2007 PLP 1487 (YLR)

AZIZULLAH M. MEMON, J.--Mr. Muhammad Abid Rajput, Advocate has filed power on behalf of respondent No.3, which is taken on record. He has also filed counter affidavit, a copy whereof has been supplied to the other side in Court, which is also taken on record. Heard learned counsel for the petitioner and respondent No.3. Also heard Ms. Cookie Rawat, learned counsel for the State. This petition was filed under Article 199 of the Constitution of Islamic Republic of Pakistan with prayer that respondents Nos.1 and 2 may be directed to recover the minor detenu Ahmed Ali Khan (son of the petitioner Mahira Fatima as well as respondent No.3, Barkat Ali Khan) aged about three years, from the custody of Mst. Shagufta and other private person and to produce him before this Court; further prayer is made that keeping in view the fact of the age of the said minor, he needs Hizanat from his mother, his custody may be handed over to the petitioner/mother. It is a settled principle of law that wherever a specific provision of law stands enacted for the purpose of relief sought by a party then the constitutional jurisdiction of this Court cannot be invoked under the provision of Article 199 of the Constitution. Hence, this petition was converted into an application under section 491, Cr.P.C. vide order dated 13-10-2006, and is being disposed of accordingly. The facts giving rise to filing of this petition are to the effect that the petitioner and respondent No.3 had married and the above named minor son was born out of the said wedlock and further that the said marriage admittedly stands dissolved by means of a decree of Khula passed by II Civil/Family Judge Karachi East, in family Suit No.825 of 2006, which was filed by the petitioner for such a purpose. It is the case of the petitioner that while the marriage was still subsisting she was turned out of his house by respondent No.3 by snatching the custody of her minor son from her, who is under the age of Hizanat; the petitioner alleges that the minor is likely to be taken out of country to USA, whereas respondent No.3 has alleged that relatives of the petitioner reside in Saudi Arabia and there is likelihood that, if the custody, of the minor is given to the petitioner, she would take the minor with herself to Saudi Arabia, not to return back again. The question as to whether the custody of the minor was snatched from the petitioner by respondent No.3, or whether the petitioner voluntarily deserted the minor to be left in the custody of his father, respondent No.3, essentially need, recording of evidence, and such, an exercise cannot be gone into under the provisions of section 491, Cr.P.C.; as the same has to be carried out by the competent Court under the provisions of Guardians and Wards Act, as and when such a case before such a Court is filed. Suffice it to say that the pleadings of the parties in this application under - section 491, Cr.P.C. give a clear indication that the petitioner had been struggling for the custody of the minor in the past also, and it is the case of the respondent No.3 himself that, at least on one occasion, the custody of the said minor was entrusted to the petitioner in the past, but, for one or the other reason the custody again went to the respondent No.3. In the case of Abdul Rehman Khakwani and another v. Abdul Majid Khakwani and others (1997 SCMR 1480), the Hon'ble Supreme Court was pleased to record the following observations at page 1487 of the Report:-- "Even if an order in respect of custody of a minor is passed under section 491, Cr.P.C. that is not end of the matter. In the case of Khushi Muhammad (1988 SCMR 1234) the mother of the minor children obtained ex parte order of their custody from the Guardian Judge, but the same was set aside on application of the father, who - succeeded in obtaining order for re-delivery of the children to him. The mother assailed such order by way of appeal to an Additional District Judge and by way of Revision in the High Court without success. Thereafter the mother invoked constitutional jurisdiction of the Lahore High Court, which ordered custody of the minor children to be given t6 the mother till final decision of the case by the Guardian Judge. While allowing the writ petition the High Court took view that it would not be in the interest of the children to shuttle them between one party or the other until the final decision of the case by the Guardian Judge. This Court declined to interfere with such order, which was held to be fair and proper. In the case of Ahmed Sami (1996 SCMR 268), a learned Bench of this Court took view that a Guardian Court is the final arbitrator to adjudicate upon the question of custody of child, but this did not mean that in exceptional cases when a person who is holding the custody of the minor lawfully and has been deprived of custody of the minor, has no remedy to regain the custody pending adjudication by the Guardian Court. It was further observed that in exceptional cases where a High Court finds that the interest and welfare of the minor demanded that the minor be committed immediately to the custody of the person who was lawfully holding the custody of the minor before being deprived, the Court can pass appropriate order under section 491, Cr.P.C. as an interim measure pending final decision by the Guardian Court. In the case of Miss Hina Jilani (PLD 1995 Lah. 151), the view taken was that an order by the High Court under section 491, Cr.P.C. was subject to order of the Guardian Judge. In the case of Shafqatullah (1995 PCr.LJ 1868) the view taken was that an order under section 491, Cr.P.C. is always without prejudice to the order of the Guardian Judge. In the case of Mst. Shahnaz Khawaja (1996 MLD 24), the minor children living with there grand-father showed their inclination to go to their mother and in the circumstances minor children were set free and allowed to go with the person with whom wished to live, but the parties were left free to move the Family Court under the Guardians and Wards Act." The petitioner is admittedly mother of the minor boy aged about three years and prima facie has- a right of Hizanat of the said minor. The question as to whether or not the petitioner has lost her right to c continue in custody of the minor is to be tried by the competent family Court under the Guardians and Wards Act and such a question cannot be decided by means of an application under section 491, Cr.P.C. On the basis of the above quoted observation of the Hon'ble Supreme Court of Pakistan, this application under section 491, Cr.P.C. is allowed. The minor has been produced in this Court by respondent No.3, who is directed to hand over the custody of the minor to the petitioner/mother. The petitioner/mother has taken over the custody of the minor in this Court. However, the respondent No.3 would be at liberty to contest the custody of the minor by means of filing competent proceedings before the Family Court of competent jurisdiction. In order to meet with the above apprehension expressed No.3 that all the relatives of the petitioner are residing in Saudi Arabia, she is likely to take away the minor to the said country, not to return back, it is further directed that the petitioner shall furnish one surety in the sum of Rs.500,000 (Rupees five lacs only) with PR bond in the like amount, to the satisfaction of the Nazir of this Court within three days, so that she may not take the minor out of Pakistan without prior permission of the Family Court of competent jurisdiction. H.B.T./M-42/K Order accordingly.