2017 PLP 2456 (YLR)
HALIMA — Petitioner Versus SIFT KHAN and 3 others — Respondents
| Citation | 2017 PLP 2456 (YLR) |
| Forum / Court | Gilgit-Baltistan Chief Court |
| Bench Members | Malik Haq Nawaz, J |
| Parties | HALIMA — Petitioner Versus SIFT KHAN and 3 others — Respondents |
| Primary Law | Criminal Procedure Code (V of 1898) |
Q1: What are the key laws and sections cited in 2017 PLP 2456 (YLR)?
This judgment primarily cites: Criminal Procedure Code (V of 1898) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2017 PLP 2456 (YLR)?
The case was heard and decided by the Gilgit-Baltistan Chief Court bench comprising: Malik Haq Nawaz, J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2017 PLP 2456 (YLR) (HALIMA — Petitioner Versus SIFT KHAN and 3 others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Johar Ali and Aurangzeb Qureshi for Petitioner.
Headnotes / Summary
S. 491
Scope
Minor sons, whose custody was sought by petitioner mother, were suckling babies of about two years and fifteen days respectively
Such minors required protection and care for twenty four hours and nobody, other than real mother could look after them
High Court under S.491, Cr.P.C., was clothed with extraordinary powers to issue directives in the nature of habeas corpus
Where minors were of tender age, and had been snatched from lawful custody of their mother, though the remedy was available under S. 25 of Guardians and Wards Act, 1890 but provision of S. 491, Cr.P.C., provided efficacious speedy and appropriate remedy
Section 491, Cr.P.C. protected right of a person, who had been kept under illegal or improper custody
Attending circumstances had suggested that restoration of custody of minors under S. 491, Cr.P.C., in circumstances, was necessarily required but as an interim measure
Question of custody, could be decided by the Guardian Judge
High Court directed father of minors to hand over minors to their mother
Petition was allowed accordingly. 1996 SCMR 268 and PLD 1995 SC 633 rel. Respondents Nos. 2 and 3 in person along with minors. SHO Gudai present on Court order.
Judgment & Decree
MALIK HAQ NAWAZ, J.
Briefly stated the relevant facts are that the petitioner was married with respondent No.1 and two minors namely Minhas was born on 16.7.2014 and second son was born on 11.08.2016. Matrimonial relations between the petitioner and respondent No. 1 were not smooth and as the averments made in the petition, the respondent turned out the petitioner from his house and later on divorced her. The respondent No. 1 snatched two minors and despite of best efforts, the petitioner failed to obtain the custody of minors and ultimately she knocked the door of this Court by filing a petition under section 491, Cr.P.C.
2. The petitioner was assigned to me by the Hon'ble Chief Judge and following order was passed by me in chamber on 23-08-2016. "This is a petition under section 491, Cr.P.C., filed by one Halima D/o Mustafa Khan, R/o Kakan, Tehsil Shounter District Astore, alleging that her two suckling babies have been snatched by the respondents 1 to
3. The matter being of urgent nature, Assistant Registrar (Judicial) is directed to inform acting S.P. Astore on his personal cell No. 03555550711 and his office land line No. 05817- 930000 to direct SHO Guddai to produce the minors in Court tomorrow sharp at 9 am. The order may also be sent through fax today."
3. For the purpose of ready reference section 491-A, Cr.P.C., is reproduced as under. 491.... Power to issue directions of the nature of a Habeas Corpus... Any High Court may whenever it thinks fit, direct: (a). That a person within the limits of its appellate criminal jurisdiction 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;"
4. Perusal of above section of law suggests that a person illegally or improperly detained in a public or private custody within such limit he be dealt in accordance with law.
5. Under section 491, Cr.P.C, the Chief Court is clothed with extra ordinary powers to issue directives to in the nature of habeas corpus. These proceedings are summary in nature and are decided summarily without recording evidence, though the remedy is available under section 25 of Guardians and Wards Act, but the remedy available under section 491, Cr.P.C, is definitely more efficacious, speedy and appropriate and is to be exercised without prejudice to the right of the parties to have the matter decided by a Court of competent jurisdiction.
6. No doubt (respondent. 1) is father of both the minors but the point to determine before this Court while dealing with an application under section 491, Cr.P.C., whether the minors are in illegal custody or not as alleged by the applicant.
7. In the proceeding under section 491, Cr.P.C., the Court is not to determine as to with whom the welfare of the minor lies as it is not the function of this Court and the Court is competent to try the case may determine it after recording of evidence of the parties. I, am satisfied that only the mother is entitled to have the custody of both the minors.
8. I, therefore, hold that both the minors are not under the legal custody of respondent-1 and I, accordingly direct the respondent No. 2 Hayat Khan, who is present in Court with the minors Minhas and a newly born (male) child (not yet named), to hand over the custody of the minors to the petitioner immediately as respondent No.1 is statedly serving in Pak. Army is not present in Court.
9. It was held in a judgment reported in 1996 SCMR 268 that a High Court while dealing with an application under section 491, Cr.P.C, "that custody of a minor is with an improper person, it can pass appropriate order under section 491, Cr.P.C, directing restoration of the custody of minor to an entitle person as an interim measures, leaving the parties to avail the remedy regarding custody of the minors decided by a Court of competent jurisdiction. In the said judgment it was further observed that the custody of minors who were four and two years old were rightly been handed over to the mother and reliance was also placed on an earlier judgment of the Hon'ble Supreme Court of Pakistan reported in PLD 1995 SC 633.
10. Custody of both the minors was handed over to the mother Mst. Halima in the Court and following short order was announced and dictated in the open Court:- "The custody of minors is handed over to petitioner. Respondent No. 2, who is father of respondent No. 1 is directed to handover the minors to their mother Mst. Halima Bibi. In compliance of Court order the custody of minors has been handed over to petitioner in Court. The SHO Guddai is directed to ensure safe return of the petitioner and her minors to her father home. Detail judgment to follow.
11. The result of above discussions is that the petition is allowed and disposed of in the above terms. JK/118/GB Petition allowed.