Muhammad Suleman Law Assocaites

27/07/2022

14/01/2022

09/06/2021

2020 P Cr. L J 268
[Islamabad]

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Guarantee cheque---Completion of investigation---Further inquiry---Scope---Allegation against accused was that he issued a guarantee cheque in favour of the complainant, which on presentation for payment was dishonoured---Accused was imputed with the offence under S. 489-F, P.P.C., which did not fall within the prohibitory clause of S. 497(2), Cr.P.C.---Grant of bail in such like cases was rule and refusal an exception---Investigation against accused was concluded and the person of accused was not required for the same---Cheque issued by the accused was a guarantee cheque, which position had been affirmed by the Investigating Officer---Provisions of S. 489-F, P.P.C. were not attracted in cases of the guarantee cheque---Case against the accused was one of further inquiry---Petition for grant of post-arrest bail was allowed, in circumstances.

Tariq Bashir v. The State PLD 1995 SC 34; 2013 SCMR 51 and 2018 YLR Note 157 ref.

09/06/2021

GUARDIAN & WARDS LAWS IN PAKISTAN

1998 SCMR 289. Mst. Ghulam Fatima V/S The State & 5 others (FB).

S.491 CrPC. Pendency of the guardianship matter of minor before Family Court would not affect proceedings pending U/S 491 CrPC.

1999 MLD 2264. Mrs. Shakila Khatoon V/S Syed Muhammad Ali Jaffery & another (Karachi).

S.491 CrPC. Application for custody of minor son (detenu). Maintainability... High Court U/S 491 CrPC was competent to entertain habeas corpus petition and to order restoration of custody which had been illegally and improperly disturbed.

1999 SCMR 1834. Mst. Rubia Jilani V/S Zahoor Akhtar Raja & 2 others (FB).

S.25 Guardians & Wards Act, 1890. Custody of minors. Welfare of minors. Father, being natural guardian, mother in case of male children would loose right of “Hizzanat” after minor attained age of seven years. Paramount requirement for determining future arrangement of custody of temporary residence of minor, is his/her welfare. Guardian court while dealing with matters relating to custody of minor children, exercises parental jurisdiction. Strict adherence to procedure or rules, is not to be pressed into service and rigid formalities and technicalities overcoming minor’s welfare, can be safely ignored.

2001 SCMR 1782. Naziha Ghazali V/S The State & another

S.491 CrPC. Petitioner (mother) filed the application U/S 491 after 5/6 months of the alleged unlawful removal of the minor from her custody without giving any explanation as to why she had kept quiet for such a long period. Petitioner in such circumstances would have either filed a report with the police or made a complaint to the concerned authorities against the respondent (father). Conduct of the petitioner, prima facie, showed that the minor was not removed forcibly by the respondent from her custody. Custody of the minor with his father (respondent), therefore, could not be said to be illegal or unlawful within the meaning of S.491. No proceedings under the Guardians & Wards Act, 1890 were even pending before the Family Court. Provisions of S.491 CrPC were not available for declaring any person as guardian or for determining all the questions relating to the custody of the minor because the final decision of the regular custody was to be decided in the proceedings initiated by the party claiming to custody of the minor before the Guardian Court. LEAVE TO APPEAL REFUSED.

NLR 2002 SD 881. Mst. Tabasum Akhtar (Shazia Tabasum) V/S Sabr Ali @ Taswar Ali (Lahore)

Custody of female minor of 9 years of age handed over to mother of minor in presence of statement of minor that she did not want to go with her mother. High Court basing its decision on consideration that minor was of tender age and needed love and affection of her mother.

PLD 2002 Lahore 283. Mst. Irfana Shaheen V/S Abid Waheed

Custody of minor. Adoption. Right of Hizanat of foster mother in respect of an adopted minor. Parties being husband and wife had willingly adopted infant child jointly when they were in marriage. After dissolution of marriage ex-wife in exercise of right of Hizanat of mother in Islam claimed custody of infant child on the ground that after dissolution of marriage between the parties the man being not real father of the child, would have no special or preferential right over female to retain custody of minor child. Validity. Female partner in adoption had accepted dty and responsibility of bringing up the child with motherly love and affection which responsibility could not be discharged by the male. Female being the most essential partner of adoption in light of concept of right of custody of such child in Islam, would exclusively be entitled to custody of the female child. Welfare of the child would also demand that minor girl should remain in custody of female partner of adoption. Female partner having enjoyed status of mother of the monor would be entitled to retain her custody in exercise of right of Hizanat and would not be deprived of such right. High Court directed that custody of minor with female partner was not to be disturbed except in accordance with law.

