A two-judge bench of the Supreme Court Lahore registry on Monday while hearing an appeal for the suspension of the death sentence of mentally-ill prisoner Khizar Hayat forwarded the matter to a larger bench for hearing and adjourned the case for an indefinite period.
Hayat, a former police constable, was convicted in October 2001 for killing a fellow policeman. He was sentenced to death by a trial court in 2003. He has spent nearly 15 years on death row. Hayat was first diagnosed as a paranoid schizophrenic in 2008 by jail medical authorities.
In 2010, the jail medical officer recommended that Hayat needed specialised treatment and should be shifted to the psychiatric facility. However, this was never done. In 2017, the Lahore High Court (LHC) had stayed the execution of Hayat, but rejected his mother's appeal for a stay in December 2018.
Last week, a district and sessions court in Lahore fixed Hayat's execution for Jan 15.
On Saturday, Chief Justice Mian Saqib Nisar had taken notice of the issuing of a death warrant for Hayat and sought a report to ascertain his ailment, suspending his sentence until further orders. He had also directed the law officer to verify whether the condemned prisoner was mentally ill.
A two-member bench comprising Justices Manzoor Ahmad Malik and Sardar Tariq Masood heard the appeal for suspension of Hayat's death sentence filed by his mother Iqbal Bano. Jail officials and a mental health specialist were in court today, along with Hayat's lawyer.
The lawyer contended before the bench that the Supreme Court had halted executions in similar cases in the past.
"But why wasn't the state of his mental health raised earlier during the trial?" Justice Manzoor Ahmad Malik asked. "Why, when he is set to be punished, is the point being raised?"
The lawyer responded that Hayat had been diagnosed with schizophrenia during the trial, adding that a six-member medical board had been set up in 2016 to examine his mental health and confirmed that he had a mental illness.
According to Section 444 of the jail rules, a person with a mental illness cannot be executed, the lawyer argued.
"Do you believe that Hayat's mental state is not right?" Justice Malik asked the doctor in court.
"Khizar Hayat is suffering from a mental illness," replied Dr Mubashir, adding that a medical board could be set up to examine his mental state.
"In this state, the subject does not know what he is doing," the doctor added.
The jail official apprised the court that Hayat was being held at the hospital at Kot Lakhpat jail.
Justice Malik noted that Hayat's medical report is not completely clear. He appeared wary that other convicts would start appealing against their convictions using mental illness as a pretext.
"We're sending the matter to a larger bench," he added.
The court subsequently ordered that the appeal against Hayat's execution be forwarded to a larger bench, and adjourned the case indefinitely.
Mother challenges death sentence
Khizar Hayat's mother, Iqbal Bano, in her appealing challenging her son's death sentence, had requested the chief justice to visit the Kot Lakhpat jail ward for mentally ill prisoners and investigate what medicines were being given to her son.
She pleaded that his medical records be investigated "to determine why his treatment was not being done properly and why his condition was worsening day by day".
The appeal also challenged the LHC division bench's 2018 judgement, and sought a stay on Hayat's execution. It said the judgement passed by the division bench was not in accordance with law and the prison rules. It said the bench mixed the conviction with execution and thereby dismissed the petition on wrong premises.
It stated that the bench had not appreciated the extensive medical history of the appellant’s son as well as the reports of the medical boards establishing the mental ailment of Hayat.
The appeal argued that a condemned prisoner could not be executed in utter disregard of the prison rules on the subject. It pleaded that the government had a legal duty under the Prisons Rules 1978 to provide the appellant’s son with adequate and appropriate treatment for his mental illness at a psychiatric facility. To deny him this treatment was an arbitrary abuse of power and a violation of Articles 9, 14 and 25 of the Constitution, it contested.