IN THE SUPREME COURT OF PAKISTAN 
(Review Jurisdiction) 
 
PRESENT: 
MR. JUSTICE MANZOOR AHMAD MALIK 
MR. JUSTICE SARDAR TARIQ MASOOD 
MR. JUSTICE IJAZ UL AHSAN 
MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL 
MR. JUSTICE SYED MANSOOR ALI SHAH 
 
Civil Review Petition No. 420 of 2016 in 
Civil Petition No. 2990 of 2016 
(To review the judgment dated 27.09.2016 passed by 
this Court in C.P. No. 2990 of 2016) 
 
Mst. Safia Bano 
Versus 
Home Department Govt. of 
Punjab through its Secretary 
and others 
 
Civil Review Petition No. 424 of 2016 in 
Civil Petition No. 2990 of 2016 
(To review the judgment dated 27.09.2016 passed by 
this Court in C.P. No. 2990 of 2016) 
 
The Inspector 
General of Prisons 
Punjab 
Versus Mst. Safia Bano & others 
 
Criminal Review Petition No. 170 of 2016 in 
Criminal Appeal No. 619 of 2009 
(To review the judgment of this Court dated 19.10.2015 
passed by this Court in Crl. Appeal No. 619 of 2009) 
 
The State 
Versus Muhammad Ahmed Raza 
 
Human Rights Case No. 16514-P of 2018 
(Matter regarding treatment of condemned prisoner, 
Kaneezan Bibi confined in Central Jail, Lahore) 
 
Constitution Petition No. 09 of 2019 
(Regarding suspension of death sentence of condemned 
prisoner Ghulam Abbas on the ground of mental illness) 
 
Mst. Noor Jehan 
Versus Home 
Deptt. 
Govt. 
of 
Punjab 
through 
Its 
Secretary & others 
 
 
For the Petitioner(s) 
Syed 
Iqbal 
Hussain 
Shah 
Gillani, ASC assisted by Ms. 
Zainab 
Mahboob, 
Barrister 
Hashim, 
Barrister 
Syeda 
C.R.P. No. 420 etc 
2
Jugnoo 
Kazim 
and 
Maria 
Kazmi 
 
(in CRP No. 420 of 2016 & HRC 
No. 16514-P of 2018) 
 
 
 
Mr. Qasim Ali Chohan, Addl. 
AG Punjab 
 
(in CRP No. 424 of 2016) 
 
 
Ch. Muhammad Sarwar Sidhu, 
Addl. PG 
 
Dr. 
Faria 
Munawar, 
WMO 
(Adyala Jail, Rawalpindi) 
 
Zahid 
Bhatti, 
Assistant 
Superintendent 
Jail, 
DIG 
Prisons 
Office 
Rawalpindi 
Region & Tahir Shah, Dy. 
Superintendent. 
 
(in Crl. R.P. No. 170 of 2016) 
 
For the Complainant: 
Mr. Sanaullah Zahid, ASC 
 
(in Crl.R.Ps No. 420 & 424 of 
2016) 
 
On Court’s Notice: 
 
For the Federation: 
Mr. Sajid Ilyas Bhatti, Addl. 
AGP 
 
For the Province of Punjab: 
Mr. Qasim Ali Chohan, Addl. 
AG Punjab 
 
For the Province of Sindh: 
Mr. Solat Rizvi, Addl. AG Sindh 
 
For the Province of KPK: 
Mr. Shumail Ahmad Butt, AG 
KPK 
 
Mr. Atif Ali Khan, Addl. AG KPK 
 
Mr. 
Zahid 
Yousaf 
Qureshi, 
Addl. AG KPK 
 
For Province of Balochistan: 
Mr. Arbab Muhammad Tahir, 
AG Balochistan 
 
Mr. Ayaz Muhammad Swati, 
Addl. AG Balochistan 
 
For Islamabad: 
Mr. 
Niaz 
Ullah 
Niazi, 
AG 
Islamabad 
 
Amici Curiae: 
Brigadier 
(Retd.) 
Professor 
Mowadat 
Hussain 
Rana, 
Professor of Psychiatry 
 
Barrister Haider Rasul Mirza, 
ASC 
 
C.R.P. No. 420 etc 
3
Date of Hearing 
 
17.09.2020, 21.09.2020, 
23.10.2018, 15.12.2020, 
04.01.2021, 05.01.2021, 
06.01.2021 & 07.01.2021 
 
J U D G M E N T 
 
Manzoor Ahmad Malik, J.-    The mental health of a person is as 
important and significant as his physical health. Unfortunately, it is 
often not given the importance and seriousness it deserves. Because of 
certain misconceptions, the implications of mental illness are 
overlooked and the vulnerability or disability that it causes is not 
given due attention.  
 
2.  
 
The Apex Court of the country has been called upon, 
through this Larger Bench, to determine questions relating to 
culpability, competence to face trial, and execution of sentence in case 
of those accused persons and convicts who are suffering from mental 
illness. These determinations need to be made while considering the 
latest jurisprudential, legislative and medical developments on this 
subject. 
 
3.  
 
The facts relevant to the adjudication of the petitions 
relating to the case of each condemned prisoner i.e. Imdad Ali, Mst. 
Kaneezan Bibi and Ghulam Abbas are briefly discussed herein 
below:- 
 
IMDAD ALI’S CASE 
 
(Civil Review Petition (C.R.P.) No. 420 of 2016 & C.R.P. No. 424 of 
2016 in Civil Petition No. 2990 of 2016 AND 
Crl. Review Petition (Crl.R.P.) No. 170 of 2016 in Crl. Appeal No. 
619 of 2009) 
 
4. 
 
Imdad Ali (aged about 42 years at the time of 
commission of offence) was indicted by the learned Additional 
Sessions Judge, Burewala on 09.01.2002 for committing the murder 
of Hafiz Muhammad Abdullah on 21.01.2001 by firing shots with a 
C.R.P. No. 420 etc 
4
rifle 222 bore, in the area of Police Station (P.S.) City Burewala, 
District Vehari. Upon framing of charge, Imdad Ali pleaded not 
guilty. The record shows that no Advocate was appointed by him or 
his family to represent him before the trial Court rather an Advocate 
at State expense was appointed by the trial Court vide its order dated 
29.01.2002 to conduct his case. The order of said date further reflects 
that earlier an Advocate was appointed by Court at State expense to 
represent Imdad Ali who later showed his unwillingness to represent 
the accused and in his stead another Advocate was appointed at State 
expense to represent him. It is manifest from the interim order of trial 
Court dated 09.02.2002 that learned defence counsel submitted an 
application under section 465 Code of Criminal Procedure, 1898 
(Cr.P.C.) for holding an inquiry to determine the competence of 
Imdad Ali to face trial. On the said application, arguments were heard 
and vide order dated 12.03.2002, the learned trial Court disposed of 
the said application by observing that there is no reason to believe that 
Imdad Ali is of unsound mind, as referred to in section 465 Cr.P.C.  
 
5. 
 
This order was challenged before the learned Lahore 
High Court, Multan Bench, Multan on behalf of Imdad Ali through 
Crl. Revision No. 91 of 2002 which was dismissed as not pressed 
upon the contention of his counsel that he intends to move an 
application before the learned trial Court to summon, as a Court 
witness, the Doctor who examined Imdad Ali, before the occurrence. 
 
6. 
 
Thereafter, an application was moved before the trial 
Court on behalf of Imdad Ali for summoning Dr. Ihtisham ul Haq, 
Medical Officer, Services Hospital Lahore. The said application was 
dismissed by the trial Court vide order dated 07.05.2002.  
 
7. 
 
This order of the learned trial Court dated 07.05.2002 
was challenged before the learned Lahore High Court, Multan Bench 
Multan through Criminal Revision No. 185 of 2002. Vide order dated 
14.05.2002, a report was called from the doctor posted at New Central 
Jail, Multan regarding the mental health condition of Imdad Ali. The 
doctor was also directed to specify the disease, if any, and to opine 
C.R.P. No. 420 etc 
5
whether the same was periodical or permanent. However, on 
25.02.2002 when the case was taken up by the learned High Court, no 
one on behalf of convict Imdad Ali put in an appearance and the 
criminal revision was dismissed for non-prosecution. After the close 
of prosecution evidence, Imdad Ali was examined under section 342 
Cr.P.C, as required under the law. Thereafter, his wife Mst. Safia 
Bano appeared as DW-1. She stated before the trial Court that 3-4 
years prior to the occurrence, Imdad Ali occasionally talked about 
“supernatural beings” and “metaphysical elements” but “symptoms of 
abnormality” became usual one year prior to the occurrence. She 
further stated that prior to the occurrence, Imdad Ali was examined by 
Dr. Ihtisham ul Haq who recommended him for treatment at the 
Mental Hospital, Lahore. 
 
8. 
 
On conclusion of the trial, Imdad Ali was convicted by 
the trial Court under section 302 Pakistan Penal Code, 1860 (P.P.C.) 
on 29.07.2002 and sentenced to death. The appeal filed by him was 
dismissed by a Division Bench of the learned Lahore High Court, 
Multan Bench, Multan on 07.11.2008 and murder reference was 
answered in the affirmative and his sentence of death was confirmed. 
Thereafter, he filed a jail petition before this Court wherein leave to 
appeal was granted on 13.11.2009, which culminated into Crl. Appeal 
No. 619 of 2009 and the same was also dismissed vide judgment 
dated 19.10.2015 and his death sentence was upheld. Imdad Ali did 
not file any review petition against the said judgment. However, he 
filed a mercy petition which was dismissed by the President of 
Pakistan on 17.11.2015. When black warrants were issued for 
execution of Imdad Ali on 26.07.2016, Mst. Safia Bano (wife of 
Imdad Ali) filed an application before the learned Sessions Judge, 
Vehari on 21.07.2016 praying therein that in order to examine the 
mental health condition of her husband (Imdad Ali), a Medical Board 
may be constituted and his execution may be stayed. The learned 
Additional Sessions Judge, Vehari dismissed the said application on 
22.07.2016. Thereafter, Mst. Safia Bano filed a constitution petition 
(W.P. No. 10816 of 2016) before the Lahore High Court, Multan 
C.R.P. No. 420 etc 
6
Bench, Multan, against dismissal of application by the learned 
Additional Sessions Judge, Vehari. The High Court dismissed the writ 
petition on 25.07.2016, whereafter Mst. Safia Bano filed C.P. No. 
2990 of 2016 before this Court assailing the order of the learned High 
Court, which was dismissed by this Court vide judgment dated 
27.09.2016. Mst. Safia Bano has now filed C.R.P. No. 420 of 2016. 
Additionally, C.R.P. No. 424 of 2016 has been filed by the Inspector 
General of Prisons, Punjab, for review of the judgment of this Court 
dated 27.09.2016. Crl.R.P. No. 170 of 2016 has also been filed by the 
State through Prosecutor General Punjab, praying therein that 
judgment dated 19.10.2015 passed in Crl. Appeal No. 619 of 2009 
may be reviewed and the sentence of death awarded to Imdad Ali be 
converted into imprisonment for life on account of his mental illness. 
 
KANEEZAN BIBI’S CASE 
(Human Rights Case (H.R.C.) No. 16514-P of 2018) 
9. 
 
