular offence. However, in the instant case, there is no element of bad faith on either side and none was suggested to us at the hearing. Even otherwise, there is no material to infer want of bona fides and good faith. This much is sufficient with regard to existence of a prima facie case.
' We now advert to the argument relating to an opportunity of hearing by the Federal Government.
At the outset, we may point out that learned counsel for both sides did not bring to our notice any decided case where in a case of the like nature, a personal right of hearing was accorded before final order for extradition was made. However, learned counsel for the respondents, heavily relied upon the case of Chairman, Employees Old Age Benefit Institution and others v. M. Ismail Munawar'--1984 SCMR 143, Muhammad Yousif Memon v. Governor of Sind 1989 SCMR 263 to argue that law did not contemplate hearing at all stages and in the facts and circumstances of the present case, more than adequate hearing was allowed to the offender at different stages. There is no express provision in the Extradition Act for a personal hearing of the fugitive offender by the Federal Government. All that the Act says is that together with the report, any written statement which the fugitive offender may have filed, shall be submitted to the Federal. Government for its consideration. Section 11 explicitly states that Federal Government shall take into consideration the inquiry report and the written statement for formulating an opinion about the surrender of the fugitive offender. In our view, written statement spoken of in section 10(b)(ii) of the Act can safely be taken as a proper and valid substitute for a right of hearing claimed by the offender and, this circumstance in our opinion, sufficiently meets the requirement of law. Therefore, complaint, on this score, does not seem to be well-founded.
' Upon examination of the existing records and having regard to all the relevant circumstances, we have found no case for interference in extraordinary jurisdiction of this Court. In result, we see no reason to interfere. Petition is dismissed.
' MIAN ALLAH NAWAZ, J.--I have,the advantage of going through the judgment proposed to be delivered by my learned brother Gul Zarin Kiani, J. I agree with the conclusions. In view of the importance of questions involved, I am inclined to give my own reasons .In support of the order.
2. The facts of the case are completely detailed in the judgment of my learned brother and I do not feel the necessity to repeat them. The contentions of the respective parties are summarised below:-
(i) Learned counsel for the petitioner contended that the exhibits, depositions duly authenticated by the Demanding States were receivable under Section 9 of the Extradition Act while Article 1 of the Qanun-e-Shahadat, 1984, made it applicable to all the Courts and Tribunals in Pakistan. It was contended that Qanun-e-Shahadat has an overriding effect in view of its Article 165. Qanun-e- Shahadat was later in time and, therefore, impliedly repealed section 9 of the Extradition Act which is inconsistent with the provisions of the Order. On the strength of the aforesaid argument it was suggested that the finding of Enquiry Magistrate was vitiated on account of being based upon inadmissible affidavits and inadmissible documents. Reliance was placed on Nazar Muhammad and another v. Abdul Ghafoor and 3 others (PLD 1987 Quetta 141).
(ii). It was contended that the detenu was denied personal hearing before passing the final order of extradition under section 11 of the Act. The order, therefore, was in disregard of principle of natural justice that nobody shall be condemned unheard. It was asserted that opportunity of personal hearing was essential in view of the circumstances mentioned in section 13 of the Act which empowers the Federal Government to refuse the request of Demanding State even after the receipt of affirmative report of Enquiry Magistrate, if it comes to the conclusion that allegations against the person are of a trivial nature or demand 'is made out of malice or for any other reason.
(iii) It was next contended that the Enquiry Magistrate has recorded his finding without the application of conscious mind to the material placed before him. The evidence before the Enquiry Officer did not disclose the prima facie case under section 10 of the Act. The evidence comprised of the following:-
(i) Certificate of authentication issued by the State Department of U .S . A . Signed by the then Secretary of State George Schultz, which is Ex. C .
(ii) Certificate of Attorney-General of United States of America as Ex.D.
(iii) Certificate of Director International Affairs, U.S.A., Department of Justice as Ex.E.
(iv) Title sheet of the case pending in the District Court of Florida as Ex.F.
(v) Affidavit of Robert E. O'Neill as Ex.G, containing the details of the facts and specific role played by the fugitive offender.
(vi) The title sheet of the case issued by the District Court Florida as Ex.H.
(vii) Indictment as Ex.I.
(viii) Certificate of Trial Attorney as Ex.J.
(ix) Superseding indictment and its title sheet as Ex.K.
(x) Certificate of Trial Attorney as Ex.L.
(xi) Affidavit of James P.Dunne as Ex.M.
(xii) Photograph of Malik Muhammad Saleem as Ex.N. The aforesaid evidence consisted of inadmissible evidence.
