P L D 1973 Azad J & K 51 (PLP)

(5) An application for extradition shall be made within two months from the date of arrest. If it is not done within this period, the accused is to be set at liberty if in custody and if on bail, the bond is to be cancelled. (6) If the Officer‑in. Charge extradition work, after examining the prima facie evidence attached with the request for extradition or after any further evidence that he may require or if he considers necessary, after examining the accused, decides that there is sufficient and satisfactory prima facie evidence, he shall authorise the State Police by a warrant, to hand over the said accused to the authority demanding extradition from Pakistan and if he is on bail, he will be directed to present himself before the District Magistrate of the district concerned. Did an Extradition treaty exist between the Maharaja's Government and British India? As no records are available on this side of the Cease‑Fire‑Line, it has not been possible to trace the treaty. The fact that Extradition Rules were framed and different offences were added to the list of extraditable offences from time to time, clearly shows that irrespective of the existence or l otherwise of a treaty, such an arrangement was already in existence. For extradition of offenders, the existence of a treaty' Is not a pre‑condition because the treaty only entitles a country to ask for extradition ; it has no bearing on the authority of a country to hand over either its citizens or foreign offenders to a foreign country for trial in connection with offences committed in the latter country. The authority of a country to band over such offenders is not derived from such a treaty but exists absolutely independently of the same. It is inherent in its Sovereignty. The effect of the treaty only is that the other signatory State to it can as of right, conferred by the treaty, ask for an offender covered by it ; the second important advantage is that a permanent, automatic machinery exists in either country to deal with such request.. I am, frankly speaking, unaware of any law which would, in the absence of such a treaty, prevent one State from making such a request to another State. The only difference is that the receiving State may altogether ignore it ; it may well say that in the absence of a treaty, the request cannot be granted but if the receiving State decides to grant the request, there is, to my knowledge, nothing to prevent her from doing so. That is why even when there exists no such treaty, extradition does take place either by reciprocity or courtesy or on the basis of a statute. Dealing with the subject in his book "An Introduction) to International Law", Mr. J. G. Starke says :‑ "These treaties, inasmuch as they affected the rights of private citizens, required in their turn alterations to the laws and statutes of the States which had concluded them. Hence the general principle began to establish that without some formal authority, either by a treaty or by statute, fugitive criminals would not be surrendered nor would their surrender be requested. There was in international law neither a duty to surrender nor a duty not to surrender. For this reason, extradition was called by some writers, a matter "of imperfect obligation". In the absence of treaty or statute, the grant of extradition depends purely on reciprocity or courtesy (pages 304‑305)." These rules bad come into force immediately on their promulgation in 1918. Thus irrespective of the existence or otherwise of an extradition treaty, a perusal of the Rules, their immediate enforcement and the addition of some other offences and Indian States not included originally, from time to time at least shows that extradition arrangement between Kashmir State and British India was in existence, if not by operation of treaty, at least by operation of the Statute. It may also be stated that it was not the petitioner's case that extradition arrangements did not exist between Kashmir State and British India. Let me now examine the change, if any brought about by the exit of the British on 14th August 1947. At the time of partition while part of British India was constituted into the dominion of Pakistan, the treaties that existed between the Indian Princely States on the one hand and the British Govern ment on the other came to an end. Section 7 of the Indian independence Act dealing with these treaties laid down :‑ "As from the appointed day . . . .the suzerainty of His Majesty over the Indian States lapses and with it all treaties and agreements in force at the date of the passing of the Act between His Majesty and the Rulers of the Indian States . . . . . " In the proviso to that section, however, it is provided that :‑ "Notwithstanding anything in paragraph (b) or paragraph (c) of this subsection, effect shall, as nearly as may be continued to be given to the provisions of any such agreement as is therein referred to which relates to customs, transit and communications, posts and telegraphs, or other like matters, until the provisions in question are denounced." Thus the treaties that existed between the Maharaja's Government and British Government came to an end on the mid‑night (zero hour) of the 14th of August 1947 but despite their lapse, the operation of customs, transit and communications, posts and telegraphs and other like matters were to continue until such provisions were denounced by any of the parties, namely either any of the dominions or the Indian State con cerned. Had the matter rested there, the extradition arrangements already existing between Kashmir State and British India, would have also come to an end because the words "or other like matters" in the subsection quoted above could not be construed to mean anything which could not reasonably be termed as being akin to the phrase 'custom, transit and communications, posts and telegraphs', but by entering into a standstill agreement with the Government of Pakistan on the 12th of August 1947, the continuance of the extradition arrangements was kept alive. This agreement gas not, to my knowledge, been published in any book on Kashmir. Everybody, therefore, assumed that it must have covered posts and telegraphs, road and rail links, customs, traffic and supplies only but on examination, it has been found to be much wider. A copy of the agreement was kindly furnished to me by Mr. Aftab Ahmed, Director‑General, Foreign Office, Islamabad in connection with the writing of a book on Kashmir. It is in the shape of two telegrams which