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Official Citation: 2025 PLD 274
Court / Jurisdiction: Islamabad High Court
Year of Decision: 2024
Decision Date: 2024-12-31
Parties: Aman Ullah Khan, Ibrar Hussain, Ghazala Shaheen vs Federation of JUDGMENT
Ruling Summary: This decision was rendered by the Islamabad High Court on 2024-12-31, officially reported as 2025 PLD 274. In this matter between Aman Ullah Khan, Ibrar Hussain, Ghazala Shaheen and Federation of JUDGMENT, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as PLD 2025 Islamabad 274
Court Name: Islamabad High Court Judge(s): Mohsin Akhtar Kayani Title:Aman Ullah Khan, Ibrar Hussain, Ghazala Shaheen vs Federation of
JUDGMENT
Reported As: 2025 IHC 58, PLD 2025 Islamabad 274 Result: Petition Disposed of Judgment
JUDGMENT MOHSIN AKHTAR KAYANI, J: By way of this order I intend to decide all three writ petitions, whereby, the petitioners sought indulgence of this Court for passing of direction in order to get returned to Pakistan prisoners from United Kingdom under Transfer of Offenders Ordinance, 2002, who were convicted by the courts in United Kingdom and serving their sentence in UK prisons. 1. In WP No.3480 of 2022 the petitioner Amanullah Khan, seeks the transfer of his son, Muhammad Hammad, who is serving life sentence in the UK. Muhammad Hammad is imprisoned under reference number A3338DMHMP at Long Lartin Prison, South Littleton, Evesham, Worcestershire, UK. The petitioner submitted the necessary documents and affidavits for repatriation under the Transfer of Offenders Agreement. However, despite official correspondence, including verbal as well as letters of consent from Ministry of Foreign Affairs, the office of Her Majesty's Prisoners and Probation Services informed the son of Petitioner that the process has delayed for want of information form Pakistani Authorities. The ministry of interior put a hold on all transfer of sentenced prisoners due to alleged legal gaps in the Transfer of Prisoners Ordinance, 2002. Hence, this petition whereby the petitioner prayed to direct the respondents to dispose of the application of son of petitioner for his repatriation from the UK to Pakistan. 2. In WP No. 1175 of 2023, petitioner Ibrar Hussain, seeks the repatriation of his brother, Muhammad Shafi who was imprisoned at HMP Garatree, Gallowfeild Road, Market Harborough, Leicestershire, UK, under prisoner number A2684CP, HMP, applied for repatriation in 2019 after serving nine years of his life sentence. Also, Respondent No. 4 / MOFA confirmed the receipt of application of Petitioner's
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brother. Correspondence from the UK authorities has indicated that the delay is due to a lack of information from Pakistani officials. Despite submitting all necessary documents and affidavits, the transfer has been delayed due to legal gaps in the Transfer of Offenders Ordinance, 2002. Hence, this petition whereby the petitioner prayed to direct the respondents to dispose of the application of brother of petitioner for his repatriation from the UK to Pakistan. 3. In WP No. 2167 of 2023, Petitioner Ghazala Shaheen, seeks the repatriation of her son, Muhammad Awais Durani. He is imprisoned in HMP High Down Prison, High Down Lane, Sutton, UK, under prisoner number A7545EF. Muhammad Awais was convicted for multiple offences and sentenced to 23 years imprisonment by the Crown Court in the UK case no. T20187218. Petitioner approached the Respondent authorities and met with the same response as the others did in similar petitions. Hence, the petitioner prayed to direct the respondents to dispose of the application of son of petitioner for his repatriation from the UK to Pakistan. 4. Learned counsel Ms. Farah Rana, Advocate High Court representing the petitioners contends that all requirements in terms of Transfer of Offenders Ordinance, 2002 have been fulfilled in these cases but the Government of Pakistan is not serious to complete the requirements raised by the United Kingdom Border Agency and other official departments and unless the satisfaction has not been achieved by the United Kingdom Government with respect to the process, procedures and legal framework, the offenders / petitioners will not be transferred to Pakistan. 5. On the other hand the learned AAG, Mr. Usman Rasool Ghuman, along with the legal advisor of Respondent No. 4, the Ministry of Foreign Affairs (MOFA) Asad Khan Burki and Officials of Respondent No. 2, the Ministry of Interior as well as Jail authorities claimed that they have fulfilled the requirements in proper manner, however, transfer of offenders requires time for a policy decision by the United Kingdom and unless the other country is not agreed, the offenders will not be transferred to Pakistan. 