Domestic Law and Jurisprudence
1. Domestic Law
Capital punishment is a legal penalty in Pakistan for a number of offences. The legal method of execution is hanging according to Sec. 368 of the Code of Criminal Procedure 1898.
However, a moratorium on executions was imposed in 2008, when the then-President Asif Ali Zardari signed it into effect.[1] Therefore, no executions occurred from 2009 to 2011, while one occurred in 2012. The moratorium was lifted temporarily for terrorism-related cases in 2014 following the Army Public School massacre of 132 students and 9 members of staff. Then, in 2015, the moratorium was completely lifted.[2] Pakistan carried out 7 executions in 2014, 326 in 2015, 87 in 2016, 65 in 2017, 14 in 2018, and 14 in 2019.[3]
There are more than 33 offences in Pakistan that are punishable by death,[4] including murder, rape, blasphemy, high treason and drug smuggling, among others. However, Article 45 of the Constitution of Pakistan grants the President the “power to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by any Court, tribunal or other authority”.
A second or subsequent mercy petition on new grounds, under Pakistan Prison Rule 101, can also be forwarded to the Provincial Government for consideration. Pakistan Prison Rule 104(viii) outlines that mercy petitions submitted on behalf of a prisoner on death row are considered petitions from the prisoner himself.
In addition, redressal for the execution of pregnant women is provided for under Sec. 382 of the Code of Criminal Procedure 1898 and Sec. 314 of the Pakistan Penal Code, 1860. The provision regarding the prohibition for carrying out the death penalty on a minor is found in Sec. 16 of the Juvenile Justice System Act 2018.
2. Jurisprudence
Over the last decade, the Supreme Court has established the principle that the death penalty should only be applied in exceptional circumstances. The Supreme Court has also upheld death sentences only for offences which cause death and involve exacerbating circumstances. There is also a presumption in favour of life imprisonment over death sentences, as can be seen by jurisprudence developed by the Supreme Court. For instance, the Supreme Court commuted the death sentence in 35% of over 300 judgments between 2010 and 2018.[5]
An analysis of the Supreme Court on judgements by the lower courts reveal that acquittals or commutations ordered by the Court usually include reasons for miscarriages of justice including reliance on unreliable witness testimony, sentencing an accused to death who has not been properly identified, the application of death sentences despite a lack of evidence, reliance on evidence that was planted or manipulated by corrupt police officers, an arbitrary application of a death sentence for one accused while acquitting co-accused on the same evidence, conviction despite prosecution failure to establish “intention, guilty mind or motive” of the accused, and reliance by the lower courts on confessions which were involuntary, retracted or obtained using improper procedure.[6]
Moreover, the superior courts have also established that the existence of mitigating factors must be fully considered before a death sentence is awarded. Typical forms of mitigating factors as identified through the Supreme Court’s jurisprudence include the type and gravity of the offence, lesser participation, a lack of premeditation, provocation, social and familial circumstances, partial compromise with the victim’s family, the age of the offender, acting under the influence of an elder, the mental state of the accused, capacity for reform, and time spent on death row.[7]
Some such cases have been discussed subsequently.
Muhammad Sharif v. State[8]
In an appeal to the Supreme Court after High Court had set aside the judgment of acquittal passed by the Trial Court and awarded death sentence to the accused, the case was re-examined through a reappraisal of evidence. This landmark ruling established the presumption in favour of life sentences over the death penalty, while relying upon Article 9 of the Constitution. It further emphasized on the Court’s duty to consider the aggravating and mitigating circumstances before the option of a death penalty is exercised. The Court held that the extreme penalty of death need not be inflicted except in gravest cases of extreme culpability, and that life imprisonment is the rule and death sentence is an exception. The Court further stated that it could inflict the death penalty without hesitation, if the victim had been done to death in in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner, so as to arouse intense and extreme indignation of the community. It further held that the Court is expected to proceed very carefully and cautiously in the exercise of such discretion and not to ignore the gravity of the offence committed. In the case, the Court stated that the lack of apparent planning, premeditation or intention to kill the deceased was a sufficient mitigating factor to reduce the sentence. Therefore, the Court found this case as one in which a life imprisonment would meet the ends of justice, and converted the death sentence to life imprisonment.
