The Supreme Court urged courts and prosecutors to release the convict on probation by incorporating unpaid community service into the terms of the order.
The order the higher court was referring to is the Probation of Offenders Ordinance, 1960.
“The Crown and the courts, having regard to the nature of the offense and provided the order permits, should consider the application of a convict who volunteers to perform unpaid community service and , where appropriate, release the convict on probation incorporating unpaid community service as part of the terms of the probation order,” read a seven-page judgment written by Judge Qazi Faez Isa during the release of a young man on probation who was convicted of an offense under Section 489-F of the Pakistani Penal Code, 1860 as a check for over one million rupees issued by him was dishonored.
The court of appeal had upheld the conviction but reduced his substantial sentence to one year’s imprisonment while maintaining the fine and the penalty in default of payment of the fine.
The Lahore High Court upheld the decision of the Court of Appeal.
A divisional bench of the Supreme Court headed by Justice Isa heard the case.
The applicant’s solicitor asked the court to release his client on probation under the Offenders’ Probation Order 1960.
The judgment noted that a probation order, which imposed community service, benefited the offender, the community and the state, as it avoided the costs of keeping a convict in custody and also prevented prison overcrowding.
“The convict’s family unit is also not disrupted, and he can also keep his job, and if he studies, continue to do so. It is less damaging to self-esteem and prevents exposure to undesirable elements in prison,” the verdict added.
The judgment stated that by performing community service, the convict repaid society for their misdeeds and that it could also develop in the convict a sense of social responsibility and a sense of personal accomplishment.
“What appeals to us is the opportunity the community service order would provide for constructive activity in the form of personal service to the community, and the possibility of a change in perspective on the part of the offender. “, we read in the verdict.
Judge Isa, however, noted that recourse to the order was rarely made by the prosecution, defense or the courts, despite having existed for 62 years.
“One reason might be that it was not contemplated that a convict could be compelled to perform unpaid community service. But, (as noted above), the order does not preclude the incorporation of unpaid community service into a probation order.
The judge observed that the stated purpose of the order was to rehabilitate a convict as an honest, industrious and law-abiding citizen – which may well be achieved through community service”
Judge Isa also noted that in some countries a probation order is called a community service order.
“A renowned academic has highlighted the positive aspects of a community service order [including] restrict [the] growth in the number of prisons; reducing prison spending; allowing offenders to “pay back” for wrongdoing; does not target families of offenders; helps to counter the experience of alienation among offenders by offering them the opportunity to carry out constructive work in the community; promote social integration by enabling offenders to associate with volunteers and the recipients of their assistance; [and] redress by offenders in an atmosphere of cooperation with the community and not confrontation with authority,” the judgment reads.
“Reparation has an intrinsic moral value of its own and, from another point of view, reparation finds its greatest justification in ensuring that the offender does not benefit from the fruits of his crime. and offers offenders the opportunity to participate in society and develop a sense of belonging. social responsibility; undertake constructive work in the community; and provides a cheap human means of rehabilitation; contains a ‘bite’ element; and is flexible,” he added.
The verdict said that another positive element revealed by a study was that there was a “significant reduction in the rates of recidivism” or recurrence”.
The judgment stated that the first recorded use of what might amount to a community service order was made by the Holy Prophet Muhammad (peace_be_upon_him) when after the Battle of Badr a prisoner could win his freedom by teaching 10 Muslims to read and write. .
“A renowned Muslim jurist uses the phrase fida’ bil ‘amal in relation to the prisoners of the battle of Badr who had obtained their release on the teaching, which would translate to, obtain release because of your deeds. It may also constitute futuwwah,” the verdict read.
“Futuwwah in Islam is the spiritual ethical concept of chivalry, mercy, selflessness and generosity. It is said to be derived from the remarkable character of the Holy Prophet Muhammad (peace_be_upon_him) as mentioned in the Holy Quran, that he possessed a magnificent character,” he added.
The judge observed that a probation order, which includes performing community service, could also function as fida’ bil ‘amal. He added that Islamic Sharia, which included analogous precedents from Islamic jurisprudence, was a legally acceptable method of interpreting laws.
The judgment noted that it was stated on behalf of the petitioner that he had agreed not to commit any crime during the term of his probation; had agreed to pay an amount of Rs 45,000 (equivalent to the amount of the fine) to the plaintiff; and had agreed to remain on probation for a period of one year performing 100 hours of unpaid community service by work assigned to him by the Rawalpindi Parks and Horticulture Authority under the supervision of Rawalpindi Probation Officer.
“The applicant will be released on condition that he provides a personal guarantee,” he added.
The order stated that the Magistrate’s Court Judge would order the release of the petitioner on probation if he submitted the bond, incorporating the stated conditions, in the amount of Rs50,000 with a bond in the same amount.
“However, if the petitioner fails to comply with any of the conditions of his bond, the court may issue a summons to appear or a warrant for his arrest and, if after hearing the petitioner, the court is satisfied that he does not has failed to comply with any of the conditions of his bond, the court may convict him reinstating his original sentence and if the petitioner fails to pay the said indemnity, he will be dealt with in accordance with Article 6 (3) of the order” , he added.