' Applicant Mst. Shakila Khatoon has filed present application under section 491, Cr.P.C. For the issuance of rule nisi in respect of her minor son Muhammad Asad Jafri, aged about 3-3/4 years.
The facts in brief as stated in the application are that applicant was married with respondent on 7- 1-1993 and out of this wedlock one son Muhammad Asad Jafri was born on 11-8-1994. Applicant is serving in Education Department. Respondent No,1 is patient of epilepsy and he used to humiliate the applicant. On 20-91997 in the evening respondent No,1 after blabouring the applicant snatched minor boy Muhammad Asad jafri from her and turned her out of the house. The applicant made hectic efforts to secure the custody of child but all in vain and ultimately she filed present application.
2. On 15-64998 when this matter came up before me I issued rule nisi and notice to respondent. No, 1 .
3. In pursuance of rule nisi minor child Muhammad Asad Jafri has been produced today and, respondent No,1 alongwith his counsel is present.
4. It is contended by the learned counsel for the applicant that the child is minor and his custody may be restored to the applicant and in that context he has placed reliance on various authorities.
5. Syed Shamsul Qamar Warsi, learned counsel for the respondent No,1 has contended that applicant has left the house of respondent No,1 of her own accord after taking-away the belongings; that the respondent No,1 intends to file a suit for the restitution of conjugal rights and in this context he has sent notice to the applicant; that this Court under section 491, Cr.P.C. Has no jurisdiction to restore the custody of minor to applicant (mother), therefore, application is liable to be dismissed.
6. Mr. Habib Ahmed, learned Additional Advocate-General, for the State, has contended that applicant can seek remedy under Guardians and Wards Act, 1890 and application under section 491, Cr.P.C. Is not maintainable.
7. Admittedly, the alleged detenu i.e, Muhammad Asad Jafri is minor aged about 3-3/4 years as is evident from the birth certificate, placed on record. The respondent No,1 has not controverted the allegations of the applicant by way of counter-affidavit, The detenu was forcibly snatched from the applicant. The custody obtained by the respondent No,1 (father) without having recourse to law would be illegal. There cannot be any substitute for a mother. It is solved in the case of Mst. Khalida Begum v. Muhammad Altaf (1983 CLC 678) "mother's lap is GOD's own cradle for a child and as between the father and mother, other things being equal. The marital tie between the parties is subsisting. Thus, the applicant is entitled to the custody of her minor son until and unless it is ordered otherwise by the competent Court of Law.
8. So far the contention of the learned counsel for respondent No,1 and learned A.-A.G. For the State that applicant can seek remedy before Guardian Judge, under Guardians and Wards Act, 1890 and application under section 491, Cr.P.C. Is not maintainable is concerned, has no substance and is misconceived. This Court is competent under section 491, Cr.P.C. To entertain and interfere to order restoration of custody which has been illegally or improperly disturbed. In this context, I am fortified by a recent decision of the Hon'ble Supreme Court in the case of Nisar Ahmed and another v.
Sultan Zari (PLD 1997 SC 852). The relevant dicta of Hon'ble Supreme Court is reproduced hereinbelow:-- "7. Again another principle to be adhered to in this matter is that the availability of another remedy at law, such as the remedy under the Guardians and Wards Act for obtaining custody of a minor child is not a valid ground for refusing an application for habeas corpus by the parent or guardian of the minor who is entitled to have his or her custody, where the minor is being illegally detained by another person". In this context reference can be profitably made to the case of Mst. Rizwana Bokhari v. Abdul Majeed Shah and another (1984 PCr.LJ 2582)."
9. Accordingly, I direct that the custody of minor boy Muhammad Asad Jafri, who has been brought before this Court, be handed over to applicant (Mst. Shakila Khatoon, mother of the child). The Criminal Miscellaneous Application No,186 of 1998 stands allowed.
10. Before parting with this matter, I would like to make it clear that the observations made hereinabove for handing over custody of the minor to the petitioner (mother) shall not be a bar in the way of the respondent No,1 (father) in establishing his claim for custody of minor before the Guardian Judge/Family Court by filing appropriate proceedings, which, if instituted, shall be disposed of without any delay. The trial Court will be at liberty to reach its own independent finding while adjudicating the case without in any manner being influenced by whatever is observed in this order.