Iftikhar Ahmed Khan v. Asghar Khan[9]
In an appeal for the enhancement of sentence against the order of the Lahore High Court that reduced the death sentence awarded by the Sessions Court for murder to one of life imprisonment, the Supreme Court outlined the discretion of the Court to award sentence of death or punishment of imprisonment for life. The Court highlighted that the facts and circumstances of each case must be observed to see in which case the penalty of death must be imposed. However, the Court maintained that the penalty of death must be imposed if the Court finds the manner and method of incident to be in the nature of a brutality, horrific, heinous, shocking involving terrorist nature, creating panic in the society as a whole or in part, callous and cold blooded. In such cases, the penalty of death must not be withheld; in other words, grave inhuman attitude, acts, manners, methods and the criminality of actions are the constituents, elements and the instances, where punishment of death must be awarded. The appeal for enhancement of sentence was hence dismissed.
Tariq Mehmood v. The State 2011 SCMR 1880 SC[10]
In this appeal filed against the conviction of a death sentence for a double murder case, the accused had entered into a compromise with the legal heirs of deceased persons, and had filed an application accordingly. The Court found that a compromise with some members of the victim’s family, in addition to the fact that the incident in question was neither brutal nor gruesome or shocking, was sufficient to dismiss the appeal and the application for compromise, hence converting the death sentence to life imprisonment. The Court also recognised the fact that the offender had no previous criminal record as a mitigating factor in such commutation.
Sabeeha v. Ibrar & others[11]
In an appeal in a case of murder and unlawful assembly armed with deadly weapons, the Court upheld the reduction of the sentence of death awarded to the accused into imprisonment for life by the High Court. It was a case involving multiple shooters firing indiscriminately. The Court stated that “it was not possible to identify as to whose fire hit whom and, in such circumstances, award of maximum sentence (i.e. death) would not be in consonance with safe administration of justice.” Hence, it declined to interfere in the judgment passed by the High Court by stating that it is neither arbitrary nor unjust, and dismissed the appeal.
Hassan & others v. The State & others[12]
In an appeal for a reduction of sentence from death to imprisonment for life in a case of murder, the Supreme Court held that there is no ‘normal penalty’ for murder. The Court further advanced the principle that prisoners who spend a period on death row that is “equal to or more than a term of imprisonment for life [are] reasonably entitled to an ‘expectation of life.’” It said that if a convict sentenced to death for murder has undergone a period of custody equal to or more than a term of imprisonment for life during the pendency of his legal remedy and failed to obtain a final judicial determination for such a long time, the State, acting through its judicial organ, might acknowledge a failure of its constitutional responsibility of ensuring expeditious justice and might reduce the sentence from death to imprisonment for life. Although such a case may not strictly be termed as a case of double punishment, it could more appropriately be called a case of an unconscionably delayed punishment, delayed to such an extent that the punishment was aggravated beyond the contemplation of the relevant law itself. The Court further stated that the legislative intent might also lean in favour of extending some relief to a convict placed in such a predicament which was not of his own making. However, it also held that such a relief shall not be applicable to a case wherein the convict was himself demonstrably and significantly responsible for the delay occasioned in conclusion of his judicial remedies.
Ghulam Mohy-ud-din alias Haji Babu v. the State[13]
In this appeal for a reduction in sentence of death in a case concerning murder, the Court ruled that a “single mitigating instance, available in a particular case, would be sufficient to put on guard the Judge not to award the penalty of death but life imprisonment,” if it creates reasonable doubt in the mind of the Judge. The Court stated that judicial caution must be exercised to award the alternative sentence of life imprisonment, so that an innocent person might not be sent to the gallows, and that it is better to respect human life, as far as possible, than to put to at an end. In this case, the Court found that the motive of the incident remained unproven, due to which the sentence of death awarded to the accused and co-accused was not warranted in law. The Court further noted that once the legislature had provided for awarding alternative sentence of life imprisonment, it would be difficult to hold that in all the cases of murder, the death penalty was the ‘normal penalty’ and should ordinarily be awarded, due to which the intent of the legislature was not to necessitate the death penalty. Hence, the Court found that awarding one or the other sentence essentially depended upon the facts and circumstances of each case. Moreover, the Court also held that it is highly desirable and legally appropriate to reduce sentence of an accused from death to life imprisonment if the accused has already remained in jail and death cell for a significant period, for instance in this case, as under-trial prisoner for about two years and almost 16 years in the death cell. The conviction of the accused individuals was maintained but their sentences of death were reduced to life imprisonment.
