1. MUKHTAR AHMAD JUNEJO, J---This appeal with leave of this Court, impugns it Judgment dated 4- 2-1996 by a learned Single Judge of Lahore High Court, directing custody of minor, Misbah Majid Khan to be restored to the respondents Nos.l and 2 while disposing of Criminal Miscellaneous No. 111-H of 1996 moved by the said respondents under section 491 of Cr.P.C: Admittedly minor Misbah Majid Khan is natural daughter of the respondent having been born on 25-3-1985. Misbah was below to years of age in January, 1987 when her natural parents willingly handed over her custody to appellant No. l Abdul Rehman being real brother of respondent No. l Abdul Majid, and appellant No.2 Shahnaz being wife of the appellant No.1. The appellants being issueless at that the, obtained custody of minor Misbah for the purpose of upbringing her and looking after her as their own child. On an application moved by appellant No.2 Shahnaz the Guardian Judge, Multan under his order dated 3-1-1987 appointed her as guardian of the person of minor Misbah Khan. Said order was passed with consent of the respondents. Later on the appellants were blessed with a son, namely. Obaidur Rehman in September, 1991. Minor Misbah Khan continued to be with the appellants till 4-2-1996 when her custody was given to the respondents under orders of Lahore High Court dated 31-I-1996 passed in Criminal Miscellaneous No.111-H of 1996 filed by the respondents under section 491 of Cr.P.C. In said petition the respondents prayed that directions in the nature of habeas corpus be issued for minor Misbah Majid, who be brought before the High Court to be dealt with according to law.
2. In their petition moved under section 491 of Cr.P.C. The respondents Nos. l and 2 alleged that the appellants gradually lost interest in minor Misbah Khan after birth of their son and that they had decided to give, the hand of Misbah Khan in marriage to their son aged four years, with a view to keep control over the property gifted to Misbah Khan by appellant No.1, That the marriage of 4 years' son with 11 years' old Misbah, was disapproved by all the relatives of respondents 1 and 2 to be unsocial and derogatory to welfare of Misbah Khan.
3. In pursuance of an order dated 31-1-1990 passed by the High Court, a bailiff raided the house of the appellants and recovered minor Misbah who was accompanied by appellant No.2. Subsequently the bailiff handed over the custody of the minor to the respondents Nos. 1 and 2. Who undertook to produce the minor before the Court on 4-2-1996. On 4-2-1996 minor Misbah Khan was produced in the Court. Under the impugned judgment a learned Single Judge gave possession of the minor girl to the respondents. Hence this appeal..
4. Miss Hina Jillani, learned counsel for the petitioners argued that the High Court at Lahore had no jurisdiction to order recovery of the minor who was living. With the appellants at Multan where a separate Circuit Bench existed. It was next argued that custody of Misbah Khan with the appellants was not illegal as a Guardian Judge had appointed the appellant No. 2 as guardian of the minor with consent of real father of the minor. It was also argued that since the minor was not in illegal custody of the appellants, hence the application moved under section 491 of Cr.P.C. Was not maintainable and the High Court had no jurisdiction to entertain such application. It was added that the wishes of the minor be ascertained in open Court and if the girl now aged twelve years, opts to go with the respondents the appellants would have no objection. Learned counsel controverted the allegations that the appellant wanted to get married the minor girl with their son, who was much junior in age to the minor. It was added that the appellants loved the minor to the extent that they had gifted some property in her name. Whereas the respondents did not give her any property in spite of their being real parents. Mst. Shahnaz, appellant No.2, was said to have filed a suit in Court of the Senior Civil Judge, Multan to the effect that she was entitled to keep the minor in her custody by virtue of an order by Guardian Judge dated 3-1-1987. The Court at Multan had also passed prohibitory order dated 16-1-1986. But this was suppressed by the respondents in the High Court, as alleged. Learned counsel for the appellants cited the following cases:
(i) Muhammad Rafiq v. Muhammad Ghafoor (PLD 1972 SC 6);
(ii) Ahmed Sami and others v. Saadia Ahmed and another (1996 SCMR 268); (i.e) Muhammad Javed Umrao v. Mst. Uzma Vahid (1988 SCMR 1891);
(iv) Rahimullah Choudhry v. Mrs. Sayeda Helali Begum and others (1974 SCMR 305)
(v) Mst. Aisha Bibi v. Nazir and others (1981 SCMR 301);
(vi) Mst. Shahnaz Khawaja v. Riaz Nasir Khawaja and others (1996 MLD 24).
5. Mr. Rafique Ahmed Bajwa; learned counsel for the respondents argued that the respondents being natural parents of the minor had better right over her than the appellants who were foster parents.
