1. ' CH. MUHAMMAD ARIF, J.---In this petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973, leave is sought against the judgment, dated 26-6-1998 passed by a learned Single Judge of the Lahore High Court, Rawalpindi Bench dismissing petitioner Abdul Ghaffar's Writ Petition No.82 of 1998 with the result that the committal order passed by the Inquiry Magistrate as also the extradition order passed by the Federal Government were upheld and his prayer to the contrary i.e., that these orders were illegal under section 12 of the Extradition Act (No.XXI of 1972), hereinafter referred to as the Act, was declined.
2. The Constitutional Petition bearing Writ Petition No.82 of 1998 was filed by petitioner Abdul Ghaffar resident of Hayatabad, -Peshawar, a fugitive offender and detained in Central Jail, Adiala, Rawlapindi, in execution of warrants of custody and removal under section 11 of the Act. Initially, he had questioned the validity of his arrest and order of inquiry alongwith the inquiry report and committal order, dated 12-11-1997 passed by the Inquiry Magistrate and also sought his discharge from the custody in terms of section 12 of the Act. On the Government of Pakistan, in pursuance of the inquiry report, deciding to extradite the petitioner to USA through order, dated 18-4-1988, he sought to impugn order, dated 18-4-1988 also by effecting amendments in the memo. of his Writ Petition with permission of the Court His case was that the concerned Agents in USA had found him, alognwith others, as dealing in narcotics during the period. from October, 1992 to May, 1993. An indictment (warrants of arrest) of the petitioner and others was issued by the District Court, Eastern District of Virginia on 23-11-1994. As he was not apprehended then, he was treated as fugitive offender and pursuant to extradition treaty between the Government of United States of America and Pakistan, the former Government made a requisition through its Embassy in Islamabad, on 3- 12-1995, asking for his extradition from the latter Government. In exercise of the powers under sections 7 of the Act, the Government of Pakistan appointed Mr. Ahmad Yar Khan, the then Additional Deputy Commissioner (G) with the powers of . Magistrate 1st Class, as an Inquiry Officer vide order, dated 14-12-1996. Non-bailable warrants of his arrest, were issued by him on 15-12-1996 and he was taken into custody by the Federal Investigating Agency on 6-6-1997. The petitioner did obtain an interim order from the Peshawar High Court in his habeas corpus petition bearing No.1158 of 1997 on 9-6-1997 whereby his removal from the territorial jurisdiction of the Court was restrained but, ultimately, the same was dismissed and he was left thigh and dry.
3. On the transfer of Mr. Ahmad Yar Khan, ADC (G) Ms. Aetna Imran was appointed as Inquiry Magistrate on 26-6-1997. He was produced before her on 27-6-1997 and came to know that the Inquiry Magistrate had before the evidence consisting of statement of 6 Special Agents of Drug Enforcement Agency of USA, including that of Faheem Ashraf, in the form of affidavits and translation of petitioner's telephonic conversation with his partners in USA, duly verified by the Attorney-General. The afore-referred material had been sent to Pakistan alongwith the requisition letter afore-referred under the seal of the Magistrate of District Court of Virginia. The Inquiry Magistrate initiated the inquiry against the petitioner in terms of sections 8 and 9 of the Act, but, without formally tendering these documents in evidence to be read as such for the purpose of inquiry under the Act. A statement of allegations, alongwith the copies of incriminating material, was all that was put to the petitioner while examining him under section 342, Cr.P.C. He made his statement under section 342, Cr.P.C. on 24-9-1997 and the matter was postponed to 25-10-1997 for evidence of defence. Except for producing medical evidence in support of his ailment, no evidence was tendered in defence/rebuttal by him. The Inquiry Magistrate submitted his report to the Federal Government on 13-12-1997.
