2008 Y L R 2665
[Lahore]
Before Syed Shaheen Masud Rizvi, J
MUHAMMAD MUKHTAR---Petitioner
Versus
S.H.O. and 3 others---Respondents
Writ Petition No.2953-Q of 2008,
decided on 30th June, 2008.
Penal Code (XLV of 1860)---
----S.363---Constitution of Pakistan
(1973), Art.199---Constitutional petition---Quashing of F.I.R.---Petitioner and
complainant stood divorced---Application filed by petitioner under S.25 of the
Guardians and Wards Act, 1890 for custody of his minor son/alleged abductee,
was pending adjudication in the court of Guardian Judge-Petitioner being father
of alleged abductee, who was natural guardian, himself was a legal guardian in
addition to the mother/the complainant---Petitioner having filed an application
under S.25 of the Guardian and Wards Act, 1890 to be appointed as the sole
guardian of his son/alleged abductee, the provisions of S.363, P.P.C. were not
applicable against the petitioner---F.I.R. registered against the petitioner,
under S.363, P.P.C., was ordered to be quashed.
Muhammad Younis Sheikh for Petitioner.
Tariq Barlas for Respondent No.2.
Muhammad Qasim Khan, A.A.-G.
Sajid Hassan, S.-I.
ORDER
SYED SHAHEEN MASUD RIZVI, J.---The petitioner has sought quashment of F.I.R.
No.102, dated 14-4-2008, registered under section 363, P.P.C. at Police
Station, Karam Pur, against him and two others.
2. The F.I.R. was got registered
against the petitioner for the abduction of Ali Shafqat aged 7/8 years, who is
his real son from the wedlock of Mst. Razia the complainant of the above
mentioned case. The petitioner and Mst. Razia stand divorced.
3. The petitioner has filed an
application 25 of Guardians and Wards Act for the custody of his minor son Ali
Shafqat (the alleged abductee), which is pending adjudication in the Court of
learned Senior Civil Judge, Khanewal.
4. The case against the petitioner and
two others have been registered under section 363. For ready reference section
363, P.P.C. is reproduced below:---
"Section 363,
P.P.C. Punishment for kidnapping:-
Whoever kidnaps any
person from Pakistan
or from lawful guardianship shall be punished with imprisonment of either
description for a term which may extend to seven years, and shall also be
liable to fine."
5. The bare perusal of the above said
section reveals that the petitioner being the real father of Ali Shafqat being
the natural guardian himself is a legal guardian in addition to the mother Mst.
Razia Bibi the complainant of the case and moreover he has filed an application
under section 25 of the Guardians and Wards Act to be appointed as the sole
guardian of his son Ali Shafqat, therefore, the provisions of section 363
P.P.C. are not applicable against the petitioner.
6. Therefore, the F.I.R. No.102, dated
14-4-2008, registered under section 363, P.P.C. at Police Station Karam Pur,
District Vehari, is quashed.
7. The respondent, Mst. Razia Bibi if
interested to get the custody of her son Ali Shafqat can do so by appearing
before the Court of learned Senior Civil Judge, Khanewal where she has been summoned
through citation in the newspaper vide order, dated 24-3-2008 of the said Court
in a petition filed under section 25
of the Guardians and Wards Act by the petitioner.
363 PPC, From Accused
2001 P Cr. L J 31
[Lahore]
Before
Riaz Kayani, J
MUHAMMAD
ASHRAF‑‑‑Petitioner
Versus
S.H.O.
and others‑‑‑Respondents
Writ
Petition No. 12931 of 2000, heard on 16th
October, 2000.
(a)
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S.
361‑‑‑Kidnapping from lawful guardianship‑‑‑Ingredients‑‑‑Kidnapper should take
the child out of the custody of the lawful guardian in order to constitute an
offence of kidnapping, but if a person takes the child, may be, from the
custody of the mother believing himself to be the father or in good faith
believes himself to be entitled to the lawful custody, then the offence of
kidnapping is not committed unless removal is committed for immoral or unlawful
purpose be it at the hands of even a guardian.
(b)
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S.
