' NAZIR AKHTAR, J.-- This I.-CA. Arises out of a petition filed by respondent No,1 under Article 199 of the Constitution of Pakistan read with section 491 of the Cr.P.C. For the recovery of Mst. Aisha Bibi, minor daughter from the illegal custody of respondent No,1 and for handing her over to the mother/the writ petitioner. The learned Single Judge afforded an opportunity to the appellant to explain his position and also gave time to the parties to settle the matter amicably out of Court.
However, when the efforts for a compromise proved abortive, the learned Single Judge proceeded to decide the petition on merits. The learned Single Judge was pleased to direct Shabbir Hussain, appellant, to hand over the custody of Mst. Aisha, the minor to her mother, respondent No,1, before the additional Registrar within two days.
2. During the course of hearing of this appeal, we also allowed time to the parties to reach some amicable settlement but to no effect.
3. The learned counsel for the appellant contends that the minor was handed over to the appellant by respondent No,1 at Faisalabad. Hence, the writ petition was maintainable only at the Principal Seat of the Lahore High Court. He further submits that respondent No,1 had an alternative remedy of approaching the Guardian Judge under section 25 of the Guardians and Wards Act. Hence this petition was not competent. To substantiate his contentions, the learned counsel placed reliance on Mst. Aisha Bibi v. Nazir and 2 others 1981 SCMR 301, Mst. Mariam Rozina v. Robert Ashraf 1985 P Cr. L J 1469, Mahmooda Khatoon v. Syed Zainul Hasnain Rizvi PLD 1958 (W.P.) Kar.
150. On the other hand, Mian M. Zafar Yasin, learned counsel for respondent No,1 submits that respondent No,1 was residing along with the minor at the house of her parents at Arifwala. The minor was taken away by the appellant from Arifwala, which is situated within the territorial jurisdiction of Multan Bench of the Lahore High Court. He adds that a case for the abduction of the minor daughter was registered against Abdul Hafeez and Khawar Hussain, real brothers of the appellant, at P.S. Sadar Arifwala on 1-9-1988. During the course of the investigation, the appellant had stated that he had brought the minor child from respondent No,1 who, admittedly, was residing at Arifwala in the house of her parents on 1-9-1988. Lastly, he submits that the petition under section 491 of the Cr.P.C. Was competent notwithstanding the fact that an alternative remedy under section 25 of the Guardians and Wards Act was also available. In this connection, he relies on Muhammad Javed Umrao v. Miss Uzma Vahid 1988 SCMR 1891, Uzma Vahid v. Muhammad Javed Umrao 1988 P Cr. L J 1883, Muhammad Naseer Humayon v. Mst. Syeda Ummatul Kabir 1987 SCMR 174, Mst. Naushabah Tabassam v. Ghulam Madnishah 1987 P Cr. L J 1318 and Rizvana Bokhari v. Abdul Majeed and another 1984 P Cr. L J 2582.
4. We have considered the contentions raised by the learned counsel for the parties. It appears that the point about the territorial jurisdiction of the Court was never raised before the learned Single Judge and cannot be allowed to be raised for the first time in the I.CA. At any rate, it is the admitted position that on 1-91988, respondent No,1 was residing at the house of her parents along with the minor at Arifwala. The appellant claims that respondent No,1 had herself handed over the minor to him and he brought her to Faisalabad. On the other hand, respondent No,1 claims that the minor was forcibly taken away and illegally removed from her custody by the brothers of the present appellant for which a case has been registered against them. We have been informed that the challan in the said case has been prepared under section 451/324, P.P.C.
5. Admittedly, on 1-9-1988, respondent No,1 was residing alongwith the minor at the house of her parents at Arifwala. Prima facie, the minor does not appear to have been voluntarily handed over to the appellant because in the process of taking away the minor, injuries were caused to Qasim Ali, father of respondent No,1. As mentioned above the challan in the criminal case has already been prepared and might be submitted in the Court in due course of time. Hence, we are inclined to hold that the minor was removed from the lawful custody of respondent No,1 from Arifwala, which place lies within the territorial jurisdiction of the Lahore High Court, Multan. Therefore, the petition was competently filed in the Lahore High Court, Multan Bench.
6. Adverting to the question of the alternative remedy under section 25 of the Guardians and Wards Act, we may say at the very outset that in the circumstances of the present case, which related to the welfare of a suckling baby aged about one year, there was no other efficacious remedy except to invoke the jurisdiction under section 491 of the Cr.P.C. The judgment in the case of Mst. Aisha Bibi v. Nair and 2 others 1981 SCMR 301 is distinguishable on facts. In that case, the minor girl was aged about 18 years and her parents were dead. She was living with the maternal grandmother and once went to the house of her paternal uncle to attend the funeral of her father and did not return to the house of the petitioner. The petitioner's habeas corpus petition was dismissed by the High Court on the basis of the statement of the girl who opted to live with her paternal uncle. Then a second habeas corpus petition was filed which was dismissed with the observation that the petitioner, if so advised, might move the Guardian Court. The Supreme Court refused to grant leave against the said order of the High Court. In case of Mst. Mariam Rozina v.
