1. ' Mst. Aisha daughter of Allah Bachio has moved the instant application under section 491, Cr.P.C.
2. Stating therein that she is mother of two minor children, namely, Master Mursaleen aged about 3 years' and Baby Amna aged about eight months, who have been detained by the respondent in his custody illegally. She states that the respondent is her husband who drove her out from his house and detained the children as aforesaid in the last week of April, 1998. She prays that her children be ordered to be produced before this Court and their custody be restored to her.
3. ' The respondent has appeared before this Court and has produced the children on directions issued to him as per orders dated 29-5-1998 passed by my respectable brother Hamid Ali Mirza, J.
4. He has filed objections in the shape of counter-affidavit and alongwith these objections, affidavits of Mst. Saeeda, Mst. Reshman, Ravi Das, Mahraj, Gulab Rahi have been filed. All these persons excepting the respondent have affirmed on oath that they are Hindu by religion. The respondent has sated on oath in his counter-affidavit that basically the applicant belongs to a Hindu Gipsy (Khana Badosh) tribe and she desired to embrace religion of Islam and married him. He has produced a photo copy of Nikahnama. He stated that after marriage he tried his best to train her to lead a life of Muslim lady but failed and that in the last week of April, 1998, when he was not present in the house she left the minors in miserable conditions and left the house taking away the ornaments and other belongings and that she has rejoined the old life of Hindu culture at the instigation of her mother and her sisters specifically of sister Kairan who is famous women supplier and the applicant is leading a sinful life. He has further stated that it is not only that these ladies including the applicant sell their own bodies but they spoil other ladies and sell their daughters. He has been supported in his aforestated statements by other persons named above and they are none else according to their statements on oath, but close relatives of the applicant. Out of them Mst. Reshman claims to be a real cousin, Mehraj, a real uncle of applicant. Gulab Rahi a cousin of applicant and other to claim to be relatives of hers and of same tribe. All of them have supported the version of respondent. The applicant has filed her rejoinder controverting the statement of respondent and other person who have furnished affidavit supporting the respondent.
5. ' I have heard the learned counsel for the applicant and the respondent.
6. ' The learned counsel for the applicant contended that the applicant is a Muslim lady and mother of two minor children who are in illegal custody of their father namely the respondent. According to him, the mother has right of Hizanat and she is entitled to the custody of minor children. He denied in his arguments if the applicant has joined the Hindu culture or that she or her other relative ladies led immoral life. He has placed reliance on the case of Mst. Rehana v. Arshad Khan and 2 others 1991 MLD (Kar.) 1395.
7. ' The learned counsel for the respondent contended that the applicant has converted to Hindu religion and has joined her mother and sisters who are leading an immoral life and that the applicant has thus lost the right of Hizanat. The learned counsel contended that the applicant has gone back to her Gipsy tribe leaving her husband and that there is no certain and permanent abode of whole tribe, therefore, in any condition if the children are restored to the custody of the applicant the tribe would move ahead to any unknown place depriving the respondent of his children. He alleged that the applicant's mother and other families are in habit of selling their children and alleged detenue children would not be an exception if restored to the custody of the applicant. He stressed that it is not that only the respondent has disclosed facts about sinful conduct of applicant and her other relative ladies but his statement has been supported by her close relatives who affirmed his statement on oath. The learned counsel has relied on the case-law reported in 1989 MLD 3064, PLD 1957 (W.P.) Kar. 50, 1992 CLC 2348 and 1989 PCr.LJ 823.
8. ' I have considered the arguments of the learned counsel of parties and have also gone through the material available on record so also the case-law relied upon by both the parties. To me, beside the right of custody which can alone be decided by the Court of competent jurisdiction in the circumstances obtaining in the matter, the welfare of the children appears to be of such significance and importance. The controversy as raised by the parties need a thorough enquiry and is left to the will of parties to have the, same settled before competent Court of jurisdiction. At the moment the children are in custody of none else than a father who happens to be respondent in this matter: thus they can be better looked after by him in the capacity of lather. Their custody cannot be restored to the applicant in the circumstances as they stand. The case-law relied upon by the learned counsel for the applicant is not relevant in the present circumstances. Accordingly the applicant may approach the Court of competent jurisdiction for custody of minors. This application is accordingly disposed of with these observations.