2003 MLD 1002 Captain Muhammad Tahir Chaudhry V/S Mst. Zartaj Khanum (Lahore)

S.12 & 25 G&W Act. Custody of minor. Welfare of minor. Plaintiff husband had divorced defendant wife and spouses had two minor girls and one minor son. Plaintiff filed suit for custody of minors and alongwith suit he had also filed an application U/S 12 for interim custody of minor children. Family Court vide its interim order decided that minor daughters would remained in the custody of plaintiff while minor son would remain in custody of defendant. Family court found that plaintiff who was drawing substantial salary being a captain in Pakistan Navy was maintaining children in his custody and that both daughters in his custody were receiving education in reputed educational institution. Family court also found that as minor son was more than seven years of age, presumption according to personal law of plaintiff, was that the welfare of the minor son lay in custody with father. Family court, in circumstances, found that welfare of minors lay with the father. Appellate court without adverting to the main question regarding welfare of minors, set aside judgment of family court. Family court had considered respective evidence produced by the parties and had come to a positive conclusion that plaintiff was entitled to the custody of the minor son and to come to that conclusion, status of the plaintiff, his emoluments, the fact that minor daughters in his custody were receiving good education and were being looked after properly, were considered by Family Court. Appellate court on issue regarding illiteracy and immoral character of defendant without taking into consideration welfare of minors. Appellate court below while reversing findings of trial court based its findings on factors which did not put in juxtaposition the respective qualifications of the parties, so far as it directly related to the welfare of the minors. Judgment of trial court which was a well considered judgment was erroneously set aside by Appellate Court below on extraneous consideration. High court set aside judgment of Appellate court in circumstances.

2003 MLD 1306. Mst. Naseem Kausar V/S Muhammad Saleem & 2 Others (Lahore)

--S 17 & 25--- Constitution of Pakistan (1973), Art.199---Constitutional petition---Guardianship--- Custody of minor---- Supreme consideration to be the welfare of the minor, coupled with his own wish--- Both the parents of the minor, in the present case, after separation, had remarried and had children from the new wedlock—Minor boy was 10 years of age and capable of performing intelligent preference and had given his preference to live with his mother, such preference of the minor, could not be ignored--- Father being a shopkeeper was expected to be busy outside the house and the minor was to remain with the step-mother at home, mother of the minor, in circumstances, could impart love and affection to the minor alongwith her other children born from the second wed-lock – High Court ordered that, minor who was present in the Court, be handed over to the mother.

(2). S. 17 &25—Constitution of Pakistan (1973), Art. 199—Constitutional Petition--- Guardianship—Custody of minor--- Welfare of minor--- Contention of the father was that at the time of the divorce between the spouses, custody of the minor was handed over to him on the basis of a private agreemnent and now the mother could not assert her right of custody--- Validity--- Held, neither of minor in all cases could be affectively settled by private agreement nor such principle of stoppel was of universal application--- Matter depended on case to case basis, and the circumstances in which the agreement between the spouses regarding custody of the minor children could be made basis for the decision.

2003 SCMR 1344.Muhammad Tahir V/S Mst. Raeesa Fatimah & Others (SC.DB)

Custody of minors. Principle of welfare of minors. Mother of three minor children sought their custody. Family court dismissed the suit by the Appellate court accepted the appeal and allowed the custody to the mother. Judgment and decree passed by the Appellate Court were maintained by High Court in constitutional petition. Father of the minors contended that welfare of minors was with him as the mother had developed illicit relations with another person, she was illiterate and did not have any known sources of income. Validity. High Court had found the mother of minors to be educated who could provide better education to the minors and it was further found that even if the income of the mother was lesser than that of the father of the minors, the same was enough for the proper education and maintenance of the minors. Father of the minors failed to substantiate the allegations against the mother. Mother of the minors did not contract second marriage after getting divorce. Judgment of High Court did not call for any interference by Supreme Court. No question of law of public importance being involved. LEAVE TO APPEAL REFUSED.

PLD 2003 SC 877. Mrs. Seema Chaudhry & another V/S Ahsan Ashraf Shaikh (FB)

S.25. Custody of minor male child of 8 years - Mother and father of the child had divorced and mother had contracted second marriage and had given birth to a child from the second marriage while the father had not married again. Welfare of minor in such peculiar circumstances....... Principles.......

PLD 2003 Quetta 131.Mst. Farah Iqbal V/S Muhammad Anwar & 2 Others (DB)

Custody of female minor. Welfare of minor was the paramount consideration in determining the custody notwithstanding the right of the father or mother. Mother could not be refused the custody of minor solely on the ground that she had no independent income of her own. Father was supposed to provide maintenance and mother's inability to provide maintenance would not disentitle her, from the custody of minor. Grounds on which the mother would be disentitled or lose the right of custody of minor enumerated. No such disqualification, in the present case, was attributable to the mother, High Court taking into consideration the welfare of the minor gave the custody of the minor to the mother till the minor attained the age of puberty and directed the father to pay for the maintenance of minor including school fees, clothes etc.

NLR 2004 SD 119. Mst. Farah Iqbal V/S Muhammad Anwar etc. (Quetta DB)

S.17/25 G&W Act. Mother cannot be refused custody of minor solely on ground that she had no independent income of her own. It is always the father, who is to provide maintenance and mother’s inability to provide maintenance would not disentitle her to custody of minor. Judgment of Appellate Court accepting appeal of father, in reversal of judgment of Guardian Judge who had rejected custody application of father, disentitling mother to custody of minor on ground that she could not provide maintenance to minor set aside by High Court by accepting mother’s writ petition under Art.199 of Constitution (1973). (2) Mother’s right of hizanat (right of custody of minor) of male child ceases when child reaches age of 7 years. As to female child, right of hizanat would cease when female child reaches puberty. (3) Mother becomes disentitled to hizanat when (1) she marries a person not related to female child within prohibited degree; (2) if she goes and resides during subsistence of marriage at a distance from place of residence of minor’s father; (3) if she is a leading immoral life or is a pr******te, (4) if she neglects to take care of child.

