1. This application under section 491,, Cr.P.C. Has been filed by the applicant, who is the mother of the minor Muhammad Ali aged about 20 months. The respondent No.1 is the father of the minor and is said to have confined the said minor in his house since 3-11-1990.
2. The facts as given in the application arc that the applicant was married to respondent No.1 on 6-8- 1988 and the minor Muhammad Ali was born out of the wedlock on 16-5-1989. The behaviour of the respondent No.1 towards the applicant is said to have been changed on account of influence of his mother and sister and the applicant's life in the house became miserable. It has also been stated that previous to the marriage of the applicant with respondent No.1, the said respondent had married one Mst. Shahnaz in the year 1975, but that marriage ended in divorce after protracted litigation. The marriage of the applicant with the respondent No.1 was an exchange marriage inasmuch as the sister of the respondent No.1 was married to the brother of the applicant but that marriage proved unsuccessful resulting into divorce on 10-9-19%). After that, it is alleged, that the respondent No.) made the applicant's life miserable and finally on 3-1-1991) the applicant was maltreated by the respondent No.1 and driven out from the house, forcibly taking away the minor Muhammad Ali, then aged about 18 months. The child is said to be a suckling and has been forcibly kept by the respondent No.1 with himself. It is also contended that the applicant, that finding no alternative, she has moved for Khula` and has also filed proceedings under the Guardian and Wards Act for the custody of the said minor. To the knowledge of the applicant, the respondent was intending to remove the child out of the jurisdiction of this Court, so that the applicant might be deprived of her right to seek the custody.
3. Mr. Muhammad Ilyas Khan, the learned Advocate for the applicant, has contended before this ('curt that the minor Muhammad Ali, who is now about 20 months of age, has been deprived of the right of Hizanat, which vests in the mother and the said right could not be taken away except in case of her own misconduct or marriage with stranger. He has referred to 1988 P Cr. L J 1983. He has next contended that an order under section 491, Cr.P.C. Would not in any way affect the proceedings before Guardian Judge. He has placed reliance upon 1988 P Cr. L J 1111. The learned Advocate has further referred judgment reported in Mst. Tauqir Fatima v. Iqbal Mehdi Shah and others 1990 P Cr. L J 342 and has argued that the proceedings of habeas corpus by their nature and purpose are summary in character and the controversies are not tried nor entire evidence is recorded as is done under ordinary substantive and procedural laws, civil or criminal. The proceedings under section 491, Cr.P.C. Are not intended to go beyond the summary consideration of question essentially relevant to alleged detention. In this judgment reliance has been placed on PLD 1974 Lah. 202. He has also placed reliance on a case of Muhammad Jawaid Umrao v. Miss Uzma reported in 1988 SCMR 1891 and has argued that the matters to be dealt with by section 491, Cr.P.C. Guardian and Wards Act are entirely different and the provisions are neither mutually exclusive nor one overlaps or destroys the other.
4. Mr. G.M. Saleem, Advocate for the respondent No.1, has filed counter-- affidavit in Court today and has annexed a number of documents. He has contended that the child was never on the mother's feed, but was on the artificial feed and in proof thereof, he produced a number of documents.
5. Annexure `C-1', which is in about 10 pages, is said to be a time-table maintained by the applicant in her own handwriting, showing the timings at which the applicant used to give artificial feed to the minor. This according to the Advocate, will show that the child was not on the mother's feed, but on artificial feed, as already stated. It has also been contended by the learned Advocate for the respondent No.1 that in proceedings before the Guardian and Wards Court, a direction was given to the respondent No.1 on 29-11-1990 to produce the minor in Court on 10th December, 1990 for his meeting with the applicant. This practice, according to the Advocate, continues and handing over the custody of the minor to the applicant in the circumstances would not be proper.
6. Mr. A.A. Mohammad Ally, A.A.-G. Has argued that the question is not whether the applicant was able to feed the child or not. Question would be of the tender age of the minor. According to the learned A.A.-G. No mala fides can be attributed to a mother in case of a minor child of that tender age.
7. I have considered the arguments of the learned Advocate at length and also perused the case- law. It is an admitted position that the minor Muhammad Ali is now aged about 20 months and has been detained by the respondent No.1 in his house against the wishes of the applicant/the real mother. The pendency of the proceedings under the Guardian and Wards Act would not take away the jurisdiction of this Court in hearing the petitions under section 491, Cr.P.C. The case-law referred to above is very clear in this respect. I have, therefore, no hesitation to hold that the minor,, Muhammad Ali is not being kept by the respondent No.1 in his house in lawful manner and it is against the wishes of the applicant. I, therefore, direct that the minor, who has been brought by the respondent No.1 in Court today should be handed over to the applicant.