Azeem Khan v. Mujahid Khan[14]
This appeal in a case of kidnapping for ransom and murder was filed before the Supreme Court after the Lahore High Court confirmed the death sentence awarded by the Anti-Terrorism Court to the two appellants. Even though, in the case, a DNA report of bones was admitted into the evidence and relied upon, the Court stated that it would in no manner be sufficient to connect the necks of the accused persons with the commission of the crime when the bulk of other evidence against them was found to be unbelievable, and thus, such a DNA report is not sufficient to award a capital sentence. Moreover, the Court found illegalities committed by the Magistrate in recording confession of accused, due to which the judicial confession was considered unworthy of reliance. It also stated that extra-judicial confessions are a weak type of evidence on basis of which conviction on capital charge could not be recorded. With regard to circumstantial evidence, the Supreme Court stated that different pieces of circumstantial evidence must make one chain, an unbroken one where one end of it touched the dead body and the other the neck of the accused; any missing link in such chain, would break the whole chain, and no conviction could be recorded in crimes entailing capital punishment. Due to this, Courts must take extraordinary care and caution before relying on the circumstantial evidence to award capital punishment. The Court also warned lower courts to remain impartial, even when adjudicating particularly gruesome murders. The Court found that the Trial Court had relied on highly cryptic and infirm evidence to award death sentence to accused persons, set aside convictions and death sentences awarded to accused persons and acquitted them of the charge.
Muhammad Ismail v. the State[15]
In this case, Muhammad Ismail, the accused was sentenced to death by the trial court in 2005, and his sentence was commuted to life by the Supreme Court in 2017. The Court through this case, adopted a more lenient approach for crimes committed in rural areas by offenders motivated by community or familial enmities. The basis upon which the commutation was granted was that “some detestable affairs in the family of the deceased were prevailing, rendering the appellant unable to bear the stigma/blot on the escutcheon (family honour). The Court stated that “the rustic and conservative mind, a distinct feature of our rural society, is always susceptible to drive away a person to a point, retrieval wherefrom, becomes impossible.” It further stated with regard to the death penalty that “once the prosecution sets up a particular motive but fails to prove the same, then, ordinarily capital sentence of death is not awarded, which is a consistent view of the Supreme Courts since long.”
Amjad Shah v. The State[16]
In this case, the Supreme Court held that “youthful tendency toward excitement and impulsiveness” should be “treated by the law as a mitigating circumstance” against a death sentence. Moreover, the Court highlighted that the accused’s intention, guilty mind or motive to commit the offence, if unproven, the Court must, for the sake of administration of justice, adopt caution and treats the lack of motive as a mitigating circumstance for reducing the quantum of sentence awarded to a convict.
Muhammad Sharif v. State[17]
In this appeal in an anti-terrorism case, upon a reappraisal of evidence, a reduction in the quantum of sentence was sought. The Court altered the death sentence to imprisonment for life, and the reason stated was that the casings found wedded with the recovered gun were dispatched subsequent to the arrest of accused. This factor was viewed by the High Court as a mitigating circumstance for the co-accused.
Iftikhar Ahmad v. State[18]
In this case under the Anti-Terrorism Act on murder and abduction for extorting property, valuable security etc., the death sentence was commuted to life imprisonment since the Court found that no DNA identification of swabs had been carried out. The Court stated that the Prosecution’s failure to carry out DNA profile generation of rectal and vaginal swabs was a grievous lapse, which, in retrospect, made a case for the revisiting of the sentence of the accused. Hence, the death penalty awarded to the accused on all counts was altered to imprisonment for life.
