Mst. SAFIA BANO vs HOME DEPARTMENT GOVERNMENT OF PUNJAB Ss — 2021 PLD 488 SUPREME-COURT

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Mst. SAFIA BANO VS HOME DEPARTMENT GOVERNMENT OF PUNJAB Ss. 84, 302(b), 324 & 449---Constitution of Pakistan, Art. 45---Prisons Rules, 1978, Rr. 101, 104 & 107---Qatl-i-amd, attempt to commit qatl-i-amd, house trespass in order to commit offence punishable with death---Reappraisal of evidence---Mentally ill prisoner on death row having cognitive/intellectual impairment---Fresh mercy petition before the President, filing of---Accused had exhausted all the remedies available to him under the law, however, the plea taken by him that he was suffering from mental illness was endorsed by the report of the Medical Board constituted by the Supreme Court---Though, it had come on record that a mercy petition filed by the accused was rejected by the President yet there was nothing on record to show whether the ground of mental illness was taken into consideration while dismissing the mercy petition---Supreme Court directed that the concerned Jail Superintendent shall ensure that a fresh mercy petition was filed on behalf of the accused; that the mercy petition was prepared in accordance with relevant Prisons Rules, 1978 and submitted to the President mentioning therein the plea of mental illness taken by the accused along with copies of his entire medical history/record, copies of report of Medical Board constituted by the Supreme Court and a copy of present judgment, and that till disposal of the mercy petition, the accused shall be immediately shifted to Punjab Institute of Mental Health in accordance with provisions of Prisons Rules, 1978 for his treatment and rehabilitation---Constitution petition was disposed of. Citation Name: 2021 PLD 488 SUPREME-COURTBookmark this Case Mst. SAFIA BANO VS HOME DEPARTMENT GOVERNMENT OF PUNJAB S. 84---Criminal Procedure Code (V of 1898), Ss. 464 & 465---Prisons Rules, 1978, Chap. 18---Mental Health Ordinance (VIII of 2001) [as amended by the Punjab Mental Health (Amendment) Act (XI of 2014), Ss. 2(m) & 2(n)---Sindh Mental Health Act (L of 2013), Ss. 2(n) & 2(o)---Khyber Pakhtunkhwa Mental Health Act (XVII of 2017), Ss. 2(l), 2(m), 2(n), 2(o) & 2(q)---Balochistan Mental Health Act (IX of 2019), Ss. 2(n) & 2(o)---Mentally ill prisoners under trial or on death row---Directions issued by the Supreme Court with respect to establishment of secure Mental Health Facilities, constitution of Medical Boards for examination and evaluation of prisoners, launch of training programs on forensic mental health assessment, and courses for Trial Court judges, prosecutors, lawyers and court staff on mental illness. Citation Name: 2021 PLD 488 SUPREME-COURTBookmark this Case Mst. SAFIA BANO VS HOME DEPARTMENT GOVERNMENT OF PUNJAB Ss. 2(m) & 2(n)---Sindh Mental Health Act (L of 2013), Ss. 2(n) & 2(o)---Khyber Pakhtunkhwa Mental Health Act (XVII of 2017), Ss. 2(l), 2(m), 2(n), 2(o) & 2(q)---Balochistan Mental Health Act (IX of 2019), Ss. 2(n) & 2(o)---Penal Code (XLV of 1860), S. 84---Criminal Procedure Code (V of 1898), Ss. 464 & 465---Prisons Rules, 1978, Chap. 18---International Classification of Diseases (ICD-11) [maintained by the Word Health Organization]---Mental illness/ disorder---Scope---Terms 'unsound mind', 'unsoundness of mind', 'lunatic' and 'insane' used in the Penal Code, 1860, the Criminal Procedure Code, 1898 and the Prisons Rules, 1978---Propriety---Terms "mental illness" or "mental disorder" were both used to refer to mental ailments and were defined by medical science---With the developing nature of medical science the scope of said terms may also evolve---Supreme Court observed that a limited definition of the terms "mental disorder" or "mental illness" should be avoided, and the Provincial Legislatures may, in order to better appreciate the evolving nature of medical science, consider to appropriately amend the relevant provisions of mental health laws to cater for medically recognized mental and behavioural disorders as notified by World Health Organization (WHO) through its latest edition of 'International Classification of Diseases' (ICD); that the evolution of medical science and human rights had sensitized the society to stigmatic labels such as "unsound mind", "lunatic" and "insane", therefore, latest legislations all over the world did not use such terms---Supreme Court directed that the terms "unsoundness of mind" and "unsound mind" occurring in P.P.C., Cr.P.C. and the Prisons Rules, 1978 should be substituted with term "mental disorder" or "mental illness", and the term "lunatic", wherever it occurred, shall also be substituted appropriately. Citation Name: 2021 PLD 488 SUPREME-COURTBookmark this Case Mst. SAFIA BANO VS HOME DEPARTMENT GOVERNMENT OF PUNJAB Ss. 84, 302(b) & 34---Qatl-i-amd, common intention---Reappraisal of evidence---Mentally ill prisoner on death row suffering from severe lifelong schizophrenia---Sentence, reduction in---Conversion of death sentence to imprisonment for life---Legitimate expectancy of life, principle