ISLAMABAD-The Islamabad High Court (IHC) has turned down an Intra Court Appeal (ICA) against extradition of a Pakistani origin US national Talha Haroon allegedly involved in hatching conspiracy to carry out a terrorism activity in New York, USA.
A division bench of IHC comprising Justice Aamer Farooq and Justice Miangul Hussan Aurangzeb announced their reserved judgment of the ICA while the bench has also partly accepted government’s ICA in the same matter.
In the ICA of Talha’s father, petitioner’s counsel stated that the appellant, being aggrieved of the finding of enquiry officer and order of the Ministry of Interior, filed a petition before the IHC which vide a judgment dated 03.05.2019, disposed of the same with a direction to enquiry officer to conclude the enquiry within a period of 60 days, afresh. Hence, he has filed this intra court appeal against the aforementioned judgment.
He added that the petition filed by the appellants was disposed of by the learned single judge without any direction or order for discharging and releasing the appellant’s son.
Through another ICA, the Federation of Pakistan also impugned the said judgment dated 03.05.2019 only to the extent of the learned Judge-in-Chambers holding that the witnesses who submitted their affidavits in support of the extradition request have to be cross-examined and that the investigation officer of the country making the extradition request has to appear before the Enquiry Magistrate and record his evidence.
The IHC observed in the verdict, “Since we intend to remand the matter to the Enquiry Magistrate so as to afford an opportunity to the prosecution to produce the affidavit/deposition of the UC [Undercover law enforcement officer] (without disclosing his identity), made in accordance with Section 9(2) of the 1972 Act, we deem it appropriate also to direct the Enquiry Magistrate to give a finding on the question whether conspiracy to commit acts of terrorism (i.e. the offence which appellant No.2 is alleged to have committed) is an extradition offence so as to attract the provisions of the 1972 Act.”
It noted, “In view of the above, I.C.A.No.225/2019 filed by the appellants is dismissed whereas I.C.A.No.224/2019 filed by the respondent is partly allowed; the impugned judgment dated 03.05.2019 to the extent of holding that it is necessary for the enquiry/investigation officer in the requesting State who inquired or investigated the case against the fugitive offender to appear and give evidence before the Enquiry Magistrate is set-aside.”
The bench added, “The observation in the impugned judgment that for the affidavits produced in support of the extradition request to have evidentiary value, the deponents of such affidavits have to be produced for cross-examination is also set-aside; the proceedings before the Enquiry Magistrate shall be deemed to be pending and in such proceedings, the Enquiry Magistrate may accept any further 30 I.C.A.Nos.224 & 225 of 2019 evidence that is produced in support of the extradition request in accordance with Section 9 of the 1972 Act. There shall be no order as to costs.”
The petitioner stated in the ICA, “It is very pertinent to mention here the instant appeal is to the extent of discharging and releasing the accused, particularly, when the learned single judge after hearing the case at length arrived at the conclusion that the case was of no evidence and whatever appended with the criminal complaint was not admissible. Then it is categorically clear that a prima facie case was not made out in support of the requisition for surrendering of the appellant No. 2 (Talha Haroon) as was requested by the US authorities and eventually the learned single judge should have discharged and released the appellant as warranted by the law on the subject matter.”
Petitioner’s counsel Idrees Ashraf Advocate adopted in the ICA that the learned single judge has failed in appreciating the point, regarding admissibility of evidence, raised before him. It was contended that extradition request being faulty could not be granted because the evidence attached with the criminal complaint was entirely inadmissible either being hearsay or in the form of affidavits which were inadmissible unless the deponents were produced for cross examination. The learned single judge through the impugned judgment has examined the latter part of the contention relating to affidavits but totally ignored the first part of the contention which was about hearsay.
He added that it is very respectfully submitted that as per criminal complaint the appellant is a high-level target and active member of ISIS but it is very surprising that the requesting State has not placed any evidence relating to the connections of the appellant with the IS.
The counsel continued that it is also submitted that the whole case revolves around encrypted electronic communications but no Internet Protocol (IP) address of appellant’s laptop has been mentioned in the complaint to identify that the instrument through which the communications were made belongs to the appellant.
Therefore, he prayed to the court that the impugned judgment to the extent of fresh decision of enquiry magistrate may kindly be suspended. He further requested to release Talha Haroon from custody pending adjudication of the instant appeal.
Talking to The Nation, the petitioner’s counsel Ashraf said that he is disappointed but this judgment has cleared his mind why Americans are ruling the world.
He added, “The reason is they have cases like Amistad case in there judicial history. One of the most famous cases in the civil rights history of the America and contrary to that “we have cases like Dosso case, Zulifiqar Ali Bhutto case, Nusrat Bhutto case, Zafar Ali Shah case and on the top of that Sindh high court bar association case.”