AHMAD ALI, J. Through the present writ petition, the petitioner has called in question the order of learned Additional Sessions Judge-IV , Abbottabad dated 22.10.2019, whereby habeas corpus application of the petitioner seeking recovery of minor Muhammad Tayyab Hayat from the illegal confinem ent of respondent No. 1, was dismissed.
2. Petitioner as well as respondent No. I are the parents of minor Muhammad Tayyab Hayat, aged about 3 1/2 years. On 12.10.2019, respondent No. 1 ousted the petitioner from his house and snatched the minor from her.
She moved an application to the SHO of Police Station Nawanshehr , Abbottabad in this respect and also approached the Court of learned Additional Sessions Judge-IV , Abbottabad through habeas corpus application.
Upon application of the petitioner , the minor was recovered and produced before the learned Additional Sessions Judge-IV , Abbottabad on 22.10.2019. After hearing the parties, leaned Additional Sessions Judge-IV , Abbottabad was pleased to dismiss the application of the petitioner . Feeling aggrieved, the petitioner has approached this Court in its constitutional jurisdiction.
3. Arguments of learned counsel for the parties were heard at length and record perused.
4. Perusal of the record in the light of valuable arguments of learned counsel for the parties, transpires that the parties have separated their ways, as the marriage tie in between them is no more in field. According to the contents of petition, the minor was snatched from the petitioner and she was ousted from the house on 12.10.2019.
The application of the petitioner was dismissed by the learned Additional Sessio ns Judge-IV , Abbottabad on the ground that minor was comfortable in the company of his father .
5. Learned counsel appearing on behalf of the respondent questioned the maintainability of the instant petition by submitting that a proper application for guardianship/custody of the minor is pending before the Guardian Court, who could properly decide the matter of welfare of minor , after recording pro and contra evidence and in the circumstances, present petition is not maintainable. He placed reliance on the case reported as "(2001 SCMR 1782 ) Naziha Ghazali Vs. The State and another". The careful perusal of the judgment relied upon by learned counsel for the petitioner reveals that in the said case, the mother had applied for the custody of minor after about 5/6 months of the alleged unlawful removal of minor from her custody , without any plausible explanation and keeping in view her conduct, she was not held entitled to the custody of minor . However , in the instant case, as per contents of the petition, the petitioner was ousted on 12.10.2019 and on the same day, she not only moved application to the SHO of the police station concerned but also approached the Court with an application under Section 491 Cr.P.C on 21.10.2019. The august Supreme Court of Pakistan, in the case of "Mirjam Abrras Lehdeaho vs. SHO Police Station Chung, Lahore and others (2018 SCMR 427)" while distinguishing the judgment sited by leaned counsel for the respondent herein, held that:- "16. As regards Question No. ii above, we find that the petition under section 491 read with section 561-A, Cr.P.C. was indeed maintainable. Where the petitioner , who is the real mother of the children bona fide believed that the children had been removed from her custody by exercise of deception and trickery , and thereafter forced to stay in Pakistan against their will, she could not be precluded from approaching the High Court, which was not denuded of its jurisdiction under sections 491 and 561-A, Cr.P. C. to provide relief to the petitioner . Reliance of the learned counsel for Respondent No.2 on Nadia Parveen v. Almas Noreen (PLD 2012 Supreme Court 758); Abdul Rehman Khakwani v. Abdul Majid Khakwani (1997 SCMR 1480 ) and Naziha Ghazali v. The State (2001 SCMR 1782 ) to assert that resort to section 491, Cr.P.C. can be made only when the children of tender age have been snatched recently and there is a real urgency in the matter is misplaced. We have perused the said judgments and find that they are distinguishable on facts and not be applicable to the specific facts and circumstances of this case as has elaborately been noted above."
The apex Court, while referring to the judgments in the case of "Ahmed Sami and 2 others Vs. Saadia Ahmed and another (1996 SCMR 268), Shaukat Masih Vs. Mst. Farhat Parkash and others (2015 SCMR 731), Muhammad Khalil-ur-Rehman Vs. Mst. Shabana Rahman and another (PLD 1995 SC 633), Mst. Nadia Parveen Vs. Mst. Almas Noreen and others (PLD 2012 SC 758) and Abdur Rehman Khakwani Vs. Abdul Majid Khakwani and 2 others ( 1997 SCMR 1480 )" held that:-
22. The Guardian Court is the final Arbite r for adjudicating the question of custody of children. However , where a parent holding custody of a minor lawfully has been deprived of such custody , such parent cannot be deprived of a remedy to regain the custody while the matter is sub judice before a Guardian Court. Therefore, in exceptional cases (like the instant case), where the High Court finds that the best interest and welfare of the minor demand that his/her custody be immediately restored to the person who was lawfully holding such custody before being deprived of the same, the Court is not denuded of jurisdiction to pass appropriate orders under section 491, Cr.P.C. directing that custody be restored to that person as an interim measure pending final decision of the Guardian Court. While the tender age of the minor is always a material consideration but it is not the only consideration to be kept in mind by the High Court. Other factors like best interest and welfare of the minor , the procedural hurdles and lethargy of the system, delays in finalization of such matters, the handicaps that the mother suffers owing to her gender and financial position, and above all the urgency to take appropriate measures to minimize the trauma, emotional stress and educational loss of the minor are equally important and also need to be kept in mind while granting or refusing an order to restore interim custody by the High Court. The two provisions of law namely section 491, Cr. P.C. and section 25 of the Guardians and Wards Act deal with two different situations. As such, the question of ouster of jurisdiction of the High Court on account of provisions of sections 12 or 25 of the Guardians and Wards Act or pendency of proceedings under the said provisions does not arise. There is no overlap between the two provisions as both are meant to cater for different situations, the first to cater for an emergent situation, while the latter to give more long term decisions regarding questions relating to guardianship of minors keeping in view all factors including their best interest and welfare. "
6. Thus, it can safely be held that during pendency of application before the Guardian Judge for the custody of minor , the present petition under Section 491 Cr .P.C. is maintainable.