Mst. Safia Bano v. Home Department, Govt. of Punjab thr. its Secretary, Lahore & others[19]
In this case, the Supreme Court reviewed several civil and criminal petitions and had to determine questions relating to liability of, competence to undergo trial and execution of sentence for accused persons who suffer from mental illness. The Court dealt with cases of Imdad Ali, Mst. Kaneezan Bibi and Ghulam Abbas to explain whether execution of death sentence against the accused, could be allowed in light of their mental illness. The following legal questions were posed by the Court: how a trial Court should deal with a plea by an accused should that he/she was suffering from mental illness at the time of commission of the crime, how should the trial Court deal with claims that the accused is incapable of presenting a defence owing to their mental illness, and finally whether a mentally ill prisoner should be executed.
These legal questions have been a focus of much debate in Pakistan. Before embarking on a discussion on the legal questions, the Court determined the definition of ‘mental illness’ in Pakistan. The Court referred to the Mental Health Ordinance, 2001 which defines mental disorder as mental illness, mental impairment, severe personality disorder and any other disorder which may amount to a disability of mind. Furthermore, mental impairment has been defined within the Ordinance as when an individual suffers from arrested or incomplete development of the mind due to which intelligence, social functioning and a person’s conduct is impacted. The Ordinance also defines severe personality disorder as a persistent disability of the mind which may lead to aggressive or abnormal behaviour in a person. Severe mental impairment has been defined as well, as a state of incomplete development which severely impacts the social functioning and conduct of a person, and finally a mentally disordered prisoner has been defined as a prisoner, subjected to detention, or removed to a psychiatric facility in accordance with the law. Post devolution, these definitions have been adopted through the Punjab Mental Health (Amendment) Act 2014, the Sindh Mental Health Act, 2013, the Khyber Pakhtunkhwa Mental Health Act, 2017 and the Balochistan Mental Health Act, 2019.
In assessing domestic, and foreign definitions of mental illness, the Court conclude that mental illness, or mental disorder are both used to refer to mental ailments, and recognised that with the advancement of medical science, the definition may evolve.
In answering the first legal question, the Court further explained that in a criminal trial, two situations regarding the mental health of an accused could arise: firstly, the state of mind of the accused at the time of the commission of the crime, and secondly, the mental state of the accused prior to the commission of the crime. The first instance is dealt with under Section 84 of the PPC, to understand the application of which the Court referred to cases such as Khizar Hayat v. The State,[20] Lal Khan v. The Crown,[21] and Ghulam Yousuf v. The Crown,[22] and stated that the onus to prove the plea under Section 84 lays with the accused which must be supported by material and evidence available on record. The Court laid down guidance in relation to a Section 84 plea and stated that in assessing the applicability of the Section, the following must be considered: that the prosecution is under a duty to prove its case against the accused beyond reasonable doubt, but where the accused raises a specific plea, then the onus shifts to the accused who may use oral or documentary evidence to support their plea.
With regards to the second question, the Court referred to Section 464 and 465 of the Cr.P.C which deal with trial of an accused before a magistrate, and trial before a Court of Sessions or High Court respectively. Both sections reflect that if the Court has a ‘reason to believe’ that the accused suffers from a mental illness which makes him incapable of presenting a defence in his favour, then the Court must investigate the mental capacity of such individual. The Court, in this case, explained that a reading of these sections leads to consideration of the question that whether a trial Court could determine the incapacity of the accused, owing to their mental illness, without seeking the opinion of a medical expert? After assessing relevant case law in this area, the Supreme Court stated that ‘reason to believe’ and ‘appears to the Court’ within Section 464 and 465 are to be seen as synonymous and constitute a tentative opinion of the Court with regards to the incapacity of the accused. However, the opinion of the Court must be based on an objective assessment of the material and the information found within the police and case file. To make this assessment, the Court may look towards factors such as the demeanor of the accused person, whether they are being represented by a Counsel, by asking the accused questions to assess their mental capacity, by determining whether the accused understands the nature of the proceedings against him, the process which is being followed in the trial, the role of the people around the accused etc. However, the Supreme Court clarified that a tentative opinion as to the mental capacity of the accused may not only be made on the basis of these questions, and an objective assessment must be made. Once, a tentative opinion has been formed that the accused is incapable of presenting his defence, then the Court must embark on an inquiry to support their tentative opinion. This will require consideration of adequate medical opinion as well. The Supreme Court laid guidance as to the nature of the medical examination as well and stated that the Medical Board must provide a detailed report of the observations they have made of the accused, supported by medical evidence and referring to psychopathology if required.
