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Present: Mahmood Akhtar Shahid Siddiqui and Asif Saeed Khan Khosa, JJ
Mst. NADIA PERVEEN---Petitioner
Versus
Mst. ALMAS NOREEN and others---Respondents
Criminal Petition No.127-L of 2010, decided on 19th May, 2011.
(On appeal from the order dated 1-2-2010 of the Lahore High Court, Lahore passed in
Criminal Miscellaneous No.89-H of 2010)
(a) Criminal Procedure Code (V of 1898)---
----S. 491---Guardians and Wards Act (VII of 1890), S.12---Habeas corpus petition
before the High Court for recovery of minors---Scope---Conditions.
Matter of custody of minor children can be brought before a High Court under section
491, Cr.P.C. only if the children are of very tender ages they have quite recently been
snatched away from lawful custody and there is a real urgency in the matter. In such a
case the High Court may only regulate interim custody of the children leaving the
matter of final custody to be determined by a Guardian Judge.
Muhammad Javed Umrao v. Miss Uzma Vahid 1988 SCMR 1891; Nisar Muhammad
and another v. Sultan Zari PLD 1997 SC 852; Mst. Khalida Perveen v. Muhammad
Sultan Mehmood and another PLD 2004 SC 1 and Naziha Ghazali v. The State and
another 2001 SCMR 1782 ref.
(b) Criminal Procedure Code (V of 1898)---
----S. 491---Guardians and Wards Act (VII of 1890), S.12---Habeas corpus petition
before the High Court for recovery of minors---Jurisdiction of High Court---Scope.
Jurisdiction of a High Court under section 491, Cr.P.C. for recovery of minors, is to be
exercised, sparingly and such exercise may be undertaken only in exceptional and
extraordinary cases of real urgency keeping in view that even a Guardian Judge has the
requisite powers of recovery of minors and regulating their interim custody.
Muhammad Javed Umrao v. Miss Uzma Vahid 1988 SCMR 1891; Nisar Muhammad
and another v. Sultan Zari PLD 1997 SC 852; Mst. Khalida Perveen v. Muhammad
Sultan Mehmood and another PLD 2004 SC 1 and Naziha Ghazali v. The State and
another 2001 SCMR 1782 ref.
(c) Criminal Procedure Code (V of 1898)---
----S. 491---Constitution of Pakistan, Art.185(3)---Habeas corpus petition before the
High Court for recovery of minors---Said petition was dismissed by the High Court on
the ground that the mother (petitioner) had left her children on her own and they were
not removed from her custody, therefore, it could not be said that the children were
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7/24/25, 9:04 AM P L D 2012 Supreme Court 758
being illegally detained by the respondent---Validity---Children in the present case,
were neither of very tender ages nor had they been snatched away from their mother
and, thus, the petition filed before the High Court under S.491, Cr.P.C. was
misconceived---Guardian Judge had already appointed the paternal grandmother of the
minors as the guardian of their persons and properties---Said decision of the Guardian
Judge had not been assailed by the mother before any higher court---Petition for leave
to appeal was dismissed, in circumstances.
Aftab Gul, Advocate Supreme Court with petitioner in person.
Tahir Munir Malik, Advocate Supreme Court for Respondent No.1.
Date of hearing: 19th May, 2011.
ORDER
ASIF SAEED KHAN KHOSA, J.---Through this petition the petitioner has sought
leave to appeal against the order dated 1-2-2010 passed by a learned Judge-in-Chamber
of the Lahore High Court, Lahore in Criminal Miscellaneous No. 89-H of 2010.
2. After the death of her husband the petitioner had left the house of her husband
leaving her three sons namely Saad Ali (aged about 12 years), Faryad Ali (aged about
10 years) and Rizwan Ali (aged about 8 years) in the care of some relatives of the
petitioner's deceased husband. After some time the petitioner filed the above
mentioned petition under section 491, Cr.P.C. before the Lahore High Court, Lahore
seeking recovery of the said children from the custody of respondent No.1 who is a
sister of the petitioner's deceased husband but that petition was dismissed by a learned
Judge-in-Chamber of the Lahore High Court, Lahore on the ground that admittedly the
petitioner had left her children on her own and those children had not been removed
from the petitioner's custody and, thus, it could not be said that those children were
being illegally detained by respondent No. 1.
3. It has consistently been held by this Court in the cases of Muhammad Javed Umrao
v. Miss Uzma Vahid (1988 SCNIR 1891), Nisar Muhammad and another v. Sultan Zari
(PLD 1997 SC 852), Mst. Khalida Perveen v. Muhammad Sultan Mehmood and
another (PLD 2004 SC 1) and Naziha Ghazali v. The State and another (2001 SCMR
1782) that the matter of custody of minor children can be brought before a High Court
under section 491, Cr.P.C. only if the children are of very tender ages they have quite
recently been snatched away from lawful custody and there is a real urgency in the
matter and also that in such a case the High Court may only regulate interim custody of
the children leaving the matter of final custody to be determined by a Guardian Judge.
In those cases this Court had repeatedly emphasized that in such matters the
jurisdiction of a High Court under section 491, Cr.P.C. is to be exercised, sparingly and
such exercise may be undertaken only in exceptional and extraordinary cases of real
urgency keeping in view that even a Guardian Judge has the requisite powers of
recovery of minor children and regulating their interim custody. In the case in hand the
petitioner's children were neither of very tender ages nor had they been snatched away
from the petitioner and, thus, the petitioner's petition filed before the Lahore High
Court, Lahore under section 491, Cr.P.C. was misconceived. The interim order passed
by this Court in connection with the present petition on 20-12-2010 shows that on 7-4-
2010 the learned Guardian Judge, Sialkot has already appointed the paternal
grandmother of the minors as the guardian of their persons and properties. We have
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7/24/25, 9:04 AM P L D 2012 Supreme Court 758
been informed that the said decision of the learned Guardian Judge has not so far been
assailed by the petitioner before any higher court. In this view of the matter we have
failed to find any occasion for interference in the matter. This petition is, therefore,
dismissed and leave to appeal is refused.
M.W.A./N-9/S Petition dismissed.
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