Mentally Unfit Persons
1. Domestic Law
The first comprehensive legislation relating to the care of mentally unfit persons is the Mental Health Ordinance 2001 (MHO) that repealed the Lunacy Act 1912.[1] Post-18th amendment to the Constitution, similar laws were either adapted or promulgated for each of the provinces.[2] The MHO defines a ‘mental disorder’ as including mental impairment, severe personality disorder, severe mental impairment and any other disorder or disability of the mind.[3] Furthermore, Sec. 2(1)(n) goes on to define a ‘mentally disordered prisoner’ as someone for whose detention in or removal to a psychiatric facility or other place of safety, an order has been made in accordance with certain provisions of the Cr.P.C, the Prisoners Act 1900, the Pakistan Army Act 1952, Pakistan Airforce Act 1953, or the Pakistan Navy Ordinance 1961.
Sec. 84 of the PPC provides for the exemption of criminal liability for mentally unfit persons and states that a person may not be held criminally liable by reason of unsoundness of mind. This section has been explained to mean that if a person is incapable of knowing the nature of an act and does not have the capacity to comprehend that such an act is contrary to law, then such a person cannot be held criminally liable.[4] It is to be noted however that if an individual becomes mentally challenged after the commission of an offence, criminal liability may arise unless the individual is found not guilty on the basis of a plea of insanity as under Sec. 84 PPC and Sec. 470 Cr.P.C.
Chapter XXXIV of the Cr.P.C deals with mentally unfit persons and Sec. 464 to 475 lay down the law in relation to this special category of persons. Sec. 464 provides guidance to determine the mental capacity of an individual and states that if a Magistrate has reason to believe that the accused is of unsound mind, then an examination by a Civil Surgeon of the district must be carried out. Sec. 466 further explains that if an accused is found of unsound mind the Court may release him as long as the person is not a danger to himself or to another. If on the other hand, a mentally unfit person is to be detained then such persons must be detained in safe custody in a place chosen by the Court.
Sec. 54 of the MHO also provides that where a mentally unfit person is to be detained in accordance with Sec. 466 at a jail then the Inspector-General of Prisons, or if he is detained at a psychiatric facility, then a duly constituted Board of Visitors or two of its members, shall visit him once every six months to ascertain his state of mind and make a report of the same to the detaining authority. Where the Inspector-General of Prisons or the Board of Visitors, as the case may be, finds the prisoner capable of standing trial under Sec. 473 the Magistrate or Court shall then deal with him as provided under Sec. 468, i.e. resume the inquiry or trial. Furthermore, if a mentally unfit person has not been detained, then a Magistrate or Court reserve the right to call the accused to Court at any time[5] to resume inquiry or trial as under Sec. 467(2).
The Prisoners Act 1900 also deals with the detention of a mentally unfit person and under Sec. 30 states that where a person of unsound mind is detained on the basis of a judicial order, then the relevant Provincial Government has the power to issue a warrant for the removal of such a person from police custody to an asylum or any other place so developed by the Provincial Government.
However, if a mentally unfit prisoner is to be detained in jail, then the following rules as laid down by the Prison Rules 1978 apply:
| PRISON RULES 1978 | |
| Rule 433 | This defines a mental patient as an idiot[6] or a person of unsound mind.[7] The term mental patient connotes a lunatic as well as defined under the MHO 2001. |
| Rule 434 | Provides for two classes of mental patients; ‘non-criminal mental patients’ who have committed no crime but are sent for medical observation as under the MHO, and ‘criminal mental patients’ who have been accused of the commission of an offence. |
| Rule 435 | Provides for separate accommodation for mental patients who have been detained. |
| Rule 436 | Provides that mental patients are to be considered dangerous unless certified as harmless by a Medical Officer. |
| Rule 440 | This establishes four categories of criminal mental patients; an accused person who is sent to a prison for medical observation under Sec. 464 of Cr.P.C, an accused person detained under Sec. 466 of the Cr.P.C, a person found to have committed an offence but acquitted due to unsoundness of mind and is detained in safe custody under Sec. 471 of Cr.P.C or a convicted prisoner who becomes a mental patient in prison. |
| Rule 441 | Requires that where a mental patient has been detained in pursuance of Sec. 466 Cr.P.C then the Superintendent of the prison must apply to the District Coordination Officer for an order of his transfer to a mental hospital, and further provides that the Inspector-General of Prisons shall be informed whenever a person is detained in prison under Sec. 464 or Sec. 466 Cr.P.C for more than a month. |
| Rule 442 | Provides that where a criminal mental patient is found to be dangerous, noisy or filthy he may be confined in a cell and kept under strict and continuous observation, while all others may, upon the Medical Officer’s discretion, be detained in the prison hospital or a separate ward. |
| Rule 445 | Provides for the procedure of transfer of a mental patient to a mental hospital. |
| Rule 446 | Provides for the conditions of such a transfer to be made and states that a criminal mental patient shall not be transferred unless a Medical Officer certifies that he is physically fit to undertake the journey, and when the Medical Superintendent of the mental hospital provides that they are prepared to receive him. |
| Rule 452 | Requires that mental patients who are confined in a mental hospital or prison are to be visited by the Inspector-General every six months to ascertain their state of mind. |
| Rule 453 | Where a mental patient is found to be capable of making their defense they must be taken to a Magistrate or Court and are to be dealt with in accordance with Sec. 486 Cr.P.C. |
| Rule 455 | Provides that a mental patient cannot be punished for any offence committed by him but necessary restrains may be imposed on him to prevent him from being a danger to himself or to another. |
| Figure 6.5 – Prison Rules 1978 pertaining to the treatment of mentally unfit persons.
