Rubina A.I, petitioner, filed this petition under section 491, Cr.P.C., for the recovery of Saib A.I Gill and Saad A.I Gill minors from the illegal custody of Rafaqat A.I, Basharat A.I, Shaukat A.I, Muhammad Boota and Ahmad A.I, respondents Nos.1 to 5. Respondents Nos.1 to 3 are brothers of Major Ahmad A.I, respondent No.5 while Muhammad Boota, respondent No.4 is their father. She averred in the petition that she was married to Ahmad A.I, respondent No.5. Saib A.I Gill, aged about 7 years and Saad A.I Gill, aged about 5 years were born from the wedlock. The petitioner's husband was serving in Pakistan Army Engineering Corp as Major in 177 Engineering and was posted at Karachi He was transferred from Karachi to Jhelum. It was alleged that she alongwith minors came from Karachi to Lahore by an air flight on 23-10-1995 later on it was corrected as 23-8-1995. Rafaqat A.I, respondent No. l was present at the Airport with Ahmad A.I, husband of the petitioner. The petitioner was left at the Airport while Ahmad A.I, her husband and Rafaqat A.I secretly took away the children from her custody. The husband did not report his joining at the place of his new posting i.e. At Jhelum and obtained leave. The minors were given to respondents Nos.1 to 4. It was submitted that both the minors were being illegally and improperly detained by the respondents and the petitioner who is the natural guardian was being deprived of the custody.
2. This Court on 19-12-1995 issued notice to respondents Nos. l and 4 to appear in this Court with the minors. On 4-2-1996, respondents Nos.2, 3 and 4 appeared and informed the Court that the minors were in the custody of their father Ahmad A.I, who was posted at Jhelum. Case was adjourned and Ahmad A.I was issued notice to appear in Court. After providing the fresh address of Ahmad A.I respondent No.5, process was issued to him. Deputy Attorney General was also directed to contact the relevant authorities to trace out the particulars of the respondent. The proceedings were adjourned for two/three time again to get the said respondent served through other sources of the Pakistan Army. Despite his service respondent No.5 did not appear in Court nor produced the minors, therefore, the notices were sent to him through the Commanding Officer of the relevant unit as well as through the Adjutant General Pakistan Army, G.H.Q., Rawalpindi but the respondent could not be served. The detail of which was incorporated in the interim order of this Court dated 21-3-1996. In the said order tit Court was constrained to observe that respondent No.5 despite repeated notices was avoiding to appear in Court, therefore, bailable warrants were issued against him. Ultimately Ahmad A.I, respondent withdrawn and the case was adjourned to 22-4-1996.
3. Respondent No.5 submitted his reply alongwith other documents which were placed on record.
He also produced Saib A.I Gill and Saad A.I Gill minors in Court. The minors remained in the custody of respondent No.5. The mother was allowed to meet the minors in the office of a Senior Advocate of this Court. The case was adjourned on the request of the learned counsel for the parties to effect a compromise between the parties in the larger interest and welfare of the minors.
4. Learned counsel for respondent No.5, inter alia, submitted that Ahmad A.I has divorced his wife Rubina A.I which became effective on 24-8-1995 and he contracted the second marriage thereafter. He has been able to marry a woman who could sincerely lookafter his two minor sons abandoned by his first wife. Learned counsel further pointed out that he filed an application before the learned Guardian Judge, Lahore, and obtained an order in his favour on 20-12-1995. The respondent also filed a suit for declaration and permanent injunction against his ex-wife with regard to the sale of a residential plot situated in Jauhar Town, Lahore.
5. Learned counsel for the petitioner vehemently denied the factum of divorce on that ground that she did not receive any notice of Talaq from her husband. Learned counsel further submitted that respondent No.5 has obtained an ex parte order on 20-12-1995 from the learned Guardian Judge.
The petitioner filed an application on 21-3-1996 for setting aside the ex parte order and decide the case on merits on which learned Judge directed Ahmad A.I, respondent No.5, not to remove the minors from Lahore. The said matter was fixed for today between the parties before the learned Judge.
6. I have heard the learned counsel for the parties at great length. Issues raised with regard to divorce, appointment of guardian and the litigation regarding the plot which is pending has to be determined on merits by the proper Courts. Issue before this Court is very simple and limited i.e. Who is entitled to the custody of the minors for an interim period.
7. In my view Saib A.I Gill is aged about 7/8 years while Saad A.I Gill is aged about 4/5 years. In the circumstances discussed above, I direct that the custody of the two minors shall be given to Rubina A.I, petitioner. The learned Guardian Judge shall expedite the proceedings and decide the same within six months. The learned Civil Judge, seized with the civil suit regarding residential plot between the parties, shall also expedite the case and conclude the same within one year. With the above observation, the petition stands disposed of.