Habeas Corpus

Held: Detenue was arrested on the basis of information taken from "Travel Eye App" from Bus Terminal when he was travelling from one city to another city

In "Travel Eye App" status of the detenue was shown as absconder (P.O.) in a criminal case registered in another city of another province

Soon after arrest of detenue it was accordingly intimated to the concerned police station

Although law provided ample mechanism and guidelines for police officers who had made arrest of accused person(s), yet no such guideline was provided for police/police station, to whom, such accused was required/involved in criminal cases except S.58, Cr.P.C, wherein, police officer was authorized to pursue and arrest such persons from any place in Pakistan

High Court directed to bring matter into the notice of quarters concerned (Legislation) in order to make laws, to regularize procedure/methods for law enforcement agencies regarding accused/suspects arrested with the help of afore-referred computer Apps., as no Law / Procedure / Rules and Regulations were available in such regard

Constitutional petition was disposed of accused.

On the report, submitted by the Judicial Magistrate, the Trial Court imposed costs of Rs. 10,000 each on SHO and other officials of the police station

Validity

In the present case, facts, circumstances, the statements of the delinquent and the reports showed that without a, doubt the two persons were being detained at the police station, without any entry either registered under S.154,Cr.P.C., or in the Station Diary of the said police station, hence without any legal justification

Nothing was brought on record to show that said two detainees were involved in any case or any investigation was pending against them

Fact of recovery of two persons under illegal confinement from the same police station clearly pointed out towards the state of affairs at the said police station, which was being used as a detention center for illegal confinement of these citizens, for whose protection the said police station was actually established

Illegal confinement of a citizen impinged upon his personal liberty and fundamental rights guaranteed under the Constitution of Pakistan, especially when such act was conducted by those who were appointed and duty bound to ensure and protect the life and liberty of the detainees

In the present case, the Trial Court took a very lenient view by imposing costs of Rs. 10,000/- each, thus, no illegality could be pointed out in the order passed by the Trial Court, which order was upheld

Application was dismissed, in circumstances.

Order passed by Ex-officio Justice of Peace, directed the concerned SHO to treat the said application as a formal complaint and if cognizable offence was made out during the inquiry, register the FIR in accordance with law

Validity

Apparently, there was convoluted dispute between all the respective parties pertaining to the marriage between the son of the applicant No.1 and the daughter of respondent No. 5

It was apparent that even the applicant No.1 preferred an application under S.491 Cr.P.C for the recovery of his son, who he claimed was missing and was in the custody of respondent No. 5

Further, applicant had also filed an application under Ss.22-A & 22-B, Cr.P.C.

Sister of respondent No. 5 also lodged FIR against the present applicants and his allegedly missing son

As per record, the Ex-officio Justice of Peace had exceeded the scope of jurisdiction under S.491, Cr.P.C.

Scope of S.491 Cr.P.C. was limited solely to the recovery of a person from illegal or improper detention, which was evident from the plain reading of the provision itself

Evident that the directions passed by the Ex-officio Justice of Peace were beyond the scope of the powers available and exercisable even by the High Court

Consequently, Application was allowed by setting aside the impugned order.

Alleged detenue was produced by police before High Court and the alleged detenue unequivocally affirmed that she had contracted marriage with petitioner of her own choice and expressed her desire to reside with him, explicitly declining to return to her parents

Even during stay of alleged detenueat Crisis Centre, she had consistently maintained such position

Held: Alleged detenue had attained puberty and had given free and voluntary consent; she was at liberty to reside with the petitioner

Marriage in question could not be invalidated under the provisions of Islamabad Capital Territory Child Marriage Restraint Act, 2025, rather it stipulated punishment for those participating or promoting the same

Marriage contracted inter se the parties was not in contravention to the injunctions of Islam or any statutory provision

Constitutional petition was disposed of accordingly.

Petitioner filed a petition for the recovery of his daughter from the alleged illegal and unlawful custody of private respondent

Held: Detenue had been produced by SHO of concerned Police Station in pursuance of a direction issued by the Court

Detenue stated that she contracted marriage with private respondent out of her sweet will, free consent and without any duress and she was living with her husband and she was not abducted by any person, nor she was kept in illegal confinement by anybody

Detenue refused to accompany her father/ petitioner expressing apprehension to her life as well as life of her husband at his hands

Detenue appeared to have attained a person of the age of discretion and was found to have attained puberty, as such she was competent to enter into marriage with any person of her own choice and no consent of any wali or guardian was required for that purpose

Detenue further stated that her father/petitioner had registered FIR for offence under S.365, P.P.C, against unknown persons, wherein she got recorded her statement under S.164, Cr.P.C before the Judicial Magistrate, categorically refuting the story of her abduction

Since detenue happened to be a grownup female and free citizen of this country, hence she could not be forced to reside along with her father/petitioner against her wishes

Petition was dismissed, in circumstances.

