2021 P Cr (PLP)

ALI BAQAR NAJAFI, J.

Through this petition under section 491, Cr.P.C. petitioner has sought recovery of her daughter namely, Kaswa Sadaat, aged about 4 years from the illegal and improper custody of respondents Nos. 1 and 2 through respondent No.3/Station House Officer, Sabzazar, Lahore.

2. Brief facts giving rise to the filing this petition are that petitioner and respondent No.1 got married on 06.01.2015 whereafter respondent No.1 took the petitioner to Scotland where minor girl namely, Kaswa Sadaat, was born on 19.01.2016. The petitioner and respondent No.1 came back to Pakistan from Scotland but he left for Scotland with the minor, without the petitioner. The petitioner who is serving with some NGO visited Scotland and filed a maintenance and custody petition there in which respondent No.1 was directed to produce the minor for weekly overnight meeting with the petitioner and restrained from removing the minor from the territorial jurisdiction of Scotland by the court there whereafter the regular meeting were started. The respondent No.1 filed an application for removal of the minor to Pakistan from 14.09.2018 to 15.11.2018, but after its dismissal he illegally and fraudulently abducted the minor from Scotland and brought her to Pakistan. According to the petitioner, the courts at Scotland have already signed a Judicial Protocol with Pakistan under which all the courts in Pakistan should recover and return the minor. Earlier Writ Petition No. 246525 of 2018 filed by the petitioner before this Court was dismissed on 20.06.2019 on the grounds that petitioner was not present in Pakistan and since the petitioner is in Pakistan and prays for the handing over of the minor, hence this writ petition.

3. Arguments heard. File perused.

4. After hearing the learned counsel for the parties and perusing the file, it is straightway observed that age of the female minor is about 4 years who was although admitted in school obviously at the prep level. Respondent No.1 has also filed a petition before the Guardian Court at Lahore which is pending. Petitioner is the real mother of the minor and admittedly respondent No.1 has contracted second marriage. The age of the minor is so tender that she continuously needs a proper care and protection of her mother. The argument advanced by the learned counsel for the respondent No.1 that it was not a recent snatching and, therefore, Guardian Court seized of the matter can decide the Guardianship matter in accordance with the evidence to be produced by the parties. However, this Court has not been able to find this argument as convincing for the simple reason that in the jurisdiction under section 491, Cr.P.C., it is the age of the female minor which will tentatively determine her custody until the decision is made by the Guardian Court where the petition is statedly pending.

5. This Court had given a chance to the minor to interact and associate with the mother, thereafter, she was found at ease with her mother. Keeping in view the above discussed factors, the temporary custody of the minor is given to the petitioner till the decision by the Guardian Court at Lahore. Reliance can be placed upon Muhammad Khalil-ur-Rehman v. Mst. Shabana Rahman and another (PLD 1995 Supreme Court 633) and Ahmed Sami and 2 others v. Saadia Ahmed and another (1996 SCMR 268), wherein it was held that petition under section 491, Cr.P.C., is competent during the guardianship petition and Ms. Louise Anne Fairley through Special Attorney v. Sajjad Ahmed Rana and 2 others (PLD 2007 Lahore 293), where the habeas petition was allowed to a foreign national.

6. In this view of the matter, this writ petition is allowed and the custody of the minor shall remain with the petitioner/real mother until the decision of the Guardian Court. SA/S-29/L Petition allowed.