Through this single order, I intend to decide the instant Writ Petition No, 152452-H of 2018. as well as, connected Writ Petition No, 155237 of 2018, as both these petitions have arisen out of the same order dated 16.01.2018 passed by the learned Addl. Sessions Judge, Samundari District Faisalabad, whereby the minor children of the petitioner, namely, Basham Fatima aged about 06 years, Yashfa Fatima aged about 05 years and Abdullah aged about 03 years were directed to be handed over to their mother Mst. Alia Sahar (petitioner). The petitioner of Writ Petition No, 152452 of 2018, namely, Mst. Alia Sahar shall hereinafter be called as the petitioner, whereas, Mushtaq Ahmad, Respondent No, 2 of the said petition, shall hereinafter be called as the respondent. Learned Addl. Sessions Judge, Samundari vide the abovementioned order dated 16.01.2018 directed that the abovementioned minors be handed over to their mother (Mst. Alia Sahar petitioner) and Writ Petition No, 152452 of 2018 has been filed by Mst. Alia Sehar on the ground that inspite of the abovementioned order of learned Addl. Sessions Judge, Samundari, the minors were not handed over to her as the respondent is an Advocate, whereas, Writ Petition No, 155237 of 2018 has been filed by Mushtaq Ahmad respondent (petitioner of the said Writ Petition) to challenge the legality of abovementioned order dated 16.01.2018 of the learned Addl. Sessions Judge, Samundari.
2. As per brief facts of the present case, Mst. Alia Sehar petitioner was married with Mushtaq respondent and from the said wedlock, the abovementioned minors were borne. As per claim of the petitioner, she was ousted by the respondent from his house ten days prior to the filing of her habeas petition in the Court of learned Addl. Sessions Judge, Samundari, which was filed on 04.01.2018. On 02.01.2018, the respondent forcibly snatched the minors from her custody, whereupon, she filed the abovementioned habeas petition for the recovery of her minor children which was accepted vide order dated 16,01.2018 passed by the learned Addl. Sessions Judge, Samundari and all the minors were directed to be handed over to the petitioner. Mushtaq Ahmad respondent is a practicing Advocate in the local Bar therefore, the aforementioned order of the learned Addl.
Sessions Judge, Samundari could not be implemented. Mst. Alia Sehar petitioner has now filed the instant petition before this Court on the ground that despite the abovementioned order of the learned Addl. Sessions Judge, Samundari, the minors were not handed over to her and they are still in illegal/improper custody of Mushtaq Ahmad respondent. On the other hand, Mushtaq Ahmad respondent has also filed the abovementioned connected Writ Petition No, 155237 of 2018 whereby he has challenged the legality of the abovementioned order dated 16.01.2018 passed by the learned Addl. Sessions Judge, Samundari.
3. It is contended by learned counsel for Mst. Alia Sehar petitioner that the petitioner is real mother of the minors and her habeas petition has already been accepted by the learned Addl. Sessions Judge, Samundari vide order dated 16.01.2018 whereby the minors were directed to be handed over to the petitioner but as Mushtaq Ahmad respondent is a practicing Advocate at Tehsil Courts Samundari therefore, he along with other members of the Bar did not allow the implementation of the aforementioned order; that the respondent thereafter, filed a guardian petition in the Court of learned Guardian Judge, Samundari on 18.01.2018 in order to frustrate the aforementioned order of the learned Addl. Sessions Judge, Samundari; that the respondent concealed the fact in his guardian petition regarding the acceptance of habeas petition filed by the petitioner and he simply stated in his aforementioned petition that the habeas petition filed by the petitioner in the Court of learned Addl. Sessions Judge, Samundari has already been decided; that the respondent has now advanced another claim that the petitioner is mentally sick, whereas, no such allegation was leveled by the respondent in his divorce deed; that the respondent did not challenge the order of the learned Addl. Sessions Judge, Samundari dated 16.01.2018 and when the petitioner filed her Writ Petition before this Court then the respondent has filed the abovementioned connected Writ Petition which speaks malafide of the respondent; that although an interim stay has been granted by the learned Guardian Judge in favour of the respondent but the said interim stay has malafidely been obtained ex parte by the respondent in order to illegally deprive the petitioner from her minor children; that after the impugned order passed by the learned Addl. Sessions Judge, Samundari, the custody of the minors with the respondent is illegal and improper therefore, this petition may be accepted and the minors may be handed over to the petitioner.
