1992 P Cr (PLP)

Muhammad Rafique v. Muhammad Ghafoor P L D 1972 SC 6 ref. Applicant in person. Muhammad Zakiuddin for the Respondent No.1 Muhammad Zubair Qureshy for A: G. for the State. Date of hearing: 13th April, 1992. On 16-1-1992 a written application was received by the Acting Chief Justice of this Court, which was registered n C.P.No.S-5 of 1992. However, on 23-1-1992 the application was converted as criminal miscellaneous application under section 491, Cr.P.C., and was re-numbered as Criminal Miscellaneous No.48 of 1992.

2. The facts giving rise to this application which has now been treated as an application under section 491, Cr.P.C. are simple. Applicant Mst. Sabira Sultana was married with Zafarullah Khan, the respondent No.1; a police constable. Out of this wedlock baby Rashida was born, who is now aged 2-1/2 years. The marriage between the parties ended in separation on 15-10-1991, when respondent No.1 is said to have divorced the applicant. It is alleged that the respondent No.1 who is a police constable has removed baby Rashida aged about 2-1/2 years from the lawful custody of her mother, the applicant. It was in these circumstances that the applicant had sent an application to the Acting Chief Justice by post. Rule nisi was issued for the recovery of baby Rashida and on 1-3-1992 interim custody of baby Rashida was given to the applicant.

3. The respondent No.1 has controverted the allegation based on facts. According to him the applicant has herself given the custody of baby Rashida to him as she was not in a position to maintain her.

4. I have heard the applicant in person, Mr. Muhammad Zakiuddin Ahmad, learned counsel for respondent No.1 and Mr. Muhammad Zubair Qureshi, learned counsel for State. During the course of her address the applicant has denied the execution of the agreement voluntarily and it is her case that she was forced to sign some documents by respondent No.1, who is serving in police department.

5. Under section 491, Cr.P.C. the High Court is clothed with an extraordinary power to issue directions in the nature of habeas corpus. These proceedings by their nature are summary in character and the entire evidence is not recorded to decide the main controversy between the parties. As observed in Begum Gulzar v. Sajjad Akbar reported in 1977 P Cr L J 800, Muhammad Naseer Humayun v. Mst. Sayeda Ummatul Khabir reported in 1987 S C M R 174, Asif Mowjee v. Mst. Fatima A. Mowjee and another reported in P L D 1987 Kar. 239, Rana Khursheed Ahmed v. Ashiq Risaldar and another reported in 1988 P Cr. L J 111, Usman Wahid v. Muhammad Javed Umrao reported in 1988 P Cr. L J 1983, Muhammad Javed Umrao v. Mst. Uzma Wahid reported in 1988 S C M R 1891, Shabbir Hussain v. Mst. Shaheen Perveen and another reported in 1989 P Cr. L J 1689, Fouzia Jamil v. Syed Farhat Hussain Shah reported in 1989 P Cr. L J 1736, Mst. Touqir Fatim? v. Iqbal Mehdi Shah and another reported in 1990 P Cr. L J 342, Musarrat Jabeen v. Dr. Khalid Nawab and another reported in 1990 P Cr. L J 686, Mst. Asia v. Mashhud Ahmad and another reported in 1990 P Cr. L J 847, Mst. Awal Marjan v. Mst. Gul Jan reported in 1991 P Cr. L J 717, Mst. Farzana v. Syed Muhammad Afzal and another reported in 1991 P Cr. L J 758, and Iffat Mir v. Mobeen Qasim Mir reported in 1991 P Cr. L J 2372, that in matters pertaining to the custody of tender age, the High Court has got jurisdiction under section 491, Cr.P.C. which remedy is definitely more efficacious, speedy and appropriate and is to be exercised without prejudice to the rights of the parties to have the matter finally adjudicated upon by Guardian Judge.

6. It will be manifestly clear that the matters to be dealt with by section 491, Cr.P.C. and Guardian and Wards Act, 1890, are entirely different and the provisions are neither mutually exclusive nor one overlapse or destroys the other (see Muhammad Javed Umrao v. Mst. Uzma Wahid reported in 1988 S C M R 1891). Ordinarily the disputes as to guardianship should be decided by a Court under the Guardians and Wards Act, 1890, as that is the ordinary remedy for deciding such disputes, but in exceptional cases the High Court can interfere to order restoration of custody which has been disturbed illegally or improperly..

7. As observed in Muhammad Rafique v. Muhammad Ghafoor, reported in P L D 1972 SC 6, the High Court has two fold jurisdiction under section 491, Cr.P.C. (i) to deal with a person within its appellate criminal jurisdiction according, to law, and (ii) to set him at liberty if he is illegally or improperly detained. The question which falls for determination, however, is that if the Court finds that the person brought before it was not being illegally or improperly confined or detained what order can be passed regarding the custody of that person. If the person is a minor, the Court may make over his custody to the guardian which will be dealing with him in accordance with law, but if the person is major, 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.

8. The plea raised by respondent No.1 about the custody of baby Rashida having been abandoned by the applicant cannot be determined by this Court in proceedings which are summary in nature. Admittedly baby Rashida is about 2-1/2 years now, and her custody with respondent No.1 was obviously improper. According to personal law of the parties the applicant is entitled to the custody of her daughter baby Rashida till she attains puberty.

9. Having regard to the above circumstances, I direct that the custody of baby Rashida who was handed over to applicant on 1-3-1992 under the orders of this Court, shall remain with her, subject to any decision made by the Family Court/Guardian Judge, having jurisdiction, if the parties or any one of them invokes such jurisdiction. H.B.T./S-899/K Application allowed.