Mst. Kaneezan Bibi (aged about 24 years at the time of 
commission of offence) along with her co-convict Khan Muhammad 
was tried by the learned Additional Sessions Judge, Toba Tek Singh 
for committing murder of Mst. Maryam Bibi, Aslam, Shaukat, Liaqat, 
Mst. Razia and Mst. Safia on the night between 27/28.7.1989, in the 
area of P.S. Pir Mahal, Tehsil Kamalia, District Toba Tek Singh. On 
conclusion of trial, the said Court vide its judgment dated 07.01.1991 
convicted her under section 302(b)/34 PPC and she was sentenced to 
death on six counts. A criminal jail appeal filed by her against her 
conviction and sentence was dismissed by the Lahore High Court, 
Lahore vide judgment dated 01.03.1994 and murder reference sent by 
the trial Court for confirmation or otherwise of her sentence of death 
was answered in the affirmative and her sentence of death on six 
counts was confirmed. Her criminal appeal was dismissed by this 
Court on 02.03.1999 without there being any alteration in her 
conviction and sentence. As reported by office, Mst. Kaneezan Bibi 
did not file any review petition against the judgment of this Court. 
The mercy petition filed by her was also dismissed by the President of 
C.R.P. No. 420 etc 
7
Pakistan on 19.01.2000. Thereafter, the convict Mst. Kaneezan Bibi 
filed CPLA No. 1925-L of 2010 against the dismissal of her writ 
petition by the learned Lahore High Court Lahore vide order dated 
22.07.2010, for converting her sentence of death to imprisonment for 
life on the ground of mental ailment but the same was dismissed by 
this Court on 02.12.2010. Subsequently, her execution was stayed for 
three weeks by the President of Pakistan and she was referred to 
Punjab Institute of Mental Health (PIMH), where she was found to be 
suffering from schizophrenia. It is relevant to mention here that 
neither during trial nor before the learned High Court at the time of 
hearing of her appeal was the plea of mental ailment urged on her 
behalf. On 17.04.2018, the then Hon’ble Chief Justice after perusal of 
a report submitted by the Superintendent Central Jail, Lahore took suo 
motu notice and thereafter the instant case i.e. H.R.C. No. 16514-P of 
2018 was ordered to be clubbed with C.R.P. No. 420 of 2016 (Imdad 
Ali’s case).  
 
GHULAM ABBAS’S CASE 
(Constitution Petition No. 9 of 2019) 
 
10. 
 
Ghulam Abbas (aged about 23 years at the time of 
commission of offence) was indicted by the learned Additional 
Sessions Judge, Rawalpindi on 04.04.2005 for committing murder of 
Wajid Ali and for murderous assault on Mst. Saima Bibi (wife of 
Wajid Ali) on 02.09.2004 in the area of P.S. R.A. Bazar Rawalpindi. 
On conclusion of trial, the said Court, vide its judgment dated 
31.05.2006, convicted him under section 302(b) PPC and sentenced 
him to death. He was also convicted under sections 449 and 324 PPC 
and sentenced to different terms of imprisonment. The criminal appeal 
filed by him against his conviction and sentence was dismissed by the 
Lahore High Court, Rawalpindi Bench, Rawalpindi on 12.04.2010 
and the murder reference was answered in the affirmative and his 
sentence of death was confirmed. His criminal appeal was also 
dismissed by this Court on 27.10.2016 and his conviction and 
sentence were maintained. The review petition filed by Ghulam 
Abbas against the said judgment of this Court was also dismissed on 
C.R.P. No. 420 etc 
8
18.07.2018. Same was the fate of his mercy petition filed before the 
President of Pakistan which was rejected on 22.04.2019.  
 
11.  
 
Consequently, black warrants were issued, and his 
execution was fixed for 18.06.2019. In this backdrop, Mst. Noor 
Jehan (mother of Ghulam Abbas) filed the instant constitution petition 
No. 9 of 2019 under Article 184(3) of the Constitution of the Islamic 
Republic of Pakistan, 1973 (Constitution) before this Court for 
staying the execution of black warrants on the grounds that Ghulam 
Abbas suffers from intellectual disability and mental illness which 
predate his confinement in jail; that he has severe learning disability 
since his childhood; that he is suffering from repeated seizures/fits; 
that he has a documented history of mental illness during his 
confinement in jail; that he has been prescribed antipsychotic 
medication. While pleading these circumstances, she has prayed for 
staying the execution of black warrants and assessment and evaluation 
of Ghulam Abbas by a Special Medical Board. While entertaining the 
petition, the then Hon’ble Chief Justice of Pakistan vide order dated 
17.06.2019 stayed the execution of death sentence of Ghulam Abbas 
and directed the office to club the instant petition with C.R.P. No. 420 
of 2016 (Imdad Ali’s case). 
 
12. 
 
In view of the facts narrated hereinabove, the important 
legal questions which emanate from these petitions are as under:- 
 
(i) 
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? 
 
(ii) 
How should the trial Court deal with the claim that due 
to mental illness, an accused is incapable of making 
his/her defence? 
 
(iii) 
Whether a mentally ill condemned prisoner should be 
executed? 
C.R.P. No. 420 etc 
9
13.  
 
In view of serious and important legal questions 
involved in these petitions, notices were issued to the Advocates 
General of Provinces of Sindh, Khyber Pakhtunkhwa, Balochistan and 
Federal Capital Territory. No formal notices were required to be 
issued to the Government of the Punjab and the Federation since they 
already stood represented in C.R.P. No. 424 of 2016 and Crl. R.P. No. 
170 of 2016.  
 
14. 
 
Considering the sensitivity and significance of the issues 
involved, by order dated 17.09.2020, Brigadier (Retd) Professor 
Mowadat Hussain Rana, a renowned Professor of Psychiatry and 
Barrister Haider Rasul Mirza, Advocate Supreme Court of Pakistan 
(ASC) were asked to assist the Court as amici curiae. 
 
ARGUMENTS 
 
15. 
 
Learned counsel for the condemned prisoners Imdad 
Ali, Mst. Kaneezan Bibi and Ghulam Abbas has vehemently 
contended that these convicts are lodged in death cell for a 
considerably long period of time and they are suffering from acute 
mental illnesses. He stated that the Medical Board constituted by this 
Court has given a categoric opinion that Imdad Ali is suffering from 
Schizophrenia, Mst. Kaneezan Bibi has also been diagnosed with the 
same severe lifelong mental illness (Schizophrenia) and Ghulam 
Abbas suffers from cognitive/intellectual impairment. Learned 
counsel further contended that in the face of these mental illnesses, it 
is inhumane to execute the sentence of death of these condemned 
prisoners. While referring to certain provisions of the Prison Rules 
1978 (Rules), learned counsel contended that from a wholistic reading 
of the referred Rules, 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. Therefore, learned counsel prayed 
that this Court may consider serious mental illness of the condemned 
C.R.P. No. 420 etc 
10
prisoners as a mitigating circumstance for converting their sentences 
of death into imprisonment for life. 
 
16. 
 
However, learned counsel for the complainant (in the 
case of condemned prisoner Imdad Ali) opposed the prayer of the 
learned counsel for the condemned prisoner and argued that at the 
time of commission of crime, Imdad Ali was mentally fit and knew 
the consequences of his action. He further argued that at this belated 
stage, when he has virtually exhausted all the remedies available to 
him under the law, he is not entitled to any indulgence. 
 
17. 
 
Brigadier (Retd.) Professor Dr. Mowadat Hussain Rana, 
learned amicus, apprised the Court about the concept and nature of 
different mental diseases. He stated that unlike physical illnesses, 
mental disorders are misunderstood by majority of the people. He 
elaborated that there are myths and misconceptions surrounding 
mental illnesses, their causes, consequences, and the way they 
influence human behavior and even the enlightened sections of the 
society consider mental illness a curse.  
 
18. 
 
He was of the view that even in legal circles, mental 
illnesses are inadequately understood  often raising suspicion and 
doubt. He expressed his view that many in the legal profession 
consider mental illnesses as abstract conditions that are more “in the 
air” or as spiritual and psychological conditions that people 
experience transiently as a result of tensions and stresses of life, rather 
than diseases of mind and brain with a scientific basis. They may 
believe that a mentally ill individual can be spotted easily by asking 
few questions to determine if he/she is ‘sane’ or otherwise. 
 
19. 
 
He 
further 
elaborated 
that 
another 
common 
misconception is that mental illnesses can be very easily feigned in 
order to circumvent the law. He added that there is a wrong 
impression as well that there are no specific assessment methods, 
diagnostic laboratories, radiological tests, or known scientific, 
C.R.P. No. 420 etc 
11
structural and demonstrable means to determine or diagnose mental 
illnesses. He stressed that these notions, unfortunately, do not have a 
scientific basis because psychiatric disorders are like any other 
medical disorder. The diagnosis and objective determination of such 
disorders is a highly technical and a professional pursuit and like all 
other medical disorders, can only be assessed by Psychiatrists with the 
help of mental health professionals through rigorous clinical, 
psychometric and scientific electrophysiological and radiological tests 
and scans of functions of brain and mind. He also added that a 
mentally ill individual with disturbed higher mental functions of 
consciousness, thinking, mood, cognition and with impairment of 
judgment and insight cannot be treated at par with a normal criminal.  
 
20. 
 
He apprised the Court that there are more than 160 
recognized psychiatric disorders. Some of those disorders are Severe 
Mental Illnesses (SMIs), Personality Disorders, and Intellectual 
Disabilities (ID), and such disorders affect the capacity of an 
individual to fend for himself/herself in a court of law. He was of the 
opinion that forensic mental health assessment must, minimally, 
include an expert's opinion on the consciousness, thinking process, 
intellect, mood, emotions, perceptions, judgment and insight of the 
accused person. He also submitted that such assessment must include 
an evaluation of secondary functions of temperament, personality and 
the biological / physical state of the accused before a judgment can be 
passed on the existence or absence of mental illness. He went on to 
submit that in order to ensure a meaningful participation of an accused 
in a criminal trial, as provided by law, there are certain pre-requisites 
such as the accused must understand the nature of charge against 
him/her; he/she should have the ability to impart instructions to 
his/her counsel; he/she should be able to understand the difference 
between pleading guilty and not guilty; he/she must understand what 
is being said during the trial and what to do if he/she does not agree 
with what is being said; he/she must understand the evidence 
produced against him/her during trial and he/she must also be capable 
of leading evidence in his/her defence. He emphasized that without 
C.R.P. No. 420 etc 
12
taking assistance of experts in the field of mental health i.e. 
psychiatrists and psychologists, it cannot conclusively be determined 
by the Court whether the accused is suffering from mental illness or 
whether he/she can understand the charge or defend himself/herself in 
Court and give instructions to counsel. 
 
21. 
 
While commenting on the issue of executing mentally 
ill convicts, the learned amicus stated that in case the condemned 
prisoner is suffering from a mental illness making him/her incapable 
of understanding the retributive rationale behind his/her execution, the 
execution will serve no purpose either to him/her or to the society. 
Elaborating the point, he stated that this does not mean that he/she 
must be set free, rather, if this Court comes to the conclusion that 
mental illness can be a mitigating factor in converting the sentence of 
such a condemned prisoner from death to imprisonment for life, 
specific instructions may be passed on to the respective Governments 
to shift such mentally ill prisoner to some mental health facility for 
proper treatment and rehabilitation. He also suggested that effective 
steps should be taken by the prison authorities to protect a prisoner’s 
mental health, prevent mental illness, ensure early detection and 
provide prompt treatment and rehabilitation. He further suggested that 
proper training be provided to the prison staff to help them deal with 
their stressful and challenging atmosphere. 
 
22. 
 
Learned amicus curiae Barrister Haider Rasul Mirza, 
ASC has also been heard at length. He referred to different provisions 
of domestic and foreign laws on the subject, Prison Rules, Jail 
Manuals, judgments, and other material from domestic and foreign 
jurisdictions, to contend that a serious approach is required to be 
adopted by the Courts if the issue of mental illness of an 
accused/convict is raised either at the time of trial, or while hearing an 
appeal against conviction and sentence of a convict. He, while 
highlighting different provisions of Prison Rules, stated that the death 
sentence cannot be executed in case of a condemned prisoner who is 
unable to take rational decisions and whose ability to understand the 
C.R.P. No. 420 etc 
13
rationale behind his/her punishment is substantially impaired due to a 
medically recognized mental illness. 
 
