Conducting a defence-led investigation of your client’s case is a key part of providing your client with effective representation in a capital case. When investigating a capital case, you are seeking facts relevant not only to your client’s culpability for a particular crime but also to prevent a conviction or to argue a lesser sentence.
This page focuses on two important aspects to the investigation you must carry out in capital cases prior to trial. The first is to consider whether your client falls into any of the categories of individuals who are barred from receiving the death penalty, or barred from being executed. This is extremely important to investigate as it may take the death penalty off the table immediately.
The second aspect of your pre-trial investigation will be a mitigation investigation. In Pakistan, where conviction and sentencing hearings are not bifurcated during trial, you must seek to introduce mitigating evidence and any factors that could prevent your client from being awarded a death sentence or execution before the judge has made a determination on your client’s guilt. Therefore, you should begin your investigation as soon as possible prior to trial – valuable evidence may become unavailable if investigation is delayed. You should also immediately begin to gather mitigating evidence relating to the accused’s background even in advance of trial. Mitigating evidence may include both the facts of the crime committed and the character of the offender.
1. Categorical Bars to Death Sentence and Execution
Pakistan presently retains the death penalty for at least 27 offences. However, even where an offence punishable by death has been committed, domestic and international law prohibit a death sentence or execution for several categories of defendants. This section discusses the parameters of each of these categories, and the rights of your client if they fall within one or more of these categories. When representing a client facing a capital offense, one of the very first steps you should take in your investigation, is establishing whether your client falls into any of these categories.
The categories discussed in the table below may disqualify a defendant from being awarded a sentence of death at trial and appeal. Similarly, where a bar to execution exists, even if a sentence of death has been awarded, an execution cannot be carried out.
1.1 Juveniles cannot be sentenced to death
| Bar | Domestic Law | International Law |
|---|---|---|
| Juveniles cannot be sentenced to death | Section 16, Juvenile Justice System Act, (JJSA) 2018: “(1) No person who was a juvenile offender at the time of commission of an offence shall be awarded punishment of death.” Section 306, Pakistan Penal Code 1860: “Qatl-i-Amd shall not be liable to qisas in the following cases, namely (a) when an offender is a minor…” | Article 6, ICCPR: “(7) Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age...” Article 3, Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty: “Persons below 18 years of age at the time of the commission of the crime shall not be sentenced to death…” Article 37, United Nations Covenant on the Rights of the Child: “State parties shall ensure that (a) Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.” |
Commentary
The burden of investigating whether your client is a juvenile sits with the police. However, police often fail to meet that burden. Many police officers have not been informed of the new JJSA 2018 and may be unfamiliar with their obligations under it, and thus may require explanation of the new Act. If the challan does not accurately list your client’s age, you should approach the police to request a new challan.
In many cases, police may fail to investigate juvenility and may refuse to submit a new challan once the issue is raised. As clearly laid out in the provision above, the issue of juvenility can also be raised to the Magistrate during a Section 167 hearing.
Certified copies of the relevant documents should be presented to prove your client’s juvenility, and originals should be held securely in case requested.
Although the Act lists “birth certificates, educational certificates or any other pertinent documents,” experience has shown that Courts are more likely to defer to birth certificates and education certificates, as documents explicitly mentioned in the JJSA, as opposed to other documents that would otherwise seem equally reliable (e.g. passports, medical records, etc.). Still, all relevant documentation that shows your client’s age should be collected, particularly if there is no birth certificate available. These documents could include passports, medical records, NADRA records, educational documents (school reports, letters from teachers), registration in children’s activities, etc.
If the Court is not satisfied with the documentary evidence presented, it may order a medical test to show age. As quoted above, the JJSA is clear that such tests should only be ordered “in the absence of [relevant] documents.” United Nations1 and India2 to dispute the accuracy of age verification tests.
1.2 Insane persons and persons of unsound mind cannot be sentenced to death and / or executed
| Bar | Domestic Law | International Law |
|---|---|---|
| Insane persons and persons of unsound mind cannot be sentenced to death and / or executed | Section 84, Pakistan Penal Code 1860: “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.” Section 306, Pakistan Penal Code 1860: “Qatl-i-Amd shall not be liable to qisas in the following cases, namely (a) when an offender is … insane.” | Article 3, Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty: “the death sentence [shall not] be carried out…on persons who have become insane.”3 |
Commentary
A bar to the death penalty on the basis of mental disability (s 306 of the PPC) is distinct from a plea of mental insanity (s 84 of the PPC).
A plea of mental insanity under Section 84 of the PPC exempts the accused from criminal liability, irrespective of the offence. Where such a plea is raised, an inquiry into unsoundness of mind of the accused and his/her consequent incapacity to stand trial has to be made in accordance with Sections 464 and 465 of the CrPC as a preliminary step.4
On the other hand, Section 306 is only relevant to cases of Qisas.5 Where an accused has been charged under Section 302(a) of the PPC, evidence of mental disability makes him/her ineligible for the death penalty, even if the mental disability did not manifest itself at the time of the crime.
Additionally, if your client is mentally incompetent, you may be able to argue that he is ineligible for the application of the death penalty as international law prohibits the execution of such individuals.
