AKHTAR MALIK Versus FEDERATION OF PAKISTAN

1. CH. MUSHTAQ AHMAD KHAN, J: --This judgment will dispose of four connected Writ Petition No.963 of 1993, Writ Petition No.971 of 1993 and Writ Petition No.962 of 1993, as all the said petitions involve identical questions of facts and law and arguments in all the petitions have been heard together with consent of the learned counsel appearing for the parties, and shall be read in continuation of and as a detailed part of our short order, dated 3-10-1993, whereby all the aforementioned writ petitions were dismissed.

2. Briefly stated facts giving rise to Constitution Petitions referred to above are as follows:--

2. Writ Petition No.963 of 1993:

(i) Mst. Akhtar Malik v. Federation of Pakistan and 5 others and

3. Writ Petition No.964 of 1993:

(ii) Zahar Khawaja v. Federation of Pakistan and 5 others.

4. Muhammad Saleem Malik, who is husband of Mst. Akhtar Malik petitioner, in Writ Petition No.963 of 1993 and Shahid Hafeez Khawaja, who is brother of Zahar Khawaja petitioner in Writ Petition No.964 of 1993, who are Muslim citizens of Pakistan, are required for trial by the United States Court for Eastern District and Pennsylvania in Indictment No.92-621-01 titled "United States of America v. Muhammad Salim Malik and Shahid Hafeez Khawaja under title 21 U.S.C. $963 (Conspiracy to Import Heroin--1 Count), $952(a) (Importation of Heroin--1 Count). 18 U.S.C. $ 2 Aiding and Abetting the commission of aforementioned offences. A warrant of their arrest had been issued but they were not apprehended, have been treated as fugitive offenders. In pursuance of Extradition Treaty between the Government of U.S.A. and the Government of Pakistan, a requisition has been submitted by the said Government of U.S.A. to the Government of Pakistan respondent No-1 requiring the extradition of aforementioned two accused persons. On receipt of the requisition the respondent No.l in exercise of powers under section 7 of the Extradition Act, 1972 granted sanction to hold a Magisterial inquiry into the matter and appointed Malik Tahir Sarfraz, Additional Deputy Commissioner (G.), Islamabad to hold inquiry vide Letter No.9/35/92 Ptns. dated 23-i2-1992 and alongwith sanction order forwarded the following documents duly authenticated by U.S_A. Acting Secretary of State, which were sent by the Government of United States America alongwith the requisition, as evidence in support of the prosecution.

5. Exhibit A: A certified true copy of Indictment No.92-621 of Muhammad Salim Malik and Shahid Hafeez Khawaja;

6. Exhibit B: A certified true copy of the Court order signed by United States Magistrate Judge, M. Faith Angell of the Eastern District of Pennsylvania for the issuance of warrant for arrest on Muhammad Salim Malik;

7. Exhibit C : A. certified true copy of the Court order signed by the United States Magistrate Judge, M. Faith Angell of the Eastern District of Pennsylvania for the issuance of the warrant for arrest on Shahid Hafeez Khawaja;

8. Exhibit D: A true and accurate copy of the warrant for arrest, together with certification from the Clerk of the Court that an arrest warrant has been issued for the arrest of Muhammad Salim Malik;

9. Exhibit E: A true and accurate copy of the warrant for arrest together with certification from the Clerk of the Court that an arrest warrant has been issued for the arrest of Shahid Hafeez;

10. Exhibit F: The original affidavit of Michael R. McGowan, sworn to before United States District Judge, Harvey Bartle, III of the United States District Court for the Eastern District of Pennsylvania of November, 12, 1992;

11. Exhibit G: The original affidavit of Ronald Le Blanc, sworn to before United States District Judge, Harvey Bartle, III of the United States District Court for the Eastern District of Pennsylvania on November 12, 1992;

12. Exhibit H: The original affidavit of Cristobal Martinez Paz, sworn to before United States District Judge, Harvey Bartle, III of the United States District Court for the Eastern District of Pennsylvania on November 12,1992;

13. Exhibit I: The original affidavit of Julio Nunez, sworn to before United States Magistrate Judge Donald P. Dietrich of the United States

14. District Court for the Middle District of Florida, Orlando Division, on November 10,1992;

15. Exhibit J: A black and white photograph of Muhammad Salim Malik, which has been signed and dated and identified in his affidavit by Cristobal Paz; and

16. Exhibit K: A colour photograph of Shahid Hafeez Khawaja, individual standing on the left, which has been signed and dated, and identified in their affidavit by Michael McGowan, Ronald Le Blanc and Cristobal Paz.

17. Exhibits marks are by the authorities in U.S.A. and not by the Inquiry Officer.

18. Besides other evidence referred to above.

19. An affidavit of Cristobal Martinez Paz which was sworn to and subscribed before U.S. District Judge Eastern District of Pennsylvania United States of America on November 12, 1992 has also been forwarded as an additional document by way of further incriminating evidence.

3. On receipt of the sanction order alongwith the aforementioned documents, the learned Enquiry Officer, in pursuance of warrant of arrest issued by him, Muhammad Salim Malik and Shahid Hafeez Khawaja accused were taken into custody and were detained in Central Jail Adiala, Rawalpindi. The prosecution did not formally tender in evidence the aforementioned documents which have been forwarded by respondents Nos.l and 2, to the learned Enquiry Officer alongwith the sanction order. However, a statement of allegations as contained in the above material in the shape of a typed questionnaire alongwith the copies of the incriminating material appears to have been given to the accused persons cep 7-3-1993 and the case was adjourned for recording of their statements under section 342, Cr.P.C. on 29-3 1993. On that date, however, the case was adjourned to 12-4-1993 on which date their statements under section 342, Criminal Procedure Code were recorded, wherein the documentary evidence referred to above and incriminatory material was put and confronted to them, who denied the allegations, pleaded innocence and opted to produce defence evidence. The case was adjourned to 14-4-1993 on which date the learned defence counsel was directed to file reply on behalf of the accused persons who if so like may produce evidence in their defence. Written reply was filed on 28-4-1993. No evidence in defence was produced by the accused persons nor did they appear or opted to appear as their own witnesses as per provisions of section 340(2), Cr.P.C. The case was adjourned for arguments and for filing of copies of the judgments, which were filed on 10-5-1993. After taking into consideration the whole material on record, the statements made by the accused persons under section 342, Cr.P.C. the written reply filed by them and going through the judgments cited at the bar, the learned Enquiry Officer submitted positive report to the respondents on 18-7-1993, who called for the accused to submit their written statement in terms of section 10 of the Extradition Act, 1972 and after taking into consideration the whole; material, the report of the Inquiry officer and the written statement submitted by the accused persons vide order, dated 29-8-1993, directed the extradition of the accused to the United States of America to face trial in case registered against them. Warrants for their removal were also issued.

(iii) Writ Petition No.971 of 1993 Misal Khan v. Federation of Pakistan and others.

20. Misal Khan petitioner alongwith Shakir Khan Afridi, are required to be tried by the Court of United States, District Court, Southern District of New York in Indictment No.92 Criminal under title 21 U.S.C. $812, 841(a)(1), 841(b)(1), 846, 952(a), 960(b)(1)(A) and 963 titled "United States of America v. Shakir Afridi, Misal Khan and Hidayat Ullah a/k/a "Haji", a/k/a "Asif Khan", on the allegation of conspiracy to distribute and to import heroin into the United States of America. Warrants of their arrest were issued and as they could not be apprehended have been treated as fugitive offenders by Government of United States of America. In pursuance of Extradition Treaty between Pakistan and United States of America a requisition to respondent No.l has been made under section 6 of the Extradition Act, 1972 through the diplomatic channel, seeking extradition of Misal Khan and Shakir Khan Afridi accused vide sanction order dated 9-12-1992 holding of "Magisterial Enquiry" was ordered by respondent No.l. Malik Tahir Sarfraz A.D.C.(G.) Islamabad was appointed as Enquiry Officer. Alongwith the Sanction Order besides other relevant papers the following authenticated documents were forwarded to the learned Enquiry Officer as evidence in support of the prosecution case:--

21. Exhibit A : A certified copy of the Indictment Criminal No.92 CRIM 738 entitled United States v. Shakir Afridi, Misal Khan and Hidayat Ullah, a/k/a "Haji" a/k/a "Asif Khan", filed in the Southern District of New York on September 3 of 1992.

