NOOR SAFIA Versus S.P., SIALKOT

ORDER

The petitioner is She mother of detenus namely Taimur Khalid aged about 7 years, Rewan Khalid aged 5 years and Nirmal Khalid aged 4 years. It was alleged in this habeas corpus petition that the aforesaid detenus/children were in the illegal detention of respondents Nos.3 to 6 as they were forcibly taken away from her house on 15-7-1996. It was also alleged that her husband namely Khalid Mahmood was living abroad i.e. at Masqat in connection with his employment and that she was residing in Pakistan with her parents and minor children for the last 2 years.

2. Respondent No.3 is stated to be the paternal-grandfather of detenus whereas respondents Nos.4 to 6 are the paternal-uncles.

3. This petition was instituted on the ground that respondents Nos.3 to 6 have no right to hold the minor children in their illegal custody. A request for appointment of bailiff was made to effect the recovery of detenus from the aforesaid respondents. The bailiff was accordingly appointed who has submitted his report, dated 24-7-1996. The recovery of Taimur Khalid and Rewan Khalid was effected through the bailiff of this Court with the assistance of the-police from the custody of respondents Nos. 3 to 6 whereas other detenu namely Nirmal Khalid could not be recovered as she was stated to be with respondent No.4. However, it was undertaken before the bailiff that the aforesaid detenu child shall be produced in Court, which was accordingly done.

4. Respondents Nos.3, 4 and 6 filed reply to this petition in which they took up the preliminary objection that the petitioner had developed illicit relation with Shahzad Ahmad respondent No.5 a younger brother of respondents Nos.4 and 6 and that of husband of the petitioner. The fact about the illicit relation came to the knowledge of the respondents in October, 1995, whereupon the father of the petitioner namely Muhammad Ishaque was informed, who whereupon paid a visit to the respondents in the company of Ghulam Hussain and other respectables of the area, and the children i.e. the detenus were therefore, left with the respondent. It was, therefore, urged that the petitioner had disentitled herself to the custody of the minors/detenus after developing illicit relation with the aforenamed, Shahzad Ahmad, who has also allegedly left for Malaysia after the incident.

5. I have heard the learned counsel for the parties at length. The father of the petitioner namely Muhammad Ishaque was also summoned and is present in Court. He has verified the fact that petitioner is living with him alongwith children namely Taimur Khalid, Rewan Khalid since after their recovery from the respondents. It is thus obvious that the petitioner is presently residing in the house of her parents.

6. The learned counsel for the petitioner has submitted that the decision in this petition is to be given for the limited purpose i.e. whether or not the detenus should be released from the illegal custody of respondents and handed over to their mother i.e. the natural guardian. In this respect reliance is placed on 1984 PCr.LJ 2582 (Lahore), 1984 PCr.LJ 1047 (Lahore), 1990 PCr.LJ 847 (Karachi), 1990 PCr.LJ 686 (Karachi) to support the point that custody to the rightful and natural guardian can be given after recovery of the minor detenus from the illegal detention in pursuance of section 491, Cr.P.C.

7. The learned counsel for the respondents has submitted that respondents would not - dispute the custody of the minors detenus if the father of the petitioner takes oath on the Holy Quran that children aforesaid were not voluntarily left with the respondents. In case an oath is given upon Holy Quran by the father of the petitioner to that effect, then the custody of children may be allowed to the petitioner. This offer was given to the petitioner to which she did not agree on the ground that she would not ask her father to give oath on Holy Quran rightly or wrongly. After refusal of the above offer, the learned counsel for the respondents contended that the petitioner was not entitled to the custody of the minors/children aforementioned particularly when they were left with the respondents voluntarily by her. It was further submitted that it was trot a case of illegal detention because the respondent No.3 was the paternal-?grandfather whereas respondents Nos.4 and 6 Were-paternal-uncles of the detenus. It may be irregular custody; but did not amount to illegal detention as spelt out by section 491, Cr.P.C. Reliance is placed bn'1985 PCr.LJ 1469 Karachi, 1989 PCr.LJ 823-Karachi and 1989 PCr.LJ 1327 Karachi. It was, therefore, urged that the petitioner was not entitled to even temporary custody of the children particularly when there is an allegation against her that she had developed illicit intimacy with one of the younger brothers of her husband namely Shahzad Ahmad i.e. respondent No.5, who has since left for Malaysia.

8. I have considered the foregoing facts and have also gone through the authorities cited at the Bar. The authorities cited by the learned counsel for the petitioner have clearly pronounced law relating to the custody of minor detenus in view of provisions contained in section 491, Cr.P.C. On the other side the authorities relied upon by the learned counsel for the respondents deal with the irregular custody in one of which the parties had already gone to the proper forum under the Guardians and Wards Act, but had held that section 491, Cr.P.C. a (sic) could apply to decide the question of temporary custody.

9. In the aforesaid situation, it will have to be seen whether in the instant case custody by respondents Nos.3, 4 and 6 amounts to an illegal detention of the minor children or it is only a case of irregular custody. It is true that the respondents aforesaid are closely related to the minors, custody they were allegedly taken away forcibly from the custody of their mother i.e. the petitioner. The moment, they were removed from the lawful custody of their guardian, it would become a case of illegal detention. As such it would not be a case of improper custody alone. The detenus in this case are minors of tender age their father is a foreign (sic) land. Hence their mother has a legal right to their custody during Hazanat period

.

10. A question of fact regarding the character of the mother cannot be readily gone into while disposing of this petition. Admittedly tote petitioner being mother of the minor detenus, even their welfare would require that she should be put into their temporary custody forthwith till the matter about regular custody is decided by a Court of competent jurisdiction under the Guardians and Wards Act. This petition is, therefore, allowed and respondents Nos.3, 4 and 6 are directed to deliver the custody of Nirmal Khalid immediately to the petitioner in the Court. The custody of Nirmal Khalid is accordingly given by the respondent to the petitioner in the Court. The remaining' two detenus namely Taimur Khalid and Rewan Khalid are already in the custody of petitioner as they were given to her by the bailiff at time of their recovery. She shall continue to hold custody of all the minors/detenus subject to any order passed by the Court of competent jurisdiction under the Guardians and Wards Act, if the matter is taken to the Court by any of the parties.

11. Disposed of with the above order.

N.H.Q./N-30/L. ?????????????????????????????????????????????????????????????????????????????????? Petition allowed.