IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA.
Cr. Misc. Appln. No. S-233 of 2020
Petitioner Mst. Rabia Kalhoro,
Through Mr. Rafiq Ahmed K. Abro, Advocate.
Respondent No.4. Hafiz Basheer Ahmed,
Through Mr. Nizam-u-Din Abro, Advocate. Respondent No. 3 called absent.
Respondents S.H.O P.S. Waleed Larkana and others, Through Mr.Ali Anwar Kandhro, Additional Prosecutor General.
Date of hearing 16-10-2020
Date of decision 29-10-2020
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O R D E R
ZULFIQAR ALI SANGI, J. Applicant Mst. Rabia Kalhoro through this application U/S 491 Cr.P.C. has prayed that order dated: 19-08-2020 passed by the 1st Additional Session Judge Larkana may be set aside and further prayed for directions to the respondents for handing over the custody of children to her, she had filed an application under section 491 Cr.P.C before the learned Sessions Judge, Larkana with the following prayers:-
i) Court may be pleased to issue Rule nisi by directing the official respondents to produce the minor detainees, namely, Mahnoor, Muhammad Asim. & Yashpeen before this court and further be pleased to handover their custody to applicant as applicant is their real mother.
ii) To award costs of this application to applicant.
iii) Any other relief available under the circumstance may also be granted to applicant.
2. The facts of the application are that the applicant was married with respondent No.3 in the year 2006 and from the said wedlock she has given birth to 03 children, after passage of sometime the respondent No.3 stopped maintenance and started maltreating her on petty matters. The applicant being respectable lady made complaints to her parents as well as parents of respondent No.3 but he did not change his attitude, ultimately she was driven out from the house after snatching all the dowry articles along with 03 children, she came to the house of her parents and has been residing there. It is further stated in the said application that on 2nd day of Eid-ul-Uzha dated: 02.08.2020 the respondent No.3 & 4 duly armed with pistols entered into the house of parents of the applicant and on show of weapons taken away all 03 minor children. The applicant party approached the elders of respondent No.3 and also approached to respondent No.3 & 4 for return of minor children but they refused and on the contrary they issued threats of dire consequences to her and her other family members. It is further stated in the application that the applicant also approached to respondent No.1 for redressal of her grievance but of no avail and the detainees are minors and two of them are female and one is a minor boy, the applicant is real mother, therefore, the right of Hizanat also lies with the applicant as minor children need proper care of their mother.
3. The learned Ist Additional Sessions Judge, Larkana issued notices to the respondents, whereupon respondent No.4 filed his written reply, so also respondents No.1 and 2 filed their written statements and then learned trial court after hearing the parties passed the impugned order dated 19.08.2020 and dismissed the application, hence she has filed this application.
4. Learned advocate for the applicant has contended that applicant is real mother of minor children/detainees who have forcibly been taken away by respondents No.3 and 4 on the 2nd day of Eid-ul-Uzha; that she has a right of Hizanat in her favour as two of the minors are girls and they need proper care of their mother/applicant; that the learned trial court without going through the reports filed by respondents No.1 and 2, has dismissed the application; that mother cannot be deprived from her minor children particularly when the minors are girls, they need proper love, affection and care of applicant but the learned trial court without appreciating the legal position and without directing the officials for producing the minors/detainees has dismissed the application in hasty manner; that the impugned order is against the principles of natural justice; that the impugned order is patently illegal and same is liable to be set-aside and the respondents No.1,2 and 5 be directed to produce the detainees/minors before this court and their custody may be handed over to applicant/mother; that there is no alternate efficacious and speedy remedy, therefore, she invoked the jurisdiction of this court by way of this application.
5. Learned counsel for respondent No.4 has argued that brother of respondent No.4, namely, Muhammad Ali was married with applicant and he was residing separately; that the respondent No. 3 shifted to Karachi along with his family and permanently residing at Karachi since 1998; that the children of applicant are residing with their father since their birth they were not taken forcibly; that he has no concern with his brother but his name has formally been added in the application with mala fide intention in order to drag him and lose his reputation. Lastly, he prays for dismissal of instant criminal misc. Application.
