2014 P Cr (PLP)

HASAN FEROZ, J.

By this order I intend to dispose of Constitutional Petition No. S-1334 of 2013 under Article 199 of Constitution of Islamic Republic of Pakistan 1973 challenging the legality of Habeas Corpus Petition No.1038 of 2013 filed in the Court of IVth ADJ (West) Karachi and order passed thereon, with the prayer to suspended and set aside and the respondent be directed to adopt proper procedure as laid down under section 25 of Guardians and Wards Act 1890 in the proper Court.

2. The brief facts of the case of present petition are that the petitioner was married to respondent No.1 on 4-3-2007 and out of the said wedlock one male child was born namely Master Imran Khan now aged about 3 years. That after marriage the petitioner came to know that the respondent No.1 is a patient of Tuberculosis (T.B) and the petitioner started and continued the treatment of the said disease of respondent but the respondent could not recover till date and is unable to walk and move without any support and on the instigation of her parent the respondent left the house of the petitioner and did not bother to see her 3 years old child. After some months the respondent No.1 approached the District Court under section 491, Cr.P.C. instead of procedural law under section 25 of G&W Act, 1890.

3. It has 'been contended by the learned counsel for the petitioner that the learned respondent No.3 without applying judicial mind to the facts of the case passed arbitrary orders on the said application under section 491, Cr.P.C. which are laible to be set aside. The learned counsel for petitioner has relied upon 2001 SCMR 1782, 1997 SCMR 1480, PLD 2012 SC 758, 2013 MLD 562, 2011 PCr.LJ 594, PLD 1996 Lah. 462, 2005 YLR 1886 (LAH) and 2005 YLR 1614.

4. The learned counsel for respondent has contended that the allegations regarding the illness of the respondent are false and fabricated and her medical test report showing the alleged disease as "negative" and has also produced such copy of test report on record and further contended that respondent/Mother is moving on her legs who is present before this Court thus rebutting the allegations and further contended that the mother is entitled to Hizanat of her male child below the age of 7 years and with regard to Habeas Corpus petition he has contended that such petition is lawful right to seek custody of minor and debar her from the custody of the minor. The learned counsel for the respondent has relied upon PLD 1997 SC 852, 1992 MLD 1460, 2001 PCr.LJ 1724 and 1995 PCr.LJ 474.

5. I have in my consideration the facts contended by the learned Counsel for the petitioner as well as the contentions, objections/reply to the petition on behalf of the respondent.

6. I have in my consideration that upon issuance of notice to the petitioner on the application moved under section 491, Cr.P.C. by the mother in the Court of District and Sessions Judge, under section 491, Cr.P.C, this petition has been moved under Article 199 of Constitution of Islamic Republic of Pakistan 1973 by the father with the prayer to set aside the impugned order passed by the learned ADJ on the Habeas Corpus petition moved by the respondent mother. I have in my respectful consideration that the powers vested under section 491, Cr.P.C. are co-extensive to that of Article 199 of Constitution regarding illegal custody of the children and it is an acknowledged principle of law that preferential right of Hizanat vests with the mother and in a matter of immediate custody of minor can be promptly settled under section 491, Cr.P.C. I have in my respectful consideration the dictum of Superior Courts PLD 2010 Karachi 119, 1999 CLC (Lahore) 1212, wherein the mother has first right of Hizanat to the exclusion of everyone else. The powers vested under section 491, Cr.P.C. can be invoked under the statute by the District Judge so also by this Court. The crux of the contention of learned counsel for the petitioner that the mother is not entitled to the custody as she is ill and suffering from Tuberculosis (T.B) has been controverted by counsel for the respondent through a medical test report dated 27 -11-2013 even otherwise an ailing mother, if it be presumed, cannot be deprived of her right of Hizanat unless she transgresses the dictums of the superior Courts, therefore, looking to the right of mother who has instituted a Habeas Corpus petition in the District Court and upon issuance of notice the present petition seems to be lacking in its entirety as no one can be deprived of the right available under the statute. The petitioner instead of contesting the matter before the Sessions Court has approached this Court under the Constitutional jurisdictions, making several pleas which are untenable at this stage as the matter already seized with the District Court under the Habeas Corpus jurisdiction which jurisdiction is unfettered in respect of illegal and improper custody of a person. The plea of the petitioner that he being the father has not kept the custody illegally is a matter of Habeas Corpus wherein the matter with regard to the illegality and improper custody would be determined by the concerned District Court. The petitioner has invoked the constitutional jurisdiction of this Court under Article 199(b)(1) of the Constitution, challenging the legality of proceedings before the Sessions Judge under Habeas Corpus jurisdiction which is without exhausting the adequate remedy available under the law under Article 199(1) of the Constitution as the powers under Article 199 is subject to the Constitution on the satisfaction that no other adequate remedy is provided by law whereas under the Habeas Corpus jurisdiction under section 491, Cr.P.C., the matter is seized with the District Court and therefore, this petition is dismissed in limine. MWA/F-9/Sindh Petition dismissed.