7. Now coming to the welfare of the minor . As per record, the minor is aged about 3 or 3 1/2 years and it is settled by now that lap of mother is heavenly place and she is inherent to keep her children close to her bosom. Keeping in view age of minor which is 31/2 years, the mother is entitled to the interim custo dy and she cannot be deprived from the same until and unless decided otherwise by the Guardian Judge. Mother is symbol of sacrifice for her children and there is no substitute for her love and affection, who showers her love and affection upon children from cradle to grave. Even otherwise, she has the right of hizanat under the Muslim law and legally entitled to claim the custody of minor . In the case of "Mst. Nadia Parveen Vs. Mst. Almas Noreen and others (PLD 2012 SC 758)" the apex Court held that:- "The matter of custody of minor children can be brought before a High Court under Section 491 Cr.P.C. only if the children are of very tender ages, they have quite recently been snatched away from lawful custody and there is a real urgency in the matter and also that in such case the High Court may only regulate interim custody of the children leaving the matter of final custody to be determined by a Guardian Judge. In those cases this Court had repeatedly emphasized that in such matters the jurisdiction of a High Court under Section 491 Cr.P.C. is to be exercised, sparingly and such exercise may be undertaken only in exceptional and extraordinary cases of real urgency keeping in view that even a Guardian Judge has the requisite powers of recovery of minor children and regulating their interim custody ."
In the instant case, the minor is of tender age and has recently been removed from the custody of petitioner . The learned Additional Sessions Judge, while refusing the interim custody of the minor to the petitioner , held that the minor seems comfortable in the compan y of his father/respondent. In an identical situation, the august Supreme Court of Pakistan, in the case of "Mst. Khalida Parveen Vs. Muhammad Sultan Mehmood and another (PLD 2004 SC 1 )" held that:- "We have heard learned counsel for the parties and have also gone through the available record carefully as well as the impugned judgment. It is to be noted that the learned Judge in Chambers of the High Court has not decided the case keeping in view the relevant provisions of the law but had deprived the mother from the custody of her minor female child for the reasons that minor had emotional attachment with her father -respondent namely Muhammad Sultan Mehmood. Relevant para from the said judgment is reproduced herein below to substantiate that the judgment has not been written on consideration of law points: "Even today the response of the alleged minor detenue shown towards her mother is devoid of emotional attachment. In this situation it is not considered proper that the detenue should suffer in her attachment or other emotional towards her father , the petition is dismissed."
In our opinion in the cases pertaining to the custody of a child, the Courts are not supposed to go into the technicalities of the law and they should decide the case keeping in view the facts and circumstances of each case placed before it for the decision mainly taking into consideration welfare of the child. Although ordinarily a petition under section, 491, Cr.P.C. is not found to be competent when there is no element of illegal custody by the father of his own child but in the welfare of the child as well as to ensure that the rights which have been conferred upon the child are fully protected in a suitable manner , the Courts could also pass appro priate orders in exercise of its inherited jurisdiction. In this behalf in the judgment relied upon by the learned counsel for the petitioner i.e. Muhammad Naseer Humayon v. Mst. Syeda Ummatul Khabir (supra), a learned Judge of the High Court changed the custody in exercise of the jurisdiction under . section 491; Cr. P. C. and against the said order petition for leave to appeal was filed before this Court but leave was declined keeping in view the fact that the parties have parted their ways and the minor is of a tender age. As same situation is in the case in hand where the respondent had divorced the petitioner and the age of the minor is also two years therefore, following the observation from the reported judgment, we are of the opinion that in the interest of justice as well as for the welfare of the minor Hina Sultan alias Umm-i-Romaan aged two years, the petitioner being mother is entitled to retain her custody . "
8. The law on the subject is clear and this Court is not supposed to decide the matter of custody of minor , because it is for the Guardian Judge to decide, after recording evidence, as to who out of the spouses is entitled to retain custody of the minor . This court, in the instant proceedings has to consider the age of the minor and his welfare, keeping in mind the law laid down by the superior courts of the country that when a minor child of tender age was recently removed from the custody of his mother , the mother would be entitled to his interim custody .
9. For the reasons stated above, this petition is allowed. Minor , who has been produced by the respondent before the Court, is handed over to the petitioner .