NLR 2004 SD 211. Sardar Hussain V/S Mst. Parveen Umar etc. (Peshawar DB)

S.17/25. Second marriage contracted by mother would be no ground to disentitle her to custody of minor sons more than seven years when she felt insecure anddefenceless in male dominated society and contracted second marriage to secure her and her minors’ future. (2) Non-maintenance by father of his minor sons is sufficient to demonstrate that father is not a loving father and has no serious concern about welfare of the minor sons who have attained age of 7 years. In such case, Guardian Judge would be wrong in handing over custody of minor sons to father by rejecting claim of mother to custody of minors. Appellate Court would be right on mother’s appeal in reversing Guardian Judge and handing over custody of minors to mother. High Court upholding judgment of Appellate Court and dismissing writ petition filed by father to challenge appellate judgment of Appellate Court. (2) Father’s right to custody of minor sons who have attained age of 7 years is neither absolute nor indefeasible but is subject to welfare of the minors. Each such case is to be decided on its merits and there is long chain of authorities where father’s right to custody of minor sons of more than 7 years of age has been departed from.

NLR 2004 SD 426. Mst. Nasreen Akhtar Additional Distt. Judge Faisalabad (Lahore)

S.17/25 Guardians & Wards Act, 1890. Paramount consideration in custody matters is welfare of the minor. Handing over custody of minors from mother to father when uprooting their custody would result in disaster towards studies would be illegal. Mother who has remarried would be entitled to custody of minors in preference to right of father who has also remarried when it is established that she is well grooming the minors whose welfare would lie in remaining with mother. High Court in such case accepting mother’s writ petition and setting aside appellate judgment by which custody of minors was handed over to father.

NLR 2004 SD 717. Mst. Nasreen Akhtar V/S Javed Akhtar (Lahore)

S.17/25 Guardian & Wards Act, 1890. Settled proposition of law in custody matters is that paramount consideration must be given by courts to welfare of the minors. (2) Uprooting custody of minors from mother which will result in disaster for them would not be in the welfare of minors. Appellate court would be wrong in such case in reversing family court and handing over custody of minors to father. High court accepting writ petition of mother, setting aside appellate judgment and restoring custody of minors to mother. TRIAL COURT’S JUDGMENT RESTORED.

PLD 2004 Lahore 395.Mrs. Khurshid Begum V/S Additional District Judge

S.12 Guardians & Wards Act 1890. Interpretation of S.12. Production of minor - Interim custody - Legality - Pre-condition of urgency, requirement of - Grievance of the petitioner that interim custody of the minor was given to the mother by the Guardian Judge despite the fact that welfare of the minor lay with the paternal grandmother who was of sound financial position and that in the absence of pre-condition of urgency, power U/S 12 could not have bveen exercised. Validity. No bar was placed upon the Guardian Judge, who had parental jurisdiction over the minor, to exercise power U/S 12(1) of the Act even in the absence of urgency. Section 12 of the Act called for liberal interpretation and the interim arrangement for the custody of minors could not be fettered with a pre-condition of urgency. (2) Once the Guardian Judge had exercised its jurisdiction in granting the interim custody U/S 12, the same should be allowed to stay, unless there were compelling circumstances to change the same. PETITION DISMISSED.

PLD 2004 SC 357. Sardar Hussain & Others V/S Mst. Parveen Umer (DB)

S.12 & 25 Guardian & Wards Act 1890.Father claimed custody on the ground that minors had attained age of 7 years; and their mother, after contracting marriage, had children from her second husband. Guardian Judge accepted father's petition, but Appellate Court dismissed the same, which judgment was upheld by High Court in Constitutional petition. Minors, after staying with father for more than 15 days at the direction of the High Court, had proclaimed that father was alien for them thereby showing attachment with mother. Minors had been admitted in standard school, getting education, clothes, food and were enjoying every facility of life in mother's house. Supreme Court dismissed petition and refused leave to appeal with observations that father might approach proper forum for allowing visiting terms to his children. LEAVE REFUSED.

