' This order shall dispose of Writ Petitions Nos.23761 of 1997, 15282 of 1997, 15284 of 1997, 1359 of 1995/Rwp., 4805 of 1997/Multan and 5230 of 1997/Multan as they call in question the alleged forcible and unlawful extradition of Mir Aimal Kansi to the United States of America.
2. At the very outset, Ch. Muhammad Farooq, the learned Attorney-General for Pakistan raised a preliminary objection that the petitioner was already beyond the territorial limits of this Court. He had been sentenced to death which was confirmed by a Court of appeal in the United States. It was argued that this Court could not give any directions to the United States administration or to the Federal Government to bring the petitioner back to Pakistan and then to extradite him following the procedure prescribed by law.
3. Mr. M.J.I. Jafree of Slarpore, Advocate, for the petitioners Mir Aimal Kansi (Writ Petition No,23761 of 1997) and Shahzadi Mumtaz Jahan (Writ Petition No,15284 of 1997) argued that the petitioner Mir Aimal Kansi was arrested by Government of Pakistan in collaboration with the officials of the United States of America on 15-6-1997 from Shalimar Hotel of D.G. Khan. He was kidnapped/bundled out to United States of America to face a trial on the charge of a terrorist act there before a U.S. Court. The learned counsel argued that the petitioner was convicted by the trial Court and was awarded the sentence of death which was confirmed by the Appellate Court of United States. It was further stated that further appeal before the United States Supreme Court was also being filed. The learned counsel categorically stated that Sardar Farooq Ahmad Khan Leghari, former President of Pakistan, was not involved in the matter of arrest or extradition of Mir Aimal Kansi. It was also contradicted by the learned counsel that the petitioner was ever employed by the C.I.A. The learned counsel pointed out that Libya had refused to extradite its citizens to America. Likewise, the America had also declined to surrender its citizens to the Portuguese. The learned counsel frankly conceded that there was no formal treaty of extradition between Pakistan and United States except a treaty of friendship between the two countries made in November, 1959. However, the United Kingdom and the President of the United States of America had entered into an extradition treaty in 1931. There was however a letter dated 19-3-1952 from the Secretary of States to the Pakistani's Ambassador in Washington. It was argued that Mir Aimal Kansi was arrested, kidnapped and extradited to the United States of America in a manner which was derogatory to the provisions of the Constitution and the law particularly the provisions of Articles 3, 6, 8, 10 and 12 of the Treaty of 1931. The learned counsel placed reliance on the American Journal of International Law October, 1997, in support of his contention that the extradition of the petitioner was wholly unconstitutional.
Para. 2 of Article 6 of the U.S. Constitution was also pressed into service. It was contended that the American President had telephoned the Prime Minister of Pakistan for the purposes of the extradition of the petitioner. He should be considered to be,constructively present in Pakistan so as to be amenable to the jurisdiction of this Court necessitating the issuance of judicial process to him. Article 5 of the Constitution of Islamic Republic of Pakistan was referred to. The learned counsel forcefully argued that this Court was required by law to issue directions to the Government of Pakistan to make a complaint to the administration of the United States for the return of the petitioner who had been kidnapped from Pakistan and forcibly taken to the United States. It was argued that the petitioner if brought back to Pakistan was liable to be extradited to the United States but after following the procedure as laid down by the law. Reliance was placed on the case of Mullick v. Mullick (52 Indian Appeals 245) (Privy Council) wherein it was held that even an idol had the locus standi/standing to file a petition before a Court of law. The learned counsel emphasised for issuance of directions to the Federal Government not to deport or extradite its citizens without the observance of the proper procedure. Lastly, it was contended that the arrest and extradition of the petitioner being unconstitutional and illegal, his consequent trial, conviction and sentence and affirmance thereof by the American Courts were also vitiated being without jurisdiction and nullity in the eye of law. As to the preliminary objection of the learned Attorney- General for Pakistan regarding lack of territorial jurisdiction of this Court, the learned counsel submitted that since the petitioner Mir Aimal Kansi was taken into custody and extradited from Dera Ghazi Khan, therefore, this Court had the jurisdiction to entertain and adjudicate upon these writ petitions.