6. It was also argued that the High Court at Lahore had appellate jurisdiction throughout the Province of Punjab which included Multan and hence it was competent to issue process in respect of the minor girl living at Multan. Learned counsel was of the view that the High Court had jurisdiction under section 491 of Cr.P.C. To pass orders in respect of custody of a minor looking to the, welfare of such minor. It was further argued that the respondents moved the High Court under section 491 of Cr.P.C. For the better future of the minor. In support learned counsel for the respondents cited the cases of:
(i) Muhammad Rafiq v. Muhammad Ghafoor (PLD 1972 SC 6);
(ii) Khushi Muhammad v. Mst. Arshad Bibi and others (1988 SCMR 1234); (i.e) Mrs. Shaukat Khalid v. Additional District Judge, Rawalpinid and others (1991 SCMR 19);
(iv) Muhammad Khalilur Rehman v. Mst. Shabana Rehman and another (PLD 1995 SC 633);
(v) Mst. Tahira v. Additional District Judge, Rawalpindi and others (1990 SCMR 852);
(vi) Mst. Farzana v. Syed Muhammad Afzal and another (1991 PCr.LJ. 758);
(vii) Mukhtar Ahmed Khan v. Mst. Aziza Begum (PLD 1975 Lah. 86);
(viii) Mst. Zarina v. Farzand Ali (NLR 1980 AC 318);
(ix) Mrs. Shaukat Khalid v. Addl. District Judge, Rawalpindi and others (1989 CLC 1377); (x)Mst. Uzma Zahid v. Muhammad Javed Umrao (1988 PCr.LJ. 1883); (xi)Mst. Zenia v. Ahmed Jawad Sarwar (PLD 1994 Lah. 577); (xii)Miss Hina Jilani v. Sohail Butt (PLD 1995 Lah. 151); and
(xiii) Shafqatullah Khan v. Naveed Shahbaz and others (1995 PCr.LJ. 1868).
7. In the first instance, it is to be determined whether learned High Court Was competent to exercise its jurisdiction under section 491 of Cr.P.C. In a case of this nature, where there was no unlawful detention of the minor, because admittedly on 3-1-1987 the Guardian Judge at Multan had appointed Mst. Shahnaz Begum appellant No.2 as guardian of the person of Mst. Misbab Khan, a minor. Such appointment has not been challenged. In the case of Muhammad Javed Umrao (1988 SCMR 1891) where judgment of the Lahore High Court reported in 1988 PCr.LJ. 1883 was challenged, a contention was raised that jurisdiction of the Guardian Judge was exclusive under the Family Courts Act and the matter of custody and guardianship of minors cannot be dealt with and decided in proceedings under section 491 of Cr.P.C. Learned Bench which decided said case in this Court, observed, as follows: "It is true that facts of individual cases may be such where the cover of proceedings of one sort is taken for advancing the cause of other. Iii, such cases it has to be ascertained as to, what is the substance of the proceedings and thereafter the proceedings are to be diverted to the appropriate channel be it of section 491, Code of Criminal Procedure or one under Guardians and Wards Act. "
8. In said case the mother of children first approached the appropriate Court under the Guardians and Wards Act and when she suspected on good grounds that the minors were being shifted from the local jurisdiction of the Court seized of the case she invoked jurisdiction of the High Court under section 491 of Cr.P.C. Another ground which weighed with this Court, in justifying action of the mother in moving application under section 49.1 of Cr.P.C. Was that father of the minors in his application before the Guardian Judge made prayer that unless he was promptly declared guardian of the minors, the tension generated by a potential counter-claim made by the mother, was likely to disrupt life of the minors. In said case learned Bench of this Court further observed as below: "However, as pointed out section 491, Cr.P.C. Is ordinarily not available for declaring a guardian or for determining for all the the question of custody of the minor."
9. While reversing the order of the High Court directing the minors to remain with the mother till the age of puberty, learned Bench of this Court ordered the question of final custody, to be decided in the proceedings under the Guardians and Wards Act and if such proceedings are not prosecuted to a conclusion then the order of the High Court with regard to the then existing custody, was to remain intact without the qualification that said order would last till minors attain the age of puberty. In the case of Mst. Aisha Bibi (1981 SCMR 301) a learned Bench of this Court took view that where the dispute between the parties is essentially regarding custody of the girl and no question of any forcible detention arises, such was essentially a matter for Guardian Judge to resolve and no justification is made out in such a case for issuing a direction in the nature of a writ of habeas corpus. In the case of Uzma Zahid (1988 PCr.LJ 1883) a divorced lady moved an application under section 25 of the Guardians and Wards Act (hereinafter referred to as the Act) in Court of the District Judge, Lahore for seeking custody of her to minor daughters from their father. On suspecting removal of the minor daughters to Pakpattan, the lady invoked jurisdiction of the Lahore High Court under section 491 of Cr.P.C.. For same , relief. The father in the instance avoided the process of the High Court by ultimately appeared there without producing the minor daughters and then filed an application under sections 7 and 9 of the Act in Court of the District Judge.
