P L D 1993 Lahore 732 (PLP)

CH. MUSHTAQ AHMAD KHAN, J.

This judgment shall be read, as facts reasons part, of our short order dated 25-5-1993, whereby after hearing arguments in the writ petition, we had dismissed the same, for reasons to be recorded later.

2. Through this Constitutional petition, Nargis Shaheen, wife of on Mian Muhammad Azam has challenged the legality. and vires of the report/order dated 15-2-1993 submitted by Additional Deputy Commissioner, (General), Islamabad, respondent No.4, to the respondent No. recommending extradition of Muhammad Azam accused, to U.SA and the order dated 3 54M passed by the Federal Government of Pakistan respondent No. 1, whereby Mian Muhammad Azam referred to above, ha been ordered to be extradited to United States of America, , to investigation and trial in a case registered against him on the basis of trial in allegations of conspiring to import and trafficking of heroine to the said country, in violation of law of that country. .

3. Briefly stated facts of the case out of which this writ petition has arise are that vide requisition dated 2-6-1992, submitted under the provision o section 6 of the Extradition Act, 1972 (which &hall be referred as "Act" in late part of this judgment), Government of the United States of America, through their diplomatic channel, had asked for surrender of Mian Muhammad Aza alias Muhammad Azam resident- of House No 11-A, Lane No. 6, Officers Colony, Ghazi Road, Saddar Lahore, who is a citizen of Pakistan, to face investigation and trial, for his alleged involvement in conspiracy to distribute and possess with the intent to distribute heroin, in violation of 21 U.S.C. 812, 841 (A) (1), 841 (B), (1) (A) 812, 952 and 960 (B) (1) (A), in case of indictment No. 92 C.R. 431 filed on 18th May, 1992 in the U.S.A. District Court for the Southern District of New York (Manhatan) Ex. P.5 which is reproduced as under: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA V. MIAN MUHAMMAD AZAM . . AND AITEMAD LODHI INDICTMENT Defendants. COUNT ONE 92-CRIM.431 The Grand Jury charges: From on or about April 8, 1992, to on or about May 15, 1992, in the Southern District of New York and elsewhere, Mian Muhammad Azam and Aitemad Lodhi, the defendant-,, together with others known and unknown,. unlawfully, intentionally and knowingly combined conspired, confederated and agreed together and with each other to violate the narcotics laws of the United States, to wit, Sections 812, 841 (a) (1) and 841 (b) (1) (,~) of Title 21, United Stated Code. 2 It was a part and object of this conspiracy that Mian Muhammad Azam and Aitemad Lodhi the defendants, and their co-conspirators would and did distribute, and possess with intent to distribute, one kilogram and more of a mixture and substance containing a detectable amount of heroin, in violation

13. In furtherance of this conspiracy and to effect the illegal objects thereof, the following overt acts, among others were committed in the Southern District of New York and elsewhere: (a) On or about April 8, 1992, Mian Muhammad Azam the defendant, met with a confidential enforcement (C/1) of the Drug Enforcement Administration ("DEA") in Lahore, Pakistan and asked C/I to obtain clearance through Pakistan Customs for a, shipment of heroin. (b) On or about April 17, 1992, Mian Muhamma Azam the defendant, gave C/I approximately $1,000 in partial payment for C/1's assistance in obtaining clearance through Pakistan Custom's for the heroin shipment. On or about April 23, 1992 Mian Muhammad Azam, the defendant requested C/I to hire a courier to transport a shipment of heroin to (c) New York, New York. (d) On or about April 29, 1992, Mian Muhammad Azam the defendant placed two suit-cases containing approximately two kilograms o heroin inside the trunk of C/Fs car. (e) On or about May 15, 1992, Aitemad Lodhi, the defendant, telephoned a DEA Special Agent working in an under-cover capacity ("U/C") at a hotel located in the vicinity of 230 East 51st Street, New York, New York. (f) On or about May 15, IW2, Aitemad Lodhi, the defendant, brought approximately $20,000 to a hotel located in the vicinity of 2.30 East 51st Street, New York, New York, to exchange a suitcase containing approximately one kilogram of heroin. 'Title 21, United States.Code, Section 846. (4) From on or about April 8, 1992, to on or about May 15, 1992 in the Southern District of New York and elsewhere, Mian Muhammad Azam and Aitemad Lodhi, the defendants together with others known and unknown, unlawfully, intentionally and knowingly combined conspired, confederated and agreed together and with each other to violate the narcotics laws of the United States specifically sections 812 952(a) and 900(b)(1)(A) of Title 21, United States Code. (5) It was a part and object of the conspiracy that Mian Muhammad Azam and Aitemad Lohdi the defendants and their co-conspirators, unlawfully, intentionally and knowingly, could and did import into the United States from a place outside thereof, to wit, Lahore Pakistan, one kilogram and more of a mixture and substance containing a detectable amount of heroin, in violation of sections 812, 952(a) and 960(b)(1)(A) of Title 21, United States Code. OVER ACTS, (6) In furtherance of the conspiracy and to effect the illegal objects thereof, the following over acts, among others, were committed in the Southern District of New York and else where: (a) On or about April 8, 1992, Mian Muhammad Azam, the defendant, met with a confidential informant (C/1) of the Drug Enforcement Administration (DEA) in Lahore, Pakistan and. asked C/I to obtain clearance through Pakistan Customs for a shipment of heroin. .(b) On or about April 17, 1992, Main Muhammad Azam, the defendant gave (C/1) approximately $1,000 in partial payment for C/1's assistance in obtaining clearance through Pakistan Customs for the heroin shipment. (c) On or about April 23, 1992, Mian Muhammad Azam, the defendant, requested (C/1) to hire a courier to transport a shipment of heroin to New York, New York. (d) On or about April 29, 1992, Mian Muhammad Azam, the defendant, placed two suitcases containing approximately two kilograms of heroin inside the trunk of (C/1's) car. (e) On, or about May 15, 1992, Aitemad Lodhi, the defendant, telephoned a DEA . Special Agent working in an under cover capacity (U/C) at a hotel located in the vicinity of 230 East 51st Street, New York. On or about May 15, 1992, Aitemad Lodhi, the defendant, brought approximately $2,000 to a hotel located in the vicinity of 230 East 51st Street, New York, to exchange a suitcase containing approximately one kilogram of heroin. (Title 21, United States Code, Section 963)

4. On the receipt of said requisition Government of Pakistan respondent No.1, initially appointed Mr. Aftab Habib, additional .Deputy Commissioner (General) as Enquiry Officer vide order dated 6th of June, 1992, who partly conducted the enquiry proceedings. On his transfer respondent No.4 was appointed. to conduct the further enquiry proceedings vide order dated 6th of October, 1992.

5. During the enquiry proceedings Mian Muhammad Azam accused was arrested and sent to judicial lock-up. Prosecution examined two listed witnesses in support of the prosecution case namely Mr. Muhammad Shoaib Saecd, Section Officer, Ministry of Interior, Govt. of Pakistan Islamabad, and Mr. Sher Gul Khan investigative Assistant, Drug Enforcement Administration of the United States of America (an -attached department of US Embassy in Pakistan).

6. Shoaib Saced (P.W.1), has deposed that the Ministry of Interior, had received the requisition consisting of extradition documents from the USA through the Ministry of Foreign Affairs on 3-6-1W2, asking for the surrender of Mian Muhammad Azarn accused. This witness has placed on record and proved the following documents:-- (i) A certificate issued by the USA Secretary of State (Exh. P.1 (10 Certificate issued by the Deputy Assistant Attorney-General for administration under the seal of LIS Department of justice (Exh. P.2). (iii) Certificate of Mr. George W. Proctor Director Officer of International Affairs US Department of Justice Washington D.C. dated 29th May, 1992 Exh. P.3. (iv) Affidavit of Mr. Sharon L. Davies, Prosecutor of States of New York County of New York, Southern District of New York. It has been authenticated by M. Sharon E. Grubin, United States Magistrate Judge, Southern District New York, USA (Exh.P.4). (v) - Certified true copy of the indictment of Mian Muhammad Azam, riled on 19th '6f May, 1992 in the US District Court, Southern District of New York attested by the Fore person of the Grant Jury and the United States Attorney. This is also attested by Deputy clerk, Mr. James M. Parkinson of the Court. (Exh.P.5). (vi) Original warrant of arrest of Mian Muhammad Azam issued on 19th May, 1992 by the US Magistrate Judge (Exh. P.6). ' (vii) Affidavit of Mr. Sher Gul Khan sworn to before US Magistrate Judge of the US District Court of New York dated 22nd May, 1992 and attested by the US Magistrate Judge, Southern District Judge,, USA (Exh.P.7). (viii) True copies of two photographs of Mian Muhammad Azam (Exh-P-8). (ix) Original affidavit of Mr. Charles F. Lee sworn to before U.S. Magistrate Judge of the U.S. District Court (Exh.P.9). (x) True copies of photographs of Mian Muhammad Azarn (Exh. P.10). (xi) The witness further stated that on consideration of the affidavit and certificates etc. contained in the documents, the Ministry of Interior decided to hold an enquiry through a Magistrate 1st Class and a copy was issued on 6-6-1992 (Exh. P.11) for the appointment of Additional Deputy Commissioner (G), Islamabad as an Enquriy Officer for determining whether a prima facie case exists against Mian Muhammad Azam accused, to stand trial before the U.S. Court. (xii) The witness also placed on record photocopy of Extradition Treaty between Great Britain and U.S.A. (Exh. P/12) and it was extended to India by the order of the counsel dated 23-2-1942. He also produced a copy of list of the Extradition states issued vide S.R.O. 211 (1)/73, dated 20-2-1973 (Exh.P.13) in which the name of United States of America is mentioned as a Treaty State. During the course of cross-examination, the witness has stated that the documents Exh. P.I. to Exh.P.13 have been authenticated under the seal of Secretary of State of the USA and have been attested by the Attorney-General of the said country and have been further authenticated by the Deputy Attorney-General. According to the witness, the documents in question are original documents which were sworn and subscribed to, before the respective Court and that documents Exh.P.4 to Exh.P.10 are certified as true copies of the documents mentioned in the official file maintained by U.S. Department of Justice in Washington by the Director, Office of International affairs. This witness has stated that no new treaty of extradition between U.S.A. and Pakistan was signed after the promulgation of Extradition Act, 1972, as the .previous treaty between the U.S.A. and Great-Britain has been adopted as per provisions of the "Act". This witness has further stated that before passing of the order for holding of an enquiry, the competent authorities applied mind to the facts and circumstances of the case and passed a judicious order for holding of an enquiry under provision of section. 7 of the "Act".

