1. ' SHAFIUR RAHMAN, J.--Leave to appeal was granted to examine a number of questions of law arising out of proceedings undertaken under the Extradition Act, 1972 (hereinafter referred to as the Act). However, the solitary question on which this appeal has been decided A is whether the officer nominated by the Federal Government under section 7 of the Act namely, the District Magistrate, Karachi for holding an enquiry, was the only competent authority to hold the enquiry and the enquiry into the matter conducted by the A.C./S.D.M. Preedy, is without jurisdiction.
2. ' Muhammad Saleem Malik (hereinafter referred to as the detenu), a brother of the appellant Muhammad Azim Malik was detained by an order of the Governor of Sind dated 23rd of November, 1988 under subsection (1) of section 3 of the Sind Maintenance of Public Order Ordinance, 1960 for a period of thirty days and he was required to be kept at the Central Prison, Karachi. The appellant instituted a petition (Constitution Petition No, D-1220 of 1988) under Article 199 of the Constitution on 27-11-1988 seeking from the High Court a rule ni si with a direction to the Superintendent Central Jail, Karachi to produce the detenu before the Court and to satisfy itself whether the impugned order of detention is not bad in law, mala fide and illegal and to set the detenu at liberty. The grounds of detention drawn up on 29th of November, 1988 and served on the detenu mentioned five grounds including those of smuggling narcotics being mixed up with international narcotics smugglers, and to have been cited as an accused in Southern District Court of Florida (USA) from where warrants of arrest were issued, and his previous conviction in 1980 under Martial Law Regulation and thereupon having been sentenced to one year's R.I. And a fine of Rs,15 lacs with 10 lashes. The Petition was finally disposed of by the Court on 14th of December, 1988 with the following order:- "Mr. A.A. Mohammadally, 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.
3. ' In view of the above factual position the above petition becomes infructuous and it is dismissed as such."
4. ' The formal order passed by the Ministry of Interior on 30th November, 1988 under section 7 of the Act is reproduced hereunder:--
5. ' 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 (USA); ' AND WHEREAS the Government of the United States of America has requested for the extradition of said Malik Muhammad Saleem in accordance with the terms of the Extradition Treaty between the United States of America 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 the facts and expediency of the matter, and in exercise of the powers conferred by section 7 of the Act, is pleased to direct the District Magistrate, Karachi, to inquire into the case.
6. (Sd.)
7. (Muhammad Daud) Section Officer."
8. ' The covering letter which issued under the signatures of the same Section Officer and was addressed to the Home Secretary, Government of Sind, Karachi, and copies endorsed to D.G., F.1.A.
9. And Chairman, Pakistan Narcotics Control Board, Islamabad, was expressed to be in the following terms:- ' CONFIDENTIAL IMMEDIATE BY DHL SERVICE ' No, 9/4/88-Ptns.
10. ' Government of Pakistan ' Ministry of Interior ' From: Islamabad, the 30th November, 1988.
11. ' Muhammad Daud; Section Officer.
12. ' To ' The Home Secretary, Government of Sind, Karachi.
13. ' Subject:- EXTRADITION OF MALIK MUHAMMAD SALEEM TO USA--HOLDING OF MAGISTERIAL ENQUIRY Sir, ' I am directed to say that the Government of United States of America has requested for extradition of Malik Muhammad Saleem, also known as Mac, also known as "The Chef", a Pakistani national, R/o D.H./116-AD-1/6 FB Area, Karachi. An order in duplicate appointing a First Class Magistrate at Karachi to hold an enquiry into the case under Extradition Act, 1972, is enclosed.
14. ' It is, therefore, requested that necessary instructions in the matter may please be issued to the authorities concerned for appointing a First Class Magistrate to hold an enquiry into the matter and to furnish his findings to this Ministry expeditiously.
15. ' Your obedient servant, (Sd.)
16. (Muhammad Daud) Section Officer, Tele.
17. 823317.
18. ' Encl. As above.
19. No, 9/4/88-Ptns. Islamabad, the 30th November, 1988 ' Copy alongwith a copy of order with supporting documents in original received from the USA Embassy at Islamabad, forwarded to the Director-General, FIA Headquarters, Islamabad with the request that the concerned FIA Officer at Karachi may be directed to produce these documents before the Magistrate holding the enquiry into the matter.
20. (Sd.)
21. ' (Muhammad Daud) Section Officer.
22. ' Copy alongwith a copy of order also forwarded to Chairman, Pakistan Narcotics Control Board, Islamabad, for information with reference to their u.o. No, 1(39) CO/PNCB/88, dated 24-11-1988.