22. Exhibit B: Duplicate original warrants for arrest of Shakir Afridi and Misal Khan, each signed by United States Magistrate Judge Barbara A. Lee on October 5,1992.

23. Exhibit C: The original affidavit with statement of Ayyaz Baluch executed on September 28, 1992 at the United States Embassy in Islamabad, Pakistan.

24. Exhibit D. The original affidavit with statement of Robin Waugh, executed on October 2, 1992 before United States Magistrate Judge Sharon E. Grubin of the Southern District of New York.

25. Exhibits marks are by U.S.A. Authorities and not by the Inquiry Officer. On receipt of the Sanction order and the material was referred to above, the learned Enquiry Officer issued warrants of arrest, took Misal Khan accused into custody and detained him in Adiala Jail, Rawalpindi. On 12-4-1993, copies of the documents referred to above alongwith a questionnaire containing full description of incriminating material to be used against him, appear to have been handed over to the accused and the case was adjourned to get his statement recorded under section 342, Cr.P.C. on 19-4-1993 on which date his statement under section 342, Cr.P.C. was recorded and he was allowed to file a written reply and lead evidence in defence on 28-4-1993. In his statement under section 342, Cr.P.C., the petitioner was confronted with the incriminatory documentary evidence appended with the record, though not formally tendered in evidence, who denied the incriminatory allegations levelled therein and opted to lead defence evidence. On 28-4-1993 written reply was filed by the petitioner. He did not produce or requested for producing any defence evidence nor did he appear as his own witness under section 340(2), Cr.P.C. Case was adjourned for arguments and filing of copies of various judgments. The copies of the judgments, were filed by the learned counsel for the petitioner on 10-5-1993 and inquiry report was submitted by the learned Enquiry Officer to the respondent No.l on 6-7-1993, recommending the extradition of the petitioner. On receipt of the report, written statement was called from the petitioner who filed it and after taking into consideration the whole material on the record including the inquiry report as well as written statement filed by the petitioners, order of extradition was passed against the petitioner. Warrant of his removal was also issued oh 29-8-1993.

(iv) Writ Petition No.962 of 1993 Messrs Khalid Khan etc. v. Government of Pakistan.

26. Messrs Khalid Khan and Taviz Khan petitioners before this Court are required to be tried by the United States District Court for the District of Maryland in case Indictment Criminal No.K-92-096 titled "United States of America v. Ghulam Muhammad, Umer Khan, Khalid Khan, Taviz Khan, Mahmood Ali a/k/a Muhammad Ali Shah, Syed Abbas a/k/a Qasim and Fayaz Anjum a/k/a Fayed Shaheen, on the basis of allegation of Conspiracy to import Heroin into United States under title 21 U.S.C. $963; Importation of heroin title 21 U.S.C. $ 952(a); Conspiracy to Distribute and possess with Intent to Distribute heroin title 21 U.S.C. $ 846; Distribution of Heroin, title 21 U.S.C. $ 841(a) and Aiding and Abetting, title 18 U.S.C. $ 2. Warrants of their arrest were issued by the Court concerned but they could not be apprehended, hence were treated fugitive offenders, and as they are citizens of Pakistan, a requisition seeking their extradition has been submitted by the Government of United States of America through their Diplomatic Channel to the respondent No.l. After taking into consideration the documents submitted alongwith the requisition request for extradition which documents have been duly authenticated by competent authorities in U.S.A., the respondent No.l granted sanction for holding of "Magisterial Inquiry", vide order, dated 31-11-1992 and in this behalf Malik Tahir Sarfraz A.D.C.(G.) Islamabad was appointed as Enquiry Officer. The Indictment and the other documents which constitute evidence against the petitioner and had been appended with the requisition for extradition, were forwarded to the Enquiry Officer. Documents referred to above are detailed as under:--

27. Exhibit A: A certified true copy of the Indictment Criminal No.K-92-096 entitled United Stated v. Ghulam Muhammad, Umer, Khalid Khan, Taviz Khan, Muhammad Ali a/k/a Muhammad Ali Shah, Syed Abbas a/k/a Oasim, Fayaz Anjum a/k/a Fayed Shaheen.

28. Exhibit B: Certified true copies of the order that a Bench Warrant be issued and certified true copies of the warrant for arrest against Khalid Khan and Taviz Khan;

29. Exhibit C: A certified true copy of a Superseding Indictment Criminal No.K-92-096, entitled United States v. Ghulam Muhammad, Umer Khan, Khalid Khan, Taviz Khan, Mahmood Ali a/k/a Muhammad Ali Shah, Syed Abbas a/k/a Qasim Fayaz Anjum a/k/a Fayed Shaheen, Javid Hanif, Noor Ahmad;

30. Exhibit D: Extracts from title 18 United States Code, Section 2, title 18 United States Code, Section 3282, Title 21 United States Code, Section 841, Title 21 United States Code, Section 846, Title 21 United States Code, Section 952 Title 21 United States Code, Section 960 and title 21 United States Code, Section 963; and

31. Exhibit E: The original affidavit, with annexed exhibits, of Dennis Bass.

32. Exhibits marks are by the Authorities in U.S.A. and not by the Inquiry Officer.

33. Learned Enquiry Officer issued process, took the accused persons into custody and detained them in Adiala Jail, Rawalpindi. On the first date of hearing copies of the statement/material to be used against the accused persons alongwith a questionnaire was supplied to the petitioners and the case was fixed for evidence on 3-1-1993. On that date no formal and further evidence was produced by either of the parties and the case was adjourned to 23-1-1993 on which date learned counsel for the accused, namely Khawaja Haras Ahmad, Advocate raised an objection that the enquiry proceedings shall have to take place in accord with the old procedure and, therefore, the prosecution should be asked to produce witnesses so that the accused persons could cross-examine them. Plea of the public prosecutor, was that besides, the documents which are already on the record and are per se admissible evidence in the case, no other evidence is to be produced by the prosecution. Consequently the case was adjourned for recording of statement of both the accused persons under section 342, Cr.P.C. Their statement was recorded on 26-1-1993 and the case was adjourned for filing of reply by the accused on the next date of hearing:

34. The accused persons submitted their reply and also produced in evidence documents Exh.D.l to Exh.D.17 on 12-4-1993, in order to show that in united States of America discriminatory treatment is meted out to the citizens of other countries particularly the Pakistani Muslims, during the trial by the Courts of that country. In their statement recorded under section 342, Cr.P.C. both the accused denied allegations confronted to them on the basis of documentary material, which had been placed on the record by the prosecution side. They pleaded innocence and opted to lead evidence in defence. Reply was fled by the petitioners, on 21-4-1993 and the arguments were concluded on the same day. Report was submitted on 7-7-1993, wherein extradition of the petitioners, was recommended by the learned Enquiry Officer. The petitioners were called upon to file written statement by respondent No.l which was filed, and after taking into consideration the whole material and inquiry report submitted by the Enquiry Officer, vide order dated 29-8-1993 the petitioners were ordered to be extradited and warrants of their removal were issued in pursuance of the said order.

35. All the aforementioned Constitutional petitions have been filed to challenge the legality and vires of the Inquiry Proceedings, orders of extradition passed by the respondents and the warrants of removal of the accused issued thereunder.

4. Mr. Abdul Baseer Qureshi, Advocate has appeared on behalf of the petitioners in Writ Petitions Nos.963, 964 and 971 of 1993. Kh. Hams Ahmad, Advocate has appeared on behalf of Khalid Ahmad Khan and Taviz Khan petitioners in Writ Petition No.962 of 1993. Mr. Mumtaz Ali Mirza, learned Deputy Attorney-General of Pakistan and Mansoor Ahmad, Standing Counsel for the Federal Government have appeared for the respondents. Messrs Aftab Mehmood, Deputy Secretary and Muhammad Irfan Section Officer, Ministry of Interior, Government of Pakistan, Islamabad have appeared alongwith original record pertaining to the whole extradition proceedings.

