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Criminal Petitions for Special Leave to Appeal Nos. 34‑R(S) 39‑R(S) of 1985, decided on 17th June, 1985.
(From the judgment/order dated 20‑2‑1985 of the Federal Shariat Court, Islamabad, in Criminal Appeal No. 6/1/1985 and Criminal Appeal No. 3/1 of 1985 respectively).
‑‑‑Art. 4‑‑Award of sentence of five years‑‑Punishment provided by Art. 4, Prohibition (Enforcement of Hadd) Order, 1979, being "imprisonment for life" or "imprisonment which was not less than two years" means that imprisonment cannot be less than two years but can be more than 2 years‑‑There is also limit on maximum which could not be more than imprisonment for life which would mean rigorous imprisonment for 25 years‑‑Award of sentence of 5 years therefore, was lawful.‑‑[Sentence].
Javed Shaikh v. The State 1985 S C M R 153 mentioned.
Muhammad Munir Peracha, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioners (in both Criminal Petitions).
Nemo for the State (in both Criminal Petitions).
Date of hearing: 21st May, 1985.
‑‑ Same question of law has been raised in these two petitions. They are, therefore, being disposed of together.
Leave to appeal has been sought from two separate judgments of the Federal Shariat Court, dated 20th February, 1985; whereby the conviction of and various sentences awarded to, the two petitioners, for the offence under Article 4 of the Prohibition (Enforcement of Hadd) Order,' 1979, were affirmed.
One of the sentences awarded to the petitioners is 5 years' R.I. each. Learned counsel for the petitioners has in the very outset stated that the question of merits regarding finding of guilty having been concluded by concurrent findings of fact by the two learned Courts below, the same are not challenged in these petitions. The only question raised by him is regarding the legality of the sentence of 5 years' imprisonment awarded to each one of the petitioners.
The precise contention raised by the learned counsel in this behalf is that Article 4 provides for either of the two sentences namely, imprisonment for life or imprisonment for two years, therefore, a sentence of 5 years was not permissible in law. He further explained that Chapter III of Pakistan Penal Code including sections 53, 55 and 57 did not specify the period of imprisonment for life. However, regardless of the period a prisoner, sentenced to imprisonment for life, undergoes under the P.P.C. the same would be irrelevant under Article 4. Accordingly, tie concluded, that the petitioners could only be awarded the sentence of two years' R.I.
It is indeed an ingenuous argument. However, it fails on proper analysis of that part of the Article 4 which provides punishments. It, as amended by P.O. 12 of 1983 on 26‑12‑1983, reads as follows:‑
"4. Owning or possessing intoxicant:
(1) whoever owns .provided .
(2) whoever:‑
(i) imports, exports, . . . . . . . . . . . . . . ; or
(ii) finances the import, export shall be punished with imprisonment for life or with imprisonment which is not less than two years' and with whipping not exceeding thirty stripes, and shall also be liable to fine."
It has already been held by this Court in Javed Shaikh v. The State 1985 S C M R 153 that imprisonment for life under the Pakistan Penal Code is equivalent to 25 years imprisonment. Assuming that the argument of the learned counsel that the meaning given to this phrase as used in the Pakistan Penal Code will also have to be given to it when used in the afore‑reproduced Article 4, it would mean that the offence under this Article is punishable with rigorous imprisonment for 25 years or "with imprisonment which is not less than two years". Thus held, it would mean that the imprisonment cannot be less than two years but can obviously be more than 2 years. There is also the limit on the maximum which cannot be more than imprisonment for life which as interpreted in the case of Javed Shaikh would mean rigorous imprisonment for 25 years. Therefore, the sentence awarded to the petitioners of 5 years' R.1. is lawful. No other point has been urged. This petition fails and is accordingly dismissed.
M.B.A. Petition accordingly dismissed.
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