Professor Geraldine Mackenzie in her book ‘How Judges Sentence’ averred: “sentencing is an attempt to juggle object of various sizes while walking a tight rope which is being shaken at both ends”. The Supreme Court of Pakistan in ‘Nadeem vs The State’ held: “the question of sentence demands utmost care on the part of the court as it concerns the life and liberty of an accused”.
Indisputably, sentencing is the most challenging stage of a criminal trial. Ideally, its performance demands a special set of skills, professional training, inter-disciplinary approach and empirical research. As per modern penal theories, a just sentence is a blend of a multitude of aggravating and mitigating factors. Therefore, a judge must make a genuine effort to extract from the accused all the information required to reach a just and informed decision.
With the objective to facilitate judges, many jurisdictions in the world have introduced the concept of ‘right to pre-sentence hearing’ in criminal trials. The right to pre-sentence hearing proposes that a criminal trial comprises two distinct stages. The first stage deals with the determination of guilt (conviction), while the second deals with the determination of punishment (sentencing). The sentence follows the conviction and is not, by any stretch of imagination, the same thing as conviction.
In the US, sentencing is regulated by the Sentencing Reform Act, 1984 and the Federal Sentencing Guidelines, 1987. In England and Wales sentencing guidelines are explicitly provided in the Criminal Justice Act, 2003, the Coroners and Justice Act, 2009 and the Legal Aid, Sentencing and Punishment of Offenders Act, 2012. In both jurisdictions, the criminal statutes explicitly recognise the right to pre-sentence hearing. In every criminal trial, the judge and attorneys (after conviction) mutually agree on a sentencing date, a probation officer is deputed to submit a Pre-sentencing Investigation Report (PSIR) in the court. The PSIR is basically an exhaustive report on various mitigating and aggravating factors. For instance, a defendant’s juvenile and adulthood record, prior criminal and parole record, gang affiliations, community ties, possibility of rehabilitation, substance abuse history, mental health, education, skills, financial condition, employment history and circumstances of the offence.
In Pakistan, the humane art of sentencing continues to remain flawed as criminal trials are overwhelmingly dedicated to finding out whether the man in the dock is guilty or not. The Criminal Procedure Code, 1898 (CrPC) fails to present a consistent sentencing policy. Moreover, the CrPC confers unstructured discretion upon criminal courts in relation to sentencing, which repeatedly result in inconsistency in defining the quantum of a sentence even in identical matters. The process of sentencing is regulated by a few insufficient sections, as they either categorise the sentences in respect of a court’s hierarchy or, at the most, clarify the concurrent character of the sentences.
There is no space for a separate pre-sentence hearing. Anything that the defendant intends to present before the court in relation to extenuating circumstances has to be done before the verdict is announced. Sentencing will remain flawed unless the conviction and sentencing stage of a criminal trial is bifurcated, right to pre-sentence hearing based on the PSIR mechanism is added to our CrPC and sentencing guidelines are enacted by parliament.
In 2016, the Pakistan Bar Council also passed a resolution demanding amendments in the CrPC and providing the right to presentence hearing. However, so far no development has taken place in this regard. It is a matter of shame for us that even India, which inherited the same CrPC as us, amended it in 1973 and introduced the concept of pre-sentence hearing in Section 235 and 248 of the Indian CrPC.
Right to fair trial is an important facet of a democratic polity governed by the rule of law. Every person against whom a criminal charge has to be determined is entitled to a fair trial. It is a settled view in Pakistan that, whilst incorporating Article 10A (right to fair trial) in the constitution of Pakistan, the legislature did not intend to restrict its meaning. Therefore, the right to fair trial includes all stages of a criminal trial including sentencing. An amalgam of conviction and sentencing stages, no pre-sentence hearing and unguided sentencing discretion of the trial courts, patently infringe the constitutionally guaranteed right to fair trial.
Our lawmakers need to understand that the right to pre-sentence hearing is a cardinal principle of natural justice, and the presence of sentencing guidelines indicate the existence of a welfare society. It is not the punishment that counts but the method by which subjects are sentenced that speaks about the legitimacy and workability of the criminal justice system.
Whatever the quantum of a penalty may be, it should be awarded in a structured, reasoned and justifiable manner in light of modern sentencing guidelines. It needs to be remembered that a candy thief and a diamond thief cannot be sentenced on the basis of the same criteria.
The writer is a Lahore-based advocate of the high court.