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Petitioner: Asad Javed VS Respondent: Federation Of Pakistan through Secretary, Ministry of Interior JUDGMENT
Court Name: Islamabad High Court Judge(s): Miangul Hassan Aurangzeb Title:Asad Javed vs Federation Of Pakistan through Secretary, Ministry of Interior
JUDGMENT
Reported As: PLD 2022 Islamabad 206 Result: Case remanded Judgment JUDGMENT MIANGUL HASSAN AURANGZEB, J.---The petitioner, Asad Javed, was tried and convicted by the Southwark Crown Court in the United Kingdom ("UK") and sentenced him to 25 years imprisonment for the offence of conspiracy to supply Class-A Drugs (Cocaine). He was remanded in custody on 23.12.2003 and sentenced on 23.07.2004. 2. On 3.8.2002, the Transfer of Offenders Ordinance, 2002 ("the 2002 Ordinance") was promulgated to provide-for the transfer of a Citizen 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. Section 3 of the said Ordinance provides inter alia that where an agreement for mutual transfer of offenders had been entered into between Pakistan and any specified country, the Competent Authority shall, by notification in the official Gazette, declare that the provisions of the said Ordinance shall apply in respect of such country, Section 2(c) of the said Ordinance defines "Competent Authority" to mean the Secretary, Ministry of Interior and Narcotics Control (Interior Division) or any other person as the Competent Authority may, by notification in the official Gazette, authorize to exercise powers and perform functions of the Competent Authority under the said Ordinance whereas section 2(h) defines a "specified country" as a country which has entered into an agreement for mutual transfer of offenders with Pakistan and notified as such by the Federal Government by notification in the official Gazette. Section 2(a) defines "agreement" as an agreement entered into between Pakistan and any other country relating to the mutual transfer of offenders between the two countries.
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3. The execution of an agreement between Pakistan and another country is a sine qua non for the application of the provisions of the 2002 Ordinance with respect to such country. On 24.8.2007, the Governments of Pakistan and the UK entered into an agreement on the transfer of prisoners. The exchange of the instruments of ratification of the agreement on the transfer of offenders between Pakistan and the UK took place on 19.8.2008. A certificate to this effect was produced by the Ministry of Interior, Government of Pakistan ("MOI). It is not disputed that the UK comes within the meaning of a specified country and has been notified as such. No provision in the said agreement is in conflict with any provision of the 2002 Ordinance. 4. While the petitioner was serving his sentence, he applied to be transferred to Pakistan so that he could serve his remaining sentence here. On 9.2.2010, the petitioner gave his consent to be transferred from the UK to Pakistan, and on 21.8.2010 he was transferred to Pakistan in accordance with the procedure prescribed for the transfer of offenders in the 2002 Ordinance. The sentence imposed on him in the UK was to continue to be enforced in Pakistan. 5. The record shows that the petitioner had served 6 years, 7 months and 28 days of his sentence in the UK when he was transferred to Pakistan on 21.8.2010. He had barely served 2 months and 16 days in prison in Pakistan when he was released on 8.11.2010 on the basis of a legal opinion rendered by a Section Officer, MOI. After it subsequently transpired that the dates mentioned in the said legal opinion regarding the duration of the petitioner's sentence served in the UK and his remaining sentence to be served in Pakistan were incorrect, First Information Report ("FIR") No.24/2014, dated 28.3.2014, under sections 201, 222, 109, 420, 468, and 471 of the Pakistan. Penal Code, 1860 read with section 5(2)47 of the Prevention of Corruption Act,1947 was registered at Police Station FIA. Crime Circle against inter alia the section Officer and the petitioner. It is not disputed that the trial pursuant to the said FIR culminated in the acquittal of all the accused persons. The concerns voiced by the authorities in the UK regarding the petitioner's premature release resulted in the petitioner being taken in custody on 12.02.2014. He is presently lodged at the Central Jail Adyala, Rawalpindi ("Adyala Jail"). 6. On 21.10.2014, the petitioner filed Writ Petition No.4394/2014 before this Court seeking the benefit of remissions in the sentence to be given to him. The said benefit was sought on the strength of section 9(4) of the 2002 Ordinance, which reads thus:-- "(4) Where the legal nature and duration of the sentence 9f 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 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." 