The point of discussion of this paper is to have a detailed overview of the Writ of Habeas Corpus under the criminal law of Pakistan. The Writ of Habeas Corpus is sought to enforce the right to life. This paper will begin by discussing what Habeas Corpus is, and then it will discuss the legal provisions of Habeas Corpus applicable in Pakistan. It will explain section 491 CrPC with Article 199 of the Constitution of Pakistan.
A critical review of this doctrine will be given in this paper. It will briefly discuss the conditions necessary for the applicability of the writ of Habeas Corpus. Furthermore, it will be discussed what the law under CrPC explicitly states and how it is implemented by the judiciary. In addition, this paper will also discuss exceptions to the Habeas Corpus. It precisely states how the search for people who are wrongfully confined takes place. Relevant case laws have been cited.
OUTLINE OF PAPER
1. INTRODUCTION
2. RELEVANT PROVISIONS
3. MEANING OF HABEAS CORPUS
4. WRIT OF HABEAS CORPUS
5. OBJECT OF HABEAS CORPUS
6. HABEAS CORPUS UNDER SECTION 491 CrPC
7. WHO CAN FILE APPLICATION UNDER SECTION
8. POWER TO ISSUE DIRECTIONS OF THE NATURE OF HABEAS CORPUS U/S 491:
o HIGH COURT [Section 491(1)]
o SESSIONS JUDGE & ADDITIONAL SESSIONS JUDGE [Section 491(1A)1
o FRAMING RULES TO REGULATE [Section 491(2)1
o PREVENTIVE DETENTION [Section 491(3)
9. ORDER OF HIGH COURT
10. MODES OF EXERCISING POWER
o Suo motu:
o On the application of aggrieved person:
11. EXCEPTIONS TO HABEAS CORPUS PROCEEDINGS
12. NATURE OF PROCEEDINGS UNDER SECTION
13.SCOPE OF SECTION
14. TWO FOLD JURISDICTION
15. RESTRICTIONS/LIMITATION ON SECTION
16.SEARCH OF PERSONS WRONGFULLY CONFINED:
o ACCORDING TO SECTION 100 CrPC:
o SCOPE AND APPLICABILITY OF SECTION 100 Cr.P.C:
o RESTORATION OF WOMAN OR FEMALE CHILD UNDER
SIXTEEN YEARS: (SECTION 552)
17. CONCLUSION
Overview of Assignment
The point of discussion of this paper is to have a detailed overview of the “Writ of Habeas Corpus” under the criminal law of Pakistan. Writ of Habeas Corpus is sought to enforce the right to life. This paper will begin by discussing what Habeas Corpus is, then it will discuss the legal provisions on Habeas Corpus applicable in Pakistan. It will explain the section 491 CrPC with Article 199 of the Constitution of Pakistan. The critical review of this doctrine will be given in this paper at hand. This paper will briefly discuss the conditions necessary for the applicability of the writ of Habeas Corpus. Furthermore, it will be discussed what the law under CrPC explicitly states and how it is implemented by the judiciary. In addition to that this paper will also discuss exceptions to the Habeas Corpus. It precisely states how the search of people who are wrongfully confined take place. Relevant case laws have been cited.
HABEAS CORPUS & DISCOVERY OF PERSONS WRONGFULLY CONFINED
INTRODUCTION
Article 9 of the Constitution guarantees the security of a person. It prohibits the deprivation of the right to personal liberty saved under the law. This guarantee is further re-enforced by Article 4, which states that every person shall enjoy the protection of the law and be dealt with in accordance with the law. This provision indeed establishes the principle of rule of law and due process procedure. The constitutional safeguards in the shape of Fundamental Rights are enforced through the High Court under Article 199 of the Constitution of Pakistan. In case of infringement of the fundamental rights, a writ can be filed before the High Court.
Writ of Habeas Corpus is sought to enforce the right to life. When the life of a person is in danger, this writ is sought. Normally this writ is issued in case of illegal detention. Habeas corpus is used if a person is unlawfully imprisoned. Article 199(b1)(1) empowers the High Court to issue a writ of Habeas corpus in case of violation of that right. Section 491 Cr.PC. also provides the powers to issue directions like Habeas Corpus. Writ of Habeas Corpus can be filed to seek the release of a person from unlawful detention, whether by Police or by any private person.
