Mst. Sidra Kausar vs Sho etc.

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Case No. Crl. Misc. No.663/H/2015

Mst. Sidra Kausar Versus SHO Shera Kot etc.

S.No. of order/ Date of order/ Order with signature of Judge and that of Proceedings Proceedings Parties of counsel, where necessary.

02)22.04.2015 Mian Muhammad Ramzan, Advocate for the petitioner. Mr. Fahad Majeed Rathor, Advocate for respondent No.2. Mr. Muqaddas Tahira, Additional Prosecutor General.

Through this petition under section 491 Cr.P.C, Mst. Sidra Kausar the petitioner seeks the custody of her minor sons namely Muhammad Faizan aged 8-years and Muhammad Rehan aged 6 years, who are presently in the custody of respondent No.2, their real paternal uncle. Muhammad Ramzan, father of the minors and husband of the petitioner, was murdered on 28.11.2014 for which FIR No.693/2014 for offences under Sections 302/34 & 109 PPC was registered at Police Station Shera Kot, Lahore, and in that case, the petitioner was also arrayed as an abettor for which she was arrested by the police on 11.12.2014. She remained in jail along with her one suckling baby till her release on post arrest bail on 11.03.2015 and during this period both the minor sons of petitioner Muhammad Faizan aged eight years and Muhammad Rehan aged six years along with their brother Ayan aged two years were being looked after by respondent No.2. On the release of petitioner from the jail, she filed an application under section 491 Cr.P.C on 19.03.2015 before learned Sessions Judge, Lahore, which was finally decided by Chaudhry Munir Ahmad, Additional Sessions Judge, Lahore,

on 08.04.2015 through the impugned order according to which the custody of minor son of petitioner Ayan aged 2-years was handed over to the petitioner while her petition to the extent of Muhammad Faizan aged 8-years and Muhammad Rehan aged 6-years was dismissed with the reason that said two sons were not willing to go with their real mother and resisted strongly their meeting with her. However, the learned Additional Sessions Judge directed the petitioner to approach the learned Guardian Judge for redressal of her grievance.

2.Learned counsel for the petitioner vehemently inter-alia argues that the petitioner is real mother of minors who are in the custody of respondent No.2 who does not have any right to keep them with him when their (minors) real mother is alive and willing to take care of them. He further maintains that the minors are of tender age and they need the love and care of their real mother and that the learned Additional Sessions Judge has passed the impugned order to the extent of Muhammad Faizan and Muhammad Rehan by ignoring all the norms of justice. The learned counsel also refers the case titled Tabassum Akhtar v. Sabir Ali alias Tasawar Ali (2003 MLD 54) in which though the mother was accused of a criminal case registered for the murder of her husband, father of the minor girl aged 9-years yet this Court pleased to hand over the temporary custody of the minor to her mother.

3.Conversely, learned counsel for respondent No.2 argues contrary to the averments made by the learned counsel for the petitioner and inter alia maintains that petitioner is responsible for the murder of father of the minors while minors are legal heirs of their deceased father and that being so, she does not deserve the custody of minors. Further agues that petitioner is a lady having criminal mentality and has no source of income to spend for the better upbringing of the minors; that custody

of both minors if handed over to the petitioner would be detrimental to the welfare of both minors and finally craves for the dismissal of this petition.

4.Having heard both the learned counsel and learned Additional Prosecutor General, this Court has noticed that the minors were taken in custody by the respondent No.2 when the petitioner was arrested in the supra mentioned criminal case with the allegation of abetting the perpetration of murder of her husband, father of the minors. The minors were not forcibly removed from the custody of the petitioner and similarly they are not forcibly detained by the respondent No.2 as observed by the learned Additional Sessions Judge while passing the impugned order which reads as under:- “Minors Muhammad Faizan aged about 8 years, Muhammad Rehan aged about 6 years and Muhammad Ayan aged about 2 years produced in the court. Sufficient time has been given for meeting of minors with the petitioner/real mother. Two minors namely Muhammad Faizan aged about 8 years, Muhammad Rehan aged about 6 years have categorically refused to see their mother or to have any talk or conversation or meeting with her. Similar behaviour was shown by them yesterday on 07.04.2015.”

It reflects that they are being taken care by respondent No.2 and not being detained forcibly. Moreover, having guidance from the verdict laid down by the August Supreme Court of Pakistan in case titled Mst. Nadia Perveen v. Almas Noreen & others (PLD 2012 Supreme Court 758), this Court is of the opinion that as custody of both the minors has not been removed forcibly and seemingly minors are not being detained forcibly, no urgency as evident from the supra narrated facts of the case, is involved in this matter and the minors are not of very tender age, the interference by this Court under section 491 Cr.P.C in the matter as sought by the petitioner is not

required. The judgment referred by the learned counsel for the petitioner was passed in distinguishable circumstances from that of present case.

5.For what has been discussed above, the instant petition is hereby dismissed being misconceived.

However, the petitioner may approach the learned Guardian Judge, if so advised, who shall proceed purely on merits of the case without being influenced by any of the observations made by this Court which are meant only for the decision of instant petition.

(Syed Shahbaz Ali Rizvi) Judge

Approved for reporting:

Judge *Nazir*