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PLD 1989 SC 266

Per Shafiur Rehman, J.

(a) Constitution of Pakistan (1973), Articles 199 & 185:

Article 199 — Leave to appeal was granted to examine a number of questions of law arising out of proceedings undertaken under the Extradition Act, 1972 including the question whether the Officer nominated by the Federal Government under Section 7 of the Act, namely, the District Magistrate, for holding an enquiry was the only competent authority to hold the enquiry and the enquiry into the matter conducted by Assistant Commissioner, Sub-Divisional Magistrate was without jurisdiction. [p.268]A

Article 199(1)(b) — Extradition Act (XXI of 1972), Section 7 — Constitutional jurisdiction — Detention — Legality of — While exercising Constitutional jurisdiction, relating to a detenu, Court is duty bound to satisfy itself with regard to legality of detention — Amplitude of the provisions relating to detention stated.

There appear three distinguishing features so far as sub-clause (b) of clause (1) of Article 199 proceedings are concerned as compared to proceedings under other provisions of the same Article. The first is that the applicant in these cases is not the person for whom the relief is being sought. He is concerned or interested certainly, but the main beneficiary of the proceedings is the detenu. In such a situation what the Petitioner/ appellant or the applicant says or does should not ordinarily matter with regard to the person who is directly concerned with the proceedings and is the beneficiary of it. This aspect has been taken care of expressly by the law and additionally by the Supreme Court in Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14. Law enjoins the Court to satisfy itself. It does not leave the duty to the appellant or to any one else. The duty is that of the Court, to satisfy itself with regard to the jurisdictional aspect and with regard to the lawfulness of the manner of detention. The law laid down further makes it clear that once the attention of the Court is properly drawn to a case of detention, the onus immediately shifts to the detaining authority to show the lawfulness of its authority in detaining the detenu. The duties are, therefore, specifically that of the Court and the detaining authority in the first instance and it is only incidentally that the relator or the applicant comes to the forefront in such a situation. [pp. 2274, 275]B & C

SH. MUHAMMAD YOUSUF V. MUHAMMAD BASHIR AHMAD & ANOTHER PLD 1975 KARACHI 891; MUHAMMAD HAFEEZ KHAN V. SECRETARY TO THE GOVERNMENT OF PUNJAB LOCAL GOVERNMENT, SOCIAL WELFARE AND RURAL DEVELOPMENT, LAHORE AND OTHERS 1986 SCMR 348; GOVERNMENT OF WEST PAKISTAN AND ANOTHER V. BEGUM AGHA ABDUL KARIM SHORISH KASHMIRI PLD 1969 SC 14.

Article 185 — Extradition proceedings conducted by a Magistrate other than the persons designate — Effect — Where Federal Government had designated District Magistrate to conduct extradition proceedings relating to a detenu, proceedings conducted by any other Magistrate would be without lawful authority and of no legal effect — Appeal against dismissal of petitioner’s constitutional petition was accepted by Supreme Court and declaration in terms of illegality of extradition proceedings was granted. [p. 278]G

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