5. Mr. Abdul Baseer Qureshi, Advocate, learned counsel for the petitioners has raised the following contentions:--

(1) That the Extradition Act, 1972 is ultra vires of the Constitution of Islamic Republic of Pakistan, 1973 inasmuch as said enactment is a law which places embargo on the rights of citizens of Pakistan IQ remain in Pakistan which is a fundamental right conferred upon them under Article 15 of the Constitution of Islamic Republic of Pakistan (1973) and, therefore, the said Act being inconsistent with the Fundamental Rights guaranteed by Article 15 of the Constitution, is ultra vires and, hence, is void ab initio and as such proceedings taken by the respondents under the said enactment are also void.

(2) That the inquiry proceedings were not conducted in accord with section 8 of the Extradition Act inasmuch as neither any charge was framed nor evidence was recorded nor the incriminatory evidence on the basis whereof the accused persons are sought to be extradited was put to the accused person portionwise, hence, the total inquiry proceedings are vitiated in law and the order of extradition passed on the basis thereof is nullity.

(3) As per provisions of section 12 of the Extradition Act read with Article 11 of the Extradition Treaty, the order of extradition could only have been passed within two months w.e.f. the date of committal and as admittedly in these cases the order of extradition has been passed much beyond a period of two months w.e. date of committal the impugned extradition order and hence the consequential warrant of removal are without a lawful authority.

6. Elaborating his arguments porintwise, learned counsel has taken us through the provisions of Article 8, Article 15 of the Constitution of Islamic Republic of Pakistan and also the provision of Article 11 of the Constitution of Islamic Republic of Pakistan, 1956, Article 13 of the Constitution of Islamic Republic of Pakistan, 1962, Article 19 of the Indian Constitution and 14th Amendment in the American Constitution and has pointed out that there is a marked departure made in the provisions of Article 15 of 1973 Constitution where an uncontrolable right to remain in Pakistan has been granted to citizens of Pakistan, whereas the other rights namely right to reside in Pakistan, right to settle in Pakistan and right to move in various parts of Pakistan has been made subject to the imposition of reasonable restrictions which may be imposed by the law. Therefore, the provisions of Extradition Act which amount to imposition of restrictions, on the rights of citizen to remain in Pakistan is ultra vires of Article 15, hence, being inconsistent with :he fundamental right referred to above, is void as per provisions of Article 8 of the Constitution. By way of supplement to the above arguments, learned counsel has contended that even if it is assumed for the sake of arguments that the provisions of Extradition Act, 1972 are intra vires of the Constitution, yet it is not always necessary for the Government to direct extradition of a citizen even if a request is received by a treaty country, and there being discretion, the record shall have to demonstrate that the Government was conscious of its discretionary powers while passing order of extradition. In support of his contentions referred to above, learned counsel has referred to commentary at page 261 of a book "An Introduction to International Lave" by GJ. Stock, 4th Edition, and, certain portions of the commentary from wrandon International Law" particularly the following portion at page 114 of the book, which reads as under:--

36. .Rules of International Law should not be inconsistent with the British statutes." and has contended that International Law if inconsistent with the municipal laws is not to be followed for passing of an order against the State subject. It may be mentioned here that the above observations of the Author are- in regard to the rules of customary International Law and not the specific treaties which have been entered into between the two States and are governed by the terms thereof. Learned counsel has also referred to the following cases in support of his contentions:--

(1) Queen v. Wilson (1878) 1 QB 4Z

(2) Re: Guerim (1888) 58 LJMC 42.

(3) In re: Castioni (1890)1 QB 149.

(4) Kosseke Chatko and others v. Attorney-General (1932 A.C. 78 (Privy Council), for Trinded.

(5) Re Kol CZY NSKI and others 1955 All E.R. 31(Q.B.D.).

(6) R Versus Governor of Brixton Prison (1962) 3 All E.R. 747. in some of which cases orders of extraditions were set aside by the Courts for want of evidence and in others, the Government refused to extradite its citizens in exercise of the discretion for the reasons that the real object of securing of extradition of the accused was found to be politically motivated. Placing reliance on the, case-law referred to above, learned counsel has contended that the accused persdas in these cases also are being requested for being extradited for political considerations and there is absolutely no evidence against them on the basis whereof it could be said that prima facie case has been made out against them. But Government of Pakistan while passing of the impugned orders was not even conscious of the fact that there is no evidence of prima facie case against the accused and that the respondents have discretionary powers according to which Government can even refuse extradition under the International Law, hence according to the learned counsel the impugned orders are illegal and without a lawful authority.

7. Elaborating his arguments in relation to the irregularities/illegalities and omissions committed during the course of Enquiry Proceedings by the learned Inquiry Officer, learned counsel has taken us through the provisions of section 8 of the Extradition Act, 1972 and Article 9 of the Extradition Treaty, and has argued that in order to hold inquiry against the accused, it is necessary that the accused person should be fugitive offender, and that the inquiry is to be conducted as nearly as possible in accord with trial of a case triable by a Court of Session, which requires framing of charge, recording of evidence, giving of opportunity of cross-examination to the accused persons, handing over copies of material to be used against him, recording his statement under section 342, Cr.P.C. and confronting him with nil material evidence to be used against him and to give him full opportunity to produce defence including an opportunity to get his statement recorded under section 340(2), Cr.P.C. but in the case in hand, these requirements have not been fulfilled. It is contended that the prosecution has failed to lead any evidence in the case and the documents which have been relied upon by the learned Enquiry Officer cannot constitute "evidence" in the case inasmuch as they being appended to the requisition for extradition and the sanction order per se could not have bee used as evidence against the accused persons without independent proof and portionwise confrontation thereof to the accused which has not been done v this case. Hence the material used by the respondents as a basis for passing o the impugned order is inadmissible as "evidence". Learned counsel has taken u through the statement of the accused recorded under section 342, Cr.P.C. and has pointed out that the evidence has not been put to the accused person portionwise and specifically, hence there is absolutely nothing on the record of the basis whereof it could be said that prima facie case is made out against the accused persons warranting the passing of an order of their extradition. It i: further contended that the accused persons were not given an opportunity to get their statements recorded under section 340(2), Cr.P.C. which was then statutory right, therefore, whole enquiry proceedings stand vitiated in law Learned counsel has placed reliance on case of Makkhan and others v Emperor A I R 1945 All. 81 wherein it has been held that non-framing o charge against the accused is fatal to the trial and the irregularity is not curable under section 537, Cr.P.C. Learned counsel has further placed reliance on case of Faqir Hussain v. The State P L D 1985 Lah. 434 wherein it has been helc that failure to examine accused under section 340(2), Cr.P.C. is not curable and is fatal to trial, therefore, whole proceeding conducted against the accused persons stand vitiated. Learned counsel has further placed reliance on cases of Din Muhammad v. Crown 1969 S C M R 777, Abdus Salam Molla v. The Crown P L D 1955 FC 129 and Aminul Haque v. Crown P L D 1952 FC 63 for the proposition that incriminating evidence against the accused should be confronted to him in his statement under section 342, Cr.P.C. and if not done such evidence/material cannot be used as evidence against him in a trial, Learned counsel has pointed out that in all these cases due to this defect the accused persons had been acquitted. Hence according to the learned counsel the impugned proceedings and the order is a nullity in the eyes of law.

7. Elaborating his arguments regarding the effect of failure of the respondents to complete the extradition proceedings within a period of two months w.e.f. the date of committal referring to Articles 1202 Halsbury's Laws of England at page 579 section 12 of the Act and Article 11 of the Treaty, learned counsel contends that maximum period having expired, the extradition order thereafter could not have been passed. He has taken us through the above-mentioned provisions of the Act and the Treaty which are reproduced as under:--

37. Section 12. "If a fugitive offender who, in pursuance of this Act, has been taken into custody to await his surrender is not conveyed out of Pakistan within two months after such committal, the High Court, upon application made to it by or on behalf of the fugitive offender and upon proof that reasonable notice of the intention to make such application has been given to the Federal Government, may order such prisoner to be discharged unless sufficient case is shown to the contrary."

38. Article 11 of the Treatv:

39. "If sufficient evidence for the extradition be not produced within two months from the date of the apprehension of the fugitive or within such further time as the High Contracting Party applied to or the proper Tribunal of such High Contracting Party, shall direct, the fugitive shall be set at liberty."

