Side Appellant : Mst. TANVEER BIBI
Side Opponent : SHO POLICE STATION MANDI BAHAUDDIN
S. 491—Habeas corpus petition—Recovery and custody of minor children—Mother of minor s alleged that their father was working abroad, and in his absence her in-laws turned her out of the house and also snatched the minor s—minor s looked happy and content when they met their mother in court—Nothing had been stated by the in-laws as to why the mother had to leave the house—minor s were of tender age and in the absence of their father, who had gone abroad, the mother was legally entitled to their custody , who was living with her father and brother—Keeping in view the welfare and best interest of the minor s their custody was delivered to their mother.
Side Appellant : Mst. KHURSHEED BEGUM
Side Opponent : Mst. SHABNAM NIAZ
S. 25—custody of minor —Welfare of minor —Compromise between the parties—Effect—Mother moved application for custody of minor which was accepted and during appeal compromise was effected between grandfather and mother of the minor —Appeal was dismissed and grandfather died thereafter—Mother filed fresh petition for custody of minor which was accepted—Contention was that present application was hit by principle of res judicata—Validity—Alleged compromise deed was executed between the grandfather and mother of the minor —custody of minor was not handed over to the grandfather for life time—Mother had sought custody of minor by filing fresh application which was not prohibited under the law—Neither a consent order or a compromise nor an agreement between the parties would absolve the Guardian Court from safeguarding and protecting the interest and welfare of the minor —Guardian court could re-examine the welfare of the minor even if a compromise, agreement or consent order was already in the field—Mother could look after the minor in a befitting manner as compared to grandfather—Welfare of the minor was to be given paramount consideration for disposal of such like cases—Grandmother or grandfather could not be appointed custodian of minor grandson in presence of real parents—Guardian Judge had correctly recorded the impugned judgment for custody of minor —minor was handed over to the mother in the Court and police was directed to provide escort to the mother up to her destination—Appeal was dismissed in circumstances.2016 MLD 702 PESHAWAR-HIGH-COURT
Side Appellant : IJAZ KHAN
Side Opponent : State
Ss. 9(c) & 29—Possessing and trafficking narcotics—Appreciation of evidence—Three accused persons, separately disclosed and pointed out the presence of narcotic i.e. charas garda hidden in both sides of bus in question—94,800 Kgs charas in 79 packets, was recovered from the bus—10/10 grams from each packet of charas, were separated for Forensic Science Laboratory examination, while remaining packets were sealed into four plastic sacks—Presence of accused persons in the bus at their respective position, stood amply established—During personal search of one of accused persons, registration book of the bus in question and a stamp paper regarding purchase of bus was recovered—Separation of samples of 10 grams from each of 79 packets, its handing over by the complainant to prosecution witness, its safe custody in the Malkhana; and its onward delivery to constable to be taken to Forensic Science Laboratory, was not challenged by accused persons—Positive Forensic Science Laboratory’s report, put a final seal on the recovered contraband to be charas garda—Presence of accused persons in the vehicle stood fully established—Prosecution witnesses in one voice stated about the recovery of huge quantity of narcotics, from the bus—Control of Narcotic Substances Act, 1997, was a special law, and it had been specially provided in its S.29 that presumption of recovery of contraband items was always deemed to be from accused, unless it was proved to the contrary—Except for minor and negligible contradictions, which did not strike at the roots of the prosecution version, case stood proved against accused persons to the hilt, leaving no room to doubt the veracity of the statements of prosecution witnesses—Prosecution witnesses, were not at all questioned about any previous ill-will or animous with accused persons, whereby accused could have been substituted with so-called other accused—Mere denial of the charge by accused and pleading innocence, without substantiating the same through cogent and convincing evidence in the face of a strong prosecution case, could not earn them acquittal—Prosecution case stood fully proved against accused persons, Trial Court had recorded a proper and well reasoned judgment according to law and evidence available on the record—Such findings did not suffer from any illegality, misreading or non-reading of evidence, which could in turn call for interference in appeal.
