1. ' TARIQ MEHMOOD, J.---Petitioner has filed this miscellaneous application in person on the averments that parties were married in 1986. Out of wedlock four children were born namely Atif Baloch aged 12 years, Pulwasha aged 10 years, Zartasha aged 8 years and four months and Hamza Baloch aged 3 years. Stating further that on 17-6-1999, she was turned out from the house and children were retained. Also that later on she was divorced by respondent in July/August, 1999.
2. Subsequently respondent brought minor Hamza, as he was seriously sick. Said child remained with her for some time but then respondent in April, 2000, took him away on the pretext that he would return the child after two days but did not turn up. Presently she is residing with her aged father.
3. She also stated that she does not have any brother, who could possibly accompany her to Loralai for filing of suit for recovery of children and she alone cannot go, as respondent has hreatened her for dire consequence.
4. ' Heard Mr. H. Shakeel Ahmed, learned counsel for petitioner and Mr.Mushtaq Ahmed Anjum, learned Counsel for respondent. Learned Advocate-General, on Court notice, also rendered necessary assistance.
5. ' Learned counsel for respondent at the outset submitted that the Family Court has exclusive jurisdiction in the matter and the present application is, therefore, not maintainable. He explained that minors are in the custody of father and is not in custody of a stranger, therefore, it is not a case of kidnapping and an application under section 491, Cr.P.C. Would not be maintainable. Reliance was placed on 1981 SCMR 301.
6. ' The learned counsel for petitioner on the other hand submitted that there is no conflict of jurisdiction as the High Court exercises parental jurisdiction to deal with such matter. In this context, he referred 1998 SCMR 289, 1988 SCMR 1891, PLD 1995 SC 633; 1997 SCMR 1480 and PLD 1994 Lahore
577. As the fate of the base primarily dependent upon the question, whether High Court has jurisdiction to grant relief claimed for and as both the parties relied upon various judgments, in support of their respective contentions, therefore, we have carefully examined the same. In the case of Mst. Aisha Bibi v. Nazir and others 1981 SCMR 301, it was observed that where the dispute between the parties is essentially regarding custody of the girl and no question of any forcibly detention was raised, such was essentially a matter for Guardian Judge to resolve and no justification is made out in such a case for issuing a direction in the nature of writ of habeas corpus. In the case of Muhammad Javed Umrao 1988 SCMR 1891 Hon'ble Supreme Court held that the two matters, one dealt with under section 491 of. Cr.P.C. And the other under Guardians and Wards Act were entirely different and there is no question of the one excluding the other, the one overlapping the other or the one destroying the other. In a case reported in 1998 SCMR. 289, it was observed that main anxiety of a Court in such matter is to put the minor in custody of the person who is entitled to such custody, keeping in view the Muslim law on the subject and welfare of the minor. Adding further that no doubt ultimately the order of the Family Court would hold the field, irrespective of the fact what order has been passed under section 491 of Cr.P.C. In case reported in 1997 SCMR 1480, it was held that it is to be ascertained as to what is the substance of the proceeding and thereafter the appropriate channel be it of section 491, Cr.P.C. Or under Guardians and Wards Act. In case reported in PLD 1995 SC 633, it was held that in appropriate case, if High Court reaches the conclusion that a minor has been illegally removed from the custody, the relief can be granted. In PLD 1994 Lahore 577, it was held that the provisions of section 491, Cr.P.C. Are infact more appropriate, efficacious and speedy. If on the fact and circumstances of the case the Court comes to the conclusion that some one is illegally or improperly detained in public or private custody, (i) if lie is a major, will be set at liberty and (ii) if the person is a minor, the Court can restore the custody to the person with whom it vested prior to the improper deprivation of the custody. The absolute authority to determine the final custody of the minor vests in a Court of Guardians and Wards Act which will finally decide the case of the minor. This Court also enjoys parental jurisdiction in respect of the minor and also keeps into consideration the relevant law governing the minor.
7. After considering the ratio of above cases, it is clear that the two matters one dealt with under section 491, Cr.P.C. And the other under the Guardian 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. And that there is no repugnancy between the said two provisions. Further that provision of section 491, Cr.P.C. Are more appropriate, efficacious and speedy and if the High Court comes to the conclusion that someone is illegally or improperly detained in public or private custody, the Court can restore the custody of the minor, to the person with whom such custody vested prior to the improper deprivation of the custody. But the absolute authority for determination of final custody of the minor vests in a Court of Guardians and Wards Act which will finally decide the case of minor, although High Court enjoys parental jurisdiction in respect of the minors and keeps into consideration the relevant law governing the minors. The language of section 491, Cr.P.C. Shows that the High Court can exercise the jurisdiction for issuing directions in the nature of habeas corpus only when a person is illegally or improperly detained in public or private custody within the limits of such High Court. Further that facts of individual cases may be such and where the cover of proceedings of one sort is taken for advancing the substance of the proceedings and thereafter the proceedings are to be diverted to the appropriate channel be it of section 491, Code of Criminal Procedure or one under Guardians and Wards Act.
8. ' Applying the above principles it is quite clear that there are four minors and have been residing with their father for last about 1 to 1-1/2 years. Though because of the lesser age of minor, petitioner may be entitled for their custody including interim arrangement, the said question is vested within the jurisdiction of Guardian/Family Court, keeping in view the welfare of minor. The argument that respondent has recently married to a lady who is a stranger to minors is also relevant for said Court. In fact, it is not a case of illegal removal of minors from the custody of mother, therefore, resort to section 491, Cr.P.C. Is not available. The substance of present proceedings is to have the custody of minors from the real father and immediate cause of action may be that respondent has entered into a second marriage. Further petitioner has also -stated that as she does not have any brother, so it is not possible for hec to go to Loralai and file suit for custody or minors in the Court of Guardian and Wards Act. Also for the reason that respondent has threatened her. But this may not be a valid ground for present proceedings, in that, in case of genuine apprehensions, the proceedings, if instituted, can be got transferred. Also this obviously shows that minors are not in wrongful confinement. Petitioner may approach the Guardianship Court for custody of minors.
9. Application is rejected leaving the parties to bear their own cost.
10. Application rejected.