1. ' DR. RANA MUHAMMAD SHAMIM, J.---The petitioner has challenged the concurrent findings recorded vide judgments dated 29-9-2003 and 31-5-2004 by learned IX-Civil and Family Judge Karachi Central in G &W No,974 of 2001 and the learned District Judge Karachi Central in Family Appeal No,108 of 2003 whereby the application under section 14 of West Pakistan Family Courts Act, 1964 filed by the petitioner was dismissed and so also the appeal against the same.
2. ' Brief facts of the case are that the petitioner and respondent married on 15-9-1997 but due to some differences the petitioner divorced the respondent in August 2000. From the wedlock a boy namely Zeerak Asif Ali was also born on 27-10-1998, who is patient of imperforated and was operated thrice. According to the petitioner, at the time of Tallaq it was agreed that the respondent will give custody of the minor child to the petitioner, which the respondent failed to abide and consequently the Guardian and Ward Application was filed. The respondent in his written statement refuted the claim of the petitioner that she has ever agreed for handing over the custody of the child to the minor and further pleaded that the petitioner neither properly maintained her nor her child. The learned Family Judge dismissed the application and appeal against the same also met with same fate.
3. ' Learned counsel for the petitioner has contended that the learned courts below have not properly considered the evidence placed on record and without applying judicial mind, passed the impugned judgments. He contended that the petitioner is an educated person and is working as lecturer in Government Degree College, Buffer Zone, Karachi, and as such he can very well look after the minor. He further contended that the paramount consideration is the welfare of the minor and there are no hard and fast rule and each and every case has to be decided on its own merits.
4. He contended that the right of Hizanat lies with the father to have the custody of the minor. He further contended that the visits/meeting of father was not regulated by the learned trial Court. In support of his contentions he has placed reliance on the cases reported in 1993 CLC 2468, PLD 1978 SC 220 and PLD 1962 Lahore 142.
5. ' On the other hand learned counsel for the respondent No,1 has supported the impugned judgments. He contended that there is nothing on record to substantiate any misreading or non- reading of the evidence. He contended that the judgments are well-reasoned and the petition is not maintainable as the concurrent findings of the Courts below cannot be challenged while exercising the constitutional jurisdiction. In support of his contentions he has placed, reliance on the cases of Mst. Firdous Iqbal v. Shifaat Ali (2000 SCMR 838), M. Farrukh Iqbal v. Additional District Judge, Islamabad 1999 MLD 1754 and Mst. Feroze Begum v. Lt.-Col. Muhammad Hussain 1978 SCMR 299.
6. ' I have heard the learned counsel for the parties and have gone through the material available on record and so' also the case-law.
7. Indeed the admitted fact in the light of the law cited by both the learned counsel is the welfare of the minor. The child is a patient of imperforated and has been operated thrice and in such circumstance when he has attachment with his mother, and in case he is given in the custody of his father, who is stranger for him, it may deteriorate his health. The petitioner has contracted second marriage and when he will leave for his job, the child will be at the mercy of step mother. In my humble view in presence of real mother, who is living in a combined family having sisters and mother, it will not be proper to deprive the child from the natural love and affection of the mother particularly when nothing substantial has come on record to prove that the respondent has failed to properly look after her son.
8. ' It is also settled principle of law that the scope of this Court while dealing with the concurrent findings of the two courts below in exercise of constitutional jurisdiction is very limited. In such like situation the burden of proving that the findings recorded by Courts below were vitiated by evidence on record or suffered from non-reading of material evidence or there was jurisdictional defect lie on the petitioner, which in the instant case the petitioner has failed to point out. Both the Courts below have very carefully examihed all the aspects of the matter in regard to the welfare of the minor. The case-law relied upon by the learned counsel for the petitioner in the light of the above discussion are not relevant to the present case.
9. ' In view of the above, I do not find any substance in the present petition calling for interference in the impugned judgments. Accordingly, this petition is dismissed in limine along with listed application.