2016 YLR 2119 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Mst. FAHMIDA
Side Opponent : SAJJAD ASHRAF
S. 491—Habeas corpus petition—Jurisdiction of High Court—Scope—custody of minor —Right of Hizanat—minor son, whose custody was sought by petitioner mother, was suckling baby of about 1-1/2 years—Such minor required protection and care for twenty four hours and nobody, other than real mother could look after him—Jurisdiction under S.491, Cr.P.C., was to be exercised with great caution and restraint—Where minor was of tender age, and had been snatched from lawful custody ; and there was real urgency in the matter keeping in view the welfare of the minor , provision of S.491, Cr.P.C., provided efficacious and speedy relief—Section 491, Cr.P.C. protected right of a person, who had been kept under illegal or improper custody —Arrangements under S.491, Cr.P.C., were temporary in nature, which were to be dealt with by way of parental jurisdiction—Question of custody , could be decided by the Guardian Judge—Trial Court, in circumstances was not justified in disallowing the custody of minor to the mother; only on the ground that she had approached the court with considerable delay—High Court observed that such matter, should not be dealt with in a mechanical manner, or on the basis of technicalities—Courts below had to invoke the parental jurisdiction—Impugned order passed by the Trial Court was set aside by High Court with the direction that the minor be handed over to the mother, who had right of ‘Hizanat’ qua him.
2016 YLR 1433 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD ASHRAF
Side Opponent : Mst. UZMA QAMAR
Ss. 9 & 12—Guardianship petition—Welfare of minor , determination of —Temporary custody of minor s—Guardian Court, while dismissing the guardian petition, gave custody of two minor sons to the respondent/mother and allowed the petitioner/father to get their temporary custody on every Saturday for twenty-four hours, for three days on Eid-ul-Azha, for the month of July of every year during summer vacations and for the last week of December of every year during winter vacations—Appellate Court upheld the order of the Guardian Court with the modification that the minor s were allowed to see the father only once a month on Saturday—Validity—Confidence shown, and achievements already made, by the minor s were due to the care and attention by their mother—Mother had not contracted second marriage, and she appeared to be committed with the minor s— Development of child’s personality was directly in proportion to the level of care and attention given by the mother—Mother should have been given the credit of the appreciable conduct of the minor s—Best intention or acts of the father could not possibly substitute the company of the mother—High Court, maintaining the concurrent findings of the courts below, restored the meeting schedule as set out by the Guardian Court— Constitutional petitions were dismissed in circumstances.
2016 YLR 1205 LAHORE-HIGH-COURT-LAHORE
Side Appellant : SAEEDA GULL
Side Opponent : State
S. 9(c)—-Possession, import or export, trafficking or financing trafficking of narcotic drugs—Appreciation of evidence—Prosecution failed to prove recovery of narcotic substances and safe custody of the same—False implication, plea of —Twenty kilograms of Charas along with cash were alleged to have been recovered from accused, while they were transporting the same—Trial Court, having convicted accused under S. 9(c) of Control of Narcotic Substances Act, 1997, sentenced them to undergo life imprisonment, along with payment of fine—Prosecution had neither established safe custody of recovered substance, nor had it produced all recovery witnesses—Statements of police witnesses as to handing over of accused and case property were contradictory—Prosecution was under duty to establish by cogent evidence that the Charas, seized from possession of accused, had been kept in safe custody —Place, where samples of the recovered substance had been kept during time from its seizure till its deposit in Malkhana on the same day, was not clear—Recovered narcotic substance was shown to have been handed over to police constable for its transmission to Chemical Examiner of fice after many days of the recovery; whereas, the samples were deposited in Chemical Examiner of fice on the next day—Mere oral evidence as to recovery of Charas could not discharge the heavy burden, which lay on prosecution—Prosecution, in view of said inconsistencies and contradictions, was not able to prove safe custody of the recovered substance through material and cogent evidence—Police witness deposed that he had separated ten grams from each packet for chemical analysis, but during cross-examination, he had admitted that they had weights in their investigation box from twenty grams to two kilograms—Said contradictions in deposition of police of ficials could be stated to be minor and irrelevant in absence of positive and material evidence—Prosecution had failed to prove the charges against the accused—High Court, setting aside conviction, acquitted all accused—Appeals against conviction were accepted accordingly.
