RAJA ABDUL AZIZ BHATTI, J. This judgment will dispose of the following Writ Petitions as common questions of law are involved therein. So far as the facts and evidence of these affectionered there is variation. These are therefore, being recorded and dealt with separately with reference to each Writ Petition in the judgment:-
1. Writ Petition No,182/95.
Haji Mirza muhammad Iqbal Baig.
Versus The Government of Pakistan and others. In the matter of detune HAJI MIRZA MUHAMMAD IQBAL BAIG.
2. Writ Petition No. 183/95.
Muhammad Anwar Khattak.
Versus The Govemment of Pakistan and others. In the matter of detune MUHAMMAD ANWAR KHATTAK
3. Writ Petition No. 179/95.
Tariq Butt.
Versus , .
Director F.I.A, and others.
In the matter of detune TARIQ BUTT.
4. Writ Petition No.185/95. ' f Ghulam Muhammad Versus The Federation of Pakistan and others. In the matter of detunu GHULAM MUHAMMAD.
5. Writ Petition No. 191/95.
Ali Raza Khan.
Versus The Federation of Pakistan and others. In the matter of detune UMAR KHANAFREEDI
6. Writ Petition No.188/95.
Muhammad Ali Durrani Versus The Federation of Pakistan. In the matter of detune IQBAL PERVEN DURRANI
7. Writ Petition No.983/94.
Nasarullah Khan Henjra. . Versus The Federation of Pakistan. In the matter of NASARULLAH KHAN NENJRA
2. The learned counsel for the petitioners raised following law points for adjudication:
(i) CONCEPT OF EXTRADITION- Extradition Act 1972 is void on account of its conflict with Article 15 of the Constitution of Islamic Republic of Pakistan.
Legality of the Extradition Act, 1972 (hereinafter called as the Act) has been assailed under the law of fundamental rights guaranteed under Article 15 of the Constitution. According to the counsel for the petitioners. The Act empowers the Federal Government to surrender a fugitive offender, who has committed Extradition offence to foreign State, which has Extradition Treaty with Pakistan, According to the counsel for the petitioners every citizen has right to remain in the country and this right is absolute and unqualified, which means that a citizen cannot be expelled from the country.
Hence forcible removal from Pakistan fringes fundamental rights. The protection afforded by the Constitution cannot be rendered ineffective by the provisions of the Act.
At the outset the arguments are appealing but the Article 15 was never intended to afford protection against extradition to the citizen, who is accused of serious crime allegedly committed by him in any other country. To meet such an eventuality Item 3 of the Federal Legislative List Part I of the Constitution empowers Parliament to make law with regard to surrender of criminals and accused person to the Government outside Pakistan. This conferment of the powers on the Parliament to make law on the subject of extradition refute the contention raised by the petitioner's counsel. Certain conditions, however, have been imposed for the surrender of fugitive offender, even though he may be Pakistani national. Extradition to and from the country is regulated by the Treaties and Statues between the foreign states. In simple words it is an act of surrender of a person from Pakistan to another state whether Pakistan National or alien. The law is based on the Treaties entered into between the independent States. Such law and Treaties have sizeable commitments by the Govemment in the matters of international relations. However, in deciding so Municipal Law is the determining factor. I am conscious of the fact that to uphold the supremacy of law the Court's function do entail to look jealously to protect the rights of individuals by insisting upon strict compliance of restrictions and conditions disposed through law of Extradition. It is bounded duty of the demanding state to send requisition for surrender of fugitive offender, but it must be supported by a prima facie proof of the offence. Though ultimately the matter of surrender is to be decided by the State Functionaries and not be the Courts. The important condition is that in pursuance of the international commitment by having Treaties, before the Federal Govemment decides to surrender, an inquiry is to be held in the matter by a Magistrate. The other condition imposed is that the offence not being political offence nor the requisition being so made is with a view to secure custody for trial for offences other than scheduled offences. The Extradition Act and the Treaties in the cases like the present are the outcome of the necessity to curb the commission of crimes in the interest of humanity. The commission of such offences is not only to be deprecated, but its elimination is so compelling that failure on the part of any state cannot be looked with any sense of pride. In nutshell I have no hesitation to say that the Extradition Law especially the Extradition Act 1972 as not in conflict with Article 15 of the Constitution. Hence it is not void and does not help the present petitioners in any manner.
(ii) SCOPE OF INQU IRY held under section 7,8 & 9 of the Extradition Act, 1972.
3. According to the learned counsel for the petitioners the scope of inquiry under the aforesaid provisions of the Act is very vide. They are of the view that a Magistrate on the receipt of order under section 1 shall hold inquiry into the case in the same manner and have the same jurisdiction and powers, as nearly as may be, as if the case is one triable by the court of Sessions. The Magistrate is required to make the recommendation for extradition, if he comes to the conclusion that the material/evidence on the record is of such a nature that most likely it will end into conviction of the detune/accused. For making analysis of this scope, sections 7,8 & 9 of the Extradition Act are reproduced below:- "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.
P 8. Magisterial enquiry. - (1) On receipt of an order under section 7, the Magistrate shall issue a summon or a warrant for the arrest of the fugitive offender according as the cause appears to be one in which according to the law of Pakistan a summon or warrant would ordinarily issue.
(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 0n 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.
9. Receipt in evidence of exhibits deposition etc.--(l) In any proceedings against a fugitive offender under this Act,, exhibits and depositions, whether or, not they are received or taken in die presence of the person against when they are used, and copies thereof, and official certificate of facts and judicial documents stating facts, may, if duly authenticated, be received as evidence.
(2) Warrants, depositions or statements on oath which purport to have been issued, received or taken by any Court of justice outside Pakistan or copies thereof, and certificates of, or judicial documents stating the fact of, conviction before any such Court, shall be deemed dully authenticated--
(a) if the warrant purports to be signed by a Judge, Magistrate, or officer of the State where the same was issued or acting in or for such State;
(b) if the depositions or statements or copies thereof purport to be certified, under the hand of a Judge, Magistrate or officer of the State where the same were taken or acting in or for such State, to be the original deposition or statements or to be true copies thereof, as the case may require;
(c) if the certificate of, or judicial document stating the fact of, a conviction purports to be certified by a Judge, Magistrate or officer of the State where the conviction took place or acting in or fox such State; and
(d) if the warrant, depositions, statements copies, certificates and judicial documents, as the case may be, are authenticated by the oath of some witness or by the official seal of a minister of the State where the Same were respectively issued, taken or given.
