1988 PLP 1891 (SCMR)

SHAFIUR RAHMAN, J.‑‑The petitioner, father of two daughters Nadia Umrao born on 17‑11‑1981 and Nida Umrao born on 22‑10‑1984, seeks leave to appeal against the judgment of the Lahore High Court dated 30‑3‑1988 whereby in a proceeding instituted by the respondent, divorced wife of the petitioner, under section 491, Cr.P.C., a direction was given that the custody of both the minors female children shall remain with the respondent, till they attain puberty. Such an order was passed notwithstanding the fact that the respondent's application under section 25 of the Guardians and Wards Act (hereinafter referred to as the Act) and an application under section 12 of the Act was already pending before the District Judge, Lahore and another application of the petitioner under sections 7 and 9 of the Act instituted by the petitioner in the District Court of Abbottabad, was pending at that time. The facts necessary for the disposal of this appeal are that the petitioner was married to the respondent on 23rd of September, 1977??? and two daughters were born out of the wedlock on the dates already?? given. The marriage ended in divorce or, 2‑7‑1987 , the notice of which was received by the respondent on 7‑7‑1987. On 18‑10‑1987 , the respondent, the mother of the two minors applied under sections 25 and 12 of the Act in the Court of Guardian Judge, Lahore. She sought the custody of the minors who, it was stated, had been removed from the marital home and Hizanat on 15th of June, 1987. She also applied under section 12 for restoration of the custody of these minors, and their production in Court. Efforts made by the Guardian Judge, Lahore to serve the petitioner in the proceedings did not succeed. On 16‑11‑1987, the respondent filed a Criminal Miscellaneous?? No.595‑H of 1987 in the High Court under Section 491, Cr.P.C. complaining that the petitioner was "wilfully obstructing the process of the Guardian Court by not complying with its orders to produce the minors to be dealt with in accordance to law". The refusal of the petitioner to comply with the orders of the Guardian Judge was taken to make his custody of the minors illegal and improper. It was also stated "that from the respondent's past behaviour it is obvious that he is likely to wilfully obstruct the process of the Court and defeat the lawful means. It is, therefore, further prayed that the Court may kindly issue search warrants directing the relevant police officers having jurisdiction at both addresses of the respondent at Pakpattan and at Lahore, to search for the minors and if found, be immediately brought before the Court." The learned Judge took proceedings to get the petitioner served and on suspecting avoidance on his part his property too was attached. He presented himself in the High Court on 5‑1‑1988 without the minors and on 10‑1‑1988 he filed an application in the Court of Guardian Judge at Abbottabad claiming that he was a natural guardian, that the minors have been living in Abbottabad since November, 1987 and the Court at Abbottabad alone had the territorial jurisdiction to adjudicate. He attacked the character and antecedents of the respondent and her entitlement to be entrusted with the custody and made the following prayer:‑ "That unless the petitioner is promptly declared to be the guardian of the person of Nadia Umrao and Nida Umrao, the tension generated by a potential counter‑claim made by the Respondent is likely to disrupt the peaceful life of the two minors. In this view of the matter, the need for Declaration sought by means of the instant petition is pressing as well as great. He prayed for the following interim reliefs:‑ "(i) Declaring that the petitioner is entitled to the temporary custody of the two minors in question, namely, Nadia Umrao and Nida Umrao. (ii) Restraining the Respondent from taking away the minors in question from the temporary custody of the petitioner or even attempting to do so. (iii) .Any other interim relief which this Hon'ble Court deems suited ??????????? to the circumstances of the instant case." The Guardian Judge, Abbottabad restrained the respondent from removing the minors from the jurisdiction of Abbottabad. The petitioner did not, in his application before the Guardian Judge, Abbottabad disclose either the proceedings pending in the Lahore High Court in respect of the same minors and between the same parties under Section 491 of the Code of Criminal Procedure, or before the Guardian Judge, Lahore, under section 25 and section 12 of the Act. In this background the petitioner filed a Criminal Petition for leave to appeal in this Court (Cr.P.L.A. No.5‑R of 1988) against the interim orders passed by the learned Judge of the High Court on 16th and 19th of January, 1988 in Criminal Miscellaneous No.595‑H of 1987. It was dealt with in Chamber with the following order on 24‑1‑1988:‑ "Mr. Abdul Basit, Advocate. While proceedings under Guardian and Wards Act were proceeding at Lahore Habeas Corpus Petition was filed at Lahore. While both these proceedings were pending there the petitioner filed another petition at Abbottabad and obtained an order against removal of minors from Abbottabad. In this fashion prima facie a conflict of jurisdictions has been engineered. In the circumstances, there is no case for interfering with the High Court's order of production of minors. Let the petitioner produce the minor's before the H.C. However, the High Court will not transfer the custody in Habeas Corpus Petition, on the minor's having produced though it may otherwise proceed with the matter, The leave in the main Petition was refused on 6‑2‑1988 with the following order;-- "The orders impugned herein against which leave is sought are interlocutory orders and the objections being raised before us can be raised before the High Court. This petition is premature. Dismissed." The matter was finally decided by the impugned order. Sheikh Shaukat Ali, Senior Advocate, the learned counsel for the petitioner has contended that the jurisdiction of the Guardian Judge was exclusive under the Family Courts Act and the matter of custody and guardianship of minors could not be dealt with and decided in proceedings under section 491 of the Code of Criminal Procedure. The learned counsel has referred to the following decisions in support of his point of view:‑-- (1) Mst.Safia Bibi v. Ghulam Hussain Shah P L D 1970 Azad J&K 13; (2) Asif Mowjee v. Mst.Fatema A.Mowjee and others P L D 1987 Kar. 239; (3) Mst.Khurshid Begum v. Muhammad Hussain 1968 P Cr.L J 1090; (4) Muhammad Azam v. Muhammad Iqbal and others P L D 1984 SC 95; (5) Ahmad Nawaz and 3 others v. The State P L D 1968 Lah.97; (6) Muhammad Ramzan v. MSt.Lal Khatoon & others 1979 P Cr.L J 598; (7) Muhammad Rafique v. Muhammad Ghafoor P L D 1972 S C 6; (8) Mst.Zohra Begum v. Sh.Latif Ahmad Munawwar P L D 1965 (W.P.) Lah.695; (9) M.Anwar v. Mrs.Rehana Sarwar and others 1968 S C M R845; (10) Muhammad Nawaz v. Rab Nawaz and another P L D 1976 S C 298; (11) Najma Sadeque Rasool v. Munira Hamid Rasul and another 1973 P Cr.L J (Kar.) 98; (12)? Begam v. Abdul Hamid 1983 P Cr.L J 1470; (13)? Mst.Mariam Rozina v. Robert Ashraf 1985 P Cr.L J 1469; (14)? Mukhtaran v. Muhammad Anwar 1979 P Cr.L J Note 151 at p.96; (15) Mst.Gullan v. Allah Ditta 1984 P Cr.L J 1047; (16) Begum Gulzar Khurshid Ahmad v. Sajjad Akbar 1977 P Cr.L J 800; (17) Mst.Rizwana Bokhari v. Abdul Majeed Shah and' another 1984 P Cr.L J 2582; (18) Alif Din v. Shaukat Ali P L D 1969 Pesh.62; (19) Alau Din v. Mst.Parveen Akhtar P L D 1970 S C 75; (20) Mujtaba Hussain v. Mst.Ather Jehan and another 1972 PCr.LJ 351; (21) Saleem Ahmad v. Mst.Khadija Begum and two others P L U 1977 Kar.469; (22) Malik Khizar Hayat Khan Tiwana and another v. Mst.Zainab Begum and 2 others P L D 1967 S C 402; (23) Mst.Aisha Bibi v. Nazir and 2 others 1981 S C M R 301; (24) Adnan Afzal v. Capt.Sher Afzal P L D 1969 S C

187. Mr. Aitzaz Ahsan, Advocate, the learned counsel for the respondent has referred to section 3 of the Guardians and Wards Act which saves the jurisdiction of Courts of Wards and Chartered High Courts and the words to show that the High Courts' powers remained unaffected by any other legislation either prior in point of time or of a later date. He has further pointed out that even if there be a conflict as is suggested by the learned counsel for the appellant in view of Item No.5 of the concurrent list of Constitution read with Article 143, the jurisdiction of the High Court will remain intact. It is contended that the High Court exercises parental jurisdiction and in dealing with the matter in the manner that it has dealt there was no question of a conflict of jurisdiction. A bare examination of the relevant provisions will show that they do not conflict with each other, nor is the jurisdiction conferred overlapping or exclusionary. Section 491 of the Code of Criminal Procedure provides‑as follows:‑ "

491. Power to issue directions of the nature of habeas corpus.? (1) Any High Court may, whenever it thinks it, direct ‑ (a) that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law; (b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty; (c) that a prisoner detained in any jail situate within such limits be brought before the Court to be there examined as a witness in any matter pending or to be inquired into in such Court; (d) that a prisoner detained as aforesaid be brought before a Court‑martial or any Commissioners for trial or to be examined touching any matter pending before such Court‑martial or Commissioners, respectively; (e) that a prisoner within such limits be removed from one custody to another for the purpose of trial; and (f) that the body of a defendant within such limits be brought in