1. Mst. Shahnaz Khawaja has filed this Criminal Miscellaneous Application under section 491, Cr.P.C. In respect of her children namely Rohina Asif Khawaja, Maliha Asif Khawaja and Malyka Asif Khawaja, who are alleged to be in illegal custody of the respondents Nos.1 and 2.
2. Admittedly, petitioner Shahnaz was married with Asif Riaz Khawaja son of respondent No.1 Riaz Nasir Khawaja and brother of Miss Mehraj Riaz Khawaja respondent No.2. During the wedlock, the three children alleged to be in unlawful custody, were born. Subsequently the petitioner has been divorced by father of said children. The petitioner allefed that on 30-10-1995 she visited respondents 1 and 2 with said children who were snatched from her. There are also allegations that she was beaten and thrown out by the respondents 1 and 2 but such facts are not relevant to this application. Applicant claimed to have lodged report with Bahadurabad Police Station, but police did not take any action.
3. Notice of this application was given to the respondents Nos.1 and 2 as well as to the Advocate- General. Respondents land 2 have contested the application and they are represented by two Advocates. A counter-affidavit has also been filed by the respondents Nos.1 and 2 in which they have taken the stand that even when the applicant was living with her husband, the three children were living with them (respondents Nos.1 and 2) as both the applicant and her husband were busy in a vocational activities. The respondents denied having snatched the minor children from custody of the applicant. Respondents Nos.1 and 2 took plea that welfare of the minors lies in their living with them Nos.1 and 2) as the applicant is a working lady and she has remarried to a Canadian national and she has also applied for visa to the Canadian High Commissioner for permanent residence for herself and for the minors in Canada and that she has embraced Christianity and has lost the right of `hizanat'.
4. The three children have been brought in Court. The applicant was permitted by Court to have access to the children inside the court-room. After a while three children were called inside the Chamber to see if they were under forcible detention at hands of the respondents Nos.1 and 2. Their wishes were also to be ascertained.
5. Mr. Farrukh Zia Sheikh learned counsel for the respondents vehemently challenged the jurisdiction of this Court to pass any order in respect of the alleged detenues under section 491, Cr.P.C. On the ground that such matter can be agitated only in a Family Court under the G & W Act. He further argued that the applicant had converted to Christianity and she had married with an outsider who was a Christian and as such it would not be proper if the minor children live with her. Learned counsel for the applicant, who was assisted by Mrs. Navins Merchant cited the cases of:
(i) Muhammad Yousuf alias Salim v. Aba Ali Adam and another 1992 PCr.LJ 2176;
(ii) Shagufta Andleeb v. Abdul Razaq and another 1992 PCr.LJ 2168;
(iii) Mst. Aisha Bibi v. Nazir and others 1981 SCM R 301;
(iv) Asif Mowjee v. Mst. Fatema A. Mowjee and another PLD 1987 Kar.239.
6. The applicant Mst. Shahnaz Khawaja argued the case personally. She vehemently denied if she had converted to Christianity and stated that she continued to be Muslim and that she had married with a Muslim gentleman. She admitted that she had applied for visa for going to Canada, where her husband was living, but added that she was refused visa for going to Canada and that if she is given the children she would give up the idea of going abroad.
7. Mr. Zaheer Qureshi, Advocate for A: G. Sindh for State supported the application and argued that applicant had remarried with a person who has embraced Islam. He filed such declaration by a registered Kazi who had read the Nikah. A copy of Nikahnama has also been filed.
