Sentence Without Hearing: The Need for Mandatory Sentencing Guidelines and Hearings In Pakistan

SENTENCE WITHOUT HEARING: SENTENCE WITHOUT HEARING: THE NEED FOR MANDATORY SENTENCING GUIDELINES AND HEARINGS IN PAKISTAN By Barrister Rafique Ahmed Shaikh1 Introduction The Pakistani criminal justice system lacks consistency, transparency, and predictability in the process of sentencing due to the absence of sentencing hearings and guidelines following a guilty verdict by the Courts. This absence of sentence hearings and guidelines, coupled with wide discretion of judges in awarding sentences to the offender within a broad statutory range of punishment, often results in inconsistent and unpredictable sentence for offenders convicted of the same crime, even by the same judge in similar circumstances. This inconsistency and ambiguity potentially violate right to a fair trial and equal treatment as guaranteed under Articles 10-A and 25 of the Constitution of Pakistan, 1973.2 This paper studies the need for mandatory sentencing guidelines and hearings in Pakistan in light of inconsistency, unpredictability, and ambiguity in Pakistani criminal justice system. Concept of Sentencing Hearing and Guidelines A Sentencing hearing is a term which refers to a hearing when the judge or magistrate decides what punishment an offender will receive.3 Most often, this hearing occurs after the offender is found guilty and now the proportionate and appropriate punishment is to be decided for the offender. This hearing provides opportunity to not only the offender s counsel but also the prosecution to present the mitigating and aggravating factors to influence the appropriateness and proportionality of the sentence. Whereas, Sentencing guidelines are defined as set of standards that are generally put in place to establish rational and consistent sentencing practices within a particular jurisdiction.4 The main object of these guidelines is to eradicate inconsistency, unpredictability, arbitrariness, and ambiguity in sentencing and limiting the subjective judicial discretion by providing clear parameters for the judges to follow while sentencing the offender. Section 53 of Pakistan Penal Code, 1860 ( P.P.C., 1860 ) provides various types of punishments ranging from fines to death penalty. Together, P.P.C., 1860 mostly provides a wide range of discretionary gap in awarding a sentence for a particular offence e.g., may extend to three years,5 may extend to twenty five years but shall not be less than ten years,6 however, it is mostly silent on giving any directions or guidance for navigating the wide range of judicial discretion in sentencing decisions. Hence, this legislative gap has given unnecessary broad discretionary power to the judges. Comparative Development: United States and United Kingdom The power of sentencing in United States with time shifted from the hands of jury to judges on the basis of rehabilitative model, where judges viewed crimes as moral diseases rather than viewing criminals as inherently evil, which was not the case with jury.7 Nonetheless, this system was majorly criticized due to an unpredictable nature of judges discretion in giving inconsistent punishment to individuals for same crimes, leading to significant reform. In this reform, Judge Marvin E. Frankel was seen as an instrumental in highlighting the danger of broad discretion in the hands of judges which he exposed through his book Criminal Sentences: Law Without Order, leading to the implementation of Sentencing Reforms Act, 1984.8 This statute provided for mandatory sentencing guidelines with the aim of promoting consistency in sentencing across the country and constraining the unnecessary judicial discretion in handing down sentencing.9 However, this mandatory nature of these guidelines in United States was later made advisory after the ruling of the U.S. Supreme Court in United States v. Booker10 due to the concept of jury trial under US Constitution s Sixth Amendment. Nonetheless, these guidelines in the U.S. continue to guide judges in sentencing decisions.11 In England and Wales, the concept of bringing consistency in sentencing and limiting the judges discretion started in early 1980s when Court of Appeal started issuing sentencing guidelines, though limited in nature and based on particular crimes.12 Later on, the Crime and Disorder Act, 1998 was enacted to create a Sentencing Advisory Panel13 which was further advanced with Criminal Justice Act, 2003 and Coroners and Justice Act, 2009, leading to creation of Sentencing Guidelines Council for England and Wales.14 Under Section 125(1) of Coroners and Justice Act, 2009, the Courts are bound to follow these guidelines except where these guidelines are found to be against the interests of justice. These guidelines continue to provide consistency, transparency, and fairness in sentencing practices across the board where not only judges but the lawyers also have a clear idea of likely sentence range an offender may receive. Discretion and Inconsistency in Pakistan s