on the Sheriff's return of cepi corpus to a writ of attachment. (2) The High Court may, from time to time, frame rules to regulate the procedure in cases under this section. (3) Nothing in this section applies to persons detained under any law providing for preventive detention." The Guardians and Wards Act, as the title itself suggests, deals with the Guardians, Wards and the problems and questions relating to them. Section 7 relates to the appointment of a guardian the Court and section 12 authorises the Court to make inter‑locutory order for protection of minor and interim protection of person and property. The two matters, one dealt with by section 491, Cr.P.C. and the other under the Guardians and Wards Act, are entirely different and there is no question of one excluding the other, the one overlapping the other or the one destroying the other. The law as it stands shows no such repugnancy. It is true that the facts of individual cases may be such where the cover of proceedings of one sort is taken for advancing the cause of other. In such cases it has to be ascertained as to what is the substance of the proceedings and thereafter the proceedings are to be diverted to the appropriate channel be it of section 491 Code of Criminal Procedure or one under Guardians and Wards Act. What we find in this case is that the respondent first approached the appropriate Court in Lahore under the Guardians and Wards Act. There was no effort on her part to bypass any provision of law or to rush to take resort to section 491 Cr.P.C. in a case which was substantially one under the Guardians and Wards Act. It was at a stage when she suspected on good grounds that the minors were being shifted from the local jurisdiction of the Court i.e. from Lahore to Pakpattan and from Pakpattan to elsewhere and there was an obvious effort on the part of the appellant to avoid the jurisdiction of the local Courts that she got convinced that such a custody of the minors and the handling of the situation by the petitioner rendered it illegal and she invoked at that appropriate stage section 491, Cr.P.C. Her suspicion got further strength from the fact that the High Court itself had difficulty and had to resort to coercive method in order to secure petitioner's presence. Further, in the application that the petitioner himself filed before the Guardians Judge, he made a prayer that "unless the Petitioner is promptly declared to be the guardian of the person of Nadia Umrao and Nida Umrao, the tension generated by a potential counter‑claim made by the Respondent is likely to disrupt the peaceful life of the two minors. In this view of the matter, the need for Declaration sought by means of the instant petition is pressing as well as great." If he was indeed bona fide of the impression that utmost precaution was required of the Courts in dealing with this matter, he should have been the first to submit immediately to the Guardians Judge at Lahore and to have got adjudication forthwith instead of doing what he did. Further, the proceedings taken at Abbottabad show that he suppressed material facts from the Court with a view to obtain an interim order of custody, even at the cost of conflict of jurisdiction of Courts. This is an incorrigible conduct of the appellant and such a behaviour coupled with what has already been noted, could amply justify the initiation of proceedings by the respondent under section 491 Code of Criminal Procedure. It was appropriately done and there is no legal infirmity in assuming the jurisdiction by the High Court. However, as pointed out section 491 Cr. P. C . is ordinarily not available for declaring a guardian or for determining for all time the question of custody of the minor. Therefore, the judgment of the High Court in so far as it directs that the minors should remain with the respondent till they attain puberty oversteps the confines of section 491, Cr.P.C. and deserves to be set aside. We convert this, petition of which respondent had notice, into an appeal and accept it to this extent. It is so ordered. However, the question of final custody shall be decided in the proceedings under the Guardians and Wards Act initiated by the respondent in the Family Court at Lahore and if she does not prosecute it then alone in the proceedings initiated at Abbottabad and if neither proceedings are prosecuted to a conclusion, the order of the High Court with regard to the present custody shall remain intact without the qualification that it will last till puberty. The entitlement to custody of minors on regular basis must depend on adjudication of question of fact primarily having basis in the welfare of the minors and minors alone. To this extent alone the appeal is allowed with no order as to costs. M.A.K./M‑553/S???????????????????????????????????????????????????????????????????????????????? Order accordingly.