PLJ 2010
Present: Shahid Anwar Bajwa, J.
NATASHA RASHID--Petitioner
versus
RASHID ZAR and 4 others--Respondents
C.P. No.S-930 and CM. A. No.4179 of 2009,
decided on 14.12.2009.
Criminal Procedure Code, 1898 (V of
1898)--
----S. 491--Constitution of
Constitution of
----Art. 199(1)(c)--Constitutional
petition--Concept of writs certiorari, mandamus, prohibition, quo warranto and
habeas corpus--Maintainability--Performance of functions by the respondent in
connection with the affairs of the federation, a province or a local authority,
is not a condition precedent for maintainability of a petition under Art.
199(1)(c) of the Constitution--Use of word "including" in clause (c)
and omission thereof in clause (a) or clause (b) is most significant in this
regard--Power of High Court to enforce fundamental rights, therefore, is much
more broader and far reaching than the time-tested concepts of writs of
certiorari, mandamus, prohibition, quo warranto and habeas corpus. [Pp. 92 & 96] B & E
Custody of Minor--
----Denying a person right of company of
children--Violation of fundamental right to life--Right to life not only
include one's own life but also life liberty and happiness of one's
children--Therefore denying a person right of company of his children is
probably as severe, if not more, penalty and curse on that person than denying
him life altogether--Strongest bond that nature has created its bond between
mother and the child--Such point is not only for the period the child is within
body of the mother--Held: If a mother is denied her right of company of her
child it would amount to violation of her fundamental right to life. [P. 94] C
Criminal Procedure Code, 1898 (V of
1898)--
----Ss. 491 & 561-A--Habeas corpus
petition--Maintainability--Custody of minors--Cases pertaining to custody of
children should not be decided on technicalities--Where petition under S.491,
Cr.P.C. is not found to be competent due to absence of element of illegal
custody by the father of his own child, High Court can also pass an appropriate
order in exercise of its inherent jurisdiction. [P.
94] D
PLD 2004 SC 1 ref.
Criminal Procedure Code, 1898 (V of
1898)--
----S. 491--Guardians and Wards Act, (VIII
of 1890), S.25--Custody of minor--Habeas corpus--Enactments do not exclude each
other--Power of High Court under S.491, Cr.P.C. although are different from the
powers of a Guardian Judge under the Guardians and Wards Act, 1890 yet there is
no question of one excluding the other. [P.
96] F
2007 MLD 512 ref.
Hizanat--
----Right of--Minor was only three years
old--Held: Mother had right of hizanat. [P.
97] G
Mr. Rasheed A. Akhund and Irfan Haroon,
Advocates for Petitioner.
Mr. Khawaja Navid Ahmed, Advocate for
Respondents.
Date of hearing: 14.12.2009.
Order
Mr. Khawaja Navid Ahmad, Advocate filed
counter-affidavit on behalf of Respondent No. 1. Same is taken on record.
Factual context of the petition is that
petitioner married Respondent No. 1 on September 17, 1999 and Rukhsati took
place on 29th January, 2000. Out of the wedlock one child was born on April 19,
2001 and other child was born on October 9, 2006. Relationship between the
parties, from pleadings of two sides it appears, were far from cordial and
eventually marriage was dissolved by way of divorce. The elder child is with
the mother and the younger child is with the father.
This petition was filed under Section 491,
Cr.P.C. read with Article 199(1)(c) read with Articles 4 and 9 of the
Constitution of the Islamic Republic of Pakistan.
