ZAHID HAMID, J.--- By this order we intend to dispose of the instant Constitutional Petition, which has been filed by petitioner Umer Iqbal, seeking the direction to the respondents Nos. .1 and 3 to release the petitioner on his having served more than five years imprisonment, inter alia, taking into account the remissions granted to him from time to time.
2. The factual perspective disclosed in the memo of Petition is that detente left for Sri Lanka with the object of seeking employment there through a travel agent in 2004 and on his instruction the petitioner handed. Over his belongings including bags to the travel agent at Karachi before leaving for Sri Lanka. It is pleaded that the petitioner had paid the agreed amount to the travel agent but on reaching Sri Lanka, extra amount was demanded by the latter which he refused to pay and after exchange of hot words, the travel agent threatened the petitioner that he would have to face dire consequences. On 25-10-2004 the Sri Lankan Police arrested him and charged him with possession of 2700 grams of heroin which had been recovered from his person. Consequently he was sent to jail and thereafter tried and convicted for such offence and sentenced to imprisonment for life by the Sri Lankan Court. Thus after serving for more than five years in Sri Lankan Jail, the petitioner, it is stated, after fulfilment of all conditions of section 6 of the. Transfer of Offenders Ordinance, 2002 was transferred to B Pakistan on 31st May, 2009 and under section 9(1) of Transfer of Offenders Ordinance, 2002 the petitioner was handed over to respondent No,3 to complete his sentence in Central Jail, Karachi. It is stated that under section 13 of the Transfer of Offenders Ordinance, 2002 the sentence of imprisonment imposed on an offender who is a citizen of Pakistan in any specified country should not be subjected to any appeal or revision and under subsection (4) of section 9 of Transfer of Offenders Ordinance, 2002 it is provided:-- "Where the legal nature and duration of the sentence of imprisonment imposed on an 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."
' Consequently, it is claimed that enforcement of sentence of imprisonment imposed on an offender, who is transferred to Pakistan under section 9 subsection (1) shall be governed by the laws of Pakistan under section 9 subsection (2) of the said Ordinance. The petitioner, under the circumstances, emphasized that he has already served for more than five years in Sri Lankan Jail and on his arrival in Karachi he has been detained since 3rd June, 2009 in Central Prison Karachi and as such any further sentence is incompatible according to law of Pakistan and is to be made compatible as provided under section 9 of subsection (4) of Transfer of Offenders Ordinance, 2002.
Accordingly his fundamental right is at stake in terms of Articles 4, 9 and 10 and his further detention is violative of such fundamental right. He, therefore, prayed that his further detention may be declared illegal.
3. Notice was issued to learned Advocate General Sindh, learned Prosecutor General Sindh and learned Deputy Attorney General, Pakistan. On 30-3-2010, the learned Additional Advocate-General sought time to file comments, the jail roll of the petitioner was also called for. On 2-4-2010 learned counsel for the petitioner Mr. Javed Iqbal Burqi and learned Additional Advocate-General Mr. Nafees Usmani were heard and the matter was reserved for orders.
4. Learned counsel for the petitioner has relied on the order dated 14-9-2009, delivered by our learned brothers Mr. Justice Mushir Alain and Mr. Justice Muhammad Athar Saeed in Atif Shoaib and others v. Province of Sindh and others (C.Ps. Nos.D-1188, D-1190, D1193, D-1194, D-1195, D-1196, D- 1197 and D-1198 of 2009.) In this case, the petitioners were arrested and tried for possessing different quantities of heroin. They were convicted and sentenced to suffer life imprisonment in Sri Lanka and subsequently repatriated to Pakistan to serve out the remaining portion of their sentences. They invoked the provisions of the Transfer of Offenders Ordinance, 2002 to seek their release as according to them they had already undergone the maximum imprisonment which could be imposed upon them in Pakistan had they been apprehended, charged and sentenced for similar offences in Pakistan.
' In the table of offenders Shahzad Ahmed son of Rahmatullah one of the eight offenders in C.P. No, D-1196 of 2009, was arrested for trafficking 2.6 kg of drugs. On 6-12-2006 he was sentenced to suffer life imprisonment and his detention period upto relevant time was noticed as eight years eleven months and twenty six days. It was held that:-- "If the offence had been committed by Shahzad Ahmed Khan of trafficking 2.6 kg of narcotic substance, he would have been sentenced to imprisonment for nine years and fine of Rs,2,50,000 and in default thereof further imprisonment of one year."
"He had served out the sentence of eight years eleven months and twenty six days and looking at the remissions which he ought to have earned in Sri Lanka as well as in Pakistan his sentence already undergone was treated as compatible to conviction as could have been inflicted in Pakistan. He was therefore ordered to be released forthwith by the aforesaid order of Division Bench of this Court."
5. The learned Counsel has also referred to the case of Imran Ali v. Province of Sindh and others 2007 PCr.LJ 1364. In this case, the petitioner Imran Ali was apprehended by the authorities at Colombo Airport on 13-3-1997, from whose possession 2028.4 grams of heroin was recovered. He was convicted by Sri Lankan Court on 29-11-2005 for such offences and he was sentenced to undergo life imprisonment. On 20-7-2006, the petitioner was deported along with other Pakistani prisoners from Sri Lanka under the agreement dated 1-12-2004 executed between the Government of Pakistan and Sri Lanka of transfer of offenders to undergo remaining portion of their sentences.
He filed a Petition claiming that his further detention in Pakistan was violative of the fundamental right guaranteed to him under the Constitution and the petitioner was ordered to be released by the Division Bench of this Court, then headed by one of us, namely, Sarmad Jalal Osmany, J. At the relevant time on the ground that a sentence of 10 years in the prison had already been served though only 2028.4 grams of heroin was involved and as such the sentence already undergone was considered to be sufficient under section 9(c) of the Control of Narcotic Substances Act.
6. Learned counsel for the petitioner has also relied upon the case of Muhammad Hanif v. The State PLD 2002 Lah. 200 wherein it was held:-- "Sentence of `life imprisonment or death in cases involving narcotic with quantity of less than 20 kg would be too harsh and may not be in consonance with provisions of section 9 subsection (c) of the Control of Narcotic Substances Act, 1997 and as such the High Court reduced the life imprisonment to sentence of ten years and reduction of fine from Rs, One million to Rs, half a million was also ordered on the ground that the convict was a first offender."
7. He has relied upon the case of Arifullah v. The State (2005 PCr. LJ 1061) to emphasize that sentence was reduced from two and half to one year by High Court when the prosecution was not able to prove the exact quantity of contraband narcotic substance. He has relied upon the case of Liaquat Ali v. The State (1999 PCr.LJ 1852) wherein also the sentence was reduced in conviction under Control of Narcotic Substances Act, 1997.
8. The learned counsel for the petitioner referred to the case of Abdul Ghani and others v. The State and others (2001 PCr.LJ 2027). In this case it was held:-- "That sentence of imprisonment for life or death in cases involved with quantity of less than 10 kg would be too harsh and highly inappropriate and might not appear to be in consonance with the provisions of section 9(c) of Control of Narcotic Substances Act, 1997 and that mathematical calculation keeping the terms of imprisonment viz., quantity of narcotic might be warranted and such sentence of imprisonment for life awarded to each accused was reduced to ten years' RI with substantial reduction in fine."
9. Learned counsel for the petitioner finally referred to the order of a Division Bench of this Court- in C.Ps. Nos. D-1050, D-1051, D-1189, D-1191, D-1192 and D-1451 of 2009. In these matters, the petitioners were arrested for trafficking/transporting heroin weighing less than 1000 gram. The petitioners/offenders were sent to Pakistan under the provisions of Transfer of Offenders Ordinance, 2002 by Sri Lankan Authorities and since the sentence imposed on them was not compatible with the laws of Pakistan, therefore, it was held that since the sentence under section 9(b) of Control of Narcotic Substances Act, 1997 is seven years at the most and since all the petitioners had served out the said sentence they were ordered to be released forthwith.
10. Coming to the facts of this petition, it would be found from the Jail roll that the petitioner/detenu was arrested on 25-10-2004 and he was convicted for trafficking 2.7 kg. Heroin and sentenced to suffer life imprisonment. He was repatriated from Sri Lanka on 31-5-2009 and has since been detained in Central Prison, Karachi.
11. Under Article 45 of the Constitution of Islamic Republic of Pakistan 1973, he earned 120 days of remissions. Special remission awarded by Inspector General of Prisons Sindh.Under rule 216 of PPR on 12-8-2009 to the petitioner is stated to be sixty days. Further Special remission awarded to him by Superintendent Jail under Rule 216 of PPR on 26-11-2009 is specified as 30 days. Once again remission of 35 days and 15 days under Rule 204 PPR were granted to petitioner during the year 2009-2010. The grand total of remissions is shown to be 260 days i,e, eight months and twenty days and after award of above remissions, the position, which is reflected by the Jail Roll is that the petitioner has undergone a sentence of five years five months and seven days from the date of his arrest. He earned remissions of eight months twenty days and he served the sentence including the remissions for a period of six years one month twenty seven days up to 1-4-2010 and his unexpired portion of sentence is allegedly 18 years 10 months and 3 days per Jail Roll dated 1-4- 2010.
12. The learned Counsel for petitioner has referred to the case of Ghulam Murtaza and another v.
The State (PLD 2009 Lahore 362) wherein sentence of imprisonment for seven years was approved when 2 Kilograms and-not exceeding 3 Kgs. Of heroin was involved.
13. Be that as it may admittedly, the petitioner was convicted for trafficking 2700 grams of heroin i,e, more than 2 kg. He was arrested on 25-10-2004 and charged with possession thereof and convicted. Consequently he remained in Sri Lankan Jail and was repatriated to Pakistan on 31-5- 2009, if he had served the above term of sentence in Pakistan he would have earned till date at least normal remissions commensurate more or less with the remissions earned by him in Pakistan. He would therefore, be entitled to considerable allowance of reduction in sentence.
14. Since the petitioner could be deemed to have served a sentence of more than seven years by now in prison including remissions granted and probable we reduce the sentence of the petitioner to the sentence already undergone by him and order that he shall be released forthwith if not required in any other case.