ORDER AHMED SAEED AWAN, J. - This petition under Article 199 of the Constitution of Islamic Republic of Pakistan has been filed seeking quashment of FIR'No.406/94 date 16.10.1994 under Section 363 PPC registered with Police Station Bashirpur Tehsil Depalpur, District Okara.
2. According to allegations contained in the FIR, Muhammad Ashraf aged 6 years son of Mst Zubaida Bibi, complainant was studying, in Government Primary School; on the last Sunday that is 9.10.1994 at l2 noon when aforesaid Ashraf was going to his home from the School, he was kidnapped by Muhammad Nawaz, Muhammad Ali, Zubair and Mst Nasim. According to learned counsel for the petitioner, Abdul Ghafoor, petitioner and Mst. Zubaida Bibi, respondent No.1 were married about 10 years back and out of wedlock only one son namely Muhammad Ashraf was born; that relations between the parties became strained and eventually on 10.2.1989, the spouses were started through Punchayat proceedings; respondent No.1 was divorced by the petitioner and her father gave an undertaking in writing (Annexure'B') in the presence of relations and respectables of the area, inter alia, to the effect that the custody of the child would remain with his mother, respondent No.1; only he reaches the age of 7 years or till the time, respondent No.1 contracts second marriage. According to the petitioner, 4 years back, respondent No.1 contracted second marriage with Ahmad Din son of Sharif and at present the child is more than 8 years, therefore about one month back, respectables intervened and got custody of the minor delivered back to the petitioner strictly in accordance with law and the terms laid down in document (Annexure'B'>. It was contended that if at all respondent mother has any grievance she should have approached the Guardian Judge and registration of FIR is mala fide just to harass and pressurise the petitioner and other family members.
3. Learned counsel for respondent No.1 refuted the contentions of the petitioner and tried to justify registration of the criminal case. He submitted that the child was forcibly kidnapped by the accused while he was going back from school and as such the provisions of Section 363 PPC .Are fully attracted.
4. I have heard learned counsel for the petitioner at length and have gone through the record with their able assistance.
5. Admittedly Abdul Ghafoor, writ petitioner is father of Muhammad Ashraf who is alleged to have been kidnapped. Leamed counsel for the respondent/complainant was unable to prove the Iqrarnama Annexure III to be a forged or fabricated document He was also unable to- refute the assertion that respondent No. 1 complainant, Mst. Zubaida Bibi has contracted second marriage with Ahmad Din and the child is almost of 8 year the provisions of Section 363 PPC are only attracted where the custody is removed from a lawful guardian. According to Sections 18 and 19 of the Guardians and Wards Act, 1890, father is natural guardian of the minor. Even according to the terms of Iqrarnama Annexure'B' the child to remain with the mother till the age of 7 years with a further condition that if mother contracts second marriage she will lose the right of custody of the child. No proceedings had ever been initiated by respondent-mother seeking declaration of Iqrarnama Annexure'B' to be a void or invalid document.
Respondent mother if had any grievance she should have moved the learned Guardian Judge for the custody of the child.
6. For all these reasons, I am of the considered view that continuation of proceedings on the basis of FIR impugned will amount to unnecessary harassment. The result is obvious and no Court can on such evidence convict the petitioner on the charge levelled against him. The result is that writ petition succeeds and is allowed. Consequently, FIR No. 406 of 1994, dated 16.10.1994 Police Station Bashirpur District Okara is hereby quashed.