' This application made under section 491-A, Cr.P.C. Involves a somewhat important point of law on which there does not seem to be any direct authority of our own High Court.
2. Applicant Mst. Aasia was married to respondent Mashhud Ahmed on 19-7-1984. The parties lived together happily for some time, but thereafter their relations became strained and they were leading a cat and dog life.They had two issues out of this wed-lock, one son by name Waqqad Ahmed, aged about 3-3/4 years and a daughter, by name Nabigha alias Maria, aged about two years. The marriage which had become centre of misery ended in divorce on 25-6-1989. Both Waqqad Ahmed and Nabigha, (Breast feeding daughter), however, continued to stay with the applicant, who got Waqqad Ahmed admitted in Karachi High School, where he studied till 28-9- 1989, when according to applicant he was deceitfully taken by respondent No,1, for some time.
Likewise on 2-10-1989, the respondent No,1 took Nabigha for some time. Both Waqqad Ahmed and Nabigha were then wrongfully confined, with the result that on 8-10-1989 the applicant filed the present application under section 491, Cr.P.C. Which was admitted to regular hearing on 11-10-1989, with direction to respondent No,1 to produce the alleged detenues before the Court on 16-10-1989.
On this date Mr. Shamshad Alam Lari Advocate for respondent No,1 appeared before this Court and made a statement that the alleged detenues were residing at Sargodha in the Province of Punjab out side the territorial jurisdiction of this Court. The affidavits of the parties were then filed. The alleged detenus were, however, not produced before the Court.
3. I have heard Mr. M.A. Kazi, learned counsel for applicant, Mr. Shamshad Alam Lari, learned counsel for respondent No,1 and Mr. Shaukat H. Zubedi, learned A.A.-G. For State.
4. A preliminary objection has been raised about the jurisdiction of this Court and I propose to dispose it of first.
5. Section 491, Cr.P.C., which has been invoked by the applicant lays down as follows:-- "Power to issue directions of the nature of a 'habeas corpus'. (1) Any High Court may, whenever it thinks fit, direct--
(a) that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law;
(b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty;
(c) that a prisoner detained in any jail situate within such limits be brought before the Court to be there examined as a witness in any matter pending or to be inquired into in such Court;
(d) that a prisoner detained as aforesaid be brought before a Court-martial or any Commissioner for trial or to be examined touching any matter pending before such Court-martial or Commissioner respectively;
(e) that a prisoner within such limits be removed from one custody to another for the purpose of trial; and
(f) that the body of a defendant within such limits be brought in on the Sheriff's return of cepi corpus to a writ of attachment,
(2) The High Court may, from time to time, frame rules to regulate the procedure in cases under this section.
(3) Nothing in this section applies to persons detained under any law providing for preventive detention."
6. A perusal of the above section shows that the High Court has jurisdiction to issue directions in the nature of habeas corpus in regard to the persons within A the limits of its appellate criminal jurisdiction. The cases reported as Nicholas Schinas v. The Emperor AIR 1944 Cal. 76, Vishambhar Dayal Tripathi v. U.P. Government A 1 R 1945 Oudh 117, V.M. Sara Nagpani v. Emperor AIR 1946 Nag.
20, S. Bismillah Shah v. The N.-W.F.P. Government PLD 1950 Pesh. 43 and Nazir Ahmed v.
Muhammad Faiz PLD 1984 Lah. 149 are relevant on this point.
7. The record shows that both Waqaad Ahmed, aged about 3-3/4 years and Nabigha, aged about two years were residing with applicant till 28-9-1989, and 2-10-1989, respectively when their custody was deceitfully obtained by respondent No,1, who got them removed to Sargodha, outside the criminal appellate jurisdiction of this Court. Applicant who is the lawful guardian of Waqqad Ahmed and Nabigha was thus deprived of the custody of her children in unlawful manner.
8. 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.
9. The invocation of jurisdiction under section 491, Cr:P.C. For the custody of children is again a matter of sharp controversy. 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. (as he then was) 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, bear 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.
10. This view was followed in Mukhtaran v. Muhammad Anwar etc. Reported in 1979 P Cr. L J Notes 151 at 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 habeas 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 alteration 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."
11. In the case of Mst. Aisha Bibi v. Nazir and 2 others reported in 1981 SCMR 301, it was held by the Supreme Court that where the dispute between the parties was essentially regarding the custody of a girl then it was essentially a matter for the Guardian Judge to decide.
12. A contrary view is, however, taken in Begum Gulzar v. Sajjad Akbar 1977 P Cr. L J 800, Muhammad Naseer Humayun v. Mst. Syeda Ummatul Khabir 1987 SC MR 174, Rana Khurshid Ahmed v. Ashiq Risaldar and another 1988 P Cr. L J 1111, Uzma Wahid v. Muhammad Javed Umrao 1988 P Cr. L J 1883, Muhammad Javed Umrao v. Mst. Uzma Wahid 1988 SCMR 1891 and Shabbir Hussain v. Mst.
