P L D 2009 Lahore 215 (PLP)

SYED SHABBAR RAZA RIZVI, J.

According to the learned counsel for the petitioner, the petitioner was arrested on 29-6-2007 by respondent No.3, thereafter, he was produced before respondent No.1 and since then the petitioner is in illegal detention. Later on, the petitioner was informed that he was arrested for commission of offence under sections 393, 394 and 397 of Belgium Penal Code.

2. The petitioner moved an application after arrest before the learned District and Sessions Judge, Sialkot who observed that proper remedy for the petitioner lay with the Hon'ble High Court.

3. The petitioner filed Writ Petition No.10574/2007 before this Court which was disposed of on the ground that since the application of the petitioner was still pending before the learned Addl. Sessions Judge, there was no point of filing the writ petition before this Court until the final decision of the pending application before the learned District and Sessions Judge. However, the said application was pending before the learned Addl. Sessions Judge which was withdrawn by the learned counsel for the petitioner on 27-8-2008 on the ground that said court did not have jurisdiction.

4. The main contention of the learned counsel for the petitioner is that petitioner could not have been arrested without following the procedure provided by Extradition Act, 1972. Section 6 of the Act provides that a requisition for surrender of fugitive offender shall be made to the Federal Government bye a diplomatic representative in Pakistan of the State asking for the surrender; or by the Government of the State asking for the surrender through the diplomatic representative of Pakistan in that State; or in such other manner as may have been settled by arrangement between the Federal Government and the Government of the State asking for the surrender. Under section 7 of the Act, where a requisition is made under section 6, the Federal Government may, if it thinks fit, issue an order to enquire into the case to any Magistrate of the First Class who would have had requisition relates if it had been an offence committed within the local limits of his jurisdiction. Under section 8 of the same Act, on receipt of an order under section 7, the Magistrate shall issue a summon or a warrant for the arrest of the fugitive offender accordingly as the case appears to be one in which according to the law of Pakistan a summon or warrant would ordinarily issue. Under section 10 of the Act, if after the enquiry under section 8, the Magistrate is of opinion that a prima facie case has not been made out in support of the requisition for surrender of the fugitive offender, he shall discharge the fugitive offender and make a report to that effect to the Federal Government; that a prima facie case has been made out in support of such requisition, he shall report the result of his enquiry to the Federal Government; forward, together with such report, any written statement which the fugitive offender may desire to submit for the consideration of the Federal Government; and subject to any provision relating to bail, commit the fugitive offender to prison to await the order of the Federal Government.

5. If upon receipt of the above report and statement under clause (b) of section 10, the Federal Government is of opinion that the fugitive offender ought to be surrendered, it may issue a warrant for he custody and removal of the fugitive offender and for his delivery to a place and to be person to be named in the warrant. However, fugitive offender shall not be so delivered until after the expiration of fifteen days from the date he has been taken in custody under such warrant. Under section 12 of the same Act, High Court has been empowered that it may order such prisoner to be discharged, unless sufficient cause is shown to the contrary, if the fugitive offender is not conveyed out of Pakistan within two months after such committal.

6. The learned Deputy Attorney-General of Pakistan has frankly conceded that above provisions of Extradition Act have not been followed. The order dated 30-6-2007 of Muhammad Ashfaq Rana, Magistrate Section 30, Sialkot, reads as under:-- "Accused in custody of police present. Muhammad Sarwar, S.-I. has produced record. Police through the instant application has prayed for judicial remand of the accused. Offences levelled against the accused are non-bailable, therefore, as per request of police accused is hereby sent to judicial lock-up from where he be produced before the court on 14-7-2007." After the above order, there is no order, passed by any competent court, available on the record. Even in the above circumstances, there is no mention of inquiry or acquisition under the Extradition Act. The application for remand dated 30-6-2007 mentions that accused Iftikhar Mehmood was arrested in pursuance of warrant of arrest No.362/06, Belgium Judicial Authority through Interpol FIA, Islamabad. According to the contents of the said application, .the petitioner was arrested on 29-6-2007 and his arrest was also intimated to FIA authorities.

7. In view of the above facts and circumstances, as well as perusal of the relevant provisions of the Extradition Act, 1972, the detention of the petitioner is declared unlawful, improper and without any lawful authority. He is directed to be released immediately if not required in any other case, However, authorities are not refrained to act in accordance with law. H.B.T./I-3/L Petition allowed.