Case Analysis

SAFIA BANO VERSUS HOME DEPARTMENT

ANALYSING THE DEFENSE OF INSANITY
Introduction

This case is the result of the combination of three related petitions that were filed with Pakistan's

Supreme Court. The petitions all aimed to have death sentences from lower courts commuted on

the grounds that the defendants lacked mental capacity. The prohibition against carrying out

death sentences for mentally ill individuals is the main issue in this case.

Rules Applied

• Section 84 of Pakistan Penal Code 1860

Section 84 of the PPC states that a person's mental state at the time of an offense is an exception

(where an act is committed but not treated as an offense). The accused may only raise the

defense of insanity if they can demonstrate that they were suffering from a condition that made it

impossible for them to understand the nature of the act or its consequences. In a similar vein, the

burden of proof lies on the accused.

Section 2(1) Mental Health Ordinance, 2001:

(m) mental disorder” means mental illness, including mental impairment, severe personality
disorder, severe mental impairment and any other disorder or disability of mind and “mentally
disordered” shall be construed accordingly and as explained hereunder:

(i) “mental impairment” means a state of arrested or incomplete development of mind (not
amounting to severe mental impairment) which includes significant impairment of intelligence
and social functioning and is associated with abnormally aggressive or seriously irresponsible
conduct on the part of the person concerned and “mentally impaired” shall be construed
accordingly;

(ii) “severe personality disorder” means a persistent disorder or disability of mind (whether or
not including significant impairment of intelligence) which results in abnormally aggressive or
seriously irresponsible conduct on the part of the person concerned;
(iii) “severe mental impairment” means a state of arrested or incomplete development of mind
which includes severe impairment of intelligence and social functioning and is associated with
abnormally aggressive or seriously irresponsible conduct on the part of the person concerned and
“severely mentally impaired” shall be construed accordingly;

Explanation:- Nothing contained in clause (m), sub-clauses (i), (ii) and (iii) above shall be
construed as implying that a person may be dealt with under this Ordinance as suffering from
mental disorder or from any other form of such mental disorder defined in this section, by reason
only of promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or
drugs;

Prison Rules 1878

Under this it can safely be inferred that the condemned prisoners, because of their serious mental

illness, are unable to understand and follow the mandatory procedures required to be followed

before their execution.

• Article 121 QSO 1984

• Section 465 and 464 of Criminal Procedure Code

It deals with the procedure to be followed in the trial court and Court of Sessions and High

Courts, respectively.

• Article 14 of Constitution of Pakistan 1973

• M Naghten Rules 1843

The foundation for the defense of insanity was established in the landmark case of M'Naghten,

which established the M'Naghten rule. By establishing a criterion that requires the accused to

have either a mental illness or a defect in reason at the time of the offense, the court in this

instance found Mr. M Naghten not guilty on the grounds of insanity.

Brief facts

The Sessions Court brought an indictment against the defendant, Imdad Ali, alleging that he

killed Hafiz Muhammad Abdullah in 2001. The defense attorney filed an application under

Section 465 of CrPC in response to the way the accusation was framed. The motion sought to

hold an inquiry to ascertain the accused's competency for trial, but it was denied by the trial court

and the High Court. Imdad Ali was found guilty in accordance with Pakistan Penal Code PPC

Section 302 and given the death penalty. He filed an appeal, but the High Court rejected it,

upholding the death penalty. Imdad Ali's wife unsuccessfully petitioned the High Court and then

the Supreme Court for a constitutional amendment as soon as his black warrants were issued.

She responded by filing a Civil Review plea in addition to another plea for review of the ruling

that Inspector General Prisons, Punjab had filed. Prosecutor General Punjab on behalf of the

State also filed a criminal review petition, pleading with the court to overturn the death sentence

and replace it with life in prison due to the accused's mental instability.

Issues

• How should the trial Court deal with the plea of an accused that he/she was suffering

from mental illness at the time of commission of offence?

• How should the trial Court deal with the claim that due to mental illness, an accused is

incapable of making his/her defence?

• Whether a mentally ill condemned prisoner should be executed?

Arguments by the Petitioner:

• Violation of fundamental rights

The medical board constituted in this case has given a categorical opinion that Imdad Ali, the

accused, is suffering from schizophrenia. Due to which it is inhumane to execute a death

sentence against this condemned prisoner. According to Prison Rules 1978, due to serious

mental health issues they are unable to comprehend and follow formal procedures of execution.

