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Section 491cr.pc cases

Custody of minor/s

Citation Name : 2012 PCrLJ 657 HIGH-COURT-AZAD-KASHMIR

GHAZALA PARVEEN vs MUHAMMAD YAMEEN

---Petitioner being mother of minor son had sought his custody---Welfare of

minor was always a paramount consideration which needed an inquiry based on

facts and after providing a chance to both the parties to produce their evidence

same could be determined---High Court had to look into the interim custody of

the minor till the matter of custody was thoroughly considered and determined

by the court of competent jurisdiction---

The custody was handed over to the mother till the final matter of custody was

decided before the relevant court.

Citation Name: 2012 PLD 61 ISLAMABAD

Side Appellant: MUHAMMAD FARAZ

Side Opponent: MEHFEEZ

Father (appellant) had retained the minors contrary to the rule of Hizanat and his

custody was and improper detention of minors in private custody---Habeas

Corpus petition of mother under S.491, Cr.P.C. was competent and entertainable-

--Intra court appeal of father was dismissed in, circumstances

Citation Name : 2012 MLD 655 LAHORE-HIGH-COURT-LAHORE

Side Appellant : SAFIA BEGUM

Side Opponent : MUHAMMAD MUKHTAR alias MUKHA

Custody refused to the appellant as minor had reached the level where he could

express his opinion and such a fact cannot be ignored. Minor had developed

affection towards the respondent. ---Impugned order passed by Sessions Court as

to the custody of minor needed no interference

Citation Name : 2011 YLR 1021 LAHORE-HIGH-COURT-LAHORE

Side Appellant : Malik NAZEER HUSSAIN

Side Opponent : SESSIONS JUDGE, LAHORE

S. 491---Constitution of Pakistan, Art.199---Constitutional petition---Habeas

corpus proceedings---Custody of minor---Petitioner/father of minor girl aged 14

months challenged order passed by Sessions Judge in proceedings under S.491,

Cr.P.C., whereby respondent mother of minor girl was directed, to move S.H.O.

Police Station concerned for registration of criminal case under the relevant

provisions of law against the petitioner for not producing the minor in the court---

Petitioner failed to produce the minor in the court despite his undertaking in that

behalf---Conduct of the petitioner was highly objectionable as he did not seem to

have any regard for the orders of the court.

Mere filing of an application in the guardian’s court is not a bar for passing an

order under section 491.

Custody to remain with the mother, No justifiable reason existed to interfere in

the impugned order---Constitutional petition was dismissed with cost to be paid

to mother of minor.

Citation Name : 2011 PCrLJ 1835 LAHORE-HIGH-COURT-LAHORE

Side Appellant : PARVEEN BIBI

Side Opponent : S.H.O. POLICE STATION SADAR MIAN CHANNU DISTRICT

KHANEWAL

Section 491 habeas corpus petition, mother had sought the recovery of the minor

son 4 years of age who was stated to be illegally detained by the father and

confined by the father of minor. Ordinarily mother had a right of hizanat of male

child of less than 7 years of age.

Petition seeking custody of a minor child wherein the mother had taken a plea

that her child had been illegally detained and confined by his father could only be

entertained by High Court, if; the child was of very tender age, meaning thereby

that the mother would be given custody of a suckling baby or of a child of very

tender age, who due to certain exceptional circumstances, could only be looked

after by the mother; where a child of very tender age living with his mother was

stated to have been very recently snatched by the father; where a mother could

demonstrate to the court that the father was in the process of shifting child to

some unknown place, so that approaching the Guardian Judge would become an

exercise in futility---

Any order passed regulating the custody of a minor child by High Court while

seized of a petition under S.491; Cr.P.C. would essentially be interim in nature and

would be subject to final adjudication by the Guardian Judge, whose orders would

ultimately regulate the custody of the child---

Alleged detenu was not of very tender age being four years old and child was not

very recently snatched---It was not the case of the petitioner that Father of

alleged detenu was not likely to shift the child to some unknown place making it

impossible for the petitioner to seek her remedy before the Guardian Judge---

Petition was dismissed in circumstances. Hence custody was not granted to the

mother.


Side Appellant : Mst. NASEEM BIBI

Side Opponent : S.H.O. POLICE STATION QUTAB PUR DISTRICT MULTAN

S. 491---Habeas corpus petition---Recovery of minors---Petitioner, a maternal

aunt of alleged minor detenus had prayed for recovery of the minors from their

father who had contracted a second marriage. Minor’s real mother had filed a suit

for the maintenance of the children as their step mother treated them with

cruelty. To counter the suit father filed an application for the appointment as a

guardian for the persons of the minor, during the pendency of the proceeding

minors real mother died. Father of the minors succeeded in getting an ex parte

order for his appointment as a guardian for the person of the minors . Minors

were quite happily living with their maternal grandmother after the death of the

real mother.

