2018 P Cr (PLP)

MALIK SHAHZAD AHMAD KHAN, J.

Through this petition the petitioner seeks quashment of FIR No. 368/2017 dated 16.03.2017 registered under section 363, P.P.C. at Police Station Sabzazar, Lahore.

2. As per brief allegations levelled in the impugned FIR, Syeda Laila Zainab (complainant) was married with the brother of the petitioner namely Kamyab Hussain alias Kake Shah. Two children namely Mehtab Hussain, aged about 4-1/2 years and Taieed Fatima, aged about 3 years were born from the said wedlock. On 23.01.2017 at 04.00 p.m., the complainant came out of the house of her in-laws in order to go to the house of her mother. In the meanwhile, the petitioner, his brother namely Kamyab Hussain alias Kake Shah and other co-accused reached at the spot in a white colour Corolla car, forcibly snatched the minors from the custody of the complainant at gun point and took them away. The complainant thereafter, filed habeas petition in the court of learned Additional Sessions Judge, Lahore, as well as, before the Lahore High Court but as the minors could not be traced out and recovered, therefore, the above mentioned impugned FIR was lodged against the petitioner and his co-accused; hence the present constitutional petition before this Court for quashment of the said FIR.

3. It is contended by learned counsel for the petitioner that the petitioner is an Advocate by profession and he and his co-accused have malafidely been implicated in this case by the police being in league with the complainant; that the complainant has taken self-contradictory stances in her habeas petition moved before the learned-Additional Sessions Judge, Lahore and in the impugned FIR because in her above mentioned habeas petition, she stated that she herself left her minor children at the house of her husband, whereas, in the impugned FIR she has alleged that the minors were forcibly snatched from her custody by the petitioner and his co-accused; that brother of the petitioner is father of the minors and as such he is natural guardian of the minors, therefore, while keeping in view the exception provided under section 361, P.P.C., the ingredients of offence as envisaged under section 363, P.P.C. are not attracted in this case; that the minors have already been recovered by the police from the custody of brother of the petitioner but their recovery has malafidely not been shown in the police papers by the investigating officer of this case; that there is no probability of conviction of the petitioner and his co-accused in this case, therefore, the impugned FIR may be quashed. In support of his contentions learned counsel for the petitioner has placed reliance on the judgments reported as Amjad Shah v. SHO of Police Station Sukheki and another (2008 YLR 1507), Muhammad Ashraf v. SHO and others (2001 PCr.LJ 31), Abdul Ghafoor v. Mst. Zubaida Bibi (1996 PCr.LJ 1228) and Muhammad Mukhtar v. SHO and 3 others (2008 YLR 2665).

