' KAZIM ALI MALIK, J.---Mst. Samina Begum alias Zarina Begum daughter of Mst. Kauser Perveen petitioner, was married to Muhammad Akram. Mst. Kanza Akram, and Hamad Raza, now aged four and three years respectively were born from the wedlock. Unfortunately relations between the spouses became strained and resultantly Mst. Samina Begum along with her above named minor children started living in desertion with her parents. On 10-10-2005 Mst. Samina Begum and her minor children from Muhammad Akram sued him for maintenance allowance and recovery of dowry effects before the learned Judge Family Court, Okara. On 13-6-2006 Mst. Samina Begum filed a suit for dissolution of marriage against Muhammad Akram. On 4-10-2006 marital tie between the spouses came to an end in consequence of a decree for dissolution of marriage. The suit for maintenance allowance came up for hearing on 2-2-2008 before the learned Judge Family Court, Okara and was disposed of in terms of compromise in the manner that Muhammad Akram paid maintenance allowance and returned dowry effects to his ex-wife Mst. Samina Begum and in lieu thereof she handed over custody of the minor children to him.
2: The second round of litigation between Muhammad Akram and his ex-wife Mst. Samina Begum started when she made an application under section 491, Cr.P.C. Before the learned Sessions Judge, Okara with a request for recovery of her minor children from improper custody of Muhammad Akram. The learned Sessions. Judge got recovered the minor children from Muhammad Akram and then handed over their custody to him vide order dated 5-4-2008 in the light of order dated 2-2-2008 by the learned Judge Family Court, referred to above. On 20-4-2008 at 'about 1-30 p.m. Mst. Samina Begum, her mother Mst. Kauser Perveen, petitioner, father Muhammad Shafi, brother Muhammad Asif and others allegedly removed the minor children from the custody of Muhammad Akram, who got registered case F.I.R. No, 280 dated 24-4-2008 under section 363 P.P.C. At Police Station Saddar Okara against them. Apprehending arrest, Mst. Samina Begum alias Zarina Begum and her parents; namely, Muhammad Shafi and Mst. Kauser Perveen, petitioner made an application for pre-arrest bail before the Court of Session, Okara, which was made over to Malik Mobeen Ahmad, learned Additional Sessions Judge. On 2-5-2008 the bail petition came up for hearing when the learned Additional Sessions Judge, allowed anticipatory bail to Mst. Samina Begum whereas the request for bail of her parents had been turned down with an observation: "As according to Judge Family Court it was decided that custody of the minors shall be with their father. Legality or illegality of the judgment shall be determined by the appellate Court as the minors have been abducted and they are yet to be recovered, therefore, pre-arrest bail of Muhammad Shafi accused and Mst. Kauser Bibi (petitioner) is dismissed whereas the pre-arrest of Mst. Zarina Bibi (daughter of the petitioner) is confirmed."
3. Mst. Kauser Perveen, petitioner could not be arrested despite rejection of her bail application by the learned Additional Sessions Judge. She approached this Court for anticipatory bail mainly on the ground that she was entitled to bail as a matter of right as she was reported against for bailable offence.
4. I called for a report from the learned Additional Sessions Judge as to how did he declined bail to the lady-petitioner in bailable offence. The learned Additional Sessions Judge supported his bail refusing order on the following grounds: "The petitioner's party by highhandedness and in spite of decision of the Court of learned Family Judge, Okara, kidnapped the minors. Although the case of petitioner Mst. Kauser Bibi did not fall within the ambit of prohibitory clause in view of Women Protection Act but she along with her husband Shafi co-accused actively participated in the abduction of children and flouted the order of learned Family Judge, Okara as well as order of worthy District and Sessions Judge, Okara in habeas petition. In peculiar circumstances of the case, although Mst. Kauser Bibi is a woman yet she along with her husband Shafi has flouted the orders of learned Family Judge, Okara as well as worthy District and Sessions Judge, Okara, therefore, her pre-arrest bail was dismissed in order to maintain the decorum of the Court's orders.
5. In the light of above noted circumstances, the following legal questions have arisen for determination by this Court:
(i) Whether or not Mst. Kauser Perveen, petitioner was entitled to bail as a matter of right in a bailable offence?
