Mst. Husan Bano Vs The Stae through Advocate General, KP, Peshawar, and others

PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

W.P (HCP) No.10476-P/2025

Mst. Husan Bano daughter of Rahim Khan, resident of Gujar, Tehsil and District Peshawar, (real mother of Anamta and Aniza minors/detenues.

v.

The State through Advocate General, Khyber Pakhtunkhwa, Peshawar, and others.

For petitioner: Mr. Naveed Jan, Advocate, alongwith petitioner in person.

For the State: Arbab Fakhr-e-Alam, AAG.

For respondents: Mr. Jalal-ud-Din, Advocate, alongwith respondent No.2 in person.

Date of hearing: 18.09.2026

JUDGMENT

INAM ULLAH KHAN, J.- Through this writ petition (HCP) under Article 199 of the Constitution read with Section 491, Cr.P.C., the petitioner prayed that the order dated 30.10.2025 of the learned Additional Sessions Judge-XX, Peshawar/respondent No.4 be declared null and void and respondent No.2 be directed to hand over custody of the minors/detenues, Anamta and Aniza, to the petitioner as their real mother and natural guardian.

2.Briefly, the petitioner has averred that the detenues, aged about 16 months, are the twin daughters of the petitioner and respondent No.2, whose marriage was contracted in 2022. Following domestic discord, respondent No.2 allegedly turned the petitioner out of the matrimonial home and forcibly retained custody of the minors. Having failed to recover the minors through the police and through Jirgas, the petitioner invoked the jurisdiction of the learned Additional Sessions Judge-XX, Peshawar under Section 491, Cr.P.C. That petition was disposed of vide order dated 30.10.2025, whereby the learned Additional Sessions Judge, after recovery and production of the minors, declined to disturb their custody with the father/respondent No.2, regulating it instead under strict conditions including a surety bond and a restriction against removal of the minors from District Peshawar. The petitioner, having availed that remedy and considering no other efficacious remedy available to her, has approached this Court through the instant petition.

3.Learned counsel for the petitioner argued that the petitioner, being the real mother and natural guardian of minors of extremely tender age, is entitled to their hizanat, and that their continued retention by the father amounts to constructive illegal detention warranting

interference by this Court in its extraordinary jurisdiction.

4.Conversely, learned counsel for respondent No.2, on the other hand, submitted that the petitioner had voluntarily left the minors with the father when they were barely fifteen days old, that the minors have since been in his exclusive and continuous care, that the petition was filed after an inordinate delay of about one and a half years by which time a strong physical and emotional bond had developed between the father and the infants, and that an abrupt change of custody at this stage would be detrimental to their welfare.

5.This Court has heard the learned counsel for the parties at considerable length, perused the available record with their able assistance, and minutely examined the reasoning adopted by the learned lower forum.

6.Before proceeding to the merits, this Court considers it necessary to first settle a more fundamental question that the very frame of the petition raises. The petitioner, having already invoked and obtained a considered order from the learned Additional Sessions Judge-XX, Peshawar in proceedings under Section 491, Cr.P.C., has chosen to assail that very order directly before this Court under Article 199 of the Constitution. The question, therefore, is whether such a course

was competent, or whether the order, being that of a court subordinate to this Court, was open to challenge only by way of a criminal revision under Sections 435/439, Cr.P.C.

7.Three distinct heads of jurisdiction bear upon this question, and they must not be conflated with one another. First, the original constitutional jurisdiction of this Court under Article 199 of the Constitution, read with Article 175. Article 175(2) declares that no court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law, and it is Article 199 which is the constitutional source of this Court’s extraordinary, supervisory jurisdiction. Under clause (b)(i) it extends to directing production of a person in custody within the territorial jurisdiction of the Court so that the Court may satisfy itself that he or she is not held without lawful authority or in an unlawful manner; under clause (c) it extends, more broadly, to the enforcement of fundamental rights against any person or authority. Critically, the opening words of Article 199(1) make the exercise of this jurisdiction conditional upon the Court being “satisfied that no other adequate remedy is provided by law.” That condition is not a formality; it is what keeps constitutional jurisdiction residual rather than parallel to statutory remedies.