4. Heard. Record perused.

5. As per contents of the impugned FIR about eight years earlier to the registration of the impugned FIR, Sayeda Laila Zainab (complainant) was married with the brother of the petitioner, namely Kamyab Hussain alias Kake Shah. Two children namely Mehtab Hussain aged about 4-1/2 years and Taieed Fatima aged about 3 years were born from the said wedlock. On 23.01.2017 at about 04.00 p.m. when the complainant came out of the house of her in-laws, the petitioner who is brother-in-law of the complainant and Kamyab Hussain alias Kake Shah co-accused, who is husband of the complainant, along with other co-accused forcibly snatched the minors at gun point, from the custody of the complainant. The complainant then went to the house of her mother and thereafter she filed different habeas petitions before the learned Additional Sessions Judge, Lahore, as well as, before this Court but the petitioner and his co-accused neither produce the minors in the court of learned Additional Sessions Judge, Lahore nor before this Court. The habeas petition filed by the petitioner in the court of learned Additional Sessions Judge, Lahore was withdrawn on the ground that the place of confinement of the minors was not in the knowledge of the complainant/mother. In the habeas petition filed by the complainant before this Court, i.e. Criminal Miscellaneous No. 2151-H of 2017, repeated directions for recovery of the minors were issued by this Court to the SHO of Police Station Sabzazar Lahore, SDPO/DSP Lahore, CCPO Lahore and despite the constitution of a special team by the CCPO, Lahore, for the recovery of above mentioned minors, the minors could not be recovered by the police. Ultimately on 14.03.2017, SP Operations, Lahore personally appeared before this Court and submitted that the special team visited different places to effect the recovery of minors but the minors could not be recovered, therefore, if the complainant would approach the police, then an FIR shall be registered about the abduction of minors. On the above mentioned assurance of SP, Operations, Lahore, the habeas petition filed by the complainant before this Court was disposed of. Subsequently, the impugned FIR was registered by the police at Police Station Sabzazar, Lahore. It is evident from perusal of the record that the petitioner and his co-accused concealed the minors at some secret place, after their abduction and even the State with all the resources at its command was unable to recover the minors. It is, therefore, established in this case that the minors have been removed from the custody of the complainant and they are being illegally kept in concealment by the petitioner and his co-accused in order to avoid the legal proceedings initiated by the mother of the minors (complainant) for their custody. There is no doubt that brother of the petitioner namely Kamyab Hussain alias Kake Shah is father of the minors but this fact alone does not mean that he has a license to forcibly snatch the minors from the custody of their mother at gun point and to conceal them at some secret place in order to frustrate the process of the law and the court. In my humble view, father can take the benefit of the exception of section 361, P.P.C., provided he satisfies two conditions, firstly, if he establishes that he in good faith believed himself to be entitled to the custody of his minor children and secondly his act must not be for any unlawful or immoral purpose. Section 361, P.P.C. is reproduced hereunder for ready reference:- Section 361, P.P.C. Kidnaping from lawful guardianship. Whoever takes or entices any minor under fourteen years of age if a male or under sixteen years of age if a female or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, said to kidnap such minor or person from lawful guardianship. Explanation. The words lawful guardian in this section include any person lawfully entrusted with the care or custody of such minor or other person. Exception. This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody, of such child, unless such act is committed for an immoral or unlawful purpose. In the instant case, while keeping in view the personal law applicable to both the parties who are admittedly Muslims and the tender ages of the minors, the first right of Hizanat in respect of the minors lies with the complainant, who is their real mother. The complainant was, therefore, lawful guardian of the above mentioned minors. The petitioner and his co-accused forcibly took away the minors from the custody of a lawful guardian. It is also clear from the perusal of the record that despite repeated orders issued by the learned Additional Sessions Judge, Lahore, as well as, by this Court for production of the minors before the court and despite the constitution of a special team for the recovery of minors by the CCPO, Lahore, the minors could not be recovered and the petitioner and his brother deliberately avoided to produce the minors before the court. The petitioner and his co-accused attempted to make the process of the law and the court as infructuous/useless by removing and concealing the minors at some unknown secret place. Under the circumstances it cannot be held by any stretch of imagination that the petitioner and his co-accused believed in good faith to be entitled to the custody of above mentioned minors or their above mentioned acts were for any lawful or moral purpose, therefore, the petitioner and his co-accused cannot claim any exception in this case on the ground that brother of the petitioner namely Kamyab Hussain alias Kake Shah is real father of the minors.

6. If for the sake of arguments, it is presumed that brother of the petitioner, being father of the minors had any legal right to forcibly snatch the minors from their mother at gun point, without adopting legal procedure in this respect and he had any right to keep the minors at some secret place in blatant and flagrant violation of the orders of the courts, even then the petitioner himself and other co-accused had no right to join the above mentioned act of their co-accused Kamyab Hussain alias Kake Shah, regarding forcible snatching of the minors from the custody of their mother (complainant). As the allegation of forcible abduction of the minors has also been levelled against the petitioner himself, his nephew Abbas and two unknown accused persons, apart from the father of the minors, therefore, the impugned FIR cannot be quashed only to the extent of father of the minors because partial quashment of the FIR is not permissible under the law. Reliance in this respect may be placed on the case reported as Director-General, Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan and others (PLD 2013 SC 401).

