' This petition under section 491, Cr.P.C. Is filed by `the applicant Jamshed Burke for 'he recovery of his children Saira Jamshed and Jouathan Jamshed aged 5 years and 1-1/2 years respectively from the improper custody of the respondent.
2. The applicant was married with Mst. Nargis Jalal daughter of Jalal Masih respondent and out of this wedlock the aforementioned detentes were born. Nargis Jalal is serving as staff nurse in Riyadh Hospital, Saudi Arabia; eight months ago came to Pakistan along with the minors to spend annual' vacations and after vocations again proceeded to Saudi Arabia leaving the minors in the custody of the respondent, her father.
3. It is alleged that the detents were removed from the custody of father by the mother deceitfully and the minors are - kept in illegal custody of the respondent as the legal and natural guardian (father) has been deprived of the custody of the minors by improper means.
4. The learned counsel for the respondent at the very outset raised objection that the respondent being grand maternal-father could not be saddled with criminal liability if he refuses to deliver custody of the minor as the custody of minors is not illegal and the application under section 491, Cr.P.C. Is not maintainable and relied on case Asif Mowjee v. Mst. Fatema A. Mowjee and another PLD 1987 Kar.
239.
5. The proceedings by way of habeas corpus are proceedings calling upon a person having custody of another person to produce him and demonstrate under what authority he holds him in custody, if the authority is legitimate; the Court cannot interfere as observed in case Mansoor Hussain and another v. Manzoor Hussain PLD 1974 Lahore 202 and followed in case Mst. Haseena v.
Mst. Mini and anothei- 1992 MLD 1460. The proceedings by their nature and purpose are summary in character. The contention of learned counsel for the respondent that the Family Court under section 25 of the West Pakistan Family Courts Act (XXXV of 1964) has exclusive jurisdiction for the appointment of guardian of minor and the custody of minors is, misconceived as appointment of guardian and return of custody are two different things. In proceedings of habeas corpus controversies are not considered nor entire evidence is recorded under ordinary substantive and procedural laws, civil or criminal; the proceedings are not intended to go beyond the summary consideration of the question essentially relevant to the alleged detention.
6. It is by now well-settled principle that issue as to guardianship should ordinarily be left to be decided by the Court under the Guardians and Wards Act; but in matters pertaining to the custody of the minors of tender age High 8 Court has got jurisdiction under section 491, Cr.P.C.; remedy is more efficacious, speedy and appropriate.
7. Admittedly the alleged detentes were handed over to I..; respondent by his daughter who had removed the detentes deceitfully from the petitioner's (father) custody and has proceeded to Saudi Arabia to join her duty there; admittedly the petitioner is well to do person and he can look after his kids and educate them better than the respondent; being father, in the absence of mother who is in abroad, will take better care of the children.
8. Having regard to the above circumstances, I direct that the custody of detenues, namely Saira Jamshed and Jouathan Jamshed aged 5 and 1-1/2 years respectively, be delivered to applicant by the respondent immediately in the Court and respondent is also directed to hand over the passport of the detentes to the petitioner. It will, however, be open to the respondent or the mother of the detentes to seek remedy before a competent Court of law for adjudication of the matter.
Disposed of accordingly.