P L D 2025 Islamabad 35 (PLP)

ARBAB MUHAMMAD TAHIR, J.

The, appellant, through these appeals has impugned order, dated 11.04.2022, passed by the learned Judge, Special Court (CNS), Islamabad.

2. The facts, as per available record, are that the appellant was arrested in the year 2010 in Sri Lanka on the allegation of trafficking 8.3545 kilograms heroin. He was subsequently awarded death sentence by the High Court of Negombo and later commuted to life imprisonment by the President of Sri Lanka. The conviction and sentence have attained finality under the municipal laws of Sri Lanka. He has been transferred to Pakistan in the year 2020 under the Transfer of Offenders Ordinance, 2002 (hereinafter referred "Ordinance") to serve out the remaining sentence in Pakistan. The appellant had earlier filed an appeal i.e. Crl. Appeal No.185/2021, wherein the matter was remanded to the learned trial court vide consolidated order, dated 29.03.2022, passed in Crl. Appeal No.173/2021 titled "Asif Rasheed v. Federation of Pakistan". The learned trial court reconsidered the sentence of the appellant so as to bring the same in conformity with the laws in force in Pakistan and concluded as follows.- "Record reveals that 8.3545 kilograms of heroin was recovered from the offender/convict Shahid Muhammad, which falls under section 9(c) CNSA 1997 for which, the maximum period of imprisonment provided is life imprisonment with fine. So, the competent authority shall consider the punishment imposed upon the offender/convict Shahid Muhammad to be Rigorous Imprison-ment for Life with fine of Rs.10,000/- in default of payment of which, the convict shall further undergo (one) 01 Month Simple Imprisonment as, prescribed Under section 9(c) of CNSA, 1997. Benefit of Section 382-B shall be extended to the convict and give effect forthwith to such punishment under the laws of Pakistan."

3. Learned counsel for the appellant has argued that this Court in Asif Rashid's case supra has conclusively held that the sentence of a convict transferred under the Ordinance can be converted to bring the same in conformity with the laws of country where the person was convicted; the Ordinance as well as the agreement executed between the two countries envisage doing so; section 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter "CNSA") provides three sentences; the proviso to section 9(c) CNSA ought to have been taken into consideration; the accused was entitled to lesser punishment and the punishment should have been converted to 14 years; the learned trial court omitted to consider these legal aspects of the matter.

4. Conversely, learned Special Public Prosecutor, ANF and the learned State Counsel have argued that; the impugned order is well reasoned; the jurisdiction of the courts in Pakistan is limited to conversion of sentence so that it may be brought in conformity with the laws of Pakistan; the conviction of the appellant has attained finality in Sri Lanka; the courts in Pakistan can neither sit in appeal over the judgments convicting the appellant nor can modify its terms without appreciating evidence; granting the prayer sought by the appellant is not legally permissible.

5. Heard. Record perused.

6. The appellant was arrested in the year 2010 in Sri Lanka on the charges of trafficking 8.3545 kilograms heroin and after a full fledge trial, he was convicted and sentenced to death by the High Court of Negombo in Sri Lanka. However, his sentence was later commuted to life imprisonment by the President of Sri Lanka. He was subsequently transferred to Pakistan under the Ordinance for serving out the remaining portion of his sentence. It is the case of the appellant that since he was convicted for possession 8.246 kilograms of heroin, therefore, his sentence be reduced to 14 years under section 9(c) CNSA, particularly keeping in view the proviso thereof.

7. The Ordinance has been promulgated with the object to provide for transfer of a citizens of Pakistan convicted of an offence in a foreign country to Pakistan and a citizen of a foreign country convicted of an offence in Pakistan to that country and for matters connected therewith or ancillary thereto. Section 2(c) of the Ordinance defines 'Competent Authority' as meaning the Secretary, Ministry of Interior and Narcotics Control (Interior Division) or any other person as the Competent Authority may, by notification in official Gazette, authorize to exercise powers and perform functions, of the Competent Authority under the Ordinance. Section 6 prescribes the conditions for transfer of offenders. The finality of the decision or judgment imposing sentence of imprisonment is one of the conditions precedent under clause (b) of section 6 of the Ordinance for transfer of offenders from one country to the other. Section 9(1) of the Ordinance provides that the sentence imposed on the offender by a foreign State shall be given effect as if it were the sentence imposed by a court in Pakistan. Subsection (3) of section 9 of the Ordinance provides that the Competent Authority shall be bound by the legal nature and duration of the sentence of imprisonment imposed on any offender transferred to Pakistan. Subsection (4) of section 9 of the Ordinance deals with a case of non-compatibility of the sentence of imprisonment imposed on an offender transferred to Pakistan. It provides that 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 it corresponds as far as practicable, to the sentence imposed on such offender in the country from which the offender was transferred to Pakistan. Section 12 of the Ordinance entitles the offender to the remissions of the sentence of imprisonment permissible/granted under the laws of the country where he was convicted as well the remissions granted under the laws of Pakistan. Section 13 of the Ordinance unambiguously provides that the sentence of imprisonment imposed on the offender shall not be subject to any appeal or revision in any court in Pakistan.

