' CH. MUHAMMAD ARIF, J.---In this petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan; 1973, leave is claimed by the petitioner against order, dated 11-5-1999 passed by a learned Judge in Chambers of the High Court of Sindh whereby the application of respondent-Mst. Huma Naz under section 491, Cr.P.C., seeking custody of minors Aruba (daughter) and Muhammad Saif (son) (of the private parties herein) i.e. Twins born on 24-3-1997, was resolved as below:-- "Thus without making any comment on the allegations and counter-allegations, and/or the respective entitlement of the parties to have custody of the two minors at this stage I deem it appropriate to order that it would be in the welfare of the minors that their custody may be handed over to the applicant till suitable order according to law is passed by the learned Guardian Judge in any proceedings under the Guardians and Wards Act or it is modified by this Court. The learned Guardian Judge would be entitled to pass any order according to law, without being influenced by the observation made in this order. Furthermore, since the respondent No.1 being the father is legally bound to maintain the minor and is also entitled to meet them therefore, in case any suit is filed before the Family Court these issues may also be decided according to law. However, it is ordered that the applicant will allow the respondent No.1 to meet the children for half an hour on the 1st and 15th of every month before the Nazir of this Court and in case if these two days are declared holidays the respondent No.1 will be entitled to meet the minors on the next following days. On behalf of the respondent No.1 apprehensions were expressed that the applicant may remove the two minors out of Karachi. She is directed not to remove the two minors without permission, from the jurisdiction of this Court or the permission of the learned Guardian Judge in case if any suit is filed under the Guardians and Wards Act. She is holding a passport, but for the time being there is no need to seize the same. However, Immigration Authorities concerned are directed not to allow the applicant to take away the minors outside the jurisdiction of this Court by any route without permission as observed here in above. This would be purely interim arrangement till further order as indicated above."
2. Mr. A.A. Siddiqui, learned Advocate-on-Record appearing in support of this petition, has mainly challenged the exercise of its jurisdiction by the High Court under section 491, Cr.P.C. To issue the impugned order/writ on the ground that the matter can best be left to be resolved by the concerned Guardian Judge under the Guardians and Wards Act (No.VIII of 1890), hereinafter referred to as the Act. He was of the view that as respondent No.1 Mst. Huma Naz is contemplating to remove the minors out of Karachi, the petitioner will suffer irreparable loss if the impugned order is upheld. His further submission was that his client/the petitioner being the natural guardian of the minors and even in the absence of the petitioner, they are being looked after by his sister as also a governess appointed for that purpose. The plea was that the petitioner could not be deprived of the lawful custody of the minors in proceedings under section 491, Cr.P.C.
3. Respondent No.1 Mst. Huma Naz has herself presented an application in Court today asking for permission to Mr. Zia Ahmed Awan,, Advocate High Court to appear on her behalf on the ground that she was represented by him in the High Court as well. We are not inclined to allow Mr. Zia Ahmed Awan to represent respondent No.1 as he is not an Advocate of this Court.
4. We have heard the learned counsel for the petitioner as also Mr. Ainuddin Khan, learned Additional Advocate-General Sindh on behalf of respondent No.2. A perusal of the impugned judgment itself shows that the private-parties in this lis were directed to initiate appropriate proceedings before the concerned Guardian Judge who was duly cautioned not to be influenced by any observation made therein by the learned Judge in Chambers. As regards the direction to hand over the minors to respondent No.1 in her application under section 491, Cr.P.C., we suffice by observing that both the children are of tender age and that the lap of the mother for their nurture at this juncture cannot but be held to be in advancement of the law on the subject.
5. Before parting with this order, it may also be observed that this Court's direction, dated 11-6-1999 calling upon respondent No.1 Mst. Huma Naz to deposit her passport with the Assistant Registrar of the Court has been complied with. The private-parties have also confirmed the implementation of the further direction in relation to (1) the meeting of the children with the petitioner/father for two.
Hours instead 1/2 hour and (2) other arrangements by the High Court. Needless to say that in the event of the petitioner taking out appropriate proceedings before the Guardian Judge under the Act, the same shall be decided in accordance with law uninfluenced by any observation made in the impugned order by the learned Judge in Chambers.
6. Resultantly, the petition fails and in hereby dismissed.