1. ' By this Criminal Miscellaneous Application under sections 491 and 561-A, Cr.P.C. The applicant Mst.
2. Ruqya Tufail has sought following relief:--- "(a) Direct the respondents Nos. 1 to 3 to produce the said minor/detente before this Humble Court and pending decision of the matter the custody of the said minor/detenue be handed over to the applicant.
(b) Grant any other relief or reliefs as this Honorable Court may deem fit and proper.
(c) Grant the costs of this
(d) Issue rule nisi for production of the detente before this Honorable Court."
3. ' The brief facts of the case as disclosed by the applicant in this application are that, applicant belongs to a respectable family. She is an educated lady and a law-abiding citizen.
4. ' The applicant was married with respondent No,1 Sohail Rana on 27-4-1996 at Karachi against dower amount of Rs,6,000. Out of this wedlock the applicant gave birth to a female child Zunaira on 14-9-1997.
5. ' After marriage the applicant found that the despondent No,1 was of cruel nature. He was unaware of passing happy matrimonial life. Respondent No, 1 at behest of respondents Nos.2 and 3 who are his parents made the life of applicant miserable. On 15-12-1998 the respondent No,1 ousted the applicant from his house alongwith minor baby Zunaira.
6. ' It is further stated that on 15-7-1999 the respondent No,1 snatched the custody of minor baby Zunaira from the applicant and she was kept in custody of respondents Nos. I to 3. The minor baby Zunaira is a small suckling child of tender age and applicant being a mother would be in a better position to upbring the child.
7. ' The respondent No,1 filed counter-affidavit wherein he denied the allegations of humiliation and snatching away of child.
8. ' He has further stated therein that applicant pressed the respondent No,1 to quit the house of his parents and live with her parents as "Ghar Damad" and on his refusal, she deserted the house on 6-12-1998 leaving behind minor baby Zunaira. The minor baby Zunaira was being well looked after by the respondents Nos.1 and 3 and other paternal inmates of the house. The minor baby Zunaira was no more a small suckling child as she had crossed the age of 3 years.
9. ' The respondents also challenged the maintainability of the application and contended that under the provisions of Muhammadan Law the respondents were entitled the custody of minor baby Zunaira.
10. ' In her affidavit in rejoinder the applicant has denied the assertions made in counter-affidavit and she has reiterated the averments made in the application.
11. ' During the pendency of proceedings tentative custody of minor baby Zunaira was given to the applicant and the child is now living with the applicant.
12. ' I have heard Mr. Ashiq Rana the learned Advocate for the applicant and Mr. Qamar Muhammad Khan the learned Advocate for respondents Nos.1 to 3. 1 have also heared Mr. Muhammad Saleh Panhar, Advocate on behalf of A.-G. For the State. The latter have contended that the applicant (mother) is entitled to custody of the minor baby and present application is maintainable in law.
13. ' The perusal of record shows that baby Zunaira who is the bone of contention in the present matter is undoubtedly a minor aged about 3 years. The relations between the parties i,e, applicant (mother) and respondent No,1 (father) are highly strained. The applicant (mother) has filed suit for the dissolution of marriage whereas the respondent No,1 (father) has filed suit for restitution of conjugal rights. Both the suits are pending before the family Judge for adjudication.
14. ' It will be pertinent to reproduce herein section 352 of Muhammadan Law by D.F. Mulla for the sake of ready reference: "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." of law shows that the mother of female child is entitled to the custody (Hizanat) until the female child attains puberty. This right of mother continues even after divorce till her second marriage.
15. The second paramount consideration is welfare of the minor. Nothing has been alleged, nor any material has been brought on the record from which it could be deduced that applicant (mother) is of easy virtue and or that she is living in an abnoxious atmosphere. It's also not the case of respondents that the applicant became an apostate, wicked or unworthy to be trusted (luring the period when she lived with her husband and after her separation from husband Thus of all the persons the applicant (mother) be the best to keep the custody of her minor baby Zunaira.
16. ' The contentions of the learned counsel for the respondents Nos.1 to 3 that the age of a suckling child is up to 2-1/2 years and that infant baby Zunaira has now crossed the age of suckling, and that the applicant would only seek remedy before Guardian Judge under Guardians and Wards Act, 1890 and that therefore application under section 491, Cr.P.C. Was not maintainable, has no substance and are misconceived. The Court is competent under section 491, Cr.P.C. To entertain the present application and to pass orders for restoration or retention of the custody which has been illegally or improperly taken.
17. ' In this context I am fortified by the decision of the Honourable Supreme Court in case of Nisar Ahmed v. Sultan Zari reported in PLD 1997 SC 852 and the case of Mst. Sarwar Kalhoro v. Mukhtiar Ali Kalhoro reported in 1999 PCr.LJ 1711 and that of Mrs. Shakila Khatoon v. Syed Muhammad Ali Jafery and others reported in 1999 M LD 2264.
18. ' The decision of Honourable Supreme Court in case of Ahmad Jawad Sarwar v. Mst. Zenia reported in 1996 SCM R 1907 relied upon by the learned counsel for the respondents Nos.1 to 3 is of no help to him as the facts and circumstances of the cited case are distinguishable from the facts and circumstances of present case.
19. Accordingly I direct that the custody of baby Zunaira should be retained by the applicant (mother).
20. The interim order, dated 25-10-1999 is accordingly modified to the extent that applicant (mother) will produce the minor baby in-between 10-30 a.m. To 11-00 a.m. Before the Nazir of this Court on first of every calender month and in his presence respondent No,1 (father Sohail Rana) may meet the minor baby Zunaira. If the 1st of calender month falls on a holiday in that case the applicant will produce the minor baby on the succeeding opening day of the Court.
21. ' Before parting with this matter, I would like to make it clear that the observations made hereinabove for giving the custody of the minor baby Zunaira shall not be a bar in the way of the respondent No,1 (father) in pursuing his claim for custody of the said minor before the Guardian Judge/Family Court by filing appropriate proceedings which, if, instituted, shall be disposed of by the concerned Court without any delay. The trial Court will be at liberty to arrive at its own independent finding while adjudicating such proceedings without in any manner being influenced by whatever has been observed in this order.
22. ' The Criminal Miscellaneous Application stands disposed of.