2020 P Cr.

L J 1079
[Sindh]
Before Nazar Akbar, J
Sardar MUHAMMAD BUX MAHAR through Attorney---Petitioner
Versus
Mst. SAMAN MUHAMMAD MAHAR and another---Respondents
C.P. No. S-836 of 2019, decided on 16th August, 2019.
(a) Criminal Procedure Code (V of 1898)---
----S. 491---Constitution of Pakistan, Art. 199---Guardians and Wards Act (VIII of
1890), Ss. 25, 5 & 7---Habeas corpus---Recovery and custody of minors---Defective
forum---Scope---Petitioner assailed order of Sessions Judge whereby he had directed the
petitioner to produce minors before the court---Petitioner had filed application under Ss.
5 & 7 of Guardians and Wards Act, 1890 against his wife seeking declaration that the
welfare of the minors was in their custody with father---Mother of minors had filed
application under S. 491, Cr.P.C. and had prayed for their recovery and custody---
Validity---Held; that none of the parties had filed application in terms of S. 25 of
Guardians and Wards Act, 1890 for determination of their title as "guardian" to claim
custody of the wards as against the other---Parties had chosen a defective forum for
redressal of their grievance and/or claim against each other---High Court converted the
petition under S. 491, Cr.P.C. into an application under S. 25 of Guardians and Wards
Act, 1890 and changed the application under Ss. 5 & 7, Guardians and Wards Act, 1890
into written reply of the application--- Constitutional petition was disposed of,
accordingly.

(b) Guardians and Wards Act (VIII of 1890)---

----Ss. 7 & 8---Power of court to make order as to guardianship---Person entitled to
apply for such order---Scope---Provisions of S. 7 of Guardians and Wards Act, 1890 are
generally invoked by strangers to the minor children for their appointment as guardian
to look after the welfare of minors in the event of death of at least one of the natural
guardians---Section 7 is to be read with S. 8 of Guardians and Wards Act, 1890, which
provides that such an application can be made by "the person desirous of being"
appointed as guardian of minor---Parents are natural guardians and therefore, they do
not require an order of the court to support their right to act as guardian of the minors---
Court under S. 7 of Guardians and Wards Act, 1890 is not empowered to decide the title
of guardian about custody of the ward.
Ms. Arjumand Khan holding brief for Ms. Ismat Mehdi for Petitioner.
Muhammad Imtiaz Khan for Respondents along with Respondents in person.
ORDER
NAZAR AKBAR, J.---The Petitioner through the instant petition has challenged the
order dated 25.6.2019 passed by the VII-Additional Sessions Judge South, Karachi in
Criminal Miscellaneous Application No.545/2019 whereby pending the said Cr. Misc.
Application the learned Additional Sessions Judge has been pleased to direct the
Petitioner to produce the minors/detenues before the Court on 29.6.2019 at 10:00 a.m.
positively, failing which the coercive measures will be taken for production of the
minors before the Court.
2. The background of this petition is that Respondent No.1/wife of the Petitioner
through Criminal Miscellaneous Application under section 491 of the Cr.P.C. being
mother has prayed for recovery and production of detenues namely Master Ghulam
Muhammad Khan Mahar and Baby Anaya Muhammad Mahar as according to her the
said minors have been unlawfully detained by the Petitioner. The Petitioner has
contested the Criminal Misc. Application and he has also filed a Guardians and Wards
Application No.939/2019 under sections 5 and 7 of the Guardians and Wards Act, 1890
(hereinafter G&W Act) in the Court of Family Judge (South) Karachi against
Respondent No.1/his wife seeking declaration that the welfare of the minors lies in the
custody of the minors with the Petitioner. After hearing learned counsel for the parties at
some length I have noticed that unfortunately both the parties have filed different
applications before the Courts below for a judicial pronouncement about their right of
custody of the minors but none of them has filed a proper applications under section 25
of the Guardians and Wards Act, 1890 for the said purpose. The parties are parents of
two minors namely Master Ghulam Muhammad Khan Mahar and Baby Anaya
Muhammad Mahar. The Respondent is mother and she is represented by Mr.