Mr. Rasheed A. Akhund, Advocate learned
counsel for petitioner submitted that the petition has been filed both under
Section 491, Cr.P.C. as well as under Article 199(1)(c) of the Constitution and
therefore the petition would be maintainable. He relied upon Mst. Khalida
Perveen v. Muhammad Sultan Mehmood and another PLD 2004 SC 1. He next submitted
that father had been beating the mother and referred to a Medico-legal
Certificate in this regard and relied upon Zubaida Shehzadi v. Muhammad Aslam
and another 2007 MLD 512. Learned counsel submitted that petition under Article
199(1)(c) of the Constitution can be filed even against a person who is not
performing any function in connection with the affairs of the Federation or a
Province or a local authority. In this regard he referred to Human Rights
Commission of Pakistan and 2 others v. Government of Pakistan and others PLD
2009 SC 507. He also referred to Article 9 of the Constitution and to Ms.
Shehla Zia and others v. WAPDA PLD 1994 SC 693, to contend that right to life
is to be given a broad and extended meaning. Learned counsel also referred to
Mst. Nuzhat Sultana v. Syed Farukh Raza and another PLD 2003
Mr. Khawaja Navid Ahmed, learned counsel
for the Respondent No. 1 submitted that respondent is a highly educated Doctor
and is working as Administrator in
Learned counsel for the petitioner pointed
out that the word used in the Gazette Notification in September 7, 2002 is
"May".
I have considered the submissions made by
the learned counsel and have also gone through the case record.
First question is maintainability of this
petition. Mr. Khawaja Navid Ahmed, Advocate strenuously asserted that in the
petition claim has been made against a private person and therefore writ
petition is not maintainable. Reply Mr. Akhund was two fold: firstly even in
the tile of the petition it has been stated that it is also under Article
199(1), read with Articles 4 and 9 of the Constitution of Islamic Republic of
Pakistan. It was contended by Mr. Akhund that petition under Article 199(1)(c)
of the Constitution can be filed by a persons against even a private person and
it is not essential for petition under Article 199(1)(c) that respondent be a
person performing functions in connection with the affairs of the Federation or
a Province or a local authority. In respect of Section 491, Cr.P.C. Mr. Akhund
submitted that petition has been filed under that sections also and terms of
notification with the approval of the Chief Justice and Judges of this Court on
September 7, 2002, confer jurisdiction on Sessions Judges.
No doubt under Notification dated
September 7, 2002 the High Court has granted jurisdiction to the Sessions
Judges in their respective Sessions divisions. However the word used there is
"May". Consequently there is nothing in the notification divesting
the High of its own jurisdiction. And it cannot be done. After all jurisdiction
has been conferred upon the High Court by the Constitution and the law.
Therefore conferring jurisdiction on the Sessions Judges cannot be read to mean
that High Court ceases to have jurisdiction under Section 491, Cr.P.C.
Much emphasis was laid by Mr. Akhund on
Article 199(1)(c) of the Constitution of Islamic Republic of Pakistan. The said
Article reads as under:--
"199. Jurisdiction of High
Court.--(1) Subject to the Constitution, a High Court may, if it is satisfied
that no other adequate remedy is provided by law,--
(c) on the application of any aggrieved
person, make an order giving such directions to any person or authority,
including any Government exercising any power of performing any function in, or
in relation to, any territory within the jurisdiction of that Court as may be
appropriate for the enforcement of any of the Fundamental Rights conferred by
Chapter-1 of Part-II Adjourned to a date in office."
In Human Rights Commission of Pakistan's
case (supra), the factual context was that an agriculturist had moved the High
Court alleging that a large number of person having obtained loans from
Zamindars and having contracted to render services being otherwise bound to do
so under the Sindh Tenancy Act, 1950 were misusing the provisions of Section
491, Cr.P.C. to avoid repayment of the loans or to render services in
accordance with the Tenancy Act and contracts voluntarily entered into by them.
