ISLAMABAD: While commuting the death sentence of a man convicted for the murder of his brother’s three minor sons, the Supreme Court held that his diagnosed schizophrenia constitutes a supervening and mitigating circumstance warranting commutation of the sentence to imprisonment for life.
A three-member bench comprising Justice Muhammad Hashim Khan Kakar, Justice Salahuddin Panhwar, and Justice Ishtiaq Ibrahim – who authored the verdict – partially allowed Criminal Appeal No. 105/2023 filed by the convict, Faryad Aoun Malik, while maintaining all other sentences awarded by the trial court and upheld by the Lahore High Court.
Tayyaba Munir assisted the bench in authoring the judgment.
The case arose from FIR No. 1024/2015 registered at Police Station Shahdara, Lahore, wherein the complainant Abdul Majeed filed a complaint against his own brother, Faryad Aoun Malik. According to the prosecution case, the appellant, who had remained childless since his marriage, harboured a deep-seated suspicion that his sister-in-law, Mst. Salma Bibi, had subjected him to Taveez Ganda – black magic charms – which he believed to be the cause of his childlessness.
In June 12, 2015, the complainant, upon hearing cries from within the house, rushed in accompanied by his father and cousin and allegedly found the appellant holding a knife, with the throats of the complainant’s three minor sons – Azeem, Wasim, and Shakeel – already slit. The appellant had also seized Mst. Salma Bibi by her hair and inflicted knife injuries to her abdomen and left side before fleeing the scene.
The appellant was tried and convicted by the Additional Sessions Judge, Lahore, vide judgment dated 31 October 2016, and sentenced to death on three counts under Section 302(b) PPC for the Qatl-i-Amd of the three minor boys, along with ten years’ rigorous imprisonment under Section 324 PPC and additional sentences under Sections 337-D and 337-F PPC for injuries caused to Mst. Salma Bibi. These convictions and sentences were upheld in their entirety by the Lahore High Court vide judgment dated 29 October 2019, leading to the present appeal before the Supreme Court.
Although learned counsel for the appellant did not press the appeal on merits, the Supreme Court independently examined the evidentiary record. The Court noted that the occurrence took place within the complainant’s own house and that Mst. Salma Bibi, as the injured eyewitness and mother of the three deceased children, furnished a coherent and natural account fully consistent with the testimonies of the other witnesses and duly corroborated by medical evidence.
The Court observed that substitution in such cases is a rare phenomenon, and it defies all logic and human probability to suppose that bereaved parents would shield the true offender and falsely implicate their own family member. The prosecution’s case was accordingly found established beyond reproach on merits. The sole question before the Supreme Court was therefore confined to the appellant’s plea of mental illness, which he had also raised in his statement recorded under Section 342, Cr.P.C, asserting that the occurrence was committed due to Taveez Ganda and mental health disorder and that he had no intention to kill the three children.
Taking note of this plea, the Court vide order dated 5 March 2025 issued directives for constitution of a Medical Board for psychiatric evaluation of the appellant. In compliance, a Board of Certification was constituted on 8 May 2025 by the Punjab Institute of Mental Health (PIMH), Lahore. The Board’s final opinion, submitted as Report No. 20893/P/PIMH, concluded that the appellant is suffering from schizophrenia and is currently on treatment requiring regular follow-ups for maintenance.
Addressing the legal question of whether schizophrenia constitutes a mitigating or supervening circumstance warranting commutation of the death sentence, the Court undertook a comprehensive examination of domestic and international jurisprudence. It drew upon the centuries-old formulation of Sir Edward Coke, who observed that the execution of a person of unsound mind “should be a miserable spectacle, both against law, and of extreme inhumanity and cruelty.”
The Court also cited the United States Supreme Court’s rulings in Ford v. Wainwright (1986), Panetti v. Quarterman (2007), and Madison v. Alabama (2019), wherein the execution of persons who are insane or mentally incompetent was held to be unconstitutional and violative of fundamental human dignity.
Most significantly, the Court affirmed the landmark precedent established in Safia Bano v. The State (PLD 2021 SC 488), wherein it was held that mental unsoundness constitutes a supervening and mitigating circumstance warranting commutation of a sentence of death to imprisonment for life. The judgment further articulated a powerful philosophical rationale, observing that the death penalty is premised on retribution and deterrence – both of which presuppose a rational actor with the mental capacity to comprehend the nature and wrongfulness of his conduct.
An individual suffering from profound mental illness, the Court held, stands outside those premises. In the Court’s own words: “Executing the insane is like confusing illness with evil and calling the confusion justice.”
The Court acknowledged that the appellant had not established that he was labouring under mental infirmity at the time of the commission of the offence so as to impair his criminal responsibility at that stage. However, it held that the unequivocal medical finding of schizophrenia at the present stage was sufficient to render the execution of the death penalty offensive to the dictates of humanity and the settled conscience of the law. Partially allowing the appeal, the Supreme Court commuted the death sentence on all three counts to imprisonment for life. All other sentences – including those under Sections 324, 337-D, and 337-F Pakistan Penal Code were maintained and upheld, with the direction that all sentences shall run concurrently. The benefit of Section 382-B, Criminal Procedure Code was also extended to the appellant.
The Court further directed the jail authorities to ensure that the appellant is provided with necessary medical treatment in accordance with his diagnosed condition of schizophrenia, and that in the event specialised care is required, he shall be referred to the concerned medical facility strictly in accordance with law. The Court additionally directed that appropriate precautionary and supervisory measures be adopted to ensure that the appellant does not pose any threat to other inmates, and that his custody and treatment are managed consistently with both prison regulations and medical advice. The judgment was approved for reporting.