Consequently, FIR had been registered under Ss.302, 353, 186 & 34 P.P.C, read with S.13-2(a) of Pakistan Arms Ordinance, 1965

Tragic loss of two young men in an alleged police encounter under suspicious circumstances had cast a long shadow over the entire chain of incidents

Mishandling of their bodies and the botched investigation had added fuel to the fire, making the entire affair highly dubious

Police authorities had opened a pandora's box, allowing a cascade of doubts and mistrust to spill forth, tarnishing the credibility of the entire operation

Incident, shrouded in a fog of uncertainty, called for a thorough and transparent inquiry to clear the air and restore faith in the criminal justice system

Petition was disposed of accordingly.

Held, that at the heart of our criminal justice system, treatment of child offenders should be guided by reformative approach

Young individuals, often led astray by difficult circumstances, deserve a chance to find their way back to normal life and become valuable members of society

By focusing on reformation rather than punishment, we address root causes of their behaviour

Society must give juvenile offenders the tools they need to succeed and prevent them from returning to a life of crime

Each child reformed is a success for community, showing that with right support, everyone can change for the better

Effective implementation of Juvenile Justice System Act, 2018 requires a multi-faceted approach involving all stakeholders

By adhering to the provision of Juvenile Justice System Act, 2018, it can be ensured that criminal justice system is fair, humane, and geared towards rehabilitation of juvenile offenders

Detenu and his siblings, having suffered neglect and destitution, were sent to embrace of Child Protection Bureau

Custody of minor would be regulated by Child Protection Court to undertake all necessary measures to ensure that such vulnerable children were safeguarded from future involvement in any unwanted activities

High Court expected from State to fulfill its obligation to nurture and shield such ill-fated minors

High Court directed investigating agency to dismantle gangs exploiting minors for their nefarious designs, ensuring that such vulnerable youths would no longer be ensnared in criminal activities

Constitutional petition was disposed of accordingly.

Petitioner was father of minor children who sought their custody on the plea that respondent-mother had illegally removed them from habitual residence in Canada to Pakistan

Validity

In custody disputes, concept of child's best interest prioritizes the child's welfare and well-being above parents' interests

It requires a thorough assessment of various factors, including their physical, emotional and psychological welfare and their cultural, social and educational needs

It emphasizes that subject to their age and maturity, child's opinions and preferences should be given due consideration when determining custody arrangements, ensuring their active participation in decision-making

Decisions must not discriminate against the child based on factors such as gender, race or disability

Instead, children should be provided a safe growth and long-term happiness

Respondent-mother applied to Family Court in Lahore under S. 7 of Guardians and Wards Act, 1890 for appointment as guardian of children and her application was accepted by Family Court

Petitioner-father alleged fraud and misrepresentation by respondent-mother and had challenged that order under S. 12(2), C.P.C.

Family Court suspended its order to inquire into such allegations and matter was pending, where evidence was needed to be recorded to resolve such controversy between the parties

High Court in exercise of Constitutional jurisdiction declined to interfere in the matter and petitioner-father was to seek remedy before Family Court

Constitutional petition was disposed of accordingly.

Respondent was father of two minors, one son and one daughter, born from two different mothers who were residents of Poland

Respondent illegally removed the minors from their habitual place of residence and brought them to Pakistan

Held, that the High Court under S. 491, Cr.P.C. is empowered to issue any direction within its territorial jurisdiction to recover any minor, who has illegally been removed from custody of mother

High Court may exercise its parental jurisdiction by considering welfare of minors so as to ensure that no harm or damage is caused to them physically or emotionally by reason of their removal from habitual place of residence

Best interest and welfare of minors laid with mothers

No one was allowed to abduct minors even if he was a father

Respondent/father cheated real mothers and deprived the minors from love and affection of their real mothers, who were holding lawful custody in Poland

Minors were illegally removed from foreign jurisdiction and should be returned to their habitual place of residence

High Court directed the parties to approach Guardian Court Poland which would decide the matter in accordance with law

Respondent/father abducted minors in breach of legal obligation and commitment under the law of Poland and also violated right to life envisaged in Art. 9 of the Constitution

Respondent/father did not return minors to Poland by using religion as a tool

This was not a permissible ground to be considered in any jurisdiction, as the primary question was related to welfare of minors

Courts in Pakistan duly regard foreign judgments and discourage such parents, who abduct minors from foreign jurisdiction and come to Pakistan for their ill-motives

High Court handed over custody of both the minors to their real mothers in presence of an official from Embassy of Poland in Pakistan

Constitutional petition was allowed, in circumstances.

