2015 PLP 731 (SCMR)

ASIF SAEED KHAN KHOSA, J.

The matter in issue pertains to the custody of a minor namely Minahil Nadeem aged about 6/7 years. The present petitioner happens to be the paternal grandfather of the said minor whereas respondent No.1 is the real mother of that minor. We have been informed that the father of the said minor has already expired. On 24-7-2014 the present petitioner had obtained a Guardianship Certificate from the learned Guardian Judge, Shahkot, District Nankana Sahib and through that Certificate guardianship of the person and property of the above mentioned minor had been given to the petitioner. It appears that at the time of obtaining the Guardianship Certificate the petitioner had failed to disclose that the minor's mother was still alive and the said Guardianship Certificate had been obtained by the petitioner through ex parte proceedings. Being ignorant of issuance of any Guardianship Certificate in favour of the petitioner a petition in the nature of habeas corpus had been filed by respondent No. 1 before the Lahore High Court, Lahore under section 491, Cr.P.C. claiming custody of the above mentioned minor on account of respondent No. 1 being the real mother of that minor. On 18-8-2014 the said habeas corpus petition was allowed by a learned Judge-in-Chamber of the Lahore High Court, Lahore upon acceptance of Criminal Miscellaneous No. 1614-H of 2014 and consequently the custody of the minor was delivered from the petitioner to respondent No.

1. The said order passed by the learned Judge-in-Chamber of the Lahore High Court, Lahore has been assailed by the petitioner before this Court through the present petition.

2. The petitioner, respondent No. 1 and the relevant minor are in attendance before the Court and we have heard the parties as well as their learned counsel at some length.

3. The pivotal issue arising before this Court through the present petition is that at the time of passage of the impugned order by the Lahore High Court, Lahore a Guardianship Certificate issued in favour of the present petitioner was in existence but despite the said Guardianship Certificate holding the field at the relevant time the learned Judge-in-Chamber had proceeded to hold the same to be a document not obtained in a bona fide manner and, thus, by ignoring the said Guardianship Certificate the learned Judge-in-Chamber of the Lahore High Court, Lahore had proceeded to decide the habeas corpus petition and had ordered transfer of the custody of the minor from the petitioner to respondent No.

1. It has been argued before us that at the time of filing of an application seeking his appointment as the guardian of the minor the petitioner had not disclosed the critical fact regarding the mother of the minor being alive and had, thus, obtained an ex parte order regarding issuance of a Guardianship Certificate whereas the learned Judge-in-Chamber of the Lahore High Court, Lahore was fully aware of existence of such a Guardianship Certificate but she had proceeded to ignore the same and to bring about a result contrary to the result achieved through the Guardianship Certificate. We have been informed that so far respondent No. 1 has not filed any appeal against the relevant order passed by the learned Guardian Judge nor any application has so far been filed before the learned Guardian Judge seeking recall of the ex parte order and reconsideration of the matter on its merits. Be that as it may we find that through the impugned order passed by the High Court a minor girl has been given in the custody of her real mother and even if there are some questions regarding proper exercise of jurisdiction by the High Court in the matter still we would not like the little girl to be made a ball of ping pong and shuttle her custody during the legal battles being fought by those interested in her custody. Faced with this unfortunate situation we have decided to invoke this Court's jurisdiction under Article 187(1) of the Constitution of the Islamic Republic of Pakistan, 1973 which allows this Court to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it. Invoking the said jurisdiction of this Court we set aside the order passed by the learned Guardian Judge, Shahkot, District Nankana Sahib on 24-7-2014 and cancel the Guardianship Certificate of the said date and direct the learned Guardian Judge to consider the application submitted before him by the present petitioner regarding custody of the relevant minor as a pending application, to hear all the parties concerned, including the mother of the minor, and then to decide the matter of custody of the above mentioned minor afresh after attending to all the jurisdictional, legal and factual issues relevant to the controversy raised by the parties. During the interregnum the custody of the minor shall remain with her mother and the learned Guardian Judge shall attend to the request, if any, made regarding visitation rights. The petitioner and respondent No.1 are directed to appear before the learned Guardian Judge, Shahkot, District Nankana Sahib on 9-3-2015 along with the minor namely Minahil Nadeem. This petition is disposed of in these terms. The office is directed to send a copy of this order to the learned Guardian Judge, Shahkot, District Nankana Sahib for his information and compliance. MWA/S-1/SC Order accordingly.