This is a petition for quashment of proceedings pending against the petitioner, for an offence under section 363, P. P. C:; in connection with the alleged kidnapping of his own child from the custody of Mst. Razia Begum, his wife.
2. The circumstances, as disclosed in the F. I. R., are that Mst. Razia Begum had a quarrel with the sisters of the petitioner, as a result of which she was given some beating by him. She left the house of her husband and went to the house of her sister's husband, i.e. Abdul Karim the first informant and compliant in this case, on 11th March 1969. On the same day, the petitioner accompanied by his nephew went to the house of the complainant and expressed regrets in respect of the beating given to Mst. Razia Begum and requested her to accompany him back to his house; but she refused to do so' because she was afraid of, possibly, another beating. She, however, stated that she will await the arrival of her brother Muhammad Ishaq who was at that the residing in District Mianwali and would follow the decision which may be arrived at in the meeting, of her husband and her brother Muhammad' Ishaq. Rashid (the nephew of the petitioner) left the house of the complainant; but the petitioner stayed there. On the next day, i.e. 12th March 1969, some persons presumably helpers of the petitioner, carne to the house of the complainant and all of them made joint request and insisted that Mst. Razia Begum should accompany Asghar Ali petitioner to his house; but Mst. Razia Begum again refused this request. Those persons went away, but the petitioner stayed on, On the next day, i.e. On 13th March 1969, the complainant had gone to- his office, when in his absence the petitioner took away his child, aged about eight months, who was playing in the gali on a false pretext. He neither himself came back nor ire returned the child to its, mother. Thereupon, the complainant reported the matter and. a case under section 363, P. P. C.
Was registered against the petitioner.
The statement of the complainant was recorded as P. W. 1, wherein he substantially supported the prosecution case, in the F.I. R. It appears that some transfer application was moves and then this petition was filed in the High Court and the case has not progressed thereafter.
3: This petition was admitted to hearing on 16th December 1969, to consider, the effect-of the ruling of this Court in the case of Ahmad Nawaz and three others v. The State (PLD 1968 Lah. 97) on this matter.
4. Learned counsel for the petitioner has contended that this case is fully covered by that ruling.
Learned counsel for the State tried to distinguish the case in the above cited ruling, in that the father in, that case had taken away the children from, his own house where he was found to have a constructive custody of the children. Moreover, his wife at the the he took away the children was living in her husband's house at Montgomery, though he himself was residing at Karachi.
The attempt at distinguishing the case appears to be directed at taking the case out of the ambit of the Exception to section 361, P. P.C. Which reads a as follows :- "This section does not extend to the at of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled `to the lawful custody of such child, unless such at is committed for an immoral or unlawful purpose."
In order that the Exception applies, to conditions must be satisfied : (i) that the father should in good faith believe himself to be entitled to the lawful custody of the child ; and (ii) that the at of taking away the child must not be for an immoral or unlawful purpose.
5. It was held in the ruling cited above that a Muslim father is the natural guardian of a child of the age of 7 years or below as in the present case, and that he is also entitled to his lawful custody.
The question arises whether the petitioner, i.e. The father within case in good faith believed that he was entitled to the lawful custody of the child. The answer to this question is that if he is presumed to know law he must have known that as father A he was the natural guardian and thus entitled to the lawful custody of the child. Moreover, the case cited above was, reported in early months of 1968, and it will be presumed that he may have known the law laid down in the ruling. Therefore there is no question of his not having believed in good faith to be entitled to the lawful custody of the child.
The second condition to be satisfied is that he should not have taken the child for an immoral or unlawful purpose. It is agreed that the purpose in taking, away the child in this case was not at all immoral. With regard to the subsidiary question whether it was unlawful, one may consider that if the father wanted to avoid proceedings before a Guardian Court and by circumventing the law he wanted to take away the child, that might be one example of an unlawful purpose. But in this case, it is not necessary to give any final determination of the question, nor it is necessary to further examine the expression used in the Exception, i.e. Unlawful purpose. Learned counsel for the petitioner has. Explained that it is evident from and admitted in the F. I. R. That the petitioner was insistent upon taking along his wife and that, in fact, he had showed his regrets as well on the incident that had taken place on 11th of March. From the admission made in the F. I. R. As well as in the statement made by the complainant himself, it becomes clear that the purpose of the petitioner could also be that he wanted to take away the child (who, admittedly, was of very tender age) so that his wife may return to his house. If this is a reasonable possibility and cannot e be excluded from consideration, he is fully entitled to its benefit. If that is so, the second condition is also satisfied and the purpose does not remain unlawful. Thus the Exception to section 361, P: P. C.
Fully applied in this case, and if that is so no offence under section 363, P. P. C. Has been committed and it will be an abuse of the process of the Court if the petitioner is allowed to be tried.
7. In view of the above, I accept this petition and quash the proceedings against the -petitioner instituted on the challan. Report under .Section 173, Cr. P. C. Dated 20th March 1969. It is clarified that this order or observation made herein shall not affect the proceedings, if any, pending or to be instituted before any other Court of competent jurisdiction with regard to the custody of the child or related matrimonial matters between the petitioner and his wife.