Record showed that the minor was put up for adoption and he was adopted by respondent No. 3 and started to live with him

Petitioner claimed herself to be the biological mother of minor and sought his custody

Maternity of the minor was determined from the Forensic Science Agency

According to the report of Forensic Science Agency, the conclusion, which had been drawn after the DNA analysis, was that the minor was the biological child of the petitioner

Adoption of a child with the purpose of providing shelter to him was virtuous and carried much reward for welfare of the child but adoption in Islam had no legal consequence

Child should be attributed to the natural parents, and not to the father or mother who had adopted him

Adoption did not create a new legal relationship which did not exist before adoption

Adoption under 'Muslim Law' did not create any kindred relationship between the adopted child and adoptive parent, whosoever

Therefore, the Court was left with no other option but to allow the petition and to hand over the custody of minor to the petitioner, who had been determined to be the biological mother of the child/minor

However, Guardian Court was the final arbitrator to adjudicate upon the question of custody of child but that did not mean that in exceptional cases when a person had no remedy to regain the custody pending adjudication by the Guardian Court

In exceptional cases where the High Court found that the interest and welfare of the minor demanded that the minor be committed immediately to the custody of his biological mother, the Court could pass an appropriate order under Art. 199 of the Constitution directing the custody of a minor to the biological mother as an interim measure pending final decision by the Guardian Court

Petition was allowed, in circumstances.

Police report showed that during the investigation of case FIR No.1048/24, robbed motor-cycle of case FIR No.71/24 was recovered at the instance of the alleged detenu and the same was taken into possession by the Investigating Officer of case FIR No.71/24 vide case diary No.1 dated 07.04.2024

Admittedly at that time the detenu was in judicial lock up but Investigating Officer intentionally avoided arresting the detenu in the said case

Notable that detenu was not nominated in case FIR No.71/24 and he was involved in the said case upon his own disclosure while in police custody which was not admissible piece of evidence

Apparently, ASI of concerned Police Station, had earlier apprehended the detenu and when the Court took notice, he opted to send him on judicial remand, and when his illegal exercise of power was brought in the notice of his high-ups by the High Court, he nurtured grudge against the detenu and in order to teach him a lesson, illegally confined him, and when the petitioner filed instant petition, he in order to save his skin, in active connivance with the SHO, created evidence against the detenu and involved him in case FIR No.71/24

Had it not been so, the Investigating Officer of said case would have arrested the detenu on the very date, when the case property was taken into possession by him

It had been established on record that ASI of concerned Police Station with the active connivance of SHO forcibly abducted the detenu and when the Court took notice of his illegal confinement, created false and fabricated evidence against him in order to save their skin, therefore, the petitioner was directed to file an application for registration of criminal case against both the said Police Officials before the District Police Officer, concerned, who shall lodge the FIR against them under the relevant provisions of law without wastage of any time, under intimation to High Court

Petition was disposed of.

Police Officer had appeared before the Court and had submitted that the detenu was arrested in connection with a case initially registered under S.381-A, P.P.C

Record transpired that earlier the detenu applied for his ad-interim pre-arrest bail in the said criminal case, which was confirmed by the Court

Investigating Officer thereafter, added offences under Ss.420, 468 & 471, P.P.C, in the case and arrested the detenu

Validity

Arrest of the accused, in blatant contravention of R. 26.21(6) of the Police Rules, 1934, and the principles enshrined within legal edifice, was both untenable and impermissible

Essence of justice demanded that once a Court had granted bail, pre-arrest or post-arrest, considering the gamut of facts and allegations, such a decision must be respected and could not be superseded by subsequent police action without first seeking judicial recourse for the cancellation of said bail

To uphold otherwise would be to sanction a travesty of justice, undermining both the authority of the judiciary and the rights of the accused

Sanctity of bail, granted after due deliberation of all pertinent facts, must remain inviolable, thereby reinforcing the paramountcy of the judiciary in the preservation of justice and the rule of law

Police Officer, by arresting the detenu without adhering to the proper legal channels, had not only disregarded the authority of the Court but also violated the rights of the detenue as enshrined under the law

Therefore, the arrest of the detenu was patently illegal having no legal justification

Petition was disposed of by declaring the arrest of the dentenu illegal.

Where the petitioner filed a Constitutional petition seeking release of his brother detained on the strength of an order under S. 3 of the Punjab Maintenance of Public Order Ordinance, 1960, the State objected to the maintainability of the petition due to non-filing of representation by the detenu before the Provincial government

Held; right to file petition of instant nature i.e. habeas corpus is remedy provided by the Constitution in all matters of illegal confinement as one of fundamental rights; it goes without saying that if arrest of a person for the purpose of "Preventive Detention" cannot be justified in the eyes of law, then there is no reason why said person should not invoke jurisdiction of High Court for his immediate release

Objection was turned down.

