2000 P Cr (PLP)

In compliance with this Court's order, dated 12‑2‑1999 respondents Nos. l and 2 have produced the petitioner's minor children, namely, Muhammad Naeem, Muhammad Waseem and Maria Bibi before this Court today.

2. The necessary facts leading to the present petition under section 491, Cr.P.C. are that in the year 1991 the present petitioner had contracted marriage with Sajjad Hussain, brother of respondent No.l herein, and from this wedlock three children i.e. the present alleged detenus were born. On 20‑1‑1997 allegedly Sajjad Hussain had divorced the present petitioner and statedly on 20‑5‑1997 the petitioner had contracted marriage with one Muhammad Iqbal. It is alleged in the present petition that on 8‑2‑1999 respondent No.1, brother of the petitioner's former husband, had deceitfully taken away the three minor children of the petitioner and had subsequently refused to restore them to the petitioner. This had necessitated the filing of the present petition by the petitioner before this Court.

3. It has been argued by the learned counsel for the petitioner that the petitioner is the real mother of the three minor detenus and the detenus' deceitful removal from her custody attracted the jurisdiction of this Court under section 491, Cr.P.C. In this ‑regard the learned counsel for the petitioner has placed reliance on the cases of Ahmad Sami v. Saadia Ahmad 1996 SCMR 268 and Mst. Shehnaz Khawaja v. Riaz Nasir Khawaja 1995 MLD

24. It has further been argued by the learned counsel for the petitioner that re‑marriage of the petitioner with a stranger does not ipso facto disentitle her to her right of Hazanat in respect of her real children. In this context the learned counsel for the petitioner has maintained that the father of the minor detenus i.e. Sajjad Hussain is presently living in Karachi and he has never shown any interest in upbringing or welfare of the minor detenus during their stay with the petitioner. The learned counsel has summed up his arguments by claiming that the petitioner has a better right of custody of the minors/detenus as against respondents Nos.1 and 2 who are distantly related to the minors as compared to the petitioner.‑

4. As against that the learned counsel representing respondents Nos.1 and 2 has maintained that the father of the detenus i.e. Sajjad Hussain had never left for Karachi and he is in fact living with the minors and also that the allegation of removal of the minor from the custody of the petitioner is absolutely baseless. He has also stated that the minors are also being looked after by their paternal grandmother who is residing with the minors' father. The learned counsel for respondents Nos. l and 2 has further disclosed that the alleged present husband of the petitioner, namely Muhammad Iqbal had in fact murdered a brother of the detenus' real father and regarding that incident F.I.R. No.421 of 1998 stands registered at Police. Station Mitro, District Vehari. According to him, the motive stated in that F.I.R. is illicit relations between the petitioner and the said Muhammad Iqbal. It is further stated that the said Muhammad lqbal is presently behind the bars in connection with that murder case. The learned counsel has forcefully stated that the petitioner had never been divorced by Sajjad Hussain and that she had never re‑married with the said Muhammad Iqbal. It is maintained by him that the petitioner has been living in adultery with the said Muhammad lqbal after she had voluntarily left the house of Sajjad Hussain consequent to the murder of Sajjad Hussain's brother Abid Hussain by the said Muhammad Iqbal. The learned counsel has summed up his submissions by stating that the present petitioner has suppressed all the relevant factual background in the present petition and because of her leading as immoral life she has disentitled herself to any right of Hazanat available to her regarding the minor detenus.

5. After hearing the learned counsel for the parties and attending to the relevant facts involved in this case I have found force in the submissions made by the learned counsel for respondents Nos. l and 2 that the petitioner has failed to disclose in the present petition some of the important factors which could have a direct bearing on the question of her claim to the custody of her minor children. Upon queries made from the petitioner by the Court the petitioner has failed to produce any material in support of her claim that Sajjad Hussain had actually divorced her or that she had re‑married Muhammad Iqbal after such a divorce. It is again not disputed that the said Muhammad Iqbal, who is now . statedly the present husband of the petitioner, had murdered Abid Hussain, a paternal uncle of the minor detenus.

6. The allegations of the petitioner and the counter‑allegations of the respondents in this case have made it unsafe for this Court to interfere in the A matter of custody of the minor detenus in the present proceeding‑a under section 491, Cr.P.C. In the peculiar circumstances of this case the appropriate course for the petitioner would be to approach the learned Guardian Judge with a proper application seeking custody of the minor detenus and upon such an application having been moved the learned Guardian Judge shall surely be in a better position to attend to all the factual details of this case so as to arrive at a conclusion about the welfare of the minors and their custody.

7. In this view of the matter I stave not felt persuaded to interfere in this matter and this petition is, therefore, dismissed.

8. It is, however, clarified that any observation made in the present petition shall not prejudice the learned Guardian Judge in any respect if the learned Guardian Judge is approached by the petitioner in this regard. Q.M.H./M.A.K./S‑434/L Petition dismissed.