ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Misc. Application No. S– 147 of 2020

Cr. Misc. Application No. S-131 of 2020

Date of hearing

Order with signature of Judge

Present:

Mr. Justice Adnan-ul-Karim Memon

Applicant in Cr. Misc.

Application No. S-147/2020: Mst. Wazeeran Khatoon

Through his counsel Mr. Haji Shamsuddin Rajpar

Applicant in Cr. Misc.

Application No.S-131/2020: Waqar Hussain Kori

through his Counsel Mr. Shoaib Niaz Khaskheli

State Counsel: Mr. Shafi M. Mahar, DPG

Date of hearing: 10.07.2020

O R D E R

Adnan-ul-Karim Memon,J:- The applicants namely Mst. Wazeeran Khatoon in Cr. Misc. Application No.S-147 of 2020 and Waqar Hussain Kori in Cr. Misc. Application No.S-131 of 2020 have called-in-question the order dated 04.03.2020, passed by the learned Additional Sessions Judge, Gambat, in Cr. Misc. Application No. 111 of 2020, whereby petition under Section 491 Cr.P.C was disposed of with direction to the Incharge Sweet Home to keep Minor namely Shehbaz @ Fahad in safe custody as a security measure, with further direction to the parties to approach appropriate Court under Guardian & Wards Act for obtaining the custody of the Minor.

2. After arguing the matter at some length, both the learned Counsel for the parties agreed for disposal of the captioned Misc. Applications on the premise that if an appropriate direction may be issued to the concerned Guardians and Wards Court for earlier decision for grant of custody of minor namely Shehbaz @ Fahad strictly in accordance with law.

3. I have considered the arguments of learned counsel for the respective parties and also have gone through the material available on record.

4. It is admitted fact that the minor is kept at the Sweet Home Khairpur by the order of learned Additional Sessions Judge Gambat keeping in view the security of minor with certain reasoning. It is well settled now that proceedings under section 491, Cr.P.C. are not available for declaring any person as guardian or for determining all the questions relating to the custody of minor because the final decision of regular custody was to be decided in the proceedings initiated by, the parties claiming the custody of the minor before the Guardian court. It is well settled law that paramount consideration while deciding the question of custody of the minor is the welfare of the minor which has to be seen in view the age, sex and religion. The welfare includes his moral, spiritual and material wellbeing. While considering what is the welfare of the minor the court shall have regard to the age, sex, religion of the minor, the character and capacity of the proposed guardian, his nearness of kin to the minor and the preference of the minor, if he or she is intelligent enough to make it. Record reflects that minor is a male child of 2 and half years old would definitely require constant care on the premise that his mother has died and his real father is behind the bar.

5. The controversy as raised by the parties needs to be looked into by the learned Guardian and Wards Court, if approached and the decision thereof shall be within a reasonable time, keeping in view the welfare of minor strictly in accordance with law.

6. In view of the above facts and circumstances of the case, both the miscellaneous applications are disposed of with direction to the parties to approach the concerned Guardian and Ward Court for obtaining the custody of the minor strictly in accordance with law within a period of one week from the date of receipt of this order.

JUDGE

Faisal Mumtaz/PS