(3) For the purposes of the section, "warrants" includes any judicial document authorising the Certain relaxations have been embodied in section 9 with regard to the receipt of evidence and depositions etc. Section 9 entails concessional provisions making considerable departure from the normal law of evidence in proving and bringing on record the depositions and documentary evidence. They have contended that there is a valuable right of citizen that he must not be sent out to foreign jurisdiction. This right cannot be snatched unless the law is strictly observed and complied with. The Courts must, therefore, give strict interpretation and judiciously regard the rights of the citizen in the matter. However, they concede that section 9 of the Extradition Act do allow the evidence of exhibits, depositions and statements on oath duly authenticated thereby making exceptions to the general procedure laid down in Criminal Procedure Code the Evidence Act as well as by Qanun-e-Shahadat. They submit that the scope of enquiry is that an Enquiry Magistrate shall appraise the evidence in a manner to find out as to whether there is evidence of the nature that if the trial is held it may likely end in conviction. In the present cases, the petitioners maintain that the learned Magistrate has not acted within the scope of enquiry as embodied in sections 7,8,9, and 10 of the Extradition Act, 1972, which resulted in miscarriage of justice.
5. I have considered the contentions raised by the learned counsel in this regard. The function of the Enquiry Magistrate in the matter is very limited. The job of the learned Magistrate is to ascertain, whether on the material placed before him, a prima facie case is made out or not, but the Magistrate is not expected to return a verdict of guilt. From the provisions quoted above, it is evident that the scope of enquiry is to assist the Federal Government to form an opinion as to whether the extradition of the offenders should take place or not and requisite conditions for extradition have been satisfied. In spite of all that, here it may be mentioned that the Govemment is under no obligation to surrender of fugitive even if all these requisite conditions are complied with and satisfied. The ambit of the enquiry is recommendatory and to facilitate the Federal Government to arrive at some conclusion though the final verdict of surrendering is a prerogative of the Federal Government. It is an expression of opinion by the Magistrate keeping in view the material available on the record against the fugitive from the demanding State. In brief, the job to be done by the Enquiry Magistrate is to examine, whether the charge and in support thereof the material before him is sufficient to connect the fugitive offender with the offences for which he is required by the demanding State of face trial in a court of competent jurisdiction. If the finding is negative, he can discharge the accused.
(iii) SCOPE OF WRIT PETITION IN THE MATTER.
6. According to the learned counsel for the petitioners, the High Court is vested with the powers to look into the actions taken by the State, and into the nature of allegation sent by the Demanding State. In case, the High Court is satisfied that the conclusions drawn on facts were such as no reasonable person while properly applying his mind could be reached, then in that case it is the duty of the Court to interfere. The High Court can also look into the affairs regulating the enquiry i.e. Mala fides, ulterior motives, want of good faith, political victimization and other jurisdictional defeats going to the root of the matter. In that eventuality the Corut shall not hesitate for a moment to step in and protect the valuable and inevitable right of a citizen not to be extradited to a foreign plane for trial of the alleged offences.
7. I have considered this part of the arguments cautiously. I have no hesitation to agree and even there is no controversy from the respondents that in writ jurisdiction when there is a mala fide, ulterior motives, want of good faith, political victimization etc. Then in that case this Court must interfere but mere fact that another view of evidence on record is possible, will not make a ground for interference while exercising writ jurisdiction. Reappraisal of evidence is not within the ambit of the High Court under Article 199 of the Constitution. If so is the prayer, the High Court is justified in refusing to interfere.
8. This Court ordinarily is not required in writ jurisdiction to review the evidence with a view to substitute its own opinion for that of the Magistrate on the question of existence of a prima facie case or otherwise. The prayer of the learned counsel during arguments for reappraisal of evidence minutely is such an exercise which is definitely outside the scope of writ jurisdictional ambit.
Tentative assessm ent to know as to whether fugitive offender is connected with the scheduled offence or not will however be undertaken while dealing with the factual aspect of each case. I do admit that a fugitive can be extradited if there exists a prima facie case against him. I am also bound to see and satisfy myself with regard to the legality of bis detention. Holding of enquiry and dealing it in writ jurisdiction primarily is meant to proceed forward with the idea that main beneficiary of the proceedings should be detenue if possible. It is a bounded duty of this Court to satisfy itself with regard to-the jurisdictional aspect, lawfulness of the manner of detention, satisfying strictly the provisions of law applicable in the matter for extradition. The scope of enquiry, the scope of writ jurisdiction and the existance of prima facie case against the detune are the three important factors which co-exist in a manner that enquiry proceedings when looked into by way of writ jurisdiction, it is to be kept in mind as to whether there is a prima facie case against the detune or not. What I gather from the arguments of the learned counsel for the parties, they have no dispute in this regard.
(iv) PRIMA FACIE CASE.
9. The petitioners contend that there is no prima facie case against them and their extradition to United States of America is not called for. According to them, the material brought on record is of such a nature that it will be highly against the interest of justice to curtail their liberty, to deny their basis fundamental rights guaranteed by the Constitution i.e. Not to be extradited out of Pakistan.
10. To find out the existence or otherwise of a prima facie case, it is appropriate to have regard to the object underlying the law of extradition, its kind and nature. The enquiry conducted by the Magistrate to find out the existence or otherwise of a prima facie case admittedly cannot be equated with a regular trial by a Court of Law. Under section 10 of the Extradition Act, 1972, after the enquiry if the Magistrate is of the opinion 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. In case, in his opinion a prima facie case had been made out, he is required to recommend extradition to the Federal Govemment. As far as the word prima facie is concerned it has not been defined anywhere by the provisions , of the State.
However, this aspect has been dealt with in number of judgments. In Muhammad Asim Malik vs. Anwar Jalil and 4 others (PLD 1989 Lahore 279), the expression of prima facie case in support of the requisition has been discussed. According to the Honourable Judges "only prerequisite for the enquiry is that a Magistrate is to ascertain whether on the material placed before him in accordance with the requirement of the Act, a prima facie case as understood in legal parlance was made out. Magistrate was not required to return a verdict of guilt upon the offender." "The words of prima facie case is not a term of art and, in law, signifies adequate to establish a fact or raise a presumption of fact unless rebutted. Prima facie case, means a substantial question raised bona fide which at first sight needs investigation and decision. Therefore, the only prerequisite for the enquiry Magistrate is to ascertain whether on the material placed before him in accordance with the requirement of the Extradition Act, a prima facie case as understood in legal parlance was made out. Obviously, the Magistrate was not expected to return a verdict of guilt upon the offender.
What he was obligated to find was, whether a Triable case was made out In the event of surrender, full-fledged trail shall take place before a competent Court of Treaty State. Enquiry is merely to assist the Federal Govemment to form an opinion as to whether the extradition of the offender should take place because even where the requisite conditions for extradition are satisfied, the Federal Govemment is under no obligation to surrender the offender to treaty State. It still has a full discretion in the matter as is evident from section 13 of the Extradition Act." "The word "prima facie" under the section 10 of the Extradition Act, 1972 has been defined to be a case at first sight. The words "prima facie case" and "Prima facie evidence" are not terms of art. They have definite meanings. The Magistrate is required to inquire upto the requisition and formulate his opinion whether there exists material against the fugitive warranting his trial in the Demanding State."