8.Secondly, the jurisdiction conferred on “any High Court” by Section 491, Cr.P.C. Sub- section (1), in its own terms, vests the power to issue directions in the nature of habeas corpus, including, under clause (b), the direction to set at liberty a person illegally or improperly detained, exclusively in the High Court, exercisable within the limits of its own appellate criminal jurisdiction. This is a statutory, summary jurisdiction distinct from Article 199: it is concerned only with the legality or propriety of an existing custody, not with a final adjudication of competing custodial claims, which is reserved to the Guardian Court under the Guardians and Wards Act, 1890. Reference may be made to Muhammad Rafique v. Muhammad Ghafoor (PLD 1972 SC 6) & Sardara v. Khushi Muhammad

(1973 SCMR 189).

9.Thirdly, the jurisdiction of the Court of Session. This is where the real difficulty lies, and it must be stated with precision. Section 491 does not, by its bare text, create any independent jurisdiction in a Court of Session. What sub- section (1-A) does is enable the High Court, by a general or special order published in the official Gazette, to direct that its own powers under clauses (a) and (b) of sub-section (1) shall be exercisable also by the Sessions Judge or Additional Sessions Judge and, tellingly, the sub- section makes this exercisable “subject to such

conditions, if any, as may be specified in the order.” The jurisdiction made available to the Court of Session is thus a statutory delegation, but one that remains, at every point, subject to the terms and continuing direction of this Court: it is this Court’s own order that brings the jurisdiction into being, defines its contours, and could equally curtail or withdraw it. It is not an independent jurisdiction conferred by the Code in the manner Chapter III confers original trial jurisdiction on Magistrates and Courts of Session; it is a jurisdiction held, and exercised, at the continuing direction of the High Court. That said, once the delegation takes effect it does not operate as a mere stand-in that displaces this Court’s own forum for so long as it subsists. This Court’s jurisdiction under Section 491 is not thereby divested; the two exist side by side, and a person aggrieved by an alleged illegal or improper detention may, at the very outset, approach either forum. The jurisdiction is, in the fullest sense, concurrent as held in Sadia Aziz v. D.P.O. (PLD 2025 Lahore 540), that proceedings under Section 491 can be initiated before the Sessions Judge or Additional Sessions Judges, or before the High Court.

10.It is well-settled that an order passed by a Sessions Judge or Additional Sessions Judge under Section 491(1-A), Cr.P.C. is an original, summary judicial order rendered by an inferior

Criminal Court within the meaning of Section 435(1), Cr.P.C. In the statutory hierarchy of the Code, the supervisory mechanism enacted to test the correctness, legality, and propriety of findings or orders recorded by such inferior courts is supplied by Sections 435 and 439, Cr.P.C. Because an order under Section 491(1-A), Cr.P.C. is an original disposition and not an order passed in revisional capacity under Section 439-A, Cr.P.C., no statutory prohibition bars the High Court from exercising its revisional jurisdiction under Section 439, Cr.P.C. to scrutinize its legality, correctness, or regularity. Where a subordinate criminal court has rendered a definitive judicial determination on a petition for habeas corpus, the ordinary, structured statutory avenue to assail that specific judicial order before this Court is by way of criminal revision under Section 439, Cr.P.C.

11.The invocation of Article 199 of the Constitution in such matters must be placed in its proper constitutional perspective. Under Article 199(1)(b)(i), this Court exercises an independent, extraordinary jurisdiction in the nature of habeas corpus to ensure that no person within its territorial limits is held without lawful authority or in an unlawful manner. While the continuing unlawful or improper detention of a citizen or minor can never be shielded by technical procedural barriers, the rule governing

adequate statutory remedies remains a sound principle of judicial restraint. Where the Code of Criminal Procedure itself provides a direct, comprehensive, and efficacious statutory remedy through criminal revision under Section 439, Cr.P.C. before this very Court, armed with plenary powers to call for the record, examine the jurisdictional bounds of the inferior court, correct material illegalities, and prevent miscarriage of justice recourse, should ordinarily be had to that statutory supervisory mechanism rather than framing the challenge as an original constitutional petition under Article 199.

12.This statutory framework must also be distinguished from the inherent powers reserved under Section 561-A, Cr.P.C. By its express statutory terms, Section 561-A preserves the inherent jurisdiction of the High Court alone to prevent abuse of the process of any court or otherwise to secure the ends of justice; it does not inhere in, nor can it be exercised by, a Court of Session functioning under delegated powers pursuant to Section 491(1-A), Cr.P.C. In matters involving the custody of infants of tender age, the superior courts have repeatedly affirmed that technicalities must yield to the welfare of the child and substantial justice, drawing upon the inherent and protective powers of the High Court where summary statutory provisions prove rigid or inadequate. Reference may be made to

Khalida Perveen v. Muhammad Sultan Mehmood (PLD 2004 SC 1). However, such inherent powers are complementary and do not displace the direct statutory supervisory avenue under Section 439, Cr.P.C. when the specific grievance is directed against an erroneous judicial order of an inferior criminal court.

13.It is settled beyond controversy that in matters concerning the custody and welfare of minors of tender age, justice is not to be throttled or defeated by technicalities of form, label, or nomenclature. Consistently with that cardinal principle, this Court declines to non-suit the petitioner on the mere ground of having styled the petition under Article 199 of the Constitution read with Section 491, Cr.P.C. The core substance of the relief sought namely, scrutinizing and setting aside the order dated 30.10.2025 passed by the learned Additional Sessions Judge-XX, Peshawar on grounds of jurisdictional error and misapplication of custody principles falls squarely within the supervisory ambit of Sections 435/439, Cr.P.C. This Court, accordingly, treats and proceeds to adjudicate the instant matter in substance as a Criminal Revision, without subjecting the distressed mother to the delay of filing a fresh petition.

14.Turning then to the merits, the status of the parties is not in dispute: the petitioner is the biological mother, and respondent No.2 the

biological father, of the minors. The minors were, therefore, not found in the custody of a stranger. The jurisdiction under examination, whether exercised under Section 491, Cr.P.C. or in the revisional capacity explained above, is summary in nature and confined to whether the existing custody is illegal or improper. It is not a substitute for a substantive determination of custody, which lies with the competent Guardian Court. The minors have resided with respondent No.2 from a very early stage of their lives; they were produced before the learned Court below as well as before this Court pursuant to judicial process; the learned Additional Sessions Judge had the opportunity of personally observing the minors and recorded that they were not shown to recognise the petitioner, being emotionally and physically settled with the father; and respondent No.2 has furnished an undertaking, secured by a bond of Rs.500,000/- with two sureties, together with a restriction against removal of the minors from District Peshawar, to ensure their proper care, upbringing, health and education under the continuing supervision of the Court.

15.On this material, the mere fact that the petitioner is also a natural parent, or that she asserts a superior claim to hizanat, does not by itself convert the existing custody into illegal or improper detention within the meaning of Section 491, Cr.P.C. No circumstance of a compelling

nature, such as neglect, ill-treatment, or incapacity on the part of respondent No.2 has been shown as would justify disturbing, in this summary jurisdiction, an arrangement that has subsisted for a substantial period and that remains subject to the safeguards imposed by the Court below. This Court, accordingly, finds no jurisdictional defect, material irregularity or perversity in the order dated 30.10.2025 calling for interference.

16.For the foregoing reasons, this Court finds no sufficient ground to interfere with the order passed by the learned Additional Sessions Judge-XX, Peshawar. The impugned order is accordingly maintained and the instant petition is dismissed. The dismissal shall, however, be without prejudice to the petitioner’s right to approach the competent Guardian Court for determination of custody, guardianship and visitation, strictly in accordance with law and keeping the welfare of the minors as the paramount consideration. Nothing in this judgment, nor in the order of the Court below, shall be treated as a final determination of the parties’ substantive rights of custody or guardianship.

Announced

(M.Iqbal)

JUDGE

(S.B.) Hon’ble Mr. Justice Inam Ullah Khan.