IN THE COURT OF CIVIL JUDGE AT KARACHI
CENTRAL
Civil Suit # /2003
1. Ghulam Muhammad
2. Mrs. Shahnaz ………………………. Plaintiffs
VERSUS
1. Ansar
2. Farhat ……………..……….….
Defendants.
SUIT FOR DECLARATION AND PERMANENT INJUNCTION
The plaintiffs above named beg to
submit as under:-
1.
That the plaintiff # 2 is wife of plaintiff # 1, while
defendant # 2 is wife of the defendant # 1.
2.
That on 22-10-1989, the plaintiff # 2 felt Pain and she was admitted to Abbasi
Shaheed Hospital’s Guinea-Ward in connection with her delivery, where she gave
birth a female child and the infant was weak. So it was recommendation by Dr.
Farzana, for admission in the nursery ward.
3.
That the defendant # 2 was also admitted in the
hospital and she also gave birth a female child that too was admitted in the
nursery ward. The defendant # 1, fraudulently and by deceitful manners took
over the custody of female child from nurse Sajida Malik, who was actually
daughter of the plaintiffs and absconded from the hospital. After a while
daughter of the, plaintiffs Miss Rozina along with plaintiffs # 1 went to
nursery ward, where nurse Sajida Malik showed them 2nd female
baby,which was actually baby of defendants, who later on died and the baby
which was shown to plaintiff # 1 and her daughter of plaintiffs was disowned by the daughter and also by the
plaintiff # 1.
4.
That there was hue and cry in the hospital, but till
that moment, defendant # 1, had escaped his good, the plaintiffs were advised
not to report the matter at Police
station as the matter will be solved sooner, as the administration is
going to call the defendant # 1 and it was assured that the baby will be handed
over to the plaintiffs very soon definitely.
5.
That in the month of October, 1989, Dr. Syed Shahid
Ali, Incharge of Pathology Department of Abbasi Shaheed Hospital, Karachi, was
nominated as an Inquiry Officer, by the Medical Superintendent of Abbasi
Shaheed Hospital. The inquiry report was submitted in the Court of Learned
District and sessions Judge, Karachi Central, wherein it was proved that the
baby in the custody of defendants is
real daughter of the applicants and further before inquiry committed, defendant
# 1, undertook that he will return the baby to the plaintiffs, but
subsequently, he willfully failed to comply with his words. (Photo state copy of inquiry
report is appended herewith and marked
as annexes ‘A’).
6.
That the defendant #
1 and 2 in spite of the
undertaking given before the Inquiry Officer (Dr. Syed Shahid Ali) failed to honor their undertaking as the baby
was not handed over, to the plaintiffs. Ghulam Hussain brother of the
plaintiff # 2 submitted an
application to the Inspector General of
Police Sindh and that application was converted into First Information Report
bearing # 13/1990. The First Information Report. was lodged under section 365,
Pakistan Penal Code at Police Station Nazimabad. That the plaintiffs as well as
defendant# 1 and 2 all together with the
child presently named Fatima Shaikh were referred by the learned Sessions Judge,
Karachi Central, for blood group test. On 03-01-1991 at Agha Khan Medical
University, Karachi, Dr. Muhammad Khursheed, Chairman Pathology Department, in
presence of the counsels of the parties, took samples of blood of plaintiffs as
well as defendant #1 and 2 all together
of the disputed child Fatima Shaikh. On the basis of chemical analysis,
Parenthood of defendant #1 and 2 to baby
Fatima Shaikh was not proved as it was observed that since baby Fatima is
carrying antigen (E) which is absent in the defendant #1 and 2 and also ‘S’ is absent in baby Fatima Shaikh.
(Photo state Copy of deposition of Dr. Muhammad Khursheed and report of blood
test, are appended herewith and marked as annex ‘B’ & ‘C’).
7.