11. According to Muhammad Azim Malik vs. Govemment of Pakistan and others (PLD 1989 SC 519), "The Magistrate conducts an enquiry and not a trial and an enquiry, according to the Criminal Procedure Code, also is different from the trial. The jurisdiction has been conferred on the Magistrate 1st Class and is coextensive with his power to hold an enquiry into the offence whether triable by himself or not." "Appraisal of evidence means the evaluation of the admissible and incriminating material, mostly the positive knowledge/statement. Ignorance of facts of the case or absence of suspicion cannot be' considered as evidence of innocence of a person facing a trial." In Nasarullh Khan Henjra vs. Govemment of Pakistan (PSC 1994 SC 156), it is mentioned that while forming opinion whether a prima facie case has been made out or not against the fugitive offender, the Magistrate sized of the proceedings is to see if the evidence laid before him would be admissible and sufficient to committal under the law of Pakistan. It has further been ordained that "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. In support of that the Honourable Supreme Court has quoted Article 9 of the Extradition Treaty which is quite relevant to understand what is meant by "prima facie Case", which is reproduced below:- "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 iq 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."
( 12. From the above discussion, the following conclusions can be drawn regarding this aspect of the case:-
(a) That the Enquiry Magistrate has a discretion keeping in view the principles enunciated by the Superior Courts to come to the conclusion as to whether prima facie case exist against the fugitive.
Offender or not. For that matter, direct evidence, admissible evidence, evidence of the nature mentioned in section 9 of the Extradition Act are important factors. Above all, there is no doubt to say that nature of the evidence needed for extradition purposes is that the offender is connect d with the crime. He may not be convicted which is the job of the. Trial court and not of the Magistrate. The standard of appreciating and appraising the evidence for returning the verdict of conviction or acquittal is not the requirement of section 10 of the Extradition Act. But at the same time he is to be at guard that the detune is not be to surrendered if the case is of no evidence or the material on record is of the nature which on its first sight compels to say that there is no sufficient evidence to substantiate the charge. In the latter case, the law does not justify the fugitive offender to be extradited.
(b) that the petitioners are not entitled to discretionary relief from this Court on the basis of imaginary technical defects in the enquiry proceedings;
(c) that the Enquiry Magistrate having jurisdiction to deal with the matter and has the authority to form his opinion independently. It is not within the scope of writ jurisdiction that the opinion be viewed to come to another opinion on the same material favouring or disfavouring the detenue. If reasonable approach is made for the assessment of evidence, it must not be beyond tentative in its nature. Thus in the light of aforesaid observations, the evidence and the material placed on the record in each case will be discussed in the judgment while dealing with this aspect of the cases in hand.
(v) SEPARATION OF JUDICIARY.
13. The learned counsel for the petitioners contends that in these cases the learned Enquiry Magistrate has no jurisdiction to hold enquiry, as he is not a judicial Magistrate. He relied upon the case reported as Muhammad Azim Malik Vs. AC and others (PLD 1989 SC 266). Wherein it has been held that the proceeding can be initiated by a Judicial Magistrate and not by an Executive Magistrate. He has further maintained that PLD 1989 SC 266 leaves no scope for an Executive Magistrate to hold an enquiry in the matter because the Executive Magistrate cannot t>e designated by the Federal Government to hold an enquiry in the extradition matter. The learned counsel vehemently stated that only a judicial Magistrate has the competency to hold the enquiry to make recommendation far or against the detenues.
14. Quite surprisingly note 'C of the judgment at page 267 frustrates the very argument of the learned counsel which is reproduced below:- "Ss. 6 & 7-Extradition proceedings-Federal Government on receipt of requisition has unfettered right to select any First Class Magistrate for the I impose of holding an enquiry-Such Magistrate on receipt of order of selection, becomes a persona designate-Powers so conferred on the m urinated Magistrate First Class are non-delegatable."
15. In the present cases, the ADC(G) having the powers of Magistrate 1st Class held enquiry and gave the findings. Here, it may be mentioned that in section 7, the word trial has not been mentioned. According to section 7, the Federal Govemment has unfettered powers to designate any Magistrate of 1st Class v/ho would have had jurisdiction to enquire into the Extraditon offences to which the requisition relates if it had been committed within the local limits of his jurisdiction.
Probably, the learned counsel is confused taking the word "Enquiry" at part with that of "trial".
16. Section 4(1) of Criminal Procedure Code defines the word Inquiry which includes any enquiry conducted under Cr.P.C, by a Magistrate or Court. Hence there could be no defect in the conduct of enquiry under sections 7 & 8 of the Exatradition Act by a designated Magistrate notwithstanding the fact the trial could take place only before the Sessions Court. In addition to that it is not the requirement of section 7 that Magistrate designated should be a Magistrate having jurisdiction to try the case. This section does not deal with the question of trial vis-a-vis designating the Magistrate First Class having jurisdiction to hold trial of the fugitive. Thus, it will suffice to say that the argument advanced by the learned counsel for the petitioners in this regard are devoid of any strength.
(vi) HEARSAY EVIDENCE.- Nature of evidence recorded before Grand Jury of USA.
17. The learned counsel for the petitioners contend that most of the evidence being relied upon by the persecution in these cases is of hearsay nature and thus cannot be relied upon to find out as to whether prima facie case exist against the detenues or not.
18. Admittedly, Grand Jury of USA deals with the matter at the stage of investigation/inquiry as in Pakistan the investigating agency collects material/evidence against the alleged offender. Almost same is the job of the Grand Jur. Thus, leading question put dining proceedings before the Grand Jury and production of hearsay evidence will not be a bar for the trial court to look into the nature of evidence regarding its admissibility or otherwise as per provision of the law of evidence. In the present cases, the Demanding State cannot be given any allowance to rely upon the evidence which is of inadmissible nature. This aspect has, too, been examined during arguments with the assistance of the learned counsel for the parties. In the judgment, at proper place, views are expressed about the evidence being relied upon by the other side.
(vii) ACCOMPLICE/APPROVER-value of evidence.
19. The learned counsel for the petitioners have, with reference to the WP. No. 983/94 in the matter of Nasrullah Khan Hinjra raised objection that the testimonies of Muhammad Shafique and Tariq Javed, whose affidavits have been placed on the record, could not be relied upon for number of reasons. They state that both the deponents were convicted by the foreign cour for commission of these offences, thus being convicted persons value of their statements cannot be taken to be of that standard on the basis of which existence or prima facie case can be found. They have further stated that both these witnesses have deposed for personal ends and have motive to implicate the present detunes/accused. Khawaja Muhammad Shafique was given commitment to be given concession in quanoon of sentence by the American Government. This was sufficient allurement for this person to depose falsely. So far as Tariq Javed is concerned, he made statement of the nature, which could not be relied upon because it is full of contradictions and material omissions.
Lastly they contended that the evidence of the accomplice/approver cannot be relied upon unless it is corroborated by an evidence coming fr6m independent source, which is lacking in this case. In their view the. Evidence available is insufficient to return the finding in favour of extradition.
