Habeas Corpus in Pakistan

Habeas Corpus in Pakistan is short for “Habeas Corpus ad subjiciendum” which is a Latin phrase for “you may have the body for the purpose of subjecting him/her”. Habeas Corpus is an independent writ petition which can be used in Pakistan to recover an individual and summon them to court.

This Law can be traced back to Anglo-Saxon times and was made to protect individual freedom. In this article, we will discuss how this law is used in Pakistan, and how you may be able to use it in your legal matter.

Detention cannot be used as a leverage to compel detenu to pay the amount of bank loan….High Court in such case accepted Habeas Corpus petition and set the detenu free

NLR 2001 CrLJ 308

What is Habeas Corpus in Pakistan?

The Principle of Habeus Corpus in Pakistan is to ensure the freedom of movement and freedom itself to every citizen in the Constitution of Pakistan (under section 100). In other words, no one can be held (and be detained) illegally.

Once a Writ Petition of Habeas Corpus is filed, the individual must then be brought before a court, where the court will determine whether this individual can legally be detained, or is set free.

Habeas corpus petition can be converted into bail application

1993 PCrLJ 2065

The Purpose of Habeas Corpus in Pakistan

Habeas Corpus is a writ petition that is used to free anyone who is deemed to be illegally confined. Therefore, its uses are mainly against government agencies (Police, FIA, etc.) and also against individuals who are either involved in a family matter, or a business matter.

In Pakistan, The Police can detain an individual for up to 24 hours before they have to present the arrested individual before a Magistrates court. If the individual has been held by a Court Martial in Pakistan, then the individual may be detained for up to 90 days before being presented to a court.

The detenu had no case against him nor was he nominated in an FIR, After a medical examination, the detenu was found to have been subjected to torture by the hands of the Police. Piloce had no right to torture an undertrail prisoner or detenu/ Detention of the detenu was found illegal and Police officers responsible for such illegal detention and torture of detenu were heavily fined and criminal cases were ordered to be registered against said Police Officers.

2001 MLD 1769

Where can a Habeas Corpus in Pakistan case be filed?

Habeas Corpus can be filed in one of 3 ways

• Before a Magistrates court under section 100 of the CrPC (before a Session Judge)
• Before a High Court under section 199 of the Constitution of Pakistan, if the recovery of the alleged detainee is held by a Government Agency.
• Before a High Court under section 491 of the CrPC, if the recovery of the alleged detainee is held by a Private individual/organization.

Habeas Corpus is a summary trial, which is heard and dealt with rather quickly. It orders the immediate summons of the alleged illegal detainee and decides on whether the individual in question has been detained legally or illegally.

High Court U/S 491 CrPC was competent to entertain habeas corpus petition and to order restoration of custody which had been illegally and improperly disturbed

1999 MLD 2264

Where this law is applied?

Due to its effectiveness, Habeas Corpus can be used in a variety of cases. If someone is suspected to have been detained by the Police or any Federal agency, then it can be used to bring them to court to question the validity of their detention.

In family cases it can be used in Child Custody matters in Pakistan (In matters of Parental Abduction) as well as Court Marriages in Pakistan (Where a spouse is forced to stay with either their family or with their spouse). In business matters, it can be used for those subjected to bonded labor (when someone is kept to work against a debt, which is illegal in Pakistan), or in cases of Debt recovery in Pakistan.

Detenu who was an adult, major and sui juris, could not be detained by any person against her wishes. Detaining the detenu by her husband at his house against her wishes could amount to a denial of detenu’s right to have access to a court of law for seeking annulment or dissolution of her marriage as desired by detenu

2004 MLD 1207

What can a Court order on a Habeus Corpus Writ Petition?

Upon receiving and accepting a Writ Petition of Habeus Corpus, a Court can Summon the named individual/s to court. Once the individual is summoned to court, along with the relevant officials that had detained the individual in question, the High Court may issue one (or several) of the following orders:-

• Immediate release of the individuals that were detained (setting them at liberty).
• Granting Interim Custody to one of the parents (if the individual is a minor involved in a family court case).
• If the individual was subjected to torture, then a Medical examination can be ordered, to take action against the individuals who inflicted this injury against the illegal detenu.
• The court can order compensation and damages to the victim by the detainers.
• To produce a witness from Jail.
• To take legal action against the parties that held the detenus illegally by initiating criminal proceedings against them.

Detention of persons would be illegal when they are not named in FIRs, they were taken into custody by police and never produced before Magistrates and were tortured by police.

NLR 2001 CrLJ 344

Grounds for Dismissal of Habeas Corpus in Pakistan?

If the court finds that an individual has been legally detained (by federal authorities or by the army) then the court can dismiss the application. This is proven when valid documents of an FIR or investigation are furnished before the court.

In matters relating to family issues, the court usually grants interim custody to one of the parents, directing both parties to the Guardian court for a final decision on the child’s custodian (based on matters relating to the better welfare of the minor). In issues of Marriage, the court summons the Spouse in question and can dismiss the application based on his/her statement.

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