LAHORE: The Supreme Court (SC) on Wednesday ruled that death sentence of a condemned prisoner would not be carried out if he/she is unable, due to mental illness, to understand the rationale and reason behind his/her punishment.
“We hold that if a condemned prisoner, due to mental illness, is found to be unable to comprehend the rationale and reason behind his/her punishment, carrying out the death sentence will not meet the ends of justice,” says a judgment announced by a five-judge bench of the apex court at the Lahore registry.
The judgment, however, clarified that not every mental illness shall automatically qualify for an exemption from carrying out the death sentence. This exemption will be applicable only in that case where a medical board comprising mental health professionals, certifies after a thorough examination and evaluation that the condemned prisoner no longer has the higher mental functions to appreciate the rationale and reasons behind the sentence of death awarded to him/her.
To determine whether a condemned prisoner suffers from such a mental illness, it says the federal and each provincial government shall constitute and notify a medical board comprising qualified psychiatrists and psychologists from public sector hospitals.
The bench headed by Justice Manzoor Ahmad Malik issued the verdict on the appeals of mentally ill death-row prisoners– Kanizan Bibi, Imdad Ali and Ghulam Abbas – who have respectively served 30, 18 and 14 years on the death row. The court bench had on Jan 7, 2021, reserved its verdict after a consensus had developed among the amicus curiae and advocate generals of all four provinces that such inmates should not be executed. The apex court was asked to decide whether mentally ill death-row prisoners could be executed.
Justice Sardar Tariq Masood, Justice Ijazul Ahsan, Justice Mazhar Alam Khan Miankhel and Justice Syed Mansoor Ali Shah were the other members of the bench. The bench commuted the death penalty of Imdad Ali and Kaneeza Bibi into life imprisonment although not on the ground of mental illness but on the principle of legitimate expectancy of life.
However, in view of the medical opinion regarding the mental health condition of the convicts, the bench directed the Punjab government to immediately shift them from prison to Punjab Institute of Mental Health, Lahore for treatment and rehabilitation.
It rules the convicts, on the completion of their sentence, shall be examined afresh by a medical board and shall be released from the hospital as and when the said board opines they are fit for themselves and for the society.
About another prisoner on death row namely Ghulam Abbas, the bench directed the prison officials to file a fresh mercy petition for the third time to the president mentioning the plea of mental illness taken by him along with his entire medical history/record, report of a medical board and a copy of this judgment.
“We expect that the mercy petition filed on behalf of condemned prisoner Ghulam Abbas shall be disposed of after taking into consideration all the circumstances including the observations made by this court in the instant judgment,” states the verdict.
The bench ordered the government to also shift Abbas, till disposal of his mercy petition, to Punjab Institute of Mental Health, Lahore in accordance with provisions of Prison Rules for his treatment and rehabilitation.
The bench further directed that the terms “unsoundness of mind” and “lunatic” be replaced wherever they occur in the Pakistan Penal Code (PPC), Code of Criminal Procedure (CrPC) and the Prison Rules, with sensitised and updated language such as “mental illness” or “mental disorder.”
The court also directed authorities to amend the Prison Rules to bring the jail manuals of all the provinces in harmony, and directed the federal and provincial governments to establish/create high security forensic mental health facilities at teaching and training mental health institutions.
“The federal government (for Islamabad Capital Territory) and each provincial government, shall immediately constitute and notify a medical board comprising of three qualified and experienced psychiatrists and two psychologists from public sector hospitals for examination and evaluation of the condemned prisoners who are on death row and are suffering from mental illness to ensure that such mentally ill condemned prisoners [...] are not executed,” the judgment read.
The federal and provincial governments were also directed to launch training programmes and short certificate courses on forensic mental health assessment for psychiatrists, clinical psychologists, social workers, police and prison personnel.
The Federal Judicial Academy, Islamabad, and all the provincial judicial academies shall also arrange courses for trial court judges, prosecutors, lawyers and court staff on mental illness including forensic mental health assessment, the judgment added.
In the judgment, the apex court observed that the terms “mental illness” or “mental disorder” are both used to refer to mental ailments and are defined by medical science. “It is with the developing nature of medical science that scope of these terms may also evolve. Therefore, we are of the view that a limited definition of the terms ‘mental disorder’ or ‘mental illness’ should be avoided, and the provincial legislatures may [...] consider to appropriately amend the relevant provisions of mental health laws to cater for medically recognised mental and behavioral disorders as notified by the World Health Organisation.”
The court also noted the use of “stigmatic labels” such as “unsound mind”, “lunatic” and “insane”. “Latest legislations all over the world do not use such terms. Therefore, we consider it appropriate to direct that the terms ‘unsoundness of mind’ and ‘unsound mind’ occurring in Pakistan Penal Code, the Criminal Code of Procedure and the Prison Rules be substituted with term ‘mental disorder’ or ‘mental illness’.
“The term ‘lunatic’ wherever it occurs shall also be substituted appropriately,” the judgment stated. One of the two inmates whose death sentence was commuted on February 10 has spent 30 years on death row and was diagnosed with schizophrenia in 2000. Kanizan Bibi was 16 when she was charged with murdering her employer’s wife and five children. Police said she was having an affair with her employer, who was arrested and hanged.
The second prisoner on death row who had his sentence commuted was convicted of murdering a religious scholar in 2001. Imad Ali was diagnosed with schizophrenia in 2008. The Supreme Court halted his execution in 2016.
