AHMAD ALI, J. Through the instant writ petition under article 199 of the Constitution of Islam ic Republic of Pakistan, 1973, the petitioner has invoked the jurisdiction of this Court with the following prayer that:- On acceptance of instant writ petition, judgment/order passed by Additional Sessions Judge-V , Abbottabad in Petition No. 143/4 dated: 19.02.2020 under section 491 Cr.P.C may kindly be set-aside and minors be handed over to the petitioner and any other relief which this Hon'ble Court deems fit be granted.
2. Precisely , the facts of the case as narrated in the instant writ petition are that respondent namely Momina Jadooon filed a petition on 17.02.2020 under section 491 Cr.P.C for recovery of her minor children namely Sewaira Khan (daughter) and Abdul Hadi (son), the said application was entrusted to learned Additional Sessions Judge-V , Abbottabad, who on that very date directed the Bailif f of the Court to produce them, after making their recovery , before the Court. On 18.02.2020 one of minors namely Abdul Hadi was produced by the Bailif f in the Court, who was handed over to the respondent/mother and for recovery minor daughter Bailif f was directed to produce her. On very next date i.e 19.02.2020, the Bailif f concerned produced the other minor Sewaira and on that very day, the Court after recording statement, handed over the minor Sewaira to respondent/mother . The present petitioner being aggrieved from the said order approached this Court through this constitutional petition mainly on the ground that he is real father of minors and that the minors were handed over to him in the light of compromise effected between him and his ex-wife in a family suit No. 105/FC titled Mst. Momina Jadoon Vs. Rashid Khan . He also contended that respondent/Mst. Momina Jadoon recorded her statement in the Court in the said family suit and with her consent handed over the minors to him, so, the application under section 491 Cr.P.C was not maintainable.
He also prayed that the minors be handed over to him.
3. Learned counsel for the petitioner heard in motion, while the record available gone through.
4. The main submission of learned counsel for the petitioner is that as the minors were handed over to the petitioner by the Court after recording statement of respondent (mother of minors) in the Court, so, the minors were in the lawful custody of petitioner and the application under section 491 Cr.P.C filed by the respondents was thus not maintainable, so was liable to be rejected.
5. Be that it may, however , we have gone through the impugned order available on file. The relevant part of the same is reproduced for ready reference:- Mother being natural guardian, cannot be substituted for anyone else, in case of minors, who can look after themselves quite well. Keeping in view the welfare and tender age of the minors, the interim custody of the above- named minors are handed over to the mother/petitioner , with the direction to take proper care of the minors and produce them before the Court, whenever required, till any order to the contrary passed by any competent forum.
In this regard, statement of the petitioner recorded and placed on file. The petition in hand stands disposed of, as no further proceeding left, with the observation that parties are at liberty to approach the Guardian Court/Family Court for redressal of their grievance, if any, which decision about guardianship of minor will be final. The Guardian Court shall deal with the matter independently , if any party approaches before it, in accordance with law, without being influenced in any manner from observations made hereinabove.
6. From bare perusal of above order depicts that the learned Court below has only granted temporary custody of minors to the respondent/mother on her application submitted under section 491 Cr.P.C. The learned Court in the said order clearly mentioned that the impugned order is subject to order of competent forum. It is also in the impugned order that parties are at liberty to approach the Guardian Court/Family Court for redressal of their grievance.
7. Lap of the mother is heavenly place and she has inherited right to keep their children close to her bosom and rare them up under her umbrella. Keeping in view the age of minors i.e 4 years and 6 years, their interim custody was directed to be handed over to the mother as she could not be deprived of their custody until and unless decided otherwise by the competent Court/Guardian Judge, as mother is symbol of sacrifices for her children and there is no substitute for love and af fection of mother .
8. It is pertinent to note here that proceedings under section 491 and 491-A Cr.P.C are summary in nature and not intended to go beyond the summary consideration of the questions essentially relevant to the alleged detention.
Court while deciding application is not required to go into the question of status or relationship of the parties by holding full-fledged trial of the counter claim and it should concern itself only with the free will of the detenue. In this respect reliance can be placed on the case law Titled: Muhammad Afzal Vs. Sessions Judge, Multan reported as PLD 2008 Lah 479 .
9. In the case reported as 2011 P.Cr.L J, it was held as under:- Any order passed regulating the custody of a minor child, would essentially be interim in nature and would be subject to final adjudication by the Guardian Judge, whose order would ultimately regular the custody .
10. Likewise, jurisdiction of High Court under section 491 Cr. P.C for recovery of minors 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 minors and regulating interim custody (PLD 2012 SC 758 titled: Mst. Nadia Parveen Vs. Mst. Almas Noureen ).
11. It is also noted that when the minors were taken from the custody of petition er by the Bailif f of Court i.e on 18.02.2020 and then on 19.02.2020, the petitioner did not bother to approach the Court even on above single date and remained absent.
12. Thus, in view of the above, as the learned lower Court has only granted temporary custody of minors to the respondents directing the parties to approach the proper forum regarding proper custody of minors. Moreover , there is also no extra ordinary or real urgency warranting interference by this Court, therefore, the instant writ petition being bereft of any merits, is hereby dismissed in limine.