ALI RAZA SHAH Versus SENIOR SUPERINTENDENT OF POLICE GHOTKI AT MIRPUR MATHELO

ORDER

SHAHNAWAZ TARIQ, J.--- Through captioned miscellaneous application under section 491, Cr.P.C., applicant Ali Raza Shah has prayed to issue Rule Nisi to respondents 1 and 2 with the directions to secure safe custody of detenues from wrongful confinement of respondents 3 to 5 without further delay and produce them before this Court and handover the custody of detenue No.1 Minor Ahmed Raza Shah aged about 15 months to the applicant being his real father, and after recording statement of detenue No.2 Mst. Anees Bibi, she may be set at liberty.

2. Pursuant to notice issued by this Court, alleged detenue No.2 Mst. Anees Bibi wife of Muzamil Hussain Shah appeared before this Court and filed her affidavit on 26.01.2015 stating that she has been residing with her husband respondent No.5 happily, while her brother and father intend to dissolve her marriage without any reason and she shown apprehension of her murder at the hands of applicant.

3. Considering the above scenario, learned Counsel for applicant does not press instant miscellaneous application to the extent of alleged detenue No.2 Mst. Anees Bibi. Order accordingly.

4. Learned Counsel for the applicant contended that applicant being real father is natural guardian of the minor and he is financially sound having sufficient means to maintain his son properly: that respondents have illegally detained the minor without any legal justification since his birth and they are not permitting the applicant even to see his son: that during pregnancy Mst. Aisha left the house of applicant due to some domestic dispute and started residing with respondents but they committed her murder during night hours and lodged false FIR against the applicant but he was found innocent and police submitted report under cancelled class before concerned Magistrate, and police lodged another FIR against respondents for committing murder of his wife; that Mst. Kalsoom alias Hameeda wife of respondent No.3, being maternal grand-mother filed Guardianship Application No.3/2015 before the Court of Family Judge Mirpur Mathelo against applicant and learned Guardian Judge vide order dated 20.11.2015 allowed meeting of applicant with the minor and fixed Rs.500/- to be paid to Mst. Kalsoom as travelling allowance but she refused to produce minor and learned trial Court directed SHO PS Jarwar to produce minor before the Court for meeting with applicant upon which, Mst. Kalsoom filed withdrawal statement and said guardianship application was dismissed as withdrawn vide order dated 08.01.2016, however order dated 20.11.2015 was kept intact; that Mst. Kalsoom has malafidely shifted the minor from the territorial jurisdiction of Guardian Judge Mirpur Mathelo to Malir Karachi and filed another application No.02/2016, for appointment as guardian only to defeat the earlier order passed by the Family Court Mirpur Mathelo.

5. Learned Counsel further contended that previously Mst. Aisha Bibi alias Nida Bibi had contracted her love marriage and respondent No.5 lodged FIR No.194/2011 under sections 365-B and 452, P.P.C. against Sadam Hussain, Faheem Shah, Ali Murtaza Shah and Shah Zaman regarding her abduction but due to harassment of respondents her marriage was dissolved and her statement was recorded before Magistrate under section 164, Cr.P.C. on 27.07.2011 and she leveled series of allegations against her husband; that said Mst. Aisha Bibi contracted her second marriage with applicant and respondents again continued their criminal conduct and disturbed their matrimonial life and she was also produced by the respondents before the Court of Session on 28.05.2013 alleging maltreatment against applicant; that respondent No.4 lodged FIR No. 27 of 2013, under sections 324, 337, 342, P.P.C. against applicant and others. He produced certified true copy of statement of Mst. Aisha Bibi recorded on 11.4.2014 before the Court of learned III-Additional Sessions Judge, Mirpur Mathelo in Sessions Case No.444/2013. Re: State v. Mohammad Raza Shah and others, whereby she stated that previously there was dispute between her father and uncle over landed property, which was settled before her marriage but it was again restarted after her marriage; that respondent No.4 also lodged FIR No.20 of 2012, under sections 447, 337-A(i), 337-H(2), 147, 148, 149, 114, 506/2, P.P.C. at P.S Jarwar against applicant and others.