3. Learned counsel for the respondent on the other hand submitted that the report by. The Enquiry Officer, and order of the extradition were completely in consonance with the requirement of law, that evidence was sufficient in quality and quantity to lead to an inference that the detenu was connected with the commission of offence of which he was to be tried in the Court of Demanding State at Florida. It was urged that this Court had no power to scrutinize the evidence or to deeply weigh the quality of evidence. It was' proposed that the Federal Government after examining the report and written statement submitted by the detenu came to the conclusion that the requisition was justified. It was further contended that the objection of personal hearing under section 10 is unsound. It was urged that the petitioner had full opportunity of .Hearing z re the Enquiry Magistrate. He participated in the proceedings the learned counsel, subjected the witnesses to it a statement recorded under section 342 Cr.P.C. And submitted a written representation under section 10.
4. The questions calling for consideration in this petition are:-
(i) Whether the detenu was entitled to personal hearing after submission of the report by the Enquiry Officer?
(ii) Whether this Court is entitled to review the evidence produced before the Enquiry Magistrate?
(iii) Whether the material before the Enquiry Magistrate discloses a prima facie case?
4-A. I will proceed to deal with these questions one by one. It may be stated over here that the parties did not dispute certain 'basic premises. Both the learned counsel agreed that there did exist the Extradition Treaty between the Demanding State and Pakistan, that the offence of which the detenu is charged is extraditable, that the Magistrate had the powers to undertake enquiry and had conducted the proceedings strictly in accordance with section 10 of the Act.
5. The argument that the detenu is entitled to the opportunity of personal hearing under section 11 is not sound. Sections 10 and 11 are as follows:-
10. Magistrate to report after the enquiry.- ' If, after the enquiry under section 8, the Magistrate is of opinion-
(a) that a prima facie case has not been made out in s port 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;
(b) that a prima facie case has been mane out in support of such requisition, he shall-
(i) report the result of his enquiry to the Federal Government;
(ii) forward, together with such report, any written statement which the fugitive offender may desire to submit for the consideration of the Federal Government; and
(iii) subject to any provision relating for bail, commit the fugitive offender to prison to await the orders of the Federal Government.
11. Removal and delivery of the fugitive offender.-- If, upon receipt of the report and ,statement under clause (b) of section 10, the Federal Government is of opinion that the fugitive offender ought to be surrendered, it may issue a warrant for the custody and removal of the fugitive offender and for his delivery at a place and to a person to be named in the warrant: Provided that the fugitive offender shall not be so delivered until after the expiration of fifteen days from the date he has been taken in custody under such warrant.
6. A bare reading of Section 10 makes it clear that the Magistrate holds the proceedings which are quasi-judicial in nature. The principle of natural justice is the foundation of administration of justice and this principle requires a fair hearing. The principles of natural justice are the principle of fair, reasonable and just hearing. It is relative concept varying from body to body and from case to case. What particular rules of natural justice should apply to a given case must depend upon the facts and circumstances of the case and the framework of the law, under which the inquiry is to be held and the constitution of the tribunal appointed for that purpose. Oral hearing is not essential rule of principle of natural justice. Personal hearing is only mandatory when it is so prescribed in the statute itself. The principle of natural justice is explained in the Wade and Phillips' Constitutional Law, 5th Edition at page 313 in the following words:- "An equally elementary principle of justice is that no party ought to have his case decided without being afforded an opportunity of hearing the case which he has to meet as well as stating his own case. "Even God himself did not pass sentence upon Adam before he was called upon to make his defence. 'Adam,' says God, 'where art thou? Hast thou not eaten of the tree that thou shouldst not eat." In Cooper v. Wandsworth Board of Works (1963), 14 C.B. (M.S.) 180; K. & L.366, the Court held invalid a demolition order, justifiable in itself, which was made by the Board without giving notice to the owner of the property or affording him an opportunity of being heard. There is, however, no obligation, unless a statute so provides, that a hearing should be oral: Local Government Board v.
Arlidge, ante. Even in a Court of law evidence may in proper circumstances be given by affidavit."
' The same principle was reiterated in Dawood Cotton Mills Ltd. v. Guftar Shah and another (PLD 1981 SC 225) and the Chairman Employees Old Age Benefit Institution and others v. M.Ismail Munawar (1984 SCMR 143)
7. Applying the aforesaid principle to the case in hand I am of the positive view that the fugitive offender has no right of personal hearing before the Federal Government after the submission of report. The Federal Government is required to consider the written representation in accordance with the requirement of section 10 of the Act.
8. Even otherwise the detenu had no occasion to complain in respect of the opportunity of hearing.
He completely participated in the proceedings, cross-examined the witnesses, and submitted his explanation under section 342 of the Code of Criminal Procedure, submitted representation which was forwarded by the Enquiry Magistrate to the Federal Government. The grievance on the basis of the absence of opportunity of hearing is, therefore, completely misconceived.
