2001 PLP 879 (MLD)

Abdul Haleem Siddiqui for A.‑G. Sindh for the State. By this order I intend to dispose of petition under section 491, Cr.P.C.. M. As. No. 1998 of 1997, 1999 of 1997 and 2029 of 1997 as the facts, parties and case law involved are one and the same. Facts of the matter are that according to the petitioner Mst. Naz Siddiqui, was married to Respondent No.1 Kamran Siddiqui on 6‑7‑1989 according to Sunni Muslim rites. Copy of Nikahnama is annexed to the petition as Annexure ' A'. After marriage Kamran Siddiqui took Mst Naz Sidddiqui to USA for the further studies as well as for employment purpose. That out of the above wedlock Shahzeb minor son and Rida Siddiqui minor daughter aged about 7 and 2 years respectively were born. On 28‑3‑1993 the petitioner alongwith minor son Shahzeb came to Karachi and in the month of May, 1993 the Respondent No. l also came to Karachi and under the influence of his parents forced the petitioner that she should permanently stay in Pakistan alongwith the minor son. That thereafter the respondent No. l left for USA in June 1993 and returned to Pakistan permanently in August, 1993. It is further alleged that Kamran Siddiqui under the influence of his mother started demanding money from the petitioner's parents which petitioner vehemently declined with the result that Kantran Siddiqui started cruelty with the petitioner and time and again, insulted, humiliated abused and started beating the petitioner and even did not allow her to meet her parents. That in the year 1995 while the petitioner was pregnant, even during that time petitioner tried her level best to make every effort to comfort the respondent and his parents and afforded them maximum love and affection. That after the birth of minor Rida the unbearable behaviour of the respondent and his family did not change and he did not even maintain the children properly and neglected them completely and he failed to perform his role as father. That on 15‑1‑1997 Kamran Siddiqui under the influence of his mother after beating severely the petitioner drove her out of the house in two clothes and snatched‑all valuables including gold ornaments passport and Rs.24,000 cash which was saved by the petitioner from her own property income. That at that time the petitioner was holding legal custody of both the minors but the respondent No. l illegally by force and by beating snatched the boy hence: this petition. According to the petitioner, her parents tried to resolve the issue but due to negative attitude of respondent No. l and his parents, all the efforts were fruitless. In prayer clause the petitioner prays that respondent No. l be directed to produce the minor son Shahzeb in Court and be handed over to the petitioner. In support of the petition Photostat copy of Nikahnama is annexed to the petition as Annex: A/9 and the certificate issued by County of Santa Cruz, California in favour of Sahhzeb is annexed to the petition as Annex: B. Also in support of the petition affidavit of the petitioner has been filed. Notice of this petition was issued to the respondent who submitted counter‑affidavit in which he has stated that the petitioner has not come to this Court with clean hands. The allegation that minor Shahzeb is illegally detained by Respondent No. l in his house is false. That the minor son Shahzeb is admittedly seven years of age and he has legal right for the custody of the minor. The above application is not maintainable because application under sections 25 and 12 of Guardian and Wards Act has been filed before the concerned Court being ..Case No.345 of 1997 which is pending in the Court of II Senior Civil Judge, Karachi Central, where the custody of the said minor is being adjudicated upon. The trial Court has already passed order dated 21‑7‑1997 directing the respondent to produce minor Shahzeb on first and third Saturday of every month for meeting with the petitioner. Copy of the order is filed with the C.A. That the application may be dismissed. Objections to the petition are also filed by the respondent stating therein that while the respondent was in USA the petitioner insisted on going back to Pakistan alone against the interest of the said minor after the respondent having refused to accompany her. In March, 1993 the petitioner came to Pakistan leaving behind the respondent and the minor son Shahzeb against his interest and welfare. That due to the pressure of the petitioner and her parents the respondent was left with no alternative but to say