Recovery of Minor Children through Habeas Corpus

 PLJ 2008 Cr.C. (Lahore) 628

[Rawalpindi Bench Rawalpindi]

Present: Muhammad Akram Qureshi, J.

MAH RUKH BAJWA--Petitioner

versus

AFTAB ALAM & 2 others--Respondents

Crl. Misc. No. 44-H of 2006, decided on 29.1.2008.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 491--Habeas petition--Recovery of minor children--Minor children had never been snatched from the custody of mother in the near past--They were not in illegal and improper custody & their lives were not in danger--They were of understandable age and fully satisfied with their paternal grandmother and uncle--Their affairs were being looked after properly, with satisfactory performance in their education--Final decision regarding proper or improper custody & the welfare of children could only be given by Guardian Judge--Petition dismissed.      [P. 631] A, B, C & D

2000 P.Cr.L.J. 1685, 1987 SCMR 174; 2000 MLD 351; 2000 YLR 2567; 1981 SCMR 301; 2001 P.Cr.L.J. 1250; 1988 SCMR 1891; 2005 YLR 1047, PLD 2001 Lah. 347 & 2006 MLD 136, ref.

Sh. Waqar Ahmad, Advocate for Petitioner.

Malik Qamar Afzal, Advocate for Respondents.

Date of hearing: 29.1.2008.

Order

This order will dispose of Crl. Misc. No. 44-H of 2006, filed by Mst. Mahrukh Bajwa-petitioner, for the recovery of minors Mst. Nisha Mehtab and Muhammad Bilal Mehtab, from the custody of Aftab Alam and Mst. Jamila Hashmi, Respondents No. 1 and 2 and for the delivery of their custody to her.

2.  Brief facts of the case narrated by the learned counsel for the petitioner are that the petitioner was married with Mehtab Alam son of Muhammad Fayyaz, on 17.10.1994. Her husband was running the business of gold jewellery at Old Anarkali, Lahore. From this wedlock, Muhammad Bilal Mehtab was born on 20.8.1995, whereas Mst. Nisha Mehtab on 11.11.1996. All were living at Lahore. On 8.11.1997, Mehtab Alam was abducted by someone and FIR No. 295/97 dated 22.12.1997, was registered at Police Station Old Anarkali, District Lahore but he has not been recovered so far.

3.  The claim of the petitioner is that Respondent No. 1, Aftab Alam is elder brother of her husband whereas Respondent No. 2, Mst. Jamila Hashmi her mother-in-law. Her stand is that after disappearance of Mehtab Alam, Respondents No. 1 and 2, shifted to Lahore and started living with her in her house; she further claims that on one occasion, she had gone to the house of her parents to see them, when Respondents No. 1 and 2, secretly loaded her entire dowry articles in a truck, removed her golden ornaments and went away to Rawalpindi alongwith the above named minor children. It is assertion of the petitioner that she also went to Rawalpindi and started living with her children in a room at the lower portion of the house of Respondent No. 2; that Respondent No. 1, who is already married person, was eager to marry her and Respondent No. 2 had also been pressurizing her in this respect; that when she refused to agree with the above said demand of the Respondents No. 1 and 2, she was given severe beating upon which, she complained her mother and brother and that she was turned out of the house of Respondent No. 2, without children. She claims that after that, she had been making efforts to secure the custody of her minor children but Respondents No. 1 and 2, did not permit the same and thus as a measure of last resort, she approached this Court. Learned counsel for the petitioner while referring to the judgments reported as Mst. Haleema Bibi. Vs. Bashir Ahmed and two others (2000 P.Crl.L.J 1685), Muhammad Naseer Humayum vs. Syeda Ummatul Khabir (1987 SCMR 174), Mst. Samina Vs. Ashfaque Hussain and another (2000 MLD 351), Mst. Ansar Bibi vs. SHO, Police Station Saddar Depalpur, District Okara and another (2000 YLR 2567), argues that both the minor children are in illegal and improper custody of Respondents No. 1 and 2, and that the proper custody always lies with the mother and that they may be recovered from their improper custody and handed over to her.