(ii) Whether or not the learned Additional Sessions Judge was possessed with jurisdiction to decline bail to the petitioner in a bailable offence?
(iii) Muhammad Akram got registered case under section 363 P.P.C. Against his ex-wife and her parents with an allegation that they removed the minor children from his custody. Section 363 P.P.C. Is a penal provision of law and not a mere rule of morality or ethics. Whether mother of the children can be prosecuted under section 363, P.P.C. For having removed her own children from the custody of their father?
(iv) At one time the mother passed on custody of the children to their father in lieu of maintenance allowance and dowry effects. Whether she was estopped once for all to re-agitate her right of custody?
(v) Whether the Investigating Officer of the criminal case went out of his allotted sphere. If so, with what legal consequences?
6. In order to answer the above said legal questions, I convert this bail petition into a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with section 561-A, Cr.P.C.
7. I find it convenient to take up each and every legal question separately.
8. Mrs. Kauser Perveen, petitioner was reported against under section 363 P.P.C. With an allegation that she along with her daughter, son and husband removed her grandchildren from the custody of their father, which is punishable with imprisonment of either description for a term, which may extend to seven years with fine. The learned Additional Sessions Judge declined bail to the woman accused. In view of Second and Third proviso to section 497, Cr.P.C. Mst. Kauser Perveen, petitioner being a woman accused should have been allowed bail by the learned Additional Sessions Judge treating the offence under section 363, P.P.C. As bailable notwithstanding anything contained in Schedule-II to the Criminal Procedure Code 1898. All offences against woman accused excepting terrorism, financial corruption and murder punishable with death or imprisonment for life or imprisonment for 10 years are bailable. The above said provisos to section 497, Cr.P.C. Have overriding effect on all laws in force on the day of promulgation of Ordinance XIII of 2006. I have already observed that the offence with which the petitioner stands charged is punishable up to seven years rigorous imprisonment only and under Criminal Law (Amendment) Ordinance, 2006 all offences against women accused are bailable excepting murder, terrorism and financial corruption. The woman-petitioner made a request for bail before the learned Additional Sessions Judge in bailable offence punishable with 7 years rigorous imprisonment and was, therefore, entitled to bail as a right. For facility of reference section 363, P.P.C. With which she stands charged and the 2nd and 3rd proviso to section 497, Cr.P.C. Where under she is entitled to bail as a right, are reproduced below in verbatim for ready reference: "Section 363, P.P.C: Whoever kidnaps any person from Pakistan or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
"Section 497 Cr.P.C. ................................. .................................
' Provided further that a woman accused of such offence shall be released on bail, as if the offence is bailable, notwithstanding anything contained in Schedule-II to this Code or any other law for the time being in force: ' Provided further that a woman may not be so released if there appear reasonable grounds for believing that she has been guilty of an offence relating to terrorism, financial corruption and murder and such offence is punishable with death or imprisonment for life or imprisonment for ten years, unless having regard to the facts and circumstances of the case, the Court directs that she may be released on bail.
' A combined examination of the above said provisions of law would provide a basis to say with certainty without any fear of contradiction that the woman petitioner has the indefeasible right to the grant of bail. I have minutely gone through the provisions of Criminal Procedure Code, 1898 and could not find any provision allowing or permitting the Court to decline bail to the accused of bail able offence, which is his/her right and is not grace or concession by the Court. The legislature regarded liberty of the woman accused as a precious asset to be preserved by the Court of law by rendering all the offences against the woman as bail able excepting terrorism, murder and financial corruption. To the hard luck of the woman petitioner, the learned Additional Sessions Judge dismissed her request for bail in a bail able offence and thus forced her to approach the High Court for the relief for which she was/is entitled as a matter of right. It is painful to note that the learned Additional Sessions Judge supported his bail refusing order in bail able offences on the ground that the woman petitioner removed her grandchildren from the custody of their father in violation of some judgment of the Family Court. For the sake of arguments if it is accepted that the mother of the minors with the help of her parents removed the minors from the custody of their father in disregard of her undertaking before the Family Court in a suit for maintenance allowance even then she was entitled to bail as a right and the learned Additional Sessions Judge was possessed with no jurisdiction to decline her bail on any ground. The learned Additional Sessions Judge supported; the bail refusing order with reference to 1st .Proviso to section 497, Cr.P.C. It appears as if 2nd and 3rd proviso to section 497, Cr.P.C. Escaped his notice or he was under the wrong impression that he was competent to decline bail to an accused of bail able offence in his discretion. Be that as it may, the bail refusing order in bail able offence being nullity in the eye of law, must be ignored.
