insanity plea

Written by Badar Yasir 9:50 pm Pakistan, Published Content, Research Papers

Insanity Plea in Pakistan: An Unsettled Loophole

It would come as a surprise to many that the presumption of innocence is not applicable to those that suffer from insanity. To familiarise the public with the legal dimension, the author explores the precedents that are the foundation of the insanity plea, or otherwise known as the insanity defense. The paper uderscores the importance of reforming the policies and laws related to mental illnesses.
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Mr Badar Yasir is an external law student at Blackstone School of Law. He runs his own blog page and is a freelance researcher and writer. His areas of research mainly include Criminal Law, International Law, Environmental Law, and socio-political issues.

Innocent Until Proven Guilty

Pakistan has a common law system derived from the British and based on the 1973 Constitution and Sharia law. In the common law system, there is an evidential burden on the parties, which is also the initial requirement that the prosecution (always) and the defendant (sometimes) must raise sufficient evidence to substantiate the reasonable possibility that a particular element which they wish to rely on may be true.

If at the close of the prosecution case, it fails to discharge this evidential burden in respect of any elements of the offence charged, the defence may submit that there is no case to answer. Success with such a submission means an acquittal without the need for defence to raise evidence of its own.

The prosecution carries the burden, as reflective of the fundamental premise underpinning the criminal law, namely, that the accused is innocent until proven guilty,1 also laid out under Article 6(2) of the European Convention on Human Rights. Moreover, an accused, who has acted under a mental defect, one who cannot differentiate between the nature and quality of his act, cannot be prosecuted in Pakistan.

Components of a Criminal Act

In societies today, people have rights and obligations as citizens towards each other and are morally and ethically bound to discharge them. To maintain peace in a society, it is incumbent upon the citizens to respect the line drawn by the law that governs society; the state has to take effective measures for any disrespect which leads to instability.

For peace to prevail in the society, a state imposes legal liabilities applicable to every citizen, and if a citizen is found to have crossed the boundaries, they are punished as per the law, and this instills in a certain degree of respect for the law. Not only is the act of the accused taken into account but it is also a requirement that the act must have been performed with a guilty mind, either intentionally or recklessly.

There are two components of an offence, namely, Actus reus and Mens rea. These two elements need to be present to constitute an offence. Actus reus is the conduct element in crime, one that is against the law. At its simplest, although this will require some qualification, it consists of those elements left over when the mental element is subtracted from the definition as a whole.2

The mens rea refers to criminal intent which is based upon the notion that one possesses a guilty state of mind. However, there is no requirement that the defendant must know that his conduct is illegal or guilty whilst committing the crime. It is also known as the ‘internal element’, ‘guilty mind’ or the ‘fault element’.

The Insanity Plea

In Black’s Law Dictionary, insanity is defined as, ‘any mental disorder grave enough that it prevents a person from having any legal capacity and excuses the person from civil or criminal wrong’ and, insane, in retrospect of the Black’s Law Dictionary, is a term given to a mentally ill and incapable person that the law recognizes as insane or someone mentally ill and unable to live in a society.3

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The Onus of Proof

Consonant with the principle that a person is considered innocent until proven guilty, the prosecution must prove every element of the offence ‘‘beyond reasonable doubt’’. This means that the judges must not convict unless the prosecution has proven the presence of all the elements of the offence.

However, when insanity is argued as a defence, it is an independent defence where the defendant admits the commission of homicide but brings to the fore a new and affirmatory matter independent of the act. The burden then shifts on the accused and the quantum of evidence is a preponderance of the evidence.4

Insanity is a defence of last resort, and this is why the law acknowledges that the presumption of sanity must stand until proved otherwise.

The M’Naghten Rules

To understand the defence, we need to study it from a historical perspective. The legal notion of insanity is captured and defined in a very famous 1983 case when Daniel M’Naghten,5 in an attempt to assassinate the Prime Minister, succeeded in killing his private secretary. He was found not guilty as his attorneys were successful in arguing and establishing a defence of insanity.

