What is Habeas Corpus? Habeas corpus in the literal sense of the word means “that you have the body”. It’s a recourse in law through which a person can report an unlawful detention or imprisonment to a court while requesting that the court order’s the custodian of the person, usually a prison official, to bring the prisoner to court, to determine whether the detention is lawful or not. The habeas corpus petition in Pakistan is filed through filing writ in high court u/s 199 of constitution or invoking s 491 of Cr.PC.
Concept of Habeas Corpus In Constitution Of Pakistan, 1973
The writ of Habeas Corpus is also explained in Pakistan’s constitution in numerous articles. The Constitution of Pakistan 1973 provides that the writ jurisdiction can be invoked if alternate remedy is not available to the aggrieved party under the relevant law.
Article 9 of the Constitution guarantees the security of person. It prohibits the deprivation of the right to personal liberty save in accordance with law. The constitutional safeguards in the shape of Fundamental Rights are also available. These are enforced through the superior courts in the form of Writs. The Supreme Court under Article 184(3)) and the High Courts under Article 199(1) entertains Five types of writs. The law of Habeas corpus in Pakistan is also governed under section 491 code of criminal procedure, 1898. which gives powers to High court and Session Court of Pakistan to issue discretionary orders in the nature of a Habeas Corpus.
Habeas Corpus Cases In Pakistan
Ali Muhammad Versus The State, etc. Criminal Petition No. 749-L of 2013
Facts Of The Case:
- The alleged detenu namely Mst. Naseem Akhtar (stated that her age is about twenty-eight years) has been produced before the Court from the relevant Darul Aman. Ali Muhammad petitioner is her father whereas Muhammad happens to be a maternal cousin of detenue.
- Muhammad Imran Khan respondent claims that he got married to Mst. Naseem Akhtar on 14.05.2013.
- Muhammad Tariq maintains that Mst. Naseem Akhtar had got married to him on 25.12.2012 and that their marriage is still intact.
- The alleged detenue is a grown up young lady who acknowledges Muhammad Tariq as her lawfully wedded husband. She refuses to accept Muhammad Imran Khan respondent as her spouse. Her father has asserted the same.
- The Lahore High Court passed the following order:
“In view of two Nikahnamas existed on record, it would be appropriate to send detenue to Dar-ul-Aman, Lahore. The Court cannot allow a person to live in immoral life. For this purpose she has been sent to Dar-ul-Aman to save her from the commission of an offence. She would stay in the Dar-ul-Aman till the time her suit for jactitation of marriage is decided. ”
- Ali Muhammad petitioner has approached the Supreme Court of Pakistan. The present petitioner sought the release of his daughter namely Mst. Naseem Akhtar from the relevant Dar-ul-Aman. Where she presently sent for an indefinite period because of the impugned order passed by the learned Judge-in-Chamber of the Lahore High Court, Lahore.
Arguments by petitioners
- Muhammad Tariq had lodged FIR No. 101 at Police Station Shah Nikdar, District Sargodha on 10.08.2013. The offence under section 496-A, PPC in respect of accused were leveled. The allegation that Muhammad Imran Khan respondent enticed Mst. Naseem Akhtar. The said criminal case is still under investigation of the local police.
- It was also argued that on 26.06.2013 Mst. Naseem initiated a suit for jactitation of marriage against M. Imran Khan .In the said suit Mst. Naseem Akhtar has claimed that she had never got married to Muhammad Imran Khan. Also the said Muhammad Imran Khan ought to be restrained from maintaining or proclaiming Mst. Naseem is his lawfully wedded wife.
- The learned counsel for respondent also raised that the mother of Mst. Naseem Akhtar has adopted deceitful method is also residing with her daughter in the Dar-ul-Aman. If it is so, upon whose order the mother of the detenue had joined her in Dar-ul-Aman.
Arguments by Respondent 2 (Muhammad Imran Khan)
- The mother of Mst. Naseem Akhtar is also residing along with her daughter in the Dar-ul-Aman without having any court order.
- Muhammad Imran Khan had filed Criminal Criminal Petition before the Lahore High Court, Lahore. In which petition u/s 491 Cr.P.C. had been filed in the nature of habeas corpus seeking recovery of Mst. NAK from the custody of her father namely Ali Muhammad petitioner.
- Learned counsel for the respondents also submitted documents to prove that the petitioner’s Nikahnama is a fake document.
- Naseem Akhtar has filed a suit for jactitation of marriage and she cannot be detained in the Dar-ul-Aman for an indefinite period. Rather her abode in the Dar-ul-Aman would amount to illegal detention. Thus, she should be allowed to live with the respondent.
