P L D 1969 Lahore 129 (PLP)

(b) no person shall be prevented from, or be hindered in, doing that which is not prohibited by law; and (c) no person shall be compelled to do that which the law does not require him to do." From the plain reading of the Article, it becomes abundantly clear that the inalienable right to the enjoyment of the protection of law and treatment in accordance with law has been guaranteed to two categories of persons, firstly, to every citizen of Pakistan, and secondly, to every other person who is for the time being within Pakistan. The case of the petitioner clearly falls in the second category and as such he is perfectly within his rights to invoke the jurisdiction of this Court in challenging the validity of an order of extradition passed against him. Thus the fact of his being in the custody of the Spanish Embassy cannot be so construed as to detract from or take away the constitutional guarantee of the enjoyment of protection of law. This constitutional provision in so far as it relates to foreign nationals is obviously based on accepted notions of fundamental human rights and considerations of justice and equity. Article 4 of the Constitution lays a corresponding obligation on a foreign national to the obedience of the law of the land. Although no further argument would be necessary to overrule this patently misconceived contention, it may be observed that even in the report of the Asia Regional Conference, Kyoto held on the 25th and 26th of September 1967, and relied upon by the learned Advocate‑General, the right and the responsibility of the judiciary of the asylum country to bear a person sought to be extradited has been acknowledged in the following words: " On the one hand, it is a Governmental Act in which a country abandons its sovereignty over a person by handing him over to another State, on the other hand, the steps taken to ensure that an offender is arrested, whether for trial or to serve his sentence, are the responsibility of the judiciary, which must also ensure that the person has the rights to which he is entitled under the laws of the country from which it is being extradited." Even in the Extradition Acts themselves there are direct reference to petitions of habeas corpus and the right of a person sought to be extradited to file such a petition has been clearly admitted, as will be presently seen. Reference may also be made in this regard to A I R 1934 All. 148, A I R 1935 Sind 244 and Halsbury's Laws of England, Third Edition, Vol. 16, paras 1190 to 1192. The contention is thus patently mis conceived and is overruled.

10. In order to determine the merit of other con tentions raised on both sides, it appears necessary to examine the relevant law on the subject. The Extradition Acts of 1870, 1873 and 1903 and the Foreigners Act of 1946, are the relevant statutes whose various provisions have to be examined in so far as they have a direct or indirect bearing on the issues raised in this case. The first Act in the series which was passed by the British Parliament, namely, the Extradition Act of 1870 provided section 2, that Her Majesty's Government could by an order in Council direct the application of the Act in regard to a Foreign State with which an arrangement had been made with respect to the surrender of any fugitive criminal to such state. Section 3 provided inter alia that a fugitive criminal was not to be surrendered if the offence in respect of which the surrender was demanded was one of political character, or if the fugitive criminal could prove to the satisfaction of the Court before whom he was brought on habeas corpus that the requisition for his surrendered in fact been made with a view to treat or punish him for an offence of a political character. Again, he was not to be surrendered until the expiration of fifteen days from the date of his being committed to prison to await his surrender. Section 4 of the Act laid down two conditions for the application of the Act in regard to a foreign State, namely, that the arrange ment with that State should provide for its determination by either party to it after the expiration of a notice not exceeding one year, and its being in conformity with the provisions of the Act particularly the restrictions on the surrender or fugitive criminal contained therein. Section 6 provided for the liability of a fugitive criminal of that State to be apprehended and surrendered in the manner prescribed in the subsequent sections 7 to 11, including the receiving of evidence to show that the crime was an offence of political character or was not an extradition crime. Section 12 empowered the Court to discharge a fugitive criminal committed to prison, if not surrendered and conveyed out of the United Kingdom within two months. Sections 13 and 14 were procedural in nature laying down the mode of execution of warrants, receiv ing in evidence of depositions made in a Foreign States etc. Section 17 dealt with the proceedings a9 to fugitive criminals in British possession. Section 18 provided for the suspension of the operation of the Act, in a British dominion whose Legislature had passed its own law in this regard. It would be pertinent in this regard to refer to the definitions of the terms "Extradition Crimea", "Fugitive Criminal" or a Foreign State as contained in section 26 of the Act. " Extradition Crime.‑The term `extradition crime' means a crime which, if committed in England or within English jurisdic tion, would be one of the crimes described in the First Schedule to this Act." "Fugitive Criminal.‑The term `fugitive criminal' means any person accused or convicted of an extradition crime committed within the jurisdiction of any Foreign State who is in or is suspected of being in some part of her Majesty's domi nion, and the term 'fugitive criminal of a Foreign State means a fugitive criminal accused or convicted of an extradition crime committed within the jurisdiction of that State." From the above definitions it would be clear that the term "Fugitive Criminal" is not relatable to nationality but to "extradi tion crime" irrespective of the fact, whether it is committed by a citizen of this state in a foreign state or by a national of that state itself. The First Schedule to the Act contains a list of extradition crime.

