' SHAFIUR RAHMAN, J.--The petitioner, a brother of the fugitive offender Muhammad Saleem Malik detained under a Substituted Warrant of Custody and Removal made out under section 11 of the Extradition Act, 1972 (hereinafter referred to as the Act) seeks leave to appeal against the judgment of the Lahore High Court, Rawalpindi Bench, dated 30-4-1989 whereby his petition under section 12 of the Act and under section 491, Cr.P.C. Read with Article 199 of the, Constitution was summarily dismissed.
2. The petitioner had earlier twice successfully challenged these proceedings before this Court. In his first Appeal (Civil Appeal No,14-K of 1989) this Court by its judgment, dated 19-2-1989 held. That the extradition "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". Thereafter, the Federal Government designated another Magistrate under section 7 of the Act who recorded the evidence, conducted the inquiry and submitted his report dated 9-3-1989 to the Federal Government and a Warrant of Custody and Removal was issued. This was challenged in the second petition (C.P.L.A.
No,135-R of 1989). After noticing the various grounds urged for challenging the proceedings but without adjudicating them, the petition was converted into appeal and was allowed on the short ground that the Warrant of Custody and Removal then prepared and under challenge conformed neither to the charge nor to the requisition. It was not in accord with the enquiry report nor with the Order passed by the Federal Government. That Warrant was held to be of no legal effect and the enquiry report submitted by the Magistrate was held to be awaiting the orders of the Federal Government under section 11 of the Act.
3. The Federal Government substituted that Warrant by another, dated 20-4-1988 with certain modifications in it. The petitioner filed a Constitution- Petition (No,167 of 1989) in the High Court, which was summarily dismissed with the following findings and observations: -
(i) Federal Government was enjoined only to pass a fresh order under section 11 of the Extradition Act 1972 as to the surrender of the fugitive offender. This order, the Federal Government, has already passed. In this view, we did not think it necessary to re-examine the points already covered by us in our earlier judgment."
(ii) "In case, it decides to form the above opinion, it is obliged to issue a warrant for the custody and removal of the fugitive offender to take effect after expiration of fifteen days from the date the fugitive offender was taken in custody under the above warrant."
(iii) "From the combined reading of the above sections of law, it transpires that unless the act of the Federal Government was tainted with male fides or exceeded the powers given to it by the Act, it may not be competent to the High Court to interfere with the order for extraditing the fugitive offender to a foreign State. All that was required by the Extradition Act was that its provisions be faithfully complied .With before an order for surrender was made by the Federal Government."
(iv) "As for the argument that the Federal Government was obliged to pass a speaking order manifesting judicial application of mind, we see no merit in it because it was not the requirement of the Extradition Act."
(v) "Before us, there is no material to suggest that the Federal Government has not considered the report and. The written statement submitted by the fugitive offender. Rather; from the order made, it is clear that the relevant material upon whidh the opinion was to be formed was taken due note of by the Government."
4. Mr. Fazle Ghani Khan, Advocate, the learned counsel for the petitioner contended before us that he would like to take as all those grounds for challenging the extradition proceedings s had been taken earlier, noted in the last judgment of this Court on the subject and not formally adjudicated upon emphasizing a few of them. The grounds taken up are the following:-
(i) The High Court has erred in not redeciding all the issues of law and fact raised before it after the appellate judgment of this Court dated 19-4-1989. In particular it has been emphasized that the Petition filed in the High Court invoked section 12 of the Act and this was a ground which could not have been taken up earlier, was specifically taken up before the High Court but it was neither noticed nor dealt with. According to the learned counsel, as the grounds taken up earlier challenging the judgment of the High Court had not been formally adjudicated upon by the Supreme Court, it was open to the High Court to have re-examined them in light of the latest warrant prepared for custody and removal of the detenu, under the Act.
(ii) There existed no extradition treaty between the United States of America and Pakistan to sustain the extradition proceedings at all. This was the ground (X) in the earlier Petition and Ground
(AA) in the second Petition filed This ground was expressed in the following words:- "That a legally valid Extradition Treaty does not exist between Pakistan and United States. The present document has been validated on 14th August, 1947 by Earl Mountbatten, the then Governor-General of India by way of an order called the Indian Independence (International Arrangements) Order, 1947. This can have no legal effect in Pakistan as on 14 August, 1947 Pakistan had come into existence and only the Governor-General of Pakistan could issue such an order."
