P L D 2006 Lahore 219 (PLP)

SYED HAMID ALI SHAH, J.

The newly born (male) child was found within the vicinity of the shrine of Hazrat Data Gunj Bakhsh and was taken into custody by the Religious Affairs Committee of Data Darbar. The petitioner claims the custody of the abandoned child, on the plea that the child was handed over to him by Mr. Mukhtar, Manager of Data Darbar and the petitioner and his wife on his instructions, moved an application to the Chairman Religious Affairs Committee for the entrustment of the child to them. The child was statedly sick and was admitted in Mayo Hospital on 22-2-2005 where he remained under treatment for a few days. The petitioner in response to the notice dated 5-3-2005 appeared before Zonal Administrator for the custody of the abandoned child. The child was removed from the custody of the petitioner on the night between 8/9th of March, 2005 by the officials of the Auqaf Department and the local police. The child was handed over to respondents Nos. 2 and 3 after his recovery from the petitioner.

2. The respondents in their reply controverted the averments made in the petition. It was denied that the custody of the child was even handed over to the petitioner. The child was handed over temporarily to Mst. Irshad Bibi, an employee of Data Darbar Industrial School, he remained with her until he was entrusted to respondents Nos. 2 and 3 by respondent No.1 through order dated 8-3-2005. The petitioner through the instant petition has challenged the order of respondent No.1 dated 8-3-2005, wherein the unclaimed child was entrusted to the custody of respondents Nos.2 and 3.

3. Learned counsel for the petitioner has contended that the unclaimed child was entrusted to the petitioner by the Manager of Data Darbar. He has looked after the child, got him admitted in the hospital. The petitioner has the prior right to keep the custody of the child. Respondent No.1 has illegally handed over the custody of the child to respondents Nos. 2 and

3. The child was illegally snatched and is liable to be returned to the petitioner. The petitioner has placed on record some documents to show that the petitioner is proprietor of Badshah Packages, a taxpayer and is registered with the Collectorate of Sales Tax. The petitioner has also filed the documents of Mst. Rehana Kausar and Mst. Samia Naseer-ud-Din to show that the relatives of the petitioner are educated and can look after the child properly.

4. On the other hand, learned counsel for respondents Nos. 2 and 3 has submitted that the petitioner as well as respondents Nos. 2 and 3 moved applications before respondent No.1 for entrustment of the custody of an abandoned child. The respondents submitted their application on 22-10-2004 while the petitioner submitted his application on 17-2-2005. The respondents' application is of earlier date and as such has the prior right as against the petitioner. He has further submitted that the petitioner has incorrectly stated that the child remained in his custody. Necessary information regarding handing over the child and his medical treatment by the petitioner was missing in the application. He submitted that it can be ascertained from perusal of para. 4 of the writ petition that the question of entrustment of custody was yet to be made by the concerned officials. The medical record do not show that it pertains to the child. There is no proof that the child was admitted in hospital and remained there under treatment as alleged by the petitioner. He has lastly contended that the petitioner in response to the notice has not appeared before the D.C.O. Lahore. He has placed on record the evidence regarding income of respondent No.2 including the income tax receipts. The documents of the properties were submitted to show that he is in a position to look after the child. Respondent No.2 is also willing to deposit a sum of Rs.500,000 in the name of the child to secure his future.

5. I have heard the learned counsel for the parties and perused the material available on the record.

6. The child is an abandoned child who was found unclaimed by the Religious Affairs Committee of Data Darbar. The child is a "destitute and neglected child" within the contemplation of section 3(k)(vi)(vii). Section 3(k)(vi)(vii) reads as under:-- "destitute and neglected child" means a child who

(i) ??????? ???????????. (ii) ?????? ???????????. (iii) ????? ???????????. (iv) ????? ???????????. (v) ?????? ???????????. (vi)?????? is beyond the parental control; or (vii)????? has lost his parents or one of the parents and has no adequate source of income; or (viii)????? ???????????? The custody of a destitute and neglected child under the provisions of Punjab Destitute and Neglected Children Act, 2004, is either to be entrusted to a suitable person or is to be admitted to a Child Protection Institution. Child Protection Institution as per clause (f) of the Act has not yet been constituted; therefore, custody of the child is to be entrusted to a suitable person under the provision of 28 of the Act. The provision of section 28 of the Act require that the custody of a destitute or neglected child is to be entrusted to a suitable person who is capable and willing to look after the child. Such person is responsible for the care, education and well-being of the child. In the instant case, respondents, Nos. 2 and 3 are looking after the child, their application was earlier in time and when respondent No.1 handed over his custody to respondents Nos. 2 and 3, there was no other claimant before him on that date. It is reflected from the application moved by the petitioner, for the custody of the child, that no one has entrusted him the custody of the child. Perusal of the parawise comments submitted by respondent No.1 reveal that the child until his entrustment to respondents Nos. 2 and 3, remained in the custody of Mst. Irshad Bibi, an employee of Data Darbar Industrial School. It cannot be proved from the medical report submitted by the petitioner that the child, who was medically treated, was the one claimed by the petitioner. There is no proof of admission of the child in the hospital and his discharge from there. Respondents Nos. 2 and 3 who are looking after the child for the past months, have developed emotional attachment. They are in a position to look after the child properly and suitable persons for the purposes of provisions of Punjab Destitute and Neglected Children Act, 2004.

7. The petitioner who has already applied for the adoption of an unclaimed child, can claim another child. The petitioner may approach respondent No.1 through a fresh application, who is approached, is directed to entrust the custody of some other unclaimed child on priority, after satisfying himself to the effect that the petitioner is a suitable person and is capable of properly bringing up the child.

8. Respondents Nos. 2 and 3 can keep the custody of the child subject to furnishing of a surety bond to the effect that the child shall be brought up properly, will be admitted in a school and shall not be forced to do any job or work for respondents Nos. 2 and 3, until he attains the age of majority. Respondents Nos. 2 and 3 shall also deposit as per their undertaking a sum of Rs.500,000 in the name of the child, which amount shall be incurred on his education. Neither any Board nor a Court under the Act has been established, therefore, respondents Nos. 2 and 3 are directed to submit periodical reports as to the welfare of the child under section 28(3) of the Act, 2004 to the learned District and Sessions, Judge, Lahore.

9. The instant petition is disposed in the above terms. No order as to costs. S.A.K. /M-51 /L????????????????????????????????? ??????????????????????????????????????????????? Order accordingly.