4. The petitioner, Mr. M.D. Tahir, Advocate, in Writ Petition No,15282 of 1997, submitted that Mir Aimal Kansi was unlawfully Kidnapped from Dera Ghazi Khan and handed over to the American officials in violation of Articles 1, 2, 2A, 4, 6, 9, 15 and 31 of the Constitution of Islamic Republic of Pakistan. He further argued that the Federal Government was involved in the unlawful extradition of the said citizen of Pakistan. The petitioner relied on the judgment in the case of Islamic Republic of Pakistan v. Abdul Wali Khan, M.N.A. PLD 1976 SC 57 in support of his contention that the news items regarding the unlawful extradition of Mir Aimal Kansi having not been contradicted by the Government were required to be accepted. The petitioner submitted that criminal proceedings against the Prime Minister be taken in the matter and the Federal Government be directed to make a request to the United States for the return of Mir Aimal Kansi. It was further submitted that this Court should give directions to the Federal Government for the future to act in accordance with law in the matter of extradition of citizens of Pakistan.
5. We have heard the learned counsel for the petitioners, Mr. M.D. Tahir, in person as well as the learned Attorney-General for Pakistan. The first thing to be determined is the question of jurisdiction of this Court to entertain and determine these writ petitions. We, prima facie, find that Mir Aimal Kansi, a citizen of Pakistan, was taken into custody by the Government functionaries within the territorial jurisdiction of this Court. He was extradited to the United States of America for being tried there for a terrorist act. The petitioner had already been taken out of the country before anyone had filed the petition in regard to his alleged unlawful arrest and extradition. The substance and dominant object of all the writ petitions is the return of the petitioner Mir Aimal Kansi to the country on account of his alleged unlawful arrest and extradition. We have to examine as to whether in the facts and circumstances of this particular case can any effective order be passed.
By this Court for the said purpose particularly when the detenu is not available in Pakistan having been already extradited to the United States of America. Essentially, the question of the legality of arrest and extradition of the petitioner Mir Aimal Kansi is involved in this case regardless of the form of the relief sought for by the petitioners.
6. Article 199(1)(b)(i) of the Constitution of Islamic Republic of Pakistan provides that the High Court may make an order on the application of any person directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner. Admittedly, the person whose unlawful arrest and detention has been called in question is not in custody of any Government functionaries nor is otherwise anywhere in Pakistan. It is, therefore, not possible for this Court to determine the validity of the arrest and extradition of the petitioner Mir Aimal Kansi.
Similarly, no writ can be issued against a foreign State for the production of the petitioner detenu before this Court in terms of Article 199 or under any other law. The detenu/petitioner has already been convicted and sentenced by a Court of United States which has been confirmed by the Appellate Court. We cannot issue a writ which is uncertain, ineffective or futile in the matter of repatriation of the petitioner whose custody is being regulated by a foreign Court. See the cases of Khan Bahadur A.G. Khan v. Shujauddin Qureshi and others PLD 1961 SC 1, Mirza Muhammad Shafi v.
The Collector, Sheikhupura and 3 others PLD 1968 Lah. 403, Ram Chandra Pal v. Hiramba Kumar Pal and others AIR 1952 Cal. 502, Beni Chand v. The District Magistrate, Banda and another AIR 1953 All.
476, Messrs R. Sim & Co. Ltd. v. The District Magistrate, Tripura and 2 others PLD 1966 SC 650, Sh.
Rahmatullah v. The Deputy Settlement Commissioner PLD 1963 SC 633, Sardar Muhammad v.
Pakistan through the Secretary to the Government of Pakistan in the Ministry of Defence PLD 1961 Kar. 232 and Muhammad Ashraf and 2 others v. Mst. Niamat Bibi and 2 others PLD 1981 Lah.