(iii) Even if there existed an Extradition Treaty the offence for which the detenu stands charged and is awaiting extradition is not at all one of the offences specified as such in the Extradition Treaty.
This ground was expressed in the earlier petition as Ground (Y) and in the second Petition as Ground (BB) in the following words:- "A bare perusal of Count IV which is the only count against the Detenu clearly establishes that the Detenu is charged in United States with the import into U.S.A. Of a "non-narcotic controlled substance". A non-narcotic controlled substance is not listed in the Schedule under Section 2(1)(a) of the Extradition Act, 1972, and the Government of Pakistan cannot extradite the detenu to U.S.A. To stand trial in respect of the import into U.S.A. Of such a substance."
(iv) It is admitted that the extradition of the detenu is sought only under charge IV. It deals with a conspiracy to import into United States of America Hashish. As the detenu never visited United States of America, he did not commit any act which may have a semblance of criminality within the jurisdiction of Courts of United States, he could not be taken to be amenable to the jurisdiction of the United States Courts. The Courts there had no jurisdiction on his person and the offence alleged against him. This was stated in the Second Petition in Grounds (JJ), (KK) and (LL).
(v) The evidence led at the trial was inadmissible under Qanun-eShahadat of our country. Neither the affidavits nor the hearsay material could be brought on record and taken into consideration because such material could not form evidence or basis for drawing any concrusion with regard to the involvement or implication of the detenu.
(vi) The Enquiry Magistrate had no jurisdiction under the law to hold the enquiry. The enquiry could be held only by the Magistrate of 1st 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." According to the learned counsel, the offence attributed to the detenu fell under Prohibition ,(Enforcement of Hadd) Order, 1979 and that law overrides all other laws. The Offences under the Prohibition Order, 1979 are triable by the Court of Sessions and, therefore, the Magistrate had no jurisdiction under section. 8 to hold proceedings under the Act.
(vii) In any case, according to the learned counsel, the evidence led at the trial had to be evaluated and appraised, the inadmissible evidence to be distinguished from the admissible and conclusions drawn by appreciating the evidence. The Enquiry Magistrate has, according to the learned counsel for the petitioner, failed to discharge that duty, inasmuch as, the prosecution version has been taken as the gospel truth and no effort has been made to juxtapose the evidence in favour of the detenu. Reliance has in this respect been heavily placed on the testimony of Mr. Harlan Bowe, Special Agent. Drug Enforcement Administration, Government of U.S.A. Why clearly stated that the detenu was not involved in any such crime or racket as was sought to be made out against him.
No prima facie case was made out against the detenu.
(viii) The Federal Government was obliged in the matter of formation of opinion under section 11 of the Act to take into consideration the Written Statement and representation made by the detenu from time to time and also, if passible, to afford a hearing to the detenu before the opinion was formed and a deportation order was made out. As there had been a failure on the part of the Federal Government to afford such an opportunity to the detenu, the order gets vitiated.
5. The grounds which had earlier been considered by the High? Court and disposed of, could not be decided afresh because the finding of the High Court on those grounds still held the field as this Court had not while disposing of the appeal set them aside or found fault With them. However, the learned counsel for the petitioner is correct in saying that the Petition leading to the impugned order invoked section 12 of the Act and it was a ground which, according to the learned counsel, became available at that stage and not earlier. It was not dealt with or even noticed by the High Court at any earlier stage. It was, therefore, open and necessary that this ground should have been dealt with.
6. The specific ground was that the detenu was committed to the custody by an order dated 23-11- 1988 and has remained in custody since then. Section 1.2 of the Act empowers the High Court on an application being made to discharge the prisoner, if more than two months have elapsed "after such committal," unless sufficient cause is shown to the contrary. The benefit of this provision should, according to the lerned counsel, have been extended to the detenu.
7. Section 12 of the Act is in the following words:- "12. Discharge of person apprehended if not, surrendered within two months.--If a fugitive offender who, in pursuance of this Act, has been taken into custody to await his surrender is not conveyed out of Pakistan two months after such committal, the High Court, upon application made to it by or on behalf of the fugitive offender and upon proof that reasonable notice of the intention to make such application has been given to the Federal Government, may order such prisoner to be discharged unless sufficient cause is shown to the contrary."
' The expression "after such committal" refers to a particular "committal" earlier referred to in clause
(iii) of subsection (b) of section 10 of B the Act. That provision reads as hereunder:- "10. Magistrate to report Mier 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 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 fade 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."