Muhammad Imtiaz Khan, advocate, who instead of filing application under section 25
of the G&W Act for the custody of the children before the Guardians and Wards Court,
has filed a misconceived application under section 491, Cr.P.C. before the Court of
District Judge (South), Karachi. Same is the position of the Petitioner, father of the
minors, his counsel, too, instead of filing an application under relevant provision of
G&W Act for claiming exclusive right of custody of the minors/ wards, has filed an
application under sections 5 and 7 of the G&W Act. Unfortunately the book of
Guardians and Wards Act, 1890 available in my chamber shows that section 5 of the
said Act has been omitted by Ordinance, 27 of 1981. And the provision of section 7 of
G&W Act are generally invoked by strangers to the minor children for their appointment
as guardian to look after the welfare of minors in the event of death of at least one of the
natural guardians. Section 7 is to be read with section 8 of the G&W Act, which
provides that such an application can be made by "the person desirous of being"
appointed as guardian of minor. Both the parents are natural guardians and, therefore,
they do not require an order of the Court to support his/her right to act as guardian of
the minors. The Court under section 7 of the G&W Act is not empowered to decide title
of guardian about custody of the ward. The respective prayers of the Petitioner and
Respondent in their applications before lower Courts reproduced below show that
"custody of the minors" is the only issue between the two natural guardians.
Mother's prayer in Cr. Misc. Father's prayer in Application No.939 of 2019
Application No.545 of 2019 under under sections 5 and 7 of the G&W Act.
section 491, Cr.P.C.
a. The Respondent No.1 may be i) Declare that the welfare of the
directed to recover and produce the minors/wards lies in their remaining in the
Detenues (Minors) namely Master custody of the applicant. ii) Declare that the
Ghulam Muhammad Khan Mahar custody of the minors/wards with the
and Baby Anaya Muhammad Mahar Applicant is lawful and the Applicant be
son and daughter of Sardar permitted to remove the minors from the
Muhammad Bukhsh Khan Mahar jurisdiction of this Hon'ble Court as and when
before this Hon'ble Court who are so needed / required. iii) Grant any other
presently confined in House and/or further relief which this Hon'ble Court
 No.38/1, SGM Villa, Khayaban-e- deems fit and proper in the circumstances of
Ameer Khusroo, Phase-VI, DHA, the case.
Karachi. b. Handover the custody of
the Detenues namely Master
Ghulam Muhammad Khan Mahar
and Baby Anaya Muhammad Mahar
son and daughter of Sardar
Muhammad Bukhsh Khan Mahar to
the Applicant who is their real
mother. c. The respondent No.2
may be directed not to remove the
custody of Detenues namely Master
Ghulam Muhammad Khan Mahar
and Baby Anaya Muhammad Mahar
son and daughter of Sardar
Muhammad Bukhsh Khan Mahar
from the jurisdiction of this Hon'ble
Court without permission.
3. The perusal of prayers of the parents in their separate misconceived applications
reflect that both have common object before them. The unfortunate object is to take
exclusive custody of children to the exclusion of the other. It may not be unfortunate for
either of the parents but at the end of the day, irrespective of who wins and who loses in
Court, it would be unfortunate for the subject of controversy, i.e. the innocent children.
In my humble view both the counsel were not pursuing the case of their respective client
in accordance with the relevant law applicable in the facts and circumstances of the
parties. It was simply a case of an application under section 25 of the G&W Act which
reads as follows:-
25. Title of guardian to custody of ward. (1) If a ward leaves or is removed from the
custody of a guardian of his person, the Court, if it is of opinion that it will be
for the welfare of the ward to return to the custody of his guardian, may make an
order for his return, and for the purpose of enforcing the order may cause the
ward to be arrested and to be delivered into the custody of the guardian.
