' QAZI FAEZ ISA, C.J.---The petitioners through this criminal revision assail the judgment dated 16th April, 2009 passed by the Magistrate First Class, Dasht and order dated 25th April, 2009 passed by Sessions Judge, Mastung (hereinafter referred to as "the impugned judgment" and "the impugned order" respectively).
2. The facts of the case are that a complaint was submitted before the Magistrate on 29th September, 2008 against the petitioners alleging that they had hunted and killed two female Markhors and thus violated sections 8, 11, 13 and 19 of the Balochistan Wildlife Protection Act, 1974 ("the Act"). Subsequently, charge sheet (challan) dated 28th the things taken into possession) it was mentioned that two hides/skins of Markhors had been taken into possession. The Magistrate framed the charge on 21st February, 2009 and the petitioners pleaded not guilty.
3. The prosecution produced five witnesses; all of whom were serving in the Wildlife Department, respectively Saifuddin (PW-1), Muhammad Tariq (PW-2), Muhammad Ismail (PW-3), Gul Zaman (PW-4) and Ghulam Jailani (PW-5). The petitioners recorded their statements under Section 342 of the Criminal Procedure Code ("Cr.P.C.") but did not produce any defence witnesses. The learned Magistrate found the petitioners guilty and convicted each of them to a term of six months imprisonment and with a fine of three thousand rupees each and in default of payment of fine to undergo further simple imprisonment of twenty days. Against the said conviction Criminal Appeal No.7 of 2009 was preferred before the Sessions. Judge, who vide order dated 25th April, 2009 reduced the sentence awarded to the petitioners to the one which they had undergone (which I am informed was ten days) and reduced the fine to one thousand rupees each and in default whereof to undergo simple imprisonment of twenty days.
4. Learned counsel for the petitioners stated that the case against the petitioners is one of'no evidence, there was no eye-witness of the incident and .The two Markhor skins were not produced in court. He further stated that neither any gun nor any empty cartridges were recovered:
5. Ms. Sarwat Hina, the learned Additional Prosecutor General and Mr. Ameer Hamza Mengal, the learned Deputy Prosecutor General stated that the revision was not maintainable as the petitioners before the appellate court did not contest their appeal on merits, but simply sought a reduction in the sentences awarded to them and the learned Sessions Judge accepted their plea and reduced the sentence of imprisonment to the one already undergone. It was further stated that no reason was given why the sentence was reduced. The maximum sentence that could have been awarded was an imprisonment of two years and the Magistrate had already taken a lenient view by sentencing the petitioners to only six months imprisonment. Regarding the reduction in the imposition of fine the same was not contested as the fine prescribed in section 19(1)(a) of the Act, in respect of an offence under section 8 for which the petitioners were convicted, was, "imprisonment which may extend to two years or with fine which may extend to one thousand rupees, or with both" . It was lastly contended that under the circumstances the impugned judgment of the learned Magistrate to the extent of imprisonment may be restored as the petitioners had admitted their guilt, by not contesting the appeal on merits and they are now debarred to do so before the High Court in this criminal revision.
6. That, since the appellate court had not given any reason for reducing the sentence awarded by the trial court notice was issued to the petitioners to show why the sentence awarded by the, trial court should not be restored. In this regard the relevant portion from the order sheet of 11th November 2011 is reproduced hereunder:--- "Learned Addl: PG further states that the Sessions Judge has not recorded any reason why the sentence of imprisonment was reduced to one already undergone.
' Under such circumstances, and in view of the fact that there is no appearance on behalf of the petitioners, let notice be issued to the petitioners and their counsel to show why the sentence of imprisonment as imposed by learned Judicial Magistrate, Dash may not be restored".
7. That the learned counsel for the petitioners in response to the aforesaid notice requested for withdrawal of the petition, but the request was declined as notice for enhancement of sentence had been issued.
