MAMOON RASHID SHEIKH, J.---The petition was adjourned on the last date of hearing at the parties' request for exploring the possibility of arriving at an out of Court settlement and pending the same the custody of the alleged detenu, a boy aged about 4 years (hereinafter referred to as "the minor"), was ordered to be retained by respondents Nos. 1 and 2 who undertook to produce the minor before the Court today which they have done.
2. The learned counsel submit that the parties have been unable to arrive at an out of Court settlement. It is, therefore, prayed that the petition may be heard and decided on merits.
3. The brief facts giving rise to the present petition as narrated in the petition are to the effect that the minor is the real son of respondents Nos. 1 and 2 whereas the petitioner is the paternal aunt of the minor. The petitioner is resident (sic) abroad and since the minor is a special child, respondents No. 1 and 2 handed over his custody to the petitioner so that she may bring up the minor by providing him special care, attention and treatment. The minor has been with the petitioner ever since his birth. The petitioner came to Pakistan in September, 2009 along with the minor and started residing with the minor. Respondents Nos.1 and 2 came to the petitioner's residence along with certain other persons on 1-4-2010 and forcibly snatched the minor from the petitioner and at the same time also took away the title deed of the petitioner's house, a vehicle, the petitioner's and the minor's passports and other documents. Respondents Nos.1 and 2 also threatened the petitioner of dire consequences and said that she can only regain the custody of the minor if she transfers her property in the names of respondents Nos. 1 and 2. It is prayed that the concerned S.H.O.
(respondent No.3) be directed to recover the minor from the illegal custody of respondents No. 1 and 2 and his custody be handed over to the petitioner.
4. The learned counsel for the petitioner contends that the minor was handed over to the petitioner by respondents Nos. 1 and 2 of their own freewill and accord. The petitioner has been taking good care of the minor and has had him treated abroad as the minor is a special child and needs specialized medical treatment and care. Respondents Nos. 1 and 2 voluntarily gave up the custody of the minor to the petitioner knowing full well that she would provide him with a better and brighter future. The petitioner is residing in Japan and is better equipped to take care of the minor as that country has better medical facilities as compared to Pakistan. Contends that the custody of the petitioner was legal. The act of respondents Nos. 1 and 2 of snatching away the minor from the petitioner is illegal. Prays that the custody of the minor be handed over to the petitioner. Relies on a judgment of the honourable Supreme Court of Pakistan reported as Abdul Rehman Khakwani and another v. Abdul Majid Khakwani and 2 others (1997 SCM R 1480).
5. The learned counsel for respondents Nos. 1 and 2 submits that the minor is the real son of respondents Nos. 1 and 2. It is not denied that the minor is a special child requiring special care. It is also not denied that the minor was handed over to the petitioner about 4 years back. It is, however, submitted that upon her return to Pakistan in September, 2009 the petitioner came to visit respondents Nos.1 and 2 and left the minor with them of her own freewill and ever since then she has not bothered to even enquire about the minor's welfare. It is further submitted that albeit the petitioner is the paternal aunt of the minor, yet in the presence of respondents Nos. 1 and 2 who are the real parents of the minor, the petitioner does not have any right to demand the custody of the minor. The minor is living with his parents and there is no element of illegal custody and/or confinement of the minor. It is further contended that the petition has been filed by concealment of material facts. The petitioner is currently estranged from her husband and is living alone in Pakistan. She has no independent source of income. Moreover, she herself abandoned the minor, therefore, it does not lie in her mouth to claim his custody. It is prayed that the petition be dismissed.
6. Arguments heard. Record perused.
7. It is an admitted position that the minor was handed over to the petitioner by respondents Nos. 1 and 2 about 4 years back. Upon being given the custody of the minor the petitioner took him abroad and the minor stayed in her custody. However, upon the petitioner's return to Pakistan in or around the month of September, 2009 the custody of the minor exchanged hands. Neither party has been able to establish with any degree of exactitude as to how and when or under what circumstances the custody of the minor exchanged hands. From the resume of the facts given here in above the correct position does not become clear. Be that as it may, the minor is in the custody of his natural parents. He has been brought before the Court. It appears that he is happy in their custody and is not agitated or disturbed in any manner. The learned counsel for the petitioner has relied on the case of Abdul Rehman Khakwani and another (supra) but it does not apply to the facts and circumstances of the case. In that particular case although the facts were somewhat similar, however, upon handing over of the custody of the minor by the natural parents to the petitioner (in that case) a certificate had been issued by the learned Guardian Judge appointing the petitioner therein as the guardian of the minor. In the instant case the petitioner has been unable to show any certificate to this effect or any other instrument appointing her as the duly constituted guardian of the minor. The learned counsel for the petitioner has tried to controvert the stance of respondents Nos. 1 and 2. He has, however, been unable to establish that the petitioner has an independent source of income or that her relationship with her husband is not going through a rough patch.
8. Under the circumstances I do not feel persuaded to interfere in the matter. The petition is accordingly dismissed.