ABDUL GHAFFAR Versus SHOUKAT

MUSARRAT HILALI, J.--- This writ petition has been directed against the judgment dated 14.09.2021 passed by learned Civil Judge-XIII/Judge, Family Court, Mardan, and that of appellate court dated 22.11.2021 passed by learned Additional District Judge-VIII, Mardan, whereby application of the petitioner for custody of his minor son, namely, Muhammad Hilal, was dismissed.

2. Facts of the case, as reflected from the record, in brief, are that Mst. Saeed Bibi was the legal wedded wife of the petitioner and he, on 14.04.2013, was present in a shop when received information regarding receipt of injuries by his wife, therefore, he visited his house, where he found his wife, Mst. Saeeda Bibi, in injured condition. He took her to the hospital where she succumbed to her injuries. He lodged a report to the police in terms that she was fired at by his father due to some trivial nature matter and in pursuance thereof a criminal case vide FIR No. 426 was registered against his father. Later on, legal heirs of the deceased charged the present petitioner for abetment and he was also arrayed as accused in the case. During his confinement, his minor son, namely, Muhammad Hilal (respondent No.3) was shifted to the house of his maternal grandfather, namely, Lawang Shah. The petitioner, after his release on bail, submitted an application under section 491, Cr.P.C. which, as per statement of Anwar Shah (DW-1), was dismissed on the ground that he should wait till the fate of the criminal case. On conclusion of the trial, the learned trial court, vide judgment dated 14.02.2018, acquitted the petitioner and other co-accused from the charges levelled against them. After his acquittal, the petitioner, without wasting time, filed the present petition on 28.02.2018 before the learned Family Court for custody of his minor son, Muhammad Hilal, against respondent No.1 (Khalo ( خالو ) of the minor). During pendency of the proceedings, on the application of the petitioner, Akmal Khan, the maternal uncle of the minor, was also arrayed as respondent in the petition. The learned Family court, vide judgment dated 14.09.2021, after full-dressed trial, dismissed the application of the petitioner and Akmal Khan, the respondent No.2, was held entitled to the custody of the minor. Feeling aggrieved, the petitioner filed an appeal, which was also dismissed by the learned Additional District Judge, vide judgment dated 22.11.2021, hence, the instant petition.

3. Arguments heard and record perused.

4. In order to prove his case, the petitioner at trial produced two witnesses, while the petitioner himself was examined as PW-1. In rebuttal, Shoukat and Akmal Khan (respondents Nos. 1 and 2) did not appear, however, attorney of Akmal Khan appeared as DW-1, while Bakhshad was examined as DW-2. The minor Muhammad Hilal was examined as DW-3 but perusal of his statement would reveal that learned trial court neither recorded his age nor asked questions from him in order to determine as to whether he was in position to give rational answers to the question or otherwise as required under Article 3 of the Qanun-e-Shahadat Order, 1984.

5. Anwar Shah, the Special Attorney of respondent No.1, stated in his cross-examination that Lawang Shah was the grandfather of the minor, who was appointed as guardian of the minor but he died in year, 2017. He deposed that Akmal Khan (respondent No. 2) is his brother, who is in Dubai. So far his relation with Shoukat (respondent No. 1), the DW-1 stated that Shoukat is his brother in law, who is issueless. Muhammad Hilal appeared as DW-3, who in his statement stated that his uncle, namely, Akmal (respondent No.2) is in Dubai.

This sentence clearly indicates that the minor was in the custody of respondent No. 1 Shoukat, ( خالو ), however, the learned trial court without making any critical study of the evidence rather mechanically picked up some statements of the PWs in support of the case of respondents, totally shutting her eyes to the statement made by the minor, refused to grant custody of minor to the petitioner by stating that the welfare of the minor lies with his maternal uncle, the respondent No.2, who is in Dubai.

6. Decision on question of welfare of a minor child has to be considered on its own merit in the background of relevant facts and circumstances and other decided cases can hardly serve as binding precedent insofar as the factual aspects of the cases are concerned. As has been mentioned in the preceding para, the custody of the minor was refused to his biological father on the ground that in his statement before the learned Judge, the minor himself charged his father for the murder of his mother and that the respondents were financially better as one of the uncle of the minor was in Dubai and was paying for the education of the minor and also that mere acquittal in murder case would not entitle the petitioner for custody of the minor.

7. It is a settled principle of law that paramount consideration for the custody of a minor is the welfare and well-being of the child and other considerations are subordinate. According to the Courts, the welfare of the minor means a child's health, education, physical, mental and psychological development. Admittedly, the petitioner and respondents are inimical towards each other. As per the available record, the custody of the minor went to the respondents when he was one year of age. The most disturbing feature and fact upon which this court is required to make observation is that his statement was tutored as in his statement he has charged his father, the petitioner, for the murder of his mother. The question arises as to who put in to the child's mind that his mother was killed by the petitioner. Such statement of the minor at this age clearly indicates that he is being brought up in an hostile environment where respondents are sowing seeds of enmity and hatred in the mind of minor against his father which will not only result in imminent and long lasting mental and psychological harm and trauma to the minor child but will also be detrimental for the upbringing of the child. This aspect of the matter hints towards the criminal intention on the part of the respondents as instead of making the minor good member of the society, they are destroying his personality and, therefore, it will be disastrous for the child to stay at his uncles' house any longer.

8. Another thing which has been noticed in this case is that the learned courts below have granted custody of minor to his maternal uncle Akmal Khan (respondent No. 2) who, as per the evidence produced by the respondents, is residing in Dubai, then the question arises as to who has the physical custody of the minor.

9. For the sake of custody of minor's physical, mental health, education and psychological development, it is important that the custody of the minor Muhammad Hilal should be restored to the petitioner, who is biological father and the natural guardian of the minor. No doubt, choice of a minor is a factor to be taken into consideration but it cannot be made a decisive factor in matters relating to custody of minors as is seen from the record, the facts of the instant case are different from those cases where the consent of the minor has to be considered while deciding issue of custody of minor as in the instant case, the minor has been influenced by the respondents to make a particular choice and, therefore, he is not in a position to form intelligent preference.

10. As far as the criminal case against the petitioner is concerned, the acquittal of petitioner proved his innocence and the fact of filing appeal against his acquittal does not destroy the presumption of his innocence, besides, the second wife of the petitioner is present in the court room, who fully assured the court that she will leave no stone unturned in the best upbringing of the minor Muhammad Hilal.

11. Accordingly, in view of the above, this court is of the view that welfare of the minor Muhammad Hilal lies with his father, the petitioner, and the courts below by giving his custody to respondent No. 2 have gone into wrong premises and when so the petition is allowed, accordingly, the judgments of both the courts below are set aside and as a consequence thereof by allowing the petition of the petitioner, custody of minor (respondent No.3) is granted/ handed over to the petitioner.

SA/237/P Petition allowed.