4.  On the other hand, the stand of the Respondents No. 1 and 2, is that after disappearance of Mehtab Alam, alongwith jewellery, he was carrying, they started feeling themselves responsible to look after the petitioner and two children, brought them to Rawalpindi in March, 1999 and started taking their care. The children were got admitted in English Medium School GSIS and IPS. They are bearing more than Rs. 3,000/- per month, as tuition fee, etc. of each child. They further claim that the petitioner of her own and on the instigation of her family members, decided to leave the house of her-in-laws and left children with them. They state that the children are going school regularly and that they are in proper custody and living with them happily. Both the children are so satisfied that they are showing extra ordinary results in their school examinations. They have further mentioned that after the lapse of about seven years, the petitioner had filed the present petition in the year 2006, for the recovery of the children with mala fide intention; that in case the children are taking away from their custody and delivered to the petitioner, the carrier, education and welfare of the children would suffer; that the children are enjoying the care and love of the Respondents No. 1 and 2. It has also been prayed by the respondents that query may be made from the children regarding their willingness to accompany their mother or to Respondents No. 1 and 2. They also informed that Respondents No. 1 and 2, have filed a guardian petition u/S. 25 of the Guardian & Wards Act, before the competent Court and the proceedings are sub-judice and that petitioner has put her appearance there and the custody of both the children would legally and properly be regulated by the competent Court. Lastly, they have relied upon certain documents regarding tuition fee, the performance of the children in their educational institutions and also petition showing pendency of proceedings u/S. 25 of the Guardian & Wards Act and that the custody of the minors is being regulated by the Guardian Court. The learned counsel for respondents, while relying upon the judgments reported as Mst. Aisha Bibi. Vs. Nazir and 2 others. (1981 SCMR 301), Mst. Aisha vs. Baber alias Badal and another (2001 P.Cr.L.J 1250), Muhammad Javed Umrao. Vs. Miss Uzma Wahid (1988 SCMR 1891), Mst. Nayyara Naureen alias Shazia. Vs. Muhammad Arif Butt Sabri (2005 YLR 1047), Mst. Shazia Sharif. Vs. Zeeshan Ahmed Dodhy and 2 others (PLD 2001 Lahore 347), and Mst. Shagufta Yasmeen. Vs. Baber Ali and another (2006 MLD 136), asserts that the High Court has jurisdiction in appropriate cases to issue direction in the nature of habeas corpus and restore the custody to the mother from whom the child was forcibly snatched; that in the present case, the minor children were never removed and they are in proper custody since from beginning; that the children are being administered love and affection and that their affairs are being looked after and that keeping in view the above situation, no emergency circumstances existed warranting their removal of custody from the respondents and handing it over to the petitioner.

5.  I have considered the contentions of learned counsel for the parties and have gone through the case law referred to by them.

6.  In the present case, the minor children were never snatched from the custody of the mother in the near past and they were not in illegal and improper custody and their lives were not endanger due to the recent snatching, their education or sphere of love and affection was being affected. The judgments referred to by the learned counsel for the petitioner are such in which children of tender age, requiring hazanat of their mother, were snatched and Court considered that emergency powers of the High Court u/S 491 Cr.P.C may be exercised in favour of the mother to protect lives, restore love of minor and regulate their custody. In the present case, the children are living with the respondents since 1999. Children were produced on number of occasions before this Court. Even yesterday, they appeared before the Court. When the Court asked the children to go to their mother and stay with her for some time, the children shown some reluctance. They were fully satisfied with Respondents No. 1 and 2. The children were never snatched during the recent past or a sphere of emergency existed warranting transfer of their custody from the respondents to the petitioner. Moreover, the children are of understandable age. They are prima facie leading a satisfied life and their affairs are being looked after properly. From the documents available on the record, it appears that they are showing satisfactory performance in their education. However, the final decision, regarding the proper or improper custody and about the welfare of the children, can only be given by the learned Guardian Court, on the strength of evidence, recorded by it. For the time being, there is no emergency warranting the removal of their custody from Respondents No. 1 and 2 and handing it over to the petitioner. For the time being, the custody of the minors is not improper and that no emergency circumstances are in existence under which the provisions of Section 491 Cr.P.C may be invoked. Moreover, the judgments relied upon by the learned counsel for the petitioner, have no application to the facts and circumstances of the present case. While declaring so, I am fully inspired by the judgments referred to by the learned counsel for the respondents.

For the forging reasons, the present writ petition has no substance and the same is hereby dismissed.

 (J.R.)     Petition dismissed.