Petitioner / father was aggrieved of order passed by Trial Court handing over custody of minors of tender age to respondent / mother

Plea raised by petitioner / father was that custody of minors with him was not illegal

Validity

In a matter involving right of a minor to be dealt with in accordance with law under S.491, Cr.P.C., the question before the Court is not whether the child is abducted by a parent in ordinary sense

During subsistence of marriage both parents have joint custody of their minor children

In a case of matrimonial dispute or altercation between spouses, it is not necessary that children must be physically snatched from one parent to bring the matter within the scope of S.491, Cr.P.C.

In the event husband subjects his wife to abuse forcing her to leave matrimonial home, Court cannot turn a blind eye to the circumstances in which shared custody of children was transformed into sole custody

For the purposes of S.491, Cr.P.C, it is not for the Court to sit in judgment over who is at fault in matrimonial dispute but how would welfare of a child be best preserved in interim when joint custody of child shared by both parents is not an option

Trial Court while passing order in question rightly observed that the minors were of tender ages, therefore, keeping in view their welfare, custody was handed over to respondent / mother

High Court directed petitioner / father to approach Guardian Court for permanent custody of minors and declined to interfere in the order passed by Trial Court

Constitutional petition was dismissed, in circumstances.

Contemnors / accused persons were police official who resisted and obstructed Local Commissioner appointed by Court to conduct surprise raid in police station for recovery of illegal detenue

Validity

Contemnors/ accused persons attempted to obstruct administration of justice and through their acts they tended to prejudice determination of matter pending before Court of competent jurisdiction, which act constituted criminal contempt

Contemnors/accused persons had shown their high handedness and tried to interfere in a lawful process, which was likely to lower prestige of a judicial officer as well as judicial system

Acts of contemnors/accused persons were intended and calculated to impede, obstruct and divert administration and course of justice

Contemnors/accused persons physically assaulted and misbehaved with the official and snatched Roznamcha (Daily Diary of Police Station), entry book as well as cell phone from his hands and confined him within the premises of police station for 15/20 minutes by locking outer gate of police station

Police officials had committed contempt of Court and they were liable to be punished in accordance with law

High Court convicted the contemnors/accused persons for committing contempt of Court under Ss. 3 & 4 of Contempt of Court Ordinance, 2003

Reference was allowed accordingly.

Even if the children were detained by their grandmother in an improper custody in the presence of their real mother, they were liable for recovery and be handed over to the custody of real mother subject to final outcome of the petition pending adjudication between the parties before the Guardian Judge

Constitutional petition was accepted.

Where the petitioner filed a constitutional petition seeking release of his brothers detained on the strength of an order under S. 3 of the Punjab Maintenance of Public Order Ordinance, 1960, the State objected to the maintainability of the petition due to non-filing of representation by the detenues before the Provincial Government

Held; right to file petition of instant nature i.e. habeas corpus is remedy provided by the Constitution in all matters of illegal confinement as one of fundamental rights

If arrest of a person for the purpose of "Preventive Detention" cannot be justified in the eyes of law, then there is no reason why said person should not invoke jurisdiction of High Court for his immediate release

Objection was turned down.

Police Officer had appeared before the Court and had submitted detailed report, according to which complainant got recorded his supplementary statement against the alleged detenu for his involvement in a case FIR registered under S. 392, P.P.C.

Report further revealed that alleged detenu was arrested and his physical remand was obtained and the Judicial Magistrate directed the Investigating Officer to produce the accused before the Court on the date fixed

Validity

Record transpired that in supplementary statement complainant had not described any source qua the involvement of the alleged detenu in the case rather it had been mentioned that the complainant had come to know through reliable and different sources that the alleged detenu was involved in the case

No cogent and convincing evidentiary material was available against the alleged detenu on file

Record further showed that there was no date mentioned in any case diary when the alleged detenu was arrested by the police

Judicial Magistrate was under obligation to perform his duty in accordance with law because liberty of a person was involved in the case and it was incumbent upon Judicial Magistrate that while allowing the physical remand of the alleged detenu it was his prime duty to go through the evidentiary material collected by the police and presented before it but he overlooked that aspect of the matter and passed the remand order in mechanical manner, without observing the law on the subject

Thus, the order passed by the Judicial Magistrate for the physical remand of the alleged detenu was declared to be without lawful authority and the same was set aside

Petition filed under S. 491, Cr.P.C. was converted into S. 497, Cr.P.C. and the alleged detenu was admitted to post-arrest bail in circumstances

With the said observations, the petition was disposed of.