7. Vide judgment dated 24.4,2015 reported as Asad Javed v. Federation of Pakistan (2015 PCr.LJ 1340), this Court disposed of the said writ petition by holding that the petitioner was entitled to remissions for the whole of his sentence including the period served by the petitioner in the UK. Furthermore, this Court directed the MOI to re-issue the Roll of Sentence after going through the record of the petitioner's case. 8. The intra Court appeal filed by the Federation of Pakistan against the said judgment was allowed by the Division Bench of this Court vide judgment dated 1.2.2016 reported as Federation of Pakistan v. Asad Javed (PLD 2016 Isl. 53). It was held that the writ petition filed by the petitioner was not maintainable, and that he was at liberty to approach the Secretary, MO!, who is the Competent Authority as defined in section 2(c) of the 2002 Ordinance for seeking benefit under sections 12 and 9(4) of the said Ordinance. 9. Civil Petition No.826/2016 against the said judgment dated 01.02.2016 passed by the Division Bench of this Court was filed by the petitioner before the Hon'ble Supreme Court. Vide judgment
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dated 18.04.2017 reported as Asad Javed alias Javed Akhtar v. Federation of Pakistan (2017 SCMR 1514), the said petition was dismissed. However, in the said judgment, the Hon'ble Supreme Court, after referring to sections 9(1) to 9(4) and section 12(1) and (2) of the 2002 Ordinance, held as follows:-- "6. Perusal of the above provisions of law regulating the Transfer of Offenders would reveal that the convict by competent Court of Law of specified country can be transferred to Pakistan pursuant to mutual agreement between the two countries and if the convict is transferred to Pakistan then he would be governed by the laws of Pakistan as if it was a sentence imposed by a Court in Pakistan and in case the sentence awarded to the convict is not compatible with the laws of Pakistan, a Court of competent jurisdiction in Pakistan can adopt such a sentence to make it compatible with the law of Pakistan. As far as pardon/remissions in the sentence of imprisonment awarded to an Offender is concerned, it can also be granted/extended to him under the Laws of Pakistan and he can also claim any remission of his sentence of imprisonment to which he became entitled to on the date of his transfer in accordance with law relating to the remissions of sentence in such specified country. When we asked the learned Senior ASC, is there anything in black and white to reflect that the offender had earned any remission during his imprisonment in U.K he could not lay hand on any such order of the concerned authorities in U.K. We also asked the learned Senior Advocate Supreme Court as to whether the offender was ever refused any remission, he had earned, while serving his sentence of imprisonment in Pakistan but again he was unable to refer to any such refusal. Yes; the petitioner has to be dealt with 'under the law Of the land to serve out his remaining sentence as provided in section 9(2) of the Transfer of Offenders Ordinance, 2002 (XXXVII of 2002) which also makes him entitled for grant of pardon or remission of sentence by the President of Pakistan under Article 45 of the Constitution of Islamic Republic of Pakistan or by any other authority under any law of Pakistan for the time being in force as provided in section 12(2) of the Transfer of Offenders Ordinance, 2002 (XXXVII of 2002) but for that purpose he has to approach the concerned authority as defined in the Law to ask for the relief." 10. On 10.7.2019, the petitioner filed Writ Petition No.2604/2019 before this Court seeking a direction to the MOI to release him forthwith on the ground that he had served half of his sentence. The petitioner's primary grievance in the said petition was that the MOI was not entertaining his application for release. Along with the said petition, the petitioner filed a copy of his application dated 16.7.2018 to the Superintendent, Adyala Jail (with a copy to the Secretary, MOD wherein a request was made to grant him the benefit of remissions, and if this could not be done, he be sent back to the UK. Vide judgment dated 18.12.2019, the said writ petition was dismissed by this Court with the following observations:-- "7. As noted above, the 'petitioner was tried and convicted of offences in United Kingdom, vide orders/judgment dated 07.07.2004. Though, the order whereby he was convicted and punished has not been appended but in his representation in other documents, the petitioner has categorically submitted, which is taken to be correct that he was awarded 25 years of imprisonment. It is the case of the petitioner that his conditional release date is mentioned as 22.6.2016, hence he is entitled to be released as he has served the sentence. It is noted that the said argument of the learned counsel for the petitioner has no substance inasmuch as under the law of United Kingdom, a person is entitled to conditional release on the terms and conditions decided by the Jail Authorities and it is not discharge from the sentence. The petitioner's sentence would stand completed in 2031. However, as per the terms of the sentence, he could be considered for conditional release on 22.6.2016. The said concept of conditional release is alien to Pakistani Laws as such. Under the jail manual and other laws of Pakistan no such release order is to be passed. The petitioner while serving sentence in Pakistan can have the benefit of remissions
