' ABDUL RASOOL MEMON, J.---By this order we intend to dispose of instant constitutional petition which has been filed by the petitioner M. Afzal Nadeem seeking directions to the respondents Nos.1 and 3 for his release on his having served more than five years imprisonment, inter alia, taking into account the remission granted to him from time to time.
2. Briefly facts of the case are that the petitioner was apprehended by the authorities at Bandaranaike International Airport Sri Lanka on 20-6-2004 by the officers of the customs department while trafficking 884 grams of heroin. He was thereafter prosecuted and finally awarded life imprisonment by the Sri Lankan Court on 5-4-2007. The petitioner was deported to Pakistan under the Agreement dated 1-11-2012 executed between the government of Pakistan and Sri Lanka on transfer of offenders to undergo the remaining portion of their sentences and was admitted in Central Prison Karachi on 28-7-2012.
3. Mr. Jawaid Iqbal Barqi appearing on behalf of the petitioner has contended that under section 13 of Transfer of Offenders Ordinance, 2002 the sentences of the imprisonment imposed on an offender who is citizen of Pakistan in any specific country should not be subjected to any appeal or revision and under subsection (4) of section 9 of Transfer of Offenders Ordinance, 2002 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 of Pakistan to adopt such sentence as is compatible with Pakistani Law. Per learned counsel the net quantity of Heroin recovered from the possession of the petitioner was only 884 grams and the maximum sentence in Pakistan would be seven years' R.I. Per section 9(b) of the Control of Narcotic Substance Ordinance. He prays that the sentence should be adopted in terms of section 9(4) of the Transfer of Offenders Ordinance, 2002. In support of his contentions he has placed reliance on the following case law:--
(1) IMRAN ALI v. PROVINCE OF SINDH THROUGH SECRETARY (2007 PCr.LJ 1364)
(2) MUHAMAMD IQBAL v. PROVINCE OF SINDH (PLD 2011 Karachi 32)
(3) GHULAM MURTAZA and another v. THE STATE (PLD 2009 Lahore 362)
4. Mr. Ashraf Mughal D.A.G. Supported the contentions of Mr. Jawaid Barqi. He has further submitted that if the benefit of section 382-B is extended to the petitioner from the date of his arrest then he has served more than the prescribed sentence under section 9(h) of the Control of Narcotic Substances Act, 1997.
5. Mr. Sher Mohammad K. Shaikh A.A.-G. Sindh has also supported the contentions of the learned counsel for the applicant.
6. We have given careful consideration to the arguments advanced at bar by the learned counsel, learned DAG and learned APG Sindh and our conclusion is as follows:
7. In terms of section 9(4) of the Ordinance, 2002 the sentence given to the citizen of Pakistan in a foreign jurisdiction should be compatible to the law of Pakistan and consequently a Court of competent jurisdiction in Pakistan could adopt the later sentence. However, the same should correspond as far as practicable to the sentence imposed by the foreign court. Upon the perusal of the comments filed by the respondent No.2 it appears that the gross quantity of the heroin recovered from the petitioner is 884 grams and in accordance with Section 9(b) of the Control of Narcotic Substances Act, 1997 where the quantity is up to 1000 grams then the maximum sentence which can be imposed is seven years' R.I. Along with fine.
8. In a case of Ghulam Murtaza and others v. The State (PLD 2009 Lahore 362) a full Bench of Lahore High Court keeping in view the accumulated judicial wisdom, experience and balancing the same in the interest of justice in overall social and economical context approved and prescribed sentences for different quantities of various contrabands of narcotic substances recovered in connection with the Control of Narcotic Substances Act, 1997 and therein a person having in possession of heroin exceeding 600 grams up to 1000 grams of heroin has been prescribed and approved sentence of R.I. For one year and 10 months and fine of Rs.15000 in default S.I. For five months.
9. In the above circumstances, we are of the view that as the applicant is in custody since 20-4- 2004 and on giving him benefit of section 382-B, Cr.P.C. To which he is entitled in view of the case of Imran Ali v. Muhammad Iqbal supra, we consider that the sentence served by the petitioner with effect from the date of his arrest viz. 20-4-2004 which comes more than 9 years to be sufficient in the facts and circumstances of the case. We therefore while allowing the petition hereby order that the petitioner may be released forthwith if not required in any other case. #EndJudgment