of---Scope---Medical Board constituted for the purpose of examining the accused opined in its report that she suffered from Alogia (no speech), Avolition (lack of motivation), Anhedonia (complete lack of interest), Apathy (no emotional response, lack of spontaneity), lack of prompt verbal, emotional and physical action, slowness, negativism, self-muttering (talking to herself in very low voice) and withdrawn emotionally (isolated from environment); that she had severe lifelong mental illness "schizophrenia" and would need lifelong psychiatric treatment---Furthermore case record showed that the accused was behind bars for the last about 32 years meaning thereby that she has served out more than the alternate sentence provided under S.302(b), P.P.C. i.e. imprisonment for life---On such score, it was a fit case where principle of legitimate expectancy of life could be invoked---Conviction of accused under Ss.302(b)/34, P.P.C. on six counts was maintained, however, her sentence of death on six counts was converted into imprisonment for life on six counts---Supreme Court directed the Provincial Government to immediately shift the accused from prison to Punjab Institute of Mental Health for treatment and rehabilitation in accordance with provisions of Prisons Rules, 1978; that on the completion of her sentence, she shall be examined afresh by the Medical Board required to be notified by the Provincial Government, and that she shall be released from the hospital as and when the said Medical Board opined that she was fit for herself and for the society. Citation Name: 2021 PLD 488 SUPREME-COURTBookmark this Case Mst. SAFIA BANO VS HOME DEPARTMENT GOVERNMENT OF PUNJAB Ss. 84 & 302(b)---Qatl-i-amd---Reappraisal of evidence---Mentally ill prisoner on death row suffering from chronic schizophrenia (insanity)---Sentence, reduction in---Conversion of death sentence to imprisonment for life---Legitimate expectancy of life, principle of---Scope---Accused was behind bars for the last about 20 years and had served out substantive part of alternative sentence provided under S.302(b), P.P.C. i.e. imprisonment for life---Secondly the motive set up by the prosecution was disbelieved by the Trial Court after assigning valid and convincing reasons---On the principle of legitimate expectancy of life, the accused was entitled to conversion of death sentence to that of imprisonment for life---Conviction of accused under S.302(b), P.P.C. was maintained, however, his sentence of death was converted into imprisonment for life---Appeal was partly allowed with the Supreme Court holding that its observations in the judgment reported as Mst. Safia Bano v. Home Department, Government of Punjab and others (PLD 2017 SC 18) were not relevant anymore and were of no legal effect---Supreme Court directed the Provincial Government to immediately shift the accused from prison to Punjab Institute of Mental Health, for treatment and rehabilitation in accordance with provisions of Prisons Rules, 1978; that on the completion of his sentence, he shall be examined afresh by the Medical Board required to be notified by the Provincial Government, and that he shall be released from the hospital as and when the said Medical Board opined that he was fit for himself and for the society. Citation Name: 2021 PLD 488 SUPREME-COURTBookmark this Case Mst. SAFIA BANO VS HOME DEPARTMENT GOVERNMENT OF PUNJAB S. 84---Criminal Procedure Code (V of 1898), Ss. 464 & 465---Mental Health Ordinance (VIII of 2001) [as amended by the Punjab Mental Health (Amendment) Act (XI of 2014), Ss. 2(m) & 2(n)---Sindh Mental Health Act (L of 2013), Ss. 2(n) & 2(o)---Khyber Pakhtunkhwa Mental Health Act (XVII of 2017), Ss. 2(l), 2(m), 2(n), 2(o) & 2(q)---Balochistan Mental Health Act (IX of 2019), Ss. 2(n) & 2(o)---Prisons Rules, 1978, Rr. 107 & 362---Mentally ill prisoner on death row---Whether such prisoner should be executed---Held, that if a condemned prisoner, due to mental illness, was found to be unable to comprehend the rationale and reason behind his/her punishment, then carrying out the death sentence would not meet the ends of justice---However, not every mental illness shall automatically qualify for an exemption from carrying out the death sentence---Such exemption would be applicable only in that case where a Medical Board consisting of mental health professionals, certified after a thorough examination and evaluation that the condemned prisoner no longer had 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 suffered from such a mental illness, the Supreme Court directed the Federal Government (for Islamabad Capital Territory) and each Provincial Government to constitute and notify, a Medical Board comprising of qualified psychiatrists and psychologists from public sector hospitals. Citation Name: 2021 PLD 488 SUPREME-COURTBookmark this Case Mst. SAFIA BANO VS HOME DEPARTMENT GOVERNMENT OF PUNJAB Ss. 2(m) & 2(n)---Sindh Mental Health Act (L of 2013), Ss. 2(n) & 2(o)---Khyber Pakhtunkhwa Mental Health Act (XVII of 2017), Ss. 2(l), 2(m), 2(n), 2(o) & 2(q)---Balochistan Mental Health Act (IX of 