..:: What is Law and Procedure of Habeas Corpus in Pakistan?

Issuance of a writ is an exercise of an extraordinary jurisdiction of the superior courts in Pakistan.  A writ of habeas corpus may be issued by any High Court of a province in Pakistan.  Article 99 of the 1973 Constitution of the Islamic Republic of Pakistan, specifically provides for the issuance of a writ of habeas corpus, empowering the courts to exercise this prerogative:

Article 199. Jurisdiction of High Court.—Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,–

. . .

on the application of any person, make an order –

that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; . . .

The hallmark of extraordinary constitutional jurisdiction is to keep various functionaries of State within the ambit of their authority.  Once a High Court has assumed jurisdiction to adjudicate the matter before it, justiciability of the issue raised before it is beyond question.  The Supreme Court of Pakistan has stated clearly that the use of words “in an unlawful manner” implies that the court may examine, if a statute has allowed such detention, whether it was a colorable exercise of the power of authority. Thus, the court can examine the mala fides of the action taken.

In another leading case, the Supreme Court stated that in exercising constitutional jurisdiction relating to a detention, the court was under an unconditional duty to satisfy itself with regard to the lawfulness of authority of detention and the manner of detention.  The scope of the inquiry is not in any way fettered by any rules of procedure of the write of habeas corpus.  Once the attention of the court is properly drawn to a case of detention, the onus immediately shifts to the detaining authority to show the lawfulness of its authority in detaining the detainee.  The duties, therefore, are specifically that of the court and the detaining authority. The applicant may come to the forefront in such situations incidentally.


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