' Petitioner and respondent No,1 herein are mother and father respectively of three minors, namely Marvi aged about seven years, Master Jehanzeb aged about six years and baby Kainat aged one year. This petition under section 491, Cr.P.C. Has been filed by the mother/petitioner for recovery of two above named minors.
2. Brief facts as alleged in the petition are that the petitioner and respondent were married according to Muslim Laws at Hyderabad, on 24th July, 1990, and the dower amount was fixed at Rs,1,00,000; that as a result of such marriage, two baby girls and one boy were born; that the two children named in the above para. Are with the father/respondent No,1, while the third child namely baby Kainat, who is about one year is with the mother/petitioner. It is alleged in the petition that on 26-6-1998 the respondent No,1 ousted the petitioner alongwith her minor children, who were compelled to take shelter in the house of her parent, where she is still residing; that on 15-7-1998 the respondent came to the house of the petitioner's parents and forcibly took away the custody of two minors as name in paragraph No,1 above; that the efforts of the petitioner to recover these two minors through Khidmat Committee, Hyderabad, and through Police went in vain and as a last resort, she had filed the instant petition under section 491, Cr.P.C. On 25-7-1998.
3. Notice was issued to the respondent as well as to the Advocate-General, Sindh at Hyderabad, as a result of which respondent No,1 has filed his counter-affidavit denying averments of the petition.
The contents of counter-affidavit filed by the respondent No,1 were denied by the petitioner through her affidavit-in-rejoinder. It is the case of the respondent No,1, father that on 26-6-1998 the petitioner was forcibly taken away from his house by her brother, which fact was narrated to him by his daughter Marvi and son Master Jehanzeb; that he filed suit for restitution of conjugal rights which is still pending. It is denied by the respondent No,1 that he has forcibly taken away the custody of the two minors. During the hearing of this petition, Rule nisi was also issued, in response to which this Court was informed on 22-9-1998 that the two minors were residing with their grandmother at Attock, Punjab, whereafter the respondent No,1 was directed to produce the two minors in Court.
4. I have heard Mr. S.H. Hashmi, Advocate, for the petitioner. Mr. Jaffar Hassan Abidi Advocate for the respondent No,1 and Mr. Mukhtar Ahmed Khanzada, Advocate, for the State. It was argued by Mr. Hashmi that the two minors, namely, baby Marvi and Master Jehanzeb being under the age of 7 years, require care of the mother/petitioner and that the respondent No,1/father is not in a position to look after the said two minors which fact has been proved inasmuch as he has entrusted custody of these two minors to his mother who is residing at Attock, Punjab. It was argued on behalf of the petitioner that on 15-7-1998, custody of the minors was removed in most illegal and mala fide manner. On the other hand Mr. Jaffer Abidi has argued that the marriage still subsists and that the father has not illegally or unauthorizedly removed custody of two minors. He has attempted to show that the petitioner and her family members, by their conduct, are not to be trusted for the custody of these two minors Mr. Abidi has also filed written arguments. Learned counsel appearing for the State has supported to case of petitioner. All the parties have referred to the following case-law.:--
(i) Ahmed Sami and 2 others v. Saadia Ahmed and another (1996 SCMR 268).
(ii) Muhammad Khalil-ur-Rehman v. Mst. Shabana Rahman and another (PLD 1995 SC 633).
(iii) Mst. Tauqir Fatima v. Iqbal Mehdi Shah and another (1990 PCr.LJ 342).
(iv) Abdul Rehman Khakwani and another v. Abdul Majid Khakwani and 2 others (1997 SCMR 1480).
(v) Smt. Pari Bai v. Amrat Lal and others (1997 PCr.LJ 105).
(vi) Mst. Naziran Bibi v. (sic)
(vii) Sara Palmer v. Muhammad Aslam (1992 MLD 520). (viii)Mst. Maria Khan v. Muhammad Zubair Khan (1993 PCr.LJ 1097).
5. In the case of Muhammad Khalil-ur-Rehman (supra) it was held by the Hon'ble Supreme Court, after reference to the case Muhammad Javed Umrao v. Uzma Wahid (1988 SCMR 1891) that in appropriate cases, the High Court, under section 491, Cr.P.C., after reaching conclusion that a minor had been illegally removed from the custody of the person who was holding his custody lawfully, can pass appropriate orders. This view was reiterated by the Hon'ble Supreme Court in the case of Ahmed Sami (supra). In that case this Court allowed Criminal Miscellaneous No,26 of 1995 and granted the custody of two minors, aged 4 and 2 years to their mother. The petition seeking leave to ,appeal was dismissed with the following observations:-- "Keeping in view the above circumstances and the fact that the minors are aged about 4 and 2 years respectively, the order passed by the learned Judge directing restoration of the custody of minors to respondent No,1 who is their mother, cannot be described as arbitrary exercise of the power under section 491, Cr.P.C. We are, however, of the view that the learned Judge while deciding the petition under section 491, Cr.P.C. In which he was only concerned with the question of removal of the minors from the lawful custody of respondent No,1, should have refrained from making any observation with regard to right of petitioner No,: and the respondent No,1 to the custody of two children as this question was already pending adjudication before the Guardian Court in an application under section 25 of the Act which, we have been informed, was filed by petitioner No,1 during pendency of the petition under section 491, Cr.P.C. We, therefore, clarify here that any observation made by the learned Judge with regard to merits of the claim of petitioner No,1 or of respondent No,1 in respect of the custody of two minors shall be ignored by the Guardian Judge while dealing with the application under section 25 of the Act and shall decide the same uninfluenced by the remarks of the learned Judge in the impugned judgment. We further direct that the application under section 25 of the Act shall be disposed of by the Guardian Judge within a period of 6 months from today."
