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LEGAL UPDATES JUNE, 2020

RECENT LEGISLATION

THE PUNJAB SENTENCING ACT 2019

  1. The Punjab Sentencing Act 2019 lays down the factors to be considered by the courts while passing sentences in order to improve consistency, rationale and efficiency of the sentences passed. The phrase “Court” has not been defined. However, it appears that in addition to the Courts established under the Criminal Procedure Code 1898, it applies to criminal courts having special jurisdiction such as Terrorism Courts which are specifically mentioned. Further, the provisions of the Act shall be applicable in cases where a time range of imprisonment is a punishment and not where capital punishment is provided within the range of punishments.
  2. Section 4 deals with the “purposes” of sentencing while section 5 lays down that while determining a sentence the Court shall take into consideration the purposes of the sentencing and the “seriousness” of the offence. Section 6 and 7 lay down the “aggravating” and “mitigating” circumstances constituting the seriousness of the offence.
  3. Section 8, 9, 10 and 11 deal respectively with “Sentences for cases involving violence against or neglect of child under 14 years”, “Sentences for cases involving religious aggravation”, “Sentences for aggravation related to terrorist activities” and “Sentencing under laws designed to protect the public from injury”. Section 12 deals with cases where sentence is liable to be reduced based on the consideration that the accused has pleaded guilty.
  4. The rest of the Act deals with procedural and related matters.
  5. Section 14 enumerates the factors to be considered by the Court while laying down a sentence as follows:

    (a) whether there is a statutory minimum sentence or mandatory sentence that must be imposed in case of a guilty verdict;

    (b) whether there is a sentencing guideline on the subject and its recommendations;

    (c) the aggravating and mitigating factors involved;

    (d) the impact of the crime on the victim or potential victim; and

    (e) the sentences of other accused in the case if already convicted and sentenced.
  6. Part V of the Act deals with the establishing of a Sentencing Council and its functions which include developing and issuing sentencing guidelines which are in consonance with the provisions of the Act.
  7. Section 22 provides that every court shall have regard to any relevant sentencing guideline while sentencing an offender. It further provides that where a court imposes a sentence of a different kind or outside the range indicated in a council guideline it shall state its reason for doing so.
  8. Section 24 provides that the Government may make rules for carrying out the purposes of the Act

RECENT CASE-LAW HIGHLIGHTS

2020 SCMR 622

Right to the provision of transportation by the State is included in right to life and as such a fundamental right of a citizen.

2020 SCMR 731

Right to be treated in accordance with law. Executive government issuing an order restricting inter-provincial movement without backing of law in view of circumstances produced by Corona virus. Matter of free movement covered by Art 15 of the Constitution and as such could only be restricted by legislation as per provisions of Art 15. Naked executive order in circumstances held to be unconstitutional.

2020 SCMR 649

Customs General Orders—such orders were only aids to custom officials to understand and interpret the law. They could not override or modify the law.

2020 SCMR 631

Supreme Court Bar Association is not amenable to the constitutional jurisdiction of the High Court under Art 199 of the Constitution.

2020 SCMR 513

Powers of Supreme Court exercising jurisdiction under Art 184 (3) include cancelling documents of transaction of lease, transfer or sale of public property.

2020 SCMR 260

Where a statute has expressly barred a remedy which was not available to a party under the statute, it could not be sought indirectly by resort to the Constitutional jurisdiction of the High Court

2020 SCMR 321

Criminal Breach of trust (sec 405 PPC) and cheating (sec 415 PPC) are distinct offences and cannot be pleaded simultaneously.

IMPORTANT NEWS

Peshawar High Court Directs Hayatabad Medical Complex to facilitate a young woman who wants to undergo sex reassignment surgery

The Peshawar High Court (PHC) on Thursday directed the administration of Hayatabad Medical Complex (HMC) to facilitate a young woman who wants to undergo sex reassignment surgery (SRS) to become a man. Representing the petitioner, the counsel argued that it is the woman’s constitutional right to opt for any surgery or procedure to change her sex as per her desire. The petitioner was diagnosed with gender dysphoria, a condition that involves a conflict between a person’s internal gender identity and the biological sex assigned to them at birth, and it can be treated through SRS, the lawyer said. He informed the court that his client has felt and acted like a male since childhood but her outward appearance is that of a female, and because of the mental distress she has suffered due to the condition, she wants to have her sex changed. The counsel said his client has to make her own choices and the law only facilitates people and not withhold their rights. He also argued that the parliament had recently passed the Transgender Persons (Protection of Rights) Act, 2018, and her desire to change her sex is covered under Section 2 of the Act.

Regulator approves 59 M & A’ s

The Competition Commission of Pakistan (CCP) processed and granted approval to 59 merger and acquisition (M&A) applications in the last fiscal year 2019-20. Out of the total 59 M&A approvals, 51 were acquisitions, five were mergers and three were joint venture applications. Major sectors where these M&A took place include automotive, household products, food, sugar, oil, power, freight, LNG, insurance, agriculture, coal mining, logistics, pharmaceutical, chemicals, petroleum, healthcare, leasing, plastic, textile, hospitality, financial services, digital payments, mobile phone, investment, IT, hardware, wind power, and microfinance banking.

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