PLD 2004 Lahore 801. Rukhsana Malik & 2 Others V/S Abdul Aziz & 2 Others

Custody of minor sons aged 16 years and 15 years. Contest between father and mother of minors. Re-marriage by mother with a stranger to minors. Plea of father was that on account of such marriage, mother had lost her right to rtain custody of minors. Guardian Judge granted custody of minors to father, which judgment was upheld by Appellate Court. Validity. Father was living all alone in one room attached with his office. Father was ready to take a house on rent, if minors joined him and would bring his mother and sister in that house. Minors living with mother were receiving education in best institution and were being looked after properly. Wife and children of step-father had taken asylum abroad and were not likely to come back to Pakistan. Elder son told father that he would not like to accept dictation either from mother or father and limitations on his visit to a particular place. Both minors emotionally attached with mother expressed discretion to stay with her as she had done lot for their comfort and education. Mother stated that if on ground of re-marriage, she was to be deprived of company of minors, she could sacrifice same as well as any of her own desire for the sake of welfare of minors. Paramount consideration is welfare of minors, which overrides provisions of personal law. Minors were male and of the age of discretion, thus, their custody could not begiven to father against their will. Both brothers had been living together, thus, their separation might badly affect their association and conducive atmosphere available to them in their stay with mother, whose lap was a cradle of Allah. Father had not expressed ill-feeling except family feud of step-father. Re-marriage by mother would not come in her way to lose custody of minors, whose welfare would lie with her. Both minors agreed in spending of long summer and winter vacation with father and mother on equal terms. Elder son was aged about 16 years and 3 months, thus, no limitations could be placed on his movement. High Court accepted constitutional petition, set aside impugned judgments, resultantly petition for custody was dismissed while making arrangement for meeting of younger son with father subject to his acquiring a house and furnishing a surety bond not to remove minor from territorial jurisdiction of court. (2) Custody of minor sons and daughters. Re-marriage by mother with a stranger to minor sons would not by itself disqualify her to retain their custody. Philosophy in Islam is to keep stranger away from females. Minor daughters either on attaining or near to attain age of puberty may not be allowed to live in custody of mother, while step-father is in the house. Such re-marriage by mother maybe considered ground for delivery of custody of female minors, but not in each and every case. Exceptions stated. PETITION ACCEPTED.

2004 SCMR 821.Mst. Razia Bibi V/S Riaz Ahmad & another (SC.DB)

S.25. Welfare of the minor. Poverty on the part of mother. Failure to provide maintenance by father. Relationship between the parents of the minor ended in divorce. Father was living in urban area while the mother being illiterate lady was living in a village. Guardian Judge handed over custody of minor to the father but Appellate court reversed the finding of Guardian Judge and handed over the minor to the mother. High Court in exercise of constitutional jurisdiction restored the order passed by the Guardian Judge for the reason that the father had better facilities. Validity. Poverty on the part of mother was no ground to disentitle her from the custody of minor. Mother had been looking after her minor son since his birth and maintaining him in a good environment thus welfare of the minor was with the mother. Father who was obliged under the law to maintain his child, had not provided any maintenance till date. Non-maintenance on the part of father would not automatically disentitle him from the custody of the child but the same would be one of the circumstances for determining the welfare of the minor. Father had contracted second marriage and the mother on the contrary had not married again, she was devoting her complete attention towards the upbringing of her minor son. Held, it would be harash to hand over the custody of the minor to the father leaving him at the mercy of step-mother in presence of his real mother who was properly maintaining the child. HIGH COURT'S ORDER SET-ASIDE.

2004 SCMR 990.Mst. Shahista Naz V/S Muhammad Naeem Ahmad (SC.FB)

S.491 CrPC. Mother before contracting second marriage was entitled to retain the custody of minor in exercise of her right of Hizanat and on her re-marriage, despite losing her preferential right of custody, she could still be entrusted and allowed such custody in the welfare of minor as neither she would lose absolute right of custody of minor nor the father, on her re-marriage, would ipso facto become entitled to the custody of child. High Court, in the present case, instead of disturbing the custody of minor with the mother U/S 491 CrPC should have directed the father to approach the Guardian Court for the relief which was being sought from the High Court as at the time of passing of the impugned order, the minor was not in illegal or improper custody. ORDER OF HIGH COURT SET-ASIDE.

2004 SCMR 1735. Malik Muhammad Hussain & another V/S Malik Ghulam Qadir (SC.DB)

Custody of minor. Right of father. Father after demise of wife had not contracted second marriage for sake of his minor children. Question of handing over custody of minors to father for their welfare as determined by Courts below and upheld by High Court did not suffer any legal infirmity. LEAVE REFUSED

2004 SCMR 1839. Mehmood Akhtar V/S District Judge Attock (SC.FB)

Custody of minor. Welfare of minor. Settlement between the parties. Marriage of mother with a person stranger to the minor daughter. Parties had agreed that the custody would remain with the mother and father of the minor would pay the maintenance allowance regularly. Parties also agreed that in case the mother would marry, the custody would be handed over to the father of the minor. Mother of the minor got married and father sought custody. Guardian Judge dismissed the application filed by the father but Appellate court allowed the appeal and handed over the custody to the father. High Court in exercise of constitutional jurisdiction, set aside the judgment passed by Appellate court and the judgment of Guardian Judge was restored. Plea raised by the father was that after the marriage of mother with a stranger to the minor daughter, the welfare was with him. Validity. Courts, subject to the welfare of the minor, always determine the question of custody of minor child in the light of governing principle of Islamic law. Mere fact that the father had become entitled to get custody of minor or mother had lost the right of Hizant, was not a sole criteria to decide the question of custody of minor. In the light of law laid down by Supreme Court and the principles of Islamic law, and in the given facts and peculiar circumstances of the present case, it would not be in the interest and welfare of minor to handover her custody to father rather the welfare of minor would lie in her custody with her mother. High Court, while interfering in the matter in constitutional jurisdiction, had rightly declared the judgment of Appellate Court, without lawful authority. LEAVE TO APPEAL WAS REFUSED.

