1. Granted. M.R. No,1244 of 1993 disposed of.
2. This is an application under section 491, Cr.P.C. And in pursuance of Court Notice respondent No,2 alongwith alleged detenue - Muhammad Yasir Shaikh, minor has appeared. In the application it has been stated that during the subsistence of marriage of applicant and respondent No,2 a son Muhammad Yasir Shaikh was born who is now aged about 3 years, but later on respondent No,2 divorced her and the minor continued to live with her uptil 18-7-1998, when the respondent Not forcibly took away the said minor on gun point and is keeping the minor in wrongful confinement.
1. That she approached the police but to no avail as the respondent is also a Police Officer.
2. ' The respondent No,2 in his objection filed in the matter has denied all the adverse allegations made against him and has submitted that custody of minor was given to him by applicant as her mother had quarrelled with her on the question of keeping the said minor in her house. Such allegations have been denied by applicant in her affidavit-in-rejoinder.
3. ' I have heard the learned Advocate of the parties and the learned Additional Advocate-General.
4. The Advocate of the parties and the learned Additional Advocate-General have conceded that in view of the Principle of Hizanat and in the normal circumstances mother of a minor son is entitled to his custody till ,the time that he attains the age of seven (7) years.
5. ' Learned Advocate for the respondent No,2 at the outset and on instructions submitted that a case under the provisions of Guardians and Wards Act, 1890 has already been instituted for seeking the custody of the minor, Muhammad Yasin Shaikh.
6. ' Since this is an application under section 491, Cr.P.C., therefore, it is to see whether the minor was in the custody of his mother, the applicant, and has illegally and wrongfully been removed from such custody by the respondent No,2.
7. ' It is not denied that up to 18-7-1998 the minor was in the custody of his mother, the applicant; but it has been pleaded that his custody was handed over to respondent No,2 by the applicant herself which fact has been denied by applicant.
8. ' The learned Advocate for ,respondent No,2 has conceded that in a case under section 491, Cr.P.C.
9. This Court cannot consider the merits or demerits of claim of parties as to their entitlement for custody of minor. The objection of the learned Advocate for respondent No,2 is that if the custody of the minor is given to the applicant then she will remove him from the jurisdiction of this Court and there is likelihood that she will leave Pakistan as she is frequent traveller to the European countries. On the basis of this apprehension the learned Advocate for respondent submitted that if the custody of the minor, Muhammad Yasin Shaikh is to be handed over to the applicant then some safeguard must be taken to ensure that she may not remove the minor from the jurisdiction of Karachi Court and she should be directed to deposit her passport with the Nazir of this Court.
10. ' Learned Advocate for the applicant, on instructions, submitted that on 18-7-1998 when the respondent No,2 illegally took over the custody of the minor he also snatched the passport of the applicant and in that behalf an F.I.R. Has also been lodged with Tipu Sultan Police Station but copy of such F.I.R. Has not been placed on record. Since the applicant has stated that her passport is not with her and she has applied for fresh passport, therefore, in the circumstances no order for deposit of Passport can be passed at this point of time.
11. ' During the course of arguments learned Advocate for applicant sought time to consult his client for furnishing a tangible surety and as such this matter was kept aside and when it has been taken again the learned Advocate for respondent No,2 has gone away to attend his other professional duties but respondent No,2 is present in Court.
12. In the circumstances of the case keeping in view the submissions of Advocates and the tender age of minor Muhammad Yasin Shaikh, (who is aged 2 years and 10 months). It is hereby ordered that his custody be handed over to the applicant, subject, however to her furnishing a solvent surety of Rs,50,000 and P.R. Bond in the like amount to the satisfaction of the Nazir of this Court. She is also directed to submit to this Court her Passport as and when she recovers the same and or obtains a fresh International Passport. She is directed not to remove the minor from Pakistan and particularly from the jurisdiction of Karachi Courts. The learned Advocate for the applicant also undertakes that he will ensure that passport of the applicant is deposited with the Nazir as and when it is available and till such time applicant will not remove the custody of the minor from Pakistan or from the jurisdiction of this Court, however, on submission of applicant's passport her learned Advocate would be free from his undertaking. Order accordingly.
13. ' The respondent No,2 has informed that earlier there was an arrangement of weekly meetings with minor, therefore, it is hereby ordered that till such time that the competent Guardian Court passes appropriate order in the proceedings already filed the applicant would be bound to allow the respondent No,2 to meet his son. Since there is tension between the families of applicant and respondent No,2, therefore, a common place of meeting is to be arranged. Mr. Mian Khan, the learned Additional Advocate-General has voluntarily stated that such meeting can take place in his office in the High Court premises. As suggested it is hereby ordered that there will be weekly meetings of respondent No,2 with his minor son Muhammad Yasin Shaikh, to be held in the office of the learned Additional Advocate-General on every Saturday between 2 and 4 p.m.
14. ' For the foregoing this Criminal Revision No,255 of 1998 alongwith listed Miscellaneous Applications Nos.1303 and 1304 of 1998 are disposed of.