Public policy in Pakistan pays scant attention to criminal law except on occasions that essentially remain emotional due to their heinous and gruesome nature. This temporal attention is often responded by quick talk of fixing the system. In this environment, a celebrated judgement of the Supreme Court of Pakistan titled as Safia Bano Case (PLD 2021 SC 488) has captured the spotlight for all the right reasons. It has tried to address the issue of criminal liability of persons with limited understanding of the consequences of their actions. In addition, it has started shaping a discourse on relationship between the fields of criminology, policing and medical sciences. It must be noted that recently introduced criminal law reforms by the Federal Government have predicated the criminal liability law on this judgement. In this context, it will be useful to briefly examine the case and contextualize it with policing perspective.
Safia Bano Case is exceptional in the sense that a bench of five judges of the Supreme Court of Pakistan, after exhaustion of all legal remedies, decided to convert capital punishments of three condemned prisoners into life sentences. The judgement was authored by Justice Manzoor Malik who has narrated facts of all the three cases in detail. For brevity, case of Imdad, husband of Safia Bano, is discussed here. He was sentenced to death for killing Muhammad Abdullah by firing shots at him in 2001 at Vehari. As often happens for poor litigants, Imdad did not have a defence lawyer and was, therefore, provided a lawyer at state expense. The lawyer could not help the hapless Imdad and his plea for mitigated criminal liability for being of unsound mind was not allowed throughout the adjudication from trial to the appellate stages. Safia Bano, however, vehemently tried to save her husband and in her bid managed to appear as a defence witness and made a statement to the effect that Imdad was of unsound mind. This piece of evidence did not get due weightage in the subsequent litigation in the Lahore High Court and in the Supreme Court of Pakistan where the case was finally dismissed in 2015. After exhaustion of all legal remedies and issuance of black warrant of Imdad, the formidable Safia Bano filed yet another application in the Sessions Court for examination of mental health of her husband before execution. Her application again failed at Sessions Court and at the Lahore High Court. She did not stop and filed yet another petition before the Supreme Court of Pakistan. She was lucky to get the support of the state, which through Prosecutor General Punjab, filed a review of the judgements against Imdad, which ultimately culminated into this landmark judgement of the Safia Bano Case. Before advancing legal reasoning behind the judgement, Justice Manzoor Malik set three legal questions for the bench, which were:
- 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 an offence?
- How should the trial court deal with the claim that due to mental illness the accused is incapable of making his/her defence?
- Whether a mentally ill condemned prisoner should be executed?
He also appointed Professor of Psychiatry Brigadier (Retd) Mowadat Hussain Rana and Barrister Haider Rasul Mirza as amici curiae. He started his analysis by first looking at the terminology of ‘lunatic’, ‘insane’ and ‘unsound mind’ and by noting that these have not been defined in the law. He, then, examined the extant provincial legislation (as the subject of health has been devolved after 18th Constitutional Amendment). He referred to Mental Health Ordinance (which was adopted by the Punjab in 2014), the Sindh Mental Health Act, 2013, the KP Mental Health Act, 2017 and the Balochistan Mental Health Act, 2019 and noted that the term ‘mental disorder’ and its sub-categories ‘mental impairment’, ‘severe personality disorder’ and ‘severe mental impairment’ are defined and are more instructive for legislation for their wider definitions. In other jurisdictions, he noted, like the UK (the Mental Health Act, 1983) and India (Mental Health Act, 2007), a less restrictive term of ‘mental disorder’ is being used. He also looked at the International Classification of Diseases (ICD) version 10 of the World Health Organization to map the latest trends on the subject. He, then, proceeded to examine how the judges have been obligated under the procedural safeguards of sections 464 and 465 of the Code of Criminal Procedure, 1898 to pay due consideration to the plea of unsound mind/mental illness. The bench also overruled its earlier judgement authored by a 3 member bench to the extent of the same Imdad (also titled as Safia Bano Case- PLD 2017 SC 18) and distinguished the case-law on which earlier decision was based. The judgement also pressed into service international human rights law to reason non-execution of capital sentence on a mentally ill condemned prisoner. It relied on Rule 109 of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Rules) and on the Conventions on Rights of Persons with Disabilities (CRPD) and the International Covenant and Political Rights (ICCRP) to provide legal basis for non-execution of a condemned prisoner with mental illness.
Having sufficiently outlined the facts and reasons of the Safia Bano Case and noting that like any other monumental judgement, it will lay the foundation for further development of law, it is imperative to state that the judgement is post-trial in its conception. As the criminal liability of an accused is most relevant at the time of commission of an offence, the role of police and prosecution must have been imagined 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. The Code of Criminal Procedure, in its present form, 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 factum 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.