' The facts giving rise to this application under section 491, Cr.P.C. Are that the petitioner was married to Mst. Nargis Naseem alias Uzma on 12-2-1988 at Lahore; out of this wedlock, detenu Muhammad Haris Ullah Khan was born; who is now 5-1/2 years. The relations between the spouses were not cordial from the very beginning and there was estrangement between the parties; whereafter Mst. Nargis Naseem alias Uzma shifted to the house of respondent No, 2; her real maternal-uncle. The alleged detenu born on 16-8-1989 while the mother resided with respondent No,2 at Lahore.
2. It is alleged, the detenu Muhammad Haris Ullah Khan, vide agreement, dated 19th March, 1990; being of 7 months of age was handed over to the petitioner by Mst. Nargis Naseem alias Uzma, the mother of the detenu keeping in view the welfare of the minor. It is alleged that on 2-2-1995 the respondents Nos.1 and 2 alongwith other eight persons by show of force removed the detenu Muhammad Haris Ullah Khan from the lawful custody of the petitioner from his residence; whereupon case F.I.R. No,42/95, dated 9-2-1995 under section 452/506/364-A, P.P.C. Was got registered with Police Station Ghalib Market, Lahore against the respondents Nos.1 and 2 alongwith eight others who were armed with Kalashnikov, by the petitioner. The petitioner also filed a petition under sections 7, 8 and 12 of the Guardians and Wards Act, 1890 against respondents Nos.1 and 2; wherein impleaded Mst. Nargis Naseem alias Uzma his wife, as respondent, on 9-2-1995 before the Guardian Judge, Lahore.
3. The respondents Nos.1 and 2 have controverted the allegations based on facts; according to them neither the detenu has been removed with force from the petitioner's custody nor the detenu was ever handed over to the petitioner; since his birth is in the custody of his mother and the agreement, dated 19-3-1990 is also fictitious and forged one. Further raised preliminary objections that the Court lacks jurisdiction as the alleged minor detenu is in the custody of mother at Karachi; the Court is incompetent to issue Rule Nisi for the recovery of alleged detenu; even otherwise the mother, has not been made party to the application under section 491, Cr.P.C.
4. I have heard the arguments of learned counsel of both the parties and have perused the record with their able assistance.
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. As observed in case Mst. Sabir Sultana v. Zafarullah Khan and another 1992 PCr.LJ 2150; these proceedings by their nature are summary in character and the entire evidence is not record to decide the main controversy between the parties and in matters pertaining to the custody 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 the Guardian Judge.
6. As observed in case Muhammad Javed Umrao v. Mst. Uzma Wahid 1988 SCM R 1891; it is manifestly clear that the matters to be dealt with by section 491, Cr.P.C. And Guardian and Wards Act, 1890, are entirely different and the provisions are neither mutually exclusive nor overlaps or destroys the other. Ordinarily, the dispute 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. The proceedings by way of habeas corpus are proceedings calling upon a person having custody of another person to produce him and to demonstrate under what authority he holds the minor detenu in custody. If the authority is legitimate, the High Court cannot interfere as the proceedings by their nature and purpose are summary in character as already observed and controversies are not to be tried nor entire evidence is recorded under ordinary substantive and procedural laws; civil or criminal. The proceedings under section 491, Cr.P.C. Are not intended to get beyond the summary consideration of the question essentially relevant to the alleged detention.
The High Court has two-fold jurisdiction under section 491, Cr.P.C.; firstly, to deal with a person within its jurisdiction according to law and secondly to set the detenu at liberty if he is illegally or improperly detained within the jurisdiction.
8. Admittedly in case in hand, firstly, the relationship between the spouses were not cordial from the very beginning and the alleged detenu was born out of their wedlock while she was residing with her maternal-uncle respondent No,2, secondly, the petitioner's petition under sections 7, 8 and 12 of the Guardians and Wards Act, 1890 filed on 9-2-1995 is subjudice before the learned Guardian Judge, Lahore and thirdly the case F.I.R. No,45/95 is under investigation relating to the same subject-matter.
9. It is pertinent that the petitioner neither impleaded Mst. Nargis Naseem alias Uzma as respondent in petition under section 491, Cr.P.C. Nor has mentioned her as accused in the aforementioned F.I.R. Lodged by him with Police Station Ghalib Market, Lahore.
10. It is stated in para. 12 of the petition under Guardians and Wards Act, that:-- "If he (detenu) is left with the respondent No,1, he would be deprived of good education and good nourishment etc." and in para. 13 is stated that:- "That the mental capabilities of respondent No,1 are below normal, and as such she is unable to look after and maintain the minor son." ' while in para. 6 stated:- "That the respondent No,1 returned to the petitioner's house with the son Muhammad Haris Ullah Khan in the 3rd week of December, 1994, through one of petitioner's uncle whom the respondents 2 and 3 had approached." ' and admitted in para. No,7 of the petition that the detenu is residing with the mother for the last 1- 1/2 months prior to the institution of petition before the learned Guardian Judge.
10-A. It is evident from the above narration in the petition that the detenu undoubtedly is in the custody of Mst. Nargis Naseem alias Uzma the real mother of alleged detenu, much prior to the filing of this petition. The petitioner intentionally with mala fide purposes did not implead her as respondent in the petition in hand to cover the issue of jurisdiction of this Court.
11. Further, it is pertinent to note the petitioner alleged in the F.I.R. Aforementioned that:- "No action has been taken on the application in this respect moved by me on 2-2-1995 before the Police Post Main Market." wherein it has not been mentioned that the detenu has been removed or abducted by force by the respondents Nos.1 and 2 alongwith others; when confronted the learned counsel for the petitioner contended that the Exh.H is a forged document as the original application moved by the petitioner has been substituted by it. I am constrained to observe that the petitioner himself has attached the Annexure "H" as proof in support of his version and has nowhere mentioned or agitated about its genuineness neither in the petition before the learned Guardian Judge nor while lodging F.I.R. Or even in the petition in hand; the version of the petitioner at this stage is nothing but perjury. The agreement, dated 19-3-1990 also seems to be forged one as learned counsel when confronted to produce the original agreement, made lame excuses.
12. The circumstances which constituted the background of this petition in hand and litigation initiated by the petitioner are indicative that the petitioner is anxious to have the custody of his son.
13. I am not minded to believe that a mother who gave birth to the minor during strained relations while residing with respondent No,2, the real maternal-uncle, would have handed over a minor son of seven months only keeping in view the so-called welfare of the child, as there cannot be any substitute for a mother and as observed in the case of Mst. Khalida Begum v. M. Altaf reported as 1983 CLC 678; mother's lap is God's own cradle for a child and as between the father and the mother and other things being equal, a child in the circumstances of a given case should remain with the mother.
14. According to the consensus amongst the Muslim jurists ordinarily mother is responsible for the custody of the child whereas the maintenance is the duty of the father.
15. Having regard to the above circumstances and discussion, I am of the view, the petitioner has not come with clean hands in this Court; it will, however, be open to the petitioner to seek remedy from the competent Court of learned Guardian Judge where his petition is already pending for adjudication; if he is able to make out a case for forfeiture of his son's Hizanat against the mother of alleged detenu. It is needless to point out that the observations made in this judgment should not influence the mind of the learned Guardian Judge; if such matter comes to him at any time.
Dismissed.