1983 P Cr (PLP)

P L D 1973 Azad J & K 51 and Raja Muhammad Hanif Khan v. The State Cr. Misc. No. 19 of 1975 ref. Raja Mumtaz Hussain Rathore for Applicant. Sardar Rafzque Mahmood, Addl. A.‑G. for the State. Date of institution : 8th August, 1982. This is an application under sections 561‑A and 498, Cr. P. C. The case of the applicant is that he has come to know through a news item published in the issue of Daily 'Nawa‑e‑Waqt" dated the 5th of August, 1982 that police authorities from Pakistan intend to arrest the applicant in connection with some case registered against him in Pakistan. It has been further averred in the application that C. I. A. a police organization at Jhelum (Pakistan) has joined hands with police authorities at Mirpur Azad Kashmir and intend to arrest the applicant and take him out of Azad Kashmir territory without complying with the normal procedure laid down in Extradition Rules of 1976 Bk. The applicant seek anticipatory bail in offences under section 411/412, Penal Code and also seeks a direction to the police authorities in Azad Kashmir not to extradite the applicant without complying with the procedure laid down in the relevant law. The applicant was admitted to interim bail by this Court on the 8th of August, 1982 and a notice was issued to the Advocate General. Today, the learned Additional Advocate‑General has stated at bar that no extradition proceedings are pending against the applicant in Azad Kashmir and record of the case alleged to have been registered against the applicant, in Pakistan is not available. It has been urged by Raja Mumtaz Hussain Rathore, the learned counsel for the applicant that Extradition Act of 1903 as well as the Rules of 1976 Bk. are applicable to the cases of fugitive criminals and a fugitive cannot be surrendered to any authority out of Azad Kashmir, without complying with the procedure laid down in the aforesaid Act and Rules. The learned counsel for the applicant has cited a case reported as P L D 1973 A J & K 51, wherein it was held that Extradition Rules of 1976 Bk. are still valid in view of section 3 of Azad Jammu and Kashmir Courts and Laws Code Act of 1949 and section 3 of the Adaptation of Laws Act of 1959. He has also urged that the aforesaid Rules appear to have been framed under Extradition Act of 1903 which was also adapted by former Maharaja in Jammu and Kashmir State. He has referred to Jammu and Kashmir Laws Vol. I wherein not only the Extradition Rules of 1976 Bk., have been incorporated but Extradition Act of 1903 has also been included in the volume as appendix to the aforesaid Rules. It appears that the learned Judge, while deciding the case, reported as P L D 1973 A J & K 51, lost sight of the fact that apart from the Extradition Rules of 1976 Bk, the Extradition Act was a valid legislation on Statute Book of Azad Jammu and Kashmir in view of the provisions contained in section 3 of the Azad Jammu and Kashmir Courts and Laws Code Act of 1949. To substantiate his contention, the learned counsel for the applicant has relied on an unreported case entitled "Raja Muhammad Hanif Khan v. The State Criminal Miscellaneous No. 19 of 1975 and Criminal Miscellaneous No. 75 of 1975). wherein it was held by Mr. Justice Sardar Muhammad Sharif Khan (as he then was) that Extradition Act of 1903 is also as good a law as Extradition Rules of 1976 Bk. I am of the view that the perusal of Jammu and Kashmir Laws Volume 1, shows that the Extradition Act of 1903 and Extradition Rules of 1976 Bk. both are on the Statute Book of Azad Jammu and Kashmir and while surrendering a fugitive criminal, the compliance of the aforesaid Act and Rules is a condition precedent. Provisions have also been made in the aforesaid Act and Rules with B regard to the bail matter of fugitive criminals. Therefore, I am of the view that in presence of procedure, with regard to bail laid down in the said Act and Rules, general powers of granting bail under section

498. Cc. P. C. should not be resorted to, unless and until some exceptional circumstances are shown to exist in favour of the accused. So far as the point that applicant cannot be surrendred to Pakistan police without complying with the provisions of the aforesaid Act and Rules is concerned, the learned Additional Advocate‑General has frankly conceded that a fugitive criminal cannot be extradited without complying with the provisions contained in Extradition Act of 1903 and Extradition Rules of 1976 Bk. as incorporated in the Jammu & Kashmir Laws Volume‑

1. It has been also conceded by the learned Additional Advocate General that this Court, while exercising its inherent powers under section 561‑A, Cr. P. C., is competent to issue a direction that applicant should not be extradited without complying with the provisions of Extradition Act of 1903 A. D. and Extradition Rules of 1976 Bk. In view of the provisions laid down in the aforesaid Act and Rules, it is hardly conceivable that a fugitive criminal is surrendered to any authority out of Azad Kashmir territory in disregard to the provisions of the said Act and the Rules. In the light of what has been stated above, the interim bail granted to the applicant is cancelled. He may seek bail, if an occasion arises; according to the provisions of the aforesaid Act and the Rules, from the authorities visualized in the said Act and Rules. However, it is directed that applicant shall not be extradited without first complying with the pvovisions laid down in the Extradition Act of 1903 and Rule 1976 Bk. The result is that the application is partly accepted. Application accepted.