Ex parte order passed in favour of the father of the minors, was implemented by

snatching the minors from their maternal grandmother against whom no order

had been passed qua the minors.

Exparte order could not affect the merits of haebous corpus petition. After

passing away of the mother maternal grandmother had a preferential right of

custody of the minors as compared to the father.

High court had to see whether the minors had been improperly detained. Minors

had expressed that they did not want to live with their father and step mother

,instead they wanted to live with their grandmother .Minors were snatched from

their maternal grandmother during execution proceedings for an order which was

not passed against her---Minors, in circumstances were detained improperly and

it would be against the welfare of the minors, if they were left at the mercy of

their stepmother and against their choice of living with their maternal

grandmother---Minors were set at liberty to live with their maternal

grandmother. Hence custody granted to the maternal grandmother.


Side Appellant : Mst. YASMEEN

Side Opponent : JAVAID IQBAL

S. 491---Habeas corpus---Custody of minor---Petitioner, paternal aunt of the

minor living abroad, alleged that minor who was a special child was handed over

to her by parents of the minor for treatment abroad and they had taken the

minor back---Validity---

Minor was in the custody of natural parents where he was happy in their custody

and was not agitated or disturbed in any manner--- ---High Court declined to

interfere in the custody of minor with respondents---Petition was dismissed in

circumstances .


Side Appellant : Mst. AYESHA NASEER

Side Opponent : DISTRICT AND SESSIONS JUDGE, PAKPATTAN SHARIF

Art.199---Criminal Procedure Code (V of 1898), 491---Constitutional petition---

Application for issuance of writ in the nature of Habeas Corpus---Dismissal of

application. Father of the minors had died and they were in the custody of the

petitioner being the mother. Application filed by the petitioner/mother under the

Guardians and Wards Act, 1890 for appointment as guardian of the person and

property of the minors, was allowed by the Guardian Judge. --Petitioner filed

application under S.491, Cr.P.C. alleging that respondents who were maternal

grand father and maternal uncle, respectively of the minors, had abducted the

minors---Said application having been dismissed by the Trial Court, petitioner had

filed constitutional petition .

High Court would not go into factual controversies nor a detailed inquiry was

held; in such like cases, High Court, could pass an order using its inherent

jurisdiction in the largest interest and welfare of the minors---High Court could

not interfere in the matter in its extraordinary constitutional jurisdiction

especially when matter was sub judice before Guardian Judge.

Citation Name : 2011 PCrLJ 594 PESHAWAR-HIGH-COURT-NWFP

Side Appellant : Mrs. RANIA IBRAHIM QURESHI

Side Opponent : DISTRICT & SESSIONS JUDGE, ABBOTTABAD

S. 491--- Constitution of Pakistan, Art. 199--- Constitutional petition, Dispute as to

custody of children between husband and wife. Habeas corpus proceedings---

District and Sessions Judge dismissed petitioner's application filed under S.491,

Cr.P.C. for recovery of her minor children from her husband---Validity---Allegation

of snatching of children, being contrary to the petitioner’s averments in the

constitutional petition.

High Court, in habeas corpus proceedings, was invested with powers to cause

production and release of detenu from illegal and improper detention by Police or

private person but where dispute pertained to custody of minors between

husband and wife, parties could avail remedy under Guardians and Wards Act,

1890---

Order passed by Court of Session to such effect did not warrant interference of

High Court in constitutional jurisdiction---Petition was dismissed. Hence custody

not Granted.

Citation Name : 2011 PCrLJ 594 PESHAWAR-HIGH-COURT-NWFP

Side Appellant : Mrs. RANIA IBRAHIM QURESHI

Side Opponent : DISTRICT & SESSIONS JUDGE, ABBOTTABAD

Art. 199---Criminal Procedure Code (V of 1898), S.491---Writ of habeas corpus---

Custody of minor---Writ of habeas corpus can be sought in appropriate cases

where the minor has been illegally removed from the lawful custody of another

person.

Availability of another legal remedy is not bar and the remedy under the

Guardians and Wards Act, 1890, for obtaining custody of minor child is not a valid

ground for refusing an application for habeas corpus by the parent or guardian of

the minor who is entitled to have his or her custody, where the minor is illegally

detained by another party.


Side Appellant : Mst. NUSRAT PARVEEN

S. 491---Habeas corpus petition---Petitioner who was mother of minor children,

had sought recovery of her children who were in the alleged improper custody of

respondent---Nothing was to deprive the petitioner/mother of the minors of her

preferable right of hizanat---

If mother had neither remarried nor there was anything to establish that she was

leading an immoral life, was entitled for the custody of the minors, who were of

very tender age---Petitioner having the preferential right of Hizanat being real

mother of the minors, was handed over the custody of the minors. Hence custody

granted to the mother.


