father can not kidnap

Sec 363 PPC,

P L D 2015 Sindh 382
Mst. MARIUM TARIQ and others-Versus-SHO OF POLICE STATION DEFENCE and others-
(a) Guardians and Wards Act (VII of 1890)--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.
Muhammad Shafi alias Papan v. State 2011 PCr.LJ 1424 ref.
(b) Islamic law--"Hizanat"---Concept of---Hanafi sect---Status of mother in Islam---Mother was entitled to the custody of female child till the age of puberty while in the case of a son, the period of Hizanat was 7 years of age---Mother was entitled in preference to the father to the custody during Hizanat and she did not lose the guardianship because she was no longer wife of her former husband---All the juristic schools gave first preference to a mother's claim to physical custody of her young child provided that she satisfied all the requirements---Father should have access to his children and he remained financially responsible for their maintenance and education even though they may be under the care of their divorced mother---Prophet Muhammad (Peace Be Upon Him) continoually used to remind his followers of the status of the mother and the obligation of being good to one's parents---Honour which the religion of Islam had given to mothers was beyond that found in any other religion, ideology or culture---All the verses of Quran and hadiths on mothers amply demonstrated the importance of the figure of a mother in Islam.
Al-Adab al-Mufrad Bukhari 1/62 and Surah al-Ahqaf, (Al-Quran), Chapter 46, Verse 15 ref.
(c) Constitution of Pakistan-Art. 199---Criminal Procedure Code (V of 1898), Ss.154, 249-A, 265-K & 561-A---Constitutional jurisdiction of the High Court --- Quashing of FIR---High Court while exercising jurisdiction under Art.199 of the Constitution and S.561-A, Cr.P.C. could quash an FIR and proceedings in extenuating circumstances---Purpose of quashing an FIR under the constitutional jurisdiction was to save a person from the rigors of an unjustified investigation and proceedings and to prevent the abuse of process of law or court---No absolute bar existed on the powers of the High Court to quash an FIR and it was not always necessary to direct the petitioner-accused to first expend or exhaust the remedy available under Ss.249-A or 265-K, Cr.P.C.---Main considerations to be kept in mind by the court would be whether the continuance of proceedings would be a futile exercise and abuse of process of court---Where the admitted facts and patent on record showed that no offence was made out then it would amount to abuse of process of law to allow the prosecution to continue the trial---To find an "abuse", it would be necessary to see in the proceedings, a perversion of the purpose of law such as to cause harassment to an innocent party, to bring about delay, or where the machinery of justice was engaged in an operation from which no result in furtherance of justice could accrue and similar perverse resulted.
M.S. Khowaja v. State PLD 1965 SC 287 ref.
(d) Guardians and Wards Act (VII of 1890)--Ss. 7 & 12---Minor of divorced parents---Custody of minor with mother---Guardianship of father---Scope---Even where the custody of the minor was with the mother, the guardianship of the father did not extinguish and he should have access to his children and he remained financially responsible for their maintenance and education even though they may be under the care of their (divorced) mother.
2015 M L D 659
Mst. KANIZ FATIMA-Versus-SESSIONS JUDGE, MUZAFFARGARH and 3 others--
Penal Code (XLV of 1860)-S.361---Criminal Procedure Code (V of 1898), S.491---Constitution of Pakistan, Art.199---Constitutional petition---Habeas corpus proceedings---Kidnapping from lawful guardianship---Custody of mother---Quashing of habeas corpus proceedings---Sessions Judge, on application filed by father initiated proceedings under section 491, Cr.P.C. against mother for custody of her own son who was 4 years old---Validity---Mother of child was always a natural guardian along with father---Mother could never be ascribed or attributed offence of kidnapping her own child---Exceptions posted with S. 361 P.P.C. had even gone to the extent of reliving a person from criminal liability even if he/she believed himself/herself to be mother/father of an illegitimate child or who in good faith had believed to be entitled to lawful custody of such child---Child of 4 years needed love, affection and care from mother---Offence of kidnapping from lawful guardian by mother was not made out and Sessions Judge did not examine relevant material on record---High Court set aside the order passed by Sessions Judge, and quashed proceedings under S. 491, Cr.P.C., as continuation of same would amount to abuse of process of law---Petition was allowed in circumstances.