4. On the other hand, it is contended by learned counsel for the respondent that Mushtaq Ahmad respondent is real father of the minors therefore, custody of the minors with the abovementioned respondent is neither illegal nor improper; that the petitioner is a psycho patient and it will not be in the welfare of the minors to hand over their custody to the petitioner; that on 28.11.2017, the petitioner attacked upon the father of the respondent with the help of Churri' and caused injury to him and a medical report in this respect is also available on the record; that the petitioner has not approached the Court with clean hands because the petitioner has alleged that the petitioner was ousted by the respondent about ten days prior to the filing of her habeas petition in the Court of learned Addl. Sessions Judge, Samundari which was filed on 04.01.2018 and thereafter, the minors were snatched from her custody on 02.01.2018 but through the school certificates of the minors it is established that the minors were throughout under the custody of Respondent No, 2 and they were also appearing in the school .during the days when the petitioner was allegedly ousted by the respondent; that if the minors are handed over to the petitioner then it will not be in their welfare because in that case their studies will be disturbed; that the respondent has already filed a guardian petition before the learned Guardian Judge, Samundari and interim stay in favour of the respondent has also been issued on 18.01.2018; that keeping in view the abovementioned facts, Writ Petition filed by Mst. Alia Sehar petitioner may be dismissed and Writ Petition filed by the respondent may be accepted while setting-aside the impugned order dated 16.01.2018 passed by the learned Addl. Sessions Judge, Samundari. In support of his contentions, learned counsel for the respondent has placed reliance on the cases reported as Waziha Ghazali vs. The State and another' (2001 SCM R 1782), Tanvir Hussain vs. Station House Officer, Police Station Safdarabad, District Sheikhupura and 5 others' (PLD 2011 Lahore 516), Mst. Seema vs. Aftab Ahmed and others'
(2013 YLR 583), Mst. Zohra Hilal vs. Noor Sakht Shah and others' (2009 M LD 258), `Mst. Nadia Perveen vs. Mst. Almas Noreen and others' (PLD 2012 Supreme Court 758) & `Mrs. Rania Ibrahim Qureshi vs District & Sessions Judge, Abbotabad and 2 others' (2011 PCr.L.J. 1594) .
5. Arguments heard. Record perused.
6. The petitioner is real mother of the minors,' namely, Basham Fatima aged about 06 years, Yashfa Fatima aged about 05 years and Abdullah aged about 03 years. The first right of `hazanat' in respect of the abovementioned minors lies with the petitioner. Habeas petition filed by the petitioner in the Court of learned Addl. Sessions Judge, Samundari for the recovery and interim custody of the minors was accepted vide order dated 16.01.2018. As Mushtaq Ahmad respondent is a practicing Advocate at Tehsil Courts, Samundari therefore, he along with his other colleagues (members of the Tehsil Bar, Samundari) did not allow the implementation of the abovementioned order of the learned Addl. Sessions Judge, Samundari and he forcibly kept the minors with him.