40. In support of the contention, learned counsel has placed reliance on case of Muhammad Azim Malik v. Government of Pakistan and others P L D 1989 SC 519, wherein this argument was not accepted by their Lordships of the Honourable Supreme Court of Pakistan but in that case the relevant initial date pleaded was the date of arrest and not the date of committal as in the cases in hand. Hence, according to the learned counsel as the order of extradition is passed after the expiry of two months w.e.f. the date of committal, the provisions of section 12 of the Ad being mandatory, the accused are entitled to be discharged by this Court.

8. Regarding maintainability of the writ petition, learned counsel has placed reliance on cases Regina v. Governor of Brixton Prison (1955) 1 QB 540 and Kosseke Chatko and others v. Attorney-General 1932 AC 78 (Privy Council) and has contended that findings of fact recorded by the Magistrate during the course of extradition proceedings are subject to judicial review, therefore, the impugned proceedings and the order being illegal and without lawful authority, are liable to be struck down in exercise of Constitutional jurisdiction of this Court.

9. Khawaja Haras Ahmad, Advocate, learned counsel for the petitioners in Writ Petition No.962 of 1993 has raised the following contentions:--

(1) That the provisions of Extradition Act provide for "to" forced extradition of a citizen of Pakistan hence, are violative of the provisions of Article 15 of the Constitution of Islamic Republic of Pakistan, 1973 and, are void as per provisions of Article 8 of the Constitution.

(2) That the mode envisaged for holding of the enquiry under the provisions of Extradition Act, 1972 is violative of the provisions of Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan, 1973, inasmuch as the fugitive offenders are being given different treatment in matter of holding of inquiry.

(3) That the mode of enquiry as adopted by the learned Enquiry Officer particularly as it relates to the recording of statement of the petitioner under section 342, Cr.P.C. is not in accord with the said provisions and, hence, whole proceedings stand vitiated in law inasmuch as no evidence has been recorded hence there was no material to be confronted to the accused persons in the said statement.

(4) That after amendment of the Constitution of Islamic Republic of Pakistan, 1973, Article 2-A having made the Objectives Resolution as substantive part of the Constitution, Islamisation of the laws in Pakistan has taken place and, hence, by virtue of provisions of Article 29 of the Prohibition (Enforcement of Hudood) Ordinance, 1979, which makes the Ordinance to have overriding effect, the Court who can try the petitioner is a Court constituted under the aforementioned Ordinance and not a Court of Foreign Country, hence, the petitioners cannot be extradited to be tried for the commission of an offence in a foreign country which are also cognizable and triable offences in Pakistan.

(5) That the material placed on record from the prosecution side on the basis whereof inquiry report has been submitted and the impugned order has been passed, being not "evidence" stricto senso, it cannot be said that there is prima facie case against the petitioners and the inquiry proceedings as well as the impugned order is without a lawful authority.

(6) That as per title 21 of the U.S.C. 959, the petitioner can only be tried in U.S.A. at the point of place and time where and when he physically enters into United States of America or by the Court within whose jurisdiction the offence is said to have been committed. In the case in hand the offence is said to have been committed within the territorial limits of District Court of Kolambia but the indictment on the basis whereof extradition of the petitioner is being sought has been filed in the District Court of Maryland which Court has no jurisdiction in the matter, therefore, the whole proceedings are illegal and without a lawful authority.

(7) That the petitioners have lead sufficient evidence Exhs.D.l to D.17 to prove that the petitioners shall be given a discriminatory treatment by the trial Court on the basis of race and religion as being Muslim citizens of Pakistan and they will be at the mercy of Government and the people of U.S.A. while facing trial. Hence extradition of the petitioners is violative of the provisions of section 5(2-G) of the Extradition Act and Injunctions of Islam.

10. Elaborating his pointwise arguments learned counsel has referred to the provision of Articles 8 and 15 of the Constitution of Islamic Republic of Pakistan and has almost repeated the arguments addressed by Mr. Baseer Qureshi, Advocate, learned counsel for the petitioner in other cases. It is contended that Article 15 confers upon a citizen of Pakistan four fundamental rights:--

(i) Right to remain in Pakistan;

(ii) Right to enter in Pakistan;

(iii) Right to move freely in whole of Pakistan;

(iv) Right to reside and settle everywhere in Pakistan.

41. It is contended that right to remain in Pakistan has been guaranteed to be without any restriction: Learned counsel has referred to case of Nargas Shaheen v. Federation of Pakistan P L D 1993 Lah. 732 and has pointed out that a Full Bench of this Court has already held that the right to remain in Pakistan conferred upon a citizen is without any rider. As a supplement to his argument in this behalf, learned counsel has further contended that Extradition Treaty between the Government of Pakistan and the United States of America is inconflict with the provisions, of the Constitution inasmuch as according to the said treaty the Government of Pakistan is committed to surrender a citizen who is fugitive at law but under Article 15 of the Constitution he has a right 1,Q remain in Pakistan, therefore, there being conflict between the Constitution and the treaty entered into under the International Laws, it is the Constitution which shall prevail and, hence, in such a situation, the subject cannot be held liable to be removed out of Pakistan. In support of his arguments, learned counsel has placed reliance on Book named as "International Law of Treaty" by Oppenheim 1970 Edition, Vol.l, page 924, Article 520 whereof which is reproduced as under:-- ,

42. Art. 5.20. "The binding force of a treaty concerns in principle the contracting States only and not their subjects. As International Law is primarily a law between States only and exclusively, treaties can normally have effect upon States only. This rule can, as has been pointed out by the permanent Court of International Justice, be altered by the express or implied terms of the treaty, in which case its provisions become self executory." ,

43. In the opinion of the Author referred to above, subject is not bound by a treaty between the two States if he has overriding rights under the Municipal Laws except in those cases where exceptions are provided in the treaty itself. Learned counsel has further referred to a Book "Extradition in International Law and Practice" by Dr. Bedi wherein at page 179 it is written as under:--

44. "The nationality of an accused may not be invoked for refusing extradition except where Constitutional provision establishes." and has contended that it is the principle of common English Law which are applicable in Pakistan as well, and as per those principles, Statutory Laws of the Country are to override the International Law. Learned counsel has further referred to Holy Qur'an, Surah Maidah, Verses Nos.48 and 49, which are reproduced as under:--

45. Translation Verse 48 of Al-Maidah.

46. "And unto thee have We revealed the scripture with the truth, confirming whatever secripute was before it, and a watcher over it. So, Judge between them by that which Allah hath revealed, and follow not their desires away from the truth which hath come unto thee. For each We have appointed a divine law and a traced out way. Had Allah willed, He could have made you one community. But that He may try you by that which He hath given you (He hath made you as ye are). So vie one with another in good works. Unto Allah ye will all return, and He will then inform you of that wherein ye differ."

47. Verse 49. So judge between them by that which Allah hath revealed, and follow not their desires but beware of them lest they seduce thee from some part of that which Allah hath revealed unto thee. And if they turn away, then know that Allah's will is to smite them for some sin of theirs. Lo! many of mankind are evil-livers." and has contended that in the above injunctions of Quran, it has been laid down that each sect is to be governed and tried according to its own Laws, and, therefore, if the petitioners are extradited to U.S.A. they will be tried by the Laws which are applicable to non-Muslims. Hence; the provisions of impugned proceedings taken and order passed thereunder which wall result in handing over of a Muslim citizen of a Muslim State for being tried under the Laws of a Non-Muslim Country, being against the Quranic Injunctions are liable to be struck down in Constitutional jurisdiction of this Court as per provisions of Article 2-A of the Constitution of Islamic Republic of Pakistan, 1973.

11. Elaborating his arguments, regarding inquiry proceedings learned counsel has contended that the inquiry is to be held in accord with section 8 of the Extradition Act read with Article 9 of the Treaty which are reproduced as under:--

48. Section 8 of Extradition Act. 1972.

(1) On receipt of as 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 on behalf of the fugitive offender, including any evidence to show that the offence of which the fugitive offender is accused or alleged to have been convicted is an offence of a political character or is not an extradition offence."

49. Article 9 of Treaty:

50. "The extradition shall take place only if the evidence be found sufficient according to the Laws of the High Contracting Party applied to, either to justify the committal of the prisoner for trial, in case the crime or offence had been committed in the territory of such High Contracting Party or to prove that the prisoner is the identical person convicted by the Courts of the High Contracting. Party who makes the requisition and that the crime or offence of which he has been convicted is one in respect of which extradition could at the time of such conviction, have been granted by the High Contracting Party applied to."