Side Appellant : Mst. NUSRAT PARVEEN

Side Opponent : State

S. 491---Habeas corpus petition---Sessions Judge dismissed petitioner's

(mother's) petition for production of her minor sons who had been handed over

to her ex-husband by the Jirga---Validity---

Minors deserved the lap of the mother due to their tender age---Order passed by

the Sessions Judge was without any lawful authority---

Welfare of minors was of prime importance---Petitioner being the real mother of

the minor could better ensure the welfare of the minors . High court accepted the

petition and directed the respondent (father) to hand over the custody of minors

to petitioner (mother).

Citation Name : 2010 YLR 1629 KARACHI-HIGH-COURT-SINDH

Side Appellant : Syed SAYEED HAMID

Side Opponent : DISTRICT AND SESSIONS JUDGE

S. 491---Constitution of Pakistan (1973), Art.199---Constitutional petition---

Habeas corpus petition---Respondent filed application under S.491, Cr.P.C. against

the petitioner alleging that female minor was in illegal and unlawful custody with

the petitioner and her custody should be handed over to respondent. Petitioner

being the father of the minor was a natural guardian. but according to Islamic Law

respondent being mother of female minor was entitled for the custody of minor---

In absence of any illegality or irregularity in the order of the court below, petition

against said order was dismissed. Hence the application was decided in the

respondents favour.

Citation Name : 2010 YLR 1729 KARACHI-HIGH-COURT-SINDH

Side Appellant : RAJIB ALI

Side Opponent : STATION HOUSE OFFICER, POLICE STATION DARI

S.25---Criminal Procedure Code (V of 1898), S.491---Constitution of Pakistan

(1973), Art. 199---Constitutional petition---Custody of minor--Concealing of facts

Petitioner was father of minor who was in the custody of his maternal

grandmother---

Guardian Court restrained the petitioner from snatching minor from his maternal

grandmother---Petitioner, without disclosing order passed by Guardian Court,

filed application under S.491 Cr. P. C. before Sessions Judge, which application

was dismissed---Validity.. Petitioner did not disclose the order passed by Guardian

Court in favour of maternal grandmother with regard to interim arrangement of

guardianship. Unless and until petitioner succeeded in setting aside order of

Guardian Court passed against him, he could not seek relief from High Court for

custody of minor—

Concealment of fact had disentitled petitioner from discretionary relief in

Constitutional jurisdiction under Art. 199 of the Constitution—

Relief being discretionary, one who had not approached the Court with clean

hands did not deserve such relief---Petition was dismissed in circumstances.

Citation Name : 2010 PLD 119 KARACHI-HIGH-COURT-SINDH

Side Appellant : NATASHA RASHID

Side Opponent : RASHID ZAR

Ss. 491 & 561-A---Habeas Corpus petition---Maintainability---Custody of

minors---Cases pertaining to custody of children should not be decided on

technicalities---Where petition under S.491, Cr.P.C. is not found to be competent

due to absence of element of illegal custody by the father of his own child, High

Court can also pass an appropriate order in exercise of its inherent jurisdiction.


Side Appellant : NATASHA RASHID

Side Opponent : RASHID ZAR

Art. 199(1)(c)---Criminal Procedure Code (V of 1898), S.491---Constitutional

jurisdiction--Maintainability---Custody of minor--For maintainability of petition

under Art.199(1)(c)

Section 199(1)(c) fundamental rights comes with in the scope of 491 .

High Court's power to enforce fundamental rights, therefore, was much broader

and much more far reaching than the time tested concepts . of writs of Certiorari,

Mandamus, Prohibition, Quo Warranto and Habeas Corpus

Right of life does not only include one’s life but also life, liberty and happiness of

one’s children. Denying a person right of company of his children was as severe a

penalty and curse on him than denying him life altogether

If a mother was denied the right of the company of her child then it would

amount violation of mother’s fundamental right to life.

Petition thus, was maintainable both under S.491, Cr.P.C. as well as under

Art.199(1) (c) of the Constitution.


Side Appellant : Mst. MUHAMMAD JAN

Side Opponent : DISTRICT JUDGE, ATTOCK

Art.199---Criminal Procedure Code (V of 1898), S.491---Guardian and Wards Act

(VIII of 1890), S.7---Constitutional petition---Habeas Corpus---Custody of minor---

Welfare of minor---Respondent’s/ mother after hER husband continued to reside

with the in-laws along with the minors.Later on she was kicked out by the

paternal grandmother who had the custody of the minor.

Petition filed by mother under section 491 of the Cr.P.c, for the recovery of the

minor, on the statement of the children that they wanted to live with the paternal

grandmother/ petitioner, the petition was dismissed.