4. However, before scrutiny of his case could be gone ahead by the Government of Pakistan, it transpired that they were not possessed of any written statement of the petitioner before the Inquiry Magistrate. The matter was still under consideration of the Federal Government when, on 6- 1-1998, they received an information from him that he intends to file a Constitutional petition in the High Court and consequently Writ Petition No. 82 of 1998 was filed on 9-1-1998. Pending disposal of the writ petition challenging the Magisterial inquiry and the report thereto, the learned Deputy Attorney-General advised respondent No.1/Federation of Pakistan that there being no restraint order in the field, the extradition order could be issued which was in fact issued under section 11 of the Act on 18-4-1998, directing the delivery of the custody of the petitioner as fugitive offender under the warrants for custody and removal to representative of Government of USA at Islamabad for his extradition to USA for trial.
5. With regard to the challenge in the Constitutional petition, the petitioner took the following grounds:-- That there was no admissible evidence before the Inquiry. Magistrate to connect the petitioner with the offence with which he is being charged; that the evidence in the nature of documents referred to above sent with the indictment were brought on record, as such, in violation of section 9 read with section 8 (2) of the Extradition Act, 1972, which provide that the Magistrate shall enter into the case as nearly as if the case was triable by the Court of Session and the exhibits and the deposition are to be received as evidence. The same having not done, the material placed on record cannot be termed and read as evidence on the basis of which it could be said that a prima facie case was made against the petitioner and as fugitive offender, he has committed the offence mentioned in the warrants; that the Magistrate of the First Class who conducted an inquiry was not a Judicial Magistrate and, therefore, as provided in subsection (2) of section 8 of the Extradition Act, 1972, the inquiry could only be conducted by a Magistrate who is competent to try the offender if the offence would have been committed in Pakistan and was triable by such Magistrate. The challenge was that the inquiry being without jurisdiction, the committal order and the subsequent order of extradition passed by respondent No.1 have been passed without lawful authority; that the written statement of the petitioner having not been obtained in terms of section 10(b)(ii) of the Extradition Act, 1972, for consideration of the matter by the Federal Government before passing of the extradition order has caused serious prejudice to the petitioner; that the custody of the petitioner having not conveyed out of Pakistan within two months after passing of the committal order, dated 30-12-1997, the petitioner is entitled to the benefit of section 13 of the Extradition Act, 1972, but respondent No.1 has not invoked the said provisions of law in favour of the petitioner, and this Court under the provisions of section 12 of the said Act, can discharge the petitioner."
6. ' Para. 23 of the impugned judgment reads thus:-- "23. Learned counsel for the petitioner sought discharge of the petitioner under section 12 of the Extradition Act, 1972 inter alia on the following grounds:-- That the inquiry was conducted by an Executive Magistrate of 1st Class who being not competent to try the offence as provided under section 8 of the Extradition Act, 1972 had no jurisdiction to hold the inquiry.
7. That the Inquiry Magistrate was under legal duty to make a proper appraisal of evidence before him to determine, whether the case can end in conviction and if there is no such possibility, he enjoyed no power of passing committal order.
8. That the Federal Government upon receipt of the inquiry report/committal order has to form its own opinion independent to Inquiry Magistrate and before forming any opinion, the written statement must be obtained from the person required to be extradited to come to an independent conclusion about the acceptance of request of extradition.
9. ' Without discussing the above contention in detail, I may observe that the apex Court in the case of Muhammad Azim Malik (supra) after elaborate discussion on all these points answered in the negative. Therefore, the same having no force are repelled. The Inquiry Magistrate undoubtedly is required to adopt the procedure to be followed for the purpose of trial by the Sessions .Court, but it does not mean that the Inquiry Magistrate should convert himself into a trial Court and try the offence as such. Consequently, the proceedings conducted by the Inquiry Magistrate are not questionable."
6. The afore-referred points were considered by the learned Judge in Chambers in the impugned judgment. As regards the grounds challenging petitioner's extradition, it was ruled that deposition of Faheem Ashraf through his affidavit is major evidence against the petitioner. Faheem Ashraf had disclosed the activities of all the persons directly or indirectly involved in the matter and, in addition thereto his conversation with the petitioner regarding the transaction, the affidavit of John R.