2005 MLD 828. Mst. Kaneez Akhtar V/S Abdul Qadoos & 2 Others (Lahore)

S.25. Welfare of minr. Determination. Preference of child. Nature of service of father. Minor son was about 12 years of age and had been living with his mother since divorce. Father was serving in Army and sought custody of the minor. guardian Judge allowed the application and found father entitled to custody. Decision of Guardian Judge was maintained by Appellate Court. Plea raised by mother was that nature of duty of father was such that he could not look after the minor and both the courts below did not consider the intelligent preference of the minor. Validity. Both the courts below did not consider the intelligent preference of the child, it was also ignored that since divorce, the minor had been in exclusive custody of the mother. Care and bringing up which was being rendered by the mother to the child was not found to be improper or lacking. Right of mother to meet the child and arrangements in such behalf were not made by the courts below. Nothing was available on the file to support the claim of father for custody, showing that he had any attachment with him out of which he had been looking after his educational career and he had been providing him maintenance. Question of welfare of minor remained thirsty of the decision and the lapses noted by High Court, negatively reflected on the orders of Guardian Judge and Appellate Court. Disqualification of mother on the basis of parameters laid down under Islamic Law was neither urged nor were borne out from the record and in absence of those, exclusion of mother from her child, for all times to come, appeared to be very harsh. High Court observed that there was no substitute of mother's love and affection and such soothing attachment could not be provided by father. All such aspects of the matter escaped notice of both the courts below and the matter of custody was not correctly decided keeping in view the welfare of the minor and other factors, noticed by High Court. High Court set aside both the orders and remanded the matter to Guardian Judge.

2005 MLD 1310. Mohabat Khan V/S Robkar-e-Adalat & 2 Others (SC.AJK)

S.25. Wife moved application for custody of minors in Family Court and her application for temporary custody of minors was allowed and temporary custody was handed over to her subject to furnishing a bail bond in sum of Rs:10,00,000 with direction that minors would not be removed from territorial jurisdiction of the court. Appellant furnished bail bond before trial court. Neither the wife of minors appeared in the court nor minors were brought before the court, on the relevant date, the Court ordered confiscation of bail bond executed by the appellant. Appellant did not dispute correctness of order whereby bond was confiscated, but he raised only point that a notice was required to be issued to him as to why amount should not be recovered from him. Evidence on record had shown that after confiscation of bond a notice was issued to appellant which had been placed on record by appellant himself, thereafter, other necessary proceedings were taken as appellant could not be served for being out of the country. Trial court had undertaken all proceedings which were in accordance with law in view of facts and circumstances of case. Revision filed before Shariat Court was correctly dismissed after taking all aspects, factual as well as legal. In absence of any illegality in order passed by Shariat Court, appeal to Supreme Court, was dismissed. APPEAL DISMISSED.

PLD 2005 SC 22. Muhammad Iqbal V/S Parveen Iqbal (FB)

S.7(2) proviso West Pakistan Family Courts Act, 1964. R.6. West Pakistan Family Courts Rules, 1965. Transfer of guardanship application to the place of residence of wife. Plea raised by the husband was that under R.6 of West Pakistan Family Courts Rules, 1965, suit for dissolution of marriage or dower could only be competently filed before the Family Court where wife ordinarily resided. Validity. Irrespective of suit for dissolution of marriage and dower, under the proviso to S.7(2) of West Pakistan Family Courts Act, 1964, suit for maintenance, personal property, belongings of wife, custody of children and visitation rights of parents to meet their children could also be instituted before Family Court where wife resided. Record showed that wife was residing with her son at place "J" in the house of her parents. Guardian Judge at place "J" had the juraisdiction to try the suit. Guardian petition had been rightly withdrawn from Family Court at place "C" and was transferred to Family Court at place "J". Order of transfer was proper and it did not require any interference. LEAVE TO APPEAL REFUSED.

2006 MLD 135.Irfan Ahmed V/S II-Juducial Magistrate Karachi & another (Karachi)

Custody of minors. Constitutional petition. Section 14(3) of West Pakistan Family Courts Act, 1964 had provided no appeal or revision against an interim order of Family Court, constitutional petition being the only remedy same was maintainable. Petition was admitted to regular hearing by consent and date of hearing was fixed. Both counsel of parties agreed that they would make efforts to work out amenable settlement between the parties. Petitioner undertook that he would comply with impugned order subject to result of present constitutional petition. Respondent also agreed that visitation rights would be available to petitioner for four hours on every Friday so that he could collect the minors.

2007 PCrLJ 1928. Shah Bano V/S Station House Office (Lahore)

S.491 CrPC. S.12 Guardian & Wards Act. Custody of minor. Petition for - Petitioner (mother) had prayed that her minor son aged 5 years, who was illegally removed by respondent/ex-husband of the petitioner, be recovered and his custody be handed over to her. Petition U/S 491 CrPC no doubt could be moved even during pendency of application U/S 25 & 12 of Guardians and Wards Act, 1890 when there was apprehension of removal of ward from the territorial jurisdiction of the court or the mother who was contesting the case with zeal and vigour for regaining of the custody, especially when the nor was removed from her custody illegally by the father, but present was not a case of forcible illegal removal. Petitioner, earlier filed application U/S 491 CrPC before District Judge alleging that her minor son was removed illegally by the respondent. District Judge dismissed said application by observing that minor was not removed forcibly, but there was dispute about the custody of minor. District Judge directed the petitioner to file an application U/S 12 & 25 of Guardian & Wards Act, before Guardian Judge. Petitioner never challenged said order and after remand of the case she disappeared and did not appear before the Guardian Judge. Petitioner, by her own conduct, established that she was not entitled to any relief u/s 491 CrPC. Paramount consideration would be the welfare of the minor. Minor presumed to be well acquainted with his father/respondent, who was also his natural Guardian. No direction could be passed to declare the custody of minor with respondent/father to be illegal. PETITION DISMISSED.

