everal legal and political issues are attached to the extradition of individuals accused of violating laws in other countries. The first among those is the need to balance diplomatic considerations with due process of law. A recent decision by the Peshawar High Court in the case of a Pakistani citizen, accused by the United States of running a human smuggling network, presents a useful case.

In 2021, a federal grand jury in the US, indicted Abid Ali Khan for allegedly running a scheme to smuggle undocumented individuals into the US from Pakistan and Afghanistan. The scheme was alleged to have run from 2015 to 2020. The US government also announced a reward of $1 million for information leading to the arrest and conviction of Khan.

On September 2 this year, the Peshawar High Court ordered the government not to extradite the accused to the US. During the hearing of a petition filed by a brother of the accused, it was revealed that Abid Ali Khan was taken away by law enforcement personnel on June 24 and had been in custody ever since. His family has filed a complaint against what they have described as his “abduction.” The police have taken no action so far for his recovery. Fearing his extradition to the US, an FIR was lodged on August 29. It was subsequently followed by a habeas corpus petition. The brother of the accused claimed that the allegations against Abid Ali Khan were baseless as the Federal Investigation Agency had investigated the matter and found him innocent.

This episode raises the following questions: (i) was Abid Ali Khan’s arrest legal; (ii) can Khan be extradited to the US; (iii) are the claims of innocence by his brother credible; and (iv) what should the government’s stance be on extradition demands made by foreign countries?

Pakistan does not have a formal extradition treaty with the US. In 1947, it had inherited an extradition treaty signed between the US and UK in 1932. However, in 2020, a three-judge bench of the Supreme Court of Pakistan questioned how a pre-independence agreement could be binding on Pakistan. The court declared that Pakistan had no actual extradition treaty with the US.

In the absence of a formal treaty, the Extradition Act, 1972, provides the only other legal avenue for an extradition request from the US to be approved. The Act defines a ‘fugitive offender’ as a person accused or convicted of an ‘extradition offence.’ A complete list of extradition offences is provided in the schedule of the Act. Whether or not human smuggling falls under any of the listed offences is a point of legal interpretation. Assuming that the falls within the ambit of the Act, proper procedure needs to be followed to ensure that the fundamental rights guaranteed by the constitution are not violated. This includes the right of all individuals to be dealt with in accordance with the law; the right not to be deprived of life and liberty save in accordance with the law; and the right to move and reside freely within Pakistan.

According to Section 6 of the Act, a foreign state must first submit a formal requisition to the government of Pakistan. Once a formal requisition is received, the government may, in accordance with Section 7 of the Act, issue an order to a magistrate of first class to inquire into the extradition offence. The inquisitorial powers of the magistrate are outlined in Section 8 of the Act. These include the power to issue an arrest warrant.

Section 19 of the Act grants a right to the accused to move a bail application at this stage. The magistrate is empowered to adjudicate it in accordance with the Code of Criminal Procedure.

After conducting an inquiry, the magistrate may issue a report to the federal government if they believes that a prima facie case against the accused has been made out. The final decision to extradite the accused lies with the government. Section 13 of the Act grants the government power to disregard the report issued by the magistrate and opt not to extradite the accused if it believes that it is in the interest of justice to do so.

Given the aforestated procedure, the case of Abid Ali Khan as reported so far leaves a lot of questions unanswered. It is unclear whether a formal requisition was received from the US. Assuming that a formal requisition was submitted, was an order to inquire into the extradition offence issued by the federal government to a magistrate of first class? If an order was issued, was Abid Ali Khan’s arrest due to an arrest warrant issued by the magistrate? If an arrest warrant was issued, was a bail application moved by the accused? Was it denied? Has the magistrate prepared a report? Has the report been provided to the federal government? What is the current state of proceedings? The facts available to the public at the moment point towards arbitrary arrest and illegal detention.

This does not necessarily mean that Abid Ali Khan is innocent. The statement made by his brother, claiming that the FIA cleared him, does not hold much weight. The FIA has a poor prosecution track record and has been unable to eliminate smuggling rackets. There is no evidence, however, of a proper inquiry by a magistrate, without which it cannot be said that a prima facie case against the accused does not exist.

Pakistan should not be closed off to extradition but the government should ensure that all requests for extradition are made through proper legal channels. A pro-enforcement policy should be adopted and procedural transparency should be encouraged. Pakistan must not become a safe haven for those who violate laws in other countries. Lawful extradition, based on justifiable grounds, is necessary for international peace and prosperity. It will also allow Pakistan to maintain cooperative relations with other states. However, extradition procedures should not be used as a political tool. Nor should due process be violated in the interest of diplomatic expediency.

The writer is a lawyer based in Lahore. Email: azwarshakeel12@gmail.com