RANA KHURSHID AHMAD Versus ASHIQ RISALDAR Muhammad Zafar Khan , Muhammad Younas Bhatti

ORDER

The latter has brought the minor Idnan aged about 4.

2. This petition was instituted by Rana Khurshid Ahmad, father of Mst. Zarina Begum. The latter's husband has recently died and it was the case of Rana Khurshid Ahmad that she alongwith her two minor children was being illegally detained by the respondents. As ill luck would have it Rana Khurshid Ahmad, father of 1st. Zarina, also died. As it appears from this Court's order, dated 8-9-1987, the respondent allowed Mst. Zarina Begum to visit her parental house on the death of Rana Khurshid Ahmad. Mst. Zarina Begum's allegation is that when she was allowed to go to her parental house, her son Idnan was kept back by the respondents. It was thus that my learned brother Khizar Hayat, J. directed Ashiq Risaldar, respondent, to produce Idnan before this Court today.

3. Ashiq Risaldar, respondent, it should be mentioned here, is the father of Mst. Zarina Begum's deceased husband.

4. Mst. Zarina Begum says that she would not go back to the house of her father-in-law; she, therefore, prays for her son Idnan to be given to her. Ashiq Risaldar, respondent opposes the prayer. I am unable to appreciate his stand. He-does. not appear to realize that Mst. ?arina Begum has already suffered a lot; first she lost her husband and then she lost her father.

5. Learned counsel for the respondents argued that under section 491 of the Cr.P.C. all that this Court is competent to do is to set the detenu at liberty. This overlooks the fact that Idnan is a minor aged about 4. As was held in Muhammad Rafique v. Muhammad Ghafoor P L D 1972 SC 6, the High Court has two-fold jurisdiction under this section: (i) to deal with a person within its appellate criminal jurisdiction according to law; and (ii) to set him at liberty if he is illegally or improperly detained, and that if the Court finds that the person brought before it was not being illegally or improperly confined or detained then the question is what order should be passed regarding the custody of that person. It was held that if the person is a minor, the Court may make over his custody to the guardian who will be dealing with him in accordance with law but if the person is major, the only jurisdiction which the Court can exercise is to set him at liberty whether illegally or improperly detained in public or private custody or not.

6. According to the law of Islam, Mst. Zarina Begum as mother of the minor is entitled to his Hizanat. Learned counsel for the respondents, however, thinks that the question of the custody of the minor lies exclusively within the jurisdiction of the Family Court under the Family Courts Act, 1964. In this connection, learned counsel refers to section 5 and the schedule of the Act. The argument advanced by the learned counsel for the petitioner pre-supposes that the making over the custody of the minor to the mother under section 491 of the Cr.P.C. amounts to deciding the question of custody. This can hardly be so. This making over the custody of the minor is for the limited purpose of dealing with the minor in accordance with law. As regards the question of custody, indeed the proper proceedings are the proceedings under the Guardians and Wards Act and I do not think that if such proceedings are brought, this order under section 491 of the Cr.P.C. will, in any way, affect the jurisdiction of the learned Guardian Judge to decide that question.

7. I, therefore, direct that the minor be handed over to Mst. Zarina Begum. The petition is disposed of.

S.A./K-82/L Petition accepted.