On the other hand many petitions were preferred on behalf of several
individuals alleging to be unlawfully detained by different landowners and
subjected to forced labour in violation of fundamental rights guaranteed to
them by the Constitution and the law including Bonded Labour System (Abolition)
Act, 1992. The High Court dismissed the constitution petition and the matter
was taken to the Honourable Supreme Court. The Honourable Supreme Court
observed as under:--
"Indeed there is a large number of
cases relating to minors and women where the Courts have declined to exercise
jurisdiction under Section 491, Cr.P.C. requiring the matter to be adjudicated
in the fora established by law. Nevertheless invariably in all those cases the
respondents have claimed a legal right to the custody of the person allegedly
detained. The basis of distinction in our humble view is not that of a person's
detention in public or private custody but the fact that the respondent has
asserted a legal right to keep the person allegedly detained in his custody,
and therefore the Courts have rightly required that disputes as to such rights
need to be adjudicated upon by the appropriate forum i.e. Family Courts. In the
case at hand however it was evident that a landlord could not detain a tenant
under any legal authority and as such the analogy was totally inapplicable. At
the juncture we may observe that the observations of the Honourable High Court
in the case of Imdad Hussain v. Noor Hassan and 5 others reported in PLD 1974
30.
There also seems to be force in the contention that the Honourable High
Court was not justified in dismissing petitioners under Article 199 of the
Constitution where enforcement of fundamental rights guaranteed inter alia
under Articles 11, 14 and 15 was sought. In the above context it needs to be
kept in view that apart from the jurisdiction vested in the High Courts by
virtue of clauses (a)(b) of Article 199(1) a special jurisdiction is conferred
by clause (c) which a High Court shares with the original jurisdiction of this
Court under Article 184(3) in the following words:
"On the application of any aggrieved
person, make an order giving such directions to any person or authority,
including any Government exercising any power or performing any function in, or
in relation to, any territory within the jurisdiction of trial Court as may be
appropriate for the enforcement of any of the Fundamental Rights conferred by
Chapter-1, Part-II."
31.
It needs to be explained that in matters pertaining to fundamental
rights the jurisdiction of the High Court is wider than that available under
clauses (a) and (b). In this context the true meaning of the expression
"enforcement of fundamental rights" needs to be ascertained. For
doing so a comparison of the provisions pertaining to fundamental rights in the
Constitutions of US and
32.
On the other hand, in the scheme of our Constitution, the power to
enforce fundamental rights has been conferred upon the superior Courts through
Articles 199(1)(c) and 184(3). It may be seen that under Article 4 everybody
has to be treated in accordance with the law and under Article 8, a law
inconsistent with fundamental rights is to be treated as void. Therefore, even
in the absence of clause (c) any action by a person performing functions in
connection with the affairs of the Federation, a province or local authority,
inconsistent with fundamental rights is to be declared with lawful authority
under the clause (a) of Article 199.
33.
The reach of clause (c) however is wider. It not merely enables a Court
to declare an action of a State functionary inconsistent with fundamental
rights to be unlawful but also enables the Courts to practically enforce such
rights by issuing appropriate directives as is evident from its language."
Therefore in order to maintain petition
under Article 199(1)(c) the respondent need not be a person performing function
in connection with the affairs of the Federation or a Province or a local
authority. Use of word "including" in clause (c) which word finds no
mention in clause (a) or (b) is the most significant. Therefore this Court's
power to enforce fundamental rights is much broader and much more far-reaching
than the time-tested concepts of writs of Certiorari, Mandamus, Prohibition,
Quo Warranto and Habeas Corpus.
Reference was made by learned counsel for
petitioner to Article 9 of the Constitution of the Islamic Republic of
Pakistan, 1973 which Article ordains that no one shall be deprived of live or
liberty save in accordance with the law. In Ms. Shehla Zia's case (supra), in
respect of right of life, it was observed that right to enjoyment of personal
rights and to be protected from encroachment of such personal rights, freedom
and liberties is included in the right to life. It was further held that word
life used in the Constitution is not used in limited manner and wider meaning
should be given to enable a man not only to sustain life but also to enjoy it.
