NADEEM IQBAL vs MUHAMMAD KABIR KHAN And 2 Others

ORDER MAMOON RASHID SHEIKH, J.--The brief facts giving rise to this petition are to the effect that the petitioner was married to one Mst. Parveen Akhtar about 3-1/2 years back. Out of this wedlock a daughter was born who is now aged about 2 years (i.e. The alleged detenue and hereinafter referred to as "the minor"). The said Mst. Parveen Akhtar was the daughter of respondents Nos. 1 and 2. She died about a year back. The minor had been in the custody of the petitioner, even after the death of Mst. Parveen Akhtar i.e. The minor's mother. On 1-6-2010 the minor was forcibly removed from the custody of the petitioner by respondent No.1 some time in the evening.

Respondents Nos. 1 and 2 thereafter filed a suit for permanent injunction against the petitioner and obtained an ad interim injunction restraining the petitioner from removing the minor from their custody. A suit for recovery of the minor's Maintenance has also been filed against the petitioner by the minor with respondent No.2 as her next friend. Feeling aggrieved the petitioner filed a petition under section 491 of the Cr.P.C. Before the learned Sessions Judge, Jhang, for production and handing over of the minor to the petitioner from the alleged illegal custody of respondents Nos. 1 and 2. The said petition was dismissed through order dated 11-6-2010, hence, this petition.

2. Through order dated 28-6-2010 respondent No.3/S.11.0. Police Station Sadar Jhang, was directed to recover and produce the minor before this Court. Today the minor has been produced and has been identified by the petitioner.

3. Respondents Nos. 1 and 2 are present in Court in person and are also represented through counsel.

4. The learned counsel for the petitioner contends that the custody of the minor was with the petitioner since her birth and even after the death of the minor's mother. This fact is borne out from the plaint in the suit filed by respondent No.2 on 6-2-2010 for recovery of the minor's mother's dowry. A copy of the plaint has been appended to the petition as Annexure-C. The learned counsel has referred to paras 3 and 5 of the plaint wherein it has been stated that the custody of the minor is with the petitioner. It is contended that the minor was snatched from the lawful custody of the petitioner who is the father and natural guardian of the minor by respondent No.1 on 1-6-2010.

Thereafter respondents Nos.1 and 2 on 2-6-2010 filed a suit for permanent injunction against the petitioner seeking to restrain him from snatching the minor from the said respondents' custody and on 8-6-2010 a suit for recovery of maintenance of the minor was also filed. It is contended that the stance of respondents Nos.1 and 2 is belied by the contents of the plaint referred to hereinabove. It is prayed that the custody of the minor be handed over to the petitioner.

5. The learned counsel for respondents Nos. 1 and 2 has controverted the stance of the petitioner and submits that the petition has been filed by deliberate concealment of material facts. The parties are related to each other. The marriage of the petitioner with respondents Nos. 1 and 2's daughter was a Watta Satta marriage. There is enmity between the parties inasmuch as the petitioner's father died in an accident, however, it has been alleged that he had been murdered by the nephews of respondent No.1 and thereafter the petitioner murdered respondent No. l's son by poisoning him. Further submits that it is in this context that the petition has been filed by concealment of facts. Contends that the minor has been in the custody of respondent No.2 since the death of the minor's mother. Respondent No.2 being the maternal grandmother of the minor, in the absence of the minor's mother, has a preferential right to the custody of the minor. Refers to section 353 of D.F. Mulla's Principles of Muhammadan Law in and of his contention. Prays that the petition be dismissed.

6. Arguments heard. Record perused.

7. From the contradictory stands of the parties it cannot be established with any degree of certainty as to whether the minor was in the custody of the petitioner or not after the death of the minor's mother nor can it be established that if the custody was with the petitioner then as to when she was forcibly removed from the petitioner's custody. This Court in the exercise of its extraordinary constitutional jurisdiction normally does not go into disputed question of facts.

Moreover, this Court normally in petitions seeking issuance of a writ in the nature of Habeas Corpus does not hold a detailed inquiry. This Court, however, in exercise of its inherent jurisdiction can and does pass orders in the welfare and best interest of the minors. Reliance is placed on the judgment of the Hon'ble Supreme Court of Pakistan reported as Mst. Khalida Parveen v. Sultan Mahmood and others (PLD 2004 SC 1).

8. Under the circumstances I am not persuaded to intervene in the matter especially given the fact that the minor is of tender/suckling age and in the absence of her mother, the maternal grandmother i.e. Respondent No.2 has a preferential right to the minor's custody. Section 353 of D.F.

Mulla's book (supra) refers. This petition is accordingly dismissed.

9. Needless to and that the parties shall be at liberty to approach the Court of the learned Guardian Judge concerned for redress of their grievance, if so advised. It is, however, clarified that such Court, if so approached, shall proceed in the matter strictly in accordance with law without being influenced by any observation made in this order.