P L D 2021 Balochistan 72
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
JADOON NASIM AKHTAR and others---Applicants
Versus The STATE ---Respondent
Criminal Miscellaneous Jail Applications Nos.394 to 403 of 2020, decided on 15th March,
2021.
Transfer of Offenders Ordinance (XXXVII of 2002)---
----Ss. 2(c) & 9---Offender convicted and sentenced in a foreign country transferred to
Pakistan ---Sentence, modification of--- Scope ---Accused persons convicted by competent
court of law of foreign country/ sentencing State, had been transferred to
Pakistan/administrative State/Receiving State to serve their remaining sentences in pursuance
of agreement dated 11.05.2014 on transfer of sentenced persons executed between the two countries ---Administrat ive State/Receiving State upon the transfer of sentenced persons
would impose a new sentence within the terms of its national laws ---Such a sentence may be
less severe than that imposed initially by the sentencing State, but it may not be more severe and t he administrative State may, however, adopt a sentence for particular offence by
reducing it to the national statuary maximum for that offence.
Muhammad Asif Reki, Syed Jamil Ahmed Agha, Najeebullah Kakar, Imran Khan,
Muhammad Arif Achakzai and Liaqua t Ali for Applicants.
Habibullah Gul, Additional Prosecutor General assisted by Zahoor Ahmed Baloch,
Assistant Advocate General for the State.
Date of hearing: 25th February, 2021.
ORDER
MUHAMMAD HASHIM KHAN KAKAR, J. ---Applicants were convicted and
sentenced by the Court of criminal jurisdiction Islamic Republic of Iran in the following terms:
Jadoon Nasim Akhtar son of Andriyas.
"26 years and five months imprisonment + 1,290,000,000 Rials fine, in default of payment of fine to further suffer imprisonment for 1080 days.
Abdul Sattar son of Zakriya.
"5 years imprisonment + 111,406,680,000 Rials fine, in default of payment of fine to
further suffer imprisonment for 5400 days".
Hussain Davoodzada son of Kazim.
"20 years imprisonment + 800,000,000 Rials fine, in default of payment of fine to
further suffer imprisonment for 1500 days".
Ali Dari Zada son of Shahdullah.
"5 years imprisonment + 58 lashes (for illegal residence 3 years of imprisonment, hardest penalty to be executed)".
Abdul Rashid son of Suleman Ayub.
"5 years imprisonment + 804,384,000,000 Rials fine, in default of payment of fine to further suffer imprisonment for 360 days".
Khaliq Dad son of Amanullah.
"30 years imprisonment + 1,001,000,000 Rials fine, in default of payment of fine to further suffer imprisonment for 1080 days".
Imran Imanuel son of Hanif Gul.
"26 years and 03 months imprisonment + 1,270,000,000 Rials fine, in default of payment of fine to further suffer imprisonment for 1080 days
Syed Saeed Ahmed son of Syed Ghulam Ali Shah.
"5 years imprisonment + 111,406,680,000 Rials fine, in default of payment of fine to further suffer imprisonment for 5400 days".
Wazeer Ahmed son of Wali Muhammad
"18 years imprisonment + 700,000,000 Rials fine, in default of payment of fine to further suffer imprisonment for 3283 days".
Rashid Bhatti son of Yaqoob.
"5 years imprisonment + 804,384,000,000 Rials fine, in default of payment of fine to further suffer imprisonment for 360 days".
Since common questions of law and facts are involved in all the above mentioned
applications, as such, are being disposed of by means of this common order.
2. Briefly stated facts of the cases, mentioned above are that the applicants, named
above, were convicted and se ntenced in the Islamic Republic of Iran ("Transferring State") in
the above terms. The applicants have been transferred to our country i.e. the Islamic Republic of Pakistan ("Receiving State/Administrating State") to serve their remaining sentences in purs uance of agreement dated 11.05.2014 ("the Agreement") on Transfer of
Sentenced Persons executed between the two countries. Criminal Mise: Jail Applications have been filed through Superintendent Central Jail Mach, for waiving of fine amounts and compatibil ity of sentences awarded to them.
3. It is a matter of common knowledge that due to globalization, migration, and
international travelling, the people of poor countries used to migrate to foreign countries in
search of lucrative jobs, better choice of livi ng, education or on account of worse law and
order situation and sometime are deprived of their liberty as the result of a criminal offence. Keeping in view the large number of such sentenced persons in foreign countries and their miseries, the United Nations in order to develop mutual cooperation in the field of criminal justice and for the purpose of resettlement of sentenced persons in its seventh congress, 1985, adopted the Model Agreement on the Transfer of Foreign Prisoners.
4. Being a responsible mem ber of the international community, the President of Pakistan
promulgated the Transfer of Offenders Ordinance, 2002 (XXXVII of 2002). Section 9 subsections (3) and (4) read as under: -
"(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 s entence of imprisonment imposed
on any offender transferred under subsection (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 Pakis tan 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.
