P L D 2004 Karachi 119 (PLP)

In the instant case as narrated above respondent No.1 is accused of kidnapping and criminal sexual conduct, such offence is listed in Schedule to the Extradition Act at Serial No.3 i.e. `Rape'. From the requisition received from U.S.A. for surrender of respondent No. 1, it appears that after commission of extradition offence, he came down to Pakistan. In terms of‑section 5 of the Extradition Act, subject to exceptions laid down in subsection (2) thereof, and subject to section 13 thereof, it is the responsibility of the Federation of Pakistan that every fugitive offender is apprehended and surrendered' in the manner provided for in the Act of 1972, to the requesting State. The Federation after obtaining opinion of the Extradition Magistrate as to existence or otherwise of a prima facie case is also of the opinion that fugitive offender ought to be surrendered may so surrender, the fugitive offender to the requesting State. Invariably in all cases of Extradition, we have come across that challenge to enquiry proceedings has been made by invoking writ jurisdiction of the High Court. However, in none of the reported cases the question as to the maintainability of Constitution petition either by Federation of Pakistan or any party to the Enquiry Proceedings was raised. In the instant case such challenge was emphatically thrown by Mr. Saeeduddin Nasir. We have given our anxious consideration to his contention, Article 199 of the Constitution, 1973 could be invoked by an ",aggrieved party" provided High Court is satisfied that no other adequate remedy is available. The act ' of, a person, that may be impugned in terms of Article 199(1)(ii) could be that of any Court or Tribunal other than Supreme Court, High Court or of Court or Tribunal established under the law relating to the Armed Forces of Pakistan. The proceedings taken by Court or Tribunal other than as specified above, therefore, are amenable to the writ jurisdiction elf this Court. The word `proceedings' as used in Article 199 of the Constitution, 1973 has not been defined in the Constitution. Since the inquiry under the Extradition Act is carried out before a Magistrate wherein evidence may be adduced both in favour and in rebuttal to the requisition of extradition, such exercise could, therefore, be termed as proceedings within the contemplation of section 4(m) of the Criminal Procedure Code. We are not dilating upon nature and manner of the inquiry in which it is to be carried out as same has been elaborately dealt with in the case of Akhtar Mali v. Federation of Pakistan (1994 PCr.LJ 229). The purpose of inquiry is to obtain an opinion from the Court whether or‑ not prima facie case exists to connect the fugitive offender with extraditable offence before the Federation could itself .decide to extradite or otherwise a fugitive offender. Superior Courts have always I exercised jurisdiction to review the proceedings and decision of administrative, executive, quasi judicial, and Judicial Tribunals. When their findings are not within the parameters laid down under the law or suffer from perversity either on account of misreading, non‑reading, sufficiency or inadmissibility of evidence or otherwise on score of jurisdiction, wide range of jurisdiction is conferred on superior Courts to remedy all possible kind of injustice where there is no adequate remedy available under any particular law. Article 199 of the Constitution could be invoked to challenge the proceedings taken by a Court or Tribunal or Subordinate to High Court barring a Court or Tribunal established under law relating to Armed Forces of Pakistan [Reference (PLD 1973 SC 24, PLD 1978 Quetta 131, PLD 1978 Karachi 855 and PLD 1986 Quetta 185)]. It is the contention of learned Attorney‑General for Pakistan that due observance, performance and compliance with reciprocal treaty between two high contracting States is the responsibility of Federation of Pakistan. There is no dispute between the parties as to the existence or otherwise of Extradition Treaty between Government of Pakistan and Government of U.S.A. such fact had been debated and set at rest in various cases including Nasrullah Khan Henjra v. Government of Pakistan, Ministry of Interior and Narcotics Control, Islamabad (PLD 1994 SC 23). Federation of Pakistan indeed has a dual responsibility one towards its subject and other towards requesting State specifically, and towards comity of nations generally. As against the subject, whose rights to remain in and move freely throughout Pakistan and to reside and settle in any part thereof is fully guaranteed under Article 15 of the Constitution, 1973. By extraditing a subject such right may be impinged In the case of Zulqarnain Khan alias Zulfiqar Ali Khan v. The Government of Pakistan (1990 MLD 1611), it was held that a citizen of Pakistan against whom the prima facie case for extradition was made