P L D 2012 Lahore 398 (PLP)

MUHAMMAD KHALID MEHMOOD KHAN, J.

Through this single order, I proposed to decide Writ Petitions Nos.7336/2012, 7292/2012, 7247/2012 and 5627 of 2012.

2. The dispute subject matter of all the petitions is about the legal custody of an unclaimed male child (hereinafter referred to as the BABY), presently admitted in Services Hospital Lahore. The petitioners of Writ Petitions Nos.7336 of 2012 and 5627 of 2012 are issueless and wanted to adopt a baby. The petitioner Ghayasuddin of Writ Petition No.7336 of 2012 filed an application with District Coordination Officer, City District Government, Lahore in the month of October, 2011 for adopting a baby. The District Coordination Officer vide letter dated 30-11-2011 called the report from Medical Superintendents of Six hospitals of Lahore about the availability of unclaimed child along with following information:-- (1) The genuineness of unclaimed child. (2) Record available with hospitals about the woman who gave birth to unclaimed child along with her bio-data. (3) What efforts were made by the Hospital authorities in tracing the unclaimed child. (4) Law on the point. (5) Details of any other applicants.

3. The said letter was followed by another letter dated 12-12-2011. On 1-3-2012 Medical Superintendent of Services Hospital Lahore informed the District Coordination Officer Lahore, that a newly born unclaimed male baby is available in Services Hospital.

4. On receipt of these information, the District Coordination Officer, City District Government Lahore, informed petitioner Ghias-u-Din that a baby is available in Services Hospital, and he may adopt the said baby on the terms mentioned in letter dated 1-3-2012. In terms of said letter the Medical Superintendent Services Hospital directed head of Paeds, Medicine, SIMS/Services Hospital, Lahore to complete the codal formalities for handing over the custody of unclaimed male baby to petitioner. The petitioner Ghayasuddin on 7-3-2012 approached the respondent No.1 for taking the custody of baby, but respondent No.1, declined to hand over the custody of baby to petitioner and informed that Lahore High Court, Lahore in Writ Petition No.5627 of 2012 has issued restraining order against the custody of baby. After inquiry, Gias-ud-Din came to know that One Saleem Ahmed, the petitioner, of Writ Petition No.5627 of 2012 has filed a constitutional petition and obtained an injunctive order, restraining Medical Superintendent Services Hospital Lahore to hand over the custody of baby to petitioner. Gias-ud-Din filed an application under Order I, Rule 10, C.P.C for becoming party to the petition and also filed the instant constitutional petition.

5. Saleem Ahmed, the petitioner of Writ Petition No.5627 of 2012, asserted in his petition that on 1-3-2012 approximately at 9-45 a.m. he was standing at bus stop of Paki Thati Samnabad, he saw that peoples are gathering on one point, he joined the crowed and found a newly born baby lying on the road in a very bad and dilapidated condition, the rescue 1122 staff with the police Officials from Police Station Millit Park came, they drove the baby to Services Hospital. He approached the Medical Superintendent of Services Hospital for the custody of baby. The driver of rescue 1122 contacted him in the parking area of hospital and persuaded him to receive Rs.200,000 and abandoned his claim against the baby, after some time respondent No.4 through Medical Superintendent approached him and offered that they are ready to pay Rs.400,000 to petitioner in case he abandon his claim against the baby. On his refusal the Medical Superintendent prepared a duplicate admission slip of the baby and approached DCO, the DCO illegally passed an order for handing over the custody of baby to Ghayasuddin.

6. One Syed Imran Ali also came in to picture and filed Writ Petition No. 7292 of 2012 praying as under:-- "In view of the submission made above, it is most respectfully prayed that the respondents Nos.1, 2, 3 and 4 may kindly be directed to register a criminal case against Dr. Rehana Malik, Dr. Moazam, Mst. Razia Bibi, Naveed Butt and others involved individuals under relevant section of P.P.C. Prevention of Corruption Act and other relevant laws of the land."

7. The facts stated in the said petition are, the petitioner narrates the story of petitioner of Petition No.5627 of 2012, and claims himself to be the witness of the facts narrated by Saleem Ahmed in his petition. After consenting the story of Saleem Ahmad, the petitioner asserts that he filed an application on 11-3-2012 with S.H.O. Police Station Shadman for registration of criminal case against Dr. Rehana Malik, Dr. Moazam, Mst. Fiaza Bibi and Naveed for registration of criminal case against them but no action has been taken by the S.H.O.

8. The examination of the record of said constitutional petition, further revealed that Syed Imran Ali submitted an application to S.H.O. Shadman Lahore by levelling serious allegations against Medical Superintendent and others, he alleged that the baby is an illegitimate child of one Fiaza and Naveed Butt and they threw the said child on road to burry their sin and prayed that criminal case be registered against Medical Superintendent, Doctor Moazam, Naveed Butt and Fiaza Bibi. The contents of said application are very nasty and I will avoid to mention these facts here.

9. Syed Imran Ali filed an application under sections 22-A and 22-B of Cr.P.C with the Ex-Officio Justice of peace who on 15-3-2012 directed the S.H.O. to proceeds according to law, he again filed an application before Ex-Officio Justice of Peace alleging that S.H.O. is not taking action on his application, the Ex-Officio Justice of Peace on 19-3-2012 issued a direction to DPO for taking action according to law.

10. The Medical Superintendent, Services Hospital also filed a Constitutional Petition No.7247 of 2012 impleading Ex-Officio Justice of Peace, Station House Officer Shadman, Lahore and Imran Ali Shah, claiming that order dated 15-3-2012 and 19-3-2012 be set aside as the same have been obtained by defrauding the court.