Mental disability refers to a broad range of conditions.6 A mental health assessment by a professional, therefore, is important to evaluate the different outcomes your client’s mental health can have on his case. Even if your client’s mental disability is not severe enough to make him ineligible for the death penalty, it may serve as a critical piece of mitigating evidence, discussed further down this page. It is important, therefore, to meet your client and conduct sufficient investigation as soon as possible as Pakistani courts have held that evidence of mental health must be introduced at trial.7
1.3 Pregnant women cannot be executed
| Bar | Domestic Law | International Law |
|---|---|---|
| Pregnant women cannot be executed | Section 382, Code of Criminal Procedure 1898: “If a woman sentenced to death is found to be pregnant, the High Court shall order the execution of the sentence to be postponed, and may, if it thinks fit, commute the sentence to imprisonment for life.” Section 314 (Execution of qisas in qatl-i-amd), Pakistan Penal Code 1860: “ (3) If the convict is a woman who is pregnant, the Court may, in consultation with an authorised medical officer, postpone the execution of qisas up to a period of two years after the birth of the child and during this period, she may be released on bail on furnishing of security to the satisfaction of the Court, or if she is not so released, she shall be dealt with as if sentenced to simple imprisonment.”8 Rule 348, Pakistan Prison Rules 1978: “When a women prisoner sentenced to death is certified by Medical Officer to be pregnant, the warrant with the fact noted on it, shall be returned to the Sessions Judge, who is empowered to direct the postponement of the execution pending the orders of the High Court.”9 | Article 6, ICCPR: “(7) Sentence of death…shall not be carried out on pregnant women.” Article 3, Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty: “the death sentence [shall not] be carried out on pregnant women.” |
Commentary
In situations where your client is a woman, it is important that you determine her pregnancy status. Domestic law as well as international law explicitly bar the execution of pregnant women. As a result, if your client is pregnant, you should present this fact to the court and argue that she should not be executed.
While Section 382 of the CrPC and international law apply to all offences eligible for the death penalty, Sections 314 and 337-P of the PPC apply to the specific offences of murder and hurt, respectively.
Unfortunately, while pregnancy will temporarily disqualify your client from execution until she has given birth, it may not disqualify her from being sentenced to death altogether. Nevertheless, you may introduce her status as a nursing mother to argue for a lesser punishment than death.
1.4 Where an accused has caused death of his legal heir, he cannot be sentenced to death
| Bar | Domestic Law | International Law |
|---|---|---|
| Where an accused has caused death of his legal heir, he cannot be sentenced to death | Section 306, Pakistan Penal Code 1860: “Qatl-i-Amd shall not be liable to qisas in the following cases, namely (b) when an offender causes death of his child or grand-child, how low-so-ever.” | N/A |
Commentary
Section 306(b) of the PPC stems from Islamic criminal jurisprudence and provides for exceptions to retributive justice, meaning that where your client has been charged with the offence of murder under the PPC and the victim is the defendant’s child or grandchild, they shall not be liable to qisas.10
According to the Supreme Court of Pakistan, “Section 306, PPC only provided that the punishment of qisas shall not be liable in cases of certain classes of murderers specified therein, which meant that it provided an exception to the general provision regarding liability to the punishment of qisas contained in Section 302(a), PPC and for such an exceptional case a set of different concessional punishments was provided in Section 308, PPC.”11
1.5 When a complainant/legal heir of the victim is a direct descendant of an accused the accused cannot be sentenced to death
| Bar | Domestic Law | International Law |
|---|---|---|
| When a complainant/legal heir of the victim is a direct descendant of an accused the accused cannot be sentenced to death | N/A |
Commentary
Similar to Section 306(b), Section 306(c) of the PPC also stems from Islamic criminal jurisprudence and provides for exceptions to retributive justice. Here, your client shall not be liable to qisas for the offence of murder under the PPC, if the complainant or the legal heir of the victim is the defendant’s child or grandchild. For example, the Supreme Court has held that qatl-i-amd shall not be liable to qisas where the defendant had been accused of murdering his wife and the victim’s legal heir was also the defendant’s daughter.12
2. Mitigating factors
Mitigating factors are facts or circumstances that lessen the severity or culpability of your client’s alleged crime. They serve to humanize your client before the court and may include aspects of the facts of the crime or the character of your client.
Types of mitigating evidence
- Mitigating evidence related to the facts of your client’s alleged crime
- Mitigating evidence related to your client’s personal, social, and economic background
- Mitigating evidence related to your client’s mental status and history
- Mitigating evidence that show your client’s good character and conduct
- Any other evidence that may be presented before the court for it to develop a more compassionate view of your client
As discussed under ‘Effective Representation’, in order to create a strong defence for your client, you must investigate the case. Investigation at the earliest stage will unearth mitigating evidence which, if well collected and presented, has the potential to convince the court not to proceed with sentencing your client to death or commute their existing death sentence at the appeal stage. For mitigation investigations to be most effective, they should be multigenerational, investigating not just the client but also their parents, grandparents, siblings and any children.13
Capital jurisprudence of the Supreme Court of Pakistan places great importance on the comprehensive appreciation of the mitigating factors of the defendant. The Supreme Court has upheld that all courts in every capital case have a duty to consider mitigating factors including the nature of the offence and personal circumstances of the offender.14 FFR and Reprieve found in the Pakistan Capital Punishment Study that the consideration of mitigating evidence contributed to the commutation of death sentences in a majority of cases commuted by the Supreme Court between 2010 and 2018.15
The Supreme Court of Pakistan has adopted the ‘balance-sheet’ approach used by the Supreme Court of India to weigh mitigating factors against aggravating factors in capital cases.16 This means that courts are bound to draw up a list of mitigating factors and aggravating factors, and ensure that aggravating factors clearly overshadow mitigating factors before a death sentence can be awarded. However, it is important to keep in mind that the ‘balance-sheet’ approach is not a mere numerical exercise. The death penalty is not the appropriate punishment just because the judge is able to identify a greater number of aggravating factors. On the contrary, the judge is bound to exercise great caution against awarding the death penalty even in cases where only a single mitigating factor can be identified.17 It is therefore crucial to conduct a thorough mitigation investigation on behalf of your client even if you assess prima facie that he does not have a robust mitigation story.
In line with international principles governing capital sentencing,18 the Supreme Court does not prescribe an exhaustive list of mitigating factors. This means that the courts are open to considering any mitigating factor you may present on behalf of your client. Nevertheless, some mitigating factors are more favored by court practice and precedent than others.
This section discusses the most common mitigating factors used by the Supreme Court of Pakistan to commute death sentences and the jurisprudence you may cite when raising these factors in defence of your own clients.