good‑by to USA and has to sacrifice his career and job for the petitioner and to permanently settle down in Pakistan in order to maintain his children according to his family traditions. Consequently it became difficult for the respondent to live with the petitioner within the limits of God as envisaged by Islam. Accordingly on 30‑‑4‑1997 he divorced the petitioner and sent Divorce Deed to her by registered Post A/D, photocopy thereof is annexed to the objections as Annex:R/1. Copy of the same Divorce Deed was also sent as required under section 7 of the Muslim Family Ordinance, 1961 to the Administrator ZMC having jurisdiction. Photostat copy of the Postal receipt is filed to the objections as Annex:R/2. That the respondent has denied that he demanded any money from the petitioner's parents and that they never provided so‑called comfort either to the respondent or to his parents as stated. I have heard Mr. Khawaja Shamsul Islam, learned counsel for the petitioner, Mr. Talmiz Bumey, learned counsel for the respondent No.1 and Mr. Abdul Haleem Siddiqui, learned counsel for A.‑G. Sindh. Mr. Khawaja Shamsul Islam, learned counsel for the petitioner, contended that this Court may be pleased to pass orders as required under section 491, Cr.P.C. and interim custody of the child may be handed over to the mother as the mother is natural guardian of the minor as "mother's lap is God's own cradle for a child". That the marriage between the petitioner and the respondent took place and due to this wedlock two minors Shahzeb and Rida aged 7 and 2 years respectively were born, subsequently differences were developed between the parties and the marriage was terminated through Divorce Deed and the petitioner is entitled for the interim custody of the minor Shahzeb. Learned counsel has cited wealth of case law on the subject i.e. 1983 CLC 678, Mst. Khalida Begum v. Muhammad Altaf, 1988 SCMR 189; Ata Muhammad v. Ghulam Rasood Khan and others, 1991 PCr.LJ 758; Mst. Farzana v. Syed Muhammad Afzal and another, 1992 PCr.LJ 683; Mst Dilbar Jan v. Khan Muhammad, 1992 PCr.LJ 690; Mst. Zubeda Khatoon alias Aqleema Khatoon alias Parveen v. Saadullah A. Siddiqui and 4 others, 1996 SCMR 268 Ahmed Sami and 2 others v. Saadia Ahmed and another, 1997 MLD 197; Afshan Naurren v. Nadeem Abbas Shah, 1997 MLD 2066; Rubina Ali v. Rafaqat Ali and others, 1997 SCMR 1480; Abdul Rehman Khakwani and another v. Abdul Majid Khakwani and 2 others and Ehkam‑e- Balughat by Mahmood Ahmad Ghazi Abdul Rahim Ashraf Baloch of Idara e‑Tehqiqat Islami Benalaqwami University Islamabad. The relevant portion of the above cited Ehkam‑e‑Balughat (page 72) is as follows:‑‑

Mr. Talmiz Burney, learned counsel for the respondent No. 1, submitted that application under section 25 of Guardians and Wards Act 1890 has been submitted by the petitioner being G & W Suit No.35 of 1997 before the Court of Civil and Family Judge, Karachi Central. The allegations levelled by the petitioner have been denied and controverted by the respondent in his counter‑affidavit. Respondent as a father and natural guardian of the child is looking after the minor child very properly and is taking every care for proper education. That due to unbecoming behaviour of the petitioner, the respondent divorced the petitioner and Divorce Deed is annexed as Annex:R/1 and copy of the same alongwith application has been submitted to the concerned ZMC as required under law. That unfortunately the incident of divorce took place between the petitioner and respondent is only due to behaviour of the petitioner for which the respondent in any case is not at fault. Respondent at present is having 'a job as Computer Engineer in Engro Chemical Pakistan Limited and is not inclined to leave this country. Therefore, no cause of action has arisen to the petitioner for filing the above petition. Even otherwise the allegations levelled in the petition under section 491, C:P.C., are false. Since the petitioner herself approached the Court of learned Guardians and Wards Judge in filing the suit, therefore, this, petition itself is not maintainable and is liable to be dismissed forthwith. Mr. Talmiz Burney, learned counsel for the respondent No. 1, has relied upon 1997 PCr.LJ 105; Sint Pari Bai v. Amrat Lal and others, 1996 SCMR 1083; 1983 PCr.LJ 1470 Begaan v. Abdul Hamid. Mr. Abdul Haleem Siddiqui, learned Advocate for A.