The committal under section 10(b)(iii) in the present case took place when an order in accordance with law was passed by the Enquiry Magistrate and for the present proceedings, the date cannot be taken earlier to 9-3-1989. Two months period has not expired therefrom and this ground could not be available to the Petitioner when the proceedings came up before the High Court and is not available even today when the matter is being considered by this Court.
8. As regards the existence of the Extradition Treaty, we find on the record the Extradition Treaty itself which is dated 22nd of December, 1931 and it had been ratified by the Government of the United States and Great. Britain and in the 'United States Code Annotated, Title 18, Cumulative Annual Pocket Part for Use in 1983' are listed bilateral treaties of extradition between the United States and the other Governments and the following entries exist in respect of Pakistan:- {{TABLE}} "Country Date Signed Entered Citation into force xxxx xxxx xxxx xxxx Pakistan Dec.22,1931 March 9,1942 47 Stat. 2122 xxxx xxxx xxxx xxxx"
9 Section 3 of the Act requires as hereunder:- "3.Treaty State.--(1) As soon as may be after the commencer era of this Act, the Federal Government shall publish in the official Gazette a list of the foreign States with which an extradition treaty is in operation, specifying in respect of each such State the Offences persons accused of which are, under the treaty, to be returned to or from that State.
(2) Whenever there is concluded an extradition treaty. Between Pakistan and a foreign. State, the Federal Government may, by notification in the official Gazette, declare such State to be a treaty State for the purposes of this Act.
(3) A declaration under subsection (2) in relation to a foreign State shall specify the offences persons accused of whith are, under the extradition treaty with that State, to be returned to or from that State and may provide that this Act shall apply in relation to that State with such modification as may be set out therein; and the provisions of this Act shall have effect accordingly."
' There is no material placed on the record by the Government to indicate that the treaty has been notified in the Gazette as required by subsection (1) of section 3 of the Act. However, a copy of the treaty being on the record with all the necessary particulars about ratification being available and it also being .Formally incorporated in the United States Code Annotated, the requirement of law is sufficiently met and even if there be non-publication of it in the Gazette of our country, the existence and the efficacy of the treaty as such, would not in any manner get impaired.
10. The solitary charge on what the Grand Jury had indicted the detenu is Count IV and it relates to knowingly and intentionally combine, conspire, confederate etc. With other accused of the offences like distribution of hashish and its importation in the United States, all in violation of Title 21, United States Code, Section 963. The contention on behalf of the petitioner is that the conspiracy is not expressly mentioned and included in the list of offences for which extradition proceedings can take place between the two countries. Article 3, Item 24, mentions the extradition offences as hereunder:- "Extradition shall be reciprocally granted for the following crimes or offences:-
24. Crimes or, offence or attempted crimes or offences in connection with the traffic in dangerous drugs."
' The expression "in connection with the traffic" is sufficiently wide to include conspiracy with regard to distribution and importing of the dangerous drugs.
11. At the time when this treaty was entered into between the two countries, the Dangerous Drugs Act of 1930 was in force. Clause (h) of section 2 of that Act defines 'dangerous drug' as to include "coca leaf, hemp and opium, and all manufactured drugs". The word 'hemp' used in this definition has been defined in clause (c) of the same section as hereunder:- "hemp" means--
(i) the leaves, small stalks and flowering or fruiting tops of the Indian hemp plant (Cannabis Sativa L.), including all forms known as bhang, siddhi, or ganja; charas, that is, the resin obtained from the Indian hemp plant, which has not been submitted to any manipulatioris other than those necessary for packing and transport; and
(iii) any mixture, with or without neutral materials, or any of the above forms of hemp or any drink prepared therefrom;"
' This definition is wide enough to include within its ambit 'Hashish.
12. Syed Iftikhar Hussain Gillani; Senior Instructor, Pakistan Narcotic Control Board (Inquiry Witness No,3) made the following statement with regard to the drug in question and he was not put any question in cross-examination with regard to it:- "I have undergone 15 different courses in the field of Narcotics Law Enforcement. ,I have also been sent to America to get training in this field and also participated in different courses which were organized by the foreign Experts at different places in Pakistan i.e, Karachi, Lahore and Islamabad.
Hashish and charas are one and the same thing and these are covered under the Dangerous Drugs Act 1930. Hashish is derived from A plant of Indian hemp and this variety is called Cannabis Sativa L. This produces Tetrahydrocannabinols, which is active ingredient in Charas/Hashish."
