ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, L.A.R.K.A.N.A.
C.P.NO.S-315 of 2024
Petitioner: Mst. Hameeda Khatoon d/o Mureed Ali Luhar,
through Mr Imtiaz Ali Mugheri, Advocate
Respondents: S.H.O. P.S. Baqapur and others.
Mr. Abdul Hamid Bhurgri, Additional Advocate General, Sindh, for the officials' Respondents.
Mr. Ali Anwar Kandhro, Additional Prosecutor General, Sindh.
Date of Hearing: 27.08.2024
Date of Order: 27.08.2024
O R D E R
KHADIM HUSSAIN SOOMRO, J.:- Through this petition, the petitioner has prayed as under:
a). That this Honourable Court may be pleased to direct the respondents No.1 to 3 to provide legal protection to the petitioner and family against the highhandedness of the private respondents No.4 to 8 and further be pleased to direct them to take legal action against the private respondents in accordance with the law.
b). To direct respondents No.4 to 8 to restore the custody of the minor son of the petitioner to her in safe custody and to further direct them to furnish a bond of indemnity, making assurance that they will not cause harm to the person of the petitioner.
c). The cost of the petition will be awarded to the petitioner.
d). Any other relief that this Honourable Court deems fit and proper should be granted to the petitioner under the circumstances of the case.
2. The facts giving rise to filingan instant petition are that Petitioner Mst. Hameeda Khatoonhad married Respondent No.4, Shahid Ali Luhar in accordance with Sharia; through such wedlock, she gave birth to four sons, namely: 1). Muhammad Lucky, aged about seven years; 2). Shoaib Ali, aged about five years; 3). Mohsin Khan, aged about four years and4). Jamshed, aged about three years. Thepetitioner further assailed that in the month of December 2023, the behaviour of Respondent No.4 became harsh;he maltreated her even on petty matters and ultimately imposed an allegation of Karo Kari (Siahkari). She further asserted that Respondents No.5 to 8 held Jirga, levelled allegations against the petitioner that she had illicit relations with some stranger and tried to kill her, but Naikmards of the locality, namely Rais Sobdar Khan Luhar and others saved the petitioner and shifted her to her parents along with aforesaid minors who were subsequently snatched. The petitioner, having received threats at the hands of private Respondents, went alongwith her father to the office of Respondent No.1, S.H.O. P.S. Baqapur, Larkana, for protection and lodging complaint against Respondents No.4 to 7 and while narrating facts of threats issued by the private Respondents asked the Respondent No.1 to provide protection to them and to take legal action against highhandedness of Respondents No.4 to 8, but he refused to do so and driven out the Petitioner party from his office in disgraced manner.That the petitioner, being disappointed with the behaviour of Respondent No.1 for not providing protection and refusing to take action against Respondents No.4 to 8, approached Respondent No.3 and filed such complaint against the private Respondents, the same was endorsed to Respondent No.2 for resolving the issue as per law and report; the petitioner alongwith her father approached the Respondent No.2for redressal of her grievance, but he did nothing.Hence, this petition.
3. At the very outset, learned counsel for the petitioner submits that the minors,being of tender age,were residing with the petitioner right from the beginning; however, Respondent No.4, by dint of force, snatched the custody of the minors, who are now in his custody, which is not illegal but irregular. He further submits that Respondent No.4 has levelled the allegation of Siahkari against the petitioner; therefore, the petitioner has a reasonable apprehension that her minor children may be declared illegitimate and face harm, including potential harm to life, at the hands of Respondent No. 4.
4. Learned Counsel for Respondent No.4 (vakalatnama is not on record) submits that Respondent No.4 is the children's real father and has no adverse interest except the welfare of the minors. The petitioner is not entitled to the custody of the minors.
5. I have heard arguments from the learned counsel for the parties and have perused the material available on record.
6. The petitioner has filed the instant petition under the writ of habeas corpus for the recovery of her tender-age sons and temporary custody. Before touching on the merit of the case, it will be very appropriate to define and discuss the scope of the writ of Habeas corpus. According to the Black's Law Dictionary (Ninth Edition) Page No:778. The word "Habeas corpus" is a Latin term that literally means 'you have the body' or 'produce the body. Black Stone and Erwin Chemerinsky referred to the writ of habeas as the most celebrated writ of English Law. The origin of the writ habeas corpus is quite old; its traces are found in the Magna Carta, also known as 'the Great Charter'. This charter was issued by King John (r. 1199-1216) and granted to barons as an antidote to the political turmoil he faced in 1215. This charter is considered one of the greatest common law documents, placing the foundational stone of constitutional liberties. The Magna Carta consists of 63 clauses.8 Clause 39 is relevant, which says that "No freeman shall be seized, or imprisoned, or stripped of his rights or possessions, or outlawed, or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so except by the lawful judgment of his equals and the law of the land".
