' Through this Constitutional petition the petitioner seeks a direction from this Court for the restriction of criminal case against the accused persons. It is further prayed that respondent No,2 may be directed to recover the detenue from the clutches of Rai Ijaz, Mst. Rafaqat Shaheen, Mst.
Khalida Begum and Mst. Qurat-ul-Ain alias Meena etc. And produce the minor before this Court and hand over his custody to the petitioner.
2. The brief facts narrated by the petitioner are that he is agriculturist, his son Rai Akmal was married to Mst. Farkhanda in 1992. She was resident of the same village. Out of her wedlock a boy was born, namely, Ahmad Raza who is at present about 8/9 years of age. According to the petitioner minor was in the custody of her mother Mst. Farkhanda, daughter-in-law of the petitioner, who died on 27-6-2001 at about 4/5 p.m. The petitioner and other attended the funeral ceremony of said Mst. Farkhanda and were present in the graveyard of village Manianwala when the accused persons, mentioned in para. 4 of this petition, took away Ahmad Raza in Car No,LOV- 8493. They also resorted ineffective firing and created a severe panic. According to the petitioner the occurrence was witnessed by a number of people. The minor Ahmad Raza, according to the petitioner, has been detained by Rai Ijaz under the supervision of Rafaqat Shaheen wife of Rai Ijaz, Kausar Jehan wife of Zafar Sain, Quratul Ain alias Meena daughter of Rai Ijaz. It is further stated that the accused on Telephone had demanded half share of the property of Rai Akmal in the name of Quratul Ain in lieu of release of the detenue, otherwise the detenue will be killed. According to the petitioner he moved an application for the registration of the case to respondent No, 1 . He has neither registered the case nor has taken any action and thus has failed to perform his legal duties hence this Court by allowing this petition may direct respondent No,1 to register a case and also hand over the custody of minor Ahmad Raza back to the petitioner being his grandfather.
3'. On the first day of hearing i,e, 11-7-2001 I found the circumstances of this case as suspicious so I directed the petitioner to deposit Rs,10,000 as security and also directed that the alleged abductee shall be produced. This amount was deposited by the petitioner on 12-7-2001. The detenue is present alongwith Mst. Kausar Jehan.
4. Learned counsel for the petitioner contends that admittedly the petitioner is grandfather of Ahmad. Raza, the alleged detenue/abductee and he is entitled to the custody of the minor child as now he is living with a stranger. He further contends that the accused persons mentioned in the writ petition have committed cognizable offence as they abducted the detenue while being armed with fire-arms and also fire in the air at the time of abduction. They are guilty of heinous offence which is cognizable and the police is duty bound to register the case against the nominated accused person. He further contends that Mst. Kausar Jehan has no right to keep the custody of the minor whose custody be handed over to the petitioner being his grandfather. He further contends that Mst.Kausar Jehan who is present alongwith the detenue cannot be heard as she is not a party in this case. She should have firstly moved an application for impleading as a party and only then she can be heard. He prays for the acceptance of this writ petition.
5. On the other hand learned counsel appearing on behalf of Mst. Kausar Jehan who is admittedly in the custody of Ahmad Raza detenue states that this writ petition is liable to be dismissed with costs as the true facts have been concealed by the petitioner. He states that Mst. Farkhanda Bibi, who is neice of Mst. Kausar Jehan, was married to Rai Akmal son of the petitioner. According to the learned counsel Mst. Farkhanda Bibi who was married to Rai Akmal own property and Rai Akmal caused him a fire-arm injury on her back due to which her legs were crippled. She was not admitted in any hospital by Rai Akmal and the petitioner etc., and proper treatment was not given to her. Sher was also kept in illegal detention by her husband and the petitioner and she was not allowed to see any of her relatives. When her conditions became very serious she filed an application to the Hon'ble Chief Justice of this Court against the petitioner and his other relatives and for her recovery from them. This application was converted into Criminal Miscellaneous No,892-H of 2001 which came up for hearing before my learned sister Nasira Javed, J. Mst.
Farkhanda Bibi was produced on a stretcher and she stated that she is being kept illegally. She and her son were set at liberty and allowed to go wherever she liked along with her minor son. S.H.O., Police Station Safdarabad, also recorded the statement of Mst. Farkhanda Bibi on the direction of this Court and a case F.I.R. No,145 was registered on 21-7-2001 at Police Station Safdarabad District Sheikhupura under sections 365-A, 395, 334, 302, 336, 344, 148 and 149, P.P.C. After few days she died due to the injuries caused by the petitioner's cons and offence under section 302, P.P.C. Was added. The case F.I.R. No,142 has also been registered on the statement of Muhammad Ramzan Bailiff of this Court under sections 353. 506, 186, 148 and 149, P.P.C. With Police Station Safdarabad against the petitioner's family members and serious allegations have been levelled as they refused to accept the direction of this Court and also threatened with dire consequences to the Bailiff but he recovered the abductee Mst. Farkhanda Bibi, mother of Ahmad Raza, present alleged detenue.
