2002 PLP 1732 (YLR)

5. It was urged by her counsel that; (i) The impugned order is against law and facts. (ii) Evidence was not appreciated and not correctly appraised, impugned judgment suffers from non‑reading and misreading of evidence. (iii) Minor was less than 7 years of age hence petitioner being mother was entitled to his custody. (iv) The respondent No.2. did not produce any evidence which could disentitle the petitioner from the custody of the minor and (v) That the impugned judgment is arbitrary, unjust and without lawful authority.

6. Appeal was strongly opposed by the counsel for respondent No.2. Arguments heard. Annexures and documents appended with the petition perused.

7. Learned counsel for the pensioner could not draw my attention to any portion of evidence which was misread, not appreciated or over looked by the learned Lower Appellate Court. It was alleged in the guardian petition that Mst. Naziran Bibi does not allow him to meet his minor son; while appearing as A.W.1, respondent No.2, had made deposition regarding that fact but he was not cross‑examined on that point which meant that the said portion of his testimony was admitted by Mst. Naziran Bibi.

8. In her reply to the guardian petition Mst. Naziran Bibi had herself stated that minor is in custody of his maternal grand mother which implied that minor was not in her custody. She also admitted that she was receiving maintenance allowance from respondent No.2, on behalf of the minor. She also admitted that respondent No.2, is Hafiz -e‑Qur'an and Imam of Mosque. The learned lower appellate Court, therefore, rightly concluded That respondent No.2, was, therefore, more suitable for properly educating, grooming and bringing up the minor. Even otherwise, in such young age supervision and guidance of father is essential for a male child.

9. The petitioner had admitted during cross‑examination that she had also contracted second marriage with one Khadim Hussain. A mother who is otherwise entitled to the custody of child loses the right of custody if she marries a person not related to the child within prohibited degree.

10. From the evidence on record it was established that age of minor was about 9 years. According to Muslim Law father was entitled to get custody of minor son who had attained age of 7 years aria above.

11. Impugned order is a judicial order which was passed by the lower Appellate Court after taking into consideration, entire evidence produced by the parties. A judicial order cannot be regarded to be without lawful authority on the ground that reappraisal of evidence might lead to any different conclusion.

12. The impugned order is reasonable, it shows that evidence .was examined and assessed and findings are based on evidence. Lower appellate Court had neither exceeded its jurisdiction nor acted without jurisdiction. When the Court possess jurisdiction, finding of fact recorded by it cannot be disturbed unless that finding is based on no evidence or is fanciful or arbitrary. The impugned judgment is neither arbitrary or perverse nor it suffers from any jurisdictional error, it, therefore, does not call for any, interference by the High Court in its Constitutional jurisdiction. The writ petition is accordingly dismissed. N.H.Q./N-196/L Petition dismissed.