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in accordance with the provisions of Transfer of Offenders Ordinance, 2002 and all such benefits which are available under the said law. In this view of the matter no direction can be made to the respondents for release of the petitioner, however, the learned counsel for the petitioner in alternative also made a request for decision of the representation by the petitioner; there is no impediment for grant of such relief to the petitioner." 11. While dismissing Writ Petition No.2604/2019, this Court directed the respondents in the said petition to decide the petitioner's application expeditiously and preferably within eight weeks. Intra Court Appeal No.6/2020 filed by the petitioner against the said judgment dated 18.12.2019 was dismissed as withdrawn vide order dated 8.4.2021. 12. On 30.3.2020, the petitioner filed the instant writ petition praying for the grant of bail until the decision in the Intra Court Appeal No.6/2020. It ought to be borne in mind that Intra Court Appeal No.6/2020 was still pending when the instant writ petition was filed. 13. During the pendency of the instant writ petition this Court, vide order dated 30.6.2020, had directed the Secretary, MOI, who, as mentioned above, is designated as the "Competent Authority" under the 2002 Ordinance, to treat the writ petition as the petitioner's representation and decide his grievance after affording an opportunity of a hearing to his authorized representative. Before deciding the matter, the MOI sought an opinion of the Law and Justice Division, Government of Pakistan, on the following questions:- "i. If the plea of the petitioner for conditional release after completion of half way sentence is justified in the light of Transfer of Offenders Agreement between Pakistan and UK and "The Good Conduct Prisoners' Probational Release Act, 1926" or otherwise. ii. Whether the Federal government/its offices are empowered to deal and decide upon cases of conditional release of prisoners under "The Good Conduct Prisoners. Probational Release Act, 1926" and if not, what is the appropriate forum which can be applied to in such cases." 14. The opinion of the Law and Justice Division on the said questions is reproduced as follows:- "The Criminal Justice and Immigration Act, 2008 of United Kingdom and Good Conduct Prisoners' Probational Release Act, 1926 cannot be equated with one another, since the object and territorial application of both statutes is entirely different from one another. While the Good Conduct Prisoners' Probational Release Act, 1926 provides for the conditional release from prison of good conduct prisoners in certain cases before the completion of the term of imprisonment and the United Kingdom Law makes provisions for the management of offenders. Thus the Criminal Justice and Immigration Act, 2008 is not ipso-facto applicable in Pakistan and the same cannot be made a ground by the applicant for his release upon the completion of half way sentence. It also cannot be equated with or reciprocated with the Good Conduct Prisoners' Probational Release Act, 1926. Moreover, the Supreme Court in the Civil Petition No.82/2016 in the case of present applicant has held that the petitioner has to be dealt with under the law of the land to serve out his remaining sentence as provided in section 9(2) of Transfer of Offenders Ordinance, 2002. In view of the afore-mentioned judgment of the apex Court the applicant is subject to the law of Pakistan for carrying out his remaining sentence, therefore, he cannot claim the benefit of the law of United Kingdom. However, he is at liberty to approach the competent authority under the Transfer of Offenders Ordinance and the competent authority after satisfying itself that extending of the benefit of Good Conduct Prisoners. Probational Release Act, 1926 being the law of land does not cause any prejudice to the legal nature and duration of a sentence so awarded by the transferring State could decide itself (if empowered under that law) or can direct any other authority so empowered in this behalf under that law to decide the same." 15. After taking into consideration the said opinion of the Law and Justice Division, and affording an opportunity of a hearing to the petitioner's representative the Secretary, MO!, vide order dated 20.08.2020, held that the benefit of conditional release under the Criminal Justice and Immigration