2016 MLD 1767 LAHORE-HIGH-COURT-LAHORE
Side Appellant : TARIQ MEHMOOD
Side Opponent : ADDITIONAL DISTRICT JUDGE
S. 25—Constitution of Pakistan, Art.199—Constitutional petition—custody of minor —Welfare—Determining factors—Guardian Court dismissed mother’s application for custody of minor daughter and handed over the custody of minor to paternal uncle and aunt—Appellate court accepted appeal of mother and custody of minor daughter was handed over to her—Validity—In the absence of father, mother was the natural guardian of the minor as she could better look after the minor daughter who was approaching the age of puberty—No substitute for love and affection of real mother—Mother had not contracted second marriage and had devoted her life for the sake of her children—Where minor reached age of discretion, his/her statement could be considered while determining custody but such statement was not sine qua non for court’s decision—Welfare of the minor was the supreme consideration in custody matters—Real mother could not be deprived of the custody of her minor children merely on the ground that she did not have sufficient source of income—Younger sister of the minor was also living with the mother—Welfare of minor s required that they should all live together at one place—Petition of paternal uncle and aunt was dismissed.
2016 CLC 1460 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Mst. RABIA BIBI
Side Opponent : ABDUL QADIR
S. 25—Constitution of Pakistan, Art.199—Constitutional petition—custody of minor —Welfare of minor —Determination—Second marriage of mother—Effect—Scope—Courts below handed over custody of minor to father—Validity—Courts below took into consideration the second marriage of mother and age of minor —While deciding custody of minor , welfare of minor , and nothing else, was the paramount consideration—Courts below were not justified in disturbing the custody of minor —Father admitted that suit for recovery of maintenance allowance of the minor had been decreed against him—Real mother could not be deprived of her son due to her second marriage—Father filed application for custody of minor subsequent to passing of decree of maintenance allowance against him—Father was least interested in welfare of minor , rather, he filed the application for custody of minor in order to frustrate the decree of maintenance allowance passed against him—minor was growing up properly and getting proper education in a private school—minor was living with his mother since birth and had developed love and affection for her—Disturbance in custody at this stage would psychologically tell upon his personality in future—No substitute to real mother—Lap of mother was cradle of God—Remarriage of the mother, ipso facto, would not disentitle her from retaining the custody of minor —Poverty of mother was no ground to disentitle her from the custody of the minor —Islamic law was subservient to the welfare of the minor —Petition was allowed—Application of father for custody of minor was dismissed.
2016 MLD 801 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Mst. SARDARAN (deceased)
Side Opponent : DISTRICT JUDGE, MIANWALI
S. 25—Constitution of Pakistan, Art. 199—Constitutional petition—custody of minor —Welfare of minor (daughter)—Scope—Applicant being maternal grandmother sought custody of minor s from the father—Validity—Father of minor was her natural guardian—minor daughter was studying in the school—Welfare of minor was with the father—Both the courts below had duly appreciated the evidence available on record—Concurrent findings recorded by the courts below did not suffer from any illegality or perversity calling for interference by the High Court while exercising constitutional jurisdiction—Father being natural guardian had preferential right of custody of minor s—Constitutional petition was dismissed in circumstances.
