Through this petition under Section 491 Cr.RC., the petitioner seeks recovery of his minor daughter namely Amna aged 4 years and 6 months stated to be in the illegal and improper custody of Respondent No, 1 Mst. Aliya. The detenue has been produced by .Respondent No, 1 as ordered. She has also produced a copy of the order dated 28.7.2007 passed by the learned Sessions Judge, Gujranwala, whereby he disposed of the petition under Section 491 Cr.P.C. filed by the petitioner, holding that "since the matter regarding the guardianship and custody of minor is pending before Competent Court of law, therefore, I am not inclined to pass any order on this application". The said order has been passed on an earlier petition filed by the petitioner.
2. Learned counsel for the petitioner has contended that the petitioner had delivered the minors to Respondent No, 1 Mst. Aliya on 10.6.2007 in pursuance of the order dated 6.6.2007 passed by the learned Sessions Judge, Gujranwala, thereafter Respondent No, 1 handed back over the two minors to the petitioner apart from the detenue Mst. Amna Bibi, who was detained on the plea that minor was sleeping and the respondent asked the petitioner to take her back the next morning, as such the respondent has forcefully detained the minor and refused to restore the custody to-the petitioner. It is further contended that earlier the petitioner had failed a petition under Section 491 cr.P.C. for the recovery of minor Amna Bibi before the learned Sessions Judge Gujranwala, who vide order dated 28.7.2007 had declined to pass any order on his application and to restore the custody of the detenue to the petitioner, hence this petition has been filed.
3. Arguments heard.
4. The law is very much clear on the point and Section 354 of the Muhammadan Law states that a female could only be disentitled to the custody of her minor child if she remarries or goes and resides at a distant place or if she leads an immoral life or she neglects to take proper care of the child. In the instant case, none of the disentitlements propounded in Section 354 of the.
Muhammadan Law applies to Respondent No,
1. Respondent No, 1 had earlier filed an application seeking recovery of her minor children, which had been declined by the learned Sessions Judge, Gujranwala, vide his order dated 6.6.2007. Thereafter the respondent had moved an application before the Guardian Judge which is pending and the schedule of meeting has been given. The detenue is of a very minor age. The respondent being real mother is entitled to have the custody of her minor daughter as she has a preferential right of Hizanat over the child. In this respect reliance is placed upon Mussarat Waris vs. Muhammad Afsar Khan and 4 others, wherein it has been held that in matters pertaining to custody of minors of tender age, High Court was empowered to issue directions in the nature of habeas corpus under Section 491 Cr.P.C. if custody of minors was improperly disturbed, then the real mother was entitled to have the custody of her son who was below the age of seven years and daughters who had not attained puberty". Reliance is also placed upon Mst. Khalida Parveen vs. Muhammad Sultan Mahmood and another (PLD 2004 SC 1), wherein it was held hat "Courts in the cases pertaining to the custody of a child were not supposed to go into the technicalities of the law and they should decide the case keeping in view mainly the welfare of the child" Reliance is also placed upon Mst. Razia Rehman vs. Station House Officer and others (PLD 2006 SC 533), wherein it was held that "Habeas Corpus Petition. Earlier decision in habeas corpus matter could not be permitted to operate as res-judicata with respondent to any such subsequent petition". Therefore, the earlier decision in the petition filed by the respondent could not operate as a res-judicata.
5. In view of the above perspective and keeping in view the authorities referred above, the minor detenue Mst. Amna Bibi is allowed to be retained by Respondent No, 1 and order dated 6.6.2007 passed by the learned Sessions Judge, Gujranwala is set aside. Resultantly, this petition is dismissed.