The facts leading to this Revision succinctly stated are as follows :- The respondent Mst. Lal Khatoon applied to the Ilaqa Magistrate, Ahmadpur East for the issuance of warrants under section 100 of the Code of Criminal Procedure for the recovery of her daughter Mst.
Sharam Khatoon alias Shammo Mai from the custody of her grandfather Muhammad Ramzan and the two paternal uncles Ahmad Din and Noor Ahmad. Mst. Sharam Khatoon is the daughter out .Of the wedlock between Abdul Karim and Mst. Lai Khatoon respondent. The relations between the two spouses became strained resulting in separation. The case of Mst. Lai Khatoon is that by arrangement Mst. Sharam Khatoon was entrusted to her custody, and that only a week before she made an applica--tion under section 100, Cr. P. C., Noon Ahmad arid Ahmad Din, the two paternal- uncles of Mst. Sharam Khatoon, had: However, the case of the petitioner's side is that on the separation, Mst. Lai Khatoon married a stranger. Mst. Sharam Khatoon was all along with her father Abdul Karim. Abdul Karim found employment abroad, and entrusting his minor daughter to the custody of his father, namely, Muhammad Ramzan, went abroad for a job. The case of Muhammad Ramzan petitioner further is, that the respondent, by making a false and mala fide application under section 100 of the Code of Criminal-Procedure had fraudulently obtained the custody of Mst. Sharam Khatoon.
2. Learned counsel for the petitioner contends :------
(a) That Mst. Sharam Khatoon was throughout in the custody of her father, who on his departure lawfully entrusted Mst. Sharam Khatoon in the custody of the petitioner Muhammad Ramzan, who is the father of Abdul Karim and real grandfather of Mst. Sharam Khatoon ;
(b) That the child was in the custody of Muhammad Ramzan petitioner, the, grandfather, and that even according to Mst. Lal Khatoon respondent, Mst. Sharam Khatoon was admittedly in the custody of her grandfather and paternal uncles ; and
(c) That the District Magistrate bad acted without jurisdiction in giving a finding that the respondent was entitled to the custody of Mst. Sharam. Khatoon and that she was the lawful guardian, far the reason that these matters were exclusively with the jurisdiction of Family Courts as envisaged in section 5 of the Family Courts Act, Learned counsel for the petitioner has relied upon the cases reported as Sheikh Mohammad Rashid v. Mst. Sharaf Sultana (1975 P Cr. L J 678), Adnan Afzal v. Capt. Sher Afzal (PLD 1969 SC 187) and Alaf Din v. Mst. Parveen Akhtar (PLD 1970 SC 75).
According to the learned counsel this order is liable to be set aside also for the reason of having been passed ex parte, and without an opportunity of hearing to the petitioner.
3. Learned counsel appearing on behalf of the respondent con--tends ---
(a) That under section 100, Cr. P. C. As well as under section 552, Cr. P. C. It was within the competence of the learned lower Court to pass the impugned order, as it was dealing with the matter of wrongful confinement of Mst. Sharam Khatoon ;
(b) Referring to Article 254 of Mulla's Muhammadan Law the learned counsel contends that mother is the natural guardian having a preferential right to the custody of her daughter Mst. Sharam Khatoon, as against the petitioner Muhammad Ramaan, who is grand--. Father ; and
(c) That the matter decided by the learned lower Court pertained to the consequence of the two sons of the petitioner having kidnapped Mst. Sharam Khatoon, and. Not the question of guardianship.
4. Learned counsel for the respondents has relied on Ma Ngwe v. Maung Ye ((1936)37 Cr. L J 278).
The cited case is distinguishable on facts. -The-girl aged about 16 was recovered from "another man's house", whom she claimed to be her husband. She was in "another man's house" against the will of her mother who was the natural guardian; which status the mother had not surrendered by any arrangement. The position is different in the case in hand. Mst. Shammo Mai was with the father, who had attained the guardianship by mutual consent of the spouses at the time of their separation. Abdul Karim at the time of his going abroad left the child-under the care and guardianship of his fat her, in fact, the- entire family, i.e. Abdul Karim's father his brothers and the other family members lived together.
Learned counsel for the respondents has referred to another case reported. As Tulsidas Janglyadas v. Chetandas Domadas and another ((1934) 35 Cr. L J 404). This too is distinguishable on facts. In The State v. Rab Nawaz and another (PLD 1974 SC 87) the Supreme Court of Pakistan has reiterated the view that each case is decided in the context of its own facts.
If the allegation of abduction of Mst. Shammo Mai (8/10 years old), by her paternal uncles was true the Police should have registered a case of abduction and proceeded in accordance with law. The normal procedure of law cannot be permitted to be bypassed for manoeuvring a particular result.
5. Without prejudice to the merits of the case or making any comment about the custody of this child, I set aside the impugned order for the following reasons :- Section 552, Cr. P. C. Reads as follows: "Upon a complaint or a female child under the age of 16 years, for any unlawful purpose "
It is clear that the abduction or unlawful detention has to be for "any unlawful purpose" which was not the allegation before the learned Magistrate, nor it was so alleged in the application for warrants under section 100, Cr. P. C. Irrespective of the claim of the grandfather, of having been lawfully entrusted by his son Abdul Karim with the care and custody of Mst. Shammo Mai, the same cannot be termed as "for unlawful purpose". The principle enunciated in Ahmad Nawaz and 3 others u. The State (PLD 1968.Lah.97) would be equally applicable in the case of the real grandfather or the paternal uncles, in the absence of specific evidence or well-based allegations to the contrary. The claim of the, petitioner is that on the separation of the spouses by way of arrangement the care and custody of Mst. Shammo Mai was retained by the father and the mother re-married. In the application under section IOJ of the Code of Criminal Procedure, the mother herself explained that she was not in possession of the document executed in her favour at the time of separation, by virtue of which Shammo Mai was left -in her custody. She might well have foregone her right of hizanat at the time of settlement, but I will not record any finding on this aspect. Suffice it to say that the unlawful detention has to be read in conjunction with "unlawful purpose", and that is not the matter in the case in hand, further to it the impugned order has admitted been passed ex parte and without affording an opportunity of hearing to the petitioner.
6. The question of entitlement or who had better claim or better entitlement to the custody of Mst.
Shammo Mai, under the Muhammadan Law; is a matter f6r the determination of the Guardian Court. I only restore the status quo ante to the time of passing the impugned order. Mst. Shammo Mai, therefore, is directed to be handed over to her grand--father from whose custody the police took her and subsequently handed her over to the mother.
In view of the above, this revision is accepted. The impugned order, dated the 25th September, 1978, being illegal and without jurisdiction, is set aside.
I have not adverted to the merits of the case either way, and this order shall not prejudice the merits of any proceedings, civil or criminal, pending or to be instituted, in any of the Courts below.