Mother of the minor later on filed petition under S.7 of Guardians and Wards Act,

1890 to appoint her as guardian of person and property of the minor, which again

was dismissed on the statement of minor in favor of his paternal grandmother.

Appeal filed by the mother of the minor against judgment and decree, however

having been accepted, judgment and decree of the Guardian Judge, was set aside

with direction to the Guardian Judge, to hand over custody of minor to the

mother.Grandmother had impugned said order in constitutional petition.

Minors were brainwashed to the extent that they abhorred the real mother,

danger to the children’s life was not only physical but also mental.

Moreover under Islamic Law the custody of paternal grandmother was

subservient to the custody of the mother---What had to be taken into

consideration at each and every stage of litigation involving minors and their

custody, was the welfare of the minor---Welfare of the minor in the case lay with

his real mother---Constitutional petition dismissed.

Citation Name : 2010 MLD 143 KARACHI-HIGH-COURT-SINDH

Side Appellant : Mst. SANA PARVAIZ

Side Opponent : MUHAMMAD SAJAWAL BUTT

S.491---Constitution of Pakistan (1973), Art.199---Constitutional petition---

Custody of minor son---Welfare of minor.Both minor son and the daughter

remained in the custody of the petitioner / mother but later on the custody of the

minor son was taken away by the father/Respondent.

---Petitioner invoked jurisdiction of High Court under S.491, Cr.P.C. but relief as

claimed by her having been declined through impugned order, the

petitioner/mother had filed constitutional petition

High court keeping in views the facts and circumstances of the case and without

going in to the technicalities of the law Taking into consideration the welfare of

the minor, ordered, in exercise of its inherent jurisdiction, that the custody of

minor son be handed over to the petitioner/mother who was entitled to retain

her custody---Interim custody of the minor son was delivered to the petitioner

(mother).

Citation Name : 2010 PLD 48 LAHORE-HIGH-COURT-LAHORE

Side Appellant : PEGGY COLLIN

Side Opponent : MUHAMMAD ISHFAQUE MALIK

Proceedings in the nature of habeas corpus---Allegation of kidnapping of her

minor son by mother, a French lady against her husband (father of the minor)

holding dual nationality of France and Pakistan. Minor was born in France, besides

being French citizen, minor was also a Pakistani citizen on the account of his

father. Both the parents got married in France and after living in the same country

for some years the couple got divorced, the issue of custody was decided by the

French courts and mother had the legal custody of the minor. ---Minor had been

recovered by the police in connection with the criminal case lodged by the

petitioner/mother against respondent/father and others, for an offence under

section 363, P.P.C. in respect of kidnapping of the said minor and after recovering

the minor in connection with that criminal case he had been produced before the

High Court. Minor had been recovered in connection with the criminal case and

under the umbrella of the high court. The present petition---Umbrella of High

Court had only provided impetus and support to the local police which was even

otherwise under a statutory duty to affect the necessary recovery of the minor

allegedly kidnapped. With the achievement of that objective the role of High

Court in the proceedings in the nature of habeas corpus ended for the present

and now it was for the local police to deal with the matter in accordance with the

law.

2009 PCRLJ 118

Arshad Noor Khan J

Raffiat Tariq vs D.P.O

Art:199 constitutional petition----Alternate remedy----- scope----custody of minor-

---plea raised was that the minor was aged about 2 ½ years and the

petitioner/mother had a right of Hizanat to the keep the custody of the minor----

if the petition had been wrongly filed under article 199 of the constitution the

high court had all powers to convert the same under s.491 cr.p.c.

2009 YLR 923

(Ali sain dino metlo J)

Rubina Khan VS Hussain Zaheer Shah

Custody of the minor son of 2 ½ years----father (respondent) of the child had

contenede that he apprehended that petitioner (mother)


Appellant : SAMRA ZAMAN

Opponent : STATION HOUSE OFFICER, POLICE STATION GHULAM MUHAMMAD

ABAD, FAISALABAD

S.491---Habeas corpus petition---Custody of minor---Marriage between the

petitioner-wife and respondent-husband still subsisted though the petitioner had

been expelled from the house of her husband/ respondent---Minors, who were of

tender age, were residing with their father/ respondent-s

Keeping in view the age of minors which was (5 years male and 2-1/2 years

female), their interim custody was directed to be handed over to the

petitioner/mother as she could not be deprived of their custody. (factors ; mother

is a symbol of love and there is no substitute for the affection and the love of

mother)

Citation Name : 2009 PCrLJ 118 KARACHI-HIGH-COURT-SINDH

Side Appellant : Mst. RAFFIAT TARIQ

Side Opponent : D.P.O. SANGHAR

S. 491---Constitution of Pakistan (1973), Art.199---Constitutional petition---

Alternate remedy---Scope---Custody of minor-

Plea raised that the minor aged 2 and half years and the petitioner mother had

the right o hizanat to keep the custody of the minor

Validity---If the petition had been wrongly filed under Art.199 of the Constitution

the High Court had all the powers to convert the same under S.491, Cr.P.C.