6. During the course of proceedings of these cases, the Legal Advisor of Respondent No. 4 appeared and submitted a concise report and contended that the UK authorities need two documents; one is the assurance on the sentence enforcement of prisoner on his return to Pakistan and release date of prisoner. He further submitted that issuance of both the documents fall within the domain of Respondent no. 2 the MoI. Pursuant to the order of this court dated 19-09-2022 Respondent no. 4 wrote to the Deputy High Commissioner vide letter no UK-9/5/2022- (E-II) dated 06-10-2022 to arrange consular access to the son of petitioner Muhammad Hammad. On 19-10- 2022 the Third Secretary from Pakistan High Commission met Muhammad Hammad and he was provided Consular access. The MOFA placed on record the report of provision of Consular access and also placed the report dated 14-11-2022 issued by the Superintendent, Central Jail Adyala given by Ministry of Interior to MOFA whereby the probable release date of Muhammad Hammad is 01-03-2037 including ordinary remission and good conduct remission. The said report of Superintendent, Central Jail Adyala was sent to the UK authorities by the MOFA. Another request for Consular access to Mr. Hammad has been forwarded to British Authorities by Pahic London vide its letter dated 16-02-2023. The mission also requested the response on the subject that "whether any early release arrangement would apply to Mr. Hammad's case or whether he only be release on 1st March 2037." 7. Learned counsel for the Petitioners after lapse of two more dates of hearing brought this to the knowledge of the court that the case of Muhammad Hammad has not reached to any conclusion. On the contrary, the legal advisor for the Respondent No. 4 contended that the delay was on the part of Respondent no. 2 who has not submitted the reciprocity report qua the prisoners who has already been transferred to Pakistan from the UK. To speed up the matter of repatriation the court directed the Ministry of Interior to prepare a detailed reciprocity report of the offenders who have
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been released from the UK prisons. The other aspect in the delay was the "probable date of release" of the offenders as the UK authorities have been asking for the probable date of release and also the final date of release in the reciprocity reports. 8. Respondent no. 2 the MoI shared its reciprocity report dated 25-10-2023 of the offenders who has been released from the prisons in Pakistan or about to be released with Respondent no 4 including the probable date of release of the current petitioner namely Muhammad Awais Durrani, Muhammad Shafi, and Muhammad Hammad along with other prisoners in similar matters including Imran Khan AKA Azeem Khan, Irshad Mehmood, Mohammad Ayub Khan, and Naeem Mehmood after verification of their data from Nadra, which was sent to Pahic London on 30-10- 2023 vide Fax message no. UK-1/7/2023. 9. Respondent No. 2 shared another report dated 14-11-2013 with Respondent no. 4 containing the final date of release of prisoners namely, Muhammad Hammad (WP No. 3480/2022), Muhammad Awais Durrani (WP No. 2167/2023), and Muhammad Shafi (WP no. 1175/2023). The said report was shared by Respondent no. 4 with the Mission in Pahic London vide Fax No. UK-5/2/2023 dated 16-11- 2023. The mission forwarded the reports to his Majesty's Prison and Probation services and the HMPPS has highlighted the contradictions in the date of release of prisoners in both faxes. 10. As a result of this court's efforts and issuance of repeated judicial orders as reminder for providing the consular access to the sentenced prisoners in the UK prisons and with the collaboration and assistance of the Pakistani authorities and UK authorities, the sentenced prisoners landed in Pakistan on different dates one by one. The HMPPS requested to share details of the officials and officers who will take the prisoners in custody from Islamabad Airport also the court passed an order dated 03-07-2024 to nominate officials to receive the prisoners from the airport. In compliance of this order and request, Respondent no. 3 the immigration department at FIA, HQs in Islamabad has shared the complete details of all the officers and officials who will take the prisoners in custody at Islamabad airport with the Mission at Pahic London. The details of the correspondence are available on record. For the travelling of prisoners ETDs were issued and all the expenses were borne by the UK authorities for their transfer to Pakistan. From the report placed on record by the MOFA, the kin of the petitioners namely, Muhammad Hammad, Muhammad Shafi and Muhammad Awais Durrani have been repatriated to Pakistan on 10th September 2024, 06 August 2024 and 4th October 2024 respectively. 11. This Court has also noticed during the course of proceedings that multiple correspondences took place between prisoners as well as Pakistan and UK authorities which is commendable. From the available record it is apparent that Rebecca Wlaker (Hub Manager) Offender Management Unit HMP LING Lartin has remained in contact with the prisoners and updated them regarding the status of their repatriation case. Whereas, Nalini Hussain (Prisoner Transfer and Delivery Lead) Foreign National Offenders HMPPS remained in contact with the Pakistani Mission in London and assisted with the transfer of sentenced prisoners from the UK to Pakistan. 