10. Sherbenske, David Gona, Charllss Graham and others, all Special Agents of D.E.A., having direct knowledge confirming the above state of affairs have also been attached with indictment. This material was put to the petitioner in his statement under section 342, Cr.P.C. as an evidence against him and he, denying the correctness of allegations levelled in the affidavits, demanded all of abovesaid persons to the witness-box in affirmation of the depositions allegedly made by them through affidavits and to provide him an opportunity to cross-examine them. Much stress was laid on behalf of the petitioner on the point that without production of Faheem Ashraf in the witness- box, his affidavit could not be considered as evidence at the inquiry under section 8 of the Act and, therefore, after excluding his affidavit from consideration, ".. no evidence was left on the record to connect the petitioner with the commission of offence and consequently the committal order passed by the Inquiry Magistrate and the extradition order, dated 18-4-1998 are without lawful authority". It was ruled that 'inquiry' is different from 'trial' which is conducted to find out the existence or otherwise of a prima facie case and is not equated with a regular trial by the concerned Court to give the finding of guilt. Para. 14 of the impugned judgment reads thus:-- "14. Taking the correct view of the matter, the law does not require the production of a witness from the country in which the trial is to be held. The only requirement is that the evidence proposed to be brought against a fugitive offender should be made available to the country from where the fugitive offender is required to be sent. The disposition of Faheem Ashraf in the nature of affidavit duly recorded before the Magistrate in Virginia and certified by the Attorney-General produced before the Inquiry Magistrate sufficiently fulfilled the requirement of section 8(2) of the , Extradition Act, 1972, and the personal appearance of the witnesses before the Inquiry Magistrate was not necessary. There being clear distinction between the trial and the inquiry, the requirement of law is that the inquiry proceedings should be as nearly as possible to the procedure for the trial before the Sessions Court, but it does not mean that the inquiry should be converted into trial. The petitioner having made known about the evidence to be used against him through- the affidavits in question was at liberty to counter the same and establish that the allegations were untrue, but the petitioner without doing the needful pleaded in general terms that the witness being member of an international gang while dealing in drug trafficking and heroin business has sworn in false affidavit for some ulterior motive and extraneous reasons. The petitioner in his statement before the Inquiry Magistrate keeping himself out of the rank of the people who were involved in the drug and heroin trafficking denied the allegations and took the plea that Faheem Ashraf is a decoy witness and his evidence being not admissible, the conviction of the petitioner is out of question.
11. The answer to the question containing the plea of petitioner is reproduced hereinafter:-- ' I am innocent. I am suffering from Psychological ailment and am under treatment of Psychiatrists since long. Mr. Faheem Ashraf is a drug addict and a heroin smuggler. He has links with international heroin smugglers and export heroin to foreign countries for his personal benefits and in certain cases also acts as an agent of D.E.A. He wanted me to work for him which I refused and threatened to expose him. He has falsely involved me in this case out of malice. He is a decoy witness and under the laws of Pakistan his statement cannot form the basis of conviction.'
12. "The petitioner has not offered any explanation that in what manner and for what reason Faheem Ashraf met him and involved him in a false case."
13. ' It was further observed "...that the authenticated material brought on record by a foreign country making out a prima facie case connecting the petitioner with the commission of smuggling of narcotics and having made known to him in the inquiry in which he being represented through a counsel, who provided him necessary legal assistance did not wish to file the written statement under section 10(b)(ii)(ibid) despite specific question put to him in his statement before the Inquiry Magistrate. Consequently, the prosecution was not to be blamed. The Inquiry Magistrate was also not obliged under law to necessarily get written statement from the petitioner. It was for the person facing the inquiry to file or may not file the written statement. The provision of law on the subject is not mandatory but it gives choice to the person facing the inquiry. The non-filing of the written statement by the petitioner would not matter in either way. The expression "prima facie case" used in the legal parlance being made out without requiring the Magistrate to record the verdict of guilt is seen in the totality of the facts and material supplied with indictment of a person."