7. Mr. Sher Gul Khan, Investigative-Assistant, Drug Enforcement Administration of the United States of Amercia, at Lahore, appearing as P.W.2, has deposed that he is working as Investigative Assistant since 1994 with U.S. DEA and that he has been associated with the investigation of the drug related activities of the accused since November/December, 1991.14e has stated that during earlier part of April 1992, a confidential informant of the DEA informed us that he had been approached by the accused to help him to export multi kilogram quantities of heroin from Pakistan to U.S.A. Numerous telephonic conversations in this behalf between the confidential informant and the accused were recorded. On 22-4-1992, the confidential informant made a telephonic call to the accused which was also recorded, in which call Mian Muhammad Azarn has asked the C-1 to assist him in clearing the consignment of heroin from Lahore and deliver the same in USA. Thereafter, Muhammad Waris, a clearing agent who was acting as C-1 in this case, was, met by Mian. Muhammad Azam at his residence after mid-night on 23-4-1992, where he arrived at in a red Suzuki car registration NoAl to LOA 1290. In the meeting the accused asked the C-1 to arrange the delivery of heroin from Lahore to New York which consignment was promised to be delivered to him at Lahore within a week. This meeting and conversation was recorded on video and audio tapes. On 29-4-1992 at about 4-00 p.m. Mian Muhammad Azam, Accused told the C-I on telephone that he would be coming to deliver the heroin in the office of the confidential informant at about 5-00 p.m. This conversation was also recorded. At the appointed time, the witness along with other witnesses of DEA parked their cars outside the office of the C-1. it was observed that Mian Muhammad Azam accused arrived in the office of the C-1 in a red Suzuki car registration No.LOA 1290 and parked the vehicle beside the vehicle of C-1. He took out two suit-cases from his car and placed them in the vehicle of C-1. Thereafter he drove away. The C-1 drove his vehicle to the place where the witness as well as the other members of the trap party were present and handed over the two suit-cases delivered by the accused to the trap party. This activity of the accused was also recorded on a video-tape. Subsequently the suit-cases were taken to the DEA Office at Lahore and initial field test was performed on a white powdery substance which was extracted from the false linings of the suit-cases. As per field test, it was prima facie proved that the powder is a derivative of opium. The two suit-cases were then sealed and placed in a security vault at the DEA Office Lahore. On 8-5-1992, the witness along with special agent Charles Lee of DEA left Lahore for New York. On reaching New York as per previous arrangement Mian Muhammad Azam accused was informed by the C-I that the said heroin had safely arrived in New York, which can be collected as his instructions, from a Pakistani national named Shahid Ali (code name being used for PW-2) at the given address of a Hotel. On 15th May, 1992, at about 4-00 p.m. the witness received a telephonic call in his room in the hotel, where he was staying, from one person who disclosed his name as 'Amjad' who asked for the delivery of the heroin to him as per instruction of the accused. He was asked to come and collect the drug. After about 30 minutes thereafter, said person arrived in the room. At that time special agent Robin Waugh of DEA New York was also present. Other agents were present in the adjoining room. The said person had brought with him a brown basket containing U.S. currency amounting U.S. Dollars 20,000 which was to be taken to Pakistan to be handed over to the accused as a return for one suit-case. Other suit-case was to be collected on payment 20 thousand U.S. Dollars more. He further conversed that the heroin was concealed in the two suit-cases by the accused in his presence in Pakistan and that he had been a business partner in drugs with Mian Muhammad Azam for the past several years. This conversation was also recorded on audio tape. Shortly, thereafter the said person was arrested for receiving and possessing heroin, prohibition drug, whereupon he disclosed his correct name as Aitemad Lodhi, and state that prior to coming to the hotel he had received a telephonic call from t accused who had given him the telephone and room number of the hotel an( also the name of the person i.e. Shahid (code name being used by P.W.2) from where and from whom the heroin is to be collected. During the course o cross-examination, a suggestion has been given to witness that one "sweet who is the daughter of Film Star "Laila" and is the ex-wife of Mian Muhamma Azam, had illicit relations with him and therefore on her asking the witness ha involved the accused in this false case. The suggestion has been denied by him Evidence was closed by the public prosecutor on 22-10-1992. 7-A. Mian Muhammad Azam was examined under section 342, Cr.P.C who denied the allegations leveled against him and stated that he is innocence and shall produce evidence in defence. Consequently, he was directed t produce his defence evidence on 18-114992. On the date fixed, however, h4 was not produced before the enquiry officer from the judicial lock-up an therefore the case was adjourned to 25-11-1992. However, on the same date after the order had been passed, the accused was produced from the judicial lock-up but as the case had already been adjourned, it was directed that it shall be taken up on the date already fixed. On 25-11-1992, the accused refused to get his defence evidence recorded on the ground that there are certain unconcerned persons in the Court room in whose person he will not ' like to produce his defence witnesses. The objection however was overruled on the ground that the persons present during the course of proceedings are connected with the enquiry proceedings and as enquiry is being held in open Court, the objection raised by the learned counsel for the petitioner was not lawful. The accused was directed to produce his complete defence evidence on 5-12-1992 and also to rile written statement. On 5-12-1992, no defence evidence was produced by the accused and it was stated that he has not brought any evidence in defence. However, an application was riled and a prayer was made therein that Muhammad Waris C I is sought to be produced as a defence witness, therefore, he should be summoned through Court. This application was rejected on the ground that it has been moved just to delay the proceedings and as it was not submitted earlier well in time, hence the witness is not allowed to be summoned as a defence witness by the accused through Court. The accused did neither produce nor requested for producing any other defence evidence. He did not rile his written statement either, hence he was directed to rile his written statement on 23-12-1992. He however placed on record copies of two F.I.Rs. in order to prove enmity with Aitemad Lodhi, his co-accused. The accused riled his written statement on 5-1-1993. Enquiry was completed by the enquiry officer on 12-1-1993 and report was prepared and submitted to the respondent No.1 on 15-2-1993, wherein surrender of the accused was recommended. A copy of the report was supplied to the accused who submitted his reply to the respondent No.1 as per provisions of section 10 of the "Act". After considering the aforementioned report, the evidence, other material produced before the Enquiry Officer and the reply submitted by the accused, the respondent No.1 vide order dated 3-3-1993 issued a warrant of extradition of the accused. This order/warrant was challenged by the petitioner before this Court in Writ Petition No.273 of 1993 on 5-3-1993. As no speaking order had been passed, a statement was made by the learned Standing Counsel for the respondents, that the respondent No.1 shall withdraw the order impugned in the writ petition and shall pass a fresh speaking order in accordance with law. Respondent No.1 again passed a similar order on 5-4-1993 which was again challenged by the petitioner in Writ Petition No.280 of 1993 before this Court. This writ petition was disposed of vide order dated 4-5-1993 as the learned appellate Deputy Attorney-General who appeared on behalf of the respondents made a statement that the order dated 5-4-1993 has already been withdrawn and a fresh order dated 3-5-1993 has been passed in accordance with law as per undertaking given before this Court in the earlier writ petition. A copy of the fresh order was handed over to the learned counsel for the petitioner. Hence, the writ petition was disposed of as -the petitioner intended to challenge the order dated 3-5-1993 afresh Hence this petition. .