Learned counsel for Mst. Kausar Jehan has further contended that Mst. Kausar Jehan was having the custody of Ahmad Raza at the time of the death of his mother and she still keeps the custody of the minor who was handed over by his deceased mother to her. Hee further contends that Mst.
Farkhanda Bibi mother of the alleged detenue Ahmad Raza was murdered due to the property which has been gifted to Ahmad Raza, and the petitioner's sons has murdered the mother of Ahmad Raza and there is genuine apprehension due to the past conduct of the petitioner's sons that they will also murder Ahmad Raza to grab the total property of Mst. Farkhanda Bibi hence he prays that the giving of custody to the petitioner will be dangerous to the life of Ahmad Raza as well. He further contends that a false story has been introduced, which is factually incorrect to deceive this Court in order to get recovered the child showing that some occurrence had taken place and praying for the registration of the case. The Court had handed over the custody of Ahmad Raza to his mother and they were living with Kausar Jehan and there is no question of any commission of offence for detaining Ahmad Raza as has been alleged by the petitioner. He denies the participation of the petitioner and his relatives in the funeral of Mst. Farkhanda who had got registered the criminal case against them. He prays for the dismissal of the writ petition.
6. I have heard the learned counsel for the parties and also perused the record and the documents produced by both the parties. I have noticed that Mst. Farkhanda filed an application to the Hon'ble Chief Justice of this Court in which she alleged that she had been illegally detained by Rai Akmal, her husband, alongwith her son Ahmad Raza. Due to the quarrel between the husband and the wife Akmal divorced her and she went to the house of her relatives. Rai Akmal threatened Mst.
Farkhanda to hand over the car and also the property to him otherwise he will murder Mst.
Farkhanda and her son. He came at 5/6 p.m. To meet his son, when Mst. Farkhanda was standing and waiting for Wagon, Akmal, her husband, Ajmal and Aurangzeb all sons of the petitioner came at car No,SHA-9730 Suzuki while they were armed with fire-arms took her from the car and rifle was put on the temporal region and directed her to sit in the car. Dilbar son of Muhammad Tufail saw the occurrence of her abduction. She states that she was taken by force and was taken to a field and demanded the car which was owned by Mst. Farkhanda and the documents relating to his property which she refused on which Akmal fired with his rifle hitting her on the spinal cord and she fell down and second shot fired was hit on her left arm. The occurrence was witnessed by a large number of persons. Then she was taken to private Dispensary/Hospital and kept her in illegal custody in their house. She was not allowed to talk to anybody and the petitioner's son insisted upon the handing over of the car and the documents of the property. She claims that her legs have become crippled and she could not move. She requested for her recovery through the Bailiff and also requested for the registration of the case. She also stated that the accused are very influential persons. This application was treated as Criminal Miscellaneous No,892-H of 2001. The Bailliff was deputed to recover the alleged detenue and the Court passed the following orders on 15-6-2001:--- "The Bailiff has recovered Mst. Farkhanda the alleged detenue and has produced in Court on a stretcher. She states that she is 29 years old. She also states that she has been illegally detained by Akmal respondent No,1 to whom she had been married and Akmal respondent No,1 has now entered into a second marriage after having divorced her on 15-11-2000. She also alleges that he had fired at her after having divorced her which has rendered her incapacitated and now she is unable to move. She has stated that her son is also in the custody of her husband Akmal. Let her statement be treated as habeas corpus for the recovery of the minor. The minor is also present with his father Akmal. He be recovered from the respondent. The minor has been recovered from the respondent. The detenue Mst. Farkhanda is at liberty to go where she likes. The minor is also allowed to go with his mother as he desires. The detenue Mst. Farkhanda wishes to go with the petitioner Mst. Kausar Jehan who is her aunt. The petitioner undertakes to give her proper medical treatment. The S.H.O. Safdarabad is also directed to record the statement of the detenue and to proceed in accordance with law under section 154, Cr.P.C. Copy of report of Bailiff shall be handed over to the S.H.O. Respondent No,1, if so advised may file proceedings before the Court of competent jurisdiction for the custody of the minor. The S.H.O. Safdarabad be summoned on Monday June, 18, 2001 to record the statement of the detenue. Learned A.A.-G. Undertakes that the S.H.O. Shall be present on 18-6-2001. Respondent No,1 is reportedly very influential. S.P. Sheikhupura shall personally supervise the investigation and shall submit a final report in this Court."
