' SHAFIUR RAHMAN, J.--The petitioner, a brother of a fugitive offender Muhammad Saleem Malik under Warrant of custody and removal 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 2-4-1989 dismissing the Constitution Petition filed by him praying for the following reliefs:- "(a) Declare that the Respondents Nos. 1 and 2 have acted without lawful authority and the warrant issued by the Respondent No,1 is of no legal effect.
' Quash the report of the Respondent No,2, marked 'H', and declare' that the proceedings before him were void and illegal.
' Quash the warrant marked 'I-1' issued by the Respondent No,-1 on 15 March, 1989.
' Prohibit the Respondent No,3 from acting upon the warrant issued by the Respondent No,1 and the said Respondents Nos.1 and 3 be further restrained from delivering the detenu to Mr.Harlan Bowe.
(e) Direct the Respondents to produce the detenu in Court and set him at liberty.
(f) Direct the respondents to permit' the petitioner, the wife of the detenu and his counsel to meet the detenu.
(g) Any other relief which. This Hon'ble Court deems just and proper in the circumstances may also be granted."
2. Earlier also the petitioner had successfully challenged the Extradition proceedings (C.A .14- K/1989) and this Court had by judgment dated 19-2-1989 held that 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, concluded the inquiry and submitted his report dated 9-3-1989 to the Federal Government. The Federal Government, Ministry of Interior by an order dated 15-3-1989 addressed to the Director-General, Federal Investigation Agency, authorised his custody and removal in words that follow:- "WARRANT FOR THE CUSTODY AND REMOVAL OF THE FUGITIVE OFFENDER AND HIS SURRENDER (Section 11 of the Extradition Act, 1972)
' 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 USA under section 952, Article 21 of the U.S. Code, for allegedly having involved in import of Hashish and Marijuana in USA, and who is at present committed to Central Jail, Rawalpindi; ' And whereas the Government of Pakistan is of the opinion, after a proper Magistrate Enquiry, that the said Malik Muhammad Saleem ought to be surrendered; ' Now, 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 USA, 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."
3. The petitioner challenged once again the proceedings before the Inquiry Magistrate culminating in the warrant that issued. A large number of grounds were taken up in the Constitution Petition for challenging the inquiry and the warrant but arguments were addressed on the following grounds:- - "(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 a prima facie case existed for surrender of the fugitive offender;
(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."
4. The High Court by an elaborate judgment rejected the objections to the custody and removal concluding as hereunder:- "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."
5. Mr. Makhdoom Ali Khan, Advocate, the learned counsel for the petitioner ably presented before us the legal objections to the proceedings supported by provisions of law and judicial precedents, and these are summarised hereunder:-
(i) The only charge on which the extradition of the detenu is sought is of conspiracy (charge No,IV) and conspiracy is not included in the Extradition Treaty as an extraditable offence. Item No,24 Article 3 of the Extradition Treaty mentions "Crimes or offences or attempted crimes or offences in connection with the traffic in dangerous drugs". The attempt and the offence are included but not the conspiracy.
(ii) Extradition can take place under Article I of the Treaty only when the accusation relates to the commission of the offence "within the jurisdiction' of the one party" and the accused is found "within the territory of the other party". On the allegations made and the evidence brought on record the detenu is not at all accused of commission of any offence within the jurisdiction of U.S.A .
Courts.
(iii) Extradition can take place only when participation in the alleged enumerated crimes is "punishable by the laws of both the high contracting parties". Hashish is not a dangerous drug under the Dangerous Drugs Act, 1930. It is not a norcotic under United States Law. To bring out the difference the learned counsel for the petitioner has also referred to the Prohibition (Enforcement of Hadd) Order, 1979.
(iv) There was absolutely no admissible evidence before the Inquiry Magistrate to provide a basis for concluding that a prima facie case as is required by section 10(b) of the Act was made out.
' In this connection the learned counsel has referred to the various provisions of Qanoon-e- Shahadat, the requirement of section 9(1) as distinguished from that of section 9(2) of the Act.