7. Scope of Habeas Corpus-Halsbury's Laws of England asserts that the remedy of habeas corpus is accessible in both criminal and civil proceedings, provided that there is legally unjustified deprivation of personal liberty. While several historical applications of the writ hold limited contemporary significance, it has played a significant role in securing the freedom of enslaved aliens brought to the country in the past. In modern practice, applications to the High Court for writs of habeas corpus have been concerned primarily with:
(1) the committal or detention of prisoners;
(2) the detention of persons in pursuance of deportation orders and orders for the extradition or rendition of fugitive offenders;
(3) the detention of immigrants who have been refused leave to land in the United Kingdom;
(4) the detention of persons suffering from mental disorders;
(5) the legal right to the custody of minors.
8. Halsbury's Laws of England (Fourth Edition-Volume II), Page No:776, deals with habeas corpus with a specific emphasis on the custody of minors.According to Halsbury's Laws of England, if an individual with a legal entitlement to the custody of a minor, such as a parent or guardian, is wrongfully deprived of that custody, they can seek his/her restoration through the writ of habeas corpus. In the context of issuing the writ, the unlawful detention of a minor, when they are separated from the person legally entitled to their custody, is considered equivalent to the unlawful imprisonment of the minor. Therefore, in applying for the writ, it is unnecessary to allege that any form of restraint or force is being used against the minor by the person currently in custody and control of the minor.
9. According to Halsbury's Laws of England, if a person with the legal right to have custody of a child is unfairly denied custody, he/she can use the writ of habeas corpus to seek the child's return. In this context, a few selected paragraphs from Halsbury's Laws of England, Fourth Edition, Vol.24 are reproduced as under :-
(i) In the Halsbury's Laws of England, Fourth Edition, Vol.24 (para 511) that:
"511. ...Where in any proceedings before any court the custody or upbringing of a minor is in question, then, in deciding that question, the court must regard the minor's welfare as the first and paramount consideration and may not take into consideration whether from any other point of view the father's claim in respect of that custody or upbringing is superior to that of the mother, or the mother's claim is superior to that of the father."
(ii) In McGrath, Re, (1893) 1 Ch 143, it was observed that:
"The dominant matter for the consideration of the court is the welfare of the child. But the welfare of the child is not to be measured by money only nor merely physical comfort. The word 'welfare' must be taken in its widest sense. The moral or religious welfare of the child must be considered as well"
(iii) In Howarth v. Northcott (152 Conn. 460), the Supreme Court of Connecticut held that:
"The employment of the forms of habeas corpus in a child custody case is not for the purpose of testing the legality of a confinement or restraint as contemplated by the ancient common law writ, or by statue, but the primary purpose is to furnish a means by which the court, in the exercise of its judicial discretion, may determine what is best for the welfare of the child, and the decision is reached by a consideration of the equities involved in the welfare of the child, against which the legal rights of no one, including the parents, are allowed to militate."
10. In Pakistan, habeas corpus proceedings concerning temporary custody of minors frequently favour maternal claimants, but it depends on the facts and circumstances of each case. Conversely, jurisdictions such as India, the United Kingdom, and the United States adopt varying approaches. The Supreme Court of the United Kingdom has historically exhibited a propensity to favour paternal custodial claims. In India, the Supreme Court mandates that for habeas corpus relief to be granted, the custodian must be proven to hold the child's custody unlawfully. Common law jurisdictions generally prioritize the child's welfare in custody determinations, often placing lesser emphasis on the emotional considerations of the involved parties, including the child. A few judgments of the aforesaid foreign courts are discussed as under:-
11. In the matter of KL (A Child) [2013] UKSC 7518. This appeal pertains to an individual identified as K, born in the State of Texas and possessing United States citizenship. The child's parents, both U.S. citizens, experienced a breakdown in their marriage, leading to divorce proceedings in the Texas state court. Consent orders were made, granting the mother custody of the child while the father was posted abroad on military service. In 2008, without the father's consent, the mother took the child to London. In 2010, a custody hearing took place in the Texas court, where it was held that it was in the child's best interests to reside with the father and have contact with the mother. As a result, the child returned to the U.S. The mother then initiated proceedings under the Hague Convention in the U.S. Federal District Court, alleging that the child had been wrongfully retained in Texas by the father and that the child's habitual residence was in the U.K. The District Court sided with the mother, ordering the father to return the child and the child's passport to the mother. Subsequently, the mother returned to the U.K. with the child, where they have lived since. The father appealed the District Court's decision, and in July 2012, the U.S. Court of Appeals for the Fifth Circuit overturned the ruling, ordering the child's return to the U.S. However, the mother did not comply with the order, prompting the father to initiate proceedings under the Hague Convention in the U.K. On 17 January 2013, the High Court judge dismissed the father's applications, and this decision was upheld on appeal to the Court of Appeal. The Supreme Court granted the father permission to appeal, focusing on whether the child had been wrongfully retained in the U.K. after the U.S. Court of Appeals' decision and whether the U.K. court should order the child's return to the U.S. under its inherent jurisdiction, even if not required by the Hague Convention.