51. It is contended that the above provisions clearly show that standard of inquiry has to be equal to the standard of holding of commitment proceedings in a case triable by a Sessions Court, which require framing of charge, distribution of copies of the statement of the witnesses to the accused persons, affording an opportunity to cross-examine the witnesses, recording of evidence under section 342, Cr.P.C. and giving full opportunity to lead defence evidence. According to the learned counsel in the case in hand, the prosecution having led no evidence, it cannot be said that the learned Enquiry Officer had followed the procedure prescribed for commitment proceedings, and, therefore, the whole inquiry proceedings stand vitiated in law. Learned counsel has taken us through the provisions of old Criminal Procedure Code which dealt with the holding of the commitment proceedings and has contended that said procedure having admittedly not been followed the impugned inquiry proceedings as well as the impugned order is illegal and without a lawful authority. Learned counsel contends that even the material placed on the record cannot be equated with "evidence". The affidavits, which have been relied upon by the learned Enquiry Officer as incriminating evidence against the accused is neither evidence nor are admissible as evidence against the petitioners, having not been proved by direct evidence, therefore, the impugned proceedings as well as the order being absolutely without any lawful basis and material, is illegal and is without a lawful authority. In support of his contentions learned counsel has placed reliance on the following cases:--

52. R. v. Governor of Brixton Prison 1962 All E.R. 747 O.B.D.

53. In this case in absence of authenticated copies of the original accounts book it was held that there is no admissible evidence to hold that there is a prima facie case directing extradition of a person and hence the accused was released in exercise of the habeas corpus powers of the Court.

54. Re: Moral v. Mehmet 1962 All E.R. 63

55. In this case, it was held that a Magistrate is bound to look for probable evidence regarding the commission of offence while recommending extradition and in case such probable evidence is not forthcoming, extradition cannot be recommended.

56. R. v. Governor (1979) 2 All E.R. 1094

57. Evidence recorded by requisitioning country was relied upon by the Magistrate for recommending extradition which evidence had not been recorded in accordance with rules of evidence prevailing in the said country. It was held that such evidence is not admissible against the accused person and as such on the basis thereof order of extradition could not have been passed.

12. Elaborating his argument regarding objection of territorial jurisdiction, learned counsel has contended that the requisition has been submitted by the Government of United States of America on the basis of indictment filed in the Court of Maryland whereas the offences are alleged to have been committed within the territorial limits of District Courts of Columbia, therefore, the petitioners cannot be extradited under the provisions of title 21 of U.S.C. Section 959 for trial in the said Court. Learned counsel has placed reliance in this behalf on case of Nasarullah Khan Hunjra v. Government of Pakistan 1993 P Cr. L J 1092 at page 1097 in which objection was overruled although on different facts.

12. In reply to the arguments addressed by the learned counsel for the petitioners, Mr. Mumtaz Ali Mirza, learned Deputy Attorney-General of Pakistan and Mr. Manzoor Ahmad, learned Standing Counsel for the respondents, have raised the following contentions:--

(1) That Extradition Act, 1972 is a perfectly valid piece of Legislation and is not at all violative of Article 8 of the Constitution or the right conferred by Article 15 thereof, as is apparent from the language of Article 15 of the Constitution, the right conferred thereby is not an absolute or unqualified right but is subject to reasonable restrictions imposed by law in the public interest. Pakistan is a part of community of nations and a member of the International Family. Extradition Act, 1972 was enacted so as to enable the Government of Pakistan to discharge its obligations arising out of the Treaty with other nations. Drug trafficking is a menace which is looming large throughout the world. The very existence of humanity is at stake. It was with a view to combating this menace and to enable the Government of Pakistan to effectively contribute its share towards that end that the Extradition Act, 1972 was enacted. Reliance in support of submission is placed on the following cases:--

58. Zulqarnain Khan alias Zulfiqar Ali Khan v. The Government of Pakistan, through the Secretary, Ministry of Interior, Islamabad and 2 others 1990 M L D 1611.

59. Syed Abul Aala Maududi v. The State Bank of Pakistan and another P L D 1969 Lah. 908 at page 924.

60. Nargis Shaheen v. Federation of Pakistan P L D 1993 Lah. 732.

(2) That the contention of the accused that they were discriminated against and that the orders passed against them offend against the provisions of Articles 4 and 25 of the Constitution is misconceived. A perusal of section 8(2) of the Extradition Act, 1972 would indicate that with regard to the recording of evidence in the inquiry, the words used are "and shall take such evidence as may be produced in support of the requisition". The words, "shall" and "may" have been used in different connotations and for indicating the duties of the Enquiry Officer and the discretion of the prosecution in the matter of producing evidence. The use of the word "shall" would indicate that if produced, the Enquiry Officer shall record the evidence meaning thereby that he has no discretion to refuse to record the evidence, if produced. As against this, the word "may" has been used for the evidence to be produced in support of the requisition, meaning thereby that the word "may" vests the prosecution with a discretion to produce or not to produce evidence in a given case, depending upon the facts and circumstances of the case. As far instance, where the evidence to connect the fugitive offender with the crime is already on the record as was the case in hand, the charge documents including the indictment, the affidavits of the trial Attorneys, official certificates authenticating the aforesaid documents as also the photographs of the petitioners and their warrants of arrest issued by the Courts of competent jurisdiction being already on record, hence, no further evidence was required to be produced by the prosecution. In view of the law laid down in P L D 1989 Lah. page 279, the said documents were held not only to be admissible in evidence but also as constituting a valid piece of evidence to prima facie connect the fugitive offender with the crime. In the earlier cases of extradition, the prosecution exercised its discretion within the meanings of section 8(2) of the Extradition Ad, 1972, to produce oral evidence besides the documentary evidence. In these cases, the prosecution exercising its discretion decided not to lead oral evidence. No exception can be taken to this mode because it caused no prejudice to the accused. The evidence which could have been formally tendered in evidence was informally handed over to the accused thereby putting them on notice as to the allegations against them stemming from the charge documents. The accused knew fully well the case set up against them through the said documents. There was no element of either surprise or discrimination. In support of the proposition that the leading of evidence was discretionary, reliance is placed on Harihar Chaturbhai Patel v. The Union of India and others A I R 1963 Gujrat 330 at page 336.

(3) That the key words used in section 8(2) of Extradition Act in regard to the manner of holding inquiry "by" the Enquiry Officer are "as early as may be, as if the case were one triable by a Court of Session". The words by no stretch of argument can make the Enquiry Officer a Sessions Court nor the inquiry equal to trial. The words only mean that as far as possible he may adopt the procedure of a Sessions Court. The position can be explained with reference to various other laws providing for the creation of various tribunals and the procedure to be followed by them. In various election laws, election tribunals are set up and it is provided therein that they shall have all the powers of a Civil Court, and the election petition shall be tried as nearly as trial of a civil suit. This, however, does not and cannot mean that the said election Tribunals are Civil Courts in letter and spirits, and are bound to try the petition as a civil suit.

(4) That the charge documents included the affidavits sworn on oath before the competent forum. These affidavits embodied the whole series of allegations/summary of the facts of their cases. The copies of these affidavits and other charge documents were handed over to the accused/petitioner and they were made aware of the whole case they were supposed to meet. In the very first reply to question No.l under section 342, Cr.P.C., the accused admitted that the charge documents inclusive of the aforesaid affidavits were provided to them. The purpose of the inquiry was only to find out as to whether there was a prima facie case against the accused for directing their trial and not that as to whether they could be convicted or not. Therefore, inquiry has been held in accordance with law. Reliance is placed on the case of "Muhammad Azim"supra.

(5) That the argument based upon Article 29 of the Hudood Ordinance, 1979 is not available to the petitioners. If an accused is to be tried for an offence under Hudood Ordinance no other Court shall have jurisdiction in Pakistan except the one provided for under the Ordinance. The accused are to be tried out of Pakistan for an offence under the Laws of the requesting country. Section 5(1) also furnish an answer to the contention raised which says that a fugitive offender shall be liable to be surrender whether or not a Court in Pakistan has jurisdiction to try that offence.

