1983 P Cr (PLP)

The abovenoted two applications are made to this Court under section 561‑A, Cr. P. C. by the applicant against his arrest to be made by Muzaffarabad police, in case he fails to furnish bail in the sum of Rs. 5,000 to obedience to the bailable warrants issued by the Court of Anti‑Corruption Judge, Karachi for commission of an offence under section 409, P. C. The first warrant was sent to the Registrar of this Court for its execution and another one to the Home Secretary of the Government through the Ministry of Kashmir Affairs, Government of Pakistan:"‑ Both the warrants were forwarded to the Superintendent of Police, Muzaffarabad for their service on the applicant. The applicant has challenged the manner of the execution of warrants even alleging that as no extradition treaty is existing between the two Governments, the alleged fugitive offender cannot be surrendered to the Court at Karachi. The applicant and the learned Additional Advocate‑General were heard. This is correct to say that Azad Kashmir is not a part of Pakistan and it has Government of its own wielding powers over the territory called Azad Kashmir and so the Courts in Pakistan are not in a position to ‑get the warrants executed in the manner as was done by the Court of Anti. Corruption Judge, Karachi. Of course, this was a course adopted by that A Court against law. There is a prescribed procedure in shape of extradition rules under which extradition of fugitive offenders can be effected in due course of law on a demand made by a competent authority of the Govern ment seeking extradition of an offender. Some of the rules dealing with the method of extradition run as under :‑ (1) Whenever a police officer from outside the Jammu and Kashmir State may, with the assistance of the ‑ State Police, arrest within territory, a person charged with a cognizable and extraditable offence, committed outside the State territory, it shall be his duty to hand over the person so arrested and property, if any, seized by him to the State Police of the circle in which arrest was made or property seized ; and it shall be incumbent upon the latter :‑‑ (i) to receive the person and the property, if any. (ii) to grant acknowledgment to the person making the delivery, and (iii) to place the accused person and the property so received before the nearest Magistrate within 24 Lours or as soon as possible, with due regard to the distance to be traversed. (2) The Magistrate shall thereupon proceed to consider and determine the question of bail in conformity with the provisions of the Code of Criminal Procedure. (3) An application for extradition shall, in every case, be made within two months from the date of arrest. If the application be not so made, the accused person shall, if in custody, be set at liberty, if on bail, his bail bond shall be cancelled, unless be has already been restored to liberty in consequence of the intimation that evidence is not forthcoming. (4) x x x (5) In all cases the Police making the arrest shall, within the aforesaid two months apply for extradition in the manner determined by the administration to which they are subject forwarding with the application a summary of the prima facie evidence in the prescribed form and attested copies of the deposition of the prose- cution witnesses. (6) x x x (7) On receipt of the application and evidence, through proper channel, the Officer‑in‑Charge of Extradition work shall examine the prima facie evidence and shall, if necessary, call .for further evidence, examine in his discretion the person accused and then decide whether the evidence justifies his surrender. If the prima facie evidence be found sufficient and satisfactory, the Officer‑in‑Charge of Extradition work shall, by a warrant, authorise the State Police to secure and hand over the accused person to the authority deman ding extradition in the manner arranged and to be referred to hereafter. (8) Whenever the State Police is asked by the Police or District Magistrate in British India to arrest a person, residing in Jammu and Kashmir State, on a charge of an extraditable offence, whether cognizable or non‑cognizable, the State Police shall proceed to make the arrest and the person arrested shall be dealt with in the manner set out in the foregoing rules. The Extradition Act, 1903 is shown as an appendix to these rule which is as good a law as the rules are. None of the methods fixed by law was adopted by the Court of Anti Corruption Judge, Karachi for the apprehension of the accused so that he could be brought before his Court to stand a trial for the offence allegedly committed by him. Before a surrender of an offender is made to the authorities concerned, an application, as required by law, is to be made by them to the Officer‑in‑Charge of the Extradition work alongwith a summary of the prima facie evidence in the prescribed form and attested copies of the statements of the prosecution witnesses recorded either by the Police or the Magistrate, as the case may be, and on examination of the evidence so tendered, he shall proceed to call for further evidence, if necessary, and may even examine the person accused and his evidence, if any, and then decide whether the evidence adduced before him justifies the surrender of the accused or not ? If the evidence so considered be found sufficient and satisfactory, he shall, by a warrant, authorise the State Police to secure and hand over the offender to the authority demanding extradition as provided by law. Moreover, offence under section 409, P. C. is not found included in the schedules appended with the rules showing the extradition offences. However, any offence against any section of the Penal Code, may be specified by a competent authority so as to make it a scheduled offence in relation to extradition offences. The surrender of the accused can only be made under the provisions of Extradition Rules of 1976 Bk. read with Appendices thereto. Thus the surrender of the accused in compliance with the warrants issued by the Court of Anti‑Corruption Judge, Karachi against him in the manner desired by that Court will be illegal and as such the execution of the warrants to question is stopped accordingly. The warrants now before this Court shall be returned in original to the Court of Anti‑Corruption Judge, Karachi as for the reasons above, they are inexecutable here in Azad Kashmir. The surrender of the fugitive offender to a trial Court in Pakistan can only be made in accordance with law in force relating to extradition of criminals. In the result these applications stand accepted in the manner indicated above. Applications accepted.