11. The Extradition Act of 1873 sought to remove certain doubts in the application to the Principal Act of 1870 and also made persons liable to be apprehended and surrendered who were accused or convicted of having aided or abetted the commission of any extradition crime. Further, some more offences were included in the schedule of extradition offences.

12. Lastly, we come to the Extradition Act of 1903 which according to its preamble had been enacted with a two‑fold object, namely, "for the more convenient administration in India of Extradition Acts of 1870 and 1873 and of the Fugitive Offender Act of 1881", and (ii) "to amend the law relating to extradition of criminals, in cases to which the Extradition Acts of 1870 and' 1873 did not apply." The word "Pakistan" was substituted for the word "India" by the Central Laws (Statutes Reforms) Ordinance of 1960. In section 2 the terms "Extradition offence", "Foreign State" and "offence" were defined as follows:- "Extradition offence".‑Means any such offence as is described in the First Schedule ; " Foreign State".‑‑Means a State to which for the time being, the Extradition Act, 1870 and 1873, apply; "offence" includes any act wheresoever committed which would, if committed in Pakistan constitute an offence. Section 3 of the Extradition Act of 1903 provides that on requisi tion being made to the Government of Pakistan by any "foreign State" for the surrender of any fugitive criminal to that State, the former may, if it thinks fit issue an order to a Magistrate of competent jurisdiction to enquire into the crime alleged against the fugitive criminal. Subsequently, in the same section is laid down the mode of inquiry, to be conducted by the Magistrate, by taking evidence to be produced in support of the requisition as also on behalf of the fugitive criminal who has been given the right to show that the allegations against his relate to an offence of political character or one that is not extraditable. If prima facie the case is made out in favour of the requisition then the fugitive criminal is to be committed to prison in order to await extradition order. The Magistrate has then to submit a report on the result of his inquiry along with written statement of the fugitive criminal, if any. In case, the Government is of the opinion that the matter involves an important question of law, it may refer the question to the High Court and withhold surrender of the fugitive criminal till the decision of such a question. Having considered the decision along with the report and the written statement, the Government again has the discretion to surrender the fugitive criminal and if so disposed may issue warrants for his custody, removal and delivery to a person competent to receive him on behalf of the foreign State. If no such warrant is executed within two months of the criminal's committal to a person, the High Court may on an application being made to it on behalf of the fugitive criminal discharge him unless sufficient cause shown to the contrary.

13. Under section 4 instead of being ordered to inquire into the matter of a fugitive criminal, as provided under the preceding sections, the Magistrate of competent jurisdiction may himself on coming to know of the presence of a fugitive criminal within his jurisdiction if he thinks fit to issue a warrant for his arrest and report the matter to the Central Government. A person so arrested cannot be detained for more than two months unless within that period an order is received by the Magistrate to hold an inquiry against him as envisaged by section

