FARRUKH BASHIR Versus MST. RAEES AKHTAR
1. This judgment would disposed of application under section 491, Cr.P.C. filed by the petitioner Farrukh Bashir and his wife Seema Riaz in respect of minor Danish Bashir, who is said to be illegally and improperly detained by respondent No.l. The prayer in the application is as under:--
2. "The respondent No.l may kindly be directed to bring and produce the minor son of the applicants, namely, Danish Bashir Butt before this Honourable Court so that the said minor may be dealt with according to law.
3. In the alternative
4. It is prayed that the Senior Superintendent of Police, Karachi (South) may be directed to recover the minor son of the applicants, namely, Danish Bashir Butt and produce the said minor before this Honourable Court so that he may be dealt with according to law."
5. At the outset, it may be stated that the minor is claimed by respondent No.l to be her son, with the name Hassan Ahmed Alvi and not Danish Bashir. There is no dispute that the minor is the same. It is necessary to give facts of the case as put up by the parties.
6. Applicants married at Lahore on 12-1-1988 but such marriage was kept secret from the parents of applicant No.l, being against their wishes. During August 1988, when applicant No.2 was pregnant, both applicants came to Karachi and stayed with respondent No.l, who is real Khala of applicant No.l Farrukh Bashir. On 24-10-1988, applicant No.2 gave birth to a male child in Liaquat Medical Hospital, Karachi and the child was named as Danish Bashir Butt. The birth of the child was registered with Zonal Municipal Committee (East) Karachi. Copies of birth report, discharge note and birth certificate are filed and marked as Annexures "B", "C" and "D". Applicants lived at Karachi with respondent No.l for about 4 months after child's birth. Thereafter, leaving the child with respondent No.l at Karachi, applicants went to Lahore telling respondent No.l that they would soon persuade parents of applicant No.l to accept applicant No.2 as "Bahoo" and would come to take the child to Lahore. In the month of February, 1992, the applicant No.l succeeded in persuading his parents to accept applicant No.2 in their house. However, in order to save their honour in the eyes of relations and friends, parents of both arranged a formal and customary marriage including solemnizing Nikah and execution of Nikahnama. This all, according to the applicants, was done to satisfy the parents of applicant No.l and the Nikahnama dated 6-2-1992 was in fact ratification of earlier Nikahnama dated 12-1-1988.
7. Since thereafter, applicants came to Karachi a number of times before February, 1992 and respondent No.l always assured that as and when applicants desired, they could take away their son. At times applicants observed that the respondent No.l was avoiding to hand over custody of minor to applicants, but in July, 1992, sent applicant's son to Lahore through her own daughter Aliya, whereafter the minor remained with applicants. On 18-1-1993, at 8-30 p.m. respondent No.l, came alongwith respondent No.3 (A.S.I. Nisar Hussain Kazmi) to Lahore and forcibly took away applicant's son on the pretext that respondent No.1 had filed a case of kidnapping at Civil Lines Police Station, Karachi in respect of the minor. Applicants were required to appear at Police Station Islampura, Lahore if they wanted the return of the minor. Applicants approached the said police station but were not given custody of the minor and on the contrary they were directed to go to Karachi. It seems that the respondent No.3, who was taken by the respondent No. 1 from Karachi for the investigation of fictitious F.I.R. lodged by respondent No.1 handed over the custody of the minor to respondent No.3 for corrupt motives. The applicants even came to Karachi and moved some authorities in this respect but with no result. The city and A.D.M. Karachi (South) was also approached for the custody of the minor but he directed to seek remedy through a Court of law. The applicants, therefore, filed this application with prayer as mentioned above.
