Mst. TABASUM AKHTAR vs SABR ALI alias TASWAR ALI and 2 others

ORDER

' Respondents Nos.1 and 2 appeared alongwith Lareb Nasir. She has been alldwed opportunity to meet her mother for more than 2 hours. Minor has stated that she is 9 years old and is studying in the Junior Cambridge School, Rawalpindi. She has been living with respondents Nos.1 and 2, her paternal uncle and aunt respectively for the past six months in Rawalpindi. Prior to that she lived in Lahore for the past almost 5 years; further states that petitioner was not living in the same house with her father and the minor in Lahore but she used to visit sometimes and that her father had died six months ago; after which minor was moved to Rawalpindi.

2. On Court's query, minor after having spent two hours with her mother, has categorically stated that she wishes to remain with respondent No,2, Mst. Kishwar_ Bibi.

3. Learned counsel for respondents has argued that minor had not been snatched from the petitioner; in fact the petitioner and the minor have been living separately for the past four years on account of separation between the petitioner and her father and therefore, there is no illegal removal or detention by respondents Nos.1 and 2.

4. On the contrary learned counsel for the petitioner has argued that respondent No,2 Mst. Kishwar Bibi is unmarried and is residing in village Kot Mohabat Jalalpur Bhattian which is 200 k.Ms. From Rawalpindi. Respondent No,1, paternal uncle of the minor is also unmarried and is employed in WAPDA; there is no one in the house to look after the minor; further argued that petitioner had married with the father of minor on her own choice and after marriage she has completed bachelor and master degrees and petitioner and father of the minor were living together in Lahore and minor had been admitted in Beacon House School. After the murder of the father of minor, respondent Sabr Ali went to Beacon House School and collected the minor from said school without the knowledge and consent of petitioner while petitioner had gone to celebrate Eid few days before the murder of her husband, who was already in jail. He was murdered shortly after he was released from jail when he was visiting Jalalpur Bhattian in connection with some personal work. Thereafter, respondent No,2 Mst. Kishwar Bibi got registered F.I.R. No,479 of 2001 on 15-12-2001 under section 302, P.P.C. Read with 34/109, P.P.C. In which three persons have been nominated as accused, who are not related or connected with the petitioner in any manner but in which petitioner had been nominated as abettor (in absentia), while during the investigation the petitioner has been declared innocent. She being natural guardian of the minors is prima facie entitled to her custody. In this respect reliance is placed upon judgment cited as Aziz un Nisa v.

Muhammad Yasin 1980 PCr.LJ 790 in which tentative custody of minor had been given to the mother while the minor was living with her uncle. It is further argued that respondents Nos.1 and 2 are anxious to retain the custody of the minor on account of property disputes which are pending between the parties and therefore, it is not in the welfare of the minor to live with them. Learned counsel for the petitioner has placed reliance upon the judgment cited as Mrs. Hina Jilani v. Sohail Butt PLD 1995 Lahore 151; wherein it has been held that when the minor has been removed, it needs not to be proved that removal was forcible; the mother would prima facie be entitled to the minor's custody in accordance with Muhammadan Law.

5. Learned counsel for the respondents Nos.1 and 2 has relied upon judgment cited as Abdur Rehman Khakwani v. Abdul Majeed Khakwani 1997 SCMR 1480 and judgment Naziha v. The State 2001 SCMR 1782 wherein it has been held that apparently no forcible detention or removal has taken place, therefore, it is better for the mother to approach the Guardian Judge for resolving such issue; further argued that respondent No,2 is not residing in the village, she is residing with the minor in Rawalpindi and the minor has been shifted from Lahore after demise of her father to Rawalpindi in order to protect the minor from alleged murderers of her father.

6. I have heard learned counsel for the parties and have also gone through the case-law cited by them and have also considered the statement of the minor. Admittedly the minor was residing in Lahore and she was admitted in Beacon House School, Lahore and had access to both her parents during lifetime of her father; after the demise of her father she was admittedly removed from Lahore and admitted in school in Rawalpindi, statedly to save her from the persons accused of murdering her father but as a consequence thereof she has also been deprived of her mother's company for the past six months, therefore, she is not inclined to go with her mother.

7. The circumstances of the cases relied on by learned counsel for respondents are distinguishable from the present case. In both those case contestants were mother and father of minor, while in this case, father being dead, mother is the only living parent and contesting respondents are her aunt and uncle. The case of Aziz-un-Nisa (supra) cited by petitioner's counsel is on all fours with the present case.

8. The minor is a female child of tender age being about 9 years old; tentatively she is entitled to the love and affection of her mother, who is prima facie entitled to her custody, therefore, tentatively she is given into custody of petitioner. Respondents, if so advised may approach the learned Guardian Judge with an application for custody of the minor, who if so approached shall decide the matter on its own merits without being influenced by any observation made by this Court. The respondents may also file an application under section 12 of the Guardians and Wards Act seeking interim relief in the nature of visiting rights, which is so filed, shall be decided within two weeks in accordance with law. The petitioner shall be given police squad to reach the nearest point of public transportation. This petition is disposed of as having borne fruit.