' Petitioner is wife of Haji Mirza Muhammad Iqbal Baig who was extradited to United States of America on 2-4-1995 pursuant to a requisition made by the Government of U.S.A. According to the petitioner when her husband was extradited, following cases were pending against him:--
(i) Case F.I.R. No, 43 of 1989 dated 22-5-1989 lodged at PS J.T.F. Crime Branch, Ichhra, Lahore under section 10 of the Dangerous Drugs Act, 1930 and Article 4 of the Prohibition (Enforcement of Hadd)
Order, 1979 pending in the Court of Ch. Ismail, Magistrate Section 30, Lahore;
(ii) Case F.I.R. No,46 of 1989 registered at P.S. JTF Crime Branch Ichhra, Lahore under section 10 of Dangerous Drugs Act, 1930 and Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 pending in the Court of Ch. Ismail, Magistrate Section 30, Lahore;
(iii) Criminal Acquittal Appeal No,4 of 1993 filed on 26-4-1994 pending in the Special Appellate Court, Karachi. This appeal was directed against the judgment dated 10-2-1993 passed by Court of Special Judge (Customs and Taxation), Karachi in case F.I.R. No,69 of 1990 titled 'The State v. Anwar Khattak etc.";
(iv) Complaint under section 31 of the Prevention of Smuggling Act, 1979 pending in the Customs Court Lahore; and
(v) He was undergoing seven years' R.I. This sentence was passed by a Court of Special Judge (Customs and Taxation) vide judgment dated 13-7-1991 in a case registered vide F.I.R. No,142 of 1995 under sections 156(1)(8)(89) of the Customs Act, 1969 where he was sentenced to seven years and a fine of Rs,50 lac. Criminal Appeal No,19 of 1993 is pending before the Supreme Court of Pakistan.
2. After extradition petitioner's husband was convicted in the U.S.A. And having served out his sentence he has come to Pakistan in September, 1997. However, he was arrested at the airport to undergo the remaining sentence in the case in which he stood convicted and was undergoing the sentence at the time he was extradited and to face trial in the remaining cases which were pending at the said time.
3. Through this Constitutional petition, the petitioner has prayed that the remaining sentence which the petitioner's husband had to undergo in Pakistan should be remitted and the cases pending against him at the time of extradition should be withdrawn as according to her that is the mandate of section 5(2)(f) of the Extradition Act.
4. The comments called from the Superintendent Jail, Rawalpindi are to the effect that petitioner's husband was extradited on 2-4-1995 when he was undergoing seven years' sentence (in case registered vide F.I.R. No,142 of 1995 under section 156(1)(8)(89) of the Customs Act, 1969); that after deducting the period spent by him as undertrial prisoner and the remissions earned on various counts remaining sentence that he has to undergo is two months' R.I. Provided he pays the fine of Rs,50 lac. It was further added that his sentence for the period that he remained in the United States of America pursuant to extradition would be deemed to have been suspended under Rules 36 and 37 of the Pakistan Prisons Rules, 1978.
4. Learned counsel for the petitioner has made following submissions in support of this petition:--
(i) That in terms of section 5(2)(f) of the Extradition Act the Government could not have extradited petitioner's husband unless he had been discharged or acquitted or on the expiration of his sentence that he was undergoing. Having failed to comply with the afore-referred mandatory provision petitioner's husband earned a right to be released and it should be deemed that he has served out the sentence and stands discharged in all pending cases;
(ii) that he has a fundamental right guaranteed by Article 4 of the Constitution of Islamic Republic of Pakistan to be dealt with in accordance with law and not to be deprived of his life and liberty save in accordance with law;
(iii) the flagrant violation of the mandatory provision of law constitutes a serious denial of the foregoing fundamental rights which merits intervention of this Court;
(iv) that the period spent in jail in the United States of America should be counted towards his sentence in Pakistan and if that is done he merits to be released;
(v) that the various letters issued by the Ministry of Interior to the Chief Secretary of Punjab for withdrawal of cases against petitioner's husband which have been attached with the petition clearly indicate that the Government had the intention of withdrawing all the pending cases and those letters may be given effect to, to honour the mandate of law; and
(vi) that the petitioner had challenged the extradition proceedings in Writ Petition No,182 of 1995 in which vide judgment dated 2-4-1995 certain observations were made to the effect that cases be discharged and his sentence be remitted. The Government should, therefore, be directed to comply with the said observations.