Mother had the right of hizanat irrespective of the fact whether she could or

could not maintain the children and the right could not be snatched

Illegal terms and conditions, arrived at between the parties at the time of divorce,

could not override the law of the land and the illegal terms and condition, if any,

could not restrict the Court to compel the parties to follow the same, which

otherwise had not been recognized under the law-

High court allowed constitutional petition and handed over the custody of the

minor to the petitioner / mother.


Side Appellant : ATTIQUE RABBANI BUTT

Side Opponent : Mst. SADIA BUTT

S. 491---Guardians and Wards Act (VIII of 1890), S.25

Habeas corpus petition by father for the recovery of his son from the custody of

his mother who, after divorce, was putting up separately---Maintainability---

Habeas corpus---Connotation

Petitioner/father had filed an application under S.25, Guardians and Wards Act,

1891 before the Guardian Judge, which was pending adjudication

Held, mother being the natural guardian of a child having preferential right of

hizanat was entitled to the custody of a minor in case of separation or divorce

between the parties

Nobody could look after the children better than the mother; therefore there was

no question of the children Habeas corpus petition against the mother was not

maintainable in such like cases---being in the illegal custody of the mother.

Citation Name : 2009 MLD 258 PESHAWAR-HIGH-COURT-NWFP

Side Appellant : Mst. ZOHRA HILAL

Side Opponent : NOOR SAKHT SHAH

S. 491---Custody of minor---Habeas Corpus Petition---Maintainability---Petitioner

claimed that her minor daughter had been detained by respondent/father of the

minor improperly and illegally;

Where as mother had the right to take back the minor who was hardly seven

years old

Trial court issued a notice to the respondent with the direction to produce the

minor and the minor was given a choice to select one of the parents, minor opted

for the father / respondent. Apart from that an unlawful custody by father of the

minor could not be spelt out---Proceedings under S.491, Cr.P.C.

Where question of lawful and unlawful custody of the victim was before the

court, then examination and recording of parties evidence was always necessary-

Remedy under S.491, Cr.P.C. was altogether different exercise of jurisdiction as

those laid down by Guardians and Wards Act, 1890 or under S.5 of the West

Pakistan Family Courts Act, 1964---In the habeas corpus petition, matter was to

be solved summarily relating to illegal and improper detention of a person in

public or private custody by police or a private person without legal authority or

jurisdiction, when it would become the duty of the court to interfere, take

immediate steps and action for production of the detenue---Court could direct

immediate release of the detenue, but no other relief was possible in exercise of

jurisdiction under S.491, Cr.P.C

Matrimonial dispute and leading to the litigation relating to the custody of the

children, proper remedy would lie in the Guardian court or family court.

which, in parental jurisdiction in a more appropriate, legal, proper and effective

manner could resolve the controversy in the light of evidence keeping in view the

best interest and welfare of the minor---Matter in the case fell within the

jurisdiction of Guardian Judge or Family Court and not through habeas corpus

petition under S.491, Cr.P.C.---Petition was dismissed.


Side Appellant : SAIMA ASLAM

Side Opponent : ASIF TUFAIL

S. 491---Habeas corpus petition---Recovery of minor---Petition for---Custody of

minor---S.H.O. who conducted raid, recovered and produced the minor in the

court and she was given in the hands of the petitioner who was mother of the

minor---

Minor was a suckling baby and interest and welfare of the minor demanded that

custody be given to petitioner mother who had not married as compared to

father of the minor---

Custody of minor having been handed over to the petitioner, father could

approach the Guardian Court for custody.


Side Appellant : Mst. AZRA BHATTI

Side Opponent : STATION HOUSE OFFICER, POLICE STATION HYDRI

Applicant/mother of a minor girl had alleged that respondent who had divorced

the applicant and had driven her out of his house along with her two daughters,

had snatched away one of the daughters aged 14 months from the custody of the

applicant, Although mother had the right of hizanat, till the minor attained the

age of majority. Applicant prayed for the restoration of the custody to her. Minor

needed the care of her mother and no substitute of mother

Custody of the Minor girl although improper if not illegal / improper custody of t

Application was allowed with the direction that minor girl would be handed over

by respondent to the applicant/mother forthwith he father.

2009 SLR 85

UZMA VS ZAHID HAFEEZ

M.A ZAFER JUDGE

Custody of minor---agreement between the parties ---effect an agreement

between the parties regarding the future of the minor against the statutory

provision of law is void.