8. The most unfortunate aspect of this case is that father of the three children has left them and he is working in Germany. Over and above this the marriage not between the parents of the minors has been broken. Normally disputes between parents about the children should be determined under the Guardians and Wards Act at the forum provided by the W.P. Family Courts Act. However, the Supreme Court of Pakistan has observed in the case of Muhammad Naseer Hamayun v. Mst. Syeda Ummatul Khabir 1987 SCM R 174 that it was not necessary in the peculiar extraordinary circumstances of said case to decide the question of law raised on behalf of father of a minor girl, that the questions between spouses regarding custody of minor children should not be decided by the High Court under section 491 of Cr.P.C. In cited case a learned Single Judge of Lahore High Court until agreeing them ordinarily the questions of `Hizanat' cannot be adjudicated in the Habeas Corpus petition, distinguished the case of Mst. Mariam Rozina v. Robert Ashraf 1985 PCr.LJ 1469 by observing that in said case the parties were wedded in a marriage union, while in the case before him (viz the case of Muhammad Naseer Humayun v. Mst. Syeda Ummatul Khabir), the parties had become strangers on account of the dissolution of their marriage. Such view by a learned Single Judge of the High Court was not disapproved by the Supreme Court of Pakistan. In said case the Lahore High Court in a Habeas Corpus proceeding directed handing over of a minor daughter aged below four years, by father of the daughter to mother of the daughter, with an observation that father of the girl or mother of the girl, if so advised may approach the Guardian Judge for determination of final settlement of the custody of the child. Such an order was not interfered with, by the Supreme Court of Pakistan, which observed that 1-1/4 would not be fair to the minor child at her tender age to snatch her, from her mother when the parties are yet to get the matter resolved through the Guardian Judge, as per the order of the High Court. Contention raised on behalf of the respondents Nos.1 and 2 that disputes about custody of the minor children should be left exclusively in the domain of Family Courts, is subject to-- the qualification dealt with in the case of Muhammad Naseer Humayun.
9. The authorities cited on behalf of the respondents 1 and 2 do not further their case. In the case of Muhammad Yousuf alias Salim 1992 PCr.LJ 2176 the view taken was that in the matters pertaining to the custody of minors of tender age, the High Court has got jurisdiction under section 491 of Cr.P.C.
10. 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. It was conceded in the said case that ordinarily the disputes as to guardianship should be decided by a Court under the Guardians and Wards Act which is the ordinary remedy for deciding such disputes, but in exceptional cases the High Court can interfere under section 491, Cr.P.C. To order restoration of custody which has been disturbed illegally or improperly. In this case reference has been made to the case of Muhammad Naseer Humayun 1987 SCM R 174. In the case of Shagufta Andleeb 1992 PCr.LJ 2168 the view taken was that High Court has jurisdiction to issue directions under section 491, Cr.P.C. In matters pertaining to the custody of the minors of tender age which remedy is more efficacious, speedy and appropriate. In the case of Mst. Aisha Bibi 1981 SCM R 301 the dispute was about custody of a young girl aged 18 years whose parents were dead and who had been living with her maternal grandmother and she went to house of her paternal uncle to attend the funeral of her father but did not return to the house of .Her maternal grandmother. In said matter a previous Habeas Corpus petition was dismissed in the High Court on the basis of a statement made by the unmarried girl that she would like to live with her paternal uncle. Maternal grandmother of the girl filed second Habeas Corpus petition on the allegation that the girl had been coerced in the earlier petition to make a statement in favour of her paternal uncle. It was in these circumstances that the High Court refused to interfere after recording statement of the girl and advised maternal grandmother of the girl to move the Guardian Court.
11. Even in the cited case, the wishes of the girl were accepted. In the case of Asif Mowjee PLD 1987 Kar.
12. 239 the view taken was that a mother can not be saddled with criminal liability if she refuses to deliver the custody of the minor after the period of Hizanat. It was also observed in the same case that section 491, Cr.P.C. Though remedial in form postulates the existence of a substantial right and the Court would grant discretionary relief under section 491, Cr.P.C. When it thinks it fit to exercise in aid of justice and fair play. This authority does not help the respondents Nos.1 and 2. After going through aforesaid authorities I am clear in my mind that this Court has jurisdiction under section 491 to set free the minors, who are living with any of their relatives and to get them restored to such a party particularly their mother to whom they are inclined to go.
13. The minor children have been questioned if they would like to go with the respondents 1 and 2 or they would like to go to the applicant. They have given an option that they would like to go to their mother. In the circumstances this Court is left with no alternative but to set free the children and to permit them to go with the person with whom they wish to live. Present application stands disposed of accordingly. If any party is aggrieved by this order, it is free to move the Family Court under the Guardian and Wards Acts and the Family Court would be free to pass any order uninfluenced by any observation made in this case.