20. I have given conscious consideration ,to this aspect of the case. Admittedly both the depends were tried and convicted by the foreign courts for the offences, which is subject matter of the prosecution case in the case in hand. There is no doubt both the deponents are accomplice and for that a presumptive stamp from the foreign court about their participation in the crime is there in the shape of their conviction, regarding which finding has now been given by the Enquiry Magistrate with regard to roles , played by the present detunes/petitioners. So far as the necessity of corroboration required under illustration (b) of the Article 129 of Qanun-e-Shahadat 1984 it is to be read with Article 16 of Qanun-e-Shahadat. Undoubtedly the conviction cannot be awarded on the basis of evidence of the accomplice, but the courts as a rule of prudence, seek corroboration in material particulars. The rules laid by the Superior Courts with regard to the evidence of accomplice/approver is that the court must exercise careful discretion and consideration of the surrounding circumstances to arrive at a conclusion where the evidence given by the accomplice/approver is corroborated on essential and material particulars by other evidence. In dealing with this aspect as to what amount of corroboration is required for proving the testimony given by the accomplice/approver and the court is required to exercise careful discretion, the important factor is to see as to whether the facts deposed by an accomplice are born out those circumstances or where the circumstances are of such a nature and the evidence purporting to be given by the alleged accomplice are supported in essential and material particulars by the evidence. The present case is of unique nature. Particularly for the reason that both these persons stood convicted in this very case by the foreign Court, thus the deponents faced trial and were awarded punishment after appraisement of the evidence produced by the persecution at the stage where the onus was on the prosecution to prove the case beyond reasonable doubt. While at this-stage in the present case the Enquiry Magistrate is required to look forward for prima facie case whereas for trial proof must be beyond reasonable doubt. Thus the persons facing trial having finding though against them of the participation in this: very crime to compel to say that their statements cannot be brushed aside as is being prayed for by the petitioners/detenue. The finding of the foreign court regarding participation of these deponents is strong corroborative piece of evidence at least in the present Enquiry proceeding conducted by the learned Magistrate.
Thus the accomplice statement at least to the extent of the case in hand, I have no reason to say that the learned 'Enquiry Magistrate deviated from the accepted principles of law enunciated by the Superior Court of Pakistan.
(viii) Defect in warrant of custody and its implication.
21. The learned counsel for the petitioners made much stress on the aspect that defect in warrant of custody demands the setting aside of the impugned order of the Enquiry Magistrate. According to them if there are substantial defects in the warrant of custody it will not meet the requirement of law that the fugitive offender required to be extradited must be made aware of the allegations of which he is to be confronted during trial. I have examined the indictments and the warrants of custody thoroughly. The conclusion is that if the grounds mentioned in the indictment, charge- sheet and the warrant of custody are taken into consideration in juxtaposition will provide the requisite information to the detunu about the nature of allegations with whom he is to be confronted during trail. There is nothing to keep secret from him with regard to the nature of allegation, nature of offence and the type of evidence to be produced against him before the trial Court. Proper and requisite analysis is also being further made while dealing with each case.
(ix) EFFECTS OF pending criminal cases and undergoing sentences awarded to the detunu by the Courts in Pakistan.
22. Section 5(2)(f) of Extraditions Act is the relevant provision in this regard, which reads as follow:- "5(2) (f) If he has been accused of some offence in Pakistan, not being the offence for which has surrender is sought, or is undergoing sentence under any conviction in Pakistan, until after he had been discharged, whether by acquittal or on the expiration of his sentence or otherwise."
There is no doubt the applicability of the proposition put forward by the learned counsel for the petitioners. On the record there is no proper documentary evidence to know about the pending cases or the case in which any of the detune has been convicted and is presently undergoing the sentence. However, objections relates to the occasion when the detune is to be handed over to the Demanding State's representative after final decision by the Government. This is a matter to be dealt with by the Federal Government at that time and not by the Court at this stage. The pending case, if any, is essentially to be withdrawn, and orders of remission of the sentence are to be passed by the Government in accordance with law, in case the offender is finally to be handed over to the Demanding State, but this action is not prerequisite for holding enquiry by the Magistrate.
FACTS RELATIONG TO WP Nos. 182/95, 183/95 and 179/95.
23. These petitions filed by Mirza Iqbal Baig, Muhammad Anwar Khan Khattak and Tariq Butt pertain to one set to accused/detunes. The impugned order under challenge passed by the Enquiry Officer, Islamabad, is also the same in these three petitions. These are, therefore, dealt with jointly for the purpose of appraising the facts and the evidence produced by the parties.
24. The brief facts of the case are that a requisition for extradition from the Govemment of United States of America through diplomatic representative in Pakistan was received by the Govemment of Pakistan for extradition of the aforesaid three detunes/accused including one Haji Ayub Khan Afridi (absconder) on the charges that these accused were indulging in drug trafficking, conspiracy to import Heroin into the United States of America, possession of. Hashish with intent to distribute it, conspiracy to transport and attempting to transport funds outside the United States of America to promote Hashish distribution, conspiracy to import Heroin into the United States of America, possession of Heroin with intent to distribute it intending to import the same into the United States and attempting to import Heroin. The requisition contained the above said charges which are punishable under US Laws.
25. On 30.4.1992, federal grand jury in Brooklyn, New York, recommended under the laws of USA to formally accused these persons. Thus a superseding indictment of April 1992 charges the aforesaid persons of afore referred narcotics violations. April 1992 superseding indictment, in fact, superseded indictment returned on June 20, 1991 which charged Tariq Butt with four counts; three of which are the same as were mentioned in April 1992 superseding indictment as counts 7, 8 and
9. This indictment also superseded another return on 5.9.1991 in which there were five counts, four of which were the same as counts two through No.6 in April 1992 superseding indictment. Exhibits 2 and 3 are certified copies of each of the previous indictment. Exhibits 4 & 7 are certified copies of warrants of arrest for Mirza Iqbal baig, Anwar Khattak, Tariq Butt including Ayub Afridi, On receipt of extradition papers, the Enquiry Magistrate was designated to hold enquiry into the matter under the provisions of Extradition Act, 1971. During enquiry proceeding, the following charges were levelled and in proof thereof the respondents produced evidence.
26. According to the prosecution in March 1983 and thereafter Mirza Iqbal Baig engaged in continuing criminal enterprise by violation set forth in counts 2, 3 and 7 to 9 of the indictment in concert with five or more persons. Amongst them Mirza Iqbal Baig occupied the position of organizer/supervisor of Manager and from the continuing series of violation he derived substantial income and resources. Count two pertains to march 1983 to June 1988 during which period Mirza Iqbal Baig and Anwar Khattak and Ayub Afridi conspired to import Hashish into the United States from outside. Count three mentioned the period from July 86 to November 1986. During this period, Iqbal Baig, Anwar Khattak and Ayub Afridi knowingly and intentionally possessed Hashish with intent to distribute. Count four deals with attempting to transport funds front the United States to a place outside with a view to promote their unlawful activities of distributing Hashish. However, without mentioning the details regarding the other counts, it is suffice to say that nature of the allegations are also similar connecting with the affairs of trafficking in Heroin by Tariq Butt, Iqbal Baig and Anwar Khattak etc. In support of these allegations, the prosecution produced affidavit of Newton. In 1983, Allah Banda introduced Newton to Iqbal Baig dealing in Hashish. In that meeting, the theme of the conversation was about Hashish business and its modes of transportation. In 1983, certain persons as mentioned in the affidavit came to Pakistan to by six tons Hashish and paid 250,000 dollars for the Hashish.