520. Similarly, what cannot be done directly should not be allowed indirectly by the issuance of a direction to the Federal Government. See the cases of Mian Ijaz Iqbal. Etc. v. Faisalabad Chamber of Commerce and another PLD 1983 Lah. 1 and Muhammad Anwar Mengal, Manager Accounts and 13 others v. Privatisation Commission, Ministry of Finance, Islamabad and 2 others PLD 1993 Quetta 61.
7. It is now well-settled that ordinarily when a person is arrested and taken out of the country before the institution of judicial proceedings, no direction for his repatriation/production or otherwise can be issued. In the case of Leo Zepantis v. Emperor AIR 1944 Cal. 76, the facts were that one "S", a Greek came to Calcutta as a sick seaman and landed with proper permission. He was suffering from asthma and bronchitis. He as well as the agents of the ship's owners instituted proceedings in the Calcutta High Court for a claim against the owners of the ship. During the pendency of the proceedings, he was forcibly removed to Egypt by a Greek Steamer. A habeas corpus petition was filed for the return of the said seaman. It was held by late Derbyshire, Chief Justice that:-- "Calcutta is a part of India. There are still laws administered in the Courts of this country in spite of the various regulations and various pieces of legislation termed Emergency Legislation which have been passed. Not under any law or regulation having the force of law to which our attention was drawn was there any power residing in anybody except the Central Government to order this man's removal from this country to Egypt. Perhaps the Provincial Government or a proper Court of law might have ordered it. Each one of these authorities would no doubt have taken into consideration the state of this man's health and the fact that he had a claim which he was prosecuting against the owners of a ship in respect of damage to his health. None of these matters have been taken into consideration. The Greek Consul had no right in Calcutta to order his removal from Calcutta; the ship's agents had no right to order his removal from Calcutta; the police had no right to order his removal from Calcutta unless they did it under an authority from the Central Government, or perhaps the Provincial Government or a proper Court of law. The police had no such authority; the Greek Consul had no such authority; the ship's agents had no such authority. In my opinion, this was a piece of lawlessness on the part of the ship's agents, the police and the Greek Consul. I regret that we are not in a position to help this man as he is out of the jurisdiction, but I hope this case will be a warning to those who are like-minded to take the law into their own hands where they have no right to do so. This Rule is discharged.'
' In the case of Vishambhar Dayal v. U.P. Government AIR 1945 Oudh 117, it was observed that where the person concerned was confined beyond the limits of the appellate criminal jurisdiction of the Court, no direction could be issued merely on the assumption that such a person was still constructively within the limits of its jurisdiction. Similar view was taken by a Division Bench of Nagpur High Court in the case of V.M. Sarangapani v. Emperor AIR 1946 Nag. 20 and S. Bismillah Shah v. The N.-W.F.P Government PLD 1950 Pesh.
43. In the case of Muhammad Qasim and another v. The Province of the Punjab through the Secretary. Home Department. Civil Secretariat. Lahore PLD 1973 Lah. 473, Nawab Muzaffar Hussain who was on his way to Lahore from Hyderabad. He was arrested at Multan Airport under the Defence of Pakistan Rules, 1971, and was sent to Sukkur through a Special Guard on that very night.
Subsequently, a petition against his alleged unlawful arrest and removal was filed which was dismissed on the ground that the detenu was already beyond the territorial jurisdiction of this Court before the filing of the petition. In the case of Mian Manzar Bashir, Advocate v. Federation of Pakistan through Secretary to Government of Pakistan, Islamabad PLD 1974 Lah. 319, a petition for production of late General (Retd.) A.M. Yahya Khan was filed in Lahore on the ground of illegal detention was refused by a Fur Bench of this Court on the ground that the detenu was being detained at Abbottabad, a place outside the territorial limits of this Court. We respectfully follow the view taken by the Full Bench of this Court in the case of Mian Manzar Bashir (supra) but subject to observations made by the Honourable Supreme Court of Pakistan in the case Ch. Manzoor Elahi v.