9. Before dealing with the second contention it appears necessary to examine the nature of extradition proceedings. The extradition is defined in Black's Law Disctionary, 5th Edition, as under:- "The surrender by one state or country to another of an individual accused or convicted of an offence outside its own territory and within the territorial jurisdiction of the other, which, being competent to try and punish him, demands the surrender."
' The nature of the proceedings described in Encyclopaedia Britannica is as follows:- "Extradition is the handing over of a fugitive from justice by the country in which he is found to the country demanding him. (The meaning of the word "fugitive criminal," used in the Extradition Act, 1870, was considered in R.v. Godfrey (1923)K.B.24., where it was laid down that a person, alleged to have committed a crime in a, foreign country which seeks his extradition from this country, need not have been physically present in the foreign country at the time of the alleged offence for him to be a "fugitive criminal" within the meaning of section 26 of the Act.) Is a country, apart from treaty, bound to deliver up to the country of the place of commission of the alleged crime a fugitive from justice? The ideal international convention is one like the Universal Postal Union, in which all nations are equally interested. Such a matter likewise is the suppression of crime, but this matter had no urgency until the enormous development of transport facilities during the 19th century."
10. From the foregoing statement it becomes clear that Extradition Act and extradition treaties are the outcome of the State necessities to curb the commission of crimes, in the interest of humanity and each State which is bound by the treaty is required to surrender the fugitive offender to the Demanding State. Nevertheless, it is the main duty of the State to satisfy itself that the demand of the State is reasonable, just and grounded upon sufficient material, therefore, I am of the view that this Court had the powers to examine the actions, and functions of the State charged with a duty of inquiring into the nature of allegations forwarded by the Demanding State.
11. The job of the asylum States are limited. Their only concern is to examine whether the charge and the material before them are sufficient to connect the fugitive offender with the offences of which he is to be tried. Section 10 of the Act is to that effect. The function of the Enquiry Magistrate is limited. He undertakes inquiry within the aforesaid sphere. He has examined the evidence and the material in accordance with the laws of his own country and has come to the conclusion whether the requisition is just or unjust. The word "prima facie" under section 10 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. These are defined in Black's Dictionary at page 1071 as under:- ' Prima facie "Act first sight; on the first appearance; on the face of it; so far as can be judged from the first disclosure".
' Prima facie case: "A case which has proceeded upon sufficient proof to that stage where it will support finding if evidence to contrary is disregarded."
' Prima facie evidence: "Evidence which, standing alone and unexplained, would maintain the proposition and warrant the conclusion to support which it is introduced. An inference or presumption of law, affirmative or negative of a fact, in the absence of proof, or until proof can be obtained or produced to overcome the inference."
12. Now it is very clear from the aforesaid analysis that the Magistrate is required to inquire into the requisition and formulate his opinion whether there exists material against the fugitive warranting his trial in the Court of Demanding State. I am, therefore, of the definite view that the arguments of the learned counsel for the petitioner are unsound and cannot be accepted.
13. Reverting back to the merits of the case it is necessary to record that the prosecution did not bank only on affidavits and certificates but also produced the oral evidence. Craig Lovato, the agent and the Chief Investigator appeared before the Court and gave a complete deposition that the prosecution was in possession of oral evidence as well as documentary evidence proving the offence against the fugitive. It is unnecessary to give the details of the statement of this witness except that the learned Enquiry Magistrate after examining the evidence came to the conclusion that the demand of requisition was just.
14. Turning to the argument of the learned counsel that the Enquiry Magistrate based his report on inadmissible evidence, I am of the opinion that the argument is devoid of force. The Extradition Act is a Special Act. It contains the detailed procedure in respect of dealing with the requisition of Demanding State under the Treaty. Qanun-eShahadat Order relates to Law of Evidence. It is a Branch of Adjective Law. It even is not exhaustive. The rules of evidencepart from the Evidence Act are contained in other Acts and statutes like Bankers' Books Evidence Act, Order 36 of the Code of Civil Procedure, Divorce Act, 1869 containing sections 7, 12 and 14, Limitation Act containing sections 19 and 20, Registration Act, 1908 containing sections 49 and 50, Succession Act containing section 63, Extradition Act containing section 9, therefore, the Qanun-e-Shahadat makes no difference. It does not have the effect of re-enacting the Rules which it might have repealed. I am, therefore, of the positive opinion that the Act of Qanun-e-Shahadat has not the effect of repealing section 9 of the Extradition Act.
15. For the foregoing reasons I am of the view that this petition has no merit and I accordingly dismiss this petition, ORDER OF THE COURT ' In the result this petition has no force and we hereby dismiss it accordingly. There shall be no order as to costs.