Record revealed that the petitioner had got issued his family tree (from NADRA) after about four months of institution of present petition

Respondents (accused persons) had claimed that the petitioner had given a fake name to his son

Such controversy could not be resolved without proper inquiry/trial as well as examination of record and custodian thereof

Relief, which was dependent upon determination of controversial questions of facts, could not be granted under constitutional jurisdiction

Petitioner had not disclosed the specific place and names of persons who had allegedly wrongfully confined his son (alleged detenue)

Petitioner had given contradictory statements regarding his son's status (studies, health conditions etc.)

Petitioner had, prima facie, suppressed true facts and had made attempt to get favourable order and even using a non-existant person to be the 'abductee'

Constitutional petition was dismissed with costs, in circumstances.

Petitioner (a government employee) contended that he had joined a political party, the respondents allegedly used to compel him to join a rival political party and on his refusal, they abducted his son

Held that being a government servant the petitioner could not join any political party

Total effect of such acts and omissions on part of petitioner could not be ignored lightly rather deserved an action so as to discourage such like attempts in future

Constitutional petition was dismissed with costs.

Petitioner had not disclosed in the pleadings the details of any agricultural lands under his possession especially having allotted land from Forest Department in the name of his wife

Petitioner had failed to prove his case and, in fact, had filed the present petition with mala fide intention by suppressing the real facts

Total effect of such acts and omission could not be ignored lightly rather deserved an action so as to discourage such like attempts in future

High Court directed the concerned Senior Superintendent of Police to initiate legal proceedings against the encroachers of the Forest lands

Constitutional petition was dismissed with costs.

Provision of S. 491, Cr.P.C., would not be available in a matter where the matter was not one of 'illegal/improper detention' but was that of 'abduction/kidnapping'

For allegation of abduction, the law enforcing agency, on initiation of investigation, could competently move to any place for recovery but following the procedure which included a right to get forceful ingress too

Since allegation/ claim, in the present case, was not that of improper detention but that of abduction without disclosing specific place of detention of such claimed abductee, provision of S. 491, Cr.P.C. was of no help to the petitioner to advance his case

Petitioner had failed to prove his case

Constitutional petition was dismissed with costs.

City Police Officer (C.P.O.) had appeared before the Court and had submitted detailed report, according to which a case was registered under Art. 155-C of Police Order, 2002 read with S. 342, P.P.C. against the Investigating Officer

Concerned S.H.O. (Station House Officer) was suspended and inquiry was initiated against him

Letter for explanation of poor supervision was also issued to the D.S.P. (Deputy Superintendent of Police) of concerned circle

Report was found by the High Court to be satisfactory

High Court appreciated strict and prompt action against the delinquent police officials involved in illegal detention of a woman aged 72 years

Show cause notice issued to the S.H.O. was withdrawn on his explanation that he was not aware about the detention

Petition having borne fruit was disposed of accordingly.

Petitioners alleged that their father who was residing with respondent for the last 34 years lost his mental balance, as such, respondents illegally confined him and even stopped them from meeting him

Petitioners filed a habeas corpus petition before Sessions Judge

Sessions Judge, after recording statement of the alleged detenu, dismissed the petition while observing that the detenu was enjoying good physical and mental health

Petitioners were aggrieved of said observation and sought its expunction

Validity

High Court observed that Mental Health Ordinance, 2001, was a special law and its application was limited to the subjects dealt by it

Court of Protection might not necessarily have jurisdiction over every matter involving a mentally disordered person

No exception could be taken to the impugned observations of the Sessions Judge for two reasons: firstly, the Mental Health Ordinance, 2001, did not apply to the present case as the proceedings were under S. 491, Cr.P.C. and not under S. 29 of the Mental Health Ordinance, 2001; proceedings did not involve question of appointment of guardian of detenue or any other matter covered by the Mental Health Ordinance, 2001; secondly, petitioner had taken a specific plea in his habeas corpus petition that the detenu was mentally disordered and respondents had wrongfully confined him

Sessions Judge was under bounden duty to decide both the issues and for that purpose he was required to engage with the detenu when he was brought before him to form an opinion about his mental health and then record his statement

Sessions Judge adopted the very course and the impugned observation was a part of those proceedings

Documents produced by the respondents show that the petitioners were in a dither ever since he transferred one of his properties to his daughter and were going all out to get him declared paranoid so that he could be stopped from making further alienations

Constitutional petition was dismissed with costs.

Detenu was recovered from police station and his arrest was not mentioned in Roznamcha (daily dairy) of the police station

Contention of authorities was that the detenu was arrested in investigation of a criminal case but no case dairy could be produced in support of such plea

Validity

Case diary was not personal property of investigating officer

On returning of investigating officer from investigation of case at police station, he under R. 25.54(3) of Police Rules, 1934, was to number and date each case diary mentioned at the back side of FIR available at police station in relevant FIR register

Station House Officer and investigating officer exceeded their powers and jurisdiction and committed gross misconduct which fell within the ambit of offence under S.155 (c) of Police Order, 2002

High Court directed police authorities to register FIR against the two officials

Constitutional petition was disposed of accordingly.