2009 PCr.R 1289

Ms: Jamila Jahanoor Aslam J

Jamshaid Akhter VS Sessions Judge Chakwal

Sec 491 Cr.p.C Guardians and wards Act, Sec 25 Custody of minors decision of

guardian judge respondent did not handed over the minors to petitioner/mother

in term of decision of the guardian judge----


Side Appellant : Mst. AZRA BHATTI

Side Opponent : STATION HOUSE OFFICER, POLICE STATION HYDRI

S.491---Guardians and Wards Act (VIII of 1890), Preamble---Habeas corpus---

Matters dealt with by S.491, Cr.P.C. and Guardians and Wards Act, 1890, were

entirely different and the provisions of both the laws were neither mutually

exclusive nor one would overlap or destroy the other.

Plea that dispute between the spouses regarding custody of minor children

should not be decided by High Court under S.491, Cr.P.C. was repelled.


Side Appellant : JOSIP STIMAC

Side Opponent : MELITTA SYED SHAH

Art. 199(1)(b)(i)---Criminal Procedure Code (V of 1898), S.491---Guardians and

Wards Act (VIII of 1890), S. 25---Constitutional petition---Custody of minors---

Mother of minors (an Austrian national), accompanied by her children was

arrested at the Airport; on search of luggage, 20 Kgs. and 875 grams heroin was

recovered, on which F.I.R. under Ss.9(c) & 15, Control of Narcotic Substances Act,

1997 was registered against her and since then she was confined in jail as an

under trial prisoner

Issue of minors custody, mother wanted to send back the children to Austria to

their maternal grandparents

Maternal-grandparents of the minors through their counsel, moved the High

Court with reference to Art.199 (1) (b) (i) of the Constitution and S.491, Cr.P.C.

contending that the minors were in an improper and illegal custody, therefore,

they should be released and given in the custody of their grand-parents and that

their mother herself having made a request that the minors be sent to her

parents abroad

it was in the welfare of the minors to live with their grand-parents and elder

brother and to have proper education as the parents of minors were involved in

drug trafficking and had blatant track record---

Grand-parents had obtained a custody order by Austrian Courts for the said

minors-

Father of minors whose whereabouts were not known, had moved a superficial

custody petition before the Guardian Judge for the minors and . it seemed that

the mother and father were in league on the custody issue—

Held : it prima facie seemed in the welfare of the minors that they should be sent

back to their home country, which, undoubtedly, was a welfare State and capable

of taking care of even those children whose parents were not there Deputy Head

of Mission, Austrian Embassy, was allowed to take the custody of the minors from

the jail authorities and was directed to make arrangements for sending them to

Austria to enable the petitioners to take their custody---Constitutional petition

was, allowed accordingly.


Side Appellant : FOZIA BIBI

Side Opponent : STATION HOUSE OFFICER

Petitioner/mother of minors seeking recovery of minor detenus, had filed habeas

corpus petition against father of the minors

Father being natural guardian of minor, it could not be said that minor children

were in the illegal and improper custody of father'

Since proceedings regarding custody of minors, were not pending before the

Guardian Court, petitioner had filed habeas corpus petition before High Court

against father of the children

---Forum to decide the custody of children was very much available to the

petitioner to decide her claim on the basis of merits---Mother could always claim

the custody of children before the competent forum-

Habeas petition, in circumstances, was not competent against father of the

children he being natural guardian of the children. Custody refused on this basis .


Side Appellant : MARIAM KHAN

Side Opponent : MEHRYAR SALIM

S. 491---Habeas corpus---Recovery of minor detenue---Due to alleged cruel

attitude of respondent, the spouse could not keep their matrimonial fold intact

and difference arose between the parties, which constrained the petitioner to

settle abroad with her two months' son---Parties filed respective suits for custody

of minor in the superior Courts abroad---Both suits were decided in favour of the

petitioner and a meeting schedule was prepared according to which,

respondent/father had to meet his son for twenty-four hours .

On 3rd meeting father kidnapped the child and took him to Pakistan

Counsel for respondent contended that judgment passed by foreign courts had no

binding force in Pakistan, was repelled, because both the parties had contested

that issue before foreign courts and after fulfilling all the legal formalities the

foreign courts had handed over the custody of the minor to the petitioner

Malafide on the part of the father

Removal of the minor in violation of orders passed by the foreign courts, was not

only mala fide on the part of respondent, but was also a criminal act for which he

was being proceeded there

Custody handed over to the mother as mother could look after him properly

Proceedings under S.25 of the Guardians and Wards Act, initiated by respondent

were based on mala fide---Custody of minor was handed over to the

petitioner/mother.


