2011 PLP 1021 (YLR)

MUHAMMAD ANWAAR-UL HAQ, J.

Through this writ petition, the petitioner has challenged the order, dated 9-2-2011 passed by the learned Sessions Judge, Lahore in the proceedings under section 491, Cr.P.C. whereby respondent No.2 was directed to move an application to S.H.O,' Police Station concerned for registration of a criminal case under the relevant provisions of law against the petitioner for not producing the 14 months minor daughter of respondent No.2 in the court.

2. Learned counsel for the petitioner contends that the petitioner being father of the minor is natural guardian and respondent No.2 is required to approach the Guardian Court to get the custody of the minor as the petitioner has already filed an application for custody of minor before the learned Guardian Court, which is pending adjudication; that no criminal case can be registered against the real father of the minor.

3. Learned Additional Advocate General for the State and learned counsel for respondent No.2 contend that despite many opportunities granted to the petitioner. He failed to produce the female child aged only 14 months before the learned Sessions Judge, Lahore, therefore, the Court was competent to pass an order for registration of criminal case; that even otherwise the petitioner also has disregarded the order of learned Sessions Judge and then the orders of this Court, therefore, he is not entitled for any discretionary relief.

4. Arguments heard. Record perused.

5. The impugned order has been passed in the proceedings under section 491, Cr.P.C. for custody of the minor daughter of respondent No.2 aged about l 14 months. Learned Sessions Judge on 7-2-2011 issued a notice to the petitioner and keeping in view the age of the minor (14 months) directed the concerned S.H.O. to recover and deliver the custody of minor baby to her mother (respondent No.2) and further directed the mother to produce the minor before the court on 8-2-2011, but on 8-2-2011 the minor could not be recovered and was not produced in the Court, however, the petitioner undertook to produce the minor on 9-2.-2011. On the date fixed, petitioner did not appear before the court and the learned Sessions Judge passed the following order:-- "A petition under section 491, Cr.P.C. by real mother against her spouses for recovery and produc tion of her infant baby is very much competent before this Court. The question whether minor was voluntarily left by petitioner or not can only be determined after recording evidence, which exercise cannot be undertaken in these summary proceedings. The admit ted position is that minor is in custody of respondent No.2. He was required to produce minor today. It appears that 'respondent has deliberately and intentionally shirked to produce the minor. When a person makes a commit ment before a .Court of law but thereafter he wriggles out of the 'same, which shows that he has no regard for the Court. This act should not be gone unnoticed-and is required some penal action to stern recurrence in future. Hence, petitioner is directed to move 'an application to S.H.O. Police Station concerned who will register a criminal case under relevant provisions of law, under intimation to this Court." Against the above mentioned order this writ petition has been tiled and a pre-admission notice was issued to respondent No.2 on 11-2-2011 and operation of the impugned order was suspended till the next date that was 21-2-2011. On the date fixed following order was passed by this Court: "Mian Muhammad Ajmal Pervaiz Advocate has put in appearance on behalf of respondent No.2. The alleged detenue has not been produced. Learned counsel for the petitioner is directed to ensure the presence of the alleged detenue (minor) iii the Court on the next date of hearing. Learned counsel for the petitioner requests that as he is busy on 23rd and 24th of this month so a date of 25th of February 2011 may be granted. Learned counsel for the respondent has no objection to it, however, it is, clarified that the stay order shall not be extended further if the alleged detenue is not produced before this Court on 25th of February 2011. Today, petitioner along with his learned counsel very strangely informs that minor was sleeping in his house so he did not feel it proper to disturb her sleep and more so petitioner in very clear words stated that he was not ready to produce the minor in this Court. The conduct of the petitioner is highly objectionable; as he does not seem to have any regard for the orders of the Courts. It is quite understandable that learned Sessions Judge had no option except to pass the impugned order. Law on the point of interference in appropriate cases under section 491 Cr.P.C. is very much clear. It was held in the case of Mst. Khalida Perveen v. Muhammad Sultan Mehmood and another (PLD 2004 SC 1) as under:-- "In our opinion in the cases pertaining to the custody of a child, the Courts are not supposed to go into the technicalities of the law and they should decide the case keeping in view the facts and circumstances of each case placed before it for the decision mainly taking into consideration welfare of the child. Although ordinarily a petition under section 491, Cr.P.C. is not found to be competent when there is no element of illegal custody by the father of his own child but in the welfare of the child as well as to ensure that the rights which have been conferred upon the child are fully protected in a suitable manner, the Courts could also pass appropriate orders in exercise of its inherited Jurisdiction.

. Thus, petition is converted into appeal and allowed as a result whereof the impugned judgment is set aside and the custody of the minor Hina Sultan alias Umm-i-Romaan aged two years is handed over to the petitioner Mst.Khalida Parveen, with the observation that parties shall be at liberty to approach the. Guardian Judge for redressal of their grievance if any. The Guardian Judge shall deal with the matter independently, if proceedings are instituted before hint, in accordance with law without being influenced in any manner from the observation made hereinabove." Mere tiling of an application before the Guardian Court is not at all a bar to pass an order under section 491, Cr.P.C. when on the face of it welfare of a suckling baby aged only 14 months is at stake. Here I respectfully refer the case of Mst. Ghulam Fatima v. The State and 5 others (1998 SCMR 289), wherein it has been beta as under: "At the outset it may be mentioned here that pendency of the guardian-ship matter before a Family Court would not affect the proceedings pending under section 491 of Cr.P.C. Needless to add, that main anxiety of a Court in such matters is to put the minor in custody of the person who is entitled to such custody, keeping in view the Muslim Law on the subject and welfare of the minor. No doubt, ultimately the order of the Family Court would hold the I field irrespective of the fact what order has been passed under section 491, Cr.P.C. as held in the cases of Khushi Muhammad's case (1988 SCMR 1234), Ahmad Sami's case (1996 SCMR 2), Miss Hina Jilani's case (PLD 1994 Lah. 151) and Shafqatullah (1995 PCr.LJ 1868). In any case, there is no illegality in dealing with the question of custody, of a -minor under section 491 of Cr.P.C. if such minor is in illegal or unlawful custody."

6. In view of the conduct of the petitioner, I do not find any justifiable reason to interfere in the impugned order. This writ petition being devoid of ally force is dismissed with a cost of Rs.25,000 (Rupees twenty five thousand only) to be paid to respondent No.2. In case of failure of the petitioner to pay the cost, respondent No.2 may apply to the concerned D.O(R)/Collector for recovery of the same as arrears of land revenue as per rules. It is further observed that learned Sessions Judge shall adopt all necessary measures keeping in view the High Court Rules and Orders Volume-V Part-F for redressal of the grievance of respondent No.2. H.B.T./N-17/L Petition dismissed.