2.1 Type and gravity of the offence
The Supreme Court has considered the absence of excessive cruelty and/or brutality in the commission of the alleged crime to be a mitigating factor. Wherever possible, it is important to present evidence that your client exercised restraint during the commission of the alleged offence.
Circumstances that aid mitigation
- The accused showed some kind of restraint during the commission of the crime.
- The accused inflicted a single stab-wound or gunshot instead of multiple.
- The accused fired the killing shot during a chaotic shootout.
Relevant cases
The death penalty should not be awarded where there is a lack of premeditation and motive is unproven. The Supreme Court considers a single shot fired as evidence of lack of premeditation.
Zafar Iqbal was convicted under Section 302(b) of the PPC and sentenced to death by the trial court for murder. Brief facts of the case are that, while injured, the deceased gave a statement of events that was corroborated by three witnesses. His cattle had entered Zafar Iqbal’s field while they were grazing. When the deceased proceeded to round up the cattle, Zafar Iqbal appeared and began to hit him with a stick. When the deceased retaliated by abusing him, Zafar retrieved his gun and fired at him. At trial, Zafar admitted to firing the shot, but pleaded self-defence. However, he did not produce evidence to support this, nor did he state this under oath to establish his plea. The trial court accepted the evidence and statement of the complainant and the witnesses, convicting Zafar Iqbal and sentenced him to death. On appeal, the Lahore High Court upheld this conviction and sentence.
However, when the case proceeded to the Supreme Court, it found that there was no motive to kill, as the incident had occurred in the “spur of the moment due to sudden provocation without any pre-planning and pre-mediation”, with a “single shot fired”.19 The apex Court maintained Zafar’s’s conviction but commuted his sentence to life imprisonment with the benefit of Section 382-B of the CrPC, plus a fine.
Mitigating factors that prevent the imposition of the death penalty include: (1) lack of premeditation – which can be evidenced by the incident occurring at the ‘spur of the moment’; (2) failure to inflict repeat injuries where there was opportunity to do so; (3) co-accused received a lesser sentence; and (4) lack of clarity about who inflicted the fatal injuries. Further, a death sentence should be commuted to life where the accused has already served a full life term of imprisonment (25 years), giving rise to the ‘expectancy of life’ doctrine.
Zafar Iqbal was convicted under Section 302(b) of the PPC and sentenced to death by the trial court for murder. Brief facts of the case are that, while injured, the deceased gave a statement of events that was corroborated by three witnesses. His cattle had entered Zafar Iqbal’s field while they were grazing. When the deceased proceeded to round up the cattle, Zafar Iqbal appeared and began to hit him with a stick. When the deceased retaliated by abusing him, Zafar retrieved his gun and fired at him. At trial, Zafar admitted to firing the shot, but pleaded self-defence. However, he did not produce evidence to support this, nor did he state this under oath to establish his plea. The trial court accepted the evidence and statement of the complainant and the witnesses, convicting Zafar Iqbal and sentenced him to death. On appeal, the Lahore High Court upheld this conviction and sentence.
However, when the case proceeded to the Supreme Court, it found that there was no motive to kill, as the incident had occurred in the “spur of the moment due to sudden provocation without any pre-planning and pre-mediation”, with a “single shot fired”.1 The apex Court maintained Zafar’s’s conviction but commuted his sentence to life imprisonment with the benefit of Section 382-B of the CrPC, plus a fine.
2.2 Lesser participation
The Supreme Court considers accused that play lesser roles in causing a lethal offence to lack the moral culpability to be sentenced to death. If you assess that your client was a mere accessory to the alleged offence or at least did not play a central role in its commission, it is important to present evidence of this to the court.
Circumstances that aid mitigation
- The accused was one of multiple shooters who were firing indiscriminately
- The accused can only be considered a mere accessory to the crime which was masterminded by someone else
- The final fatal injury cannot be attributed clearly to the accused
- In a case involving a drug offence, the accused is a low level drug mule or carrier and has no criminal record1
Relevant cases
The death penalty should not be awarded where a specific role and a fatal injury cannot be attributed to an accused person during an incident of indiscriminate firing by multiple persons.
Ibrar and Zavaiz Khan were convicted under Section 302(b) of the PPC and sentenced to death by the trial court for the murder of four people. On appeal, the Lahore High Court commuted their death sentences to life imprisonment. However, two other co-accused were acquitted and three others had absconded.
The conflict had arisen out of a housing dispute. Six of the accused persons gathered and attacked the four deceased by indiscriminately firing at them with firearms, as a result of which the deceased received fatal injuries.
In agreement with the High Court, the Supreme Court noted “when an unlawful assembly armed with deadly weapons is resorting to indiscriminate firing, it is not possible to identify as to whose fire hit whom and in such circumstances the award of maximum sentence of death would not be in consonance with safe administration of justice.”2
Consequently, the appeal to enhance the sentence to a death sentence was dismissed.
The death penalty should not be awarded where the role played by the accused is secondary and minor.
Abdul Rehman and Iqbal Shah were convicted under Section 302(b) of the PPC and Section 7 of the ATA and sentenced to death for the murder of two police constables and the injury of three other police constables while escaping police custody as under-trial prisoners and resisting lawful apprehension. Their co-accused, Karam Shah, was convicted under Section 302(b) read with Section 34 of the PPC for abetting the crime by providing firearms and chili powders to under-trial prisoners. Their appeals to the Lahore High Court were dismissed and their convictions and sentences were upheld.
The Supreme Court on appeal found that there was no unimpeachable evidence against Karam Shah. Medical evidence did not support the allegation that he had provided chili powder and the Investigating Officer had not recorded in his inspection note to have found chili powder in the van. While the under-trial prisoners used firearms in the commission of the crime, it was not established that Karam Shah supplied the firearms. Accordingly, Karam Shah was acquitted.
Regarding Iqbal Shah and Abdul Rehman, the Supreme Court determined that the treatment of Iqbal Shah at par with Abdul Rehman required reappraisal.
