' SYED HAMID ALI SHAH, J.---Mst. Shagufta Yasmeen, the petitioner, filed the instant petition under section 491, Cr.P.C. For the production of her son namely Hamza (six and half years of age) who is a British National and had travelled to Pakistan on British Passport bearing No,036431727. During his stay at the house of his maternal aunt, respondent No,1 statedly came and snatched the minor forcibly on 20-11-2004. Petitioner immediately reported the matter to the Police and thereafter moved application dated 16-11-2004 in this respect. On failure of Police to take an action for return of the minor to the petitioner, the petitioner filed the instant petition in this Court. Respondent No,1 contested the petition, submitted his reply raised various objections, including the objection as to the maintainability of the instant petition. Respondent took the defence that petitioner left the house of the answering respondent on the eve of Eid on 15-11-2004 and voluntarily left the minor at his house. He denied the allegation that minor was snatched.
2. Learned counsel for the petitioner has submitted that minor was living with the petitioner in U.K and travelled to Pakistan with her. The relationship between the petitioner and respondent No,1 was strained and they were living separately. Respondent No,1 is working in Lahore Metropolitan Corporation, while petitioner is living in U.K. With her son. He has further submitted that the minor was snatched forcibly from the custody of the petitioner and as such the instant petition has competently been filed. The respondent No,1 instead of claiming the custody of the minor by resorting to the provisions of Guardians and Wards Act, 1890, has adopted illegal course of snatching the minor. He has referred to the cases of "Hina Jilani, Director of AGHS Legal Aid Cell v.
Sohail Butt" (PLD 1995 Lahore 151) to contend that mother has the right to take the child to the place of her original abode. The jurisdiction under section 491, Cr.P.C. Is to direct production of person so that he could be dealt with in accordance with law. He then referred to the case of "Rubia Ayaz Khan v. The State" (PLD 2001 Karachi 197) wherein it was held that in appropriate cases the Court under section 491, Cr.P.C. If it reaches the conclusion that the minor has illegally been removed from the custody of a person who was holding his custody lawfully, the Court is empowered under section 491, Cr.P.C. To pass appropriate orders with regard to the custody of minor subject to the provisions of Guardians and Wards Act, 1890.
3. Learned counsel for respondent No,1, on the other hand, has argued that the minor is 6-1/2 years old and it is the right time when his custody is given to the father. He submitted further that the petitioner will take the minor out of the jurisdiction of this Court and this ground is singly sufficient to grant the custody of minor to respondent No,l. He has argued that the petition under section 491, Cr.P.C. Has limited scope, the question of the custody of the minor can be resolved only under the provisions of Guardians and Wards Act, 1890 by initiating the proceedings under section 25 of the Act. Exercise of unfettered jurisdiction, under section 491, Cr.P.C. Amounts to overstepping the jurisdiction of Guardian Judge. He in support of this contention has referred to the cases of "Muhammad Javed Omarao v. Miss Uzma Vahid" (1988 SCMR 1891); "Abdur Rehman Khakwani and another v. Abdul Majeed Khan Khakwani and 2 others" (1997 SCMR 1480); Mst. Ayesha v. Nazir and 2 others" (1981 SCMR 301). Learned counsel for respondent No,1 then argued that the minor was statedly snatched on 20-11-2004 and the instant habeas petition has been filed on 3-3-2005 with the delay of more than four months and this fact alone disentitles the petitioner from the relief under section 491, Cr.P.C. He in support of this contention has placed reliance on the case of "Naziha Ghazali v. The State" (2001 SCMR 1782).
4. Heard learned counsel for the parties at length and examined the record.
5. It is an admitted fact that minor has travelled to Pakistan with his mother and was residing with her in U.K., before his arrival to Pakistan. The parties are admittedly living separately, the petitioner resides in U.K. While respondent No,1 in Pakistan. The stance of respondent No,1 that petitioner has herself handed over the minor to the petitioner on the eve of Eid-ul-Fitr cannot be believed specially in the circumstances when the petitioner immediately reported the matter to Police and respondent No,1 has failed to provide any evidence to this effect. The fact that minor is resident of U.K. And has a British Nationality has not been denied. With this background, I will first take up the objection of respondent Nol . As to the competency of the instant proceedings. The scope of the proceedings under section 491, Cr.P.C. Has been dealt by the apex Court on various occasions and the law is now well-settled that a person may have a right to move the Guardian Court for the custody of a minor but he can in appropriate cases approach this Court for the restoration of the custody of a minor if the minor has been illegally removed from his custody. The provisions of Guardians and Wards Act, (Act VIII of 1890) do not completely oust the jurisdiction under section 491, Cr.P.C.
However, such jurisdiction being extraordinary in nature be sparingly used as the jurisdiction in such matters rests in the Court under Guardians and Wards Act, 1890.
6. The scope and jurisdiction under section 491, Cr.P.C. Was examined and viewed by the apex Court in its various judgments. Reference can be made to:--
(i) It was held in the case of "Muhammad Khalil-ur-Rehan v. Shabana Rehana and another" (PLD 1995 SC 633) that jurisdiction of the Court is not barred under section 491, Cr.P.C. To pass appropriate order with regard to the custody of a minor who has illegally been removed from the custody of a person on account of provisions of Guardians and Wards Act, 1890.
(ii) It was observed in the case of "Muhammad Javed Omarao v. Miss Uzma Vahid" (1988 SCMR 1891) "that two matters, one dealt with by section 491, Cr.P.C. And the other under the Guardians and Wards Act, are entirely different and there is no question of one excluding the other, the one overlapping the other, or the one destroying the other. That there is no repugnancy between the said two provisions."
