MUSHIR ALAM, J.---The petitioners were arrested, tried on the charge of possessing different quantities of heroin and convicted for life in Srilanka and have been repatriated to Pakistan to serve out the sentence. The petitioners have invoked the provision of Transfer of Offenders Ordinance, 2002, (hereinafter referred to as the "Ordinance 2002) to seek their release. According to them, they have already undergone the maximum sentences which could be imposed upon them in Pakistan, had they been apprehended, charged and tried for the similar offence in Pakistan.
Since in these petitions common question of facts and law are involved, we intend to dispose of the same through instant pronouncement.
2. In order to appreciate the contentions raised by the learned counsel for the petitioners in their respective petitions, briefly stating name of each petitioner, offence charged, date of arrest, date of sentence and length of period served till date is given in the tabulated form herein below; S. No,Name of Petitioner Petition No,Offence/charge Date of arrestDate of sentence Detention Period
1. Akit Shoaib son Of Abdul QyyumD-1188/ 2009Drug Trafficking 900 grams16-2-200418-1-2007 life imprisonment5 Y, 7M & 6D
2. Hussain Ahmed Son of Yar MuhammadD- 1190/2009Drug Trafficking 536 grams24-9-200427-2-2007 life imprisonment5 Y & 7 M
3. Najam-ul-Hassan son of Muhammad MubeenD- 1193/2009Drug Trafficking 01 Kilogram16-2-200418-1-2007 life imprisonment5 Y, 7M & 6 D
4. Hassan Ali son of Jaffar AliD- 1194/2009Drug Trafficking 03 Kilo-grams23-10- 200018-1-2007 life imprisonment8 Y, 11 M & 22 D
5. Syed Tariq-ur- Rehman son of Fazal- ur-RehmanD- 1195/2009Drug Trafficking 278 gms.16-10- 20045-3-2007 life imprisonment5 Y, 7M & 6 D
6. Shahzad Ahmad s/o RehmatullahD- 1196/2009Drug Trafficking 2.6 Kg19-10- 20006-12-2006 life imprisonment8 Y, 11 M & 26 D
7. Ali Ahmed son of Muhammad IbrahimD- 1197/2009Drug Trafficking 1150 gms27-3- 200127-2-2008 life imprisonment7 Y. 5 M & 19 D
8. Syed Najam-ul- Hassan s/o Syed Muhammad LatifD- 1198/2009Forged traveler cheques30-4-200421-3-2007 139 years imprisonment5 Y, 4 M & 14 D
3. It was contended by the learned counsel for petitioners that after fulfillment of conditions of Section 6 of the Ordinance, 2002, they were transferred and shifted to Pakistan in June, 2009 and presently they are, lodged and serving out their sentence at Central Prison Karachi.
4. Mr. Javed Iqbal Burqi, learned counsel, on the strength of section 3 of the said Ordinance, 2002, contended that the provision of Ordinance, 2002 would apply in cases where the treaty for the transfer of prisoners exists between two countries.
5. Learned counsel has also urged that by virtue of subsection (4) of Section 9 of the Ordinance 2002, where the legal nature and duration of the sentence of imprisonment imposed on an offender transferred to Pakistan is not compatible with any law of the country of the treaty, it shall be lawful for the Court of transferee country of a competent jurisdiction to adopt such sentence as is compatible with the Pakistan laws.
6. It was urged that the sentences awarded to all the petitioners irrespective of the quantity of narcotic substance allegedly recovered as per Sri Lankan law is life sentence. According to him, such sentence is not compatible with the sentences that could be awarded under Section 9 of the Control of Narcotic Substances Act, 1997, hereinafter referred to as the C.N.S. Act, 1997". According to him, all the petitioners have either served out the sentences or about to complete the maximum sentence that could be awarded under the C.N.S. Act, 1997, in addition thereto, they are also entitled for the benefit of Section 382-B, Cr.P.C.
7. In aid of his foregoing contentions, he has relied upon the case of Imran Ali v. Province of Sindh and others, reported in 2007 PCr.LJ 1364 and an unreported order passed by a learned Division Bench of this Court in C.P. No,D-1050/2009 titled as "Muhammad Sarwar v. Province of Sindh and others" by Order dated 22/7/2009.
8. In 'Pakistan Transfer of Offenders Ordinance 2002 and in Sri Lanka Transfer of the Offenders Act (No, 5) of 1995 provides and regulate for the transfer of the convicted offenders to their respective country of origin of course subject to consent of such convict and other conditions of transfer as laid down in Section 6 of the Ordinance 2002.
9. To claim benefit of such transfer there has to be a treaty for mutual transfer of offenders between Pakistan and the country from which the convicts are being transferred. It is admitted that such treaty dated 1-12-2004 exists between Government of Pakistan and Sri Lanka, which, inter alia, provides that the offenders, who are tried in one country, could be transferred to the other country to undergo the remaining portion of their sentences.