23. (Sd.)
24. (Muhammad Daud) Section Officer."
25. ' The appellant filed another Constitution Petition (No, D-1316 of 1988) challenging the proceedings under the Act conducted by Mrs. Farhat Rashid, A.D.M. South. One of the grounds taken up in that petition was that the Officer nominated by the Federal Government under section 7 of the Act was the District Magistrate and the enquiry conducted by A.C./S.D.M. Mrs. Farhat Rashid was by a person having no jurisdiction in the matter under the, Act. These proceedings were also disposed of by an order of the High Court dated 22-12-1988 in the following terms:- "Mr. A. A. Mohammadally, learned A.A.-G., produces letter No, II(67)SOJ/88, dated 21st December, 1988 from the Additional Secretary to the Government of Sind, Home Department to the Commissioner, Karachi Division, Karachi, asking the Commissioner to conduct the enquiry de novo after giving accused Malik Muhammad. Salim his constitutional right of being heard through a counsel of his choice.
26. ' Mr. Fazle Ghani Khan, learned counsel for the petitioner, requests that we should direct the Commissioner to nominate some other Magistrate for holding enquiry as Mrs. Farhat Rashid, City and A .D.M. , Karachi South, has already expressed her view.
27. ' 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 enquiry is entrusted to some other Magistrate so that there may not be any controversy on the above point.
28. ' The petition stands disposed of with the direction that the enquiry would be held de novo and the petitioner will be represented by 11/s. Fazle Ghani Khan and Shaikh Mir Muhammad, Advocates before the Enquiry Magistrate. They will be issued notices for the date of hearing. ''
29. ' The enquiry under section 7 of the Act was undertaken by Mr. Rasheed Bashir Mazari, A.C. & S.D.M.
30. Preedy (South), respondent No,
1. The appellant instituted another Constitution Petition (No, D-73 of 1989). One of the grounds taken up in the Constitution Petition was in the following words:- "That the Federal Government had nominated District Magistrate, Karachi vide Annex. "H" for the purposes and as held in PLD 1975 Kar. 891, the Commissioner is the only person who is District Magistrate of Karachi."
31. ' This ground was reiterated as the first ground before the High Court and has been noted in the judgment in the following words:- "That since the Federal Government had nominated the District Magistrate, Karachi for holding enquiry in the order dated 30-11-1988, the enquiry conducted by the A.C. /S. D.M. Preedy is without jurisdiction."
32. ' This objection was disposed of by holding as follows:- "In this regard it may be pertinent to observe that in section 7 of the Act it is not provided that the enquiry is to be conducted by a District Magistrate but it empowers the Federal Government to order to enquire into the case by any Magistrate of the First Class In spite of that when the second petition had come up for hearing on 22-12-1988 the learned counsel for the petitioner Mr. Fazle Ghani Khan requested that the Commissioner be directed to nominate some other Magistrate for holding enquiry as the A.D.M had already expressed her view. It was not the case of the petitioner that the enquiry was to be conducted by the District Magistrate. On the basis of above request we had observed in our order, the relevant portion of which has been reproduced above, that it would be advisable that the enquiry be entrusted to some other Magistrate. After that the detenu in his aforesaid application dated 24-11-1988 and even Mr. Fazle Ghani Khan learned counsel for the detenu in his aforesaid letter dated 31st December, 1988, reproduced hereinabove, inter alia, requested that some other Magistrate than Mrs. Farhat Rashid should be entrusted with the enquiry though he had also mentioned that as per order dated 30-11-1988 that the enquiry was to be conducted by the D.M. And Mrs. Farhat Rashid was not D.M. But A.D.M. Keeping in view the above facts we are not inclined to allow the petitioner to urge the above point as apparently the respondent had nominated S.D.M. In pursuance of the above-quoted observation of this Court upon the request made by the learned counsel for the detenu. Even otherwise it is evident that the Federal Government allowed the holding of the enquiry by the S.D.M. And, therefore, it can be inferred that the above original order was modified because of the observation of this Court. We may also point out that constitutional remedy is a discretionary remedy and a party who invokes the above remedy should come with clean hands, There should not be any act of bad faith on his part. Admittedly, the detenu received the copy of the above Section Officer's order dated 30-11- 1988 on 19-12-1988 and in spite of the fact that it was stated in the said order that the enquiry was to be held by the D.M. It was not pointed out to this Court on 22-12-1988 but a request was made that we should order that the enquiry should be conducted by some other Magistrate than the A.D.M. The respondent has in fact followed our above-quoted observation contained in the above order dated 22-12-1988 passed in the second petition. We therefore are not inclined to entertain the above ground."
