' SYED MUHAMMAD KAZIM RAZA SHAMSI, J.---Through the petition in hand, filed under section 491, Cr.P.C., the petitioner Mst. Tahira Parveen submitted that she and her family embraced Islam nine years back and she contracted marriage in accordance with the Muslim rites with respondent No.2 Pervaiz Jat and adopted baby Kashaf (daughter of her real sister) as no issue had born out of that wedlock. It was further submitted that respondent No.2 recently has snatched the minor detenue from her custody, who may be recovered and her custody be handed over to her.
2. On this application, the detenue aged 5-1/2 years was ordered to be recovered and produced in this court. Today the detenue has been produced by the police. Respondent No.2 is also present with his learned counsel.
3. Learned counsel for respondent No.2 while highlighting the character of the petitioner submitted that she and her family has not embraced Islam thus sending the child with the petitioner in the family, professing faith of Christianity, is not in her welfare; that the petitioner is residing in a very small house, so it would not be feasible for the child to live there as basic necessities of life are not available there; that respondent No.2 is maintaining the child in well manner as the baby has been got admitted in Beacon House School, Faisalabad, and a car is deputed for her pick and drop which facility is not available in the house of the petitioner; that in Islamic law there is no concept to adopt the child, therefore, the petitioner has no locus standi to file the petition and lastly while relying upon the case of Naveed Munir v. Addl. District and Sessions Judge, Lahore and another (2014 SCM R 1446), it is the Submission of the learned counsel for respondent No.2 that a commission may be appointed for getting a report about the residential place where the minor is to reside and then to decide the application of the petitioner.
4. All the contentions raised by learned counsel for respondent No.2 have been controverted by learned counsel for the petitioner and submitted that the arguments raised by learned counsel for respondent No.2 relate to the proceedings to be imitated under section 25 of the Guardians and Wards Act, 1890 and in the present proceedings, it is to be seen whether the minor is in improper and illegal custody of respondent or not. He has submitted that in the recent past the minor has been removed from the custody of the petitioner with force therefore, the judgment reported as Mst. Nadia Parveen v. Mst Almas Noreen etc. (PLD 2012 SC 758) is not applicable to the facts of the instant case. He also termed the judgment of Apex Court delivered in the case of Naveed Munir, distinguishable on the factual side.
5. I have considered the submissions made by learned counsel for the parties and perused the record.
6. After considering the contentions made by learned counsel for the parties, this court is of the opinion that all the arguments raised by learned counsel for respondent No.2 are not related to the instant proceedings rather the same could be raised validly before the learned Guardian Court in a petition which can be filed under section 25 of the Guardians and Wards Act, 1890. In the instant proceedings, it is only to be seen whether the custody of the father of the minor is in proper or illegal. The minor is having the age of 5-1/2 years and she was interviewed by the court. During the interview it is observed that the minor has mature understanding and has answered all the questions of the court. When it was asked from the minor about the petitioner she pointed finger towards her and went to her (adopted mother) and embraced with her. This shows that the minor is still having love and affection with the petitioner, who has adopted her. No doubt the custody of respondent No.2 cannot be termed as illegal as he is also an adopted father of the minor but that custody is still improper as mother is enjoying the rights of 'Hazanat' of the minor and that she is living apart from the respondent. It is also informed that respondent No.2, during subsistence of his first marriage, has contracted second marriage with the petitioner and his first marriage is still intact and his first wife is living with him. In this situation, it would not be appropriate to send the detenue in the lap of step mother. The petitioner, as yet, has not remarried, so she is able to look after the minor properly. The question raised by learned counsel for respondent No.2 that petitioner has no locus standi to file the instant petition as she is the mother, who has adopted the baby is untenable as the real mother of the baby, is also present in the court and standing with the petitioner and stated that the baby from her birth was handed over to petitioner Tahira Parveen and till date she is residing with her and she is happily living there. This statement of the lady is sufficient to brush aside the contention raised by learned counsel for respondent No.2. It is the ground of respondent that petitioner is able to maintain the child, suffice it to say that it is the duty of the father to provide all those facilities to the child in the house of the petitioner, which she enjoyed while living with respondent No.2.
7. The judgment cited by learned counsel in the case of Naveed Munir (supra), has been examined and it is found that the judgment was delivered in the proceedings initiated on the application filed under sections 6 and 7 of the Guardians and Wards Act, 1890 and was not passed in the petition filed under section 491, Cr.P.C. The scope of both the proceedings is on different footing as under the former proceedings the court has to determine the welfare of the minor before deciding guardian petition and in the latter proceedings, the court had to see the custody of the minor is legal or proper. In these circumstances, judgment delivered by Apex Court, in the case of Naveed Munir (supra) is not applicable to the fact of present case. As has been observed by this court that the child is inclined to join her mother and a scene has been created in the court room in this respect, so it can easily be said that child has been removed from the custody of the petitioner in the recent past, thus this petition can be entertained. It has been brought to the notice of the court that respondent No.2 belongs from very influential family so there is every likelihood that due to that influence the cases have been registered against the family of the petitioner, as has been pointed out by counsel of the petitioner.
8. In view of the afore-noted observation, this petition is allowed and the custody of the minor baby Kashaf is ordered to be handed over to the petitioner.
9. City Police Officer, Faisalabad, keeping in view the influence of respondent No.2, is directed to provide protection to the family of the petitioner and to drop baby and her mother at their residence safely.
10. The City Police Officer, Faisalabad, be informed telephonically as well as through Fax about this order of the court.