IN THE HIGH COURT OF SINDH AT KARACHI.
C.P. Nos.D-2982 & D-2983 of 2012
Sikandar Ali
v/s
Province of Sindh & others
Before:
MR. JUSTICE AQEEL AHMED ABBASI J.
MR. JUSTICE FAROOQ ALI CHANNA J.
Date of Hearing: 09-10-2012.
Petitioner: Through Mr. Zulfiqar Ali Jalbani, Advocate.
Respondents: Through Mr. Saifullah, A.A.G.
Mr. Pir Riaz Mohammad, Standing Counsel.
FAROOQ ALI CHANNA J.:- By this common order we will dispose off the above two petitions, involving similar facts, circumstances and questions of law, filed by the petitioners seeking their release in terms of Section 9 sub-section 4 of Transfer of Offenders Ordinance, 2002.
2. Briefly stated the facts of the case are that the petitioners were deported from Sri Lanka having been committed under drug related case and convicted by the Court in Sri Lanka their custody was transferred to Pakistan in terms of Section 9 subsection (1) of Transfer of Offenders Ordinance, 2002 and since then they are confined in Central Prison Karachi.
3. Learned counsel for the petitioners has sought for the release of both the petitioners under the rule of consistency. In support of his contention he has invited our attention towards the Order passed in C.Ps. No.D-1416-1419 & 2006 of 2006, and some other identical petitions, whereby the relief U/S 9 subsection (4) of Transfer of Offenders Ordinance, 2002 was extended to the petitioners. Learned counsel has further contended that the case against the petitioners is identical to that of case of the petitioners in C.P.No.D-1416-1419 & 2006 of 2006 and it’s connected petitions, as such, the petitioners are entitled to the same treatment under the rule of consistency.
4. The learned standing counsel, A.A.G and Addl. P.G. appearing for the State have not controverted the submissions made by counsel for the petitioners.
5. We have considered the arguments and perused the orders passed by this Court in various petitions involving the common question of acts and law and found the case of the petitioner identical to that of the case of petitioners who have been extended benefit 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 awarded by the foreign Court. It appears from the Jail Roll of the petitioner, that he was sentenced to imprisonment for life, without considering the quantity/weight of heroin allegedly recovered from him. Such sentence is not compatible to the sentence which could be awarded to the petitioner 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 be sentenced in terms of Section 9 of Narcotics Substance Act, 1997.
6. Keeping in view the above proposition of Law and nature of crime, case of both petitioners is examined individually, and compatibility of sentence as per Laws of Pakistan is adjudged as under:-
C.P. No.D-2982 OF 2012
(Sikandar Ali vs. Province of Sindh & others)
7. As per jail roll the petitioner Sikandar Ali was arrested on 01.09.2005 and the net weight of the heroin recovered from him was 217.3 grams, as such, the case against the petitioner Sikandar Ali falls U/S 9(b) of CNS Act, 1997, which provides imprisonment which may extend to seven years and shall also be liable to fine, whereas, from perusal of jail roll it appears that he has already undergone a period of seven years, besides the remissions admissible under the laws of Pakistan.
C.P. No.D-2983 OF 2012
(Muhammad Yasin vs. Province of Sindh & others)
8. As per the warrant of commitment provided by the jail authority, the petitioner Muhammad Yasin was arrested in the year 1996 and since then he is behind the bar, however, the weight of heroin recovered from the petitioner Muhammad Yasin has not been mentioned either in the warrant of commitment nor in the jail roll. However, if we may consider the case against the petitioner Muhammad Yasin which may fall U/S 9 (c) of the CNS Act, 1997, which provides for punishment of death or imprisonment of life or for a term which may extend to 14 years and shall also be liable to fine. However, from perusal of jail roll, it appears that he has already undergone a period of more than 16 years, besides remissions admissible under the laws of Pakistan.
9. As per jail rolls provided by the jail authorities the petitioners have already undergone the maximum sentence of imprisonment including the imprisonment in lieu of fine amount if not paid with benefit of remissions which they would have earned in both the countries, therefore, while maintaining the conviction, we sentence both the petitioners/accused for a period they have already undergone, including the period of imprisonment in lieu of fine amount.
J U D G E