' SAAD SAOOD JAN, J.---The petitioners in these petitions are required by the Courts in the United States of America to stand trial on charges, inter alia, of importing heroin in that country. Different Grand Juries have indicted them under the various penal provisions of the United States Code. On requests made by the Embassy of the United States to the Federal Government in pursuance of the Extradition Treaty that exists between the two countries a Magistrate at Islamabad initiated proceedings against the petitioners. He issued warrants for their arrest. When they were brought before him he supplied them with copies of the documents filed by the said Embassy in support of its requests for their extradition. He recorded the statements of the petitioners and gave them the opportunity of filing written statements as well and producing evidence. The petitioners submitted written statements but did not care to produce any evidence by way of refutation of the charges being levelled against them. The learned Magistrate sent his report to the Federal Government holding that the evidence laid before him did prima facie support the requisition for the surrender of the petitioners to the United States Government. The petitioners challenged the order of the learned Magistrate in writ jurisdiction of the Lahore High Court but without any success. They now seek leave to appeal from this Court.
2. It may be stated at the very outset that the petitioners do not allege that the offences alleged against them are not extradition offences or that their surrender is being sought by the United States Government on account of political considerations. It is also not in dispute that an Extradition Treaty exists between Pakistan and the United States of America.
3. The petitioners have assailed the legality of the Extradition Act, 1972 (hereinafter referred to as the Act) in the light of the Fundamental Right as enshrined in Article 15 of the Constitution. It may be mentioned that the Act empowers the Federal Government to surrender fugitive offenders, even though they may be Pakistani nationals, who have committed certain offences, called the extradition offences, to foreign states which have an extradition treaty with Pakistan. Learned counsel appearing on their behalf have urged that under the said Article they have, as citizens of Pakistan, an inalienable right to remain in Pakistan and the Act, in so far as it allows their forcible removal from Pakistan impinges upon that right; consequently, the Act is in conflict with their Fundamental Right and is thus void by operation of Article 8(1) of the Constitution. Support for this contention is sought from the observations made by the late Muhammad Munir, quondom Chief Justice of this Court, in his Commentary on the Constitution of 1973. He stated: "....Every citizen has a right to remain in the country. This right is absolute and unqualified. A citizen cannot, therefore, be expelled or bannished from the country."
' It is also stated that the said right is in accord with the practice prevailing in the civil law countries, like France, which do not deport their citizens to other states for the purpose of standing trials on criminal charges. It is further pointed out that in the earlier Constitutions of 1956, 1962 and 1972, the right to reside in Pakistan was a qualified one. In the Constitution of 1973 a departure was made in this regard, indicating the intention of the Constitution-makers to adopt the practice prevalent in the civil law countries.
4. Article 15 of the Constitution reads as follows:--- "Every citizen shall have the right to remain in, and, subject to any reasonable restriction imposed by law in the public interest, enter and move freely throughout Pakistan and to reside and settle in any part thereof."
' At first sight the argument advanced on behalf of the petitioners seems unanswerable for the forcible deportation of a citizen will come in conflict with his Fundamental Right to remain in Pakistan; however, on closer examination of the Article in the light of the other provisions of the Constitution it must be rejected. It may be mentioned that those who fought the battle for the creation of Pakistan were inspired by the ideal that the new State should play an effective role in international affairs and occupy an honoured place among the nations of the World. Thus, in the Objectives Resolution which was passed within a few years of the creation of Pakistan, they described the ultimate goal of the people of Pakistan in the following terms: "So that the people of Pakistan will prosper and attain their rightful and honoured place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity."