7. There is another important aspect of this case that if the above mentioned practice is allowed to continue, then it will grant a license to every father to decide himself about the custody of his minor children, to forcibly snatch them from their mother and not to produce them before the court for determination of the question of their custody. It will make the provisions of section 491, Cr.P.C. as redundant. It would mean that instead of the Guardian Courts established under the Guardians and Wards Act, 1890, the questions of the interim or permanent custody of the minor children of the parties shall be decided by a father of the minors himself, which has never been the intention of the legislator. If we take another example of a case where a Muslim girl of 15 years of age has attained the age of puberty then she is presumed to be major under her personal law on attaining the age of puberty and can validly contracted marriage, even without or against the consent of her Waali/father. Reference in this respect may be made to the cases of Mst. Bakhshi v. Bashir Ahmad and another (PLD 1970 SC 323), Hafiz Abdul Waheed v. Mrs. Asma Jehangir and another (PLD 2004 SC 219), Muhammad Imtiaz and another v. The State (PLD 1981 FSC 308), Shabbir Hussain alias Papu v. SHO of Police Station Bumbanwala District Sialkot and 3 others (2006 PCr.LJ 1260) and Abdul Ghaffar v. Ishtiaq Ahmad Khan and another (1997 PCr.LJ 1150). In such a situation if a father kidnapes such girl in order to commit her murder in the name of Ghairat (as it has already happened in so many cases in our society) then considering the above mentioned argument of learned counsel for the petitioner the police cannot lodge an FIR against the accused and protect the life of such girl on the ground that the accused of such case is real father of the minor and offence of kidnapping does not attract against him. This will lead to a disastrous situation in our society, therefore, in my humble view the exception provided to a father under section 361, P.P.C. is only attracted when the act of the father is taken in good faith and the same is not for any immoral or unlawful purpose.

8. It is noteworthy that most of the judgments on the issue in hand have been rendered while keeping in view the findings of this Court in the case of Asghar Ali v. The State (1971 PCr.LJ 982) but I have noted that even in the said judgment this Court has categorically observed in Para No. 5 at page No. 984 of the said judgment that if a father wanted to avoid the proceedings before the Guardian Court and by circumventing the law he wanted to take away the child with him that may be one example of an unlawful purpose. The relevant part of the aforementioned judgment reads as under:- "........The second condition to be satisfied is that he should not have taken the child for an immoral or unlawful purpose. It is agreed that the purpose in taking away the child in this case was not at all immoral. With regard to the subsidiary question whether it was unlawful, one may consider that if the father wanted to avoid proceedings before a Guardian Court and by circumventing the law he wanted to take away the child, that might be one example of an unlawful purpose. But in this case, it is not necessary to give any final determination of the question, nor it is necessary to further examine the expression used in the Exception, i.e. unlawful purpose........". (Bold and underlining supplied for emphasis) It is, therefore, evident that even in the above mentioned judgment, this Court observed that if a father takes away the child in order to circumvent the law or to avoid the proceedings before a court then his act would be an example of unlawful purpose.

9. It is also noteworthy that under section 363, P.P.C., no distinction has been laid down between a real father of the minors and an ordinary accused regarding the offence of kidnapping. Section 363, P.P.C. reads as under:- Section 363, P.P.C. Punishments for kidnaping. Whoever kidnaps any person from Pakistan or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. (Bold and underling supplied for emphasis) The word "whoever" used in section 363, P.P.C. has made it clear that there is absolutely no distinction between an ordinary accused and a real father of the minor in respect of the offence of kidnapping. As discussed earlier, the exception provided to a father under section 361, P.P.C. is dependent upon the satisfaction of above mentioned two conditions that firstly a father should establish that he believed himself in good faith to be entitled to the custody of his minor children and secondly his act is not for any immoral or unlawful purpose. The aforementioned conditions are very much lacking in this case and, as noted earlier, while keeping in view the peculiar facts of this case, the petitioner and his co-accused cannot claim any exception in this case or they cannot ask for the quashment of the impugned FIR, on the ground that as the brother of the petitioner is real father of the minors, therefore, provisions of section 363, P.P.C. are not attracted against them. A father cannot be granted a license to play with the lives and custody of the minors according to his own wishes and desires by deliberately avoiding the due process of the law and the courts and while taking the law into his own hands.

10. It is true that the petitioner is an advocate but this fact does not mean that he is above the law or he can claim any exception in respect of any offence on the basis of his being an advocate. He has been granted the license of advocate to practice the law and not for taking the law into his own hands and to commit crimes. The petitioner who claims himself to be a law graduate, instead of adopting the legal procedure for the custody of the minor children of his brother has statedly snatched the minors at gun point from their mother (complainant). The petitioner never advised his brother to produce the minors before the court in order to establish that he (petitioner) believes in the supremacy of law and has any respect for the law of the country, rather the petitioner and his co-accused while concealing the minors at some unknown place have made it impossible for the courts to decide about the custody of the minors in accordance with the law. Mere this fact that the petitioner is an advocate is by itself no ground to quash the impugned FIR.