out, loses his right to live in his own country for the time being. As against Treaty State and Comity of Nations the obligation which Federation of Pakistan as a contracting State assumes under Extradition Treaty, in terms whereof, for the extradition offence the Federation is obliged to hand over the fugitive offender to requesting State (section 5 of, the Extradition Act). In case where prima facie case is not made out the right to remain in Pakistan of a subject cannot be taken away. On reading sections 12 and 13 of the Extradition Act, 1972 the ultimate jurisdiction vests in the Federal Government to extradite or otherwise a fugitive offender. If, it appears that nature of the offence is trivial or request for extradition is not made in good faith or extradition is not in the interest of justice or for any other reason it would be unjust or inexpedient to surrender fugitive offender, Federation may not only stay the proceedings against such person but may also direct summons or warrant issued to be cancelled and may order his discharge. Such authority of the Federation to direct discharge of fugitive offender despite positive opinion of Enquiry Magistrate in favour of extradition conversely employ that in case Federation is of the opinion that it is expedient to surrender the fugitive offender, then in such eventuality if it appears to the Federal Government that the opinion of the Enquiry Magistrate to discharge the fugitive offender is perverse and not in accordance with law, only course open to the Federation is to challenge the opinion recorded by the Enquiry Magistrate. Admittedly, as discussed above, under the Extradition Act, 1972 there is no provision of appeal against order of discharge or otherwise of fugitive offender. The power of Judicial Review under Article 199 have always been exercised by the High Court on the motion of an aggrieved party. A party adversely or prejudicially effected by a finding, decision or opinion recorded by a Court, Tribunal or Authority within the contemplation of Clause (a) of Article 199(1) is an aggrieved party, thus have locus standi to invoke writ jurisdiction. It can be said that Federation is an aggrieved party, as in presence of such opinion founded on misapplication or misinterpretation of law of extradition by the Enquiry Magistrate, it could not meet or discharge its international obligation under the bilateral extradition treaty Extradition Act, 1972 read with Item No.3 of the Federal Legislative List i.e.... "the implementation of treaties and agreements, including educational and cultural pacts and agreement with other countries, extradition, including the surrender of criminal and accused persons to Governments outside Pakistan". Unless such inquiry respond is set right, the obligation cast upon the Federation could not be met There is no cavil to the principle, ubi jus ibi remedium i.e. where there is a right, there is remedy. As discussed above, though in our humble opinion in view of the obligations cast upon Federation of ,Pakistan by virtue of bilateral treaty where it is of the opinion that the opinion rendered in the inquiry report is not in accordance with law, then, it, is a duty of the State to have the law correctly settled. As such, State ' could be termed' as an aggrieved party within the meaning of Article 199 (1)(a) of the Constitution. However, such remedy could only be invoked by an aggrieved party where no adequate remedy is available. Under the, Extradition Act, proceedings undertaken if not criminal are quasi criminal in nature. Extradition proceedings before the Extradition Magistrate are not the trial of the criminal case in stricto sensu but a stage prior to trial as akin to the proceedings in terms of section 203, Cr. P.C. Whenever any requisition for surrender of a fugitive offender is made to the Federal Government of Pakistan in the manner provided for in the Extradition Act, in case, the Federal Government if it thinks it to be proper, may issue an order for enquiry into case by Magistrate of 1st Class having jurisdiction to inquire into tile extradition offence. The proceedings are to be carried out for the purpose of inquiry in accordance with section 8 of the Extradition Act which reads as under:

8. Magisterial Enquiry.‑‑(1) On receipt of an order under section 7, the Magistrate shall issue a summon or a warrant for the arrest of the fugitive offender according as the cause appears to be one in which according to the law of Pakistan a summon or warrant would ordinarily issue. (2) When the fugitive offender appears or is brought before him, the Magistrate shall inquire into the case in the same manner, and have the same jurisdiction and, powers, as nearly as may be as if the case were one triable by a Court of Session and shall take such evidence as may be produced in support of the requisition and on behalf of the fugitive offender, including any evidence 'to show that the offence of which the fugitive offender is accused or alleged to have been convicted is an offence of a political character or is not an extradition offence. On bare perusal of the above provision, it is clear that the Magistrate inquiring into extradition offence, exercises jurisdiction and power as the Court of Session. On conclusion of inquiry, Magistrate is required to give his opinion whether prima facie case has been made out to connect the fugitive offender with commission of the extraditable offence or not. Result of such inquiry is to be forwarded to the Federal Government alongwith written statement of the fugitive offender for consideration by the Federal Government in terms of section 10 thereof. In terms of section 12, it is provided that if fugitive offender is not conveyed out of Pakistan within two months after his committal, then jurisdiction is vested in the High Court to discharge such person. There is no provision for appeal either against committal or discharge of a fugitive offender in the Extradition Act, but from the provisions referred to above, it is clear that the Magistrate ‑while conducting an inquiry exercises same jurisdiction and power as that of a Court of Session and even the High Court has been conferred jurisdiction in‑terms of section 12 to order discharge of the fugitive offender. In the case of Habib (Bank Limited v. State (1993 SCMR 1853). while examining the provisions of section 10(1) of the. "Offences in Respect of Banks (Special Courts) Ordinance, 1984, which does not expressly give any right of appeal against an order of the acquittal, Apex Court after examining contemporary legislation held at page 1863 as under: "The revisional authority of the High Court embodied in sections 435 and 439 of the Code has not been taken away by express or clear terms. The High Court has not been stripped off all power by this Ordinance. The High Court has been enjoying certain powers by the Ordinance and this special enactment has close connection with the High Court. The ouster of jurisdiction must be expressed in clear and unqualified words. The Ordinance has not completely ousted the jurisdiction of the High Court in all respects and section 10 is to be interpreted in limited sense. The provisions of section 10 of the ordinance cannot be so construed so as to take away the normal jurisdiction of the High Court. The words are to be construed in a reasonable and judicious manner. The revisional jurisdiction cannot be curtailed by implications. The rule laid down by this Court in Abdul Hafeez's case (supra) will also apply to the cases under the Ordinance.'' In the case of Syed Manzoor Hussain Shah v. Syed Agha Hussain Naqvi and another (1983 SCMR 775), Hon'ble Supreme Court held at page 778 as follows: "Jurisdiction of the High Court is wide, and its revisional jurisdiction is, in its real purpose, not a mere power but a duty. This duty cannot effectively be discharged unless the High Court sees to it that the subordinate criminal Courts conduct their proceedings strictly in accordance with law. The provisions of 'the procedural law are intended to achieve the principal purpose of the administration of criminal justice viz. that all infractions of the criminal law are duly and properly investigated and inquired into. It will be, therefore, starting proposition that the High Court should be disabled from discharging this very necessary duty simply because a party who could and should have appealed, makes the mistake of filing a revision or a party who is adversely affected by the result of the proceedings has no right to invoke the revisional jurisdiction of the High Court. We have examined the points raised by the learned counsel. There is no doubt that the revisional jurisdiction of the High Court is very wide and that it may be exercised whenever facts calling for its exercise are brought to the notice of the Court and it matters little as. to how and by whom these facts are brought to the notice of the Court." As discussed above, the Magistrate exercised powers and jurisdiction in case of Extradition Inquiry of a Sessions Judge and inquiry proceedings shall be deemed to be trial within the meaning of section 4(m) Cr. P.C. for all intents and purposes inasmuch, as evidence is led both in favour and against Extradition. This Court do exercise revisional jurisdiction in all, matters of criminal nature to be adjudged which come to the knowledge of the High Court while exercising such jurisdiction, in case circumstances so warrant direct de novo proceedings. Respectfully following the dicta laid down in Habib Bank Limited (1993 SCMR 1853) supra, we hold that Revision under section 439, Cr.P.C. is maintainable against the opinion expressed in the Extradition Inquiry by the Enquiry Magistrate, before the High Court. Having so held, we are of the view that writ petition is not maintainable in such