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Act, 2008, which is an English statute, could not be granted to the petitioner since the said law was not applicable in Pakistan. Furthermore, it was also held that the petitioner was entitled to be considered for relief under the provisions of the Good Conduct Prisoners. Probational Release Act, 1926 ("the 1926 Act") but since there was no probation department or jail in the Islamabad Capital Territory ("I.C.T."), and since the petitioner was undergoing his sentence in the Province of Punjab, he may approach the relevant Provincial Authorities through the jail administration. 16. Perusal of the said order dated 20.08.2020 shows that the stance, taken on the petitioner's behalf during a hearing before the Secretary, MOI was that the petitioner was "no longer claiming remissions" and that he wanted to be conditionally released on completion of half his sentence on 22.06.2016 under the provisions of the Criminal Justice and Immigration Act, 2008. Furthermore, the petitioner's stance was that in Pakistan, the 1926 Act would be the law under which the benefit of conditional release could be given to the petitioner. 17. During the course of the arguments, this Court felt the necessity to hear a representative from the MOI for the just adjudication of this matter. Vide order dated 21.12.2020, this Court directed the Secretary, MOI to depute an officer not below the rank of an Additional Secretary to assist the Court on the next date of hearing. On 18.01.2021, the Additional Secretary, MOI tendered appearance and submitted that the MOI shall, through the Ministry of Foreign Affairs, liaise with the authorities in the UK to determine as to whether the petitioner would be entitled to automatic release after serving half of his sentence under the provisions of the Criminal Justice and Immigration Act, 2008 as well as the Criminal Justice Act, 2003, which is also an English statute. 18. The MOI, vide a detailed Office Memorandum dated 25.02.2021, requested the Ministry of Foreign Affairs to ask the authorities in the UK whether the petitioner would be entitled to automatic release after serving half his sentence under the provisions of the Criminal Justice and Immigration Act, 2008 as well as the Criminal Justice Act, 2003. 19. On 11.03.2021 the MOI brought on record letter dated 05.03.2021 from the Ministry of Foreign Affairs conveying to the MOI a facsimile message received from the Pakistan High Commission containing the response of the authorities in the UK. The Cross Border Transfer Section, Interventions and Operational Services of Her Majesty's Prison and Probation Service had informed the Pakistan High Commission in London that "had Mr. Javed remained in the UK under the Criminal Justice Act, 2003, he would have been released after serving half of his 25 year sentence imposed on him." Furthermore, it was stated that "the British sentence would have been transferred to Pakistan on the basis of 'continued enforcement' however, he should be subject to Pakistani release arrangements." 20. On the basis of the said communication from the authorities in the UK, the petitioner filed an Application (C.M.No.1376/2021) for an amendment in the prayer clause of this writ petition so as to seek his discharge. Vide order dated 5.4.2021, the said application was allowed whereafter an amended petition was filed. 21. Vide order dated 20.4.2021, this Court issued a notice to respondent No.3 (Superintendent, Adyala Jail) with the direction to submit a report as to the total period of the petitioner's incarceration and accordingly calculate the remissions to which he was entitled to under the law. On the basis of the information provided by the Superintendent, Adyala Jail, the MOI submitted a report on 27.4.2021 setting out the details as to the sentence served by the petitioner, the remissions earned by him, and the remaining portion of his sentence. These details are as follows:-- YearsMonths Days (1)Sentence served in UK w.e.f. 23.12.2003 to 20.8.201006 07 28 Sentence served in Pakistan w.e.f. 21.8.2010 to 8.11.2010 and07 00 09
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16.4.2014 to 22.4.2021 (2)Total sentence served 13 08 07 (3)Remission Earned in Pakistan 01 05 - (4)Total sentence including Remission Earned15 01 07 (5)Remaining portion of sentence 09 10 23 (6)Probable date of release 28.12.2030 Subject to revision 22. On 5.5.2021, the learned State Counsel tendered appearance before this Court and brought on record notification dated 22.4.2015 .whereby the Assistant Commissioner/Sub-Divisional Magistrate (Saddar), Islamabad Capital Territory had. been appointed as the Parole Officer under section 2(b) (f) of the Good Conduct Prisoners' Probational Rules, 1927 ("the 1927 Rules"). He submitted that by virtue of President's Order No.1 of 1970, the 1927 Rules would have the status of "existing laws" and therefore were applicable to the I.C.T. by virtue of section 19 of the said Order. 