2019), Ss. 2(n) & 2(o)---Mental illness/disorder---Definition of terms 'mental illness' and 'mental disorder' as found in jurisdictions of the United Kingdom and India. Citation Name: 2021 PLD 488 SUPREME-COURTBookmark this Case Mst. SAFIA BANO VS HOME DEPARTMENT GOVERNMENT OF PUNJAB Ss. 84 & 302(b)---Criminal Procedure Code (V of 1898), Ss. 464 & 465---Qatl-i-amd---Reappraisal of evidence---Mentally ill prisoner on death row suffering from chronic schizophrenia (insanity)---Sentence, reduction in---Conversion of death sentence to imprisonment for life---To ascertain the mental health condition of the accused the Trial Court merely relied upon its own observation and after asking a few questions formed a subjective view on the matter without having recourse to the material annexed with the application filed on behalf of accused or any argument advanced by his counsel in support of his contentions and grounds raised in the application filed under S.465, Cr.P.C.---Issue of mental illness of accused was not appreciated in terms of S.465 of Cr.P.C. either before the Trial Court, or the High Court, or before the Supreme Court---Furthermore after the original counsel for the accused failed to appear before the High Court at the time of hearing of his criminal appeal along with Murder Reference, the High Court appointed some other counsel on his behalf to represent him in a rather hasty manner and he was asked to argue the case on the next day---Such hasty approach could not be appreciated because it was a matter of life and death for the accused---Medical Board was constituted to report about the mental health condition of the condemned prisoner, and said Board opined that the accused was suffering from chronic schizophrenia (insanity), and that considering the present mental state of accused, it was likely that the illness had already started at the time of the commission of the crime, and he might have committed murder under the delusional belief of persecutions (insanity)---In such circumstances the conviction of accused under S.302(b), P.P.C. was maintained, however, his sentence of death was converted into imprisonment for life---Appeal was partly allowed. Citation Name: 2021 PLD 488 SUPREME-COURTBookmark this Case Mst. SAFIA BANO VS HOME DEPARTMENT GOVERNMENT OF PUNJAB S. 84---Qanun-e-Shahadat (10 of 1984), Art. 121---Act of a person suffering mental illness/disorder---Mental condition of accused at the time of commission of offence---Scope and burden of proof---Within the contemplation of S.84, P.P.C., whenever the plea was raised regarding the state of mind of accused at the time of commission of offence, the onus would be on the defence (accused) to prove such a plea as contemplated in Art. 121 of the Qanun-e-Shahadat, 1984 (QSO)---Onus was on the accused to prove that when the alleged act was committed, he/she was suffering from a mental illness which made him/her incapable of knowing the nature of the act or that what he/she was doing was either wrong or contrary to law---Principles. Citation Name: 2021 PLD 488 SUPREME-COURTBookmark this Case Mst. SAFIA BANO VS HOME DEPARTMENT GOVERNMENT OF PUNJAB Chap. XXXIV---Prisons Rules, 1978, Chap. 18---Act of a person suffering mental illness/disorder---Words "Civil Surgeon" and "medical officer" used in Chapter XXXIV, Cr.P.C. and the Prisons Rules, 1978---Supreme Court directed that said words should be substituted by the relevant Legislatures with "Medical Board", and that the Medical Board shall comprise of qualified and experienced psychologists and psychiatrists. Citation Name: 2021 PLD 488 SUPREME-COURTBookmark this Case Mst. SAFIA BANO VS HOME DEPARTMENT GOVERNMENT OF PUNJAB Ss. 464 & 465---accused incapable of making his/her defence due to mental illness---Prima facie subjective view formed by the Trial Court---Medical opinion---Whether the Trial Court could form a prima facie subjective view regarding the incapability of the accused to make his/her defence without the opinion of the medical expert---Held, that the terms "reason to believe" and "appears to the Court" used in Ss.464 & 465, Cr.P.C., were to be interpreted as a prima facie tentative opinion of the Court, which was not a subjective view based on impressions but one which was based on an objective assessment of the material and information placed before the Court or already available on record in the police file and case file---While forming a prima facie tentative opinion, the Court may give due consideration to its own observations in relation to the conduct and demeanour of an accused person---Once the Court had formed a prima facie tentative opinion that the accused may be incapable of understanding the proceedings of trial or make his/her defence, it became obligatory upon the Court to embark upon conducting an inquiry to decide the issue of incapacity of the accused to face trial due to mental illness---Medical opinion was sine qua non in such an inquiry.

Mst. SAFIA BANO vs HOME DEPARTMENT GOVERNMENT OF PUNJAB Ss — 2021 PLD 488 SUPREME-COURT

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