1. ' MUHAMMAD SHAFI. SIDDIQUI, J.--This is an application under section 491-A, Cr.P.C. With, a prayer that the custody of baby Nargis daughter of Abdul Rehman Warar age 7 years be recovered from the illegal and improper custody of respondent No,3 (her cousin) and hand over to applicant as being her real mother.
2. ' The brief facts of-the case are that the applicant was married to one Abdul Rehman who expired recently. She was blessed with seven children out of which one child namely baby Nargis is subject matter of this application. It is contended by the applicant that she has been thrown out of the house along with her husband and, children by her inlaws. However, custody of youngest daughter has been detained. The husband of the applicant was on dialysis and as such she got involved in treatment of her husband who was critically ill and subsequently died. Thereafter she pursued her case for recovery of her daughter. It is contended by learned counsel for the applicant that baby Nargis (ward) is in illegal and improper custody of respondents Nos. 3 and 4. The child is also with her grandfather and grandmother who are very old and above 70 years of age. In fact the grandfather who got his leg fractured could not even walk and is at present confined to bed. The baby was brought to the court by her cousin. He brought the baby in his lap and the child apparently was hugging him and got her arms around his neck. It is claimed by respondent No,3 that the baby is 7 years of age and since birth she is living with him and she (baby girl) had been voluntarily handed over to him by the parents.
3. ' Without going into these factual controversies of the case the basic question that arises is as to whether the baby girl aged about 7 years could live under the circumstances 'mentioned above with her grand mother and grand father who are above 70 plus and young cousin who is falling within prohibited degree to minor girl.
4. ' Learned counsel for the applicant in support of his contention has relied upon PLD 1997 SC 852, 2009 YLR 552(1), 2005 YLR 2414 and 1984 PCr.LJ 2582.
5. ' I have heard learned counsel and perused the record. The main arguments of learned counsel for the applicant is that under the facts and circumstances of the case this is a most efficacious remedy available under the 'law and availability of any other legal remedy is no bar to invoke the jurisdiction of this court under section 491, Cr.P.C.
6. ' In PLD 1997 SC 852 it has been held as under:-- ---S.491---Guardians and Wards Act (VIII of 1890), S.25---Habeas corpus petition---Custody of Minor---Availability of another legal remedy is no bar---Availability of another remedy at law, such as the remedy under the Guardians and Wards Act, 1890 for obtaining custody of a minor child is not a valid ground for refusing an application for habeas corpus by the parent or guardian of the minor who is entitled to have his or her custody, where the minor is being illegally detained by another person.
7. ' Petition---Muhammadan Law-- Custody of minor---Hizanat--- Examination of the various, provisions of Muslim Law, the Criminal Procedure Code, particularly its 5.491 and Ss.-361 and 363 of the Penal Code, indicate that mother is entitled to "Hizanat" of her male child below age of seven years, failing that thq mother's relations under Muslim Personal Law are entitled to the custody of the minor. ---S.491---Constitution of Pakistan (1973), Art. 185(3)---Habeas corpus petition---Custody of the minors---Two male minors in the case being admittedly below seven years in age and the three females having not yet attained; puberty being less than eight years, respondent (mother) was, prima facie entitled to "Hizanat" of all the five minors for the limited purpose of 5.491, Cr.P.C. At the moment and the rights of petitioners to the custody of said minors had been accrued so far--- ' Custody of the aforesaid minors with the petitioners was, therefore, rightly declared illegal or at least improper by the High Court with the emphasis that ultimate determination of entitlement of the custody would of course, lie with the Guardian Judge to, whom the parties were directed to approach if they so desired---Leave to appeal was refused in circumstances-- [Mst.Shaheen v. Zia Muhammad PLD 1994 Pesh. 143 dissented from].
8. ' In the case reported in 2009 YLR 552(1) it has been held as under:-- ---S. 491---Habeas corpus petition---Recovery of 'minor---Petition for---Custody of minor--- S.H.O. Who conducted' raid, recovered and produced the minor in the court and she was given in the hands of the petitioner who was mother of the minor---Minor was a suckling baby and interest and welfare of the minor demanded that custody be given to petitioner mother who had not married as compared to father of the minor--- Custody of minor having been handed over to the petitioner, father could approach the Guardian Court for custody.