14. The learned Judge in Chambers also came to the conclusion that the charge on the basis of which Grand Jury indicted the petitioner is that he alongwith his associates and companions dealing in the transaction of trafficking the narcotics i.e. heroin and its import to USA in violation of the laws of Pakistan as well as USA and the State Treaty. The evidence in support of the charge consists of the depositions/affidavits of Faheem Ashraf and other special agents named therein, in addition to the translation of telephonic conversation between the petitioner and his other companions. "...The admissibility and the relevance of the evidence placed before the Inquiry Magistrate need not to be discussed as in an identical situation, the apex Court in Muhammad Azim Malik v. Government of Pakistan and others (PLD 1989 SC 519) while overruling such objection held that such type of evidence was admissible under section 9 of the Extradition Act, 1972".
15. It was in paras. 24 to 27 of the impugned judgment that the Constitutional petition was dismissed as below:-- "24 The plain meaning of the appraisal of evidence is the evaluation and the admissibility of incriminating material. However, at pre-trial stage something lacking in the evidence for proof of the guilt, does not ipso facto undo the effect of unrebutted major portion of the evidence establishing the prima facie case to proceed for the regular trial. Therefore, the Inquiry Magistrate without giving the verdict of conviction if comes to the conclusion that prima facie case is made out for trial, the committal order cannot be challenged. Similarly, the Federal Government upon receipt of the inquiry report and the committal order is not required to give detail reasons for passing extraditing order, but if on the basis of tentative assessment of the evidence received in the inquiry the Federal Government forms an opinion of extraditing a person, it is sufficient to pass the order.
16. "25. In view of the legal position emerged from the facts given herein and in consequence thereto, passing of the committal order by the Inquiry Magistrate and the extraditing order by the Federal Government, the technical objection being taken in support of this petition having no substance cannot be considered as valid grounds for declaring the orders as illegal under section 12 of the Extradition Act, 1972.
17. Notwithstanding the above discussion and the view of the matter taken by me, the Federal Government may, if so desired, under section 13 of the Extradition Act, 1972 at any time through change of its decision if it considers proper not to surrender the petitioner as a fugitive offender, may withdraw the order and discharge him.
18. In a nutshell; the committal order passed on the basis of the impugned inquiry under the Extradition Act, 1972 read with International Treaty between the Pakistan and USA on the basis of material scrutinized by the Inquiry Magistrate through application of judicial mind has been passed in accordance with law and is upheld as such. Consequently, the order, dated 18-4-1998 suffering from no legal or factual infirmity is maintained and this petition having no substance fails, which stands dismissed accordingly. There will be no order as to costs."
19. Mr. Abdul Baseer Qureshi, learned Advocate Supreme Court appearing in support of this petition, has taken us through the available material, and, by referring to the nature of inquiry in causes similar to that of the present petitioner, placed reliance upon Nasarullah Khan Henjra v.
20. Government of Pakistan, Ministry of Interior and Narcotics Control (Interior Division), Islamabad and 3 others (1998 SCM R 1072), Khalid Khan and another v. Government of Pakistan through Ministry of Interior and Narcotics Control, Islamabad and 3 others (PLD 1994 SC 23), Nargis Shaheen v.
21. Federation of Pakistan through Secretary Interior, Islamabad and 5 others (1994 SCM R 1706), Muhammad Azim Malik v. A.C. and S.D.M., Preedy (South), Karachi and others (PLD 1989 SC 266), Muhammad Azim Malik v. The Government of Pakistan through Secretary, Ministry of Interior and 2 others (PLD 1989 SC 469) and Muhammad Azim Malik v. Government of Pakistan and others (PLD 1989 SC 519) to contend that the present was a fit cause for reversing the orders, impugned in the writ petition, by the High Court. According to him, this Court has not approved the way in which the case of the petitioner was attended to by the respondent-authorities, including the Inquiry Magistrate as also the Government of Pakistan and that the observations in Nasarullah Khan Henjra (supra) do support his case.
