SYED IJAZ HUSSAIN SHAH, J.---The petitioner, Mst. Naseem Bibi, who is Khala (maternal aunt) of the alleged detenus, namely, Noman Ashraf, aged 16/17 years, Sobia Ashraf, aged 11/12 years and Tehreem Ashraf, aged 10/11 years, prayed for the recovery of the aforesaid minors maintaining that Muhammad Ashraf, father of the minors, had contracted a second marriage and since the step mother treated the minors with cruelty, therefore, their real mother, Mst. Sameena Kausar, against Muhammad Ashraf filed a suit for maintenance of the minors and in order to counter that suit Muhammad Ashraf filed an application for his appointment as a guardian for the person of the minors, but during the pendency of the said application, Mst. Sameena A Kausar died, therefore, Muhammad Ashraf succeeded in getting an ex parte order for his appointment as a guardian for the person of the minors. She maintained that the minors were living quite happily with ' their maternal grand mother, Akhtari Begum after the death of their mother but on 12-5-2011 respondents Nos.2 to 4 forcibly took them where-after they were being illegally detained.
2. A direction was issued for the production of the alleged detenus and on 1-6-2011, Muhammad Ashraf (father of the minors) brought only two alleged detenus, namely, Sobia Ashraf aged 11/12 years and Tehreem Ashraf aged 10/11 years telling that Noman Ashraf, the third alleged detenu was away to Kasur. The minors, Sobia Ashraf and Tehreem Ashraf, however, started sobbing saying that they did not want to live with their father and step mother and that they wanted to go and live with their maternal grandmother, Akhtari Begum. Sobia Ashraf further expressed that her brother, Noman Ashraf, was being forcibly detained and concealed by her father, Muhammad Ashraf at Sobia Ashraf and Thhreem Ashraf, alleged detenus, were temporarily handed over to the petitioner, who is a daughter of Akhtari Begum and she was directed to produce them on 3-6-2011, i,e, to-date and Muhammad Ashraf was once again directed to produce the minor Noman Ashraf. Today, the petitioner has brought the minors Sobia Ashraf and Tahreem Ashraf and Muhammad Ashraf has produced his son Noman Ashral, aged 16/17 years. On my query Noman Ashraf has expressed that he was being forcibly detained and that he wanted to live with his Nani Akhtari Begum. He further stated that he was beaten up also. The other two alleged detenus, namely, Sobia Ashraf and Tehreem Ashraf, as mentioned supra, also wanted to live with their Nani and today they have again expressed that they want to live with their Nani.
3. Learned counsel for the petitioner has contended that all the three minors are being illegally and forcibly detained by respondents Nos.2 to 4 and Muhammad Ashraf, father of the minors.
4. Conversely, the learned counsel for respondents Nos.2 to 4 and Muhammad Ashraf have jointly submitted that Muhammad Ashraf was appointed a guardian of the person of the minors in question by the learned Senior Civil Judge/Guardian Judge, Multan, on 11-3-2009, where-after he filed an execution petition in consequence of which he got the custody of the minors on 18-3-2011. It is further contended that the petitioner, Mst. Naseem Bibi, had moved an application on 8-6-2010, for getting the custody of the minors but the same was dismissed in default on 22-2-2011. It is also contended that Akhtari Begum/Nani of the minors had filed an application for the cancellation of a warrant issued under section 100, Cr.P.C. In the execution proceedings for the recovery of the minors, which application was dismissed by the learned Executing Court on 11-6-2010 and the writ petition filed against the said order was also dismissed by this Court on 22-10-2010. Further contend that Akhtari Begum/Nani of the minors had moved an application under section 491; Cr.P.C. Concerning the minors which application was dismissed by a learned Additional Sessions Judge, Multan, on 4-4-2011, hence, the present petition is not maintainable. It is contended that in any case, the custody of the minors by their father cannot be treated as illegal or improper.
5. Arguments heard and the available record perused.
6. A perusal of the file and the papers relating to the litigation qua the minors placed on file by the learned counsel for respondents Nos.2 to 4 shows that Muhammad Ashraf, father of the minors, had in fact, moved an, application under section 25 of the Guardians and Wards Act against his wife, Mst. Sameena Kausar for getting the custody of the minors in question, which was contested but subsequently she was proceeded ex parte and the custody petition was accepted ex parte on 11-3-2009, in favour of Muhammad Ashraf whereby Mst. Sameena Kausar respondent was directed to hand over the custody of the minors to Muhammad Ashraf and in that very application for custody of the minors, the learned Judge Family Court proceeded to appoint him as a guardian for the person of the minors also. The contention of the present petitioner is that Muhammad Ashraf had fraudulently succeeded in getting the aforesaid ex parte order, which was assailed by Mst.
