' HAMID ALI MIRZA, J.---This criminal petition for leave to appeal is directed against the order dated 21-6-2000 passed by a learned single Judge of High Court of Sindh, Karachi, whereby Criminal Miscellaneous Application No,504 filed by the petitioner, was dismissed.
2. The brief facts of the case are that petitioner Naziha Ghazali filed Criminal Miscellaneous Application No,504 of 1999 against respondent Jehangzeb Ghazali under section 491, Cr.P.C. For production of her minor son Shahrukh Ghazali before the Court for return of the custody stating that minor was forcibly taken away by his father, the respondent No,1, from the lawful custody of the petitioner, the mother of the minor. The learned single Judge, after hearing the learned counsel for the parties and after perusing the material available on the record, dismissed application.
3. We have heard the learned counsel for the parties and perused the record.
4. The only contention of the learned counsel for the petitioner is that the learned single Judge of the High Court has unsettled the law relating to improper and illegal custody of minors by not following the dictum laid down by this Court in Muhammad Javed Umra v. Uzma Vahid (1988 SCM R 1891) and subsequently followed in Muhammad Khalil-ur-Rehman v. Shabana Rahman (PLD 1995 SC 633) and Ahmed Sami v. Saadi Ahmed (1996 SCM R 268), therefore, the impugned order is illegal and liable to be set aside by this Court. He submitted that the minor remained in the lawful custody of the petitioner, the mother of the minor, till May, 1999 but in the third week of June, 1999 the respondent the father of the minor, forcibly took away the said minor from the apartment, therefore, the petitioner is entitled to the restoration of the custody of her son.
5. The contention of the learned counsel for the respondent is that the minor is in the lawful custody of the respondent who being the natural guardian of the minor is entitled to retain his custody. He further submitted that the petitioner enjoys free and uninhibited access to the minor and that there was no forcible removal of the minor by the said respondent. He also submitted that the marriage between the parties finally broke down when the petitioner asked respondent to leave apartment, which created a big scene and ultimately the petitioner filed Family Suit No,228 of 2000 for dissolution of marriage, to which the respondent stated no objection and the marriage was dissolved by the IInd Family Judge Karachi on 14th July, 2000 (a copy of the decree was filed by the learned counsel for the petitioner).
6. The only question for our determination in this petition is whether the minor Shahrukh Ghazali was forcibly removed from the custody of the petitioner and whether the custody with the respondent is unlawful. The learned single Judge at page 3 of the impugned order has observed:-- ' "Custody of a minor with one of its parents cannot be termed illegal except when it is in violation of an order of a Court of law. In the present case, the respondent No,2 is father and natural guardian of the minor child who has crossed the age relevant for right of hizanat of the mother and he is studying in a school according to the living standard of the parties and there is nothing to show that the custody is improper."
7. On perusal of the record, it would appear that the petitioner has alleged in the criminal miscellaneous application that the respondent forcibly took away the minor Shahrukh Ghazali in the third week of June, 1999. The respondent has stated in paragraph 10 of his counter-affidavit that he took his son with the consent of the petitioner and shifted him to the house of his parents in the last week of May, 1999 where he has been residing and that the petitioner enjoyed free and unhindered access to the minor and she has cordial relations with his family and she has been visiting respondent's house regularly. In paragraph 12 of the counter-affidavit, the respondent has denied that he was illegally detaining the minor. It is an admitted position that the minor is in the custody of the respondent either from May or June, 1999. The application under section 491 Cr.P.C.
Is admittedly filed by the petitioner on 25th November, 1999 i.e, after 5/6 months, allow unlawful removal of the minor from her custody. There is no explanation as to why the petitioner kept quiet for such long period if the minor son was removed illegally by the respondent. If the minor was removed from her custody A unlawfully and without her consent, in the normal circumstances, she would have either filed report with the police or made a complaint to the concerned authorities against the respondent in accordance with law. It would prima facie appear from the said conduct of the petitioner that the minor was not removed forcibly from the apartment by the respondent, therefore, ex facie it cannot be said that the custody of the minor with his father, the respondent, was illegal or unlawful within the meaning of section 491, Cr.P.C. We are informed that no proceedings under the Guardians and Wards Act are pending before the Family Court. In the circumstances, there is no question of giving away the regular custody of the minor to either of the parties declaring any of them as a guardian under section 7 read with sections 12 and 25 of the Guardians and Wards Act, considering that under section 491, Cr.P.C., Court has considered if the person who is required to be produced has been illegally or improperly detained, wereas under the Guardians and Wards Act, the custody of the person of the minor is to be given to a person when it is in the welfare of the minor by appointing or declaring him to be guardian of the said minor which fact is to be determined by Guardian Court.
The provisions of section 491, Cr.P.C. Are not available for declaring any person as guardian or for determining all the time questions of custody of the minor because the final decision of the regular custody is to be decided in the proceedings under the Guardians and Wards Act when initiated by the party claiming the custody of the minor before the Guardian Court. The facts of the cases cited by the learned counsel for the petitioner are quite different and distinguishable from the facts of the instant case, therefore, same are not of any he to the petitioner. In the circumstances, it cannot be said that the settled law of this Court has been unset by the order of the learned single Judge of the High Court.
8.In view of the reasonings stated above, we find no merit in this petition, consequently leave is refused and same is hereby dismissed. However, in the circumstances stated the respondent is directed to regularly leave the minor namely Shahrukh Ghazali with his mother the petitioner, from the evening of every Friday till the evening of every Sunday of every week and the petitioner would return the said minor to the respondent on Sunday evening of every week without fail. It is further ordered that none of the parties shall remove the said minor out of city without prior permission of the Court. The entitlement to the custody of the minor on regular basis would depend upon the adjudication by the Guardians Court in accordance with law. With the above observations, leave to appeal is refused and the petition is dismissed.