(iii) It was held in the case of "Nisar Muhammad v. Sultan Zarin" (PLD 1997 SC 852) that availability of another legal remedy is no bar. Availability of another remedy at law, such as the remedy under the Guardians and Wards Act, 1890 for obtaining custody of a minor child is not a valid ground for refusing an application for habeas corpus by the parents or guardian of the minor who is entitled to have his or her custody, where the minor is being illegally detained by another person. The Court, however, at the same time observed that the power under section 491, Cr.P.C. Should sparingly be used because the plenary jurisdiction in the matter rests under other laws in other forums of special jurisdiction who should be normally allowed to exercise it in accordance with law.
(iv) It was held in the case of "Mst Ghulam Fatima v. The State" (1988SCMR 289) that pendency of the guardianship matter of minor before Family Court would not affect the proceedings under section 491, Cr.P.C.
(v) In the case of "Mst. Shaista Naz v. Muhammad Naeem Ahmad" (2004 SCMR 990) it was held as under:-- "There is no cavil to the proposition that in the matters pertaining to the custody of minors of tender age, the High Court is empowered to issue directions in the nature of habeas corpus under section 491, Cr.P.C., if the custody of the minor was illegally or improperly disturbed. Section 491, Cr.P.C.
Provides a more efficacious, speedy and appropriate remedy in a case of illegal or improper custody of minor and the High Court can pass an order regarding the temporary custody without prejudice to the rights of the parties for final determination of the dispute pertaining to the custody of the minor by the Guardians and Wards Court, but the remedy under section 491, Cr.P.C. Is not available to a person for seeking declaration regarding his suitability for having custody of minor on any ground which is linked with the welfare of minor. The jurisdiction of High Court under section 491, Cr.P.C. Can only be invoked in a case of illegal and improper custody and not for any other consideration including the welfare of the minor. The right of Hazanat having the force of an Injunction of Islam is an accepted principle of Islamic Law and a female after re-marriage may be disqualified to exercise this right for a mother on account of re-marriage is not absolutely to be entrusted the custody of a minor child rather on contracting second marriage she may lose only the preferential right of the custody. The High Court in exercise of its power under section 491, Cr.P.C. Undoubtedly can restore the custody of a minor as an interim measure to the person entitled to it if the child is found in illegal or improper custody for but a party seeking custody of a minor child claiming preferential right or on any other ground relating to the welfare of minor, should approach the Guardians and Wards Court which is the proper forum for determ ination of such dispute in the light of evidence of the parties".
7. Having given my careful consideration to the above case-law and following the dictum laid down by the august Supreme Court, I find that this Court has the jurisdiction in appropriate cases, to issue direction in the nature of habeas corpus under section 491, Cr.P.C. And restore the custody to the person, from whom the child was forcibly snatched. The B petitioner is not claiming the custody of the minor, being her preferential right or on the ground relating to the welfare of the minor but on the score that the minor was forcibly snatched and is being kept by respondent No,1 illegally.
8. The minor is permanently settled in U.K., where he is living with his mother and due to his forcible snatching by respondent. No,1, minor is being deprived of proper education and better schooling.
People aspire to get their children admitted in the institutions in the countries like U.K. But in the instant case the minor is being kept away from this facility. Additionally the minor is epileptic needs consistent care and proper treatment which in the present circumstances is available to the minor only in the custody of his mother.
9. The objection of respondent No,1 regarding filing of instant petition with the delay of three months has no force as the minor was snatched on 20-11-2004 and the petitioner immediately approached the local Police. Her application was received by S.H.O. On 27-11-2004, which is diaried at 70 SB.LA.
10. Now I revert to the question regarding the removal of the minor from the jurisdiction of the Court.
The minor, prior to his forcible snatching was not living permanently within the jurisdiction of the Courts in Pakistan. He is a British Citizen settled in U.K. And was not resident of Pakistan although he holds dual nationality. The objection of respondent No,1 as such has no force. While holding so I find support from the decision of learned Division Bench of this Court in the case of "Ms. Hina Gilani Director of AGHS Legal Aid Cell v. Sohail Butt" (PLD 1995 Lahore 151) wherein, while entertaining the petition under section 491, Cr.P.C. The mother was allowed to take child to his native place.
11. Respondent No,1 has not so far instituted the proceedings under Guardians and Wards Act, 1890.
The question of the custody of the minor, keeping in view the welfare of the minor can be determined by the Guardian Judge. The petition in hand has been filed on the ground that the minor has been snatched forcibly and the same is decided on this ground alone. Respondent No,1 can claim the custody of minor. Guardian Judge, if approached can determine the question of custody of minor keeping in view the principles of Islamic Law and the welfare of minor. The finding and observations made in the instant petition are tentative in nature. The order of Guardian Judge under the provisions of Guardians and Wards Act, 1890 shall hold the field, while holding so I am fortified by the decision of case "Ghulam Fatima v. State" (1988 SCMR 289).
12. Lastly the petitioner has given an undertaking that she will provide a free access to respondent No,1 to see the minor and allow him to meet his son as and when he so desires. She has also furnished written undertaking to the effect that the respondent No,1 shall be provided opportunity to keep the minor during long vacations (at her expenses). She will bring the minor to Pakistan once a year during long vacations, so that respondent No,1 be provided opportunity to meet and keep the minor during this period. Petitioner has undertaken to bear all the expenses in this respect.
Keeping in view the written undertaking of the petitioner, she is directed to hand over the minor, once in a calendar year, to the respondent No,1, in the Court of Guardian Judge, Lahore.
Respondent No,1 will furnish before the Guardian Judge undertaking that he will return the minor back to his mother at the end of vacation.
13. For the foregoing, the instant petition is allowed and it directed that custody of the minor be restored back to his mother.