(v) the Inquiry Magistrate has failed to appraise or evaluate the evidence led at the Inquiry. It was his duty to do so. He has referred to 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, Re: Mourat Mehmet (1962) 1 All E.R. 463, Armah v. Government of Ghana and another (1966) 3 All E.R.177, R. v. Brixton Prison Governor (1969) 1 All E.R.
316, Ramgopal Ganpatrai Ruia and another v. State of Bombay PLD 1958 SC (Ind.) 293, Vadilal Panchal v. Dattatrays Dulaji Ghadigaonkar and another (AIR 1960 SC 1113) and Union of India v.
Prafulla Kumar Samal and another (AIR 1979 SC 366), etc.
(vi) The formation of the opinion by the Federal Government is not objective, does not take into consideration the written statement submitted by the detenu. This is amply demonstrated by the fact that the detenu was afforded no opportunity of hearing at the time of or before formation of opinion. Marijuana has been added to Hashish and the Extradition has been allowed for a different offence (Section 952 of United States Code, Title 21) than the one (Section 963 of US Code, Title 21) for which he was charged' or for which his extradition was sought.
6. We have heard the learned counsel for the petitioner at great length on all the grounds taken up by him but the one on which this petition must forthwith succeed is the last one, viz. That the warrant of custody and removal already reproduced does not correspond either to the requisition, or to the charge or to the inquiry report of the Magistrate. This ground 'we propose to deal at some length.
7. United States Code Title 21 Chapter 13 deals with Drug Abuse Prevention and Control. Section 841 thereof prohibits certain acts. Section 952 describes/defines the importation of controlled substances. Section 953 describes/defines the exportation of controlled substances. Section 960 prescribes the punishment for these offences. Section 963 makes the attempt and the conspiracy also an offence and prescribes punishment therefor. The superseding of the Federal Grand Jury implicates and indicts the detenu on Count No,IV alone which specifically mentions the crime or offence as Section 963 Title 21 United States Code. The requisition received from the Embassy of the United States of America contains the requisite that "arrangement be made for the expeditious extradition of Malick Mohammad Saleem, who has been charged by the United States District Court, Southern District of Florida, with conspiracy to distribute and import hashish in violation of Section 21 U.S.C. 963 of the Code of the United States. Warrants were issued for his arrest by order of the above Court on August 16, 1988".
8. The Warrant of Arrest of the detenu issued by the District Court, Southern District of Florida, Miami mentions his crime as "conspiracy to distribute and import hashish" and mentions violation of United States Code Title 21 section 963. The inquiry before the Magistrate was also directed towards establishing prima facie this charge. The Magistrate in his report referred to this charge being established prima facie.
9. Raja Muhammad Anwar, Advocate, the learned counsel representing the respondents, has read out to us from the department's file the order permitting the extradition in terms reported by the inquiry Magistrate. However, the Deputy Secretary who prepared the Warrant mentions the offence as "section 952 Article 21 of the U.S. Code". Article 7 of the Extradition Treaty contains a prohibition as hereunder:- "A person surrendered can in no case be kept in custody or be brought to trial in the territories of the High Contracting Party to whom the surrender has been made for any other crime or offence, or on account of any other matters, than those for which the exradition shall have taken place, until he has been restored, or has had an opportunity of returning, to the territories of the High Contracting Party by whom he has been surrendered.
' This stipulation does not apply to crimes or offences committed after the extradition."
10. It is thus clear that the Warrant of custody and removal of the detenu prepared neither conforms to the charge, nor to the requisition. It is not in accord with the inquiry report nor with the order passed by the Federal Government. The Warrant is potentially destructive of the entire proceedings in this country and the United States. It is time for the Federal Government to look into the matter and ascertain what motivated the two officers, to so act and order as A to frustrate and thwart the entire extradition proceedings.
11. We convert this petition into an appeal, allow it with costs and declare the warrant of custody and removal as of without lawful authority and of no legal effect. The Enquiry Report submitted by the Magistrate shall be deemed to be pending and awaiting the orders of the Federal Government under section 11 of the Act.