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Criminal Miscellaneous Nos. 19 and 69 of 1969, decided on 30th May. 1976.

‑----S. 7 read with Extradition Rules of 1976, rr. 1 to 8‑Extradition of fugitive offenders.‑‑Warrants issued by Court of Anti‑Corruption Judge, K for apprehension of petitioner, accused of offence under S. 409, P. P. C. and sent direct to Registrar of High Court of Azad Jammu & Kashmir and to Home Secretary of Government through Ministry of Kashmir Affairs & Pakistan‑Procedure and manner adopted for execution of warrants of arrest of fugitive offender, being against provisions of law, held, not executable and‑ surrender of a fugitive offender to a trial Court in Pakistan could only be in accordance with law in force relating to Extradition of Criminals‑Execution of warrants stopped, in circumstances.

Petitioner in person.

S. Rafique Mehmood Khan, Addl. A: G. for the State

The above noted two applications are made to this Court under section 561‑A, Cr. P. C. by the applicant against his arrest to be made by Muzaffarabad police, in case he fails to furnish bail in the sum of Rs. 5,000, in obedience to the bailable warrants issued by the Court of Anti‑Corruption Judge, Karachi for commission of an offence under section 409, P. C. The first warrant was sent to the Registrar of this Court for its execution and another one to the Home Secretary of the Government through the Ministry of Kashmir Affairs, Government of Pakistan.

Both the warrants were forwarded to the Superintendent of Police, Muzaffarabad for their service on the applicant.

The applicant has challenged the manner of the execution of warrants even alleging that as no extradition treaty is existing between the two Govern ments, the alleged fugitive offender cannot be surrendered to the Court at Karachi.

The applicant and the learned Additional Advocate‑General were heard.

This is correct, to say that Azad Kashmir is not a part of Pakistan and it has a Government of its own wielding powers over the territory called Azad Kashmir and so the Courts in Pakistan are not in a position to get the warrants executed in the manner as was done by the Court of Anti. Corruption Judge, Karachi. Of course, this was a course adopted by that Court against law. There is a prescribed procedure in shape of extradition rules under which extradition of fugitive offenders can be effected in due course of law on a demand made by a competent authority of tree Government seeking extradition of an offender. Some of the rules dealing with the method, of extradition run as under

(1) Whenever a police officer from outside the Jammu and Kashmir State may, with the assistance of the State Police, arrest within territory, a person charged with a cognizable and extraditable offence, committed outside the State territory, it shall be his duty to hand over the person so arrested and property, if any, seized by him to the State Police of the circle in which arrest was made or property seized ; and it shall be incumbent upon the letter :‑‑

(i) to receive the person and the property, if any ;

(ii) to grant acknowledgment to the person making the delivery, and

(iii) to place the accused‑person and the property so received before the nearest Magistrate within 24 hours or as soon as possible, with due regard to the distance to be traversed.

(2) The Magistrate shall thereupon proceed to consider and determine the question of bail in conformity with the provisions of the Code of Criminal Procedure.

(3) An application for extradition shall, in every case, be made within two months from the date of arrest. If the application be not so made, the accused‑person shall, if in custody, be set at liberty, if on bail, his bail bond shall be cancelled, unless he has already

been restored to liberty in consequence of the intimation that evidence is not forthcoming.

(4)

(5) In ail cases . . . . . . . the police making the errest shall, within the aforesaid two months apply for extradition in the manner determined by the administration to which they are subject .forwarding with the application a summary of the prima facie evidence in the prescribed form and attested copies of the deposition of the prosecution witnesses.

(6) . .

(7) On receipt of the application and evidence, through proper channel, the Officer‑in‑Charge of Extradition work shall examine the prima facie evidence and shall, if necessary, call for further evidence, examine in his discretion the person‑accused and then decide whether the evidence justifies his surrender. If the prima facie evidence be found sufficient and satisfactory, the Officer‑in‑Charge of Extradition work shall, by a warrant, authorise the State Police to secure and hand over the accused‑person to the, authority demanding extradition in the manner arranged and to be referred to hereafter.

(8) Whenever the State Police is asked by the Police or District Magis trate in British India to arrest a person, residing in Jammu Kashmir State, on a charge of an extraditable offence, whether cogniz able or non‑cognizable the State Police shall proceed to make the arrest and the person arrested shall be dealt with in the manner set out in the foregoing rules.

The Extradition Act, 1903 is shown as an appendix to these rules which is as good a law as the rules are.

None of the methods fixed by law was adopted by the Court‑of Anti Corruption Judge, Karachi for the apprehension of the accused so that he could be brought before his Court to stand a trial for the offence allegedly committed by him. Before a surrender of an offender is made to the authorities concerned, an application, as required by law, is to be made by them to the Officer‑in‑Charge of the Extradition work alongwith a summary of the prima facie evidence in the prescribed form and attested copies of the statements of the prosecution witnesses recorded either by the Police or the Magistrate, as the case may be, and on examination of the evidence so tendered, he shall proceed to call for further evidence, if necessary, and may even examine the person accused and his evidence, if any, and then decide whether the evidence adduced before him justifies the surrender of the accused or not If the evidence so considered be found sufficient and satisfactory, he shall, by a warrant, authorise the State Police to secure and hand over the offender to the authority demanding extradition as provided by law. Moreover, offence under section 409, P. C. is not found included in the sche dules appended with the rules showing the extradition offences. However, any offence against any section of the Penal Code, may be specified by a competent authority so as to make it a scheduled offence in relation to extradition offences.

The surrender of the accused can only be made under the provision of Extradition Rules of 1976 Bk, read with Appendices thereto. Thus, the surrender of the accused in compliance with the warrants issued by the Court of Anti‑Corruption Judge, Karachi against him in the manner desired by that Court will be illegal and as such the execution of the warrants in question is stopped accordingly.

The warrants now before this Court shall be, returned in original to the Court of Anti‑Corruption Judge, Karachi, as for the reasons given above, they are in executable here in Azad Kashmir: The surrender of the fugitive offender to a trial Court in Pakistan can only be made in accordance with law in force relating to Extradition of criminals.

In the result these applications stand accepted in the manner indicated above.

Quashment petition accepted

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