Mst. Naseem Akhtar has clearly and vociferously stated that while living with her father namely Ali Muhammad petitioner. She was not in any kind of confinement or under any restraint and that she wants to go back and live with her father.
Judgement of Asif Saeed Khan Khosa, J.
“It is quite ironical and shocking that habeas corpus proceedings before the Lahore High Court were started. They were meant to secure release of a person from illegal and improper custody. Such an approach adopted and the result achieved by the learned Judge-in-Chamber of the Lahore High Court, Lahore surely ran contrary to the very essence and purpose of a writ. The petition for habeas corpus is to secure freedom and not curtailing liberty. The learned Judge-in-Chamber of the Lahore High Court, Lahore would have done better if he had sought guidance in this regard from various judgments handed down by this Court on the subject from time to time. Some of the landmark judgments are referred in the following paragraph:
- In the case of Muhammad Rafique v. Muhammad Ghafoor (PLD 1972 SC 6) it had been held by this Court as follows:
“If the person is a minor, the court may make order for his custody to the guardian. Who will deal with him in accordance with law. But if the person is major, the only jurisdiction which the court can exercise is to set him at liberty. Whether illegally or improperly detained in public or private custody or not. The court may “set at liberty” but it cannot allow a person’s freedom of movement which is an abuse of the process of the Court.”
- It had been held by this Court in the case of Muhammad Nazir v. The SHO Police Station, Shahpur and 3 others (1973 SCMR 351) as under:
“After hearing the learned counsel for the parties, we are satisfied. That the learned Single Judge could not hand over the custody of the girl to A.S.I. Illaqa as no case has been registered against her. The case was registered against Muhammad Amir and Shah Wali. In such circumstance, no order could be passed against Mst. Fatima Bibi.”
- This Court had observed and held in the case of Sahi Bi v. Khalid Hussain and 6 others (1973 SCMR 577) in the following terms:
“The observation of the learned Single Judge of the High Court is that if Mst. Irshad Begum is set at liberty she will lead immoral life which is irrelevant to decide the case under section 491, Cr.P.C. Under section 491, Cr.P.C., if a suit juris detenue is unwilling to go with her husband or guardian. The Court cannot compel her to go with her relatives. She must be set at liberty and allowed to move freely.”
For what has been discussed above this petition is converted into an appeal and the same is allowed. The impugned order of the learned Judge-in-Chamber of the Lahore High Court, Lahore on 04.07.2013 in Criminal Miscellaneous is set aside. The detenue namely Mst. Naseem Akhtar is set at liberty. She may go and live with her father namely Ali Muhammad petitioner, as desired by her.
Before parting with this judgment. The court observed that it had felt saddened due to the fact that the impugned order of Hon’ble Judge of a High Court had allowed his responsibility of protecting a citizen’s constitutional right to liberty to be overshadowed by his own subjective sense of morality.
It is unfortunate that in his zeal and eagerness to prevent commission of an imagined or apprehended sin/crime the learned Judge, had not only chosen to ignore the Divine command. But had also decided to disregard the constitutional mandate. Allah Almighty has forbidden even leveling an allegation of zina unless four eyewitnesses are produced in support of such an allegation. If such number of eyewitnesses are not produced then the person leveling the allegation is to be whipped and flogged. In the present case the learned Judge-in-Chamber had not even leveled an allegation but also imagined a possibility of commission of zina in future. Then he also proceeded to punish the detenue by depriving her of her liberty and putting her in the confines of a Dar-ul-Aman for an indefinite period.
Apart from that the Constitution of Pakistan mandates that the judgments of supreme court are binding on all lower courts of country. But while passing the impugned order the learned Judge had failed to follow the above mentioned. And many other, judgments rendered by this Court on the subject.
It appears that in the present case the learned Judge had decided to enter the realm of morality. The field chosen by him did not lie in his domain and it lied in a domain which he ought to have consciously avoided to enter.
The Office is directed to send a copy of this judgment to the Registrar of the Lahore High Court, Lahore who may bring the same to the notice of the Hon’ble Judge of the said Court who had passed the order impugned through the present petition/appeal for his kind information and perusal.”
Petitioner filed the petition for direction of nature of habeas corpus under section 491 of Cr.PC. And challenged the order of Lahore high court claiming that the custody of major in dar ul aman for indefinite time period is illegal in the eye of law. It is true that during the pendency of a petition habeas corpus, a court can pass a rule nisi regarding interim custody of the alleged detenue. But it is unimaginable and unthinkable that after final disposition of such petition the alleged detenue, who was otherwise a free person, may be put to physical restraint or confinement for an indefinite period. That too not on the basis of any concrete fact or allegation but merely on the basis of an imagined possibility of commission of a sin or a crime.