' Mst. Kaniz Sughra petitioner was married to Lt.-Col. Ghulam Mustafa respondent. Out of the said wedlock the Names Date of birth
1. Kamran Mustafa9-5-1986
2. Farhan Mustafa22-8-1987
3. Imran Mustafa 14-2-1989
4. Zeeshan Mustafa26-12-1990
5. Rizwan Mustafa8-12-1992
6. Shahan Mustafa5-2-1997
2. Unfortunately the relations between the parties became strained and they are living separately.
Mst. Kaniz Sughra petitioner has filed this petition under section 491 of the Code of Criminal Procedure to get recovered her aforesaid minor issues to obtain their custody. According to her she was living with respondent No, 1 in his house who drove her out of his house retaining the custody of the minors with him. She has also narrated the problems of life and the conduct of the respondent which, according to her, were the foundation of the present situation.
3. The application has been resisted by Lt.-Col. Ghulam Mustafa, respondent No,1, who has submitted the reply wherein he has taken up the stand that he has divorced the petitioner about which fact the certificate had been issued by the Chairman Union Council who took exception to the filing of this petition on the grounds that he had moved the learned Guardian Judge-IL Lahore, to retain the custody of the minors which petition was being resisted by the petitioner. He maintained that the petitioner herself left the house and that the minors were not detained or illegally confined by him who were leading their respective salubrious life. He expressed the apprehension that in case of the acceptance of this application and handing over of the minors to the petitioner, the petitioner would remove them out of the jurisdiction of this Court as well as that of the learned Guardian Judge-II, Lahore. He maintained that the welfare of the minors demanded that they live under his custody.
4. Keeping in view the dispute in hand, I asked the learned counsel for the parties to address the arguments about the maintainability of this petition before this Court especially when the petition under section 25 of the Guardians and Wards Act was pending before the learned Guardian Judge-II, Lahore. Relying on Mst. Ghulam Fatima v. The State and five others (1998 SCM R 289) learned counsel for the petitioner argued that the pendency of the guardianship matter of minors before the Family Court would not affect the proceedings pending under section. 491 of the Code of Criminal Procedure. He continued that some of the minors being that of tender ages the petitioner need not wait for the final disposal of the petition filed under section 25 of the Guardian and Wards Act. On the contrary learned counsel for Lt. Col. Ghulam Mustafa respondent No, 1 laid the emphasis that Mst. Kaniz Sughra herself left the house leaving the minors in the house of respondent No,1 who has not taken any step to eclipse her presence from his house. He added that there was no effort on the part of respondent No, 1 to remove the minors from the jurisdiction of the learned Guardian Judge-II, Lahore and for that matter the dispute with respect to the welfare of the minors has to be disposed of by the learned Guardian Judge-II, Lahore after recording the evidence. He continued that the application filed under section 12 of the Guardian and Wards Act has been accepted and the interview of the minors with the petitioner has been allowed which is being carried out.
5. It is the admitted position that the application under section 12 of the Guardians and Wards Act filed by Mst. Kaniz Sughra has been accepted. I would express that the dictum enunciated in the ruling printed as 1998 SCM R 289 is "in any case there is no illegality in dealing with the question of custody of the minor under section 491 of the Code of Criminal Procedure if such minor is in illegal or unlawful custody." In the judgment relied upon by the learned counsel for the petitioner the minor Asad Ullah had not been recovered in spite of many dates fixed by the High Court, the learned counsel for the female petitioner absented himself and the litigation before the learned Guardian Judge for custody of the minor was pending whereupon the petition was dismissed. On appeal the Honourable Supreme Court held that the matter could proceed under section 491 of the Code of Criminal Procedure wherein the ruling printed as Muhammad Javaid Amrau v. Mst. Uzma Wahid (1998 SCMR 1891) was referred to and it was observed that "in the said case the mother of the children approached Family Court for custody of her minor children but when she suspected that the minors were being shifted outside the jurisdiction of the Court she moved the High Court under section 491 of the Code of Criminal Procedure. According to the ruling published as Mst.
Aisha Bibi v. Nazir Ahmad and others (1981 SCM R 301) referred to in the aforesaid ruling relied upon by the learned counsel for the petitioner it was observed that. Where the dispute between the parties is essentially regarding the custody of the girl and no question of any forcible detention was raised, such was essentially a matter for the Guardian Judge to resolve and no justification was made out in such a case for issuing a direction in the nature of writ of habeas corpus. The dispute in hand is conspicuously different from the facts and nature of the dispute resolved in 1998 SCM R
289. Lt. Col Ghulam Mustafa respondent No,1 is a responsible officer of Pak Army. He is serving in Lahore and it cannot be expected and held that his minor issues are under his illegal or unlawful custody. No effort has been made by him to remove the minors out of the jurisdiction of the Guardian Judge, Lahore. The efficacious remedy under section 25 of the Guardian and Wards Act and further under section 12 of the Guardian and wards Act has been availed by Mst. Kaniz Sughra petitioner. In the circumstances of the matter there is no jurisdiction for issuing a direction in the nature of habeas corpus.
6. For what has been said above, this writ petition is dismissed in limine.