MRS. SYEDA TAHIRA SAFDAR, J.---The petitioner Aminullah approached this court for issuance of a direction to the official respondents for recovery of the detainee Hamadan from the illegal detention of respondent No,4, and his production before this court, and also for taking legal action against the respondent No,4 for the acts on her part.
2. The brief facts% as collected from the papers annexed with the petition that the petitioner applied the Family Court for custody of his son Hamadan, which was allowed by the trial court vide judgment dated 22nd March 2017. The visitation right of the mother of the child i,e, respondent No,5 was secured, as she was allowed to visit the minor in the terms as contained in the order. As there was no appeal against the order, thus the petitioner applied the Family Court for execution of the decree. In response the process was issued to respondent Nos, 4 and 5 with direction to produce the minor, and for handing over his custody to the petitioner (decree holder). The last order sheet recorded on 15th September 2017 (wrongly mentioned as 15th July 2017), was with the facts that despite service of the process of the court, and the undertaking given respondent No.5 Dr. Shahista, she avoided to appear before the court and to produce the minor in compliance of the order. The executing court only called for submitting pay slip of the judgment debtor, it was might with an intent to issue direction for attachment of her salary. This direction made the petitioner aggrieved, resulted in filing of the instant petition.
3. The learned counsel for the petitioner in repetition of the facts as narrated, was of the view that as per knowledge of the petitioner, the respondent No,5 has resigned form the job and now intends to proceed abroad along with the minor. To stop the respondent No,5 from the intended act an application to place the name of the minor in Exit Control List was also filed by the petitioner, which was mainly pressed.
4. It was asked form the learned counsel that the petitioner had already filed an application to execute the decree, which is pending before the trial court, how the instant petition is maintainable for the same relief? It was replied that he (petitioner) only sought production of the minor whose life is in danger, as according to the report submitted before the executing court by the SHO Police Station Gawadar that the minor was not in the custody of his mother (respondent No.5).
5. A decree has been passed in favour of the petitioner by a court of competent jurisdiction, and he was allowed for the relief of the custody of his minor son. This judgment and decree was passed in the March 2017, as respondents Nos, 4 and 5 opted not to appeal against the order and decree, it has attained finality, thus to be implemented as required in the terms. He (petitioner) had already applied for its execution. The Law i,e, Family Courts Act 1964 (Act 1964) provided the procedure for enforcement of the decrees passed by a Family Court. Section 13 of the Act 1964 contained the procedure to be adopted by a Family Court to enforce its decree. Though this provision mainly deals with the decree passed in the terms of money, while the petitioner applied for the custody of the minor, thus the provisions of the Guardians and Wards Act, 1890 (Act 1890) shall have its application. Section 25 of the Act 1890 empower a court to issue process for return of the minor to guardian of his person. Reproduction of the Section would be for better understanding of the matter. It reads as under: Section 25. Title of guardian to custody of ward.
(1)If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.
(2)For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the First Class by Section 100 of the Code of Criminal Procedure. 1898 (Act V of 1908).
(3)The resident of a ward against the will of his guardian with a person who is Inot his guardian does not of itself terminate the guardianship. In view the power to arrest a ward, and to deliver his custody to the guardian available to a Family Court. In addition all powers available under Section 100 Criminal Procedure Code (Cr.P.C) to a