33. ' Mr. Fazle Ghani, Senior Advocate, the learned counsel for the appellant submitted that the detenu had been kept in absolute seclusion and had not been supplied the proper documents nor allowed access to the counsel. The appellant also could not know the exact nature of the order and the proceedings that were conducted. In this background the various submissions were made by him and the appellant with a view to ensure fairness in the proceedings and exercise of jurisdiction properly and competently possessed by the authorities dealing with the detenu. There was no intention on his part to either confer jurisdiction where it did not exist or to give up any of the grounds legitimately available to the detenu. The learned counsel has drawn our attention to the Constitutional and legal requirements in detention cases with a view to point out that it is not for the relator to give out all the grounds or to commit the detenu in respect of any ground or objection. It is primarily the duty of the Court and of the Court alone to satisfy itself about the jurisdictional correctness of the proceedings. He has drawn our attention to all the documents wherein this jurisdictional ground was raised pointedly by reference to the law on the subject.
34. ' Raja Muhammad Anwar, Senior Advocate, the learned counsel for the Federation has relied heavily on the covering letter of the Section Officer of the Ministry of Interior, whereby the Sind Government was authorised to appoint a First Class Magistrate to hold an inquiry into the matter and it was pursuant to that order of the Federal Government that the inquiry came to vest in the various officers who handled the case. According to him this was a competent order as the only requirement of the law was that a Magistrate First Class should be seized of it and not necessarily the District Magistrate. He has further contended that the provisions of the Extradition Law have to be liberally construed and the defects, if any, in the proceedings are curable under section 537 of the Criminal Procedure Code and they do not vitiate the proceedings. The learned counsel for the Federation has also contended that all the protections which are available under the law to a person against whom warrants have been issued and a requisition has been received under the Extradition Act, were afforded to the detenu and in fact two such proceedings were held under the directions and control of the High Court and no defect can be found otherwise in those proceedings. The High _ourt, according to the learned counsel, was justified in invoking the principle of approbation and reprobation in not allowing relief to the appellant in view of the law laid down by this Court in Sh. Muhammad Yousaf v. Muhammad Bashir Ahmad and another 1986 SCMR 348, Muhammad Hafeez Khan v. The Secretary to the Government of Punjab, Local Government, Social Welfare and Rural Development, Lahore and others 1981 SCAR 660 and Muhammad Sharif v. Chief Administrator, Auqaf etc. 1975 SCMR 104.
35. ' The provision under which the proceedings were initiated and continued in the High Court is Article 199 of the Constitution. It is in the following words:- "199. Jurisdiction of High Court . -( 1) Su bject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,-
(a) on the application of any aggrieved party, make an order--
(i) directing a person performing within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by 1 v to do, or to do anything he is required by law to do; or
(ii) declaring that any act done or. Proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or
(b) on the application of any person, make an order--
(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or
(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II."
36. ' Sub-clause (b) of clause (1) of Article 199 of the Constitution, imposes an unconditional duty on the Court to satisfy itself with regard to the legality of the detention. The distinguishing feature of this specific sub-clause in relation to the jurisdiction' of the High Court was considered by the Supreme Court in Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 S. C.14), in the following words:- "It will be observed that this Article is radically different from the old Article 170 of the abrogated Constitution of Pakistan or Article 226 of the Indian Constitution. It has given to the Courts the power to give directions to persons performing certain functions in connection with the affairs of the Government or local authority to do or to refrain from doing that which the law requires them to do or which it does not permit them to do and to declare acts done by such persons to "have been done or taken without lawful authority and as being of no legal effect". In the case of persons detained in custody, however, the power given is to issue a direction to have such a person brought before the High Court so that the Court may "satisfy itself that he is not being held in custody without lawful authority in an unlawful manner." The difference in the language of the provisions of sub-clauses (a) and (b) of clause (2) of Article 98 is worth noting. Whilst in the first case the direction is limited to the making of an order for doing or refraining from doing that which the law permits or does not permit, as the case may be, in the case of detention the High Court is enjoined upon to "satisfy itself" that the person is not being held in custody (a) without lawful authority or (b) in an unlawful manner."