10. In this backdrop, it would be advantageous to reproduce sections 3 and 9 of the Ordinance 2002, which read as follows: "3. Application of the Ordinance.--Where an agreement for mutual transfer of offenders had been entered into between Pakistan and any specified country, whether before or after the commencement of this Ordinance, the Competent Authority shall, by notification in the official Gazette, declare that the provisions of this Ordinance shall apply in respect of such country."
"9. Inspector-General of Prisons to have the custody of an offender transferred to Pakistan.--(1)
Every offender being transferred to Pakistan from any specified country, upon an order under Section 4 shall be formally handed over to the Inspector-General of Prisons so nominated by the Competent Authority and the concerned Inspector-General of Prisons shall have the authority to keep such offender in custody in any place as may appear to him to be appropriate for giving effect to the sentence of imprisonment imposed on such offender in such specified country for the period of the sentence as if it were a sentence imposed by a Court in Pakistan.
(2) The enforcement of the sentence of imprisonment imposed on any offender who is transferred to Pakistan under subsection (1) shall be governed by the laws of Pakistan.
(3) Notwithstanding anything contained in subsection (2) the Competent Authority shall, unless otherwise specified in the agreement, be A bound by the legal nature and duration of the sentence of imprisonment imposed on any offender transferred to Pakistan under subsection (1).
(4) Where the legal nature and duration of the sentence of imprisonment imposed on any offender transferred under subsection (1), is incompatible with any law of Pakistan, it shall be lawful for a Court of competent jurisdiction in Pakistan to adopt such sentence to make it compatible with laws of Pakistan provided however that the sentence as adopted by such Court in Pakistan corresponds, as far as practicable, to the sentence imposed on such offender in the specified country from which such offender was transferred to Pakistan." (Underlined to add emphasis)
11. On perusal of the above, it is clear that irrespective of the severity of sentence awarded to a convict in the country of crime and conviction on being transferred under bilateral arrangement to Pakistan such convict is entitled to undergo such sentence as is compatible with the laws of Pakistan. However compatibility of sentence could only be adjudged and determine by the court of competent jurisdiction in Pakistan.
12. Under the Transfer of Offenders Ordinance, 2002, enforcement of the sentence of the imprisonment that is imposed on any offender, who is transferred to Pakistan, is to be governed by the laws, of Pakistan and in case the duration of the sentence of imprisonment inflicted on any offender that may be transferred to Pakistan by a country having signed bilateral treaty for the transfer of offender is incompatible with any law of Pakistan then the court of competent jurisdiction can examine and make it akin to the sentence that could be awarded for the similar crime as in vogue in Pakistan. It may further be observed that that an offender who is transferred to Pakistan in terms of Section 9 as reproduced above is entitled to be given benefit of remission of the sentence as per laws in force of the country of conviction up to the date of his transfer to Pakistan. On transfer, such convict is also entitled to the benefit of remission in leftover sentence or pardon as may be declared by the President of Pakistan or by any other authority under any law in Pakistan. [See section 12 of the Ordinance, 2002)].
13. In cases in hand, particulars of convict petitioners have been filed in this court in C.P. 1050/09, which does not show any remission earned if any in Sri Lanka nor date when each convict was transferred to Pakistan to serve out remaining sentence nor any jail roll has been placed on record to examine the remission if any earned in Pakistan from the date of their respective transfer to Pakistan.
14. Keeping in view sentencing doctrine and maintaining proportionality of sentence to the severity of crime. (See Zafar v. State 1999 SCM R 2028, Farooq Ahmed Khan Leghari v Federation PLD 1999 SC @ 192 and Muhammad Ilyas v. Muhammad Sufian PLD 2001 SC 465 @ 474). Case of each petitioner was examined individually and compatibility of sentence per laws of Pakistan is adjudged as follows:
15. Akif Shaib son of Abdul Qayoom, C.P. No,D-1188/2009: 900 grams heroin was recovered from the possession of Akif Shaib. He was arrested on 16-2-2004 and awarded life sentence in Sri Lanka. The offence in Pakistan is punishable under Section 9(b) of the CNS Act 1997 for imprisonment up to seven years and also liable to pay fine. He has already served out 5 years, 7 months and 6 days. He must have earned some remission in Sri Lank as well as in Pakistan. Since recovered quantity is less than 1 Kg, giving benefit of remission he must have earned in both the countries, his sentence is accordingly reduced to already undergone, he may be released.
16. Hussain Ahmed son of Yar Muhammad C.P. No,D-1190/2009: From Hussain Ahmed 536 grams heroin was recovered. He was arrested on 24/9/2004 and convicted on 27-2-2007 for life imprisonment. The recovered quantity falls under Section 9(b) of the CNS Act 1997. He would have earned imprisonment extendable to seven years had he been convicted in Pakistan. Since recovered quantity is less than one kilogram, adjudging proportionate and compatible conviction under the relevant provisions he is awarded sentence of 3 years and 7 months. He has already undergone 5 years, 7 months and 6 days, which is far than the sentence that could have been awarded to him had he been convicted in Pakistan. He having served out the sentence, he should be released from the jail forthwith.
