' Zulqarnain Khan alias Zulfiqar Ali Khan petitioner, by this constitutional petition, seeks to restrain Government of Pakistan, in the Ministry of Interior, Islamabad (respondent No,1) from acting upon the report, dated 14-2-1990, of Additional Deputy Commissioner (General), Islamabad (respondent No,2) and extraditing him to the United States of America for the trial of an offence under the anti- narcotics law and prays that he may be set at liberty after declaring this action as illegal and without lawful authority.
2. The allegations in the petition are that in October, 1984, the Government of United States of America (U.SA.) made a request to respondent No,1 under section 6 of the Extradition Act, 1972 (hereinafter referred to as the said Act) for the extradition of the petitioner to that country for his trial under section 21 of the United States Code 963, for having allegedly conspired to smuggle heroin into that country. Respondent No,1 in exercise of its powers under section 7 of the said Act appointed respondent No,2 to hold an enquiry into the matter as a Magistrate and submit report as to whether or not a prima facie case had been made out against him for his extradition. The latter held the inquiry and submitted his report, dated 14-2-1990, to the former, holding therein that a prima facie case for his surrender to U.S.A. Authorities had been made out. The petitioner called into question the said report and its conclusion being against law and facts, inter alia, on the grounds that-
(a) neither Mr. M. Nand, Section Officer of the Ministry of Interior (P.W.1) and Mr. Benjamin Prainard, an American Investigator (P.W.2), who supported the plea of extradition against the petitioner, nor the petitioner himself, during the course of recording evidence by the Inquiry Magistrate, had any chance of listening to the contents of 8 audio cassettes prepared by the U.S.A. Authorities, allegedly containing the recorded actionable telephonic conversation between the petitioner and his accomplices in that country for smuggling narcotics therein;
(b) there was nothing on the record, including the contents of audio cassettes, to connect the petitioner with the commission of the alleged offence of his conspiring for smuggling heroin to U.S.A., nor any prima facie case was made out against him for extradition because he never lived in that country and nobody there could identify or was expected to identify his voice on telephone while talking to him from Pakistan;
(c) the petitioner was not given adequate opportunity to defend himself nor he was dealt with in accordance with law as guaranteed to him by the Constitution, more so when he was not afforded an opportunity to file his written statement explaining his position vis-a-vis the allegations against him;
(d) the Supreme Court of Pakistan vide order, dated 29-3-1987, had summoned him as an accused to face proceedings in a pending appeal against his acquittal in a murder case and so long as these proceedings were pending, he could not be extradited and his extradition would be subject to the result of those proceedings; and
(e) the so-called offence was allegedly committed in U.SA. In 1984 and, according to the law of that country, a person could not prosecuted after the lapse of five years and as such his prosecution there was barred by the law of limitation and for that reason too he could not be extradited.
3. The petition was contested by and on behalf of the respondents. In its written statement respondent No,1, the main contestant, took up preliminary objections against the maintainability of the writ petition to the effect that the petitioner had not availed of the remedy of filing a written statement or representation addressed to it (Federal Government) for explaining his position as contemplated by section 10(b)(ii) of the said Act; that the plea of limitation as envisaged by section 5(ii)(c) of the said Act with reference to the law of the United States of America was not tenable because the indictment had been initiated against him on 28-6-1984, within three months of the occurrence; and that his long ascension and his having been fugitive from law disentitled him from invoking constitutional jurisdiction of this Court and availing of discretionary relief.
4. In reply to various grounds urged by the petitioner in paragraph 7 of the petition, it was averred that the duly authenticated material supplied by U.S.A. Government, which was admissible under the special rules of evidence contained in the said Act, was sufficient to make out a prima facie case against him. It was alleged that eight audio cassettes containing petitioner's conversation with his partners in the crime in the United States, along with its transcript version in English duly supported by the sworn testimony of a translator, were placed before the Enquiry Magistrate and its copies were provided to the petitioner and the same were brought on the record of the enquiry proceedings in accordance with law and as such he was fully aware of the contents of the audio cassettes. It was pleased that the evidence produced before the Enquiry Magistrate was prima facie sufficient to connect the petitioner with the commission of crime for which the extradition had been sought. It was asserted that the petitioner had been provided full opportunity to defend himself and explain his position and the evidence produced by him in defence was recorded by the Magistrate. Finally, it was urged that in a murder case he was acquitted by the Court of Session and his acquittal was maintained by the High Court and on a petition for special leave to appeal he was summoned by the Supreme Court but his case was not covered by section 5(2)(f) of the said Act because he was not a person accused of any offence in Pakistan as yet.
5. The learned counsel for the parties during the course of arguments reiterated and elaborated the respective grounds urged in the pleadings and reproduced above. Petitioner's counsel laid particular stress on Article 15 of the Constitution of 1973 and submitted that the petitioner, like every other citizen, had an inalienable right to remain in and move freely throughout Pakistan and he could not be picked up arbitrarily by the Government at the behest of his enemies and sent out to U.S.A. Merely to please the authorities in that country.
