1991 P Cr (PLP)

TANZIL-UR-REHMAN, CJ.

This is a criminal revision under Article 203-DD of the Constitution filed on behalf of the State against the judgment, dated 3-5-1990 passed by Mr. Mumtaz Ali Qureshi, Assistant Commissioner/Magistrate 1st Class, Chishtian for enhancement of sentence awarded to the respondent.

2. The respondent was found in possession of 20 grams of opium on 16-3-1990. He was challaned and sent up to face the trial before the learned Assistant Commissioner. At the very start of the trial the respondent voluntarily confessed his guilt and having repented over the act prayed the Court that he may be forgiven. The learned Assistant Commissioner, in view of the above, convicted the respondent under Article 4 of the Prohibition Order, 1979 and awarded the respondent sentence of imprisonment till rising of the Court with fine of Rs.200 and in default there of S.I. for two months.

3. Mr. Mansoor Alamgir Qazi, Assistant Advocate-General Punjab, Lahore submits that the sentence awarded by the learned Assistant Commissioner is inadequate and there are no mitigating circumstances- for awarding such a light sentence. The contention does not seem to be correct inasmuch as cogent reasons for awarding the light sentence to the respondent have been found by the learned Assistant Commissioner i.e. the voluntary confession and the small quantity of only 20 grams of opium. The respondent is a first offender and having repented over the act prayed for forgiveness. These are the circumstances, which have prevailed upon the learned Assistant Commissioner for awarding the light sentence.

4. There can be no cavil on the point that the choice to determine the,, quantum of sentence lies with the discretion of the trial Court and when the '', discretion seems to have been exercised judiciously, the superior Courts do not' interfere with it. We may further point out that the spirit of the law of Prohibition (Enforcement of Hadd) Order (4 of 1979) is to eliminate the social evil and reform the society. The purpose of sentencing the convict is not to torture but to tutor him the civility. If the accused comes forward in a case liable to Ta'zir and at the earliest stage confesses his guilt and repents over the act and prays for forgiveness, the law always leans in favour of such an accused and the Court may take into consideration the mitigating circumstances for awarding sentence and is not bound to award the maximum sentence provided in the statute. The Court may award such sentence or sentences as deemed fit and proper in the circumstances of the case, unless the statute itself fixes some minimum sentence which the Court is bound to award in any case on the guilt having been proved by evidence or confession. It may, however, be clarified that if the accused is found guilty or' confesses his guilt for the offence liable to Hadd, the Hadd punishment cannot be waived, pardoned or reduced, as an offence liable to Hadd punishment stands on a different footing and Courts have no discretion to mitigate the sentence or award lesser punishment, if proved by requisite evidence or confession.

6. In the instant case, had it been a big quantity of opium recovered from the possession of respondent we would have interfered in the case with the) discretion exercised by the Assistant Commissioner but the quantity of opium _ being very small, we do not feel inclined to interfere with it, in exercise of our I criminal provisional jurisdiction. The revision is, therefore, dismissed in limine. M.B.A./580/F.S.C. Petition dismissed.