1. ' This application under section 491, Cr.P.C. For custody of the minor has been filed by the applicant Mst. Saima. It is claimed that she was married to the respondent No,1 Ismail on 8-2-1998 and out of the said wedlock minor Ali Raza was born on 16-7-1999.
2. ' On account of the differences between spouses matrimonial ties culminated into divorce. It is further alleged the respondent No,1 withheld custody of suckling minor and turned her out on 20-3- 2000 followed by divorce, dated 5-4-2000.
3. ' The respondent No,1 in response to a notice appeared and was directed to produce minor baby today which directions have been complied with.
4. ' In the counter-affidavit, allegations made, against him were denied. It was disputed that the mother/petitioner is entitled for the custody of the minor Ali Raza. It is also alleged that the petitioner on her own left the house against the wishes of respondent No,1, which promoted him to pronounce divorce.
5. ' Learned counsel for the petitioner contended, that minor is of tender age and needs care and attention of mother more than that of the father. In support of his contention he cited Abdul Rehman Khakwani and another v. Abdul Majid Khakwani and 2 others 1997 SCM R 1480 and Nisar Muhammad and another v. Sultan Zari PLD 1997 SC 852.
6. ' Learned counsel for the respondent contended that the minor is not a suckling baby as he is being fed through bottle by respondent No,2 and the grand-parents; and is being looked after properly. He further contends that proper forum to adjudicate the controversy is the Guardian Court and proceedings by way of habeas corpus would not lie. In support of his contention he has placed reliance on the case of Mst. Shaheen v. Zia Muhammad PLD 1994 Pesh.
7. 143.
8. ' Learned A.A.-G. Supports the petitioner.
9. I have heard the argument and perused the record. Habeaus corpus petition does not provide forum to finally decide the fate of the custody of the minor, appropriate proceedings where ultimate custody is to be dealt with is the Guardian Court. But the High Court under section 491, Cr.P.C. In appropriate cases can pass interim order pending the resolution of the dispute by the Guardian Court, where the question of interest, welfare and the ultimate custody of the minor is to be adjudicated after proper appreciation of the facts and circumstances. In the instant case admittedly the minor Ali Raza as per birth certificate is hardly 1 year of age and admittedly minor was having the companionship of the applicant alongwith respondent till 20-3-2000, when she took shelter at her paternal-home. In the case of Mst. Shaheen v. Zia Muhammad mother was declined custody of the minor aged 2 years and 8 months; the views expressed in Mst. Shaheen's case were not approved by the Honourable Supreme Court in a case reported as Nisar Muhammad v. Sultan Zari PLD 1997 SC 852. From the case cited by the learned counsel for the petitioner, consensus of opinion of the High Court as well of the Honourable Supreme Court appears to be that where minor is of tender age, the interim custody is preferably given to the mother.
10. ' In the instant case since minor is of 1 year of age, following the dicta laid down in the case of Nisar Muhammad (supra) as an interim means custody of minor is directed to be handed over to the applicant. This observation, however, is tentative and not final. Issue of custody will finally be decided by the Guardian Court as and when any of the party may approach such Court. This Criminal Miscellaneous Application in terms of the above observation is disposed of. However, in the meantime, the matter is settled by the Guardian Court, I will direct that the petitioner will provide access to the minor on weekend to the father "grand-parents".
11. ' Petition disposed of in above terms.