Resultantly the petitioners are praying for conversion of death sentence into a life imprisonment.

Furthermore, the petitioners argue that death penalty is a violation of fundamental rights of

prisoners who should be granted protection under the Constitution of Pakistan, including

protection for right to life and right to be free from cruel and inhumane treatment under CAT that

is signed and ratified by Pakistan. Hence their protection under the law of Pakistan is mandatory.

• Failure to recognize mental disorder

One of the key issues highlighted by petitioner in this case is that there are no specific

assessment methods present to diagnose a prisoner with mental disorder. The petitioners

elaborate on what meaningful participation of accused in a criminal trial looks like and five

prerequisites are given to ensure fair participation. It includes to

a. be able to understand the nature of charge,

b. able to impart instructions, able to differentiate between guilty and not guilty pleadings,

c. able to understand what is being said in the trial,

d. able to understand evidence produced,

e. and capable of leading evidence in his or her defense.

Lastly the petitioners argued that mental health cannot be determined conclusively by court, but a

panel of experts is required to determine the mental capacity of an individual. The petitioners
concluded this argument by explaining that no deterrent purpose is being served if death penalty

is imposed on someone who cannot grasp why their actions were wrong in the first place.

• The need for potential rehabilitation programs

The petitioners argue that the government must play an essential role in taking measures to

ensure fair trial of mentally ill prisoners. they reiterate that mental health can be a mitigating

factor in deciding and converting a mentally ill prisoners death sentence to life imprisonment.

Special instructions can be placed for mentally ill prisoners to be shifted to a mental health

facility for better proper treatment and rehabilitation. Furthermore, in this case, executing Safia

Bano’s husband would deprive him of the opportunity to get the care he needs to beat his illness.

Therefore, the petitioner argued that effective steps to ensure easy detection of mental health

capacity of a prisoner and rehabilitation facilities should be prioritized for which it is essential to

train the staff properly.

• Lack of competency to stand trial

The death sentence cannot be executed in case of a condemned prisoner who is not able to

understand rational decisions and whose ability to understand the rationale behind their

punishment is substantially impaired due to mental illness. The petitioner also elaborated on the

post-conviction mental capacity of prisoners who are unable to understand the charges or their

participation in the defense. The petitioner refers to lack of competency, which refers to lack of

fair trial, the cornerstone of justice system. Hence, executing someone not able to understand

their trial or can’t participate in their defense undermines the integrity of the legal system. Both

mental illness and mental disorders are referred to as mental ailments and are defined by mental

science. The report produced by medical board constituted to examine the mental health of
Imdad Ali clearly stating that it is likely that his mental illness had already started at the time of

crime, and he might have committed murder in a delusional belief. According to one of the

medical officers in Lahore, he also thought Imdad seemed to be suffering from schizophrenia.

• Updating legal terminologies of mental health

It is pertinent to adopt progressive terminology by replacing words like unsounds mind, lunatic,

and insane, with inclusive and medically accurate terms. Under the legal framework of the UK,

mental disorder is defined as any disorder or disability of the mind. Similarly, Section 2(1) of

the Indian Mental Healthcare Act 2017 defines it as a ‘substantial disorder of thinking, mood,

perception, orientation or memory that grossly impairs judgment, behavior, capacity to recognize

reality or ability to meet the ordinary demands of life, mental conditions associated with the

abuse of alcohol and drugs, but does not include mental retardation which is a condition of

arrested or incomplete development of mind of a person, specially characterized by sub

normality of intelligence.” According to definitions from different jurisdictions, the phrases

"mental illness" and "mental disorder" are sometimes used interchangeably, however both terms

are generally used to refer to mental illnesses.

• Reforming the commission of offense under section 84 of PPC which states the act of

a person of unsound mind and the scope of this provision

According to Khizar Hayat vs State implies that the accused can only employ the defense of

insanity if they can demonstrate that they were suffering from a condition that prohibited them

from understanding the nature of the crime and its consequences. In a similar vein, the burden of

proof rests with the accused.

Article 121 of QSO

Responsibility of accused at the time of alleged offense that they were afflicted by a mental

illness rendering them incapable of comprehending the nature or wrongfulness of their actions.

