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Criminal Revision No. 5/L of 1985, decided on 14th February, 1985.

‑‑‑S. 5‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Art. 11‑‑Probation, release on‑‑Petitioner found drunk and rowdy on road but neither injuring any person nor damaging property‑‑Petitioner also a first offender and penitent and ashamed of committing offence‑ Petitioner placed on probation for a period of one year, in circumstances.

Arif Iqbal Bhatti for Petitioner.

Nemo for the State.

Dates of hearing: 12th, 13th and 14th February, 1985.

The petitioner was convicted under Article 11 of the Prohibition (Enforcement of Hadd), Order, 1979, on the 31st of December, 1983, by Ch. Muhammad Bashir, Magistrate Ist Class at Lahore, and sentenced to 2 years, R.I., with whipping numbering 10 stripes. His appeal was dismissed by Malik Nazir Hussain Awan, Additional Sessions Judge, Lahore, vide order, dated 7th January, 1984. He, therefore, filed the present revision petition challenging his conviction and sentence.

2. The occurrence took place at 2‑30 p.m. on the 2nd of February, 1982 at Aziz Road, Misri Shah, Lahore. The police party headed by Manga Khan, A.S.I., saw the petitioner making noise and row. He was also found throwing brick bats on the persons passing by the road. He was, secured and found under the influence of liquor. His mouth was also smelling liquor. Consequently, he was sent to the police dispensary in the custody of two police‑constables for medical examination. The doctor after making usual observations took sample of urine to be sent to the Chemical Examiner for the detection of Alcohol. The report Exh. P.A. of the Chemical Examiner states that alcohol is detected in the sample of urine. The police, therefore, challaned the case.

3. The prosecution examined 4 witnesses in support of its case. Manga Khan, A.S.I. (P.W.3) supported the contents of his F.I.R. Rehmat Ali, Head Constable (P.W.2) who was accompanying Manga Khan supported him in all material respects. P.W.4 Maskeen Ahmad, Constable had taken the petitioner to the Police Surgeon. He brought a sealed parcel and gave it to the Investigating Officer on the second day. He then took the same sealed parcel and delivered it intact to the office of the Chemical Examiner. In his cross‑examination, he stated that he had accompanied Manga Khan, A.S.I. on raid.

4. Doctor Muhammad Farooq Akmal, Medical Officer deposed that he, on examination of the petitioner, found that his eyes were red, pupils dilated and reacting sluggishly to light. His tongue was dry, gait staggering while his mouth was smelling liquor. On the receipt of the report of the Chemical Examiner, he opined that the petitioner had taken liquor. The trial Court accepted the prosecution version and convicted and sentenced the petitioner as stated above. He has so far been in the Jail for about two months and a week as convict and about half a month as under trial.

5. It is contended by the learned counsel that the petitioner belongs to a respectable family and is repentant of what he did. He got married during the trial and has a son born to him. He further states that the petitioner is a first offender and it will be in the interest of the petitioner, the society at large, and also in accord with Islam if he is given a chance of reforming himself by letting him off on recognizance s for some time but be recalled and sentenced if he does not behave himself. It is pleaded that if the petitioner is sent back to the Jail to be in the company of hardened criminals, he may become himself a regular criminal. He, therefore, prays that he may be either given a conditional discharge or released on probation under the Probation of Offenders Ordinance, 1960.

6. It is to be noted that the principal object of punishment ought to be not merely the deterrence of offenders but also their reformation. In Islamic system of justice, this is rather the paramount goal and the deterrent punishment is meant not only to reclaim and reform the offenders but also to deter all others. The contention has much force but the offenders are to be given a chance, to reform before the punishment only, in appropriate cases. Certainly, a person who is himself penitent suffers more in mental agony and the shame of committing the offence. In such cases, only the Courts must appreciate the desirability of avoiding to send a first offender to jail for an offence which is not of serious character and thereby renouncing the risk of turning him into a regular criminal. The discretion thus should be exercised in favour of those who on account of first lapse in life, or because of mere thoughtlessness, inadvertence, ignorance, sudden temptation, uncontrolled impulse, under the influence of others or by force of circumstances, commit offences, not of very serious nature and are, after the event, truly penitent but not those experienced men of the world who deliberately flout law and commit offences which they realize would be strongly condemned by the society.

6‑A. I think that the prayer made by the learned counsel, in the circumstances of this case is reasonable. The charge against the petitioner was that he while drunk was rowdy on the road. He had not injured anyone that for and damaged no property. He is present on bail in Court and offers to be ashamed of his alleged conduct. Therefore, keeping in view the nature of the offence, and the other circumstances, I think it is expedient, that instead of sentencing him at once, to make a probation order requiring him to be placed under the supervision of the Probation Officer, Lahore, for a period of one year. The petitioner shall keep peace and will abstain from intoxicants and crimes. The petitioner has filed a bond in the sum of Rs.25,000, with two sureties The bond shall be sent to the Assistant Commissioner, Lahore, who shall verify the addresses of the trustees and see if they have a fixed abode. The petitioner shall visit the Probation Officer at least once a month. The Probation Officer shall at the end of the year, submit his report about the behaviour and conduct of the petitioner. The case shall come up after one year has passed. In the event of any breach of the undertaking of the bond, the Probation Officer may apply to this Court for necessary action.

S.G.D. Order accordingly.

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