9. Muhammad Akram, complainant got registered the case with an allegation that his ex-wife Mst.
Samina Begum alias Zarina Begum, her parents and her brother removed the minor children from his custody. Here, I would say that no offence whatsoever is made out even if the allegation set up in the F.I.R. Is believed and accepted in to. Kidnapping from lawful guardianship punishable under section 363 P.P.C. Has been defined by section 361 ibid. Under the Muslim Law dual control of the minor Children by the father and mother has been recognized. The father is a legal and natural guardian of the minor whereas right of hizanat vests in the mother of the minor. Admittedly, the parties are Sunni Muslims. In their personal law the mother is entitled to the custody of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right of hizanat of mother to the above effect continues though she is divorced by the father of the children. In the case in hand Mst. Kinza Akram and Hamad Raza, minor children were respectively aged 4 and 3 years. Their custody was handed over to their father Muhammad Akram by their mother in lieu of maintenance allowance and dowry effects in a suit for recovery of maintenance allowance and dowry article. Alleged removal of the minor children from the custody of their father by their mother and her parents falls under Exception of section 361 P.P.C., which reads: "Exception.--This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believed himself to be entitled to the lawful custody, of such child, unless such act is committed for an immoral or unlawful purpose.: The words lawful guardian' in section 361, P.P.C. Are used in a wider sense including any person lawfully interested with the care or custody of the minor. The principle of dual guardianship of the minor is by itself not repugnant to Islamic Law or law of the land. Under this conception the guardianship of the father does not cease while the minor is in the custody of mother. Again there is nothing in law to prevent the mother to agitate her right of hizanat when the minor is with the father. Father and mother cannot prosecute each other on the charge of kidnapping of their own minor children. In the case in hand the accused mother and her accused parents removed the minor daughter (4) and son (3) from the custody of complainant father resulting in registration of a case under section 363, P.P.C. At his instance. The alleged removal of minors cannot be termed as unlawful or for any immoral purpose with any stretch of imagination. It can be out of her love and affection for the children and no other motive can be attributed to her. The mere fact that at one time the mother herself passed on custody of her minor children to her ex-husband in lieu of dowry effects and maintenance allowance would not make her liable for the charge of kidnapping punishable under section 363, P.P.C. Muhammad Akram, complainant cannot be and should not be allowed to prosecute his ex-wife for criminal offence of kidnapping on the technical plea that she had waived her right of hizanat of minor children in lieu of her maintenance allowance and dowry effects. It would not be out of place to mention here that the criminal Court or the police station are not the competent and proper forums for resolution of any dispute between the parents of the minor arising out of matrimonial life particularly touching hizanat and custody of the minor. I am supported in my view by the case-law laid down in Bashir Ahmad v. The State 1971 PCr.LJ Lahore 252 and Ahmad Nawaz and three others v. The State PLD 1968 Lahore 97.
10. Mst. Samina Begum alias Zarina Begum filed suits for recovery of maintenance allowance and dowry articles and dissolution of her marriage before the learned Judge Family Court. On 2-2-2008 she passed on custody of her daughter aged four years and three years old son to her ex-husband Muhammad Akram in lieu of maintenance allowance and dowry articles. I have already observed in the preceding paragraphs that under the Muslim law she is entitled to the custody of her son Hamad Raza until the age of 7 years and for her daughter Mst. Kinza Akram until she has attained puberty. Undisputedly she has not contracted second marriage which is the only disqualification for the mother to have the custody of his female child not related to the second husband within the prohibitory degree. For two reasons, I am of the view that the agreement between Muhammad Akram, complainant and Mst. Samina Begum before the Family Court does not stand in the way of the latter to re-agitate her right of hizanat or custody of the minors before the competent forum.
