' HAMID ALI SHAH, J.--- Briefly stated facts of the case, are that petitioner's son namely Rohail Masih was born on 5-2-2001, who was kidnapped on 15-2-2003 and Report No,45, dated 15-3-2003 was lodged in Police Station Nishtar Colony, Lahore. Petitioner was told by a woman who is a maid in a house that respondent No,3/Shaukat alias Pappu, has kidnapped the child and handed over him to respondent No,2. The child is in the wrongful confinement of respondent No,2. F.I.R. No,47 of 2005, in this respect was lodged under section 363, P.P.C.
2. Respondent No,3/Shehzad alias Pappu, on the other hand, claims that the name of the child is Muhammad Irfan, who is his real son. Shehzad further claims that he embraced Islam, got married with one Samina. Nikah was solemnized by a Moulvi of local mosque and Muhammad Irfan is child, out of this wedlock. Samina being a woman of easy virtues, left him to an unidentified destination.
3. Minor was recovered through local police and was handed over to the petitioner temporarily.
Naeem, Sub-Inspector, the Investigating Officer, investigated the matter and apprised this Court that wife of Shehzad is not traceable. The petitioner's son has not been found, despite hectic efforts.
A woman who works as a maid in some house has disclosed that Shehzad, who frequently visits that house and during his one visit, he had confessed that the minor is not his real son but an unclaimed child. This information of the Investigating Officer is insufficient to draw a conclusion as to the paternity of the minor.
4. Learned counsel for the petitioner has argued that since respondent No,3 has not been able to produce any Nikah Nama and the claim of Shahzad/respondent No,3 as to his marriage is without any proof. The respondent No,3 has failed to establish the factum of his marriage as well as the paternity of Muhammad Irfan. He added that petitioner has lodged report and thereafter F.I.R. Of his missing child. The maid has supplied definite information about the minor son of the petitioner, that he is in the illegal custody of respondents Nos.2 and 3. The minor is required to be set at liberty, after having been recovered from the illegal custody of respondents Nos.2 and 3.
5. Learned counsel for respondents Nos.2 and 3, on the other hand, contended that child is the real son of respondent No,3, out of wedlock with Samina. Adds that although the marriage is not registered but mere non-registration does not invalidate the marriage. States further that matrimonial relationship of respondent No,3 and Mst. Samina was created as a result of oral Nikah.
Learned counsel has clarified that respondent No,3 has stated that he was married with Samina, without registered Nikah but the same was recorded in the order dated 22-3-2005 that Samina lived with him, without any Nikah.
6. The learned counsel for the parties after proper instructions from their clients agreed to the resolution of their competing claims as to the paternity of the child, on the basis of D.N.A. Report.
Both the parties consented for the decision of their dispute on the basis of D.N.A. Report and bound themselves to accept the same.
7. Khanzada Mukarram Khan, Advocate on Court's call informed that the requisite facility is available in Agha Khan Hospital or at NIBGE Sargodha. In-charge, Agha Khan Hospital Collection Centre at Lahore, was called who informed that no such facility is available in their laboratory.
Khanzada Mukarram Khan, Advocate contracted CAMB (Centre for Applied Molecular Biology)
Government of Pakistan, Ministry of Science and Technology. Both the parties and Incharge CAMB were directed to get the parentage of disputed child analyzed on the basis of D.N.A. Test. To make things more transparent the samples were directed to be drawn and sealed in presence of Khanzada Mukarram Khan, Advocate. The samples were drawn on 2-4-2005 at 12-00 0-clock.
Analysis report by CAMB reached this Court in a properly sealed envelope. The parentage analysis were made by adopting the following methodology:--
(i) The D.N.A. Profile obtained from item 3.0 (disputed child) does not share one allele at each locus with the D.N.A. Profile obtained from item 1.0 (Tariq Masih son of Gamma Masih).
