' The applicants have filed this habeas corpus petition in respect of their daughter Baby Afshan Salim, aged about 8-1/2 years, who is illegally or improperly detained by the respondents Nos.2 and 3.
2. The facts given by the applicants, in brief are that Baby Afshan Salim is their daughter and was born on 1-4-1984. The respondent No,3 is the grandmother of the minor and real mother of the applicant No,1 Salim Ahmed. After the death of her first husband Muhammad Umar, respondent No,3 Jamila Begum married with respondent No,2 Syed Marghoob Ahmed. After the applicant No,1 Najma Begum gave birth to second daughter on 8-1-1988 and in view of her serious illness it was agreed that the minor Baby Afshah Salim will reside with her grand-mother Jamila Begum (respondent No,3). In or about the year 1991, on a desire of the applicants to take back the baby from respondents Nos.2 and 3, there arose a dispute between the parties, as a result of which a Habeas Corpus Petition No,447 of 1992 was filed before this Court, praying therein to set the minor Baby Afshan at liberty and deliver her custody to the petitioners. Said petition was disposed of by a compromise order, dated 30-9-1992 in the following terms:- "The parties have compromised. By consent, it is ordered that respondent No,2 Mst. Jamila Begum and Baby Afshan Salim will reside alongwith the petitioners. The respondent No,2 would have right to visit her other sons also and in that case she may take Baby Afshan Salim with herself for two or three days with the consent of the petitioners."
3. It has been contended by the learned Advocate for the applicants that said compromise was acted upon but on 30-9-1992 the respondent No,3 Jamila Begum in violation of the consent order took away Baby Afshan Salim from the petitioners' house without their consent. Although respondent No,3 came back on the following day but on 3-10-1992 she forcibly took away the minor without applicants' consent and has illegally confined the minor in the house of her second husband Syed Marghoob Ahmed. For such act an F.I.R. Was also lodged at Khawaja Ajmer Nagri, Police Station Karachi. A Criminal Miscellaneous Application No,1820 of 1992 was filed in this Court for the recovery of the Baby Afshan Salim, but a learned Single Judge of this Court ordered on 22- 11-1992 that a fresh application under section 491 of Cr.P.C. May be filed.
4. I have heard the learned Advocates of the parties. Both the learned counsel have referred a number of authorities on the point whether the custody of the minor should remain with the parents or with the grandmother respondent No,3 and her second husband Syed Marghoob Ahmed. I would not advert to such legal aspect of the case in view of the fact that in the earlier petition under section 491 of Cr.P.C. This Court had disposed of the matter by compromise and the minor Baby Afshan Salim was ordered to be handed over to the applicants herein, who are the real parents, with further direction that the grandmother Mst. Jamila Begum would also live with the applicants and may take away the minor to her own house for two or three days. Such compromise order was acted upon, but thereafter Jamila Begum, the grandmother of the minor, without the consent of applicants took away the baby from the house of the applicants and has detained the minor with herself and with her second husband. Not only that but an application under sections 7 and 10 of the Guardians and Wards Act, 1890 has also been filed by the respondents in the Court of District Judge, Karachi East.
5. The contention of the learned counsel appearing for the respondents that the minor Baby Afshan Salim was brought up by her grandparents and her custody was handed over by the applicants out of their free will would not in any manner defeat the right of the applicants to get the custody of the minor in view of the earlier consent order passed by this Court. In their application under Guardians and Wards Act if they succeed to show that it would be for the welfare of the minor that her custody be delivered to the respondents, the Court of District Judge who is seized of the matter may pass such order in accordance with law. But in this petition under section 491 of Cr.P.C. All that is to be seen is, whether the baby is illegally or improperly detained by the respondents. Since there is a consent order which was acted upon and thereafter to defeat the said order the respondents have taken away the baby without the consent of the applicants, it is appropriate to hold that Baby Afshan Salim is improperly and illegally detained by the respondents. It is accordingly ordered that the custody of the minor Baby Afshan Salim be given to the applicants, who are the real parents of the said minor.