circumstances as adequate remedy by way of Revision is available to an aggrieved party which include Federation of Pakistan. Being cognizant of the fact that in appropriate cases one type of proceedings ,could be treated, tried and converted into another type oil proceedings by a Court, provided Court, otherwise has jurisdiction in Muhammad Ayub v. Obaidullah (1999 SCMR 394). Constitution petition was treated in Revision (for more references one may see 1994 SCMR 77, PLD 1974 SC 139, PLD 2000 Karachi 74, 1979 SCMR 32). For the foregoing reason, we treated and disposed of this petition as Criminal Revision vide our short Order dated 19‑6‑2003. In this case, we find that Inquiry Tribunal .in the first set of inquiry ruled out the objections of the respondent No.1 that he is discriminated being Muslim citizen of Pakistan origin, but there appears to be no material before the learned Magistrate to form an opinion otherwise, in the subsequent inquiry. We, therefore, find apparently there is no justification to reverse the finding on the grounds merely because the respondent No. 1 is a citizen of Pakistan and/or a Muslim. The other ground that weigh that the Enquiry Magistrate had lack of medical evidence to connect him with a crime alleged against him. In the case of Nasruallah Khan Henjra (supra) the Apex Court remanded the case to the learned Extradition Magistrate to examine the evidence ,which was available, with the prosecution to connect the fugitive offender with the commission of crime [PLD 1994 SC 23(30) para. 11]. In the instant case, we have been informed by the learned Attorney‑General that there is overwhelming evidence against the respondent No.1. Besides, it was suggested that from the person of the victim Clarissa Kritzman three separate samples of semen recovered, are still preserved. He further submitted that two other co‑accused were convicted. One pleaded guilty and the other was convicted after full-fledged trial. Such material is also with the prosecution. He also made a proposal that the D.N.A. test of the fugitive offender/the respondent No.1 can be carried out in an independent, laboratory of U.S.A., as according to him such .facility is not available in Pakistan. Mr. Saeeduddin Nasir learned counsel for the respondent No.1 in consultation with father of. respondent No.1 conceded. He, however, suggested that in addition to swab from the inner side cheek of the respondent No. 1 blood may also be drawn to carry out D.N.A. sampling and matching with the .semen sample available with the prosecution in Michigan U.S.A. The above are the reasons for the short order dated 19‑6‑2003, which reads‑as follows:‑‑ "For the reasons to follow, this petition is disposed of in following terms: This petition is converted and treated as revision in terms of section 439, Cr.P.C. Respondent No.1 fugitive accused is claimed to be charged with kidnapping and first degree criminal, sexual conduct in the Court of U.S.A. It is alleged respondent No.1 to avoid trial in U.S.A has sought refuge in Pakistan, against whom extradition has been sought by the U.S.A. Inquiry, Magistrate appointed in terms of Extradition Act, 1972, discharged the respondent in impugned enquiry report. Against that inquiry report the Federation of Pakistan has approached this Court. One of‑the ground for discharging fugitive/absconder, is non‑availability of medical report. By consent, it is ordered that three samples of mucus secretion will be draws by rubbing cotton swab against inner side of cheek of respondent No. 1, Muhammad Haris Hassan in addition blood sample will also be drawn in presence of the father of the respondent No. 1 and so also Mr. Nadeem Azhar, learned D.A.‑G. on behalf of the Federation such swab and blood samples duly sealed to be sent to FBI Crime Lab. California for examination and D.N‑A. matching with the semen sample already available with prosecution, State of Michigan. The report will be made available to the learned Extradition/Inquiry Tribunal within 8 weeks. The swab and blood samples to be drawn preferably within one week. The Jail Authority are directed to facilitate the drawing of such samples as referred to above, on intimation of the learned D.A.‑G. of such arrangement. In view of the foregoing the findings recorded by the learned Inquiry/Extradition Tribunal are set aside. The matter is remanded back to Inquiry tribunal, who may on receipt of such report after heating both the respondent No. 1 and the Federation of Pakistan pass such appropriate order as may be warranted under the law. Learned Attorney‑General undertake to supply copy of such report to the respondent No. 1 who will be at liberty to lead evidence in rebuttal before the Inquiry/Extradition Tribunal. At this stage request of Mr. S. Saeeduddin Nasir, for the bail cannot be considered; he may however, avail such remedy as may be available to him under law." N.H.Q./F‑50/K Case remanded.