5. In this backdrop, besides promulgation of the aforesaid Ordinance, to strengthening
cooperation and assistance in the administration of criminal justice, an agreement was also executed between the Islamic Republic of Iran and Islamic Republic of Pakistan on 11.05.2014. The relevant provisions of said agreement regarding to the fact in issue are reproducing herein bellow:
"3. If the sentence by its nature or duration is incompatible with the laws of the receiving state, or laws so requires, 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."
6. Likewise, it would also be relevant to reproduce Article -9 of the agreement which
deals with the question of remission and commutation of sentences and it reads as under:
"Each Party may grant remission and commutation of the sentence in accordance with
its law."
7. It is pertinent to mention here that there is no single international instrument that
covers the transfer of sentenced persons throughout the world except the model agreement on
the transfer of foreign prisoners and recommendations on the treatment of forei gn prisoners,
adopted/recommended by the United Nations Office of Drugs and Crimes (UNODC) as well
as the agreement dated 11.05.2014 executed between the Government of Iran and Pakistan. It
is by now settled that as a general principle the law governing the enforcement of the sentence is the law of the administrative State. This principle is contained in paragraph 21 of the Model Agreement and in the most other legal instruments governing the transfer of sentenced persons. It is obvious to us from perusal of the aforementioned provisions of law that there are different ways in which States can recognize the sentences that may be imposed on persons who are to be transferred. The two modes of recognition that may be available: continued enforcement or conversi on. Continued enforcement refers to a process
whereby, through a Court or administrative order sentence imposed by the sentencing State is enforced by the administrative State. The sentence is not normally altered by the administrative State. If, however, the sentence is by its nature or duration incompatible with the law of the administrative State, or if its law so requires, the administrative State may adopt the sentence to a punishment prescribed by its own law for a similar offence. The adopted sentenc e must, as far as possible, correspond with the initial sentence. It must not
aggravate, by its nature or duration, the sanction imposed in the sentencing State, nor exceed the maximum sentence prescribed by the law of the administrative State. Conversion of the sentence refers to a process whereby the administrative State, through a judicial or administrative procedure, imposes a new sentence based on the factual findings of the Court in the sentencing State. The administrative State is bound by these fact s but imposes a new
sentence within the terms of its national law. Such a sentence may be less severe than that imposed initially by the sentencing State, but it may not be more severe and the administrative State may, however, adopt a sentence for a parti cular offence by reducing it to
the national statuary maximum for that offence.
8. It is also worth mentioning that it is general principle that the law governing the
enforcement of the sentence is the law of the administrative State. The administrative St ate
alone will be competent to take all appropriate decisions relating to enforcement. This includes both decisions that are internal to the prison system and decisions that relate to the early or conditional release of the sentenced person. Similarly, the enforcement of a sentence
relates also to release from it. As a general rule, release is also governed by the law of the
administrative State. The Model Agreement contains a provision in this regard in paragraph
18 which stipulates that the period of deprivation of liberty already served by the sentenced
person in either State should be fully deducted from the final sentence, likewise sentenced
persons who have been transferred are protected against further prosecution. The model
agreement, in paragraphs 3 and 7 make it clear that the administering State is prohibited from
trying such persons for the same act for which they were convicted and sentenced in the
sentencing State.
9. Considering the cases of applicants one by one in the light of above discussions, it is
ordered:
i. As per impugned judgment, the applicant Jadoon Naseem Akhtar has been convicted and sentenced to suffer 26 years and five months imprisonment with fine of Rial 1,290,000,000/ -. Since 885 grams of charas has been recovered from his
possession and his case falls within the ambit of section 9(b) of the Control of Narcotic Substances Act, 1997, providing imprisonment which may extend to seven years and fine. If the psychotropic substance or control substance exceeds 100 grams
but not exce ed 1 kilogram, as such, while modifying the quantum of sentence
awarded to the applicant, the same is reduced from 26 years and 5 months to that of
already undergone, as he is in custody since 29.09.2013, whereas his fine amount is also reduced from 1,290,000,000/ - Rial to Rs.5,000/ - and in case of default to further
undergo 15 days S.I.
ii. As per impugned judgment, the applicant Abdul Sattar son of Haji Zakriya has been convicted and sentenced to suffer 5 years imprisonment with fine of Rial, 111, 046, 680, 000/ - for illegally entering and residing in Iran and for accomplice in
smuggling of alcoholic drinks. Section 14' of the Foreigners Act, 1946 provides maximum punishment of three years with fine, whereas section 4 of the Prohibition (Enforcement of Ha dd) Order, 1979 provides maximum punishment of two years.
