' This petition under section 491, Cr.P.C. Invoking the extraordinary jurisdiction of this Court for the production of minors Mussarat Bibi aged about 9 years, Mansab Bibi aged about 8 years, daughters of petitioner, and Javaid aged about 6 years, son of the petitioner which according to the petition were within the illegal custody of respondents Nos.1 and 2.
2. The minors were produced by the respondents on 26-7-1999, 29-7-1999 and 30-7-1999. The respondents appeared in person alongwith their learned counsel and objected on the point of jurisdiction of the High Court to entertain this instant petition in view of the legal and proper custody of the minor children by the respondents. They aiso objected to the maintainability of the petition under section 491, Cr.P.C. For the reason that it is the Guardians and Wards Court to finally adjudicate upon the custody of the minors with paramount consideration of the welfare of the minors. The respondents further objected that the petitioner had lost her right of ' Hazant' by marrying a stranger. They relied on (1) Muhammad Khalil-ur-Rehman v. Mst. Shabana Rehman and another PLD 1995 SC 633, (2) Mst. Zaibunnissa v. Muhammad Qassam and 4 others 1981 CLC 1275,
(3) Mst. Sultana Begum v. Muhammad Shafi PLD 1965 (W.P.) Kar. 416, (4) Mussarat Jabeen v. Dr. Khalid Nawab and another 1990 PCr.LJ 686, (5) Mst. Hamida Bibi v. Station House Officer and another 1998 PCr.LJ 140, (6) Abdur Rehman Khakwani and another v. Abdul Majid Khakwani and 2 others 1997 SCM R 1480.
3. The respondents contended that paternal grandmother of the minors was having the custody of the minors and she had died. She was appointed guardian of the minors by the Court and the petitioner of her own with compromise handed over the custody of the minors to their grandmother. Before her death she had entrusted the custody by will to one Muhammad Aslam son of respondent No,1 Bashir Ahmad and so the custody of the minors with them was not illegal or improper and that the petitioner did involve in the murder case of her own husband and after the death of her husband she had re-married a stranger.
4. On the other hand, learned counsel for the petitioner contended that the petitioner being real mother of the minors/detenues is entitled for their custody and respondents Nos.1 and 2 are strangers to the detenues and their custody is illegal and improper. He further contended that the detenues cannot be kept away from their mother and the lap of the mother is the only shelter to the minors and that any compromise/agreement in respect of the custody of the minors was not a valid agreement and not enforcible at law. He relied on (1) Afshan Naureen v. Nadeem Abbas Shah 1997 M LD 197 (2) Abdur Rehman Khakwani and another v. Abdul Majid Khakwani and 2 others 1997 SCM R 1480, (3) Nisar Ahmad and another v. Sultan Zari PLD 1997 SC 852, Ahmed Sami and 2 others v. Saadia Ahmed and another 1996 SCM R 268, (5) Mst. Zenia v. Ahmed Jawad Sarwar PLD 1994 Lah.
577.
5. Admittedly, the petitioner is real mother of the minors while respondents Nos.1 and 2 are stranger to them. The petitioner was arrested in the murder case of her own husband and she was sent behind the bars and since then the minor children are away from her, but during the period paternal grandmother of the minors was alive who was appointed guardian by the Court and she had preferential right because the mother had contracted a second marriage but now that old lady has died and the minors are now legal heirs of the property of their paternal grandmother and live with the respondents who had no blood relation with them. They have no right to keep the custody of the minors in any manner. Though mother had married second husband yet minors are produced of her womb and mother, even if a butcher, cannot kill her own children.
6. There are two remedies; one under section 25 of the Guardians and Wards Act and the other under section 491, Cr.P.C. Both remedies are entirely different; but High Court in certain cases can pass order under section 491, Cr.P.C. And it is only interim measures till the final decision by Guardian Judge. One Din Muhammad had filed a petition under Guardians and Wards Act for the appointment of the guardian of the persons and property of the minors against the petitioner and the Guardian Court will pass an order keeping in view the paramount consideration of welfare of the minors. Till then the petitioner cannot be deprived of her minor children. In this case though the petitioner had contracted second marriage but except her there is no other present before the Court entitled for the interim custody of the minor children, and the High Court can exercise jurisdiction under section 491, Cr.P.C. Without prejudice to the right of the parties to have the matter finally adjudicated upon by the Guardian Judge. The Will by the deceased in favour of Muhammad Aslam is not proved yet the Guardian Court will pass appropriate order to this effect.
7. In view of the above discussion, this petition is allowed and the custody of the minors/detenues is handed over to the petitioners till adjudication, if pending or filed by any of the parties before the Guardian Court.