363‑‑‑Kidnapping‑‑‑Father of a child being always a natural guardian alongwith
the mother, can never be ascribed or attributed the offence of kidnapping of
his own child.
(c)
Penal Code (XLV of 1860)‑‑
‑‑‑‑Ss.
341/363‑‑‑Criminal Procedure Code (V of 1898), S.561‑A‑‑Constitution of Pakistan
(1973), Art. 199‑‑‑Constitutional petition‑‑‑Quashing of F.I.R.‑‑‑Complainant
was going with her brother‑in‑law having the minor in her lap when the accused
alongwith his brother and nephew forcibly took the child from her custody‑‑‑Main
role of alleged kidnapping was attributed to the accused who admittedly was the
father of the child‑‑‑Taking forcibly the child from lawful guardianship by his
father having not constituted an offence, of kidnapping, question of wrongful
confinement of the child under S.341, P.P.C. did not arise‑‑‑F.I.R. would be
quashed in its inception if the allegations made therein did not constitute any
offence or did not amount to infraction of any law‑‑‑Both such aspects being
applicable to the allegations contained in the impugned F.I.R., allowing the
proceedings to continue would amount to gross abuse of the process of the Court
which High Court in the exercise of its jurisdiction, be it under Art. 199 of
the Constitution or under S.561‑A, Cr.P.C., would not countenance rather every
endeavour would be made to curb the wrong at the earliest ‑‑‑F.I.R. was quashed
in circumstances‑‑‑Constitutional petition was accepted accordingly.
Nazar
Abbas Syed for Petitioner.
Ch.
S.A. Irshad for the State.
Date
of hearing: 16th October, 2000.
JUDGMENT
Muhammad
Ashraf Shahzad son of Muhammad Yaqoob has assailed the validity of case
registered vide F.I.R. No. 92 with Police Station Sarai Mahajar, District
Bhakkar on 26‑6‑2000 under section 341/363, P.P.C., at the instance of Mst.
Parveen Akhtar.
2.
The prosecution case divulged in the F. I. R., authored by respondent No. 2, is
that about 2‑1/2 years earlier the first informant was married with petitioner
Muhammad Ashraf and from the loins of the petitioner a son now aged 1‑1/2 years
was born. Since the family ties suffered a dent due to estrangement between the
families the first informant filed a suit for dissolution of marriage. It is
stated that on 23‑6‑2000 the complainant was going on a motorcycle, alongwith
her son named Aarish, with her brother‑in-law Mazhar Ali son of Muhammad Aslam
and when they reached Chak No. 47/TDA, Muhammad Ashraf present petitioner
accompanied by Muhammad Shahid real brother and Shahbaz‑ur‑Rehman nephew of the
petitioner, all of sudden made appearance in a car and stopped the complainant.
Thereafter, all three of them forcibly snatched Aarish, infant son of the
complainant, for which later on a complaint under section 341/363, P.P.C. was
lodged through F.I.R. No. 92 of 2000.
2.
Learned counsel at the very outset informed that through Habeas Corpus Petition
No. 1298‑H of 2000 the custody of
Muhammad Aarish was restored to Mst. Parveen Akhtar complainant and the matter
for keeping the custody of the minor permanently was left to be decided by the
Guardian Judge.
3.
Learned counsel for the petitioner assailing the validity of F.I.R. has
emphatically submitted that under the law, father is always a natural guardian
of his child and, therefore, charge of kidnapping his own child is highly
misconceived and cannot be sustained in the eyes of law. He has drawn my
attention to section 361 of the Pakistan Penal Code which defines kidnapping
from lawful guardianship.
4.
For facility of reference section 361 of the Pakistan Penal Code is reproduced:‑‑
"361.
Kidnapping from lawful guardianship.‑‑‑ Whoever takes or entices any
minor under fourteen years of age if a male, or under sixteen years of age if a
female, or any person of unsound mind, out of the keeping of the lawful guardian
of such minor or person of unsound mind, without the consent of such guardian,
is said to kidnap such minor or person from lawful guardianship.
Explanation..‑‑‑
The words 'lawful guardian' in this section include any person lawfully
entrusted with the care or custody of such minor or other person.
