' The petitioner-mother of minor Saleha Naeem has moved this Court under section 491, Cr.P.C. For the recovery of the minor and for delivery of her custody to the petitioners.
2. The background of the case is that the petitioner was earlier married to one Ahmad Din on 7-7- 1984 and out of this wedlock; a daughter namely Siddiqa Bibi was born on 11-5-1987. The character of said Ahmad Din was very bad and he was involved in criminal cases and also used to maltreat the petitioner which culminated into the divorce of petitioner on 19-11-1991. Thereafter, the petitioner was married to the respondent on 4-11-1993 and out of this wed-lock, a daughter Saleha Naeem was born on 26-8-1996. Initially the petitioner and respondent had been residing in a rented house but subsequently the respondent purchased a House No,33-K/1, Model Town, Lahore and shifted there. Thereafter, the respondent used to remain absent during the nights and starting taking interest in the women of ill-repute, on which the petitioner protested but in vain and subsequently, the respondent planned to get rid of the petitioner and in that plan his brother Shahid Umar Qadri and father Sardar Muhammad also colluded. On 23-7-1999, these persons alongwith certain others assembled at 5-00 p.m. And had mercilessly beaten the petitioner. Her shirt and Shalwar was torn and her body was exposed which caused great insult and disgrace to the petitioner. She was threatened with dire consequences.Subsequently on 24-7-1999, an F.I.R. No,219 of 1999 was got registered at Police Station Faisal Town, Lahore and illegally the petitioner was got arrested on false charge of having 3 bottles of wine. On 25-7-1999 when she was produced before the Magistrate for remand, she made protest in respect of the cruel treatment meted out to her at the hands of the respondent and she was bailed out by the said Magistrate. Thereafter, the respondent had started false propaganda in some of the newspapers in order to harass, humiliate and defame her. Earlier, there is no complaint at all against the petitioner. She had been residing with the respondent in the house owned by him. On 27-7-1999, the respondent also sent divorce to the petitioner. That since birth, Mst. Saleha Naeem minor daughter remained in legal and proper custody of the petitioner but during the aforementioned incident, the respondent snatched her and now she is in his illegal and improper custody. It is further alleged that Saleha Naeem being a minor of tender age cannot live in a better condition with the respondent and her welfare lies in her custody with the petitioner- mother.
3. On the other hand, the learned counsel for the respondent has as taken thstand that the respondent is real father of the minor and her custody with him is legal and that he does not want to leave the minor with the petitioner due to her moral turpitude and that the jurisdiction of the Guardian Judge was exclusive under the Family Courts Act and the matter of custody and guardianship of minor cannot be dealt with and decided in proceedings under section 491, Cr.P.C.
4. I have given due consideration to the valuable arguments on both sides. In the case of Muhammad Javaid Umrao v. Miss Uzma Vahid 1988 SCMR 1891 where the petitioner, father of two daughters, sought leave to appeal against judgment of this Court whereby in the proceedings instituted by the respondent, divorced wife of the petitioner, under section 491, Cr.P.C., a direction was given that the custody of both the minors shall remain with the respondent till the attain puberty. Such an order was passed notwithstanding the fact that the respondent's application under section 25 of the Guardians and Wards Act and an application under section 12 of the said Act were already pending before the District Judge and another application' of the petitioner under sections 7 and 9 of the said Act instituted by him in the District of Abbottabd was pending at that time, and the Hon'able Supreme Court of Pakistan observed as under:-- "A bare examination of the relevant provisions will show that they do not conflict with each other, nor is the jurisdiction conferred overlapping or exclusionary. Section 491 of the Code of Criminal Procedure provides as follows:-- '491. Power to issue directions of the nature of habeas corpus. (1) Any High Court may, whenever it thinks fit, direct--
(a) that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law;
(b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty;
(c) that a prisoner detained in any jail situate within such limits be brought before the Court to be there examined as a witness in any matter pending or to be inquired into in such Court;
(d) that a prisoner detained as aforesaid be brought before a Court-martial or any Commissioners for trial or to be examined touching any matter pending before such Court-martial or Commissioners, respectively;
(e) that a prisoner within such limits be removed from one custody to another for the purpose of trial; and
(f) that the body of a defendant within such limits be brought in on the Sheriff's return of cepi corpus to a writ of attachment.
(2) The High Court may, from time to time, frame rules to regulate the procedure in cases under this section.
(3) Nothing in this section applies to persons detained under any law providing for preventive detention.
' The Guardians and Wards Act, as the title itself suggests, deals with the Guardians, Wards and the problems and questions relating them. Section 7 relates to ill(' appointment of a guardian by th( Court and section 12 authorises the Court to make interlocutory order for protection of minor and interim protection of person and properly The two matters, one dealt with by section 491, 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. The law as it stands shows no such repugnancy."
' The Hon'ble Supreme Court further observed:-- "However, as pointed out section 491, Cr.P.C. Is ordinarily not available for declaring a guardian or for determining for all time the question of custody of the minor. Therefore, the judgment of the High Court in so far as it directs that the minors should remain with the respondent till they attain puberty oversteps the confines of section 491, Cr.P.C. And deserves to be set aside. We convert this petition of which respondent had notice, into an appeal and accept it to this extent. It is so ordered.
However, the question of final custody shall be decided in the proceedings under the Guardians and Wards Act initiated by the respondent in the Family Court at Lahore and if she does not prosecute it then alone in the proceedings initiated at Abbottabad and if neither proceedings are prosecuted to a conclusion, the order of the High Court with regard to the present custody shall remain intact without the qualification that it will last till puberty. The entitlement to custody of minors on regular basis must depend on adjudication of question of fact primarily having basis in the welfare of the minors and minors alone."