13. In the Act at Item No,19 in the Schedule is indicated the extradition offence as "an offence against the law relating to dangerous drugs or narcotics". The expression 'relating to' is also wide enough to include the conspiracy with regard to improt and distribution of Hashish, and therefore, under the Act it is an offence for which extradition proceedings could take place within the country.
14. It was also contended that Hashish having been classified under the United States Law as a non-narcotic controlled substance, prosecution was not possible for it under the United States Law.
'Controlled substance' has been defined in section 802 of the United States Code and by reference to the four schedules and the first schedule at item No,17 enumerates the chemical Tetrahydrocannabinol, mentioned by Syed Iftikhar Hussain Gillani.
15. Conspiracy has been made an offence under section 963 of the United States Code Annotated.
At serial No,134 of United States Code Annotated, Title 18, Cumulative Annual Pocket Part for use in 1983 mentions the following case:- "Accused who allegedly conspired with persons who were in Canada to have a murder committed and who allegedly made one or more telephone calls to those people in Canada had sufficient nexus with Canada, even though he did not enter Canada, to justify Canada's exercise of jurisdiction over charges that he conspired to kill someone outside of Canada. Melia v. U.S., C.A.
Conn 1981, 667 F.2d 300."
16. Article 23 of Qanun-e-Shahadat contains an illustration of conspiracy which is relevant to the matter under consideration. It is reproduced as hereunder:- "Reasonable ground exists for believing that A has joined in a conspiracy to wage war against Pakistan.
' The facts that B procured arms in Europe for the purpose of the conspiray, C collected money in Peshawar for a like object, D persuaded persons to join the conspiracy in Karachi, E published writings advocating the object in view at Multan, and F transmitted from Lahore to G at Kabul the money which C had collected at Peshawar and contents of a letter written by H giving an account of the conspiracy are each relevant, both to prove the existence of the conspiracy, and to prove A's complicity in it, although he may have been ignorant of all of them, and although the persons by whom they were done were strangers to him and although they may have taken place before he joined the conspiracy or after he left it."
' These two illustrations, one from the United States Law and the other from our own are sufficient to establish that in a case of conspiracy physical presence within the Court's jurisdiction is not necessary.
17. The learned counsel for the petitioner in support of the proposition that physical presence is necessary has referred to the United States Code dealing with provisions of Inter State Extradition and not at all to international extraditions. The statutory provisions of inter state extradition have no direct bearing on the international extradition which is governed by the terms of the treaty and the special law, if any, on the subject existing in the country.
18. As regards the admissibility and the relevance of the evidence led before the Enquiry Magistrate, the contention was that it was wholly inadmissible being either hearsay or in the form of affidavits which was inadmissible under Qanun-e-Shahadat. Reference has been made in particular to Article 165 of the Qanun-e-Shahadat Order, 1984 whereby the provisions of the Order have been made effective "notwithstanding anything contained in any other law for the time being in force".
The provisions of it have been applied to all judicial proceedings in or before any Court including a Court Martial, a Tribunal or other authority exercising judicial or quasi-judicial power or jurisdiction (Article 1). According to the learned counsel, Article 47 prohibits the reception of affidavits unless an opportunity of cross-examination existed with respect to it.
19. Mr. Craig Lovato (Inquiry Witness No,2) the Chief Prosecutor made a statement directly on the subject to the following effect:- "About 25 telephone conversations were recorded by myself between Mr. Muhammad Saleem Malik and the Defendant Mr. Dennis Howard Marks. These conversations revealed the dates, during which the Hashish arrived in the U.S.A., sale of that Hashish, price per pound obtained from the sale of it, meeting locations of Mr. Muhammad Saleem Malik and Mr. Denis Howard Marks in London, Hong Kong and Manila in the furtherance of this conspiracy. In addition to the tape-recorded conversations, we have photograph of the fugitive offender Malik Muhammad Saleem in London and surveillance photographs of Mr. Dennis Howard Marks in London, meeting with the. Said Muhammad Saleem Malik. We also have Hotels registration receipts of Muhammad Saleem Malik, when he was staying at Hong Kong and meeting with George Lane Marks, an accused in the present case and also brother-in-law of Mr. Dannis Howard Marks. We have witnesses to prove that Malik Muhammad Saleem has met with Mr. Dennis Howard Marks in Manila."