(ii) The D.N.A. Profile obtained from item 3.0 (disputed child) does not share one allele at each locus with the D.N.A. Profile obtained from item 2.0 (Rehana wife of Tariq Masih).
(iii) The D.N.A. Profile obtained from item 3.0 (disputed child) shares one allele of each locus with the D.N.A. Profile obtained from item 4.0 (Shahzad son of Faqir Masih).
' The laboratory (CAMB) adopting the above methodology reached the following conclusion:
(1) Tariq Masih son of Gamma Masih (1.0) and Rehana wife of Tariq Masih (2.0) are not the biological parents of disputed child (3.0).
(2) Shehzad son of Faqir Masih (4.0) is the biological father of disputed child (3.0)".
8. Conclusion of the above results is that Shahzad son of Faqir Masih is the biological father of the disputed child, while Tariq Masih and Rehana are not the biological parents of the disputed child.
9. I am conscious that the jurisdiction of High Court, in petition under section 491, Cr.P.C. Is of two- fold: firstly, to direct a person, who is illegally detained, to be brought before the Court so as to set him at liberty; and secondly, to direct production of a person so that he could be dealt with in accordance with law, and in that case detention need not be use of force. The Court, in the jurisdiction under section 491, Cr.P.C. In respect of matters relating to the custody of the minor is more parental in nature than anything else. Such dispute could not be resolved on the basis of any technicality nor on the principle of law completely divorced from the reality of situation. The superior Courts have dealt with this issue in various cases and reference in this respect, can be made to Muhammad Rafique v. Muhammad Ghafoor PLD 1972 SC 6 and Hina Jilani, Director of AGHS Legal Aid Cell v. Sohail Butt PLD 1995 Lah.
151. The instant proceedings, in the nature of petition under section 491, Cr.P.C. Do not call for the determination of the validity or otherwise; of the marriage of Shahzad alias Pappu with Samina.
Their Lordships of the Supreme Court in the case of Abdul Waheed v. Mrs, Asma Jahangir and another PLD 2004 SC 219 have settled this issue in the following manner:- "In the facts and circumstances of the case particularly in view of the stance of the alleged detenue that she was voluntarily putting up at `Dastak', the High Court clearly transgressed its jurisdiction, and by formulating the question of validity of marriage and then answering the same, assumed to itself the exclusive jurisdiction of the Family Court in such matter. The point need not be laboured further and may be concluded by observing that it was inappropriate and undesirable, if not illegal for the High Court to have determined the fate of the couple by B adjudicating the validity of marriage on the touchstone of Injunctions of Islam, in proceedings under section 491, Cr.P.C."
10. Keeping in view the above parameters qua the jurisdiction of this Court under section 491, Cr.P.C., I revert back to the present controversy. A definite proof, regarding the paternity of the disputed child, as claimed by the petitioner is lacking. There is nothing on record to prove that the son of the petitioner namely Rohail Masih was kidnapped by respondent No,3. The disputed child was recovered from respondent No,3 who, remained throughout in his custody, prior to his recovery through an order of this Court. The age of the petitioner's son is not exactly the same, as that one of the disputed child. Additionally the minor was in the custody of respondent No,3 who brought him up, which prima facie proves the claim of Shahzad in this respect. The allegation that the minor was taken into custody by respondent No,3 being unclaimed child, is without any definite proof, based on hearsay evidence, so much so the petitioner has not mentioned the name of the maid who had statedly informed him about this fact. I have no other alternative except to decide this petition on the basis of parentage analysis through D.N.A. Test, which was carried with mutual consent of the parties who have agreed further to the disposal of the petition in hand, on the basis of D.N.A. Test. Resultantly Muhammad Irfan the disputed child, being the biological son of respondent No,3, is handed over to respondent No,3 from whose custody he was recovered.
11. The Investigating Officer is directed to make every possible effort to trace the missing son of the petitioner namely Rohail Masih.
12. For the foregoing reasons, the instant petition has no force, which is dismissed accordingly.