5. In the case of Mst. Aisha Bibi v. Nazir and 2 others 1981 SCMR 301 where the dispute between the parties was essentially regarding the custody of a girl and no question of forcible detention arose, the petitioner was maternal grandmother of the girl while the respondent was her paternal uncle, the Hon'ble Supreme Court observed that matter was essentially a matter for the Guardian Judge to resolve and no justification was made out for issuing a direction in the nature of writ of habeas corpus.
6. In the case of Ahmad Sami and 2 others v. Saadia Ahmad and another 1996 SCMR 268, the Hon'ble Supreme Court observed that High Court can pass an appropriate order under section 491, Cr.P.C. As an interim measure pending final decision by the Guardian Judge where it finds that the interest and welfare of the minor demanded that he or she be committed immediately to the custody of the person who was lawfully holding the custody of minor before he was deprived of the same.
7. In the case of Abdul Rehman Khakwani and another v. Abdul Majid Khakwani and 2 others 1997 SCMR 1480 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 the Court of Guardian Judge his brother as guardian of the child, the Hon'ble Supreme Court observed that in the circumstances it cannot legitimately be said that the child, although in custody of his foster parents, was in lawful custody of her uncle, to attract the provisions contained in section 491, Cr.P.C. And that the order of appointment of appellant No,1 as guardian of the person of minor was held binding on the parties till it was set aside. The Hon'ble Supreme Court further observed that the 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.
8. In the present case, the facts which cannot be disputed are that the minor was born on 26-8- 1996 and today she is 3 years and 4 days old. She was with the mother till 24-7-1999 when she was arrested on the basis of F.I.R. No,219 of 1999 registered at Police Station Faisal Town, Lahore and the minor was taken into custody by her father-respondent. The petitioner was bailed out on 25-7-1999 and asked the respondent to handover the minor to her but he refused and since then the minor is with the father. In the case of Miss Hina Jilani, Director of A.G.H.S. Legal Aid Cell v. Sohail Butt PLD 1995 Lah. 151 where a Pakistani national went to Tashkent and married a citizen there, they lived as husband and wife and conceived a child. Later on they came to Pakistan where a daughter was born. The wife went to Tashkent and when returned from there, some disputes and differences developed between the spouses which resulted in dissolution of marriage. The father wanted to detain the minor daughter and the mother filed a Constitutional petition read with section 491, Cr.P.C. Before this Court wherein a Division Bench allowed the petition and directed that the custody of the minor be handed over to her mother subject to orders, if any, passed by the Family Court of competent jurisdiction to which parties or any one of them may have recourse, if they so desired. In that case, the Hon'ble Judges of this Court observed: "Furthermore, in cases relating to custody of minor it is not essential that forcible removal or detention must be proved by the mother. If the Court keeping in view the tender age of the minor and the principles of Muslim Personal Law come to the conclusion that the custody has been wrongly or illegally withheld from the parent, it can order the restoration of custody to her. This question was considered by Zia Mahmood Mirza, J.) as he then was in Iffat Mir v. Mobeen Qasim Mir 1991 PCr.LJ 2372 in which it WA observed that though father is a natural guardian of the minor but he cannot retain the custody forcibly and against the wishes of the mother who in law was entitled to the custody of the minor without obtaining proper orders of custody of the minor from a Court of competent jurisdiction. A Division Bench of this Court in Shabbir Hussain v. Mst. Shahnaz Parveen and another 1989 PCr.LJ 1689 has laid down that the remedy provided by section 491, Cr.P.C. Was more efficacious, speedy and appropriate as compared to the proceedings, before the Guardian Judge and as the minor was a suckling baby, her welfare demanded that she should be restored to her mother who was entitled to get her custody under the Islamic Law unless she is debarred from doing so leaving the parties to have their rights decided from the Guardian Courts. Similar view was expressed by another Division Bench in Mst. Farrukh Naheed Hashmi v. Syed Shah Ibrar Qadri 1994 PCr.LJ 1361 and also by the Sindh High Court in Mst. Tayyaba Khan v.Syeda Begum and another PLD 1994 Kar.
204."
' The Division Bench further observed: "There is another way of looking at things. Under section 491, Cr.P.C. The High Court exercises two- fold jurisdiction; firstly, to direct the production of a person who is illegally detained to be brought before the Court so as to set him at liberty and secondly, to direct the production of a person so that he can be dealt with in accordance with law. In the latter case, it is not essential that the detention must be by use of force. If a person has been confined in a manner not warranted by law in that event also the Court can issue appropriate direction under section 491, Cr.P.C. This question was considered by the Supreme Court of Pakistan in Muhammad Rafique v. Muhammad Ghafoor PLD 1972 SC 6 wherein it was ruled as under:-- ' The High Court has two-fold jurisdiction under this section: (i) to deal with a person within its appellate criminal jurisdiction according to law; and (ii) to set him at liberty if he is illegally or improperly detained. The question which falls for determination, however, is that if the Court finds that the person brought before it was not being illegally or improperly confined or detained what order can be passed regarding the custody of that person'.
' The Supreme Court further went on to observe that if a person was a minor, the Court may make over his custody to the Guardian which will be dealt with him in accordance with law..."
9. In the instant case, the minor was in lawful custody of her mother i,e, the petitioner and had there been no criminal case against her at the instance of the respondent, the custody would have been with her. After her bail, the respondent should have returned the custody of the child to the mother and for assertion of his right, he should move the Court of Guardian Judge which is the proper forum. Thus, under the facts and circumstances of this case, the petition merits to be allowed and the same is hereby allowed and without prejudice to the rights of the parties before the Guardian Judge in accordance with law, interim custody of minor is given to the petitioner-mother. The petitioner shall allow the respondent to see his minor daughter every week before the Guardian Judge, Lahore or as further ordered by the Guardian Judge in the welfare of the minor.