SYED AKHLAQ AHMED, J. - Through this writ, the petitioner has requested this Court to set aside the impugned order dated 21.7.2010 passed by the learned Sessions Judge, Attock under Section 491, Cr.P.C. And to hand over the minors to the petitioner till the decision of petition under Section 25 of the Guardians & Wards Act. It is further prayed that till the decision of this petition or the decision of the petition under Section 25 of the Guardians*& Wards Act the names of Mst. Hassan Jan/respondent No. 2 alongwith the minor may be ordered to be entered in the Exit Control List for procuring their attendance.
2. Facts giving rise to this petition are that the minors Muhammad Faraz aged about 11 years, Muhammad Ramzan aged about 8 years, Mst. Bibi Memona aged about 6 years, Muhammad Subhan aged about 5 years are sons and daughter of the petitioner and respondent No. 2 respectively. Separation between the spouses took place through Court and the minors were residing with the petitioner and they came to Pakistan with him on 17.2.2009 with the consent of respondent No. 2. After arrival in Pakistan minors were admitted in the best school for education.
They also started learning Islamic education. On 20.7.2010, respondent No. 2 moved an application by concocting a false story seeking relief of the custody of the minors under Section 491, Cr.P.C. On 21.7.2010, the said minors were illegally handed over to respondent No. 2 by respondent No. 1/Sessions Judge, Attock without considering the ingredients of Section 491, Cr.P.C.
3. It is contended that the order of respondent No. 1/Sessions Judge, Attock dated 21.7.2010 is against law and facts of the case and is liable to be set aside. Custody of the minors with the petitioner was legal as he is their real father. Section 491, Cr.P.C. Only deals with illegal and improper custody of a person.
It is further contended that after the order of respondent No. 1, the petitioner has also moved a petition, under Section 25 of the Guardians and Wards Act for the custody of minors but respondent No. 2 is not appearing and she is not available on the address given by her in the petition under Section 491, Cr.P.C. Her whereabouts alongwith the minors are not known to anyone including the petitioner. Although the passports of the minors in original are with him, there is apprehension of taking the minors abroad by her. It is therefore necessary that name of respondent No. 2 alongwith the minors be entered in the Exit Control List so that the minors could be available within the jurisdiction of this Court. It is claimed that the minors were happily living with the petitioner. The respondent No. 1 while passing the impugned order has committed illegality and acted beyond his jurisdiction by handing over the minors to respondent No. 2 by accepting her application under Section 491, Cr.P.C.
In support of his contention, learned counsel for the petitioner relied upon 2001 SCMR 1882 and PLJ 2010 Cr.C. (Lahore) 396.
4. I have heard the arguments of the learned counsel for the petitioner and have also gone through the available record.
5. Provisions of Section 491, Cr.P.C. Are not available for declaring any person as guardian or for determining all. Questions relating to the custody of the minors because final decision of the regular custody is to be made in the proceedings initiated by party claiming custody of the minors before the Guardian Court.
6. As mentioned in the writ petition, the minor Muhammad Faraz is aged about 11 years, Muhammad Ramzan is aged about 8 years, Mst Bibi Memona is aged about 6 years and Muhammad Subhan is aged about 5 years. They are, thus, sufficiently grown up children and can well express their wish. It was done to this reason that the learned Sessions Judge interviewed the minors who all with happy faces and with confidence told him that they want to go with their mother/respondent No. 2. The learned Sessions Judge, therefore, rightly given the interim, custody of the minors to their mothers/respondent No. 1 as she was their natural guardian and it was established that the petitioner had forcibly brought all the minors from Hong Kong to Pakistan.
However, the parties were allowed to approach the Guardian Court for settling down the issue of the custody of the minors on permanent basis.
7. I would like to add that the present address of respondent No. 2/Mst. Hassan Jan as given in her application under Section 491, Cr.P.C. Is Hong Kong and hot of Pakistan.
8. I find no illegality in the impugned order passed by the learned Sessions Judge, Attack. The citations relied upon by the learned counsel for the petitioner are not attracted to the peculiar facts and circumstances of the present case. The petitioner has already availed alternate remedy by filing -application under Section 25 of the Guardian and Wards Act for the custody of the minors from respondent No. 2 and the learned Guardian Judge has also taken cognizance of the matter in it. This being so, the present writ does not lie.
9. In view of the apprehension of the petitioner that respondent No. 2IMst. Hassan Jan. May not take the minors abroad, the petitioner is at liberty to move application before the learned Guardian Judge for entering her name and also the names of the minors in the Exist Control List. In case the petitioner files such application, the Guardian Judge will decide the same strictly in accordance with law without having being influenced by the order passed, by the learned Sessions Judge, Attock under Section 491, Cr.P.C. Or by this Court in the writ.
10. With this observation, the writ petition stands disposed of.