6. Recently, in a matter arising out of section 491, Cr.P.C. In regard to a minor girl of 5-1/2 years, (Mst.
Erum Saghir Khan v. Khawaja Imranud-Din and another, (C.P. No,S-42 of 1999) I have considered some of the abovementioned cases in addition to other reported cases, whereafter, petition was allowed and the mother was granted custody of her minor daughter in the following circumstances:-- "(9) In the aforesaid circumstances which are deducible from the contents of petition, counter- affidavit and rejoinder, I am of the considered view that it is a proper case where powers of the High Court can be invoked under section 491, Cr.P.C. I may refer here to the case of Saadia Ahmed v. The State and 3 others (1996 MLD 30) where this Court granted the petition under section 491, Cr.P.C. And directed respondent No,2 to deliver the custody to mother/petitioner despite the fact that there was allegation that mother had herself given up the custody of the minors and that she had lost her 'Hizanat'. Reference was made to the case Hina Jilani v. Sohail Butt (PLD 1995 Lahore 151), Mst. Nasim Akhtar v. Shaikh Gulzar Ahmed and 4 others (1995 PCr.LJ 474) and Muhammad Hiroku v. Muhammad Latif (1994 MLD 1682). In the last cited case, a learned Single Judge of Lahore High Court granted custody to the petitioner subject to final order to be passed by the Family Court. In that case, one of the reasons prevailed upon by the Lahore High Court was the tender age of minor who' at relevant time was six years old.
(10) Admittedly both the parties belong to Sunni faith and as per right of 'Hizanat', mother is entitled to the custody of a female child until she attains the age of puberty. The minor is also suffering from some eye disease and, therefore, supervision of her mother is very necessary. On 2-2-1999, custody of baby Mahnoor who was produced by respondent No,1 on that day, was temporarily handed over to the petitioner. On 12-2-1999, interim arrangement was made whereby respondent No,1 was permitted to collect the custody of baby Mahnoor on each and every Sunday at 12.00 noon from the petitioner's house and to return the same on the same day at or before 5.00 p.m.
With this tentative arrangement, this petition is accepted. Custody of baby Mahnoor Khawaja shall remain with the petitioner/mother subject to the above arrangement until a final order is passed by the Guardian and Wards Court. During this period, the petitioner shall kept baby Mahnoor under consistent supervision of an eye specialist and shall submit report after every six months with the Registrar of this Court. All the observations made hereinabove are tentative and shall in no manner prejudice the decision of the Guardian and Wards Court, if it is invoked."
7. The question as to where the welfare of the child was, is always a question of fact and it cannot be decided without resorting to process of recording evidence. This exercise is also necessary as the future of a child is involved. Such question cannot be resolved in a proceeding as of instant. In such circumstances, the High Court is required to form a tentative view in respect of removal of custody of the minor from one parent to another. If the minor is of tender age, he or she is always preferred to be given to his/her mother till final decision of the Court of Guardian and Wards. It has been consistently held by the Superior Courts that there is no alternative to the care and love of mother. In the instant case, the father of the two minors have alleged several grounds which can only be considered at trial before the Court of Guardian and Wards for the instant proceedings suffice it to say that the petitioner has alleged removal of the custody of the two minors in most unlawful and mala fide manner which was not successfully rebutted by the respondent No,1/father which, in my considered view, is sufficient to grant a petition under section 491, Cr.P.C. On 29-4- 1999, through the short order this petition was granted in the following manner:- "(a) That the respondent No,1 shall deliver/handover the custody of two minors today, namely baby Marvi and Master Jehanzeb to the petitioner for the time being.
(b) That the respondent No,1 being father of the above said two minors shall be entitled to see the minors on every Sunday from 2.00 to p.m.
8.00 p.m. For this purpose, the respondent No,1 will collect the custody of the above two minors from the house of the petitioner and will deliver back the same on the same day and time mentioned earlier.
(c) That the above arrangement is tentative in nature and subject to final decision of the Court of Guardian and Wards.
(d) That the petitioner is directed not to remove the custody of the two minors from the jurisdiction of the Court where the matter is pending in respect of custody of two minors (IVth Senior Civil Judge/Guardian and Wards Court Hyderabad).
(e) Likewise, respondent No,1 is directed to ensure due compliance of the above order and not to remove the custody of the minors till final decision of the Guardian and Wards Court as mentioned above.
(f) That the concerned trial Court i,e, (Guardian and Wards Court Hyderabad) is directed to expeditiously proceed with this case and to conclude the same within three months from the date of receipt of intimation of this order."
8. Above are the reasons for the said short order. All the observations and comments made hereinabove are tentative and in no manner will influence the learned Judge of the Court of Guardian and Wards.