1999 PLP 3225 (MLD)

(b) Criminal Procedure Code (V of 1898)

S. 491

Guardians and Wards Act (VIII of 1890), S. 25

Habeas corpus petition

Maintainability during pendency of application under S.25, Guardians and Wards Act, 1890

Petitioner-mother who was deprived of custody of her minor child, filed application under S. 25, Guardians and Wards Act, 1890 before Guardian Judge who as per interim order allowed her to meet minor-- Pending application before Guardian Judge, petitioner mother filed petition under 5.491, Cr.P.C. which was objected to by respondents contending that pending application before Guardian Judge, petition under S. 491, Cr.P.C. was not maintainable

Validity

In absence of any overlapping between provisions of S.491, Cr.P.C. and. S. 25, Guardians and Wards Act, 1890, contention of respondents had no force

Application under S.25, Guardians and Wards Act, 1890 being pending before Guardian Judge, petition under S. 491, Cr.P.C. was maintainable

Remedy under S. 491, Cr.P.C. was snore efficacious, speedy and appropriate as compared to proceedings before Guardian Judge; but each case was to be decided on its merits

In absence of any material on record to show that minor was removed illegally or improperly, it would not be appropriate to disturb status quo issued in her favour

Guardian Judge was directed to dispose of application before him within specified period. Shaikh Ghulam Sabir Niazi for Applicant Qadir Brohi for Respondent No.

1. Azizur Rehman Shaikh for the State. Date of hearing: 9th April, 1997. In this application under section 491, Cr.P.C., the applicant who is mother of the alleged detenu Mugaz has prayed for issuance of rule nisi as well as for production of said minor. She has also prayed for his custody. Learned counsel appearing for the State submitted that this applicant is maintainable but looking to the age of minor it would be appropriate if the custody is handed over to the applicant who is his mother. Under section 491, of the Criminal Procedure Code the High Court has two-fold jurisdiction namely (a) to deal with a person within its appellate criminal jurisdiction according to law; and (b) to set him at liberty if he is illegally or improperly detained. If the Court finds that the person brought before it was not being illegally or improperly confined or detained then the question would be what order should be passed regarding the custody of the person. In case if that 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 if the person is major, the only jurisdiction which the Court can exercise is to set him at liberty (See Muhammad Rafique v. Muhammad Ghafoor (PLD 1972 SC 6). In Muhammad Khalilur Rehman v. Mst. Shabana Rehman and another (PLD 1995 SC 633) it was held by the Hon'ble Supreme Court that jurisdiction of, the Criminal Court is not barred under section 491, Cr.P.C. to pass appropriate order with regard to custody of the minor who has been illegally removed from the custody of a person on account of provisions of the Act, 1890. It was further held by the Hon'ble Supreme Court in this authority that there is no over-lapping between the provisions of section 491, Cr.P.C. and section 25 of the Act, 1890. Therefore, there is no force in the submission of the learned counsel for the respondents that merely because application under section 25 of the Act, 1890 is pending before the learned Guardian Judge, therefore, this application is not maintainable. Now the question is whether in the facts and circumstances of this case, the applicant is entitled to the interim custody of the minor. There is no doubt that remedy in section 491, Cr.P.C. is more efficacious, speedy and appropriate in such case as compared to the proceedings before the Guardian Judge but each is to be decided on its own merits, subject to the principles laid down by the Superior Court. It is her case that in July, 1996 she was deprived of the custody of the minor and then she filed proper application before the learned Guardian Judge which is still pending and as per interim order she is being allowed to meet the minor, therefore, in the absence of any material on record to show that the minor was removed illegally or improperly it would not be appropriate to disturb the status quo. However, in the interest of justice the learned Guardian Judge is directed to try to dispose of the Guardian Application No. 517 of 1996, expeditiously preferably within three months. Subject to these observations this petition having no merits is dismissed. H.B.T./M-317/K Order accordingly.