Mst. Misbah . Vs ASJ Sheikhupura etc.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

W.P No.46971 of 2026 Mst. Misbah Bibi Versus Additional Sessions Judge etc

JUDGMENT

Date of Hearing. 31.08.2026

PETITIONERS BY: Mr. Muhammad Usama Advocate vice counsel for petitioner .

RESPONDENTS BY: Mr. Falak Shair Bukhsh Gill A.A.G.

Ch. Zahis Saeed Addvocate for respondent No.3.

ASAD ALI BAJWA, J: Through the instant

Constitutional Petition, the petitioner has called in question the legality of the impugned order dated 10.08.2026, passed by the learned Additional Sessions Judge, Sheikhupura (respondent No.1), to the extent of furnishing bond in the sum of Rs.700,000/- with one local surety by the petitioner and restraining her from taking the minor outside the territorial jurisdiction of the court.

2.Learned counsel for the petitioner contends that the conditions imposed upon the petitioner by respondent No.1 are without lawful authority, being beyond the scope and ambit of the jurisdiction vested in him under Section 491, Cr.P.C. It is further submitted that, following her desertion, the petitioner has been residing with her parents in District Hafizabad, therefore, the condition

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restraining her from removing the minor beyond the territorial jurisdiction of the learned Court is misconceived, unwarranted and legally unsustainable. Learned counsel maintains that the said condition, having no lawful justification or nexus with the limited jurisdiction exercisable under Section 491, Cr.P.C., is liable to be set aside.

3.Conversely, learned counsel appearing on behalf of the respondent No.3 has vehemently opposed the instant petition and submits that both the conditions imposed by respondent No.1 are lawful, justified and within the scope of jurisdiction provided under Section 491, Cr.P.C.;

therefore, the impugned order, to the extent challenged herein, calls for no interference by this Court. Further submits that this petition is not maintainable and in support relies upon cases reported as Muhammad Abbasi Vs. SHO Bhara Kahu and 7 others (PLD 2010 S.C. 969), Mahera Fatima Vs. Province of Sindh and others (2007 YLR 1487) and Natasha Rashid Vs. Rashid Zar and 4 others (PLJ 2010 Karachi 87).

4.Heard.

5.Taking up the objection regarding maintainability of the instant petition, I am of the view that since no remedy against the impugned order is available, therefore, the instant Constitutional petition is maintainable. The case

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law relied upon by the learned counsel for the respondent No.3 is not applicable to the facts of the case.

6.The factual delineation of the case calls upon this Court to determine as to whether the order passed by the court below to the extent of imposition of restriction upon the petitioner not to leave the territorial jurisdiction of the court is in consonance with the jurisdictional confines of the said court.

7.It is an admitted position that the petitioner is residing with her parents in District Hafizabad, as evident from the very caption of the petition instituted by her under Section 491, Cr.P.C. before respondent No.1.

Learned Additional Sessions Judge, Sheikhupura, while handing over the custody of the minor, aged about one year to the petitioner imposed two conditions, firstly, that she would furnish a surety bond in the sum of Rs.700,000/- and secondly, she would not remove the minor from the territorial jurisdiction of the Court except in case of an emergency on account of health issues.

8.The aforesaid both conditions traveled beyond the permissible scope and ambit of jurisdiction exercisable under Section 491, Cr.P.C. The jurisdiction under Section 491, Cr.P.C. in matters relating to the custody of minors is extraordinary and is to be exercised in cases of real urgency, essentially for regulating interim custody, whereas the question of final custody is to be determined

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by the Guardian Court. The remedy under Section 491 Cr.P.C. is distinct from and does not supplant the jurisdiction of the Guardian Court. The jurisdiction under Section 491 Cr.P.C. and under the Guardians and Wards Act, 1890 (hereinafter referred to as “Act, 1890”) operate in their respective fields and the questions relating to permanent custody falls within the domain of the Guardian Court. It is clear that availability of a remedy under the Act, 1890 does not, by itself, oust the jurisdiction under Section 491, Cr.P.C., but such jurisdiction is necessarily invoked to meet an emergent situation and to regulate interim custody. Jurisdiction under section 491 Cr.P.C. is to be exercised without prejudice to the rights of the parties to have the matter finally adjudicated upon by the Guardian Judge. Reliance is placed on Hussan Begum Vs. 1st Additional District and Sessions Judge, Karachi West and 3 others (2013 P.Cr.L.J 1503). In the present case, once the custody of the tender-aged minor had been found fit to be entrusted to the petitioner, the imposition of a condition restraining her from removing the minor from the territorial jurisdiction of the Court, coupled with an onerous surety requirement of Rs.700,000/-, cannot be sustained unless such restrictions are shown to have a lawful nexus with the limited purpose for which jurisdiction under Section 491, Cr.P.C. is exercised. Section 491 Cr.P.C., in essence, is a protective and remedial jurisdiction and it cannot be converted into a mechanism for imposing

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restrictions upon the liberty of the person to whom interim custody has lawfully been entrusted, particularly when no circumstance has been recorded demonstrating that the petitioner is likely to defeat or frustrate the jurisdiction of the competent Guardian Court. The petitioner being real mother was entrusted with the custody of minor baby, therefore, respondent No.1 was not competent to impose restrictions and conditions referred supra while invoking its limited jurisdiction. Respondent No.1 was under no circumstances to assume the powers envisaged in the Act, 1890 and exercise the jurisdiction assigned to the Guardian Judge. Moreover, if respondent No.3 apprehends the removal of minor baby from the territorial jurisdiction of Guardian judge, he may seek appropriate remedy from the concerned Court. The impugned conditions, therefore, amount to placing an unwarranted embargo upon the petitioner’s liberty and movement, for which no express authority can be found in Section 491, Cr.P.C. Even otherwise, a conditional order of this nature is, by its very character, intended only to preserve the rights and interests of the parties until the matter is finally determined. Mere apprehension that the minor or alleged detenue may be removed permanently from the jurisdiction or taken out of the country may, in an appropriate case, justify the imposition of a protective condition, however, such apprehension cannot furnish a lawful basis for imposing an indefinite or perpetual

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restraint upon the liberty of the parties. Any such restriction must necessarily remain provisional, proportionate to the apprehended risk, and co-extensive with the purpose for which it is imposed. Therefore, the Court cannot, under the guise of granting interim protection, impose conditions which operate as a permanent curtailment of the rights and liberties of the mother and the minor guaranteed under the Constitution of Islamic Republic of Pakistan, 1973.