Under the instructions of Iqbal Baig, he deposited the money in an account opened in the United Bank in Switzerland, an account of money changer. According to Newton, in April 1983 he contacted Iqbal to know as to whether he had received Hashihs from his sourse of supply in NWFP. He admitted and stated that it was being stored near Karachi in a desert. They went to that place and saw Hashish. Thus, it was agreed upon to make payment of several million dollars after the Hashish is loaded and sold in US. Newton has also told that the Hashish could not be removed because of rain and the matter was halted when the police arrived and seized it. The operator was arrested.
On this failure, he returned to United States but later on they had a meeting in Hong Kong. In that meeting, arrangements for another shipment of 5 to 6 tons Hashish were discussed and consideration money of 250,000 dollars was agreed for the new shipment. According to him in May 1983, the load was ready in Karachi, arranged by Iqbal. Baig. On 7.5.1993, Newton along Venezia and Kukielshki went to Karachi. Iqbal met him in the house of Allah Banda and told him that the shipment of 5 to 6 tons was ready as Ordered and asked him to take 4/5 tons of additional pertaining to his partner Anwar and Haji. He stated that approximately nine tons was eventually delivered to him on 4.7.1983 in Rhodo Island. In September 1983, he distributed it. Iqbal's share of 4/5 millions dollars was paid to him. Then in 1984, he came to Pakistan for the second load and met Anwar and Haji. According to him Haji Iqbal Baig was the leader who provided Hashish from NWFP through Anwar worked for Haji in Karachi. They processed 3,000 pounds of Hashish but later rejected it and the matter was delayed. In March 1985 to April, 1985 he kept in contact with Anwar Khattak. Then in early summer, Anwar told him that Hashish was ready. It is also mentioned in the affidavit that 20 tons Hashish was processed with additional 12 tons delivered to them. He disclosed that half of load was lost at sea while of loading at coast of Virginia. However, the remaining 12 tons arrived on 31.10.1985. Despite loss, Iqbal, Anwar and Haji were paid full price. The money was paid at Singapore to Iqbal & Anwar etc. He has stated that on a few occasions Akbar Sheikh, Manager to Iqbal, used to be generally present In spring 1986, this witness met Anwar, told him that 20 tons of Hashish load was prepared. Out of this 12 million dollars profit was expected to the present detunes, namely, Anwar and Iqbal Baig. Netwon has also stated in the affidavit that they transported successfully 20 tons Hashish to new port, News Virgina on 4/5 July 1986. It was transported to New York for distribution. He has made a statement that 12 million dollars were taken by him and one Bloomfiel to Singapore and delivered to Iqbal's partner Akbar Sheikh and the same amount was also given to Anwar.
27. There is another affidavit of Robert Venzia. He was working as mechanic for Newton's boats. He travelled to Karachi in 1981-82 under the directions of Newton. In 1983, a shop was charted by Newton when he met Allah Banda and Iqbal detune. He came to know that Iqbal was Newton source of supply of Hashish. It was disclosed to him that Iqbal was going to supply approximately six tons of Hashish but Pakistani Military Units arrived and raided though the witness and Newton escaped. However, Hashish was seized. Without furnishing further details, the affidavit of Robert Venzia do contain direct and personal knowledge making out legal evidence connecting the present detunes with the alleged crime.
28. Third affidavit of Kenneth Bloomfield has also been produced. According to him in between 1980 and 1982, he participated in two large Hashish shipments; one of loaded in Cape May, Virginia and the other in Newport Virginia. On 4th July 1983, he participated in of loading of 20,000 pounds of Hashish transported from Pakistan to Rhode Island on the vessel known as Marie I dips. Similarly, in the year 1985, he came to know from Neton that he had negotiated for a large load of Hashish to be delivered at Karachi containing approximately 50,000 pounds although only 25,000 pounds were delivered in October 1985 as half of it was lost in the sea. He admits that on 6.7.1986 Newton of-loaded 50,000 pounds of Hashish in Virginia which was transported to New York Storage Site with the help of this witness. He deposed that this Hashish was successfully distributed in October, 1986. In the year 1986, he had six trips of Singapore carrying 2 to 2.5 million dollars on each trip. In the first trip at Singapore, Anwar, the present detune,-met him at the airport and helped him in un- loading the US currency into his car. There the detune Anwar told him that he had made arrangements for the change of currency through a money changer with a view to convert it into Pakistani currency. In this trip, he was accompanied by Newton. From the statement of this witness, it is crystal clear that the participation of the present detunes was of such a nature that, in fact, they made every arrangement in Pakistan and other places for the smuggling of Heroin/Hashish to the United States of America.
29. As far as Tariq Butt, the present detune/co-accused is concerned, there are affidavits of Fredrick and Larry Sproat continuing direct and indirect evidence against him. According to the contents of the affidavits delivery of Heroin and the transactions were controlled firstly by Fredrick at Lahore and then by Larry Sproat at Karachi. According to Fredrick CI/1 had been visiting Rashid and Tariq Butt at different dates. CI/1 had been working under the instructions of Fredrick and to this effect number of instances have been quoted. Two suitcases containing Heroin which were given by Traiq Butt to CI/1 were taken by Fredrick. He had inspected each of the suitcases and observed false lids, bottoms and sides containing approximately two Kg of Heroin. According to the affidavit of Larry Sproat, CI/2 had participated in the transaction under his instructions. Rashid handed-over one suitcase to CI/2 while Tariq Butt gave him second suitcase. Tariq Butt travelled to Karachi and had taken care of the tickets and travelling expenses. He reached at Karachi Airport on 8.4.87 where larry Sproat was conducting surveillance, who noticed Tariq Butt exiting the terminal carrying a briefcase and immediately went to CI/2 He was accompanied by Rashid who opened the briefcase and hand-over airlines tickets and money to both Rashid and CI/2. Larry Sproat further observed CI/2 and Rashid proceeding towards International departure terminal.
30. From the perusal of evidence produced by the prosecution in support of the allegation, it is evident that Mirza Muhammad Iqbal Baig received $ 250.0 for 6 tons of Hashish in the year 1983, $ 4,000,000 in September 1993 and $ 12,000,000 were received by Mirza Muhammad Iqbal Baig through his partner Akbar Sheikh for 20 tons of Hashish.