The Supreme Court was satisfied based on the evidence of four disinterested witnesses that Iqbal Shah’s involvement in the crime had been proved. However, he had not been found to have been armed, to have fired any weapons or to have had knowledge that for escape his co-accused would cause the death of the two police officers and injure three others. Accordingly, the Supreme Court held Iqbal Shah’s role to be secondary and minor, allowing for mitigation in sentencing. The Supreme Court converted Iqbal Shah’s death sentence to life imprisonment. On the other hand, the Supreme Court found no mitigating circumstances in favour of Abdul Rehman and dismissed the accused’s appeal.
2.3 Lack of premeditation
The Supreme Court considers a crime that was committed in a spur of the moment to be less worthy of a death sentence than one that was premeditated. The absence of premeditation is regarded as a strong mitigating factor because it indicates that the alleged offence does not fall into the category of ‘worst of the worst’. Courts across commonwealth jurisdictions have held that even if the absence of premeditation is the only mitigating factor that can be found in a case, it should be considered strong enough to bar the application of the death penalty.1
Circumstances that aid mitigation
- The accused cannot be shown to have planned the crime in advance
- The accused committed the lethal offence in a spur of the moment or chance encounter
Relevant cases
The death penalty should not be awarded where the accused lacked premeditation and provocation was established
Muhammad Sharif was convicted under Sections 302(b), 342 and 365 of the PPC for kidnapping for ransom and murder. He was initially acquitted by the trial court, however, on appeal, the Quetta High Court convicted Sharif and sentenced him to death. An altercation between Sharif and the deceased (son of the complainant) took place regarding payment of a sum of money. The deceased verbally abused Sharif and insulted his mother, wife and sister, which led him to push the deceased down the mountain they were on and stone him to death.
The Supreme Court of Pakistan reduced Sharif’s death sentence to imprisonment for life on grounds of provocation. The Court stated that the conduct of the deceased could not be ignored and suggested “peculiar provocative circumstances” relevant to the consideration of the quantum of the sentence. The court cited the case of Abdul Haque v. The State2 to affirm that the “plea of grave and sudden provocation on account of abusive language can be treated as mitigating circumstance in awarding sentence”.3 The Court also stated that a “death sentence must be imposed only when life imprisonment appears to [have been] altogether inadequate punishment having regard to the relevant circumstances of the crime.”4 It maintained that there was still serious doubt as to the events surrounding the incident. It did not find that the crime was premeditated, but rather that Sharif had lost control and acted due to the deceased’s provocation. Due to the need to judge a man’s actions in the context of his society, the Court modified the sentence to life imprisonment.
2.4 Provocation
The Supreme Court considers a crime that was committed under provocation to be less worthy of a death sentence than a crime that was not committed under provocation. The court may set aside your client’s death sentence if you can show that the circumstances immediately preceding the alleged crime diminished his capacity to exercise self-control.
Circumstances that aid mitigation
- The accused is able to show that circumstances immediately preceding the crime swayed him/her to commit the lethal offence. Specific cultural traditions/practices may be considered by the Court.
- The victim threatened the accused or cause other extraordinary stress that contributed to the accused losing self-control.
Relavant cases
Grave and sudden provocation may be a mitigating factor despite it not being available as a plea under the law. In establishing provocation, specific cultural practices/traditions may be considered.
Abdul Haque was convicted for murder under Section 302(b) of the PPC and sentenced to imprisonment for life by the trial court. The Quetta High Court, however, enhanced his sentence to death.
Brief facts are that the deceased was charged with the murder of Abdul Haque’s father. As the deceased entered the courtroom, in front of witnesses, he insulted the accused, saying that he would commit Zina with Abdul Haque’s wife and other wives in his tribe. On hearing this, Abdul Haque drew a pistol and shot him dead.
On appeal, the Supreme Court reduced Abdul Haque’s sentence to imprisonment for life due sudden provocation. The Court took into account that if the murder was premeditated, the accused had ample better opportunities in which to kill the deceased, but instead only reacted when provoked. The court cited with approval the principle that if the Court finds a ‘reasonable possibility’ that the accused’s defence is true then the accused “would be entitled to benefit of doubt not as a matter of grace but as a right because prosecution has not proved its case beyond reasonable doubt.”1
Furthermore, it was considered that the accused is Pathan, and as such is culturally very sensitive to derogatory comments to women, and is expected to react quickly to such provocations. In the specific circumstances, the court found that grave and sudden provocation should be found as a mitigating circumstance, despite it not being available as a plea under the law. Thus, the Court dismissed the enhancement of sentence and convicted the accused to life imprisonment, under PPC section 302(b).
2.5 Life History Prior to Arrest
The Supreme Court may consider aspects of an accused’s life prior to his arrest. A good mitigation story paints a humane picture of your client’s life struggles leading up to the alleged crime. It offers the judge a chance to consider your client as a product of his difficult circumstances instead of just focusing on his alleged criminality. There may be several aspects of your client’s life before his arrest that the court may consider to have mitigating value. It is therefore important to seek mitigating evidence that thoroughly investigates your client’s personal social, economic and cultural background, his familial circumstances, whether he has any personal or familial history of mental health, and information on how others perceived his character and reputation prior to the commission of the alleged crime.
Social and familial circumstances
The Supreme Court recognises influences arising from an offender’s social and familial circumstances as potential grounds for mitigation. If your client comes from an economically, socially, or culturally marginalized community, it is important to present this information before the court. Additionally, for a mitigation investigation to be effective, it must be multi-generational.1 In addition to the client, the client’s parents, siblings, grandparents and any children should be investigated if possible.
Circumstances that aid mitigation
- The accused comes from an underdeveloped rural area
- The accused committed the offence to defend his/her family reputation
- Cultural and economic pressures may have motivated the accused to commit the offence
- There is a history of mental illness in the family of the accused
Relevant cases
Where the prosecution fails to prove motive, the death penalty should not be awarded. Confessions obtained without regard to due process are absolutely inadmissible. The Court may consider the particular sociocultural context of the defendant as a relevant mitigating factor.