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2. Jurisprudence
Jamila Begum v. Awam un Nas[8]
In determining the procedure to declare a person ‘insane’ or of unsound mind, the Lahore High Court stated that the Court should have put homely questions keeping in view the feeble mindedness and weak intellect of the person alleged to be a lunatic and should have examined him in Court. He could also have been examined on his dietary habits as well as on other points, how he was treated by others, how much land he had, who cultivated it, whether he could plough his land, whether he had any complaint to make of his sister, brother-in-law and others, whether he had a wife or had had a child. In fact, a number of questions which can be put to a child of a few years of age could be put to him. The object of the Act is not fulfilled by a perfunctory examination. He should also have been made to sit with the respondents for some time and to talk to them and then examined again with a view to find out his capacity of understanding and to judge the correctness of the observations of the medical expert.
Noor Jehan v. The State[9]
The Court stated that if there are any doubts as to the sanity of the accused, the Court must not only put questions to the accused to ascertain their state of mind, but should require an examination by a Civil Surgeon or Medical Officer to determine whether the accused has exhibited signs of insanity.
Ata Muhammad v. The State[10]
The Court explained that insanity at the time of commission of the offence and insanity at the time of trial are two independent matter which are to be judged separately in order to determine the criminal culpability of the accused. Each matter must be dealt with separately to ascertain the state of mind of the accused in such cases.
Munshi Khan v. The State[11]
The Court emphasised that Sec. 464 and 465 Cr.P.C acted as shields against the trial of insane persons, based on the principle that an accused must know and understand the criminal nature of the act committed by him for him to be criminally liable.
Salimuddin v. The State[12]
In this case the accused was of unsound mind however, the Trial Court had passed an order for trial to be conducted without a medical examination of the accused. The order was set aside and it was held that a medical examination determining the state of mind was required before deciding the mode of trial in such cases.
Yaseen Khan v. The State[13]
In this case, the accused was born deaf and dumb and an interpreter had only been provided to him up to the stage of framing of charges, and even though a State sponsored Counsel had been assigned to him, there was no evidence as to whether sufficient communication between the accused and the Counsel had been possible due to the accused’s disability. The Court held that on the basis that the accused could not understand the judicial proceedings held against him at the level of the Trial Court, he was not capable of making his defence and the Trial Court had not sufficiently acted in accordance with Sec. 464 and 465 Cr.P.C due to which the accused’s appeal was allowed.
[1] Mental Health Ordinance 2001 (Ordinance No. VIII of 2001)
[2] Balochistan Mental Health Act 2019 (Act IX of 2019), Punjab Mental Health (Amendment) Act 2014 (Act XI of 2014), Sindh Mental Health Act 2013 (Act L of 2013)
[3] Sec. 2(m) Mental Health Ordinance 2001: Ordinance No. VIII of 2001
[4] Naseebullah v. Special Judge, Anti-Terrorism Court II, Quetta and another 2017 PLD Quetta 37: the maxim ‘actus non facitreum, nisi mens sit rea’- Any act is not criminal unless there is criminal intent … Law mandates that nothing is an offence, which is done by a person, who at the time of committing an offence by reason of unsoundness of mind, if incapable of knowing nature of the act or that whatever he is doing is wrong or contrary to law.
[5] Sec. 467(1) Cr.P.C 1989
[6] Jamila Begum v. Awam un Nass, PLD 1978 Lahore 1376 at Para 31: An idiot … is a natural fool or a person who has no understanding from his nativity and is by law presumed never likely to attain any. He is a person who from original defect has never had mental power. He is a human being in form but destitute of reason from birth, and deprived of the ordinary intellectual power of man.
[7] Ibid at Para 24: A distinction has been recognised since early times between idiot that is to say natural fools who were incurable and whose lack of capacity was from birth and lunatics, who became insane after birth and where incapacity was or might be temporary or intermittent
[8] 1978 PLD Lahore 1376
[9] 1980 PLD Peshawar 103
[10] 1960 PLD Lahore 111
[11] 1983 P.Cr.L.J SC Azad Kashmir 778
[12] 1985 PLD Karachi 594
[13] 2019 P.Cr.L.J Karachi 1042