RELEVANT PROVISIONS
Following are relevant provisions of CrPC related to the concerned topic:
i. Sections 491 of CrPC ii. Article 199 of Constitution of Pakistan 1973 Cross Reference
i. Article 4, 9 of 1973 Constitution of Pakistan ii. Section 100 & 552 of CrPC iii. Section 25 of the Guardian and Wards Act 1890
MEANING OF HABEAS CORPUS
The words "habeas corpus" is a Latin law term. Its literal meaning is "Have his body"1.
According to the Oxford Dictionary of Law: “ A prerogative writ used to challenge the validity of a person's detention, either in official or in private hands.2 ”
Legal Meaning: A writ employed to bring a person before a court, most frequently to ensure that the party's imprisonment or detention is not legal.
Meaning of habeas corpus in terms of case law: In Mst. Tauqir Fatima vs Iqbal Mehdi Shah , it is established that the proceedings by way of Habeas Corpus are proceedings, calling upon a person having custody of another person to produce him and demonstrate, under what authority he holds him in custody3.
WRIT OF HABEAS CORPUS
The writ of habeas corpus ad subjiciendum is the most celebrated prerogative writ of the English law. It is addressed to whom who detains another in custody and commands him to produce body, with the day and cause of his caption and detention, and to do, submit to, and receive what the Court shall consider on that behalf.
OBJECT OF HABEAS CORPUS
The object of this provision is to provide a prompt remedy against illegal confinement. The power conferred upon High Courts under Section 491 is an important safeguard against the abuse of authority or illegal/improper exercise of power by a public functionary or private person. Furthermore, it helps in the efficacious and expeditious disposal of pending cases as prisoners or detainees or defendants may be caused to be produced before the court.
HABEAS CORPUS UNDER SECTION 491 CrPC
The power of issuing habeas corpus writs is conferred upon the High Courts through Section 491 of the Code of Criminal Procedure 1898. This Section empowered the High Courts to issue writs in cases of illegal or unlawful detention in public or private custody. It enabled the High Courts to cause detainees to be produced before it, to satisfy that they are dealt with per law and are not being held unlawfully.
WHO CAN FILE APPLICATION UNDER SECTION 491
Following persons can file an application under section 491.
i. The person himself
ii. His close relative
iii. His advocate
A person who is not competent to file an application under 491 of CrP.C is a stranger.
In a case, Aziz-ul-Haque versus Province of East Pakistan , Dhaka High Court established that a stranger has no right to make an application under this section. Where the application was filed by the stranger without any information from or any consent of detenu, the application was not bona fide and was dismissed4. This principle is upheld by Karachi High Court in Imdad Hussain v. Noor Hassan 5. However, the court cannot decline to exercise jurisdiction and wait for a close relative or friend to come forward to file the petition. In another case, illegal detention of a foreigner was allowed by the court to be challenged through habeas corpus petition filed by an advocate and prosecuted in person6.
POWER TO ISSUE DIRECTIONS OF THE NATURE OF HABEAS CORPUS U/S 491:
I. HIGH COURT [Section 491(1)]
Any High Court may, whenever it thinks fit, direct
- that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law7 ;
- that a person illegally or improperly detained in public or private custody within such limits be set at liberty8 ;
- that a prisoner detained in any jail situate within such limits be brought before Court to be there examined as a witness in any matter pending or to be inquired into in such Court9 ;
- that a prisoner detained as aforesaid be brought before a Court-martial or any Commissioners for trial or to be examined touching any matter pending before Such Court-martial or Commissioners respectively10 ;
- that a prisoner within such limits be removed and one custody to another for the purpose of the trial, and
- that the body of the defendant within such limits be brought in on the Sheriff's return of cepi corpus [Latin term which means I got the body] to a writ of attachment.
II. SESSIONS JUDGE & ADDITIONAL SESSIONS JUDGE [Section 491(1A)]
It is evident from the language of subsection (1-A) of section 491, Cr.P.C. that a concurrent jurisdiction has been conferred on the Sessions Judges and Additional Sessions Judges subject to special order or general order issued by the High Court. The word 'also' used in subsection (1-A) is indicative by the Sessions Judges and Additional Sessions Judges as well, if empowered by the High Court, itself. The conferment of this concurrent jurisdiction on Sessions Judge/Additional Sessions Judge does not take away the jurisdiction vested in the High Court
III. FRAMING RULES TO REGULATE [Section 491(2)]
The High Court may, from time to time, frame rules to regulate the procedure in cases under this section.
