P L D 1954 Sind 101 (PLP)

VELLANI, J.‑The applicant has been arrested upon two warrants issued by a Magistrate in Johannesburg (South Africa) endorsed by the Ministry of the Interior which the City and Additional District Magistrate. Karachi, has had executed by Karachi Police. The learned Magistrate has now committed the applicant to prison to await his return to Johannesburg under section 5 of Fugitive Offenders Act 1881. The applicant moved for bail under section 498 Cr. P. C. but Rahimbux, J. declined to enlarge him. He has now filed an application in the nature of Habeas Corpus under section 491 Cr. P. C. upon which rule nisi has issued. It is said that the Fugitive Offenders Act 1881 has no application in Pakistan. The argument advanced before us in substance is that the Act became a part of the Indian Law by reason of the Government of India (Adaptation of Acts of Parliament) Order 1937, made under section 311 (5) of the Government of India Act 1935 that that subsection has been repealed by the schedule to the Pakistan (Provisional Constitution) Order 1947, being Governor‑General's Order No. 22 dated 14th August 1947, and therefore the Order in Council of 1937' made under that subsection no longer applies, with the result that the Fugitive Offenders Act is not a part of Pakistan Law as from 14th August 1947. It is said that the definition of "Existing Pakistan Law" in the Pakistan (Adaptation of Existing Pakistan Law) Order 1947 being Governor General's Order No‑ 20 dated 14th August 1947 supports this contention. This argument is based op false premises. The Fugitive Offenders Act 1881, is an Act of the Imperial Parliament which applied to British India. Indeed, the Indian Extradition Act 15 of 1903 makes provision for the more convenient administration in British India of the Fugitive Offenders Act 1881 and other Imperial Acts. All that the Government of India (Adaptation of Acts of Parliament) Order 1937 does, is to take away the words "and include the Governor and Lieutenant‑Governor of any part of India" from the definition of "Governor" in section 39 of the Fugitive Offenders Act 1881. The repeal of subsection (5) of the interpretation of section 311 of the Government of India Act 1935, (which is an adaptation made in pursuance of subsection (2) of section 8 and paragraph (e) of subsection (1) of section 9 of the Indian Independence Act 1947) appears to have been necessitated by the policy of section 6 and the terms of subsection (5) of that section of Indian Independence Act, 1947. The repeal of sub section (5) of section 311 Government of India Act 1935 does not effect a repeal of the Fugitive Offenders Act 1881 and the Act therefore continues as the law of Pakistan as subsection (3) of section 18 of the Indian Independence Act 1947 declares. The Pakistan (Adaptation of Existing Pakistan Laws) Order 1947 being Governor General's Order No. 20 dated 14th August 1947 leaves untouched Acts of Parliament made under an Act of Parliament. It effects adaptations in "Existing Pakistan Laws " which is defined as meaning any Act, Ordinance, Regulation, Rule, Order or Bye‑law having the force of law immediately before 15th August 1947, but that definition expressly excludes any Act of Parliament or any Order in Council, rule or other instrument made under an Act of Parliament or the General Clauses Act, 1897. There is therefore no force in the contention that the Fugitive Offenders Act 1881 does not apply in Pakistan. It is said that the warrant issued in Johannesburg has not been endorsed by the Governor as section 3 (3) of the. Fugitive Offenders Act requires. This contention ignores the provisions of section 19 (a) of the Indian Extradition Act 1903 which says that the powers conferred on Governors of British Possessions in the Fugitive Offenders Act 1881 shall be powers of the Central Government. The warrants are endorsed by the Secretary to the Ministry of the Interior, Government of Pakistan. It is said that the High Court will consider the provisions of Part II of section 5 of the Fugitive Offenders Act 1881 and see whether the evidence produced is such as according to the law ordinarily administered by the Magistrate, raises a strong or probable presumption that the fugitive committed the offence mentioned in the warrants, as that is one of the three conditions governing the power of committal by the Magistrate of the fugitive to prison to await his return. The question was raised in Rex v. Vyner ((1903) 68 J P 142), but was left undecided as the Court took the view that there was a grave case to be answered and therefore it was not necessary to decide the question. Lord