Side Appellant : SHAUKAT MASIH
Side Opponent : Mst. FARHAT PARKASH
S. 491—Guardians and Wards Act (VII of 1890), Ss. 7 & 10—Civil Procedure Code (V of 1908), O. IX, R. 13—Constitution of Pakistan, Art. 187(1)—Custody of minor—Ex parte proceedings—Guardianship certificate—Power of Supreme Court to issue such directions, orders or decrees as may be necessary for doing complete justice in a case involving custody of minor—Scope—Paternal grandfather of the minor obtained guardianship certificate through ex parte proceedings without disclosing to the court that mother of minor was still alive—Mother of minor, who was unaware of the guardianship certificate, filed a habeas corpus petition before the High Court claiming custody of the minor—Habeas corpus petition was allowed by the High Court despite the existence of guardianship certificate in favour of paternal grandfather on the ground that said certificate had not been obtained in a bona fide manner and, thus, by ignoring the guardianship certificate the High Court ordered transfer of the custody of the minor from the paternal grandfather to the mother—Legality—Mother of minor had not filed any appeal against the order passed by the Guardian Judge nor had any application so far been filed by her before the Guardian Judge seeking recalling of the ex parte order and reconsideration of the matter on its merits—By way of order passed by the High Court a minor had been given in the custody of her real mother and even if there were some questions regarding proper exercise of jurisdiction by the High Court in the matter still the Supreme Court would not like the minor to be made a ball of ping pong and shuttle her custody during the legal battles being fought by those interested in her custody—Under Art. 187(1) of the Constitution, the Supreme Court could issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it—Supreme Court by invoking its jurisdiction under Art. 187(1) of the Constitution in the present case set aside the order passed by the Guardian Judge, and cancelled the Guardianship certificate and directed the Guardian Judge to consider the application for guardianship certificate submitted by the paternal grandfather as a pending application, and to hear all the parties concerned, including the mother of the minor, and then decide the matter of custody afresh after attending to all the jurisdictional, legal and factual issues relevant to the controversy raised by the parties—Supreme Court further directed that during the interregnum the custody of the minor shall remain with the mother and the Guardian Judge shall attend to the request, if any, made regarding visitation rights—Petition was disposed of accordingly.
Citation Name : 2014 SCMR 1446 SUPREME-COURT
Side Appellant : NAVEED MUNIR
Side Opponent : ADDITIONAL DISTRICT AND SESSIONS JUDGE, LAHORE
S. 6—Guardians and Wards Act (VII of 1890), S. 7—Constitution of Pakistan, Art. 185(3)—Minor incapable of managing his valuable immovable property and other affairs—Guardian, appointment of—Mala fide of step-mother and paternal relatives of the minor—Effect—Not in the best interest of minor to appoint either a paternal cousin or stepmother as guardian of his person and/or property—Power of Court of Wards to make an order assuming the superintendence of the person and property of minor—Scope—Parents of minor boy (who was 11 years old) were divorced—Father contracted second marriage—Minor’s father passed away leaving behind valuable properties, including agricultural land, commercial shops, residential houses, etc. and bank accounts—Biological mother of minor could not be traced despite many efforts of the court—Step-mother and a paternal cousin of the minor were locked in litigation with each other for guardianship of the minor—Both the step-mother and paternal cousin of minor submitted an undertaking before the Supreme Court that parties agreed not to litigate the issue of guardianship further before different forums, thus the Supreme Court may pass an appropriate order for welfare of the minor—Supreme Court observed that the interest of various parties in the minor may well be motivated by the property that he had inherited, rather than any natural love or affection; that if the minor had not inherited such property, he would perhaps have ended up in an orphanage or abandoned in the street; that the conduct of the paternal cousin, step-mother and the other paternal relatives of the minor had not been above-board; that the funds and immovable property inherited by the minor were not safe from the mala fide actions of his paternal relatives and step-mother, who attempted to transfer the same to third parties; that the minor was in the physical custody of his step-mother, who had other children from her previous husband; that the living conditions, as per the report of the Local Commission, appointed by the Supreme Court, did not appear to be very conducive to his well-being, and serious security concerns were also expressed by the minor himself; that in such circumstances it may not be in the best interest of the minor to appoint either his paternal cousin or stepmother, as a guardian of his person and/or property, and that present case was a fit case where the suo motu powers conferred by S. 6 of the Punjab Court of Wards Act, 1903, may be exercised by the competent authority by making an appropriate order assuming the superintendence of the person and property of the minor—Supreme Court directed that the Commissioner of the Division concerned should ensure that the matter of the assumption of the superintendence and control of the person and the property of the minor was be considered by the competent authority in terms of S. 6 of the Punjab Court of Wards Act, 1903, so that appropriate notifications were issued, orders passed and appointments made; that till the minor attained the age of 18 years, the Commissioner concerned shall report every three months about the person and property of minor to the Registrar of the Supreme Court for information of the court; that till the formal notification was issued in terms of the Punjab Court of Wards Act, 1903, the Receiver appointed and the Committee constituted by the Supreme Court to oversee the minor’s performance in school will continue to function and perform their duties; that the Commissioner concerned shall file periodic quarterly reports to the Registrar of the Supreme Court regarding the details of the income that accrued from the properties of the minor, the expenditures incurred on the minor, the educational progress of the minor, the step taken or continued to ensure the health, security, well-being and welfare of the minor, and for protecting and preserving his property, and any other matter effecting the welfare of the minor—Petition for leave to appeal was disposed of accordingly.
