' This is an application under section 491 of Cr.P.C. Seeking a direction in the nature of Habeas Corpus to the respondent to produce the minor son of the parties named Suleman Muhammad Latif, aged about 6 years and his custody be restored to the petitioner.
2. The facts necessary for the disposal of this petition are that the respondent No,1 while living in Japan married the petitioner who was a Japani National on 30-4-1987. It is a common ground between the parties that the petitioner converted to Islam and, thereafter the Nikah was performed in Pakistan on 26-9-1987. It appears that the parties have been visiting Pakistan and going back to Japan off and on. The grievance of the petitioner in this petition is that on 26-12-1993, the respondent, who is the father of the minor forcibly removed him from the custody of the petitioner who is being unlawfully detained by him.
3. The petition has been opposed by the respondent by filing written statement in which objections as to its maintainability, inter alia, on the grounds that as the matter is pending before the Guardian Judge, this Court cannot interfere and also that the petition under section 491, Cr.P.C.
Cannot be filed against the father who is the natural guardian, have been raised. On merits, the respondent has attacked the moral character of the, petitioner by dubbing her as indulging in all sorts of nefarious activities and asserted that it would not be in the welfare of the minor to hand over the custody to the petitioner who is likely to remove him to Japan. It has also been averred that the respondent has been looking after the minor and has purchased a house as also a car for his use.
4. The first question which arises is as to the maintainability of this petition. The objections raised by the respondent's learned counsel in this behalf are two-fold; firstly, that as the proceedings are pending before the Guardian Judge, this Court should not interfere in the matter and; secondly, that as the minor is living with his father he cannot be said to be in unlawful custody and the remedy of the petitioner, if any, lies by invoking the provisions of the Punjab Family Courts Act read with the Guardians and Wards Act and not by filing this petition. He has relied upon the following decisions in support of his case:
(i) Begaan v. Abdul Hamid 1983 PCr.LJ 1470.
(ii) Mst. Mariam Rozina v. Robert Ashraf 1985 PCr.LJ 1469. {{PAGE CUT}}
(iii) Asif Mowjee v. Mst. Fatima A. Mowjee and another PLD 1987 Kar.
239.
(iv) Mst. Shamshad Begum v. Muhammad Saad Bin Moghani 1989 PCr.LJ 1327.
(v) Lady Dr. Captain Lubna Bokhari v. Syed Sabtain Raza 1929, and
(vi) Major Zafar Iqbal v. Mst. Rehmat Jan and another 1994 SC
5. The learned counsel for the petitioner has controverted thi: by referring various judgments, inter alia, Muhammad Javed Ulm Uzma Vahid 1988 SCMR 1891, Mst. Tauqir Fatima v. Iqbal Mehd another 1990 PCr.LJ 342, Mst. Farzana v. Syed Muhammad Afzal a 1991 PCr.LJ 758, Sara Palmer v. Muhammad Aslam 1992 MLD 521 Abdullah v. Mahmood Akhtar PLD 1993 Lah. 466 and Mst. Nusr, Muhammad Siddiq Khan and another 1993 PCr.LJ 522 in order tc this petition is not maintainable. -
6. There is no force in either of the objections raised by t counsel for the respondent. So far as the pendency of the proceedi the Guardian Court are concerned, the learned counsel for the 1 himself has stated that those arise out of an application under sectio Guardians and Wards Act, 1890 filed by the respondent for the appc guardian of the minor. Without going deep into the matter; for t purpose suffice it to say that petition appears to be highly misconce respondent being the father is admittedly natural guardian and no to that effect is either necessary or called for nor can any pro initiated in that behalf for such a prayer. Be that as it may, the quesi this Court is as regards the custody of the minor and not gu Conseiquently, the pendency of proceedings in an application under of the Guardians and Wards Act, 1890 cannot bar the present prod Mst. Farzana v. Syed Muhammad Afzal and another 1991 PCr.LJ observed that pendency of proceedings under the Guardians and' would not take away jurisdiction of the High Court in hearing peti section 491 of the Cr.P.C. Indeed in Muhammad Javed Umrao v. ? Vahid 1988 SCMR 1891 even though the proceedings for the custod were pending before the Family Court/Guardian Judge, the Supremo Pakistan upheld the order of this Court, with certain modifications handing over of the custody of the minor to the mother.
7. The other objection is equally unfounded. The law on the subject is now well settled. Although proceedings under section 491, Cr.P.C. Are B summary in nature and no final decision can be rendered by the Court on the question of custody of the minor which has ultimately to .Be decided by the Guardian Judge/Family Court but nevertheless in exceptional cases where the removal of the minor from the custody of the petitioner is either through fraud, deceipt or by force and the welfare of the minor so requires, the Court can in appropriate matters interfere in the exercise of its jurisdiction under section 491 of the Cr.P.C. Muhammad Javed Umrao v. Miss Uzma Vahid 1988 SCMR 1891, Mst. Tauqir Fatima v. Iqbal Mehdi Shah and another 1990 PCr.LJ 342, Musarrat Jabeen v.
