' ABDUL RASOOL MEMON, J.---The applicant being aggrieved and dissatisfied with the order dated 16-4-2012 passed by the 1st Additional District and Sessions Judge Karachi (West) in Criminal Miscellaneous Application No,25 of 2012 under section 491, Cr.P.C. Has filed this Criminal Miscellaneous Application under section 561-A, read with section 435/439, Cr.P.C.
2. Briefly stated the relevant facts are that the applicant was married with the respondent No,2 Fazal Hadi on 9-2-2007 and out of wedlock she gave birth to two children Kashif, aged about 2 years and 9 months and Habiba aged about one year and 3 months. The matrimonial relations between the parties were not smooth and it is alleged that the respondent No,2 severely beaten the applicant and drove her out from his house and later, on execution of Iqrarnama by the respondent No,2 in the year 2008 she again joined the matrimonial life with the respondent No,2.
3. It is alleged that on 15-2-2012 after giving severe beating and snatching the above named children the respondent No,2 turned out her from his house in wearing clothes and then the applicant came to her parents' house. The applicant filed application under section 491, Cr.P.C.
Before the Court of Sessions Judge Karachi (West), which was transferred to Ist Additional Sessions Judge Karachi (West). The learned Ist Additional Sessions Judge Karachi (West) after hearing the parties and their counsel handed over the baby Habiba to the applicant while ordered that minor Kashif shall remain with the respondent No,2. The concluding para of the order of Ist Additional Sessions Judge Karachi (West) is reproduced hereinbelow for the sake of convenience:-- "From bare perusal of the contents of the petition the para 8 reads "The respondents Nos.] and 2 forcibly and illegally snatched the minors". The para 7 reads "On 15-2-2012 after giving severe beatings and snatching the detainees/children kicked out the applicant.
' This version of complainant shows that the minors were left with respondent No,1, who is also father of the detainees. The section 491, Cr. P. C. Reads as (a) That a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law,
(b) That a person illegally or improperly detained in public or private custody within such limits be set at liberty.
' The applicant has not mentioned a single word that minors are in illegal detention.
' In Order to giving chance to both the parties that relation of couple may remain intact.
' I, therefore, direct the respondent No,1 to hand over the baby Habiba to the applicant as the baby is of suckling age. The minor Kashif shall remain with respondent No,1".
4. Being dissatisfied and aggrieved with the aforesaid order the applicant has impugned the same before this court.
5. Heard Mr. Muhammad Tamaz Khan, learned counsel for the applicant. He has argued that finding of the 1st Additional Sessions Judge Karachi (West) that the minor children are not in illegal custody is against the law of land. He has submitted that the applicant is entitled for the custody of the minor son who is below the age of 7 years; his custody, with the respondent is illegal and improper therefore, custody of minor may be handed over to the applicant. In support of his contention learned counsel for the applicant, has placed reliance on the following cases:--
(1) Nisar Muhammad and another v. Sultan Zari (PLD 1997 Supreme Court 852).
(2) Muhammad Naseer Humayon v. Mst. Syeda Ummatul Khabir (1987 SCMR 174).
(3) Muhammad Javed Umrao v. Miss Uzma Vahid (1988 SCMR 1891).
(4) Mst. Khalida Perveen v. Muhammad Sultan Mehmood (PLD 2004 Supreme Court 1).
(5) Mst. Rubia Ayaz Khan v . The State and another (PLD 2001 Karachi 197).
(6) Mst. Tayyaba Khan v. Syeda Begum and another (PLD 1994 Karachi 204).
6. Mr. Jehanzeb, learned counsel for the respondents Nos.2 and 3 has submitted that father is legal guardian of the minor son and he has not removed the custody of the minor forcibly or therefore, the petition before the Sessions Court under section 491, Cr.P.C. Was not competent. He has further contended that the matter may be left to be decided by the Guardian Judge. He has produced the birth Certificate of the child namely Kashif Hadi and stated that he is above the age of 4 years, therefore, the case-law relied by the learned counsel for the applicant is not attracted in the circumstances of the case.