10. Abbottabad A learned Single Judge in the High Court seized of the case under section 491 of Cr.P.C.
11. Directed the minor daughters to remain with their mother till they attained puberty, after taking view that merely because the mother had invoked jurisdiction of the Guardian Judge, did not debar her from invoking jurisdiction of the High Court under section 491 Of Cr. P C and that both the remedies were available to the mother Learned Judge in the High Court repelled the contention that since Family courts Act Oust, the jurisdiction of other Courts. Hence the jurisdiction of the High Court under section 49l, Cr.P.C also stands ousted. It was also observed that where the High Court finds that a minor before it was not being illegally or improperly confined or detained it can pass Order under section 491 of Cr.P.C. About making over custody of such minor to the guardian, who will be dealing with the matter in accordance with law. Said judgment dated 30-3-1988 (1988 PCr.LJ. 1883) was assailed in this Court in Criminal Petition No.37-R/1988 by father of the minor girls.
12. A learned Bench of this Court which decided said matter under the judgment dated 31-5-1988 reported in 1988 SCMR 1891 observed after considering a plethora of case-law cited at the bar, that the to matters, one dealt with by section 491 of Cr.P.C. And the other under the Guardians and Wards Act, are entirely different and there is no question of one excluding the other, the one overlapping the other, or the one destroying the other. That there is no repugnancy between the said to provisions. In the cited case initiation of proceedings under section 491 of Cr.P.C. By the mother was held justified due to incorrigible conduct of the father and his behaviour as mentioned above. It was also observed in said case that a High Court directing that the minors should remain with the mother till they attain puberty, oversteps the confines of section 491 of Cr.P.C. The case of Muhammad Javed Umrao (1988 SCMR 1891) was followed in the case of Mst. Zenia (PLD 1994 Lah.
13. 577). On review of the case-law, a learned Single Judge took view in the case of Mst. Zenia. That provisions of section 491 of Cr.P.C. Are more appropriate, efficacious and speedy and if the High Court comes to the conclusion that someone who is minor is illegally or improperly detained in public or private custody, the Court can restore the custody of the minor, to the person with whom such custody vested prior to the improper deprivation of the custody, but the absolute authority for determination of final custody of the minor vests in a Court of Guardians and Wards Act, which will finally decide the case of the minor, although a High Court enjoys parental jurisdiction in respect of the minors and keeps into consideration the relevant law governing the minors. The wording of section 491 of Cr.P.C. Shows that a High Court can exercise the jurisdiction, for issuing directions in the nature of habeas corpus, only when a person is illegally or improperly detained in public or private custody within the limits of such High Court. Moreover, the provisions contained in section 491 of Cr.P.C. Empower a High Court to "set at liberty" a person illegally or improperly detained in public or private custody, as per clause (b) of subsection (1) of section 491 of Cr.P.C.
14. A somewhat similar power is vested in a High Court under sub--clause (b) of clause (1) of Article 199 of the Constitution of Pakistan. Said provision empowers a High Court to direct that a person in custody within its territorial jurisdiction be brought before it so that it may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner. Said provisions do not lay down that a High Court can force a detune, if minor, into custody of his guardian. The Court has only to satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner and to provide redress in such a situation.
15. Even if an order in respect of custody of a minor is passed under section 491 of Cr.P.C. That is not end of the matter. In the case-of Khushi Muhammad (1988 SCMR 1234) the mother of three minor children obtained ex parte order of their custody from the Guardian Judge. But the same was set aside on application of the father. Who succeeded in obtaining order for re--delivery of the children to him. The mother assailed such order by way of appeal to an Additional District Judge any by way of Revision in the High Court without success. Thereafter the mother invoked Constitutional jurisdiction of the Lahore High Court which ordered custody of the minor children to be given to the mother till final decision of the case by the Guardian Judge. While allowing the Writ Petition the High Court took view that it would not be in the interest of the children to shuttle them between one party or the other until the final decision of the case by the Guardian Judge. This Court declined to interfere with such order, which was held to be fair and proper. In the case of Ahmed Sami (1996 SCMR 268), a learned Bench of this Court took view that a Guardian Court is the final arbitrator to adjudicate upon the question of custody of child, but this did not mean that in exceptional cases, when a person who is holding the custody of a minor lawfully and has been deprived of custody of the minor, has no remedy to regain the custody pending adjudication by the Guardian Court. It was further observed that in exceptional cases where a High Court finds that the interest and welfare of the minor demanded that the minor be committed immediately to the custody of the person who was lawfully holding the custody of the minor before being deprived, the Court can pass appropriate order under section 491 of Cr.P.C. As an interim measure pending final decision by the Guardian Court. In the case of Miss Hina Jilani (PLD 1995 Lahore 151) the view taken was that an order by the High Court under section 491 of Cr.P.C. Was subject to order of the Guardian Judge. In the case of Shafqatullah (1995 PCr.LJ 1868) the view taken was that an order under section 491 of Cr.P.C. Is always without prejudice to the order of the Guardian Judge. In the case of Mst. Shahnaz Khawaja (1996 MLD 24) the minor children living with their grand--father showed their inclination to go to their mother and in the circumstances the minor children were set free and allowed to go with the person with whom they wished to live, but the parties were left free to move the Family Court under the Guardians and Wards Act.