Dr. Khalid Nawab and another 1990 PCr.LJ 686; Mst. Farzana v. Syed Muhammad Afzal and another 1991 PCr.LJ 758, Sara Palmer v. Muhammad Aslam 1992 MLD 520, Shaireen Abdullah v. Mahmood Akhtar PLD 1993 Lah. 466 and Mst. Nusrat Jehan v. Muhammad Siddiq Khan and another 1993 PCr.LJ 522 refers. Reliance of the respondent's learned counsel on Major Zafar v. Mst. Rehmat Jan and another 1994 SCMR 339 is of no avail as that decision was rendered in the proceedings which had arisen under the Guardians and Wards Act, 1890. Similarly the case of Begaan v. Abdul Hamid 1983 PCr.LJ 1470 is distinguishable on facts as in that case it was found that the mother had remarried and had herself handed over the custody of the minor to the paternal uncle. Furthermore this decision was rendered at a time prior to the dictum of the Supreme Court in Muhammad Javed Umrao's case supra. So far as the cases of Mst. Mariam Rozina v. Robert Ashraf 1985 PCr.LJ 1469 and Lady Dr. Captain Lubna Bokhari v. Syed Sabtain Raza 1992 MLD 1929 are concerned, they are not of much help as no detailed discussion on the subject was made and it was in the facts and circumstances of those cases that the learned Judges had declined to exercise their discretion in favour of the petitioners in those cases. These two decisions do not lay down that petition under section 491, Cr.P.C. Would not lie.
8. Reverting to the merits of the case, it is significant to note that the positive assertion made by the petitioner in this application that the minor was forcibly removed from her custody has not been denied or disputed in the written statement filed by the respondent nor has anything been erred at the bar by the learned counsel for the respondent. It is thus obvious that the minor was removed from the custody of the petitioner by using of force when he was living with her. It would, therefore, be a fit case where jurisdiction under section 491, Cr.P.C. Should be attracted. Two other reasons which have prevailed in coming to the conclusion are the tender age of the minor and the fact that the respondent has taken another wife who is living in the same house where the minor is, at present, residing. It is the case of the respondent himself that he does not permanently reside in Pakistan; For all intents and purposes, therefore, the custody of the minor is with the paternal aunt, who cannot be entrusted with the same in preference to the real mother of the minor. It can be said as a universal truth without fear of any contradiction that the Almighty Allah had made no substitute for a mother. It is often said and rightly so that lap of a mother is God's own cradle.
9.
9. The main objections raised by the respondent's learned counsel to the custody of the minor being restored to the petitioner were firstly, that the petitioner is a non-Muslim and Japanese National and, therefore, bring up the child according to the Muslim traditions and second petitioner is a woman of bad character besides having no means of In this behalf the respondent's learned counsel has relied upon Mrs. Mosselle Gubbay v. Kh. Ahmad Said and others PLD 1957 Kar. 50, Muhammad Sadiq v. Mrs. Sadiq Safoora PLD 1963 Lah. 534 and Miss Christine Brass v. Dr. Javaid Iqbal PLD 1981 Pesh.
110. The petitioner's learned counsel, on the other hand has referred to the judgment of this Court in Sara Palmer's case supra (1992 MLD 520).
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10. I am not persuaded to agree with the learned counsel for the respondent and find myself unable to give credence to any of the two pleas raised by him. So far as the first plea is concerned, according to the respondent himself, the petitioner had embraced Islam at the time of marriage.
The learned counsel for the respondent is unable to rebut the assertion of the petitioner's learned counsel that the petitioner continues to remain a Muslim and has not renounced her religion. The cases cited by the learned counsel for the respondent are, therefore, clearly distinguishable. As regards nationality, it is to be seen that the minor was born in Japan and is, therefore, a Japanese National though he also carries nationality of his father. The respondent had himself gone to Japan and married the petitioner, a Japanese lady with open eyes. He cannot, therefore be heard to criticise her for being a Japanese.
10.
11. So far as the character of the petitioner is concerned, for the present proceedings suffice it to say that nothing substantial has been brought on record in support of this bald assertion. Furthermore, the stand taken by the respondent in the reply appears to be self-contradictory. On the o re hand, he has accused the petitioner as being a woman -of bad character but on the other hand he has stated that he was willing to keep the petitioner as his wife and that she should be asked to live with him or his family. The marriege between the parties still subsists. In this view of the matter, I am not, for the purpose of present proceedings which are summary in nature, inclined to give any weightage to the pleas raised by the respondent. In view ' In view of what has been stated above, this petition is allot zed and it is directed that the minor shall be handed over by the respondent to the petitioner forthwith. This order shall not, however, be a bar in the way of the respondent in establishing his claim for custody of the minor before the Guardian Judge/Family Court by filing appropriate proceedings which, if instituted, shall be disposed of without any delay. It is also directed that the minor shall not be removed out of Lahore for a period of two weeks from today so as to enable the respondent to approach the learned Gua rdian Judge for seeking appropriate relief.
' No order as to costs.