2015 PLD 382 KARACHI-HIGH-COURT-SINDH

Citation Name : 2015 PLD 382 KARACHI-HIGH-COURT-SINDH
Side Appellant : Mst. MARIUM TARIQ
Side Opponent : SHO OF POLICE STATION DEFENCE
Ss. 12 & 25---Penal Code (XLV of 1860), Ss. 363 & 34---Criminal Procedure Code (V of 1898), S. 154---Constitution of Pakistan, Art. 199---Constitutional petition---Custody of minor girl---Kidnapping, offence of---Scope---Natural guardian of minor not liable for kidnapping---Quashing of FIR lodged against mother for kidnapping her minor child ---Father and mother of minor girl were divorced from each other---Father filed application before the Family Court for custody of the minor girl---During pendency of said application mother left the country to pursue further studies and took the minor girl along, who was 2-½ years old---Family Court decided in favour of the mother and allowed her to retain custody of the minor girl---Father lodged an FIR against the mother for abducting the minor girl---Plea of father was that the mother denied him access to his daughter when the Family Court had allowed him visitation rights; that he had also filed an application to restrain the mother from taking their daughter abroad and for deposit of their passports in the Family Court; that the mother kidnapped the minor girl and took her to a foreign country; that intervention of the International Criminal Police Organization (INTERPOL) was required both for producing the accused mother before the Trial Court and for retrieving the custody of the minor---Validity---Family Court did not disturb the custody with the mother which order was upheld by the Appellate Court as well as by the High Court---Mother contended that she got admission in a foreign university for post-graduation studies with financial assistance, so under the force of circumstances, she left for the foreign country along with her 2-1/2 years daughter who could not be looked after properly in Pakistan in the absence of her real mother---Element of mens rea for kidnapping was thus missing in the circumstances of the present case---When the Family Court decided the father's application it was aware that the mother had proceeded to a foreign country along with her daughter, even then the Family Judge was of the view that there was no cogent reason to disturb the current setup of the minor hence the restoration of custody to the father was declined,however the father was allowed visitation rights---Admittedly the minor girl was in the custody of her mother since birth and there was no allegation that the mother snatched the custody from father---When the FIR was lodged the age of minor girl was 2-1/2 years---Mother and father both were natural guardians and one natural guardian could not lodge an FIR of kidnapping against the other natural guardian---Mother who was enjoying custody of minor since birth and whose right of Hizanat or custody had been affirmed by the Family Court, First Appellate Court and the High Court could not be held accused of kidnapping her own daughter---Consent of 2-½ years old minor for leaving abroad with her real mother was immaterial in the present case for the reason that since birth, daughter was in custody of mother and the age of the minor ward showed that neither she could be asked to offer any consent nor she could show any disagreement or displeasure on moving with her real mother---Main allegation in the FIR against the mother was travelling abroad with the minor girl without permission of father which ultimately culminated into the charge of kidnapping---Circumstances of the present case showed that no offence of kidnapping was made out under S.363, P.P.C.---Letter of law articulated that provision of S.363, P.P.C. was meant to protect and espouse the rights of parents and not to exploit it against each other as a tool of victimization, persecution and oppression after their divorce---Being a natural guardian, father was also entitled for the access and visitation rights to his daughter which right had been affirmed by the Family Court, First Appellate Court and the High Court---Admittedly the order for visitation rights in favour of father was not implemented, thus, the appropriate remedy for the father was to approach the Family Court for the implementation of its orders, which had not been done in the present case---High Court, in the present case, had already directed the immigration Authorities that as and when the minor reached Pakistan they may take her passport at the airport in their custody for safe deposit of the same with the Nazir of the High Court so that minor would not leave Pakistan in future---High Court accordingly quashed the FIR lodged against the mother under Ss.363 & 34, P.P.C. with all consequential proceedings, and directed that the intervention of INTERPOL could not be ordered for ensuring attendance in the quashed FIR, and that the father may first approach the Family Court for the implementation of visitations rights order and in the event of non-compliance, he may apply to the Family Court for directions to issue INTERPOL red and yellow notice forms for ensuring attendance of the mother in court---Constitutional petition was disposed of accordingly.

Citation Name : 2012 YLR 2932 PESHAWAR-HIGH-COURT
Side Appellant : GHULAM HASSAN
Side Opponent : State
S. 497(2)---immigration Ordinance (XVIII of 1979), Ss.18-B & 22-B---Fraudulently inducing to emigrate, receiving money, etc. for providing foreign employment---Bail, grant of---Further inquiry---Allegation against the accused was that he persuaded and deceived the complainant and others on the pretext of providing foreign employment and thereby grabbed money from each affectee---F.I.R. lodged with considerable unexplained delay---Prosecution had not brought on record when the affectees went abroad and when they came back---Neither Passports nor record regarding exit and entry of affectees in the country had been procured from the immigration Department---Affectees claimed that they paid k large amount of money on the wrong pretext of accused that' they would be issued work visas, but no such agreement had been produced before the Investigating Officer--Relevant record had not been collected by the prosecution to connect the accused with the commission of the offence---Prima facie guilt of accused required further probe---Accused was released on bail accordingly.

Citation Name : 2012 YLR 1106 PESHAWAR-HIGH-COURT
Side Appellant : ABDUL RAHIM
Side Opponent : State
S. 497(2)---immigration Ordinance (XVIII of 1979), Ss.18-B & 22-B---Fraudulently inducing to emigrate, receiving money, etc. for providing foreign employment---Bail, grant of---Further inquiry---Contradictions in statements of witnesses and that of complainant---Allegation of torture---Delay in lodging F.I.R.---Complainant had stated in his statement that amount in question was handed over to the accused by his father and another person in the presence of two witnesses but one of these witnesses, in his statement did not disclose such fact and instead stated that accused received amount from complainant---Said other person in his statement mentioned that accused received an amount from complainant's father but did not mention that he also paid the amount---Accused had admitted in his confessional statement that he had received an amount from the complainant but in the light of the fact that accused had alleged torture, quality of his confessional statement was to be seen at the trial---Nothing had been recovered from the accused to connect him with the offence and there was also a delay in lodging the F.I.R., which made the case one of further inquiry---Offences with which accused was charged provided alternate punishment of fine, therefore, his case did not fall under the prohibitory clause of S. 497, Cr.P.C---Bail petition of accused was accepted and he was granted bail.