ISLAMABAD: The Islamabad High Court (IHC) has referred to the interior ministry the case of 41 Pakistani prisoners who were convicted of drug trafficking in Sri Lanka but were brought back under an agreement signed with Colombo to serve jail terms in their home country.

The inmates were brought back by a chartered flight of Pakistan International Airlines in November last year.

This was the first case of repatriation over the past seven years under the bilateral Prisoner Transfer Agreement (PTA) signed by Pakistan and Sri Lanka in 2004. According to the agreement, transfers are allowed in cases where sentences exceed a period of six months.

The prisoners say they be treated under Pakistani laws and released

In their petitions filed with the IHC, the prisoners sought their release claiming that sentences for drug offences in Sri Lankan laws were not compatible with Pakistani laws. Another reason for the petition seeking their release is that some of them have served out their sentences.

Justice Aamer Farooq directed the interior ministry to make arrangements for examining whether the sentences awarded by Sri Lankan courts were compatible with Pakistani laws.

The petitioners are incarcerated in Adiala Central Jail, Rawalpindi.

The counsel for the petitioners informed the court that the sentences awarded by the Sri Lanka courts for offences of drugs trafficking were not compatible with the sentences for the same crime under Pakistan’s laws. It was argued that where the sentence of a person was incompatible, the court of competent jurisdiction could make it compatible and pass an appropriate order. In this case, the petition referred to the sentence for the offence of drugs trafficking in Pakistan as contained in Section 9 of the Control Narcotic Substances Act, 1997.

The court was informed that in almost all cases, the quantity of the drugs recovered from the petitioners did not entail life imprisonment or capital punishment as was present under the laws of Pakistan and the sentence was less than the one awarded by Sri Lankan courts and that the sentence provided in the laws of Pakistan had been served out by the petitioners and, therefore, they were entitled to be released immediately.

The counsel cited provisions of relevant laws as well the treaty between Pakistan’s and Sri Lankan governments with respect to the transfer of the offenders.

Deputy Attorney General Raja Khalid Mehmood Khan representing the federal government said that the petitions were not maintainable since the petitioners could seek relief from the relevant authority for their release.

He argued that the court of competent jurisdiction in this case was the Special Court for the Control of Narcotics Substances (CNS) which could decide about the compatibility of the sentences.

The deputy attorney general further argued that the petitioners had been convicted and awarded punishment for heinous offence of smuggling of narcotic substances and they could not claim their release from the prison as their right.

He said that the petitioners had no fundamental rights or any right for that matter since they were convicts and they were serving their sentences.

In rebuttal, the counsel for the petitioners submitted that even a convict serving the sentence had some fundamental rights, especially the right to be dealt with in accordance with Article 9 of the Constitution of the Islamic Republic of Pakistan, 1973. He further said that if the compatibility of the sentences awarded by the courts in Sri Lanka with the sentences provided under the laws of the Pakistan was worked out, the petitioners had already served the sentences and, therefore, they were entitled to be released forthwith.

Justice Farooq observed that since the IHC could not determine the compatibility of the sentences, “the competent authority namely the ministry of interior, government of Pakistan, ought to have determined the question of incompatibility of the sentences between the laws of Pakistan and Sri Lanka and made reference to the court of competent jurisdiction for ascertainment of the same, but they failed to do so in violation of the statutory obligation, as provided in section 9 of the Ordinance”.

Subsequently, the court directed the registrar’s office to forward the petitions to the interior ministry “who shall treat the same as representations on part of the petitioners and work out the incompatibility/compatibility and approach the court of competent jurisdiction for determination of the same; while doing so, the competent authority shall place on record before the court of competent jurisdiction”.

“After obtaining the orders for compatibility, the competent authority shall pass orders for the release of the petitioners where so required or determined,” the court order concluded.

Published in Dawn, April 6th, 2021