Federation of Pakistan etc. PLD 1975 SC 66. In the case of Begum Mazhar Ali Khan v. Federation of Pakistan 1981 SCMR 1240, the detenu was one of the several persons sent out of the country in exchange of the passengers of P.I.A. Plane highjacked to Kabul and then to Syria. Relief was declined as the detenu was no longer within the territorial jurisdiction of the Courts of Pakistan or of the Province. Even in U.K., similar view was taken by the Court of Appeal in the case of Rex v.
Pinckney (1904) 2 K.B.
84. In the said case, Mrs. Pinckney had removed her child from England to France before an application for the production of the child was made in the Court. It was held that the person whom it was sought to restrain by a writ of habeas corpus or of mandamus must be within the jurisdiction of the English Courts at the date of the issue of writ. If such a person was out of the jurisdiction, there was no power to order the issue of writ. No process could be immediately served and made effective.
8. According to the petitioner an appeal is being filed before the United States Supreme Court. We need not make any observations as to the jurisdiction of the U.S. Courts to try and convict the petitioner on the ground of the alleged unlawful arrest and extradition. However, in a series of cases, it has been held that mere illegal manner of arrest and production of an accused before a competent Court does not affect the validity of the trial. In the case of Emperor v. Vinayak Damodar Savarkar and others ILR (1911) 35 Bom. 225 (F.B.), the respondent-accused had escaped from police custody but was recaptured in a foreign country in violation of the extradition law. Nevertheless, it was held that his trial was not vitiated. In an old case of The Queen v. Nelson and Brand (charge to the Grand Jury, Second Edition, page 118), George Willeam Gordon was arrested by an illegal and unwarrantable act in Jamaica to Morant Bay and was placed before the Military Court. He was eventually convicted by the Court Martial. A petition for .The quashment of the proceedings was filed. It was held by the Lord Chief Justice that assuming the arrest of the convict was in violation of the extradition law but he was tried by a Court of competent jurisdiction to which no valid objection could be taken on the ground of any earlier illegality in the manner of arrest and production before the Court. In the case of Parbhu v. Emperor AIR 1944 PC 73, an accused was arrested illegally in a foreign territory by a British Indian Officer. He was brought before and tried by a Court of competent jurisdiction. It was held that the illegality of the arrest did not F vitiate the trial. The same view was taken by our Supreme Court in (Commander) M.S.K. Ibrat v. The Commander-in-Chief, Royal Pakistan Navy and 2 others PLD 1956 SC (Pak.) 264, wherein despite the illegality of manner of arrest and detention, the trial was held to be valid.
9. Before parting with this order, we would like to express in clear terms that we do not approve or appreciate the manner in which the petitioner was surrendered and extradited to a foreign State.
Under Article 4 of the Constitution of Islamic Republic of Pakistan, it is the inalienable right of every citizen to enjoy the protection of law and to be dealt with in accordance with law. Both under Articles 4 and 9 of the Constitution, no action detrimental to the life and liberty can be taken except in accordance with law. Article 4' of our Constitution has been held in the case of Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 to be Comparable to the due process clause of 14th Amendment of the American Constitution. It is the Constitutional obligation of the Government to ensure that the higher national interests being a sovereign and independent Islamic State are not jeopardised thereby causing a serious jolt. The State functionaries are not expected to be always too ready and willing to hand over the person of its citizens for extradition to a foreign State in the absence of due observance of the provisions of the Constitution, the Extradition Act, 1972 and other laws of the country. The Federal Government may also take into consideration as to how many foreign nationals have been extradited to Pakistan so far under any reciprocal arrangements. It is high time that the Federal Government should take the stock of the whole situation so as to rationalise the policy of extradition. However, we leave it to the petitioners and others to take up the matter further before the Federal Government and/or to take any other appropriate proceedings.
10. For the foregoing reasons, all the writ petitions are dismissed in limine. Since no one has appeared on behalf of the petitioners in Writ Petitions Nos.1359 of 1997/BWP, 4805 of 1997/Multan and 5230 of 1997/Multan, the same are also dismissed for non-prosecution.