Shaheen Parveen and another 1989 P Cr. L J 1689. The ratio of the above authorities is that in matters pertaining to the custody of minors of tender age the High Court has got jurisdiction under section 491, Cr.P.C. Which D remedy is definitely more efficacious, speedy and appropriate and is to be exercised without prejudice to the rights of the parties to have the matter finally adjudicated upon by Guardian Judge.
13. It will be manifestly clear that the matters to be dealt with by section 491, Cr.P.C. And Guardian and Wards Act, 1890 are entirely different and the provisions are neither mutuallly exclusive nor one overlaps or destroys the other. 1988 S CM R 1891. Ordinarily the disputes as to guardianship should be decided by a Court under the Guardians and Wards Act, 1890, as that is the ordinary remedy for deciding such disputes, but in exceptional cases High Court can interfere to order restoration of custody which has been disturbed illegally or improperly. This was in fact the view taken by me in the case of Mst. Sharnshad Begum v. Muhammad Saad Bin Mughani and another reported in 1989 P Cr. L J 1327, which gets support from cases reported as Asif Mowjee v. Mst. Fatema A. Mowjee and another PLD 1987 Kar. 239 and Fauzia .Tamil v. Syed Farhat Hussain Shah Bukhari and another 1989 P Cr. L J 1736.
14. As observed in Muhammad Rafique v. Muhammad Ghafoor reported in PLD 1972 SC 6, the High Court has two-fold jurisdiction under section 491, Cr.P.C. (i) to deal with a person within its appellate criminal jurisdiction according to law; and (ii) to set him at liberty if he is illegally or improperly detained. The question which falls for determination, however, is that if the Court finds that the person brought before it was being illegally or improperly confined or detained what order can he passed regarding the custody of that person. If the person is a minor, the Court may make over his custody to the guardian which will he dealing with him in accordance with law, but if the person is major, the only jurisdiction which the Court can exercise is to set him at liberty whether illegally or improperly detained in public or private custody or not.
15. Admittedly, both the alleged detents are minors of tender age. One of them is a breast feeding daughter. Their custody was obtained through wrongful means and both of them were deliberately taken out of appellate criminal jurisdiction of this Court, with a view to defeat the ends of justice.
The pica that the applicant had herself abandoned the custody of both the above children after she entered into marriage bond with a stranger, is devoid or any force. The manner in which the minors were removed outside Karachi, proves something else. The respondent No.1 is a practising Advocate of this Court, and, therefore, it does not require much of calculation how to multiply 2 by 2.
16. There cannot be any substitute for a mother. As observed in Mst. Khalida Begum v. Muhammad Altaf, reported in 1983 CLC 678, mother's lap is `God's own cradle' for a child and as between the father and the mother other things being equal, a child in the circumstances of a given case should remain with the mother.
17. Mr. M.A. Kazi, learned counsel for applicant has placed reliance upon an authority reported as Ayesha Butt v. Khawaja Asad 1988 P Cr. L J 334, in which the minor was removed from the Province of Punjab of High Court in proceedings under section 491, Cr.P.C. While examining this conduct of the respondent Muhammad Munir Khan, J. Observed as follows:-- "I am convinced that Kh. Asad respondent has deliberately concealed the address of his mother at Karachi and the child has been wrongfully detained and concealed within his connivance, in order to frustrate the order of this Court. Kh. Asad respondent has shown reckless disregard for the order of the Court whereby he was directed to produce the child before it. On his own showing, his mother Mst. Razia Azhar has refused to bring the child to Lahore for producing her in the Court.
Since the alleged detenu is a child aged 2 years; that the petitioner being her real mother is lawful guardian to the child; that she enjoys right of Hizanat; that her right of the custody of the child is higher than the father; that the custody of the child was allegedly obtained temporarily by Kh. Asad and his father by deception; that under the law, child continues to be in the keeping of lawful guardian i.e. Mother, though the actual physical possession should be temporarily with father or anybody else and that, in any case, the child has been removed from Lahore to Karachi by grandmother who has no legal right to the custody of the child in the presence of mother, mother's mother and father, without the consent of the mother and thereafter, the child has not only been wrongfully confined but has also been concealed. I direct D.S.P. Present in the Court to register a case under section 365/368, P.P.C. Against Kh. Asad and others. The D.S.P. Will also recover the child from wherever found and produce her before the Court on next date. In case, the child is recovered before next date, she will be placed under the temporary custody of Mst. Ayshah Butt petitioner/mother subject to her executing bond in the sum of Rs.50,000 for producing her in the Court. The Inspector-General of Police, Sindh, Karachi will render all possible help to the D.S.P. Of Lahore police for the recovery of the detenu in case she is found to be detained in Karachi."
18. I am in complete agreement with the view taken in the above cited authority. Both the alleged detenus, in law continue to be in lawful custody of their mother viz. Applicant, although they are removed out of territorial jurisdiction of this Court. The authorities cited at para. 6 ante, are to be read in this context. Again nobody can be allowed to commit fraud with statute. In this view of the matter this Court can certainly give direction to respondent No.1, to produce detenus before the Registrar of this Court on 5-12-1989 at 10-30 a.m., who shall deliver their custody to applicant. It will, however, be open to respondent No.1, to seek remedy before competent Court, if he is able to make out a case for forfeiture of Hizanat against the applicant.