Mst. Irshad Bibi etc. Vs D.P.O. etc.

Form No.HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT

LAHORE.

JUDICIAL DEPARTMENT

Case No: Cr. Misc. No.248023-H of 2018 Mst. Irshad Bibi v. District Police Officer, etc.

S.No. of Date of Order with signature of Judge and that of parties or counsel where Order/ order/ necessary Proceeding proceeding

12.11.2018 Malik Muhammad Arshad Kundi, Advocate for the petitioner.

Through the instant petition, the petitioner seeks recovery of her son, namely Ali Sher aged about 10 days from the illegal confinement of respondent No.4 Muhammad Shahid father of the minor.

2.In compliance of order dated 08.11.2018 passed by this Court, SHO-respondent No.2 produced minor alongwith his father respondent No.4, who admits that the age of minor is about 13 days.

3.Learned counsel for the petitioner submits that soon after the birth of minor, he has been snatched from the mother and she was forced to live in her parents’ home.

4.Admittedly, the minor is a suckling baby of about 13 days. It has consistently been held by the august Supreme Court of Pakistan in its various judgments reported as Mst. Nadia Perveen v. Mst. Almas Noreen and others (PLD 2012 Supreme Court 758), Muhammad Javed Umrao v. Miss. Uzma Vahid (1988 SCMR 1891), Nasir Muhammad and another v. Sultan Zari (PLD 1997 SC 852), Mst. Khalida Perveen v. Muhammad Sultan

Cr. Misc. No.248023-H of 2018 2

Mehmood and another (PLD 2004 SC 1) and Naziha Ghzali 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;-

1)The child is of very tender age.

2)He has quite recently been snatched away from lawful custody and,

3)There is a real urgency in the matter.

But obviously the High Court may only regulate the interim custody of the children leaving the matter of final custody to be determined by the learned Guardian Court.

5.Keeping in view the above circumstances, since the minor is a suckling baby aged about 13 days, the mother has been deprived from the custody of minor few days ago, and there is a real urgency in the matter, so, this Court while exercising powers u/s 491 Cr.P.C. order to hand over the custody of minor Ali Sher to his mother immediately. Anyhow, respondent No.4 Muhammad Shahif father, would be at liberty to approach the learned Guardian Court for regularization of custody of minor.

6.In view of above discussion, instant petition is allowed in the above terms.

(MUHAMMAD WAHEED KHAN)

JUDGE

Approved for reporting

Judge

Sajid