1971 P Cr (PLP)

Zakaur Rehman Khan for Petitioner. M. Jamil for the State. This is a petition under section 561‑A, Cr. P. C. for quash ment of the proceedings pending against Bashir Abmad petitioner in the Court of Sardar Khalid Mahmood M. Z. C., Lahore under section 363, P. P. C. vide F. I. R. No., 501 dated the 18th of September 1957, registered at Police Station Mozang.

2. The prosecution case, in brief, is that the petitioner had turned out his wife Mst. Mukhtar Begum along with his minor child Faisal Bashir, from his house who was living with her parents on the 2nd of September 1967, when the petitioner had taken away her son without her consent out of her lawful guardianship on the pretext of buying him sweetmeat and had refused to restore him to his mother.

3. It was contended on behalf of the petitioner that, no offence would be disclosed from the perusal of the F. I. R. lodged in this case and even if the prosecution evidence was adduced and left un-rebutted no charge could be framed against him so the prolongation of the proceedings in the trial Court would tantamount to an abuse of the process of the Court.

4. In the present case the marriage was still subsisting between the spouses as no permanent separation had taken place between them so he (the petitioner) was the legal guardian of his minor son under the Mudammadan Law and could not be prosecuted under this section merely for removing him from the "Hizanat" of his mother. The contention that the statutory word "whoever" in section 363, P. P. C. contemplated persons other than the lawful guardians and was provided to advance their rights was now a well‑settled proposition of law.. Learned counsel relied on Ahmad Nawaz and 3 others v. The State (P L D 1968 Lah. 97), the facts of which are quite similar with the present case. All these assertions' were duly examined in the, light of the various authorities them holding the field on these points with special reference to Imambandi and others v. Sh: Haji Mutsaddi (47 I A 513). In that case the Judicial Committee of the Privy Council had held that under the Muhammadan Law the mother is entitled only to the custody of the person of a minor child to a certain age, but she is not the natural guardian as the father alone is the legal guardian. In the case relied upon by the counsel for the petitioner the father of the minor children was prosecuted under section 363, P. P. C. for having removed them to his house at. Karachi from the custody of their mother as in the present case. In disposing it of Mr. Justice S. A. Mahmood (as he then was) has observed as under: ‑ It can either be out of his love and affections for them or in order to provide them with better education, comforts and facilities, so that their removal is for their welfare and not for any immoral or unlawful purpose. It is, therefore, unfortunate that he should have been prosecuted by his wife for a criminal offence on the technical plea that she has the right of their hizanat. It is equally unfortunate that the petitioner and his wife have fallen out, but a criminal Court is not a proper forum for the mother to obtain custody of her. Minor children. The petitioner can take full advantage of the exception and claim, in the circumstances of the case, that he in good faith, believed himself entitled to the lawful custody of the children and in taking them under hits own care is not guilty of kidnapping them." A similar point arose in Mst. Sod! v. The State (1969 P Cr. L J 109.) wherein Mst. Haroon, the daughter of Mst. Sodi was married to Rasool Bakhsh and the girl named Mst. Iqbal Begum was born out of that wedlock and on dissolution of their marriage Mst. Haroon had contracted a second marriage with a person not within prohibited degrees to Mst. Iqbal Begum who was then living with her maternal grandmother Mst. Sodi. On a contest between the parties it was observed that under the Muhammadan Law Mst. Haroon had lost her right as the' custody of her minor daughter had since passed on to the maternal grandmother and in any case this was a question which could only be decided adequately upon an application under the Guardians and Wards Act and the proceed ings pending in the Court of A. C. M. Karachi were ordered to be quashed.

5. Learned counsel for the State had relied on Gianchand v. The State and another (1968 P Cr. L J 764) and asserted that the determination of the guilt or innocence of the accused‑petitioner depend on totality of facts and circumstances to be revealed during the trial which stage had not yet reached and according to him the petition was premature. He also referred me to Ghulam Muhammad v. Muhammad Khan (P L D 1967 S C 377) wherein their Lordships had observed that the High Court should be extremely reluctant to interfere in a case where a competent Court has, after examining the evidence adduced before it, come to the view that a prima facie case is disclosed and has framed charges or summoned the accused to appear, unless it can be said that the charge, on its face or the evidence, even if believed does not disclose any offence. This authority was apparently of no avail to the State counsel as no charge had been drawn out against the petitioner so far and the later part of these observations rather supported the plea raised by the petitioner, that no offence could be made out against him in the alleged circumstances of this case as being a legal guardian of his minor son his prosecution under section 363, P. P. C. would not be sustainable in law.

6. In view of the findings given in the above referred two decisions i.e. P L D 1968 Lah. 97 and 1969 P Cr. L J109 it would certainly be an exercise in futility and would result in sheet waste of public time and money. I, therefore, accept this petition and quash the proceedings of the case under section 363, P. P. C. pending against the petitioner at Lahore as being an abuse of the process of the Court. Petition accepted.