Muhammad Ismail was charged for the murder of his own brother. He was convicted under Section 302(b) of the PPC. and sentenced to death. The Lahore High Court confirmed the conviction and sentence. The accused never recorded a confession, and did not plead guilty. However, at trial, the accused admitted to the offence in his statements under oath as per Cr.P.C section 340(2), and he re-affirmed that admission under questioning from the trial court judge as under Cr.P.C 342. Both the trial court and the High Court relied heavily on Ismail’s confession in convicting him.
On appeal, the Supreme Court ruled that the Ismail’s statement amounted to an admission, not a confession, as they did not meet the criteria to be legally admissible.
Moreover, as motive, the prosecution had alleged that Ismail had demanded that the deceased give his daughter’s hand in marriage to their cousin, but the deceased had refused. The only evidence to support such motive was the testimony of the complainant, the deceased’s widow. The Supreme Court found her testimony alone to be insufficient evidence to prove the motive. and stated 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 Courts since long.”2
The Supreme Court also showed leniency since the crime was committed in a rural area, and the appellant was motivated by communitarian or familial enmities saying 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).”3
The Supreme Court also meditated on the more general cultural and economic factors that may have motivated Ismail:“The appellant has shown allegorically his typical rustic character of dignity, not to go for washing a dirty linen in public, at the cost of his own life. The appellant has apparently muffled, what was probably going seriously wrong in the family of the deceased, having a young virgin daughter of vulnerable age and the complainant, his wife too, was of the age of 28. Probably the appellant decided to withhold the true motive for the sake of family honour, a typical characteristic of dignity and virtues, still possessed by the rustic countrymen of our rural society.”4
On the basis of the foregoing reasons, the Supreme Court commuted Ismail’s sentence to imprisonment for life.
Mental illness/Intellectual Disability
Mental illnessrefers to a medical condition that disrupts a person’s thinking, feeling, mood, judgment, perceptions, ability to relate to others, and functioning. Examples include paranoid schizophrenia, post-traumatic stress disorder, bipolar mood disorder, and many others.
Justice Project Pakistan has released a comprehensive manual on the subject, which should be consulted if you believe your client may have a mental illness or intellectual disability.1 Chapter 18 of the Pakistan Prison Rules detail additional procedures in place for “mental patients,” including mentally ill prisoners, and may be relevant to securing your client’s other rights, such as transfer to a hospital for adequate treatment.
Those with mental illness who are unable to comprehend the rationale and reason for their punishment cannot be sentenced to death.
In September 2020, a 5-member bench of the Supreme Court clubbed the cases of Imdad Ali, Kanizan Bibi, and Ghulam Abbas together, three death row prisoners who have argued they should not be executed due to serious mental illness. The Supreme Court considered the question and decided that those with mental illness who are found by a medical board to be unable to comprehend the rationale for their punishment, cannot be sentenced to death. The medical board would be constituted and notified by the federal and provincial governments. While this does not create a categorical bar to sentencing individuals with mental illness to death, this judgment confirms that mental illness is a strong mitigating factor that courts must take into account.
This case is distinct from the bars to death sentences for accused determined to be insane persons and persons of unsound mind under sections 84 or 306 of the PPC. Though the Supreme Court also noted that where an accused wants to seek the benefit of section 84, the onus rests on the defence to raise evidence of their mental illness at the time of the commission of the offence.
International Law and Comparative Jurisprudence
As Pakistani jurisprudence is still evolving on this subject, unlike the other sections in this manual, in this section we consider international and comparative jurisprudence. Under international law, individuals who are insane (that is, so mentally ill that they are out of touch with reality and cannot tell right from wrong) cannot be executed.1 This treatment is consistent with U.S. jurisprudence, where the Supreme Court has ruled that execution of an insane prisoner is unconstitutional.2 The Supreme Court of India has also found mental illness to be a relevant factor in death penalty sentencing, holding 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.”3 The Indian Supreme Court recently confirmed that even mental illness arising after the crime is relevant, holding that “post-conviction mental illness will be a mitigating factor that the appellate court, in all appropriate cases, needs to consider.”4
Investigating mental illness
The above demonstrates why it is vital that the judge can consider whether or not the prisoner has experienced or is currently experiencing mental illness or intellectual disability. This can be established through a mental health assessment by a mental health clinician or psychiatrist, or with medical records. In the absence of such records however, the issue can also be raised through sources of information such as statements from the accused, family members, or community members. It can be very challenging to conduct interviews with family and community members about mental health but the information that you collect is essential to ensure that the judge has an understanding of the accused’s individual circumstances so that he or she can reach an appropriate sentence. Careful and sensitive questions in a private setting will help family and community members to feel more comfortable about sharing their recollections with you.5
Important sources of evidence that may support a finding of mental illness or intellectual disability include:
- Medical history (including hospitalisations, mental and physical illness or injury, alcohol and drug use, pre‐natal and birth records, malnutrition, developmental delays, and neurological damage);
- Educational history (including achievement, performance, behaviour, and activities), special educational needs (including cognitive limitations and learning disabilities), opportunity or lack thereof, and activities;
- Military service (including length and type of service, conduct, special training, combat exposure, health and mental health services);
- Employment and training history (including skills and performance, and barriers to employability); and
- Prior juvenile and adult correctional experience (including conduct while under supervision, in institutions of education or training, and regarding clinical services).
In addition to the accused’s own history, the family’s history of mental illness is also extremely important to show genetic history and patterns, effects of familial medical conditions, predisposition to mental illness, and exposure to substance abuse or other factors that may have negatively influenced the health of the accused.6 As mentioned above, a multigenerational mitigation investigation going back at least two generations is best practise.7 Relevant information may include:
- Physical, sexual or emotional abuse;
- Family history of mental illness, cognitive impairments, substance abuse, or domestic violence;
- Poverty, familial instability, neighbourhood environment and peer influence;
- Other traumatic events such as exposure to criminal violence, the loss of a loved one or a natural disaster;
- Experiences of racism or other social or ethnic bias;
- Cultural or religious influences;
- Failures of government or social intervention (e.g., failure to intervene or provide necessary services, placement in poor quality care or detention facilities).
