Law: Criminal Procedure Code (V of 1898)

Section: 491

JUDGMENT SHEET   ARBAB MUHAMMAD TAHIR, J: Through the instant writ petition under Article 199 of the Constitution read with section 491 Cr.P.C., petitioner namely Ms. Hina Tariq (‘petitioner’) impugns order dated 04.10.2022 passed by the learned Addl. Sessions Judge, Islamabad (west) whereby her petition in terms of Section 491 Cr.P.C seeking recovery of minor namely Eman Shah, aged about 8 years, (‘minor’) was dismissed. In-addition, she sought recovery of the minor from the custody of her exhusband namely Shaibzada Shah Saud (‘respondent No. 2’).   Tersely, the minor Eman Shah, aged about 8 years, is offspring of petitioner and respondent No. 2, who have since separated their ways. The learned court of first instance while deciding the petition under section 491 Cr.P.C filed by the petitioner observed as under:-   “First of all, the scope of section 491 Cr.P.C is to be kept in view. As per Para No. 7 of the petition, the petitioner herself admits that she has not only remarried but the alleged detenue child has been in custody of respondent No. 1 in lieu of an agreement. Further, she stated that she has also filed a guardian petition to obtain the custody of said child. In this preview, instant petition and the request being made by the petitioner is not covered by Section 491 C.r.P.C which has obviously been legislated to deal with an emergent situation and recent forcibly change of custody Moreover, the custody of father Isi neither improper nor illegal and the instant matter is exclusively entertain able by the learned Guardia Court. Hence the petition stands dismissed File be consigned to record room after its due completion and compilation”. (Emphasis Supplied)     The admitted facts of the case are that the petitioner has since contracted second marriage which is intact, that the minor aged about 8 years is in custody of respondent No. 2/real father and that the petitioner, in order to have custody of the minor has already filed a petition under the Guardian and Wards Act before the Court of competent jurisdiction.    The petition is being pressed, inter-alia, on the…