1990 P Cr (PLP)

This petition under section 491, Cr.P.C. has been moved by Mst. Tauqir Fatma for the recovery of her son Ali Mehdi Shah, aged about seven months from the custody of respondents Nos. l and 2, who are parents of her husband Syed Abbas Mehdi Shah. Mst. Tauqir Fatma was married to Syed Abbas Mehdi Shah on &2‑1988. Out of this wedlock detenu Ali Mehdi Shah was born on 16‑12‑1988. The differences between the spouse arose immediately after the marriage and they were leading cat and dog life. It is alleged that applicant came to Karachi with her husband from Lahore on 7‑6‑1989, when she was dropped at the house of her parents and the detenu was forcibly taken away from her custody. On 17‑6‑1989, the applicant filed a petition under section 491, Cr.P.C. (Criminal Miscellaneous Application No. 175 of 1989), before this Court which was not pressed after the parties entered into compromise. The applicant then started residing wrath her husband, who ultimately left for Lahore leaving her in the house of respondents. It is alleged that the respondents did not accept the applicant with open heart and during her stay with them from 10‑7‑1989 to 14‑7‑1989, she was not allowed to see her son, and was subjected to physical and mental torture. The applicant ultimately escaped and took refuge in the house of her parents. On 22‑7‑1989 the applicant again approached this Court with an application under section 491, Cr.P.C.

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 P L D 1974 Lah. 202, by Muhammad Afzal Zulla, 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 under section 491, Cr.P.C. for the custody of children is again a matter of sharp controversy. While examining a petition of this nature in Najma Sadiqiic Rasool v. Munira Hamid Rasool and another reported in 1973 P Cr. L J 98, Imdadally Agha, J. (as he then was) observed as follows: ‑‑ The present petition is also concerning the custody of a child. The learned Advocate General has cited in support of his argument the case of Adnan Afzal v. Captain Sher Afzal P L D 1969 SC 187, wherein it has been held that as from the 5th of April, 1966, when Judges of the Family Courts became vested with powers of Magistrate of First Class, the only Court which has jurisdiction to entertain, hear and adjudicate upon the matters specified in the Schedule was the Family Court This decision of the Supreme Court clinches the whole issue, therefore, in this matter the present petition under section 491, Cr.P.C. does not lie as the remedy of the petitioner is to approach the Family Court for the purpose of obtaining custody of the child concerned.

5. This view was followed in Mukhtaran v. Muhammad Anwar etc. reported in 1979 P Cr. L J Note 151 at p. 96 wherein it was observed: ‑‑ Where the mother and the father are in dispute over their marital affairs and the custody of the minor aged 2 to 3 years is involved, the proceedings in the nature of habeas corpus are not at all suited to the occasion for any Court which is called upon to deal with a minor or its very custody exercises a parental jurisdiction which requires that it should act for the welfare of the minor. The parties can thrash out their own differences elsewhere as to their claim to the custody of the child, but so far as the regulation or alternation in the custody of the minor is concerned it can take place only under the laws governing the custody of the minor and whether this custody of the minor has been obtained legally or illegally properly or improperly against written agreement or in conformity with it is not a question of concern. I do not think in the circumstances the custody of the father can be called so illegal as to require interference by resort to habeas corpus. The proper course for the petitioner or any one who is interested more in the welfare of the minor is to move the Guardian Judge and to demonstrate there that it is in the interest of the minor that the custody should remain with a particular person.

6. In the case of Mst. Aisha Bibi v. Nazir and 2 others reported in 1981 S C M R 301, it was held by the Supreme Court that where the dispute between the parties was essentially regarding the custody of a girl then it was essentially a matter for the Guardian Judge to decide.

7. A contrary view is, however, taken in Begum Gulzar v. Sajjad Akbar 1977 P Cr. L J 800, Muhammad Naseer Humayun v. Mst. Syeda Ummatul Khabir 1987 S C M R 174, Rana Khurshid Ahmed v. Ashiq Risaldar and another 1988 P Cr. L J 1111, Uzma Wahid v. Muhammad Javed Umrao 1988 P Cr. L J 1883, Muhammad Javed Umrao v. Mst. Uzma Wahid 1988 S C M R 1891 and Shabbir Hussain v. Mst. Shaheen Parveen and another 1989 P Cr. L J 1689. The ratio of the above authorities is that in matters pertaining to the custody of minors of tender age the High Court has got jurisdiction 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 Guardian Judge.

8. 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 Moghani and another reported in 1989 P Cr. L J 1327, which gets support from cases reported as Asif Mowjee v. Mst. Fatema 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.

9. As observed in Muhammad Rafique v. Muhammad Ghafoor, reported in P L D 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 1 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.

10. Admittedly the alleged detenu is aged about given months. He was secured from the house of respondents after rule nisi was issued. The respondents have not controverted the allegation of applicant to the effect that the custody of detenu was forcibly taken from her arid she was compelled to leave the house of respondents. The parties are 'Shia' Muslim and the marriage between them is still subsisting. According to the personal law of the parties the applicant is entitled to the custody of detenu till he attains the age of two years. There cannot be any substitute for a mother. As observed in Mst. Khalida Begum v. Muhammad Altaf reported in 1983 C L C 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.

11. Having regard to the above circumstances, I direct that the custody of detenu Ali Mehdi Shah who was handed over to applicant on 21‑8‑1989 under the orders of Court, shall remain with her, subject to any decision made by the Guardian Judge/Family Court, Karachi. I am told that Syed Abbas Mehdi Shah, husband of the applicant has filed a suit for the custody of his son, which is pending decision. I, therefore, direct the concerned Court to decide the matter within six months. It is needless to say that the observations made above should not influence the mind of Guardian Judge in any manner. N.H.Q./T‑72/K Order accordingly