' This Criminal Miscellaneous Application under section 491, Cr.P.C. Was filed by two applicants Shakir Nawaz Chaudhry and Mrs. A. Nasim Shakir Chaudhry on 11-7-1998 claiming that baby Zohra Batool aged about 5/6 years and baby Zeba Batool aged about 3 years were their minor children and were left by them in their house under the care of their Aya Mst. Surriya Firdous on 15-8-1996 (later on joined as a respondent in these proceedings). It was contended that when the applicants returned in the evening of 15-8-1996, they found the babies and Aya missing. The applicants after making other efforts for recovery of the minors and after filing of other litigation in shape of Criminal Miscellaneous Application No,375 of 1996, a Constitutional Petition No,1858 of 1996, F.I.R.
No,155 of 1997, C.P. No,2074 of 1996, Publications in the newspapers and television advertisements, and having an alleged contact with a gang of kidnappers, ultimately filed this Criminal Miscellaneous Application with the following prayers:--
(1) To pass orders directing the respondent No,1 to hand over the custody of the minor babies Zohra Batool and Zeba Batool to the applicants.
(2) Interim orders for handing over the custody of the minor infant babies Zohra Batool and Zeba Batool to the applicants till the final decision on the application, were also sought.
2. It was pleaded in this application that the police of Police Station Model Colony had arrested Mst.
Surriya Firdous, and had recovered the minors Zohra Batool and Zeba Batool, from her possession, and minors were being kept at police station, alongwith Surriya Firdous. In response to rule nisi ordered by this Court the police informed that minors were kept at police station as Surriya Firdous was their real mother, and she was claiming so. On 15-7-1998, this Court directed that the minors be lodged in Darul Aman, and on volunteering to remain in Darul Aman with the minor girls, the applicant No,2 Mrs. A. Nasim Shakir was also directed to be kept in Darul Aman.
3. The contention of the applicants Shakir Nawaz Chaudhry and Mrs. Nasim A. Shakir Chaudhry was that Mrs. Nasim Shakir had given birth to the two minor children from her wedlock with Shakir Nawaz Chaudhry and that Mst. Surriya Firdous was employed by them as Aya of the two girls.
4. Mst. Surriya Firdous claimed to be the second wife of applicant Shakir Nawaz and on her request she was joined as a respondent. She claimed that in fact she had given birth to the two minor girls, but when Shakir Nawaz brought the applicant No,2 to the house, she had to leave the house to save herself and the minors.
5. In the meanwhile, the police started detailed investigation in respect of all the parties to this application. Mst. Surriya is lodged in Central Jail Women Ward on the report of Shakir Nawaz, while he himself has also been arrested, and is lodged in jail, as he is required by police in many cases. It was also informed by the learned A.A.-G. That the applicant No,2 Mrs. A. Nasim Shakir, who has claimed to be a doctor, working as R.M.O. In Civil Hospital, had played fraud as she was not a doctor and was not employed in Civil Hospital.
6. A detailed statement has been placed on record by the learned A.A.-G. Supported by many documents. The said statement suggests that the applicant Shakir Nawaz had initially complained to the police on 17-8-1996 that his two daughters were kidnapped and he had lodged F.I.R. No,87 of 1996 against Mst. Surriya Firdous. The applicant No,1 had lodged another F.I.R. No,155 of 1997 against Mst. Surriya Firdous after seeking the orders of this Court. Mst. Surriya Firdous was found during the investigation to be wife of Rafaqat Hussain and also that she was the mother of two minor girls. It was further revealed during the investigation that baby Zeba Batool was born to Mst. Saurriya in Aziz Medical Centre, Model Colony, Karachi, and a lady doctor by name Dr. Nasim Safdar had certified this fact. It also came to light during investigation by the police that applicant No,2 was not the real mother of the minors and that her real name was Abida Bashir daughter of Bashir Ahmed and that she was simply attending a course of Lady Health Visitor in Baby Health Centre, Karachi, which course also she did not complete. The applicant No,2 (Mst. Abida Bashir) took advantage of the name of earlier wife of Shakir Nawaz, who was named as Mst. Nasim Akhtar, and her whereabouts were not known, and therefore, claimed the Nikahnama in name of Nasim Akhtar to be her Nikahnama with Shakir Nawaz.
7. The police has undertaken a detailed investigation in the case and examined many witnesses, whose names have been mentioned in the statement. Statements of father of applicant No,2 (Mst.
