' ALTAF IBRAHIM QURESHI, J.---Mst. Munazza Bibipetitioner, by means of this petition, filed under section 491, Cr.P.C., has sought the recovery of her son namely Shariq aged about one year, from the alleged' illegal and improper custody of respondent No,2Muhammad Nadeem.
2. Brief facts forming background of the aforesaid petition are that out of wedlock of petitioner with respondent No,2, Muhammad Shariq, now, aged about one year, was born. Respondent No,2 used to misbehave with the petitioner by giving mental as well as physical torture to her. Ultimately, on 10-9-2011, petitioner was turned out by her husband of his house without allowing her to take the minor detenue with her. Petitioner filed a habeas petition on 13-9-2011 under section 491, Cr.P.C.
Before the Court of learned Additional Sessions Judge, Chichawatni, wherein respondent No,2 got recorded his statement on 14-9-2011 to the effect that his minor son was in custody of his brother Muhammad Waseem and was under treatment in Victoria Hospital, Bahawalpur; and in any case, he would produce him before the said Court on the next date of hearing, failing which, he would face the consequences on criminal side. After respondent No,2 undertook to produce the minor before the aforesaid Court, he preferred an application for recalling the order dated 13-9-2011 as well as for dismissal of said habeas petition. Finally, on 6-10-2011, the learned Additional Sessions Judge, Chichawatni, dismissed the habeas petition being not maintainable and to approach the Guardian Court for redress of her grievance. Hence, this petition before this Court, with the contention that her minor son is in ailment due to lack of care and diarrhoea and if the detenu is not recovered, any misfortune towards his health and life may occur.
3. Since 10-11-2011, this case suffered as many as 16 adjournments either on the request from respondent's side or making miscellaneous applications qua production of the minor, maintainability of instant petition etc. On 29-3-2012, learned counsel for respondent No,2 sought time with the undertaking to produce the minor before this Court on the next date of hearing but the said undertaking was not honoured but instead, in order to prolong the matter, the dismissal order passed on Criminal Miscellaenous No,374-M of 2012 seeking dismissal of the habeas petition being not maintainable, was brought under impeachment by respondent No,2 before the apex Court through Criminal Petition No,237-L of 2012, which vide order dated 5-4-2012 stood disposed of with the following observations:-- "We have heard petitioner's learned, counsel at some length. Admittedly, the petitioner's counsel had given undertaking before the learned Court seized of the afore-referred habeas petition that he shall produce the minor. Let him honour the undertaking and when he does, needless to observe, the learned' High Court shall while deciding the said habeas petition and after recording minor's statement, if need be, attend to the question of maintainability as well strictly on merit and in accord with the law laid down by this Court."
4. Learned counsel for respondent No,2 laid much emphasis that, earlier, similar petition could not succeed and second petition on the same subject-matter is barred. Suffice it to say that in the matter of custody of minor, the principle of res judicata is not applicable. This A question has been answered in .Mst. Razia Rehrnan v. Station House Officer and others (PLD 2006 Supreme Court was held:-- "This important aspect of the matter appears to have, escaped the notice of the Hon'ble Judge who had decided the earlier Habeas Corpus petition i,e, Criminal Miscellaneous 309-HB of 2005. And what had then escaped the notice of His Lordship deciding the later Habeas Corpus petition filed by the present petitioner i,e, Criminal Miscellaneous 37-H of 2006 was that an earlier decision in a Habeas Corpus matter could never be permitted to operate as res judicata with respect to any such subsequent petition".
' Mst. Nazneen v. Judicial Magistrate, Larkana and 2 others (1999 M LD 1250 [Karachi]), is quoted with advantage, wherein second petition in the nature of habeas corpus was held as not barred.
' The second limb of the argument of the learned counsel for respondent No,2 is that since the petitioner had made statement before the learned Guardian Judge whereby she relinquished her right to retain the custody, therefore, she is bound by her Statement and cannot pray for the required relief. Pursuant to order passed by this Court on 16-4-2012, the file. Of application for appointment of guardian titled, "Muhammad Nadeem v. Munazza Shabbir" was requisitioned from the Court of learned Guardian Judge, Chichawatni; the same is before me.' Mst. Munazza Bibi, the petitioner, when confronted with her statement made on 4-3-2011, the petitioner came out with the plea that she never made such statement before the learned Guardian Court nor she relinquished her right of Hizanat. In this respect, I again relied upon the case-law laid down in Mst. Razia, Reliman's case (PLD 2006> Supreme Court 533), wherein it was held:-- "It is not denied that according to the Muslim Personal Law, the mother had the preferential right to HIZANAT (temporary custody of the minor) till the minor attains the age of seven in the case of males and the age of puberty in the case of a female minor. It is also not denied that the minors in question have still not reached the said ages. It is also an undeniable fact that according to the law of the land, any agreement reached between the two parents, inter alia, regarding the custody of the minor children is neither valid in law nor even enforceable. Therefore, even if it be presumed that the petitioner lady had, through some alleged compromise which she is however, denying, waived her, right of HIZANAT, the said compromise or agreement had no binding force in the eyes of law. Nothing could be brought on record e.g. The petitioner having re-married or not being of a good moral character which could have disentitled the petitioner mother to her right of HIZANAT vis-a-vis the two minor children".
' The quoted paragraph is the complete answer to the argument advanced by the learned counsel for respondent No,2. On this score, it is the Court to examine the welfare of the minor and the statement of the mother or the father in that regard has no bounden duty of the Guardian relevancy. Lap of mother is cradle of God Almighty and welfare of the minor lays with the mother and not with the father.
5. It is pertinent to mention here that Muhammad Nadeem, respondent No,2 in his application filed, under section 17 of the Guardian and Ward Act, mentioned in paragraph No,4, that the petitioner- mother leaving the minor stepped-out the doors of her own accord ten days ago. It is very strange that after ten days of her kicking-out, petitioner made a consenting statement relinquishing her right of Hizanat. Be that as it may, as I have earlier held that welfare of the minor is the supreme consideration and while deciding the application, the learned Guardian Judge, in any case, should not leave .The minor at the mercy of the C parties. The petitioner when appeared before this Court, .She was in tears and for achievement of custody; she was raising hue and cry. This Court with concern has noted this fact that respondent No,2 in spite of the repeated orders by' this Court did not produce the minor and created all type of hindrance to avoid production of the minor. This prima facie is a clear pointer of the fact that respondent No,2 is not truthful in his statement that the petitioner-mother of her own stepped out of the doors while leaving the minor with him.
6. At the ad interim stage, this Court has the jurisdiction to hand over the custody of the minor to the mother. This being so, the custody of minor Muhammad Shariq, now aged about 1-1/2 years, is handed over to the petitioner, his real mother. The ultimate jurisdiction to decide the question lies with the Guardian Judge where the matter was pending. The above application filed by respondent No,2-Muhammad Nadeem shall be considered pending before the learned, Guardian Judge and the proceedings shall stand revived where the parties are at liberty to adduce evidence in support of their versions. They are directed to appear before the Court of learned Civil Judge, Chichawatni, senior at- Tehsil Headquarter, on 2-5-2012. Since the question of welfare of the minor is involved, the learned Civil Judge/Guardian Judge, is directed to expedite the trial and decide the matter himself, strictly in accordance with law, preferably within two months from the receipt of this order. Record/File of the learned Guardian Court be remitted forthwith.
7. This petition stands disposed of in the terms indicated above. However, any observation made hereinabove, is purely tentative in nature and shall not affect the merits of the case before the learned Guardian Judge.