23. 
 
He also argued that in circumstances where a 
condemned prisoner develops a post-conviction mental illness and 
because of that mental illness, his/her mental faculties are not 
appreciative of the reason behind the punishment imposed by the 
Court, the execution of sentence would serve no purpose. He 
amplified that the retributive idea behind punishment is that it should 
not only serve as a deterrent, but also make one realize that he /she 
committed a wrong which has resulted in punishment. In the absence 
of such realization, due to an involuntarily induced mental disorder or 
illness, execution of a sentence loses its significance and may fail the 
test of proportionality attached to retributive justice. The learned 
amicus also argued that it is not every mental illness which would 
qualify for an exemption. The prohibition on executing mentally ill 
prisoners may be applied only to those who are medically found to be 
suffering from mental illness, the severity of which permanently 
impairs their ability to appreciate the rationale behind the punishment 
which they are sentenced to undergo. 
 
24. 
 
The learned Additional Attorney General for Pakistan, 
learned Law Officers of all the Provinces as well as learned Advocate 
General, Islamabad adopted the submissions and contentions of 
learned amici Barrister Haider Rasul Mirza, ASC and Brigadier 
(Retd.) Professor Dr. Mowadat Hussain Rana. In particular, the 
learned Law Officers principally agreed with the contention of the 
amici curiae that death sentence should not be executed in case of 
those condemned prisoners who, due to mental illness, are unable to 
take rational decisions and understand the rationale behind their 
punishment.  
 
25. 
 
We have heard all in detail, have considered their 
respective submissions and examined the relevant provisions of law 
with their able assistance. 
C.R.P. No. 420 etc 
14
OPINION OF THE COURT 
 
26. 
 
Before we embark upon to address the legal questions 
framed herein above, it is imperative to examine how the term 
“mental illness” has been defined in the domestic and foreign 
jurisdictions. 
 
27. 
 
In our law, some terminologies/phrases/words such as 
“lunatic”, “insane” and “unsound mind” have been used in the PPC, 
Cr.P.C and the Rules, regarding the mental health of an accused or a 
convict. But these terms have not been expressly defined in either of 
these Statutes/Rules.  
 
28. 
 
In Pakistan, the Mental Health Ordinance, 2001 (VIII of 
2001) (Ordinance) was promulgated in the year 2001 which defined 
the terms “mental disorder”, “mental impairment”, “severe personality 
disorder”, “severe mental impairment” and “mentally disordered 
prisoner”. 
 
29. 
 
However, after the passage of 18th Amendment, ‘Health’ 
became a Provincial subject and respective Governments of Sindh, 
Punjab, Khyber Pakhtunkhwa and Balochistan promulgated their own 
Acts in this behalf. These laws also define the terms “mental disorder” 
and “mentally disordered prisoners”. The Ordinance was adopted by 
the Province of the Punjab and amended through the Punjab Mental 
Health (Amendment) Act 2014. The Ordinance defines the terms 
‘mental disorder’, ‘mental impairment’ ‘mentally disordered prisoner’ 
as under:- 
 
(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 
C.R.P. No. 420 etc 
15
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;  
 
(n) “mentally disordered prisoner” means a person, 
who is a prisoner for whose detention in or removal to a 
psychiatric facility or other place of safety, an order has 
been made in accordance with the provisions of section 
466 or section 471 of the Code of Criminal Procedure, 
1898 (Act V of 1898), section 30 of the Prisoners Act, 
1900 (III of 1900), section 130 of the Pakistan Army Act, 
1952 (XXXIX of 1952), section 143 of the Pakistan Air 
Force Act, 1953 (VI of 1953) or section 123 of the 
Pakistan Navy Ordinance, 1961 (XXXV of 1961);” 
 
30. 
 
Almost similar definitions are also available in the 
Sindh Mental Health Act, 2013, the Khyber Pakhtunkhwa Mental 
Health Act, 2017 and the Balochistan Mental Health Act, 2019.  
 
31. 
 
The definitions of mental illness available in these 
Provincial Laws led us to examine the definition of the term “mental 
illness” or “mental disorder” in other jurisdictions.  
 
32. 
 
In the United Kingdom, the Mental Health Act, 1983 
initially defined the term “mental disorder” to mean mental illness, 
arrested or incomplete development of mind, psychopathic disorder 
and any other disorder or disability of mind. However, this definition 
has now been substituted with a less restrictive definition through the 
C.R.P. No. 420 etc 
16
Mental Health Act, 2007. The term “mental disorder” is now defined 
as any disorder or disability of the mind.  
 
33. 
 
In India, the Mental Healthcare Act, 2017 (Indian Law) 
is the prevalent law which deals with providing health care and 
services for persons with mental illness. Section 2(1) (s) defines 
“mental illness” in the following terms:- 
“mental illness” means 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 subnormality of intelligence;” 
 
34. 
 
Further more, section 3(1) of the Indian Law states as 
follows:- 
3.(1) Mental illness shall be determined in accordance 
with such nationally or internationally accepted 
mental standards (including the latest edition of the 
International Classification of Disease of the World 
Health Organization) as may be notified by the 
Central Government. (2) No person or authority shall 
classify a person as a person with mental illness, 
except for purposes directly relating to the treatment 
of the mental illness or in other matters as covered 
under this Act or any other law for the time being in 
force. (3) Mental illness of a person shall not be 
determined on the basis of, -----(a) political, economic 
or social status or membership of a cultural, racial or 
religious group, or for any other reason not directly 
relevant to mental health status of the person; (b) non-
conformity with moral, social, cultural, work or 
political values or religious beliefs prevailing in a 
person’s 
community. 
(4) 
Past 
treatment 
or 
hospitalization in a mental health establishment 
though relevant, shall not by itself justify any present 
or future determination of the person’s mental illness. 
(5) The determination of a person’s mental illness 
shall alone not imply or be taken to mean that the 
person is of unsound mind unless he has been declared 
as such by a competent court. 
 
C.R.P. No. 420 etc 
17
35. 
 
Perusal of section 3(1) of the Indian Law reveals that it 
appreciates the developing nature of medical science and incorporates 
the nationally and internationally accepted medical standards, 
including the latest edition of the International Classification of 
Disease (ICD) of the World Health Organization (WHO), for 
determination of mental illness. We have been apprised that ICD-101 
is the current edition of a medical classification of disease issued by 
the WHO and is expected to be replaced by ICD-11 in 2021/2022. 
Chapter-V of ICD-10 classifies medically recognized mental and 
behavioral disorders. It has been pointed out that Pakistan currently 
follows the ICD-10. However, reference has been made to Chapter 6 
of ICD-11 titled ‘Mental, Behavioral or Neuro-developmental 
Disorders.’ 
It 
defines 
psychiatric 
disorders 
as 
‘syndromes 
characterized by clinically significant disturbance in an individual’s 
cognition, emotional regulation, or behavior that reflects a 
dysfunction in the psychological, biological, or developmental 
processes that underlie mental and behavioral functioning. These 
disturbances are usually associated with distress or impairment in 
personal, family, social, educational, occupational, or other 
important areas of functioning’. This Chapter has 161 categories 
recognized as diseases of psychiatric origin. These categories are 
enlisted under twenty blocks. Some of the blocks which may be 
relevant to Forensic Mental Health in the context of criminal 
administration of justice are: Neuro-developmental disorders, 
Schizophrenia, Catatonia, Mood disorders, Anxiety or related fear 
disorders, Obsessive compulsive disorders, Disorders associated with 
stress, Dissociative disorders, Disorders due to substance use or 
addictive behaviors, Impulse control disorders, Disruptive behavior or 
dissocial disorders, Personality disorders, Paraphilic disorders, 
Factitious 
disorders, 
Neuro-cognitive 
disorders, 
Mental 
and 
behavioral disorders associated with pregnancy and puerperium, 
Secondary mental and behavioral disorders due to other diseases. 
 
                                       
1 https://icd.who.int/browse10/2019/en#V 
C.R.P. No. 420 etc 
18
36. 
 
The term “mental disorder” has also been defined in the 
Diagnostic and Statistical Manual of Mental Disorders (DSM-5) 
published in 2013, as under:- 
“A mental disorder is a syndrome characterized by 
clinically significant disturbance in an individual’s 
cognition, emotion Regulation, or behavior that reflects a 
dysfunction 
in 
the 
psychological, 
biological, 
or 
developmental processes underlying mental functioning. 
Mental disorders are usually associated with significant 
distress or disability in social, occupational, or other 
important activities. An expectable or culturally approved 
response to a common stressor or loss, such as the death 
of a loved one, is not a mental disorder. Socially deviant 
behavior (e.g. political, religious, or sexual) and conflicts 
that are primarily between the individual and society are 
not mental disorders unless the deviance or conflict 
results from a dysfunction in the individual, as described 
above.” 
 
 
37. 
 
An examination of the definitions for mental illness 
provided for in the domestic and foreign laws establishes the fact 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, 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 behavioral disorders as notified by WHO 
through its latest edition of ICD. It has been noted that the evolution of 
medical science and human rights has sensitized the society to 
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 PPC, Cr.P.C. and the Prison 
Rules be substituted with term “mental disorder” or “mental illness”. 
The term “lunatic” wherever occurs shall also be substituted 
appropriately. 
C.R.P. No. 420 etc 
19
 
38. 
 
We now proceed to address the question “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?” 
39. 
 
So far as our criminal law is concerned, the impact of 
mental illness on the act (commission of offence) of an accused 
person and his/her ability to comprehend the legal proceedings before 
the trial Court is dealt with by the PPC and Cr.P.C. There are certain 
Prison Rules as well which deal with the mental health of under trial 
prisoners and convicts.  
 
40. 
 
In a criminal trial, two situations may possibly arise in 
relation to mental health of an accused: firstly, his/her state of mind at 
the time of commission of offence; and secondly, his/her mental 
condition before the commencement or during the course of trial. For 
the first situation i.e. mental condition at the time of commission of 
offence, section 84 of PPC is relevant. Whereas, for the second 
situation i.e. mental condition of accused before the commencement or 
during trial, Chapter XXXIV of Cr.P.C, particularly sections 464 and 
465 are relevant. 
 
41. 
 
Mental condition at the time of commission of offence is 
considered as an exception (where act though committed yet not 
treated as offence) under section 84 of PPC which is reproduced as 
under:- 
“84. Act of a person of unsound mind. Nothing is an 
offence which is done by a person who, at the 
time of doing it, by reason of unsoundness of 
mind, is incapable of knowing the nature of the 
act, or that he is doing what is either wrong or 
contrary to law.” 
 
 
 
42. 
 
The scope of section 84 PPC and the principles related 
thereto were discussed in detail by this Court in the case of Khizar 
C.R.P. No. 420 etc 
20
Hayat versus. The State2. In this case, the Court was seized with a 
criminal appeal filed by convict against his conviction and sentence of 
death, with the plea that at the time of commission of the offence, he 
was insane and suffering from schizophrenia and his case was fully 
covered under section 84 PPC. This Court, while relying upon the 
interpretation of section 84 PPC in the case of The State versus 
Balahari Das Sutradhar3, 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. We have 
carefully examined the law laid down in Khizar Hayat supra as well 
as in Lal Khan versus The Crown4 and Gholam Yousaf versus The 
Crown5 wherein the principles relating to a plea under section 84 PPC 
were dealt with in detail and it was unequivocally held by the Lahore 
High Court that in relation to a plea of an accused under section 84 
PPC, the onus to prove the same is on the accused and the correctness 
or otherwise of the plea shall be decided after looking at the entire 
material/evidence available on the record.  
 
