Section 59: Foreign requests for an evidence-gathering Order or a search warrant

59. Foreign requests for an evidence-gathering Order or a search warrant.__ (1) Notwithstanding anything contained in any law for the time being in force, where the Federal Government approves a request of a foreign State pursuant to section 1[58] to obtain evidence in Pakistan, or be able to be given by a person believed to be in Pakistan, the Director-General or an officer authorised by him may apply to the High Court for__ (a) a search warrant; or (b) an evidence-gathering order. 1 Subs. by the control of narcotic substances (Amdt.) Act 2022 (XX of 2022) s.21. (2) The High Court to which an application is made under sub-section (1) may issue an evidence-gathering order or a search warrant under this sub-section, where it is satisfied that there are reasonable grounds to believe that__ (a) an offence has been committed, or is suspected on reasonable grounds to have been committed against the laws of the requesting State which, if committed in Pakistan, would have constituted an offence under this Act; (b) evidence of the commission of the foreign offence or information that would reveal the whereabouts of a person who is suspected of committing the foreign offence is likely to be found in a building, receptacle or place in Pakistan; and (c) in the case of an application for a search warrant, it would not, in all the circumstances, be more appropriate to grant an evidence-gathering order. (3) An evidence-gathering order__ (a) shall provide for the manner in which the evidence is to be obtained in order to give proper effect to the foreign request unless prohibited under the law of Pakistan, and in particular, may require any person named therein to__ (i) make a record from data or make a copy of record; (ii) attend Court to give evidence on oath or otherwise until excused; and (iii) produce to the High Court or to any person designated by the Court, anything, including any record, or copy thereof; and (b) may include such terms and conditions as the High Court considers desirable, including those relating to the interests of the person named therein or of third party. (4) A person named in an evidence-gathering order may refuse to answer a question or to produce a record or thing where the refusal is based on__ (a) a law in force in Pakistan; (b) a privilege recognized by a law in force in the foreign State that made the request; or (c) a law in force in the foreign State that would render the answering of that question or the production of that record or thing by that person in its own jurisdiction an offence. (5) Where a person refuses to answer a question or to produce a record or thing under sub- section (4), the High Court shall report the matter to the Federal Government which shall notify to the foreign State accordingly and request it to provide a written statement on whether the person’s refusalwas well-founded under the law of the foreign State. (6) Any written statement received by the Federal Government from the foreign State in response to a request under sub-section (5) shall, notwithstanding anything contained in the Qanun- e-Shahadat, 1984, be admissible in the evidence-gathering proceedings, and be determinative of whether the person’s refusal is well-founded under the foreign law. (7) A person who, without reasonable excuse, refuses to comply with a lawful order of the High Court made under this section, or who having refused under sub-section (4), continues to refuse notwithstanding the admission in evidence of a statement under sub-section (6) to the effect that the refusal is not well-founded, commits a contempt of court. (8) The High Court may issue a warrant for the arrest of a person named in an evidence- gathering order where it is satisfied that the person__ (a) did not attend or remain in attendance as required or is about to abscond; and (b) was personally served with the order. (9) A person arrested in pursuance of a warrant issued under sub-section (8) shall be forthwith brought before the High Court, to ensure compliance with the order made under sub- section (2), and the Court may order that the person be detained in custody or released on recognizance, with or without sureties. (10) A search warrant__ (a) shall be issued in accordance with the provisions of Criminal Procedure Code, 1898 (V of 1898); (b) shall specify a time and date when the High Court will hear any representations from any person from whom, a record or thing is seized pursuant to the warrant, before any order is made to send it to the foreign State; and (c) may include such terms and conditions as the High Court considers desirable, including conditions relating to the time or manner of its execution. (11) The person executing a search warrant issued under sub-section (2)__ (a) may seize anything that he believes on reasonable grounds will afford evidence of, or has been obtained for, or used in, or is intended to be used in, the commission of an offence under this Act; (b) shall, at least five days before the time of the hearing to consider its execution, file in the High Court a written report concerning the execution of the warrant, including a description of the records or things seized. (12) At the hearing to consider the execution of a search warrant the High Court, after considering any representations made by the Director General or an officer authorised by him, or any person from whom a record or thing was seized pursuant to the warrant, and any person who claims to have an interest in the record or thing, may__ (a) order that the record or thing be returned to the person from whom it was seized, or to the person lawfully entitled to its possession, if satisfied that the warrant was not executed according to its terms and that it would be in the public interest to so return it; (b) in any other case, order that the record or thing be sent to the foreign State, and include in the order such terms and conditions as the High Court considers necessary__ (i) to give effect to the request from the foreign State; (ii) with respect to the preservation and return to Pakistan of any record or thing seized; or (iii) with respect to the interest of a third party. (13) No record or thing seized and ordered to be sent to a foreign State shall be sent until the Director-General is satisfied that the foreign State has agreed to comply with any terms or conditions imposed in respect of the sending abroad of the record or thing.

Effective date: 1997-07-11

Related sections