' This goal of the Pakistani nation was reiterated in the various Constitutions that held sway in Pakistan at different times and is repeated in the Preamble to the present Constitution as well. It may also be mentioned that the Objectives Resolution now forms a substantive part of the Constitution. It does not stand to reason that, on, the one hand, one Constitution after another should be reiterating the commitment of the Pakistan nation to attainment of an honoured place amongst the nations of the World, yet, on the other hand it should incorporate a provision which would make Pakistan a safe haven for those of its citizens who commit serious crimes abroad and then take refuge in Pakistan to avoid punishment. In this context, it may be noticed that there are very few penal laws in force in Pakistan which have extra-territorial applicability, the notable exception being the Pakistan Penal Code. Thus, if a Pakistani citizen while outside its limits commits an offence which is not covered by a Pakistan law having extra-territorial applicability, and then manages to return to Pakistan he would enjoy complete immunity from prosecution; for, it will not be possible to try him in Pakistan and, if Article 15 is interpreted in the manner suggested by the learned counsel for the petitioners, it will also not be permissible to send him to the country where he committed the offence. Such a situation can hardly be conducive to the attainment of the goal which the people of Pakistan have set for themselves, namely, to earn an honourable place amongst the nations of the World. Such an inconsistency cannot be ascribed to the Constitution- makers. It therefore seems that Article 15 was never intended to afford protection against extradition to citizens who are accused of serious crimes in other countries. This view finds support from the fact that item No,3 of the Federal Legislative List, Part I, of the Constitution specifically empowers the Parliament to make laws on the subject of extradition including the surrender of criminals and accused persons to Governments outside Pakistan. The specific conferment of the power on the Parliament to make laws on the subject of extradition effectively refutes the contention that the Constitution-makers had adopted the practice of the civil law countries with regard to refusal to deport their own nationals for trial in foreign lands. The contention that the legislation enacted in pursuance of this item must be confined to non-citizens is unacceptable; a non-citizen can at any, time be deported from Pakistan and in any event, considering the national commitment of Pakistan on the international plane, as avowed in the Objectives Resolution, there is hardly any justification for drawing a distinction between the citizens and non-citizens in this regard. It is therefore difficult to hold that the Act is void on account of its conflict with Article 15 of the Constitution.
5. The petitioners also allege that the procedure adopted by the learned Magistrate before preparing his report was illegal as it did not conform to the relevant provisions of the Act. It is stated that the proceedings contemplated by the Act were in the nature of commitment proceedings as were conducted under the Criminal Procedure Code before its amendment by the, Law Reforms Ordinance. Thus, the learned Magistrate was required to examine witnesses, afford an opportunity to the petitioners to cross-examine them, carry out a detailed examination of the petitioners under section 342, Criminal Procedure Code, and take such evidence that the petitioners might have elected to produce in their defence. The learned Magistrate, it is alleged, failed to follow any of these requirements of law.
6. For examining these contentions it will be useful to take notice of some of the provisions of the Act. Under section 5(1) subject to certain exceptions mentioned in the Act, every fugitive offender is liable to be apprehended and surrendered to a foreign state within whose bounds he has committed an extradition offence, irrespective of the fact whether or not the Courts in Pakistan have the jurisdiction to try the offence of which he is being accused. A fugitive offender is one who is being accused of an extradition offence. Whenever the Federal Government receives a requisition for the surrender of a fugitive offender it can under section 7 of the Act ask a Magistrate to hold an inquiry into the extradition offence. As regards the nature of the inquiry required to be conducted section 8(2) of the Act states: "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."
' If after considering the material before him the Magistrate forms the opinion that a prima facie case has not been made in support of the requisition for the surrender of the fugitive offender he must discharge him and make a report to that effect to the Federal Government. But if on the other hand he comes to the conclusion that a prima facie case has been made out in support of the requisition he is required to send inter alia a report to the Federal Government and commit the fugitive offender to prison to await the orders of the Federal Government. (See section 10 of the Act). Under section 11, on receipt of the report from the Magistrate the Federal Government may, if it thinks fit, issue a warrant for the surrender of the fugitive offender to the requisitioning country.
