P L D 2021 Balochistan 55
Before Naeem Akhtar Afghan and Zaheer -ud-Din Kakar, JJ
GHULAM RASOOL ---Applicant
Versus
The STATE ---Respondent
Criminal Miscellaneous Jail Application No. 240 of 2020, decided on 11th January, 2021.
Transfer of Offenders Ordinance (XXXVII of 2002) ---
----Ss. 2(c), 9 (4) & 12 ---Agreement between Islamic Republic of Iran and Islamic Republic
of Pakistan on the transfer of Prisoners [enforced on 11 -05-2014] ---Invoking jurisdiction of
Court ---Waiving of the fine ---Scope ---Appl icant/offender was convicted and sentenced for
two years imprisonment plus 11,636,706,670 Riyals fine by the Court of criminal jurisdiction
Islamic Republic of Iran for recovery of 12512 Cans of Alcoholic drink in Iran ---
Applicant/offender was transferred to Pakistan under "the Agreement between Government
of the Islamic Republic of Iran and the Government of Islamic Republic of Pakistan on the
transfer of Prisoners ---Applicant/offender filed application for waiving of the fine on the
basis of being pauper ---Validity ---Offence related to intoxicating liquor, in Pakistan, was
punishable under Art.4 of the Prohibition (Enforcement of Hadd) Order, 1979 ---Keeping in
view Art.9(4) of the Prohibition (Enforcement of Hadd) Order, 1979 and Arts. 8 & 9 of the
Agreeme nt, in exercise of inherent jurisdiction under S.561 -A, Cr.P.C., the sentence of the
pauper applicant was adopted and was made compatible by High Court under S.4 of the
Prohibition (Enforcement of Hadd) Order, 1979 ---Application of pauper was disposed of w ith
the direction for the compliance/implementing the sentence accordingly.
Amici Curiae Talat Waheed Khan, Muhammad Aamir Nawaz Rana and Sultan Khalid
for Applicant.
Zahoor Ahmed Baloch, Assistant Advocate General, Abdul Karim Malghani, State
Counsel a long with Naveed Ilyas, Superintendent Central Prison Mach for Respondent/State.
Date of hearing: 22nd December, 2020.
ORDER
NAEEM AKHTAR AFGHAN, J. ---The pauper applicant was convicted and
sentenced on 31.01.2015 as follows by the Court of criminal juri sdiction Islamic Republic of
Iran for recovery of 12512 Cans of Alcoholic drink in Islamic Republic of Iran:
"TWO YEARS IMPRISONMENT PLUS 11,636,706,670 RIYALS FINE, IN
DEFAULT OF PAYMENT OF FINE TO FURTHER SUFFER IMPRISONMENT
FOR 5400 DAYS ".
2. The paup er applicant was taken into custody in Islamic Republic of Iran on
22.11.2014. The pauper applicant has been transferred from Islamic Republic of Iran to
Islamic Republic of Pakistan as a convict in pursuance of Agreement dated 11.05.2014,
(hereinafter "th e Agreement") between the two States.
3. The pauper applicant has filed the instant application through Superintendent Central
Prison Mach for waiving of the fine.
4. On 15.12.2020 Messrs Talat Waheed Khan, Muhammad Aamir Nawaz Rana and
Sultan Khalid Advocates were appointed as amici curiae for assisting the Court.
5. Learned amici curiae, learned A.A.G. and learned State counsel drew attention of this
Court to section 9(3)(4) of Transfer of Offenders Ordinance, 2002 (hereinafter "th e
Ordinance") which reads as follows:
"9. … … … …
(1) … … … …
(2) … … … …
(3) Notwithstanding anything contained in subsection (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 subsection (1).
(4) Where the legal nature and duration of the sentence of imprisonment imposed on
any offender transferred under sub -section (1), 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 practica ble, to the
sentence imposed on such offender in the specified country from which such offender
was transferred to Pakistan".
6. While relying upon Articles 8 and 9 of the Agreement, learned amicus curiae, learned
A.A.G. and learned State counsel stated th at the sentence awarded to the pauper applicant by
the court of criminal jurisdiction Islamic Republic of Iran has to be adopted and is to be
made compatible with the relevant laws of Islamic Republic of Pakistan and accordingly the
sentence of the pauper applicant be declared/held under Art.4 of the Prohibition
(Enforcement of Hadd) Order 1979.
7. Article 8 and Article 9 of the Agreement read as follows:
"Article 8 - Procedures for enforcement of sentence.
1. The authority of the Receiving state shall enf orce or continue the enforcement of
the sentence immediately through an order in accordance with the provisions of law
of its country and this Agreement. It shall be bound by the duration of the remaining
sentence or measures of deprivation of liberty and shall not convert the sentence or
deprivation of liberty into a pecuniary sanction.
2. If the case of continued enforcement, the receiving state shall be bound by the legal
nature and duration of the sentence as determined by the transferring state.
3. If the sentence by its nature or duration is incompatible with the laws of the
receiving state, or laws so require, that party may, through a court order, adopt such
sentence to make it compatible with those laws. It shall not aggravate by its nature or
duration the sentence imposed in the Transferring State nor exceed the maximum
prescribed by the law of the Receiving State.
Article 9 - Remission and commutation
Each Party may grant remission and commutation of the sentence in accordance with
its law".
8. In Islamic Republic of Pakistan, offence related to intoxicating liquor is punishable
under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and it reads as
follows:
"Owning or possessing intoxicant. Whoever owns, possesses or keeps in his c ustody
any intoxicant shall be punished with imprisonment of either description for a term,
which may extend to two years, or with whipping not exceeding thirty stripes, and
shall also be liable to fine".
9. Keeping in view Article 9(4) of the Order and Ar ticles 8 and 9 of the Agreement, in
exercise of inherent jurisdiction under section 561 -A, Cr.P.C., the sentence of the pauper
applicant Ghulam Rasool son of Ali is adopted and is made compatible by this Court under
Article 4 of the Prohibition (Enforcemen t of Hadd) Order, 1979 as follows:
"Two years imprisonment with fine of Rs.03 Lakhs and in default of payment of fine
to further suffer six months S.I. with benefit of section 382 -B, Cr.P.C. for which the
period of detention of the pauper applicant in Isl amic Republic of Iran shall also be
considered".
10. The pauper applicant is presently confined in Central Prison Mach. Copy of the order
passed today be sent to Superintendent Central Prison Mach for compliance/implementing
the sentence of the pauper appl icant as mentioned in para -9 above.
The Criminal Misc. Jail application is disposed of accordingly.
JK/50/Bal. Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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