2015 P Cr. L J 506
Mrs. AMBREEN NASEEM KHAWAJA-Versus-FEDERATION OF PAKISTAN and others
(c) Penal Code (XLV of 1860)--S. 363--- Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of FIR---Kidnapping---Family dispute---Parties were close relatives and just to settle score upon family dispute, FIR in question was registered against lady member of family---Validity---High Court observed that trend to settle civil disputes by exercising pressure of criminal proceedings was on high, which was nothing but exploitation---High Court being custodian of Fundamental Rights of citizens was under obligation to provide shield against any invasion made on guaranteed Constitutional Rights and to protect subject from discrimination, exploitation colorable exercise of authority, bolted actions, mala fide and stinking proceedings---High Court declared the FIR to be illegal, unlawful, unprecedented, sham, result of colorable exercise of authority, abuse of process of law, tainted with mala fide, ulterior motives, a device of exploitation without jurisdiction and outcome of arbitrary exercise of authority and the same was quashed---Petition was allowed in circumstances.
1996 SCMR 186; 2006 SCMR 276; PLJ 2011 SC 1932(sic.); Zahid Iqbal v. The State PLD 1991 SC 575; Muhammad Aslam and others v. The State 1972 SCMR 194 and Faisal Jameel v. The State 2007 MLD 355 rel.
2008 Y L R 1669
Mst. MEHNAZ-Versus-JUDICIAL MAGISTRATE 1ST CLASS/CIVIL JUDGE, ATTOCK and 2 others
(a) Criminal Procedure Code (V of 1898)---
S.63---Discharge of accused---Jurisdiction of Magistrate---Scope---Magistrate is competent under S.63, Cr. P. C. to discharge accused, when he is taken into custody in any case triable by Magistrate, Court of Session or any Special Court---Provisions of S.63, Cr. P. C. empowers a Magistrate to discharge, arrested accused person irrespective of the fact, whether or not he himself is competent to try him in case of submission of challan against him.
(b) Penal Code (XLV of 1860)---
Object of provisions of Ss. 361, 363 and 364-A, P. P. C. was to protect rights of parents with regard to custody of minor---Guardianship of father under Islamic Law did not cease even when minor child was in the custody of mother and similarly guardianship of mother did not extinguish while the minor child was with father---Father was also legal guardian of his minor children and legal guardian had in law constructive custody of his minor children---If a father had removed his child from the custody of his wife, the father could not be tried or convicted on the charge of kidnapping---Accused was not liable to face trial on the charge of kidnapping his minor son, being natural and legal guardian of the alleged abductee---High Court while exercising its constitutional jurisdiction and inherent powers was not supposed to leave the aggrieved and victimized person to the mercy of police/investigating agency---Accused had been wronged/insulted/ disgraced without any fault on his part---To redress grievance of accused, High Court by exercising powers under S.561-A, Cr. P. C., imposed penalty/ fine of Rs. 25000 on the investigation officer for his dishonest investigation and corrupt practice---Petition was dismissed accordingly.
2001 P Cr. L J 31
MUHAMMAD ASHRAF Versus S.H.O. and others
(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.
2008 Y L R 1507
AMJAD SHAH-Versus-STATION HOUSE OFFICER, POLICE STATION SUKHEKI and another
Penal Code (XLV of 1860)---
S.363---Constitution of Pakistan (1973), Art.199---Constitutional petition---Mensrea, attributed to father for abduction of his children---Validity---No mensrea could be attributed to father for the abduction of his children---Father being the natural guardian, case under provisions of S.363 P.P.C. was not maintainable against him---Petitioner could move for bail---No further action would be taken against him.
1975 P Cr. L J 1082
NAEEMUDDIN KHAN Applicant-VersusTHE STATE AND ANOTHER
Penal Code (XLV of 1860) ------
Ss. 363, 344 & 346 Father natural guardian of minor sons¬--Detention of his minor children by father after divorcing his wife and children's mother Does not amount to any offence. Criminal Procedure Code (V of 1898), S. 561 A.
Against PLJ 1980 Criminal Cases 17,
Offence u/s 363 PPC is applicable against father etc.