Abida Bashir), the sister of Abida Bashir and brother-in-law of Abida Bashir as well as the Nikaht Khawan were also recorded by the police in addition to statements of many persons of the Mohalla. This important evidence suggested that Mrs. Nasim Shakir had been living, in impersonation, as she in reality was Abida Bashir. It was also revealed during the investigation that Mst. Surriya Firdous was living in the house of the applicant No,2 as his wife, where the two girls were born to her.
8. The applicant No,2 was identified as Mst. Abida Bashir through an identification parade held in Darul Aman in presence of a Magistrate with the permission of this Court through her father, sister and other relatives. The net result of the investigation of the police shows that the applicant No,1 Shakir Nawaz, who now claims to be an Advocate, had married with a lady by name Mst. Nasim Akhtar in the year 1989 at Rawalpindi. At present it is not known where is Mst. Nasim Akhtar. In the year 1992 when Surriya Firdous Shakir Nawaz in connection with a criminal case, Shakir Nawaz managed to keep Mst. Surriya in his house. Mst. Surriya was having with herself a daughter Zahida Batool from her real husband Rafaqat Hussain. Mst. Surriya gave birth to two other daughters Zohra Batool and Zeba Batool from her illicit relationship with Shakir Nawaz. Shakir Nawaz had given out to the Mohalla people that Surraiya was his wife. The first daughter of Surraiya Firdous is still in possession of applicant Shakir Nawaz, whom Shakir Nawaz had sent to his parents in Punjab. Shakir Nawaz also developed intimacy with Abida Bashir, whom he got admitted in an Institute for study of the course of a Lady Health Visitor, and thereafter Shakir Nawaz and Mst. Abida Bashir claimed that she is a doctor. Mst. Surriya Firdous on account of Shakir Nawaz's intimacy with Abida, left his house and started living in Edhi Centre.
9. On 22-7-1998, Shakir Nawaz was arrested by the police of Gulistane-Jauhar in a case registered through F.I.R. No,83 of 1988 under section 382/34, P.P.C. It is also claimed by the police that Shakir Nawaz is an accused in another case registered through F.I.R. No,78 of 1989 for offences under sections 420, 468 and 34, P.P.C. And his arrest in the second case was shown on 30-7-1998. The investigation in these two cases was in progress. It was reported by the police that Mst. Surraiya Firdous was the real mother of the two minor detenues.
10. We have heard the learned counsel for the parties as well as the parties themselves. Fortunately, the father and sister of applicant No,2 were also present in Court and the father identified the applicant No,2 to be his daughter Abida Bashir, as did her sister. They both disclosed orally before us that the two minor girls were not the daughters of applicant No,2, who was falsely claiming and impersonating as Nasim Shakir. To us, this case does not appear to be one of unlawful or wrongful confinement of the minors, but a dispute over maternity of the two minor girls. Prima facie, we find force in the report of the police, which is the result of a detailed investigation and find that Mst.
Surraiya Firdous (written as Mst. Surriya Khatoon in the title) is the real mother of the two minor girls. This finding is, however, tentative and subject to a decision by a Guardian Court on evidence from both the parties. For the purpose of decision of this Criminal Miscellaneous Application, since we have come to the conclusion that the two minor girls are the daughters of Mst. Surraiya Firdous, we are inclined to hold that Mst. Surraiya Firdous is entitled to the custody of the minors. The applicants are at liberty to approach the Guardian Court, if they claim that Mst. Surraiya Firdous is not the real mother of the minors. In case the Guardian Court is approached and it comes to a conclusion contrary to our tentative finding, the minor girls will be produced before the Guardian Court by Mst. Surraiya Firdous (after she gets the custody of the minors from Darul Aman on furnishing surety in the sum of Rs,50,000 to the satisfaction of the Nazir of this Court). The Darul Aman Authorities shall hand over the custody of minor babies Zohra and Zeba after the surety had been accepted by the Nazir and the Nazir. Shall see that the minors are handed over by the Darul Aman Authorities to Mst. Surraiya Firdous without delay. Mst. Surraiya Firdous shall not remove the girls from the jurisdiction of Karachi Division for a period of six months. This shall be a condition in the surety bond.
' With the above observations, this Criminal Miscellaneous Application as well as Miscellaneous Application No,1135 of 1998 stand disposed of.