2016 P Cr (PLP)

SHAHNAWAZ TARIQ, J.

Through captioned criminal misc. application, applicant Mst. Majeedan has sought following relief:- "That this Honourable Court may be pleased to issue 'Rule-Nisi' thereby directing the Respondent No.2 to conduct the raid at the house of Respondent No.3 and to recover the detenue from the custody of Respondent No.3 and to produce her before this Honourable Court and this Honourable Court may vouchsafe to hand over the custody of minor baby Aqsa to the applicant who is her mother and guardian-ad-litem."

2. Relevant facts narrated in the instant application are that applicant was married with respondent No.3 on 09.02.2002 and out of their wedlock one baby detenue Aqsa was born, who is aged about 12 years. After marriage, applicant used to reside with respondent No.3 at Mirpur Mathelo, District Ghotki. It is further averred that about 4/5 years ago, respondent No.3 due to ill-will with applicant, drove her out from his house along with minor baby Aqsa and she came at the house of her parents at Sukkur. About one week ago, respondent No.3 along with his two companions came at the house of applicant's parents at noon time and forcibly snatched the custody of minor Aqsa from applicant. It is further averred that applicant approached the respondent No.3 through her brother for the return of custody of baby Aqsa but he refused to return the baby; hence this application.

3. Learned counsel for applicant contended that previously applicant had also filed Cr. Misc. Application against respondent No.3 and other officials, which was disposed of by this Court vide order dated 05.07.2010 and since then the baby was in custody of applicant; however recently respondent No.3 forcibly snatched custody of baby from applicant; that respondent No.3 filed G&W application which was dismissed by the Guardian and Wards Court, and respondent No.3 has filed G&W appeal before the Court of learned District Judge, Ghotki, which has been admitted and notice has been issued to the concerned parties and the matter is fixed on 11.12.2015; that minor was in the custody of applicant and her forcible removal from her custody is illegal, hence, instant miscellaneous application for recovery of the minor is maintainable under the law.

4. While controverting the above submission, learned counsel for respondent No.3 contended that applicant had filed a criminal misc. application against respondent No.3, which was withdrawn; that applicant, by re-typing the same memo of earlier application, has filed instant application with similar prayer, which shows that she has not come before this Court with clean hands; that G&W application filed by respondent No.3, was dismissed without considering the merits of the case and such order has been impugned by him by filing G&W appeal; that during pendency of said appeal, applicant has filed instant application which is not maintainable under the law; that respondent No.3 is ready for schedule of meeting of minor with applicant if parties are agreed so. In support his contentions, learned counsel relied on the case of Naziha Ghazali v. The State and another (2001 SCMR 1782), Mst. Nadia Parveen v. Mst. Almas Noreen and others (PLD 2012 SC 758), Muhammad Khalil-ur -Rehman v. Mst. Shabana Rahman and another (PLD 1995 SC 633), Muhammad Javed Umrao v. Miss Uzma Vahid (1988 SCMR 1891) and Ahmed Sami and 2 others v. Saadia Ahmed and another (1996 SCMR 268).

5. Learned DPG contended that the custody of minor was snatched by respondent No.3 during the pendency of G&W appeal, hence, instant misc. application is maintainable under the law.

6. I have heard the arguments of learned counsel for the parties supported with case law, and perused the material available on record.

7. Indeed, applicant is real mother of the minor baby and at the first instance, she filed Criminal Misc. Application No.336 of 2010 for the custody of baby Aqsa and same was withdrawn on the ground of settlement of dispute between the parties outside the Court and baby started residing with her. Subsequently, respondent No.3 filed G&W application No. Nil of 2015 for the custody of minor, which on the contrary strengthens the plea raised by applicant that she was in custody of minor at the time of filing said application by the respondent No.3; however said application was dismissed in limini, and such order has also been challenged by him through G&W Appeal No.5 of 2015, before the Court of learned District Judge, Ghotki, which is admitted for regular hearing and notice has been issued to the parties.