Robert Ashraf 1985 P Cr. L J 1469, the habeas corpus petition under section 491 of the Cr.P.C. Was dismissed with the observation that the petitioner had resorted to criminal proceedings instead of seeking appropriate redress under Civil Law. The custody of the minor daughter aged about 4 years with the father was considered to be lawful. Obviously, in that case, there was no allegation of forcible removal of the minor from the custody of the mother. In Mahmooda Khatoon v. 7ainul Hasnain Rizvi PLD 1958 (W.P.) Kar. 150, an appeal arising out of the judgment of the Guardian Judge regarding custody of the minor daughter aged about six years and eleven months was dismissed.
In that case the wife had refused to live with the husband and removed the minor children at some distance from the husband's residence. It was held that she had lost the right of custody of the minor. In the present case, there is no evidence of refusal of the wife to live with the husband.
During the course of the arguments, the appellant and respondent No,1 were allowed to sit together and sort out their dispute. Thereafter the appellant had undertaken to go to the house of his father- in-law and patch up the matter. But it is complained on the side of respondent No,1 that the appellant never visited her house and instead sent some other woman for settling the dispute. Be that as it may, the question of entitlement of the parties is not being finally decided by this Court.
Now, we may examine the judgments cited by the learned counsel for respondent No,1 regarding the maintainability of the habeas corpus petition. In the case of Uzma Vahid v. Muhammad Javed Umrao 1988 P Cr. L J 1883, the habeas corpus petition was entertained by the High Court during the pendency of the petition for custody before the Guardian Judge. It was held that mere invoking of jurisdiction of Guardian Judge did not debar the mother from invoking the jurisdiction of the High Court under section 491 of the Cr.P.C. This judgment was upheld by the Supreme Court in Muhammad Javed Umrao v. Miss Uzma Valid 1988 SCMR 1891. The Supreme Court was pleased to hold that the mother could invoke the jurisdiction of the High Court under section 491 of the Cr.P.C.
During the pendency of the petition under section 25 of the Guardians and Wards Act in the circumstances of the case. However, the direction that the minors should remain with the mother till they attain puberty was set aside by the Supreme Court. In Muhammad Naseer Humayon v. Mst.
Syeda Ummatul Kabir 1987 SCMR 174, it was held that the High Court could exercise jurisdiction under section 491 of the Cr.P.C. In a case where the minor girl was less than four years of age. It was also observed that it was not fair to the minor child of tender age to be snatched from her mother when parties were yet to get the matter resolved from the Guardian Court. In Mst. Naushabah Tabassam v. Ghulam Madnishah 1987 P Cr. L J 1318, it was held that the custody of the minor girl could be ordered to be restored under section 491 of the Cr.P.C. Without prejudice to the right of the father to move the Family Court in the matter. In Rizvana Bokhari v. Abdul Majeed and another 1984 P Cr. L J 2582, it was held that the High Court was not to stay its hands merely because of competence of Guardian Judge to adjudicate upon the dispute regarding custody of the minor.
7. It is, thus, evident that the High Court is not debarred to exercise its jurisdiction under section 491 of the Cr.P.C. In the matter of custody of the minors merely because the matter could also be decided by the Guardian Judge. The trend of the precedents laid down by the superior Courts is that in matters pertaining to the custody of the minors of tender age the jurisdiction under' section 491 of the Cr.P.C. Should be exercised by the High Court without prejudice to the rights of the parties to have the matter finally adjudicated upon by the Guardian Judge. The remedy under section 491 of the Cr.P.C. Is definitely more efficacious, speedy and appropriate in such like cases as compared to the slow processes of proceedings before the Guardian Judge. In the present case, the minor is a suckling baby and her welfare demands that she should be restored to her mother, who is otherwise entitled in the Islamic Law to get her custody. At present, there is nothing on the record to show that she is debarred, for any valid reason, to get the custody of her minor daughter. We, therefore, find no justification to interfere with the order passed by the learned Single Judge.
8. The learned Single Judge had ordered the appellant to hand over the minor to the mother within two days of the order. The appellant is to present in Court along with the minor. We directed him to hand over the minor to the mother/respondent No,1 who complied with the direction. Now, the minor has been handed over to respondent No,1 who will be entitled to retain her custody subject to any decisio made by the Guardian Judge/the Family Court in accordance with the law on a petition filed by the appellant. We may also observe that the Guardian Judge should decide the petition for custody, if any, filed by the appellant within a period of one year of the institution, in the light of the evidence adduced before him by the parties and without being influenced by any observation made in this order. With these observations, the appeal is dismissed leaving the parties to bear their own costs.