2011 PLP 78 (YLR)

MAMOON RASHID SHEIKH, J.

Through order dated 28-4-2010, with the consent of the parties, this petition has been treated as a Pacca matter and is being decided on the basis of the available record.

2. The brief facts giving rise to this petition (as stated in the petition) for, inter alia, issuance of a writ in the nature of habeas corpus are to the effect that the petitioner is the mother of the alleged detenues namely Talha Naseer, a boy aged about 13 years, Mehr-un-Nisaa, a girl aged about 12 years, Bareera, a girl aged about 10 years and Ghulam Rasool, a boy aged about 7 years (hereinafter referred to as "the minors"). The husband of the petitioner and the father of the minors died on 20-4-2007. After the death of the petitioner's husband the minors were in the care and custody of the petitioner being their mother. The petitioner, therefore, moved an application under the Guardian and Wards Act, 1890 for her appointment as the guardian of the person and property of the minors. The said petition was allowed on 25-3-2008 by the learned Guardian Judge, Pakpattan Sharif. The minors are stated to have been abducted by respondents Nos.3 and 4 on 17-2-2010 at about 1-00 p.m. on their way back from school. A petition under Section 491 of the Cr.P.C. was filed by the present petitioner before the learned Sessions Judge Pakpattan Sharif for recovery of the minors. The said petition was, however, dismissed through order dated 16-3-2010.

3. Feeling aggrieved the petitioner has challenged the order dated 16-3-2010 and has also prayed that the minors be recovered from the illegal and improper custody of respondents Nos. 2 and 3 and may be handed over to the petitioner who is legally entitled to their custody.

4. Notices were issued in the first instance to respondents Nos. 3 and 4 for 30-3-2010. On the said date after hearing the preliminary submissions of the parties, respondents Nos. 3 and 4 were directed to produce the minors before the Court. On the date so fixed the parties requested that time be given to them for seeking an out of Court settlement. Thereafter the petition was adjourned from time to time for allowing the parties to effect a compromise but to no avail and on 28-4-2010 the parties learned counsel requested that the petition be decided on merits.

5. The learned counsel for the petitioner has reiterated the contents of the petition in support of his contentions and has assailed the order of the learned Sessions Judge, Pakpattan Sharif by submitting that the same has been passed against the law on the subject. It is contended that the learned Sessions Judge totally ignored the fact that the petitioner was the duly appointed guardian of the person and property of the minors and that the minors had been illegally removed from the lawful custody of the petitioner. It is further contended that respondents Nos. 3 and 4 who are the maternal grandfather and maternal uncle respectively of the minors have removed the minors from the custody of the petitioner primarily with a view to usurping the property of the minors (both movable and immovable) which the minors have inherited from their father. The said property is of immense value and, inter alia, consists of large tracts of land. It is further contended that the pendency of respondent No.3's (fresh) petition for his appointment as a guardian of the minors before the learned Guardian Judge, Pakpattan Sharif should not have detracted the learned Sessions Judge from passing an order in favour of the petitioner under section 491 of the Cr.P.C. He further contends that in any case respondent No.3's present petition before the learned Guardian Judge is for his appointment as the guardian of the minors. The said petition is not maintainable as the petitioner has already been appointed as the guardian of the person and property of the minors through order dated 25-3-2008. Respondent No.3 never challenged the said order. At best, without conceding, respondent No.3 could have filed an application under section 39 of the Guardian and Wards Act, 1890, for removal of the petitioner as the minors guardian.

6. Relies on the judgments reported as Mst. Naziran Bibi v. Additional District Judge, Mianwali and 2 others (2006 MLD 493), Mst. Rehana v. Arshad Khan and 2 others (1991 MLD 1395), Mst. Nasim Akhtar v. Qazi Muhammad Zubair (1992 MLD 70), Musarat Waris v. Muhammad Afsar Khan and 4 others (2006 MLD 231), Ms. Louise Anne Fairley through Special Attorney v. Sajjad Ahmad Rana and 2 others (PLD 2007 Lahore 293), Marian Khan v. Mehryar Salim and another (2008 YLR 2647), Shaireen Abdullah v. Mehmood Akhtar (PLD 1993 Lahore 466) and Nisar Muhammad and another v. Sultan Zari (PLD 1997 SC 852).