11. The above said facts show that there are two claimant of the baby. The baby was found on road on 1-3-2012 and same day the baby was admitted in Services Hospital Lahore with the courtesy of Rescue officials 1122. Ghayasuddin's application for adopting unclaimed child was in process with the DCO. Saleem Ahmed came into picture on 1-3-2012 and it appears that Syed Imran Ali is vagabond, he approached Saleem Ahmed for getting illegal gratification or monetary benefit for himself, he hatched a notorious plan and by blackmailing the Medical Superintendent tried to get the custody of the baby for Saleem Ahmed.

12. It is very unfortunate that Ex-Officio Justice of Peace while passing order dated 15-3-2012 has not bothered to examine the contents of Syed Imran Ali's application and passed an order in a mechanical manner, he has not realized that he is directing the S.H.O. to take action against Medical Superintendent and Doctor who are looking after a baby and are willing to hand over the custody of baby by adopting legal process, fortunately the S.H.O. concerned intelligently handled the matter and has not registered the case against Medical Superintendent and others. The order of Ex-Officio Justice of Peace if is not illegal but certainly is irresponsible, the learned Justice of Peace is the custodian of the rights of the citizen and before taking any action against any one, he is duty bound to examine the facts. It is common in our society that police official specially the official posted in police station are not educated and further due to their colonial training they use the order of Court as tool to harass the alleged accused persons.

13. The baby is born Pakistani and the Constitution of Islamic Republic of Pakistan provides constitutional guarantees of life, education, health, food, and medical facility to every born Pakistani irrespective of the fact whether the child is owned or not owned by his/her parents.

14. The State has not enacted any specific law for the safeguard of the guaranteed rights of the unclaimed child.

15. The Province of Punjab has however enacted an Act XVIII of 2004 " PUNJAB DESTITUTE AND NEGLECTED CHILDERN ACT 2004.

16. The preamble of said act shows that it is enacted for the rescue, protective custody, care and rehabilitation of destitute and neglected children in the Province of Punjab other than those involved in criminal litigation.

17. Under section 2(e) of the Act of 2004, the unclaimed child is covered under the Act of 2004 which provides that child means a natural person who has not attained the age of eighteen years:-- Section 2(k) provides as under; (k) destitute and neglected child: means a child who- (i) is found begging or (ii) .. (iii) (iv) (v) (vi) (vii) (viii)

18. The definition of child read preamble will show that unclaimed child is child in terms of section 2(e) of the Act of 2004. Under Part II section 5 the Government of Punjab has to establish a Bureau to be known as the Child Protection and Welfare Bureau. But I have been informed that said Bureau is not functioning in the Province, that is the reason a number of unclaimed child dies immediately after his/her birth.

19. Under section 28 of the Act of 2004, the custody of destitute and neglected child if is brought before the Court and the court is satisfied about the status of child the court may direct that child be admitted in Child Protection Institution or his custody be given to a suitable person who is able and willing to brought up the child. As the Punjab Government has not established the Child Protection Institute, the second option available to the court is to entrust the custody of baby to a suitable person.

20. The petitioner Ghayasuddin filed an application with the District Coordination Officer in the month of October, 2011, the DCO sought information from six hospitals about the availability of any unclaimed child. The Medical Superintendent of Services Hospital Lahore on 1-3-2012 informed the District Coordination Officer about the availability of unclaimed child. The District Coordination Officer then on 1-3-2012 passed an order for handing over the custody of unclaimed child to Ghayasuddin applicant.

21. Saleem Ahmad, petitioner of Writ Petition No.5627 of 2012, no doubt is also a needy person being issueless but the modes operandi he adopted to get the custody of unclaimed child is against law and the moral values of the society, he becomes the part of conspiracy of Syed Imran Ali Shah, a vagabond who accused the official of Hospital and officials of rescue 1122 of serious and immoral allegations of adultery against real brother and sister (Faiza and Nadeem Butt as is informed by the learned counsel of Ghayasuddin).

22. The petitioner Ghayasuddin is a businessman and is running a business in Urdu Bazar Lahore, he is taxpayer and undertakes to bring up the unclaimed child like his own child.

23. In the above said circumstances, Writ Petition of Ghayasuddin, No.7336 of 2012 is accepted, subject to furnishing a surety bond of Rs.500,000 to the satisfaction of Deputy Registrar (Judicial) of this Court and also execution of an undertaking that he will brought up the child as per his best resources and will help him to become a useful member of the society. The petitioner will submit a report on yearly basis to the Deputy Registrar (Judicial) of this Court till the child become 18 years of age. The Medical Superintendent Services Hospital, Lahore will hand over the custody of the child to petitioner Ghayasuddin after fulfilment of above said requirements and confirmation by the Deputy Registrar (Judicial) of this Court.

24. The Writ Petition of Saleem Ahmad, No.5627 of 2012 is dismissed with costs of Rs.20,000, the costs will be recoverable from him as arrears of land revenue and will be payable to any Government Hospital. Writ Petition of Syed Imran Ali Shah, No.7292 of 2012 is dismissed with costs of Rs.50,000 payable to the Medical Superintendent Services Hospital, Lahore. The amount of Rs.50,000 will be recoverable as arrears of land revenue.

25. The S.H.O. Shadman Lahore is directed to hold inquiry on the application of Imran Ali Shah dated 12-3-2012 and in case it is proved that application is false and frivolous, he will proceed against the applicant strictly in accordance with law. Writ Petition No.7247 of 2012 of Rehana Malik Medical Superintendent, Services Hospital, Lahore is also disposed of accordingly. The learned District Judge Lahore will probe the judicial working of Ex-Officio Justice of Peace and will submit his report to Deputy Registrar (Judicial) of this Court within one month. M.W.A./G-15/L Order accordingly.