2010 PLP 1309 (YLR)

RAJA MUHAMMAD SHAFQAT KHAN ABBASI, J.

Through this petition, the petitioner Mst. Bisma Safdar alias Shazia Ansari has assailed the orders dated 3-7-2007 and 10-4-2008 passed by the Guardians Judge, Multan and learned District Judge, Multan respectively whereby petition under section 25 of the Guardian and Wards Act filed by the petitioner was dismissed.

2. The marriage of petitioner and respondent No.3 Syed Hussain Imran Jafari was terminated by way of divorce on 15-8-2000. Out of this wedlock two issues were born namely Ali Imran (son) and Mst. Zainab (daughter) aged about 13 years and 11 years respectively. The petitioner filed application under section 25 of the Guardians and Wards Act for the permanent custody of the minors. Respondent No.3 obtained exparte decree for the custody of the minors on 22-11-2000. Subsequently the matter was disposed of as a result of a result of compromise dated 17-12-2003. It was settled that minors will remain with the father/respondent No.3, the same shall be handed over to each Saturday for 24 hours and respondent shall pay Rs.5000 for the maintenance of the minors. All the pending litigation will be withdrawn. Due to the violation of the terms and conditions of the compromise, the petitioner filed an application under section 25 of the Guardians and Wards Act which was dismissed on 3-7-2007 after recording the evidence of the parties. The petitioner filed an appeal which was also dismissed by the learned District Judge, Multan on 10-4-2008. Hence, this petition.

3. I have heard the learned counsel for the parties at length and have also gone through the record available on the files as well as the impugned judgment and decree passed by the Courts below.

4. It has been observed that in order to prove their respective stances, the petitioner/plaintiff herself appeared as AW.1 and she produced Safdar Ansari as AW.2. In documentary evidence she produced the attested copy contempt petition as Exh.A.1, copy of another contempt application titled as Hussain Imran v. Bisma Safdar as Exh.A.2, copy of order dated 18-10-2004 passed in contempt petitions as Exh.A.3, copy of order dated 12-11-2004 passed by learned Senior Civil Judge as Exh.A.4, copy of order sheet dated 23-11-2004 and 14-12-2004 as Exh.A.5, copy of order dated 15-1-2005. as Exh.A.6, copy of proceedings dated 6-9-2004 to 7-9-2004 as Exh.A.7 and copy of proceedings dated 21-9-2004 as Exh.A.8. whereas respondent No.3 himself appears as RW.1 and he produced the documentary evidence in shape of attested copy of plaint in suit for recovery of maintenance allowance as Exh. R.1, copy of Nikahnama between the parties as Ex.R.2, copy of affidavit of petitioner as Exh.R.3 and. copy of order dated 22-11-2004 as Exh. R.4.

5. There is no doubt the age of minor boy Ali Imran who is about 13 years and whereas Mst. Zainab Zahra daughter of 11 years respectively. The Guardians and Wards Act (VIII of 1890) Section 25 Mohammedan Law Guardianship of minor boy being more than two years old presumption according to Shia law governing parties lies in favour of the father. Father though having no independent house in Pakistan but allegedly employed at a handsome salary in Great Britain and wishing to take his son to great Britain for his education-Mother not yet employed and resources of grandmother too meagre for meeting needs of her large number of dependents-Boy's wish not to go with father-Father though not regularly providing maintenance for child yet such failure in part not rebutting presumption of child's welfare lying in being given in custody of father at his present age.

6. Under the Mohammedan Law 156(iv)(ii) provides that under the Shia Law, the custody of the son below two years of age and of a daughter below 7 years of age, belongs to- the mother and after the mother the custody of a minor or lunatic belongs to the father and on being disqualified, to the grandfather how high so ever. The custody of a son above two years of age and a daughter above 7 years of age belongs to the father and in his absence to the true grandfather how high so ever. Reliance is placed on Mst. Asma v. Distt. Judge Etc. PLD 1987 Lah. 263, Mst. Ghulam Sakina v. Nasim Haider 1979 CLC 4 Fateh Muhammad v. Additional District Judge, Mianwali and another NLR 1987 Civil 850.

7. The conclusions arrived at by the Courts below are based on sound reasons. No illegality or infirmity or misreading of evidence has been pointed out by the learned counsel for the petitioner calling for interference by this Court in the impugned judgment and decree. The facts remain that the learned counsel for the petitioner has not been able to point out any relevant material on the file that has been left out of consideration by the learned District Judge or should be said to have been misread by producing a jurisdictional defect. His emphasis throughout has been on the appreciation and reappraisal of evidence and wished the substitution of the decision for that recorded by the Courts below which I am afraid is not permissible if any authority is needed for this proposition. reference be made to Hamayat Khan and another v. Ahmad Din and 2 others 1983 SCMR

59. Besides, as held in Rehim Ullah Chaudhary v. Mrs. Sayeda Helali Bagum and others 1974 SCMR 305 welfare is a question of fact and it is well established principle that in the exercise of the constitutional jurisdiction this has never been the practice of this Court to interfere or disturb a finding on a question of fact arrived at by any Court or authority, even if it be shown to be wrong. It has also been laid down in Muhammad Hussain Munir v. Sikandar PLD 1972 SC 139 that a tribunal having jurisdiction to decide is competent to decide a matter rightly or wrongly and the mere fact that the decision is incorrect does not render it as without lawful authority. The principle was reiterated by Supreme Court of Pakistan in other cases reported as Muhammad Sharif and another v. Muhammad Afzal Sohail and others PLD 1981 SC 246 and Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC

522. Respectfully following the above pronouncements of their lordships of the Supreme Court, I am not persuaded to substitute my own decision for that of the c learned Court below.

8. Resultantly, I find no merit in this petition, which is accordingly dismissed. No order as to costs. M.U.Y./B-43/L Petition dismissed.