12. In the view of the above facts and circumstances of the case the essential question arises: why would states choose to transfer foreign prisoners abroad or repatriate their nationals to serve their sentences at home? To answer this question along with other sources assistance was sought from the Handbook on the International Transfer of Sentenced Persons by the UNODC. When a sentence is imposed, the fundamental objectives of sentencing--retribution, deterrence, rehabilitation, and incapacitation--are presumed to have been duly considered. Judges and courts are expected to weigh these objectives within the framework of the sentencing jurisdiction's established rules. However, the priorities governing the implementation of a sentence often differ from those that informed its initial imposition. These shifting priorities frequently come into play when the transfer of a sentenced individual is contemplated. For the sentencing state, prisoner transfer programs offer the advantage of transferring foreign nationals at the expense of the administering state,
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bypassing the complexities and costs associated with deportation. This also allows the sentencing state to allocate its resources more effectively towards the needs and rehabilitation of its own prisoners. 13. A fundamental yet often understated requirement in international prisoner transfer frameworks is the safeguarding of the human rights of the individual being transferred. States are prohibited from transferring individuals where there is a significant risk to their lives or where they may be subjected to torture, inhuman, or degrading treatment or punishment in the receiving country. (i) Article 3 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment expressly forbids the transfer of individuals to states where there are substantial grounds to believe they would face torture. Similarly, Article 2 of the International Covenant on Civil and Political Rights (ICCPR) requires states to refrain from extraditing, deporting, expelling, or otherwise removing a person where there are substantial risks of irreparable harm, including those highlighted in Articles 6 and 7 of the Covenant. These articles address the risks to life and exposure to cruel, inhuman, or degrading treatment or punishment. (ii) Addressing Mental Health: In addition to above, mentally challenged prisoners represent a particularly vulnerable category whose transfer requests demand compassionate consideration on humanitarian grounds. However, these cases underscore the challenges posed by prisoners who may not be capable of freely consenting to their transfer, necessitating additional safeguards and scrutiny. (iii) Promoting Rehabilitation and Reintegration: In the enforcement of prison sentences, rehabilitation plays a critical role in preparing offenders for resocialization and reintegration into society. Over time, the rehabilitative objective often assumes greater significance than it did during the sentencing phase. The transfer of foreign prisoners to their home countries provides an alternative means of implementing their sentences. Research indicates that individuals serving sentences in their home countries are better positioned to rehabilitate, resocialize, and reintegrate into their communities.[1] Incarceration in a foreign jurisdiction, far from family and friends, can be counterproductive, as families often serve as a critical source of social support. Such support has been shown to significantly improve the likelihood of successful reintegration.[2] (iv) Humanitarian Concerns: Another compelling argument for the transfer of prisoners is rooted in humanitarian considerations. Even in cases where the prospects for successful rehabilitation and reintegration are uncertain, it is often more humane for individuals to serve their sentences in their home countries[3]. Furthermore, humanitarian considerations extend to the family and dependents of incarcerated individuals. Families left behind in the prisoners country of origin face emotional and logistical challenges when their loved ones are held in foreign prisons. Facilitating transfers mitigates these hardships, fostering greater familial stability. 14. International Legal Instruments Governing Transfers: Keeping in view the above considerations of rehabilitation, protection of human rights and humanitarian principles states have given consensus for the transfer of international sentenced prisoners/offenders to their home state. The international transfer of sentenced prisoners gained significant momentum following the Fifth United Nations Congress on the Prevention of Crime and the Treatment of Offenders in 1975. Since then, the United Nations has actively promoted the transfer of sentenced persons as part of its broader initiatives to combat organized crime, drug trafficking, and corruption. (A) Pakistan is a signatory to three key UN conventions that include mechanisms for transfer of prisoners and extradition; however, it has placed reservations on extradition provisions within these conventions.
