Mst. GHULAM FATIMA vs THE STATE and 5 others

' MUKHTAR AHMAD JUNEJO, J.---Criminal Petition No,205-K/1996 has been filed by Mst. Ghulam Fatima for seeking leave to appeal against a judgment of the High Court of Sindh dated 8-11-1995 in Criminal Miscellaneous Application No,10 of 1994. Criminal Petition No, 11-K/1997 has been moved by Mst. Shazia Memon for seeking leave to appeal against a judgment dated 23-2-1997 in Cr1. Misc.

Application No,10 of 1994 by the same High Court. Both these petitions have been heard together and are being disposed of under this judgment.

2. Admittedly Mst. Shazia was married with Naushad Ali on 7-7-1991 at Karachi. After marriage they lived together, but subsequently differences arose between them resulting in their separation.

During the wedlock they were blessed with a son, namely, Asadullah, whose custody is bone of contention between the marriage spouses.

3. On 3-1-1994 Mst. Shazia filed in the High Court Criminal Miscellaneous Application No,10 of 1994 under section 491 of Cr.P.C. Praying that S.H.O. Cantonment Police Station Hyderabad be ordered to recover minor Asadullah from the custody of Naushad Ali. Muhammad Musharaf and Mrs. Ghulam Fatima respondents in Criminal Petition No,11-K/1997. Said respondents were alleged to have wrongfully confined said minor. On said application Rule Nisi was issued in respect of the minor from time to time for production of minor Asadullah in Court. Unfortunately, neither the minor was produced nor respondent Naushad Ali attended the Court on any date, despite issuance of coercive process. Ultimately, on 23-2-1997 a learned Single Judge of the High Court dismissed habeas corpus petition of Mst. Shazia on the grounds that the minor in question had not been recovered so far, that the matter was prolonged unnecessarily for want of service on Naushad Ali, that the counsel for Mst. Shazia was absent and that civil litigation before the Guardian Court for custody of the minor, was pending and hence the habeas corpus application was not competent.

Hence Petition No, 11-K/1997.

' In Criminal Miscellaneous No,10/94 Mst. Ghulam Fatima, mother of Naushad- Ali moved Criminal Miscellaneous No, 1346/1995 for recall of an order of attachment dated 27-9-1995. Under said order agricultural land bearing Survey Nos 140/1, 141/1 to 4 and parts of survey Nos.180/2 and 107/4 belonging to Naushad Ali but gifted by him to his mother, was attached. Said application of Mst.

Ghulam Fatima bearing No,1346/95 was dismissed under a judgment dated 8-11-1995, announced on 2-10-1996. Hence Criminal Petition No .205-K/96 .

4. Mr. Azizullah Shaikh, learned counsel for the petitioner in Petition No,205-K/96 argued that all the orders passed by the High Court were illegal. In particular he challenged the order of attachment dated 27-9-1995 on the ground that no action under section 88 of Cr.P.C. Can be taken unless the Court issued a proclamation under section 87 of Cr.P.C. For any person absconding. Learned counsel stated at the Bar that respondent Naushad Ali was outside the country and that the property transferred by him to Mst. Ghulam Fatima on 2-2-1994 could not have been attached.

' Mr. G.M. Qureshi, learned counsel for Mst. Shazia argued that the so-called gift dated 2-2-1994 was meant to defeat the process of the Court and that the property was shown transferred after institution of the present proceedings.

' Mr. Munib Ahmad Khan, learned Additional Advocate General Sindh proposed remand of the matter to the high Court for reconsideration of the issues involved.

5. Challenging dismissal of the application under section 491 of Cr.P.C. By the High Court, Mr. G.M.

Qureshi, learned counsel for Mst. Shazia argued that pendency of the guardianship matter does not mean that the proceedings under section 491 of Cr.P.C. Should come to a close. Mr. Azizullah Shaikh, learned counsel for respondents 2 and 3 opposed interference with the dismissal of the application under section 491 of Cr.P.C.

At the outset it may be mentioned here that pendency of the guardianship matter before a Family Court would not affect the proceedings pending under section 491 of Cr.P.C. Such question arose in the case of Muhammad Javed Umrao v. Mst. Uzm.a Vahid (1988 SCMR 1891) where a learned Bench of this Court observed as below:- "It is true that facts of individual cases may be such where the cover of proceedings of one sort is taken for advancing the cause of other. In such cases it has to be ascertained, as to, what is the substance of the proceedings and thereafter the proceedings are to be diverted to the appropriate channel be it of section 491 Code of Criminal Procedure or one under Guardians and Wards Act."

' In said case the mother of children approached Family Court for custody of her minor children, but when she suspected that the minors were being shifted outside the jurisdiction of the Court, she moved the High Court under section 491 of Cr.P.C. There is another view expressed in the case of Mst. Aisha Bibi v. Nazir and others (1981 SCMR 301), where it was observed that where the dispute between the parties is essentially regarding custody of the girl and no question of any forcible detention was raised, such was essentially a matter for Guardian Judge to resolve and no justification is made out in such a case for issuing a direction in the nature of writ of habeas corpus. In the case of Mst. Zenia v. Ahmed Jawad Sarwar (PLD 1994 Lah. 577) a learned Single Judge took view that the provisions of section 491 of Cr.P.C. Are more appropriate, efficacious and speedy. In the case of Muhammad Javed Umrao (1988 SCMR 1891) a learned Bench of this Court held that the two matters, one dealt with under section 491 of Cr.P.C. And the other under Guardians and Wards Act were entirely different and there is no question of the one excluding the other, the one overlapping the other or the one destroying the other. In light of the case-law, the High Court was not right in dismissing the Criminal Miscellaneous Application No,10 of 1994.

6. There is force in the contention of Mr. Azizullah Shaikh that proper compliance has not been made with the provisions contained in sections 87 and 88 of Cr.P.C. Recall of an attachment order does not amount to review and the learned Judge in Chamber was competent to recall the attachment, if grounds existed for such recall.

Needless to add, that main anxiety of a Court in such matters is to put the minor in custody of the person who is entitled to such custody, keeping in view the Muslim Law on the subject and welfare of the minor. No doubt, ultimately the order of the Family Court would hold the field irrespective of the fact what order has been passed under section 491 of Cr.P.C. As held in the cases of Khushi Muhammad (1988 SCMR 1234), Ahmad Sami (1996 SCMR 2), Miss Hina Jilani (PLD 1994 Lah. 151) and Shafqatullah (1995 PCr.LJ 1868). In any case, there is no illegality in dealing with the question of custody of a minor under section 491 of Cr.P.C. If such minor is in illegal or unlawful custody.

7. As a result of above discussion, we convert these petitions into appeals, accept the same and set aside the impugned judgments dated 23-2-1997 and 8-11-1995 and remand the matter to the High Court for fresh disposal of the same according to law. The attachment of the land shall continue till such order is recalled by the High Court for just reasons.