8. Mr. Abdul Basir Oureshi, Advocate, has appeared on behalf of the petitioner whereas Mr. Mumtaz Ali Mirza learned Deputy Attorney-General of Pakistan has appeared on behalf of the respondents. 9. . Mr. Abdul Basir Qureshi, learned counsel for the petitioner has raised the following contentions:

(1) that the Extradition Act, 1972 as well as the treaty, under which the impugned order has been passed is ultra vires of the Constitution of Islamic Republic of Pakistan, 1973 as it is violative of the provisions of Articles 8 and 15 of the Constitution and is also against injunctions of Islam as the same confers upon the Government power to surrender a Muslim Citizen of Pakistan to a non-Muslim State where Pakistani Muslims are treated with hatred and discrimination. Hence the impugned order is without a lawful authority, that the order impugned in the writ petition is not a speaking order and therefore is not maintainable in law. (3) that no prima facie case has been made out against the accused, hence no order for his surrender could have been passed. (4) that no proper requisition for surrender of the accused has been received by the respondent No.1 from the Government of the USA Hence the proceedings which . have culminated in passing of the impugned order of surrender, are corarn non judice. (5) that the Enquiry Officer has failed to hold the enquiry in accordance with the procedure laid down for holding of a Sessions trial as required under section 8 of the Act hence the enquiry report is erroneous in law. (6) that the accused has not been given a right of defence inasmuch as his request to summon Muhammad Waris C-1, who was the star witness of the prosecution in this case and had not been produced in evidence, has illegally been turned down by the Enquiry Officer. Hence the enquiry report being violative of the principles of natural justice and provisions of section 8 of the Act, is a nullity in the eyes of law and as such same infirmity is attached to the impugned order of surrender passed by the respondent No.l. (7) That the learned Enquiry Officer has tampered with the record inasmuch as during the course of the recording of the evidence he ha written certain orders in his own handwriting but on receipt of copied of the statements of the witnesses by the accused, it has transpired that the original record does. not contain any orders in: the handwriting. of the Enquiry Officer. This tampering with the record has caused a serious prejudice to the accused .(8) , that the accused was committed on 15-2-1992 and the order of surrender could have been passed within a period of two months w.e.f. that date. As the impugned order has been passed on 3rd of May, 1993 therefore, it is illegal and is not maintainable in law as per provisions of section 12 of the Act.

10. In giving his point wise elaboration to his arguments learned counsel has taken us through the provision of Article 8 and Article 15 of the Constitution of Islamic Republic of Pakistan, 19'73 and has contended that under these Articles no law can be enacted which may offend against the right of a citizen of Pakistan, to. reside in Pakistan. Learned counsel has further referred to Article 11 of Constitution of Islamic Republic of Pakistan, 1956, Article 5 of the Constitution of Islamic, Republic of Pakistan, 1962 and Article 19 of the Indian Constitution, which provides a restrictive rider over the eight of liberty of residence in the home country as the right is to be exercised subject to reasonable restrictions imposed by law and contends that Article 15 .of the Constitution of Islamic Republic of Pakistan, 1973 does not provide any such restrictive rider, therefore omission being intentional, no law or treaty can be framed or entered into or adopted which offends against the right of residence of a person in Pakistan. Amendment 14 of the American Constitution has also been referred to in support of his above arguments. The gist of the arguments addressed by the learned counsel for the petitioner on this point is that the Extradition Act, 1972 permits the Federal Government to direct the surrender of a citizen of Pakistan to a foreign State. This amounts to imposition of restriction upon a citizen of Pakistan to reside in Pakistan which is his Constitutional right and therefore the Act as well as the extradition treaty is ultra vires of the Constitution of 1973 and hence the impugned order passed thereunder is voi4 ab initio being also against the injunctions of Islam as no Muslim can be handed over to a non-Muslim State, even if he is fugitive offender

11. Regarding his contentions that the Enquiry Officer did not follow the procedure as laid down in section 8 of the "Act" learned counsel has contended that the copies of the statements of witnesses were not handed over to the accused as required by law and that he was not allowed to produce defence witnesses although he had submitted an application in this behalf and therefore the case, of the accused has been seriously prejudiced and as such the report submitted by Enquiry Officer and consequential order passed on the basis of said re ' port are illegal and without lawful authority- Learned counsel has further contended that as held in case of "Muhammad Azim Malik v. Government of Pakistan PLD 1989 SC 519 and case of "Muhammad Azam Malik v. A.CA SDM Preedy (South), Karachi and others PLD 1989 SC 266 neither the Government could have passed the impugned order nor the Enquiry Officer could have recommended surrender, on the basis of evidence recorded in this case as the same is 'hearsay' as no direct evidence to connect the accused has been produced by the prosecution. Learned counsel has further referred to the case of Zulquarnain Khan v. Government of Pakistan 1990 MLD 1611 and a leave granting order passed in C.P.S.LA * No. 44-K-1989 decided on 5-2-1989 and has vehemently contended that the evidence produced in this case does not satisfy the test laid down by their Lordships of the Hon'ble Supreme Court of Pakistan, justifying the 'passing of an order of surrender. Further elaborating his contentions, learned counsel has argued that Muhammad Waris the decoy witness has been intentionally withheld and has also not been allowed to be produced 'as a defence witness. The two witnesses namely Shoaib Saced, PW-1 and Sher Gul PW-2 have do direct knowledge about involvement of the accused and their evidence being in the nature of the 'hearsay' evidence in liable to be excluded. There is also no evidence on the record that the substance which was allegedly handed over to Muhammad Waris by the accused was heroin as no laboratory test was conducted in Pakistan and therefore, in this case there being absolutely no evidence on record on the basis whereof the accused can be said to have conspired to import or to smuggle heroin to United States of America or to have any connection with Aitemad Lodhi, a co-accused in this case who has been arrested in USA, it cannot be said that accused person is in any manner involved in this case. It is vehemently argued that there are two FIRs on the record of this case which clearly prove that "Aitemad Lodhi" is inimical towards the accused and he has got the accused involved in this false case. It is contended that even trap was unauthorized and if at all some offence is committed', it was committed in Pakistan but -to case has been registered against the accused in Pakistan. This fact also proves that the whole story is concocted. Hence no. case is made out for ordering surrender of the accused .for his trial in USA in which country the Pakistani Muslims are treated discriminately and in case the accused is handed over to the said Government, he does not expect to have a fair trial. Reference has been made by the learned counsel to a case of R.v. Governor of Brixton Prison (1992 (3) All E.R. 747) and has been contended that in similar circumstances when allegation against the accused person was that he has embezzled certain amounts and original account books were not produced, a writ of herbs corpus was issued against the detention of the accused by a British Court and as the primary evidence in this case also is not forthcoming, accused is also liable to be released in the light of the law declared in the aforementioned case.

12. Elaborating his contention that the record has been tampered with by the Enquiry Officer, learned counsel has referred to applications Annex. EI, Ell, EIII, and. E.IV. of this writ petition and has contended that during the course of enquiry proceedings the accused has been pointing out that the record has been tampered with inasmuch as the handwritten portions of the orders recorded on the order-sheet are not available on the file hence, no extradition report on the basis of such record should be submitted but no action has been taken nor any enquiry has been held regarding the above allegations. Hence, the impugned report/orders are illegal and without a lawful authority and are liable to be struck down in exercise of writ jurisdiction of this Court.

13. Mr. Mumtaz Ali Mirza, learned Deputy Attorney-General has produced before us the original file, relating to the enquiry proceedings and passing of the order by the respondent No.l. Learned Deputy Attorney- General has argued that the provisions of Extradition Act, 1972 and the treaty are not violative of Articles 8 and 15 of the Constitution of Islamic Republic of Pakistan, 1973, and this enactment and the treaty have been upheld by the Supreme Court of Pakistan in case of "Muhammad Azani Malik v. Government of Pakistan" (PLD 1989 SC 519) relied upon by the learned counsel for the petitioner. It is further argued that the "Act" and the treaty are in accord with the injunctions of Islam and international law and hence are protected under Articles 2-A and 227 of the Constitution. Learned counsel has placed reliance on case of "Muhammad Asim Malik v. Anwer Jalil" (PLD 1989 Lahore 279) decided by a Division Bench of this Court as well as unreported Division Bench judgment of this Court rendered in case of "Nasrullah Khan Henjra" Writ Petition No. 130-92 decided on 22-12-1992 and has vehemently argued that lawful and judicious orders have been passed in this case in pursuance of documents of requisition received from a friendly "treaty country" on the basis of sufficient evidence and material in accord with, international laws and laws of the country. Hence the impugned report and the order cannot be said to have, been passed without a lawful authority. Learned counsel has argued that the writ jurisdiction is discretionary in nature and as the petitioner is involved in a very heinous offence and is a fugitive offender he is not entitled to the exercise of discretion in his favour inasmuch as the offence committed by the accused affects the humanity as a whole, therefore, even if there is some irregularity in the enquiry proceedings (though not conceded) this Court may not * interfere in writ jurisdiction. Learned counsel contends that ii was not at all necessary to produce Muhammad Waris C-1 as a witness or to summon him as a. defence witness when the accused had been made no move in 1his behalf well in time. Learned Enquiry Officer having refused to I summon the witness. through Court, cannot be said to have committed an illegality while exercising his discretion. Allegations of tampering with the record are also false and frivolous and are not supported by any evidence. The order impugned in this petition is judicious and speaking in nature and was initially passed within a period of two months from the date of committal. Hence the writ petition merits dismissal. 13-A. We have considered the arguments addressed by the learned counsel for the parties, have gone through the record and the case law cited by the learned counsel for the parties at the bar and traced out, by our own research. In order to appreciate the arguments and to adjudicate the contentions raised, it will be of advantage for the purpose of ready reference, to reproduce the relevant provisions of the Constitutions referred to by the learned counsel for the petitioner, as well as relevant portions of provisions of Articles 2-A and 227 of the Constitution of Islamic Republic of Pakistan, 1973, along with relevant verse from Holy Qur'an and the List Sermon delivered by 'MUH,AMMAD' (may peace be upon him) on the Ninth day of Dhul Hibah 10 A.H. in the Uranah valley of Mount Arafat, which are reproduced as under:- CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN, 1956. Article

11. Freedom of movement and right to hold and spouse of property.-- Subject to any reasonable restriction imposed by law in the public interest, every citizen shall have the right