(2) For the purpose of arresting the ward, the Court may exercise the power conferred
on a Magistrate of the first class by section 100 of the [Code of Criminal
Procedure, (1898 Act V of 1898)]
(3) The residence of a ward against the will of his guardian with a person who is not
his guardian does not of itself terminate the guardianship.
However, none of them has filed an application in terms of section 25 of the G&W Act
for determination of his/her title as guardian to claim custody of the wards as against the
other keeping in view the welfare of the wards. Be that as it may, after detailed
arguments, it is even conceded by both the learned counsel that they are contesting
about custody of the children, and both claim that welfare of children lies in their
custody being with them as opposed to the other side.
4. In view of the above facts and the nature of dispute between the parties, since both
the parties seem to have chosen a defective forum for redressal of their grievances
and/or claim against each other, this petition is disposed of along with pending
application(s) in the following terms:-
 (i) The Cr. Misc. Petition No.545/2019 filed by the Respondent under section 491,
Cr.P.C. pending in the Court of VII Additional Sessions Judge, South, Karachi is
converted into an application under section 25 of the G&W Act. The Court of
VII Additional Sessions Judge, South Karachi immediately send the record of
Criminal M. A. No.545/2019 to the Court of Family Judge South, Karachi
already seized of Guardian and Ward Application No.939/2019 filed by the
petitioner.
(ii) On receiving the record of Cr. Misc. Application No.545/2019, the office will
assign it a fresh number to it as Guardian and Ward Application under section 25
of G&W Act by the Respondent as the applicant. If needed, an amended title and
even its contents may be filed by the Respondent to her Cr. M.A No.545/2019 to
conform it to the needs of such an application by looking at Section 10 of the
G&W Act.
(iii) The counter affidavit filed by the Petitioner together with the contents of his
application under sections 5 and 7 of the G&W Act in the said Court shall be
treated as a written reply to the said G&W application.
(iv) To begin with and to avoid confusion, the office of Guardian and Ward Court
should write in red ink on the title of Cr. Misc. Application as application under
section 25 of the G&W Act and also write in red ink on the counter affidavit
jointly with the application No.939/2019 as "written reply" by the Respondent to
the said G&W case.
(v) If any amended application is filed by the counsel for the Respondent Mst. Saman
Muhammad Mahar to her original Misc. Application on or before the first date of
hearing in terms of above direction, the Petitioner, on receiving the amended
Application, if any, shall be allowed to file amended written statement within
next 10 days.
(vi) In view of above directions the G&W Ward case No.939/2019 shall be deemed to
have become infructuous since the final order in the G&W case will cover his
grievance too.
(vii) Parties are directed to appear on 29.08.2019 before the Court where G&W
Application No.939 of 2019 was pending till its merger into G&W case as
written statement in terms of above orders.
5. However, before concluding I must observe that by now there was no order about
regulating the custody of the minors/wards in any of the two proceedings, (Cr. Misc.
Appln. No.545/2019 and G&W Application No.939/2019). However, it is very
gratifying that some senses are prevailing on the parties as the record shows that even
during the proceedings of Cr. Misc: Application before the Court of VII Additional
Sessions Judge (South), Karachi the two wards/minors were already visiting the mother
on regular basis. It is also borne from the record and from the fact that today the mother
(Respondent No.1) has brought the children with her to the Court. I believe it was
possible only by consent of the father of the minors though reportedly he is out of
Pakistan. It is very good sign. Therefore, I am restraining myself from passing any
comment on this aspect of the case. I expect and I also pray for a nice amicable
settlement of the difference between the parents of the two wards/minors or at least the
educated parents shall not settle their scores against each other at the cost of mental,
physical and psychological growth of their minors/ wards. It goes without saying that
under any circumstances there is no replacement of either of the parents for the minors.
 6. In view of the above the instant petition is disposed of along with listed
application(s) in the above terms and the trial Court is directed to ensure that case
should be disposed of within six months from 29.8.2019.
SA/M-179/Sindh Order accordingly.