8. Respondent No.l filed written reply/objections on 11-5-1993 and claimed that it is she who has given birth to the minor and named him as Hasan Ahmed Alvi. She stated that all allegations in the application were false except the relationship between her and the applicant No.1 It was stated by the respondent No.1 that the minor is her son whom the applicants had kidnapped and taken away to Lahore and she, therefore, filed F.I.R. No.248/92 at Police Station Civil Lines on 26-12-1992 under section 363 of P.P.C. According to her, the custody of the minor was given to her in pursuance of the investigation of the said crime and she being the mother, custody of minor with her cannot be said to be either illegal or improper. She has denied having got entry regarding the birth of Hassan Ahmed Alvi made in the office of Z.M.C. Karachi South on 20-6-1989 and another entry in respect of the birth of Hassan Ahmed Alvi also shown in the office of Z.M.C. East, Karachi. In one of the certificates, Annexure "L", the date of birth is shown as 20-6-1989 and in the other certificate date of birth of the said minor Hassan Ahmed Alvi is shown as 26-6-1989. Similarly, in one certificate, the place of birth is shown at "home" while in the other certificate place of birth is shown as "Farasat Clinic". Respondent No.1 claimed that these certificates are manipulated by applicants.
9. I have heard the learned counsel at length and perused the record. It is contended by Mr. Ibul Inam, Advocate for the applicants that the minor Danish Bashir is their son and applicant No.2 had given birth to the said child at Karachi on 24-10-1989 in Liaquat National Hospital and such entry was duly made in the office of Z.M.C. East Karachi and the Entry Annexure "D" is filed alongwith the application. This entry was based on the certificates Annexures "B" and "C" issued by Liaquat National Hospital, Karachi. The two Nikahnamas one at Karachi and the other at Lahore being only a ratification of the earlier Nikahnama have also been filed on record. The learned Advocate then pointed out to the two letters dated 1-4-1993 and 10-4-1993 of the S.S.P. Lahore and Government of Punjab, Home Department respectively. In the former letter the S.S.P. Lahore observed that A.S.I. Syed Nisar Hussain Kazmi, who had gone from Karachi to Lahore, had without proper orders given the custody of the minor to respondent No.1. In the later, the Government of Punjab, Home Department, requested the Home Department, Government of Sindh to recover the above child for handing it over to his real mother. There is another letter dated 21-3-1993 from District Magistrate, Lahore addressed to the Deputy Secretary (Judicial) Government of Punjab, Home Department, Lahore, requesting the latter to take up the matter with the Government of Sindh for the restoration of minor Danish Bashir to his lawful parents and further to take appropriate action against the violators of law.
10. Applicant's learned Advocate, in view of these circumstances, argued that the respondent No.1 who is mother of three daughters and had no male issue, taking advantage of the helplessness of the applicants and by adopting unfair means through respondent No-3 secured the minor from Lahore on the basis of fictitious F.I.R. The custody of the minor, according to the learned Advocate, with the respondent No.1 is illegal and improper and the same is required to be given to the applicants, who are real parents of the minor.
11. Mr. Muhammad Amin Lakhani, Advocate, assisted by Mr. Akram Shahbaz, Advocate, has argued that this application under section 491 of Cr.P.C. is not maintainable and order of City and A.D.M. Karachi (South) passed on 20-4-1993 directing that interim custody of the child should remain with the respondent No.1 could be assailed under section 439 of Cr.P.C. and no habeas corpus petition could be filed. It is next argued that the custody of the minor was given to the respondent No.1 in a lawful manner and the same cannot be said to be either improper or illegal. In support of such contention, learned Advocate has referred to the case of Ghulam Mustafa v. Muhammad Saleh and others 1982 P Cr. L J 1029, where it was held that the petition under section 491 of Cr.P.C. was not maintainable in view of the facts that the custody of detenu was legally handed over to respondents by competent Court and such order was not yet set aside by appellate Court. It is next argued that this Court has no jurisdiction to deal with the custody of the minor and it is only the Court exercising jurisdiction under the Guardians and Wards Act, which could determine the temporary custody of the minor under section 25 of the said Act. It is further argued that the two entries regarding the birth of the minor, one showing his birth at home, and the other showing his birth at Farasat Clinic, have not been produced by the respondent No.1 but the same are obtained and produced by the applicants, who have managed such forged entries. Mr. Lakhani further argued that the F.I.R. under section 363 of Cr.P.C. was rightly filed by the respondent No.1 with Police Station Civil Lines, Karachi, pursuant to which, during investigation the respondent No.3 secured the minor at Lahore and handed over the custody of the minor to respondent No.1 who is the real mother.