Sentencing System In Pakistan, laws dealing with different crimes such as theft,15 extortion,16 cheque fraud,17 provide maximum punishments of three years, however, they do not offer any guidance to the judges on the minimum threshold. This results in the punishments for the same crime to vary significantly on the basis of subjective test of the judge s discretion, which sometimes result in harsher sentences in one case and more lenient penalties in other identical cases. This system of inconsistency based on subjective test of judge appears to be not only inefficient, and arbitrary but potentially in violation of Article 10-A and Article 25 of the Constitution of Pakistan, 1973 which protects the right to fair trial and equal treatment. One of the notable examples of inconsistency in Pakistani sentencing system was witnessed in the judgement of the Supreme Court of Pakistan in Adeel Rasheed v. State18 wherein the Petitioner received a rigorous punishment of three years from a trial Court in 489-F, P.P.C., 1860, which sentence was also upheld by the High Court. However, the Supreme Court, by invoking Probation of Offenders Ordinance, 1960, released the Petitioner on probation despite upholding the conviction, when this offer was made by the Petitioner s counsel after finding no escape from conviction.19 This pattern is very common in Pakistani appellate Courts when all avenues of acquittal have failed, offenders counsels make fallback argument of requesting reduction in sentence on the basis of mitigating circumstances.20 Unfortunately, such opportunities are not available at a trial stage due to the absence of sentencing hearings. Recent Legislative Developments in Pakistan After the Supreme Court s acknowledgement on lack of sentencing guidelines in Pakistan in case of Muhammad Juman v. The State,21 the Punjab Sentencing Act, 2019 and Khyber Pakhtunkhwa Sentencing Act, 2021 were passed by their respective Provincial Assemblies. Under these Acts, the Criminal Courts of these provinces have a mandate to consider mitigating and aggravating factors during sentencing, including the seriousness of offence, harm, intent, previous record, age, remorse and cooperation of the offender, among others.22 These both above Acts provide different zone categories for sentencing23 and even 1/4th reduction in custodial sentences for the offer of early guilty pleas by the offenders.24 Under these Acts, Sentencing Councils are required to be established to work towards the sentencing guidelines.25 Nonetheless, despite the passage of more than four years, no substantial progress has been observed towards the work on sentencing guidelines for each crime so as to ensure consistency in sentencing. Together, the application remains only limited to two provinces, leaving other jurisdictions without any structured guidance. Challenges in the Absence of Sentencing Hearings. The present judicial system in Pakistan does not provide for a provision of a separate sentencing hearing after the Court has found the offender guilty. This absence of crucial hearing significantly impacts the offender s right to put mitigating circumstances before the Court which mitigating circumstances may play a vital role in reduction of the offender s sentence. It also impacts the right of prosecution and victim to put forward aggravating circumstances. In present system, trial Courts are regularly pronouncing both the guilt and sentence of the offender in one judgement without hearing additional arguments from the defence or prosecution on sentencing. Consequently, vital mitigating circumstances are regularly ignored by the trial Courts which later become a burden for appellate Courts as discussed above. While awarding sentencing and without hearing the defence or prosecution separately on mitigating and aggravating circumstance, judges often rely on their subjective discretion and personal experience or expectation regarding the sentencing norms, which has resulted in major inconsistencies in sentencing nationwide. Due to this, lawyers frequently recourse to judge s past conduct, particularly in petty offences such as gambling, and speculate on the likely punishment with fine or imprisonment. These practices and uncertainties in sentencing are clear result of absence of sentencing guidelines and separate sentencing hearings in Pakistan criminal justice system. Nonetheless, the argument against the separate hearings is put forth with the potential for the offenders to abscond between the gap in conviction and sentencing hearing. However, this risk can be easily reduced through the legislative reforms by allowing the Courts to detain the offenders after the guilty verdict and deciding the fate of sentence within a short period of time and after providing sentencing hearing to the offender and prosecution. Recommendations A uniform national sentencing framework should be introduced in Pakistan through Parliamentary legislation to ensure consistency, transparency and predictability in sentencing by eliminating unnecessary discretion