' In support of his submissions, learned counsel for the petitioner relied on the following precedent case-law:--
(i) Bennett v. Horseferry Road Magistrates' Court and another (The All England Law Reports, 1993, p.138);
(ii) Zulqaranain Khan alias Zulfiqar Ali Khan v. The Government of Pakistan through the Secretary, Ministry of Interior, Islamabad and 2 others 1990 M LD 1611), and
(iii) Abdul Hamid Khan v. Muhammad Zameer Khan and 2 others 1990 M LD 1617 (AJ&K).
5. The learned Deputy Attorney-General, on the other hand, opposed the petition and submitted as under:--
(i) That section 5(2)(f) of the Extradition Act is directory in nature which empowers the Government to pass an order of remission in case the convict undergoing sentence is to be extradited and the Government taking recourse to this provision may refuse extradition till cases are pending or till he has served out sentence or is discharged 'otherwise'. Elaborating this point, the learned Law Officer submitted that the expression 'discharge' appeared in sub-clause (f) of section 5(2) of the Extradition Act has to be read alongwith 'whether by acquittal' or on the expiration of sentence' or 'otherwise'. The word 'discharge' has to be given the generic meaning and there are three different ways under which the person could be discharged or released to facilitate extradition and 'otherwise' would cover the mode of suspending the sentence which he was undergoing. The Government/Jail Authorities suspended the sentence of petitioner's husband when he was extradited and after his return to Pakistan he has to undergo the remaining part of the sentence.
He further added that since no consequence follow in the event of non-compliance of section 5(2)
(f) of the Extradition Act would show that the said provision is directory and not mandatory. He relied on Jamshed Ahmad Khan and 2 others v. The S.D.M./A.C., Garden, Sub-Division Karachi and others PLD 1987 SC 213; State of Uttar Pradesh and others v. Babu Ram Upadhya AIR 1961 SC 751 in support of the submissions;
(ii) that the petitioner's husband has not been prejudiced in any manner inasmuch as if as contended by the petitioner he was allowed to complete his period of sentence in Pakistan and thereafter extradited to United States of America even then he had to face the trial in U.S.A. After completing the sentence in Pakistan; and
(iii) that the provision of Extradition Treaty would be binding on the States signing it to the extent that it is consistent with the Extradition Act, 1972 and even if the Government had lapsed on any count this would not exonerate petitioner's husband's liability to undergo the liability/sentence for the offence under which he stood convicted.
6. I have heard learned counsel for the petitioner as also the learned Deputy Attorney-General for Pakistan and have also given anxious thoughts to the arguments addressed at the bar.
7. The fundamental issues which have been mooted in the instant petition are two-fold:--
(i) Whether petitioner's husband can claim termination of criminal proceedings pending against him at the time of extradition after having been tried and after having served out his sentence in the extradited State; and
(ii) whether the petitioner's husband would be deemed to have served out his period of sentence as he was extradited during the period when he was undergoing the said sentence.
8. Before commenting on the issues mooted it would be relevant to refer to certain provisions of the Extradition Act which require interpretation. Section 5(2)(f) of the said Act reads as under:- "(2) No fugitive offender shall be surrendered--
(f) if he has been accused of some offence in Pakistan, not being the offence for which his surrender is sought, or is undergoing sentence under any conviction in Pakistan, until after he has been discharged, whether by acquittal or on the expiration of his sentence or otherwise."
' Article 4 of the Extradition Treaty---Great Britain---December 22, 1932 reads as under:-- "The extradition shall not take place if the person claimed has already been tried and discharged or punished, or is still undertrial in the territories of the High Contracting Party applied to, for the crime or offence for which his extradition demanded.
' If the person claimed should be under examination or under punishment in the territories of the'
High Contracting Party applied to for any other crime or offence, his extradition shall be deferred until the conclusion of the trial and the full execution of any punishment awarded to him."
' Similar provisions exist in the other countries as well. For instance in England, law provides as under (Extradition in International Law and Practice by Dr. Satyadeva Bedi Vol. I):-- "A fugitive criminal who has been accused of some offence within England jurisdiction not being the offence for which his surrender is asked, or is undergoing sentence under any conviction in the United Kingdom, shall not be surrendered until after he has been discharged, whether by acquittal or on expiration of his sentence or otherwise."
