Back to Table Of Contents
PART B -- SENTENCES
1. Enhanced punishment under section 75 Pakistan Penal Code.- Under section 75 of the Pakistan Penal Code, a person convicted a second time of an offence punishable under Chapter XII or Chapter XVII of the code, with three years' imprisonment and upwards is liable to a greatly enhanced sentence.
*
[2. Procedure for Magistrates not competent to award enhanced punishment.- This of course, does not increase the competence of the Court trying the offender; but section 348 of the Code of Criminal Procedure gives the Magistrate a discretion to try the case himself, if in his opinion, an adequate sentence can be passed by him. If the Magistrate is unable adequately to punish the accused person, he should send such person to the Court of Session or High court.]
3. ***[Omitted].
*
[4. Procedure when Magistrate cannot punish adequately.-- Where a Magistrate finds he is unable to punish an offender adequately, he should under section 347 of the Code of Criminal Procedure, send the case for trial to the Court of Session or High Court.]
5. Enhanced punishment not obligatory.-- Although section 75 of the Pakistan Penal Code makes a previous convict in certain classes of cases liable to enhanced punishment, it is of course, not obligatory to impose an enhanced sentence in every case of this description. In deciding whether an enhanced sentence under this section is needed and whether the case should be sent to a ***[...] Magistrate empowered under section 30 of the *[Code of Criminal Procedure] or committed to the Sessions Court, the Magistrate should fully consider all the circumstances of the present offence as well as the past convictions.
Enhanced punishment not suitable in petty cases or in cases of old convictions.-- Ordinarily, cases of petty nature (e.g., thefts of small quantities of food, clothes, utensils etc.) should be left to First Class Magistrate, unless the nature, number and sequence of previous convictions and the sentences previously undergone clearly show the necessity of a higher sentence than two years' imprisonment. Similarly, very old convictions (e.g., when the offence is committed say, more than five years after the last release of the offender from jail) should not ordinarily be made a ground, for imposing an enhanced penalty under this section in the absence of special reasons.
Case of organised crimes.-- Cases of organised crime stand on a different footing, and where the offence under trial and the previous offences are of this description greater weight must be attached to them.
Enhanced punishment suitable when previous convictions indicate a criminal habit which needs to be checked by deterrent punishment.-- The General principle to be borne in mind is that section 75 is meant to be used as a deterrent only when the punishment provided for the offence itself is considered to be inadequate in view of the antecedents of the offender. The judgments in the previous cases should be referred to freely in order to ascertain the real character of the offender and the section should not be resorted to unless the previous convictions indicate a criminal habit or instinct which needs to be checked by a punishment higher than that provided for the offence.
It should also be remembered that a moderate sentence or an order of restriction under the Restriction of Habitual Offenders Act, is generally a better way of dealing with habitual offenders than the imposition of long term of imprisonment.
6. Previous conviction for attempts to commit an offence not covered by Section 75, Pakistan Penal Code.-- ***[...] Previous convictions for attempts to commit offences specified in section 75 or a security order under section 110, Criminal Procedure Code, do not bring an offender within the scope of section 75, Pakistan Penal Code.
7. ***[Omitted].
*
[8. Action to be taken by Magistrate of 2nd or 3rd Class when he cannot award adequate punishment.- Section 349 of the Code of Criminal Procedure gives a Magistrate of the second or third Class the means of securing the proper punishment of an accused when he finds, in the course of the trial, that the maximum sentence which he is empowered to inflict would be insufficient. At the same time, in resorting to this section, it must be remembered that, when the accused appears to be a habitual offender and the Magistrate thinks that he ought to receive more severe punishment than he is competent to inflict, he should forward the accused to a Magistrate of the Ist Class specially empowered in this behalf by the Provincial Government.
9. Duty of the Police to prove previous conviction. Discovery of previous conviction after Judgment has been pronounced.- It is the duty of the Police, in conducting the investigation, to take proper steps to establish the identity of an accused person and to obtain and produce evidence of previous convictions against him for the discovery, subsequent to sentence, that the prisoner was a previous convict, but that this had escaped notice on account of a change of name is not in itself a ground for interference on appeal or revision.]
10. Previous convictions to be noted on the warrant of commitment and in a separate statement. Note on the warrant when the identity of the prisoner has not been proved or he declines to give an account of himself.-- In Punjab Government Circular No. 43-1077, dated the 29th July, 1870, the Criminal Courts of the Province were instructed to enter any previous conviction or convictions of prisoner upon the warrant committing him to jail, and the attention of all Magistrates is directed to these instructions. In the form of warrant of commitment prescribed for use under the Code of Criminal Procedure, provision had been made for mention of the fact that the convict has been previously convicted, when one or more previous convictions have been proved against him at his trial, and for the entry of the particulars of the previous convictions in a separate statement, which should be attached to the warrant of commitment in such cases.
***
[...] The Magistrates, when committing a prisoner to jail, will enter a note in red ink on the warrant of commitment, in cases where the identity of the prisoner has not been satisfactorily ascertained, or he declines to give an account of himself.
LHC - Shahrah-e-Quaid-e-Azam - Lahore - Pakistan
Computer Cell, Lahore High Court.
Comments Or Suggestions to webmaster@lhc.gov.pk
For Further Information: info@lhc.gov.pk