Side Appellant : MAH RUKH BAJWA

Side Opponent : AFTAB ALAM

S. 491---Habeas corpus petition---Custody of minor children---Minor children

were not snatched from the custody of their mother in the near past and they

were neither in illegal and improper custody nor their lives were in danger

Children living with respondents for the past 6 years and had been produced to

the courts on number of occasions

Children were reluctant to go with her No emergency existed warranting transfer

of custody of children from the respondents to the petitioner mother and were

satisfied with the respondent

Children were leading a satisfied life, there affairs were being managed properly

and were doing satisfactory in their education.

However, final decision regarding' the welfare of the children and their custody

would only be given by the Guardian Court after recording evidence---Petition

was dismissed in circumstances

Citation Name : 2007 PCRLJ 1924 LAHORE-HIGH-COURT-LAHORE

Side Appellant : ABDUL WAHID

Side Opponent : Mst. ALIYA

---S. 491---Habeas corpus petition for recovery of female minor---Minor whose

custody was sought by the petitioner, was 4 years and*6 months old

Respondent being real mother of minor, was entitled to have the custody of her

minor daughter as she had a preferential right of hizanat over the child-

Mother could only be disentitled to the custody of .her minor child in the

following circumstances:

if she remarried or went and resided at a distant place; or was leading an

immoral life; or she neglected to take proper care of the child---In the case, none

of said disentitlements applied to the mother---Minor, in circumstances was

allowed to be retained by mother.


Side Appellant : LOUISE ANNE FAIRLEY

Side Opponent : SAJJAD AHMED RANA

--Art. 199---Criminal Procedure Code (V of 1898), S.491---Constitutional petition---

Custody of minor---Despite restraining order passed by Court of foreign

jurisdiction, father removed the minor to Pakistan

If much sanctity was attached to order passed by Court in Pakistan, then same

legal status and sanctity should be conferred and given to orders passed by Court

of foreign jurisdiction, when such orders were passed in proper exercise of

jurisdiction and especially in the circumstances when delinquent party had

surrendered to the jurisdiction of that Court. If much sanctity was attached to

order passed by Court in Pakistan, then same legal status.Bringing the child over

to Pakistan and retaining its custody was "without lawful authority", "illegal" and

"improper" in circumstances.491 cr.pc

TO FATHER

2005 YLR 1886

Mother after getting divorce from minor’s father contracted second marriage.

Minor was 3 years old but court refused on the ground that the father was still

unmarried and the minor always remained with the father for long time.

2005 YLR 883

Mother left the home of her husband and filed petition after 5month and did not

took any action during that period and court refused on following grounds.

No forcible snatching of the minor

No circumstances of urgency

Minors are well settled and attending schools

Financially supported by father.

Academic results were exceptional

2005 YLR 1614

Petitioner mother filed petition for recovery of her minor daughter from

alleged illegal and unlawful custody of her husband who was father of the

minor.

Minor who had appeared in the court was absolutely fit in her

father’s company.

Petitioner’s petition was dismissed

1988 SCMR 1891

PLD 1995 SC 633

1996 SCMR 268

2000 MLD 351

2002 YLR 3751

1997 SCMR 1480

1981 SCMR 301

TO MOTHER:

PLD 2005 AZAD J & K (5)

No conclusive decree was passed either by a curt of competent jurisdiction

in Britain or in Azad Kashmir showing petitioner as custodian of the ward in

the present case.

Age of the minor 8 years

Having attachment and association with father

Whereabouts of the mother were not clear in AJK or even in Pakistan

2007 YLR 1487

Mehera Fatima vs province of sindh

Wherever a specific provision of law stood enacted for the purpose of relief

then constitutional jurisdiction of high court could not be invoked under

provision of Art.199. constitutional provision for recovery of minors was

converted into application u/s 491 cr.p.c to be disposed of accordingly.

PLD 2007 LAH 300

Louise Anne Fairly vs Sajjad Ahmed Rana

Custody of minor despite restraining order passed by court of foreign jurisdiction,

father removed the minor to Pakistan,,,,,,Bringing the child over to Pakistan and

retaining its custody was without lawful authority” illegal” and ‘improper” in

circumstances.

(Mian Saqib Nissar j)

Constitution of Pakistan 1973….Art:199 Habeas corpus petition Petitioner,

Other cases of 491 cr.pc

PLD 2009 LAH 501

UMER ATTA BADIAL J)

SHABIR TAQI KAZMI VS SADAF ZAHRA

Alleged detenu, was suffering from a serious brain disorder and was in a

vegetative condition and no specific medical treatment was stated to be available

in Pakistan or abroad to cure his condition was living with his second wife who

had been caring for him -------------son of the alleged detenu from his first wife

sought custody through an application.-----Alleged detenu was unable to express

any preference as to which family should care for him------custody of alleged

detenue in circumstances could not be termed as hostile, forcible or illegal and his

second wife held his lawful custody---son from his first marriage and his family

had a right to visit and care during day time.