' The Law of French contains the following provision:- "In the case where an alien is being or has been convicted in France and where his extradition is requested of the French Government because of a different offence, surrender can be affected only after the prosecution has been terminated and, in the case of conviction, after the penalty has been executed."
9. Prior to petitioner's husband's extradition to United States of America on inquiry in terms of section 7 of the Extradition Act was conducted by the Magistrate who recommended extradition.
This report was challenged in Writ Petition No,182 of 1995 in which it was prayed that prior to extradition the pending cases against him be withdrawn and the sentence be remitted which was dismissed and this Court, in para. 22, observed as under:- "There is no doubt about 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 detenu has been convicted and is presently undergoing the sentence. However, objections relate to the occasion when the detenu is to be handed over to the demanding State's representative. 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 or 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."
' Despite the afore-referred observations, the matter was left to the discretion of the Government to decide the question in accordance with law. Reliance of the learned counsel for the petitioner on a judgment of this Court reported in Zulqarnain Khan v. Government of Pakistan 1990 M LD 1611 is also of no avail as that relates to the pre-extradition stage. In that case the petitioner had been acquitted in a criminal case but on complainant's appeal the hon'ble Supreme Court had issued notice and the contention of the petitioner before the High Court was that till the said appeal is decided he should not be extradited. The petition was allowed and it was directed that until the petitioner is discharged in the said case or the appeal filed against him is dismissed or in the event of conviction he undergoes his sentence he shall not be extradited to United States of America. This judgment is not applicable because that could be pressed into service prior to the extradition and not after the extradition has taken place as this judgment does not comment on the effect of an extradition order without complying with pre-conditions stipulated in section 5(2)(f) of the Extradition Act. It does not lay down any guidance qua the relief which is being claimed by the petitioner's husband.
' In Bennett v. Horseferry Road Magistrate's Court and another (The All England Law Reports, 1993--- Volume---3), at page 138, an accused was arrested in South Africa and put on aircraft bound for England in complete violation of the procedure laid down in the domestic law for extradition of an offender. The appeal was allowed and the accused was remanded and it was held as under:-- "The maintenance of the rule of law prevailed over the public interest in the prosecution and punishment of crime where the prosecuting authority had secured the prisoner's presence within the territorial jurisdiction of the Court by forcibly abducting him or having him abducted from within the jurisdiction of some other State in violation of international law, the laws of the State from which he had been abducted and his right under the laws of that State and in disregard of available procedures to secure his lawful extradition to the jurisdiction of the Court from the State where he was residing. It was an abuse of process for a person to be forcibly brought within the jurisdiction in disregard of extradition procedures available for the return of an accused person to the United Kingdom and the High Court had power, in the exercise of its supervisory jurisdiction, to inquire into the circumstances by which a person was brought within the jurisdiction and if satisfied that it was in disregard of extradition procedures by a process to which the police, prosecuting or other executive authorities in the United Kingdom were a knowing party the Court could stay the prosecution and order the release of the accused."
' However, the American Supreme Court has taken a different view in a case of similar kind. In United States v. Alvarez-Machain (1992) 119 L Ed. 2d 441, at page 119, a Maxico citizen accused of an offence committed in United States of America was kidnapped from his home and flown by a private place to Texas where he was put on trial for the murder of a drug enforcement agent. The District Court dismissed the indictment on the ground that it violated the Extradition Treaty between the United States and Maxico and ordered repatriation of the accused. The Court of appeal affirmed this finding whereafter the Government filed an appeal and the afore-referred decisions were reversed and it was held as under:-- "Held: The fact of respondent's forcible abduction does not prohibit his trial in a United States Court for violation of this country's criminal laws.
(a) A defendant may not be prosecuted in violation of the terms of an Extradition Treaty. United States v. Rauscher, 119 US 407, 30 L Ed 425, 7 S Ct.
234. However, when a treaty has not been invoked, a Court may properly exercise jurisdiction even though the defendant's presence is procured by means of a forcible abduction. Ker v. Illinois, 119 US 436, 30 L Ed 421, 7 S Ct.
225. Thus, if the Extradition Treaty does not prohibit respondent's abduction, the rule of Ker applies and jurisdiction was proper."
' The instant case is distinguishable from the afore-referred two cases as petitioner's husband was extradited through a judicial process and was never kidnapped.