‑G. Sindh, has stated at the bar that since the matter is pending before the competent Court viz II Senior Civil Judge, Karachi Central and the application under section 25 of the Guardian and Wards Act, 1890 is pending before the Court having jurisdiction, the parties should pursue the matter before the concerned Court. Further proceedings by way of habeas corpus are actually proceedings calling upon the person having custody of another person to produce him and demonstrate under what authority he holds human custody. This Court has two‑fold jurisdiction under section 491, Cr.P.C., first to appeal with the appellate criminal jurisdiction of Court of law and a second to set him at liberty if he is illegally or improperly detained. The question which requires determination, however, is that if the Court finds that the person brought ‑before it was being illegally or improperly confined or detained, under the circumstances what appropriate order can be passed regarding custody of the person. If the person is minor the Court may pass order for his custody to the guardian who will be dealing with him in accordance with law, and if the person is major one 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: Admittedly the parties were married and out of the wedlock children were born and the son Shahzeb is the person whose custody is required by the petitioner being a mother. Her apprehension is that the respondent Kamran Siddiqui, who subsequently divorced her, may take away the minor Shahzeb to USA which fact is denied by the respondent in his counter‑affidavit wherein he has stated that lie has steady job with Engro Chemical Pakistan Ltd. as Computer Engineer and is not inclined to leave this country. The petitioner has filed application under section 25 Guardian and Wards Act, 1890 in which complete background of the marriage, birth of Shahzeb and Rida Siddiqui and differences which arose between the parties and the prayer of the petitioner that the Court be pleased to hand over the custody of the minor Shahzeb to the petitioner was considered and. the respondent contested the matter there before 11 Senior Civil Judge, Karachi Central, in the above matter and the learned Trial Court was pleased to pass the order on application under section 12 of the Guardian and Wards Act, 1890 in the following terms:‑‑ "Respondent is directed to produce the minor on 1st and Third Saturday of every month for meeting in this Court on 10‑30 a.m. to 12‑30 Noon and cost expenses of Rs.300 only." In support of the order diary sheet of the matter has also been filed. Diary of 13‑9‑1997 reads as under:‑‑ "Both the parties and their counsel are present meeting held. By consent matter is adjourned to 27‑9‑1997 at 11‑30 a.m. for hearing and meeting. W. S. filed copy received." In none of the cases referred by Mr. Khawaja Shamsul Islam, learned counsel for the petitioner, have any bearing to the contentions of the petitioner. The petitioner did not approach the Court of Guardian and Wards, and did not file application and interim order as required under section 12 Guadians and Wards Act even was not passed. On the face of it with utmost respect to the authorities cited by the learned counsel for the petitioner, I am of the considered view that all these authorities have no relevance to the facts of the case ,in hand whereas the case‑law cited by Mi. Talmiz Burney, in my humble opinion, is relevant one. Since the petitioner herself approached the Court of Civil and Family Judge by submitting application under section 25 of Guadians and Wards Act and‑ interim order as required under section 12 of Guadians and Wards Act, mentioned hereinabove, has been passed and as per order of the Court minor Shahzeb is to meet the petitioner on first and 3rd Statutory of every month for meeting in Court from 10‑30 a.m. to 12‑30 noon and cost expenses of Rs.300 only. Mr. Abdul Haleem Siddiqui, learned counsel for A.‑G. Sindh has very rightly stated at the bar that since the parties are pursuing their matter before the Court having jurisdiction they may be permitted to pursue their matter. In view of the order passed by the trial Court under section 12 of the Guadians and Wards Act, there is actually no possibility that the respondent will take away the child out of the jurisdiction of the Court. Learned Guardian and Wards Court is proper Court which can decide the issue of custody of the minor between the parties. For the foregoing reasons, I find no substance/merits in the application which is hereby dismissed, With the above order applications I listed for hearing are also dismissed. Order accordingly. H.B.T./N‑31/K Petition dismissed.