are reproduced below :‑ "Telegram of the Prime Minister of Kashmir addressed to the State's Relations Department Government of Pakistan, 12th August 1947: Jammu & Kashmir Government would welcome Stand still Agreement with Pakistan on all matters on which these exist at present moment with outgoing British India Government. It is suggested that existing ; arrangements should continue pending settlement of details and formal execution of fresh agreements.' Telegram of the Foreign Secretary, Government of Pakis tan, addressed to the Prime Minister of Kashmir, 15th August 1947: 'Your telegram of the 12th. The Government of Pakistan agree to have a Standstill Agreement with the Government of Jammu and Kashmir for the continuance of the existing arrangements pending settlement of details and formal execu tion of fresh agreements'." It is thus clear that the arrangements on all matters that existed between the Maharaja's Government and the British India Government at the time of independence were agreed to be continued pending settlement of details and formal execution of fresh agreements. This Standstill Agreement, as it is known, speaks of existing arrangements. Does the term cover extradition? What is extradition? The term extradition is composed of two words 'ex' and 'tradition' ; 'ex' is a Latin word meaning 'out' while 'tradition' is a French word derived from the Latin word 'Traditio' which itself has been derived from the Latin word 'Tradere', meaning, to i give up, to transmit. Tradition has been defined in the Webster's New International Dictionary as an act of delivering into the hands of another. Extradition has therefore been defined in it as the surrender or delivery of an alleged criminal by one sovereignty or `late to another having jurisdiction to try the charge. It is just an arrangement for the surrender of a fugitive from Justice by the country of sojourn to the country on whose territory the offence has been committed. It proceeds from the general desire of all States that serious crimes do not go unpunished and since jurisdiction is generally local, evidence is also local, and the requesting country has greater interest in his punishment, he is surrendered to such country. After having carefully considered the matter I have no doubt that the term existing arrangements on all matters, which by itself is very wide, does include extradition because it is after all an arrangement for the surrender of an accused in accordance with a certain procedure, which varies from country to country. Apart from the self‑explanatory meaning of the term which clearly makes it an arrangement, the following also helped me in coming to this conclusion :‑ (1) Mr. J. G. Starke, the learned author of the book 'An Introduction to International Law' has twice used the term "arrangement" for extradition as will be seen from the follow ing passages :‑ (a) With the increasing rapidity and facility of International transport and communications, extradition began to assume prominence in the 19th century although extradition arrange ments date from the 18th Century. (b) Dealing with the development of extradition Law in England where due to historical reasons the Crown's powers stood restricted almost in every sphere, the learned author says: 'Thus from both points of view, legislation was essential and solution adapted was to pass a general extradition statute the Extradition Act of 1870 which applies only in respect of countries with which on arrangement for the surrender of fugitive offenders has been concluded' (2) Certain offences were added to the list of extraditable offences in 1935 by Notification No. 3‑L/1992 Bikrami which also stated :‑ 'This arrangement takes effect from the 1st of April 1935' Thus the Mahraja's Government has itself termed it as an arrangement." It has been observed that proviso to section 7 had already provided for the continuance of the arrangements between the Kashmir State and West Pakistan relating to custom, transit and communications, posts and telegraphs. It had not provided for the continuance of the extradition arrangements or other matters. This shows that as the proviso did not completely fill in the gaps in the relationship between the Kashmir Government and the successor sovereignty in West Pakistan, the Kashmir Government felt the necessity of entering into a separate standstill agreement with the Government of Pakistan s7 as to provide for the continuation of even those arrangements which were not covered by the said proviso. Obviously extradition is one of such arrangements. A similar matter came up first before the Allahabad High Court in A I R 1950 All. 342 and then before the Supreme Court in A I R 1950 S C

155. In this case a warrant had been issued by the Regional Commissioner of Rajasthan State's Union for the arrest of one Doctor Ram Babu Saksena for offences under sections 383 and 420, Penal Code.. The case pertained to Tonk State which had an extradition treaty with the British India Government. Doctor Saksena was Dewan of the State at the time of partition and was alleged to have black‑mailed its Nawab to part with rupees three lacs, quite coincidently, on the threat of being "in league with the Azad Kashmir Force". The Tonk State entered into a Standstill Agreement with the Indian Union Government on the 8th of August 1947 but acceded to the said Union on the 16th of August. Sometime later it was merged like other States of Rajputana in what was named as the United States of Rajasthan. The liability of Doctor Saksena for extradition from the Union territory to Tonk was challenged first in the Allahabad High Court and then before the Supreme Court. One of the points raised was as to whether the Standstill Agreement of 8th August had resulted in the continuation of the extradition arrangements that existed before? The Standstill Agreement provided :‑ "(1) Until new agreements in this behalf are made, all agreements and administrative arrangements as to matters of common concern now existing between the Crown and any Indian State shall, in so far as may be appropriate, continue as between the Dominion of India or, as the case may be, the part thereof, and the State. (2) In particular, and without derogation from the generality of sub‑clause (1) of this clause, the matters referred to above shall include the matters specified in the Schedule to this agreement." Now in this case a Schedule was provided and extradition was mentioned as one of the matters to which the Standstill: Agreement was applicable. But that