1988 S (PLP)

JAVID IQBAL, J.‑‑This petition for leave to appeal has been filed by the petitioner Sh. Abdus Salam and Mst. Mumtaz Begum his wife as against respondents Nos.2 and 3, namely Sh. Ahmad Nawaz Qanooni and Mst. Firdaus Begum his wife. After hearing learned counsel for the parties we convert this petition into an appeal. and proceed to hear it as such. Briefly the facts are that Mst. Mumtaz Begum appellant is real sister of Sh. Ahmad Nawaz Qanooni respondent: She and her husband Sh Abdus Salam appellant were issueless whereas Sh. Ahmed Nawaz Qanooni and his wife Mst. Firdaus Begum respondents were blessed with many children. Out of love and affection for his sister Sh. Ahmad Nawaz Qanooni respondent gave one of his sons namely Akhtaz Nawaz, when he was one year old, to the appellants on 14th April, 1978 with the following Iqrar Nama: At present the minor is 10i years old as his date of birth is 5th March, 1977. The minor remained with the appellants who looked after his education etc. and changed his name to Qamarul Islam. After the lapse of 9 years the aforesaid respondents moved the Court of the Guardian Judge Jhang on 31st August, 1986. for the custody of the minor mainly on the following ground:‑ It may be pointed out that the ground taken in the plaint was that respondent No.2 had handed over the minor to the appellants against the wishes of his wife namely respondent No.3, but it is strange that this plea was being raised after 9 years of the delivery of the minor to the appellants particularly when the minor could possibly have no recollection of his real parents as throughout this period he regarded the appellants as his real parents and the aforesaid respondents as his uncle and aunti (Mamoon and Mami). The learned Guardian Judge dismissed the application under section 25 of the Guardian and Wards Act of the respondents for the reason that the respondents themselves had handed over that child to the appellants and that the social status of the appellants was such that they could bring up the child in a good manner. Thereafter, the respondents challenged the foresaid order of the Guardian Judge in appeal which was heard by the Additional District Judge Jhang. The minor was presented in the Court of the Additional District Judge and since the child had attained the age of discretion the Additional District Judge asked him as to with whom he would prefer to stay. The child categorically stated that he would prefer to live with the appellants, but despite this the Additional District Judge observed that the minor was produced before him who showed his inclination for the appellants and that he appeared to be a bit mentally retarded perhaps because of his detachment from his parents and other family members. Consequently he accepted the appeal and reversed the judgment and decree passed by the Guardian Judge. The appellants were directed to hand over the custody of the minor to the respondents. In this background the appellants challenged the order of the Additional District Judge by way of a writ petition which was dismissed by? learned Single Judge of the Lahore High Court Lahore on the technical ((round that since the Additional District Judge found as a fact that the welfare of the minor lay in his custody being returned to the respondents, he could not interfere with this finding of fact in the exercise of the extraordinary jurisdiction under Article 199 of the, Constitution. In this appeal it was argued by the learned counsel for the appellants before us that the respondents by their own consent had handed over the minor to the appellants when he was only one year old. Obviously the child grew up considering the appellants as his real parents and not the respondents. After a lapse of 9 years they should be considered as estopped from claiming his custody particularly when they were total strangers so far as the minor was concerned. It was next submitted that the learned Additional District Judge did not properly consider as to what was in the best welfare of the minor who had lived with the appellants as their child, grew up in their hands as their son and who did not regard his own real parents i.e. the respondents as his real parents. On the other hand learned counsel for the respondents argued that the appellants were deliberately bringing up the minor as against his real parents and that they have even changed his name from Akhtar Nawaz to Qamarul Islam. We have carefully heard learned counsel for the parties. The parties were also present and were heard the disputed minor was likewise present and he showed before us his preference to live with the appellants. The appellants are providing him with education. Mst. Mumtaz Begum appellant is herself a Headmistress. The appellants are socially and economically of a status to bring up the child properly. It is also in the welfare of the child that he should live with the appellants who have looked after him for 9 years and brought him up as their son. So far as the changing of the name of the minor is concerned it makes no difference if his name is changed from Akhtar Nawaz to Qamarul Islam, for even if his name has been changed to Qamarul Islam by the appellants, his real parents are the respondents and being their real son he will always have the right to inherit from the respondents. In the light of the above discussion the judgment, dated 2nd July 1987 passed by the Additional District Judge Jhang is hereby set aside and this appeal is accepted. There shall be no order as to costs. M.I./A‑135/S?????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.