2007 MLD 658.Muhammad Tariq & another V/S Fazal Abbas (Lahore)

S.7 & 27. Sale of minor's property by guardian appointed by Court. Application by other relatives of minor seeking cancellation of sale on the ground that guardian was a drug addict; and that purchaser had taken unfair advantage of such disability of guardian to the prejudice of interest of minor. Dismissal of application by Guardian Judge, but its acceptance by Appellate Court. Validity - Serious allegations had been made by both parties against each other. Such allegations could only be determined after a detailed inquiry and if necessary, recording of evidence. Interest of justice would be best served, if allegations and counter allegations were determined through recording of evidence so that rights of all parties including minor were protected. High Court set aside impugned orders and remanded case to Guardian Judge to decide application afresh after giving parties opportunity to produce evidence if found necessary.

2007 MLD 1089. Javed Irfan V/S Additional District Judge (Lahore)

S.25. Application by petitioner/father for custody of minor son under S.25 of the Guardians and Wards Act, 1890 was accepted by the trial court but on appeal same was dismissed by Appellate Court. Petitioner had contracted second marriage and mother of minor had also contracted second marriage. Minor, who was aged about 12 years was happily living with his maternal grandfather for the last many years. Appellate Court below interviewed the minor who was not willing to live in the house of his father/petitioner with his stepmother. Minor at the relevant time was student of Class V. Maternal grandfather of minor was looking after minor and was attending to his educational requirements. Petitioner/father who had contracted second marriage had children from his second wife and it was not safe to remove minor from his present family set up. Welfare of the minor demanded that he should be permitted to continue to live with his maternal grandfather. Appellate Court, in circumstances had rightly accepted appeal against judgment of the trial court. Paramount consideration in determining the question of custody of minor was welfare of the minor and in the present case, welfare of the minor was that he should remain with his maternal grandfather. In absence of any illegality or infirmity in the impugned order of Appellate Court, same could not be interfered with by the High Court in exercise of its constitutional jurisdiction. PETITION DISMISSED.



PLD 2007 Lahore 300.Louise Anne Fairley V/S Sajjad Ahmed Rana

S.491 CrPC. Despite restraining order passed by court of foreign jurisdiction, father removed the minor to Pakistan. Plea raised by mother was that such custody of minor with father was illegal----Validity----- If much sanctity was attached to order passed by court in Pakistan, then same legal status and sanctity should be conferred and given to orders passed by Court of foreign jurisdiction, when such orders were passed in proper exercise of jurisdiction and especially in the circumstances when delinquent party had surrendered to the jurisdiction of that court. There were interdictory and residence orders passed by Court of foreign jurisdiction and also an undertaking had been given by father, not to remove the minor from care and control of mother and also jurisdiction of that foreign court. Bringing the child over to Pakistan and retaining its custody was "without lawful authority", "illegal" and "improper" in circumstances. (2) S.9 Guardians & Wards Act. Place of residence of minor--Determination---During the period since May, 2005 till August, 2006, minor, in the present case, was in foreign country and was studying in school. Father admitted such fact in his defence before court of foreign jurisdiction----Effect---Such length of time was good enough to mean that minor was ordinarily residing in that foreign country and not in Pakistan, within the meaning of S.9 of Guardians & Wards Act, 1890.



PLD 2007 Lahore 293.Ms. Luise Anne Fairley V/S Sajjad Ahmed Rana & 2 Others

S.491 CrPC. Custody of minor. Removing custody of minor. Mother of minor had sought custody of the minor by invoking habeas corpus petition. Plea raised by father was that he being legal and natural guardian of the minor, his custody was not illegal---Validity--- Father having himself admitted the jurisdiction of foreign court and submitted and surrendered thereto and having promised not to remove the child from care and control of mother and Court, was debarred to bring the child to Pakistan. Such was flagrantly illegal, deceitful and dishonest act on the part of father. If Pakistan Court had passed an order directing not to remove child from custody of a parent by the other and order was violated, such act would fall within the ambit and scope of Art. 199 of the Constitution and S.491 CrPC, as such rule was applicable regarding the orders passed by Courts of Pakistan, same rule could be extended to the valid orders of foreign jurisdiction, especially to which jurisdiction the defaulting party (father) had surrendered. High Court in exercise of jurisdiction under Art. 199 of the Constitution and S.491 CrPC, declared that the petition was maintainable in circumstances. (2) S.3 Guardian & Wards Act 1890. S.491 CrPC. Parties were parents of minor girl aged about 12 years, who had divorced each other. Matter pertaining to custody of the minor was pending before a Court of foreign jurisdiction, as they were nationals of that foreign country. During proceedings, foreign court directed the father not to remove minor from the care and control of mother. Father original being Pakistani national, despite restraining order removed the minor to Pakistan. Mother invoked constitutional jurisdiction of High Court to seek custody of the minor. Plea raised by father was that as the child professed Islamic faith, therefore, it was not in her welfare to send her back to that foreign country, where the culture and norms were fundamentally in contradiction to Islamic injunction----Validity----- Question about welfare of the minor, could only be decided by a court, where minor was habitually residing. Father having admitted in his defence before Court of foreign jurisdiction that the minor was habitually resident of that foreign country, therefore, High Court declined to interfere in the jurisdiction of that court, regarding the determination of the issue of the welfare. High Court directed the father to hand over custody of minor to her mother and raise such pleas before the Court of foreign jurisdiction. PETITION ALLOWED.

