This petition under section 491, Cr.P.C. Has been moved by Mst. Shamshad Begum for the recovery of her son Osama Saad aged about five months from the custody of his father Muhammad Saad Bin Moghani, A respondent No,1. It is alleged that respondent No,1, is trying to settle down inl America, and he now wants to shift Osama Saad, out of the jurisdiction of this Court. The respondent No,1, has controverted the allegations made by the petitioner. Mr. Muhammad Maqsood, Advocate for respondent No,1, has undertaken not to remove the child from the jurisdiction of this Court.
2. The proceedings by way of habeas corpus are proceedings calling upon a person having custody of another person to produce him and demonstrate under what authority he holds him in custody. If the authority is legitimate, the High Court cannot interfere. As observed in Manzoor Hussain and another v. Manzoor Hussain reported in PLD 1974 Lah. 202 by Muhammad Afzal Zullah, J. (as he then was), proceedings- of habeas corpus, by their nature and purpose are summary in character. Controversies are not tried nor entire evidence is recorded under ordinary substantive and procedural laws, civil or criminal. These! Proceedings are not intended to go beyond the summary consideration of the questions essentially relevant to the alleged detention. The manner in which the 1B petitioner left the house of respondent No,1, and the circumstances leading to alleged detention of Osama Saad cannot be determined in proceedings which are essentially summary in character.
3. The custody of children is again a matter falling within the exclusive jurisdiction of the Family Court. While examining a petition of this nature in Najma Sadique Rasool v. Munira Hamid Rasool and another reported in 1973 P ,Cr. L J 98, Imdadally Agha, J. Observed as follows:- "The present petition is also concerning the custody of a child. The learned Advocate-General has cited in support of his argument the case of Adnan Afzal v. Captain Sher Afzal PLD 1969 SC 187, wherein it has been held that as from the 5th of April, 1966, when Judges of the Family Courts became vested with powers of Magistrate of First Class, the only Court which has jurisdiction to entertain, hear and adjudicate upon the matters specified in the Schedule was the Family Court.
This decision of the Supreme Court clinches the whole issue, therefore, in this matter the present petition under section 491, Cr.P.C. Does not lie as the remedy of the petitioner is to approach the Family Court for the purpose of obtaining custody of the child concerned."
4. The invocation of jurisdiction under section 491, Cr.P.C. As a result of matrimonial disputes was disapproved by a Division Bench of this Court in the case of Ghulam Muhammad v. Fakir Muhammad etc. Reported in PLD 1975 Kar. 118 and it was held:- "It is only obvious that this case essentially relates to a dispute regarding matrimonial affairs, it must, therefore, be laid before the Family Court of relevant jurisdiction, rather than before the High Court ,in its extraordinary jurisdiction under section 491, Code of Criminal Procedure. The allegations regarding wrongful confinement, etc. If true would also involve offences punishable under the Pakistan Penal Code, for which the normal venue is again the ordinary Criminal Court of the relevant jurisdiction."
5. This view was followed in Mukhtaran v. Muhammad Anwar etc. Reported in NLR 1979 Criminal (Lahore) 185 = 1979 P Cr. L J Note 151 p. 96 wherein it was observed:- "Where the mother and the father are in dispute over their marital affairs and the custody of the minor aged 2 to 3 years is involved, the proceedings in the nature of habeag corpus are not at all suited to the occasion for any Court which is called upon to deal with a minor or its very custody exercises a parental jurisdiction which requires that it should act for the welfare of the minor. The parties can thrash out their own differences elsewhere as to their claim to the custody of the child, but so far as the regulation or alternation in the custody of the minor is concerned it can take place only under the laws governing the custody of the minor and whether his custody of the minor has been obtained legally or illegally properly or improperly against written agreement or in conformity with it is not a question of concern. I do not think in the circumstances the custody of the father can be called so illegal as to require interference by resort to habeas corpus. The proper course for the petitioner or anyone who is interested more in the welfare of the minor is to move the Guardian Judge and to demonstrate there that it is in the interest of the minor that the custody should remain with a particular person."
6. The learned counsel for the petitioner has, on the other hand, invited my attention to cases reported as Mst. Khursheed Begum v. Muhammad Hussain 1968 P Cr. L J 1090, Mst. Rizwana Bokhari v. Abdul Majeed Shah and another 1984 P Cr. L J 2582, Mst. Hidayat Bibi v. Noor Muhammad 1984 P Cr. L J 3088 and Mst. Gullan v. Allanditta 1984 P Cr. L J 1047, in an attempt to show that in appropriate cases, the High Court has jurisdiction under section 491, Cr.P.C. To determine such a question.
7. The first case relates to a dispute between the husband and wife over the custody of sons aged 10 years and 7-1/2 years. A learned Single Judge of the Lahore High Court, while answering the point in issue in affirmative held as follows:- "Coming to the merits, it is no doubt true that the learned Guardian Judge is sitting over the question of territorial jurisdiction raised before him, though the applications were filed in September, 1966, but it is not desirable to decide the question of the custody of the children in this application. An explanation, however, should be called from Mr. Akhtar Hassan, Guardian Judge, Lahore, for the unnecessary delay in the proceedings before him. The question of custody has to be determined after recording of evidence in the case which I would not like to do here in this application. r especially in view of the fact that the case is very much contested and the respondent is prepared to give a bond about the safety of the children so long as they are in his custody. This I feel, is a sufficient guarantee of the safety of the children in the custody of the respondent. He will execute a surety bond in the sum of Rs,10,000, with one surety in the like amount to the satisfaction of the Deputy Registrar of this Court for this purpose. He has also undertaken to produce the children every month before the Guardian Judge who will fix the date in order to provide an opportunity to the petitioner to see them so long as they are in the custody of the respondent. The Guardian Judge is, however, directed to decide the matter pending before him without any further delay."
8. The case of Mst. Rizwana Bokhari v. Abdul Majeed Shah is about the dispute of custody of minor between mother of the child on one side and maternal-uncle and grandfather on the other side.
This authority is, therefore, not relevant. Likewise the case of Mst. Hidayat Bibi is also distinguishable.
9. In the case of Mst. Gullan, Sardar Muhammad lqbal, C.J. (as he then was), observed that the High Court is competent to exercise jurisdiction under section 491, Cr.P.C. In cases of this nature, although the matter of the custody of minor girl was to be decided by the Family Court. However, in that case the detenu girl was taken away by her father in improper manner without having recourse to law.
10. I have carefully examined the above authorities, and am of the view that in exceptional cases where the detenu is taken away by his own father in improper manner, through deceitful means or use of force, recourse can be had to the proceedings under section 491, Cr.P.C. By the mother, which is not the position in the present case. In considering the question whether the stay of Osama Saad, aged about five months with his own father is unlawful, all that the High Court can do is to see whether there is any patent defect visible in the authority of respondent No,1, who is incidentally his natural guardian, if not legal guardian.
10-A. The main anxiety of the petitioner is about the shifting of Osama Saad to America. Mr. Muhammad Maqsood, learned counsel for respondent No,1 has given an undertaking in this behalf.
The respondent No,1 is, however, directed to furnish security in the sum of Rs,1,00,000 (Rupees one lac) within 15 days before Nazir of this Court, thereby undertaking not to shift Osama Saad out of the jurisdiction of this Court, till this issue is disposed of by the competent Court having jurisdiction.
11. In the result the application under section 491, Cr.P.C. Is dismissed.