1994 SCMR 1706 (PLP)

SAEEDUZZAMAN SIDDIQUI, J.‑‑‑The petitioner is seeking leave to appeal against the judgment of Lahore High Court, Rawalpindi Bench, dated 24‑5‑1993, whereby the learned Judges of Full Bench declined to interfere under Article 199 of the Constitution of Pakistan with the Enquiry Report/Order of respondent No. 4 (Additional Deputy Commissioner (General), Islamabad) dated 15‑2‑1993 holding that a prima facie case in support of the requisition received from the Government of U.SA. requesting for extradition of the fugitive criminal Mian Muhammad Azam to answer a charge of smuggling heroin into U.S.A. and for being tried in the U.S.A. in accordance with the laws of U.S.A, was made out. The learned counsel for the petitioner does not dispute that the legal Pakistan and others (Civil Appeal No. 630/93, CPLA 485 of 1993 and CPLA 492 to 494 of 1993: PLD 1994 SC 23, decided on 13‑10‑1993. The learned counsel for the petitioner, however, contended that in view of the decisions in Nasrullah Khan Henjra's case (supra) and the case of Muhammad Azam Malik v. Government of Pakistan (PLD 1989 SC 519), the Enquiry Officer could not base his findings on hearsay evidence. It is contended by the learned counsel for the petitioner that the two affidavits of witnesses, Sher Gul Khan and Charles F Lee produced before the Enquiry Officer, in support of the requisition, contained averments which in turn were based on the information given to these witnesses by Muhammad Waris, who allegedly had dealt with the petitioner directly in connection with the transportation of heroin to New York, U.S.A. It is accordingly contended by the learned counsel for the petitioner that the Enquiry Officer while holding that a prima facie case in support of requisition was made out, relied on these affidavits which were inadmissible. It is also contended by the learned counsel for the petitioner that the petitioner wanted to produce Muhammad Waris as a defence witness but no opportunity was afforded to the petitioner, by the Enquiry Officer (respondent No. 4). The learned Deputy Attorney‑General controverting the above contentions of learned counsel for the petitioner urged that the affidavits of Sher Gul Khan and Charles F Lee .produced before respondent No. 4 besides containing averments which were based on the information conveyed to them by Muhammad Waris, also contained positive and direct statement showing that they also had personal knowledge about the facts of the case. The learned Deputy Attorney-General specially referred to paragraph 8(b) and paras. 9 to 15 of the affidavits of Sher Gul Khan and paragraphs 4 to 7 of the affidavit of Charles F. Lee on record in support of his submission.. The learned Deputy Attorney‑General also contended that in spite of ample opportunity afforded to petitioner, he failed to produce any defence witness, during enquiry proceedings. We have gone through the evidence produced before the Enquiry Officer in connection with the extradition proceeding and are of the view that Sher Gul Khan and Charles F. Lee besides deposing in their affidavits facts on the basis of information conveyed to them by C/I Muhammad Waris, also deposed facts which show that they had personal and direct knowledge about the case. This is clearly spelt out from the paragraphs of the affidavits of Sher Gul Khan and Charles F. Lee, referred to by the learned Deputy Attorney‑General. Similarly, the contention of the petitioner that he was not allowed opportunity to produce defence witness is also not correct. The statement of petitioner under section 342 Cr.P.C. was recorded on 11‑11‑1992 and thereafter the case was adjourned to 18‑11‑1992 for defence witness. On 18‑11‑1992, the petitioner was not produced before the Court in time, therefore, enquiry was adjourned to 25‑11‑1992. The petitioner when produced later before the Enquiry Officer on 18‑11‑1992 was informed that the case was adjourned to 25-11-1992 for defence evidence. On 25-11-1992 the petitioner stated before the Enquiry Officer that on account of presence of some person in the court he can not produce his defence witness. The Enquiry Officer therefore adjourned the hearing to 5-12-1992 with direction that last opportunity is given to petitioner to produce defence evidence. On 5-12-1992 no defence witness was produced instead an application was made to summon Muhammad Waris through Court. This request was not granted by the Court as it was found that it was aimed at to delay the proceedings. It is, therefore, quite clear that reasonable opportunity was afforded to petitioner to lead the defence evidence but he failed to avail the opportunity. There is no substance in the petition which is dismissed accordingly. Leave is refuded. Leave is refuded.