ISLAMABAD: The Supreme Court has expressed disappointment over what it has called a ‘subjective sense of morality’ shown by a Lahore High Court (LHC) judge through an order which overshadowed his responsibility of protecting a citizen’s constitutional right to liberty.
“We may observe that we have felt saddened by the fact that through the impugned order a 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,” Justice Asif Saeed Khosa of the Supreme Court said in a verdict.
The controversy began when the LHC judge disposed of a habeas corpus petition on July 4 and ordered that Naseem Akhtar, 28, be sent to Darul Aman in Lahore so that the veracity of two nikahnamas could be adjudged by the relevant court.
The dispute revolves around claims by Mohammad Imran Khan and Mohammad Tariq that they contracted marriage with the same woman.
Mr Khan cited May 14 as the date when he married Ms Akhtar whereas Mr Tariq said he entered into wedlock on Dec 25 last year and that the marriage was still intact — a claim acknowledged by Ms Akhtar and her father Ali Mohammad, the petitioner in the case.
Ms Akhtar pleaded that she was not in confinement or restrained while living with her father and wanted to live with him.
She had filed on June 26 a jactitation of marriage suit against Mr Khan and the case was pending with a family court in Sillanwali, Sargodha district.
Ms Akhtar denied that she had married Mr Khan and pleaded that he should be restrained ‘from being her husband’. The same arguments were advanced by her father.
But the high court did not accept the plea, saying the contention was untenable and the court could not allow a person to live an ‘immoral life’. She was sent to the Darul Aman to ‘save her from the commission of an offence’.
She would stay in the Darul Aman till the time her suit for jactitation of marriage was decided, the high court judge ruled in his chambers.
Consequently, the father came to the Supreme Court by filing a petition against the high court order, which was taken up by a two-judge bench headed by Justice Khosa.
In his judgment released by the court this week, Justice Khosa said Ms Akhtar was a grown-up lady not involved in any criminal case as an accused.
Her consistent stand before the high court and the Supreme Court had been that she was not in any kind of confinement or under any restraint while living with her father.
“Although she has two rival suitors yet she has expressed a clear desire before the apex court that she wishes to go and live with her father,” the verdict said.
“We have found it to be rather disturbing that despite her eagerness to continue living with her father she had been deprived of her liberty and ordered by the judge in chamber of the LHC to be lodged at Darul Aman and that too for an indefinite period,” it said.
It was quite ironic and shocking, the judgment said, that the habeas corpus proceedings before the LHC, meant to secure release of a person from an illegal or improper custody or confinement, had been utilised for depriving a free person of her liberty and the net result was that a grown-up, young lady who was not found to be in any kind of confinement or under any restraint had been locked up and incarcerated within the confines of Darul Aman for an indefinite period. Such an approach and the result achieved by the judge ran contrary to the very essence and purpose of a writ or petition for habeas corpus which was securing freedom and not curtailing liberty, it said.
The Supreme Court converted the petition into an appeal and ordered that Ms Akhtar be set free. “She may go and live with her father, namely Ali Mohammad, petitioner, as desired by her,” the order said.
It said it was unfortunate that in his zeal and eagerness to prevent commission of an imagined or apprehended sin or crime the high court judge had not only chosen to ignore the divine command but had also decided to disregard the constitutional mandate.
The high court judge had not even levelled an allegation but had only imagined a possibility of commission of zina in future and had then proceeded to punish Ms Akhtar by depriving her of her liberty and putting her in the confines of a Darul Aman for an indefinite period, it said.
The apex court asked the registrar of the LHC to bring the verdict to the notice of the judge-in-chamber.