Again, such information can be difficult to elicit from clients and their families, but can result in a life-saving sentence for your client. Gathering such information requires significant time invested in building trust and conducting confidential, sensitive interviews with clients and their family members.
A professionally-prepared psychiatric evaluation can provide extremely probative evidence of a client’s mental illness or intellectual disability. Unfortunately, many clients facing death-eligible charges are extremely poor and have likely never received mental health treatment or formal diagnosis. This problem is further compounded by the fact that prisoners cannot be examined by independent psychiatrists whilst imprisoned. There are a few ways around this barrier. Psychiatrists are sometimes willing to provide preliminary opinions on prisoners based on a review of the relevant records, including not just medical records but all relevant sources of information as discussed above, in addition to first-hand discussion with family members. Such preliminary assessments may persuade the court to order a full psychiatric evaluation of your client. Alternatively, prison authorities can be approached directly with a request for mental health evaluation and treatment.
It is not uncommon for courts presented with an accused with a possible mental illness to order a medical board to evaluate the accused. Such evaluations come with both risks and benefits. Lawyers will usually not have any say over which doctors are on the medical board, and thus cannot be sure of their competence and independence. It is very common for prison-convened medical boards to find that an accused or condemned prisoner has no serious mental illness, despite strong evidence to the contrary. For this reason, it may be prudent to obtain an independent evaluation as described above, in case there is a need to counter against an unhelpful finding by the medical board.
2.6 Partial Compromise with the victim’s family
This factor only applies to compoundable offences. The Supreme Court regards a partial compromise agreement that the accused reaches with the family of the victim to be a mitigating factor. Since a full compromise reached with all relevant members of the victim’s family results in an acquittal, a compromise reached with some members of the victim’s family may convince the court to commute your client’s death sentence.
In this regard, it is pertinent to understand the distinction between cases of Qisas and Ta’zir. The word Qisas as defined in Section 299(k) of the PPC means “punishment by causing similar hurt at the same part of the body of the convict as he has caused to the victim or by causing his death if he has committed qatl-i-amd in exercise of the right of the victim or a Wali.” The word Ta’zir as defined in Section 299(l) of the PPC means “punishment other than qisas, diyat, arsh, or daman.” The Supreme Court of Pakistan has declared Qisas and Ta’zir to be two distinct and separate legal regimes.8 In view of Section 304 of the PPC, a conviction for an intentional murder can entail the punishment of Qisas only if the accused makes a true and voluntary confession before a competent court of the commission of the offence or evidence is provided in accordance with Article 17 of the Qanun-e-Shahadat Order 1984. The cases of intentional murder other than those fulfilling the requirements of Section 304 of the PPC are cases entailing the punishment of Ta’zir as provided by Section 302(b) of the PPC. Consequently, provisions relating to the punishment of Qisas have no relevance or application to the same.9 [Muhammad Younas v. The State draws a distinction between compounding offences in both cases]
Circumstances that aid mitigation
- The accused reaches a compromise agreement with some members of the family of the victim
Relevant cases
Where the accused reaches a compromise with the heirs of the deceased in a Ta’zir case, this will result in a full compromise leading to acquittal despite the deceased’s other family members challenging the compromise agreement
Two co-accused persons were convicted under Section 302(b) of the PPC; one of them was sentenced to death whereas the other was sentenced to imprisonment for life. They challenged their convictions and sentences at the Lahore High Court.
During the pendency of their appeals, an application was filed before the Lahore High Court seeking their acquittal on the basis of a compromise between them and the heirs of the deceased. While the widow and the son of the deceased confirmed to the Court that they had agreed to a compromise, the father of the deceased denied the same. During the pendency of the application, the father of the deceased died, whereafter another application was filed seeking acquittal on grounds that the surviving heirs of the deceased had agreed to a compromise. The Lahore High Court accepted the accused person’s application and appeal and acquitted them.
The deceased’s brother, Muhammad Yousaf, filed an appeal before the Supreme Court on grounds that the deceased’s father’s heirs were ‘walis’ and the offence could not have been compounded without their concurrence. The Court stated that as the present case was of Ta’zir and not of Qisas, a different regime of criminal law applied whereby only the heirs of the victim were conferred with the power to compound. The murder of the deceased, therefore, could only be compounded by the heirs of the victim, which did not include the deceased’s brother, Muhammad Yousaf. The Supreme Court upheld the decision of the Lahore High Court and reaffirmed the compromise reached between the parties.
A partial compromise between the complainant and accused may have a mitigating effect on the sentencing in a case of Ta’zir.
The accused was convicted under P.P.C. section 302(b) and sentenced to death. The Lahore High Court upheld this conviction and sentence.
The Supreme Court found that this was not an attack launched straightaway on the deceased. The pair were engaged in an altercation that escalated into the killing caused by the accused. Furthermore, there were contradictions between the record of the case and what was presented at trial. According to the record, an eyewitness had informed the complainant of the incident. During the trial, the same individual claimed that he had not seen the incident take place.
Additionally, the complainant and his minor children had forgiven the appellant and entered into a compromise with him. The compromise remained incomplete so could not be given effect by the court. However, the Supreme Court referred to the principle that in a case of Ta’zir a partial compromise “may not have any bearing upon conviction of an accused person…but it may have, in the circumstances of a given case, some relevance to the question of sentence”.1 Based on this, the court maintained the accused’s conviction but commuted his sentence to life imprisonment under Cr.P.C. section 382-B.
