1984 PLP 1387 (CLC)

‑‑S. 12 (1)‑Temporary custody of minor‑How best interest of minor and his welfare can be safeguarded, held, foremost consideration to be kept in mind‑Court ceased of matter, held further, best judge to take decision in a given situation having particular regard to material available‑Minor girl giving her age 14 years but appearing to be tui juris and allowed to go with her real uncle‑Order of Guardian Judge declaring said uncle as guardian of minor girl neither offending provision of law nor suffering from jurisdictional defect‑Order of Guardian Judge upheld. Mirza Muhammad Yousuf v. Razia Sultana P L D 1974 Note 80 at p. 125 ref. This civil revision has been filed by Khuda Bakhsh calling in question the legality of the order, dated 13‑5‑1982 passed by learned Guardian Judge, Muzaffargarh. The petitioner is the father while the respondent is the real uncle of Mst. Anwar Mai (hereinafter called the minor girl) aged about 141 years according to the birth certificate, whose custody is in dispute i.e. these proceedings.

3. Facts giving rise to this petition are that the minor girl .was abducted by Faiz (son of the respondent) and others in the month of December, 1981: A criminal case was registered, vide F. I. R. No. 135, dated 20‑12‑1981 under section 363, P. P. C. at Police Station Shah Jamal, District Muzaffargarb, at the instance of the minor girl's brother. She was recovered during the investigation and produced before a Magistrate for getting her statement recorded under section 184, Cr. P. C. on 26‑12‑1981. In her statement she averred that she was not abducted by anybody. She claimed to have attained puberty and stated that she would like to go with her uncle in preference to her brother. The Magistrate held that she looked to be sui juris (although she had given her age before him as 14 years). The Magistrate, however, allowed her to go wherever she liked.

4. The respondent filed an application on 8‑3‑1982 to the Guardian Judge, Muzaffargarh, praying that he may be declared the guardian of the minor girl. He also applied for obtaining her temporary custody. Learned Guardian Judge accepted his application. Aggrieved by the order, this revision petition has been filed.

5. Learned counsel for the petitioner has contended that because the learned Guardian Judge has not held in so many words that the temporary custody of the minor girl was made over to the respondent in the interest of life of the minor girl and that the continuation of custody of the minor with the petitioner would have adversely affected him, therefore, the impugned order was illegal. Reliance has been placed on Mirza Muhammad Yousuf v. Razia Sultana (P L D 1974 Note 80 at p. 125). In this case the dispute was between mother and father of the minor aged 21 years and the High Court having set aside the order of the Guardian Judge passed in favour of the mother, had remanded the case to the trial Court for fresh decision. In the instant case, the dispute is between the father and the real uncle of the minor girl and a criminal case about the abduction of the minor also stands registered against the petitioner and his son. I am, therefore, of the view that the authority relied upon by the learned counsel for the petitioner proceeded on materially different facts.

6. I am of the view that in all the proceedings relating to the custody of a minor, the foremost consideration to be kept in mind is that how best the interest of the minor and his welfare can be safeguarded. Likewise, section 12 (1) of the Guardians and Wards Act also laid emphasis that the Court should make such order for the "temporary custody and protection of the person", which it thinks to be "proper". The Court which seized of the matter is the best Judge to take a decision in this regard in given situation, having particular regard to the material available before him. By way of abundant caution, I also called the girl in Court and saw her, who appeared to me to be minor. In these peculiar circumstances of this case, I feel that the impugned order does not offend against the pro vision of the relevant law nor does it suffer from jurisdictional defect. Resultantly, the revision petition is dismissed in limine.

7. Before parting with this order, I want to make it clear that this order shall not stand in the way of the learned trial Judge who would be at liberty to form his own independent opinion at the conclusion of the trial, in the light of the legal evidence existing on record before him. M. Y. H. Petition dismissed.