11. There is prima facie no contradiction between the story narrated by the complainant in her habeas petition and the story narrated by her in the impugned FIR. In her habeas petition filed before the learned Additional Sessions Judge, Lahore, the complainant has categorically mentioned in Para No. 5 of the said petition that the minors were forcibly snatched from her custody after giving her merciless beating. Similarly in the impugned FIR it was also mentioned that on the day of occurrence the complainant when came out of the house of her in-laws, the minors were forcibly snatched from her custody by the petitioner and his co-accused at gun point. There is no material contradiction between the story narrated by the complainant in her habeas petition and in the story narrated by her in the impugned FIR. Furthermore, the impugned FIR cannot be quashed merely on the basis of above mentioned alleged minor contradiction which does not go to the roots of the case and which has no material effect on the merits of the case.

12. Although learned counsel for the petitioner has taken this ground for quashment of the impugned FIR that the minors have been recovered from the possession of the brother of the petitioner, however, their recovery has not been shown in the relevant papers by the police but the said ground relates to the disputed question of facts of this case which cannot be decided in the constitutional jurisdiction. If the petitioner is not satisfied with the investigation of this case, then he may move an application before the concerned authorities for transfer of investigation of the case. The impugned FIR cannot be quashed on the above mentioned ground.

13. The judgments cited by learned counsel for the petitioner are distinguishable on their own facts. Even in the case of Muhammad Ashraf supra (2001 PCr.LJ 31) cited by learned counsel for the petitioner, in Para No. 7 of the said judgment, this Court has categorically held that if a father takes the child from the custody of his wife for an immoral or unlawful purpose then it would amount to an offence. The relevant part of the said judgment reads as under:- ".......... Father of a child is always a natural guardian along with the mother. He can never be ascribed or attributed the offence of kidnapping of his own child. The exception appended to section 361, P.P.C. even goes to the extent of relieving a person from any criminal liability if he in good faith believes to be father of an illegitimate child, or, who in good faith believes to be entitled to the lawful custody of such child. The only fetter placed upon the right of a father to the custody of the child is that when he takes the child from the custody of his wife for a purpose recognized in law as immoral or unlawful, in such a circumstance removal of the child, would amount to an offence. No such allegation is made in the complaint recorded at the instance of respondent No. 2 ........." (Bold and underling supplied for emphasis) It is evident from the perusal of aforementioned judgment that if a father removes his own child from the custody of his wife for an unlawful or immoral purpose then the removal of the child by his own father would amount to an offence. At the cost of repetition, in the instant case, the minors have forcibly been removed by the petitioner and his co-accused and they have secretly been concealed at some unknown place for an unlawful purpose, i.e. to avoid the proceedings of habeas petition filed by the mother for the custody of minors and to avoid the process of the law and the court. In the case of "Abdul Ghafoor" supra (1996 PCr.LJ 1228) referred by learned counsel for the petitioner this Court observed that there was a written Iqrarnama between the father and mother and according to the terms of said document, the child was to remain with the mother till the age of seven years, with the further condition that if the mother would contract second marriage, she will lose the right of custody of the child and as in the said case, the mother contracted second marriage and the minor also crossed the age of seven years, therefore, the father in good faith while believing himself to be entitled to the custody of the minor took his custody, whereas, no such ground is available to the accused of the instant case. Similarly the facts of remaining judgments cited by learned counsel for the petitioner are distinguishable from the facts of the present case. It is also noteworthy that in all the above judgments referred by learned counsel for the petitioner, no order for production of the minors was passed by any court, whereas, in the instant case the petitioner and his co-accused did not produce the minors before the courts despite issuance of repeated directions in this respect, therefore, as mentioned earlier, the petitioner cannot take any benefit of exception provided under section 361, P.P.C. as he failed to establish that he and his brother acted in good faith or their act was not for any unlawful or immoral purpose. Under the circumstances, the judgments cited by learned counsel for the petitioner are of no avail to the petitioner.

14. In the light of above discussion, there is no substance in this petition; hence the same is hereby dismissed in limine.

15. It is, however, clarified that observations made in this order shall not prejudice the case of either party at the time of final adjudication of the case by the learned trial court. JK/N-21/L Petition dismissed.