The court acquitted him because he suffered from a defect of reason; disease of the mind; and that he was oblivious of either the nature or quality of the act. The public was so incensed at his acquittal that the House of Lords asked a panel of judges to establish rules governing the defence of insanity. These rules today are entitled the M’Naghten Rules.

Durham Rule

It was acknowledged in 1953, when Monte Durham, a 17-year-old teenager, was declared a convict for housebreaking, only for this decision to be overturned resulting in his acquittal and reforming of the M’Naghten Rule. The Durham Rule did not require medical evidence or diagnosis of the illness, hence laying out that a defendant could not be convicted of a crime if he was suffering from a mental disease at the time of the offense.6

The Insanity Plea from the Islamic Perspective

Insanity as a theory is not new in Islamic Law. It recognizes insanity as a defense that absolves all sorts of liability on the defendant. Those who are mentally impotent cannot be punished for acts that were committed under insanity. Islam, however, does compensate victims who have suffered due to the actions of an insane person. Islam declares one who is mentally impaired free from any obligation and liability from deriving from the five pillars of Islam.

Section 84 of the Pakistan Penal Code (PPC), sheds light specifically on people with an unsound mind and states that ‘nothing is an offence done by a person who at the time of the commission of the offence, because of unsoundness of the mind, was incapable of knowing the nature of the act or what he was doing was contrary to the law’.

In addition to all this, Sections 464-471 and 473-475 of the Criminal Procedure Code (CrPC) can be read with Section 84 of PPC. Chapter 34 of CrPC in its entirety has shed light on this topic. In January 2001, an accused named, Imdad Ali, was convicted of Qatl-e-amd (intentional homicide) under S.302 (b) of the PPC and was sentenced to death by the trial court.7

His appeals, later on, were rejected by the highest courts of the land, the High Court and the Supreme Court, as well his mercy petition to the President. In 2016, a writ petition was filed on his behalf by his attorney in the Multan bench, of the Lahore High Court under Article 199 of the Constitution of Pakistan and under Prison Rules 1978.

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In the petition, the prayer had been regarding the stay of his execution until he regained sanity so that he could make his will under the Prison Rules. Both the writ and the ensuing appeal to the Supreme Court were quashed. The Supreme Court declared that Paranoid Schizophrenia was not a mental disorder, and this transpired questions.

One of them was that even after the court-appointed doctors certified him as a Schizophrenic patient, the court had ostracized this mental illness from the category of mental orders stating that it did not fall under the Mental Health Ordinance 2001. This was also a violation of Article 7 of the International Covenant on Civil and Political Rights (ICCPR).8 This meant that anyone arguing defense on the grounds of insanity would not be given the defense in later cases and that mental illness will not be a rudiment of a deferral of a death sentence.

The opposite was perceived in the case of Muhammad Idrees v The State,9 where the accused, a patient of Paranoid Schizophrenic, convicted under S.302 (b) to be read with S.84 PPC, was acquitted on the grounds of insanity. Today, the subsequent case of Imdad Ali stands as an answer to the proposition that Paranoid Schizophrenic does not fall under the country’s definition of mental illness.

The Case of the Cowboy

However, one should keep in mind that insanity developed at trial is distinct from one developed at the time of occurrence of the offense.10 There have been instances where insanity deteriorated greatly. Such was envisaged in the case of Panetti v Quaterman,11 where the US Supreme Court allowed the insane individual to represent himself at trial. He appeared in a cowboy outfit, fired his lawyers, and argued his insanity.

Despite having a lasso to come to his aid, he asked Jesus Christ, John F. Kennedy and, Anne Bancroft to come to assist him, but when they didn’t show up, he subpoenaed them. However, after subsequent litigation, the court in an attempt to align medical science with the law concluded that amendemnt 8 and 14 of the Constitution forbid the execution of mentally ill prisoners who cannot fathom the reason for their execution, thereby halting his execution.

Insanity Plea in Pakistan

In Pakistan, approximately, around twenty million people, suffer from mental disorders that encompass anxiety, sleeping disorders, Alzheimer’s, clinical depression, etcetera. The custom of silence is large to be blamed for it; females especially have been subject to ill-treatment in a patriarchal society such as one in Pakistan.

