1992 P Cr (PLP)

S. 491

Custody of minor

Minor son (detenu) was aged about one year and applicant being his mother was entitled to his custody

Interim order by which his interim custody was given to applicant was consequently confirmed. Manzoor Hussain and another v. Manzoor Hussain P L D 1974 Lah. 202; Begum Gulzar v. Sajjad Akbar 1977 P Cr. L J 800; Muhammad Naseer Humayun v. Mst. Syeda Ummatul Khabir 1987 S C M R 174; Rana Khurshid Ahmed v. Ashiq Risaldar and another 1988 P Cr. L J 1111; Uzma Wahid v. Muhammad Javed Umrao 1988 P Cr. L J 1883; Muhammad Javed Umrao v. Uzma Wahid 1988 S C M R 1891; Shabbir Hussain v. Mst. Shaheen Parveen and another 1989 P Cr. L J 1689; Mst. Tauqir Fatima v. Iqbal Mehdi Shah and another 1990 P Cr. L J 342; Musarrat Jabeen v. Dr. Khalid Nawab and another 1990 P Cr. L J 686; Mst. Aasia v. Mashhud Ahmad and another 1990 P Cr. L J 847; Mst. Shamshad Begum v. Muhammad Saeed Bin Moghani and another 1989 P Cr. L J 1327; Asif Mowjee v. Mst. Fatima A. Mowjee and another P L D 1987 Kar. 239; Fauzia Jamil v. Syed Farhat Hussain Shah Bukhari and another 1989 P Cr. L J 1736 and Muhammad Rafique v. Muhammad Ghafoor P L D 1972 SC 6 ref. (e) Criminal Procedure Code (V of 1898)

S. 491

Custody of minor girl

Applicant mother after having been divorced by her husband (respondent) was presently residing with a stranger--?Minor girl was about 12 years of age

Minor girl was allowed to remain in the custody of father in circumstances without prejudice to the final decision made by Guardian Judge. Manzoor Hussain and another v. Manzoor Hussain P L D 1974 Lah. 202; Begum Gulzar v. Sajjad Akbar 1977 P Cr. L J 800; Muhammad Naseer Humayun v. Mst. Syeda Ummatul Khabir 1987 S C M R 174; Rana Khurshid Ahmed v. Ashiq Risaldar and another 1988 P Cr. L J 1111; Uzma Wahid v. Muhammad Javed Umrao 1988 P Cr. L J 1883; Muhammad Javed Umrao v. Uzma Wahid 1988 S C M R 1891; Shabbir Hussain v. Mst. Shaheen Parveen and another 1989 P Cr. L J 1689; Mst. Tauqir Fatima v. Iqbal Mehdi Shah and another 1990 P Cr. L J 342; Musarrat Jabeen v. Dr. Khalid Nawab and another 1990 P Cr. L J 686; Mst. Aasia.v. Mashhud Ahmad and another 1990 P Cr. L J 847; Mst. Shamshad Begum v. Muhammad Raced Bin Moghani and another 1989 -P Cr. L J 1327; Asif Mowjee v. Mst. Fatima A. Mowjee and another P L D 1987 Kar. 239; Fauzia Jamil v. Syed Farhat Hussain Shah Bukhari and another 1989 P Cr. L J 1736 and Muhammad Rafique v. Muhammad Ghafoor P L D 1972 SC ref. Umer Farooq Khan for Petitioner. Partab Rai for Respondents Nos.l to

4. Shaukat H. Zubedi, A.A.-G. for the State. Date of hearing: 28th August~1991. This petition under section 491, Cr.P.C. has been filed by Mst. Zubaida Khatoon alias Aqleema Khatoon alias Parveen for the recovery of her son Master Dilshad, aged about one year and daughter Baby Raishman Khatoon aged about 7 years from the custody of respondents Nos.l to 3.

2. Saadullah A. Siddiqui, respondent No.1 is the husband of applicant, while Muhammad Naushad and Muhammad A,rshad, respondents Nos.2 and 3 are her sons from respondent No.1. It is alleged that all these three respondents have forcibly snatched Master Dilshad, aged about one year and Baby Raishman Khatoon aged about 7 years from her lawful custody. The applicant approached various authorities for the recovery of the alleged detenues, but without success. She has, therefore, filed this petition under section 491, Cr.P.C. for the recovery of the aforesaid detenues. Both these detenues were produced in Court. The custody of Master Dilshad aged about one year, who is of suckling age, was temporarily given to applicant, while respondent No.1 was permitted to keep Baby Raishman Khatoon with him.