(a) to move freely throughout Pakistan and to reside and settle in any part thereof; (b) to acquire, hold and dispose of property. CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN, 1962. Article

5. Freedom of movement and right to acquire prop

(1) No law should impose any restriction

(a) on the freedom of a citizen to move throughout Pakistan or to reside or settle in any part of Pakistan or (b) on the freedom of a citizen to acquire, hold or dispose of property in any part of Pakistan. (2) This principle may be departed from where it is necessary so to do in the public interest. CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN 1973. Article 2-A. The principles and provisions set out in the Objectives Resolution reproduced in the Annex are hereby made substantive part of the Constitution and shall have effect accordingly. ANNEX (Article 2-A) (in the name of Allah, the most Beneficent ) the most Merciful. Whereas sovereignty over the entire universe belongs to Allah Almighty alone and the authority which he has delegated to the State of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust. Wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be full observed; wherein the Muslims shall be enabled to order- their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Qur'an and the Sunnah. wherein shall be guaranteed fundamental rights including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, workshop and association, subject to law and public morality; So that 12coVIe of Pakistan may prosper and attain their rightful and honored 121a~e among-st the nations of the world and make their contributions towards international peace and progress and happiness of humanity.) "(underlining is ours)" Article S. Any law, or any custom, usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall to the extent of inconsistency, be void. (2) The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void. Article

15. Every citizen shall have the right to remain in, and subject. to any reasonable restriction imposed by law in the public interest, enter and move freely throughout Pakistan and to reside and settle in any part thereof. Article

227. All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Our'an and Sunnah, in this part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such injunctions. (2) (3) Nothing in this part shall affect the personal laws of non-Muslim citizens or their status as citizens. CONSTITUTION AT LAW OF INDIA Article 19(l). All citizens shall have the right- (e) to reside and settle in any part of the territory of India! (f) .. (9) (2) (3) (4) ... ... ... ... ... ... ... ... ... ... ... ... (5) Nothing in sub-clauses (d) and (e) of the said clause shall affect the operation of any existing law in so, far as it imposes, or prevents the State from making any law imposing reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interest of the general public for the protection of the interests of any Scheduled Tribe. AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA. AMENDMENT NO. XIV. Section No.(1) "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside. No State shall make or enforce any law which shall abridge the privileges Of immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law-, nor deny to any person within its jurisdiction the equal protection of the laws." VERSES OF SURAH AL-MAIDAH OF THE HOLY OMAN.- VERSE NO.42- (In the name of Allah, the Beneficent, the Merciful) "Listeners for the sake of falsehood! Greedy for illicit gain! If then they have recourse unto thee (Muhammad) judge between them or disclaim jurisdiction. If thou disclaimest jurisdiction, then they cannot harm the at all. But if thou judgest, judge between them with equity. Lo! Allah loveth the equitable. VERSE NO.44. "Lo! we did reveal the Torah, wherein is guidance and a light, by which the Prophets who surrendered (unto Allah) judged the Jews, and the rabbis and the priests judged) by such of Allah's Scripture as they were bidden to observe, and thereunto were they witnesses. So fear not mankind, but fear Me. And barter not My revelation for a little gain. Whose judgeth not by that which Allah 6th revealed such are disbelievers." VERSE NO-45. 'And We prescribed for them therein: The rife for the rife, and the eye for the -eye, and the nose for the nose, and the car for the cart and the, tooth for the tooth, and for wounds retaliation. But whose forgoeth it (in the way of charity) it shall be expiation for him. Whose judgeth not by that which Allah hath revealed; such are wrong-doers." VERSE NO-47. "Let the people of the Gospel judge by that which Allah hath revealed therein. Whose judgeth not by that which Allah hath revealed, such are ever-livers." VERSE NO-49. "So judge between on them by that which Allah hath revealed, and follow they seduce thee from some not their. desires, but beware of them lest Allah hath revealed unto thee. And if they turn part of that which is to smite them for some sin Of away, then know that Allah's will theirs. LO! many of mankind are evil livers," QURAN VERSE VERSES OF SURAH AL-NESA OF THE HOLY NO. 58. -So! Allah commandeth You that ye restore deposits to their owners, s and, if ye judge between mankind, that ye judge justly, LO! comely is this which Allah admonisheth you. Lo! Allah is ever Hearer, Seer." VERSE NO.59. "0 ye who believe! Obey Allah, and obey the messenger and those of you who are in authority, and if ye have a dispute concerning any matter, refer it to Allah and the messenger if ye are (in truth) believers in Allah and the Last Day. That is better and more seemly in the end." VERSE NO. (1) OF SURAH AL-FATHA. Lo! We have given thee (0' Muhammad) a signal victory.... "Translation of verses in English has been reproduced from the Holy Qur'an by MARMADUKE PICKHALL. ENGLISH VERSION OF THE LAST SERMON OF THE PROPHET MUHAMMAD (MAY PEACE BE UPON HIM) DELIVERED ON NINETH DAY OF DHUL-HIJJAH 10.A.H. "0' People, lend me an attentive car, for I know not whether, after this year, I shall ever be amongst you again. There listen to what I am saying to you very carefully and TAKE THESE WORDS TO THOSE WHO COULD NOT BE PRESENT HERE TODAY. 0' People, just as you regard this month, this day, this city as Sacred, so regard the life and property of every Muslim as a sacred trust. Return the goods entrusted to you to their rightful owners. Hurt no one may hurt you. Remember that- you will indeed meet your LORD. and that HE will indeed reckon your, deeds. ALLAH has forbidden you to take usury (Interest) therefore, all Interest obligations shall henceforth be waived. Beware of Satan, for the safety of your relation. He has lost all hope that he will ever be able to lead you astray in big things, so beware of following him in small things. 0' People it is true that you have certain rights with regard to your women, but they also have rights over you. If they abide by your right then to them belongs the right to be fed and clothed in kindness. Do treat your women well and be kind to them for they are your partners and committed helpers. And it is your right that they do not make friends with any one of whom you do not approve, as well as never to commit adultery 0' People, listen to me in earnest, worship ALLAH, say your five daily prayers (Salah), fast, during the month of Ramazan, and give your wealth in Zakat. Perform Hah if you can afford to. You know that every Muslim is the brother of another Muslim. You are all equal. Nobody has superiority over other except by piety and good action. Remember, one day you will appear, before, Allah and answer for your deeds. So beware, do not stray from the path of righteousness after I am gone. O People No PROPHET OR APOSTLE WILL COME AFTER ME AND NO NEW FAITH WILL BE BORN. Reason will, therefore, and People, and understand my words which I convey to you. I leave, behind me two things. the OURAN and my example. the SUNNA and if you follow these you will never go astra . All those who listen to me shall pass on my words to others and those to others again; and may the last ones understand my words better than those who listen. to me directly. Be my witness 0' ALLAH, that I have conveyed your message to your people." (Underlining is ours)

14. From a study of the above provisions of the Constitutions, the, Injunctions of Islam as set out in various Quranic verses and Sunnah and the last 'Sermon' addressed by MUHAMMAD (may peace be upon him), it is established beyond doubt that all the three organs of the State in Pakistan i.e., the legislature, the executive and the judiciary have to act in accord with the provisions of the Constitution of Islamic Republic of Pakistan, 1973, keeping in view the injunctions and teachings of Islam as set out in the Holy Qur'an and Sunnah. Various provisions of the Constitution of Islamic Republic of Pakistan, have to be acted upon and interpreted conjunctively and harmoniously in accordance with the scheme provided in the Constitution itself as held in case of "Hakim Khan v. Govt. of Pakistan through Secretary, Interior," (PLD 1992 SC 595). While dispensing justice, various provisions of the Constitution, the laws, the orders passed and actions taken thereunder, have to be interpreted in accord with the principles of Islamic Common Law in the vacant areas as held in case of "Fazle Ghafoor v. Chairman, Tribunal Land Disputes" (1993 SCMR 1073), -at pages 1076 to 1079 it has been held as under:- "As has already been mentioned there is always a feeling in such like cases that the concrete evidence for giving final clear findings was neither before lower authorities not before the High Court. Mostly the' decisions are rendered on the high probability principle and there is nothing wrong in doing so provided the material available was in the circumstances before the forum concerned and or it was noticed in the orders concerned. Even under the Evidence Act this recourse is possible where the "evidence" as defined in the said Act is not forthcoming. An judgment regarding "proof" of a certain fact could be rendered "if after considering the "matters" before it, the Court consider its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists". See the cases of The State v. Habibur Rehman (PLD 1983 SC 286), Said Wali v. Yaqoot Khan (PLD 1983 Supreme Court 440) and Muhammad Arshad v. The State (1992 SCMR. 1187). The word "evidence" has been defined but the word "matters" which could include evidence as defined as well as other matters did not fall strictly within the scope of evidence. In the cases like the present one the matters would include that material as well which would fall within the scope of mixed facts and law. Amongst others, they will also include documents, presumptions, statements, which might otherwise be not included in the strict scope of evidence. The selection of word .matters" instead of evidence when defining proof, by the legislature in its wisdom, was perhaps to decide a large number of cases of this nature wherein evidence in stricto senso would not be available. Applying the above mode of assessment of material in this case, we proceed to answer the questions arising therein. True there is no direct evidence nor any has been relied upon by the learned counsel for the appellant that Sambali Khan was the real owner of the suit land and that the Ruler had not any superior right therein. Yet one can easily visualise a strong probability that a prudent man in the circumstances of this case, on account of conduct of the parties, could act on the supposition that the exclusive proprietary right in the property did belong to Sambali Khan -- on the basis of the conduct of the parties themselves. It is admitted position that all concerned except for later improvements, afterthought and embroidery of contradictory nature, for a very long time (for some generations) admitted it so. For example, even when submitting the written statement in the High Court it was admitted from the respondents side that Sambali Khan was murdered because of the ownership of this property. And the question of inheritance regarding the same property was the underlying motive for the murder. This fact, it can be safely presumed remained a common ground between the parties for a very long time and perhaps from generation to generation accepted it. This mode of proof is adoptable in the Islamic dispensation also, even if not in any other. When there is such a vacuum on a question of law left by statutory silence, the prevailing mode having full Constitutional support, would be that of Islamic common law. See Muhammad Bashir v. The State PLD 1982 SC