12. Mr. Abdul Hakeem H. Bijarani, learned AA.-G. has supported the application and has argued that the manner in which the child was secured from the custody of the applicants at Lahore and handed over by respondent No.3 to respondent No.1 without any lawful authority, clearly shows the mala fide intention of the respondent No.1, who, on the basis of a fictitious F.I.R. persuaded the respondent No.1 to go with her to Lahore and secure the child. The learned AA: G. states that the minor, who is given two different names, one by the applicants and the other by the respondent No.1 from the facts of the case, appears to be the child of the applicants and its custody may be handed over to them.
13. I have also heard Ghulam Siddiq, Inspector, Crime Branch, to whom the investigation of the case under section 363, P.P.C. lodged by the respondent No.1 was transferred. He has filed a detailed statement showing that a number of witnesses were examined by him and during investigation it transpired that the respondent No.1 is not the mother of the minor and that he is recommending to lodge a complaint under section 182 of P.P.C. against respondent No.1 Respondent No.3 Syed Nisar Hussain Kazmi, A.S.I., whom the respondent No.1 took to Lahore and who secured the custody of the minor, has also filed a detailed statement. He has also been heard. He states that after he handed over the custody of the minor to respondent No.1 at Lahore and after he carried on some more investigation at Karachi he had also come to a conclusion that the minor is the son of the applicants and the respondent No.1 is not its mother. He also states that if he had continued the investigation of this case, he would also have recommended action under section 182 of P.P.C. against the respondent No.1
14. I have heard the arguments of the learned counsel and perused the record. The admitted position of the case is that the minor Danish Bashir was in the custody of the applicants on 18-1-1993 till 8-30 p.m. when the respondent No.3, who was investigating the Crime No.248/92 Civil Lines Police Station, Karachi under section 363, P.P.C. lodged by the respondent No.1 secured the custody from the applicants and without any authority handed over the custody of the minor to the respondent No.1 under Supardaginama. The respondent No.1 then took the minor to Karachi and is claiming to be the mother of the said minor, whom she calls as Hassan Ahmed Alvi. The enquiry carried out by either District Magistrate or S.S.P. Lahore, which is born out by the letters Annexures "G", "H" and "I" to the application, also shows that the custody of the child was illegally delivered by the respondent No.3 to respondent No.1 Even an action is proposed against the respondent No.1 The two entries in the Z.M.C. of the birth of the minor, who is named in these entries as Hasan Ahmed Alvi also show two different dates of birth as well as different places where the child was born. The detailed reports submitted by the respondents Nos.3 and 4 also show that the claim of the respondent No.1 over the minor is unlawful. The circumstances, in which the child was born to the applicant No.2 at Karachi in the house of respondent No.1 who is the real Khala of applicant, appeared to be more plausible and so also the controversy about the two Nikahnamas of the applicants.
15. There is yet another strange circumstance in the case, which has not been explained by the learned counsel appearing for the respondent No.1, which is, that husband of the respondent No.1 has never appeared in any Court to claim the custody of the minor or to say that the child is born to the respondent No.1 and is his son. It is stated for the husband of the respondent No.1 that he is serving at Hong Kong and could not be present. In a matter like this when the custody of the child is being claimed by two parties, the presence of the husband of respondent No.1 in Pakistan to support the contention of the respondent No.1 was a must and his dissociation from the case also reflects the false and baseless claim of the respondent No.1 over the child. The investigation of the case filed by the respondent No.1 under section 363 of P.P.C. in respect of kidnapping of the child also shows that the F.I.R. was false.
16. The case-law referred by the applicant's learned Advocate is not relevant for the purpose of disposal of this application.
17. For the aforesaid reasons, I am of the considered view that the minor, who is in custody of the respondent No.1 and is aged about 3-1/2 years is held by the respondent No.1 illegally and improperly. The application under section 491 of Cr.P.C. is maintainable and no revision could be filed against the order A of City and A.D.M. as such order is not impugned in these proceedings. The respondent No.1, who is present in Court alongwith the minor is directed to hand over the custody of the minor to the applicants.
18. The D.I.-G. Police, Karachi, shall hold an enquiry -against the respondent No.3, A.S.I. Nisar Hussain Kazmi, who had handed over the custody of the minor to the respondent No.1 without obtaining a proper judicial order. The result of the enquiry may be communicated to this Court within three months.
19. N.H.Q./F-224/K Petition allowed.