2005 PLP 883 (YLR)

(2) Nisar Muhammad and another v. Sultan Zari PLD 1997 SC 852; (3) Hina Jillani v. Sohail Butt PLD 1995 Lahore 151; (4) Muhammad Naseer Hamayon v. Syed Ummatul Kabir 1987 SCMR 174; (5) Mst. Khalida Perveen v. Muhammad Sultan Mehmood and another PLD 2004 SC 1; Learned counsel has argued further that present petition is maintainable even during the pendency of the petition under Guardians and Wards Act and filing of petition under section 25 of the Act is no bar to petition under section 491, Cr.P.C.

4. Learned counsel for respondent No. 1, on the other hand, has referred to the case titled "Mst. Aisha v. Baber alias Badal and another 2001 PCr. LJ 1250 to contend that the controversy inter se the parties needs thorough inquiry hence cannot be resolved in summary jurisdiction in a petition under section 491, Cr.P.C. The petitioner has moved the petition with a delay of 5‑months which itself signifies that minors were not removed from the custody of the petitioner forcibly. Learned counsel further submitted that minors can be looked after by their close relatives. The real sister, of the petitioner is married to the brother of the respondent No.1 and her first cousin is also married to another brother of respondent No.1. The minors are studying in school and take lesson from Qari at home. He in support of his contentions placed reliance on:‑‑ (1) Mst. Aisha v. Babar alias Badal and another 2001 PCr.LJ 1250; (2) Mst. Shazia Sharif v. Zeeshan Ahmad Dodhy PLD 2001 Lahore 347; (3) Khadim Hussain v The State 1997 PC r. LJ 104; (4) Mst. Nasreen Bibi v. Muhammad Ayub PLJ 1999 Cr.C (Lahore)

537. He argued vehemently that the welfare of the minors, which is the prime consideration for the custody of the minors, is fully protected with respondent No. 1 who being father is the natural guardian of the miners.

5. Heard learned counsel for the parties at length and examined the relevant record.

6. Careful examination of the judgments (supra) shows that power to issue direction of the nature of habeas corpus under section 491, Cr.P.C. being extraordinary in nature should be sparingly used because the paternal jurisdiction in the matter rests under the Guardians and Wards Act. The superior Courts have exercised the jurisdiction under section 491, Cr.P.C. only in cases of real urgency. Such powers are exercised when minor is of tender age, suckling baby and best served if handed over to mother, or the life, health or upbringing of minor is in serious jeopardy.

7. The minors attended the Court twice during the course of proceedings. They are well‑settled, attend their school, regularly. The school fees are being paid by the respondent No. 1 without any default. The fee of each child is approximately Rs.5,000 for two months. Their academic result is exceptional and the attendance is maximum. If they are removed from the school their education is likely to suffer adversely.

8. Admittedly petitioner has already claimed the custody of the minors through a petition under section 25 of the Guardians and Wards Act, 1890. The petitioner left the house of respondent No. 1 on 8‑7‑2004 and the present petition has been filed after five months. The petitioner has not taken any action during this period. It does not appear to be a case of forcible snatching. No circumstances of urgency are made out to justify interference in petition under section 491, Cr.P.C. and decide the custody of minors in summary procedure.

9. Keeping in view the age, welfare, education and the prevailing circumstances of the case, I do not see any justification to interfere in the custody of the minors at this stage. The jurisdiction of this Court under section 491, Cr.P.C. is extraordinary and summary in nature and such powers should be used sparingly.

10. Respondent No. 1 is, however, directed to provide the minors an opportunity of seeing their mother on each Saturday from 11‑30 a.m. to 4‑30 p.m., till the time, the question of interim custody of the minors is resolved by the. Guardian Court. Learned counsel for the petitioner has also requested for a direction to the Guardian Judge for expeditious disposal of petition under section 25 of Guardians and Wards Act, 1890. The learned counsel for respondent submits that Guardian Judge, Lahore has no jurisdiction to adjudicate the matter, as the minors reside at Gujrat. Be that it may, the Guardian Judge; who has the jurisdiction; is directed to decide the matter within three months positively.

11. It is, however, clarified that any observation made in this order shall not prejudice the case of either party before the Guardian Court, which shall be decided on its own merits.

12. For the foregoing reasons, the instant petition is dismissed with the above observations. No order as to costs. H. B. T./T-67/L Petition dismissed.