However, very few steps have been taken to address the issue at hand. The relationship between society’s frame of mind and the law is a two-way affair. The laws that are specifically made for the mentally ill are a reflection of the country’s attitude towards such people. In 2001, the Lunacy Act of 1912 was repealed by the Mental Health Ordinance 2001, which failed to lay out the civil and criminal liabilities of such people.

It fails to answer how someone who does not have the mental capacity should be dealt with. However, as perceptible from Ramsha Masih v The State,12 it is inspiriting to perceive that Pakistani courts at times do pay heed to a defence counsel arguing insanity on behalf of the client, regardless of tremendous pressure and provoking arguments of the lawyers.

There is also a difference between an argument of medical insanity and legal insanity. The former may incorporate illnesses such as bipolar diseases, while the latter calls for an absence of legal reasoning at the time of the commission of the offense, the M’Naghten Rule. In the case of Amrit Bhushan Gupta v Union of India,13 an application of the same rule was evident. The accused was charged under S.84 of the Indian Penal Code.

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Although medical evidence corroborated that the accused suffered from mental illness, the fact that he knew the nature of his act was enough to convict him. Several NGOs are also trying to curl into the mental health precinct. While this is a very small step, it brings a sliver of hope. All disorders need frequent checkups and take longer to recover. Many mental health prisoners face harsh punishments just because of their mental condition.


There is a need for awareness not only in our society but also in our justice system as well as the police department. A mentally ill person is in no frame of mind to defend himself, he may also not be able to assist his attorney in preparing a defense. In a nutshell, the relationship between insanity and law is a compromised one.

Mental health doctors, lawyers, and, judges have a vast role to play. While the law ensures that a guilty person is dealt with per the law, doctors and judges will pave the way for a compromise between those suspected as insane and the laws that govern. Those who are mentally ill should be provided medical treatment and must be treated with the utmost care.

In addition to it, a need for awareness in the branches of law and medical intervention is also a must because whilst a mentally ill person commits an offense, they may have committed the actus reus, but the most important part of the offense, mens rea and justification could be missing.

Erroneous, judgments such as one in the case of Imdad Ali have raised questions concerning the country’s mental health policies and their assessment of the mentally ill. This calls for more research and effective policymaking because an effective justice system is one that defends those who cannot defend themselves and, sadly, the country even today is in dire need of it. 


1 Woolmington v DPP (1935): ‘throughout the web of the Criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt…’ at 481 per Viscount Sankey LC.

2 This is only partly true. See Paul H. Robinson, ‘Should the Criminal Law Abandon the Actus Reus- Mens Rea Distinction?’in S.Shute, J.Gardener and J. Horder (eds), Action and Value in Criminal Law, Oxford: Clarendon Press (1993).

3 Oxford Learner’s Dictionary.

4 State of Rajasthan v Shera Ram (2012 SCMR 1768).

5 (1843) 10 Clark and Finn 200.

6 Durham v. United States United States Court of Appeals District of Columbia Circuit.

7 Safia Bano (n 2) 2.

8 No one shall be subjected to torture or to cruel, inhumane or degrading treatment or punishment. In addition, no one shall be subjected to medical or scientific experimentation without his consent.

9 2011 PCrLJ Page-925.

10 Nawab Khan v The State, Accused had brutally strangled a six-month-old baby to death, subsequently corroborated by the medical evidence and statement of the witness who had himself delivered the baby to him. Sentence and Conviction upheld.

11 551 U.S 930 (2007).

12 Ramsha Masih v Station House Officer, Police Station Ramna, Writ Petition No. 3172-Q/2012, Judgment Sheet (Nov. 14, 2012). The accused, Ramsha Masih, a 14-year-old girl, who was also a member of Pakistan’s  Christian minority, was arrested from the capital, in 2012 on charges of the blasphemy law, that she had defiled pages of the Holy Quran. Two weeks later, an Imam was arrested on suspicion of planting pages of the Holy Quran in her bag. She was acquitted later on.

13 1977 AIR 608, 1977 SCR (2) 240,

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