43. 
 
Thus, within the contemplation of section 84 PPC, 
whenever the plea is raised regarding the state of mind of accused at 
the time of commission of offence, the onus-like all other exceptions 
in Chapter IV of PPC-will be on the defence (accused) to prove such a 
plea as contemplated in Article 121 of the Qanun-e-Shahadat Order, 
1984 (QSO). As per Article 121 of QSO, the onus is on the accused to 
                                       
2 2006 SCMR 1755 
3 PLD 1962 Dacca 467 
4 PLD 1952 Lahore 502 
5 PLD 1953 Lahore 213 
C.R.P. No. 420 etc 
21
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. While considering the case law referred to herein 
above, we hold that in the case of a special plea under section 84 PPC, 
the Courts should keep the following principles in view:-  
(i) 
It is the basic duty of the prosecution to prove its case 
against the accused beyond reasonable doubt and the 
prosecution will not be absolved of this duty if the 
accused is unsuccessful in proving a plea raised on 
his/her behalf. 
 
(ii) 
Where the accused raises any specific plea, permissible 
under the law, including a plea under section 84 PPC, 
the onus to prove such plea is on the accused. However, 
while proving such plea, the accused may get benefit 
from any material, oral or documentary, produced/relied 
upon by the prosecution.  
44. 
 
Now we address the second question, “How should the 
trial Court deal with the claim that due to mental illness, an accused 
is incapable of making his/her defence?”. To answer this question, 
reference to the relevant provisions of Cr.P.C. is essential which are  
being reproduced:- 
464. Procedure in case of accused being lunatic. (1) 
When a Magistrate holding an inquiry or a trial has 
reason to believe that the accused is of unsound mind 
and consequently incapable of making his defence, the 
Magistrate shall inquire into the fact of such 
unsoundness, and shall cause such person to be 
examined by the Civil Surgeon of the district or such 
other medical officer as the Provincial Government, 
directs and thereupon shall examine such Surgeon or 
other officer as a witness, and shall reduce the 
examination to writing. 
 
(1A) Pending such examination and inquiry, the 
Magistrate may deal with the accused in accordance 
with the provisions of section 466. 
 
C.R.P. No. 420 etc 
22
(2) If such Magistrate is of opinion that the accused is of 
unsound mind and consequently incapable of making his 
defence he shall record a finding, to that effect and, 
shall postpone further proceedings in the case. 
 
465. Procedure in case of person sent for trial before 
Court of Session or High Court being lunatic. (1) If 
any person before a Court of Session or High Court 
appears to the Court at his trial to be of unsound mind 
and consequently incapable of making his defence, the 
Court shall, in the first instance, try the fact of such 
unsoundness and incapacity, and if the Court is satisfied 
of the fact, it shall record a finding to that effect and 
shall postpone further proceedings in the case. 
(2) The trial of the fact of unsoundness of mind and 
incapacity of the accused shall be deemed to be part of 
his trial before the Court. 
 
45. 
 
Section 464 Cr.P.C. is relevant for trial of an accused 
before a Magistrate, whereas section 465 Cr. P.C. deals with the trial 
of accused before a Court of Sessions or High Court. It is clear from 
the provision of section 464 Cr.P.C. that if a Magistrate holding an 
inquiry or a trial, has reason to believe that the accused is suffering 
from mental illness and is consequently incapable of making his/her 
defence, he shall inquire into the fact of such mental illness, and shall 
also cause such person to be examined by a Civil Surgeon of the 
District or such other medical officer as the Provincial Government 
directs. Thereafter, he shall examine such Surgeon or other officer as a 
witness and also shall reduce the examination in writing. Under the 
provision of section 465, Cr.P.C. if any person before a Court of 
Session or a High Court appears to the Court to be suffering from 
mental illness and is consequently incapable of making his/her 
defence, the Court shall, in the first instance, try the fact of such 
mental illness and resulting incapacity. If the Court is satisfied of this 
fact, it shall record a finding to that effect and shall postpone further 
proceedings in the case. 
 
46. 
 
A bare reading of sections 464 and 465, Cr.P.C. led us to 
consider the ancillary question “Whether the trial Court can form a 
C.R.P. No. 420 etc 
23
prima facie subjective view regarding the incapability of the accused 
to make his/her defence without seeking the opinion of the medical 
expert?”  
 
47. 
 
To address these legal questions, our attention has been 
drawn to the precedent case law wherein sections 464 and 465 Cr.P.C. 
have been interpreted. The first case in line is Ata Muhammad 
versus The State6. In this case, a Division Bench of the High Court 
interpreted sections 464 & 465, Cr.P.C. in an appeal against 
conviction and sentence awarded to Ata Muhammad under section 
302 PPC. The main thrust of arguments of learned counsel for convict 
Ata Muhammad was his mental condition at the time of commission 
of offence, inquiry and trial of the case. The relevant portion of the 
judgment regarding this issue is reproduced herein below:- 
“12…… The legal position which emerges from the two 
sections is that under section 464 the Magistrate must 
have reason to believe that the accused person before 
him is of unsound mind and incapable of understanding 
the proceedings, and under section 465 it should appear 
to the Court at the trial that the accused person suffers 
from unsoundness of mind and thus is incapable of 
making his defence. In either case the action is to follow 
the subjective reaction of the Magistrate or the Court to 
the situation that arises before him. If, during the 
inquiry, nothing comes to the notice of a Magistrate to 
induce a belief in him that an accused person is of 
unsound mind and if at the trial before the Sessions 
Court it does not appear to the latter that the accused is 
of unsound mind and consequently incapable of making 
his defence, there is nothing for them to do except to 
proceed with the inquiry or the trial in the normal 
manner. The words “appear to the Court” are used in 
section 465 while the words “has reason to believe” are 
used in section 464, but it is clear that in practical effect 
they mean almost the same thing. The phrase “to 
appear” in my judgment used in the context of section 
465 in its meaning is nearest to the phrase “to be in 
one’s opinion” as given in the Shorter Oxford 
Dictionary. 
                                       
6PLD 1960 (W.P.) Lahore 111 
C.R.P. No. 420 etc 
24
 
In Sher Afzal versus The State7, learned High Court while 
deciding an appeal against conviction and sentence under section 302, 
307 PPC addressed a technical objection regarding failure on the part 
of trial judge to comply with erstwhile provision of section 4658 
Cr.P.C. and observed as under:- 
“4. It will be noticed that if the trial Court wants to 
satisfy itself about the mental state of the accused person 
and his capacity to make his defence, then it is bound to 
enquire into the question with the aid of assessors and 
not alone, and on this point the provision of section 465 
is mandatory. In the present case, the learned trial Judge 
enquired into the question of whether the accused was or 
was not capable of understanding the proceedings of the 
trial, but he did it without the aid of assessors. The 
learned Additional Advocate-General concedes that non-
compliance with the mandatory provision of section 465 
vitiates the trial. In Santokh Singh v. Emperor (AIR 1926 
Lah. 498) their Lordships held the same view and 
ordered retrial on similar ground.” 
 
 
In the case of Abdul Hamid versus the State9, while dealing 
with an appeal against conviction and sentence of death under section 
302 PPC, the learned High Court while interpreting erstwhile 
provision of section 465, Cr.P.C. made following observations:- 
“16. ……… There are two stages in the section. The first 
stage is that it must appear to the Court that the accused, 
placed on trial before it, was of unsound mind and 
incapable of making his defence. The next stage is of 
trying the question of unsoundness of mind which has to 
follow the first stage, namely, when it appears to the 
Judge that the accused was of unsound mind and 
incapable of making his defence. Then starts an enquiry 
into the second question, which has to be tried by the 
Court as a preliminary proceeding with the aid of the 
assessors……..The question, therefore, that remains for 
                                       
7PLD 1960 WP Peshawar 66 
8 465 (1) if any person committed for trial before a Court of Session or a High 
Court appears to the Court at his trial to be of unsound mind and consequently 
incapable of making his defence, the jury, or the Court with the aid of assessors, 
shall, in the first instance, try the fact of such unsoundness and incapacity, and if 
the jury or Court, as the case may be, is satisfied of the fact, the Judge shall record 
a finding to that effect, and shall postpone further proceedings in the case and the 
jury, if any, shall be discharged. 
(2) The trial of the fact of the unsoundness of mind and incapacity of the accused 
shall be deemed to be part of his trial before the Court.” 
9PLD 1962 (W.P.) Quetta 111 
C.R.P. No. 420 etc 
25
determination is, whether the Court was bound to hold an 
enquiry and try the question, whether the appellant was of 
unsound mind or not. In our view the mere making of an 
application on behalf of a person, committed for trial, that 
he was of unsound mind, is not sufficient to necessitate the 
holding of an enquiry. It must appear also to the Court 
that the accused may be of unsound mind and when it so 
appears, an enquiry is necessary and the question whether 
the accused is of unsound mind or not and incapable of 
making his defence, has to be decided with the aid of the 
assessors. The learned Sessions Judge, with a view to 
satisfy himself, put certain questions to the appellants and 
then came to the conclusion that he did not seem to be of 
unsound mind and incapable of making his defence. The 
examination of the accused was with a view to see if it 
appeared that he was of unsoundness of mind. The 
examination was in relation to the first stage and not the 
second stage. The learned counsel for the appellant 
argues that the examination of the appellant amounted to 
an enquiry in the second stage and the question of 
unsoundness of mind had to be determined with the aid of 
the assessors. We do not agree with this contention, as we 
consider that the examination related to the first stage 
with a view to see if it appeared to the Court that he was 
of unsound mind and consequently incapable of making 
his defence. In this view we are supported by the decisions 
in Emperor v. Durga Charan Singh (AIR 1938 Cal. 6), 
Emperor v. Bahadur (AIR 1928 Lah. 796) and Nabi 
Ahmad Khan v. Emperor (AIR 1932 Oudh 190)…..  
 
48. 
 
We may add that the afore-mentioned cases dealt with 
the erstwhile provision of section 465 Cr.P.C. which now stands 
substituted with the current provision through the Law Reforms 
Ordinance, 1972. Being relevant to the concept of fair trial, the 
existing provision of section 465 Cr.P.C. continued to enjoy the same 
attention as the erstwhile provision. The following cases are instances 
where sections 464 and 465 (after substitution) Cr.P.C. were once 
again subject of judicial interpretation.  
 
49. 
 
In Munshi Khan versus The State10, it was argued that 
despite issue of appellant’s incapacity to face trial and making his 
                                       
101982 P Cr. L J 778 [SC (A J & K)] 
C.R.P. No. 420 etc 
26
defence, the learned trial Court failed to make requisite enquiries as 
envisaged in section 465, Cr.P.C. The Court observed as under:- 
“6. The language used in the sections suggests that 
prima facie when there was some evidence to believe or 
it so appeared, that an accused person was insane and 
consequently incapable of making his defence, it was 
enjoined upon the trial court to stop the trial and first 
hold independent inquiry into the question of such 
insanity. The words “has reason to believe” used in 
section 464 and the words “appears to the Court” used 
in section 465 are synonymous. In both the sections 
except that the forums are different, spirit of law is 
common. The discretion vested in the Magistrate or the 
Court has to be exercised in judicial fashion. The words 
“has reason to believe” “appears to the Court” are to 
be construed to suggest that there must be some tangible 
evidence of insanity of accused person. The belief of the 
Court must not rest on imaginative, speculative, 
hypothetical 
or 
arbitrary 
grounds. 
A 
tentative 
satisfaction of Court is a condition precedent to the 
inquiry in insanity. The trial Court is not obliged to stop 
trial and embark upon the inquiry or insanity merely on 
pointing out of defence counsel that accused was insane 
or when insanity was feigned. It should have its own 
satisfaction on the question.” 
 