Guardian Court was the final arbiter for adjudicating question of custody of children and legal course for obtaining custody of child for a parent or one interested in obtaining custody of child was with Guardian Court within the meaning and scope of S.25 of Guardians and Wards Act, 1890

Where there appeared an exception to normal situation, child could not be left to suffer consequences of procedural hurdles and lethargy of system at the cost of child's welfare rather one deprived of lawful custody provided a way to invoke jurisdiction of Court under S.491, Cr.P.C. as interim measure till final arbiter would decide question of custody finally

Minors were residing with their father at place "K" and prima facie never accrued first step of abnormality i.e. 'illegal removal of child from lawful custody', which alone was sufficient to let normal legal course prevail

Matter was outside the limits of appellate criminal jurisdiction of High Court at place "L", therefore, High Court declined to interfere in the matter

Application was dismissed, in circumstances.

Habeas corpus writ is to be issued only when the person concerning whose liberty, the petition has been filed, is illegally detained by respondents in the petition

On the basis of a habeas corpus petition the power under Art. 199 of the Constitution is not to be exercised for tracing a missing person engaging an investigation agency empowered to investigate a case under the Code of Criminal Procedure

Investigation, if is in progress, is to be overseen by the criminal court.

Affidavit of alleged Nikah Khuwan had not been filed by the applicant to prima facie establish his Nikah with the alleged detainee

Applicant had got a remedy before the court of competent jurisdiction where by adducing the evidence of the nature the applicant would be in a position to establish his valid marriage with the alleged detainee

Applicant had attempted to procure the production of the alleged detainee from the house of her father, which could not be termed to be an illegal confinement

Application, besides being not maintainable, also lacked bona fides, which was liable to be dismissed

Application was dismissed in limine.

Petition under section 491, CrPC is maintainable and can be filed during pendency of application before Guardian Judge for custody of minor.

Petitioner assailed order passed by Sessions Judge whereby her application under S.491, Cr.P.C. for custody of minor was dismissed on the ground that the minor seemed comfortable in the company of his father

Validity

Lap of mother was a heavenly place and she had an inherent right to keep her children close to her bosom

Mother was a symbol of sacrifice for her children and there was no substitute of her love and affection, who showered her love and affection upon children from cradle to grave

Petitioner even otherwise had the right of hizanat under the Islamic Law as the age of minor was about 3½ years

Petitioner was entitled to the interim custody and she could not be deprived from the same until and unless decided otherwise by the Guardian Judge

Constitutional petition was allowed and custody of minor was handed over to the petitioner/mother.

High court is not supposed to decide the matter of custody of minor because it is for the Guardian Judge to decide, after recording of evidence, as to who out of the spouses is entitled to retain custody of the minor

High Court in the proceedings under S.491, Cr.P.C. has to consider the age of minor and his welfare, keeping in mind the law that when a minor child of tender age is recently removed from the custody of his mother, the mother would be entitled to his interim custody.

Jurisdiction of High Court under S.491, Cr.P.C., for recovery of minors is to be exercised sparingly and such exercise may be undertaken only in exceptional and extra-ordinary cases of real urgency keeping in view that even a Guardian Judge has the requisite powers of recovery of minors and regulating interim custody.

Petitioner/father assailed order passed by Sessions Judge whereby the respondent's/mother's application under S.491, Cr.P.C., for custody of minors was allowed

Contention of petitioner was that the minors were handed over to the petitioner in the light of compromise effected between him and his ex-wife in a family suit

Validity

Court below had only granted temporary custody of minors to the mother

Proceedings under S. 491, Cr.P.C. were summary in nature and were not intended to go beyond the summary consideration of the question essentially relevant to the alleged detention

Petitioner had not even bothered to appear before the Sessions Judge during pendency of the application

Constitutional petition was dismissed, in circumstances.

Proceedings under S.491, Cr.P.C., are summary in nature and are not intended to go beyond the summary consideration of the questions essentially relevant to the alleged detention

Court while deciding application is not required to go into question of status or relationship of the parties by holding full-fledged trial of the counter claim and it should concern itself only with the free will of the detenue.

High Court with a view to examine the bona fide of the petitioner as to whether he had contracted marriage with detenue merely as a result of his crush, momentous and impulsive passion, arising out of her bodily and behavioral charm or he had entered into the sacred bond sincerely and with religious zeal, quizzed him and he in order to fortify his bona fide as well as to forge a sense of security in monetary terms in the mind of the detenue, showed his inclination to enhance/re-affix the amount of deferred dower by submitting his sworn affidavit

High Court observed that since the petitioner had enhanced the deferred dower of alleged detenue/his wife, with his volition, therefore, the same shall be considered as integral part of nikahnama

Petition was allowed, the detenue was set at liberty to accompany her husband.