20. There were two affidavits put in evidence, one of Robert E. O'Neill. He has provided the statement of the entire case from 1973 though the charges relatable to the detenu are of the year 1984 or nearabout. There is also the affidavit of James P. Dunne of the Drug Enforcement Department.
21. The Special Law applicable to the Extradition proceedings provides by section 9 as hereunder:- "9. Receipt in evidence of exhibits, depositions, etc.--(1) In any proceedings against a fugitive offender under this Act, exhibits and depositions, whether or not they are received or taken in the presence of the person against whom they are used, and copies thereof, and official certificates of facts and judicial documents stating facts, may, if duly authenticated, be received as evidence.
This provision of special law will make admissible all statements recorded on oath by authorised persons containing the official certificates of facts and the special law will prevail over the general law. Hearsay evidence will certainly be not admissible nor it has been utilised, in appraising the evidence.
22. The objection to the inquiry by the Magistrate proceeds on the assumption that the inquiry could be held by the Officer or the Court empowered to try the detenu. There appears to be a misconception with regard to it. The word 'inquiry' has been defined in section 4 clause (k) of the Criminal Procedure Code so as to include "every inquiry other than a trial conducted under this Code by a Magistrate or Court". The Act also makes this distinction between 'inquiry' and 'trial' by providing as hereunder, under section 7 and subsection (2) of section 8 of the Act.
"7 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."
"8 Magisterial enquiry .-(1)...
(2) When the fugitive offender appears or is brought before him, the Magistrate shall enquire into the case in the same manner, and have the same jurisdiction and powers, as nearly as may be, as if the case were one triable by a Court of Session and shall take such evidence as may be produced in support of the requisition and on behalf of the fugitive offender, including any evidence to show that the offence of which the fugitive offender is accused or alleged to have been convicted is an offence of a political character or is not an extradition offence."
' The Magistrate conducts an inquiry and not a trial and an inquiry, according to the Criminal Procedure Code, also is different from the trial. The jurisdiction has been conferred on the Magistrate 1st Class and is co-extensive with his power to hold an inquiry into an offence whether triable, by himself or not. There was, therefore, no jurisdictional defect in the conduct of the inquiry by the designated Magistrate notwithstanding the fact that the trial could take place only before the Sessions Court.
23. A number of decisions were cited by the learned counsel for the petitioner earlier and now to establish that the Magistrate had duty to appraise the evidence with 'a view to determine whether a case likely to end in conviction has been made out or not. In this connection reference was made to the requirement of law in Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar and another (AIR 1960 S.C.1113 at page 1117), Union of India v. Prafulla Kumar Saamal and another (AIR 1979 SC 366 at page 369), V.T. Elaya Pillai and others' case reported in A.I.R.(34) 1947 Madras 191, R.v. Governor of Brixton Prison (1962) 3 All.E.R.747, Schtraks v. Government of Israel and others (1962) 3 All. E.R. 529, and a number of other cases. For the purposes of evaluation of evidence, the statement of Harlan Bowe has been referred to in particular, because he was specially deputed to ensure the enforcement of drug laws and while on duty at Karachi during the relevant period he did not come across any complaint against the detenu. The appraisal of the evidence means the evaluation of the admissible and incriminating material, mostly the positive knowledge/statements. Ignorance of facts of the case or absence of suspicion cannot be considered as evidence of innocence of a person facing a trial. The relevant portion of the satement of Mr. Lovato has been reproduced. If it remains unrebutted then it is sufficient to establish a prima facie case to justify the trial of the detenu. It cannot, therefore be said that the Magistrate has not appriased the evidence properly or has come to a conclusion that prima facie case existed when none existed.
24. It is correct that the Federal Government while seized of the proceedings under S.11 of the Act has to take an over all view of the entire proceedings and form its own opinion with regard to the expediency of extraditing the detenu but that such opinion is not to be formed necessarily after affording personal hearing to the detenu or by obtaining his participation at that stage before the Federal Government nor is the order of expressing the opinion has to be a reasoned order like the report of the Enquiry Magistrate or adjudication at the trial. There is nothing to indicate that the opinion formed was vitiated on account of any defect in the proceedings before or at the stage of the formation of opinion by the Federal Government and the preparation of the order.
25. After attending to all aspects of the case, we find that no case is made out for further examination of the questions of law involved and for that reason leave to appeal is refused.