Citation Name : 2015 YLR 489 KARACHI-HIGH-COURT-SINDH
Side Appellant : Syed RAZA ABBAS
Side Opponent : Mst. SANA SAEED SATTAR
S. 25— Constitution of Pakistan, Art. 199— Constitutional petition—Application for custody of minor—Father moved application for custody of minor son and daughter which was dismissed concurrently—Validity—Both the twin minors were aged about 5 years—Father had contracted third marriage and from the said wedlock he had a baby—Lap of a real mother was God’s own cradle—Step mother could not be equated with a real mother when she had her own minor baby—No jurisdictional error or any perversity, illegality or infirmity was pointed out in the impugned orders passed by the courts below—Constitutional petition was dismissed in circumstances.
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 : 2015 PLD 401 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Miss FAUZIA IQBAL
Side Opponent : FARHAT JAHAN
S. 25—Constitution of Pakistan, Art. 199—Constitutional petition—Custody of minor—Welfare of minor—Adoption of minor by her paternal aunt—Preference of minor—High Court directed that minor be allowed to accompany her parents for a whole day and determine her preference—Mother filed an application for custody of minor daughter who was given in the care of her paternal aunt which was accepted concurrently—Validity—Preference of minor had not been considered by the courts below—Minor who was 12 years of age was intelligent and capable for performing preference—Minor had preferred to live with respondent-paternal aunt—Minor was in the custody of respondent-paternal aunt ever since she was 5 days old who was handed over to her by her parents with their own free will—Both the parties were not stranger to the minor—Present application for custody of minor had been filed at a belated stage and minor had accustomed to the atmosphere provided by the respondent-paternal aunt—Minor had developed love and affection for the respondent-paternal aunt—Custody of minor children should be claimed promptly which was missing in the present case—Welfare of minor was to be taken into account—Parties were directed to establish cordial relations with each other and to bring up the minor jointly and her parents would be at liberty to visit the minor at respondent’s-paternal aunt’s place—Constitutional petition was accepted in circumstances.
Citation Name : 2014 MLD 1439 LAHORE-HIGH-COURT-LAHORE
Side Appellant : ABDUL AZEEM
Side Opponent : ADDITIONAL DISTRICT JUDGE
S. 25—Constitution of Pakistan, Art. 199—Constitutional petition—Application for custody of minor—Father filed application for custody of minor son on the ground that he could provide best health and education to him as compared to the mother—Application for custody of minor was dismissed concurrently—Validity—Father did not meet the minor son from the time of separation—Application for custody of minor by father was moved subsequent to the suit filed by the mother for maintenance allowance—Father had least interest in the welfare of minor and he had filed present petition just to avoid payment of maintenance allowance to the minor—Minor was living with his real mother since from his birth and she had not contracted second marriage for the sake of minor—Minor was enjoying good health and he could not be left in solitude or with his step mother as father remained outside the house for the whole day in pursuit of earning his livelihood—Step mother could not be given preference over real mother—Father was legally and morally bound to maintain the minor even he was residing with her mother—Mother could not be deprived of the custody of minor on the pretext of having limited sources—No illegality or irregularity had been pointed out in the impugned orders—Constitutional petition was dismissed in limine.