KH. MUHAMMAD ASAD Versus THE STATE
ORDER
Kh. Muhammad Asad, petitioner herein, has applied for the grant of pre-arrest bail in a case under section 365/368, P.P.C. (F.I.R. No. 585 dated 22-11-1987) police station Gulberg, Lahore, registered under the orders of a learned Judge of this Court passed in a habeas corpus petition (Cr.M. No. 544/H/87) which file I have sent for and perused.
2. The petitioner is married to Mst. Aisha Butt. A daughter, namely, Ambreen was born out of the wedlock on 1-1-1986 who is nearly two years old, The relations between the spouses became strained and Mst. Aisha Butt started living with her mother- She filed aforementioned habeas corpus petition in this Court on 20-10-1987 alleging that while she was staying with her parents the petitioner on 9-9-1987 and took away her child (Mst. Ambreen) promising that after showing to his mother he would return the child to her but he did not keep up his promise. This means that the petitioner took away the child deceitfully and with mala fide intention and is detaining her illegally and improperly, who should be got recovered and restored to her. A learned Judge of this Court on 24-10-1987 directed the petitioner to produce the child but the child was not produced till 22-11-1987 despite making commitment to do so. On 22-11-1987 the petitioner informed the Court that the child has been taken by his mother to Karachi who is not agreeable to produce her in Court. The learned Judge asked address of the lady from the petitioner to which he replied that he did not know. His father also avoided to tell her address. At this, the learned Judge directed registration of a case against the petitioner and others under section 365/368, P.P.C observing as follows: -
"Kh. Asad, respondent, has shown reckless disregard for the order of the Court whereby he was directed to produce the child before it. On his own showing, his mother Mst. Razia Azhar has refused to bring the child to Lahore for producing her in the Court. Since the alleged detenue is a child aged years; that the petitioner being her real mother is lawful guardian of the child; that she enjoys right of Hizanat; that, her right of the custody to the child is higher than the father; that the custody of the child was allegedly obtained temporarily by Kh. Asad and his father by deception; that under the law, child continues to be in the keeping of lawful guardian i.e., mother, though the actual physical possession should be temp oraril with father or any-body else; and that in any case, the chip has been removed from Lahore to Karachi by grandmother who has no legal right to the custody of the child in the presence of mother, mother's mother and father, without the consent of the mother and thereafter, the child has not only been wrongfully confined but has also been concealed. I direct DSP present in the Court to register a case under section 365/368, P. P. C against Kh. Asad and others
The D.S.P. will also recover the child from wherever found and produce her before the Court on next date."
A case has been registered accordingly, so the petitioner has filed the instant petition for pre-arrest bail.
3. Arguing that the petitioner is entitled to the grant of pre-arrest bail, learned counsel submitted that because the petitioner is the lawful guardian of the child, alleged to have been kidnapped, therefore, he cannot be held guilty of committing offence of kidnapping abduction as defined in section 361 P.P.C and consequently the case is not covered by section 365/368, P.P.C. either. He has also referred to certain cases wherein High Court refused to exercise jurisdiction under section 491, Cr.P.C., because there was contest between parents over custody of their child, saying that proper forum for deciding such disputes is the Court of Guardian Judge. These authorities I am afraid, are not relevant for the decision of this application. It is further argued that it is mother of the child who is at fault. she must come and live with the petitioner. The petitioner had sincerely written to her registered letters in this regard but she has not responded favourbly. Next contended that application for appointment of guardian of the child is pending before the Guardian Judge Lahore, therefore, that petitioner is concealing the child is not correct, I asked the learned counsel, will the petitioner cooperate with the investigation officer for the recovery of the child if bail is granted to him, but the learned counsel as well as the petitioner refrained from making any commitment.
4. In this case, the age of the kidnapped child is very material who is admittedly about two years old. The term "lawful guardian" used in section 361, P.P.C., to my mind, connotes a person legally entitled to or entrusted with the care, control and custody of the child. In the case of a female child it is mother who, under the law, has right to custody till the child attains puberty. Mst. Ambreen, the minor, had been taken away from her mother by the petitioner and was then removed from Lahore to Karachi obviously with his active assistance. The purpose for taking the child away appears to be to force Mst. Aisha (mother of the child) to return to petitioner's house and live with him. I am not aware of any legal provision by which an unwilling wife can be forced to live with her husband. By keeping Mst. Ambreen, a suckling baby away from her mother the petitioner not besides endangering her life is also using her as lever to pressurise his wife to come and live with him which is simply cruel. In the circumstances, therefore, taking away of the child from her mother and keeping her at Karachi prima facie seems to be for unlawful purpose." -The petitioner's case, therefore, falls out of the exception to section 361, P.P.C. No proof that any application under Guardian and Wards Act is pending before Guardian Judge, Lahore, has been produced. It is, however, admitted that the mother of the child has not so far been served in those proceedings. Again the petitioner's refusal to disclose the address of his mother (who is unlawfully detaining the child) before the Court prima facie speak of his intention to conceal the child.
5. Furthermore, it is now well-settled that unless an accused shows that his intended arrest is tainted with mala fides on the part of the complainant or the police, he is not entitled to the grant of pre-arrest bail. The F.I.R. has been registered under orders of the High Court, therefore, question of mala fides on the part of police or Mst. Aisha Butt wife of the petitioner does not arise. The conduct exhibited by the petitioner is highly objectionable. His efforts throughout appear to be to thwart the process of law and frustrate the orders of High Court. In the circumstances, I find him not entitled to the discretionary and extraordinary relief of pre-arrest bail. Consequently, this petition is dismissed in limine a$ being devoid of merit.
S.A./ M-571/ L Petition dismissed.