7. The Act takes notice of the difficulty which the requisitioning State may face in producing evidence before the Magistrate. To get over this difficulty it contain a special provision in this regard. Thus, section 9(1) reads: "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: ' Sending a citizen to a foreign land is a very serious matter. Article 9 of the Extradition Treaty takes note of this fact and provides: "The extradition shall take place only if the evidence be found sufficient, according to the laws of the High Contracting Party applied to, either to justify the committal of the prisoner for trial, in case the crime or offence had been committed in the territory of such High Contracting Party or to prove that the prisoner is the identical person convicted by the Courts of the High Contracting Party who makes the requisition, and that the crime or offence of which he has been convicted is one in respect of which extradition could, at the time of such conviction, have been granted by the high Contracting Party applied to."
' This Article is an important safeguard against extradition on slender grounds, for, while forming his opinion on the question whether a prima facie case has been made out or not against the fugitive offender the Magistrate seized of the proceedings has to see if the evidence laid before him would be admissible and sufficient to justify committal under the laws of Pakistan.
8. As already indicated, together with the requisitions for the surrender of the petitioners the diplomatic representative of the United States Government sent to the Federal Government a number of documents. These included affidavits of persons who, except in the case of Nasrullah Khan Henjra, had direct dealings and association with the petitioners in regard to the smuggling of heroin in the United States. These affidavits were placed on the record of the proceedings conducted by the learned Magistrate and by operation of section 9(1), ibid, were treated as evidence by him. Copies of these affidavits were delivered to the petitioners and sufficient time was given to them before their statements under section 342, Criminal Procedure Code, were recorded. The petitioners also filed written statements in refutation of the charges being levelled against them; however, they did not lead any evidence in defence. We are unable to find any legal defect in the procedure adopted by the learned Magistrate.
9. It is also contended on behalf of the petitioners that the evidence laid before the learned Magistrate was not sufficient to justify their surrender to a foreign Government. We have gone through these affidavits. Except in the case of Nasrullah Khan Henjra which stands on a different footing and will be dealt with separately, the affidavits are of persons who had direct dealings with the petitioners in connection with the smuggling of heroin to the United States of America. These persons no doubt belonged to the Drug Enforcement Agencies or the Customs Services of the United States Government but the mere fact that they were employees of the United States Government would not compromise their credibility. These persons had no motive whatsoever to implicate the petitioners in false cases and there appears no reason why their sworn testimonies should not be accepted on face value. It need hardly be added that if the petitioners were tried in Pakistan their testimonies would be admissible in evidence and sufficient to support the petitioners' conviction. Thus, the learned Magistrate does not appear to have erred in holding that prima facie cases in support of the requisitions for surrender of the petitioners had been made out.
10. Another grievance of the petitioners was that while examining them under section 342, Criminal Procedure Code, the learned Magistrate did not specifically confront them with the aforementioned affidavits. This criticism is without any foundation. The petitioners had copies of these affidavits with them for more than a month before their statements were recorded. They had the assistance of experienced lawyers. The learned Magistrate put to them the gist of the allegations contained in the affidavits. It cannot therefore reasonably be said that they were not aware of the precise allegations against them or that they did not have any opportunity to explain away the facts appearing against them in the affidavits.
11. As already stated, the case of Nasrullah Khan Henjra is distinguishable from that of the other petitioners. It appears from the evidence placed before the learned Magistrate that there were two persons, described as C-1 and C-2, who had direct dealings with him for the purpose of smuggling heroin in the United States. The requisitioning Government did not produce the depositions or statements made by these witnesses. On the other hand, it relied upon the affidavit of one of its Assistant Attorneys who had met and examined them. Quite obviously what the Assistant Attorney deposed with regard to the statements made by C-1 and C-2 would have been rejected in Pakistan as hearsay evidence. The learned Magistrate could not have therefore based his findings with regard to the existence of a prima facie case against Nasrullah Khan Henjra on his affidavit.
The learned Deputy Attorney-General informs us that the depositions made by C-1 and C-2 are available and can be produced before the learned Magistrate. In the circumstances, we convert the petition preferred by Nasrullah Khan Henjra (C.P. No,15 of 1993) into appeal and declare the report submitted by the learned Magistrate to be without lawful authority and of no legal effect. We remand his case to the learned Magistrate for a fresh decision. He should endeavour to conclude the proceedings within a fortnight. As regards the other petitions, leave is refused.