of judges. A national Sentencing Council or Commission should be established with members from all backgrounds including legal experts, criminologists, psychologists, social workers, victim advocates, and representatives from civil society to draft crime specific sentencing guidelines that reflect both social and legal considerations. Alternatively, Sindh, Balochistan and Islamabad should introduce their own separate Sentencing Councils or Commissions with above objects, while existing Punjab and KPK statutes must be fully implemented to provide detailed, crime specific sentencing guidelines. The sentencing guidelines by the Sentencing Council or Commission should be made binding on Courts with the provision of diversion only in exceptional cases with strong reasons of disagreements. Together, judicial trainings must be made necessary for each major upgrade in sentencing guidelines to ensure the smooth and consistent usage of guidelines and equipping judges with proper tools and knowledge in application of these guidelines fairly and consistently. Apart from sentencing guidelines, legislatures must provide for the procedural reform of requiring mandatory separate sentencing hearings to avoid further inconsistencies in all criminal trials after the guilty verdict by the Courts. This separate sentencing hearing would not only allow the offender to put forth mitigating circumstances but also allow the prosecution with the opportunity of placing aggravating factors before the Courts, hence ensuring right of fair trial for all the parties and allowing balanced outcomes. Together, the legislature should provide a statutory timeframe for scheduling separate sentencing hearings after the guilty verdict to not only avoid delays but also ensure procedural safeguards by empowering Courts to seek victim impact statements and psychological evaluations of the offenders. Conclusion The absence of proper sentencing guidelines and separate sentencing hearings in Pakistani criminal justice system is a major contributor to unpredictability and inconsistency in sentencing leading to frequent unjust sentencing based on judges subjective analyses and discretion. Although Punjab and KPK have started initiatives, however, much work and reforms are yet pending. In absence of proper legislative reform, especially at the national level, judicial discretion will remain unchecked and inconsistently applied, thereby undermining public trust in the judicial system. Therefore, to avoid further harm and inconsistency, implementation of detailed sentencing guidelines for each crime and providing post-verdict sentencing hearings are crucial for a transparent, fairer and more accountable criminal justice system. 1 Mr. Ahmed is a practicing Barrister based in Karachi and a faculty member at Ziauddin University Faculty of Law, Politics and Governance. 2 Constitution of Pakistan, 1973, Arts. 10-A and 25 3 UK Sentencing Council, Sentence hearings 4 Richard Frase and Kelly Mitchell, What Are Sentencing Guidelines? (Robina Institute of Criminal Law and Criminal Justice) (2018) 5 Pakistan Penal Code, 1860, s.117 (Abetting), s.148 (Roiting, armed with deadly weapon), s.181 (False Statement), s.337-H (Hurt by rash or negligent act), s.379 (Punishment for theft), s.384 (Punishment for extortion), s.489-F (Dishonestly issuing a cheque) and others 6 Pakistan Penal Code, 1860, s.303 7 Nancy Gertner, A Short History of American Sentencing: Too Little Law, Too Much Law, or Just Right (Vol 100) (Journal of Criminal Law and Criminology) (2010) 691-708 (Issue 3) at p.695 8 Jon O. Newman, The Federal Sentencing Guidelines: A Good Idea Badly Implemented (Vol 46) (Hofstra Law Review) (2018) 805-826 at p.805 9 18 U.S.C. 3553(b) 10 United States v. Booker 543 U.S. 220 (2005) 11 Frank Bowman III, Nothing is Not Enough: Fix the Absurd Post-Booker Federal Sentencing System (Vol 25) (Federal Sentencing Reporter), (University of Missouri School of Law Scholarship Repository) (2012) p.7-8 12 UK Sentencing Council, History 13 Crime and Disorder Act, 1998, s.81 14 Criminal Justice Act, 2003, s.167 15 Pakistan Penal Code, 1860, s.379 (Punishment for theft) 16 Pakistan Penal Code, 1860, s.384 (Punishment for extortion), 17 Pakistan Penal Code, 1860, s.489-F (Dishonestly issuing a cheque) 18 Adeel Rasheed v. State PLD 2022 SC 795 19 Adeel Rasheed v. State PLD 2022 SC 795 [3] 20 Muhammad Ashraf v. The State 1994 SCMR 667; Zulfiqar Ali v. The State 2025 SCMR 100; Sona Khan v. The State 2024 YLR 504 (Sindh) and Illahi Bux Bajkani v. The State (Judgement Dated 08.11.2022) (Cr. Appeal No. D-31/2022) (High Court of Sindh, Circuit Court Larkana) and others 21 Muhammad Juman v. The State 2018 SCMR 318 [7] 22 Punjab Sentencing Act, 2019, Ss.6-7 and Khyber Pakhtunkhwa Sentencing Act, 2021, Ss.6-7 23 Punjab Sentencing Act, 2019, S.13 and Khyber Pakhtunkhwa Sentencing Act, 2021, S.13 24 Punjab Sentencing Act, 2019, S.12(a) and Khyber Pakhtunkhwa Sentencing Act, 2021, S.12(a) 25 Punjab Sentencing Act, 2019, S.16 and Khyber Pakhtunkhwa Sentencing Act, 2021, S.16