A sentence may be reduced due to consideration of the fasad-fil-arz principle and a compromise agreement with legal heirs of deceased
The accused was convicted under Section 302(b) of the PPC and sentenced to death and a fine for the murder of two people. The Lahore High Court confirmed the conviction and sentence.
The accused had been staying with a co-accused for a few months, engaging in ‘immoral activities’. The village therefore asked the co-accused to evict the accused. One of the deceased forbade the accused from visiting their neighborhood, threatening dire consequences. On the day of the incident, the two deceased and their brother, the complainant, were walking, at which point the accused emerged and shot one of the deceased. Subsequently, the accused entered the village, still firing his pistol and being chased by the complainant and the other deceased, during which he shot the other deceased. The accused continued to fire and injure other villagers who chased him and returned fire.
During his appeal, the accused filed an application for compromise of the offence as he had entered into a compromise with the legal heirs of the deceased persons, under Section 345(5) of the CrPC.
Based on these facts, the Court found that the murder of the first deceased was intentional and premeditated. Regarding the second death, the accused was running for his life as he knew that if apprehended, he would not be spared. It concluded that the second death may have been accidental and the requisite mens rea could not be established.
The Court also applied the principle of ‘fasad-fil-arz’, which it defined to include “the past conduct of the offender, any previous convictions, the brutal and shocking manner in which the offence has been committed which outrageous to the public conscience, where the offence relates to honour crimes or if the offender is considered a potential danger to the community”.1 Under this principle, the Court concluded that this second incident could not be held to be “brutal or gruesome or shocking” nor was there evidence of any criminal record and therefore were not persuaded to maintain the death sentence, in particular as the accused had compromised the matter.
The Court maintained the conviction; however, it commuted his sentence to life imprisonment, maintaining the fine.
2.7 Age of the offender
As mentioned above and on the Trial page, juvenility, or where an accused is under the age of 18, is a complete bar to the death sentence as per the Juvenile Justice System Act 2018. Separate to this, the Supreme Court of Pakistan also considers where a person is over 18 but still ‘young’, to be a mitigating factor. This is consistent with the position of the US Supreme Court that holds that a young accused may have a greater capacity for reform.1 If your client is between the ages of 18 and 25, it is important to present this as mitigating evidence emphasizing his/her youthful impulsivity to convince the court to set aside their death sentence. The Supreme Court may also consider the elderliness and infirmity of the accused to be a mitigating factor in conjunction with other mitigating factors.
Circumstances that aid mitigation
- The accused is between the ages of 18 to 25
- The young accused committed the crime impulsively
- The accused is elderly and infirm
Relevant cases
Where the prosecution fails to prove motive, the court should not award a capital sentence. The offender’s young age should be considered a relevant mitigating factor.
The appellant, Amjad Shah, along with his co-accused Sajid Shah (since acquitted) were sentenced to death upon conviction under Section 302 read with Section 34 of the PPC for murder. On appeal, the High Court acquitted the co-accused, Sajid Shah, but maintained the conviction and sentence awarded to the appellant Amjad Shah.
The deceased insulted the co-accused, Sajid Shah, for damaging the deceased’s crops and on the next day the appellant and co-accused set out to avenge the insult. When confronted, the deceased started running. A chase ensued and the co-accused fired one shot from his pistol that missed the deceased. Meanwhile, the appellant shot the deceased on the forehead fatally. On the appeal, the High Court acquitted the co-accused on the ground of his ineffective firing upon the deceased and because the motive set up by the prosecution was vague and tenuous. However, the conviction and sentence of the appellant, Amjad Shah, was maintained on the grounds that he caused the fatal injury and that the lack of his motive was inconsequential on account of the clear and convincing visual witnesses. On appeal, the Supreme Court ruled that “the accused’s intention, guilty mind or motive to commit the offence remains shrouded in mystery and is therefore unproven.”2
In such cases where the motive is not proved or is not alleged by the prosecution, the Supreme Court for the sake of administration of justice, adopts caution and treats the lack of motive as a mitigating circumstance for reducing the quantum of sentence awarded to a convict. The prosecution failed to attribute any motive to the appellant as there was no proof of any damaged crop, the insult by the deceased was directed towards the co-accused, and it lacked gravity and the nexus with the appellant. The absence of a repeat firing also dispelled premeditation by the appellant to kill the deceased.
The Supreme Court also found the accused young age (24) as a mitigating factor noting that “youthful tendency toward excitement and impulsiveness are also treated by the law as a mitigating circumstance.”3 The Supreme Court therefore granted partial appeal and reduced the accused sentence from death to life imprisonment.
In the case of an elderly and infirm prisoner, the accused’s age and health may be considered as mitigating factors, however old age in and of itself is unlikely to be a singular ground for commutation.
The appellant was sentenced to death and fine upon conviction under PPC section 302(b) for two murders. Lahore High Court dismissed the appeal. However, leave to appeal to the Supreme Court was granted to consider whether the old age of the appellant could be considered as a mitigating circumstance for the commutation of his death sentence.
The Supreme Court dismissed the appeal because the appellant was around 60 years old at the time of commission of the offence and there was no record of infirmity or serious sickness of the appellant, which could be taken along with his age as a mitigating circumstance to commute his death sentence. The Supreme Court distinguished the case of Muhammad Ibrahim v. The State (1979 PCr.LJ 275), where the convict was suffering from tuberculosis, was sick and infirm person, and the case of Muhammad Aslam Shah v. The State (1993 PCr.LJ 704), where the convict was of advanced age at the time of commission of offence. The court followed the cases of Muhammad Sher alias Malang v. The State (PLD 2001 SC 90) and Amir Gul v. The State (1981 SCMR 182) where the court held that age alone cannot be considered as a mitigating circumstance for the reduction of the sentence.
Old age may be a valid ground for expediting an appeal and may be a mitigating factor except where the facts and circumstances show the accused’s determination and callousness.
The Trial Court convicted the accused under Sections 302 and 324 of the PPC for the murder and attempted murder of his own nephews and sentenced him to death. The accused filed an appeal before the Lahore High Court which was dismissed and the conviction was upheld.