9. ' In the case reported in 2005 YLR 2414 it has been held as under:- "S.491---Habeas corpus petition---Custody of minor girl---Paternal grand-parents of the minor girl had no right of her custody in the absence of her father and any disqualification of her mother- -- Mother under the law had the right of "Hazanat" of her minor daughter till attaining of puberty unless she was disqualified by second marriage or otherwise---Mother (petitioner) had not contracted second marriage after the death of her husband and was not disqualified on any other ground---Custody of the grandparents (respondents) of the nine years old minor girl, thus was illegal and improper---Best nourishing school for the girl was the lap of her mother and none else could train her better than her mother in day to day worldly affairs of life---Minor girl was about to enter in a sensible era of her life and at this juncture her Mother's supervision was inevitable for her---Petitioner could not be deprived of her right of "Hizanat" and custody of her minor daughter was handed over to her accordingly.
10. ' In the case reported in 1984 PCr.LJ 2582 it has been held as under:-- ---S.491--- Habeas corpus--- Custody of minor-Minor a boy of 7 years of age mother held, entitled to Hizanat or minor under Muhammadan Law and right of grandfather and paternal-uncle to custody of such minor would not accrue in presence of mother---Custody of minor boy by grandfather and paternal uncle, held further illegal/imprpper, in circumstances.---(Muhammadan Law). ---S.491---Habeas corpus---High Court quite competent to deal with case of a minor by making over his custody to guardian--Consent of minor as to with whom he would like to live, held, immaterial and to be ignored---Such order, held further, would be without prejudice to any order made by Guardian Judge in petition for appointment of guardian pending before him.
11. ' Section 491, Cr.P.C. Is most efficacious and speedy one, therefore, in appropriate cases particularly when the mother is deprived of the custody of the minor child below the age of seven years and she has not contracted second marriage, the writ of habeas corpus under section 491, Cr.P.C.
12. Would be the most appropriate remedy and the High Court may not stay its hand on the ground that the dispute for the custody of the minor can be well-adjudicated by the Guardian Judge.
13. Keeping in view the delay which occurs in disposal of the cases before the subordinate Courts, the possibility that by the time the petition for the appointment of guardian is finally decided the minor might attain majority, cannot be excluded. It would be in the interest of the mother and the minor that High Court may come to their rescue in exercise of its powers under section 491, Cr.P.C.
14. ' There is no cavil that at times remedy under section 491, Cr.P.C. Is most efficacious and speedy remedy. Apart from above referred judgments in the case of Mst. Khalida Parveen v. Muhammad Sultan reported in PLD 2004 SC 1 the court held that the courts in the cases pertaining to the custody of child were not supposed to go into the technicalities and they should. Decide the case keeping in view the facts and circumstances and welfare. It was also held that in the welfare of the child and in order to ensure that the rights conferred upon the child are fully protected in the, suitable manner, the courts can also and always pass appropriate orders in the exercise of its inherent jurisdiction. Similar view was taken in the case of Ahmed Sami v. Saadia Ahmed reported in 1996 SCMR 268.
15. I have observed that in the instant case, the minor girl of seven years is living with her cousin although at the moment she is behaving like a child, however, keeping in view the future aspects this should not continue as the relationship between them is considered under prohibited degree.
16. Despite the fact that the minor girl is reluctant to go with her mother, I feel it in the best interest of the child that she should live with her real mother instead of her cousin and grandparents who could hardly walk and hence cannot contribute towards the welfare of the minor. Under Muhammadan Law the mother, of all persons is best entitled to the custody of her minor girl.
17. ' For the above reasons this criminal miscellaneous application is allowed.
18. ' The above observation, however, is only to the extent of granting this criminal miscellaneous application and shall not prejudice the case of grandfather and grandmother of the baby, in case they intend to file an application under Guardians and Wards Act before the competent court.