12. The Supreme Court of India requires that the person currently holding custody of a minor child must have unlawful custody in order for the court to address and decide on the custody question in a habeas corpus case. Common law countries generally prioritize the welfare of the child more strictly, with less consideration for the emotional aspects of the parties involved, including the children. In the case of Nithya Anand Raghvan v. State (N.C.T. of Delhi) and another (2017) 8 SCC 454, the Supreme Court of India, while discussing different reported cases such as Kanu Sanyal v. District Magistrate, Darjeeling, (1973) 2 SCC 674, Sayed Saleemuddin v. Rukhsana, (2001) 5 SCC 247, Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 S.C.C. 42, and Paul Mohinder Gahun Vs. State (N.C.T. of Delhi), 2004 S.C.C. OnLine Del 699 addressed the issue of custody of a minor child in a petition for a writ of habeas corpus. The court emphasized that the principal duty of the court in such matters is to determine whether the child's custody is unlawful and if changing custody would be in the best interest of the child's welfare. The court highlighted that the welfare of the child should be the paramount consideration in these cases rather than solely focusing on the legal rights of the parties involved. The High Court, when dealing with a habeas corpus petition concerning a minor child, has the discretion to either order the return of the child or decline to change custody, taking into account all relevant facts and circumstances. It was emphasized that the decision of the court must depend on the specific circumstances of each case and the welfare of the child. The court also noted that the remedy of a writ of habeas corpus cannot be used solely for enforcing foreign court orders and that alternative legal remedies may be available for enforcing such orders. Finally, it was mentioned that if the private respondent in the petition is the natural guardian of the minor, it can be presumed that their custody is lawful. Custody may only be changed in exceptional situations deemed necessary for the child's well-being. In such cases, the other parent can be directed to pursue the appropriate legal remedy for seeking custody.
13. Supreme Court of Pakistan on custody of minors. A brief study of case laws from the Supreme Court of Pakistan reveals that the court has mostly favoured mothers in matters of custody of minors. However, it is crucial to recognize that each case is assessed based on its unique circumstances and with a focus on the best welfare of the child. The Supreme Court of Pakistan considers the well-being and best interests of the child as the primary factors in determining custody. Various elements, such as the child's welfare, emotional and physical needs, and the ability of each parent to provide a suitable environment, are taken into account. The case laws wherein the Supreme Court of Pakistan has decided in the favour of the mothers for the custody of minors are given as under;
14. In the case of Raja Owais (2022 SCMR 2123), the honourable apex court has given custody of the minors to the mother based on the desire expressed by the children. The relevant part of the judgment is reproduced as under:-
"9. In this case, the Senior Civil Judge (Family Division) considered the welfare of the children based on their ages and gender. The mother is an educated woman running a private school. She lives in her own house and is able to care for the children. One of the factors that prevailed with the Senior Civil Judge was the wishes of the four children as they made their statement in court that they were desirous of living with their mother. In order to ascertain the desire of the children as of today, we asked each of the children, who are present in court, about their preference. We were informed by each of the children that they desired to live with their mother. We find that the children were confident and were able to easily express their wishes. The desire as expressed by the children is relevant particularly when the child is able to express his or her mind on preference. Although, this cannot be the sole factor, it is a relevant factor and we find that the Appellate Court totally ignored this aspect of the matter particularly with reference to Ummama Awais and Ayesha Awais, who of their own free will, left their father's home to reside with their mother on 15.11.2017 and have since been living with their mother"
15. In the case of Shazia Akbar Ghalzai (2019 SCMR 116), the honourable apex court has given custody of the minors to the mother. The relevant part of the judgment is reproduced as under:-
"5. Having heard the learned counsel for the parties we find that the minor was forcibly taken away from the lawful custody of his mother within the territorial limits of Islamabad. The minor was thereafter moved to Lahore and later to Karachi in order to evade the process of law. This minor is about one year old and obviously needs his mother to survive. No reason whatsoever has been alleged or pleaded that may furnish any justification to deny custody to the real mother and hand him over to Respondent No.l. Prima facie Petitioner has a right to have custody of the suckling baby. Such right is recognized by the law. We are also convinced that there are material and overwhelming factors pointing towards welfare of the minor being best served and protected, if the custody of minor is handed over to the petitioner. We are of the opinion that Islamabad High Court erred in law in refusing to exercise jurisdiction despite the fact that the custody of the child was forcibly taken away from the petitioner while both were residing within the territorial jurisdiction of the Islamabad High Court."
