This application under section 491, Cr.P.C. Has been filed by applicant Muhammad Yousuf alias Salim for the recovery of his son master Ahmad aged about five years from the custody of his maternal-grandfather Aba Ali Adam, the respondent No.1.
2. Mst. Fahmida daughter of respondent No.1 was married with the applicant, who was, however, divorced by her husband when she was in family way. It is alleged that Mst. Fahmida has remarried and the detenu was brought up by her maternal-grandmother, who too has expired. It is the case of the applicant that respondent No.1 has improperly detained Ahmad and he is not prepared to deliver his custody to his father, the present applicant.
3. The respondent No.1 has controverted the allegations based on facts by filing counter-affidavit.
According to him the alleged detenu has been residing with his mother Mst. Fahmida who is looking after him properly. His plea in main is that the applicant has got a remedy under the Guardians and Wards Act, 1890, and the resort to these proceedings under section 491, Cr.P.C. Is without legal sanction.
4. I have heard Mr. J.M. Hayat Qureshi, learned counsel for applicant, Mr. Ismail Padhiar, learned counsel for respondent No.1, and Mr. Muhammad Zubair Qureshi, learned counsel for the State.
5. Under section 491, Cr.P.C. The High Court is clothed with an extraordinary power to issue directions in the nature of habeas corpus. These proceedings by their nature are summary in character and the entire evidence is not recorded to decide the main controversy between the parties. 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, Asif Mowjee v. Mst.
Fatima A. Mowjee and another, reported in PLD 1987 Kar. 239, Rana Khursheed Ahmed 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. Mst. Uzma Wahid, reported in 1988 SCMR 1891, Shabbir Hussain v. Mst. Shaheen Perveen and another, reported in 1989 P Cr. L J 1689, Fouzia Jamil v. Syed Farhat Hussain Shah, reported in 1989 P Cr. L J 1736, Mst. Touqir 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, Mst. Awal Marjan v. Mst. Gul Jan, reported in 1991 P Cr. L J 717, Mst. Farzana v. Syed Muhammad Afzal and another, reported in 1991 P Cr. L J 758 and Iffat Mir v. Mobeen Qasim Mir, reported in 1991 P Cr. L J 2372, 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 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.
6. It will be manifestly clear that the matters to be dealt with by section 491, Cr.P.C. And Guardians and Wards Act, 1890, are entirely different and the IC provisions are neither mutually exclusive nor one overlaps or destroys the other (see Muhammad Javed Umrao v. Mst. Uzma Wahid, reported in 1988 SCMR 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 the High Court can interfere to order restoration of custody which has been disturbed illegally or improperly.
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 not 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. Admittedly master Ahmad is aged about five years. He has not remained with his father, the applicant at any time. His mother Mst. Fahmida was divorced when he was in her womb. The respondent No.1 has testified in his counter-affidavit that Ahmad had all along remained with his mother. The stay of Ahmad with his mother is neither illegal nor improper. According to the personal law of the parties Mst. Fahmida is entitled to his custody upto the age of seven years, and if the applicant, feels that she has lost the right of Hizanat the proper forum to pursue his remedy is the Court of Family Judge/Guardian Judge, having jurisdiction.
9. In the circumstances mentioned above, the application filed under section 491, Cr.P.C. Is wholly misconceived and is dismissed accordingly. It will, however, be open to applicant to seek his remedy before the competent Court, if he is able to make out a case for forfeiture of Hizanat against his former wife.
N.H.Q./M-1660/K