SC emphasises utility of deterrent punishment

Says such punishment maintains balance and sets an example for others

ISLAMABAD:

The Supreme Court has emphasised the utility of deterrent punishment in criminal cases, stating that such punishment maintains balance with the gravity of the wrong done by a person and also makes an example for others.

"The purpose behind the infliction of a sentence is two-fold. Firstly, it creates an atmosphere that deters people who have an inclination towards crime, and secondly, it serves as a means of reforming the offender," said a 13-page judgment authored by Justice Ishtiaq Ibrahim.

Justice Ibrahim was part of a three-member bench led by Justice Muhammad Hashim Khan Kakar, which upheld the death sentence of an individual involved in the murder and rape of a five- to six-year-old girl.

The judgment noted that the trial court awarded the sentence of death to the petitioner-convict under Sections 302(b), 364-A and 376 of the Pakistan Penal Code (PPC), and the same was later confirmed by the high court.

"The kidnapping of a minor girl aged five to six years by the petitioner-convict in daylight from an open bazaar, then committing her rape and sodomy inside his house, murdering her, placing her body in a sack and throwing it away are acts of such brutality and gruesomeness that any leniency would amount to extending a premium to such offenders and leaving society under threat."

The judgment noted that while the accused is the favourite child of law, the court owes a duty to society and to the legal heirs of the victim.

"The sentence awarded to an offender should be such that it acts as a deterrent to the commission of offences. Conceptually, a sentence is awarded to an offender on the basis of retribution, deterrence, or reformation."

It said deterrent punishment is not only to maintain balance with the gravity of the wrong done by a person but also to make an example for others as a preventive measure for the reformation of society.

"The concept of minor punishment in law is an attempt to reform an individual wrongdoer. However, in the present case, where the petitioner-convict abducted a minor girl, committed rape and sodomy, and then murdered her, no leniency should be shown."

"The sentence of death would create deterrence in society, due to which no other person would dare to commit such an offence.

"If in such cases any lenient view is taken, peace, tranquillity and harmony in society would be jeopardised and vandalism would prevail. Very wide discretion in matters of sentencing has been given to the courts, which must be exercised judiciously," the judgment said.

The court held that the prosecution had proved the kidnapping of the minor by the petitioner-convict, the commission of rape and sodomy upon her, and her subsequent murder through strong and confidence-inspiring last-seen evidence and circumstantial evidence supported by medical evidence beyond any shadow of reasonable doubt.

The court observed that the cumulative effect of the evidence brought on record unmistakably leads to the conclusion that the chain of circumstances is complete and coherent, giving rise to a reasonable and irresistible inference that the petitioner committed the offence.

Each circumstance so established is consistent only with the hypothesis of the guilt of the petitioner-convict and is incompatible with any reasonable hypothesis of innocence.

The court further noted that the petitioner-convict neither opted to appear as a witness in terms of Section 340(2) of the Code nor produced any evidence in his defence.

"His bare denial in the statement recorded under Section 342 of the code, being a statement not made on oath and not subject to cross-examination, does not by itself rebut the prosecution evidence or discharge the burden cast upon him once the prosecution has succeeded in establishing a prima facie case."

The court said if the place of incident is such where no witness was available and the accused had exclusive knowledge about the incident, a simpliciter denial by the accused would not be sufficient to nullify circumstantial evidence that directly connects him with the commission of the offence charged.

"But the accused must raise a plea which, when tested on the touchstone of probabilities, warrants a reasonable hypothesis of innocence," it said.