 
In Abdul Wahid alias Wahdi versus the State11, the 
procedure laid down in sections 464 and 465, Cr.P.C. attracted the 
attention of this Court and while interpreting these provisions, it was 
observed as under:- 
“…….Chapter XXXIV of the Criminal Procedure Code 
which contains sections 464 to 475 deals with the trial of 
a lunatic person. These provisions make it obligatory on 
the Court holding an inquiry or a trial, if it has reasons 
to believe that the accused in the case is of unsound mind 
and in consequence is incapable of making his defence, 
to first hold an inquiry into the facts of such unsoundness 
of mind of the accused and for that purpose to get the 
accused examined by the Civil Surgeon of the district or 
by such other Medical Officer as the Provincial 
Government may direct and then record the result of such 
examination in writing. Pending inquiry into the 
unsoundness of mind of the accused the trial before the 
Court is to remain suspended. If as a result of the inquiry 
into the unsoundness of mind of the accused, it is found 
                                       
111994 SCMR 1517 
C.R.P. No. 420 etc 
27
that the accused is of unsound mind and consequently 
incapable of making his defence the trial or inquiry has 
to be adjourned until such time the accused regains from 
his mental illness. While adjourning the trial or inquiry 
the Court has discretion either to enlarge him on bail or 
commit him in the safe custody as in the opinion of the 
Court may be necessary and report the matter to 
Provincial Government. The trial or inquiry so postponed 
could be resumed at any time by the Court if it is found 
that the accused is now in a position to make his defence 
in the case. However, if upon resumption of inquiry the 
accused once again is found to be incapable of making 
his defence, the inquiry and trial is again to be adjourned 
for such period the accused again recovers from his 
illness. Apart from obligation of the Court to hold an 
inquiry into the fact of unsoundness of the mind of the 
accused in the above-stated circumstances, the combined 
effect of sections 469 and 470, Cr.P.C. is that the Court 
shall also hold an inquiry, if it appears from the evidence 
produced before it, or if it has reasons to believe that the 
accused was incapable of understanding the nature of 
offence at the time he committed it for reasons of 
unsoundness of mind, into the fact of unsoundness of the 
mind of the accused at the time he committed the offence. 
If the Court reaches the conclusion after holding such 
inquiry, that the accused was incapable of understanding 
the nature of act constituting the offence for reasons of 
unsoundness of mind, the accused will be acquitted, but 
the Court shall give a specific finding whether he 
committed the act or not. The above finding by the Court 
is necessary as further action against the accused upon 
his acquittal in the case is to be taken by the Court under 
sections 471, 474 and 475, Cr.P.C.….” 
 
 
In Fauqual Bashar versus the State12, this Court examined 
the procedure laid down in sections 464 and 465, Cr.P.C. In this case, 
leave was granted by this Court in following terms:- 
“Brother of the accused, who is facing trial on the charge 
of murder in the trial court, made an application in the 
trial court raising plea that his brother is mentally 
deranged and is unable to understand the nature of the 
proceedings. Application was dismissed and in the High 
Court revision application was filed which also has been 
dismissed. Learned counsel for the petitioner has filed 
documents which show that the accused remained in the 
mental hospital for treatment. Plea is rejected by the two 
Courts below on the ground that the accused does not 
                                       
121997 SCMR 239 
C.R.P. No. 420 etc 
28
claim to be insane and refuses to go for medical 
examination on the ground that he is normal. Question 
arises whether in such circumstances it was incumbent 
upon the Courts to have sent the accused for medical 
examination on the point whether he is insane or not or 
the Courts could decide this question on the basis of other 
attending circumstances of the case. 
2. Leave is granted to consider the above contention. 
Proceedings in the trial Court are stayed until further 
orders.” 
It was held that:- 
“5. In context of insanity, the state of mind of an accused 
person, firstly, at the time of occurrence and, secondly, at 
the time of inquiry or trial is a question of fact. When a 
Court is confronted with the question during an inquiry or 
trial, whether or not an accused is of unsound mind and 
incapable of understanding the proceedings against him, it 
has to take action under sections 464 and 465, Cr.P.C. 
according as one or other is attracted to the case…” 
 
While placing reliance upon the case of Ata Muhammad supra 
the Court concluded that: 
“5.…Nonetheless, we are in no doubt that where it does 
not appear to the Court at all from its own observations or 
any other factor that the accused is because of 
unsoundness of mind incapable to make his defence, it is 
under no obligation to investigate the fact of unsoundness 
of mind.” 
 
 
Next case in line is that of Sirajuddin versus Afzal Khan and 
another13. In this case, the provision of section 465, Cr.P.C. was once 
again interpreted by this Court. While declining to grant leave to 
appeal against the judgment passed by the learned Peshawar High 
Court, whereby conviction and sentence of the accused under section 
302 PPC was set aside and the trial was held to be vitiated due to non-
compliance with the procedure laid down under section 465, Cr.P.C., 
the Court made the following observations:- 
“7. From perusal of the above it is clear that whenever 
question of insanity is brought to the notice of the Court the 
Court shall satisfy itself in the manner provided under the 
                                       
13PLD 1997 SC 847 
C.R.P. No. 420 etc 
29
law; whether the person is capable of understanding the 
trial and defending himself. For such satisfaction medical 
evidence is of utmost importance. 
8. In the instant case, therefore, it is to be seen; whether, the 
fact of insanity of the accused/respondent was ever brought 
to the notice of the Court at the trial stage and as to 
whether the trial Court complied with the above provision 
of law, before entering into the trial……” 
 
50. 
 
The term “reason to believe” came under discussion in 
the case of Chaudhry Shujaat Hussain versus The State14 where 
while referring to the interpretation of the term in the case of Moulvi 
Fazlul Qader Choudhury versus Crown15 this Court held:-  
“…The term "reason to believe" can be classified at a 
higher pedestal than mere suspicion and allegation but 
not equivalent to proved evidence. Even the strongest 
suspicion cannot transform in "reason to believe….” 
 
51. 
 
After a careful examination of the case law discussed 
above, we hold that the terms “reason to believe” and “appears to the 
Court” used in sections 464 and 465 Cr.P.C are synonymous and refer 
to a tentative opinion which has to be formed for the purpose of 
deciding whether or not to enquire into the issue of capability of the 
accused to face trial as a question of fact. 
52. 
 
We further hold that whenever the trial Court is put to 
notice, either by express claim made on behalf of the accused or 
through Court’s own observations, regarding the issue of incapability 
of accused to understand the proceedings of trial and to make his/her 
defence, the same shall be taken seriously while keeping in mind the 
importance of procedural fairness and due process guaranteed under 
the Constitution and the law.  
53. 
 
The terms “reason to believe” and “appears to the 
Court” in the context of sections 464 and 465 Cr.P.C are to be 
interpreted as a prima facie tentative opinion of the Court, which is 
not a subjective view based on impressions but one which is based on 
                                       
14 1995 SCMR 1249 
15 PLD 1952 FC 19 
C.R.P. No. 420 etc 
30
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 
demeanor of an accused person. Failure of the parties to raise such a 
claim, during trial, does not debar the Court from forming an opinion 
on its own regarding the capability of an accused person to face the 
proceedings of trial. In such a situation, the Court may rely on its own 
observations regarding the demeanor and conduct of the accused 
either before or at the time of taking a plea against the charge or at any 
later stage. The Court may take note whether he/she is being 
represented by Counsel or not and consider the material (if any) 
available on record which may persuade it to enquire into the 
capability of the accused to face trial. The Court may assess the 
mental health condition of an accused by asking him/her questions 
such as why he/she is attending the Court; whether he/she is able to 
understand the proceedings which are being conducted (trial); whether 
he/she is able to understand the role of people who are a part of the 
trial; the basic procedure may be explained to him/her to assess 
whether he/she is able to understand such procedure and whether 
he/she is able to retain information imparted to him/her; whether the 
accused is able to understand the act committed by him/her and what 
the witnesses are deposing about his/her act; and whether he/she is 
able to understand the evidence being produced by the prosecution 
against him/her. However, we would like to clarify that a prima facie 
tentative opinion cannot be formed by the Court only on the basis of 
such questions posed to the accused. The Court is required to 
objectively consider all the material available before it, including the 
material placed/relied upon by the prosecution. 
 
54. 
 
Once the Court has formed a prima facie tentative 
opinion that the accused may be incapable of understanding the 
proceedings of trial or make his/her defence, it becomes obligatory 
upon the Court to embark upon conducting an inquiry to decide the 
C.R.P. No. 420 etc 
31
issue of incapacity of the accused to face trial due to mental illness. 
Medical opinion is sine qua non in such an inquiry.  For this purpose, 
the Court must get the accused examined by a Medical Board, to be 
notified by the Provincial Government, consisting of qualified medical 
experts in the field of mental health, to examine the accused person 
and opine whether accused is capable or otherwise to understand the 
proceedings of trial and make his/her defence. The report/opinion of 
the Medical Board must not be a mere diagnosis of a mental illness or 
absence thereof. It must be a detailed and structured report with 
specific reference to psychopathology (if any) in the mental functions 
of consciousness, intellect, thinking, mood, emotions, perceptions, 
cognition, judgment and insight. The head of the Medical Board shall 
then be examined as Court witness and such examination shall be 
reduced in writing. Both the prosecution and defence should be given 
an opportunity to cross examine him in support of their respective 
stance. Thereafter, if the accused wishes to adduce any evidence in 
support of his/her claim, then he/she should be allowed to produce 
such evidence, including expert opinion with the prosecution given an 
opportunity to cross examine. Similarly, the prosecution may also be 
allowed to produce evidence which it deems relevant to this 
preliminary issue with opportunity given to the defence to cross 
examine. It is upon the consideration of this evidence procured and 
adduced before the Court that a finding on this question of fact i.e. the 
capability of the accused to face trial within the contemplation of 
sections 464 and 465 Cr.P.C. shall be recorded by the Court. 
 
55.  
 
Therefore, in view of the foregoing, the question “How 
should the trial Court deal with the claim that due to mental illness, 
an accused is incapable of making his/her defence?” and the 
supplementary question “Whether the trial Court can form a prima 
facie subjective view regarding the incapability of the accused to 
make his/her defence without seeking the opinion of the medical 
expert?” are both answered in the above said terms. 
 
C.R.P. No. 420 etc 
32
56. 
 
We hold that words “Civil Surgeon” and “medical 
officer” used in Chapter XXXIV Cr.P.C. and Prison Rules be 
substituted by the relevant Legislature with “Medical Board”. The 
Medical Board shall comprise of qualified and experienced 
Psychologists and Psychiatrists. The concerned governments are 
directed to take immediate steps to do the needful.  
57. 
 
Now we address the important legal question: “Whether 
a mentally ill condemned prisoner should be executed?” 
 
58. 
 
Our attention has been drawn to the fact that in Pakistan 
there is no express provision in any Statute or Rules, which places 
express restriction on the execution of a convict who is on death row 
and suffering from mental illness. However, reference has been made 
to certain provisions in the Prison Rules, which may be termed as 
implied safeguards against execution of mentally ill condemned 
prisoners. The relevant Rules to which our attention has been drawn 
are reproduced herein below:- 
Rule-107.- The following instructions are laid down for 
the preparation and submission of mercy petition of 
condemned prisoners by the Superintendent of the 
prison:- 
 
(i) Each and every mercy petition submitted by a 
condemned prisoner shall simultaneously be addressed 
to the President of Pakistan, Islamabad and the 
Governor of the Province and should be in duplicate. 
 