6. Learned counsel further asserted that Mst. Sara Bibi another daughter of respondent No.3 was married with Musawar Shah and after said marriage, respondents caused him serious harassment and respondent No.5 lodged FIR No.288 of 2009, under sections 324, 34, P.P.C. against said Musawar Shah and they received compensation from him in lieu of compromise; that under pressure of respondents, Mst. Sara lodged FIR No.03/2010, under section 506/2, P.P.C. against her husband Musawar Shah at PS Mirpur Mathelo and she ultimately obtained divorce. He filed statement along with certified true copy of proclamation under sections 87/88, Cr.P.C. against respondents 4 and 5 passed by the Court of learned II-Additional Sessions Judge Ghotki which is also taken on record. He further contended that Mst. Kalsoom alias Hameeda also lodged FIR No.151/2015 at P.S Mirpur Mathelo under sections 364, 511, 403, 337-F(i), P.P.C., against applicant and others, however same was disposed of during investigation under cancel class. He further emphasized that applicant and respondent are appearing before the Court of Additional Sessions Judge Ghotki, where cases lodged by them against each other are pending but neither applicant caused harassment to respondents nor any complaint was made to the police or learned trial Court, which proved that Mst. Kalsoom Bibi had shifted the minor from Ghotki to Malir Karachi with ulterior motive.

7. Learned counsel emphasized that no FIR was lodged by any person against applicant, while respondents and their female members are habitual to lodge false FIRs, hence the available atmosphere and criminal activities of respondents will cause adverse effects upon the personality of the minor, hence further stay of minor with the respondents would be harmful for his mental growth, hence till the final decision of appointment of Guardian by the learned Guardian Court, interim custody of minor may be handed over to the applicant.

8. While controverting the above submissions, learned Counsel for respondent No.3 contended that minor since his birth is in custody of Mst. Kalsoom and applicant has filed instant application only to harass the respondents and question of removal of his custody does not arise at all; that due to fear and harassment caused by the applicant, Mst. Kalsoom shifted from Mirpur Mathelo to Malir Karachi and at present she has been maintaining the minor and again filed another guardianship application against the applicant before the competent Court, hence application under section 491, Cr.P.C. is not maintainable; that applicant had not paid any maintenance to the minor till date.

9. Learned APG supported the arguments advanced by learned Counsel for respondents and submitted that instant application is not maintainable under the law.

10. Heard learned counsel for parties and perused the available record prudently.

11. Perusal of record reflects that in the year 2012, applicant contracted marriage with one Mst. Aisha Bibi daughter of respondent No.3 and from their wedlock detenue No.1 Ahmed Raza Shah was born. In the same year, marriage of detenue No.2 Mst. Anees Bibi, sister of applicant was solemnized with respondent No.5. Subsequently, Mst. Aisha Bibi left the house of applicant due to domestic problem and started residing with the respondents. Allegedly, on 25.04.2014 respondents committed brutal murder of Mst. Aisha Bibi in their house and respondent No.4 lodged FIR No.32/2014, under sections 302, 147, 148, 149, P.P.C. at Police Station Jarwar, against applicant, his father and brothers. During investigation, Investigating Officer recommended disposal of the case being false and submitted summery report before the Magistrate and simultaneously, police also registered another FIR No.36/2014 under sections 302, 109, 211, 34, P.P.C. at Police Station Jarwar against respondents Nos.3 to 5 in respect of murder of Mst. Aisha Bibi and since then respondents 4 and 5 are absconders while respondent No.3 has been facing trial before the Court of ADJ Ghotki. It is further averred that said Mst. Aisha Bibi had given birth to the minor in the house of respondents and since then he has been residing in the house of respondents and despite making several demands to hand over the custody of his son, they denied to hand over his custody. Previously Siraj-ul-Hassan Shah, father of the applicant filed Criminal Miscellaneous Application No.124/2014 before the Court of learned Sessions Judge, Ghotki for recovery of detenues, but SHO P.S Jarwar submitted report before the Court that respondents 3 to 5 being involved in the murder case of applicant's wife, had shifted to some unknown place, hence counsel for applicant did not press said application which was disposed of vide order dated 26.08.2014.

12. Indeed, there are counter version cases lodged against both parties regarding the commission of murder of Mst. Aisha Bibi during night hours in the house of respondents and such cases have been challaned and parties are appearing before the trial Court of ADJ Ghotki and facing their trial, while respondents Nos.4 and 5 have been declared as absconders after completion of proceedings under sections 87 and 88, Cr.P.C.