Firstly, she is entitled to the custody of minor children under the personal law. Secondly, the agreement between the parties before the Family Court appears to be the result of coercion. My this conclusion is receiving support from the fact that after handing over the minors to Muhammad Akram, she approached the learned Sessions Judge, Okara with an application under section 491, Cr.P.C. For recovery of her minor children from improper custody of their father. The learned Sessions Judge turned down her request on 5-4-2008. If Mst. Samina Begum had waived her right of hizanat and custody voluntarily with her free consent before the Judge Family Court seized of trial of suit for maintenance allowance and dowry effects, she would not have moved habeas petition for the recovery of her minor children before the learned Sessions Judge. She also filed a petition under section 25 of the Guardians and Wards Act, before the learned Guardian Judge, Okara but unsuccessfully. The way she vigorously agitated and prosecuted her case and cause in respect of custody of her children, is evidence that she had been forced to hand over the minor children to her ex-husband Muhammad Akram. Even otherwise the said undertaking or agreement or contract between parents of the minors is void ab initio with no legal effect for the reasons that under the personal law Mst. Samina Begum has right of hizanat of her minor children aged 3 and 4 years enforceable under the relevant provision of Guardians and Wards Act. Section 8 of the Contract Act, 1872 lays down that every agreement by which any party thereto is restricted absolutely from enforcing his/her right in or in respect of any contract by the usual legal proceedings in the ordinary tribunals or which limits the time within which he may enforce his/her rights is void to that extent. The undertaking or agreement by the mother of the children before the learned Judge Family Court is hit by the statutory provisions of the Contract Act. Furthermore Mst.
Samina Begum was entitled to maintenance allowance and dowry effects in possession of her ex- husband as a matter of right. She was not under legal or moral obligation to waive her right of custody of the minors in lieu of maintenance allowance and dowry effects. I am unable to approve of the unholy deal between Muhammad Akram and Mst. Samina Begum before the learned Judge Family Court whereby she waived her right of hizanat of 3-4 years old children in lieu of maintenance allowance and dowry articles to which she was entitled unconditionally under the law.
11. The local police registered a case under section 363, P.P.C. On the complaint of Muhammad Akram with an allegation that the mother of the children and her parents kidnapped the minors. I am pained to say that no offence whatever including that of kidnapping was made out. The local police unauthorized and without any legal or factual justification interfered into a pure gamily dispute touching custody of the minors between their parents. The police official to whom Muhammad Akram approached for registration of a case against the mother of minors on the charge of kidnapping, was under legal obligation to refer him to the guardian Court for determination of dispute of custody. The local police encroached upon the functions and powers of the Guardian Court and this is a conduct rather misconduct, which must be deprecated.
12. For what has been stated above, I hold as under:--
(i) Mst. Kauser Perveen, petitioner was/is entitled to bail in bailable offence as a matter of right.
(ii) The learned Additional Sessions Judge, Okara was possessed with no jurisdiction to decline bail to woman-petitioner in a bailable offence on any ground
(iii) In view of exception to section 361 P.P.C. The offence of kidnapping is not made out against the mother of the children and her parents.
(iv) Mst. Samina Begum was entitled to maintenance allowance and dowry effects as a matter of right and her above said undertaking before the learned Judge Family Court in the suit for recovery of maintenance allowance and dowry effects is void ab initio and does not stand in her way to agitate her case and cause touching the question of hizanat/custody of her minor children.
(v) The local police did not remain within the allotted sphere and encroached upon the powers and functions of Judge Guardian Court.
13.For what has been discussed above, the local police cannot be and should not be allowed to proceed with investigation of the case F.I.R. No,280 of 2008 under section 363, P.P.C. Registered at Police Station Saddar, Okara as it would amount to abuse of process of law. I, therefore, quash the F.I.R.
14. The accused persons of the said case, if in custody be released forthwith, if not required to be detained in any other case. The office is directed to convey this direction to the concerned Superintendent Jail immediately through the learned Sessions Judge, Okara.