IV. PREVENTIVE DETENTION [Section 491(3)]
Nothing in this section applies to persons detained under any other law providing for preventive detention.
ORDER OF HIGH COURT
In Habeas Corpus petition u/S. 491, Cr.P.C. High Court can pass any of the following order:
- Issue rule nisi for production of detenu in Court;
- to set the detenu free11 ;
- to convert the proceedings into bail application and grant bail to the detenu;
- to order registration of a case against a police officer/private person who was found violating the fundamental right of detenu12 ;
- to direct police authorities to conduct departmental proceedings against Police Officer responsible for illegal detention;
- when the Court is satisfied that the respondent police officers have acted in violation of Court directions or failed to obey the same, to initiate contempt proceedings against such persons;
- to award cost against the police officer in favour of petitioner for expenses incurred in getting the detenu released13 ;
- to award monetary compensation to detenu who was deprived of liberty14 ;
- to dismiss the petition when the detention is found lawful and bona fide.
MODES OF EXERCISING POWER
The High Court can exercise power in either of the following ways.
i. Suo motu:
The Court may initiate proceedings at its own to ensure that the person must not be illegally detained. Miss Hina Jilani Vs. Sohail Butt : Proceedings by way of habeas corpus can be adopted for obtaining custody of minors by their parents, legal guardians, or others who are entitled to have their custody. Section 491, makes it manifestly clear that exercise of jurisdiction is not dependent upon filing of an application for custody of minor or direction in the nature of habeas corpus by an aggrieved person. The court can issue directions such as “suo motu”. Therefore, a Director of Human Rights Organization was, thus, competent and had locus standi to file such application especially when the mother of a minor foreign national had supported such application by filing her affidavit15.
[...]
1 https://dictionary.cambridge.org/dictionary/english/habeas corpus
2 https://www.oxfordlearnersdictionaries.com/definition/american_english/habeas corpus
3 19990 PCrLJ 342
4 PLD 1968 Dacca 728
5 PLD 1974 Kar. 485
6 NLR 1996 Cr. LJ 362
7 MUHAMMAD QASIM KHAN VS. YAR QAND [2001 MLD 819]: The High Court has two fold jurisdictions under S. 491. a. Firstly: To deal with a person within its appellate criminal jurisdiction according to law; b. Secondly: to set detenu at liberty if found to be illegally or improperly detained
8 Ibid
9 PLD 1963 Dacca 553 Kiran Bala: Minor Hindu girl embracing Islam and marrying a Muslim of her own free will. Minor pending trial detained in jail by order of the Magistrate. Habeas corpus petition by the mother. Minor was released and handed over to his mother. High Court holding that the detention was illegal.
10 (FB) ILR 26 Lah. 419 Jit Singh v. Imperator 47 Cr.LJ 1022: Members of Court Martial are sole, Judges of both law and fact. The High Court under section 491, Cr.P.C. cannot go into this question. It would be different if the Court Martial has no jurisdiction or convicted an accused person without hearing any evidence at all.
11 Mst. Sahi Bi v. Khalid Hussain and 6 others: Detenue sui juris unwilling to go with her husband or guardian. Court has no alternative but to set her at liberty and allow her to move freely. Muhammadan Law. A Sui juris woman cannot be forced to live with her husband against her wishes. Wife entitled to live separately from her husband. Husband may file a suit for restitution of conjugal rights but High court in proceedings under section 491, Cr.P.C. cannot compel her to go with her husband on the ground that if set at liberty she would lead immoral life. Such considerations are irrelevant for the decision of case under section 491, Cr.P.C.
12 PLJ 1990 Cr. C. (Lah.) 368: Registration of FIR ordered against SHO for unlawful detention of the detenu in petition u/S. 491, Cr.P.C.
13 Faiz Ahmad v. SHO (PLD 1975 Lah. 1435): S.H.O. illegal detained the detenu in police lock up. The High Court ordered SHO to pay Rs. 200 as costs of the habeas corpus petition.
14 In Mahboob Alam v. SHO Gojra: SHO found Rs. 3,000/- in Habeas Corpus petition, as the arrest had not been shown in the daily diary and the detenu was not required by police for any offence.
15 PLD 1995 Lahore 151
- Quote paper
- Fatima Tariq (Author), 2020, The Writ of Habeas Corpus under the Code of Criminal Procedure 1898. Criminal law in Pakistan, Munich, GRIN Verlag, https://www.hausarbeiten.de/document/1242958
