P L D 1994 Peshawar 143 (PLP)

Through this Habeas Corups Petition under section 491, Cr.P.C. Mst. Shaheen demands the immediate custody of her son Zeeshan aged 2 years 8 months who is presently in the custody of his father Zia Muhammad the respondent.

2. The arguments were heard as pre‑admission notice was served upon respondent, on two‑fold grounds of jurisdiction of this Court and the merits that warranted a direction from this Court for speedy delivery of child, to the mother.

3. Three rulings were produced before me which I would be discussing in due course and from which I feel convinced that a valid order in cases like one in hand can be passed under appropriate circumstances despite the fact that a concurrent jurisdiction is vested in the Guardian Judge of the‑District. Despite being vested with such jurisdiction, I would distinguish the cited rulings and hold that in the instant case the circumstances do not exist to warrant the issuance of a writ within the contemplation of section 491, Cr.P.C. the very opening words whereof call upon the indulgence of Court only if it is deemed fit, for that matter, in each case. In the case of "Mst Asia v. Mashood Ahmad" 1990 PCr.LJ 847, the dominant factor that prevailed in the mind of the learned Judge of Karachi High Court was that the father had deceitfully obtained the custody of two minors from the mother and had removed them to Sargodha, outside the criminal appellate jurisdiction of the Court. In that case the mother, already having a lawful custody, was deprived of the union in a deceitful manner. In Mst. Farzana v. Syed Muhammad Afzal 1991 PCr.LJ 758 there also was a similar apprehension of removal of child out of the jurisdiction of Court. The child therein was of a very tender age because at the time of the passing of order he was 20 months old. In Mst. Sajida Parveen v. Ubaidullah Khan PLD 1993 Lah. 362, the facts are distinguishable so far as the age of the child is concerned who was only six months old and where serious allegations involving character were levelled against the husband.

4. Coming to the present case, such allegations are levelled against the petitioner whose present marriage was the second one, who stood divorced for the second time and who does not even presently reside with her parents. Whether the aforesaid allegations are correct and whether these really go to affect the welfare of the minor and conversely, whether the father is properly maintaining the son, are a few number of facts that requires thorough evidence to be recorded pro and contra. This can only be done before a Guardian Court which can conveniently be resorted to by the petitioner‑lady. In the instant case, there do not appear to be any extraordinary circumstances that warrant I issuance of a writ under section 491, Cr.P.C. The petition is hereby dismissed in limine, with direction to the lady‑petitioner to invoke the provisions of I Guardian and Wards Act, if desired or if advised. N.H.Q./1532/P??????????????????????????????????????????????????????????????????????????????????? Petition dismissed.