31. On the other hand, the writ petitioners' case is that no prima facie case is made out against them because no credibility can be attached to the statements of accomplices as it lacks of corroborative evidence. He has pointed out certain contradictions in defence of Haji Mirza Muhammad Iqbal Baig. Learned counsel for the petitioner has submitted that in the statement under section 340 Cr.P.C, the plea taken by him as well as by Muhammad Anwar Khattak has not been given due importance by the learned Enquiry Magistrate. Thus the findings of the learned Enquiry Magistrate are not sustainable.
32. I have heard the arguments of the learned counsel for the parties and perused the record. I have also critically gone through the evidence produced by the parties.
33. The learned Enquiry Magistrate has found prima facie case against the detune vide the impugned order. The standard and principles laid down to weigh the evidence have thoroughly been adhered to as already discussed in the opening part of this judgment. Here, relevant portion of the evidence has been quoted above in brief. In presence of aforesaid material and evidence, it will be highly improper to say that the respondents have failed to make out prima fade case against the detunes. Quite sufficient incriminating evidence has come on the record which do make out prima facie case. I have no hesitation to say that prima facie case having sufficient evidence as per requirement of section 10 of the Extradition Act, 1972 has successfully been made out.
34. During arguments plea of limitation has been raised. The argument of the learned counsel for the petitioner is that prosecution stands barred by time. No criminal proceedings can be launched against the detunes Haji Mirza Muhammad Iqbal Baig and Anwar Khattak after lapse of five years after the day the offence was committed. In support of this point, learned counsel has stated that last incident of allegation in respect of Haji Mirza Muhammad Iqbal Baig and Muhammad Anwar Khattak pertains to July, 1986 and the indictment was filled on 5th September, 1991, thus the indictment is time barred. In rebuttal, it has been submitted on behalf of the respondents that according to the affidavit of Newton, 20 tons Hashish had arrived on new port Virginia on 4th or 5th July 1986. Mr. Bloomfield in his affidavit states that on July 6, 1986 Mewton of-loaded 50.0 pounds of Hashish in Virginia and by October, 1986 most of the load had been distributed. These are the facts which do lend support to count III of the superseding indictment, which charges Haji Mirza Muhammad Iqbal Baig, Muhammad Ayub Afridi and Muhammad Anwar Khattak for intentionally possessing with intent to distribute Hashish during July 1986 to November 1986. Hence the time limit is to be reckoned at least from October, 1986. The period of five years expired in October 1991 where the charge of possessing with intent to distribute finds mention in indictment dated 5th december 1991. Hence it is within time though the remaining Hashish was distributed after October, 1986. As such, the argument of limitation raised on behalf of the writ petitioners is devoid of any force.
35. For the aforesaid reasons in the case of Haji Mirza Muhammad Iqbal Baig, Tariq Butt and Muhammad Anwar Khattak, I have come to the conclusion that the impugned order of the learned Enquiry Magistrate needs no interference. Hence the writ petitions are dismissed.
FACTS RELATING TO WP. Nos, 185/95,191/95 & 188/95.
36. Ghulam Muhammad, Umar Khan Afridi and Iqbal Pervez Durrani are co-accused of one case.
They have challenged the Enquiry Report dated 21.1.1995 of the Enquiry Officer, Islamabad, through these writ petitions. The facts and evidence pertaining to these cases are the same, hence these petitions are dealt with in this regard jointly.
37. Brief facts of the case are that a request for extradition of Ghulam Muhammad, Umar Khan and Iqbal Pervez Durrani from the United State of America was received through the Ministry of Foreign Affairs Government of Pakistan, which was sent to the Ministry of Interior, Government of Pakistan.
Mr. Ahmad Yar Khan, Addl. Deputy Commissioner (General)/MIC was designated as Enquiry Magistrate under section 7 of the Extradition Act, 1972 vide order No.9/61/93-Ptns dated 30th November, 1993. The extradition was prayed for on the basis of inducement, which contains six counts. Copy of the indictment has been placed on record.
38. In brief, the charges are that during the year 1991 and march, 1992 within the United States, Distt, of Marry Land, Pakistan and elsewhere Umar Khan, Chulam Muhammad and Iqbal Pervez Durrani, petitioners, unlawfully knowingly and wilfully combined, conspired, confederate and agreed with each other to willfully, knowingly and intentionally imported and caused to be imported into the United States a kilogram or more of a mixture or substance containing a detectable amount of heroin, in violation of Title 21 United States Code, Section 952(a).
39. On the receipt of orders from the Ministry of Interior, Government of Pakistan, the learned Magistrate issued non-bailable Warrants of arrest against the present detunes/petitioners and as such they were produced before the court on 16.12.1993. They were supplied with the copies of the indictment, affidavits of the witnesses and other requisite documents with a view to proceed with the enquiry. The Audio Cassettes Exb.1-6 were also produced by the Public Prosecutor dining enquiry proceeding. The Detenues/petitioners denied the charges. According to the Affidavit of John Paul Miller, agent United States, Attorney Confidential source of Information, identified as special agent, Bass xx Source II, identified Umar Khan, Ghulam Muhammad and Iqbal Pervez Durrani, petitioners, as the persons involved in the importation of 1200 kilograms of hereoin in United States of America. On the record there is an affidavit of Dennis Bass, he is the person who was supervising the investigation of this case. According to him he had first knowledge that Umar khan, Ghulam Muhammad and Iqbal Pervez Durrani conspired to import heroin and imported heroin into United States in violation of United States law. They also conspired to distribute Heroin and distributed it in violation of the Title 12 United States Code section 846 and 841(A) (i). In the affidavit he has stated that he travelled to Peshawar, Pakistan in April 9 of 1992 and met personally Haji Umar Khan and others, but they refused to meet him. However through other source he happened to record telephonic conversation of Haji Umar Khan etc. Either in his presence or at his direction. This conversations were monitored and recorded by him or Law Enforcing Officers under his supervision. The tapes were in his custody. According to him the meeting and telephone calls were partly in English and partly in Urdu and Pushto etc. But Source-I and another were there to translate. Umar Khan, Ghulam Muhammad and Iqbal Durrani are the persons whose voices/conversation were recorded. The affidavit of this witness contains sufficient material and evidence that the present detenues/petitioners, were participants in sending white Heroin. It is also mentioned in the affidavit in para 51 that Khalid Khan told Source-I that code words used while talking to Haji Umar is "Shagi Tiger". In para 54 of the affidavit it is mentioned that Umer replied that he was responsible for the things at Peshawar. In para 58 of the Affidavit it is mentioned that the money that was being offered was also for Haji Umar. In brief, so far as the affidavit of this witness is concerned, he fully implicated the present detenues/petitioners and as Such if this evidence remains unrebutted. Haji Umar ect. Stand connected with the alleged crime. There is another affidavit of one Afsar Khan, which was brought on record on the asking of the defence. The contents of this affidavit do show participation of Haji Umar, Ghulam Muhammad and Iqbal Durrani in the affairs. There was objection from the petitioners1 side that the affidavit of Afsar Khan has not been properly placed on record. Besides this, it was not the part of package received from the United States. According to them, it was got manoeuver and concocted later on with a view to strengthen the case. He further stated that the affidavit of Afsar Khan could not have been made part of the record because it was never placed on the record in their presence and they did not have opportunity to cross-examine any one in this regard. In reply, Special Prosecutor stated that the affidavit of Afsar Khan was originally sent vide letter dated 3, April 1994 and it came before the Enquiry Officer through proper channel. He also referred to letter dated 7, April 1994, letter dated 3 April 1994 and the letter dated 13 April 1994. The last letter dated 13 April 1994 shoes that sue audio cassettes were sent and received in support of the prosecution version. An application was also filed alongwith affidavit on 14-4-1994 by the prosecution, in which it is stated that six audio cassettes have been sent for placing on the record with a view to prove the allegation. Admittedly, Audio Cassettes placed on record contains voices/conversation of these detunes, which clinches the matter to say that as per requirement of Section 10 of the Extradition Act, there is sufficient evidence against the accused/petitioners.