• International Human Rights Obligations under ICCPR and CAT

Pakistan has international standing and compliance with Human right standings. Death penalty

of mentally ill persons should not be imposed that comes under non-compliance of international

treaties of human rights.

• Due process of law and assessment of mental health

Section 464 of CRPC talks about an accused being a lunatic and Section 465 is about the

procedure of sending the accused to trial before session court or high court being a lunatic. It is

necessary to uphold principles of the criminal justice system by ensuring effective assessment of

mental health and illnesses. The procedure should be flexible to determine mental health

conditions of an individual. A criminal appeal case involving Section 302 PPC was Ata

Muhammad v. The State. The Lahore High Court noted that when interpreting Sections 464 and

465 of the CrPC, the magistrate or the court must first do an inquiry and then adopt a subjective

interpretation of the situation at hand.

• Moral capacity

The second M'Naghten Rules the defendant's moral capacity to know that what they were doing

was illegal was taken into account only after the Medical Board had filed its report and its

recommendations had been taken into account. The Board's assessment was recognized as a

reliable indicator of insanity if it found that the defendant had a mental disease at any point.

International Case Law precedents

 I. Ford v Wain Right states that the 8th amendment prohibits execution of prisoners who

are insane and inhumane as it lacks a retributive value.

II. Madison versus Alabama states that death penalty's retributive force depends on the

defendant's awareness of the penalty's existence and purpose.

Arguments by the Respondent:

Not a Permanent disease:

The respondents referred to the case of Smt. Rita Roy v. Sitesh Chandra which observed that
each case of schizophrenia has to be considered on its own merits. The Court further illustrated
that schizophrenia was not a permanent mental disorder and is recoverable by drugs, vigorous
psychological and social management and rehabilitation. Thus, schizophrenia fails to fall within
the ambit of “mental disorder” as defined in Mental Health Ordinance 2001. Schizophrenia is a
recoverable disease which in all cases did not fall within the definition of mental disorder as
defined in the Mental Health Ordinance 2001.
Mens rea

The Court has to consider the fact that whether the accused person was able to understand the
nature of the act that he was about to perform. Section 84 of PPC is based on the McNaughten
rule which lays down a two-tier test as to whether a criminal defendant is considered to have
been insane at the time of an act (as a killing) if he or she did not know right from wrong or did
not understand the moral nature of the act because of a mental disease or defect. The Court
herein is to check whether the accused knew how the gun functions. In the case of State versus
Balahari Das Sutradhar (PLD 1962 Dacca 467), rejected the plea of the convict and, while
maintaining his conviction and sentence of death, observed that not every person who is mentally
disturbed or is suffering from some mental illness(es) is, ipso facto, exempted from criminal
liability. Any person who seeks the benefit of section 84 PPC must prove that at the time of
committing the act, he was laboring under such defect of reason as not to know the nature and
consequences of the act he was doing. The Court endorsed the principle that every man is
presumed to be sane and assumed to possess a sufficient degree of reason to be responsible for
his acts unless the contrary is proved.
Public safety.

Even if an individual is deemed insane, their actions can pose a significant threat to others.
Penalizing them ensures that they cannot harm others. While the different effect on the insane
person might be minimal due to their mental state, it can act as a general deterrent for those who
might think insanity to avoid punishment. Appears to be so dangerous that he must not be let
loose upon society against other innocent persons because of his antecedents and character or for
some other reason. He deserves a different treatment all matters with other authorities to consider
after a court has to be passed.

Justice and accountability.

Victims of crimes committed by insane individuals deserve justice. Penalizing the perpetrator
acknowledges the harm done and avoids a sense of closure and fairness. Even an individual is
insane. They are not Entirely devoid of understanding right from wrong, penalizing them can
reinforce societal norms and moral boundaries.

Rule of law.

