By this single order we propose to dispose of Writ Petition Nos, 39/2012, 1008/2012, 41/2012, 1009/2012, 2953/2011, 3106/2011, 2985/2011 and 3102/2011 as common questions of law & facts are involved in all these petitions.
2. Brief facts necessary to dispose of all these petitions are that petitioners in all these writ petitions are involved and arrested under the charges that different kinds of narcotics were recovered from their possession and they were convicted by Court of competent jurisdiction in Thailand. Details of their involvement and conviction as submitted by Superintendent Central Jail, Rawalpindi are reproduced:-- Sr.No,Name & parentageOffenceQty. recovered Raw.Qty.
After washSentenceDate of arrest/ reckoning of sentenceSentence served in ThailandRemaining portion of sentence at the time of admission in Central Jail, Rwp on transfer from ThailandDate of release by prison authorities of Bangkok.
YMDYMD
1. Risalat Khan s/o Hukam KhanDrug 267 gram56 gram25Yrs 28.3.2000109 4.6.2016
2. Ghulam Farid s/o Nazir AhmedDrug 800 gram441 gram20 Yrs 7.6.200010625571914.8.2016
3. Habib Ullah s/o Muhammad HassanDrug 700 gram600 gram25 Yrs 23.10.20001027512730.12.16
4. Liaqat Ali s/o. Sadiq AtDrug 789 gram-do-31 Yrs 1 month & 10 days15.11.97 1379176625.12.28
5. Basharat Ali s/oDrug762.810 gram683.630 gram31 Yrs 1 month &17.7.20001011102020516.8.2031 Shaukat Ali 10 days
6. Imran 1 Drug295.200215.63210 Yrs28.6.200010120600011412.8.2011 Naseem s/o Inayat 13 month 20 days Ullah 2. Drug -- 3 Yrs 12.8.2011- 0111.8.2014
7. Ahmed Ratib s/o AhmedDrug545 gram307.3 gram31 Y 1 m & 10 days12.11.199416071214060322.12.25 Jawad
8. MasoodDrug 500 Life 1.3.2003894Not Not Arif Anjum s/o Syed gram mentioned in the listmentioned in the list Talib Provided byprovided Hussain the By the authorities oauthorities Thailandof Thailand Petitioners as a result of agreement between the Government of Islamic Republic of Pakistan and the Government of The Kingdom of Thailand were transferred to Pakistan to serve out their sentences.
Petitioners have moved the instant writ petitions by invoking Section 9(4) of the Transfer of Offenders Ordinance, 2002 with a prayer that as sentences passed against them are incompatible with the sentences provided of the offences in Pakistan and as they have already served out the sentence exceeding the sentence provided according to Pakistani Law, hence, they are entitled for their release from jail.
3. Learned counsel for the petitioners in all the writ petitions specifically argued that if the quantity of narcotic substance/drug is seen, in all the cases it is above 100 gram and less than 1000 grams, hence, according to Pakistani Law i,e, Control of Narcotic Substances Act, 1997 it falls within the ambit of Section 9(b) which is maximum punishable up to 7 years R.I; that all the convicts/petitioners, if seen, have served out the sentence more than 7 years, hence, they are entitled to their release. Learned counsel for the petitioners further referred Article 9 of the inter se agreement between the Governments i,e, the Government of the Islamic Republic of Pakistan and the Government of Kingdom of Thailand that receiving State may regulate the terms of imprisonment or confinement according to the law of the Country, hence, prayed that these writ petitions be allowed and petitioners be released from jail. Reliance in this respect is placed on "Imran Ali versus Province of Sindh through Secretary, Home Department, Sindh. Secretariat, Karachi and 3 others" (2007 P.Cr.LJ 1364) and 'Muhammad Iqbal versus Province of Sindh through Secretary, Home Department and 2 others" (PLD 2011 Karachi 32).
4. On the other hand, learned Deputy Attorney General and Learned AAG keeping in view the facts and circumstances of the case specially referring the above mentioned two judgments in the light of Section 9(4) of the Transfer of Offenders Ordinance, (XXXVII of 2002) conceded the Proposition.
5. We have heard both sides and perused the record.
6. Admittedly, all the petitioners were involved in drug trafficking and from their possession the narcotic substance/drug mentioned in the above mentioned report was recovered in different quantities. In cases against all the petitioners if quantity of the narcotic substance/drug is kept in view, it falls within the ambit of Section 9(b) of Control of Narcotic Substances Act, 1997, which is maximum punishable up to 7 years R.I.
All the petitioners were transferred after their conviction by the Court of competent jurisdiction in Thailand under the agreement signed between the Government of Islamic Republic of Pakistan and the Government of Kingdom of Thailand whereby under Article 9 of the said agreement it is provided:-- Article 9 Procedure for Enforcement of Sentence
1. The continued enforcement of the sentence after transfer shall be governed by the laws and procedures of the Receiving State, including those governing conditions for service of imprisonment, confinement or other deprivation of liberty, and those providing for the reduction of the term of imprisonment, confinement or other deprivation of liberty by parole, conditional release, remission or otherwise. "
Under Section 9 of the Transfer of Offenders Ordinance (XXXVII of 2002) it is provided:--
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 sub-section (1) shall be governed by the laws of Pakistan.
(3) Notwithstanding anything contained in sub-section (2) the Competent Authority shall, unless otherwise specified in the agreement, be bound by the legal nature and duration of the sentence of imprisonment imposed on any offender transferred to Pakistan under sub-section (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 however that the sentence as adopted by such Court in Pakistan corresponds, as far as practicable, to the sentence imposed on Court such offender in the specified country from which such offender was transferred to Pakistan."
If sub-section (4) of Section 9, ibid, is seen, the competent Court of jurisdiction in Pakistan has the power to adopt the sentence and to make it compatible with the laws of Pakistan, as far as practicable to the sentences imposed on the offender in specified country wherefrom such offender was transferred to Pakistan. Admittedly, all the petitioners, if the quantity of narcotic substance recovered is seen, committed an doffence under Section 9(b) of Control of Narcotic Substances Act, 1997, which is maximum punishable up to 7 years R.I. All the petitioners have served out the sentence more than the sentence provided in Pakistan for the alleged offence for which they have been convicted abroad. In view of the circumstances, while exercising the powers under Section 9(4) of the Ordinance, ibid, we feel it appropriate to allow all these writ petitions.
Resultantly, it is directed that petitioners be released from the jail forthwith, if not required in any other case.