40. The learned Enquiry Magistrate recorded /he statements of the accused under Section 340 and 342 Cr.P.C. Defence evidence was also produced before him. It is mentioned in the Enquiry Report that during the course of examination special agent Bass and cooperating individual (Afsar Khan) working with special agent Bass had telephonic conversation with Ghulam Muhammad, Haji Umar Khan and Iqbal Pervez Durrani regarding their business of importation and distribution of Heroin.
41. The learned Enquiry Officer has also dealt properly with the objections raised by the defence with regard to the affidavit of Afsar Khan The objection from the petitioners that Afsar Khan's affidavit could not have been read in evidence as it was not recorded during the investigation as already mentioned. Admittedly, the affidavit of Afsar Khan was not part of the original extradition indictment package, but on the request of the defence it was called and thereafter it was placed on the record alongwith audio cassettes. These documents are part of the Enquiry Proceedings record, hence it cannot be said that the learned Enquiry Magistrate was not competent to consider this piece of evidence. Undoubtedly the affidavit of Dennis Bass and Afsar Khan are admissible in evidence as these have been produced and got exhibited under section 9 of the Extradition Act 1972. Here it may be mentioned, at this stage, with a view to satisfy myself I summoned the learned Enquiry Magistrate in the Court to know as to whether the audio cassettes were played or not and if so whether these have conversation of the present detunes. According to him the Audio Cassettes do have the conversation of Haji Umar, Iqbal Pervaz Durrani and Ghulam Muhammad narrating certain facts and circumstances, which do establish that they had participated in the affairs.
42. The learned Magistrate has also discussed the defence evidence. His appraisal of defence evidence needs no interference.
43. So far as the legal objections are concerned, I have already dilated in the opening part of the judgment. Hence there is no substance in the Writ Petition No. 191/95,188/95 and 185/95. Hence these are also dismissed.
FACTS AND EVIDENCE W.P. No. 983/94
44. Brief facts of the case are that one Nasarullah Khan Henifa, resident of Flat No. 1, 3rd Floor, Imtiaz Centre, Main Market, Gulberg-II, Lahore, a citizen of Pakistan was allegedly found involved in continuous series of offence, knowingly and intentionally conspiring to import and procure heroin to United States of America, which are punishable not only under Pakistani Laws but also under United States'. The Government of United States of America thus made a requisition through Diplomatic Channel for the extradition of Nasarullah Henjra. Mr. Aftab Habib, the then ADC(G) was appointed as Enquiry Officer under the Extradition Act, 1972 by the Ministry of Interior, Government of Pakistan. He held enquiry and submitted his report to the Ministry of Interior, Government of Pakistan, with the observation that there was a prima facie case against Nasarullah Henjra and the requisition for his extradition to United States of America to face trial was recommended. The enquiry report was challenged by Nasarullah through a writ petition in the Lahore High Court, Rawalpindi Bench, Rawalpindi, the writ petition was dismissed by this Court. Nasarullah Henjra .Then preferred a petition before the Supreme Court of Pakistan. Ultimately, the appeal was accepted. The enquiry report was found to be without lawful authority and of no legal effect. The case was, however, remanded for fresh enquiry. The Hon'ble Supreme Court of Pakistan accepted the appeal mainly on the ground that the extradition requisition was based on the affidavit of the Assistant Attorney of the United States of America, who had met and examined individuals - CI/1 and CI/2-who had direct dealings with Nasarullah Henjra for the purpose of smuggling heroin into the United States of America. The statements of CI/1 and CI/2 recorded before the Grand Jury were neither produced before, the Enquiry Officer nor the copies thereof were offered to be received in evidence u/s 9 of the Extradition Act. The deposition of the Assistant Attorney was, therefore, treated as hearsay evidence and found not admissible in evidence.
45. On remand, the present Enquiry Officer on assuming the charge of the post of ADC(G) , Islamabad, happened to hold enquiry into the matter in pursuance of letter No.9/39/93/Ptns dated 23.11.1993 issued by the Government of Pakistan. The requisite statements of CI/1 and CI/2 were provided to Nasarullah Henjra alongwith other documents and statements. The evidence in support of requisition was recorded and thereafter the statement of Nasarullah Henjra was recorded u/s 342 Cr.P.C, in the presence of his counsel Kh Haris Ahmad, Advocate. Through the statement dated 24.11.1993 recorded u/s 342 Cr. P.C. Nasarullah Henjra prayed that he would be allowed to produce his defence. In that course on 28.11.1993, two applications were also placed before the Enquiry Magistrate by the counsel for the petitioner for summoning extensive record and for summoning Kh. Muhammad Shafiq CI/2 and Court witness. As per report of the Enquiry Officer, arguments were heard from both the sides regarding the aforesaid applications. The request for summoning the record which the petitioner stated would form part of his defence was acceded to and an order dated. 22.11.1994 was passed to facilitate the petitioner to procure the documents which he wanted to rely and produce in his defence. However, the application pertaining to the summoning of Khawaja Shafiq as Court witness was refused mainly on the ground that the facts and circumstances mentioned in the statement made by Khawaja Shafiq CI/2 were founds to be sufficient in making out a prima facie case against the petitioner. As per observation of the Enquiry Officer, summoning of Khawaja Shafiq for cross-examination purposes was not deemed necessary. Nasarullah Khan Henjra was charged under seven heads, detail whereof is given in the indictment.
