P L D 2021 Balochistan 55 (PLP)

NAEEM AKHTAR AFGHAN, J.

The pauper applicant was convicted and sentenced on 31.01.2015 as follows by the Court of criminal jurisdiction 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 pauper 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 "the 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 "the 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 practicable, 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 that 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 enforce 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 custody 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 Articles 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 (Enforcement 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 Islamic 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 applicant as mentioned in para-9 above. The Criminal Misc. Jail application is disposed of accordingly. JK/50/Bal. Order accordingly.