Freedom and liberty of every citizen is a fundamental right guaranteed under Arts. 4 & 9 of the Constitution of Islamic Republic of Pakistan, and its infringement tantamount to violation of fundamental rights enshrined in Arts. 2-A, 3, 4, 9, 14 & 18 of the Constitution

When a person is detained without any just cause, he may invoke jurisdiction of the High Court directly under Art. 199 of the Constitution without having recourse to alternate remedy.

Section 3 of Law Reforms Ordinance, 1972 is self-explanatory and provides that a right to file intra court appeal is not an absolute and unqualified right rather same is subject to certain limitations and conditions provided therein

Under subsection (1) of S. 3, intra court appeal is maintainable against a decree passed or final order made, by single Judge of High Court only if same is passed in exercise of its original civil jurisdiction

Similarly, although intra court appeal is maintainable against order passed by Single Judge under clause (1) of Art. 199 of the Constitution but same is not maintainable if order is made under sub-paragraph (i) of paragraph (b) of that clause.

Nikah Registrar instead of accurately filling the same with requisite / specific reply of bride or bridegroom opted to place single vertical line and also left some of the columns blank

Validity

Alleged detenue was sui-juris and major who contracted marriage with petitioner without blessings of her parents and other siblings

In order to prove his bona fides that petitioner did not contract marriage with detenue merely as a result of his crush, momentous and impulsive passion arising out of her bodily and behavioural charm or he had contracted marriage sincerely with religious zeal and to forge a sense of security in monetary terms in the mind of detenue, petitioner with his volition reaffix amount of deferred dower of alleged detenue / his wife as Rs. 1,000,000/- (ten lac)

Nikah Registrar committed clear cut violation of directions issued by High Court in an earlier case and SOP issued by Directorate General LG & CD Punjab

High Court referred the matter to District authorities for initiation of penal proceedings against Nikah Registrar / delinquent after affording opportunity of hearing to him

Constitutional petition was allowed, in circumstances.

Petitioner (mother) sought recovery of minor (daughter) aged four years, from the illegal and improper custody of respondent (father)

Respondent had filed a petition before the Guardian Court for the guardianship which was pending

Validity

Respondent (father) had contracted second marriage

Age of minor was so tender that she continuously needed proper care and protection of her mother

Contention of respondent that the snatching of minor was not recent, was not convincing

While exercising jurisdiction under S. 491, Cr.P.C., age of the female minor determined her custody until decision by Guardian Court was made

Temporary custody of minor was given to the mother (petitioner) till decision by the Guardian Court

Petition was allowed, in circumstances.

When a woman makes a prayer for security to her life, she can be lodged at 'Dar-ul-Aman' but still that woman has right to make a prayer at any stage to the Superintendent of 'Dar-ul-Aman' or to competent Court on whose order she is sent to 'Dar-ul-Aman' to release her and restore her right of liberty

Such woman, in circumstances, cannot be further kept in 'Dar-ul-Aman' under the law of land

Detenue was a sui juris and she could not be detained by any person against her wishes

No law existed that a female on mere ground of her sex must invariably be treated as a person under some sort of disability

Detenue was sui juris and was set at liberty and permitted to live her life as she was pleased within the dictates of law and faith

Marriage and gender of husband of detenue could not be resolved in such proceedings

Petitioner could agitate the same before proper forum either before Family Court or if there was any criminal case registered according to version of petitioner, then in criminal Court proceedings

Constitutional petition was disposed of accordingly.

Applicant and alleged detainee assailed order passed by Sessions Judge whereby he had assumed territorial jurisdiction to entertain the respondent's application under S.491, Cr.P.C., and had accordingly issued rule nisi for production of the alleged detainee

Contention of applicants was that they were residents of district 'K' hence the Sessions Judge at district 'T' had no jurisdiction to entertain the application

Validity

Alleged detainee was married with the applicant; their nikah was registered and in their nikahnama both the applicant and alleged detainee were shown as the permanent residents of district 'T', but district 'K' was shown as their place of residence at the time of nikah

Applicant and alleged detainee had shifted to district 'K' and after getting married had started living as a couple

Sessions Judge had failed to appreciate that more than sufficient evidence was available on record to substantiate that the applicant and detainee were not residing within its territorial jurisdiction, but were residing at district 'K'

Assumption of jurisdiction in the matter and taking cognizance therein by the court was void ab initio

Proceedings before the Sessions Judge were quashed, in circumstances.