139. The same principle and mode would be attracted to another element of material in this case namely; a unanimous Jirga resolution passed by the elders of the area representing the views of hundreds nay thousands of people passed in 1975, that the suit land belonged to Sainbali Khan. In Islamic Common law such a mode of proof is adopted in absence of any direct evidence; though generally speaking, it would fall within the mischief of so-called hearsay principle. As already noticed, in Dir private ownership was not an impossibility- statement of the learned counsel for the appellant in this behalf has not been refuted. There is no other impediment for us to proceed on the supposition that the suit property did not belong to Sambali Khan. Next question is the nature of the estate held by Mst. Zeeno during her lifetime, in the suit property. There is no statutory command that the customary law relating to widow's life Estate was to be applied in the area concerned at the relevant time. That being so, the vacuum in the statutory dispensation as well, will have to be filled in by the Islamic common law under which it would be assumed that she owned it without any incumbrance of life estate and there was nothing wrong in her passing it to the progeny of the appellant through the devolution in succession or otherwise. This supposition also gets strengthened by the additional fact that notwithstanding her intervention, in the other elements of proof discussed above, the suit property has to be found to be of Sambali Khan, which could be transmitted by inheritance to the appellant. The next question is whether the Ruler could confiscate the property in any manner other than lawful on the mere assumption that he was a "Ruler" as distinguished from "ownership". This again can be decided on the basis of Islamic common law on account of void having been left by the absence of any statutory command on this issue. In Islamic law the Ruler as well as the citizens the Ruled can own and enjoy property as a personal attribute of freedom and manifestation of Human Rights. To own property is well-recognized basic right of the individual in an Islamic State. See the well-known case of Oazalbash Waqf v. Chief Commissioner, Punjab, Lahore PLD 1 % SC

99. Hence, the confscation so-called relied upon from the other side, by the Ruler of the State by itself was unconstitutional besides being unlawful; unless; there was some other legal permission/command other than the so-called mere right of the Ruler to confiscate, even if in the sense of acquisition law. The last question relates to the existence or otherwise of any legal justification for confisaction or acquisition of the suit property which as held above belonged to Sambali Khan and after him to his heirs and ultimately to the appellant. Learned counsel for the appellant did assert that there was no such justification but the material we have relied upon for coming to the conclusion that it belonged to Sambali Khan also furnishes enough .matter/proof" to act on the supposition like a prudent man that there was a legal justification for so-called confisaction. While admittedly it belonged to Sambali Khan, and could form a subject of inheritance on his death, the devolution got diverted on account of his murder by his own successor through whom the appellant seeks inheritance. The statement/admission from the respondents side has to be read as a whole. The attempt to avoid the consequence of such a factual supposition on the ground that there was no law in the Dir State justifying such confisaction must fail. Indeed the learned counsel for the appellant is right that there was no such statutory command at least none has been relied upon from any side before us. In this situation again it is Constitutional compulsion in Pakistan and a command for all the Courts, to fill this void by the Islamic common law dispensation. It is agreed by the learned counsel for the appellant that under the Islamic Law of inheritance an heir loses the right to inherit, if found guilty of having murdered the person who is the source of inheritance. See the case of Aminullah v. The State PLD 1982 SC 429 at page 443."

15. Therefore, while examining the legality and vires of the "Act", the treaty in question and the impugned order as being allegedly violative of the fundamental rights guaranteed by the Constitution of Islamic Republic of Pakistan, teachings and the requirements in Islam as set out in the Holy Qur'an and Sunnah and the principles of international law for living as a civilized modern nation, in the "modern world order" which contains some of the principles of the "universal world order" revealed by God Almighty ALLAH which was preached and practiced by Holy Prophet "MUHAMMAD" (may peace be upon him), shall also have to be kept in view. - Hence, we proceed to examine the legality and vires of the Act, the treaty in question and the impugned order in the light of the above mentioned principles and legal propositions.

16. A comparative study of Article 15, similar Articles of the Constitution of 1956 and 1962 and the Indian Constitution, does show that there is a departure in Article 15 of the 1973 Constitution which does grant right of C residence to a citizen of Pakistan in his own country without a rider. Pakistan used to be part of India before the Partition. The extradition treaty was entered into between USA and Great Britain before partition of India on December, 1923, subsequently was extended to India and was adopted by the Government of Pakistan under SRO No. 211(1)/73, dated 20-2-1973. Copy of this treaty is Exh.P-12 on the record of enquiry proceedings. Provisions of Extradition Act, 1972 and the treaty in question which deal with the extradition cannot be said to be violative of provision of Article 15 of the Islamic Republic of Pakistan inasmuch as accused who is to be surrendered is not being denied his right to reside in Pakistan. He is to be surrendered to a .treaty-country", for the purpose of facing of a trial in a criminal case before a Court of competent jurisdiction in a foreign country. The law of extradition provides power to -Government to pass an order of surrender in such a case,, therefore, cannot be said to be restrictive of the right of accused to live and reside in Pakistan. Such an order cannot be equated with an order of explosion from the country.

17. Extradition Act, 1972 as well as the treaty of extradition which is operative between the Government of Pakistan as well as the United States of America is quite in accord with the provisions of Article 2-A of the Constitution and is also supported by Injunctions of Islam. as contained in Qur'an and . Sunnah. Reference can he made to famous treaty of "Al Hudeybiyeh" which was entered into the 6th year of Hijrah between Prophet MUHAMMAD" (may peace be upon him) and Al-Quresh, terms whereof and comments whereon from the Book "Sahih Muslim" translated in English by bdul Hamid Siddiqui, Volume III as in Chapter DCCXXXVI at page 281 are reproduced as under:

(a) That year the Muslims would not perform Umra or Hah. (b) Next year they would be permitted to do so, provided they did not stay in Mecca for more I had three days. (c) The Muslims would not bear any arms except sheathed swords. (d) Whosoever wished to join Muhammad (may peace be upon him) or enter into -treaty with him, would have the liberty to do so, and likewise would be the case with the Quresh. (c) if anyone went over to Muhammad (12eace be upon him) without the permission of his guardian. he should be sent back to the Quraish-, but should any of the followers of Muhammad (may peace be upon him) retur to Ouresh. he shall not be sent back, (underlining is ours). The terms particularly term No. (c) were distasteful to many Muslims, but most of them kept quiet, thinking that they did not possess vision wise enough to comprehend fully the mysteries of this truce which Allah had revealed to Muhammad (may peace be upon him). The arrival of Abu Jandal brutally chained and staggering with privation and fatigue taxed their patience so much that Hadrat Umar burst forth in agony as we find in the above ahadith. ' The Holy Prophet (may peace be upon him) was himself very much moved on seeing the pitiable condition of Abu Jandal, but he wanted to honour his word at all cost. He, therefore, returned him to the Quresh consoling him to resign himself to the will of Allah, who would provide him and his helpless companions relief and means of escape. As the Holy Prophet (may peace be upon him) and his companions turned their steps back to Medina without performing 'Umra but concluding the treaty with the Quraish, there was revealed to the Holy Prophet (may peace be upon him) Sura Al Fatha (Victory). He was extremely happy, for Allah had told him distinctly in this chapter that the Treaty of Hudaibiya was not humiliating for the Muslims, but a clear victory and promised him a succession of victories in future and confirmed everything that he had done and consoled the drooping hearts of the faithful. "Verily we a victory have given unto thee, a manifest victory, that Allah may forgive thee that which hath proceeded of thy fault and that which may come later and may accomplish favour on thee, and may keep the guided on the straight path, and Allah may succour thee with a mighty succour." "And there was never a victory." says Ibn Hisham, "greater than this, as al-Zuhri rightly observes. When it was the state of war, the people were afraid of meeting with one another, but when: It has been narrated on the authority I of Shaqiq who said: I heard Sahl B. Hunaif says at Siffin ye people, find fault with your (own) discretion. By Allah, on the Day of Abu Jandal (i.e. the day of Hudaibiya), I thought to myself that, if I could, I would reverse the order of the Messenger of Allah (may peace be upon him) (the terms of the truce being unpalatable). By Allah, we have never hung our swords on our shoulders in any situation whatsoever except when they made easy for us to realise the goal envisaged by us, but this battle of yours (seems to be an exception). Ibn Numair (in his version) did not mention the words: "In any situation whatsoever." The same tradition has been narrated through a different chain of transmitters on the authority of A'mash. This version contains the words: Ila amrinyufzi una instead of Ila amrin un' rifuhu. It has been narrated through a different chain of transmitters on the authority of Abu Ali who said: I heard Sahl B. Hunaif say at Siffin: Blame (the hollowness) of your views about your religion. I thought to myself on the day of Abu Jandal that if I could turn down the order of the Messenger of Allah (may peace be upon him) I would. The situation was so difficult that if we mended it at one place, it was rent at another. It has been narrated on the authority of Anas B. Malik who said: When they (Companions of the Holy Prophet) were overwhelmed with grief and distress on his return from Hudaibiya where he had slaughtered his sacrificial beasts (not being allowed to proceed to Macca), the Quranic verse: Inna Fatahne .... laka fathan mubinan to fauzan aziman, was revealed to him. (At this) he said: on me has descended a verse that is dearer to me than the whole world ....... Comments in English regarding Surah Al-Fath referred to earlier as mentioned at page 502(i) of Holy Qur'an published by TaJ Company Ltd. by "MARMADUKE PICKTHALLft which have been prepared by him from the book written by Ibn Hasham, Part 11, pages 176-178 and Ibn Khaldun, Tarikh. Supplement to Part 11, Bulaq 1824, A.H., are reproduced as under:- SURAH XLVIII Al-Fath takes its name from the word Fath meaning "Victory' which occurs several times, and refers not to the conquest of Mecca but to the truce of Al-Hudeybiyeh, which, though at the time it seemed a setback to the Muslims, proved in fact the greatest victory, for Al-Islam. in the sixth year of the Hijrah, the Prophet set out with some 1400 Muslims from Al Madinah and the country around, in the garb of pilgrims, not for war but to visit the Ka'bah. When they drew near Mecca, they were warned that Quresh had gathered their allies against them, and that their cavalry under Khalid ibn Al-Walid was on the road before them. Making a detour through gullies of the hills, they escaped the cavalry and, coming into the valley of Mecca, encamped at Al-Hudeybiych below the city. The Prophet resolutely refused to give battle and persisted in attempts to parley with Qurcsh who had sworn not to let him reach the Ka'bah. The Muslims were all the while in a position of some danger. Finally Othman ibn' Affan was sent into the city, as the man most likely to be well received on account of his relationships. Othman was detained by the Meccans, and news that he had been murdered reached the Muslims in their camp. It was then that the Prophet, sitting under a' tree, took from his comrades the oath (referred to in Vol. 18) that they would hold together and fight to the death. Then it became known that the rumour of Othman's death was false, and Quresh at length agreed to a truce of which the terms were favourable to them. The Prophet and his multitude were to give' up the project of visiting the sanctuary for that year, but were to make the pilgrimage the following year when the idolators undertook to evacuate Mecca for three days to allow them to do so. Fugitives from Ouresh to the Muslims were to be returned, but not figutives from the Muslims to Quresh and there was to be no hostility between the parties for ten years. "And there was never a, victory," says Ibn Khaldun, greater than this victory; for, as Az-Zuhri says, when it was war the people did not meet, but when the truce came and war laid down its burdens and people felt safe one with another, then they met and indulged in conversation and discussion. And no man spoke of Al-Islam to another but the latter espoused it, so that there entered Al-Islam in those two years (i.e. between Al-Hudeybiyeh and the breading of the truce by Quresh) as many as all those who had entered it before, or more." The date of revelation is the sixth year of the Hijrah."

18. Extradition Act, 19721 and the treaty in question can also be upheld on the ground that the same is not only a step towards the achievement of social justice, but is quite in accord with the public morality and goes a long way to the achievement of the ultimate object of the creation of Pakistan to the effect that the people of Pakistan may prosper and attain their rightful and honoured place amongst nations of the world and make their full contribution towards international peace and progress and happiness as mentioned in last paragraph of the Objectives Resolution which is now a part of the Constitution as per Article 2A. The treaty in question very well fits in the scheme of the 'modern world order' and as well as ideology of Pakistan which is a civilized Muslim State and is member of U.N.O., and is also in accord with the spirit ol international treaties entered by a Muslim State. For reference in this behalf intrinsic object of international treaties in Islam, as described in the book (Islamic system of Government) written by Maulana Hamidul Ansari Ghazi, as described at page 357, is reproduced in Urdu along with its English version as under:

(ENGLISH VERSION) "Treaties of Islamic 12criod: Intrinsic object -of treaties.-- In the world so many treaties have been entered into and lot many shall be entered into in future. According to the Islamic law, the object and purpose of Islamic treaties, is the same as that of the Islamic State. According to the concept of "Tauhced" universality of relationship between the whole world, betterment of all the mankind on the earth, creation of peace throughout the world, finishing "Zulam" and equality of all the human beings in relation to economic, political and collective fundamental rights, are the salient goals achievement whereof is to be kept in view by an Islamic State' while entering to the treaties. Ultimate goal of -an Islamic State is achievement of universality and hence it frames its foreign policy for regulation of international relations in the same perspective. However, due to the treaties, the State does not withdraw from the real object of the Islamic State."

19. In the present "world order" when all the nations are ultimately to live like family members, a person who is alleged to have committed a crime which affects the society of one country, is a criminal of the other society as well, irrespective of religion, colour or creed and hence facilitation of his trial by a country where offence has been committed, is bounden duty of all States. A criminal has no vested right to refuse trial for commission of an offence for which he is to be tried by a competent Court. A treaty which is necessary for international peace and prosperity even with a "non-Muslim" State, is also supported by the Ist International Treaty entered into between Prophet Muhammad (may peace be upon him) and the other non-Muslims tribes and nations in Ist Year of Hijra in Madina which also constitutes a first written Constitution given by a Head of a State. Extracts from this historical treaty/charter, from the Book "Muhammad Rasullallah (may peace be upon him), written by Dr. Muhammad Hamidullah at page 144 are reproduced as under:

"With the name of God the Most Merciful, the All Merciful. This is the prescript of Muhammad the Prophet, to operate among the Faithful and the Submissive to God, from among the Quresh and the people of Yathrib and those who may come under them and join them and take part in wars in their company. Verily they constitute a political unit (Umma), as distinct from the other peoples. The Emigrants from the Ouresh shall be responsible for their ward, and shall pay the blood money by mutual collaboration, and shall secure the release of their prisoners by paying their ransom, so that the mutual dealing between the Believers be in accordance with the principles of recognized goodness and justice. So also the Banu 'Auf .. the Banu 'I-Harith ... the Banu Saida ... the Banu Jusham .. and Banu'n Najjar .... the Banu' Amr ibn 'Auf .. the Banu'n-Nabit and the Banu 'I Aus and the Believers shall not leave anyone hard pressed with debts, without helping him in recognized goodness with regard to ransom or blood money. And no Believer shall oppose the client of another Believer against the latter. And the hands of pious Believers shall rise against every such person as stands in rebellion, or is guilty of any violation of pledge, or excess, or attempts to spread mischief among the Believers; and their hands shall rise together against such a person even if he be a son of anyone of them. And no Believer shall kill another Believer in retaliation for an unbeliever, nor shall be he help an unbeliever against a Believer. The protection of God is indivisibly one, and the humblest of the Believers can, by extending this to anyone, put the obligation on all.... Those who obey us from the Jews will have help and equality; neither shall they be oppressed nor shall any help be given against them. The peace of the Believers shall be one; and if there be a war in the path of God, no Believer shall make any peace with the enemy separately from other Believers... Every detachment that will fight on our side will be relieved by turns. The Believers as. a body shall take vengeance for each other of the bloodshed in the path of God... No pagan (subject) shall give any protection to property or life of any Quraishite, nor shall he obstruct any Muslim in this matter. If anyone intentionally murders a Believer and it is proved, he shall be killed in retaliation, unless the heirs of the murdered person agreed to blood money .... It shall not be lawful for any Believer, who has accepted the contents of this Document and has faith in God and the Last Day, to give help or protection to any murderer.... And whenever ye differ about anything, its reference shall be to God and to Muhammad. The Jews shall bear their expenditure along with the Believers so long as they right in conjunction. The Jews of the Banu 'Auf shall be considered as a community alono with the Believers. for Jews their religion and for Muslims their religion, be one a client or original member of the tribe: but whoever shall be guilty o oppression or violation, shall put to trouble none but his own person and the members of his house. The Jews of Banu's-Naiiar.. of Banu' I-Harith ... of Banu Sa'ida of Banu Jusham of Banu'I Aus of Banu'l. Tha'laba (together with the branch Jafna) .... and of Banu'sh

Shutaiba shall have same rights as the sub-branches of the jews shall have the Le principal members. None of them shall go out on military expedition except with the permission of Muhammad.... The. Valley of Yathrib shall constitute an inviolable territory for the parties of this document. The protected alien shall be considered just like the original member; neither shall he be harmed, nor shall he himself violate the pledge. Protection cannot be given (by a protected alien) without the permission of the original member. If any murder or quarrel of inter-tribal nature takes place between the parties of this document, from which any trouble may be feared, it shall be referred to God and to Muhammad messenger of God... The Quraish shall be given no protection, nor those who help them. invade Yathrib. There shall be mutual aid between all inhabitants against those who If the Jews are invited to participate in and adhere to a peace they shall do that: and if they invite likewise, the, same shall be incumbent ul2on the Believers in their favour. The fight for the cause of religion shall be excepted. Every group h 11 be responsible for the part (of the city.) which faces it The Jews of , Al-Aus. clients as well as original members- shall have same right as the parties of this document.... This prescript shall protect any oppressor- or violator of pledge. Whoever goes out (in a military expedition) shall have security, and whoever stays in Madina shall have security, except one who commits oppression and violates pledge. God is the protector of those who fulfil and observe the led c scrupulously, even as Muhammad messenger of God."