(ii) If the petition is submitted in Urdu or any other 
language it shall be accompanied by a carefully 
prepared translation in English in duplicate, which to 
ensure its accuracy should be examined by the 
Superintendent. The documents shall be attested by the 
Superintendent. 
 
(iii) The mercy petition roll, in duplicate, shall also 
accompany the petition. 
 
(iv) In case where the condemned prisoner takes plea of 
young or old age, unsound mind or ill-health, two 
copies of the Medical report by the Medical Officer, of 
the prison shall also be submitted, stating therein the 
correct age, ailment, infirmity, etc., as the case may be. 
C.R.P. No. 420 etc 
33
 
(v) If in the opinion of the Superintendent and the 
Medical Officer the prisoner was below 18 years of age 
on the date of occurrence of the crime or above 60 
years on the date of submission of mercy petition, a 
copy of the birth certificate or particulars of birth viz 
date of birth of the prisoner and the name of the union 
council or committee and the district where the entry of 
birth was recorded may be obtained from the relatives 
of the prisoner and forwarded to Government. 
 
(vi) All correspondence pertaining to condemned 
prisoner shall always be made in pink coloured 
envelopes 
inscribed. 
"Death 
case 
Immediate" 
standardized for use in all prisons. 
 
Rule-362. 
(i) 
The 
Superintendent 
and 
Deputy 
Superintendent will visit the condemned prisoner in his 
cell a few minutes before the hour fixed for execution. 
The Superintendent shall first identify the prisoner as 
the person named in the warrant and read out a 
translation of the warrant and sequence of rejection of 
appeal and mercy petitions in national or regional 
language to the prisoner in the presence of the 
Coordination Officer. Any other document requiring 
signature by the prisoner, such as his will, shall 
thereafter be signed by him and attested by the 
Coordination Officer. The Superintendent will then 
proceed to the scaffold; the prisoner remaining in his 
cell. In the presence of the Deputy Superintendent the 
hands of the prisoner will next be pinioned behind his 
back and his fetters (if any) removed.” 
 
 
59. 
 
Rule 
107 
(iv) 
makes 
it 
obligatory 
upon 
the 
Superintendent of the prison to submit two copies of the medical 
report along with a mercy petition to the President of Pakistan and the 
Governor of the Province, in case where the condemned prisoner takes 
a plea of mental illness. Rule 362 read with the language used in the 
warrant, issued under section 381 Cr.P.C, shows that the purpose 
behind this rule is to convey to the condemned prisoner the reason 
behind his execution. Similarly, the purpose behind informing him 
that his appeal and mercy petition stand rejected is to make him aware 
that he has exhausted all the legal remedies against his/her conviction. 
With this understanding, Rule 362 provides the condemned prisoner 
an opportunity to write a will before being executed. Therefore, this 
C.R.P. No. 420 etc 
34
Rule can be termed as an implied safeguard against execution of death 
sentence where a condemned prisoner, due to mental illness, has lost 
his ability to reason and understand the rationale behind his/her 
punishment. 
 
60. 
 
The issue of executing a mentally ill condemned 
prisoner has also been considered in other jurisdictions. In particular, 
the judicial opinions of the Supreme Courts of United States and India 
are relevant. 
 
61. 
 
The question of mental illness and execution of death 
sentence was dealt with by the Supreme Court of United States in the 
case of Ford v. Wainwright16. It was held by a plurality opinion that 
the Eighth Amendment17 prohibits a State from carrying out sentence 
of death upon a prisoner, who is insane. The reasons provided by the 
plurality judgment were (i) killing one who has no capacity to 
understand his/her crime or punishment offends humanity; (ii) lack of 
retributive value in executing a person who has no comprehension or 
awareness of penalty’s existence and purpose. 
 
62. 
 
The Supreme Court of United States clarified the scope 
of the category of accused persons exempt from execution in the case 
of Pannetti v. Quarterman18 by setting a “standard for competency”. 
This standard focuses on whether a condemned prisoner can reach a 
rational understanding of the reason for his/her execution. A clear 
pronouncement of the principles laid down by the Supreme Court of 
United States is found in the following passage of its judgment in the 
case of Madison v. Alabama19:- 
“…..This Court decided in Ford v. Wainwright, 477 U. S. 
399 (1986), that the Eighth Amendment’s ban on cruel 
and unusual punishments precludes executing a prisoner 
                                       
16477 U. S. 399 (1986) 
17Excessive bail shall not be required, nor excessive fines imposed, nor cruel and 
unusual punishments inflicted. 
18551 U.S 930. (2007) 
19586 U.S. ____(2019) 
C.R.P. No. 420 etc 
35
who has “lost his sanity” after sentencing. Id., at 406. 
While on death row, Alvin Ford was beset by “pervasive 
delusion[s]” 
associated 
with 
“[p]aranoid 
[s]chizophrenia.” Id., at 402-403. Surveying both the 
common law and state statutes, the Court found a uniform 
practice against taking the life of such a prisoner. See id., 
at 406-409.  Among the reasons for that time-honored bar, 
the Court explained, was a moral “intuition” that “killing 
one who has no capacity” to understand his crime or 
punishment “simply offends humanity.” Id., at 407, 409; 
see id., at 409 (citing the “natural abhorrence civilized 
societies feel” at performing such an act).  Another 
rationale rested on the lack of “retributive value” in 
executing a person who has no comprehension of the 
meaning of the community’s judgment. Ibid.; see id., at 
421 (Powell, J., concurring in part and concurring in 
judgment) (stating that the death penalty’s “retributive 
force []depends on the defendant’s awareness of the 
penalty’s existence and purpose”).  The resulting rule, 
now stated as a matter of constitutional law, held “a 
category of defendants defined by their mental state” 
incompetent to be executed. Id., at 419. 
 
63. 
 
Now, we refer to the decisions rendered by the Supreme 
Court of India with regard to the issue of prohibition of executing 
mentally ill death row convicts.  
 
In the case of Shatrughan Chauhan and another v. Union of 
India and others20, a number of convicts prayed for the issuance of a 
writ inter alia declaring that execution of a mentally ill/insane death 
row convict is unconstitutional. It was held:- 
86 The above materials, particularly, the directions of 
the United Nations International Conventions, of which 
India is a party, clearly show that insanity/mental 
illness/schizophrenia 
is 
a 
crucial 
supervening 
circumstance, which should be considered by this 
Court in deciding whether in the facts and 
circumstances of the case death sentence could be 
commuted to life imprisonment. To put it clear, 
"insanity" is a relevant supervening factor for 
consideration by this Court. 
87. In addition, after it is established that the death 
convict is insane and it is duly certified by the 
competent doctor, undoubtedly, Article 21 protects him 
                                       
20(2014)3 SCC1 
C.R.P. No. 420 etc 
36
and such person cannot be executed without further 
clarification from the competent authority about his 
mental problems. It is also highlighted by relying on 
commentaries from various countries that civilized 
countries have not executed death penalty on an insane 
person. The learned Counsel also relied on the United 
Nations Resolution against execution of death 
sentence, debate of the General Assembly, the 
decisions of International Court of Justice, Treaties, 
European Conventions, 8th amendment in the United 
States which prohibits execution of death sentence on 
an insane person. In view of the well-established laws 
both in the national as well as international sphere, we 
are inclined to consider insanity as one of the 
supervening 
circumstances 
that 
warrants 
for 
commutation of death sentence to life imprisonment. 
In 'X' v. State of Maharashtra21, complex questions 
concerning the relationship between mental illness and crime were 
raised. While addressing the issues of mental illness and execution, 
the Court ruled: - 
60. Moreover, Article 20 of the Constitution guarantees 
individuals the right not to be subjected to excessive 
criminal penalty. The right flows from the basic tenet of 
proportionality. By protecting even those convicted of 
heinous crimes, this right reaffirm the duty to respect 
the dignity of all persons. Therefore, our Constitution 
embodies broad and idealistic concepts of dignity, 
civilized standards, humanity, and decency against 
which penal measures have to be evaluated. In 
recognizing these civilized standards, we may refer to 
the aspirations of India in being a signatory to the 
Convention on Rights of Persons with Disabilities, 
which endorse prohibition of cruel, inhuman or 
degrading punishments with respect to disabled 
persons. Additionally, when the death penalty existed in 
England, there was a common law right barring 
execution of lunatic prisoners. Additionally, there is a 
strong international consensus against the execution of 
individuals with mental illness. 
………………….. 
68. In line with the above discussion, we note that 
there appear to be no set disorders/disabilities for 
evaluating the severe mental illness, however a test 
of severity can be a guiding factor for recognizing 
                                       
21(2019) 7 SCC 1 (also available at 2019 SCC OnLine SC 543) 
C.R.P. No. 420 etc 
37
those mental illnesses which qualify for an 
exemption. Therefore, the test envisaged herein 
predicates that the offender needs to have a severe 
mental illness or disability, which simply means that 
a medical professional would objectively consider 
the illness to be most serious so that he cannot 
understand or comprehend the nature and purpose 
behind the imposition of such punishment. These 
disorders generally include schizophrenia, other 
serious 
psychotic 
disorders, 
and 
dissociative 
disorders with schizophrenia. 
 
64. 
 
Reference is also made to international human rights law 
which we have found relevant. Rule 109 of the United Nations 
Standard Minimum Rules for the Treatment of Prisoners (the Nelson 
Mandela Rules) lays down that:- 
1. Persons who are found to be not criminally 
responsible, or who are later diagnosed with severe 
mental disabilities and/or health conditions, for whom 
staying in prison would mean an exacerbation of their 
condition, shall not be detained in prisons, and 
arrangements shall be made to transfer them to mental 
health facilities as soon as possible. 
2. If necessary, other prisoners with mental disabilities 
and/or health conditions can be observed and treated 
in specialized facilities under the supervision of 
qualified health-care professionals. 
3. The health-care service shall provide for the 
psychiatric treatment of all other prisoners who are in 
need of such treatment. 
 
65. 
 
Our attention has also been drawn to the Resolution 
2000/65 adopted by the United Nations Commission on Human Rights 
in the year 2000, whereby all the States who still sustain death penalty 
were urged “not to impose the death penalty on a person suffering 
from any form of mental disorder or to execute any such person". 
Reference has also been made to the International Covenant on Civil 
and Political Rights (ICCPR) and the Convention on Rights of Persons 
with Disabilities (CRPD), both ratified by the Government of 
Pakistan, in support of the contention that cruel, inhuman or degrading 
punishment shall not be awarded. 
C.R.P. No. 420 etc 
38
66. 
 
After considering the material discussed herein above, 
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, then carrying out the death sentence will not meet the 
ends of justice. However, it is 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 consisting of 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, the Federal Government (for 
Islamabad Capital Territory) and each Provincial Government shall 
constitute and notify, a Medical Board comprising of qualified 
Psychiatrists and Psychologists from public sector hospitals.  
 
67. 
 
After discussing legal aspects relevant for disposal of the 
issues in hand, we would now deal with the captioned petitions 
separately: 
IMDAD ALI’S CASE 
(Crl.R P. No. 170 of 2016 in 
Crl. Appeal No. 619 of 2009) 
 
68. 
 
The delay in filing Crl. Review Petition No. 170 of 2016 
has already been condoned vide order of this Court dated 23.10.2018. 
 
69. 
 
