1992 PLP 1460 (MLD)

(f) Criminal Procedure Code (V of 1898)‑‑‑ ‑‑‑‑S.491‑‑‑Custody of minor ‑‑‑Detenu was aged about 2‑1/2 years whose custody was alleged to have been obtained by respondents by force through illegal means‑‑‑There being no substitute for a mother custody of the detenu minor was directed to be delivered to applicant mother subject to any decision made by Guardian Judge in this behalf if the respondent (father) was able to make out a case for forfeiture of Hizanat against the applicant (mother). Manzoor Hussain and another v. Manzoor Hussain PLD 1974 Lah. 202; Begum Gulzar v. Sajjad Akbar 1977 PCr.LJ 800; Muhammad Naseer Humayun v. Mst. Syeda Ummatul Khabir 1987 SCMR 174; Rana Khurshid Ahmed v. Ashiq Risaldar and another 1988 PCr.1J 1111; Uzma Wahid v. Muhammad Javed Umrao 1988 PCr.LJ 1883; Muhammad Javed Umrao v. Mst. Uzma Wahid 1988 SCMR 1891; Shabb:r Hussain v. Mst. Shaheen Perveen and another 1989 PCr.LJ 1689; Mst. Tauqir Fatma v. Iqbal Mehdi Shah and another 1990 PCr.LJ 342; Musarrat Jabeen v. Dr. Khalid Nawab and another 1990 PCr.LJ 686; Mst. Aasia v. Mashhud Ahmad and another 1990 PCr.LJ 847; Mst. Shamshad Begum v. Muhammad Saad Bin Moghani and another 1989 PCr.LJ 1327; Asif Mowjee v. Mst. Fatma A. Mowjee and another PLD 1987 Kar. 239; Fauzia Jamil v. Syed Farhat Hussain Shah Bukhari and another 1989 PCr.1J 1736; Muhammad Rafique v. Muhammad Ghafoor PLD 1972 SC 6 and Mst. Khalida Begum v. Muhammad Altaf 1983 CLC 678 ref. (g) Criminal Procedure Code (V of 1898)‑‑‑ ‑‑‑‑S.491.‑‑‑Guardians and Wards Act (VIII of 1890), S.25‑‑‑Custody of minor‑ ‑There cannot be a substitute for a mother‑‑‑Mother's lap is God's own cradle for a child and as between. the father and the mother other things being equal, a child in the circumstances of a given case should remain with the mother. Mst. Khalida Begum v. Muhammad Altaf 1983 CLC 678 ref. Aftab Ali Khan for Petitioner. Bahrain Khan Ujjan for Respondents Nos.1 and

2. S.ZA. Qureshi for A: G. for the State. Date of hearing: 4th November, 1991. This petition under section 491, CCY.C. is filed by applicant Mst. Haseena for the recovery of her son Asif Raza aged about 2‑1/2 years from the custody of her previous husband Muhammad Raza, the respondent No.2 and his mother Mst. Mini, the respondent No.1.

2. The applicant was married with respondent No.2 on 23‑8‑1987 and out of this wedlock a male child by name Asif Raza who is now aged about 2‑1; 2 years was born. The marriage was not successful and consequently it ended in divorce on 16‑10‑1990. The parties, however, executed an agreement whereby Asif Raza was allowed to remain with applicant till he attained the age of 7 years. The respondent No.2 also undertook to pay the maintenance allowance for his son at the rate of Rs.300 p.m., which was paid for two months and then it was stopped. On 30‑5‑1991 the applicant contracted second marriage with one Muhammad Anwar with whom she is presently residing. It is alleged that on 6‑9‑1991 Asif Raza was removed forcibly by respondent No.1, while he was in the lap of his maternal‑grandfather and was then detained wrongfully. On 29‑9‑1991 the applicant approached this Court with an application under section 491, Cr.P.C. Asif Raza, the alleged detenu was produced by respondents Nos.1 and 2 and they were allowed to retain his custody till further orders.

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 FLD 1974 Lab. 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. The invocation of jurisdiction l under section 491, Cr.P.C., was considered in Begum Gulzar v. Sajjad Akbar reported in 1977 PCr.LJ 800, Muhammad Naseer Humayun v. Mst. Syeda Ummatul Khabir reported in 1987 SCMR 174, Rana Khurshid Ahmed v. Ashiq Risaldar and another reported in 1988 PCr.LJ 1111, Uzma Wahid v. Muhammad Javed Umrao reported in 1988 PCr.LJ 1883, Muhammad Javed Umrao v. Mst. Uzma Wahid reported in 1988 SCMR 1891, Shabbir Hussain v. Mst. Shaheen Perveen and another reported in 1989 PCr.LJ 1689, Mst. Tauqir Fatima v. Iqbai Mehdi Shah and another reported in 1990 PCr.LJ 342, Musarrat Jabeen v. Dr. Khalid Nawab and another reported in 1990 PCr.LJ 686 and Mst. Aasia v. Mashhud Ahmad arid another reported in 1990 PCr.LJ 847 and it was held that in matters pertaining to the custody of minors of tender age the High Court has got jurisdiction S 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 the 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 SCMR 1891. Ordinarily the disputes as to guardianship should be 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 d 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 PCr.LJ 1327, which gets support from cases reported as Asif Mowjee v. Mst. Fatima A. Mowjee and another reported in PLD 1987 Kar. 239; Fauzia Jamil v. Syed Farhat Hussain Shah Bukhari and another reported in 1989 PCr.LJ 1736.

6. As observed in Muhammad Rafique v. Muhammad Ghafoor reported in PLD 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 not 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 guardian which will be dealing with him in accordance with law, but if the person is 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 the alleged detenu is aged about 2‑1/2 years. According t the applicant the custody of the detenu was obtained by respondents Nos.1 and 2 by force through illegal means. The respondents Nos.1 and 2 have, however, asserted that the custody of the detenu was given to them by the applicant herself in accordance with the terms of agreement. However, this controversy cannot be resolved in proceedings of this nature which are basically summary in character and is to be decided by a competent Court having jurisdiction to decide cases of this nature.

8. There cannot be a substitute for a mother and as observed in' the case of Mst. Khalida Begum v. Muhammad Altaf reported in 1983 CLC 678, "mother's lap is God's own cradle for a child and as between the father and the mother other things being equal, a child in the circumstances of a given case should remain with the mother'.

9. Having regard to the above circumstances, I direct that the custody o detenu Asif Raza be delivered to applicant by respondents Nos.1 and 2 before the Registrar of this Court on 30‑11‑1991 at 10.00 a.m.. It will, however, be H open to respondent No.2 to seek remedy before the competent Court, if he is' able to make out a case for forfeiture of Hizanat against the applicant. It ma be added that this order is subject to any decision male by Guardian Judge in this behalf.

10. The application made under section 491, Cr.P.C. is allowed in the above terms. N.H.Q./H‑314/K Petition allowed.