That a case under section 365, Pakistan Penal Code was
tried by the learned II Judicial Magistrate, Karachi Central. The learned magistrate on 11-04-1998, pronounced its
judgment wherein, defendant # 1 was acquitted, with the findings, that the
offence u/s. 365, Pakistan Penal Code is
not proved beyond the shadow of doubt as case of the defendant # 1 falls under
the exception of section 362, Pakistan Penal Code, however it is proved by the
reports of the doctors that Fatima Shaikh is not the daughter of accused/
defendant # 1 and applicants may seek remedy from proper Guardian Court and
also recover damages from the authority of the Abbasi Shaheed Hospital.(Photo
state copy of the judgment is attached and marked as annex ‘D’).
8.
That there is
finding of the learned magistrate that in fact offence under section 365,
Pakistan Penal Code is not proved, however Fatima Shaikh is not daughter of the
defendant # 1 and 2 thus custody of
Fatima Shaikh with them has become
illegal and without lawful authority as being stranger and they are not
entitled to retain the minor (Fatima Shaikh).
9.
That previously a Civil Suit # 614/1992, for the
custody of the child was filed by the ,plaintiff #2 against the defendant
#1 but the same was not pressed as
defendant #1 took plea that Civil Court have no jurisdiction to entertain
Guardian Ward matter and further
learned Civil judge held that the
pertains to Guardian Court.
(Photo state copy of Civil Suit and
order dated 21. 7. 1996 is
appended and annexed as E and F).
10.
That the plaintiff
# 2 prior to filing Guardian Ward
application after judgment of criminal case
moved an application u/s. 491, Cr. P.C., before the Honorable High Court
of Sindh against the defendant # 1 but the same was withdrawn as it was allowed
by the Honorable High Court in its order to approach the proper Forum for
custody of minor Fatima Shaikh. (Photo
copy of order is appended as G ).
11.
That the plaintiffs filed a Guardian Ward application
# 616 of 1998, where the defendant #1 and 2
filed their written statement along with counter affidavit to
application under section 12(2) Guardian and Ward Act. In their, counter
affidavit the plea was taken that the
Guardian Judge has no jurisdiction to entertain such matter, however the learned Guardian Judge rejected the Plea of
the defendants and it was decided that this point shall be determined at the
time of disposing of the main application as this will be taken as one of the
issue but application of the plaintiffs was granted to the extents of meeting
of the plaintiffs with the Ward and the defendant #1 and 2 have been bringing the Ward in the learned
trial court. for meeting. (Photo copy of order dated 22.4 1996 is appended herewith and annexed as H).
12.
That on 03-11-1999, defendant #1 and 2 filed an application under order VII Rules
11, Code of Civil procedure, where in it was prayed that application may be
rejected .counter affidavit to this
application was filed by the plaintiff # 1 . That the application was heard ,
wherein Guardian Ward application filed
by plaintiffs was rejected (Photo state
copy of the application, counter
affidavit and order passed there
on are appended herewith and annexed as
‘I’, ‘J’, & ‘ K’).
13.
That the order passed by learned Senior Civil Judge
Karachi Central was called in question in Const. Petition # 395/2000 in the
High Court of Sindh at Karachi. On 05.03.2003
petition was disposed off with observation that plaintiffs may file suit
for declaration regarding parentage of the baby, hence this suit as directed by
Honorable High court of Sindh ( Photo
stat copy of order is appended here with and marked as ‘L’ )
14.
That cause of action for the purpose of this suit
accrued to plaintiffs against the
defendants on 5th March as
directed d by Honorable High Court in its order within the local limits of
Police Station Nazimabad as the defendants are residing therein along with baby
and the same is within the terrestrial jurisdiction of this Honorable court.
15.
That suit for the purpose of Declaration is valued at
RS 200 and RS 200 for the purpose of injunction, hence no court fee is required
to be affixed.
P R A Y E R
The plaintiffs therefore pray that this Honorable
Court may pleased to issue writ / direction as under:-
a)
To declare that Baby Fatima, who is presently in the
custody of defendants is real daughter of plaintiffs only
b)
Permanently restrain the defendants from removing the
Baby fatima from Karachi Division and handing
over to any person.
c)
Any other equitable relief (s) as this Honorable Court
may deem fit and proper under circumstances of this constitution petition.