22. Mr. Maulvi Anwar-ul-Haq, learned D.A.-G. has also relied upon the case Nasarullah Khan Henjra (supra), to contend that this Court has already approved the case of Nasarullah Khan Henjra (supra) to the extent of the said litigant in Nasraullah Khan Henjra v. Government of Pakistan, Ministry of Interior and Narcotics Control (Interior Division), Islamabad and 3 others (1998 SCM R 1072). He has supported the impugned judgment, dated 26-6-1998 whole hogs.
11. We have considered the arguments addressed at the bar and have also been taken through the available material by the learned counsel for the petitioner and the learned Law Officer. The resolution of the instant dispute revolves around the interaction of laws of the Pakistan, and the State Treaty/Treaty Series No.819. The learned counsel for the petitioner did not object to the afore- referred situation and, in fact, his plea was that it is discrenible from the situation obtaining in this case itself that his client was entitled to a favourable finding from all concerned. As the impugned action was gone ahead sans consideration of the pocliarities of the case by the Inquiry Officer as well as the Federal Government, they should have considered that it would be unjust, inequitable, inexpedient and unfair to extradite him to the United States of Amercia. We find that the learned Judge in Chambers was quite right in opining that the personal appearance of the witnesses before the Inquiry Magistrate was not necessary in that the material/evidence brought against the petitioner, including the deposition of Faheem Ashraf in the form of an affidavit duly recorded before the Magistrate in Virginia, USA and certified by the Attorney-General, was produced before the Inquiry Magistrate and the same was in line with the requirements of section 8(2) of the Extradition Act, 1972. The arguments against admissibility and relevance of the evidence placed before the Inquiry Magistrate were specifically and correctly repelled by observing that in an identical situation this Court had in Muhammad Azim Malik (supra) had overruled such objections and held that such evidence was admissible under section 9 of the Act. Moreover, petitioner is himself to blame in not nagating the contents of affidavit of Faheem Ashraf before the Inquiry Magistrate. He, of his own, did not submit his written statement in support of his innocence with the obvious result that the Government of Pakistan had nothing before it favouring the petitioner, to consider before passing the Extradition order. Viewed in this perspective, even the finding recorded by. the learned Judge in Chambers that the perusal of the material shows that reasonable grounds do exist to believe that the petitioner was an active associate of the gang which was dealing in trafficking in the foreign countries, cannot but be upheld. In the same category falls the observation of the learned Judge in Chambers that petitioner's plea/s that Faheem Ashraf was himself a privy to the alleged occurrence and/or crime and therefore, not a reliable witness against the petitioner in this cause. The finding that Faheem Ashraf was not an actual associate of the petitioner or even his companion but was actually performing a duty of Special Agent of D.E.A. to observe his activities, has not been controverted by the learned counsel for the petitioner. So, Faheem Ashraf's evidence was legally considered, by all concerned, as that of a witness in the cause and not as an accomplice or an approver.
23. As regards the plea of the petitioner that he was entitled to be discharged under section 12 of the Act for the reasons, (1) that the inquiry was not conducted by a competent authority under section 8 of the Act, (2) that the Inquiry Magistrate was duty bound to make a proper appraisal of the evidence before him to determine whether the case can end in conviction of the petitioner and, if there is no such possibility, he could not pass committal order and (3) that the Federal Government did not form its own independent opinion and that too without obtaining written statement from the petitioner, we suffice by observing that this Court's observations in the case of Muhammad Azim Malik (supra) are a complete answer to the above facts of the question and the same were rightly brought to bear upon the case of the petitioner before the High Court by the learned Judge in Chambers.
24. Before parting with the judgment we may observe that in para. 26 of the impugned judgment of the High Court the Federal Government has not been precluded from taking action under section 13 of the Act "..at anytime through change of its decision if it considers proper not to surrender the petitioner a fugitive offender, may withdraw the order and discharge him". However, this is not to be treated as a direction to the Government to do so in all cases.
25. With the observations contained in the immediately preceding paragraph, the instant petition is dismisised and leave refused.