SARDAR MUHAMMD EJAZ KHAN, J.---The captioned habeas corpus petition has been filed under Section 491 of Criminal Procedure Code for pro-duction of alleged detenu, Parishy Eshal (URDU TEXT) from unlawful custody of respondent No.4.
2. On 09.03.2023 respondents Nos.2 and 3 were directed to produce the alleged detenu before the Court to observe that the alleged detenu is in improper custody of respondent No.4 or not?
3. Today, the alleged detenu, Parishy Eshal (URDU TEXT) has been brought before the Court by Mujeeb Alam Head Constable No.322 Police Station, Kolti, who is minor, having age of 4-1/2 year. It looks proper to provide short time to the parties to reach at their mutual decision for which time was provided but they failed to reach any unanimous decision, therefore, the learned counsel for the parties were directed to argue the case.
4. The learned counsel for the petitioner, more or less, reiterated grounds of petition, which have sufficiently been reiterated in pre-paras, hence, there is no need to discuss here in black and white.
5. The learned counsel for respondent No.4 filed objections upon the petition filed by the petitioner and vehemently controverted the arguments of the learned counsel for the petitioner on the ground that the minor child is in tender age and is also familiar to her father, hence, the father being natural guardian has preferential right of custody of minor while in support of his contention, he placed reliance upon the following case law:-- i) [PLD 2012 Supreme Court 758], ii) [1996 CLC (Karachi) 1]; iii) [PLD 2008 (Karachi) 198]; iv) [2016 MLD (Lahore) 801]; v) [2016 MLD (Lahore) 1061]; vi) [2019 MLD (H.C. (AJ&K) 1502]; vii) [2020 YLR Note 6]; and viii) [2020 YLR 401]
6. Having heard the respective arguments advanced by the learned counsel for the parties, I have minutely perused the record of the case with my utmost care and caution to attend the real controversy between the parties.
7. It is an admitted fact that Parishy Eshal who is in tender age would need constant care of mother and it is a universal truth that there cannot be any substitute for a mother and that the lap of mother is God's own cradle for a child, manifestly the custody of minor with the respondent No.4 is improper, if not illegal.
8. So far as the contention of the learned counsel for respondent No.4 that the petition in hand is not maintainable and only guardianship application will lie before the Guardian Judge under the provision of Guardian and Wards Act, carries no weight particularly this Court on account of an interim measure can grant custody of minor to his/her lawful guardian even case is pending in the Guardian Court and in this regard case referred to and relied upon by the learned counsel for respondent No.4 is distinguishable due peculiar circumstances of the case in hand. Reliance in this respect can be placed on a case, reported as Mst. Zarmeen v. Dr. Omer Mahayuddin Shekh and others [2013 MLD 1640].
"The preponderance of the judgments quoted at the bar by the learned counsel for the petitioner are to effect that the jurisdiction of the Courts under the Guardians and Wards Act, 1890, in respect of the custody of minors and for recovery/production of minors under section 491 of Cr.P.C. are entirely different. There is no question of one excluding the other, overlapping the other or destroying the other and there is no repugnancy between the said two provisions, moreover, this Court as an interim measure pending final decision by the Guardian Court can pass an appropriate order where it finds that the interest and welfare of the minor demands that he/she be committed immediately to the custody of the person who was lawfully holding his/her custody before being deprived of the same.
In the above reported, it has further been held that:-- "It, therefore, cannot be established without recording of evidence as to when and under what circumstances the minor was snatched from the petitioner, indeed, if at all. This Court, however, in the exercise of its jurisdiction under section 491 of the Cr. P. C. does not normally record evidence to determine disputed questions of fact as the procedure adopted in such like cases is summary in nature. In such like circumstances, however, this Court whilst keeping the welfare of the child as also the attending circumstances in mind is empowered to pass appropriate orders to ensure that the rights conferred upon the child are fully protected in a suitable manner in the exercise of its inherent jurisdiction. This is especially so where the minors are of tender age as in the instant case. Reliance in this regard is placed on the judgment of the Hon'ble Supreme Court cited by the learned counsel for the petitioner and reported as Mst. Khalida Parveen v. Muhammad Sultan Mahmood and another (PLD 2004 Supreme Court 1) wherein it has been, inter alia, held that even in cases where it is found that the petition under Section 491, Cr.P.C. is not competent as 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 conferred upon the child are fully protected in a suitable manner, this Court can pass appropriate orders in exercise of its inherent jurisdiction.
15. Under the circumstances, this petition is accepted and it is directed that by way of an interim measure the custody of the minors be handed over by respondents Nos. 1 to 3 to the petitioner forthwith with a further direction to the learned Guardian Judge, Lahore, to decide the matter pending before him expeditiously, purely on merits without being influenced by any observation having been made in this order."
9. Be that as it may this petition is accepted and it is ordered that on account of interim measure the custody of minor-over to the petitioner-mother from Parishy Eshal is handed respondent No.4 in the open Court in view of minor's age while father of petitioner, Muhammad Alam, present before the Court is directed to furnish surety bond in sum of Rs.2,00,000/- to the satisfaction of trial Court seized with the matter that appearance of petitioner along with minor before the Guardian-Judge, Kotli, will strictly be made as and when the learned Guardian Judge, may call for meetings of minor with father-respondent No.4 in a case titled Muhammad Qazafi Bashir Chaughtai v. Nadia Alam, which is fixed for 20.03.2023, failing which this order shall not be a bar on the learned Guardian Judge, to pass any appropriate order in view of better welfare of minor in accordance with law. In view of prevailing situation, S.H.O. Police Station Civil Secretariat, Muzaffarabad, is directed to provide safe journey for the protection of petitioner and minor from the premises of this Court to their destination, as they required.
10. Petition is disposed off accordingly.