13. Perusal of record further reflects that previously late Mst. Aisha Bibi had contracted love marriage with one Saddam Hussain Shah and respondent No.5 lodged FIR No.194/2011 against said Sadam and his family and she appeared before Magistrate and her statement under section 164, Cr.P.C. was recorded regarding maltreatment by her first husband. Mst. Sara another daughter of respondent No.3 registered FIR No.03/2010 against her husband Musawar Shah for causing harassment whereas Respondent No.5 also lodged FIR No.288/2009 against said Musawar Shah and matter was compromised between the parties after payment of compensation by him and she ultimately obtained divorce. Respondent No.4 lodged FIR No.20/2012 against applicant and others, thereafter he also lodged another FIR No. 27/2013 against applicant and others. Mst. Kalsoom alias Hameeda also lodged FIR No.151/2015 for causing harassment against applicant and others, which was disposed under cancel class.

14. Admittedly, applicant is natural guardian of minor, having sufficient means, thus he would be in a better position to maintain and look after the minor and provide him proper education and livelihood. Conversely, Mst. Kalsoom with mala fide intention removed custody of minor from the territorial jurisdiction of Guardian Court at Mirpur Mathelo, whereby the interim order was passed for meeting of applicant with the minor which is still intact, while entire family of Mst. Kalsoom has been residing at their native place. Although maternal grandmother has got preferential right for the custody of the minor but in the present case, she has not come with clean hands for claiming the right of custody, nevertheless her hostile conduct to deprive the applicant even to see his son during period of more than 2 years and deliberate removal of custody of minor from the territorial jurisdiction of the Guardian Court Mirpur Mathelo with sole object to frustrate the earlier order passed by the competent Court for meeting of applicant with his son, which is still intact and operative, thus she could not be given preference over the natural guardian. Mere claim that after the demise of minor's mother, she has been looking after the minor was not enough for considering her claim of appointment of guardian and assigning the custody of minor son.

15. It is well settled law that High Court can exercise its jurisdiction under section 491, Cr.P.C. for recovery of minor sparingly and cautiously in exceptional and extraordinary cases requiring real urgency. The question of welfare and appointment as guardian of a minor could only be determined by the Guardian Court after recording evidence of the parties. It is significant to mention that during pendency of application for appointment of guardian before the Family Court at Mirpur Mathelo, act of removal of minor from home District Ghotki to another District i.e. Malir Karachi by Mst. Kalsoom, having custody of minor was purely result of ulterior motives to frustrate the legal proceedings, which could not be ignored as a routine matter. Even on the last date of hearing, respondent No.3 produced minor before this Court and he was strictly directed to produce the minor before this Court today, but there is no intimation regarding absence of the respondent No.3 as well as non-production of the minor, which clearly reflects the demeanor and character of the respondents that they are deliberately defeating and violating the legal orders passed by the Courts on one or the other pretext, thus while considering the question of temporary custody of minor, such conduct and behavior could not be ignored by the Court.

16. Considering the above circumstances, instant miscellaneous application stands allowed and the respondent No.3 is directed to handover the interim custody of the minor Ahmed Raza Shah to applicant within 30 days till final disposal of the Guardian and Wards application pending before the Court of II-Civil/Family Judge Malir Karachi. Applicant shall produce the minor for meeting with Mst. Kalsoom as per orders if any passed by the learned Guardians and Wards Court Malir Karachi. Applicant is directed to execute PR Bond in the sum of Rs.200,000/- with Additional Registrar of this Court to ensure compliance of orders passed by the learned trial Court in letter and spirit. If respondents party failed to comply with instant order, applicant would be at liberty to file contempt application. However, the above observations are tentative in nature and learned Guardian Judge shall decide the question of appointment of guardian of minor Ahmed Raza Shah strictly on merits and this order is subject to any order passed by the learned trial Court to ensure that applicant will not remove the custody of minor outside the District Ghotki to defeat the proceedings pending before Guardian Court at Mirpur Mathelo. Copy of this order may be transmitted to Family Court Mirpur Mathelo.

WA/A-149/Sindh Petition allowed.