1. ' SADIQ HUSSAIN BHATTI, L---Through this application under section 491, Cr.P.C, the petitioner has alleged that her four sons namely Abdul Samad aged about 13 years, Aqib Ahmed aged about 11 years, Raahim Ahmed aged about 8 years and Shariq Ahmed aged about 5 years are in illegal custody of her ex-husband, the respondent No.1 Aftab Ahmed and she prayed that the custody of the children be restored to her.
2. ' Brief facts of the case are that the petitioner contracted marriage with the respondent No.1 in the year 1997 and out of said wedlock four children names mentioned above were born. The respondent No.1 was proved to be cruel and merciless person. In the year 2011, the petitioner was turned out of her house thereafter she filed a Suit for dissolution of marriage in the Family Court, Karachi South, which was decreed on' 26-3-2011 and the marriage was dissolved. Around four months before filing of this petition, the respondent No.1 along with' his sister and other ladies came in the house of the petitioner and forcibly took away the custody-of the children.
3. ' I have heard the learned counsel for the Parties and perused the material available on record with their assistance.
4. ' It is contended by the learned counsel for the petitioner that the children remained in lawful custody of the petitioner till four months before filing of this petition, but subsequently the respondent No.1 forcibly took away the children from the house of the petitioner, therefore, she is entitled for restoration of the custody of her children.
5. ' On the other hand, learned counsel for the respondent No.1 has contended that the children are not in illegal custody of the respondent No.1, who is the natural guardian, is entitled to retain the custody. It is further contended that the petitioner was not happy with the respondent No.1 that is why she filed a Suit for dissolution of marriage in the Family Court, Karachi South, which was decreed in her favour and the marriage was dissolved on 26-3-2011.
6. ' It is fact that the children are with the respondent No.1 four months before filing of this petition and the application under section 491, Cr.P.C. Is filed by the petitioner after about 4/5 months alleging unlawful removal of the children from her custody. There is no explanation as to why the petitioner kept quiet for such a long period. After children were removed from her custody unlawfully and without her consent in the normal circumstances she should have filed a report with the Police or made a complaint to the Authorities against the respondent No.1 in accordance with law. Prima facie, it appeared from the said conduct of the petitioner that the children were not removed forcibly from the respondent No.1, therefore, it cannot be said that the custody of the children with their father (respondent No.1) was illegal or unlawful within the meaning of section 491, Cr.P.C. It has also been informed that no proceedings under the Guardians and Wards Act are pending before any Family Court.
7. ' In the facts and circumstances of the case, there is no question of giving away regular custody of the children to either of the Party declaring any of them as Guardian under section 7 read with sections 12 and 25 of the Guardians and Wards Act. The Provisions of section 491, Cr.P.C. Are not available for declaring any person as Guardian or, determining question of custody of the children because final decision of regular custody is to be decided in the proceedings under the Guardians and Wards Act when initiates by the Parties claiming the custody of the children before Guardian Court.
8. ' In view of the reasons mentioned above, I do not find any merits in this petition and the same is hereby dismissed.
9. ' However, as an interim arrangement, the respondent No.1 is directed to leave the children namely Abdul Samad aged about 13 years, Aqib Ahmed aged about 11 years, Raahim Ahmed aged about 8 years and Shariq Ahmed aged about 5 years with their mother (Petitioner) from the evening of the Friday till evening of Sunday of every week and the petitioner would return the children to the respondent No.1 on the Sunday evening every week without fail. It, is also ordered that none of the Parties shall remove the children out of city without permission of this Court. Entitlement of the custody of the children on regular basis would depend upon adjudication of the Guardians and Wards Court in accordance with law.
10. ' With the above observations, this petition stands dismissed.