The Court then moved on to assess the final question which was to identify whether a mentally ill prisoner may be executed or not? It recognised that Statute or Rules in the Country do not place a restriction on the execution of a convicted mentally ill patient. However, it referred to certain rules within the Prison Rules which provide for safeguards for the protection of mentally ill patients. The Court referred to Rule 107(iv) which provides that the Superintendent must submit two copies of the medical report of the prisoner along with a mercy petition to the President of Pakistan where a prisoner takes a plea of mental illness. Moreover, it referred to a conjoined reading of Rule 362 and the warrant issued under Section 381 Cr.P.C which shows that the purpose behind the rule is to ensure that the prisoner understands the reason behind his execution. In the same way, the reason for informing a condemned prisoner that his appeal or mercy petition have been rejected is that the prisoner must be aware that he doesn’t have any further legal remedies. Rule 362 also allows a condemned prisoner to make a will prior to their execution. The Court refers to the Rules discussed as implied safeguards against execution of a mentally ill prisoner as their mental illness will inhibit their capacity to understand the reason for their punishment.
The Court also pays heed to the treatment of mentally ill prisoners in other jurisdictions such as the United States and India and refers to Resolution 2000/65 adopted by the United Nations Commission on Human Rights where it was insisted that the death penalty must not be imposed upon a person suffering from a mental disorder and thus, such a person must not be executed. In addition to this, reference was made by the Court to Rule 109 of the United Nations Standard Minimum Rules for the Treatment of Prisoners which provides for the protection of prisoners who suffer from mental illness or disability. On the basis of this material, the Court concluded that if a prisoner is found to be suffering from mental illness due to which their ability to comprehend the reason behind their punishment is impeded, then execution of such a person will be against the principle of justice.
[1] ‘Pakistan Ends Death Penalty Moratorium’ (International Business Times, 2015) available at https://www.ibtimes.com/pakistan-ends-death-penalty-moratorium-1841946
[2] Ibid
[3] ‘The Death Penalty in Pakistan’ (Dpw.pointjupiter.co, 2011) available at https://dpw.pointjupiter.co/country-search-post.cfm?country=Pakistan
[4] ‘Death Penalty Offences’ (Hrcp-web.org) available at http://hrcp-web.org/hrcpweb/death-penalty-offences/
[5] ‘Counting the Condemned – Justice Project Pakistan’ (JPP, 2018) available at https://www.jpp.org.pk/report/counting-the-condemned/
[6] ‘The Capital Punishment Study: A Study of The Jurisprudence of The Supreme Court of Pakistan’ (Reprieve.org.uk, 2019) available at https://reprieve.org.uk/wp-content/uploads/2019/04/Pakistan-Capital-Punishment-Study.pdf
[7] Ibid
[8] 2009 PLD Supreme Court 709
[9] 2009 SCMR Supreme Court 502
[10] 2011 SCMR Supreme Court 1880
[11] 2012 SCMR Supreme Court 74
[12] 2013 PLD Supreme Court 793
[13] 2014 SCMR Supreme Court 1034
[14] 2016 SCMR Supreme Court 274
[15]2017 SCMR Supreme Court 713
[16] 2017 PLD Supreme Court 152
[17] 2019 SCMR Supreme Court 1368
[18] 2019 SCMR Supreme Court 1224
[19] C.R.P.420/2016
[20] 2006 SCMR 1755
[21] PLD 1952 Lahore 502
[22] PLD 1963 Lahore 213