(6) That the objection based on section 959 of title 21 of U.S.C. can be raised by the petitioners at the time of their trial and the jurisdiction of the Court trying them questioned. The objection is premature. Needless to say, that the contention is relatable to the trial.

(7) That no positive evidence has been led to show bias of the U.S. Courts against the foreigners. The material placed on the record does not constitute evidence. As held in 1990 M L D 1611, the objection is premature.

(8) That the arguments that the petitioners being Muslims cannot be handed over to non-Muslims for being tried by them is against the law laid down in case of "Nargis Shaheen" supra special reference can be made to International Treaty of Hudeybiyah whereunder the Holy Prophet (P.B.U.H.) whose action and teachings are binding on all Muslims. Viewed in this perspective, neither the Treaty nor the Extradition Act are against the teaching/Injunction of Islam.

(9) That nobody has vested-right in any particular mode of procedure much less while facing an inquiry under the Extradition Act, the sole aim and object whereof is to find out a prima facie against a fugitive offender.

(10) That in view of the heinous crime alleged to have been committed by the accused they do not deserve to be treated leniently. Deterrent punishment provided by Islamic Law are in a large measure meant to check and suppress the recurrence of the crime as smuggling of heroin should be dealt with an iron-hand. It will further the ends of justice that these persons are extradited as early as possible so that they can be brought to book, if found guilty of the charge levelled against them. Hence the petitioners are not entitled to grant of any relief in exercise of the discretionary jurisdiction of this Court.

13. We have considered the arguments addressed by the learned counsel for the parties and have also gone through the record and the case-law cited by both the parties. Regarding, contentions raised by the learned counsel for the petitioners so far as it relates to the vires of the provisions of Extradition Act, 1972, a Full Bench of this Court, both of us were members whereof and one of us (Ch. Mushtaq Ahmad Khan, J.) is an Author Judge, after taking into consideration all the arguments, which have now been addressed by the learned counsel for the petitioners, has already taken a view that the provision of the said enactment are not inconsistent to Article 15, are intra vires of the Constitution and hence the respondents have jurisdiction to hold the proceedings in accord with the provision of Extradition Act, 1972. Relevant portion of the said judgment Mst. Nargis Shaheen v. Federation of Pakistan etc. reported as P L D 1993 Lah. 732, is reproduced as under:--

61. "Consequently, we hold that the provision of the Extradition Act, 1972, the extradition treaty and the impugned order if otherwise is held by us as valid on merits, is not illegal, ultra vires of the Constitution of Islamic Republic of Pakistan and is rather quite in accord with the Constitution, the Injunction of Islam as set out in Holy Quran' and Sunnah, intrinsic object of international treaties entered into by a Muslim State, the provision of prevalent international law, the principles of administration of social justice, fits in the new `world order' and is an important step in aid of the creation of a universal peace and brotherhood.

62. Hence, the arguments of the learned counsel for the petitioner regarding legality and vires of the act, the treaty and the impugned orders are without any force and hence are repelled."

63. The provision of Extradition Act, 1972 and the Treaty were upheld by the Honourable Supreme Court of Pakistan in case of Muhammad Azim Malik v. Government of Pakistan and others P L D 1989 SC 519 in which judgment their Lordships have upheld the order of extradition of the accused passed by the respondents under the provision of Extradition Act, 1972. The point relating to the vires of the Act as being inconsistent to the provisions of Article 15 read with Article 8 of the Constitution though was not specifically raised in that case, it cannot be said that their Lordships were not conscious about the Constitutional provision referred to above. Arguments of Kh. Haras Ahmad, learned counsel for the petitioners in Writ Petition No.962 of 1993 to the effect that there is a conflict between the International Treaty and the Constitution hence the accused who are subjects are not bound by the Treaty and therefore, the provision of Extradition Act are not lawful, is misconceived. Besides the fact that we did not find any inconsistency between the provision of the Ad, Articles of the Treaty in question and Article 15 of the Constitution, as the B accused are being extradited to face trial and are not being expelled from the Country for ever, we do not agree that while interpreting the Constitution and Law of this Country, we have to follow principle of English Common Law. By virtue of Article 2-A of the Constitution as held in lot many judgments rendered by the Honourable Supreme Court of Pakistan, the Courts of Pakistan are to follow the principle of Islamic Laws while interpreting the provision of Constitution as well as various Laws. In a recent judgment rendered by the Honourable Supreme Court in Muhammad Nawaz Sharirs case P L D 1993 SC 473 at page 557 of the report, their Lordships have been pleased to hold as under:--

64. "Fundamental Rights in essence are restraints on the arbitrary exercise of power by the State in relation to any activity that individual can engage. Although Constitutional guarantees are often couched in permissive terminology, in essence they impose limitations on the power of the State to restrict much activities. Moreover, Basic or Fundamental Rights of individuals which presently stand formally incorporated in the modern Constitutional documents derive their lineage from and are traceable to the ancient Natural Laws. With the passage of time and the evolution of civil society great changes occur in the political, social and economic conditions of society. There is, therefore, the corresponding need to re-evaluate the essence and soul of the fundamental rights as originally provided in the Constitution. They require to be construed in consonance with the changed conditions of the society and must be viewed and interpreted with a vision to the future. Indeed, this progressive approach has been adopted by the Courts in the United States and the reason given for doing so is that:--

65. While the language of the Constitution does not change, the changing circumstances of a progressive society for which it was designed yield a new and fuller import to its meaning: (Hurtade v. California -- 110.0 U.S. 516).

66. It is on this principle of interpretation that the import of the rights given in the U.S. Constitution such as the `right of Assembly' and the `right of Association', has been so expanded and so enlarged by the U.S. Supreme Court that even peripheral rights (or rights of Penumbra as described in some judgments i.e. rights so closely associated to the basic right which is specifically given in the Constitution) are now being also enforced as basic rights.

67. This progressive approach has also found favour with this Court and has been endorsed by it. Speaking for the Court, the learned Chief Justice (Muhammad Haleem, CJ.) observed in Benazir Bhutto's case P L D 1988 SC 416 at page 490 as under:--

68. The liberties, in this context if purposefully defined will serve to guarantee genuine freedom, freedom not only from arbitrary restraint of authority, but also freedom from want, from poverty and destitution and from ignorance and illiteracy --------. This approach is tune with the era of progress and is meant to establish that the Constitution is not merely an imprisonment of the past but is also alive to the unfolding of the future". (Emphasis supplied).

69. Again at page 736 of the same report, it has been held as under:--

70. "While construing Article 17 which guarantees fundamental right, our approach should not be narrow and pedantic but elastic enough to march with the changing times and guided by the object for which it was embodied in the Constitution as a fundamental right. Its full import and meaning must be gathered from other provisions such as preamble of the Constitution, principles of policy and the Objectives Resolution, which shed lustre on the whole Constitution. Reference in this connection may be made to the observations made by Muhammad Haleem, C.J. (as he then was) in Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 at 489:--- while construing Article 184(3), the interpretative approach should not be ceremonious observance of the rules of usages of interpretation, but regard should be had to the object and the purpose for which this Article is enacted, that is, this interpretative approach must receive inspiration from the trial of provisions which saturate and invigorate the entire Constitution, namely, the Objectives principles of State Policy so as to achieve democracy, tolerance, equality and social justice according to Islam."

71. In case of Zaheer-ud-Din and others v. The State and others 1993 S C M R 1718 at page 1774, it has been held as under:--

72. "It is thus clear that the Constitution has adopted the Injunctions of Islam as contained in Qur'an and Sunnah of the Holy Prophet as the real and the effective law. In that view of the matter, the Injunctions of Islam as contained in Quran and Sunnah of the,Holy Prophet are now the positive law. The Article 2-A, made effective and operative the sovereignty of Almighty Allah and it is because of that Article that the legal provisions and principles of law, as contained in the Objectives Resolution, have become effective and operative. Threfore, every man-made law must now conform to the Injunctions of Islam as contained in Quran and Sunnah of the Holy Prophet (p.b.u.h.). Therefore, even the Fundamental Rights as given in the Constitution must not violate the norms of Islam.