Plaintiff # 1
Plaintiff # 2
V E R I
F I C A T I O N
We, Muslim, adult, having resident of House,
Karachi/ Plaintiff # 1, do hereby verify on Oath that what ever stated above is
true and correct to the best of my knowledge, information and belief .
D e p o n e n t .
The contents of this constitution petition were firstly audibly read
over and explained to the deponent in Urdu as he is ignorant from the language
of English in which this petition was reduced into written and now it appears
that the plaintiff # 1 has understood the contents of this petition and admits
to be true and signed before.
Commissioner
for taking affidavit.
APPLICATION UNDER ORDER XXXIX
RULE 1 & 2 READ WITH SECTION
151 CODE OF CIVIL PROCEDURE
On
consideration of facts and grounds disclosed in the accompanying affidavit, it is most respectfully prayed on
behalf of the plaintiff above named that this Honorable court may be pleased to
grant injunction, restraining, therein to the defendants, their agents persons
working for them and on their behalf, attorneys, assigns, administrators, legal heirs
from removing the baby Fatima from Karachi Division and handing over to
any person , pending disposal of this suit.
An ad interim injunction is to be
solicited mean solicited mean while in terms of main prayer in the
greater interest of justice and equity.
Karachi. Advocate for the
plaintiffs
Dated: 10-04-2003
A F F I D A V I T
I, Muslim,
adult resident of, Karachi, do hereby
state on oath as under:-
1.
That I am
plaintiff # 1 in the above matter, as
such am fully conversant with the facts thereof .
2.
That the accompanying application under Order
XXXI Rule 1 & 2 read with Section
151 Code of Civil Procedure has been
drafted and filed by my counsel under my specific instructions, contents
therein are true and correct.
3.
That I have good prima facie case,balance of convince
lies in my favor as I am real father of the baby Fatima and her custody with
defendants is illegal as they have no relation with the baby with baby Fatima.
4. That for the seek of brevity, I adopt the contents of accompanying application as well as main plaint as an integral part and parcel of this affidavit and in order to avoid duplication do not repeat the same.
4. That for the seek of brevity, I adopt the contents of accompanying application as well as main plaint as an integral part and parcel of this affidavit and in order to avoid duplication do not repeat the same.
5.
That I shall be seriously prejudiced and suffer an
irreparable until accompanying application is granted.
6.
That whatever stated above is true and correct to the
best of my knowledge and belief.
Karachi
Dated:
10-04-2003. DEPONENT.
APPLICATION
UNDER SECTION 151
CODE OF
CIVIL PROCEDURE, 1908
On
consideration of facts and grounds, incorporated in the accompanying affidavit as well as in
the plaint, it is most respectfully prayed on behalf of
the plaintiffs above named that this Honorable Court may kindly be pleased to
direct the defendants to produce baby
Fatima, who is in their custody once in
a week or as this honorable court may deem fit and allow the plaintiffs and
their relatives/children to have a
meeting with the baby in court room at
least one hour on every visit as this meeting was allowed in the office of
Ansar Burney welfare Trust as well as in Guardian Ward Application.
An ad interim order is to be solicited
meanwhile in terms of main prayer in the interest of justice and equity.
Karachi Advocate
for the plaintiffs.
Dated:
10/04/2003.
A F F I D A V I T
1.
That I am plaintiff # 1 in the above matter as
such am fully conversant with the facts there of and able to depose the same.
2.
That the accompanying application under section
151 Code of Civil Procedure has been drafted and filed by my counsel under my
specific instructions, contents there in are true and correct to the best of my
knowledge, information and belief.
3.
That I adopt the contents of main plaint
as an integral part and parcel of this affidavit.
4.
That I shall be seriously prejudiced and shall
suffer an irreparable loss, until accompanying application is allowed.
5.
That whatever stated above is true and correct
to the best of my knowledge and belief.
Karachi
Dated: 10-04-2003. DEPONENT.
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