1. ' IFTIKHAR HUSSAIN BUTT, J.--- This appeal has been directed against the decision of learned Judge Family Court Mirpur passed on 27-3-2007 whereby the custody of minor girl was handed, over to the respondent, mother.
2. ' The brief facts forming background of the instant appeal are that the respondent, herein; filed an application for appointment of guardian on 8-11-2006 before the Judge Family Court Mirpur, alleging therein that Mst. Isha her daughter, aged 3 years has been snatched away from her by the appellant, herein, while she was ousted from the house of the appellant.
3. ' The respondent also filed a separate application for temporary custody of her daughter.
4. ' The appellant refuted the allegations of the respondent and averred in his objections that the respondent has got no cause of action and she left the minor with him, when the minor was one month old. The appellant further stated that respondent has got no source of income, therefore, the welfare of the minor lies with the appellant, father and not with mother.
5. ' Mst. Safina, respondent appeared in the witness-box in support of her claim, whereas appellant Muhammad Jamil also entered into the witness-box and produced Shahzad Ahmad and Abdul Ghanni as his witnesses.
6. ' After completion of the proceedings the learned Judge Family Court passed the impugned decision and appointed the respondent, mother guardian of the minor girl an4 also directed the appellant to hand over the minor to the respondent vide its decision, dated 27-3-2007. Hence this appeal.
7. ' Saadat Ali Kayani, the learned counsel for the appellant, vigorously argued that the learned Judge Family Court fell in grave error while appointing the respondent guardian of the minor because the respondent left her minor daughter when her age was one month; therefore, she is not entitled to be appointed guardian of the minor daughter. The learned counsel further pointed out that the respondent has got nine other sisters and youngest one is also three years old; therefore, she does not possess sufficient means to bring up the minor in a proper and befitting manner. The learned counsel maintained that as the minor is living with her father for the last three years; therefore, she is more familiar to her father instead of the mother, respondent.
8. ' On account of absence of the respondent and her learned counsel no argument could be advanced on her behalf.
9. ' It transpires from the close scrutiny of the file that Mst. Safina Bibi got her statement recorded ,before the Court below but she could not produce any witness. She testified that Mst. Isha is her daughter and she wants to bring her up in a better manner than the appellant. She further deposed that nobody else could look after her daughter except her. She refused the suggestion that she left her minor daughter when she was one month old, rather she stated that at that time after physically ill-treatment, she was ousted from the house by the appellant. On the other hand, Shahzad and Abdul Ghanni, the witnesses for the appellant, stated that the minor Isha is living with her father, whereas it is admitted by Abdul Ghani that a mother could bring up a child in a better, way as compared to a father.
10. ' Muhammad Jamil, appellant, testified that his minor daughter is living with him and she was left by her mother when she was one month and fifteen days old. He further stated that his wife has got other eight sisters; therefore, she cannot afford the expenses of upbringing of her daughter.
11. ' Now the question arises as to whether the mother should be appointed guardian of the minor girl or the father, who is already having her custody. Under section 17, the Guardians and Wards Act while appointing and declaring the guardian, the Court has to take into consideration the welfare of the minor. In this respect, the Court shall have regard to the age, sex and the nearness of the kin of the minor.
12. ' In the instant case, it is admitted that Mst. Isha is a minor girl and she is about three years old. She is a Muslim girl and the welfare of minor would be presumed with the person who is entitled to it under the Muslim Law until and unless otherwise proved. However, in such a case there must be strong circumstances justifying to refuse the prayer to one who is entitled to the same under Muslim Law. In the instant 'case the mere fact that the minor has been previously living with her father and she is also attending a school does not deprive the respondent from seeking the custody or her appointment as guardian of the minor-girl.A host of case law owns this view but I have preferred to refer one case only which holds the consistent view of the apex Court. Mst. Zakia Khatoon v. Muhammad Hayat Khan and 5 others 1998 SCR 140 keeping in view the age, sex and personal law of minor, the respondent-mother is most befitting and proper person to look after and bring up her. The love and affection which a mother can provide to her minor daughter cannot be provided by a father, even though he is a very rich person. Whereas the appellant has also meagre source of income. Furthermore the appellant has not levelled any allegation of corruption or bad character against the respondent, which could be made basis for refusal to appoint her guardian of the minor-girl. In such state of affairs, the impugned decision does not suffer from any legal defect nor otherwise infirm, such finding is not open to interference.
13. ' The upshot of the above discussion is that finding no merits in this appeal, it is hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.