2014 PLP 1718 (MLD)

SIKANDAR ZULQARNAIN SALEEM, J.

Through this petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with section 561-A Cr.P.C., petitioner has assailed the order dated 3-5-2014, to the extent of removal of the minors from the territorial jurisdiction of Tehsil Multan, passed by the learned Aditional Sessions Judge, Multan.

2. The background of this case is that, parties i.e petitioner and respondent No.4, being husband and wife parted their ways on account of 2nd marriage solemnized by respondent No.4 with Meh Jabeen, due to the said reason matrimonial life of the petitioner was disturbed. That on 2-5-2014, respondent No.4, after snatching the minor girls kicked out the petitioner from his house. Being deprived of her minor girls, the petitioner preferred a petition under section 491 Cr.P.C. before the learned Sessions Judge, Multan. Thereafter, vide order dated 3-5-2014, passed by the learned Additional Sessions Judge, Multan, the minor girls were handed over to the petitioner with the direction that the petitioner shall not remove them from the territorial jurisdiction of Tehsil Multan. Hence, this petition.

3. Heard. Record perused.

4. Unambiguously the minors namely Eshal, aged 2 years and Waniya, aged 8 months cannot be left at the mercy of father/respondent No.4, who is now at the verge to start new matrimonial life with his second wife, as both the minor girls are in a very tender age which entails the warmth of mother's love who is naturally and legally entitled for their custody. Even today, the minors have shown their unfathomable response towards their mother, one can't consider proper that the girls should suffer, in their attachment or emotions towards their mother.

5. There is no denial to the fact that scope of section 491 Cr.P.C. is not that wide, which has been exercised by learned Additional Sessions Judge, Multan in impugned order dated 3-5-2014. The very essence and purpose of the petition for Habeas Corpus under section 491 Cr.P.C., is securing freedom and not curtailing liberty. If the person is a minor, the court may make over his custody to the guardian who will be dealing with him in accordance with law but cannot put an embargo. Such a course will lead to curtail the liberty for which there is no warrant under section 491 Cr.P.C. which is hereby reproduced as under:--

491. Power to issue direction of the nature of a Habeas Corpus.

(1) Any High Court may, whenever it thinks fit, direct: (a) that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law: (b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty; (c) that a prisoner detained in any jail situate within such limits be brought before Court to be there examined as a witness in any matter pending or to be inquired into in such Court; (d) that a prisoner detained as aforesaid be brought before a Court-martial or any Commissioners for trial or to be examined touching any matter pending before such Court-martial or Commissioners respectively. (e) that a prisoner within such limits be removed from one custody to another for the purpose of trial; and (f) that the body of defendant within such limits be brought in on the Sheriff's return of cepi corpus to a writ of attachment. It is unthinkable that after final disposition of such petition, minors and their mother, who was otherwise a free person may be put to a physical restrain for an indefinite period.

6. It appears that the learned Additional Sessions Judge had transcended the legal requirements by restraining the movement of the petitioner and minors within the territorial jurisdiction of Tehsil Multan. It amounts to interfere in sphere allotted to the Guardian Court. It's learned Guardian Court to decide the matter of final custody. Through a petition under section 491 Cr.P.C. the court can only regulate interim custody of minors and not beyond it.

7. Hence, in view of the above, the instant petition is accepted and the order dated 3-5-2014, passed by learned Additional Sessions Judge, Multan, is hereby set aside to the extent of removal of minors from territorial jurisdiction of Tehsil Multan. ARK/M-259/L Petition accepted.