16. It was held by the honourable Supreme Court in Muhammad Javed Umrao v. Miss Uzma Vahid (1988 SCMR 1891) that section 491, Cr.P.C and the provisions of the Guardians and Wards Act, 1890, are neither mutually exclusive nor do they overlap or nullify one another. Consequently, issues pertaining to the permanent custody of a minor fall squarely within the jurisdiction of the guardian court as delineated by the Guardians and Wards Act 1890. Remedies provided under Section 491 of the Criminal Procedure Code (Cr.P.C.) are not applicable for the determination of permanent custody of a minor. However, courts are required to exercise their jurisdiction under Section 491 Cr.P.C. when a matter involving the treatment of a minor in accordance with the law arises, pending the guardian court's determination on the issue of permanent custody
17. It was held by the honourable Supreme Court in Nisar Muhammad v. Sultan Zari (PLD 1997 SC 852) that the availability of a remedy under the Guardians and Wards Act, 1890 does not preclude the exercise of jurisdiction under Section 491 of the Criminal Procedure Code (Cr.P.C.). The mere existence of such a remedy does not constitute a valid basis for refusing judicial intervention in matters concerning the custody of a minor, particularly where a parent is otherwise not entitled to custody. In para. 9 of the said judgment, the following was held:
"In the judgment of Mst. Rizwana Bokhari's case (supra), Muhammad Munir Khan. J. (as his Lordship then was) had rightly laid down the law which we are inclined to approve that on examination of the various provisions of Muslim Law, the Criminal Procedure Code, particularly its section 491, Cr.P.C. and sections 361 and 363 of the P.P. C. indicate that mother is entitled to 'hizanat' of her male child below the age of 7 years, failing that the mother's relations under Muslim Personal Law are entitled to the custody of the minor. Since the two male minors in this case are admittedly below 7 years in age and the three females have not yet attained puberty all the three being less than 8 years, the respondent is, therefore, prima facie entitled to 'hizanat' of all the 5 for the limited purpose of section 491, Cr.P.C. at the moment and the rights of the petitioners to the custody of the aforesaid minors has not accrued so far. In these circumstances, the custody of the aforesaid minors with the petitioners was, therefore, rightly declared illegal or at least improper by the learned Chief Justice of the Peshawar High Court. The learned Chief Justice was also justified to have expressed more than once that ultimate determination of entitlement of the custody shall of course lie with the Guardian Judge to whom the parties were directed to approach, if they so desired."
18. In Naziha Ghazali v. The State (2001 SCMR 1782), a Petition under Section 491 of the Criminal Procedure Code (Cr.P.C.) was filed by the mother approximately six months after the cause of action arose. The Supreme Court, in its wisdom, observed that there was no adequate explanation provided for the delay in reporting the removal of the minor from the mother's custody. The court concluded that the minor's custody with the father was not illegal, particularly in the absence of any ongoing proceedings before the guardian court for the determination of permanent custody
19. It was held by the honourable Supreme Court in Khalida Parveen v. Muhammad Sultan Mehmood (PLD 2004 SC 1) that in exercising jurisdiction under Section 491 of the Criminal Procedure Code (Cr.P.C.), the court should eschew technical legalities and focus primarily on the welfare of the child. The court's primary objective should be to ensure that the rights conferred upon the child are adequately protected in a manner that serves the child's best interests.
20. It was held by the Honourable Supreme Court in Mst. Nadia Perveen v. Mst. Almas Noreen and others (PLD 2012 SC 758) that jurisdiction under Section 491 of the Criminal Procedure Code (Cr.P.C.) is to be exercised only in cases involving children of very tender age who have been recently removed from lawful custody, and where there is a genuine sense of urgency. In the case at hand, the children were neither of tender age nor had they been recently removed from the mother's custody. Consequently, it was determined that the circumstances did not warrant the exercise of jurisdiction under Section 491 Cr.P.C.
21. The honourable Supreme Court of Pakistan, in the case of Mirjam Abberras Lehdeaho v. Station House Officer, Police Station Chung, Lahore and others (2018 SCMR 427), wherein it was held that:
"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 restored 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 question of ouster of jurisdiction of the High Court on account of provisions of section 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."
