' KAZIM ALI MALIK, J.---Mst. Mahnaz, petitioner, got registered a case F.I.R. No, 22 dated 15-1-2008 under section 363, P.P.C. At Police Station Hazro District Attock, with an allegation that she was married to Wajid Khan, respondent No,3, about eight years back and from the wedlock she gave birth to two children; namely, Amina (now aged 7 years) and Arslan (now aged 5 years); that unfortunately, the relations between the spouses became strained, resulting in their separation about two and a half years before; that after separation female child was with the respondent- father while the male child Arslan was with the petitioner-mother; that on 15-2-2007 Wajid Khan, respondent forcibly took away his minor son Arslan from the legal custody of the petitioner; that the petitioner approached Wajid Khan-respondent, time and again to get back Arslan, but unsuccessfully and that Wajid Khan might have concealed Arslan, with an intention to kill him.
2. Sakhawat Hussain, Sub-Inspector, Police Station Hazro, drew up F.I.R. On the statement of Mst.
Mahnaz petitioner on 15-1-2008 in the evening and arrested Wajid Khan, respondent, the same day.
On the following day of his arrest, Wajid Khan, respondent-accused was produced before the Area Magistrate, Attock, by aforementioned Sub-Inspector with a written request for his seven days physical remand in order to recover the abductee, Arslan. The area Magistrate examined the police request in the light of the allegations set up in the F.I.R. And discharged Wajid Khan, respondent- accused after having declined the above said request of the police vide order dated 16-1-2008, Now under challenge at the instance of Mst. Mahnaz complainant-petitioner.
3. The learned counsel for the complaint-petitioner contended that the Investigating Agency arrested the respondent-accused under section 364-A, P.P.C. Exclusively triable by a Court of Session and it was beyond the allotted sphere of Area Magistrate to discharge him. The contention is misconceived. K combined examination of sections 173, 190(3), 193(1), and 63 of the Code of Criminal Procedure Code, 1898, would show that the power to discharge the accused of cases triable by himself or by Special Courts or the Court of Session exclusively remained vested with the Magistrate and not with the trial Court i.e, the Court of Session or any Special Court. A bare perusal of the provisions of sections 190(3) and 173 of the Code demonstrates that the final report (challan) in cases triable by a Court of Session is to be submitted by the police before a Magistrate and not before the trial Court directly. The Magistrate after taking cognizance of the offences exclusively triable by the Court of Session or Special Court is required to send the same to the Court of Session/Special Court for trial. This is settled principle of law that taking of cognizance of an offence is altogether different from holding of trial. I am not in agreement with the learned counsel for the petitioner-complainant that Wajid Khan, respondent-accused arrested in a case exclusively triable by the Court of Session was to be discharged by the trial Court. The Investigating Agency produced the respondent-accused before the Area Magistrate with a request of his physical remand. The Area Magistrate was not supposed to allow or disallow the police request mechanically, blindly and without application of judicial mind. The Area Magistrate while examining the request of police for physical remand of the accused was under legal obligation to examine the entire record in order to see as to whether or not, the accused was prima facie connected with any cognizable offence. The Area Magistrate discharged the accused after having disallowed the police request for his physical remand on the basis of valid grounds. Learned Magistrate rightly observed that the respondent-accused being natural guardian of his minor son Arslan was not liable to face trial on the charge of his abduction. The petitioner-complainant alleged in the F.I.R. That minor child might have been taken away for killing. Although, the Investigating Officer believed and accepted the above said allegation, resulting in apprehension of respondent-accused, yet the Area Magistrate was not expected to believe the above said allegation, which on the face of it was ridiculous,/illogical, and absurd. At the cost of repetition, it is noteworthy that no offence whatsoever was prima facie made out against the respondent- accused and, therefore, the learned Magistrate was left with no other option but to discharge the accused.
4. The Area Magistrate passed the impugned order while exercising his powers under section 63 of the Code. It is manifest from a bare perusal of section 63 of the Code that a Magistrate is competent to discharge the accused when he is taken into custody in any case triable by a Magistrate or the Court of Session or any special Court. This provision of law empowers a Magistrate to discharge arrested accused person irrespective of the fact, whether or not he himself is competent to try him in case of submission of challan against him.
5. The allegation of kidnapping the child hacLbeen made against the father. The offence of kidnapping punishable under sections 363 and 364 (A), P.P.C. Has been defined by section 361 ibid to the effect that whoever takes any minor out of the keeping of the lawful guardian of such minor without the consent of the guardian is said to kidnap such minor from' lawful guardianship. The object of the provisions of sections 361,363, and 364(A), P.P.C. Is to protect the rights of the parents with regard to the custody of the minors. Under the Mahomedan Law, the guardianship of the father does not cease even when the minor child is in the custody of the mother. Similarly, the right of guardianship of mother does not extinguish while the minor child is with the father. The father is also the legal guardian of his minor children. The legal guardian has in law constructive custody of his minor children and, therefore, if a father removes his child from the custody of his wife, he cannot be tried or convicted on the charge of kidnapping. For the sake of arguments, if it is believed that the respondent took away his minor son from the custody of his ex-wife, even then, he was not liable to face trial on the charge of kidnapping being the natural and legal guardian of the alleged abductee.
6. The most shocking aspect of the matter is that it was established on record that the minor child was not with the mother-complainant at the relevant time and therefore, there was no question of kidnapping of minor from her custody. The petitioner-complainant brought on record a photo-stat copy of divorce deed (mark 'A')* the execution and genuineness of which is not in dispute.
According to Mark-A, the respondent-accused divorced the petitioner- complainant much before the alleged occurrence under certain terms and conditions which are reproduced below in verbatim: ~ ' but at the same time this Court while exercising its constitutional jurisdiction and inherent powers is not excepted and supposed to leave the aggrieved and victimized person to the mercy of the police/Investigating Agency. I have no doubt in my mind that Wajid Khan, respondent-accused has been wronged/insulted/disgraced without any fault on his part. It is, therefore, imperative for this Court to redress the grievance of the respondent-accused by exercising inherent powers under section 561-A, Cr.P.C. I therefore, impose penalty/fine of rupees twenty thousands on Sakhawat Hussain, Sub-Inspector Police, on account of his dishonest investigation and corrupt practice detailed in the preceding paragraphs with a direction to the learned Sessions Judge, Attock, to recover the above said amount from the police official by adopting all legal means including the coercive measures, if required, and to pay the same to Wajid Khan, respondent- accused against proper receipt, under intimation to the Deputy Registrar (Judicial) of the Bench.