High Court in exercise of powers under S. 491, Cr.P.C. had to exercise parental jurisdiction and was not precluded in all circumstances from giving due consideration to the welfare of minors and to ensure that no harm or damage came to them physically or emotionally by reason of breakdown of the family tie between the parents

Application under S. 491, Cr.P.C. was maintainable for just recovery of minors from illegal custody of any person

Controversy raised by the parties needed to be looked into by the Guardians Court by way of proper proceedings

Application was disposed of with direction to the petitioner to approach the concerned Guardian Court.

Proceedings under S. 491, Cr.P.C., are not available for declaring any person as guardian or for determining all the questions relating to the custody of minor because the final decision of regular custody is to be decided before the Guardian Court in the proceedings initiated by the parties claiming the custody of the minor.

Petitioner was a foreign national and she sought recovery of her two minor sons who were residing in Pakistan with her husband

Validity

High Court was competent to entertain a habeas corpus petition under Art.199 of the Constitution or S.491, Cr.P.C. and direct that a person in custody within its territorial jurisdiction be brought before it and satisfy itself that he was not being held in improper or illegal custody, more particularly when petition was made by mother who bona fide believed that children were removed from her custody by use of chicanery and thereafter forced to stay in Pakistan against her will and she could not be precluded from approaching the High Court

Proceedings in habeas corpus jurisdiction were summary in nature and High Court could not conduct detailed inquiry which was required in the matter for which the petitioner had recourse to Guardian Court which was a proper forum

High Court directed the petitioner to approach Guardian Court which Court would decide the matter in accordance with law

Constitutional petition was dismissed accordingly.

Petitioner filed petition under S.491, Cr.P.C. for issuance of an appropriate order with direction in the nature of habeas corpus

Contention of petitioner was that according to the parenting plan submitted by him and respondent in foreign court both parents would exercise joint parental authority over minors and the parents would consult each other when they planned any relocation of residence of the minors in custody of respondent

Matter of custody had already been decided by foreign courts and the minors were foreign nationals

Respondent had secretly, without consent and knowledge of the petitioner brought the minors to Pakistan

Petition was accepted and the custody of minors was handed over to the petitioner.

Petitioner being mother of minor, aged about 2 years, sought his recovery from the illegal and improper detention of minor's father

First right of hizanat regarding custody of minor laid with the petitioner

Petitioner had claimed that the minor was snatched from her custody

Petitioner had also appended her affidavit along with the petition but no counter affidavit by the respondent was filed

Petition was allowed and the custody of minor was handed over to the petitioner, in circumstances.

Guardian court is the final arbitrator to adjudicate upon the question of custody of a child but this does not mean that where a parent is holding custody of a minor lawfully and is deprived of such custody, such parent cannot seek remedy to regain the custody while the matter is sub judice before a Guardian Court

High Court, in exercise of its power under S. 491, Cr.P.C. has to exercise parental jurisdiction and is not precluded, in any circumstance, from giving due consideration to the welfare of the minor and to ensure that no harm or damage comes to him physically or emotionally by reason of breakdown of family tie between the parents.

Petitioner had filed application under Ss. 5 & 7 of Guardians and Wards Act, 1890 against his wife seeking declaration that the welfare of the minors was in their custody with father

Mother of minors had filed application under S. 491, Cr.P.C. and had prayed for their recovery and custody

Validity

Held; that none of the parties had filed application in terms of S. 25 of Guardians and Wards Act, 1890 for determination of their title as "guardian" to claim custody of the wards as against the other

Parties had chosen a defective forum for redressal of their grievance and/or claim against each other

High Court converted the petition under S. 491, Cr.P.C. into an application under S. 25 of Guardians and Wards Act, 1890 and changed the application under Ss. 5 & 7, Guardians and Wards Act, 1890 into written reply of the application

Constitutional petition was disposed of, accordingly.

Proceedings of the Sessions Court showed that the petitioner was present in earlier proceedings of similar nature, wherein daughter of petitioner was allowed to go with her husband

Such fact was deliberately suppressed by the petitioner in the present case

Petition for habeas corpus was filed on the basis of affidavit of the petitioner and it was very much apparent that the petition was filed with mala fide

Constitutional petition was dismissed.

Applicant sought recovery of minors on the ground that about 15 to 20 days before the filing of petition respondent (father of minors) came to her house and removed the custody of minors on the pretext that he would take them to market for shopping

Respondent produced certificates issued by the Principal of school, in which minors studied, to the effect that they had been studying in the school for the last several months

Admission on the part of applicant that minors had been studying in the school where respondent resided was sufficient evidence to show that their custody was with the respondent when the applicant was allegedly compelled to leave the house

Respondent was the natural guardian of the minors, custody of minors with him could not be termed as illegal

Application was dismissed, in circumstances.