20. Consequently, we hold that the provisions of the Extradition Act, 1972, the extradition treaty and the impugned order if otherwise is held by us as valid on merits, is not illegal, ultra vires of the Constitution of Islamic Republic of Pakistan and is rather quite in accord with the Constitution, the Injunctions of Islam as set out in "Holy Qur'an" and Sunnah, intrinsic object of international treaties entered into by a Muslim State, the provisions of prevalent international law, the principles of administration of social justice, fits in the new world order" and is an important step in aid of the creation of a universal peace and brotherhood. Hence, the arguments of - the learned counsel for the petitioner regarding legality and vires of the act, the treaty and the impugned order are without any force and hence are repelled.

21. Argument of the learned counsel for the petitioner that the Enquiry Officer has not followed the procedure as laid down under section 8 of the Act and that case against the accused is not prima facie proved, is not substantiated from the record. Prosecution produced two witnesses who have been cross- examined at length. Evidence in this case consists of statements of witnesses, certified copies of depositions, authenticated statements on oath and photographs Exh.P.1 to Exh.P.13. The accused was supplied copies of statements of witnesses and was given full opportunity to produce evidence. He failed to produce any witness in defence except two FIRs in order to prove enmity between wife. of the accused as well as womenfolk of "Aitemad Lodhi". It is established on record that for summoning Muhammad Waris as a defence witness, no request had been made earlier nor had he been cited as a defence witness. On the date fixed for evidence, plea of the accused was that he does not want to produce his defence evidence because there were certain other persons present in Court and consequently, the case was adjourned for recording of his evidence to 5-12-1992 but on that date instead of producing his evidence, he submitted an application for summoning of Muhammad Waris as his witness through Court. The Enquiry Officer had the jurisdiction to summon or refuse to summon a witness on the move of the accused. In exercise of his discretion, he refused the request for cogent reasons and therefore it cannot be said that proper opportunity was not given to the accused, during the course of enquiry proceedings, to produce defence evidence. No procedural defect in the enquiry has been pointed out by the learned counsel for petitioner and at any rate it being enquiry proceedings and at this stage assessment of evidence being intended to be tentative in nature, any minor defect, if any, while following the procedure which is applicable by adoption and hence is not mandatory or omission of the prosecution to produce whole evidence, will not vitiate the proceedings. The fact remains that the learned Enquiry Officer collected material which consisted of statements of two P.Ws. as well as the documents Exh.P.I. to Exh.P.13 which clearly prove that there is a criminal case registered against the accused in U.S.A. where he is to face trial along with his, co-accused "Aitemad Lodhi" who is already arrested. Warrant of arrest of the accused has been issued and therefore he is fugitive-offender. The depositions made by the natural witnesses duly certified and authenticated by competent authorities of United States of America, do prima facie establish that there are reasonable grounds for holding that the accused is involved in the case and hence should be tried by a Court of competent jurisdiction. Vide the impugned order the accused is not being convicted. He is just being surrendered to a treaty country after holding proceedings in accordance with law for being treat by a Court of competent jurisdiction of a foreign country. This order has been passed by the respondent No.1 after judicious application of mind to the enquiry report as well as other material on the record. Twice, orders previously, passed were challenged before this Court and were withdrawn by the respondent No.1 after realizing the defect therein and ultimately a speaking and judicious order has been passed. In similar circumstances an order of surrender was upheld in cases of "Muhammad Azani Malik v. Government of Pakistan and others" (PLD 1989 SC 519), "Muhammad Asim. Malik v. Anwar JaM and 4 others PLD 1989 Lah. 279, Zulquarnain Khan v. The Government of Pakistan 1990 MLD 1611 and in case of Nasrullah Khan Hinjra v. Government of Punjab" 1993 PCr.LJ 1082. Supreme Court judgments relied upon by the learned counsel for the petitioner in support of his contentions are either remand or leave granting orders in a case wherein on the amis of almost similar evidence and material, order of surrender of the accused was upheld in the final judgment. Therefore, observations made in the judgments referred to by the learned counsel for the petitioner do not advance his case. In case of "Zulqurnain Khan v. Government of Pakistan (1990 MLD 1611) order of surrender was upheld on the basis of similar material, hence this judgment goes against the petitioner. Case of "R. v. Governor Brixton Prison" (1962 (3) All. ER 747) relied upon by the learned counsel for the petitioner in support of his contentions, was taken note of by their Lordships of the Hon'ble Supreme Court of Pakistan in case of Muhammad Azain Malik v. Government of Pakistan and others PLD 1989 SC 519, and was found distinguishable. Even otherwise, case of "R v. Governor of Brixton Prison" (1962 (3) All ER 747), referred to supra, also supports the impugned order inasmuch as in that case the order of surrender was not upheld, for the reasons that there was an allegation of falsifying the original depositions, and the original account books were not produced. It is in this background that their Lordships have held that in such cases the document itself or an authenticated copy or extract thereof should be produced in evidence. In the case in hand, the documents appended with the requisition are not alleged to be falsified and the same being authenticated and certified copies, having been produced in evidence are sufficient to prove that the accused is involved in a criminal case in U.S.A. which involvement is based upon sufficient material. Hence the above case being distinguishable on facts is of no help to the petitioner.

22. There is a strong prima facie case against the accused person that he is involved in the trafficking of heroin to U.S.A. This conclusion can safely be drawn from the evidence produced before the Enquiry Officer, other material placed on record as well as probabilities. Even a probability has been held to be a piece of evidence by their Lordships of the Hon'ble Supreme Court of Pakistan in various cases. In case of "State v. Habibur .Rehman and others" (PLD 1983 SC 286, at page 289 of the report) it has been held as under:-- "It was not difficult to discover the correct police statements. We procured one full set carbon copies thereof, from a higher Police Office. If this did not then occur to anybody that the missing record could be reconstructed. For some aspects of reconstruction no doubt a discussion is available in paras. 6 and 7 of the judgment in Mst. Khudija Bcgum v. The State and others PLD 1971 BJ 19; but observation in para.8 thereof would need modification with reference to the definition of 'proved' in addition to that of 'evidence' and what is being held in this case. If an elaborate enquiry was not considered necessary or advisable, tire Court could give a reasoned finding about which set of copies was 'proved' on the 'probabilities' in pursuance of the definition of the word 'proved' in section 3 of the Evidence Act, In case of "Said Wali v. Yaqoot Khan and another" PLD 1983 SC 440 at page 441 it has been held as under:-- "The inference drawn from the material placed before the Court could be drawn by a "prudent man" so as to hold that the transactions in question were in reality exchanges even if the Court was to give a decision on "probabilities" as contended; because, according to the definition of 'proved' a fact is said to be proved "when after considering the matter before it the Court either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of the particular case, to act upon the supposition that it exists. That being so, the learned Courts below did not commit any illegality in so far as the questions of appreciation of evidence and definition of 'proved' are concerned. There is no force in this petition and the same is accordingly dismissed"- Similarly in the case of "Fazle Ghafoor" referred to supra at page 1077(C) of the report, it has been held as under:-- "True there is no direct evidence nor any has been relied upon by the learned counsel for the appellant that Sarnbali Khan was the real owner of the suit land and that the Ruler had not any superior right, therein. Yet one can easily visualise a strong probability that a prudence man in the circumstances of his case, on account of conduct of the parties, could act on. the supposition that the exclusive proprietary rights in the property did belong to Sambali Khan -- on the basis of the conduct of the parties themselves. It is admitted position that all concerned except for later improvements, afterthought and embroidery of contradictory nature, for a very long time (for some generations) admitted it so. For example, even when submitting the written statement in the High Court it was admitted from the respondents side that Sambali Khan was murdered because of the ownership of this property. And the question of inheritance regarding the same property was the underlying motive for the murder. This fact, it can be safely presumed, remained a common ground between the parties for a very long time and perhaps from generation to generation accepted it."

23. Argument of the learned counsel for the petitioner to the effect that the accused has been involved in this case as there is enmity between the accused person as well as Aitemad Lodhi is not proved by any lawful evidence. Even otherwise, the plea is contradictory to the stand taken during the course of enquiry proceedings wherein during cross-examination it has been suggested to P.W.2. that the accused has been involved due to illicit relations between the witness as well as one 'sweety' ex-wife of the accused with whom he has enmity. No proof of enmity with 'sweety" or illicit re-latiuab between P.W.2 at the said lady has been brought on record of this case. There appears to be a strong probability of involvement of the petitioner in the case in hand in the over-all facts and circumstances of the case which probability has the force of evidence as per law declared in the aforementioned judgments. After all, why ,the functionaries of Government of U.S.A. take time and falsely involve the accused in the case in hand, who are not alleged to be I ' 'Cal towards the accused? Therefore, we hold that the impugned report and the order has been passed judiciously, is speaking in nature and is based upon sufficient material and as such are lawful.

24. Arguments of the learned counsel for the petitioner that no formal request for extradition has been received by the Government of Pakistan from the Government of U.S.A. is not borne out from the record. Learned Deputy Attorney-General of Pakistan who has appeared on behalf of the respondents has categorically stated that a requisition in terms of section 6 of the Act has been received by the Government of Pakistan on the basis whereof, the proceedings have been taken against the accused person. We have also seen the documents Exh. P.I. to Exh.P.13 which itself constitute a request for surrender of the accused, hence, this argument is also repelled.

