SHAHNAWAZ TARIQ, J.---Through the captioned criminal revision application, applicant Mst. Wafa Andaleep daughter of Nasir Ahmed has impugned order dated 30-7-2013, passed by the Court of learned IIIrd Additional Sessions Judge, Karachi South, in Criminal Miscellaneous Application No,915 of 2013, under section 491, Cr.P.C. Whereby the custody of minor Baby Amna was handed over to the applicant with direction to furnish P.R. Bond in the sum of Rs,100,000. The applicant was further directed that she would not leave Karachi along with minor without prior permission, and to arrange meeting of the respondent No.1 with minor baby Amna without creating any obstruction.
2. Relevant facts narrated in the instant criminal revision are that the applicant was married with the respondent No,1, Imran Bhatti at Sialkot, Punjab, on 6-4-2008, and out of said wedlock one baby namely An-ma was born out, who is about four years old. Allegedly, the respondent No.1 treated the applicant with extreme cruelty and did not maintain her properly. It is further averred that on 9-7- 2013, the respondents Nos.1 to 5 forcibly snatched the minor daughter from the applicant and turned her out of the house just after 2/3 months of their reconciliation, as she was called from Sialkot to continue their matrimonial life and started residing in the house of respondent No. 1 .
Despite the repeated requests made by the applicant, the minor baby was not handed over by the respondents to the applicant, and she filed Habeas Corpus Petition No,915 of 2013, under section 491, Cr.P.C. Before the Court of learned Sessions Judge, Karachi South, which was transferred to the Court of learned IIIrd Additional Sessions Judge, Karachi South, who after hearing both parties passed the impugned order.
3. Learned counsel for the applicant has contended that impugned order passed by the Court of learned IIIrd Additional Sessions Judge, Karachi South, is illegal, void and not tenable under the law, as it is a conditional order. He further contended that parties are belonging to Sunni School of thoughts as such the applicant is legally entitled for the custody of minor baby till attaining her puberty. The applicant has already filed suit No,270 of 2013 for her maintenance before the Court of learned 16th Family Judge, Karachi South, against the respondent No,1, as he has utterly failed to maintain the applicant and minor baby Amna.
4. Learned counsel for respondent No,1 has contended that applicant is permanently resident of Sialkot and the address mentioned by the applicant regarding her residence at Karachi was found to be false by the Court of learned IIIrd Additional Sessions Judge, Karachi South, therefore, the Court had imposed conditions upon the petitioner to execute P.R. Bond for the sum of Rs,100,000 and not to remove the custody of minor baby out of Karachi. He further contended that respondent No.1 has filed Guardian and Ward Application No,970 of 2013 for recovery of custody of minor baby Amna before the Court of learned 16th Family Judge, Karachi South. He further submitted that there is imminent apprehension that applicant would remove the custody of minor baby out of Karachi to defeat the Guardian and Ward proceedings pending before the concerned Court.
5. Learned APG has supported the arguments advanced by the learned counsel for the applicant.
He also contended that the trial Court was not competent to impose any condition while deciding the petition filed under section 491, Cr.P.C., and also extended no objection to allow the instant criminal revision application.
6. Perusal of the record and considering the arguments advanced by learned counsel for parties reflect that applicant was married with the respondent No.1 at Sialkot and out of said wedlock minor baby Amna was born out who is about four years old. Admittedly, their marriage tie is still existing, as neither the applicant has filed suit for the dissolution of her marriage nor the respondent No,1 pronounced divorce. There arose a dispute between the spouses but same was resolved and after reconciliation, the applicant shifted to Karachi and started residing in the house of the respondent. Unfortunately, on 9-7-2013, the respondent No,1 allegedly drove out the applicant from his house and kept the custody of minor daughter with him, and said act of the respondent No,1 was challenged by the applicant by filing Habeas Corpus petition under section 491, Cr.P.C. For recovery of the minor baby. The learned trial Court after hearing the parties at length, handed over the custody of minor baby to the applicant subject to the furnishing P.R. Bond in the sum of Rs,100,000, with further direction that she would not leave Karachi along with minor baby without prior permission of the Court, and to arrange meeting of the respondent No,1 with minor baby Amna without creating any obstruction.
7. It is also worthwhile to mention that the applicant has filed suit for her maintenance bearing Suit No,270 of 2013 against the respondent No,1 before the Court of learned 16th Family Judge, Karachi South. The respondent No,1 has also filed Guardian and Ward Application No,970 of 2013 before the same Court for the custody of minor daughter, and both proceedings are still sub-judice.
8. For the appropriate conclusion section 491, Cr.P.C. Is reproduced as under:-- S. 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;
(c) that a prisoner detained in any jail situate within such limits be brought before this Court to be there examined as a witness in any matter pending or to be inquired into in such Court;
(d) that a prisoner detained as aforesaid be brought before a Court-martial or any Commissioners for trial or to be examined touching any matter pending before such Court-martial or Commissioners respectively;
(e) that a prisoner within such limits be removed from one custody to another for the purpose of trial; and
(f) that the body of a defendant within such limits be brought in on the Sheriff's return of cepi corpus to a writ of attachment.
9. From the bare perusal of the provisions of section 491, Cr.P.C., it is crystal clear that the very section has a limited scope to provide immediate relief and the Court while dealing with the matter where person illegally or improperly detained in public or private custody within its limits be set at liberty, or if a prisoner detained in any jail situated within such limits be brought before the Court, etc. Therefore, the Court while invoking its jurisdiction under section 491, Cr.P.C. Must act strictly within the ambit of the section and any direction beyond its provisions would be illegal and without jurisdiction. There is no second opinion that no condition could be imposed in Habeas Corpus petition as such no authority is conferred upon the Court to pass any conditional or restricting order under section 491, Cr.P.C., and any such condition would be against the spirit of the said section.
10.Admittedly, the proceedings under section 491, Cr.P.C. Filed by the applicant were summary in nature to provide efficacious relief to her being an aggrieved party. Consequently, in present case the subject order for the recovery of minor baby from custody of respondent No,1 to extent of handing over to the applicant was just and proper, however, such order passed under section 491, Cr.P.C. Was an interim order in nature and was subject to the final adjudication by the concerned Court exercising its jurisdiction under the provisions of Guardians and Wards Act, where the respondent No,1 has already filed such proceedings and it is for the learned trial Court to decide the issue of custody finally after considering the peculiar circumstances of the case.
11.The applicant being real mother was entrusted with the custody of minor baby, therefore, the learned Court of IIIrd Additional Sessions Judge was not competent to impose restrictions and conditions referred supra which are beyond the ambit of section 491, Cr.P.C. And the learned trial Court while invoking its criminal jurisdiction, was under no circumstances to assume the powers envisaged in Guardians and Wards Act,... And exercise the jurisdiction assigned to the Guardian Judge. Moreover, if the respondent No,1 apprehends the removal of minor baby from the territorial jurisdiction of Guardian Judge, he may seek appropriate remedy from the concerned Court.
12.Considering the above facts and circumstances the impugned order dated 30-7-2013 is modified only to the extent of imposition of conditions i,e, the execution of P.R. Bond in the sum of Rs,100,000, the applicant would not leave Karachi along with minor baby without prior permission of the Court and applicant will arrange meetings of the minor with the respondent No.1 .
13. For the foregoing discussion, instant criminal revision application along with listed applications stand disposed of. However, the above observations are tentative in nature and same would no effect the proceedings sub-judice before the learned Court adjudicating the question of the custody of the minor baby.