Through this petition filed under Section 491 Cr.P.C. the petitioner seeks recovery of her son Ali Shan four years of age stated to be illegally detained and confined by Respondent No, 2.
2. The learned counsel for the petitioner submits that the petitioner married Respondent No, 2 in the year 2003 and while the marriage was subsisting two children Mst. Fauzia Bibi and Ali Shan were born. The marriage between the petitioner and Respondent No, 2 turned sour and on 12.05.2011 Respondent No, 2 forcibly took away detenue Ali Shan a minor only four years of age when he was playing in the street.
3. The learned Deputy Prosecutor General has supported the petition and submitted that the ends of justice would best be served if custody of the alleged detenue a minor only four years of age is handed over to his mother.
4. The learned counsel for Respondent No, 2 has opposed the petition and submitted that the present petition is not maintainable since Respondent No, 2 is the father as well as natural guardian of the alleged detenue. In any case the instant petition is also liable to be dismissed on the ground that the petitioner has an alternate remedy of filing a petition before the Guardian Judge.
5. Ordinarily a mother and not the father would be entitled to Hazanat' of any male child less than 7 years of age and a female child who has not yet attained puberty as has been held by the august Supreme Court Of Pakistan in Nisar Muhammad & another vs. Sultan Zari PLD 1997 Supreme Court
852. Whether the custody of the alleged detenue can be handed over by this Court to the petitioner in these proceedings is a matter which has to be determined in the first instance. It is trite that in such like cases this Court is to use its jurisdiction under Section 491 Cr.P.C. sparingly as plenary jurisdiction in the matter rests under another law. A proper course of action for the petitioner would be to institute legal .proceedings before the Guardian Judge. Only in exceptional cases this Court would exercise its jurisdiction to take away custody of a child from the father and hand it over to the mother. A petition seeking custody of a minor child wherein the mother has taken a plea that her child has been illegally detained and confined by his father can only be entertained by this Court if:
(i) the child is of very tender age meaning thereby that the mother would be given custody of a suckling baby or of a child of very tender age who due to certain exceptional circumstances can only be looked after by the mother.
(ii)Where a child of very tender age living with his mother is stated to have been very recently snatched by the father.
(iii)Where a mother can demonstrate to the Court that the father is in the process of shifting the child to some unknown place so that approaching the Guardian Judge becomes an exercise in futility.
6. The principles of law enumerated above are inconsonance with the law laid down by the august Supreme Court of Pakistan in Muhammad Javed Umrao VS. Miss Uzma Vahid 1988 SCM R 1891, Nisar Muhammad & another VS. Sultan Zari PLD 1997 S.C. 852, Naziha Ghazali VS. The State & another 2001 SCM R 1782, Mst. Khalida Perveen VS. Muhammad Sultan Mehmood & another (PLD 2004 S.0 1, Mst. Nadia Perveen VS. Mst. Almas Noreen etc Criminal Petition No, 127-L-2010.
7. Any order passed regulating the custody of a minor child by this Court while seized of a petition under Section 491 Cr.P.C. would essentially be interim in nature and would be subject to final adjudication by the Guardian Judge whose orders would ultimately regulate the custody of the child. The alleged detenue Ali Shan is not of very tender age and is at present four years old. It is also not a case of a very recent snatching. The petitioner while addressing arguments has stated in clear and unequivocal terms that the alleged detenue was snatched by his father Respondent No, 2 on 12.05.2011 whereas the present petition was filed on 14.06.2011. It is not the case of the petitioner that Respondent No, 2 father of the alleged detenue is likely to shift the child to some unknown place making it impossible for the petitioner to seek her remedy before the Guardian Judge.
8. For what has been stated above, this petition being without any merit stands dismissed.