8. The learned Sessions Judge gave no reasons for the reduction of sentences. The learned Magistrate had already taken a lenient view and had sentenced. The petitioners to only six months' imprisonment, which was a quarter of the maximum sentence that could have been imposed. The Act was enacted in 1974, i.e. 39 years ago, and since its enactment the quantum of fine has remained static, i.e. a fine of one thousand rupees. The preamble of the Act seeks to preserve, conserve, protect and manage the wildlife of the province, but a fine of only one thousand rupees is neither a deterrent nor commensurate as a fine for the killing of protected specie. Over the last 39 years there has been a massive devaluation of the rupee; which has eroded the deterrence of the fine. The Magistrate had sentenced the petitioners to six months imprisonment, which was reduced to ten days by the Sessions Judge. The Magistrate had already been lenient in sentencing, and .The further reduction in the imprisonment sentence by the Sessions Judge was not justified, particularly without citing any reasons; and in doing so the Sessions Judge committed an illegality, which this court, exercising its revisional powers under section 439, Cr.P.C., can correct. Accordingly, the sentence to the extent of imprisonment imposed by the Judicial Magistrate is restored.
8. However, since the sentence is Of six months it attracts the provisions of the Probation of Offenders Ordinance, 1960 ("the Ordinance"), which permits release of offenders on probation. The High Court can exercise powers under the Ordinance when a case comes Ordinance). An offender can be placed "under the supervision of a Probation Officer for such period not being less than one year or more than three years (subsection (1) of section 5 of the Ordinance)." "While making a probation order, the court may also direct that the bond [executed by the offender] shall contain such conditions as in the opinion of the court may be necessary for securing supervision of the offender by the Probation Officer and also such additional conditions with respect to residence, environment, abstention from intoxicants and any other matter which the court may, having regard to the particular circumstances of the case, consider necessary for preventing a repetition of the same offence or a commission of other offences by the offender and for rehabilitating him as an honest, industrious and law-abiding citizen" (subsection (2) of section 5 of the Ordinance).
10. That the Probation of Offender s Rules, 1961 ("the Rules") made pursuant to the Ordinance, amongst other things, set out the duties of a probation officer, which include, encouraging probationers under their charge to make use of any recognized agency, statutory or voluntary, "which might contribute towards his welfare and general wellbeing, and to take advantage of the social, recreational and educational facilities which such agencies might provide (clause (d) of Rule 10 of the Rules)." And a probationer officer is required to, "carry out the instruction of the Court in regard to any probationer placed by the Court under his supervision (clause (g) of Rule 10 of the Rules)."
11. I had issued notices to the Advocate General and the Prosecutor General to address the query, "Whether whilst passing a probation order a condition can be imposed on the convict to render community service." I had also called upon them to, "brief the court as to how the duties of the Probation Officer are being carried out." In response to the first query the learned Additional Advocate General and the learned Additional Prosecutor General stated that to the best of their knowledge no court in Pakistan had required an offender placed under probation to render community service, however, the law does not forbid the same and they would have no objection if the petitioners are ordered to render community service for the duration of their probation. As regards the other query it appears that basically probationers are required to only periodically visit their probation officer. The learned counsel for the petitioners in response to the query whether the petitioners would be prepared to render community service, and if so, what particular community service would they have the ability to render, stated that the petitioners are prepared to render community service and being agriculturists could plant trees.