8. It is obvious from a plain reading of the Ordinance that the court in Pakistan cannot act as a court of appeal or revision in respect of the order of imprisonment inflicted upon the offender in a foreign State. In fact such offender is transferred to Pakistan to serve out his sentence after his conviction and sentence has attained finality in the foreign State. The scope of interference under subsection (4) of section 9 of the Ordinance is limited to a case where the sentence of imprisonment imposed upon the transferred offender is incompatible with the laws of Pakistan. In the case in hand, the appellant has been transferred to Pakistan to serve out the sentence of imprisonment for life, which as per section 9A(3) of CNSA is imprisonment in jail for the period of twenty-five years. The punishment provided in section 9(c) CNSA, for possessing narcotic drugs, psychotropic substance or controlled substances weighing more than 01 kilograms, is death or imprisonment for life or imprisonment for a term which may extend to fourteen years.

9. The purpose of the proceedings under section 9(4) of the Ordinance is not to sit in appeal or revision over the original order of a court of foreign State, rather to remove the incompatibility of the foreign sentence with the municipal laws of Pakistan. In the case in hand possessing heroin weighing more than 08 kilograms is punishable under section 9(c) CNSA and the sentence of life imprisonment is provided thereunder. The principle that when a statute provides for more than one type of sentences, then the accused shall be awarded punishment which is less severe, is observed by the courts while inflicting sentences on conclusion of trial after recording of evidence within the municipal laws of Pakistan. But in the case in hand, the appellant has exhausted the available legal remedies against the original order of conviction at Sri Lanka and consequently his death sentence was converted into life imprisonment. Such sentence can, therefore, not be reviewed, modified, reduced or otherwise altered by courts in Pakistan, except the proceedings under section 9(4) of the Ordinance, which power is limited to "adoption of corresponding sentence as far as practicable to the sentence imposed on the offender by the courts of a foreign State" that too in case of incapability of the sentences of transferring and receiving States. In our view, the sentence of life imprisonment inflicted upon the appellant by the foreign State is compatible with sentence provided in section 9(c) CNSA and does not call for interference by way of "adoption".

10. Article 9 of the Agreement executed between Government of the Democratic Socialist Republic of Sri Lanka and the Government of the Islamic Republic of Pakistan deals with 'procedure for enforcement of sentences'. Clause 4 of Article 9 provides that "If the sentence by its nature or duration, is incompatible with the law of the Receiving Party, 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 Party nor exceed the maximum prescribed by the law of the Receiving Party." Subsection (4) of section 9 of the Ordinance has, therefore, to be interpreted in light of clause 4 of Article 9 of the Agreement. The courts in Pakistan can adopt/convert a sentence, in case of incompatibility, provided it corresponds as far as practicable to the sentence imposed on the offender by the courts of foreign State, however, such adoption/conversion shall not aggravate the nature or duration of sentence imposed by a court in the foreign State. In the instant case, the Judge Special Court (CNS), while passing the impugned order has converted the nature of sentence i.e. to rigorous imprisonment and has imposed fine of Rs.10,000/-, in default whereof, the appellant to undergo one month simple imprisonment. We are afraid that, while exercising power under section 9(4) of the Ordinance, the court in Pakistan cannot aggravate the nature or duration of the sentence imposed by the court of foreign State. The power under section 9(4) of the Ordinance should not be exercised in routine in every matter, but in exceptional cases where foreign sentence is "incompatible" with the law of Pakistan. The appellant has been transferred to serve out the sentence of life imprisonment awarded to him by the courts of a foreign State. The conversion of the nature of sentence from simple to rigorous and imposition of fine by the learned Judge Special Court, in this case, is beyond the scope of the Ordinance and, therefore, liable to be set-aside. 10(sic). For what has been discussed above, the appeals are without merit and are, therefore, accordingly dismissed. As held above, the order passed by the trial court by converting the sentence of imprisonment and imposition of fine is beyond the scope of the Ordinance, the same is hereby set-aside. It is for the Competent Authority i.e. Secretary, Interior Division to decide question whether the sentence awarded to the appellant is 'rigorous' or 'simple'. The matter is, therefore, referred to the Competent Authority to determine the question whether the sentence of the appellant is 'simple' or 'rigorous' after consulting the appropriate authority defined under section 2(b) of the Ordinance. The Competent Authority shall also provide definite information to the prison authorities regarding the period of sentence already served by the appellant along with remissions (if any) in Sri Lanka and the remaining sentence to be served in Pakistan. JK/92/Isl. Appeals dismisse