' This Constitutional petition has been filed to call in question the judgment and decree dated 4-9- 1995 passed by the trial Court regarding custody of Amir Shahzad aged about 9 years (at present) and the appellate judgment and decree dated 20-11-1995 whereby the petitioner's appeal was dismissed.
2. Mst. Rukhsana Kausar respondent No,1 is mother of the minor and respondents Nos. 2 and 3 are his maternal grand parents. The Courts below gave the custody of the minor to respondents 2 & 3.
Mst. Rukhsana Kausar was divorced by the petitioner on 30-4-1989 and thereafter she contracted marriage with Nazir Ahmed on 28-2-1990. Out of her wedlock with Nazir Ahmad, she was blessed with five children (3 daughters and 2 sons).
3. The petitioner's learned counsel contends that the Courts below had ignored material evidence on the record which had a direct bearing on the controversy regarding welfare of the minor; that the appellate judgment is clearly against the facts brought out in evidence of the parties; that the welfare of the minor requires that his custody be entrusted to the petitioners; that respondents 2 & 3 have a large family with heavy financial obligation and cannot properly bring up and educate the minor and that the judgments of the Courts below are at variance. In support of his contention, the petitioner's learned counsel relies on the following judgments:--
(1) "Surraya Bibi v. Abdur Rashid" (1980 CLC 785).
(2) "Mst. Salima Bibi v. Muhammad Khan and others" (PLD 1987 Lahore 383).
(3) "Mst. Zahida and another v. Capt. (Rtd). Shahid Ali Khan" (1993 CLC 2116).
(4) "Mst. Imtiaz Begum v. Tariq Mahmood and another" (1995 CLC 800).
4. On the other hand, learned counsel for respondents Nos.1 to 3 submits that the petitioner did not personally file the application under section 25 of the Guardian and Wards Act and did not even appear as a witness regarding his claim for custody of the minor; that the petitioner is settled in Dubai and is working as a labourer; that the petitioner cannot properly look after the minor because he has also contracted second marriage and has got two daughters from the said wedlock; that although the petitioner was represented by his attorney (father) yet certain facts regarding circumstances in which he is living at Dubai were personally known to him and could not be explained by the attorney; relies on the judgment in the case of "Shah Nawaz and another v.
Nawab Khan" (PLD 1976 SC 767); that in the power of attorney no authority has been given to the petitioner's father to file an appeal or a writ petition in this Court, therefore, the writ petition is incompetent; that the respondents can better look after the minor; that poverty is not a ground to disentitle a party to claim custody of the minor; relies on "Mst. Feroze Begum v. Lt.-Col. Muhammad Hussain" (1978 SCM R 299); that the petitioner have paid maintenance allowance to the minor whereupon a suit was filed against him which was decreed but he did not pay anything to the minor; that recently he has started paying as sum of Rs,1000 per month (Rs,500 towards arrears and Rs,500 per month for the future maintenance) and that the minor is studying in a good institution in the town of Dinga. He relies on the following judgments as well:--
(1) "Mst. Talat Nasira v. Mst. Munawar Sultana and 2 others" (1985 SCM R 1367).
(2) "Ghulam Qadeer etc. v. Mst. Rahat Yasmin etc." (PLJ 1996 Lahore 407).
5. The technical objection raised by the petitioners's learned counsel that the power of attorney executed by the petitioner in favour of the father Bashir Ahmad does not authorize him to file the present petition, appear to be baseless. The attorney has been authorized to deal with the case of the petitioner's son Amir Shahzad in any Court in Pakistan. He has further been authorized to engage or appoint any legal practitioner to conduct the case, therefore, it is held that the present petition has been competently filed in this Court through the petitioner's attorney.
6. Coming to the merits of the case, the material on the record shows that the petitioner has contracted second marriage and is settled at Dubai. The circumstances in which he is residing in a foreign country were within his exclusive knowledge but he did not personally appear as a witness so as to depose about the said circumstances to enable the Court to appreciate that welfare of the minor required that his custody be entrusted to him. The petitioner, as mentioned above, has contracted second marriage and has been blessed with two children out of the said wedlock. It will not be safe to remove the minor from his present family set-up where he is well adjusted and make him live under the shadow of a step-mother. I may observe here that the minor had appeared before the Court and stated that he was happily residing with the respondents and did not desire to go over to the petitioner. It appears that the petitioner has filed the present petition mainly with the object of getting rid of the decree for maintenance passed against him. He has recently started paying a sum of Rs,1000 per month to the minor. Had he been well settled at Dubai and had any real interest in the minor's welfare he would have come forward to pay maintenance allowance for the minor even without a decree of the Court.
7. The judgments relied upon by the petitioner's learned counsel proceed on their own distinguishable facts and are not of much help to him. In the case of Mst. Salima Bibi, it was held that father was entitled to get custody of minor aged about 10 years; that non-payment of maintenance to the minor and the second marriage of the father did not disentitle him to the custody of the minor and that there should be strong reasons for depriving the father of the custody of his child. In the said case, the father was residing within Pakistan, the circumstances in which he was residing were known and the mother was permitted to see the minor with the permission of the father. A special arrangement was made whereby father was directed to pay a fixed amount to the mother to enable her to travel to Karachi to see the minor, failing which the minor was to be sent to her twice in a year during the vacation. In the present case, the petitioner is residing at Dubai. The circumstances in which he is spending life are not known and no arrangement can be made to enable the mother to see the minor if his custody is entrusted to the petitioner. In the case of Surraya Bibi, custody of a male child about 7 years of age was given to the father, among others, for the reason that the mother had herself agreed in writing that if father of the minor divorced her then she would abandon her claim for dower amount and retain the minor in her custody till he attained the age of 7 years and that after 7 years she would hand over the custody of the minor to the father. Obviously, this is not the position in the present case. In the case of Mst. Zahida and another, both father and mother of the minor were residing in Pakistan, the father was financially better off and had arranged his admission in a good school (Beacon House) and the minor was residing at Mianwali with his step-father and step-brother, therefore, his custody was entrusted to the father. In the case of Mst. Imtiaz Begum, custody of the minor boy was handed over to the father as he was more than 7 years of age, the learned counsel for the parties had fully apprised the Court of the circumstances in which the mother and the father were living, the mother was living in his house with her brothers and has no independent source of income, the father had been providing maintenance allowance for the minor. The present case is clearly distinguishable on facts from the abovereferred reported case.
8. The Courts below have fully taken into consideration all the relevant facts and circumstances of the case as well as the case-law having a bearing on the controversy and rightly come to the conclusion that the custody of the minor should remain with the respondents. I do not find any valid reason to interfere in the impugned judgments passed by the Courts below, in exercise of the Constitutional jurisdiction. The petition is, therefore, dismissed.