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i. United Nations Convention against Transnational Organized Crime: Pakistan signed the United Nations Convention against Transnational Organized Crime on December 14, 2000, and ratified it on January 13, 2010. Article 17 of this convention provides for the transfer of prisoners, and Pakistan has raised no reservations regarding this provision. The article states: "States Parties may consider entering into bilateral or multilateral agreements or arrangements on the transfer to their territory of persons sentenced to imprisonment or other forms of deprivation of liberty for offences covered by this Convention, in order that they may complete their sentences there."[4] ii. United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances: Pakistan became a party to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances by signing it on December 20, 1989, and ratifying it on October 25, 1991. Paragraph 12 of Article 6 encourages the adoption of bilateral or multilateral agreements for the transfer of prisoners. It states: "The Parties may consider entering into bilateral or multilateral agreements, whether ad hoc or general, on the transfer to their country of persons sentenced to imprisonment and other forms of deprivation of liberty for offences to which this article applies, in order that they may complete their sentences there."[5] iii. United Nations Convention against Corruption: Pakistan signed the United Nations Convention against Corruption on December 9, 2003, and ratified it on August 31, 2007. While Pakistan has expressed reservations about Article 44, which pertains to extradition, Article 45 encourages the transfer of sentenced prisoners. Article 45 provides: "States Parties may consider entering into bilateral or multilateral agreements or arrangements on the transfer to their territory of persons sentenced to imprisonment or other forms of deprivation of liberty for offences established in accordance with this Convention in order that they may complete their sentences there."[6] (B) European Convention on the Transfer of Sentenced Persons: In addition to the UN convention, another most prominent multilateral instrument in this area is the European Convention on the Transfer of Sentenced Persons, which came into effect on July 1, 1985. Although initiated by the Council of Europe, the convention is open to non-European states as well. Articles 18 and 19 of the convention detail its provisions. A notable feature of this agreement is the requirement of the sentenced person's consent for transfer, except in cases outlined in Articles 2 and 3 of the Additional Protocol. These articles allow for the transfer of individuals without their consent if they have fled the sentencing state or would face deportation or expulsion upon completing their sentence. (C) Commonwealth Scheme for the Transfer of Convicted Offenders: For the Commonwealth the Scheme for the Transfer of Convicted Offenders within the Commonwealth mirrors many provisions of the European Convention. It is open to all Commonwealth countries that choose to adopt it. These schemes[7] are not binding treaties but serve as flexible arrangements to facilitate cooperation between Commonwealth nations. The key Commonwealth schemes related to criminal matters include: i. London Scheme for Extradition within the Commonwealth (1966); ii. Revised Scheme Relating to Mutual Legal Assistance in Criminal Matters (Revised Harare Scheme, 1986); iii. Scheme for the Transfer of Convicted Offenders (1986); iv. Framework for the Commonwealth Network of Contact Points (2005).