3. Under section 5, the Government may refuse to issue an order for inquiry into the crime of a fugitive criminal if in its opinion, the crime of which he is accused or alleged to have been convicted is of a political character. Chapter III commencing with section 7 deals with surrender of fugitive criminals in cases of States other than foreign States. Here the political Agent for such a State has been given the power to issue warrants for the arrest of a fugitive criminal to be addressed to the District Magistrate where such a person is believed to be for the time being. Under section 9 when requisition is made to the Central Government on behalf of any State not being a foreign State for the surrender of any person having committed an offence in the territory of that State, the requisition shall be dealt with in accordance with the procedure prescribed by section 3, except in so far as it relates to the taking of evidence to show that the offence is of a political character and is not an extradition crime. Section 10 of the Act corresponding to section 4 empowers a Magistrate of the first class or any Magistrate empowered by the Central Government in this behalf to issue warrants of arrest against a person within the local limits of his jurisdiction who is accused or suspected of having committed an offence in any State not being a foreign State. Subsection (2) of this section makes it incumbent on the Magistrate to report the issue of the warrant to the political agent of the State if‑offence appears or is allegedly committed in the territories of that State and in other cases to the Central Government. A person so arrested is not to be detained for more than two months without special sanction of the Central Government, unless within such period the Magistrate receives an order under section 9 or a warrant for his arrest under section

7. Section 18 of this Chapter which is more relevant for the purpose of this case provides that the provisions contained in any treaty for the extradition of offenders and the procedure prescribed therein shall override the provisions of this Chapter which shall stand modified accordingly.

14. In order to determine the question of propriety or otherwise of the procedure adopted in regard to the arrest and detention of the petitioner it has first to be seen whether Spain is, or is not a "foreign State". In the former eventuality, the provisions contained in the second chapter of the Act (sections 3 to 18) shall be applicable whereas in the latter, the relevant pro visions would be those contained in Chapter III of the Act (sections 7 to 18). It may be straightaway observed that the learned Advocate‑General could not satisfy me that Spain was a foreign State in terms of the definition of the expression contained in section 2 of the Act, namely, a state to which for the time being Extradition Acts of 1870 and 1873 were applicable. An interesting point was, however, sought to be made in this regard by him. It was contended that in point of fact, the Extradition Acts of 1870 and 1873 not having been included in the Pakistan Code recently published by the Ministry of Law, Government of Pakistan, stood impliedly repealed; otherwise, there was no reason that they should not have been included in the Statute Book. The contention is obviously misconceived inasmuch as, Extradition Act of 1903 is by no means a self -contained and independent statute which may be deemed to have repealed the earlier Acts of 1870 arid 1873, either by an express provision or by necessary intendment. On the contrary, the patent misconception of the argument becomes abundantly clear from the plain reading of the preamble of the Act of 1903 giving two‑fold object of the new Act, firstly a more convenient admi nistration of the Extradition Acts of 1870 and 1873, and of the fugitive offenders Act of 1881; and secondly, the amendment of the law relating to the extradition of criminals in cases where Extradition Acts of 1870 and 1873 did not apply. Clause (c) of section 2 defining "foreign State " as one to which for the time being the Extradition Acts of 1870 and 1873 were applicable also clearly overrules the contention. The mere facts, therefore, that the Pakistan Code as published by the Government of Pakistan (Ministry of Law) does not include Acts of 1870 and 1973, cannot be so construed as to indicate the implied repeal of the former Acts. An inference of repeal by implication which stands clearly negatived in the instant case is even otherwise not favoured by authorities on interpretation of statutes like Maxwell and Craies. An explanation of the exclusion of these Acts from the Pakistan Code seems to be that the Pakistan Code was confined to the publication of the Central and Provincial Acts and Ordinances passed respectively by the Indian Legislatures, up to the time of partition and subsequently by the Central and Provincial Legislatures of Pakistan. All the Imperial Acts passed by the British Parliament even though applicable to Pakistan thus forming part of the Statute Book were excluded from the Code. It is however hoped that the Central Ministry of Law would also examine the question of the substitution of Imperial Acts by new enactments.

15. As stated earlier, the learned Advocate‑General could not satisfy me that Spain was a foreign State in terms of section 2(c) in the sense that Extradition Acts of 1870 and 1873 had been applicable to it which in turn was dependent on the existence of an arrangement on reciprocal basis for the surrender of fugitive criminals, as provided in section 2 of the Extradition Act, 1870. This position also seems to be clear by the requisition placed by the Government of Spain in this regard (Annex. R/C), wherein the request for extradition of the petitioner was made "under offer or reciprocity." There is thus no escape from the position that Spain is not to be treated as a foreign State in terms of the definition contained in the Act, and as such the application of the provisions contained in Chapter II to the case of the petitioner is completely ruled out. The proper provisions of law which were thus applicable to the petitioner were those con tained in Chapter III. Therefore the proceedings purported to have been taken against the petitioner under section 4 of the Act by Mr. Irshadul Haq Kayani, the learned Magistrate should have been taken under section