8. At this juncture, I would like to discuss the case law cited by learned counsel for respondent No.3 as follows:- (i) In the case of Ahmed Sami (supra), the honourable Supreme Court has observed as follows:- "S.491. Where High Court finds that the interest and welfare of the minor demanded that he/she be committed immediately to the custody of the persons who was lawfully holding his/her custody before he was deprived of the custody, it can pass appropriate order under section 491, Cr.P.C, directing restoration of the custody of the minor to that person as an interim measure pending final decision by the Guardian Judge". (ii) In the case of Muhammad Khalil-ur-Rehman (supra), the honourable Supreme Court has observed as follows:- "Jurisdiction of Criminal Court is not barred under section 491, Cr.P.C. to pass appropriate order with regard to custody of a minor who has been illegally removed from the custody of a person, on account of the provisions of Guardians and Wards Act." (iii) In case of Mst. Nadia Parveen (supra), the honourable Supreme Court has observed as follows:- "S.491. Habeas corpus petition before the High Court for recovery of minors. Said petition was dismissed by the High Court on the ground that the mother (petitioner) had left her children on her own and they were not removed from her custody, therefore, it could not be said that the children were being illegally detained by the respondent. Children in the present, were neither of very tender ages nor had they been snatched away from their mother and, thus, the petition filed before the High Court under section 491, Cr.P.C. was misconceived. Guardian Judge had already appointed the paternal grandmother of the minors as the guardian of their persons and properties. Said decision of the Guardian Judge had not been assailed by the mother before any higher court. Petition for leave to appeal was dismissed, in circumstances". (iv) In the case of Naziha Ghazali (supra), the honourable Supreme Court has observed as follows:- "S.491. Petitioner (mother) had filed the application under section 491, Cr.P.C. after 5/6 months of the alleged unlawful removal of the minor from her custody without giving any explanation as to why she had kept quiet for such a long period. Petitioner in such circumstances would have either filed a report with the police or made a complaint to the concerned Authorities against the respondent (father). Conduct of the petitioner, prima facie showed that the minor was not removed forcibly by the respondent from her custody. Custody of the minor with his father (respondent), therefore, could not be said to be illegal or unlawful within the meaning of section 491, Cr.P.C. No proceedings under the Guardians and Wards Act, 1890, were even pending before the Family Court. Provisions of section 491, Cr.P.C were not available for declaring any person as guardian or for determining all the questions relating to the custody of the minor because the final decision of the regular custody was to be decided in the proceedings initiated by the party claiming the custody of the minor before the Guardian Court. Leave to appeal was refused to the petitioner by the Supreme Court in circumstances." (v) In the case of Muhammad Javed Umrao (supra), the honourable Supreme Court has observed as under:- "S.491. Matters to be dealt with by section 491, Cr.P.C., and Guardians and Wards Act are entirely different. Provisions are neither mutually exclusive nor one overlaps or destroys the other. It was further held as under:- Custody of minors of proceedings initiated under section 491, Cr.P.C., appropriateness of such proceedings, mother first approached appropriate Court at Lahore under Guardians and Wards Act but suspecting on good grounds that minors were being shifted from Lahore to Pakpattan and from Pakpattan to elsewhere to avoid jurisdiction of local Courts, invoked section 491, Cr.P.C. High Court, itself had difficulty and had to resort to coercive method in order to secure father's presence. Suppressing all such material facts, father filing petition under sections 12 and 25, Guardians and Wards Act at Abbottabad even at the cost of conflict of jurisdiction of Courts. Circumstances, held, amply justified initiation of proceedings by mother under section 491, Cr.P.C. in circumstances." The facts of above cited case law and dicta laid down by the honourable Apex Court are different from the facts of the case in hand, which otherwise is supporting the case of applicant, hence same are distinguishable.

9. So far the plea raised by respondent No.3 that during pendency of G&W appeal before the appellate Court, application under section 491, Cr.P.C. could not be filed under the law, is concerned, it is well settled that question of the custody of forcible removal of the minor can be challenged by any of the party i.e. father or mother by invoking jurisdiction of the High Court under the provisions of section 491, Cr.P.C. for restoration of temporary custody to the party who was deprived of the custody of the minor by the other party illegally or other than due course of law. High Court can restore the custody of the minor to the deprived party till the approaching of the parties to the competent G&W Court for adjudication of the controversy on its merits.

10. Adverting to the merits of the case in hand, I am of the considered view that instant application under section 491, Cr.P.C. is maintainable in the light of law laid down by the honourable Supreme Court referred supra, as applicant was deprived of the custody of minor baby while respondent has lost his G&W application filed before the concerned Family Court for restoration of the custody and G&W appeal filed by him is sub-judice before the appellate Court.

11. For the facts and circumstances referred above, instant criminal miscellaneous application is allowed as prayed and temporary custody of minor Aqsa is handed over to applicant till the disposal of G&W appeal filed by the respondent No.3. However, respondent No.3 is at liberty to agitate such plea before the appellate Court if he is advised so. SL/M-26/Sindh Application allowed.