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These schemes provide a practical framework for collaboration while remaining adaptable to the specific needs of member states.[8] (D) Inter-American Convention on Serving Criminal Sentences Abroad: For America the Inter-American Convention on Serving Criminal Sentences Abroad, adopted on September 6, 1993, and effective from December 4, 1996, offers another model for the transfer of sentenced persons. Although its structure differs from the European Convention, it shares a similar objective. As of January 31, 2012, 17 states, including non-American countries like the Czech Republic, India, and Saudi Arabia, had ratified or acceded to this convention[9]. 15. Implementation into Domestic Law: Transfer of Offenders Ordinance 2002: Irrespective of the fact that the transfer agreement was adopted, National legislation is essential for states to ensure that multilateral and bilateral agreements have legal effect within domestic law. For this purpose, Pakistan enacted the Transfer of Offenders Ordinance, 2002. The Transfer of Offenders Ordinance, 2002 provides a detailed framework for the repatriation of Pakistani citizens imprisoned abroad. It establishes that a prisoner must be a Pakistani citizen, with a finalized sentence and a remaining term of at least six months or an indefinite sentence, to be eligible for transfer. Consent is a critical requirement, either directly from the prisoner or, in cases where physical or mental incapacity exists, through a designated representative. The process is initiated upon receipt of a formal request from the foreign country's authority, accompanied by certified sentencing details. The Competent Authority in Pakistan, usually the Secretary of the Ministry of Interior, evaluates the application and issues a warrant if all conditions are satisfied. Upon transfer, the prisoner's sentence is enforced in Pakistan under domestic laws, and adjustments may be made to align with local legal standards. The President retains discretionary powers to grant pardons or remissions. This legal mechanism ensures that international obligations are seamlessly integrated into Pakistan's domestic legal system, promoting cooperation and humanitarian considerations in the treatment of offenders. 16. Bilateral Agreement Between the UK and Pakistan of 2007 and 2018 additional protocol: Bilateral agreements for the transfer of sentenced prisoners continue to be a significant tool in international cooperation, even as regional multilateral agreements gain prominence. States often adopt bilateral transfer agreements for reasons similar to those underlying multilateral arrangements, allowing for more tailored provisions and a broader range of partnerships. The United Kingdom, despite being a party to the European Convention on the Transfer of Sentenced Persons, the Scheme for the Transfer of Convicted Offenders Within the Commonwealth, and subject to Framework Decision 2008/909/JHA, has entered into bilateral agreements with a diverse range of states, including Pakistan.[10] Pakistan is not a party to any multilateral treaty for the transfer of prisoners particularly. Being a Commonwealth Country, the scheme of Commonwealth was also adopted by Pakistan, however not completely, yet the 2007 Agreement on the Transfer of Prisoners[11] between the United Kingdom and Pakistan exemplifies such bilateral collaboration. It provides a structured mechanism for the transfer of international sentenced prisoners, outlining conditions and processes that ensure their sentences are served in their home countries. This agreement draws heavily from the "Scheme for the Transfer of Convicted Offenders Within the Commonwealth", itself influenced by the European Convention on transfer of Sentenced Prisoners". Based on this agreement in the instant petition the petitioners were transferred from the UK to Pakistan. 17. The agreement underscores the shared goal of encouraging social rehabilitation by enabling prisoners to serve their sentences closer to their communities. The agreement also covers the "post-transfer considerations" as well. Key conditions include the mutual consent of both states, the finality of the sentence, a minimum of six months remaining in the sentence (with exceptions for special cases), and the prisoner's consent unless incapacitated. Furthermore, the offense for
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which the prisoner was convicted must be recognized as a criminal act in both jurisdictions. The transfer process is facilitated through central authorities, namely the Ministry of the Interior for Pakistan as mentioned in article 3 of the 2007 agreement and the relevant prison services for the UK. Under article 9 of the 2007 agreement the law of receiving state (Pakistan) shall govern the continued enforcement of sentence after the transfer and it is equating with the section 12 of the 2002 Ordinance-domestic legislation of Pakistan. However, only the transferring state has the power to review the judgment. 18 Additional Protocol of 2018: In 2018, a protocol was introduced to enhance the original agreement's implementation mechanisms, particularly the assurance framework[12]. Article 11 of the 2007 Agreement was replaced with new provisions requiring the establishment of a Joint Working Group on prisoner transfers. This group oversees the assurance mechanisms to ensure compliance with the terms of transfer, which include: a. Biannual or requested status reports on prisoners, including custody status, location, and release dates. b. Prevention of unauthorized international travel through border management systems. c. Notification of any unauthorized releases or deviations from anticipated release dates. d. Access for verification purposes, including obtaining biometric evidence. 19. While dilating upon the mechanism of 2007 agreement and its AP of 2018 it became evident that the whole mechanism of transferring of sentenced prisoners between states is regulated by the Consular/Diplomatic channel. The 2018 AP emphasizes the continuous Consular access. The request and replies and consent of the prisoners and other allied communications are obtained through the Consular access. 20. Pakistan is a party to Vienna Convention on Diplomatic Relations 1961 and its article 3 provides the duties of a Diplomatic Mission towards the sending state, it states that: Article 3 1.The functions of a diplomatic mission consist, inter alia, in: (b) Protecting in the receiving State the interests of the sending State and of its…
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