IN THE HIGH COURT OF SINDH AT KARACHI.

C.P. No.D-2920,2921, 2922, 2924, 2925, 2926, 2928,3087,

3088,3089, 3090,3138,3139 of 2012.

Mrs. Fozia Sultana

v/s

Province of Sindh & others

Before:

MR. JUSTICE AQEEL AHMED ABBASI J.

MR. JUSTICE FAROOQ ALI CHANNA J.

Date of Hearing: 19.09.2012

Petitioners: Through Mr. Javed Iqbal Burqi and Mr. Younus Shad, Advocates in C.P. Nos.D-2920, 2921, 2922,2924.2925,2926, 2928, 3087, 3088, 3089 & 3090 of 2012

Petitioners: Through Mr. Imran Rana, Advocate in C.P.Nos.D-3138m 3139 of 2012.

Respondents: Through Mr. Saifullah, A.A.G.

Through Mr. Hussain Buksh Baloch, Spl. Prosecutor ANF.

Mr. Dilawar Hussain, Standing Counsel.

Ms. Akhtar Rehana, Addl. P.G.

Imdad Mirza, Dep. Superintendent Central Prison, Karachi & Mrs. Abida Samir, D.S.S.P. Women, Karachi alongwith custody.

JUDGMENT

FAROOQ ALI CHANNA J.:- By this single order we will dispose of 13 constitutional petitions, involving common questions of fact and law filed by the petitioners seeking their release in terms of Section 9 sub-section 4 of Transfer of Offenders Ordinance, 2002 which read as under:-

Section 9(4):- where the legal nature and duration of the sentence of imprisonment imposed on any offender transferred under sub-section (i), 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.

2. Briefly the facts as narrated in the petitions are that the petitioners proceeded to Sri Lanka through traveling agents for job purpose. They were arrested by Sri Lankan police with the charges of possessing heroin which was recovered from their possession and the same was allegedly smuggled to Sri Lanka in contravention of the laws of Sri Lanka. After trial, they were convicted by competent Court, awarding them the sentence for imprisonment for life. After fulfillment of conditions of Section 6 of Transfer of Offenders Ordinance, 2002, the petitioners were deported from Sri Lanka to Pakistan in terms of Section 9 subsection (i) of Transfer of Offenders Ordinance, 2002 and since then they are confined in women and central prisons of Karachi.

3. The learned counsel appearing for petitioners have argued that all the petitioners are Pakistani national who became victims of circumstances created by the traveling agents through whom they proceeded to Sri Lanka. However, as per Sri Lankan Police certain quantity of heroin was recovered from their possession, therefore, they were arrested and after trial they have been convicted. It is further contended that after fulfillment of conditions of Section 6 of Transfer of Offender Ordinance, 2002, the petitioners were repatriated to Pakistan and as per Jail Rolls submitted by the Jail authorities the petitioners have already served out the sentence more than the period of imprisonment as provided under the prevailing Narcotics Laws in Pakistan. The learned counsel for the petitioners have further contended that as per Sri Lankan Laws the sentences awarded to all the petitioners irrespective of the quantity of heroin allegedly recovered, is life imprisonment which sentence is not compatible with the sentences that could be awarded under the Pakistani Law i.e. Section 9 of the Control of Narcotics Substances Act 1997. Per learned counsel, besides the sentences served out by the petitioners, they are also entitled for the remissions under the Pakistan Prisons Code (Jail Manual) including the benefit of Section 382-B Cr.P.C, which benefit is not provided in Sri Lankan Laws.

4. According to the learned counsel for the petitioners, 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 treaty, it shall be lawful for the Court of transferee, country of a competent jurisdiction to adopt such sentence as is compatible with Pakistan Laws. The learned counsel have further contended that on calculation of detention period, remissions under the law and benefit under Section 382-B Cr.P.C, the petitioners have served out more than the maximum sentence which could be imposed upon them in Pakistan, had they been convicted under Pakistani Law, hence, all the petitioners would have been entitled to be released from prison. Per learned counsel, their further remaining in prison would amount to illegal confinement/detention. In support of their contentions the learned counsel for the petitioners have relied upon the reported cases of Imran Ali v. Province of Sindh (2007 P.Cr.L.J 1364), Akif Shoaib & others v. Province of Sindh & others (S.B.L.R 2011 Sindh 209), Mohammad Iqbal v. Province of Sindh & 2 others (PLD 2011 Karachi 32), unreported Order dated 08.12.2006 passed in C.Ps No.1416-1419 and 2006 of 2006 (Shakeel Ahmed Siddiqui v. Province of Sindh and others) and unreported order dated 22.07.2009 passed in C.P. No.1050 of 2009 (Mohammad Sarwer v. Province of Sindh).

5. The learned standing counsel, A.A.G and Addl. P.G. appearing on behalf of State were confronted with the facts and proposition of law stated hereinabove, which they could not controvert, and expressed their no objection for the grant of the petitions in hand.

6. Since the petitioners were involved in Narcotic offences and allegedly were found possessing/transporting the heroin, which offence in Pakistan is punishable under the Control of Narcotic Substance Act 1997, therefore, Spl. Prosecutor ANF was also put on notice, who also appeared in Court and did not controvert the above facts and proposition of law. However, learned Special Prosecutor ANF added that under the provisions of CNS Act, 1997, the offenders besides, the sentence of imprisonment, are also liable to pay fine, therefore, per learned counsel while applying the provisions of law the same shall be applied in toto and not in piece-meals. Learned counsel for petitioners could not controvert such contention, which otherwise reflects correct legal position.

