1988 P Cr (PLP)

22. On 17‑2‑1988 the case was fixed for hearing and an adjournment was sought by the learned counsel for the respondent on account of the marriage of his sister. This Court directed the respondent to hand over the custody of the children to the petitioner. The respondent was directed to see the children daily from 3‑00 p.m. to 8‑00 p.m. The permission was also allowed to the respondent to take the children with him during the hours allowed to him to see the children.

23. On 24‑2‑1988 when this case was fixed for hearing this Court was informed that the respondent had taken the children to Abbottabad for appearing before a Division Bench in Peshawar High Court at Abbottabad in connection with the guardianship matter.

24. It is interesting to note that the respondent by creating conflict of jurisdiction, exploited the same and moved a petition seeking leave to appeal in the Supreme Court of Pakistan challenging the assumption of the jurisdiction by this Court. The Supreme Court of Pakistan dismissed the said petition vide order dated 24‑2‑1988.' Orders of the Hon'ble Supreme Court are reproduced hereunder:‑ "While proceedings under Guardians and Wards Act were proceeding at Lahore, Habeas Corpus Petition was filed at Lahore. While both these proceedings were pending there, the petitioner filed another petition at Abbottabad and obtained an order against the removal of minors from Abbottabad. In this fashion prima facie a conflict of jurisdiction has been engineered. In the circumstances, there is no case for interfering with the High Court's order of production of minors. Let the petitioner produce the minors before the High Court. However, the High Court will not transfer the custody in Habeas Corpus Petition, on the minors having been produced though it may otherwise proceed with the matter." Since the respondent and the children were absent on 24‑2‑1988, therefore, the respondent was directed to appear and produce the minor children on 27‑2‑1988.

25. On 27‑2‑1988 Criminal Miscellaneous No.154‑M of 1988 was moved by the respondent in which it was contended, that there were conflicting judgments delivered by the Superior Court with regard to the interpretation under section 491, Cr. P. C. It was contended that one view was that in exercise of the powers under section 491, Cr.P.C., the High Court cannot decide the question of the custody of the minors, while the other view was to the contrary. It was further prayed, that such conflict required authoritative opinion, therefore, it was desirable that I should refer this case to ‑my Lord the Chief Justice for the constitution of a larger bench. I considered the judgments cited before me and in view of the judgment delivered by the Supreme Court of Pakistan in a case reported as Muhammad Rafique v. Muhammad Ghafoor P L D 1972 SC 6 I disallowed the prayer of the respondent for the constitution of a larger, bench. It was also argued that the aforesaid judgment only contained Obiter Dicta, therefore, the Supreme Court of Pakistan had not completely answered the question. The argument was fallacious, inasmuch as, even the obiter dicta of the Supreme Court is binding upon this Court. At this stage, I directed the respondent to hand over the custody of the children to the petitioner and the respondent was also allowed to see the children daily from 3‑00 p.m. to 6‑00 p.m. either in the office of Dr. Abdul Basit, Advocate for the respondent or in the office of Miss Hina Jillani, Advocate for‑the petitioner.

26. Another Criminal Miscellaneous No. 176‑M of 1988 was moved before my Lord the Chief Justice praying, that a larger bench be constituted to resolve the conflict. The said application was dismissed on 29‑2‑1988.

27. On 1‑3‑1988, the petitioner informed this Court that the application for the constitution of larger bench has been dismissed by the Hon'ble Chief Justice. The learned counsel for the petitioner also requested for an adjournment since she had to go abroad. On behalf of the petitioner, it was prayed, that she has to go back to Karachi, therefore, she be allowed to take the children with her. This prayer was opposed by the learned counsel for the respondent, but keeping in view the fact that since the separation of the spouses the custody of the children remained with the respondent except for a short period, therefore, I directed the petitioner to take the custody of the children for proceeding to Karachi subject to her furnishing bail bonds in the sum of Rs. three hundred thousand for her re appearance and that of the children in this Court on 22‑3‑1988.

28. While I was holding Court at Rawalpindi Bench another Criminal Miscellaneous No.216/M of 1988 was moved praying that the orders attaching the property of the respondent be recalled. Since the respondent had surrendered himself before this Court, therefore, orders of this Court attaching the property of the respondent were recalled on 6‑3‑1988.

29. The matter has been heard at length. The learned counsel for the respondent Dr. Abdul Basit, Advocate at the very outset argued, that this Court had no jurisdiction under section 491, Cr.P.C. to decide the question of the custody of the minors, and it was urged that the judgments in support of this view given by the High Court should be followed. Since these were Single Bench judgments, therefore, this Court could differ with them. Furthermore, judgment of the Hon'ble Supreme Court of Pakistan reported as Muhammad Rafique v. Muhammad Ghafoor P L D 1972 SC 6 was binding on this Court, therefore, this contention was repelled. The learned counsel for the respondent then conceded that this Court has the jurisdiction under section 491, Cr.P.C, and argued that this Court should refrain from deciding the question of custody, inasmuch as, the proceedings before the Guardian Judge at Lahore were pending, therefore, the parties should be allowed to have the decision from the said Court. It was further contended that the proceedings before the Guardian Judge at Abbottabad have been stayed. It was also contended before this Court that the respondent shall not press the petition at Abbott abad if this Court leaves the question for determination by Guardian Judge at Lahore.