10. In order to appreciate the difference between the two provisions it would be proper to reproduce the two side by side. "4.‑(1) Where it appears to any Magistrate of the first class or any Magistrate specially empowered by the Central Government in this behalf that a person within the local limits of his jurisdiction is a fugitive criminal of a Foreign State, he may, if he thinks fit, issue a warrant for the arrest of such person, on such information or complaint and on such evidence as would, in his opinion, justify the issue of a warrant if the crime of which he is accused or has been convicted, had been committed within the local limits of his jurisdiction. (2) The Magistrate shall forthwith report the issue of a warrant under this section to the Central Government. (3) A person arrested on a warrant issued under this section shall not be detained more than two months unless within that period the Magistrate receives an order made with reference to such person under section 3, subsection (1). (4) In the case of a person arrested or detained under this section the provisions of the Code of Criminal Procedure for the time being in force relating to bail shall apply in the same manner as if such person were accused of committing in Pakistan the crime of which he is accused or has been convicted." "10.‑(1) If it appears to any Magistrate of the first class or any Magistrate empowered by the Central Government in this behalf that a person within the local limits of his jurisdiction is accused or suspected of having committed an "offence" in any Stare not being a Foreign State and that such person may lawfully be surrendered to such State, or that a warrant may be issued for his arrest under section 7, the Magistrate may, if he thinks fit, issue a warrant for the arrest of such person on such information or complaint and on such evidence as would, in his opinion, justify the issue of a warrant if the offence had been committed within the local limits of his jurisdiction. (2) The Magistrate shall forthwith report the issue of a warrant under this section, if the offence appears or is alleged to have been committed in the territories of the State for which there is a Political Agent, to such Political Agent and in other cases to the Central Government. (3) A person arrested on a warrant issued under this section shall not, without the special sanction of the Central Govern ment be detained more than two months, unless within such period the Magistrate receives an order made with reference to such person in accordance with the procedure prescribed by section 9, or a warrant for the arrest of such person under section 7. (4) In the case of a person arrested or detained under this section, the provision of the Code of Criminal Procedure for the time being in force relating to bail shall apply in the same manner as if such person were accused of committing in Pakistan the offence with which he is charged." It may be noted that the expression "fugitive criminal" of a Foreign State used in section 4 has been substituted by "a person accused or suspected of having committed an offence in any State not being a foreign State". It would be pertinent in this context to refer once again to the definition of the term "offence" as appearing in section 2(c). It reads as follows: '`offence' includes any act wheresoever committed which would, if committed in Pakistan constitute an offence." Obviously the scope of this section becomes much wider than that of section 4 which is confined only to accusation and convictions of "extradition crimes" as clearly shown by the definition of the expression "Fugitive Criminal". It is thus clear that section 4 was erroneously invoked instead of section

10. But this would not be very material, inasmuch as, in the first instance the procedure in both cases is almost identical and the petitioner was not detained for more than two months in contravention of subsection (3) of section 10, the order of extradition having already been passed on 26th of January 1968, within the prescribed limit of two months. Furthermore, section 18 of the Act which we will discuss presently would fully cover the case of the petitioner curing at the same time, the procedural irregularities, if any. Of course, it did appear to the learned Magistrate that the petitioner could be lawfully surrendered to the requesting State and his competency to issue the warrants of the petitioner's arrest cannot be denied.

16. It may be pointed out that on a requisition being made to the Government of Pakistan by the Government of Spain for the surrender of the petitioner, proper procedure applicable was the one laid down in section

9. Here again, the scope of requisition is not confined to accusation of an extradition crime, but to an offence "which includes an act wheresoever com mitted which if committed in Pakistan would constitute an offence". Such an accused person is to be dealt with in accordance with the procedure prescribed by section 3 with the excep tion that the accused is not allowed to take the plea that the offence is of a political character or is not an extradition crime. Under section 18 the procedure laid down in Chapter III could be substituted by another procedure provided by any treaty for the extradition of offenders existing between the two States.

