1. Through this constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has assailed the vires of order dated 21.06.2017 passed by the learned Additional Sessions Judge/ Child Protection Court, Rawalpindi (hereinafter referred to as the “Court”), whereby the application filed by respondents No.1 & 2 under Section 23(4) of the Punjab Destitute and Neglected Children (First Amendment) Act, 2007 (“Act”) was accepted and the custody of a child Wajiha Fatima was ordered to be handed over to respondents No.1 & 2 taking her custody from the petitioner.
2. This unfortunate matter relates to the custody of 6-1/2 years old abandoned child Wajiha Fatima (“child”). On 08.01.2014 Jamil Shah, Assistant Sub Inspector, Police Station City, Attock handed over the child to the petitioner under the orders of the learned District & Sessions Judge, Attock. The efforts were made to trace out parents of the child, on 13.01.2014 a proclamation was published in the ‘Daily Jang’, Rawalpindi and public was also requested through various TV channels to furnish information regarding the parents of the minor. At that time, the minor was only two and a half years old and since then she is in continuous custody of the petitioner.
3. The petitioner is a Child Protection Officer at Punjab Protection and Welfare of Destitute and Neglected Children Bureau, Rawalpindi (hereinafter referred to as the “Bureau”). Respondents No.1 & 2 (hereinafter referred to as the “respondents” where the context so requires) viewed pictures of the child on Facebook and decided to adopt the child.
4. The respondents established contact with the petitioner and after meeting the child for a couple of time, they filed a petition for the custody of the child before the Court on 24.02.2014. The matter was contested by the petitioner as she was interested in having the custody of the child and she filed an independent petition requesting the Court that she be given permanent custody of the child. During these proceedings, a person namely Muhammad Kashif, assuming the child to be his missing daughter, filed an application before the Court for custody of the child. The Court ordered for requisitioning the FIR lodged by said Kashif regarding abduction of his daughter and directed the DNA test to be conducted to ascertain paternity of the child. The DNA report came in negative, as a result Muhammad Kashif stopped pursuing the matter.
5. Thereafter, the Court after assessing respective stance of the parties vide order dated 20.12.2014, declined request of the respondents to have custody of the child The order was challenged by the respondents by filing a review petition under Section 23(4) of the Act, which was dismissed by the Court on 17.04.2015 and the custody of the child was ordered to remain with the petitioner. The order was challenged by filing a constitutional petition (W.P. No.1449 of 2015) before this Court. The petition was dismissed after hearing the parties, vide judgment dated 01.07.2015. The respondents further assailed the judgment before the august Supreme Court of Pakistan in a civil petition for leave to appeal, which was accepted, the petition was converted into appeal and was disposed of with the consent of the parties on 23.02.2017. The Apex Court by setting aside the judgment and orders under challenge, passed a direction to the trial Court to decide the matter of custody of the child finally in terms of the Act, after hearing the parties and on the basis of material placed before the Court by recording evidence within a period of three months, uninfluenced by the order dated 20.12.2014.
6. In the post-remand proceedings, the respondents filed a formal application for the custody of the child, it was contended in the petition that the welfare of the child lies with the respondents; that respondent No.1 utilized all his resources being a prominent politician and a Senator to trace out the parents of the child and during this time the respondents have been interacting with the child and gave her gifts on different occasions; that in case the custody of the child is handed over to the respondents, the child will be brought up in the most suitable conditions on account of the social status of the respondents, their educational background and financial well-being; that the peaceful and conducive atmosphere in the house of the respondents is no match to the circumstances in which the petitioner is living.
7. The learned trial Court after procuring a reply from the petitioner, framed necessary issues from divergent pleadings of the parties. The evidence from either side was recorded and the Court after hearing the learned counsel for the parties accepted the application of the respondents vide order dated 21.06.2017 and the custody of the child was directed to be handed over to the respondents, hence this petition.
8. The learned counsel for the petitioner contends that the petitioner established that it was in the welfare of the child to live with her; that the petitioner is an educated lady having a degree of M.Sc Sociology and is a Government Servant serving in grade-17; that the petitioner despite 12 years of her marriage is still issueless and can look after the child with undivided attention; that the child has developed attachment with the petitioner and it is not in the interest of the child to disturb her custody at this stage, when she is living happily with the petitioner; that the petitioner and her husband are earning hands and can easily afford to meet all the expenses of the minor and provide her best education; that respondent No.1 being a senior citizen in advance age of 75 years suffering from heart ailment is not a suitable person to have custody of the child; that respondent No.1 having his own daughters has not shown any inclination towards them and has spent most of his life without being in touch with them; that the impugned order was passed without considering the welfare of the child in its true perspective.
9. Contrarily, the learned counsel for the respondents by supporting the impugned order submits that the Court rightly granted custody of the child to the respondents who are the best suited persons to have her custody, keeping in view their social status and being well placed individuals in the society; that respondent No.1 is a known political figure, he is a Senator, a writer and is financially very stable; that the respondents have good educational background and if the child is brought up in the custody of the respondents, she will groom into a better person; that the conduct of the petitioner and the manner she kept the child in an illegal way dis-entitles her from the custody of the child; that the atmosphere in the house of the petitioner is not suitable for the child coupled with her limited financial resources compared to the resources of the respondents, it is not in the welfare of the child to live with the petitioner.
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