PLD 2007 Lahore 576. Mst. Nasreen V/S Additional District Judge

S.5, 7(2)(3), 8(c ), 9(5) & Schedule Family Courts Act 1964. S.25 Guardian & Wards Act 1890. Custody of minor--- Defendant was not served in person. Ex-parte proceedings were initiated against defendant on basis of proclamation in newspaper and report of Process Server regarding refusal to receive notice. No notice was issued to defendant by registered post A/D or courier service or by both with copies of plaint, schedule of witnesses and documents referred in S.7(2)(3) of Family Courts Act, 1964. No notice was issued to chairman of Union Council where defendant resided. Record did not establish as to whether on receipt of notice, Chairman of Union Council ever displayed same on Notice Board of Union Council for a period of seven days and informed the Family Court after expiry of such period that notice had been so displayed per requirement of S.8(3) of Family Courts Act 1964. Held, impugned service of defendant either through such refusal or by proclamation in newspaper could not be considered to be due service being violative of provisions of S.8 of Family Courts Act. CASE REMANDED.

NLR 2007 CrLJ 758.Mst. Ayesha Siddiqua V/S Station House Officer etc. (Lahore)

S.491 CrPC. Habeas corpus petition under S.491 seeking custody of minor daughter of six years and minor son of 4/5 years being kept in custody of paternal grandmother. Grandmother producing both minors in the court and contending that petitioner was leading immoral life for which she was divorced by her son and had entered into second tie of marriage. On Court's query, minors opting to live with their paternal grandmother. High Court without going into the allegations against petitioner, refraining to invoke its jurisdiction under S.491 and dismissing habeas corpus petition leaving it open to petitioner to approach the Guardian Judge. PETITION DISMISSED.

2008 SCMR 121. Asima Saeed V/S Syed Saeed Hassan Shah Humayoun & Others

Art.185(3) of Constitution. S.25 Guardian & Wards Act 1890. Minor, custody of-- Hardships and problems faced by mother--- High Court granted custody of minor to mother giving right to paternal grandfather to meet the minor. Petitioner, for that purpose had to face hardships and problems to take minor from Lahore to Bahawalpur, which would not only entail heavy financial burden, but also cause inconvenience to her. Operation of order of the High Court was suspended by the Supreme Court observing that mother of minor would not go to Bahawalpur along with the minor for meeting with grandfather of the minor but grandfather would come to Lahore or any other place where mother would be posted who was lecturer.

2008 YLR 168.Nasrullah Khan V/S Guardian Judge & Others (Lahore)

S.25. Welfare of minor. Respondent, who was real mother of minor daughters aged 5 and 3 years, filed application against petitioner/father of minors for custody of said minor daughters which was concurrently accepted by two courts below and petitioner had filed constitutional petition against said orders---Scope---Petitioner had admittedly contracted second marriage. Courts below observed that it was in the welfare of minors that they should remain with their mother---Validity---Petitioner (father) had contracted second marriage, whereas respondents (mother) had not contracted second marriage. Courts below, in circumstances had rightly given custody of minor daughters to mother and dismissed application of father. In determining the question of custody of minor, the paramount considerations being welfare of minor, no illegality or infirmity was found in the impugned judgments of the two courts below. PETITION DISMISSED.

2008 YLR 127.Shahbaz Ahmad V/S Additional District Judge & 2 Others (Lahore)

S.25. Both minors were in the custody of the mother of the minors. Male minor who was student of class-2 had a shining academic record. Mother of minors who was serving in a private department, had not gone for second marriage but was looking after her minor son and daughter. Both minors aged 8-1/2 and 4-1/2 years, respectively, who were bright and happy with their mother. Minors were living with the company of their mother right from pronouncement of divorce to their mother by the petitioner. Decree for maintenance allowance passed against the petitioner was not honoured by him. No substitute was for love and affection bestowed by the mother on her children. Difference of income between father and mother had no over-riding consideration. Father was always bound to maintain the minors even if mother was jobless and had no source of her own independent income. Judgment of two courts below could not be interfered with by the High Court in exercise of its constitutional jurisdiction. PETITION DISMISSED.

NLR 2008 SD 307. Mst. Zubaida Khanum V/S Jahanzeb Khan (Shariat Court AJK)

S.17 & 25 Guardian & Wards Act. Welfare of minor includes moral, spiritual and material well-being of minor. Court while dealing with welfare of minor should give regard to age, s*x and religion of the minor, the character and capacity of proposed guardian, his nearness to the minor and preferences of the minor if he or she is intelligent to make it. Mother should be preferred over father because of her warmth of affection for minor while deciding question of welfare of minor.

