1. ' This petition under section 491, Cr.P.C. Is moved by Mudabbir Ali Qureshi for recovery of the minor Humayoon Mudabbir Ali Qureshi aged about five years from the custody of respondent No,1 who is his wife.
2. ' The facts given by the petitioner are that respondent No,1 Mrs. Surriya Mudabbir was married to him on 27-7-1974 and had lived with him in Saudi Arabia until 9-6-1992 where after she came to Pakistan. On 25-11-1988 the minor Humayoon Mudabbir Ali Qureshi was born at Karachi and the said minor was also taken to Saudi Arabia by the respondent No,l. Petitioner also stated that during some of his visits to Karachi the respondent refused access to him to meet the minor and did not give satisfactory account of the whereabouts of the minor. Because of this, petitioner filed this petition and alleged that minor Humayoon Mudabbir Ali Qureshi was illegally and improperly being detained by the respondent, showing further apprehension that respondent was likely to remove the minor from the territorial limits of this Court. Petitioner prayed for a direction to the respondent to produce the minor before this Court to be dealt with according to law.
3. ' Respondent filed a detailed counter-affidavit and stated that while she was living with the petitioner in Saudi Arabia she was divorced by him in August, 1987 and because all her documents were with the petitioner, she could not come to Pakistan. She also stated that out of her marriage with the petitioner three children were born. After pronouncement of divorce in August, 1987, in Saudi Arabia, petitioner soon realised that he had wrongly pronounced divorce. However, after having consulted his friends, persuaded her to contract Halala marriage with someone and after getting divorce from such husband, to remarry the petitioner. Because the divorce pronounced by petitioner was complete and final and could not be nullified, she agreed to marry to one Khawaja Abdul Hameed in February, 1988 as suggested by the petitioner. Out of the said wedlock minor Humayoon Mudabbir Ali Qureshi was born to the respondent at Karachi. The second husband Khawaja Abdul Hameed then divorced the respondent but because Humayoon Mudabbir Ali Qureshi was born during the wedlock between her and Khawaja Abdul Hameed who subsequently divorced respondent, the custody of the said minor was handed over to Khawaja Abdul Hameed. It was further stated that she was divorced by Khawaja Abdul Hameed and then remarried petitioner who again divorced her. She categorically stated that minor Humayoon Mudabbir Ali Qureshi was not in her custody but was living with his father at Saudi Arabia.
4. ' I have heard the learned counsel for the petitioner and perused the record. The counter-affidavit was filed by the respondent No,1 on 27-10-1992 and since then the petitioner has not controverted the facts in counter-affidavit and has not filed any rejoinder. As such, it shall be presumed that the facts given by the respondent No,1 in her counter-affidavit are correct and the minor Humayoon Mudabbir Ali Qureshi is not born to the respondent out of the wedlock between her and the petitioner but the said minor was born during the subsistence of marriage between the respondent and Khawaja Abdul Hameed. How the child is kept by Khawaja Abdul Hameed would not be concern of the petitioner who has failed to show that he is the father of the said minor. The child is said to be living with Khawaja Abdul Hameed, the real father in Saudi Arabia and being out of jurisdiction of this Court, no direction could be given to the respondent to produce the said minor before this Court.
5. ' Mr. Shamshad Alam Lari, learned Advocate for the petitioner was called upon to show if a direction could be given to a person living beyond the jurisdiction of this Court to produce a minor when there was a dispute about the parentage of the said minor. He filed a photostat copy of the judgment in Criminal Miscellaneous No,466 of 1991 and argued that the respondent No,1 could be directed to produce the minor before this Court. The facts of the said case are totally different and the same do not advance petitioner's case in any manner. It cannot be said that the minor Humayoon Mudabbir Ali Qureshi is illegally or improperly detained by his father Khawaja Abdul Hameed who is living in Saudi Arabia.
6. Mr. Abbas Ali, Advocate for the respondent has raised the same contentions as are stated in the counter-affidavit filed by Mrs. Surriya Mudabbir. Mr. M. Sarwar Khan, AA.-G. Has also not supported this petition and has argued that because the minor is shown to be living out of jurisdiction of this Court and the said minor is in custody of his father Khawaja Abdul Hameed, it cannot be said that his detention with Khawaja Abdul Hameed is for illegal or immoral purposes. I find no merit in this petition and the same is accordingly dismissed. Since Khawaja Abdul Hameed is shown as respondent No,2 in the amended petition, no orders are required to be passed on MA. No,1771 of 1992. These are the reasons for the short order, dated 28-11-1993.