1. MRS. KAUSAR SULTANA HUSSAIN, J.---On 30.06.2018, Applicants Mst. Shahnaz Bibi and Muhammad Riaz (husband of the Petitioner No,1) have submitted Criminal Misc. Application under Section 561-A, Cr.P.C. against the order dated 01.06.2018 passed by the learned District and Sessions Judge, Malir Karachi in Habeas Corpus Application No,97/2018 filed by the Respondent No,1 (Nazir Ahmed), ex-husband of applicant No,1 and the real father of the alleged detenues Master Tanveer aged about 11 years, Master Shahmeer aged about 10 years and Baby Shahzadi, aged about 08 years. Order sheet dated 14.06.2018 shows that when the Applicants have submitted present application before this Court, my learned brother Judge Mr. Justice Zulfiqar Ahmed Khan on first date of hearing, heard the learned counsel for the Applicant and also applicants present in persons and had passed order before issuing notices to the Respondent No,1 whereby, he suspended the operation of impugned order dated 01.06.2018: and also directed that the custody of the alleged three minors detenues be handed over to the mother (Applicant No,1) owing to the reason that the learned District and Sessions Judge, Malir Karachi merely looked at the condition of the children which according to him appeared to be very poor and alleged detenues looked very intelligent and on these two reasons the learned District and Sessions Judge, Malir Karachi, decided the case in favor of the Respondent No 1 (the real father of alleged detenues). Since, alleged detenues were in custody of Respondent No,1, who was residing along with alleged detenues in Punjab province; therefore, police of P.S. SITE, Super Highway, Karachi was directed to produce custody of minors, to which the SRO reported to this Court that he wrote a letter to Home Department through proper channel for /dispatch of a police party to District Khanpur, Punjab Province, where the Respondent No,1 along with alleged detenues was residing. Today, the police has produced Respondent No,1 and alleged detenues before this Court for handing over the custody of three to the Applicants of whom the Applicant No,1 is the real mother of alleged detneues while the Applicant No,2 is the step father of minors. This Court called the Applicants, Respondent No,1 and all three alleged detenues in Chamber and heard their counsel. Mr. Nisar Ahmed Shar, Advocate has submitted his power on behalf of Respondent No,
1. This Court made extensive queries to alleged detenues in order to ascertain their, views as all three minors are grown up having understanding of prevailing circumstances. When this Court asked the minors that whether they on their own will and wish want to reside with their mother/applicant No,1 or with their real father (Respondent No, 1). All three minors have flatly refused.to join their mother. Upon extensive queries with minors individually, the alleged detenue Master Tanveer informed that the Applicant No,2/Muhammad Piaz, step father of the minors used to take .him and his brother Master Shahmeer to his shop of carpenting and compelling them to do work at his shop, occasionally they will also get Rs, 50/- for their labour work in the shop. Besides this, Master Tanveer has further said that Applicant No,2 accustomed to beat him and his two siblings badly and at one such occasion the Applicant No,2 badly wounded his hand and nose with knife and due to such injury people of Mohalla took him to hospital' where he was provided medical treatment and his injuries were mend with three stitches. I myself saw his hand and nose, and found that marks of injuries were very much visible on both body parts. Master Shahmeer and Baby Shahzadi also confirmed -the statement of Master Tanveer and explicitly stated that Muhammad Riaz was in habit to 'beat them too, as such they do not want to live with mother and step father. They said that they are quite happy with their real father (Respondent No,1). Meanwhile, the father of Applicant No,1 (maternal grandfather of minors) after seeking permission also appeared before this Court and disclosed, that his daughter (Applicant No,1) solemnize second marriage with present Applicant No,2 after leaving her ex-husband. (Respondent No,1), who is also his nephew and is a gentleman who always kept the Applicant No,1 and all three children happily within his 'means, but his daughter (Applicant No,1), committed fraud with Respondent No,1, and solemnize marriage with Applicant No,2. The learned counsel appearing on behalf of the Applicants and Respondent No,1 advanced their arguments. The learned, counsel for the Applicants opposed the order passed by the learned District and Sessions Judge, Malir Kaiachi whereby, the custody of the minors was handed over to their real father taking their custody from their mother although as per his version the Applicants were looking after the minors properly. Conversely, learned counsel for the Respondent No,1 argued that after entering into second wedlock the Applicant No,1 has lost her right of Hizanat. In Support of his arguments, learned counsel for the Respondent No,1 relied upon 2018 M LD 591 Balochistan (Quetta Bench) and 1981 SCM R 200.
2. The Hon'ble Supreme Court has decided in the case reported in 1981 SCM R 200 that matter, wherein the Petitioner after obtaining divorce from her previous husband, solemnize second marriage and after that she claims of her minor daughter from her previous husband and then approach to the Court for custody of her daughter, the Hon'ble Supreme Court had declined to handover the custody of minor daughter to the Petitioner mother on the ground that handing over the custody to the Petitioner mother will amount to place the minor in the custody of new husband of the Petitioner who does not fall within the prohibited degree to the ward. In another case law, -relied upon by the learned counsel for the Respondent No,1, my learned sister Justice Ms. gyeda Jahira Safdar and my learned brother Judge Mr. Justice Zaheer-ud-Din Kakar, Judges of Quetta Bench have decided that if a lady contract a second marriage with stranger, she loses her right of Hazanat, they have relied upon the reported Judgment in case of Mst Nazeer v. Haji Ghulam Mustafa (1981 SCM R 200). Admittedly, the Petitioner No,l. has solemnized second marriage with Applicant No,2 therefore, the custody of minor daughter cannot be allowed her as handing over custody of minor daughter to the applicant No,1 will amount to hand over the custody of minor daughter to a stranger after taking her" custody from her real father/respondent No,1. The learned counsel for respondent No,1 has also referred in his arguments that according to Muhammadan Law mother after solemnized second marriage loses her right of Hizanat of her female child. It is obvious that as per Muhammadan Law although the mother is entitled to the custody of her minor children yet such right discontinues when she takes second husband, who is not related to the children within prohibited decree and is stranger in which case the custody of minor belongs to the father. The father/Respondent No,1 has not solemnized second marriage up till now and is looking after the minor children by himself and presently he is residing in Punjab province along with his brother and his family. The father of applicant No, 1 also supported the version of respondent No,1 especially his contention that he is looking after 'the minors very well, he further stated that he is also residing near the house of respondent No,1 and he himself often takes care of the minors, that they are quite happy while living with them and are studying in Maddarsah.
3. In view of above discussion, I am of the firm view that the ,custody of minors should continue with respondent No, 1 (real father) as per wish and desire of the minors, as it would also be in the interest, well being and welfare of all of them. The attitude of the applicant No,2 with minors as described above cannot be ignored and in such case custody cannot be handed over to a person, who is brutal, cruel, inhumane and bitter, who do not hesitate to attack innocent children with knife.
4. The real mother has also failed to protect and secure her children from such brutality. Accordingly, present Criminal Misc. Application bearing No, 179 of 2018 is hereby dismissed. If the applicant No,1 wants to obtain the custody of minors, she can approach to Guardian and Ward Court for obtaining custody of minors on merits proving herself entitle to keep the custody of minor.