7. During the pendency of the petition the paternal aunt of the minors became a party to the proceedings through C.M. No.1735 of 2010. The learned counsel for the minors' paternal aunt basically adopted the arguments advanced by the learned counsel for the petitioner and in support of his contentions has relied upon the judgments reported as 1997 PSC (Cr.) 839, PLD 1995 SC 633, 2005 SCMR 1410, PLD 1970 AJ&K 13, 2006 MLD 23 and 1995 SCMR 1283.

8. The learned counsel for the respondents has controverted the stance of the petitioner and submits that the minors have been in the custody of the respondents, ever since the death of the minors' father. He has called into question the character of the petitioner and has levelled serious allegations in this behalf. In this respect he has referred to the impugned order of the learned Sessions Judge, Pakpattan Sharif. In view thereof he submits that the petitioner is not a fit person to be given the custody of the minors. He has also contended that on 2-2-2010 the petitioner has remarried and is currently living with her new husband. The said husband is the widower of the minors' paternal aunt who had died sometime back. He has also alleged that it is apprehended that the petitioner and her new husband shall usurp/grab the property of the minors. It is from the point of view of safeguarding the minors' property that respondent No.3 has filed the present petition for his appointment as guardian of the minors before the learned Guardian Judge. He further submits that it is the court of the learned Guardian Judge which under the law has jurisdiction in matters of custody. Prays for dismissal of the petition. Relies on the judgments reported Mst. Ayisha Bibi v. Safdar Ali Shah and another (2005 CLC 894), Sughran Bibi v. Akhtar Hussain 2007 CLC 474, Ch. Nazir Ahmad v. Additional District Judge III, Sahiwal and others (1998 SCMR 1359), Muhammad Naeem Ahmad v. Asgeeri (2002 YLR 2854), Mst. Zubeda Khanum v. The District Judge, Karachi Sought and 2 others (1988 CLC 556 (Karachi)) and Mst. Hamida Bibi v. Station House Officer and others (1998 PCr.LJ 140).

9. Arguments heard. Record perused.

10. I have also heard the views of the minors both in open Court and also in the privacy of my Chambers. I find that all minors are intelligent and well-behaved children. The elder two minors are around the age of 13 years. They are both mature for their age not only mentally but also physically. They have also unfortunately repeated the allegations against their mother vis-a-vis her moral character. They contend that they have been living with their maternal relatives since the death of their father. They have absolutely refused to reside with their mother especially as long as she is married to her new husband. The younger two minors have also refused to reside with the petitioner. The minors appear to be happy in the company of their maternal relatives including respondents Nos. 3 and 4.

11. From the contentions of the parties and also having heard the minors it appears that the bone of contention seems to be the re-marriage of the petitioner. The minors especially the elder boy is not happy about the same. From the opposing stands and contentions of the parties it cannot be established with exactitude as to when the minors were removed from the custody of the petitioner, if at all. From a perusal of the order of the learned Guardian Judge whereby the petitioner was appointed as their guardian, it is not clear if the minors were ever produced before that learned court.

12. Be that as it may, it is settled law that normally in constitutional petitions including those seeking a writ of habeas corpus this Court does not go into factual controversies nor a detailed inquiry is held. It is also settled law that normally in such like cases this Court can pass an order using its inherent jurisdiction in the larger interest and welfare of the minors. Reliance in this regard is placed on the judgments reported as Mst. Khalid Parveen v. Muhammad Sultan Mehmood and another (PLD 2004 SC 1) and Naziha Ghazali v. The State and another (2001 SCMR 1782).

13. The authorities cited at the bar by the parties are not attracted in the facts and circumstances of the case.

14. As to the petitioner's objection regarding maintainability of respondent No.3's petition for his appointment as the minors' guardian pending before the learned Guardian Judge, Pakpattan Sharif, suffice it to say that the petitioner has objected to the maintainability of the petition before the said learned Court and the petitioner would have ample opportunity to substantiate her case. Needless to add that the said learned Court is bound to decide this question in accordance with law.

15. Under the circumstances and especially given the view of the minors I do not feel inclined to interfere in the matter in the extraordinary constitutional jurisdiction of this Court. Moreover, the matter is sub judice before the learned Guardian Judge, Pakpattan Sharif. This petition is, there-fore, dismissed with no order as to costs.

16. It is, however, observed that whilst deciding respondent No.3's guardian petition the Guardian Judge seized of the matter shall proceed strictly in accordance with law and shall decide the petition on merits without being influenced by any observation made in this order. He shall also ensure that the property of the minors (both movable and immovable) is adequately safeguarded. In this respect it is added that detail of the immovable property of the minors was provided by the parties during pendency of the petition and is part of the record. H.B.T./A-222/L Petition dismissed.