UMAR ATA BANDIAL, J.--- The petitioner is the son of the alleged detenu from his first marriage. The alleged detenu is suffering from a serious brain disorder and is in a vegetative condition. The report of Professor Dr. Nadir Zafar Khan, Associate Professor of Neurology and Head of Neurology Department, Sh. Zayed Hospital, who is treating the alleged detenu, reveals that no specific medical treatment is available in Pakistan or abroad to cure the condition of the alleged detenu.
Respondent No,1 is the second wife of the alleged detenu. She has been caring for him in his presently critical condition since his cerebral haemorrhage four months.
2. The central question before the Court is whether the alleged detenu is in the illegal custody of the respondent No,
1. The collateral points whether the children of the alleged detenu from his first marriage have a superior right to his custody and in any event whether they have a right of access to the alleged detenu are also touched tentatively herein so as to make the relief workable in the peculiar circumstances of the case until a definitive opinion is given in the matter by a competent Court.
3. The unusual feature of the present case is the inability of the alleged detenu to express any preference as to which family should care for him. The Court must, therefore, arrive at its finding about the best means of safeguarding the rights of the alleged detenu by drawing its inference from surrounding circumstances.
4. The learned counsel for the petitioner submits that the detenu held a prominent position in Tehsil Chunian and should be shifted to his native town where he has other family members and also followers from his religious community. For such relief the petitioner is willing to provide any amount of surety that may be demanded by respondent No,1 to safeguard her access to the alleged detenu. Adds further that the petitioner and his family live abroad and have substantial means to have the alleged detenu treated anywhere in the world.
5. The learned counsel for respondent No,1 submits that the alleged detenu was living voluntarily with the respondent No,1 when he suffered his brain disorder therefore the legality of his custody in the hands of respondent No,1 cannot be challenged. He accepts that the petitioner and his other family members have a right of access to and a right to care for the alleged detenu. However, he pointed out the existence of serious differences, hostilities and litigation between the petitioner's family and the respondent No,
1. Nevertheless, as proof of good faith he offers that the petitioner and his family may visit the alleged detenu in the home of respondent No,1 and undertakes that she will cooperate with the petitioner for the provision of the best medical care to the alleged detenu.
6. It is evident from the opinion of the medical consultant that the alleged detenu is under competent as well as regular medical treatment. It has, however, been conceded by the learned counsel that respondent No.1 is attending the alleged detenu in her home without professional nursing care. Admittedly, the petitioner's family have greater means than the respondent No.1.
7. It can be gathered from the foregoing facts that if the petitioner is able to find foreign or additional medical treatment for the alleged detenu, the respondent No,1 shall cooperate to allow the alleged detenu to be examined diagnosed and treated by other competent doctors in the field.
In this regard, it is noted that the respondent No,1 consented to and took the alleged detenu for a second medical opinion to the Brain Centre Clinic pursuant to the circler dated 11-9-2008. At the time the petitioner had undertaken to finance further treatment and care of the alleged detenu whilst correspondingly the learned counsel for respondent No,1 had undertaken to provide necessary access, assistance and availability of the alleged detenu for that purpose. These undertakings are reiterated today as well.
8. The facts and circumstances noted above show that the alleged detenu was living voluntarily with the respondent No,1 at the time of his cerebral accident four months ago. Thereafter the respondent No,1 has cared for him bravely against logistical odds and financial constraints. The custody of the alleged detenu in her hands cannot, therefore, be termed as hostile, forcible or illegal. It is, accordingly, ordered that prima facie, the respondent No,1 holds lawful custody of the alleged detenu.
9. Turning to the collateral points, it is, the admitted position that the petitioner and his family have a right to visit and care for the alleged detenu. In the light of that concession, it is ordered that during the day time the petitioner and immediate family members of the alleged detenu may visit the latter to provide personal and nursing care for him. Both the parties concerned acknowledge their duty to provide the best medical treatment to the alleged detenu. Accordingly, by consent of the learned counsel, it is further directed that pursuant to the advice given by the second consultant, Dr. Nasrullah at the Brain Centre Clinic, the alleged detenu shall be admitted to the Clinic for further tests prescribed in order to assess whether any additional medical treatment for his condition is available and possible. The costs of such treatment shall be borne by the petitioner.
10. It is clarified that the foregoing order constitutes a tentative arrangement subject to an order passed by a competent Court in the matter of custody and care of the alleged detenu. Disposed of. 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.