ABDUL S4MAD KHAN, J.---Instant Constitutional Petition has been filed by Mrs. Rania Ibrahim against order dated 18-10-2010 passed by District and Sessions Judge, Abbottabad whereby petition filed by her under section 491, Cr.P.C. for recovery of two minor children namely Muhammad Hassan (aged about 8 years) and Miss Mehr-un-Nisa (aged about 2-1/2 years) was dismissed on the ground that since dispute was in, between husband and wife therefore, case under section 491, Cr.P.C. was not made out hence petitioner was directed to approach competent court under Guardians and Wards Act for custody of minors.
2. It is averred in the petition that marriage in between petitioner Mrs. Rania Ibrahim daughter of Ibrahim Qureshi was solemnized with Abid Mehmood Awan (respondent No,2) on 14-4-2002 at Abbottabad whose relations were, initially, cordial and out of their wedlock two minor kids namely Muhammad Hassan and Miss Mehr-un-Nisa were born oh 23-3-2003 and 10-10-2007 respectively.
It is further added therein that subsequently relations in between them became strained in that petitioner was being dealt with cruelty and ultimately she was expelled by respondent No,2 from his house along with two minor kids a few weeks ago hence was residing in her parents house right therefrom.
3. In Para 5 of writ petition it is alleged that three weeks ago, respondent No,2 went to residence of petitioner along with his companions and forcibly took away minor children thereby restraining her to meet them and/or know qua their fate hence he was approached through respectable members of the family but all attempts in this behalf became an exercise in futility. It further transpires from contents of writ petition that lastly, petitioner was constrained to file an application under section 491, Cr.P.C. but her prayer was not acceded to as is evident from order dated 18-10- 2010 of District and Sessions Judge, Abbottabad.
4. Instant petition came up for hearing on 2-11-2010 whereupon direction was issued to S.H.O. Mir Pur Abbottabad to get minor produced before the Court on 4-11-2010 through their father namely Abid Mehmood Awan (respondent No,2) who produced the kids but in view of statement of the parties at the bar to give custody of minors to the petitioner in the meanwhile enabling them to try reunion and in turn father of respondent No,2 undertook to send Jirga of elders to petitioner for reconciliation, as such the matter was adjourned to 23-11-2010 on which date it was stated that the matter was almost patched up and the case was again put off to 24-11-2010 and finally upon intervention of President and Secretary General of High Court Bar Association, Abbottabad yet another chance was provided to the parties for 9 12-2010 when Mr. Nauman Shams Advocate informed the Court that dispute can not be got settled and that he would withdraw Writ Petition provided minors shall remain in custody of the petitioner. However, he was made to realize the situation that respondent No,2 himself produced the minors and without hesitation handed over their custody to petitioner in the meanwhile, as good gesture, but petitioner was all out to take disadvantage of measures taken by the Court for resolving dispute in between the parties because of involvement of future of the kids, but he was reluctant to care for sensitivity of the matter emanating from controversy in between the parties, therefore, there was no option for the Court but to hear Petition on merits. Needless to say that respondent No,2 categorically stated that because of minors he was even ready to live with petitioner wherever she desired and also produced a document showing that he hired a rented house in Gulshan-e-Iqbal at the instance of his father in law coupled with the fact that male child who was admitted in Iqra Academy in Class- 3 missed a paper due to hearing of this case. He further informed that inspite of the fact that as per order of the Court, minors were given to petitioner but still they were sent back to him on 5-12-2010
5. We have heard the arguments of counsel for the parties and perused case file with their assistance.
6. Precisely allegation levelled against respondent No,2 is that petitioner was deprived of custody of minor children three weeks ago when he along with companions forcibly snatched them, however, fact is to the contrary in that it has been specifically asserted in Para-3 of Writ Petition that a few weeks ago, she was expelled from the house by respondent No,2 along with minors hence it does not appeal to common sense that the children were snatched. Else, it appears no material, whatsoever, to even remotely suggest that there existed any element of snatching minors on the part of respondent No,2.
7.Facts and circumstances of the case indicate that Petition is, in fact, an attempt to obtain custody of minors although minors who time and again appeared in court were absolutely hale, hearty and quite comfortable in father's company. Claims and counter claims regarding suitability to retain custody and/or affluence, social status, background and emotional suitability were matters, which essentially were to be decided by the competent Court under Guardians and Wards Act after recording evidence to this effect. The more so, question as to whether custody of minors was snatched from petitioner by the father or for that matter petitioner voluntarily deserted the minors to be left in custody of father also needs evidence and all these questions cannot be resolved by resorting to remedy either under section 491, Cr.P.C. or Article 199 of Constitution of 1973.
8.We are mindful of the fact that proceedings in the shape of Habeas Corpus are summary in nature so as to resolve controversy in respect of illegal and improper detention of a person in public or private custody by police or a private person and the High Court is invested with powers to cause production and release of detenue but whenever dispute pertains to custody of minors in between the parties in general and husband and wife in particular, recourse to summary procedure is seldom available in that the parties can legitimately lay their respective claims under the Guardians and Wards. Act hence provisions of section 491, Cr.P.C. and Art. 199 of Constitution cannot be invoked.
' Viewing the matter from each and every angle, redressal of grievances of petitioner in given circumstances is not possible through intervention of this Court in exercise of Constitutional jurisdiction hence order passed upon application by the Court of Session is unexceptionable warranting no interference.
' As a sequel to above discussion, there being no merit in instant petition is hereby dismissed and interim order handing over custody of minors to petitioner is recalled.