6. On the contrary, the respondents' counsel contended that the petitioner was a notorious smuggler of narcotics, having vast contacts in the foreign countries, particularly in U.S.A. And his conduct even in his own country had been that of a fugitive from law as he managed to slip away from the prison and had been defying his arrest for a considerable period of time before he was apprehended in connection with the extradition proceedings and pursuant to warrants of arrest issued by the Supreme Court of Pakistan in a petition for special leave to appeal against his acquittal in a murder case. In these circumstances he was not entitled to invoke the constitutional jurisdiction of this Court and pray for discretionary relief from it, he added.
7.With regard to petitioner's claim of his fundamental right to live in Pakistan, the learned counsel maintained that his right to that effect was, subject to reasonable restrictions contained in the said Act coupled with treaty obligations of respondent No, 1 with the Government of United States in terms of International Law, and the constitutional protection did not extend to his committing serious crimes in violation of the laws of his own country as also of the foreign states, particularly those with whom Government of Pakistan had extradition treaties.
8. First of all I take up the preliminary objections raised on behalf of the respondents against the maintainability of the writ petition. Section 10(b)(ii) of the said Act provides for the transmission by the Enquiry Magistrate a written statement which the fugitive offender may desire to make to the Federal Government for its consideration. It is that stage of the proceedings when the Enquiry Magistrate submits his report to the Federal Government. The petitioner herein admittedly did not avail of this opportunity despite having been specifically asked to do so by the Government. The law does provide for a remedy and it may some times prove useful, but, in the circumstances of this case, particularly in view of various pleas raised in defence of the writ petition and the tenor of the arguments addressed by the learned counsel for the respondents, there could be remoter possibility of its proving efficacious for the petitioner. In asking the petitioner as to why he did not avail of this remedy, the Federal Government appeared to be more interested in complying with a legal requirement in order to save its action from being struck down for this reason, than providing him any relief. Therefore, the writ petition cannot be thrown out on this ground.
9. As regards the second preliminary objection, the respondents have not been able to bring on the record anything tangible to show that the petitioner had really slipped away from the jail in violation of any order of detention or he had really been defying any process aiming at his arrest and detention. In its order, dated 29-3-1987, the Supreme Court, no doubt, expressed its displeasure for not securing the attendance of the petitioner before it but it was directed against the inaction or lack of vigilance on the part of executing agency i,e, the Assistant Commissioner, Shorkot, than the petitioner. So there is no force in this preliminary objection either and the same is also overruled.
10. Now coming to the merits, various contentions pressed into service by and on behalf of the petitioner can be abridged into three main grounds. Firstly, lack of prima facie case against him and failure on the part of authorities to provide him adequate opportunity to defend himself; secondly, his fundamental right to live in his own country; and thirdly, pendency of proceedings against him before the Supreme Court arising out of a murder case in which he was summoned as an accused.
11. As regards the first ground, after going through the record of inquiry proceedings and considering arguments addressed at the Bar, I am of the view that the authenticated material brought on the record by U.SA. Authorities through Mr. M.Daud (P.W.1) and Mr. Banjamin Prainard (P.W.2) made out a prima facie case against the petitioner for being concerned with the commission of smuggling of narcotics into U.SA. Eight audio cassettes, alongwith duly deciphered authentic translation in English of its contents embodying the alleged telephonic conversation of the petitioner with his Pakistani accomplices in U.S.A., in whose possession huge quantity of smuggled heroin was stintingly found, apparently provided adequate proof against him. During the course of inquiry he was availing the services of his lawyer who provided him necessary legal assistance in defending him. If he did not record his statement on the lines of the one envisaged by section 342, Cr.P.C. Or he did not submit his written statement under section 10(b)(ii) of the said Act, it was his choice and the opposite party is not to blame.
12. So far as the second ground is concerned, no doubt, like any other citizen, the petitioner has a right to reside in Pakistan and move about freely in any part thereof but his right is subject to reasonable restriction imposed by law. His movements therefore can be restricted within the country and he can be sent out if the law so directs. Extradition Act, 1972, is a law which places reasonable restriction or embargo on his right to live in the country if he commits an offence against the law of a foreign state because he can be extradited for trial. Since there is a prima facie case against him under the anti-narcotics law of U.S.A. He loses his right to live in his own country for the time being.
13. The third and the last ground, however, does not appear to be without substance. Efforts were made by the learned counsel for the respondents to argue that the petitioner was not an accused stricto senso before the Supreme Court, as contemplated by section 5(2)(f) of the said Act, but this contention did not cut much ice. The Supreme Court, vide its order, dated 2841-1983, was pleased to grant leave to appeal against the petitioner on a petition to that effect moved by the complainant against his acquittal in a murder case and bailable warrants of his arrest were directed to be issued against him. In execution of these coercive processes his appearance before the Court stands secured and, to my mind, he is an accused for all intents and purposes, and a person accused of an offence within the meaning of section 5(2)(f) ibid. His extradition to U.S.A.
Therefore, cannot be effected until his discharge on the dismissal of the appeal of his opponent by the Supreme Court, or if he is convicted in that appeal, until he undergoes his sentence. His writ petition is accepted only to this extent. partly.