Further to the narration of facts in paragraphs 4 to 8 
above, it is evident from a perusal of the record that to ascertain the 
mental health condition of convict Imdad Ali, the learned 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 Imdad Ali or any argument advanced by the learned counsel in 
support of his contentions and grounds raised in the application filed 
C.R.P. No. 420 etc 
39
under section 465 Cr.P.C. We do not appreciate such a slipshod 
approach of the trial Court regarding a crucial legal issue and the 
same cannot be condoned.  
 
70. 
 
We have also observed that the issue of mental illness of 
Imdad Ali was not even appreciated by the learned High Court in its 
true perspective. Perhaps this oversight was on account of lack of 
assistance on behalf of counsel for convict Imdad Ali. Our 
observation finds support from paragraph 2 of the judgment of learned 
High Court, which is reproduced as under:- 
 
“2. Before proceeding further it may be noted that 
the learned counsel for the appellant had not 
turned up in this case on 4.11.2008 when the 
matter was adjourned to 5.11.2008 and on 
5.11.2008 on account of the written request for 
adjournment the counsel being sick, the matter was 
adjourned for today with appointment of counsel 
for the appellant at State expense as an abundant 
caution, in case the learned counsel for the 
appellant still did not appear and today the 
position is that the learned counsel for the 
appellant has not bothered to enter appearance or 
intimate this Court any further, therefore, we have 
heard Sh. Imtiaz Ahmad, advocate, the learned 
counsel appointed for him at State expense and 
proceeded to dispose of the appeal and the Murder 
Reference.” 
 
 
71. 
 
As earlier pointed out that during trial, a counsel at State 
expense was appointed to represent the condemned prisoner Imdad 
Ali and on unwillingness of the said counsel to conduct trial, another 
counsel was appointed also at State expense. Furthermore, when the 
original counsel for the convict Imdad Ali failed to appear before the 
learned High Court at the time of hearing of his criminal appeal along 
with Murder Reference, the learned 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. This hasty approach 
cannot be appreciated because it was a matter of life and death for the 
convict Imdad Ali. After the learned High Court had appointed a 
C.R.P. No. 420 etc 
40
counsel at State expense, he should have been given sufficient time to 
prepare his brief and to take instructions from his client (the convict). 
The issue of mental illness of Imdad Ali has been dealt with by the 
learned High Court in the following manner:- 
“……Since there is overwhelming evidence on record 
justifying the conviction………..in the absence of any 
solid material on the file regarding mental illness of 
the appellant, mere statement of wife of the appellant 
as DW1 would not create any room for the appellant 
for lesser sentence….”  
 
 
72. 
 
As already observed, after dismissal of his criminal 
appeal by the learned High Court, the condemned prisoner Imdad Ali 
filed a petition through jail, wherein leave to appeal was granted by 
this Court on 13.11.2009 culminating into Crl. Appeal No. 619 of 
2009, which was dismissed vide judgment dated 19.10.2015. It would 
thus be seen that neither before the trial Court, learned High Court, 
nor before this Court was the issue of mental illness of Imdad Ali 
appreciated in terms of section 465 of Cr.P.C.  
 
73. 
 
Another important aspect of the matter is that while 
hearing the subject petitions, a Medical Board was constituted to 
report about the mental health condition of the condemned prisoner 
Imdad Ali. The report of the Medical Board dated 19.09.2019 
registered as CMA No. 8850 of 2019 has been placed on record, 
which is reproduced as under:- 
“1. Imdad Ali S/O Muhammad Ismail was mentally 
re-examined by the Medical Board on 14th September 
2016 at 1200 hrs in Adyala Jail Rawalpindi. It is the 
opinion of Medical Board, that accused Imdad Ali is 
suffering from chronic Schizophrenia (insanity) and 
the Board stands by its opinion previously given. 
 
2. After re-examination and reviewing the documents 
available and considering the present mental state of 
accused, it is likely that illness had already started 
at the time of crime, and he might have committed 
murder under the delusional belief of persecutions 
(insanity). Even, medical record available dated 10 
November 2000 (prior to the act of crime) reveals 
that Imdad Ali was examined by a Medical Officer of 
C.R.P. No. 420 etc 
41
Services Hospital Lahore. In his opinion Imdad Ali, 
seemed to be suffering from Schizophrenia and he 
referred him to Mental Hospital for further 
management and evaluation.” 
 
 
74. 
 
In the circumstances of the case, and in view of what has 
been discussed above, coupled with the fact that convict Imdad Ali is 
behind bars for the last about 20 years and has served out substantive 
part of alternative sentence provided under section 302(b) PPC i.e. 
imprisonment for life, we do not feel it appropriate to remand the case 
for denovo trial. It is relevant to mention here that in this case, no 
review was filed by the convict Imdad Ali after dismissal of his appeal 
by this Court against his conviction and sentence. However, a review 
petition has been filed by the State, through Prosecutor General 
Punjab, with the prayer to review the judgment passed by this Court in 
Crl. Appeal No. 619 of 2009. The review is being sought on the 
ground that in the circumstances of the case and keeping in view the 
mental health condition of convict Imdad Ali, his sentence of death 
may be converted into imprisonment for life. Without touching the 
mental health condition of convict Imdad Ali, we have observed that 
there are sufficient reasons/circumstances available on record, which 
warrant conversion of his death sentence to imprisonment for life. 
Firstly, the motive set up by the prosecution was disbelieved by the 
trial Court in Para 25 of its judgment after assigning valid and 
convincing reasons. This fact was not considered by this Court while 
dismissing the appeal of Imdad Ali perhaps due to lack of proper 
assistance. This oversight qualifies as a ground for review and 
consequently converting the sentence of death to imprisonment for 
life. Secondly, as earlier pointed out, convict Imdad Ali has already 
served out about 20 years of his substantive sentence. Therefore, on 
the principle of legitimate expectancy of life recently considered by 
this Court in the case of Sikandar Hayat and another versus the 
State and others22, he is entitled to conversion of death sentence to 
that of imprisonment for life. Resultantly, Criminal Review Petition 
                                       
22PLD 2020 SC 559 
C.R.P. No. 420 etc 
42
No. 170 of 2016 is allowed. The judgment passed by this Court in Crl. 
Appeal No. 619 of 2009 is reviewed and recalled. Consequently, Crl. 
Appeal No. 619 of 2009 is partly allowed. The conviction of appellant 
Imdad Ali under section 302(b) PPC is maintained, however, his 
sentence of death is converted into imprisonment for life, with benefit 
of section 382-B, Cr.P.C. The amount of compensation and sentence 
in its default shall remain intact. 
(C.R.P. Nos. 420 & 424 of 2016) 
 
75. 
 
As already mentioned in Para 8 above, Mst. Safia Bano 
(wife of convict Imdad Ali) has filed C.R.P. No. 420 of 2016, whereas 
C.R.P. No. 424 of 2016 has been filed by the Inspector General of 
Prisons, Punjab seeking review of this Court’s judgment in C.P. No. 
2990 of 2016 dated 27.09.2016, which is reported as PLD 2017 SC 
18, passed while placing reliance upon the view of the Supreme Court 
of India in the case of Amrit Bhushan Gupta v. Union of Indian 
and others23 and Ram Narain Gupta v. Smt. Rameshwari 
Gupta24. It appears that this Court was not properly assisted in the 
matter which led to a misplaced reliance upon the case of Ram 
Narain supra which in fact dealt with the question of mental illness 
with regard to the dissolution of marriage considering the provisions 
laid down in the Hindu Marriage Act, 1955. The case was not relevant 
to the distinguishable circumstances of the case of Imdad Ali. In this 
backdrop, Paragraphs 9 and 10 of the judgment rendered in the case of 
Ram Narain are being reproduced for ease of reference:- 
 
“9.  The point, however, to note is that S. 13(1)(iii) does not 
make the mere existence of a mental disorder of any degree 
sufficient in law to justify the dissolution of a marriage. 
Section 13 (1)(iii) provides: 
“S.13. Divorce: (1) Any marriage solemnised, whether 
before or after the commencement of this Act, may, on a 
petition presented by either husband or the wife, be 
dissolved by a decree of divorce on the ground that the 
other party- 
and (ii) omitted as unnecessary. 
                                       
23AIR 1977 SC 608 
24AIR 1988 SC 2260 
C.R.P. No. 420 etc 
43
(iii)  has been incurably of unsound mind, or has been 
suffering from continuously or intermittently from 
mental disorder of such a kind and to such an extent 
that the petitioner cannot reasonably be expected to live 
with the respondent. 
 
Explanation: In this clause, 
 
 the expression mental disorder means mental illness, 
arrested or incomplete development of mind, psychopathic 
disorder or any other disorder or disability of mind and 
includes schizophrenia.” 
Omitted as unnecessary. 
 
 
10.  
The context in which the idea of unsoundness of 
‘mind’ and ‘mental disorder’ occur in the section as 
grounds for dissolution of a marriage, require the 
assessment of the degree of ‘mental-disorder’. Its degree 
must be such as that the spouse seeking relief cannot 
reasonably be expected to live with the other. All mental 
abnormalities are not recognized as grounds for grant of 
decree. If the mere existence of any degree of mental 
abnormality could justify dissolution of a marriage few 
marriages would, indeed, survive in law.” 
 
76. 
 
It also appears that this Court was not apprised of the 
fact that the opinion of the Supreme Court of India in the case of 
Amrit Bhushan was revisited by a three Judge Bench in the case of 
Shatrughan Chauhan and Another v. Union of India and Others25 
which was followed by a larger (four Judge) Bench in the case of 
Navneet Kaur v. State (NCT of Delhi) and another26. These 
judgments were further relied upon in the case of ‘X’ v. The State of 
Maharashtra27 where the Court was called upon to decide how 
culpability should be assessed for sentencing those with mental illness 
and whether treatment is better suited than punishment. The following 
observation of the Supreme Court of India in the case of Accused ‘X’ 
merits to be once again cited being relevant to the questions posed 
before this Court:- 
“68. In line with the above discussion, we note that 
there appear to be no set disorders/disabilities for 
                                       
25 (2014) 3 SCC 1 
26 (2014) 7 SCC 264 
27 (2019) 7 SCC 1 (also available at 2019 SCC OnLine SC 543) 
C.R.P. No. 420 etc 
44
evaluating the severe mental illness, however a test of 
severity can be a guiding factor for recognizing those 
mental illness which qualify for an exemption.  
Therefore, the test envisaged herein predicates that the 
offender needs to have a severe mental illness or 
disability, which simply means that a medical 
professional would objectively consider the illness to 
be most serious so that he cannot understand or 
comprehend the nature and purpose behind the 
imposition of such punishment. These disorders 
generally 
include 
schizophrenia, 
other 
serious 
psychotic disorders, and dissociative disorders with 
schizophrenia.” 
 
77. 
 
Since we have already allowed the review petition filed 
by the State in the case of Imdad Ali by converting his sentence of 
death into imprisonment for life, so these review petitions have 
become infructuous and are disposed of accordingly. However, we 
hold that the observations of this Court in the judgment reported as 
PLD 2017 SC 18 are not relevant anymore and are of no legal effect. 
 
KANEEZAN BIBI’S CASE 
(H.R.C. No. 16514-P of 2018) 
 
78. 
 
As discussed in Para 9 above, on 17.04.2018 the then 
Hon’ble Chief Justice after perusal of a report submitted by the 
Superintendent Central Jail Lahore directed the office to fix the instant 
case along with C.R.P. No. 420 of 2016. The case came up for hearing 
on 21.04.2018 and it was observed as under:- 
“2. Let the same Medical Board, as has been 
constituted by this Court in the case of Sofia Bano, be 
constituted for the purpose of examining Kaneezan Bibi 
at Lahore. The Board shall examine her and submit a 
report to this Court. In the meanwhile, the order of her 
execution is suspended. She shall immediately be 
shifted to the Punjab Institute of Mental Health (PIMH) 
under the supervision of Dr. Tahir Pervaiz, Consultant 
Psychiatrist PIMH. She shall be provided the best 
available medical facilities.” 
79. 
 