12. Professor. Shane Kilcommins of the Faculty of Law, University subject of community service orders ("The Introduction of Community Service Orders: mapping its 'conditions of possibility' "). The following excerpts are taken from the said paper: ' Ad hoc forms of community service existed prior to its inception in England and Wales in the early 1970s. In the 1950s in New Zealand, for example; a programme was initiated which combined a sentence of probation with a condition which required offenders to complete a number of hours of community work. The sanction of periodic detention was also introduced in 1962. It compelled offenders to attend a designated centre during their leisure time in the evenings or at weekends where they engaged in a number of constructive work activities in the community. In Australia, too, there appears to have been a non-statutory ad hoc practice of employing a form of community service for juvenile offenders. For example, two young offenders who had stolen from a collection box for the Flying Doctor Service were sentenced by a juvenile court in Alice Springs to spend a period of Saturday afternoons doing chores for the Flying Doctor Service. Similarly, in the early 1950s in the Federal Republic of Germany, Judge Karl Holzscuh began the practice of sentencing young offenders to perform constructive work tasks in the community. His efforts were greatly aided by the passing of legislation in 1953 which enabled German judges to apply a form of community service to juvenile delinquents. It also,. Importantly, made the German government's Youth Authority responsible for ensuring that the court orders were implemented. In October 1966, a Court Referral Programme was established in Alameda County in the United States. This programme, although not a formal part of the criminal justice system, was created so as to enable selected offenders to perform unpaid work in the community."
"Some individual judges in Canada in the mid 1970s began to use community service as a condition of probation. Such a practice was sporadic, however, with many judges sceptical about its legality. Once its legality was upheld [R v Shaw (1977) 26 CRNS 358], the practice became more widespread."
"By the early 1970s the symbolic power of the 'community' was repeatedly called upon to portray the criminal justice system in Manichean terms. The forces of light of the community (open, inclusive, natural, and facilitating the cultivation of a sense of belonging and fraternity) was increasingly ranged against the forces of darkness of the total institutions' like the prison `Prisons punish, but alienate. Community punishes, but reintegrates: it helps to create a moral conscience and assists offenders in rebuilding their social networks; boosting their morale; engaging in good deeds for others; and treating themselves and others with the respect they deserve' [Anthony Vass, Alternatives to Prison, 41]."
13. Professor Kilcommins notes the following positive aspects of community service orders in his paper:--
(a) Restricts growth of prison numbers;
(b) Reduces prison expenditure;
(c) Enables offenders to 'pay back' for their wrongdoing;
(d) Does not target the families of offenders;
(e) Helps combat experience of alienation in offenders by providing them with opportunity to perform constructive work in the community;
(t) Promotes social integration by enabling offenders to associate with volunteers and the recipients of their assistance;
(g) Reparation by offenders in an atmosphere of co-operation with the community and not in confrontation with authority;
(h) Reparation has an intrinsic moral value of its own, and on another view, reparation finds its greatest justification in ensuring that the offender does not enjoy the fruits of his crime;
(i) Provides offenders with the opportunity to participate in society and to develop a sense of social responsibility;
(j) Undertake constructive work in the community; and
(k) Provides a cheap humane way of rehabilitation, contains an element of 'bite', and is flexible.
14. The genesis of community service orders may well be the example set by Prophet Muhammad, peace be upon him. After the Battle of Badr (13th March 624 AD or 17th Ramazan 2 AH) each prisoner of war that was taken, could win his freedom by teaching ten Muslims to read and write.
The Prophet's example by offering offenders the option to make reparation by doing constructive work for the community may well be categorized as a community service order.
15. A community service order is a sentence imposed on an offender can require an offender to perform unpaid work for a number of hours as specified in the order, which may include but is not restricted to cleaning, clearing, repairing, painting, decorating and gardening under the supervision of a probation officer. The order must be made with the consent of the offender. If the offender fails to comply with the order the court may issue a summons requiring him to appear in court or issue a warrant for his arrest. If it is proved that the offender has done so without reasonable excuse the court may revoke the order and send the offender to jail to serve out the remaining part of his sentence.
16. A community service order is intended to be constructive and positive, and benefits both the offender and the community. The State is saved the expense of keeping the offender incarcerated and also helps in preventing the overcrowding of prisons. The offender's family unit is not disrupted, he may retain his employment, and if he is studying he may continue to do so. It is less damaging to self-esteem and the offender does not risk exposure to undesirable elements in jail. The offender will be making a contribution to the community and is likely to derive an increased sense of personal achievement. The offender also pays back to society for his wrongdoing and works towards developing a sense of social responsibility. The Wootton Advisory Council on the Penal System Committee in its 'Report of the Advisory Council on the Penal System: non-custodial and semi-custodial penalties' (London, 1970), observed, with which observation I am in agreement, that:-- "What attracts us is the opportunity which the community service order would give for constructive activity in the form of personal service to the community, and the possibility of a changed outlook on the part of the offender."
