This petition under section 491, Cr.P.C. Has been moved by Mst. Dilbar Jan for the recovery of her son Waqas, aged about two years from the custody of Khan Muhammad, her previous husband.
2. The marriage between the applicant and respondent took place on 8-1-1986 and out of this wedlock Waqas, the alleged detenu was born. The relations of the parties were, however, strained and consequently the marriage was terminated through a Talaknama received by the applicant on 10-6-1990. The applicant then filed a suit bearing F.S. No.549 of 1990, claiming maintenance for herself and for her minor son Waqas. It is alleged that during the pendency of this suit the applicant was deprived of the lawful custody of her son Waqas by the respondent who removed him from her custody by show of force. The applicant then approached S.H.O. Jamshed Quarters Police Station, but without any result. Having no other efficacious remedy the applicant has approached this Court for the recovery of her minor son Waqas.
3. The respondent has disputed the allegations made by the applicant. According to him the custody of Waqas was delivered to him by the applicant herself in pursuance of a Faisla made by the Jirga, and in lieu thereof she had received possession of a house situated in her native village.
4. 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 Lab. 202, by Muhammad Afzaf 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.
5. As observed in Begum Gulzar v. Sajjad Akbar reported in 1977 P Cr. L J 800, Muhammad Naseer Humayun v. Mst. Sayeda Ummatul Khabir reported in 1987 SCMR 174, Rana Khurshid Ahmad v.
Ashiq Risaldar and another reported in 1988 P Cr. L J 1111, Uzma Wahid v. Muhammad Javed Umrao reported in 1988 P Cr. L J 1883, Muhammad Javed Umrao v. Uzma Wahid reported in 1988 SCMR 1891, Shabbir Hussain v. Mst. Shaheen Parween and another reported in 1989 P Cr. L J 1689, Tauqir Fatima v. Iqbal Mehdi Shah and another reported in 1990 P Cr. L J 342, Musarrat Jabeen v. Dr. Khalid Nawab and another reported in 1990 P Cr. L J 686, Mst. Aasia v. Mashhud Ahmad and another reported in 1990 P Cr. L J 847 and Mst. Farzana v. Syed Muhammad Afzal and another reported in 1991 P Cr. L J 758, in the matters pertaining to the custody of minors of tender age the High Court has got the jurisdiction under section 491, Cr.P.C., which 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 the Guardian Judge.
6. 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 mutually exclusive nor one overlaps or destroys the other. 1988 SCMR 1891. Ordinarily the dispute as to guardianship should be decided by the 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 is view taken by me in the case of Mst. Shamsad 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 reported in PLD 1987 Kar. 239 and Fauzia Jamil v. Syed Farhat Hussain Bukhari and another 1989 P Cr. L J 1736.
7. 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 be 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 be 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.
8. 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.
9. The plea raised by the respondent about the custody of minor Waqas having been abandoned by the applicant herself in pursuance of the Faisla made by the Jirga cannot be determined by this Court in a proceedings which are summary in nature. The applicant is the legal guardian of her son Waqas, who has all along remained with her. In the circumstances of the present case, applicant is entitled to the custody of her minor son Waqas.
10. Having regard to the above circumstances, the application is allowed and the respondent is directed to deliver the custody of Waqas to applicant before Registrar of this Court on 26-5-1991 at 9-00 a.m. It will, however, be open to respondent to seek remedy before the competent Court, if he is able to make out a case for forfeiture of Hizanat against the applicant.