' Dr.Satyadeva Bedi refers to yet another case i,e, the case of John Volcott Forbes. In the said case Johnwolcott Forbes was facing trial in Southern District of New York and was extradited to Australia.
He sought quashment of indictment pending in the U.S.A. On the ground that he was extradited prior to termination of criminal proceedings. His request was turned down by District Court and it was observed, 'besides it seems absurd to permit the defendant to pick and choose when and where he should first be prosecuted'. (Extradition in International Law and Practice by Dr. Satyadeva Bedi, Volume I, page 262).
' He then quoted a judgment of the Supreme Court of Chile in re: Rubio ease (1962) wherein 'after careful perusal of the documents supplied by the requesting State and the relevant laws of the both countries, had granted extradition of one Jose Roberto Rubhio and Argentinion National, who was wanted by his national State for committing aggravated theft in an inhabitated place in Argentine in 1957 and who was also proceeded against in the requested State for committing the same offence in 1961. However, the Court decreed that the surrender of the accused to the Argentinion Authorities (the country of domicile) should be deferred until the termination of the legal proceedings pending against him and until he has served whatever sentence may be imposed by the Chilena Court."
10. Examining the various provisions of the Extradition Act and Article 4 of the Extradition Treaty I find that the law has conferred a discretion on the requested State to extradite the accused and adopt either of the courses stipulated in section 5(2)(f) of the Extradition Act. The expression 'discharge' has to be interpreted in its generic sense. In the 'Concise Oxford Dictionary', New Edition for 1990's, 'discharge' means 'let go, release, esp. From a duty, commitment, or period of confinement'. It also means 'exemption, acquittal etc.'. The expression 'discharge', whether by acquittal or on the expiration of sentence or otherwise has not to be interpreted in the narrow/restricted sense and dictionary meaning has to be adopted. Besides acquittal or expiration of sentence the law envisages that a person can be extradited if he is 'discharged' 'otherwise'. Rules 36 and 37 of the Pakistan Prisons Rules, 1978 make a provision for suspension of sentence and stipulate that sentence shall be deemed to be suspended until the date of surrender when it shall revive and have effect for the remaining unexpired portion of his sentence. It would be useful to reproduce both these rules which are as follows:-- "36. Suspension of sentence of prisoners surrendered to foreign jurisdiction.--When a prisoner undergoing sentence in any of the prisons in the Punjab, for a conviction in Pakistan, is surrendered to a foreign jurisdiction, his sentence shall be deemed to be suspended until the date of his surrender when it shall revive and have effect for the remaining unexpired portion of his sentence.
The sentence of a prisoner undergoing imprisonment in default of furnishing security is not to be deemed to be suspended on his surrender to be foreign jurisdiction.
37. Date of release when a period does not count towards sentence.--When a period has been excluded from a sentence under the preceding rules, the mode to be adopted in calculating the date of release is, take the full term of sentence as commencing from the date of re-admission and deduct from it the number of days already passed in prison; the date so arrived at will be the date on which the sentence expires."
In view of the afore-referred provisions, the sentence of petitioner's husband shall be deemed to have been suspended and it has to revive after his return. He has to undergo the remaining sentence and no exception can be taken to the same.
11. There is nothing in the Extradition Act or any other law to warrant an inference that just because the Government has violated a statutory provision, petitioner's husband's criminal liability should be waived and the cases pending against him should be withdrawn. Learned counsel for the petitioner has not been able to cite any precedent case-law in support of the proposition that he canvassed before this Court. In fact the precedent case-law from the foreign jurisdiction is to the contrary.
12. It may, however, be pointed out that petitioner's husband was given benefit for the period spent in Pakistani Jail. The judgment of the United States District Court Eastern District of New York vide which he was convicted while pleading guilty on two counts and was sentenced as under:-- "The defendant is hereby committed in the custody of the United States Bureau of Prisons to be imprisoned for a total term of FORTY-EIGHT (48) MONTHS ON COUNTS TWO (2) OF THE SUPERSEDING INDICTMENT (S-0. THE DEFENDANT SHOULD RECEIVE (RED) OR THE TIME SPENT IN PAKISTANI DETENTION PENDING EXTRADITION (SINCE APRIL, 1993)."
13. For foregoing reasons I do not find any merit in this petition which fails and is hereby dismissed with no order as to costs.