1991 PLP 1395 (MLD)

Muhammad Rafique v. Muhammad Ghafoor P L D 1972 S C 6 rel. (e) Criminal Procedure Code (V of 1898)

S. 491

Custody of minor

Minor was about five months old and her custody with respondent (father) appeared to be improper if not illegal

Nobody can be substituted for a mother

Custody of minor was, therefore, allowed to applicant (mother) without prejudice to the rights of parties to have the matter finally adjudicated upon by Guardian Judge having jurisdiction. Mst. Khalida Begum v. Muhammad Altaf 1983 CLC 678; Muhammad Naseer Humayun. v. Mst. Syeda Ummatul Khabit 1987 SCMR 174 and Muhammad Javed Umrao v. Mst. Uzma Wahid 1988 SCMR 1891 rel. Shoukat Muhammad Khan for Applicant. AA. Muhammadally, Addl. A.-G. for the State. Respondent No. 1 in person. Date of hearing: 19th February, 1991. For the purposes of this application filed under section 491, Cr.P.C., the following statement of facts would suffice.

2. Applicant Mst. Rehana was married to Arshad Khan, the respondent No.1 in the month of January, 1989. The parties lived together at Mirpurkhas, where the applicant gave birth to a daughter, namely, Najam-ul-Sehar. It is alleged that on 12-12-1990, the respondents Nos.1 and 2 drove the applicant out of their house detaining Najam-ul-Sehar, who was hardly 2-1/2 months old at that time. It is in these circumstances that the applicant has approached this Court with a prayer that the custody of her daughter Najam-ul-Sehar, who is improperly detained by respondents Nos.1 and 2 be restored to her. Baby Najam-ul-Sehar was produced before this Court on 21-1-1991, and her custody was delivered to applicant till the disposal of this case.

3. I have heard Mr. Shoukat Muhammad Khan, learned counsel for applicant and Mr. AA. Muhammadally, learned Addl. A.-G. for State. I have also heard respondent No.1, in person.

4. 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.

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 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 Mughani 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 Shah Bukhari and another (1989 P Cr. L J 1736).

6. As observed in Muhammad Rafique v. Muhammad Ghafoor, reported in P L D 1972 S C 6, the High Court has two-fold jurisdiction under section 491, CrY.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 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 Baby Najam-ul-Sehar is about five months old now. Her custody with respondents Nos.l and 2 appears to be improper, if not illegal. There cannot be any substitute for a mother. As observed in the case of Mst. Khalida Begum v. Muhammad Altaf, reported in 1983 C L C 678, the 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.

8. Respectfully following the view taken by the Supreme Court in cases of Muhammad Naseer Humayun v. Mst. Syeda Ummatul Khabit, reported in 1987 S C M R 174, and Muhammad Javed Umrao v. Mst. Uzma Wahid, reported in 1988 S C M R 1891, I allow the custody of baby Najam-ul-Sehar to applicant without prejudice to the rights of the parties to have the matter finally adjudicated upon by the Guardian Judge, having jurisdiction.

9. The application made under section 491, Cr.P.C. is allowed with the above observations. N.H.Q./R-174/K???????????????????????????????????????????????????????????????????? Application allowed.