37. The Court further went on to examine the amplitude of the provision in the following words:- "The expressidns "without lawful authority" and "in an unlawful manner" occurring in sub-clause (b) were not merely tautologous. A definite meaning had, therefore, to be given to each of them. The Constitution it appears, casts a heavy responsibility upon the Court to satisfy itself with regard to both these two matters. The question therefore, arises as to what are these matters. It is agreed that without lawful authority will be comprised all questions of vires of the statute itself as also of the person or persons acting under the statute, i.e, , there must be a competent law authorising the detention and the officer issuing such an order must have been lawfully vested with the power. But what is it that falls within the expression "unlawful manner"9" The words "in an unlawful manner" in sub-clause (b) of Article 98(2) have been used deliberately to give meaning and content to the, solemn declaration under Article 2 of the Constitution itself that it is the inalienable right of every citizen to be treated in accordance with law and only in accordance with law. To my mind, therefore, in determining as to how and in what circumstances a detention would be detention in an unlawful manner one would inevitably have first to see whether the action is in accordance with law, if not, then it is action in an unlawful manner. Law is here not confined to statute law alone but is used in generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the superior Courts. It means according to the accepted forms of legal process and postulates a strict performance of all the functions and duties laid down by law. It may well be, as has been suggested in some quarters, that in this sense it is as comprehensive as the American "due process" clause in a new garb."
38. ' The duties of the Court in such matters were indicated in the following words: - "It would seem, therefore, that by these words, at any rate, so far as the deprivation of the liberty of a citizen was concerned the Constitution makers intended that this most cherished right should not be taken away in an arbitrary manner and hence by sub-clause (b) of clause (2) of Article 98 they advisedly left it to the High. Courts to review the actions of the detaining authority, untrammelled by the formalities or technicalities of either section 491 of the Criminal Procedure Code or the old prerogative writ of habeas corpus not only with regard to the vires of the law or the officer concerned but also enjoined upon them to satisfy themselves that the detention is not in any manner contrary to law. The scope of the enquiry therefore, not in any way fettered by the procedure of writ of habeas corpus or the rules laid down under the various Habeas Corpus Acts."
39. ' The procedural aspect and the question of onus was attended to in the same judgment of this Court in the following words: - ' "It must also be remembered that initially the onus is on the detaining authority to justify the detention by establishing the legality of his action for under the principles of English law, which have been adopted in our system also, the presumption is that every imprisonment without trial and conviction is prima facie unlawful (per Lord Atkin in Liversidge v. Anderson) and it is only then that the onus shifts on the detenu to show mala fides. Again having regard to the fact that in such cases the materials upon which the belief is based will be mainly in the special knowledge of the detaining authority and not of the detenu, section 106 of the Evidence Act itself would require the detaining authority to discharge this burden."
40. ' There appear three distinguishing features so far sub-clause (b) of clause (i) of Article 199 proceedings are concerned as compared to proceedings under other provisions of the same Article. The first is that the appellant in these cases is not the person for whom the relief is being sought. He is concerned or interested certainly, but the main beneficiary of the proceedings is the detenu. In such a situation what the petitioner/appellant or the applicant says or does shduld not ordinarily matter with regard to the person who is directly concerned with the proceedings and is the beneficiary of it. This aspect has been taken care of expressly by the law and additionally by the judicial decision just referred to. Law enjoins upon the Court to satisfy itself. It does not leave the duty to the appellant or to any one 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 by this Court 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 detenu. 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. These features distinguish all the cases relied upon by the learned counsel representing the Federal Government on the questions of acquiesence in jurisdiction, estoppel, approbation and reprobation.
41. ' Section 7 of the Act empowers the Federal Government, once a requisition under section 6 of the Act has been received, to issue an order to any Magistrate of 1st Class to hold an enquiry. The order of the Federal Government has to be addressed to a Magistrate 1st Class. We have on record an order of the Federal Government addressed to the District Magistrate, Karachi which satisfies the requirement of section 7 of the Act. The covering letter is not only not expressed to be an order under section 7 of the Act and is not so formally expressed but is inconsistent with competently passed order under section 7 of the Act and also is against section 7 of the Act because it is not directed to Magistrate Ist Class but is directed to the Home Secretary, Sind Government.
42. ' At the hearing a doubt was expressed whether the District Magistrate could straightaway be taken to be a Matgistrate First Class invariably and in all cases? There is no occasion for such a doubt because the Third Schedule to the Criminal Procedure Code mentions at Item No, 1 the ordinary powers of District Magistrate to be the ordinary powers of Sub-Divisional Magistrate and the ordinary powers of a Sub-Divisional Magistrate include at Item No,1 the ordinary powers of the Magistrate of First Class. The District Magistrate, is therefore, invariably and always a Magistrate of First Class and no additional conferment of such power on him is necessary.
