' SIKANDAR ZULQARNAIN SALEEM, J.---This petition has been filed by the petitioner under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, with the prayer that the impugned order dated 17-6-2014 passed by the learned Sessions Judge, Muzaffargarh may very kindly be declared illegal, the same be set aside and in consequence of the same, the petition under section 491, Cr.P.C. Filed by respondent No.4 may very kindly be dismissed to meet the ends of justice.
2. The background of the instant case is that the petitioner was married with Syed Hafeez Ahmad Bukhari/respondent No.3 on 27-5-2011. Out of this wedlock, one child Abad Hussain was born. That after the eruption of dispute between the petitioner and respondent No.3, the petitioner filed a suit for dissolution of marriage which was ex parte decreed on 18-2-2014 and since then she is living with her relatives at, Basti Pull Braran, Multan. Thereafter respondent No. 3 filed a petition under section 491, Cr.P.C. For the recovery of Abad Hussain minor from the custody of petitioner which was disposed of vide order dated 17-6-2015 with the observation that, "this Court is left with no other alternative except to direct the respondent No.1/S.H.0 Police Station Qureshi to record the statement of the petitioner and proceed further strictly in accordance with law."
3. It is contended by the learned counsel for the petitioner that the impugned order has been passed in a slipshod manner, without application of judicial mind; that if the provision of section 491, Cr.P.C. Is seen in its true perspective, the learned Sessions Judge has no authority whatsoever under the law to issue direction for the registration of the case in the capacity as Sessions Judge, hence the impugned order passed by the learned Sessions Judge, illegal, coram non judice and liable to be set aside; that if the contents of the petition are taken in its true perspective, respondent No.3 has not stated as to whether the petitioner being the real mother of the detenue has forcibly snatched the detenue from the respondent No.3. That admittedly the minor is the son of petitioner, no case of abduction can be registered against the natural guardian (mother and father).
4. Heard and record perused.
5. Bare perusal of the petition shows that learned counsel for the petitioner had assailed the validity of order dated 17-6-2014 passed by the learned Additional Sessions Judge, Muzaffargarh in the petition filed before him in terms of section 491, Cr.P.0 and drawn the attention of this Court to section 361 of P.P.C. For facility and reference of section 361 of P.P.C., which is reproduced as under:- - '
361. "Kidnapping from lawful guardianship. Whoever takes or entices any minor under fourteen years of age if a male, or under sixteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship."
' The cumulative effect and reading of section 361, P.P.C. With exceptions is that the child should be removed out from the custody of the lawful guardian in order to constitute an offence of kidnapping. Mother of a child is always a natural guardian along with the father. Mother can never be ascribed or attributed the offence kidnapping of her own child. The exception posted with section 361, P.P.0 even goes to the extent of relieving a person from criminal liability even if he/she believes himself/ herself to be the mother/father of an illegitimate child, or, who is in good faith believes to be entitled to the lawful custody of such child. A Undoubtedly, a child of 4 years needs love, affection and care from mother. The offence of kidnapping from the lawful guardian by the mother has not been made out for the reasons detailed in this order.
6. The facts noted in the preceding para are sufficient to believe that the learned Sessions Judge did not examine the relevant material on the 'record. The order of the learned Sessions Judge, Muzaffargarh as such is not maintainable in the eye of law and is liable to be set aside.
7. For the foregoing reasons, continuation of proceeding would amount to gross abuse of process of law. Resultantly, the order dated 17-6-2014 passed by the learned Sessions Judge, Muzaffargarh in the petition filed under section 491, Cr.P.C. Is quashed being unlawful.