Alverstone, L. C. J. however expressed the opinion that the Court had the power to consider whether there was in the evidence before the Magistrate such a strong or probable presumption, and to review the exercise of the Magistrate's discretion. The question was raised again in Rex v. Governor of Briton Prison ex parte Bidwell ((1936) 3 All. Eng. Reports I), where again the Court was satisfied that there was a grave case for the petitioner to answer, and it was not necessary to decide the point. Swift, J., however agreed with Lord Alverstone, L. C. J. in thinking that the Court had the power. For the Crown, reference has been made to Jamna v. The Crown (20 S L R 128,), but that was not a case of non‑fulfilment of a condition to the exercise of power which renders arrest in pursuance of it illegal and therefore within the terms of section 491 (1) (b) Cr. P. C. We think that when the fugitive applies for a writ of Habeas Corpus or other like process as Part III of section 5 of the Fugitive Offenders Act 1881 mentions, the Court will consider whether the conditions upon the fulfilment of which the Magistrate is to commit the fugitive to prison under Part II of section 5 are truly satisfied. These conditions are that the endorsed warrant or the apprehension of the fugitive is duly authenticated, that such evidence is produced as (subject to the provisions of the Act) according to the Law ordinarily administered by the Magistrate, raised a strong or probable presumption that the fugitive committed the offence mentioned in the warrant" and that the offence is one to which Part I of the Act applies. That these are conditions to the exercise of the power by the Magistrate appears clearly from the use of the word "if" with which Part II of section 5 of the Act opens. As to the meaning of the words "raises a strong or probable presumption that the fugitive committed the offence mentioned in the warrant" (with which compare the words of section 254 Cr. P. C.)., Swift, J. in the case above‑mentioned said "What it means, I think, is that there must be such evidence that, if un-contradicted at the trial, a reasonable minded jury could convict upon it". The same position appears to have been expressed in section 253 Cr. P. C. which says that the Magistrate shall dis charge the accused if he finds that no case has been made out against him which, if un-rebutted, would warrant his conviction. Of the two warrants, one relates to failure to keep proper accounts and to failure to notify change of address, offence respectively under section 134 (1) and section 138 (d) of Act 24 of 1936, presumably a Bankruptcy Act. These offences do not appear to be punishable by imprisonment with hard labour for a term of twelve months or more or by greater punishment, for this warrant, in contrast with the other, bears no certificate of the Magistrate that these offences are punishable by imprisonment with hard labour for twelve months or more. The provisions of section 9 of the Fugitive Offenders Act 1881 therefore render Part I of the Act inapplicable to the warrant for these offences, and one of the conditions on the fulfilment of which the Magistrate may commit the fugitive offender to prison to await his return, remains unsatisfied. The committal in pursuance of this warrant is therefore bad. The other warrant is in respect of 'theft' and 'false' as we have no evidence to prove what ingredients constitute these offences in the law of the Union of South Africa. The learned Public Prosecutor however proceeding on the assumption that `theft' and 'cheating' in our Penal Code are their equivalents, has pointed out to us the evidence bearing upon the ingredients of these offences, and has rightly conceded in the end that the evidence, does not raise a strong or probable presumption that the applicant committed these offences. If the applicant after assign ing debts due to him under hire‑purchase agreements. received the debts from the debtors, there is no dishonest moving of the assignee's movable property out of his possession without his consent as section 378 P. P. C. requires. Again if the assignee paid value for the assignment of the debts payable under a hire purchase agreement after being informed that the car hired under it had met with an accident while insured, and there is no evidence that the car was not insured, he cannot say that he was induced by a false representation, which he believed to' be true, that the car was insured. The hirer admitted the hiring and the execution of the agreement: These circumstances do not make out the ingredients of cheating in section 415 P. P. C. The applicant will therefore be set at liberty. A. H.