' Applicant, Mst. Shahnaz Parveen has filed this application under section 491, Cr.P.C. For procuring the custody of her minor son, Master Arbab son of Asadullah who, according to the applicant, was born on 31-3-1998 from the wed-lock of the applicant with the respondent No,1, Asadullah.
3. The applicant and the respondent No,1 are residing separately as the respondent No,1 was already married having two children. The applicant has, therefore, prayed for the custody of the minor in view of the fact that the minor was about two and half years old and, therefore, requires special care, love and affection of the mother.
4. The notices were issued against the respondent No,1 but the same could not be served upon him.
Even the service could not be effected through S.H.O., Police Station Rizvia Society, Karachi. When all the efforts to serve the respondent No,1 bore no fruit, vide order, dated 2-11-2000 B.Ws. Were issued against respondent No,1 in the sum of Rs,5,000 for his appearance in the Court on the next date of hearing. Besides that, a rule nisi for recovery and production of the minor Master Arbab son of Asadullah was also issued to be executed through S.S.P. Karachi Central. In pursuance of the rule nisi and B.Ws. Issued against respondent No,1, he appeared in the Court on 15-11-2000 and the detenu, Master Arbab was also produced by the police. On 15-11-2000, Mr. Hassan Ali, Advocate filed power on behalf of respondent No,1 and argued the case. After hearing the learned counsel for respondent No,1, he sought time to produce certain authorities with regard to the maintainability of this petition. The matter was adjourned to 17-11-2000 on which date again learned counsel for the respondent No,1 was heard. Mr. Nayyer Ziauddin, Advocate for the applicant, who was present alongwith the applicant, and Mr. Sharafat Ali, Advocate appearing for the State were also heard.
5. Learned counsel for the respondent No,1 has argued that the applicant has waived her right and is guilty of relinquishment of the known right. In support of the above contention, learned counsel for the respondent No,1 has relied upon the authority reported as 1992 CLC 735. Suffice it to say that this authority was given under the Sindh Rented Premises Ordinance, 1979 and was not applicable either on the facts or the law to the present case.
6. Learned counsel for the respondent No,1 has further contended that since the matter was pending before the Guardian and Wards Judge and an application under the provisions of the Guardian and Wards Act has already been moved there, therefore, the jurisdiction of this Court under section 491, Cr.P.C. Would be barred. He further stated that since the minor was in the custody of his father who was the natural guardian and, therefore, it cannot be construed that the minor was, in fact, in illegal detention. He further submitted that, in any case, there was no emergency for passing the orders under section 491, Cr.P.C. In support of his submissions, he relied upon the following authorities:--
(i) PLD 1994 Pesh. 143, (ii) 1998 PCr.LJ 1027, (iii) 1998 PCr.LJ 140 and (iv) 1993 PCr.LJ (Lahore) 1097.
7. In the first authority, the mother of the minor had contracted second marriage and was divorced subsequently, and was not residing with her parents.
8. In the second authority the detenue was ten years old and, therefore, it was held that since the boy wanted to reside with the father, therefore, no interference was called for.
9. The authority at serial No,3 is of no help to the respondent No,1 as it has been held that the jurisdiction under section 491, Cr.P.C. Could be invoked in the cases of emergency and admittedly this is a case which requires immediate intervention.
10. In the fourth authority, the facts 'are quite distinguishable. In that case the mother of the minor was staying in the United States of America and it was held that removal of minor in violation of an order passed by a Court of competent jurisdiction of foreign country was not lawful.
11. The learned counsel for the applicant has relied upon many authorities of this Court and has also relied upon an authority reported as Nisar Muhammad and another v. Mst. Sultan Zareen PLD 1997 SC 852. Relying upon the abovementioned authority, I am of the considered opinion that the availability of another legal remedy i.e, under the Guardian and Wards Act was no bar to the proceedings under section 491, Cr.P.C.
12. Admittedly, the minor is of below three years age and he requires attention, love and affection of a mother. There is no denial of the fact that respondent No,1 is a married person having a wife and two children from the other wife, who are residing with him.
13. Learned counsel for the respondent No,1 has vehemently argued that the welfare of the minor is to be kept in view in any case. I am unable to understand as to how the welfare of the minor can be looked after by respondent No,1 who by his conduct has proved to be an unreliable person and having another woman as his wife, how he can be able to look after the welfare of the minor. The applicant is an educated lady having studied upto the post-graduate level and is possessing a lucrative job in a well-known bank. I am confident that she has all the means to maintain the child and to look after him. There is no denial of the fact that the applicant lady is residing in her own house and the boy was snatched from her custody by the respondent No,1 who happened to be a police official. I cannot lose sight of the fact that because he was a police official, therefore, all the efforts to get him served remained futile unless the B.Ws. Were issued and a rule nisi executed through S.S.P. Karachi Central.
14. Even in accordance with the Mohammedan Law, the mother has the right of Hizanat and was entitled' to the custody of the male child until he completed age of seven years.
15. Learned counsel for the State has pointed out to the Court that throughout, the conduct of respondent No,1 had been unfair and mala fide. He submits that the respondent No,1 intends to have the custody of the minor in order to squeeze the applicant and grab money from her as she is well-placed having a good job.
16. In the light of above facts and circumstances, I am clear in my mind that presently the custody of the minor Master Arbab son of Asadullah should be handed over to the applicant, her mother.
17. Accordingly, in compliance with the above orders, respondent No,1, Asadullah has handed over the custody of the minor Master Arbab to the applicant, Mst. Shahnaz Parveen in Court. Learned A.A.-G., Mr. Arshad Lodhi, present in Court, is directed to ensure the security of the applicant to drop her at her residence alongwith the minor Master Arbab under the protection of the police.
18. Needless to mention here that ultimate determination of entitlement of the custody would, of course be with the Guardian Judge, who will decide the matter in accordance with the law.
19. The Criminal Miscellaneous Application No,308 of 2000 is accordingly granted as prayed.