2021 LHC 7219
Principle of sentencing which emerge from different sentencing theories, delineated as under;
1. Deterrence
2. Incapacitation
3. Rehabilitation
The above theories broadly look to the consequences of punishment. They are all forward‐looking theories of punishment. They focus more on the future benefits that may convert a loathsome to a useful citizen. The shared goal of all three is crime prevention.
4. Retribution
“Let the punishment fit the crime” captures the essence of retribution which is based upon the principle of just deserts; it advocates the proportionality of sentence with acclaimed crime. it defines justice in terms of fairness and proportionality. Ideally, the harshness of punishments should be proportionate to the seriousness of crimes. In reality, it is difficult to match punishments and crimes, since there is no way to objectively calibrate the moral depravity of particular crimes and/or the painfulness of specific punishments. Retribution is a backward‐looking theory of punishment. It looks to the past to determine what to do in the present.
No legislated mitigating factors for reduction in sentence is available in our criminal justice system to meet the situations except some judicial precedents of superior courts which are usually followed; however, for enhanced sentence in general law section 75 of PPC holds the field, primarily dealing with repetition of offence punishable under Chapter XII or Chapter XVII of this Code with imprisonment of either description for a term of three years or upwards. Similarly, section 382-C Cr. P.C. gives a command to the court to pass an enhanced sentence in case accused takes a frivolous plea.
Certain offences in PPC and special laws provide minimum ceiling of sentence, which requires the court not to go down from that threshold yet for other offences, court can consider any mitigating and aggravating factor to pass sentence accordingly.
Non-availability of mitigating factors in any form of legislation gives wide powers in the realm of discretion which is though exercised by the courts, yet not with a uniform approach and system experiences some flagrant approaches in sentencing zones. Thus, provincial legislature has attempted to fill out this vacuum through promulgation of the Punjab Sentencing Act, 2019, yet it has not been operationalized so far because as per sub section-3 of section-1 of such law, it shall come into force on such date as the Government may, by Notification in the official Gazette, appoint.
This section in converse proposes that if such aggravating factors are not available, then court can go down the line. However, leaving a side the law under discussion, punishment must be scaled in proportion to the effects of crime and the antecedents of offenders being potential to commit the crime/offences.
Law is variant and is amended with the passage of time to meet the emerging needs giving space to the institutions privy to the system that could effectively handle the situation depending on the direct field experiences and are ready to assist the court in arriving to effectuate the just desert principles in the field of sentencing. This need legislature felt in year 2017 when Punjab Criminal Prosecution Service (Constitution, Functions And Powers) Act, 2006 was amended and a new sub section 8 to section 9 was introduced.
By virtue of such amendment prosecutors have been given a say even to speak for accused in the matters of sentencing. Above special Act has an overriding effect, requires the prosecutor to assist the court with proposals for proper sentencing during the trial. Obviously, an appeal is a continuation of trial for all purposes and intent; therefore, they should do play their part before this court as well. Learned DPG was also heard in this respect who has also raised no objection to the alternate request of counsels for reduction of sentence.
Crl. Appeal:231377/18
Amir Saleem Vs The State etc
Mr. Justice Muhammad Amjad Rafiq
25-11-2021
2021 LHC 7219
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