1. ' By this application under section 491, Cr.P.C., Mst. Noor Jehan has sought the following relief: "It is, therefore, prayed ,that this Honourable Court may be pleased to give direction to S.R.O. Police Station Pak. Colony for the purpose of producing the present detenue before this Hon'ble Court and, thereafter, she may be handed' over to the applicant as the custody with the respondent of the said detenue is illegal and he may adopt the Guardian and Ward process for the purpose of taking custody through regular case before Guardian Judge and as such in the interest of justice the prayer of this application may be accepted, and the detenue custody may be given to the applicant."
2. ' The brief facts of the case are that the applicant was married with the respondent No, 1 . After some time, relations between the parties became strained and marital tie was, therefore, broken.
3. The respondent No,1 divorced the applicant. Out of this wedlock they were blessed with one daughter, namely, Pakeeza Ali.
4. ' It is stated that after the divorce respondent No,1 forcibly took away the minor daughter Pakeeza Ali aged about 4.-1/2 years from the custody of applicant (mother) and that he was also behind the life of applicant. The petitioner requested the respondent No,1 for the return of baby detenue Pakeeza Ali but he refused to deliver her the custody of minor and threatened her of dire consequences, in case she made any claim pertaining to the custody of minor baby.
5. ' The respondent filed objections by way of counter-affidavit wherein he has denied the allegations made against him in the above application. He has stated that divorce was given to the applicant according to her own wish and desire.
6. ' It is further averred that detenue is studying in a school. He never stopped the applicant from visiting or meeting the detenue.. Before Divorce Deed applicant called respondent No,1 and asked him that she wanted to spend Eid Holidays with her daughter. He allowed her to stay with detenue in his , house at Al-Asam Square Karachi whereas respondent No,1 spent holidays at his parents' house and did not visit the applicant till she left the house after Eid.
7. ' It is also stated that after Eid applicant again called the respondent No,1 and asked him that she wants to meet him in privacy but respondent No,1 declined and told her that after pronouncing '
8. Talaq' it was practically impossible to meet as desired by her. She, therefore, got annoyed and issued threats to him and instituted the present proceedings. The welfare of minor demands that she should remain with respondent and application !News dismissal.
9. ' I have heard Mr. Ch. Khalid Rahim learned counsel for the applicant and Mr. Raja Aftab Ahmed learned counsel for the respondent No,1 and Mr. Arshad Lodhi, learned A.A.-G. For the respondent No,2. I have also perused the material placed on record.
10. It is not disputed that detenue minor baby Pakeeza Ali is aged about 4 years and this fact is also evident from her school certificate placed on record by the respondent No,1. During the course of arguments learned counsel for the respondent No,1 stated that after divorce to the applicant the respondent No,1 has solemnized second marriage on 9-12-1998. There cannot be any substitute for a mother. The mothers' lap is God's Cradle Ibr a child. The mother is a suitable person to take the charge of the child. It is quite impossible to find any adequate substitute for custody of the child of tender age, and mother is preferable to a father in such cases.
11. ' It will be pertinent to reproduce herein below, the relevant provisions of Muhammadan Law relating to Guardianship and custody of a minor child. Section 352 of 'Muhammadan Law by D.P.
12. Mullah lays down as under:
352. Right of mother to custody of infant children.--- The mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child, unless she marries a second husband in which case the custody belongs to the father."
13. The plain reading of above provision of law shows that right of 'Hizanat' of mother in respect of her female child continue until she attains puberty, but if she marries a second husband in that case the custody will belong to the father.
14. Admittedly the applicant has not contracted second marriage whereas respondent No,1 has married a second wife. There is nothing on the record which showed or suggested that applicant is living in an obnoxious atmosphere or she is a wicked and an apostate person. The paramount consideration is welfare of minor in consonance with the Injunctions of Islam. In the peculiar facts and circumstances of this case the applicant is entitled to the custody of her minor daughter Pakeeza Ali, ' In this context I am fortified by the decisions in case of Mst. Naushabah Tabasum v. Ghulam Madni Shah reported in NLR 1987 Cr1.320, and Mst. Naushabah Tabassum v. Ghulam Madni Shah 1987 PCr.LJ 1318, Wasidi Akhtar v. Sheikh Gulzar Ahmed and others reported in 1955 PCr.LJ 474, Mst. Faruk Naheed Hashim v. Syed Shah Ibrar Qadri reported in 1994 PCr.LJ 1361 and Musmat Nusrat Jehan v.
15. Muhammad Siddik Khan and others reported in 1993 PCr.LJ 522.
16. Now I will advert to the contention of the learned counsel for the respondent No,1 that applicant can only seek remedy before Family Court under Guardians and Wards Act, 1890 and application under section 491, Cr.P.C., is not maintainable. This contention has no substance and it is misconceived.
17. This Court is competent under section 491, Cr.P.C. To entertain such an application and to pass orders for restoration of custody which has been illegally or improperly taken. In this context I am fortified by following decisions: ' Nisar Ahmed v. Sultan Zari (PLD 1997 SC 852) Rubina ALi v. Rafaqat Ali (1997 M LD 2066) Shugafta Andleep v. Iffat Mir Razak (1992 PCr.LJ 2168), Iffat Mir v. Mobeen Qassir Mir (1991 PCr.0 2372), Azra Bibi v. Muhammad Rafiq (1994 PCr.LJ 2570).
18. The upshot of the above discussion is that the application is allowed. The tentative custody of minor baby Pakeeza Ali was given To the applicant on 1-3-1999. Applicant/mother to continue and retain her custody.
19. ' Before parting with this matter, I would like to make it clear that the observations made hereinabove for handing over the custody of the minor to the applicant (mother) shall not be a bar in the way of respondent (father) in establishing his claim for custody of minor before the Guardian Judge by filing appropriate proceedings, which, if instituted, shall be disposed of without any delay.
20. The Trial Court will be at liberty to reach its own independent finding while adjudicating the said proceedings without in any manner being influenced by whatever is observed in this order.