should make no differenea in the present case because here no schedule is attached to the` Standstill Agreement. The existence of a schedule could beg termed as limiting the meaning of the term 'Standstill Agreement'. The point that needs emphasis is that the term 'Standstill Agreement' includes extradition as shown above. Mr. B. K. Mukherjee, J. held :‑ "This was certainly intended to be a temporary arrangement and Mr. Setalvad argues that as there was no treaty in the proper sense of the term but only a substitute for it in the shape of a temporary arrangement. Section 18, Extradition Act, which expressly mentions a Treaty cannot be applicable. While conceding that prima facie there is force in the contention. I think that this would be taking a too narrow view of the matter arid I should assume for the purposes of this case that under the Standstill Agreement the provisions of the Treaty of 1869 still continued to regulate matters of extradition of criminals as between the Tonk State on the one hand and the Indian Dominion on the other fill any new agreement was arrived at between them." Maharaja's Government remained saddled in power till the 4th of October 1947 when the Azad Jammu & Kashmir Government first came into being by the will of the people of the State. The so‑called Instrument of Accession was signed by the Mahraja on the 26th of October after he had Bed for fear of life from Srinagar and already lost control and authority in all parts of the State. It has been already held in P L D 1970 Azad J & K 88 that the Azad Jammu & Kashmir Government is the successor to the Maharaja's Government since the 4th of October 1947. It is not a theoretical proposition because its writ, does, as a matter of fact, run at least in the territory where from the petitioner's extradition is involved. Therefore, the arrangements that had existed between the Maharaja's Govern ment and the Pakistan Government between the f4th of August 1947 to the 4th of October 1947 continue to remain in force. The only difference brought about by the change of political circumstances is that the Azad Kashmir Government has taken the place of the former regime. Rules 5 and 6 provide that formal requests for extradition from British India had to be routed through the Resident (British Political Agent in the State) who had the discretion to forward it to the Political Minister of the State or withhold the same. However, the Institution of Resident also ended with the end of British Raj. Does, therefore, the absence of Resident or a Political Agent in Azad Kashmir make any difference? To me it seems that it does not because apart from the fact that it was an enabling provision designed for the protection of British Imperial interests, the system came to an end by the operation of Law‑the Indian Independence Act ; the provisions have there fore become redundant, obsolete and unenforceable. Law does not require performance of acts which it has become impossible to perform. According to Broom's Legal Maxims this impossi bility may even be created by the change of law (page 167) as is l the case here. Dealing with the maxim : impotentia excusat legem (inability is an excuse at law) the learned author writes :‑ "The law itself and the administration of it, said Sir W. Scott, with reference to an alleged infraction of the revenue laws, must yield to that to which everything must bend, to necessity ; the law, in its most positive and peremptory injunctions, is understood to disclaim, as it does in its general aphorisms, all intention of compelling to impossibilities, and the administration of laws must adopt that general exception in the consideration of all particular cases." It was next contended that the Act was not in force in Azad Kashmir and in this connection reliance was placed on the Adaptation of Laws Act of 1959. It is true that the Act is not, mentioned in it but that makes no difference. The correct position is that on the 26th of December 1949 the Government issued a Notification No. 3316 which contained a list of some Dogra Enactments which were declared to be in force. Extradition Act or Rules did not figure in it but all the same,, all laws in force during Dogra Regime which had not by then been expressly repealed or which were not inconsistent with the Courts and Laws Code, 1949 were expressly declared as conti nuing to remain in force. In this connection the relevant part of the said Notification is reproduced below:-- "It is notified that under section 3 of the Azad Kashmir Courts and Laws Code Act of 1949 all laws and enactments of the old regime inconsistent with the provisions of the said Code or the enactments passed or adapted by the Azad Kashmir Government, have been repealed and all the remaining laws of the old regime have, as far as practicable, been allowed to continue to remain in force. All reference to His Highness or Government in such laws are to be construed to refer to Azad Kashmir Government. A list of some of these laws is annexed herewith as Appendix 'A' subject wise. This list is not exhaustive . . . . ." The Adaptation of Laws Act, 1959 did not bring about any change in this position. All that the said Act did, was to substitute the Punjab Laws for their corresponding laws then in force here, most of which had been inherited from the Dogra Regime and mentioned in the appendix to the Notification referred to above. It is quite apparent from section 3 of the Act which reads :-- "All laws of Pakistan as contained in the Schedule to this Act and all rules, Notifications and orders made thereunder and in force immediately before the commencement of this Act are adapted and shall, as far as practicable, be in force in Azad Jammu & Kashmir territory subject to the modifications as stated below." That is how the Right of Prior Purchase Act (Pre‑emption) the Forest Act, the Fisheries Act, the Game Laws, the Succes sion Certificate Act, the Telegraph Act, the Post Offices Act, the Silk Protection Act, River Rules etc. which are not include, in the Adaptation of Laws Act, 1959 continue to remain part of our statute book. In the light of the above discussion the contention of the petitioner that extradition arrangements do not exist between Azad Kashmir and West Pakistan stands rejected and the bail granted to him pending the disposal of this case is not confirmed. If and when the petitioner is arrested in accordance with the Extradition Rules in force here, ha can proceed under the normal remedies available to him under the Law. S. Q. Order accordingly.