PLD 2008 Karachi 132. Asif Ali V/S Mst. Rehmina Naseem Shad & 2 Others.

Courts below concurrently gave custody of minor to mother and the father who had divorced her had challenged said concurrent judgments of the courts below in constitutional petition---Validity----Minor was patient of imperforated disease and had been operated thrice, in such circumstances when minor had attachment with his mother, in case he was given in the custody of his father who was stranger for him, it would deteriorate his health. Father, who had contracted second marriage, when he would leave for his job, child would be at the mercy of step mother. In presence of real mother, who was living in a combined family having sisters and mother, it would not be proper to deprive the child from the natural love and affection of the mother particularly when nothing substantial had come on rcord to prove that the mother had failed to properly look after her son. Scope of powers of High Court while dealing with the concurrent findings of the two courts below, in exercise of constitutional jurisdiction, was very limited. Burden of proving that findings recorded by courts below were vitiated by evidence on record or suffered from non-reading of material evidence or there was jurisdictional defect, lay on the petitioner, which the petitioner in the present case had failed to point out. Both courts below had very carefully examined all the aspects of the matter in regard to the welfare of the minor. Concurrent judgments of the courts below could not be interfered with by the High Court in exercise of its constitutional jurisdiction.

2008 SCMR 505. Malik Amir Akbar V/S Mian Murid Hussain & Others

S.17 & 25. Custody of minor son and daughter. Dismissal of father’s application for custody by courts below and High Court----Validity----Both children had reached age of maturity, thus uprooting them at such stage would be improper particularly in absence of any infirmity in impugned judgment. PETITION DISMISSED.

2008 SCMR 527. Altaf Akhter Alvi V/S Mst. Sadaf Ara & Others

S.25. Application filed by ex-wife of the petitioner, under S.25 for custody of minors was disposed of by the Guardian Judge in view of compromise between the parties and it was directed that permanent custody of minors would remain with the petitioner who would hand over minors on each Sunday to the ex-wife for visitation. Appeal filed by petitioner against judgment of the Family Court was partly allowed by the Appellate Court below by making some changes in respect of visitation rights of respondent and judgment of Appellate Court below was upheld by High Court. Plea of petitioner was that as ex-wife had contracted a second marriage with a stranger, she had lost her right of Hizanat or even visitation----Validity____ Mother of minor, could not be denied, minimum right of access to her minor children nor she be considered like an alien enemy qua them. Appellate Court below adopted a very sensible approach by permitting the mother to meet the minors on the first Sunday of each month. Order passed by the Appellate Court below was upheld by the High Court, being just and fair to which no exception could be taken. Impugned judgment of the High Court, no suffering from any legal infirmity so as to warrant interference by the Supreme Court. PETITION DISMISSED.

PLD 2008 Karachi 198 Imran Ali V/S Mst. Iffat Siddiqui & 2 Others

S.12, 25 & 47. One of the minors was of about 8 years while other was about 5.1/2 years old. Petitioner, who was father of minors was Shia and had sufficient means to look after the welfare of the minors and also to provide them better means for their growth as per his own sect. Minors were going to school prior to handing over the temporary custody to the mother and no evidence was available on record to the effect that during temporary custody of mother, minors were going to school. Mother of minors was residing with her three brothers, one of whom was a convicted person and was residing abroad. Record had also shown that the family atmosphere of father was much better for future growth of minors as msother of the father was retired principal of a school, his elder brother was running his own school and his second brother was getting education in Australia. Father had sufficient source of income to maintain the minors in better way. Father and mother had equal love with the children, moreso minors needed love, affection, better education, mental and physical health and civil and social atmosphere. Children should be brought up according to the sect/religion of their father. Both courts below while granting temporary custody of minors to mother had not considered said facts and circumstances and had misread evidence available on record and had not properly appreciated the evidence. Impugned judgments were set aside and petition by father was allowed as prayed for and he was appointed as guardian of the minors till the age of their majority as welfare of minors lay with him.

NLR 2008 SD 615. Abdur Rauf Khan V/S Public At Large (Shariat Court AJK)

S.17 & 25. of 7 years and of her female child to the age of her attaining her puberty. This right under Shariat continues even if she is divorced. However, if she contracts a second marriage, then of course she looses her right of custody. But at the same time, if the husband opts for second marriage and lives and enjoys life with his second wife, then it is paramount duty of the court to see the convenience and welfare of the minors while deciding custody dispute between father and mother.

NLR 2008 SD 371. Muhammad Jamil V/S Safina Bibi (Shariat Court AJK)

S.17 & 25. Mere fact that minor daughter aged 3 years had been previously living with her father and she was also attending a school would not deprive the mother from seeking custody of minor daughter when father has not leveled an allegation of corruption or bad character against mother. Order of Family Courts upheld by Shariat Courtand appeal filed by father dismissed. FATHER’S APPEAL DISMISSED.

2008 MLD 989.. Mst. Saima & another V/S Shahzad Riaz & 2 Others (Karachi)

Hizanat---Welfare of minors --- Right of father to claim custody of minor son is not absolute, welfare of minor is always a paramount consideration---Mother’s lap is the first place of educa