Exception.‑‑‑
This section does not extend to the act .of any person who in good faith
believes himself to be the father of an illegitimate child, or who in good
faith believes himself to be entitled to the lawful custody of such child,
unless such act is committed for an immoral or unlawful purpose. "
5. Section
361, P.P.C. contemplates kidnapping from lawful guardianship whose ingredients
are split as under:‑‑
(a)
Whoever takes or entices any minor;
(b) The
minor if a male should be under 14 years of age or if female under 16 years of
age or any person of unsound mind;
(c) the
minor should be taken out of the keeling of the lawful guardian of such minor
or person of unsound mind;
(d) Taking
should be without the consent of such guardian.
The
exception appended to section 361, P.P.C. absolve a person who in good faith
believes himself to be the father of an illegitimate child or who in good faith
believes himself to be entitled to the lawful custody of such a child unless
such act is committed for an immoral or unlawful purpose.
6. The
cumulative effect of reading of main section alongwith the exception is that
firstly kidnapper should take the child out of the custody of the lawful
guardian in order to constitute an offence of kidnapping but if a person takes
the child, may be, from the custody of the mother believing himself to be the
father or in good faith believes himself to be entitled to the lawful custody
then the offence of kidnapping is not committed unless removal is committed for
immoral or unlawful purpose, be it at the hands of even a guardian.
7. Father
of a child is always a natural guardian alongwith the mother. He can never be
ascribed or attributed the offence of kidnapping of his own child. The
exception appended to section 361, P.P.C. even goes to the extent E of
relieving a person from any criminal liability if he in good faith believes to
be father of an illegitimate child, or, who, in good faith believes to be
entitled to the lawful custody of such child. The only fetter placed upon the
right of a father to the custody of the child is that when he takes the child
from the custody of his wife for a purpose recognized in law as immoral or
unlawful, in such a circumstance removal of the child, would amount to an
offence. No such allegation is made in the complaint recorded at the instance
of respondent No. 2. Respondent No. 2 has merely complained that she was going
with her brother‑in‑law having minor in her lap when they were stopped by the
petitioner alongwith his brother and nephew who forcibly took the child from
her custody. The main role of alleged' kidnapping is attributed to the
petitioner who has been admitted in the complaint to be the father of Muhammad
Aarish, the infant laving been born from his loins.
8.
Learned counsel appearing for the State did not controvert the legal position
expounded above arising out of the bare reading of section 361 of the Pakistan
Penal Code. Undoubtedly a child of 1‑1/2 years needs immediate love, affection
and succour from the mother and correspondingly the mother is entitled to the
custody of a milk suckling baby. Wrong, if any done in this regard has been
remedied by the order of this Court passed in Habeas Corpus Petition bearing
No. 1298/H of 2000 wherein the interim custody of the child has been restored
to respondent No. 2, the mother leaving the parties to agitate the permanent
custody before the Guardian Judge, however, the removal of the child by the
father does not constitute an offence.
9.
Offence of kidnapping from lawful guardianship by the father having not been
made out for reasons detailed in this order question of wrongful confinement
under section 341, P.P.C. does not arise.
10.
One of the grounds for quashing the F.I.R. in its inception is that even the
allegations if believed would not constitute any offence or the allegation made
does not amount to infraction of any law. Both these aspects highlighted, apply
to the allegations contained in the F.I.R. Therefore, allowing the proceedings
to continue would amount to gross abuse of process of Court which this Court in
the exercise of its jurisdiction, be it under Article 199 of the Constitution
of Islamic Republic of Pakistan, 1973 or under section 561‑A, Cr.P.C., would
not countenance rather every endeavour is to be made to curb the wrong at the
earliest. Resultantly the writ petition succeeds, F.I.R. No. 92, lodged with
Police Station Sarai Mahajar, District Bhakkar on 26‑6‑2000 against the
petitioner and others ac the instance of respondent No. 2 under section
342/363, P.P.C. is quashed for being without lawful authority. Parties are left
to bear their own costs.
N.H.Q./M‑346/L F.I.R.
quashed.
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