The relevant observations are in the following words:
"The Constitutional Law in America
provided an extensive and wide meaning to the word `life' which includes all such
rights which are necessary and essential for leading a free, proper,
comfortable and clean life. The requirement of acquiring knowledge, to
establish home, the freedoms as contemplated by the Constitution, the personal
right and their enjoyment are nothing but part of life. A person is entitled to
enjoy his personal rights and to be protected from encroachments on such
personal rights, freedom and liberties. Any action taken which may create
hazards of life will be encroaching upon the personal rights of a citizen to
enjoy the life according to law. In the present case this is the complaint the
petitioners have made. In our view the word `life' constitutionally is so wide
that the danger and encroachment complained of would impinge fundamental right
of a citizen. In this view of the matter the petition is maintainable."
Zoologists, Biologists and Evolutionary
Psychologists are in total agreement on the point that it is an inherent and
inbuilt instinct in all living things, plants and animals included, to ensure
survival of their genes. Through its offspring an animal ensures immortality of
its genes. Hence, evolutionary Psychologist contend, these it lies primary of
sexual drive among other human instincts and motherly instinct of every specie.
Therefore right to life not only includes one's own life, but also life,
liberty and happiness of one's children. Therefore denying a person right of
company of his children is probably as severe, if not more, penalty and curse
on that person than denying him life altogether. The strongest bond that nature
has created its bond between mother and the child. This point is not only of
for the period the child is within body of the mother, but continues
thereafter: first food of the child, after all, comes from body of the mother
itself. Therefore if a mother is denied her right of company of her child it
would amount to violation of her fundamental right to life.
The Honourable Supreme Court of Pakistan
in Mst. Khalida Parveen's case (supra), has observed that cases pertaining to
custody of children should not be decided on technicalities. The Supreme Court
has further held that although ordinarily petition under Section 491, Cr.P.C.
is not found to be competent when there is no element of illegal custody by the
father of his own child, but the Court could also pass an appropriate order in
exercise of its inherent jurisdiction. Observation of the Honourable Supreme
Court are in the following words:
"In our opinion in the cases
pertaining to the custody of a child, the Courts are not supposed to go into
the technicalities of the law and they should decide the case keeping in view
the facts and circumstances of each case placed before it for the decision
mainly taking into consideration welfare of the child. Although ordinarily a
petition under Section 491, Cr.P.C. is not found to be competent when there is
no element of illegal custody by the father of his own child but in the welfare
of the child as well as to ensure that the rights which have been conferred
upon the child are fully protected in a suitable manner, the Courts could also
pass appropriate orders in exercise of its inherited jurisdiction. In this
behalf in the judgment relied upon by the learned counsel for the petitioner
i.e. Muhammad Naseer Humayon v. Mst. Syeda Ummatul Kabir (supra), a learned
Judge of the High Court changed the custody in exercise of the jurisdiction
under Section 491, Cr.P.C. and against the said order petition for leave to
appeal was filed before this Court but leave was declined keeping in view the
fact that the parties have parted their ways and the minor is of a tender age.
As same situation is in the case in hand where the respondent had divorced the
petitioner and the age of the minor is also two years therefore, following the
observation from the reported judgment, we are of the opinion that in the
interest of justice as well as for the welfare of the minor Hina Sultan alias
Umm-i-Romaan aged two years, the petitioner being mother is entitled to retain
her custody."
Respectfully following the dictum of the
Honourable Supreme Court, it is held that this petition is maintainable both
under Section 491, Cr.P.C. as well as under Article 199(1)(c) of the
Constitution of the Islamic Republic of Pakistan, 1973.