The said respondent instead of challenging the aforementioned order of the learned Addl. Sessions Judge, Samundari before the High Court, initially filed a guardian petition in the Court of learned Guardian Judge, Samundari on 18.01.2018 and through concealment of the facts that the learned Addl. Sessions Judge, Samundari has already passed an order for handing over the custody of the minors to the petitioner and by simply stating that the habeas petition filed by the petitioner has been decided by the learned Addl. Sessions Judge, Samundari, he (respondent) ) obtained an interim stay order in his favour on 18.01.2018 from the learned Guardian Judge, Samundari. The Writ Petition of the petitioner i,e, Writ Petition No, 152452 of 2018 was filed before this Court on 24.01.2018 and notice in the said petition was issued to the respondent on 25.01.2018 for 26.01.2018. On 26.01.2018, Mushtaq Ahmad respondent appeared before this Court along with his learned counsel but he did not produce the minors before this Court and sought an adjournment in order to produce the minors before the Court and the case was adjourned for 31.01.2018. In the meanwhile, the respondent filed the abovementioned connected Writ Petition No, 155237 of 2018 in this Court on 29.0.1.2018. It is therefore, evident that Mushtaq Ahmad respondent has malafidely filed the abovementioned connected Writ Petition in order to frustrate Writ Petition No, 152452 of 2018, filed by Mst. Alia Sehar petitioner. Although learned counsel for the respondent alleged that the petitioner is a psycho patient and she earlier attacked upon the father of the respondent on 28.11.2017 and injured him but neither the aforementioned fact of mental sickness of the petitioner has been mentioned by the respondent in divorce deed of the parties nor any FIR was lodged regarding the abovementioned alleged attack of the petitioner on the father of the respondent. As mentioned earlier, the respondent obtained an interim stay from the learned Guardian Judge, Samundari on 18.01.2018 without specifying in his guardian petition that the learned Addl. Sessions Judge, Samundari has already directed that the custody of the minors be handed over to the petitioner vide order dated 16.01.2018 and he simply mentioned in his guardian petition that the habeas petition filed by the petitioner has already been decided by the learned Addl. Sessions Judge, Samundari. Respondent has malafidely obtained the aforementioned ex-parte interim stay order dated 18.01.2018 from the learned Guardian Judge, Samundari therefore, the said order has no bearing on the merits of the instant constitutional petitions. Reliance in this respect may be placed on the case of Shaukat Masih vs. Mst. Farhat Parkash and others' (2015 SCM R 731). Although it has been claimed by the respondent that the minors were throughout under his custody and the claim of the petitioner that they were forcibly snatched on 02.01.2018 has been falsified by the school certificates of the minors, wherein their attendance has been marked in the relevant record but it is noteworthy that the petitioner claimed in her petition under Section 491 of Cr.P.C, which was filed by the petitioner in the Court of learned Addl. Sessions Judge. Samundari on 04.01.2018, that about ten days prior to the filing of the said petition, she was expelled by the respondent from his house and later on, the minors were forcibly snatched from her custody on 02.01.2018. During the period of expulsion of the petitioner from the house of the respondent, which comes to the last week of December, 2017, there were admittedly winter vacation in the school therefore, there is no substance in the argument of learned counsel for the respondent that the minors throughout remained under the custody of the respondent and the said fact is established from the attendance of the minors in their schools at the relevant time. It is also noteworthy that the respondent in his Writ Petition No, 155237 of 2018 has filed the school certificates of the minors in order to establish that the minors were under his custody during the period of desertion of the petitioner but the school certificates produced by the respondent have been issued by a private school and as such, the same are easily procurable. Moreover, there is contradiction in the name of school of the minors on different school documents. In the school certificate of the minor Basham Fatima and Yashfa Fatima, the name of school is written as 'New AFAQ School for Boys and Girls', whereas, in fee slips of the said minors, the name of school has been mentioned as 'New AFAQ Higher Secondary School, Samundari'. The genuineness of the said documents is still to be, proved by the respondent in a guardian petition. The petitioner cannot be' deprived from the interim custody of her minor children on the basis of such documents. In the case of Naziha Ghazali vs. The State and another' (2011 SCMR 1782), cited by learned counsel for the respondent, habeas petition was filed by the mother after 5/6 months of the alleged unlawful removal of the minors from her custody, whereas, in the instant case, habeas petition was filed by the petitioner in the Court of learned Addl. Sessions Judge, Samundari within a period of two days from the date of unlawful removal of the minors from her custody. Similarly facts of the remaining judgments cited by learned counsel for the respondent are distinguishable from the facts of the present case.
7. In the light of above discussion, Writ Petition No, 152452 of 2018, filed by the petitioner, is accepted and the custody of the minors, namely, Basham Fatima aged about 06 years, Yashfa Fatima aged about 05 years and Abdullah aged about 03 years is directed to be handed over to Mst. Alia Sehar petitioner, whereas, Writ Petition No, 155237 of 2018 filed by Mushtaq Ahmad respondent against the order dated 16.01.2018 passed by the learned Addl. Sessions Judge, Samundari, is hereby dismissed in limine.
8. It is however, clarified that the observations made in this order are tentative in nature and shall not cause prejudice to the case of either party in guardian petition, pending before the learned Guardian Judge, Samundari and the same shall be decided by the concerned guardian Judge on its own merits keeping in view the welfare of the minors.