' Muhammad Ashraf Shahzad son of Muhammad Yaqoob has assailed the validity of case registered vide F.I.R. No,92 with Police Station Sarai Mahajar, District Bhakkar on 26-6-2000 under section 341/363, P.P.C., at the instance of Mst. Parveen Akhtar.
2. The prosecution case divulged in the F.I.R., authored by respondent No,2, is that about 2-1/2 years earlier the first informant was married with petitioner Muhammad Ashraf and from the loins of the petitioner a son now aged 1-1/2 years was born. Since the family ties suffered a dent due to estrangement between the families the first informant filed a suit for dissolution of marriage. It is stated that on 23-6-2000 the complainant was going on a motorcycle, alongwith her son named Aarish, with her brother-in-law Mazhar Ali son of Muhammad Aslam and when they reached Chak No,47/TDA, Muhammad Ashraf present petitioner accompanied by Muhammad Shahid real brother and Shahbaz-ur-Rehman nephew of the petitioner, all of sudden made appearance in a car and stopped the complainant. Thereafter, all three of them forcibly snatched Aarish, infant son of the complainant, for which later on a complaint under section 341/363, P. P. C . Was lodged through F.I.R. No,92 of 2000.
2. Learned counsel at the very outset informed that through Habeas Corpus Petition No,1298-H of 2000 the custody of Muhammad Aarish was restored to Mst. Parveen Akhtar complainant and the matter for keeping the custody of the minor permanently was left to be decided by the Guardian Judge.
3. Learned counsel for the petitioner assailing the validity of F.I.R. Has emphatically submitted that under the law, father is always a natural guardian of his child and, therefore, charge of kidnapping his own child is highly misconceived and cannot be sustained in the eyes of law. He has drawn my attention to section 361 of the Pakistan Penal Code which defines kidnapping from lawful guardianship.
4. For facility of reference section 361 of the Pakistan Penal Code is reproduced:-- "361. Kidnapping from lawful guardianship.--- Whoever takes or entices any minor under fourteen years of age if a male, or under sixteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
Explanation..--- The words 'lawful guardian' in this section include any person lawfully entrusted with the care or custody of such minor or other person.
Exception.-- This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose."
5. Section 361, P.P.C. Contemplates kidnapping from lawful guardianship whose ingredients are split as under:--
(a) Whoever takes or entices any minor;
(b) The minor if a male should be under 14 years of age or if female under 16 years of age or any person of unsound mind;
(c) the minor should be taken out of the keeping of the lawful guardian of such minor or person of unsound mind;
(d) Taking should be without the consent of such guardian.
' The exception appended to section 361, P.P.C. Absolve a person who in good faith believes himself to be the father of an illegitimate child or who in good faith believes himself to be entitled to the lawful custody of such a child unless such act is committed for an immoral or unlawful purpose.
6. The cumulative effect of reading of main section alongwith the. Exception is that firstly kidnapper should take the child out of the custody of the lawful guardian in order to constitute an offence of kidnapping but if a person takes the child, may be, from the custody of the mother believing himself to be the father or in good faith believes himself to be entitled to the lawful custody then the offence of kidnapping is not committed unless removal is committed for immoral or unlawful purpose, be it at the hands of even a guardian.
7. Father of a child is always a natural guardian alongwith the mother. He can never be ,ascribed or attributed the offence of kidnapping of his own child. The exception appended to section 361, P.P.C.
Even goes to the extent of relieving a person from any criminal liability if he in good faith believes to be father of an illegitimate child, or, who, in 'good faith believes to be entitled to the lawful custody of such child. The only fetter placed upon the right of a father to the custody of the child is that when he takes the child from the custody of his wife for a purpose recognized in law as immoral or unlawful, in such a circumstance removal of the child, would amount to an offence. No such allegation is made in the complaint recorded at the instance of respondent No,2. Respondent No,2 has merely complained that she was going with her brother-in-law having minor in her lap when they were stopped by the petitioner alongwith his brother and nephew who forcibly took the child from her custody. The main role of alleged' kidnapping is attributed to the petitioner who has been admitted in the complaint to be the father of Muhammad Aarish, the infant having been born from his loins.
8. Learned counsel appearing for the State did not controvert the legal position expounded above arising out of the bare reading of section 361 of the Pakistan Penal Code. Undoubtedly a child of 1- 1/2 years needs immediate love, affection and succour from the mother and correspondingly the mother is entitled to the custody of a milk suckling baby. Wrong, if any done in this regard has been remedied by the order of this Court passed in Habeas Corpus Petition bearing No,1298/H of 2000 wherein the interim custody of the child has been restored to respondent No,2, the mother leaving the parties to agitate the permanent custody before the Guardian Judge, however, the removal of the child by the father does not constitute an offence.
9. Offence of kidnapping from lawful guardianship by the father having not been made out for reasons detailed in this order question of wrongful confinement under section 341, P.P.C. Does notarise.
10. One of the grounds for quashing the F.I.R. In its inception is that even the allegations if believed would not constitute any offence or the allegation made does not amount to infraction of any law.
Both these aspects highlighted, apply to the allegations contained in the F.I.R. Therefore, allowing the proceedings to continue would amount to gross abuse of process of Court which this Court in the exercise of its jurisdiction, be it under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 or under section 561-A, Cr.P.C., would not countenance rather every endeavour is to be made to curb the wrong at the earliest. Resultantly the writ petition succeeds, F.I.R. No,92, lodged with Police Station Sarai Mahajar, District Bhakkar on 26-6-2000 against the petitioner and others at the instance of respondent No,2 under section 342/363, P.P.C. Is quashed for being without lawful authority. Parties are left to bear their own costs.
F.I.R. Quashed.