30. Essentially, the question relates to the interpretation of section 491, Cr.P.C. Section reads as under:‑ Section 491, Cr.P.C. (1) Any High Court may, whenever it thinks fit, direct:‑ (a) that a person within the limits of its appellate criminal juris diction be brought up before the Court to be dealt with according to law. (b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty. (other clauses of the section are not applicable/relevant. ) The above quoted provision manifests that the High Court has two‑fold jurisdiction; (i) to deal with the person within its appellate criminal jurisdiction according to law; and (ii) to set him at liberty if he is illegally or improperly detained.

31. The question which falls for determination however, is that ' the Court finds that the person brought before it was not being illegally or improperly confined or detained, the order can be passed regarding the custody of that person. If a person is a minor, the Court may make over his custody to the Guardian who will be dealing with the matter in accordance with law.

32. The next important issue in this case is to consider the question of Hizanat, a doctrine of Muslim Law which is applicable to the parties: It will be advantageous to reproduce the contents of Chapter V dealing with the custody of children as given in Muhammadan Law by Ameer Ali pages 222, 223, edition 1965. The contents are reproduced hereunder:‑ "'The Hazina is the woman to whom belongs the rearing up of a child'. The conditions of the Hizanat are that the Hazina should be free, adult, trustworthy and capable of bringing up the child and not married to a stranger."

33. According to the Fatawai Alamgiri; "The mother is of all persons the best entitled to the custody of her infant children during the connubial relationship as well as after its dissolution."

34. A part from Radd‑ul‑Muhtar which reads, "that the right of the mother to the custody of her child is established whether she be a Moslemah or Kitabia or a Majoosia, and even though she be separated from her husband. It will thus be seen that this right belongs to her, qua, mother and nothing can take it away from her except her own mis conduct Similarly, the tenderness of their age or the weakness of B their sex, renders a mother's care necessary, the Mohemmadan Law supports the mother's natural right to the custody of her children and allows it to take precedent of the paternal right for a certain specified time. Similarly, according to the Hanafi doctrines, the mother is entitled to the custody of her daughter until she arrives at puberty. According to the judgments of the Court of Algiers in several cases presided over by Hanafi Kazis have followed the Maliki doctrines and held that the mother is entitled to the custody of her daughters until their marriage.

35. The right of Hizanat, a salutary principle of the law is meant for the exclusive benefit of a child. However, this Hizanat is lost ii the mother remarries. The rearing up of a female child by the mother reflects the extreme care which a female child requires and such requirement can only be met by the mother.

36. Adverting to the question that the matter should be determined by the Guardian Judge at Lahore to the exclusion of this Court. The proposition is devoid of substance. Merely because the petitioner i.e., mother has invoked the jurisdiction of the Guardian Judge would not debar her from invoking the jurisdiction under section 491, Cr.P.C., because both the remedies are available to her. Hence, the pendency of the application before the Guardian Judge at Lahore is no bar to the exercise of jurisdiction under section 491, Cr.P.C.

37. I have also gone through the case law on the subject in the cases reported as Begum Gulzar Khurshid Ahmad . Cdr. Sajjad Akbar 1977 PCr.LJ 800, Mst. Safia v. Ghulam Hussain Shah P L D 1970 AJ&K 13 and Mst.. Khurshid Begum v. Muhammad Hussain 1968 P Cr. L J 1090. It has been clearly laid down that in exercise of the jurisdiction under section 491, Cr.P.C. this Court can pass an order with regard to the custody of the minor children and the West Pakistan Family Courts Act, 1964 thus does not oust the jurisdiction of the High Court under section 491, Cr.P.C. In. the case reported as Ahmad Nawaz and three others v. The State P L D 1968 Lah. 97 and Mst. Zohra Begum v. Sh. Latif Ahmad Munawar P L D 1965 Lah. 695, this Court has also gone to the extent of laying down that the custody of the children by the father was illegal and improper and, therefore, this Court had ample jurisdiction to exercise its powers under section 491, Cr.P.C.

38. It was also attempted to argue that the West Pakistan Family Courts Act, 1964, ousts the jurisdiction of other Courts and, therefore the jurisdiction of this Court also stands ousted; the contention is fallacious, because as far as any clause with regard to the ouster of jurisdiction is concerned, the same has to be construed very strictly. The legislature has nowhere laid down that after the promulgation of West Pakistan Family Courts Act, 1964, the provision of section

491. Cr.P.C. cannot be pressed into service. Furthermore, this Court has also ample power to deal with this issue under Article 199 (1)(b) of the Constitution.

39. In another case, reported as Mst. Ghullan v. Allah Ditta 1984 PCr.LJ 1047, it was laid down that the custody of the girl with the father was illegal and she was restored to the mother. It was also held, that the High Court was competent to decide this issue in view of the provision of section 491, Cr.P.C.

40. Lastly it was argued that the respondent was a 'Rajput' by caste and on account of high family traditions and customs, the custody of the children should remain with the respondent. It may be observed here that this Court is bound by the dictates of law and not with the characteristics of a tribe.

41. After anxious consideration of the case and particularly ill view of the fact that the respondent has married with another woman, I am of the view that it will not be in the welfare of the minors to be reared up by a step‑mother. On the other hand, the petitioner, has not remarried and is an educated woman and she being a mother is entitled to the custody of the minor children under her right of 'Hizanat' which she has not lost. Accordingly, I direct that the custody of both the minor female children shall remain with the petitioner till they attain puberty. However, the respondent would be at liberty, to meet the female children. S.A./U‑22/L Petition allowed.