1. 'This application under section 491, Cr.P.C. Has been filed by Mst. Nasreen Bano against her husband, Mirza Ali, respondent No,1. There arose some differences between the applicant and respondent No,1. The applicant filed an application under section 12 of Guardians and Wards Act, (hereinafter referred to as 'the Act') in G. & W. S. No,857 of 1978 pending before the learned IInd Senior Civil Judge, Karachi (Central), for the temporary custody of the minor Ahsan Ali, aged about 2-1/2 years only, who was born out of the wedlock of the parties. The learned Ilnd Senior Civil Judge, Central by an order dated 28-11-1988, passed under section 12 of the Act held:- "In view of the above discussion I have come to the conclusion that the welfare of the minor, Ahsan Ali at present lies with the petitioner."
2. ' He, therefore, allowed the application and directed the respondent/husband to deliver the temporary custody of the minor to the petitioner forthwith. The respondent No,1, however, failed to comply with this order. The applicant, therefore, filed an application before the learned Ilnd Senior Civil Judge, Central, on the following day, namely, 23-12-1988, under section 100, Cr.P.C. For search- warrant of the minor and his production before the Court with the police aid. The learned Ilnd Senior Civil Judge is said to have not passed any order on this application. The respondent No, 1, however, in the meanwhile filed an appeal against the order of the learned Ilnd Senior Civil Judge, Central, dated 28-11-1988 before the Additional Sessions Judge, IIIrd Central, but could not succeed in getting an order of stay from the learned Appellate Court. He has also at the same time not handed over the custody of the minor to the applicant in compliance with the order of the learned trial Court, dated 28-11-1988. The applicant/mother of the said minor has, therefore, made this application under section 491, Cr.P.C. Praying that this Court may direct the respondent No,1 to hand over the custody of the minor, Ahsan Ali (respondent No,2) to her. She has further stated that 'in case the minor is further allowed to stay with the respondent No,1, the child's basic necessities, his health, education and other requirements of life will be overlooked and ignored by the respondent No,1 as the minor is of tender age and requires her love and affection.
3. ' When this application came up for hearing before me on 16-1-1989, I considered it necessary, after hearing the arguments of the learned counsel for the applicant, to issue notice to learned A.-G., Sind. I ordered accordingly. Mr. A.G. Mangi, the learned A.A.-G. Appeared before me on Court notice and submitted that this application is not maintainable inasmuch as the learned IInd Senior Civil Judge concerned is duly possessed of the powers under section 25 of the Act, to cause the ward to be arrested and to be delivered into the custody of the guardian and for that purpose even to exercise the powers conferred on a Magistrate of the Fist Class under section 100, Cr.P.C. The learned counsel for the applicant, however, vehemently urged that the application for search- warrant has already been made to the learned trial Court, but it has failed to bring any fruitful results. And hence the applicant is left with no course open but to invoke the jurisdiction of this Court for grant of writ of habeas corpus against the respondent No,1. The learned counsel for the applicant further contended that where a minor is illegally or improperly detained, as in the instant case, the High Court is fully competent to issue writ of habeas corpus.
4. ' I have given due consideration to the submission made at the Bar. I am of the opinion that it may be a case of wrongful detention of the minor, but it cannot be equated with illegal detention so as to attract the application of the provisions of section 491, Cr.P.C. The contention of the learned A.A.- G. That the remedy can be had under section 25 of the Act, I think, is also unsustainable inasmuch as section 25 of the Act comes into play only when the ward is left or removed from the custody of a Guardian of his person. In the instant case, this condition precedent, I find, does not exist inasmuch as the applicant has not so far been appointed as guardian of the person of the minor.
5. The applicant has been given only the temporary custody of the minor and hence the Guardian Judge could not at this stage exercise the powers which are available to him under section 25 of the Act. It is, however, pertinent to note that for disobedience or non-compliance of the order passed by the Guardian Judge, under section 12(1) by any person, the necessary provisions for punishment have been made under section 45 of the Act which, inter alia, provides that if a person having the custody of minor fails to produce him in compliance with a direction under section 12, subsection (1) etc., he shall be liable, by order of the Court, to fine to the extent given therein. And to detention in the Civil Jail until he undertakes to produce the minor or cause him to be produced. I am, therefore, of the opinion that the remedy of the applicant lies with the learned Guardian Judge and not by invoking the provisions of section 491, Cr.P.C. I also do not substance in the apprehension of the learned counsel for the applicant that simply because the case file.Has been requisitioned by the learned appellate Court, the Guardian Judge has become helpless. The applicant is already in possession of the certified copy of the order and on the basis thereof she can easily apply for and obtain requisite orders from the learned trial Court. Looking to the tender age (2-1/2 years) of the minor, I would also direct the learned appellate Court to ensure the expeditious disposal of the appeal at the most within one month from today.
6. ' For the foregoing reasons, the application is dismissed with the above observations, in limine.