6. The learned Additional Prosecutor General appearing on behalf of the state has supported the contentions advanced by the learned counsel for the respondents and has further argued that the proper forum for deciding issue between the parties is the Family Court which is competent to regulate the custody of minor in case of a dispute between the parties. He further submit that since the children and their father are residing at Karachi therefore this Honourable court has no jurisdiction under section 491 Cr.P.C to entertain this matter.
7. I have given due consideration to the submissions of learned counsel for the applicant, learned counsel for respondent No.4 and the learned Additional Prosecutor General and have perused the material available on the record with their able assistance.
8. Before discussing the merits of the case, it would be in all fairness to say that there can be no exception to legal position that ‘Guardian Court’ is the final Arbiter for adjudicating the question of custody of children hence normally the legal course for obtaining custody of a child for a parent or one interested in obtaining custody of the child lies with Guardian Court within meaning and scope of Section 25 of Guardians & Wards Act. However, where there appears an exception to normal situation, the child is not left to suffer consequences of procedural hurdles and lethargy of the system at the cost of his (child’s) welfare rather one, deprived of lawful custody, has been provided a way to invoke jurisdiction of Court (s) under section 491 Cr.P.C as interim measure till final Arbiter decides the question of custody finally. Needful to add that a child normally reflects an innocent mind hence any abnormal situation including forcible or deceitful switching of custodian may affect upon such innocent mind. This appears to be the reason that legal system does allow a room for invoking jurisdiction under section 491 Cr.P.C even though (normally) the custody of child with mother or father (complained snatcher) can’t be said as illegal.
9. I shall take no exception in adding that if any of the parents intend to seek his / her declaration as guardian of minor couple with right to retain child’s custody or even is interested in obtaining custody, he / she (as the case may be) is required to approach the guardian Court. Thus, an abnormality (exception) shall only start when the one, otherwise entitled for obtaining lawful custody, resorts to an illegal course i.e ‘illegally removing the child from lawful custody’ which, if is couple with any harm to the child will justify invoking jurisdiction within meaning of Section 491 Cr.P.C so as to ensure interim measure thereby leaving things open to be adjudicated by competent Guardian Court , being the Final Arbiter. I would also add that earlier exceptional circumstances to justify invoking jurisdiction under section 491 Cr.P.C. were confined to:
i) if the children are of very tender ages;
ii) they have quite recently been snatched away from lawful custody; and
iii) there is a real urgency because of likely of any harm or prejudice to welfare of minor;
as was enunciated in the case of Mst. Nadia Perveen V. Mst. Almas Noreen and others (PLD 2012 S.C 758), however, in recent case of Mirjam Aberras Lehdeaho v. SHO (2018 SCMR 427) the honourable Apex Court went on a little further while allowing that if there exists emergent situation then the Court may consider other aspects of welfare of minor. The relevant portion reads as:-
“22. The Guardian Court is the final Arbiter for adjudicating the question of custody of children. However, where a parent holding custody of a minor lawfully has been deprived of such custody, such parent cannot be deprived of a remedy to regain the custody while the matter is sub judice before a Guardian Court. Therefore, in exceptional cases (like the instant case), where the High Court finds that the best interest and welfare of the minor demand that his / her custody be immediately resorted to the person who was lawfully holding such custody before being deprived of the same, the Court is not denuded of jurisdiction to pass appropriate orders under section 491, Cr.P.C. directing that custody be restored to that person as an interim measure pending final decision of the Guardian Court. While the tender age of the minor is always a material consideration but it is not the only consideration to be kept in mind by the High Court. Other factors like best interest and welfare of the minor, the procedural hurdles and lethargy of the system, delays in finalization of such matters, the handicaps that the mother suffers owing to her gender and financial position, and above all the urgency to take appropriate measures to minimize the trauma, emotional stress and educational loss of the minor are equally important and also need to be kept in mind while granting or refusing an order to restore interim custody by the High Court. The two provisions of law namely section 491 Cr.P.C and section 25 of the Guardians and Wards act deal with two different situations. As such, the provisions of sections 12 or 25 of the Guardians and Wards Act or pendency of proceedings under the said provisions does not arise. There is no overlap between the two provisions as both are meant to cater for different situations, the first to cater for an emergent situation, while the latter to give more long term decisions regarding questions relating to guardianship of minors keeping in view all factors including their best interest and welfare. “
10. Perusal of the record shows that in the present case it has been brought to the notice of the learned trial court so also this court that the respondent No. 3 along with the minors is residing in Karachi and the minors are residing with him since their birth. None of the minor is suckling baby and no any urgency is shown by the counsel for the applicant which could be taken as ‘exceptional circumstances’ justifying invoking jurisdiction by section 491 Cr.PC, which, as discussed, could only be invoked in exceptional circumstances.
