ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

                                                Cr. Misc. Appl. No.S-436 of 2012                                         

DATE         ORDER WITH SIGNATURE OF JUDGE

For orders on MA 6685/2012.

25.10.2012.

Mr. Abdul Hameed Bajwa Advocate for the applicant.

                                    ==

Urgency application is granted and matter is taken up for hearing.

Mr. Aslam Sipio advocate files power on behalf of respondent No.3, which is taken on record.

Applicant Mst. Allah Dini has moved this application u/s 491 Cr.P.C regarding detention of her cousin Mst. Farzana and her two sons namely Hassan and Awais aged 02 years and 06 months respectively.

Per learned counsel after filing of this application, detenue Mst. Farzana alongwith her son Awais escaped from the captivity of respondent No.3 and reached at the house of applicant.

Persuant to notices of this court, SIP Abdul Razak Jamali SHO P.S. Taluka Tando Adam has produced the detenue minor Hassan aged 02 years before this court.

Counsel for respondent No.3 contends that respondent No.3 being father of the minor detenue is entitled for custody of minor as Mst. Farzana has contracted second marriage, therefore, welfare of both the minors lies to the respondent No.3.

Since this is an application u/s 491 Cr.P.C and this court has to decide immediate lawful custody that will be according to law in favour of Mst. Farzana as in case of Nadia Parveen Vs. Almas Noreen (PLD 2012 SC 758),  it has been held by the Honourable Supreme Court that minors having tendered age should be given in the custody of mothers as interim set up and question of welfare on permanent basis can be decided by the Family Court under Guardian and Wards Act. Thus I am of the considered view that both the minors having age of 02 years and 06 months respectively should remain in the custody of their mother as both are having tender age and mother is the best legal guardian prima-facie. Regarding the contention of counsel for respondent No.3, it is suffice to say that the respondent No.3, father, is at liberty to approach the Family Court and get decision regarding welfare of the minors and their custody.

Keeping in view the given circumstances and dictum laid down by the Honourable Supreme Court, Mst. Fazana is entitled for custody of both the minors as interim set up and therefore, custody of minor Hassan is also shifted to Mst. Farzana, mother of the minor while custody of minor Awais is already with her.

The Cr. Misc. Application stands disposed of in the above terms.

                                                                                                            JUDGE

A.K