Sameena Kawsar , the mother of the minors, by instituting an application for setting aside the ex parte order but unfortunately she died during the pendency of the said petition.
7. Now the questions which require determination in this case are as to whether the alleged detenus/minors were being detained illegally or improperly and as to whether the choice of the minors in question, who have candidly desired to live with their Nani (maternal grand mother) and who assert that they are being treated with cruelty at the house of their father where their step mother lives can be ignored in the presence of the aforesaid ex parte order in favour of Muhammad Ashraf, the father of the minors, appointing him a guardian for the person of the minors and entitling him to get the custody of the minors from Mst. Sameena Kausar. The operative part of the ex parte order is reproduced as under:-- "The petitioner being real father of the minors has right of custody of the minors. The respondent, who appeared through her counsel Muhammad Ashraf Qureshi, Advocate to defend the petition and later on did not turn up and was proceeded ex parte, therefore, there was no contest from the respondent. Under these circumstances; this petition is accepted and the petitioner is appointed guardian of the person of the minors namely, Noman Ashraf, Sobia Ashraf and Tehreem Ashraf. The respondent is directed to hand over the custody of the minors to the petitioner."
Admittedly, no other person excepting the mother of the minors, namely, Mst. Sameena Kausar was arrayed as a respondent in the petition filed by Muhammad Ashraf for getting the custody of the minors and the direction for handing over the custody of the minors was also issued to Mst.
Sameena Kausar (respondent therein) only. As mentioned supra, Muhammad Ashraf, the father of the minors, had moved an application under section 25 of the Guardians and Wards Act, 1890, for getting the custody of the minors. He had not filed any separate application for his appointment as a guardian for the person of the minors under section 7 of the Act ibid. Section 10 of the Act ibid prescribes the particulars which an applicant has to furnish in his application for appointment of a guardian. Clause (d) of subsection (1) of that section requires the mentioning, of the name and residence of the person having the custody or possession of the person or property of the minor and Clause (j) prescribes that the names of the near relations of the minor and the places of their residences be indicated and this ensures that the process of the Court is not abused by getting ex parte proceedings ordered without giving an opportunity to the opposite party and the same enables a Judge also to scrutinize as to whether any person other than the respondent/respondents arrayed in the application should be issued processes and as to whether there is any other person, who may be interested in his/her appointment as a guardian for the minors. Clause (3) of subsection (1) of section 10 of the Act ibid provides for mentioning the grounds on which the petitioner bases his claim. Clause iv of subsection (1) of section 11 of the Act mandates for the issuance of a notice to any other person to whom, in the opinion of the Court, special notice of the application should be given. Since neither any, application under section 7 for the appointment of a guardian was moved by Muhammad Ashraf, therefore, obviously the learned judge Family Court could not know that Mst. Akhtari Begum, the maternal grand mother of the minors, was alive or the minors were living with her. The petitioner, Muhammad Ashraf, as mentioned supra, got the ex parte order passed in his favour against Mst. Sameena Kausar implemented by snatching the minors from their maternal grand mother against whom no order, whatsoever, stood passed qua the minors in question, hence, in the given circumstances the aforesaid ex parte order cannot affect the merits of this habeas corpus petition. Muhammad Ashraf, petitioner has admittedly contracted a second marriage and the step mother of the minors is living with him. After the passing away of the mother of the minors, their maternal grand mother had certainly a preferential right for the custody of the minors, namely, Sobia Ashraf and Tehreem Ashraf under the Islamic law as compared to their father. In the present case/proceedings under section 491, Cr.P.C. This Court has to see whether the alleged detenus were being illegally or improperly detained. All the alleged detenus/minors have expressed that they do not want to live with their father and step mother and that they want to live with their Nani Mst. Akhtari Begum (maternal grand mother). The minors were snatched away from their Nani in the execution proceedings of an order which was not passed against her and the order for the appointment of a guardian in favour of the minors father was passed without there being any application under section 7 of the Guardians and Wards Act, 1890, and that too in an application for custody in which neither the public at large nor the maternal grand mother of the minors was arrayed as a party. In the circumstances, I am fully convinced that the minors in question were being detained improperly and it will be against the welfare of the minors if they are left at the mercy of their step mother and their choice of living with their maternal grandmother, which is quite an intelligent choice is not given due weight.
' In view of the above discussion, the application is allowed and all the three minors in question are set at liberty to live with their Nani (maternal grand mother) Mst. Akhtari Begum. It is however, clarified that this order shall not affect the merits of any custody or guardianship application, which may come up in a proper form before a competent forum qua the minors in question.