Law: Criminal Procedure Code (V of 1898)

Section: 491

(a) Criminal Procedure Code (V of 1898)--- ----S. 491---Habeas corpus petition---Custody of minor---Power to issue directions of the nature of a habeas corpus in matters regulating the custody of minors---Extent and scope---Jurisdiction of High Court under S.491, Cr.P.C. being of a summary nature, factual controversies cannot be explored---Such jurisdiction, therefore, is to be used sparingly in guardianship matters as the plenary jurisdiction would rest with the Guardians Judge---However, in appropriate cases where it is, prima facie, established that the custody of a minor was removed unlawfully by either the husband or the wife, then certainly relief can be given under the provisions of S.491, Cr.P.C.---Right of guardianship (Hizanat) under Islamic Law in such matters cannot be equated to lawful custody which is a matter of fact. Nisar Muhammad v. Sultan Zari PLD 1997 SC 852; Yasmeen Qamar v. Khalee quzzaman 1997 PCr.LJ 581; Naushabah Tabassum v. Ghulam Madni Shah 1987 PCr.LJ 1318; Naziha Ghazali v. The State 2001 SCMR 1782 and Farzana Sarwar v. The State 2001 YLR 1803 ref. (b) Criminal Procedure Code (V of 1898)--- ----S. 491---Habeas corpus petition---Custody of the minor---Applicant mother herself having given the custody of her minor son to the respondent father, custody of the minor with the father was not unlawful---Although according to the applicant the minor's custody was forcibly taken away from her, yet such fact was not established either by her own conduct or from the circumstances available on record---Even a police report was not filed by the applicant in this regard---Application for the custody of the minor was dismissed in circumstances. Nisar Muhammad v. Sultan Zari PLD 1997 SC 852; Yasmeen Qamar v. Khaleequzzaman 1997 PCr.LJ 581; Naushabah Tabassum v. Ghulam Madni Shah 1987 PCr.LJ 1318; Naziha Ghazali v. The State 2001 SCMR 1782; Mst. Irfana Shaheen v. Abid Waheed PLD 2002 Lah.283; Muhammad Ramzan v. Federation of Pakistan 2001 MLD 1608 and Farzana Sarwar v. The State 2001 YLR 1803 ref. ORDER The brief facts of the matter per the Applicant are that she was married to the respondent No.1 in February, 1998 according to the Nikahnama on the…

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