25. Argument of the learned counsel for the petitioner to the effect that the record is tampered with is incorrect and is misconceived. There is a plethora of case-law on the subject that presumption of correctness is attached to the judicial record. Reference in this behalf can be made to the following N reported judgments. In case of Muhammad Zaman v. Abdul Ghaffar and 31 others PLD 1980 Lah. 582 of the report, it has been held as under:-- i) "In the present case, the appellant has absolutely failed to substantiate the allegations leveled against the Presiding officer. It may be that there may be some exceptional cases of 'proved' accidental slips and forgery where a challenge is possible but in the absence of 'conclusive' proof of such erroneous statement, I am of the opinion that the recital in a judgment of a Judicial Officer or an act of recording the statement by a Judicial Officer must be taken to be correct as regards the facts said to have been admitted or conceded before him. To hold otherwise will be to prolong the hearing of case and to drag judicial officers into unnecessary vexatious and undignified controversies. The presumption arising from section 114 of the Evidence Act, as to the legality and correctness of the Courts proceedings can only be overturned by exceptional strong evidence produced by a complainant on the record. Therefore, all. judicial proceedings are presumed to have been duly performed unless the contrary is proved. In (AIR 1944 Madras p.450) it was ruled as under:-- 'When a question of fact arises as to what happened in the lower Court the statement of the Presiding Judge is conclusive. No affidavit by an Advocate or a party is admissible to controvert the statement of the Judge. Similar view had been taken in Reg. v. Pestanji Dinsha and another Volume X, 1973 Bombay High Court Report 75 where it was ruled as under:-- "The statement of the Judge, who presides at a trial, whether it be in a criminal or civil case, is, as to what has taken place at the trial conclusive. Neither the affidavits of bystanders, nor of jurors, nor the notes of counsel, nor of shorthand writers are admissible to controvert the notes or statement of the Judge; Rex v. Grant (5 B & AD. 1081, 1807), Everett v. Youells (4B & AD. 683, 684). Gibbs v. Pike (9 M & W 351) and in Reg v. Aaron Mellor (27 U NSn 121 Mag.. CA) Coleride, J. at page 101, says: I apprehend that we are bound to give credence to the statement of the Judge, and to take what the Judge so states to be incontrovertibly the fact." It is suggested that is not a record, but we have no more power of contradicting the statement of learned Judge reserved for our consideration, than we have the power of contradicting any allegation upon a record"; and Martin B (P.137) says;" We must consider the statement of the judge as absolute verity, and we ought to take his statement precisely as a record, and act on it in the same manner as on a record of Court, which of itself import Absolute verity." In case of "Muhammad Sharif and 8 others v. Muhammad Safdar and 2 others" (1987 CLC 2482 at pages 2484 of the said report) it has been held as under:-- "No surprise that the Wakalatnama of Aziz Ahmad, Advocate may have been removed from the record to augment the case urged subsequent to the passing of the consent decree on the basis of special oath and since the case pertains to the Court of Civil Judge, Mandi Bahauddin which is not a large town, therefore, it can be safely presumed that the learned trial Judge personally knew the local Advocates. Since in that proceedings recorded by him on 19-9-1984 he has described the statement about offer of special oath to have been made before him also by the counsel for the defendants which was also so signed by Mr. Aziz Ahmad, therefore, I am not persuaded to attach any importance to the non-availability of his Wakalatnama on the rile of the trial Court. A presumption of correctness attaches to the judicial proceedings and reference may with advantage be made to Katta R. Venkatesayya and another v. Muhammad Ghouse Sahcb AIR 1944 Madras 450 wherein on the authority of Reg v. Pastonji (10 Bom. HCR 75) and Rex v. Grant (110 ER 1092), it was ruled as under:-- "When a question of fact arises as to what happened in the lower Court, the statement of the Presiding Judge is conclusive. No affidavit by an Advocate or a party is admissible to controvert the statement of the Judge." This judgment was cited with approval in Muhammad Zaman v. Abdul Ghaffar and 3 others PLD 1980 Lah.

582. In case of "Haji Muhammad v. Ch. Muhammad Saced" (1988 MLD 1681 at page 640 of the report) it has been held as under:-- "As for, the submissions made by the learned counsel for the appellant, we have not been able to persuade ourselves to agree with him for the reasons that since presumption of correctness is attached to the record prepared by the Court, therefore, it has to be presumed that the trial Court had correctly recorded the statement of the appellant/plaintiff on 28-4-1981 and that the plaintiff/appellant had not stated before it that the terms of the agreement to sell should also be incorporated in the judgment. The learned counsel for the appellant has failed to rebut this presumption by any direct or indirect evidence or by convincing reasons." In case of "Director Evacuee Trust Committee v. Muhammad Umar" (1990 SCMR 25, at page 28 of the report) it has been held as under:-- ,,it is difficult to subscribe to the view taken by the High. Court that in the absence of the trust deed a property could not be declared to be attached to a religious or charitable trust. It is to be noticed that a document creating a trust under the Hindu Laws does not require registration. In this case, all the trustees were Hindus who left Pakistan at about the time of independence. The trust deed must have been in their possession. That being so, to demand that the trust deed must be produced before a property can be declared as attached to a religious or charitable trust, is in the circumstances a tall order. On the other hand, there is no reason why the presumption of correctness which attaches to official record after it remains unrebutted, should not be given effect in deciding the nature of the property." In case of "Kamal Akhtar and others v. The State and others" (1992 SCMR 282 at page 286 of the said report) it has been held as under:-- "Even otherwise, there is presumption under Article 129 of Qanun-e- Shahadat, 1984, that judicial and official acts have been regularly performed. Further, we are of the view that the case fulfils the criteria provided in Article 212-B of the Constitution as the Offence for which the appellants have been convicted arc gruesome, brutal and sensational in character and are shocking to the public morality. Therefore, we rind no substance in this objection and accordingly reject it.". Nothing has been brought on the record of the case on the basis whereof, it can be said that Enquiry Officer has tampered with the record. Even otherwise, it is not understandable as to why the Enquiry Officer should tamper with the record. Perusal of- the original rile clearly demonstrates that the record has been honestly prepared by the Enquiry Officer and the allegations leveled by the accused against the Enquiry Officer regarding tampering with the record are preposterous. In view of the above factual and legal position, it is held that the record was not tampered with by the Enquiry Officer. .

26. Argument of the learned counsel for the petitioner to the effect that the impugned order having been passed beyond a period of two months with effect from the date of order of committal, is illegal and is also misconceived, for the reasons that originally the order of surrender had been passed twice by the respondent No.1 within two months with effect from the date of order of committal dated 15-2-1993. These orders were, however, subsequently, withdrawn due to the challenge thereof, before this Court in two Constitutional petitions and ultimately the impugned order has been passed in pursuance of the order passed by this Court, consequently, delay in passing of the order has occurred due to the pendency of the litigation before this Court. Even otherwise, it is not mandatory that order of surrender passed beyond two months from the date of order of committal must be set aside. In view of the circumstances of this case, we, therefore, hold that the impugned order is not illegal although the same has been passed after a period of two months with effect from the date of order of committal and hence we are not inclined to interfere therewith, on this score.

27. It stands established on record that a lot of care and pain has been P taken by the functionaries of Government of the U.S.A. before sending a requisition for surrender to the Government of Pakistan. They have tried to rule out every possibility of involvement of an innocent person even before the registration of the case. The indictment filed against the accused clearly shows that he is being requisitioned for trial, only in the case in question. We have no reason to believe that the accused will not get a fair trial in the concerned. United States of America has one of the best judicial systems of the world. We do not agree with the learned counsel for the petitioner that accused shall meet a discriminatory treatment while facing investigation or the trial in U.S.A. The grievance is not only premature but is also ridiculous and imaginary, hence is repelled.

28. This is a Constitution petition. We are deciding this case in exercise of discretionary jurisdiction. There are very serious allegations leveled against the accused person. We are at the threshold of 21st century. All the nations of the world have to live as a member of one family. Trafficking in heroin has caused a great menace to the %,cry existence of mankind. Heroin addiction is a great curse. Involvement in such a business is a very heinous crime against the humanity, commission whereof is unforgivable. It is the duty of every individual on this earth and every organ of the State throughout the world to strike at the crime with a very heavy hand. The States must co-operate to save the mankind being swallowed by the said menace. A person who commits crime in connection with heroin is also guilty of violating the "great charter" referred to above inasmuch as he causes heinous injury to life and property of human beings on this earth. On the basis of prima facie evidence and material, the Government of Pakistan respondent No.1 has only. passed an order to surrender the accused in this case to face trial before a Court of competent jurisdiction. This order is quite in consonance of the Constitution, the law, Injunctions of Islam, international law and fits in the scheme of the new world order', as has been held by us in the earlier part of this judgment. Hence, the same cannot be said to be arbitrary or without a lawful authority. Keeping in view, the circumstances of this case, legal and social justice having been done we do not find that the accused is entitled to grant of discretionary relief from this Court on the basis of imaginary technical defects in the enquiry.

29. Resultantly, this writ petition has no force and as such is liable to be dismissed which order has been passed and announced by us on 25-5-1993, which shall form part of this judgment. ,RAJA AFRASIAB KHAH, J agree KHAN RIAZ-UD-DIN AHMAD, J agree M.B.A./N-164/L Petition dismissed