17. It now needs to be examined whether this is an appropriate case in which to make a probation order. The petitioners killed two Markhors, faced the rigour of a criminal trial, were sentenced, briefly incarcerated and paid a small fine; and are now required to serve their remaining sentence of five months and twenty days in jail. The question arises whether for their crime they should be sent to jail or they and society will be better served if they are placed under the supervision of a probation officer. However, in my opinion, periodically recording attendance before a probation officer does not have an element of reparation or 'pay back'.
18. The Ordinance and the Rules were enacted respectively 53 and 52 years ago, at a time when the concept of community service orders was generally not known, and therefore the same did not specifically provide for the same; however, will the making of a community service order offend the provisions of either? Subsection (2) of section 5 of the Ordinance provides, "While making a probation order, the court" is be necessary for securing supervision of the offender ... And also such additional conditions with respect to ... Environment, and any other matter which the court .May, having regard to the particular circumstances of the case, consider necessary for preventing a repetition of the same offence or a commission of other offences by the offender and for rehabilitating him as an honest, industrious and law-abiding citizen." The said language of subsection (2) .Of section 5 of the Ordinance does not exclude the making of a community service order. The court can impose conditions with regard to the offender's environment and which prevent a repetition of the same offence and which rehabilitate him as an honest, industrious and law-abiding citizen. Under the Rules also an offender can be required to take advantage of the social, recreational and educational facilities which might contribute towards his welfare and general well-being. The question under consideration is whether the petitioners would repeat the offence and would they indeed be rehabilitated if they were simply required to periodically mark their attendance before their probationer officer or is there a better chance to make them law- abiding citizens if they were to serve the community. I am drawn to the irresistible conclusion that the latter course with its element of reparation / pay-back would better achieve the stated goal, and one that would also benefit the community.
19. The petitioners must undertake some constructive work in the community and I concur with the suggestion that they could be directed to plant a certain number of trees. The petitioners are stated to live in the area of Sariab, in the vicinity of Sariab Road, Quetta which could do with a few trees. It would therefore be appropriate if they are directed to Plant trees in the Sariab Road area.
20. Therefore, whilst maintaining the sentence of imprisonment of six months imposed by the learned Magistrate and setting aside the impugned order of the learned Sessions Judge to such extent, the petitioners are admitted on probation upon executing the requisite bonds. Probation shall be for the minimum prescribed period of one year. A condition of the probation and of the bond would be for the petitioners to render community service by planting twenty five trees each and to take care of them for the period of their probation. In case any tree does not survive it shall be replaced by another. It is estimated that the time spent on planting and nurturing one tree for a year would be four hours, therefore, the duration of the community service to be rendered by each offender in respect of 25 trees comes to 100 hours of community service. The probation officer under whose supervision the petitioners are to be placed may not have the knowledge of planting trees, therefore, the probation officer is directed to avail of the expertise of the Director of the High Court who will also arrange for the provision
21. This revision petition is disposed of in the aforesaid terms. In conclusion, I would like to record my appreciation for the assistance provided to me by Professor Shane Kilcommins with regard to community service orders. Copy of this Judgment be sent to the Chief Secretary, Secretary Home and Secretary Forest, Government of Balochistan for information and to consider (a) whether there is a need.To enhance the fines provided in the Balochistan Wildlife Protection Act, 1974 and whether
(b) the Probation of Offenders Ordinance, 1960 and the Probation of Offenders Rules, 1961 need to be amended to specifically provide for the making of community service orders in respect of offenders released on probation.