7. We have heard the learned counsel for the petitioners and perused the record so also the relevant provisions of transfer of offender Ordinance, 2002 and the case law relied upon by the learned counsel for the petitioners on the subject.

8. In terms of subsection (4) of Section 9 of Transfer of Offenders Ordinance, 2002, the sentence awarded to a citizen of Pakistan in a foreign country should be compatible to the law in Pakistan and consequently a Court of competent jurisdiction in Pakistan could adopt the sentence, however, the same should correspond as far as practicable to the sentence imposed by the foreign Court. It appears from the Jail Rolls of the petitioners, that all of them were sentenced to imprisonment for life, without considering the quantity/weight of heroin allegedly recovered from each accused/petitioner. Such sentence is not compatible to the sentence which could be awarded to the petitioners under Pakistani Law. Consequently, we are of the opinion that insofar as this country is concerned and in view of the double treaty agreement between two countries, the petitioners would, at the maximum and in terms of Section 9(a) 9(b) and 9(c) of Narcotics Substance Act, 1997 , be sentenced to two years or fine or with both, if the quantity of the narcotics is one hundred grams or less, seven years with fine if the quantity exceeds one hundred grams but does not exceed one kilogram, and death or imprisonment for life, or imprisonment for a term which may extend to fourteen years with fine up to one million rupees if the quantity of narcotics exceeds one kilogram, however if the quantity exceeds ten kilograms the punishment shall not be less then imprisonment for life.

9. Keeping in view the above proposition of Law and nature of crime, case of each petitioner is examined by us individually and compatibility of sentence per Laws of Pakistan is adjudged as follows:-

Sr.No.	Number of Petition.	Name of Petitioner	Offence and quantity of heroin record	Date/year of Arrest	Total time in Prison
1	C.P.No.D-2920/2012	Mst. Fozia Sultana W/o Mohammad Asif Chaudhry.	77.34 gms.	2007	About five years
2	C.P.No.D-2922/2012	Sameen Jan S/o Amir Jan.	61.6 k.gs gms.	13-11-2004	About eight years
3	C.P.No.D-3088/12	Muhammad Younus S/o Haji Rasheed	17.4 gms.	05.09.1996	16 years

The quantity of heroin shown to have been recovered from the above named petitioners being less than 100 gms, falls within the case/offence punishable U/S 9-(a) of CNS Act, 1997, which provides for imprisonment which may extend to two years or with fine or with both.

Sr.No.	Number of Petition.	Name of Petitioner	Offence and quantity of heroin record	Date/year of Arrest	Total time in Prison
4	C.P.No.D-2924/2012	Tahir Khan S/o Taj Mohammad	584 gms.	25.11.2004	about eight years
5	C.P.No.D-2925/2012	Niaz Ali S/o Said Ahmed	200.6 gms.	16.10.2004	about eight years
6	C.P.No.D-2926/2012	Syed Rizwan Ahmed S/o Afzal Ahmed	178.5 gms.	2004	about eight years
7	C.P.No.D-2928/2012	Mohammad Sohail S/o Abdul Hafeez	113 gms.	07.07.2000	about twelve years
8	C.P.No.D-3087/2012	Abdul Zaheer S/o Mohammad Munir	311 gms.	14.10.2004	about eight years
9	C.P.No.D-3089/2012	Rana M. Ilyas S/o Rana Mohammad Abbas.	268.9 gms.	09.11.2004	about eight years
10	C.P.No.D-3090/2012	Shah Hussain S/o Ameen Asghar	280.6 gms.	24.09.2004	about eight years
11	C.P.No.D-3138/2012	Pervez Masih S/o Karim Masih	325 gms.	10.10.2004	about eight years
12	C.P.No.D-3139/2012	Abid Yaqoob Masih S/o Yaqoob Masih	316 gms.	2004	about eight years

The quantity of heroin shown to have been recovered from the above named petitioners being more than 100 grams and less than one k.g falls within the case/offence punishable U/S 9-(b) of CNS Act, 1997, which provides for imprisonment which may extend to seven years and shall also be liable to fine.

Sr.No.

Number of Petition.

Name of Petitioner

Offence and quantity of heroin record

Date/year of Arrest

Total time in

Prison

C.P.No.D-2921/2012

Mst. Samina Raheem D/o Abdul Raheem Chaudhry.

2 kilo 400 gms. Net weight 1700.5 gms.

2000

About twelve years

The quantity of heroin shown to have been recovered from the above named petitioners being more than one K.g falls within the case/offence punishable U/S 9-(c) of CNS Act, 1997, which provides punishment of death or imprisonment for life or imprisonment for a term which may extend to fourteen years and shall also be liable to fine which may be up to one Million.

10. The bare perusal of jail rolls of all the petitioners submitted by the jail authorities reveals that all the petitioners have already undergone the maximum sentence of imprisonment including the imprisonment in lieu of fine amount if not paid, giving benefit of remissions which they would have earned in both the countries including the benefits under Section 382-B Cr.P.C, their sentences are therefore accordingly reduced to one already undergone.

11. In view of hereinabove facts and circumstances of these petitions, instant petitions are allowed in the above terms, consequently, all the petitioners are directed to be released forthwith, if their custody is not required in any other case.

Dated: 25.09.2012. J U D G E

J U D G E