16. No doubt, in various cases powers have been exercised under section 491 of Cr.P.C. In dealing with the minors remaining in illegal or unlawful custody. In the case of Khnshi Muhammad (1988 SCMR 1234) no application was moved under section 491 of Cr.P.C. But the High Court was moved under Article 199 of the Constitution filed by the smother against an order by the Family Court giving custody of, her children to father. The facts in the case of Mrs. Shaukat Khalid (1991. SCMR 19) are slightly identical to the facts of the instant case: In cited case and in the instant case the custody of minor female was given by natural parents to her uncle and aunt. When. The minor became of the age of 16 years in the cited case, her custody was given to her natural parents. The cited case is, however, distinguishable from the instant case in to respects. Firstly, in the instant case uncle of the minor, to whom custody of the minor was given willingly by the parents of the minor is alive.
17. Secondly, in the instant case foster father/uncle of the minor was appointed by the Guardian Judge, Multan on 3-I-1987 as guardian of the person of the minor Said order was passed with consent of natural father of the minor and the same has not yet been set aside and is binding on the parties. Even in the case of Mrs, Shaukat Khalid (1991 SCMR 19) resort to section 491 of Cr.P.C was not made In the case of Muhammad Khalilur Rehman (PLD 1995 SC 633) it was observe that in appropriate cases the Court under section 491 of Cr.P.C, can pass appropriate orders, notwithstanding the provisions of Guardians and Wards Act,' provided it reaches the conclusion that a minor has been illegally removed from the custody of a person, who was holding his custody lawfully. In the case of Muhammad Rafiq PLD 1972 SC 6) a woman alleged to have been detained was brought before a High Court in pursuance of filing of a habeas corpus petition and she alleged that she was forcibly given in marriage by her parents to the person detaining her and her parents affirmed her marriage to such person. In the circumstances the High Court directed that she should be removed to the house of the person detaining her and she be given in his custody. Said order of the High Court was set aside by a learned Bench of this Court, which observed that a High Court under section 491 of Cr.P.C. May "set at liberty" a person but cannot restore status quo ante against the wishes of the person brought before it. That such a course would lead to curtailment of liberty for which there is no warrant under section 491 of C.P.C. Nor can such an order be sustained under section 561-A of Cr.P.C. In the cases of Mst. Tahira (1990 SCMR 852), Rahimullah Choudhry (1974 SCMR 305), Mukhtar Ahmad Khan (PLD 1975 Lah. 86) and Mst. Zarina (NLR 1980 AC 318) the action was taken under Guardians and Wards Act. The case of Mrs. Shaukat Khalid (1989 CLC 1377) came before this Court, where the judgment reported in 1991 SCMR 19 was delivered. Said case was distinguishable from the instant case as already mentioned. The other cases cited at the bar do not support case of the respondents. In the case of Mst. Farzana (1991 PCr.LJ. 758) the father was not keeping the minor in a lawful manner and the custody was given to the mother.
18. In the instant case the facts are peculiar in their nature. Here is a case where the natural parents had not only handed over the custody of their minor child to the uncle and aunt of the child, but father of the child got appointed in Court of the Guardian Judge, his brother as guardian of the child. In the circumstances, It cannot legitimately be said that the child, although in custody of his foster parents, was in unlawful custody of her uncle, to attract the provisions contained in section 491 of Cr.P.C. The order dated 3-1-1987 about appointment of the appellant No. l as guardian of the person of minor Misbah Majid, was binding on the parties till it was set aside. That being so, learned High Court could not have directed custody of said minor being removed from the person legally appointed as guardian of the child, although such custody was being given to her natural parents.
19. For the foregoing reasons, we accept this appeal, set aside the impugned order of the High Court and direct the minor to be handed over to the appellants. There shall be no order as to costs.