46. According to Enquiry Officer, the Hon'ble Supreme Court of Pakistan remanded the matter requiring the Enquiry Officer to consider the existence of a prima facie case not only on the basis of the affidavit of Assistant Attorney of USA but the evidence of CI-1 and CI-2, if so produced be also considered/appraised
47. The Enquiry Magistrate has now considered the statements of CI-1 of Tariq Javed and CI-2 of Kh. Muhammad Shafique quite at length considering the pres and cons of their statements/evidence recorded before the Grand Jury of United States of America. Not only that, he kept in view the statement of Nasrullah Khan Hinjra recorded under section 340 Cr.P.C and his defence evidence. On the close of evidence by both the sides, arguments were heard by him and give finding against the present petitioner saying that Nasrullah Khan Hinjra remained involved as principle organizer in the Drugs smuggling to USA through Kh. Muhammad Shafique and Tariq Javed. His finding is that Khawaja Muhammad Shafique and Tariq Javed were deputed by Nasarullah Khan Hinjra for smuggling of Heroin and he quoted certain incidents which he observed from the material placed before him by the Prosecutor. At the end of his report, he stated that the evidence of Kh. Shafique and Tariq Javed in his opinion do make out prima facie case justifying the required Extradition. He thus recommended that Nosarullah Khan Kinjra be extradited as per request of the United States of America to face trial before a Court of competent jurisdiction in that country. The Enquiry Report was sent to the Ministry of Interior, Government of Pakistan, for further necessary action in accordance with law. On receipt of the report, the Federal Govt, expressed its opinion that prima facie case do exist against Nasarullh Khan Hingra and for that purpose they required Nasarullah Khan Hinjra to surrender for extradition to United States of America for facing trial. Accordingly, it was decided to take the petitioner into custody for extraditing him to the United States of America for facing trial against the said charges. This action was conveyed vide DO No. 9/32/91-Ptns, Government of Pakistan, Ministry of Interior, Islamabad, dated 15.9.1994 copy whereof has been placed on the record.
48. The petitioner, Nasarullah Khan Hindi\ra, through the present writ petition has challenged the validity of the Enquiry Report dated 17.8.94 prepared by Mr. Ahmad Yar, Additional Deputy Commissioner (G) Enquiry Officer and the opinion expressed by the Government of Pakistan Ministry of Interior vide the aforesaid letter dated 15 .9.1994.
49. During the enquiry proceedings, the present respondent produced following evidence in support of the requisition:- PW1 Mr. Muhammad Daud, Section Officer, Ministry of Interior, Govt, of Pakistan, Islamabad.
50. Through the statement of this witness requisition for extradition of Nasarullah Hinjra alias Nasarullah Khan from Pakistan to USA was placed on the record and exhibited alongwith number of documents relating to the charge-sheet. The details of those documents are given in the statement of this witness. He was cross-examined by the learned counsel on behalf of the petitioner quite at length but during arguments nothing was said about the statement of this witness.
PW2 Mr. Arnold R. Morrin, Special Agent, Drug Enforcement Administration, USA.
51. The gist of his evidence is that he was an incharge of the investigation of this case. He interviewed CI-1 and CI-2 (Tariq Javed and Kh. Muhammad Shafique). Their testimony was recorded by the Federal Grand Jury in USA. Both these witnesses CI-1 and CI-2 were cross- examined by the Grand Jury. On the basis of their statements and other evidence produced by the Grand Jury seven charges were framed and warrant of arrest of Nasarullah Hinjra was issued by the USA Agency. According to him, the investigation was completed within a period of over six months when the involvement of Nasarullah Hinjra came to their knowledge. He testifies seven charges contained in the indictment were accurate and in order having legal justification. During cross-examination the witness admits that CI-1 and CI-2 were convicted and found to be Drug Paddler. According to him, CI-1 was convicted in 1986 in England for Heroin smuggling. The involvement of Nasarullah Hinjra came to their knowledge in late 1989 and that too after the conviction of CI-2 in Drug Paddling in USA. The emphasis of this witness is that the evidence/testimony of CI-1 and CI-2 couple with other documentary evidence collected during investigation Mr. Hinjra's participation in the crime cannot be doubted. This witness admits that during trial in England CI- 1 did not make any statement implicating Nasarullah Hinjra in Drug smuggling, but the explanation offered by him voluntarily is that CI-1 failed to implicate Nasarullah Hinjra as he expected that Nasarullah Hinjra would help him financially on his conviction. He stated so because it was told to him by CI-1. He also stated that a person known as Jake was the agent of DEA. This person Jake was under-cover Agent and had sent a courier to CI-2 in Lahore-Pakistan for purchase of two kilograms of Heroin and through that courier some money transaction was also made. He categorically stated that during the course of investigation of this case, no person except CI-1 and CI-2 identified Nasarullah Hinjra as the person who was dealing in Drug Trafficking to USA.
The witness was suggested that CI-2's sister was married with Khalid Saleem, but he expressed his ignorance. This witness further stated that during investigation he could not lay hand on any document showing that Drug money was ever transferred from USA to Pakistan in the name of Nasarullah Hinjra through Bank.
52. I have heard the learned counsel for the parties and perused the record with a view to appraise the evidence as to whether there is a prima facie case against the accused or not. The gist of the evidence produced above do make out a case to say that the detune/accused is connected with the alleged crime. On the direction of the Hon'ble Supreme Court the affidavit of Khawaja Shafique and Tariq Javed have been produced by the respondents. From the contents of these affidavits, it is evident that Nasrullah Khan Hinjra was not only involved in the affairs but was also acting as principal organizer in the Drug smuggling to United States of America in conspiracy and with the help and aid of Khawaja Muhammad Shafiq and Tariq Javed. The finding of the learned Enquiry Magistrate is supported by evidence brought on the record. The learned Magistrate acted in the matter and has given his finding on the basis of aforesaid evidence which at least for the purpose of enquiry can be said that there is sufficient evidence against the detune/accused to face the trial before the court of competent jurisdiction in United States of America. The evidence of CI-1 and Cl- 2 cannot be brushed aside on the ground that they were convicted because of their participation in the alleged crime. From their conviction it can be presumed that at least they were the participants in the affairs. Thus, their narration with regard to the activities of the present accused has sufficient persuasive value to be believed.
53. Learned counsel for the petitioner has contended that the Enquiry Magistrate was requested to summon CI-1 and CI-2 but the application was rejected summarily. Admittedly, the application was submitted u/s 540 Cr.P.C. This provision is reproduced below: - "540. Power to summon material witness or examine person present. - Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness or re-call and re-examine any person already examined; and the Court shall summon and examine or re-call and re- examine any such person if his evidence appears to it essential to the just decision of the case."
Section 540 Cr.P.C, has two parts. Its first part deals with the discretionary relief whereas the second part of deals with the cases where calling of witnesses becomes mandatory. The Enquiry Officer was fully competent to use his discretion in the matter keeping in view the facts and circumstances of the case. The conclusion drawn by the learned Magistrate is such that he was satisfied even without calling these witnesses. As far as the affidavits of these witnesses are concerned, those have been brought on record u/s 9 of the Extradition Act which is a special procedure meant for it. The summoning of these witnesses at the stage when the prosecution evidence as already closed and the statements of the accused detune wee recorded u/s 340 Cr.
O.C. Was not needed, fall within the judicial discretion of the Magistrate, which he rightly exercised.
54. For adjudication of these writ petitions, following judgments cited by the learned counsel for the parties were considered by this Court:-
55. The net result is that all the writ petitions are dismissed with no Order as to costs.