In Zubaida Shehzadi's case (supra),
decided by Mr. Justice M.A. Shahid Siddiqui, as a Judge of Lahore High Court
(as his lordship then was and now his lordship graces the Supreme Court), the
High Court noted that there was no dispute that the petitioner was living with
her parents separately from her husband. The Medico-legal certificate was
produced in that case, as has been done in this case, which prima facie showed
that the petitioner had been subjected to violence. It was held that it would
be in the interest of the minors that they may be placed again in the custody
of their mother without further loss of the time. Relevant observations were as
under:
"6. I have considered the arguments
put forth by the learned counsel for the parties and have perused the record
appended with the petition. There is no dispute that the petitioner is living
with her parents separately from her husband. The Medico-legal Certificate of
the petitioner, dated 8-6-2006 prima facie shows that she had been subjected to
violence. Both the minors were admittedly enjoying the custody of their mother
till 6-6-2006. The petitioner was allegedly expelled by the respondent from his
house. Even if it is assumed that she had left the house of her husband it
would not make any difference. One thing is certain that she felt compelled to
leave the house of her husband alone and in this way both the minor daughters
stood deprived of the custody of their mother on June 6, 2006. It would be in
the interest of the minors that they should be placed again in the custody of
their mother without further loss of time. The mere fact that the respondent
has also approached the Guardian Judge on the same day would not prevent the
petitioner from approaching this Court under Section 491, Cr.P.C. The powers of
this Court under Section 491, Cr.P.C. although different from the powers of a
Guardian Judge under the Guardians and Wards Act but there is no question of
one excluding the other. I seek guidance from the law laid down in the case of
Muhammad Javed Umrao v. Miss Usma Vahid 1988 SCMR 1891. In the circumstances of
the case, but the minor girls who have admittedly not attained puberty are
ordered to be given in the interim custody of the petitioner. The learned
judgment Family Judge/Guardian Judge shall finally decide the question of custody
of the minors strictly in accordance with law without being influenced by the
instant order of this Court. This petition stands disposed of."
In Mahera Fatima's case (supra), it was a
Criminal Miscellaneous Application under Section 491, Cr.P.C. The High Court
held that petitioner was admittedly mother of the minor boy aged about three
years and prima facie had a right to Hizanat of the said minor. The High Court
held that the question as to whether the petitioner had lost her right to
continue in custody of the minor is to be tried and decided by the competent
Family Court and such a question cannot be decided by means of application
under Section 491, Cr.P.C. Consequently custody was ordered to be handed over
to the mother. Since apprehension was expressed that she may take minor out of
During extensive arguments in the Court
lot of muck was thrown by the parties on each other. This is probably the most
unfortunately part of family related litigation. Two persons who have shared
bed for quite some time and have jointly brought human being into this world,
when they come to the Court they try to point each other as psychopaths,
pathological liars, highly irresponsible individuals, sadists and what not. One
calls the other reckless philanderer and the other call her a
"never-say-no-Nancy". It is extremely unfortunate that such attitudes
are adopted and such pleadings are made. It would be more in the fitness of
things if the two parties arrayed in family matters realize that they have a
joint interest and a joint responsibility: their children. Tomorrow when the
children grow up and read pleadings of their respective parents, I am sure it
would not make them proud. Parties indulging in family litigation should not
lose their sense of propriety, sense of decency and sense of balance. They
should realize that the muck
that they throw, some of it is
bound to stick to names of their children and may mar them psychologically. It
would be in parties' interest and in the interest of their children if
restraint is adopted as a policy both in pleadings and in oral presentations
and submissions.
In this case elder child is already with
the mother. Father has filed application under the Guardians and Wards Act in
the Court of Senior Civil Judge and Family Judge, South at
Result of the above discussion is that
this petition is allowed and Respondent No. 1 is directed to hand over custody
of the minor child Master Ammar Zar to the petitioner subject to the
petitioner, within three days, depositing passport of the minor child with the
Nazir of this Court and furnishing one surety in the sum of Rs.5,00,000 (Five
hundred thousand) with P.R. bond in the like amount to the satisfaction of
Nazir of this Court so that the minor may not be taken out of Pakistan without
prior permission of the Family Court of competent jurisdiction.
As far as father's visitation rights are
concerned, he is at liberty to make appropriate application before the
concerned Family Court.
The petition is disposed of in the above
terms.
(R.A.) Petition
allowed.