17. It was strenuously argued by the learned Advocate General that both Pakis an and Spain being high contracting parties to Convention No. 1342 for the suppression of traffic in person and their exploitation for prostitution (refer to page 272 of Volume 96 of the United Nations Treaty Series, 1951), the arrangements obviated the necessity of a formal treaty for extradition of fugitive criminals and in fact it was tantamount to such a treaty. A reference to "Multilateral conventions" a United Nations Publication of 1962, clearly establishes the factual correctness of the assertion made by the learned Advocate. General that Pakistan being a signatory signed the same on 21st March 1950, whereas Spain submitted its instruments of accession on 18th of June 1962. (Refer to VII-35-36), of the aforesaid convention for the suppression of traffic in person and exploitation for prostitution. Relying on paragraph 508 of Oppenheims International Law, Vol. I, Eighth Edition, it was argued by the learned Advocate-General that there was no difference between a treaty and convention and as such the fact of Spain and Pakistan being parties to the aforesaid convention would give rise to relevant treaty obligations between the two countries. Paragraph 508 reads as follows :- "508.-International compacts which take the form of written contracts are sometimes termed not only agreements or treaties but acts, conventions, declarations, protocols, and the like. But there is no essential difference between them, and their binding force upon the contracting parties is the same, whatever be their name. The Declaration of Paris, and the Final Act of the Vienna Congress are as binding as any agreement which goes under the name of 'treaty' or `convention'. The term `declaration' often denotes a 'law-making treaty' of a general character in which the parties engage themselves to pursue in future a certain line of conduct. But such law-making treaties are quite as frequently styled 'conventions' as 'declarations'. Thus the Hague 'Convention' concerning the laws and usages of war was based upon the unratified 'declarations' concerning the laws and customs of war produced by the Brussels Conference of 1874. Special reference must also be made to treaties concluded in the form of exchange of notes, They are often, though certainly not invariably, concluded for the regulation of matters of a technical character. Inasmuch as they are frequently stated to enter into force on signature, without the necessity of ratification, the form of 'exchange of notes' is particularly convenient where expeditious action is required for the conclusion and execution of agreements between States. On occasions they are made subject to ratification. There is no good reason for questioning their character as treaties. Whatever be the nature of the legal rights and obligations created between the two countries as a result of their being parties to the aforesaid Convention, the fact remains that in the absence of any Notification or Order making Extradition Acts of .187 and 1883 applicable to Spain, the latter cannot be considered foreign State as held earlier.

18. However, in. order to appreciate the force of the argument based on Convention No. 1342 aforesaid it would be necessary to examine Articles 1 and 8 of the Convention which opened for signatures at Lake Success (New York) on the 21st of March 1950 and came into force on the 5th of July 1951. "Article 1.--The parties to the present Convention agree to punish any person who, to gratify the passion of another ; (1) Procures, entices or leads away, for purposes of prostitution, another person, even with the consent of that person ; (2) Exploit the prostitution of another person, even with the consent of that person." "Article 8.--The offences referred to in Articles 1 and 2 of the present Convention shall be regarded as extraditable offences in any extradition treaty which has been or may thereafter be concluded between any of the parties to this Convention. The parties to the present Convention which do not make extradition conditional or the existence of a treaty shall hence forward recognize the offences referred to in Articles 1 and 2 of the present Convention as cases for extradition between themselves." The above Articles of Convention No. 1342 leave one in no manner of doubt that the offence of which the petitioner was accused in Barcelona was an extradition offence, which even otherwise, if committed in Pakistan would be an offence under the Pakistan Penal Code. In the circumstances, therefore, there appears to be no valid objection to the extradition of the petitioner and even if the proceedings as initiated against the petitioner under section 4 of the Act were not strictly in accordance with the provisions applicable to him under section 10 ibid this error in procedure does not appear to have caused any prejudice to the petitioner in his defence. In any case it does not derogate from the Government's power to pass the impugned order against him.

