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Criminal Miscellaneous No. 1177 of 1968, decided on 20th March 1968.

, S. 491-Writ-Habeas corpus Application for production of two minors aged 10 and 7 years-Matter regarding custody of such children already pending before Guardian Judge under Ss. 12 & 25, Guardians and Wards Act (VIII of 1890)-High Court in such circumstances can, in an appropriate case, decide application under S. 491.

Shaik Moidin v. Kunhadevi A I R 1929 Mad 33; Subbaswami Goundan v. Kamakshi Ammal and another; A I R 1929 Mad. 834; Sultan Singh v. B. Maya Ram Radha Sawami A 1 R 1930 Ali. 260; Mst. Haideri Begum v. Jawad Ali A I R 1935 All. 55; Muhammad Amir v. Nasurddin Ahmad A I R 1952 M B 54 and Mushtaq Ahmad v. Mirza Muhammad Amin and another P L D 1962 Kar. 442 considered.

All Raza for Petitioner.

Muhammad llyas Khan for Respondent.

This an application by one Mst. Khurshid Beguru under section 491,Cr. P. C., for the production of her two sons namely, Fayyaz Hussain aged 10 years and Sarfraz Husain aged about 7J years, who according to her were being maltreated in the custody of the respondent.

2. In view of the allegations made in the application, especially the cruelty of the step-mother towards them, a Bailiff was deputed to produce the boys in this Court.

3. On the day of hearing, a written-statement was put in by the respondent. It was stated that the matter regarding the custody of the children was pending before the learned Guardian Judge under sections 12 and 25 of the Guardians and Wards Act, which Court alone is competent to decide such a question. In any case, the children were to the custody of their father and they were well-looked after and the alleged cruel treatment was denied. The father having interest in the children looks after them well and they are being educated and are studying in Khawaja Model High School, Gujranwala, the elder in the sixth class and the younger in the 4th class, respectively.

4. Certain allegations were also made against the mother that she was being prosecuted under section 55/109, Cr. P: C., in the Court of Mr. Waqar Ahmed, Magistrate, Lahore. The respondent also submitted that he was duped while entering into marriage with the petitioner knowing her to be a widow, but one Imam Din claimed .her to be his wife.

5. The question for consideration was as to whether in the circumstances of the case, where applications under the Guardians and Wards Act are pending before the Guardian Judge, this Court can decide such a question under section 491, Cr. P. C. I have considered the following cases on this point;

(i) Shaik Moidin v. Kunhadevi A I R 1929 Mad. 33

(il) Subbaswami Croundan v. Kamakshi Animal and another A I R 1929 Mad. 834,

(iii) Sultan Singh v. B. Maya Ram Radha Sawami A I R 1930 All. 260,

(iv) Mst. Haideri Begun v. Jawad Ali A I R 1935 All. 55

(v) Muhammad Amir v. Nasuruddin Ahmad A I R 195: M B 54, and

(vl) Mushtnq Ahniad v. Mirza Muhammad Amin and another P L D 1962 Kar. 442,

and am of the view that in an appropriate case, this Court has jurisdiction under section 491, Cr. P. C. to determine such question.

6. Coming to rue merits, it is no doubt true that the learned Guardian Judge is sitting over the question of territorial jurisdiction raised before him, though the applications were filed in September 1966, but it is not desirable to decide the question o the custody of the children in this application. An explanation however, should be called from Mr. Akhtar Hassan, Guardian Judge, Lahore, for the unnecessary delay in the proceedings before, him. The question of custody has to be determined after recording of evidence in the case which I would not like to do here in this application, especially in view of the fact that the case is very much contested and the respondent is prepared to give a bond about the safety of the children so long as they are in his custody. This I feel is a sufficient guarantee of the safety of the children in the custody of the respondent. He will execute a surety bond in the sum of Rs. 10,000.00, with one surety in the like amount to the satisfaction of the Deputy. Registrar of this Court for this purpose He has also undertaken to produce the children every month before the Guardian Judge who will fix the date in order to provide an opportunity to the petitioner to see them so long as they are in the custody of the respondent. The Guardian Judge is, however, directed to decide the matter pending before him without any further delay. This petition is dismissed.

Petition dismissed.

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