Since the applicant is in custody since 04.03.2018 and has already undergone the substantial period of his imprisonment, as such, his sentence is reduced from 5 years to that of already undergone and fine amount is also reduced from Rial 111,046,680,000 to Rs.2,000 or in default to further undergo ten days S.I. He should be released forthwith if not required in any other case.
iii. Since the sentenced awarded to the applicant Hussain Davoodzada son of Kazim is less severe than provided by section 9(c) of the Control of Narcotic Substances Act, 1997, as such, Mr. Syed Jamil Ahmed Agha, learned counsel for the applicant does not press the instant application, which is dismissed as withdrawn. Needless t o
observe that in case of non- payment of fine amount, the applicant shall suffer six (06)
months R.I.
iv. As per impugned judgment the applicant Ali Dari Zada son of Shahdullah has been convicted and sentenced to suffer five years imprisonment with 58 las hes for armed
burglary and illegal residence in Iran. Since section 14 of the Foreigners Act, 1946 provides the maximum punishment up to three years and section 379 of the Pakistan Penal Code, 1860 provides punishment up to three years and the applicant is in
custody since 02.03.2019, as such, his quantum of sentence is modified and reduced from five years to that of already undergone. He should be released forthwith if not required in any other case.
v. As per impugned judgment the applicant Abdul Rashid son of Suleman Ayub has been convicted and sentenced to suffer five years imprisonment with fine of Rial 804,384,000,000/ - for illegally entering and residing in Iran and for accomplice in
smuggling of alcoholic drinks. Section 14 of the Foreigners Act, 1946 provides maximum punishment of three years, whereas section 4 of the Prohibition (Enforcement of Hadd) Order, 1979 provides maximum punishment of imprisonment of two years. The applicant is in custody since 07.07.2018, as such, his sentence of five years imprisonment is modified and reduced to that of already undergone, whereas the fine amount is also reduced from 804,384,000,000 Rial to Rs.2,000 and in default to further undergo 10 days S.I.
vi. Since the sentence awarded to the applicant Khaliq Dad so n of Amanullah is less
severe than provided by section 9 (c) of the CNS Act, 1997, as such, Mr. Najeebullah Kakar, learned counsel for the applicant does not press the instant application, which is dismissed as withdrawn. Needless to observe that in case of non- payment of fine
amount, the applicant shall suffer six (06) months S.I.
vii. As per impugned judgment, the applicant Imran Imanuel son of Hanif Gul has
been convicted and sentenced to suffer 26 years and three months imprisonment with fine of 1,270,000,000 Rial. Since 792 grams of heroin has been recovered from his possession and his case falls within the ambit of section 9(b) of the Control of Narcotic Substances Act, 1997, providing imprisonment which may extent to seven years and fine. If the psyc hotropic substance or control substance exceeds 100 grams
but not exceed 1 kilogram, as such, while modifying the quantum of his sentence, the same is reduced from 26 years and 3 months to that of already undergone, as he is in custody since 29.09.2013, whereas his fine amount is also reduced from 1,270,000,000/ - Rial to Rs.5,000/ - and in case of default to further undergo 15 days
S.I.
viii. As per impugned judgment the applicant Syed Saeed Ahmed son of Syed Ghulam Ali Shah has been convicted and sentenced to suffer five years imprisonment with
fine of Rial 111,406,680,000/ - for illegally entering and residing in Iran and for
accomplice in smuggling of alcoholic drinks. Section 14 of the Foreigners Act, provides maximum punishment of three years, whereas se ction 4 of the Prohibition
(Enforcement of Ladd) Order, 1979 provides maximum punishment of imprisonment of two years and the applicant is in custody since 04.03.2018, as such, his sentence of five years imprisonment is reduced to that of already undergone , whereas the fine
amount is also reduced from Rials 111,406,680,000 to Rs.2,000 and in default to further undergo 10 days S.I.
ix. As per impugned judgment, the applicant Wazeer Ahmed son of Wali Muhammad has been convicted and sentenced to suffer 18 yea rs imprisonment with fine of Rial,
700,000,000/ - Since 159 grams of Amphetamine has been recovered from his
possession and his case falls within the ambit of section 9(b) of the Control of Narcotic Substances Act, 1997, providing imprisonment which may ext ent to seven
years and fine. If the psychotropic substance or control substance exceeds 100 grams but not exceed 1 kilogram, as such, while modifying the quantum of sentence, his sentence is reduced from 18 years imprisonment to that of already undergone, as he is
in custody since 14.01.2018, whereas his fine amount is also reduced from 700,000,000/ - Rials to Rs.5,000/ - and in case of default to further undergo 15 days
S.I.
x. As per impugned judgment the applicant Rashid Bhatti son of Yaqoob has been convicted and sentenced to suffer five years imprisonment with fine of Rial 804,384,000,000/ - for possession of alcoholic drinks. Section 4 of the Prohibition
(Enforcement of Hadd) Order, 1979 provides maximum punishment of imprisonment of two years and the applicant is in custody since 07.07.2018, as such, his sentence of five years imprisonment is reduced to that of already undergone, whereas the fine amount is reduced from Rial 804,384,000,000/ - to Rs.2,000/ - and in default to further
undergo 10 days S.I.
With the above modification in the quantum of sentence awarded to the applicants,
the applications are disposed of accordingly.
JK/77/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,
let us know.