17. Najmul Hasan s/o Muhammad Mobeen Khan C.P.No,D-1193/2009: The above-named petitioner is charged with the alleged recovery of 01 Kg narcotic substance. He was arrested on 16-2-2004 and was sentenced for life imprisonment on 18-1-2007. Had he been convicted under section 9(b) of the CNS Act 1997, he would have received full doze of sentence to undergo imprisonment of seven years and also fine. He was arrested on 16-2-2004 and sentenced to life on 18-1-2007. He has already undergone 5 years, 7 months an 6 days. He must have earned remission both in Sri Lank as well as in Pakistan. Giving benefit of such remission his sentence is adjudged to already undergone. He may be released.
18. Hasan Ali son of Jafar Ali, C.P. No,D-1194/2009: Hasan Ali is charged with alleged recovery of 3 Kilograms narcotic substance i,e, heroin. He was arrested on 23-10-2000 and sentenced him for life imprisonment on 18-1-2007. Had he been convicted in Pakistan, he would have been sentenced to a term up to 14 years and fine up to Rupees one million. Since the quantity of recovered narcotic substance is less than 10 Kg keeping in views the principle of proportionately of the conviction. His sentence as compatible to laws of Pakistan is adjudged to be 9 years imprisonment and fine of Rs,300,000 and in default of payment of fine, further detention period of one year. He will also be entitled all the benefit of remission earned in Sri Lanka and Pakistan as per section 12 of the Ordinance 2002. He has already served 8 years 11 months and 22 days. On serving out the sentence as adjudge above and on payment of fine or serving out further sentence in lieu thereof, as the case may be, he may be released from the jail.
19. Syed Triq-ur-Rehman son of Syed Fazal-ur-Rehman, C.P. No,D-1195/2009: The recovered narcotic substance is 278 grams from the possession of above-named petitioner.
He was arrested on 16-10-2004 and sentenced for life imprisonment on 5-3-2007. Had he been tried in Pakistan, would have been convicted under Section 9(b) of the C.N.S. Act 1997 to undergo imprisonment extending to seven years and fine. He has already undergone 5 years 7 months.
Keeping in view principle of proportionality and compatibility of sentence had he been convicted in Pakistan he would have been released on completion of 2 years and 8 months. He has already served out the substantive sentence and sentence in lieu of fine that could have been awarded in Pakistan therefore he may be, released from the jail forthwith.
20. Shahzad Ahmed Khan son of Rahmatullah, C. P. No,D-1196/2009: The above-named petitioner was arrested on 19-10-2000 and convicted for life imprisonment on 6-12-2004 on the charge of possession 2.6 Kg of narcotic substance. He would. Have been inflicted sentenced for 9 years and fine of Rs,2,50,000 and in lieu thereof further detention period of one year, had he been convicted in Pakistan. He has served out the-sentence of 8 years 11 months.
Looking at his case and keeping in view and benefit that he must have earned remission in Sri Lanka as well as in Pakistan, his sentence already undergone is treated as compatible to conviction that could have been inflicted in Pakistan. He may be released from the jail forthwith.
21. Ali Ahmed son of Ibrahim, C.P. No,D-1 197/2009: He was sentenced to life on account of recovery of 1150 grams of narcotic substance. He was arrested on 27-3-2001 and sentenced to life on 27-2-2007. Had he been sentenced in Pakistan, he would have been convicted under section 9(c) of C.N.S. Act, 1997, which could have entailed of maximum punishment of 14 years. Computing the sentence proportionately to the quantity of recovered narcotic substance, his sentence is reduced to 8 years and fine of Rs,50,000 and in default to undergo 3 months more. He is behind the bar for about 8 years, 5 months and 14 days.
Since he has served out more than substantive sentence and so also in lieu of fine, therefore, he may be released from the jail forthwith, if he is not required in any other case.
22. Syed Najmul Hassan s/o Syed Muhammad Latif, C.P. No,D-1198 of 2009: Syed Najmul Hassan was charged and convicted for possession of forged travellers cheques. He was arrested on 30/04/2004 and sentenced for 139 years imprisonment on 21-03-2007. Had he been convicted in Pakistan, he would have been charged for an offence punishable under section 489-C, P.P.C. Punishable for a term which may extend to seven (7) years or withfine or with both. His sentence as compatible to laws of Pakistan is adjudged to be 6 years. He has already undergone five (5) years 4 months and 13 days. He will also be entitled all the benefit of remission earned in Pakistan as per section 12 of the Ordinance 2002. On serving out the sentence as recorded above he may be released from the jail.
All the Petitions stand disposed of in terms above.