1. ' GHULAM SARWAR KORAI, J.---In the present petition, the petitioner has prayed as under:--
(a) That the petition, therefore prayed that the R & P of Habeas Corpus Petition under section, 491, Cr.P.C. May please be called from the Court of honourable District and Sessions Judge, at Karachi (Malir) and after hearing the parties the impugned order dated 20-1-2010 may please be set aside in the interest of justice.
(b) Any other relief/reliefs deem fit and proper by this humble Court may also be awarded in favour of the petitioner; ' The petitioner married with the respondent No,2 in the year 1989 and from this wedlock two children were born namely (1) Syed Rehmatullah Sayed and baby Ramsha aged about 12 years and 9 months, 8 years 9 months respectively, but unfortunately due to some differences, the marriage in between the parties came to end on 19-10-2001 by virtue of Talaq. Due to interference of the well-wishers of the parties petitioner and respondent No,2 remarry on 17-10-2008 in accordance with Sunny Muslim Law at Karachi, but again started residing separately, though their Nikah is intact.
2. ' On 23-12-2009, respondent No,2 filed Cr. M.A under section 491, Cr.P.C. In the Court of learned District and Sessions Judge, Malir, Karachi against the petitioner, in which she prayed that baby Ramsha is in illegal and unlawful custody with the petitioner and she further prayed that petitioner may be directed to produce the minor and hand over the custody of baby Ramsha to her. This application was decided by learned District and Sessions Judge, Malir, Karachi and comprehensive order was passed in favour of the respondent No,2 which is impugned before this Court in this Constitution Petition.
3. ' Heard Mrs. Shamim Akhter Advocate for the petitioner and Mr. Sathi M. Ishaque, Advocate for the respondent No,2.
4. ' Advocate for the petitioner submits that though the respondent No,2 is still in the Nikah of the petitioner, but she is residing separately, petitioner filed Suit for conjugal right, in which she is not appearing before the trial Court. She further submits entitle (sic) for the custody of the minor with him. In support of his contentions, she relied union case of Naziha Ghazali v. The State and another 2001 SCMR 1782. This case is come (sic) to over ruled in the judgment of Mst. Khalida Parveen v.
5. Muhammad Sultan Mehmood and another PLD 2004 (sic) 1 and case of Razia Rehman v. S.H.O. And others PLD 2006 Supreme Court 533. The relationship of the petitioner as husband of the respondent No,2 is not disputed matter. Petitioner being father of Baby Ramsha may be natural Guardian but according to section 352 of Mohammadan Law A respondent being mother of Baby Ramsha is entitled for the custody of minor Baby Ramsha. Latest observation of the honourable Supreme Court quoted above in the similar case also favours the claim of the respondent No,2.
6. ' For the foregoing reasons, I find no merits in this petition and there is no illegality or irregularity in the order passed by the learned District and Sessions Judge, Malir, Karachi in H.C.P. No,70 of 2009 Farzana Zaher v. Syed Saeed Hamid and another, therefore, this petition being meritless is dismissed.