22. Now turning towards 199(1)(b)(i)Constitutional Petition Habeas Corpus Writ of habeas corpus.The jurisdiction of a court hearing a habeas corpus petition concerning a minor differs from that in a standard habeas corpus petition, where the court primarily focuses on the recovery of an individual unlawfully detained to protect their right to life under Article 9 of the Constitution. Minors' rights under Article 9 of the Constitution include the right to be in the custody of the person legally entitled to custody until the minor reaches the age of majority. This custody can be maintained by parents, relatives, or the State. The court's role in a habeas corpus petition filed on behalf of a child extends beyond addressing illegal detention to ensuring that the interim custody of the minor, pending determination by a Guardian Court, is managed in accordance with legal standards. The jurisdiction of a court in adjudicating a habeas corpus petition involving a minor is distinct from that of a standard habeas corpus petition, which primarily aims to recover a minor unlawfully detained to protect their rights to life and liberty under Article 9. For a minor, the right to liberty under Article 9 includes the right to be in the custody of the legally designated custodian until the minor reaches the age of majority. This custody may be maintained by parents, relatives, or the State. Therefore, the court's role in a habeas corpus petition on behalf of a child extends beyond addressing illegal detention to ensuring that the interim custody of the minor, till a decision by a Guardian Court, is managed in compliance with the law.A habeas corpus petition filed concerning the lawful treatment of a minor should not be conflated with issues of abduction or the illegal detention of an adult. In such matters, the primary consideration is the welfare of the minor, as recognized under common law jurisdictions.
23.In the instant case, the petitioner was married to respondent No.4 about ten years back; out of such wedlock, she gave birth to the four sons named above. In the month of April 2024, the private respondents declared her KA.R.I. in a Jirga and wanted to kill her; however, on the intervention of one Nekmard she was rescued and sent to her parents' house. Recently, the custody of the minors was snatched from her. She, therefore, has prayed for the restoration of custody of the minors, together with legal protection.
24. In compliance with the order dated 19.08.2024, S.H.O. P.S. Baqapur, Larkana, is present along with minors; Respondents No.4 to 8, namely, Shahid Ali, Muhammad Sharif, Muhammad Mithal, Farhan Ali and Rizwan Ali, all by caste Luhur, have appeared in person, while Mr Rafique Ahmed K. Abro advocate files Vakalatnama on their behalf, taken on record. The private respondents have produced the minors, namely, 1. Muhammad Luch, 2.Shoaib Ali, 3. Mohsin Khan and 4. Jamshed.
25. The marriage between the petitioner and respondent No.4 is said to be still intact. The custody of the minors has been recently snatched from her by the dint of force. The petitioner, being a real mother, has a right of hizanat to keep the custody of the minor with her. Consequently, the custody of three minors, namely, Shoaib Ali, Mohsin Khan and Jamshed, is temporarily handed over to the petitioner.Minor Muhammad Lucky, who is willing to go with his father rather than his mother, is about seven years old. The petitioner states that she has no objection if the minor, Muhammad Lucky, is allowed to remain with his father, i.e. respondent No.4. Nevertheless, the best course for the parties for regulating the custody of minor children is to seek a remedy before the appropriate forum, i.e. Guardian & Wards Court, for which this court has no jurisdiction.
26. In consideration of the foregoing, custody of the three minor children referenced herein has been granted to the petitioner, contingent upon the petitioner providing a P. R Bond in the amount of Rs.100,000 before the Additional Registrar of this court. Additionally, the parties are directed to seek adjudication from the Guardian and Wards Court for the custody of the minors.
27. Before parting with the judgment, it is pertinent to note that both the petitioner and her counsel have asserted that the petitioner has been declared as a Kari, thereby placing her life in imminent danger. The petitioner contends that she faces a significant risk of being killed by the private respondent under the guise of so-called honour. Given the grave apprehensions expressed by the petitioner, this court cannot remain indifferent. Consequently, the Deputy Inspector General of Police (D.I.G.P.), Larkana, and the Senior Superintendent of Police (S.S.P.), Larkana, are hereby directed to provide appropriate protection to the petitioner and her children. Such compliance reports should be submitted through the Additional Registrar of this court. The office is directed to communicate a copy of this order to the office of the Additional Advocate General, Sindh, as well as the Additional Prosecutor General, Sindh (D.I.G.P.), Larkana, and the Senior Superintendent of Police (S.S.P.), Larkana, and S.H.O P.S Baqapur Larkana for correspondence and compliance.
JUDGE
Manzoor