43. ' As regards the curative provision i.e, section 537 of Criminal Procedure Code, two features of the case have to be kept in view. The first is that the defect relates to jurisdiction. The Federal Government has the unfettered right to select any First Class Magistrate for the purpose of holding an inquiry and that not only the nomination of such a Magistrate has to be made by the Federal Government but the order has to be addressed to him for compliance. This makes the Magistrate First Class a persona designata. None else except the Federal Government has the power to designate or nominate the Magistrates for the purpose. In the .I.R. Manual on Extradition Act, 1962, the following note is contained on section 5:- "(1) Extradition Act--Central Government directing District Magistrate to hold enquiry--District Magistrate cannot delegate the enquiry to some other Magistrate. I.L.R. (1969) 2 Cal. 208 (212)(DB)."
44. ' The Report is not available but an examination of section 7 of the Act and its Scheme makes it clear that the powers so conferred on the nominated Magistrate First Class are non-delegatable.
45. The jurisdictional aspect is important in every proceeding moreso in criminal and quasi-criminal matters.
46. ' In the case of Simeon I. Grin v. John H. Shine (187) US. Supreme Court Reports 47 Law Ed.130 the principles governing the international extraditions were stated. They comprise general principles as well as the specific principles relatable to specific statutory provisions on the subject of extradition.
47. The two general principles are taken note of and expressed as hereunder:- "(i) There is such a general acknowledgement of the necessity of such treaties that of late, and since the facilities for the escape of criminals have so greatly increased, most civilized powers have entered into conventions for the mutual surrender of persons charged with the most serious non- political crimes. These treaties should be faithfully observed, and interpreted with a view to fulfil, our just obligations to other powers, without sacrificing the legal or constitutional rights of the accused.
(ii) In the construction and carrying out of such treaties the ordinary technicalities of criminal proceeding are applicable only to a limited extent. Foreign powers are not expected to be versed in the niceties of our criminal laws, and proceedings for a surrender are not such as put in issue the life or liberty of the accused. They simply demand of him that he shall do what all good citizens are requird and ought to be willing to do, viz. Submit themselves to the laws of their country. Care should doubtless be taken that the treaty be not made a pretext for collecting private debts, wreaking individual malice, or forcing the surrender of political offenders; but where the proceeding is manifestly taken in good faith, a technical non-compliance with some formality of criminal procedure should not be allowed to stand in the way of a faithful discharge of our obligations."
48. ' The specific principle of relevance relatable to statute is that a conferment of special jurisdiction.
49. In the United States Law on extradition, apart from Courts and Judges "Commissioner authorised to do so by any of the Courts of the United States" could undertake extradition proceedings, after such an authorization. The warrant of arrest was issued by the Judge, District Court and the Judge competently directed that the accused after arrest be brought before Commissioner for examination and further proceedings. The objection was that when warrant was issued by the Judge, the Commissioner was not authorised to take proceedings of extradition though he was the authority to whom the warrant after service was returned. It was agreed in that case that no power or authority in respect to a special jurisdiction can be taken by intendment, construction or implication. Further, the argument was that the exclusive jurisdiction vested in the District Judge and he could not divest himself of that jurisdiction by assigning or transferring the case to the Commissioner. The two objections were dealt with as hereunder:- "Nor did the district judge, who issued the warrant, exceed his powers in making it returnable before a commissioner, who upon the same day was specially designated to act in extradition proceedings If the district judge, acting under S.5270 U.S. Comp. Stat. 1901, P.3591, had made the warrant returnable before himself, there could be no doubt of its legality; and in such case, upon the return of the warrant with the prisoner in custody, he might refer the case to the commissioner to examine the witnesses, hear the case, and report his conclusions to the Court for its approval. If he could do that, we see no objection to his referring the case directly to the commissioner by making the warrant returnable ' before him, inasmuch as the latter possesses the same power with respect to the extradition cf criminals as the District Judge himself. It may be said that technically the warrant should be made returnable before the magistrate issuing it, .But where it is made returnable before another officer, having the same power and jurisdiction to act, we do not think it is fairly open to criticism."
50. ' In view of the nature of the proceedings, the jurisdictional defect that existed in it and the duty of the Court and the detaining authorities in proceedings under Article 199, sub-clause (b) of (1), we hold that it is not a curable defect. Hence the proceedings conducted by Magistrates other than the District Magistrate, Karachi who has been designated and nominated by the Federal Government as persona designata under section 7 of the Act, are without lawful authority and of no legal effect. The proceedings can be conducted only by the Magistrate First Class, designated by the Federal Government in exercise of the powers possessed under section 7 of the Act.
51. ' The appeal is accepted, the dismissal of the Constitution Petition is set aside and the declaration in terms is granted. No order as to costs..