3. The proceedings by way of habeas corpus are proceedings calling upon a person having custody of another person to produce him and demonstrate under what authority he holds him in custody. If the authority is legitimate, the High Court cannot interfere. As observed in Manzoor Hussain and another v. Manzoor Hussain reported in P L D 1974 Lah. 202, by Muhammad Afzal Zullah, J. (as he then was), proceedings of habeas corpus, by their nature and purpose are summary in character. Controversies are not tried nor entire evidence is recorded under ordinary substantive and procedural laws, civil or criminal. These proceedings are not intended to go beyond the summary consideration of the questions essentially relevant to the alleged detention.

4. As observed in the cases reported as Begum Gulzar v. Sajjad Akbar 1977 P Cr. L J 800, Muhammad Naseer Humayun v. Mst. Syeda Ummatul Khabir 1987 S C M R 174, Rana Khurshid Ahmed v. Ashiq Risaldar and another 1988 P Cr. L J 1111, Uzma Wahid v. Muhammad Javed Umrao 1988 P Cr. L J 1883, Muhammad Javed Umrao v. Uzma Wahid 1988 S C M R 1891, Shabbir Hussain v. Mst. Shaheen Parveen and another 1989 P Cr. L J 1689, Mst. Tauqir Fatima v. Iqbal Mehdi Shah and another 1990 P Cr. L J 342, Musarrat Jabeen v, Dr. Khalid Nawab and another 1990 P Cr. L J 686, Mst. Aasia v. Mashhud Ahmad and another 1990 P Cr. L J 847, in matters pertaining to the custody of minor of tender age, the High Court has got A jurisdiction under section 491, Cr.P.C. which remedy is definitely more efficacious, speedy and appropriate and is to be exercised without prejudice to the rights of the parties to have the matter finally adjudicated upon by Guardian Judge.

5. It will be manifestly clear that the matters to be dealt with by section 491, Cr.P.C. and Guardians and Wards Act, 1890 are entirely different and the provisions are neither mutually exclusive nor one overlaps or destroys the other 1988 S C M R 1891. Ordinarily the disputes as to guardianship should be 8 decided by a Court under the Guardians and Wards Act, 1890, as that is the ordinary remedy for deciding such disputes, but in exceptional cases High Court can interfere to order restoration of custody which has been disturbed illegally or improperly. This was in fact the view taken by me in the case of Mst. Shamshad Begum v. Muhammad Saad Bin Moghani and another reported in 1989 P Cr. L J 1327, which gets support from cases reported as Asif Mowjee v. Mst. Fatima A. Mowjee and another P L D 1987 Kar. 239 and Fauzia Jamil v. Syed Farhat Hussain r.ah Bukhari and another 1989 P Cr. L J 1736.

6. As observed in Muhammad Rafique v. Muhammad Ghafoor reported in P L D 1972 SC 6, the High Court has two-fold jurisdiction under section 491, Cr.P.C. (i) to deal with a person within its appellate criminal jurisdiction according to law; and (ii) to set him at liberty if he is illegally or improperly detained. The question which falls for determination, however, is that if the Court finds that the person brought before it was being illegally or improperly confined or detained what order can be passed regarding the custody of that person. If the person is a minor, the Court may make over his custody to the C guardian which will be dealing with him in accordance with law, but if the person is a major, the only jurisdiction which the Court can exercise is to set him at liberty whether illegally or improperly detained in public or private custody or not.

7. Admittedly Master Dilshad is aged about one year and the applicant being the mother of the said detenu is entitled to his custody. The interim C order, dated 11-8-1991 by which interim custody of Master Dilshad was given to applicant is, therefore, confirmed.

8. There is however, dispute about the age of Baby Raishman, who according to the applicant is 7 years old. The respondent No.1 has placed on record photo copy of the Passport of applicant showing the date of birth of Baby Raishman as 4-9-1979. She is, therefore, about 12 years of age. It is also the case of respondent No.1 that he has divorced the applicant, who is presently residing with one Muhammad Noor Baloch, a total stranger. The respondent No.1 has also filed affidavits of Muhammad Sher Ali and Muhammad Haider AIL who are real brothers of applicant and both of them have testified that the applicant had abandoned the minors due to love with E Noor Muhammad Baloch, who is complete stranger to the minors. There is no affidavit-in-rejoinder. The applicant has not even disputed her relationship with Muhammad Sher Ali and Muhammad Haider Ali. Accordingly, I am of the view that it will be proper if Baby Raishman Khatoon is allowed to remain in the custody of respondent No.1. Both these orders are however, without prejudice to the final decision to be made by the Guardian Judge having jurisdiction. It is needless to say that the observations made above should not influence the mind of the Guardian Judge in any manner if any of the parties invokes his jurisdiction.

9. The application is accordingly disposed of in-the above direction. N.H.Q./2-175/K????????????????????????????????????????????????????????????????????????????????? Order accordingly.