1. AZIZULLAH M. MEMON, J.---Mr. Muhammad Abid Rajput, Advocate has filed power on behalf of respondent No.3, which is taken on record. He has also filed ' counter affidavit, a copy whereof has been supplied to the other side in Court, which is also taken on record. Heard learned counsel for the petitioner and respondent No.3. Also heard The facts giving rise to filing of this petition are to the effect that the petitioner and respondent No.3 had married and the above named minor son was born out of the said wedlock and further that the said marriage admittedly stands dissolved by means of a decree of Khula passed by II Civil/Family Judge Karachi East, in family Suit No.825 of 2006, which was filed by the petitioner for such a purpose. It is the case of the petitioner that while the marriage was still subsisting she was turned out of his house by respondent No.3 by snatching the custody of her minor son from her, who is under the age of Hizanat; #TBS Khushi Muhammad (1988 SCM R 1234) the mother of the minor children obtained ex parte order of their custody from the Guardian Judge, but the same was set aside on application of the father, who succeeded in obtaining order for re-delivery of the children to him. The mother assailed such order by way of appeal to an Additional District Judge and by way of Revision in the High Court without success. Thereafter the mother invoked constitutional jurisdiction of the Lahore High Court, which ordered custody of the minor children to be given to the mother till final decision of the case by the Guardian Judge. While allowing the writ petition the High Court took view that it would not be in the interest of the children to shuttle them between one party or the other until the final decision of the case by the Guardian Judge. This Court declined to interfere with such order, which was held to be fair and proper. In the case of Ahmed Sami (1996 SCM R 268), a learned Bench of this Court took view that a Guardian Court is the final arbitrator to adjudicate upon the question of custody of child, but this did not mean that in exceptional cases when a peson who is holding the custody of the minor lawfully and has been deprived of custody of the minor, has no remedy to regain the custody pending adjudication by the Guardian Court. It was further observed that in exceptional cases where a High Court finds that the interest and welfare of the minor #TBE the petitioner alleges that the minor is likely to be taken out of country to USA, whereas respondent No.3 has alleged that relatives of the petitioner reside in Saudi Arabia and there is likelihood that, if the custody of the minor is given to the petitioner, she would take the minor with herself to Saudi Arabia, not to return back again. The question as to whether the custody of the minor was snatched from the petitioner by respondent No.3, or whether the petitioner voluntarily deserted the minor to be left in the custody of his father, respondent No .3 , essentially need, recording of evidence, and such, an exercise cannot be gone into under the provisions of section- 491, Cr.P.C.; as the same has to be carried out by the competent Court under the provisions of Guardians and Wards Act, as and when such a case before such a Court is filed. Suffice it to say that the pleadings of the parties in this application under section 491, Cr.P.C. Give a clear indication that the petitioner had been struggling for the custody of the minor in the past also, and it is the case of the respondent No.3 himself that, at least on one occasion, the custody of the said minor was entrusted to the petitioner in the past, butfor one or the other reason the custody again went to the respondent No.3.
2. In the case of Abdul Rehman Khakwani and another v. Abdul Majid Khakwani and others (1997 SCM R 1480), the Hon'ble Supreme Court was pleased to record the following observations at page 1487 of the Report:-- "Even if an order in respect of custody of a minor is passed under section 491, Cr.P.C. That is not end of the matter. In the case of demanded that the minor be observation of the Hon'ble Supreme. Court committed immediately to the of Pakistan, this application under custody of the person who was section 491, Cr.P.C. Is allowed. The minor lawfully holding the custody of the has been produced in this Court by minor before being deprived, the respondent No.3, who is directed to hand Court can pass appropriate order over the custody of the minor to the under section 491, Cr.P.C. As an petitioner/mother. The petitioner/mother interim measure pending final has taken over the custody of the minor in decision by the Guardian Court. In this Court. However, the respondent No,3 the case of Miss Hina Jilani (PLD would be at liberty to contest the custody of 1995 Lah. 151), the view taken the minor by means of filing competent was that an order by the High proceedings before the Family Court of Court under section 491, Cr.P.C. Competent jurisdiction. Was subject to order of the In order to meet with the above Guardian Judge. In the case of apprehension expressed No.3 that all the Shafqatullah (1995 PCr.LJ 1868) relatives of the petitioner are residing in the view taken was that an order Saudi Arabia, she is likely to take away the under section 491, Cr.P.C. Is minor to the said country, not to return always without prejudice to the back, it is further directed that the order of the Guardian Judge. In the case of Mst.
3. Shahnaz Khawaja petitioner shall petitioner shall furnish one surety in the (1996 M LD 24), the minor sum of Rs.500,000 (Rupees five lacs only) children living with there grand- with PR bond in the like amount, to the father showed their inclination to satisfaction of the Nazir of this Court go to their mother and in the within three days, so that she may not take circumstances minor children were the minor out of Pakistan without prior set free and allowed to go with permission of the Family Court of the person with whom wished to competent jurisdiction. Live, but the parties were left H.B.T./M-42/K . free to move the Family Court under the Guardians and Wards Act."