73. It was also argued that the phrase glory of Islam as used in Article 19 of the Constitution cannot be availed with regard to the rights conferred in Article 21. Article 19 which guarantees freedom of speech, expression and press makes it subject to reasonable restrictions imposed by law in the interest of glory of Islam etc., and decency or morality. The restrictions given therein cannot, undoubtedly, be imported into any other fundamental right. Anything, in any fundamental right, which violates the Injunctions of Islam thus must be repugnant. It must be noted here that the Injunctions of Islam, as contained in Quran and the Sunnah, guarantee the rights of the minorities also in such a satisfactory way that no other legal order can offer anything equal. It may further be added that no law can violate them."

74. It is, hence, an established legal proposition that while interpreting the Constitution and laws of the, Country, as exercising of powers under the Constitution and the laws by the State functionaries, the guiding principles have to be the injunctions of Islam as laid down in Holy Quran and Sunnah.

14. Consequently, the arguments of the learned counsel for the petitioners which is based upon certain commentary on international law and the cases cited by him which are distingishable on facts and at any rate do not lay down good law to be followed in Pakistan, is repelled. Reference of the learned counsel for the petitioners to Verses Nos.48 and 49 of Surah Al-Maidah from Holy Quranic for the proposition that the Muslims are to be tried by Muslim Law and non-Muslims are to be tried by their own Laws and hence the provisions of Extradition Act, 1972, and the treaty of extradition are ultra vires to above Quran Injunction, is also inapt. Both the said verses are to be read in the context in whcih they have been revealed. The period of revelation of Surah "Al-Maidah" is stated to be between fifth and tenth year of Hijra and most probably during the period when the Holy Prophet (P.B.U.H.) was at war with certain Christians tribes of Eastern Roman Empire. A preceding verse to the referred cane, clearly shows that there was a query as to why various Sharia's were reveked to each prophet when the "Din" (religion) is the same? The verses referred to, appear to have been revealed, to satisfy the aforementioned query wherein the God Almighty, has clarified as to why various Sharias were revealed by various prophets coming at various times. The above view is fortified by commentary by Maulana Abul A'la Maudoodi, in his famous Book "Tafheem-ul-Qur'an at pages 477-478, Vol. I, which is reproduced as under:--

15. Even otherwise even if it is assumed that the verses are relatable to administration of justice in relation to Muslims and non-Muslims, the same shall be applicable in a Muslim Country where the rights of non-Muslims are also guaranteed and are protected. In Pakistan as well there are laws which are applicable to the Muslims alone and non-Muslims are not governed by those laws. Therefore, the subject-matter as given in the said two verses does not io any manner advance the case of the accused and it cannot be said that the provisions of Extradition Act and the Treaty are in any manner violative of the aforementioned injunctions of Our'an. The provisions of Extradition Act as held in "Nargis Shaheen's" case supra, are in accord with the Injunctions of Qur'an and Sunnah inasmuch as the Treaty "Al-Hudeybiyah" was the first extradition treaty entered into between the Holy Prophet (P.B.U.H.) Al Quresh of Mecca according to which it was agreed upon that Muslim fugitive E offenders shall be extradited to non-Muslims to-be tried according to their laws. Abu Jandal brutally chained and staggering was extradited in pursuance of the said Treaty which was not even reciprocal in this behalf. This Treaty was approved by God Almighty in Surah "Al-Fateh" as discussed in details in case of "Mst. Nargis Shaheen" (supra). Therefore, Treaty of extradition cannot be said to be against the Injunction of Qur'an and Sunnah. Even from another angle it is very strange that a subject could argue that an extradition Treaty is binding upon the State only but not on him. A Muslim citizen is a part of the State itself. If the State is bound by the Treaty, the subject is definitely bound by the same. A reference in this behalf can be made to Verse No.59 of Surah Un-Nisa from Holy Qur'an, which is reproduced with its translation as under:--

75. Translation

(59) O ye who believe! Obey Allah, and obey the Messenger and those of you who are in authority; and if ye have a dispute concerning any matter, refer it to Allah and the Messenger if ye are (in truth) believers in Allah and the Last Day. That is better and more seemly in the end."

76. Hence, there is a Qur'anic injunction to obey God Almighty, his Prophet (p.b.u.h.) and persons in Authority, therefore, if there is some commitment made by the State which is a person in Authority it does not behove a Muslim State subject, to say that he is not bound by the commitment made by an Islamic State merely because he may suffer the conservances of his own act. We, therefore, hold that the provisions of Extradition Act, 1972, and Treaty in question are intra vires of the Constitution and are not inconsistent with the F International Law, laws of the country, and are in accord with the injunctions of Qur'an and Sunnah.

16. Arguments of the learned counsel for the petitioners with regard to the holding of mode of inquiry as envisaged by the Act and as held by the learned Enquiry Officer are also misconceived. The provisions of section 8 of the Extradition Act read with Article 9 of the Treaty clearly show that a Magisterial inquiry is to be held only to come to a prima facie conclusion as to G whether a case against the petitioner for facing trial in the indictment in purusance whereof a request for extradition has been received, is made out or not. An inquiry admittedly has a different connotation than the "trial" as is clear from the definition of the "inquiry" as given in Criminal Procedure Code, I section 4(k), whereof defines the word "inquiry" as under:--

77. "Inquiry: includes every inquiry other than a trial conducted under this Code by Magistrate or Court."

78. Arguments addressed by the learned counsel for the petitioner to the effect that inquiry has to be held in accord with commitment proceedings, is not supported by the provisions of section 8 of the Extradition Act, 1972 read with Article 9 of the Treaty which provides that the inquiry has to be held in accord with the law of the country which is to pass an order of extradition. By virtue of section 9 of the Act, authenticated documents which have been relied upon by the learned Enquiry Officer as well as the respondents for recording of the report and passing of the impugned order have been made per se admissible and, therefore, on the basis of that material learned Enquiry Officer has rightly held that there is a prima facie case against the accused for directing them to face trial. Similarly, the respondents have also rightly held that it is a fit case for passing of an order of extradition. On the basis of the similar material order of extradition passed has already been upheld in various cases. Reference can be made to the case of Zulqarnain Khan alias Zulfiqar Ali Khan v. Government of Pakistan and others P L D 1989 SC 519 and Muhammad Azim Malik v. Anwar Jalil and 4 others P L D 1989 Lah. 279 and Nargis Shaheen v. Federation of Pakistan P L D 1993 Lah. 732. The petitioners had full opportunity to lead their evidence in the case and to disprove the allegations, levelled in the said documents. They were fully confronted with incriminating material and allegations against them in their statements under section 342, Cr.P.C. but they failed to produce any evidence in defence to prove that the allegations against them are false. They have not even opted to appear as their own witness under section 340(2), Cr.P.C. The defence evidence which has been produced by Khalid Khan and Taviz Khan petitioner consists of certain cuttings from the various newspapers showing that discriminatory treatment is given in the U.S.A. on the basis of race and religion and that certain Muslims have been involved in some criminal cases. This type of H evidence cannot be held to be conclusive proof that the petitioners if tried in U.S.A. by law Courts of competent jurisdiction shall not get a fair trial. A similar argument was raised before the Full Bench of this Court in Nargis Shaheen case (supra), which was repelled and it has been held in the case that judicial system of the U.S.A. is one of the best systems of the world, therefore, it cannot be said that in case the extradited persons face trial in the Courts or competent jurisdiction of U.S.A. they will suffer any discriminatory treatment. At any rate, the apprehension appears to be premature and without any lawful basis and on the basis of such a frivolous apprehension, order passed by the respondents cannot be struck down.