Upholding the principle that all individuals, regardless of their mental state, are subject to their
law reinforces that consistency and impartiality of the legal system. Penalizing insane individuals
ensures that claims of insanity are thoroughly evaluated, and genuine cases are distinguishing
from those attempting to exploit the system to escape justice. From the stage of trial, convict
took plea of suffering from schizophrenia in his defense. In case of Amrit Bhushan Guptv the
Union of India (AIR 1977 SC 608) the Supreme Court discarded such plea of mental illness
which could be made basis to term him as lunatic. Even the medical record produced before the
court revealed that convict was considered as psychiatric patient suffering from paranoid
schizophrenia. The court stated that the whole object of the proceedings in the subordinate Court
seems to be delayed the execution of the death sentence. The repeated applications constitute a
gross abuse of the process of court or which we would have taken more serious notice if we're
not disposed to make some allowance for the lapses of those who, possibly out of misguided zeal
or for some other reason, may be laboring under the belief that they were helping an unfortunate
person in distress

Social order.
Penalizing insane individuals helped maintain social order by demonstrating that unlawful

actions have consequences, thereby upholding the social contract. It reassures the community

that the legal system is functioning to protect its members, fostering a sense of safety and trust in

legal institutions

Critical Analysis:

We after thoroughly outlining the judgment and considering the facts of the Safia Bano case state
that no doubt that it is a monumental judgement, it is highly likely to lay the foundation for
further development of criminal law and medical jurisprudence. However, it is imperious to state
that the judgement is post-trial in its conception considering that the trial stage is where the Court
thoroughly examines the facts and the evidence. Also, that the criminal liability of an accused
person is most relevant at the time when the offense was committed, the Court failed to address
the role of police and prosecution in the case. The pre-trial stage of a criminal case in criminal
justice system is usually long and it is at this time that the critical question of mental state of an
accused must be addressed. Section 464 and 465 of Cr. PC, obliges the courts and not the
executive i.e. police, prosecution, and prison staff to get the mental state ascertained; enabling
legal provision to this end must be introduced in the law for police to enable them to bring on
record such fact for further legal processing. One must also appreciate that recording of mental
state of an accused is a medical piece of evidence and the state of medical evidence in Pakistan is
not exemplary. Forensic medicine is not a mainstream part of the medical profession. Medical
higher education does not offer premium in its specialization and the public health sector does
not incentivize doctors to perform this duty. The standardization of medico-legal opinions and
administration of constitution of medical boards are areas in which little or no work has been
done. Medical evidence is not only important for mental illness cases but also for domestic
violence, gender-based violence, sex offences and violent crimes; however, it is not considered at
the public policy level. In addition, leaving too much discretion in the hands of medical boards is
likely to lead to confusion and doubts in criminal cases where the standard of proof is beyond
reasonable doubt and every fact is put to strict proof.
The criminal law and police reforms are intertwined and jointly work to improve the safety and
security of the society. The post-trial approach is likely to be remedied in future adjudication of
this important case. Liberalizing mental illness defence of an accused without first streamlining
the inadequacies of the medical evidence system in the country is likely to adversely affect the
state of crime. For this, the medical and legal academia must work closely with police,
prosecution, and doctors to reach a balanced approach that can be standardized through police
processes and that can lead to check any abuse of the lofty legal safeguard that is universal in
nature and is accepted both by the Islamic law and the Common Law.

The Court also failed to take into account the fact that in a country like Pakistan it is very easy
for the offender to actually feign himself to be insane and claim this defense example can be seen
in Zahir Jaffer case wherein the offender after committing a gruesome murder claimed to be
suffering from mental illness. Provided that it is easy for such elite class people to manipulate the
authorities into forging medical reports.

The Court could have also taken onto account the lacunae and gaps in the present laws of the
country. Considering that under the QSO the burden of proof for establishing the existence of
mental illness lies on the accused, which limits their ability to convince factfinders that the
defence even applies to them. This is exacerbated by the fact that mentally ill prisoners in many
cases do lack the legal advice and technical knowledge as the legal counsel for Imdad Ali at the
trial stage did show his lack of interest in defending the accused. Moreover, such mentally sick
people also are not able to understand that they are suffering from a certain mental illness and
thereby are expected to work towards proving it. Given the lack of easily accessible, affordable
psychiatric help in Pakistan, defendants are at a disadvantage not due to any fault of their own
but due to the inadequacy of the federal healthcare infrastructure. Ultimately, it is unreasonably
and extremely difficult for defendants to be able to utilise this defence, which in turn highlights a
gap in the fair application of the law. The same was mentioned in JPPs latest report regarding the
trial of mentally challenged persons. The Court hence failed to provide adequate directions to the
concerned authorities regarding such matters.

Conclusion: