Law: Criminal Procedure Code (V of 1898)

Section: 491

Criminal Procedure Code (V of 1898)--- ----S. 491---Habeas corpus petition---Petitioner/mother had sought recovery of her minor son, four years of age, stated to be illegally detained and confined by father of the minor---Ordinarily, a mother and not the father, would be entitled to 'Hizanat' of any 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. Muhammad Javed Umarao v. Miss Uzma Vahid 1988 SCMR 1891; Nisar Muhammad and another v. Sultan Zari PLD 1997 SC 852; Naziha Ghazali v. The State and another 2001 SCMR 1782; Mst. Khalida Perveen v. Muhammad Sultan Mehmood and another PLD 2004 SC 1 and Mst. Nadia Perveen v. Mst. Almas Noreen and others Criminal Petition No. 127-L of 2010 rel. ORDER MUHAMMAD YAWAR ALI, JUSTICE:---.--- Through this petition filed under section 491, Cr.P.C. the petitioner seeks recovery…

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