The report of Medical Board has since been received 
vide letter dated 19.09.2019, which has been placed on record as CMA 
No. 8851 of 2019. The relevant portion of the report of Medical Board 
is reproduced herein below:- 
C.R.P. No. 420 etc 
45
“1. Medical Board examined accused Kaneezan 
Bibi on 14 September 2019 at 1000 hrs in Adyala 
Jail Rawalpindi. Mental state examination 
revealed, a middle aged lady adequately kempt 
and fully aware of her surrounding and 
environment. She was electively mute (voluntary 
refusal to speak). There was no evidence of any 
psychotic illness (insanity) at the time of 
examination, she fully communicated through 
gestures of hands and head…….. 
 
3. After going through the available documents it 
is obvious that Kaneezan Bibi was never referred 
to mental health services till 2000 when her co-
accused Khan Muhammad was executed and her 
own execution was stayed. Medical Board is of 
the opinion that most likely Kaneezan Bibi 
developed Depression with psychotic symptoms 
due to stress of her impending execution for 
which she has been under treatment of mental 
health services ever since. 
 
4. Medical Board is of the opinion that it is likely 
the Kaneezan Bibi was not suffering from 
Schizophrenia (insanity) at the time of committing 
crime and for 11 years following that.” 
 
80. 
 
When this case came up for hearing on 21.09.2020, after 
hearing the learned counsel for the convict and perusal of report of 
Medical Board, referred to above, it was observed that Mst. Kaneezan 
Bibi needed re-examination. Therefore, the Medical Board constituted 
for medical examination of condemned prisoner Ghulam Abbas was 
directed to also examine Mst. Kaneezan Bibi and submit its report. 
The report of Medical Board has been received which is placed on 
record through CMA No. 7386 of 2020. The findings of the Medical 
Board are as under:- 
“It is assessed by panel that Ms. Kaniza is having 
Mutism (Not Speaking), unresponsive to commands, 
lack of eye contact, talking to herself, lack of warmth, 
socially inappropriate smile (smiling not in response to 
environment). On further assessment, she has Alogia 
(No Speech), Avolition (Lack of motivation), Anhedonia 
(complete lack of interest), Apathy (No Emotional 
Response, lack of Spontaneity) (lack of prompt action 
verbal, emotional and physical), slowness, negativism 
(Negative or opposite physical reaction), self-muttering 
(talking to herself in very low voice) and withdrawn 
C.R.P. No. 420 etc 
46
emotionally (Isolated from environment)………She has 
been diagnosed as having severe lifelong Mental illness 
“schizophrenia”. She will need lifelong treatment 
Psychiatric tools could not be applied because of her 
mental status.” 
 
81. 
 
It has been observed by us that Mst. Kaneezan Bibi is 
behind bars for the last about 32 years meaning thereby that she has 
served out more than the alternate sentence provided under section 
302(b) PPC i.e. imprisonment for life. On this score, it is a fit case 
where principle of legitimate expectancy of life can be invoked. The 
office has reported that after dismissal of her criminal appeal by this 
Court on 02.03.1999, she did not file any review petition. In the 
circumstances of the case, since no review petition has been filed by 
Mst. Kaneezan Bibi, we while exercising our suo motu jurisdiction to 
review coupled with the power available to this Court under Article 
187 of the Constitution to do complete justice, review the judgment 
dated 02.03.1999 only to the extent of Crl. Appeal No. 415 of 1994 
filed by Mst. Kaneezan Bibi. Consequently Crl. Appeal No. 415 of 
1994 is partly allowed. The conviction of Mst. Kaneezan Bibi under 
section 302(b)/34 PPC on six counts is maintained, however, her 
sentence of death on six counts is converted into imprisonment for life 
on six counts. It has been observed by us that Mst. Kaneezan Bibi was 
also directed by the learned trial Court to pay fine of Rs.20,000/- and 
in default of payment of fine, she has to undergo 05 years RI, on each 
count, which sentence in default is otherwise against the relevant 
provisions of law. Therefore, she is directed to pay compensation of 
Rs.20,000/- under section 544-A Cr.P.C. to legal heirs of each 
deceased, in default whereof she will have to undergo SI for six 
months on each count. Benefit of section 382-B, Cr.P.C. is extended to 
her. All the sentences of imprisonment of Mst. Kaneezan Bibi shall 
run concurrently. 
82. 
 
However, in view of the medical opinion placed on 
record regarding the mental health condition of convicts Imdad Ali 
and Mst. Kaneezan Bibi, we direct the Government of the Punjab to 
immediately shift them from prison to Punjab Institute of Mental 
C.R.P. No. 420 etc 
47
Health, Lahore for treatment and rehabilitation in accordance with 
provisions of Prison Rules. On the completion of their sentence, they 
shall be examined afresh by the Medical Board required to be notified 
by the Government of Punjab in pursuance of the directions issued in 
this judgment. They shall be released from the hospital as and when 
the said Medical Board opines that they are fit for themselves and for 
the society. 
GHULAM ABBAS’S CASE 
(Const. Petition No. 09 of 2019) 
 
83. 
 
As discussed in Paras 10 and 11 above, the conviction 
and sentence of death awarded to Ghulam Abbas were maintained up 
to this Court and even the review petition filed by him stands 
dismissed.  
 
84. 
 
A Medical Board constituted by this Court vide order 
dated 21.09.2020 was directed to examine Ghulam Abbas and submit 
a report whether he is suffering from any mental illness. The said 
report has since been received and placed on record as C.M.A. No. 
7386 of 2020. The Medical Board has concluded in the said report as 
under:- 
“Conclusion: On the basis of formal and informal 
assessment of Ghulam Abbas, it is concluded that 
though he was aware of his surroundings, i.e.; Jail or 
hospital but he was unable to understand and 
comprehend instructions for the tests administered on 
him. His performance shows the presence of 
neurological 
illness 
and 
impaired 
cognitive 
functioning which is further validated by his estimated 
IQ (<59) according to his performance on Benton 
Visual 
Retention 
Test 
(BVRT) 
and 
Standard 
Progressive Matrices (SPM). Thus, on the basis of his 
formal and informal assessments, it is concluded that 
Ghulam Abbas was having cognitive / intellectual 
impairment. 
 
At the time of testing and while admitted in the 
hospital, he was having psychotic symptoms as well, 
which affected his ability to comprehend tests 
instructions as well as performance on different tests 
administered on him. Therefore, it is suggested to keep 
him under observation and appropriate treatment be 
C.R.P. No. 420 etc 
48
provided (for example: his behavior in the ward, 
interaction with other patients and doctors for a 
period of time.) till he is recovered from psychosis. 
Reassessment by a Board of Professionals is 
recommended after six months.” 
 
 
85. 
 
It has been observed by us that Ghulam Abbas has 
exhausted all the remedies available to him under the law. However, 
the plea taken by him that he is suffering from mental illness is 
endorsed by the report of the Medical Board constituted by this Court, 
alluded to in the preceding paragraph. Though, it has come on record 
that a mercy petition filed by condemned prisoner Ghulam Abbas was 
rejected by the President of Pakistan yet there is nothing on record to 
show whether the ground of mental illness was taken into 
consideration while dismissing the mercy petition. Keeping in view 
the judgment of this Court reported as Moinuddin and others versus 
the State and others28, whereby a fresh mercy petition was directed 
to be submitted on behalf of condemned prisoners, and on 
consideration of the peculiar circumstances of the instant case, we 
direct the concerned Jail Superintendent to ensure that a fresh mercy 
petition is filed on behalf of condemned prisoner Ghulam Abbas. The 
mercy petition is to be prepared in accordance with relevant Prison 
Rules and submitted to the President of Pakistan mentioning therein 
the plea of mental illness taken by condemned prisoner Ghulam 
Abbas along with copies of his entire medical history/record, copies 
of report of Medical Board constituted by this Court on 21.09.2020 
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. The instant 
Constitution Petition is disposed of in terms noted above. 
 
86. 
 
Till the disposal of Mercy Petition, it is directed that 
condemned prisoner Ghulam Abbas shall be immediately shifted to 
                                       
28PLD 2019 SC 749 
C.R.P. No. 420 etc 
49
Punjab Institute of Mental Health, Lahore in accordance with 
provisions of Prison Rules for his treatment and rehabilitation. 
 
87. 
 
In view of the foregoing, we deem it appropriate to 
direct that:- 
i. 
The Federal Government and all the Provincial 
Governments 
shall 
immediately 
make 
necessary 
amendments in the relevant laws and the rules in the 
light of observations given in this judgment, particularly 
those in Paras 37, 56 and 66 above. 
 
ii. 
The Prison Rules shall be appropriately amended so as 
to bring the jail manuals of all the Provinces in harmony.  
 
iii. 
The Federal Government (for Islamabad Capital 
Territory) and all the Provincial Governments shall 
immediately establish/create High Security Forensic 
Mental Health Facilities in the teaching and training 
institutions of mental health for assessment, treatment 
and rehabilitation of under trial prisoners and convicts 
who have developed mental ailments during their 
incarceration. 
 
iv. 
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 who no longer have 
the higher mental functions to appreciate the rationale 
and reasons behind the sentence of death awarded to 
them are not executed.  
C.R.P. No. 420 etc 
50
 
v. 
The Federal Government (for Islamabad Capital 
Territory) and all the Provincial Governments shall 
immediately constitute and notify a Medical Board 
consisting of two qualified and experienced Psychiatrists 
and one Psychologist from public sector hospitals at 
Islamabad (in case of Federal Government) and at each 
Divisional 
Headquarter 
of 
the 
Provinces 
for 
examination, assessment and rehabilitation of the 
prisoners i.e. under-trial and convicts, if referred by the 
jail authorities. The said Medical Board shall also be 
authorized to examine those accused persons who are 
referred by the trial Court(s) for examination under the 
provisions of sections 464 and 465 Cr.P.C.  
 
vi. 
The Federal Government (for Islamabad Capital 
Territory) and all the Provincial Governments shall 
immediately launch training programs and short 
certificate courses on forensic mental health assessment 
for psychiatrists, clinical psychologists, social workers, 
police and prison personnel.  
 
vii. 
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.  
 
 
88. 
 
Office is directed to send copies of this judgment to the 
Federal Secretary, Ministry of Law & Justice, Federal Secretary, 
Ministry of Interior, Government of Pakistan, the Chief Secretaries of 
all the four provinces as well as the Federal and Provincial Judicial 
Academies for compliance. 
 
C.R.P. No. 420 etc 
51
89. 
 
Before parting with this judgment, we appreciate the 
assistance rendered by learned counsel for the condemned prisoners 
(in all the petitions), learned counsel for complainant (in C.R.P. Nos. 
420, 424 & 170 of 2016), learned Additional Attorney General for 
Pakistan, learned Advocate General Islamabad and learned Law 
Officers of different provinces. We also commend and appreciate the 
assistance and efforts put in, and that too with alacrity, by the learned 
amici curiae Barrister Haider Rasul Mirza, ASC and renowned 
psychiatrist Brigadier (Retd.) Professor Mowadat Hussain Rana. It 
was a treat to hear them. The way Barrister Haider Rasul Mirza, ASC 
dug out the relevant law both from domestic and foreign jurisdictions 
and made submissions in his persuasive style was invaluable indeed. 
The way Professor Mowadat Hussain Rana articulated his viewpoint 
and highlighted different mental ailments in his suave and lucid style 
was equally commendable.  
 