19. As stated earlier, a fugitive criminal may be either a citizen of this country who has committed an offence in a foreign State or a foreign national who has committed extradition offence in that country. In the case of the former surrender would be tantamount to the partial relinquishment or abrogation of the Government's own sovereignty over him subject to certain conditions which that Government being under treaty obligations voluntarily accepts on reciprocal basis. On the contrary, it appears that while dealing with a foreign national, the Government is not called upon to make such a concession or compromise of its sovereignty. Obviously, therefore, if not self-imposed restriction can be spelt out from the relevant law of the land, the right of the Government to extradite such an alien subject notwithstanding his entitlement to the enjoyment of the protection of law, cannot be questioned. Even otherwise, it does not stand to reason that if the Government of a particular country is desirous of getting rid of an alien subject as an undersirable person, it should be merely helpless to do so. Evan‑ while dealing with personnel of foreign Embassies who enjoy immunities and privileges to which an ordinary foreigner is not entitled, the, Government is quite at liberty to ask for, the re‑call of a person non‑grata and even order his externment. It is inconceivable that a foreign national may be inflicted on a Government against its will with no remedy to get rid of it. Such a position would be obviously inconsistent with the sovereignty of the State. Further support is lent to this view by the provisions contained in section 3 of the Foreigners Act of 1946, which reads as follows:- "3.‑(1) The Central Government may by order make provisions, either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigners for prohibiting, regulating or restricting the entry of foreigners into Pakistan or their departure there-from or their presence or continued presence therein. (2) . . . . . . . The membership of the Pakistan Police to the Inter-pole Organiza tion also in my view gives rise to contractual obligations on, reciprocal basis. Any department of the Government or any of its functionary has no locus standi to accept such an obligation on international level. Thus the Convention of this International Police Organization also amounts to agreements between the member States giving rise to contractual obligations between them. Any action, therefore, initiated by our local police at the instance of the Inter-pole Organization should also be considered to be perfectly in order. In any case there is nothing to stand in the way of the Government of Pakistan, if it has chosen to extradite the petitioner. The authorities relied upon by the learned counsel for the petitioner are not in any manner helpful to him as will be presently seen.

20. The learned counsel for the petitioner, relying on the non‑existence of an Extradition Treaty referred me in the first instance to para. 327 of "Oppenheim's International Law (Vol. I‑Peace) Eighth Edition). It read as follows :‑ "327.‑Extradition is the delivery of an accused or a con victed individual to the State on whose territory he is alleged: to have committed, or to have been convicted of, a crime, by the State on whose territory the alleged criminal happens for the time to be. Although Grotius held that every State has the duty either to punish, or to surrender to the prosecuting State, such individuals within its boundaries as have committed a crime abroad, and although there is as regards the majority of such cases an important interest of civilised mankind that: this should be done, no such rule has been adopted by the States, on the contrary states have always upheld their right to grant asylum to foreign individuals as an inference from their territorial supremacy, those cases excepted, of‑ course, which fall under, stipulations of special extraditian treaties, if any. There is, therefore, no universal rule of customary International Law in, existence which imposes the duty of extradition." In the first instance, I have already held that the Conventions to which the Governments of Pakistan and Spain are high contract ing parties virtually amount to Extradition Treaties, but even otherwise, by no stretch of imagination could it be spelt out from the aforesaid observation that the decision of the Pakistan Government to extradite the petitioner would be open to any legal objection, even if it may not be deemed to be under any legal obligation to do so. None of the other authorities cited by the learned counsel for the petitioner have any, direct bearing on the case and proceed on distinguishable facts. It would not be, therefore, necessary to refer to them.

21. Having considered all the pros and cons of the matter, I find that the impugned order of extradition passed against the petitioner is unexcpetionable and its validity is not open to challenge. In consequence the petition fails and is hereby dismissed. At the time of the announcement of the judgment, invoking part (a) of clause (2) of Article 58 of the Constitution, the learned counsel for tine petitioner made an oral request for the grant of a certificate for filing an appeal to the Supreme Court. I am not satisfied that the provision invoked by the learned counsel is really attracted inasmuch as in my view no question of the interpretation of the Constitution is involved. The learned counsel contended that the question of tae interpretation of Article 2 of the Constitution under which every person who happens to be for the time being in Pakistan is also entitled to the protection of law, is involved This position has already been conceded in the judgment and as such there is no dispute as to the interpretation of Article 2 of the Constitution. I, there fore, decline to accede to this request. S. Q. Petition dismissed.