9.The fundamental legislative purpose underlying Section 491 Cr.P.C is to ensure the liberty of persons in illegal public or private confinement and an emergency and/or stop-gap arrangement for ensuring the restoration of the custody of the minors of tender age to the parent who have been deprived from such custody on account of unlawful snatching of the minor. This provision is neither substitution nor an alternate to the mechanism and procedure laid down in the Act, 1890.

10.Similarly, the court in exercise of the jurisdiction under Section 491 Cr.P.C is considered to run the entire jurisdictional gamut once it has set the person at liberty and/or restored the custody of the minor of tender age to whom it considers entitled to as a stop-gap arrangement till the jurisdiction of the Guardian court under the Act, 1890 is set into motion and/or invoked by either of the parent or anyone else claiming custody of the minor. The

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superior courts of the country have consistently postulated that the jurisdiction under Section 491 Cr.P.C. is to be exercised sparingly and in real cases of urgency while remaining pivoted to the view that even a Guardian judge under the Act, 1890 is fully equipped procedurally and jurisdictionally to recover the custody of the minor and regulate the interim custody. Thus, the court below having restored the custody of the minor to the petitioner was not obligated to proceed further and pass sweeping restraint upon the petitioner-mother not to remove the minor from its jurisdictional confines and territory as this would push the proceedings to jurisdictional collision course with that of the Guardian Court and put a clog on the petitioner to invoke the territorial jurisdiction of the competent court for this purpose which the petitioner is to choose in accordance with law. It is well settled that jurisdiction under section 491 Cr.P.C. being a carve out provision must be used sparingly and in cases of real urgency and cannot be so extended and stretched to encroach upon the regular jurisdiction of the Guardian court which is empowered under the Act, 1890 to regulate interim custody. It indeed falls within the regulation of interim custody to bind a custodial parent not to remove the minor from the territorial bounds of the court and the same is beyond the jurisdictional clutches of section 491 Cr.P.C. It is observed that, where either party seeks to invoke the jurisdiction of the learned Guardian Judge for the determination of

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custody and/or guardianship of the minor, the fetters imposed by the Court below would operate as an impediment to the exercise of such jurisdiction and indirectly prejudice the parties’ right to seek appropriate relief before the forum competent in law to adjudicate upon such matters. Reliance is placed on cases of Nisar Muhammad and another Vs. Sultan Zari (PLD 1997 SC 852), and Mst. Nadia Perveen Vs. Mst. Almas Noreen and others

(PLD 2012 SC 758).

11.The conditions imposed by respondent No.1 are completely alien to the scheme and object of section 491 Cr.P.C. The jurisdiction exercised by the Court in matters concerning custody and guardianship of a minor is to be guided by the welfare of the minor and the circumstances of the mother and the child, and cannot be converted into a mechanism for placing unwarranted restraints upon their ordinary life and freedom of movement. The impugned order, however, traveled beyond the lawful parameters of such jurisdiction by subjecting the petitioner-mother and the minor to restrictions which have the effect of curtailing their liberty and even restraining them from leaving or residing in their own home. Such conditions, having no discernible sanction in law, amount to an unwarranted exercise of jurisdiction under section 491 Cr.P.C and cannot be sustained. Respondent No.1 while exercising jurisdiction under the said provision, was required to confine himself

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to the limited object of securing the welfare and lawful interim custody of the minor and could not, under the guise of regulating such custody, impose conditions which effectively curtail the ordinary liberty of the petitioner and minor. Any dispute regarding permanent or interim custody, guardianship, or long-term restrictions concerning the minor is to be adjudicated by the competent Guardian Court in accordance with law.

12.Respondent No.1 while exercising jurisdiction under Section 491 Cr.P.C., was not vested with authority to impose conditions or restrictions having the effect of curtailing the personal liberty of the minor or of the parent to whom custody was restored. The jurisdiction under Section 491 Cr.P.C. is summary in nature and is primarily intended to secure release from illegal or improper detention. Conditions such as furnishing of surety, restricting movement beyond the territorial jurisdiction of the Court, or requiring repeated production of the minor before the Court, unless warranted by law and the circumstances of the case, traveled beyond the scope of such jurisdiction. The learned lower Court, therefore, could not under the guise of exercising jurisdiction under Section 491 Cr.P.C., impose restraints which have the effect of curtailing the lawful liberty of the minor or the parent.

Reliance is placed on Mst. Wafa Andaleeb Vs. Imran Bhatti

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and 6 others (2015 PCrl.LJ 875) and Mahak Bibi Vs.

Additional Session Judge and 3 others (2014 MLD 1718).

13.In view of the foregoing discussion, the instant petition is allowed. Consequently, the conditions imposed upon the petitioner vide impugned order dated 10.08.2026 passed by respondent No.1, to the extent challenged herein, are hereby set aside.

(ASAD ALI BAJWA)

JUDGE

Approved for Reporting

JUDGE

*A.KHOKHAR*