11. Learned 1st Additional Session judge after hearing the parties gave the following observations in the impugned order and the same are reproduced as under:-
“5. After hearing learned counsel for applicant, respondent No.4 in person. I have gone through material available on the record including reports submitted by the respondents No. 1 and 2. Admittedly, none of the minor is suckling baby, the respondent No.3 is husband of the applicant while respondent No.4 is brother of respondent No.3, no document regarding incident allegedly took place on 02-8-2020 is brought on record by the applicant in support of her version. Moreover, reports submitted by the official respondents No. 1 and 2 show that the respondent No. 3 Muhammad Ali (applicant’s husband) is residing at Karachi alongwith the children and this fact is affirmed by respondent No. 4 through his affidavit, who is real brother of respondent No. 3. Accordingly, at this stage, a real father cannot be declared an offender of the alleged incident shown by applicant; furthermore, minors are residing with their father at Karachi. Accordingly, application at hand stands dismissed for want of jurisdiction.”
12. Another aspect of the present case is that the application was filed under section 491, Cr.P.C before the trial court so also before this court, in the aforesaid section words “within the limits of its appellate criminal jurisdiction” are used which itself indicate that this court can exercise its jurisdiction only within the limits of appellate criminal jurisdiction not the matters pertain to outside of its criminal appellate jurisdiction. For reference section 491 Cr.P.C is reproduced as under:-
491. Power to issue directions of the nature of a Habeas Corpus. Any High Court may, whenever it thinks fit, direct:
(a) that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law:
(b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty;
(c) that a prisoner detained in any jail situate within such limits be brought before Court to be there examined as a witness in any matter pending or to be inquired into in such Court;
(d) that a prisoner detained as aforesaid be brought before a Court-martial or any Commissioners for trial or to be examined touching any matter pending before such Court-martial or Commissioners respectively.
(e) that a prisoner within such limits be removed from one custody to another for the purpose of trial; and
(f) that the body of defendant within such limits be brought in on the Sheriff's return of cepi corpus to a writ of attachment.
(2) The High Court may, from time to time, frame rules to regulate the procedure in the cases under this section.
(3) Nothing in this section applies to persons detained under [any other law providing for preventive detention.]
13. Since the minors are residing with their father at Karachi as reported by the respondents No 1, 2 and 4 and admitted by the counsel for the applicant during his arguments hence there prima facie never accrued first step of abnormality i.e ‘illegal removal of child from lawful custody’ which, alone, is sufficient to let the normal legal course prevail. In addition, the same is outside of the limits of appellate criminal jurisdiction of this court therefore in my view this court has no jurisdiction to entertain the instant application and the same is hereby dismissed. It is also observed that the impugned order passed by the learned 1st Additional Session Judge Larkana seems to be an elaborate, speaking one, and it does not warrant interference of this court. However the applicant is at liberty to approach the proper forum which includes the Family/Guardian Court having jurisdiction.
14. The Cr. Misc. Application is disposed of in the above terms.
JUDGE