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Criminal Miscellaneous No. 97/H of 1982, decided on 18th April, 1982.

-- S. 491 and Guardians and Wards Act (VIII of 1890), S. 25 Minor-Custody-Minor in custody of paternal uncle-His applica tion under S. 25 for appointment of. guardian already pending before Guardian Judge-Held, petitioner may contest application before Guardian Judge-Judge to decide matter in accordance with law-Petition under S. 491 not competent.

-- S. 491 read with Guardians and Wards Act (VIII of 1890), S. 12-Habeas corpus-Matter regarding custody of minor pending before Guardian Judge-Dealing with matter in proceedings under S. 491, Cr. P. C., held, tantamount to forestalling a decision Apprehension about danger to life or health of alleged detenu--- Can be adequately safeguarded in application under S. 12.

Nazir Ahmad Shami for Petitioner.

C. M. Latif Rawn for Respondent.

Date of hearing : 18th April, 1982.

This application under section 491, C. P. C. seeks production of Muhammad Rafiq (minor) son of the petitioner from her former husband and nephew of the respondent from the alleged illegal custody of the res pondent so as to be set at liberty.

2. It has been alleged in this application that the respondent came to the house of the petitioner about two or three days before the institution of the petition and took away the minor Muhammad Rafiq alongwith him and has kept him in his house confined in a room and the minor is not allowed to come out of the said room.

3. It has been asserted that despite request of the petitioner the res pondent has not released the alleged detenu and has stated that he will rather kill the boy than give his custody to the petitioner.

4. Notice was issued to the respondent who has submitted a written statement and controverted the allegations contained in the application. He has also stated that the minor child Muhammad Rafiq has been living with him for a considerably long period of time and that he is bearing all his expenses and that the custody of the child was handed over to him after the petitioner had remarried.

5. It has further been asserted that in order to be the lawful guardian of the minor immediately after taking custody of the minor from the father of the petitioner the respondent made an application before the Guardian Judge under section 25 of the Guardians and Wards Act for be ing appointed the guardian of the person of the minor.

6. It has also been asserted in the written statement that the respon dent is the real paternal-uncle of the minor and has love and affection for the son of his deceased brother and is looking after his welfare and education properly and that he has no interest adverse to the minor who does not even own any property.

7. The learned counsel for the petitioner contended that the minor has been illegally detained and as such he should be set at liberty after production in this Court. It is also asserted that there is danger to the life and health of the minor.

8. The learned counsel for the respondent, on the other hand, sub mitted that the contentions raised on behalf of the petitioner are only fabrications and that the respondent being the real paternal uncle of the minor cannot even think of causing any harm to him., and, in fact, wants to keep the custody with him to ensure good education to him which he cannot receive by living with .the petitioner who has taken a second husband.

Having given consideration to the controversy involved I am of the view that this application has no merit. It being the admitted posi tion that the minor is in custody of the respondent who is the real paternal uncle and who has made an application under section 25 of the Guardians and Wards Act, the appropriate remedy for the petitioner is to contest the said application and it will be for the learned Guardian Judge to decide the matter in accordance with law and on the basis of the facts and material brought on the record of his file.

10. Dealing with the matter in proceedings under section 491, Cr. P. C. would tantamount to forestalling a decision in the aforesaid proceedings before the learned Guardian Judge which, in fact, is not proper forum for determination of the custody of the minor. The apprehension shown by g petitioner about the danger to the life or health of the alleged decenu can be adequately safeguarded against by her making an application under section 12 of the Guardians and Wards Act for determination of the question of interim custody.

11. This application in view of the above position has no force and is accordingly dismissed.

12. At this stage, the learned counsel for the petitioner has shown an apprehension that the respondent would cause hindrance in the way of the petitioner defending the matter before the Guardian Judge and she also apprehends bodily harm if she goes to Faisalabad to appear before the Guardian Judge there.

13. I am afraid this apprehension in the absence of any overt act attributed to the respondent can be given no consideration. It is, however, observed that in case the petitioner comes across any such situation, she can have recourse to Police who I have no doubt will act in accordance with law/or bring the matter to the notice of the Guardian Judge seized of the matter.

Application dismissed.

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