During trial, the prosecution’s case was based on the fact that the accused was seen armed with a pistol and fired two shots directed at the first victim which hit on his chest and back. The accused fired another shot at the second victim causing injury on his right arm. The accused then fled away from the place of occurrence.
The petitioner filed a Leave to Appeal before the Supreme Court on the contention that being seventy years of age at the time of the incident, he was a weak and infirm person and was not able to actively participate in the commission of the offence. The Supreme Court granted the leave to appeal on the grounds that the age of the Petitioner can be an extenuating circumstance for reduction of sentence.1
However, upon adjudication the Supreme Court held that there was no reason to doubt the prosecution’s case as the occurrence took place in day light and the victim of the attempted murder, being nephew of the accused could not be expected to have substituted the accused for the real culprit. Moreover, the presence of the appellant at the place of occurrence with a loaded pistol with which he fired three successive shots at his nephews on a day of religious festivities was evidence of his determination and callousness. The Court also held that there was no reason to allow benefit of lesser penalty of life imprisonment on the grounds of age in this case because of the demonstrated ‘determination and callousness’. The Supreme Court dismissed the appeal and upheld the conviction.2
1 Para 7, Muhammad Sadiq v The State (2011 SCMR 888)
2 Para 10, Muhammad Sadiq v The State (2011 SCMR 888)
2.8 Acting under the influence of an elder
The Supreme Court is more lenient in sentencing an impressionable accused who committed the crime because of the influence of an elder. If your client is a young adult, it is important to investigate the role of elder, peer and group pressure leading up to his alleged crime.
Circumstances that aid mitigation
- The young accused was directed to commit the crime by an elder
- The young accused was susceptible to the influence of the elder
- The young accused acted concertedly with others to commit the crime
Relevant cases
Where motive is unproven, and it is not clear who inflicted the fatal injuries the court should not award a capital sentence. If a young accused has acted under the direction of an elder, he should be shown leniency.
The accused was convicted under PPC section 302(b) and sentenced to death for murder. The accused’s father was convicted to life imprisonment for his role. The complainant alleged that the accused had quarreled with the deceased 6 weeks before the murder, and had nursed a grudge. The accused, along with several others, subsequently, after a chance meeting, chased down and publicly beat the deceased to death. The accused disputed this account, saying that he and his co-accused had acted in self-defence after the deceased had opened fire on them, following a confrontation over the deceased’s bad behaviour towards a female friend.
The Lahore High Court confirmed the conviction and sentence of the accused. However, two co-accused persons were acquitted, with a further accused still a fugitive of the law. The Supreme Court agreed with the High Court’s assessment that the alleged motive was not proved, as no details were given, nor could it be corroborated by the witness accounts.
The court also took into account that the accused was only 21 at the time of the killing, and had likely acted under the influence and direction of his father. The court stated: “There is evidence to suggest that appellant who at the time of occurrence was a young man of 21 years of age acted under the influence of his father Mubarak co-accused who stands acquitted. The latter had raised the ‘lalkara’ that Shahid deceased should be done to death whereafter the accused launched the attack.”1
The court further held that “even the nature of injuries caused by the [accused] could be yet another factor which would weigh qua the quantum of sentence”2, as he was not found to have inflicted any fatal injuries. The court considered the acquittal of two of the co-accused, who had also not inflicted fatal injuries, to be a relevant factor. Thus, the Supreme Court maintained the accused’s conviction, but commuted his sentence to life imprisonment with the benefit of Cr.P.C. section 382-B, plus fine.
If a young accused has acted under the direction of an elder, he should be shown leniency.
Two accused were convicted under PPC 302(b) and sentenced to death, though the Lahore High Court commuted the sentence to life imprisonment.
The dispute was regarding the repayment of a loan by the deceased, the complainant’s brother, to the accused. Three incidents took place on one day, the last of which resulted in the murder of two people. The brothers of the one of the accused were also brought as co-accused, as they had attended the shop of the deceased and injured the deceased, complainant and others, however all six brothers were acquitted by the Trial or High Court.
Counsel for the accused submitted that the High Court had correctly commuted the death sentence to life imprisonment as, per the prosecution, each and every accused had carried firearms and participated in multiple firing, however the deceased received only one shot each. The Supreme Court determined that it was the demand of the loan and subsequent scuffle between the parties which resulted in the commission of the offence, and that the complainant party had prompted the incident.
The Court cited precedent“that extreme youth, sudden provocation; influence of an elder and question of family honour etc. are covered by the phrase of extenuating and mitigating circumstances. If a case falls within any of the aforesaid circumstances, a Court, in law, is justified to award lesser penalty.”1 The Court held these to be applicable in this case and dismissed the appeals, with the modification that the appellants pay compensation to the legal heirs of the deceased or suffer 6 months imprisonment, with the benefit of Cr.P.C. s. 382-B.
2.9 Physical disability
Physical disabilities are impairments that may affect a person’s capacity or mobility. According to the Convention on the Rights of Persons with Disabilities, “persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”1 Therefore, these can include brain and spinal cord injuries, amputation and loss of limbs, epilepsy, hearing and visual impairments, and more.
If your client suffers from a physical disability, you may present evidence of such disability to supplement your primary arguments towards mitigation of sentence, however it will only be considered in exceptional circumstances. Abdul Basit’s case demonstrates one of the ways in which a death sentence cannot be executed on persons with physical disabilities. Abdul Basit was convicted of murder and sentenced to death in 2009 and in prison, he became ill and was consequently paralyzed from the waist down. His disability meant that he could not be executed according to the manner prescribed in the Pakistan Prison Rules, leading to a Magistrate postponing his execution.2
While physical disabilities such as paralysis are easily detectable, in some instances, the disability may not be apparent and the judge may require you to produce evidence of a medical diagnosis. Therefore, you must try and obtain your client’s medical records from their family, friends and relatives.