7. I have given careful consideration to the arguments of learned counsel for the parties and consulted with the case-law relied upon. The powers under clause (a) and (b) of subsection (1) of section 491 vested in High Court have been conferred on the Sessions Judge vide Notification published in the Criminal Major Act of 2010 of M. Mahmood at, page 729 which reads as under:-- "Sindh Province: GAZ/XII-Z-14, dated 7th September, 2002. The Hon'ble Chief Justice and Judges of the Court have been pleased to order in pursuance of section 491(1-A), Cr. P. C. That powers vesting in High Court under clauses (a) and (b) of subsection (1), of 5.491, Cr.P.C. May also be exercised by the Sessions Judges, in Sindh within the territorial limit of Sessions Division in which they are posted from time to time and until further orders".
8. On perusal of above notification, it appears that powers vested in High Court udder clause (a) and (b) of subsection (1) of section 491 may be exercised by the Sessions Judge. Section 491(1)(a) and (b) reads as under:--
491. Power to issue directions of the nature of a Habeas Corpus (1) Any High Court may whenever it thinks fit, direct:
(a) that a person within the limits of its appellate criminal jurisdiction be brought-up before the Court to be dealt with according to law.
(b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty;
9. Perusal of above provisions also suggests that a person illegally or improperly detained in public or private custody within such limits be dealt with according to law.
10. Under section 491, Cr.P.C. The High Court is clothed with an extraordinary power to issue directions in the nature of habeas corpus. These proceedings by their nature are summary in character and the entire evidence is not recorded to decide the main controversy between the parties. As observed in the cases relied upon by the learned counsel for the applicant referred above that in matters pertaining to the custody of minors of tender age, the High Court has got jurisdiction under section 491, Cr.P.C., which remedy is definitely more efficacious, speedy and appropriate and is to be exercised without prejudice to the right of the parties to have the matter finally adjudicated upon by the Guardian Judge.
11. In the case of Rubia Ayaz Khan v. The State (PLD 2001 Karachi 197), it is held that the minor aged about four years of age, his legal. Custody should have been with his mother and his custody with his father would, therefore, be deemed to be illegal and improper, therefore, the father was directed to hand over the custody of the minor immediately to the mother till final disposal of the case pending before the Guardian Judge. Moreover, in another case of Mst. Tayyaba Khan v.
Syeda Begum and another (PLD 1994 Karachi 204) it has been held that the mother being legally entitled to the custody of her minor son till the age of 7 years, the custody of the minor with father having been demanded by the mother could not be considered as legal. In the said case custody of minor who was present in court with his father was directed to be handed over to his mother immediately with further direction that the parties can agitate the question of custody before the Guardians and Wards Court.
12. In view of the above case-law, it appears that the custody of the minor namely Kashif who is aged about four year is with the respondent No,2 (father) namely Fazal Hadi should be deemed to be illegal and improper. According to section 491(1)(a)(b), the learned Sessions Judge who has been conferred the power vested in the High Court under section 491 was competent to decide the matter of improper custody with the respondent No,2. Therefore, the observation of the learned 1st Additional Sessions Judge Karachi (West) that the minor Kashif is not in illegal detention is contrary to the principle laid down by superior courts. And the finding of the learned 1st Additional Sessions Judge Karachi (West) is not sustainable and liable to be set aside in respect of the custody of the minor son Kashif aged about four years with the respondent No,2 Fazal Hadi. The minor Kashif as per contention of the applicant was of 2 years and 9 months at the time of application under section 491, Cr.P.C. While the respondent has filed the copy of birth certificate entered in NADRA showing his date of birth as 13-5-2008. Even otherwise now his age will be 4 years and 4 months. At the time of passing the order by the learned 1st Additional Sessions Judge on 16-4-2012, his age was below 4 years. Anyhow, he was below the age of 7 years and the mother had demanded, the custody from the respondent No,2, hence the custody of minor with the respondent No,2 (father) cannot be considered as legal.
13. Having regard to the above circumstances, this Criminal Miscellaneous Application is allowed and the respondent No,2 is directed to hand over the custody of minor Kashif to the applicant before the Nazir of this Court on 1-10-2012 at 9-00 a.m. However, it will be open to the parties or any one of them to agitate the question of custody of minor before the Family/Guardian Court. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.