The Writ of Habeas Corpus cannot be used to trace Missing Persons unless there is Credible Evidence of Illegal Detention --- Lahore High Court, Lahore
Islamabad 13-09-2024: The Lahore High Court (Bahawalpur Bench) dismissed a habeas corpus petition filed by Muhammad Rafique, seeking the recovery of his missing brother, Muhammad Shafique, who disappeared in March 2021. The Court, presided over by Mr. Justice Tariq Saleem Sheikh, ruled that the petition was not maintainable under the law since there was no clear evidence of unlawful detention.
Muhammad Shafique, a 17-year-old resident of Chak No. 110/1L, Rahimyar Khan, went missing after attending Isha prayers at a local mosque. Despite thorough efforts by his family and the police, his whereabouts remain unknown. Rafique lodged FIR No. 41/2021 under Section 365 of the Pakistan Penal Code (PPC), accusing unknown individuals of abducting Shafique.
In November 2022, Rafique implicated Respondents No. 3 and 4 in his brother’s disappearance, but the police declared them innocent due to a lack of evidence. Frustrated by the lack of progress in the investigation, Rafique turned to the Lahore High Court, filing a habeas corpus petition under Section 491 of the Criminal Procedure Code (Cr.P.C.), arguing that his brother was being unlawfully detained.
In its judgment, the Court emphasized the distinction between cases of illegal detention and missing persons. Mr. Justice Tariq Saleem Sheikh noted that the writ of habeas corpus is traditionally used to secure the release of individuals unlawfully detained by authorities or private individuals. However, the Court stated that the writ cannot be used to trace missing persons unless there is credible evidence suggesting illegal detention.
“The habeas corpus petition is not a tool for intervening in missing person cases when an investigation is already underway,” Mr. Justice Tariq Saleem Sheikh said, referencing precedents from both Pakistani and international Courts. He cited several rulings, including Sulochana Bai Vs. State of Madhya Pradesh [2008 (2) MPHT 233] and Selvaraj Vs. The State, to underscore that habeas corpus petitions are only maintainable when there is a clear case of unlawful detention.
The Court also noted that Rafique had recently nominated two new suspects, Noor Muhammad and Jalu Jee, in January 2024, but even after their arrest, no progress was made in locating Shafique. The Court held that the situation was more accurately classified as a missing person case rather than one of illegal detention.
Citing the case of Swapan Das Vs. The State of West Bengal, Mr. Justice Tariq Saleem Sheikh explained that habeas corpus petitions cannot be used to compel the police to trace a missing person when there is no evidence of illegal custody. The Court reaffirmed that the habeas corpus jurisdiction is meant to address ongoing unlawful detention, not to manage police investigations in missing persons cases.
However, the Court directed the police to continue their investigation diligently and provide regular updates to the petitioner, ensuring that every effort is made to locate Muhammad Shafique.
The Lahore High Court’s dismissal of the habeas corpus petition underscores the limitations of the writ in missing person cases and highlights the role of police investigations in such situations. While the Court expressed sympathy for the petitioner’s plight, it clarified that habeas corpus could not be invoked without evidence of illegal detention. Rafique may still pursue other legal avenues to seek Mr. Justice Tariq Saleem Sheikh for his missing brother.
This ruling reiterates the distinction between unlawful detention and missing persons and clarifies the proper legal channels available in such cases under Section 491 Cr.P.C. and the broader constitutional framework provided by Article 199 of Pakistan’s Constitution.
This legal news report condenses the judgment while highlighting the key legal principles and context relevant to a general audience.
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