' SARMAD JALAL OSMANY, J.--- Briefly stated the facts of the matter are that the petitioner Imran Ali was apprehended by the authorities at Colombo Airport on 13-3-1997 from whose possession 2028.4 grams (gross) of heroin was recovered. He was thereafter prosecuted and finally convicted by the Sri Lankan Court on 29-11-2005 for such offence and sentenced to undergo life imprisonment. On 20-7-2006, the petitioner was deported along with other convicted Pakistani prisoners from Sri Lanka under the agreement, dated 1-12-2004 executed between the Government of Pakistan and Sri Lanka on transfer of offenders to undergo the remaining portion of their sentences. Hence, the petitioner on the ground that the petitioner's continued detention in Pakistan is against his fundamental rights as guaranteed under the Constitution.
2. Mr. Faisal Siddiqui, appearing for the petitioner, has submitted firstly that the transfer of Pakistani Citizens convicted in a foreign country for any offence is regulated under the Transfer of Offenders Ordinance, 2002. Per learned counsel section 3 of such Ordinance stipulates that the provisions thereof would only apply where an agreement to this effect exists between Pakistan and any other country which would have to be gazetted in order to have the force of law. Consequently, as this has not been done in the case of the agreement between Pakistan and Sri Lanka, hence on this score alone the detention of the petitioner in this country is unlawful.
3. In the alternative, learned counsel has submitted that even if this be the case section 9(4) of the Ordinance clearly provides that where the legal nature and duration of the sentence imposed on any offender transferred to Pakistan is incompatible with any law in this country then it shall be lawful for a Court of competent jurisdiction in Pakistan to adopt such sentence as is compatible with Pakistani Law. However, per the proviso that the sentence so adopted by the Court in Pakistan should correspond as far as practicable to the sentence imposed on such offenders in the foreign country. According to learned counsel the net quantity of heroin recovered from the petitioner was only 867.21 grams as per the judgment of the Sri Lankan Court on the record in which even the maximum sentence in Pakistan would be seven years' R.I. Per section 9(b) of the Control of Narcotic Substances Ordinance,. Consequently, this sentence should be adopted in terms of section 9(4) of the Transfer of Offenders Ordinance. In the alternative, learned counsel has also submitted that even if the (sic) from the petitioner viz. 2028.4 grams as per the Sri Lankan Court's judgment be considered, then too the maximum punishment under section 9(c) of the Narcotics Ordinance, per settled case-law, should not exceed 14 years. In this regard he has relied upon Abdul Ghani v. The State 2001 PCr.LJ 2027, Zaheer Ahmed v. The State 2002 YLR 443, The State v. Abdul Qahir PLD 2002 SC 321, Akhtar Hussain v. The State 2005 PCr.LJ 1958 and Khawar v. The State 2003 PCr.LJ 811. Furthermore, per learned counsel, the benefit of section 382-B, Cr.P.C. Is to be given to the petitioner unless for reasons recorded by the Court the same is refused for which submissions he has relied upon Ghulam Murtaza v. The State PLD 1998 SC 152 as well as C.Ps. Nos.1414 to 1419 of 2006 wherein a Division Bench of this Court has extended such benefit in similar circumstances.
4. Consequently, learned counsel has prayed that as admittedly the petitioner was arrested on 13- 3-1997 and now he has suffered almost 10 years imprisonment, therefore, this should be considered sufficient and he should accordingly be released from jail.
5. Mr. Abdul Razzaque has supported the contentions of Mr. Faisal Siddiqui. He has additionally relied upon the case of Khawar v. The State 2003 PCr.LJ 811 wherein for possession of six Kgs. Heroin the sentence of 14 years awarded to accused was reduced to 8 years' R.I. By this Court. So also the case of Abdul Ghani v. The State (supra) wherein for possession of 3 and 4 Kgs. Of opium by the accused the sentence of life imprisonment awarded by the trial Court.
6. The learned Additional Advocate-General as well as Ms. Sofia Saeed have concurred with the submissions of learned counsel for the petitioner to the extent that in the facts and circumstances of the case of sentence of life imprisonment imposed upon the petitioner is too harsh. Mr. Ashfaque Rizvi, Special Prosecutor for A.N.F. Attempted to justify same on the ground that it was a most heinous crime and hence the sentence was proper.
7. We have heard all the learned counsel as well as the learned Additional Advocate-General and our conclusions are as follows:--
8. It would be seen that in terms of section 9(4) of the Ordinance, 2002, the sentence given to citizens of this country in a foreign jurisdiction should be compatible to the laws of Pakistan and consequently a Court of competent jurisdiction in Pakistan could adopt the latter sentence.
However, the same should correspond as far as practicable to the sentence imposed by the foreign Court. Upon a perusal of the judgment delivered by the Sri Lankan Court, it appears that the gross quantity of heroin recovered from the petitioner was 2028.4 grams whereas the net quantity was 867.21 grams. In accordance with section 9(b) of the Control of Narcotic Substances Ordinance where the quantity is up to one Kg. Then the maximum sentence which can be imposed is seven years' R.I. Along with fine. As admittedly the petitioner has remained continuously behind the bars since the date of his arrest viz. 13-3-1997, he has undergone the maximum sentence which could be imposed upon him in this country. In our opinion, this Court in terms of section imposed by the Sri Lankan Court is not at all compatible with the law of the land.
9. Insofar as the applicability of section 382-B, Cr.P.C. Is concerned, again per settled law, the benefit thereunder is to be given to the accused unless for reasons recorded in writing by the Court it is to be refused. In this regard reference can be made to Ghulam Murtaza v. The State (supra).
There is nothing in the judgment of the Sri Lankan Court as to .Whether or not this benefit was accorded to the petitioner. Consequently, again in terms of section 9(4) of the Ordinance, 2002, we would extend such benefit to him.
10. For all the foregoing reasons, we consider that the sentence undergone by the petitioner with effect from the date of his arrest which comes to 10 years and 4 months, including remissions, (per the jail roll on the record) to be sufficient in the facts and circumstances of the case. Hence, vide short order passed earlier, we had directed that the petitioner be released from jail. These are the reasons for the same.