' On the basis of the direction of this Court case F.I.R. No,145 has been registered in which she has levelled allegation against the petitioner and even the ladies of the family of the petitioner. The investigation of this case, according to the police, was about to complete but Mst. Farkhanda complainant died a few days later after the registration of the case and section 302, P.P.C. Was added. It will be relevant to point out that case F.I.R. No,142 has been registered against the petitioner's sons on the statement of Muhammad Ramzan Bailiff of this Court because the petitioner's sons refused to hand over the custody of Mst Farkhanda and also threatened the Bailiff with dire consequences and also gave pushes to the Bailiff and other members of the police who accompanied the Bailiff. Faiz Rasool and Javed accused also threatened the police party that they will murder them but the Bailiff and the police party succeeded in getting the custody of Mst.
Parkhanda and her son. The perusal of both the F.I.Rs, and the above circumstances show that the petitioner's sons and other family members had kept mother of the alleged detenue in illegal custody. She was seriously injured in order to grab her property and also to take the ownership and possession of the car owned by her. Admittedly when she died she was living with Mst. Kausar Jehan to whom I have allowed to appear in this Court as she is a necessary party and her counsel argued the case and brought to the notice of this Court the true facts which apparently were concealed by the petitioner intentionally. The son of Mst. Farkhanda was also living along with Mst.
Kausar Jehan and due to the death of Mst. Farkhanda his custody remained with Mst. Kausar Jehan. It seems that the petitioner and his other family members in the abovesaid circumstances would have not joined the funeral of Mst. Farkhanda and the petitioner has introduced a false and concocted story to get the custody of the minor. The custody of the minor seers to be necessary for the petitioner as the property for which the mother of Ahmad Raza has been murdered reportedly has been gifted by her mother in his name. The reasons are crystal clear that why the petitioner wants the custody of the minor, not as a grandfather only but also as the alleged detenue, namely Ahmad Raza has some property in his name for which his mother was kept in illegal custody and for the same property she was murdered. The petitioner's sons and other family members have firstly tried to disobey the order of this Court and threatened the Bailiff to effect the recovery of Mst.
Farkhanda and case was registered against them, then on the complaint of Mst. Farkhanda mother of alleged detenue another case was registered for her illegal detention and for causing fire-arm injuries on her person due to which she became crippled who even then was not allowed to call for any of her relative and she was detained and persistently the petitioner's sons and all family members .Demanded the papers of the property owned by her and also demanded for the handing over of her car to them. Prima facie the petitioner's family is involved in criminal cases of serious nature and serious allegations have been levelled against them by the mother of Ahmad Raza the alleged detenue and this Court came to the rescue of his mother Mst. Farkhanda but she died subsequently due to the injuries caused by the petitioner's sons Akmal. The circumstances which were found by this Court to be suspicious on the first date of hearing have been found to be correct. The petitioner has concealed the true facts though he was aware of all the proceedings initiated by this Court in Criminal Miscellaneous No,892-H of 2001 as on 15-6-2001 Mr. Naseer-ud- Din Khan Nayyar, Advocate, had appeared on his behalf. They are also aware of the facts of the registration of the case against his sons for the murder of Mst. Farkhanda. The petitioner has intentionally concealed the true facts and has tried to obtain direction for the registration of the case through misstatement of facts. The facts narrated for the registration of the case on the face of it are also prima facie found to be incorrect and false. He is not entitled to any extraordinary relief in writ jurisdiction due to his conduct and due to the falsity of the facts mentioned by him. The petitioner though is the grandfather of the alleged detenue but I am not inclined to hand over the custody of the detenue to him as his life will be in danger if the custody is handed over to him by this Court by taking over from Mst. Kausar Jehan who is close relative of the mother of the alleged detenue Ahmad Raza to whom the mother of the detenue chose to inform about the high- handedness of the petitioner's sons and with whom she started living after her release by this Court through Criminal Miscellaneous No,892-H of 2001.
7. In the present circumstances Mst. Kausar Jehan is on better footing for the entitlement of the custody of the minor. She undertakes to take due care and welfare of the minor and I have also noticed that the minor who has brought to his Court is well-dressed and healthy and is happily living with Mst. Kausar Jehan.
8. Apprehending that the petitioner might have not concealed the true facts, he was directed to deposit the security amount of Rs,10,000 and since the apprehension of this Court has been found to be correct as it has been proved on the record that the petitioner has concealed the true facts, the amount of Rs,10,000 deposited by him on 12-7-2001 in pursuance of the order, dated 11-7-2001 is ordered to be forfeited in favour of the State.
9 . For the foregoing reasons this petition has no merit and is accordingly dismissed, however, the parties can raise issue for the custody of the minor before the competent Court under the Guardian and Wards Act.