1980 PLP 1404 (CLC)

5. In reply, learned counsel for the respondent maintained that the appeal was not competent. His contention was that since the impugned order was not made by a District Judge but by a Civil Judge, exercising the powers of a Guardian Judge, the appeal lay before the District Judge and not before the High Court. As for the merits of the case, he submitted that the maternal uncle of the appellant was not a man of sound character inasmuch as h- was involved in two murder cases. He supported the view expressed by the learned Guardian Judge that the appellant had not made proper arrangement for the education of the minor. He, therefore, urged that the welfare, of the minor demanded that her custody should be entrusted to the respondent because he being a man of means could bring up the minor in a befitting manner.

6. As for the competency of the present appeal, the question raised by the learned counsel for the respondent was also involved in Muhammad Ismail v. Fazal Ahmed (P L D 1969 Lah. 834) and the view expressed by a Division Bench of this Court, which decided the cited case, was that even where a guardian ship matter is disposed of not by the District Judge but by a Civil Judge especially empowered in this behalf, the appeal would be preferred to the A High Court and not to the District Judge. Therefore, relying on the aforesaid authority, I hold that the appeal was rightly filed in this Court instead of taking it to the District Judge.

7. Now I advert to the merits of the case. As indicated earlier, it was due to the following three reasons that the learned Guardian Judge had made the impugned order depriving the appellant of her right to retain the custody of the minor :- (i) Dubious character of the appellant and her maternal uncle. (ii) Poor standard of the school where the minor is being educated. (iii) Wealth and excellent character of the respondent. I will examine all these three reasons separately.

8. As for the character of the appellant, it was conceded by the learned counsel for the respondent that there is no evidence on the record to show that she did not bear good moral character. There is no such evidence against her maternal uncle, Muhammad Afzal Khan, either. The only evidence against her maternal uncle, which was referred to by the learned counsel for the respondent, is to the effect that he was involved in two murder cases-once in 1962 and again in 1968-but was acquitted. While dealing with this evidence, learned counsel for the appellant sub mitted that Muhammad' Afzal Khan, was a political figure to be reckoned with and that he was falsely entangled in the murder cases due to political rivalry. The copies of the judgments delivered in those cases have not been placed on the record to show that he was acquitted by giving him the benefit of doubt and not due to the reason that the charges levelled against him had not been proved. When he was acquitted in those cases by Courts of competent jurisdiction it will be highly unfair to dub him as a man of dubious character just for his involvement in those cases. To hold other wise would amount to questioning the soundness and validity of the judg ments by which he was acquitted. Needless to say that it is not infre quently that innocent people are accused of having committed heinous offences and, therefore, they are very rightly acquitted by the Courts of law. There is nothing else on the record for which he may be treated as a man of unsound character. I am, therefore, not impressed by the first reason given by the learned Guardian Judge for recording a finding against the appellant. '

9. As for the adverse comments of the learned Guardian Judge in regard to the M.C. Public School, Hazro, where the minor is now studying, they are simply based on the incorrect spelling of the word "Nursery" appearing in the Certificate, Exh. -D. 4, issued by the Head Mistress of the said school: It is a typed certificate and, therefore, the possibility of the said word having been spelt incorrectly due to a typographical error cannot be ruled out. Such mistakes are inadvertently committed, more often than not, by people of high caliber and outstanding merit. There is no other evidence on the record indicating that the said school is a worthless institution. It would, therefore, . appear that the view expressed by the learned Guardian Judge in regard to the aforesaid school is based on a flimsy ground.

10. This brings me to the last reason given by the learned Guardian Judge in support of the impugned order. It is the wealth and excellent character of the respondent. According to the personal law of the parties, the appellant, being her mother, is entitled to the custody of the minor girl till she attains the age of puberty. The appellant cannot be deprived of that right unless the welfare of the minor so demands. With a view to securing the custody of the minor it was for the respondent to demonstrate that the appellant suffers from any disqualification for which it is not in the interest of the minor to stay with her. This he has failed to do. Therefore, even if it is true this the respondent is a man of means and enjoys good character, this does not warrant the taking away of the girl from the custody of the appellant. In this view of the matter the good points found in the respondent, by the learned Guardian Judge, are of little consequence.

11. Besides the fact that the reasons given by the learned Guardian Judge for making the impugned order have no merit, I am unable to approve of the arrangement made by him. He, in effect, deprived both the parents of the minor girl, that is, the appellant and the respondent, of her custody and entrusted the same to strangers, namely, the authorities of some school at Lahore, Rawalpindi or Murree, where none of her parents reside. It can hardly be disputed that the school authorities cannot look after the minor as well as her parents or either of them. I am, therefore, of the view that the minor should either remain with her mother or go to her father. Since no good reason has been shown for depriving the mother (appellant) of her right of custody, which is enjoyed by her under the personal law, I am not inclined to take her out of the custody a of the appellant. It is also my desire that the minor should continue to have some contact with his father so that when she ultimately goes to him, there should be no difficulty in her adapting to the new situation.

12. In view of all what has, gone above, .I direct as follows :- (i) The minor will remain in the custody of the appellant till she loses the right of retaining her custody. (ii) The appellant shall produce the minor in the Court of Guardian Judge once a month, for inspection. The other matters relating to the inspection shall be regulated by the Guardian Judge. (iii) As offered by her learned counsel, the appellant will have the minor admitted in- an .English Medium School in the Cantonment of Attock with a view to enabling her to acquire education in an educational institution of better standard. If for any reason the appellant is unable to do so, she will bring her difficulties to the notice of the Guardian Judge for making an appropriate order, (iv) The minor will be allowed to go to her father for half of the summer vacations and she will celebrate alternate Eids with her father. (v) The respondent will return the minor well in time and if he fails to do so, he will forfeit his right of the minor's company during the vacations and on the occasions of Eid. (vi) After couple of inspections the Guardian Judge will decide if the minor should, in the current year only, make her first visit to the respondent's house during the holidays which might be allowed in the month of April after the annual examinations. This direction is being given in response to a submission made by the respondent that as his family has not seen the minor for a long time, she may be permitted to visit his family once before the ensuing summer vacations. (vii) For the purposes of the implementation of my order; the Guardian Judge shall be the Senior/Administrative Civil Judge exercising the powers of the Guardian Judge. the two appeals are disposed of accordingly, with no order as to costs.

13. The parties shall appear before the Guardian Judge (.Senior Civil Judge), Rawalpindi, on 2nd March, 1980, when he shall fix a date for the purpose of monthly inspections and also deal with other matters relating to the detailed working of the arrangement ordered by me. S. Q Order accordingly.