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Criminal Miscellaneous Application No. 386 of 1971, decided on 21st September 1971.

----5 Custody of children-Matter within exclusive jurisdiction of Family Courts-Petition under S. 491, Cr. P. C. for obtaining custody of child, held, not maintainable-Criminal Procedure Code (V of 1898), 5.491

Adnan Afzal v. Captain Sher Afzal P L D 1969 S C 187 rel.

Amer Aziz Saiyid for Petitioner.

Sh. Mir Muhammad for Respondents.

Advocate-General for the State

Date of hearing: 20th September 1971.

.-This is a criminal petition under section 491 of the Code of Criminal Procedure. It came up today for hearing after it was admitted to regular hearing earlier. But today no one appeared on behalf of the petitioner nor the petitioner herself is present. However, the learned Advocate-- General who was given a notice to appear in this case has appeared and counsel for the respondents Mr. Shaikh Mir Muhammad has also appeared.

The learned Advocate-General has invited my attention to section 5 of the West Pakistan Family Courts Act, 1964 which is as follows

"5. Jurisdiction: Subject to the provisions of the Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule."

3. It will be noticed that this section gives exclusive jurisdic tion to Family Courts for those matters which are specified in the Schedule to the Act. The Schedule of the Act speaks of custody of children, therefore, the Family Courts have special an exclusive jurisdiction to deal with the matter concerning the custody of children. The present petition is also concerning the custody of a child. The learned Advocate-General has cited in support of his argument a case of Adnan Afzal v. Captain Sher Afzal (P L D 1969 S 0 187), wherein it has been held that as from the 5th of April 1966, when Judges of the Family Courts became vested with powers of Magistrate of First Class, the only Court which has jurisdiction to entertain, bear and adjudicate upon the matter specified in the Schedule was the Family Court. This decision of the Supreme Court clinches the whole issue, therefore in this matter the present petition under section 491, Cr. P. C. does not lie as the remedy of the petitioner is to approach the Family Court for the purpose of obtaining custody of the child concerned.

4. As the petition under section 491, Cr. P. C is not competent in this Court, therefore, I dismiss it as being not maintainable.

Petition dismissed.

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