17. Arguments of the learned counsel for the petitioners that the evidence has not been confronted to the accused properly is also misconceived. Statements of the accused persons recorded under section 342, Cr.P.C. clearly show, that the material to be used against them was confronted to the accused persons and, they had full opportunity to deny -the correctness thereof and to prove the same to be false. Cases relied upon by the learned counsel in support of their arguments in this behalf are not applicable to the cases in hand as the said cases relate to trials and not the inquiries and are also distinguishable on facts. They failed to lead any evidence in defence and, therefore, whatever the material on record is, it is on the basis that of that inquiry report was submitted by the learned Enquiry Officer and Extradition Order has been passed after taking into consideration the whole material. The definition of "evidence" as given in Oanun-e-Shahadat, 1984, shows that the word "evidence" as used means statement of the witnesses and the documents. Therefore, it cannot be said that in the case in hand the evidence is not there, merely for the reasons that oral statement of witnesses have not been recorded. The documents are on the record and although were not formally tendered in evidence by the prosecution; the fact remains that the said material was on file within the knowledge of the accused who had been confronted therewith and who knew as to what material is to be used against them and had full opportunity to prove, that the allegations levelled in the material were false. The affidavits/documents having been duly authenticated and attested by competent authorities/Courts of a foreign country were per se evidence in the case as per provisions of section 9 of the Act. Hence, the same can be used against the accused for prosecuting them and the said material is quite sufficient for coming to the prima facie conclusion that the accused persons are guilty of the offences alleged to have been committed by them. Argument of the learned counsel for the petitioners to the effect that it is always necessary that the prosecution must tender evidence formally by producing of witnesses, is misconceived. In case of Harihar Chaturbhai Patel v. The Union of India and others A I R 1963 Gujarat 330 (V 50, C 78) in Para. No.19 of the judgment, it has been held as under:--

79. "Then Mr. Thakore relied on subsection (3) of section 3 which provided that when the Magistrate held an inquiry under that section he should take such evidence as may be produced in support of the requisition and on behalf of the fugitive criminal. Mr. Thakore argued that under the provisions of this subsection, it was obligatory on the prosecution to lead some evidence. In the instant case, according to Mr. Thakore, as no -evidence was led, the inquiry was not an inquiry as contemplated by subsection (3). We do not find any such obligation as is contended for on behalf of the petitioner.' The Magistrate has to record evidence that may be led by the prosecution, but there is no obligation thrown on the prosecution to lead some evidence in each case. This contention of Mr. Thakore is also, therefore, without any substance."

80. The above statement of law clearly shows that the provisions of section 8 of the Extradition Act which are para materia with the provisions of section 3 of the Extradition Act, 1903 do not require the necessity of recording of oral evidence by the prosecution; if some material which has got the force of evidence, is already placed on record by the prosecution, it can be taken into consideration, for coming to the prima facie conclusion with regard to the factum of commission of offence. In case State v. Habib-ur-Rehman and others P L D ] 1983 SC 286 and Said Wali v. Yaqoot Khan and another P L D 1983 SC 440 it has been held that circumstantial evidence and even a probability can be considered as "evidence" in the case and it can be taken into consideration for the decision of fact in issue. In the case in hand, beside the fact that the proceedings in question are in the nature of inquiry to be held to see as to whether a prima facie case is made out against the accused to face trial in a criminal case which is pending in the Court of a foreign treaty country, the documents placed on record are, per se, evidence as per provisions of section 9 of the Extradition Act, and are admissible material, which can be looked into by the respondent, while passing of the impugned order, therefore, it cannot be said that inquiry report as well as the impugned order has been passed without any lawful and admissible evidence. Failure of prosecution to formally tender in evidence the above-referred admissible material/evidence is just a technicality and will not adversely affect the case of the prosecution as a judicial notice of the said documents can also be taken. After perusal of material/evidence on record keeping in view the circumstantial evidence and probabilities, we are of the view that a prima facie case justifying passing of an order of extradition is made out against the accused persons. Argument of the learned counsel for the petitioner to the effect that the impugned order could not have been passed after two months w.e.f. the date of committal is also repelled as this point has already been decided in case of "Nargis Shaheen" referred to supra, wherein it has been held that the provisions of section 12 of the Act are not mandatory in nature and, therefore, even if extradition order is not passed within two months w.e.f. the date of committal, it will not make any difference and the order will remain lawful. No case is made out for taking of a different view. Even on the anology of principle under Article 254 of the Constitution which is reproduced as under:--

81. Articles 254

82. "When any act or thing is required by the. Constitution to be done within a particular period and it is not done within that period, the doing of the act or thing shall not be invalid or otherwise ineffective by reason only that it was not done within that period." the impugned order having not been passed within a period of two months from the date of committal, cannot be said to have been passed without a lawful authority. Similar objection has also been repelled in case of Muhammad Azim Malik v. Government of Pakistan and others P L D 1989 SC 519 at page 526. The impugned order does not appear to have been passed with an intention and after an inordinate delay. No case for interference by this Court under section 12 of the Act is hence made out.

18. Argument of the learned counsel for the petitioners to the effect that the respondents have illegally failed to exercise the discretion in their favour is also without any lawful basis. No case is made out for exercise of discretion in their favour. They are charged of commission of a very heinous crime and the decision taken by the respondents is only this much that the accused should be tried by a Court of competent jurisdiction. Even the case relied upon for the proposition that the State should have refused extradition or that this Court should strike down the impugned orders following the law laid down in those cases, after going through the said cases, we find that the extradition order was refused to be passed by the State in those cases where the offences were of political nature or the alleged extradition was politically motivated and it is for that reason that in the referred cases, the detenus were released and extradition order was set aside, in some cases the Court interfered because there was absolutely no probability of a prima facie connection of the accused persons with the commission of the offences. However, in the case in hand, the offences for the alleged commission of which the accused are being extradited are not proved to be the political offences. There is nothing on record to show that the request for extradition is politically motivated. The cases in hand are also not the cases of no evidence, hence the cited case being distinguishable do not advance the case of the accused and as such the impugned orders cannot be interfered with on the basis of the aforementioned arguments raised by the learned counsel for the petitioners. The objection raised by the learned counsel for the petitioners that the inquiry report held by the Enquiry Officer is discriminatory in nature and hence the inquiry report on the basis whereof extradition orders have been passed being violative of the provisions of Article 4 and Article 25 of the Constitution, is also misconceived. We agree with the arguments advanced by the learned Deputy Attorney-General of Pakistan in this behalf that the Enquiry Officer is not bound to hold an inquiry in these cases exactly in accordance with the mode of trial of Sessions cases. Section 8 of the Act only vests powers in the Enquiry Officer to hold inquiry in accordance with the aforementioned mode but if he adopts a different mode of inquiry with the object of collection of material for taking a decision as to whether a prima facie case exists or not, it cannot be said that the inquiry so held is either discriminatory in nature or is beyond the scope of provisions of section 8 of the Extradition Act, 1972. It is an established proposition of law that the forums which are not stricto senso, Courts can hold their proceedings .in accordance with any judicious mode and the respondents before such forums have no vested right to claim a particular mode for holding of the inquiry. Reliance in this behalf is placed on case of Khadim Mohy-ud-Din and another v. Ch. Rehmat Ali and another P L D 1965 SC 459, in which judgment their Lordships of the Supreme Court of Pakistan while interpreting the scope of inquiry before the Rent Controller as per provisions of section 16 of the West Pakistan Urban Rent Restriction Ordinance, 1959, have interpreted as may be considered fit by the learned Rent Controller, and, therefore, their Lordships of the Supreme Court have held that in such cases the parties have no right to insist upon production of such evidence as they desire to produce in support of their case. The provisions of section 8 of Extradition Act, 1972 are almost pari materia to the provisions which relate to the recording of evidence by the learned Rent Controller, and, hence respectfully following the law declared by their Lordships of the Supreme Court of Pakistan in case referred L to above, we are of the view that the learned Enquiry Officer could adopt any judicious mode of inquiry for holding of proceedings before him and that the accused had no vested right to insist upon holding of the inquiry in a particular mode as is being insisted upon by them. Hence, we hold that the proceedings conducted against the accused persons in this case are not violative of the provisions of Articles 4 and 25 of the Constitution. The argument of the L learned counsel with regard to the territorial jurisdiction of the Court is also without any merit. This objection is premature and can be raised at the time of their appearance, by the accused persons before the Court holding the trial in question which Court shall definitely attend to this objection as well. Even otherwise, the arguments in this behalf have already been rejected in case of "Nasar Ullah Khan Hunjra" (supra) referred to by the learned counsel for the petitioners himself. Therefore, the argument of the learned counsel on this account is also repelled.

19. The impugned inquiry proceedings having been taken and the orders of extradition having been passed in accordance with law, on the basis of material on record in judicious exercise of jurisdiction in pursuance N of a solemn commitment made by the respondents arising under the International Treaty between the two countries are unexceptionable, and, hence, are upheld.

83. Resultantly, we see no force in these writ petitions, the same, hence, are dismissed.

84. M.BA./A-486/L Petition dismissed.