PLD 2009 SC 507

ZIA PERWEZ, SABIHUDIN,

HRCP VS GOVT.OF PAKISTAN.

Bonded labour system (abolition )act 1992 not merely ensure that no fetters on

the workers rights guaranteed under Art:11,15 & 23___of the constitution are

placed, even through voluntary agreements but also wipes out any financial

liability that the worker might have incurred on the basis whereof such fetters

have been imposed----scope--- wrongful detention or forced labour onus to prove

----Constitution petition under Art:199 of the constitution or petition U/S 491

Cr.p.c----duty of court ----jurisdiction of superior courts to enforce fundamental

rights----

2009 YLR 2475

M.Saeed vs govt. of Punjab home deptt.

Zubda Tul Hussain JJ

Art:199, 9 & 10 illegal custody powers of high court---High Court can issue a writ

of heabous ATcorpus if the custody of the person is found violative of Art:9 & 10

of the constitution.

2009 PCR R 1155

ALI HASSAN RIZVI J

STATE VS SHAUKAT HAY

SEC:491 cr.p c contempt of court ordinance, 2003 ---Habeas corpus petition---

according to report of bailiff, arrest of detenu was shown against fake

corresponding entry in Roznamacha kept at police station----SI/delinquent police

officer was issued a notice of contempt by high court-----unconditional apology----

cum confitente sponte mitius est agendum”---rule of validity---respondent had

shown considerable contrition and remorse placing himself at mercy of

court…..said SI tendered unconditional apology ----

2009 YLR 1971

Iftikhar Alvi vs distt. Police officer Nanakana sahib

Hafiz Tariq Naseem J

Detenue was never named in FIR nor required to the police in any other case----

SHO and a sub Insepector had illegally taken away the detenu from his house and

had not only detained him in the police satation without and justification, but

also subjected him to severe torture----Detenu was consequently set at liberty but

with special costs of RS;100,000/- recoverable from the sub insepector who had

detained the in illegal custody and recoverable from the inspector SHO…

2009 YLR 2191

Abdul Razzaq vs Deputy inspector General police Gujeranwala

Zafer Iqbal Ch J

Sec:491---Habeas corpus petition----petitioner who was father of alleged

abductee, had alleged that deceased detenu had been abductee from the

territorial jurisdiction of police station concerned----in view of such fact and

peculiar circumstances of the case, SHO police station concerned was directed to

register the case against the delinquent person on the written application of the

petitioner.

2009 law notes 1231

M.A Zafer J

Munir Ahmed vs SHO

Police misbehaved with the bailiff and was not permitted to examine the record

at the said police station----

High court issued contempt notice to the delinquent police officers---

complainnant party had not involved alleged detenu and there was discrepancy

the arrest in FIR---detenu was released on bail order accordingly.

2009 YLR 38

M.Iqbal VS SHO Okara

Umer atta bandial J

Sec:491---habeas corpus petition SHO had disclosed that three attempts had been

made by the functionaries to recover the alleged detenues from three different

locations but in vain----Held it was beyond the ambit of habeas corpus petition for

the police to go on a wild goose chase-----order accordingly

Tahira bibi vs SHO

M.A.Zafer J)

2009 Law Notes 1248

Alleged detenu through was a nominated accused of a bailable offence, yet no

entry of corresponding armed was found the relevant register at police station----

said detenue was released on bail.---As far as missing detenu was concerned High

court directed the concerned DPO to hold an inquiry and submit report.

PLJ 2009 Cr.c LAHORE (368) 2009 P Cr.r 131

Hafiz Tariq Nasim J

Azmat Bashir Vs SHO

Section 491 Cr.p.c Illegal detention---compensation for ---A court of law cannot

truly and correctly calculate the loss specially in monetary terms that the detenu

has had to suffer for being deprived of his lawful right of freedom and liberty and

the loss he had to suffer being tortured inhumanly and feel that money cannot be

equated with loss of even one day of freedom.

2009 PCr.L J 32

M.REAZ AKHTER J

SAFEENA BIBI VS ZAHOOR AHMED

Scope 491 & 561_A scope and specification of sec;491 &561A cr.p.c could only set

at liberty the detenu----High court had two fold jurisdiction under 491---one to

deal with a person within its appellate criminal jurisdiction according to law and

the other to set him at liberty if he was illegally or improperly detained: and if the

court would reach the conclusion that person produced before it was not in an

illegal or improper confinement or detention then if a person was minor, the

could could make over his custody to the guardian: and if he major then only

jurisdiction which lay with the court was to set him at liberty.

2011 MLD 337

M.ANWARUL HAQ J

Alleged detenu was produced in the court by police and she controverted the

story narrated by the petitioner in his habeas corpus petition. She stated that she

was living with her parents with own free will and did not want to go with her

husband/petitioner.

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