AYESHA BUTT Versus KHAWAJA ASAD Mian Saqib Nisar and Hina Jillani , Zafar Iqbal Bajwa

This is in continuation of my order, dated 31‑10‑1987. Hamid Mukhtar D. S. P. states that in pursuance to the order, dated 31‑10‑1987 of this Court, the S. S. P., Lahore deputed him to recover Mst. Ambreen aged two years, the alleged detenu but he has not been able to locate and recover her despite his best efforts.

2. The petitioner's case is that on 7‑9‑1987 Kh. Asad and his father Kh. Muhammad Azhar fraudulently induced the petitioner to give the child to them for limited purpose and limited time. Subsequently, the child was not returned to her and has been wrongfully detained and concealed by them. The learned counsel for the respondent stated that since after her birth Mst. Ambreen remained with her grandmother Begum Razia Azhar and that before the notice issued by this Court for the production of the child was received by the respondent, the grandmother had already taken the child with her to Karachi and that despite respondent's best efforts to pursued his mother to bring the child to Lahore for production in the Court, she has declined to do so and as such, the respondent is not in a position to produce the child in Court in compliance of its order. On this I inquired from Kh. Asad respondent the address of his mother at Karachi to which he replied that he does not know. I; then asked his father Kh. Muhammad Azhar present in the Court as to where his wife was keeping the child at Karachi and he too evasively expressed his ignorance. It is very strange that the son of the lady as well as her husband do not know her whereabouts. I am convinced that Kh. Asad respondent has deliberately concealed the address of his mother at Karachi and the child has been wrongfully detained and concealed with his connivance, in order to frustrate the order of this Court. Kh. Asad respondent has shown reckless disregard for the order of the Court whereby he was directed to produce the child before it. On his own showing, his mother Mst. Razia Azhar has refused to bring the child to Lahore for producing her in the Court. Since the alleged detenu is a child aged 2 years; that the petitioner being her real mother is lawful, guardian to the child; that she enjoys right of Hizanat; that her right of the custody of the child is higher than the father; that the custody of the child was allegedly obtained temporarily by Kh. Asad and his father by deception; that, under the law, child continues to be in the keeping of lawful guardian i.e. mother, though the actual physical possession should be temporarily with father or anybody else and that, in any case, the child has been removed from Lahore to Karachi by grandmother who has no legal right to the custody of the child in the presence of mother, mother's mother and father, without the consent of the mother and thereafter, the child has not only been wrongfully confined but has also been concealed. I direct D.S.P. present in the Court to register a case under section 365/368, P.P.C. against Kh. Asad and others. The D.S.P. will also recover the child from wherever found and produce her before the Court on next date. In case, the child is recovered before next date, she will be placed tinder the temporary custody of Mst. Aysha Butt petitioner/ mother subject to her executing bond in the sum of Rs.50,000 for producing her in the Court. The Inspector‑Genera of Police, Sind, Karachi will render all possible help to the D.S.P. of Lahore police for the recovery of the detenu in case she is found to be detained in Karachi.

3. Since Mst. Razia Azhar in spite of her knowledge that under the orders of the Court, the child was to be produced before it, has refused to bring the child from Karachi to Lahore and hand over to the respondent for producing her in the Court, let a notice be issued directing her to appear before the Court on next date and show cause why contempt proceedings be not initiated against her. She will also produce the child before the Court on next date. Kh. Muhammad Azhar present in the Court will inform his wife Mst. Razia Azhar about her appearance in the Court on next date. She shall also be served through publication in daily 'Jang'.

4. The petitioner apprehends that respondent and others will remove the child out of country. The immigration Department, Lahore/Islamabad/Karachi will see that Mst. Ambreen daughter of Kh. Asad aged 2 years is not taken out of Pakistan by respondent or anybody else. The D.S.P. shall inform the concerned department about this order.

5. To come up on 29‑11‑1987.

S.A./A‑216/L Order accordingly.