' This criminal revision has been filed to call in question the judgment dated 22-12-2004 passed by the learned Sessions Judge, Multan, whereby the custody of minors Mst. Khadeeja and Mst. Saima was handed over to the father Muhammad Bakhsh/respondents No.2.
2. The facts giving rise to the present revision petition are that Muhammad Bakhsh respondent No.2 had contracted marriage with Mst. Kalsoom daughter of the petitioner 10/12 years ago and out of that wedlock, two daughters, namely, Mst. Khadeeja and Mst. Saima were born. Respondent No.2 had/allegedly committed the murder of his wife Mst. Kalsoom and was arrested in the murder case. After the murder of Mst. Kalsoom, the minor daughters were being brought up by their maternal grandmother Mst. Fatima/ petitioner. After his acquittal respondent No.2 contracted second marriage. He filed an application on 28-10-2004 before the learned Sessions Judge, Dera Ghazi Khan under section 552, Cr.P.C., wherein it was prayed that the custody of minor daughters may be handed over to him. The learned Sessions Judge while accepting the application of the respondent handed over the custody of the minor daughter to him vide order dated 22-12-2004.
Against the said order, the petitioner has filed this criminal revision.
3. It is contended by learned counsel for the petitioner that as respondent No.2 Muhammad Bakhsh committed the murder of his own wife Mst. Kalsoom and contracted second marriage, he was not entitled to the custody of the minor daughters and the learned Sessions Judge has passed erroneous order for handing over their custody to him; that the powers under section 552, Cr.P.C.
Can only be exercised when some minor is being illegally detained and, therefore, the learned Sessions Judge while passing the impugned order has transgressed his powers and that if the custody of the minor daughters was required by respondent No.2, he could move the Guardian Judge for their custody but he has adopted coercive measures for getting their custody. In support of his contentions, he has relied upon Muhammad Iqbal v. Additional District Judge and 2 others (2000 CLC 1264), Mst. Aisha Bibi v. Nazir and 2 others (1981 SCM R 301) and Ghulam Ullah Memon v.
Mst. Rashid Begum (1993 SCMR 793).
4. Learned counsel for the respondent while relying on section 552, Cr.P.C. Has vehemently supported the impugned order.
5. I have heard learned counsel for the parties and gone through the impugned order.
6. It is an admitted fact that respondent No.2 committed the murder of his own wife Mst. Kalsoom and contracted second marriage. And in the meantime maternal mother was only left to look after the minor children. She had been looking after them throughout the period up to when the custody of the minor was handed over to the respondent through the impugned order. The maternal grandmother has preference to retain the custody of minor maternal grand-daughters in the given circumstances. The welfare of the minor is that being a woman the maternal grand-Mother would take care of the needs of her maternal grand-daughters in the better way than the father.
Under Muslim Law of Hazanat, in the absence of mother, the mother's mother, is entitled to the custody of the female child. Anyway this aspect regarding the welfare of the minor to remain with whose custody has to be determined by the Guardian Judge, after adducing evidence on the point in issue.
7. In this view of the matter, by handing over the custody of the minors who was charged of the murder of their mother and who has contracted a second marriage, the learned Sessions Judge in exercise of powers under section 552, Cr.P.C. Has B over-stepped his jurisdiction as in view of provisions of section 552, Cr.P.C. The Sessions Judge may make an order for the immediate restoration of such a woman, who is being illegally detained, to liberty.
8. For the foregoing reasons, his criminal revision is accepted, the impugned order dated 22-12- 2004 is set aside and the custody of minor daughters, namely, Khadeeja aged 7 years and Mst.
Saima aged 5 years is handed over to Mst. Fatima petitioner who is their maternal grandmother.
However, this handing over of both minors to the petitioner would not prejudice the case of either party if respondent No.2 Muhammad Bakhsh moves to the Court of Guardian Judge under section 25 of the Guardian and Wards Act, 1890, who shall decide the matter of the custody of the minors strictly in accordance with law and strictly on merits.