23. On 18.5.2021, the petitioner's counsel submitted an application before the Assistant Commissioner (Saddar), Islamabad, for the petitioner's release under sections 2 and 3 of 1926 Act. Vide order dated 11.06.2021, the Assistant Commissioner (Saddar), Islamabad held that the Secretary, MOI was competent to issue directions to the Provincial Government in whose jurisdiction the petitioner was under detention to process his case for remissions and parole. It was also observed in the said order that although the petitioner had committed a crime outside Pakistan and had been transferred to Pakistan under the 2002 Ordinance under which the Secretary, MOI was incharge of the affairs of such prisoners, this did not imply that the matters relating to remissions or release on parole of such prisoners would be dealt with by the Parole Officer of the I.C.T. CONTENTIONS OF THE LEARNED COUNSEL FOR THE PETITIONER:- 24. Learned counsel for the petitioner, after narrating the facts leading to the filing of the instant petition, submitted that on 23.7.2004, the petitioner was sentenced to imprisonment for a period of 25 years by a Court in the UK on the charge of conspiracy to traffic narcotics; that on 24.8.2007, an agreement was entered into between Pakistan and the UK on the transfer of prisoners from one country to the other; that on 21.8.2010, the petitioner was transferred to Pakistan in accordance with the terms of the said agreement as well as the provisions of the 2002 Ordinance; that after his transfer, the petitioner was to serve his remaining sentence in Pakistan; that under the laws of the UK, the petitioner would be entitled to release after serving half of his sentence; that the petitioner served half of his sentence on 22.6.2016; that the petitioner was released from prison on 8.11.2010 but was again taken into custody on 12.2.2014; that the petitioner served 6 years, 7 months and 28 days of his sentence in the UK; that according to the report dated 27.4.2021 submitted by the Superintendent, Adyala Jail, the petitioner has served 7 years and 9 days of his sentence in Pakistan; and that since cumulatively the petitioner has served more than 13 years, 8 months and 7 days, which is more than half of his sentence, he is entitled to be released on parole. 25. Learned counsel for the petitioner further submitted that vide notification dated 22.4.2015 issued by the office of the District Magistrate, I.C.T., the Assistant Commissioner/Sub-Divisional Magistrate (Saddar), I.C.T. was appointed as the Parole Officer under section 2(d) and (0 of the 1927 Rules; that the Assistant Commissioner, I.C.T. has the jurisdiction to decide the application dated 18.5.2021 submitted on the petitioner's behalf for his release on parole; that vide order dated 11.06.2021, an erroneous view was taken by the Assistant Commissioner, I.C.T. that since the petitioner was lodged in a jail situated in the Province of Punjab, the Secretary, MOI could give directions to the Government of Punjab to process his case for the grant of remissions and parole; that the Assistant
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Commissioner, I.C.T. had in the past passed several orders for parole and conditional release of convicts under the provisions of the 1926 Act; and that the Secretary, MOI, while deciding the petitioner's representation, had erroneously held that there was no probation department in the I.C.T., and that the petitioner could approach the provincial authorities through the jail administration. 26. Furthermore, it was submitted that the sentence awarded to the petitioner by the Court in the UK could not be enhanced or aggravated by the authorities in Pakistan; that had the petitioner been in prison in the UK he would have been entitled to automatic release under section 244 of the Criminal Justice Act, 2003 (which is an English statute) on account of having served half of his sentence; that the Hon'ble Supreme Court had held that the petitioner was entitled to post and pre-conviction remissions; and that this Court ought to declare that on the strength of the notification dated 22.04.2015, the Assistant Commissioner, I.C.T. had the jurisdiction to decide the petitioner's application for his release on parole, and issue a direction for the petitioner's application to be decided on Merits. CONTENTIONS OF THE LEARNED DEPUTY ATTORNEY-GENERAL:- 27. On the other hand, the learned Deputy Attorney-General submitted that although the UK's Ministry of Justice, vide email dated 2.3.2021, had informed the Pakistan High Commission in London that had the petitioner remained in the UK he would have considered for release after serving half of his 25-year sentence but in the said email it was clearly stated that the petitioner was subject to the Pakistani release arrangements; that the provisions of the Criminal Justice Act, 2003, being an English statute, could not be made applicable to the petitioner in Pakistan; that…
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