IN THE HIGH COURT OF SINDH AT KARACHI.
C.P. No.D-3399 of 2012
Roshan alias Aurangzeb
v/s
Province of Sindh & others
Before:
MR. JUSTICE AQEEL AHMED ABBASI J.
MR. JUSTICE FAROOQ ALI CHANNA J.
Date of Hearing: 02.10.2012.
Petitioner: Through Mr. Mohammad Nawaz Chaudhry, Advocate.
Respondents: Through Mr. Saifullah, A.A.G.
Mr. Muhammad Qasim, Standing Counsel.
FAROOQ ALI CHANNA J.:- Through the instant petition, the petitioner seeks his 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 petitioner was deported from Sri Lanka having been committed under drug related case and convicted by the Court in Sri Lanka on 19.11.2007 and thereafter on 04.08.2012 his custody was transferred to Pakistan in terms of Section 9 subsection (1) of Transfer of Offenders Ordinance, 2002 and since then he is confined in Central Prison Karachi,
3. Learned counsel for the petitioner has focused our attention towards Order dated 25.09.2012 passed in C.P. No.2920/2012 and its connected 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 petitioner is identical to that of case of the petitioners in C.P.No.D-2920/12 and it’s connected petitions, as such, the petitioner also deserves same concession under the rule of consistency.
4. The learned standing counsel, A.A.G and Addl. P.G. appearing for the State have conceded the submissions made by counsel for the petitioner.
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 imposed 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 petitioner would, at the maximum in terms of Section 9(a) of Narcotics Substance Act, 1997 , be sentenced to two years or fine or with both. The jail roll submitted by the jail authorities reflects the net weight of the heroin recovered from the petitioner as 26.01 grams which 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 extent to two years or with fine or with both. The jail roll further reflects that the petitioner was arrested in Sri Lanka on 29.12.2005 and after trial was convicted on 19.11.2007, as such, he is in jail since about 7 years and thereby served out more than the maximum sentence of imprisonment including the imprisonment in lieu of fine amount if not paid, besides the remissions admissible under the law and benefits U/S 382-b Cr.P.C.
J U D G E