1994 PLP 2322 (MLD)

MUHAMMAD BASHIR KHAN JEHANGIRI, J.

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, is directed against the judgment dated 11-11-1993 of the learned District Judge, Peshawar, whereby appeal taken to his Court by Muhammad Shoaib and two others (respondents) was accepted and order of the. learned Guardian Judge, Peshawar, dated 13-5-1991 granting custody of Mst. Fatima, minor daughter, to the petitioner was set aside and the application filed by the petitioner was dismissed. 2.. Briefly stated, the facts of the case are that during delivery of Mst. Fatima Nijat, minor daughter of the petitioner, from his first wife, namely, Mst. Nijat Begum, the latter expired and the minor daughter was voluntarily left to be nursed and brought up by Mst. Anwara, maternal grandmother of the minor. On 8-1-1989, after about three years the petitioner instituted an application under section 25 of the Guardians and Wards Act (VIII of 1890) for the custody of his minor daughter. The application was seriously resisted by Mst. Anwara and her two sons Muhammad Shuaib and Humayun. The learned Guardian Judge, as stated earlier, on examination of evidence produced before him found that the petitioner being father and natural guardian was entitled to the custody. of his minor daughter

2. Muhammad Shoaib and two others, feeling aggrieved, went in appeal which, as observed, was accepted by the learned District Judge, Peshawar. The learned appellate Court observed that the "welfare of the minor girl, who remained in the custody of ~ her maternal-grandmother Mst. Anwara, which included the right of personal supervision, could not be denied to her being her maternal-grandmother and next natural guardian to her mother". This `finding was reached by the learned appellate Court on the ground right from the death of her mother, the minor girl had remained in the custody of her .maternal-grandmother Mst. Anwara. Apart from this, the minor when. summoned by the Court was asked, about her choice arid it was upon her wishes that she was allowed to remain in the custody of grandmother. It was further observed "that, Gul Saheb had contracted a second marriage and, therefore, the minor could not be properly looked after by her step-mother who had got a child of her own from the petitioner". Referring to para. 353 of Muhammadan Law it was concluded that "following father or the mother, the custody of a minor boy under the age of seven years and the girl till attaining puberty, belong to maternal-grandmother etc." In this background it was emphasised that "the minor girl was in the custody of her real grandmother since her birth and because of a long association with her, she had developed affiliation equivalent to that of her mother and further that during this entire period the minor had never met with her father and did not know him"

3. As there is no remedy of second appeal or revision available to the petitioner, the findings at variance recorded by the two Courts below have been assailed in this Constitutional petition.

4. We have heard Mr. Hameedullah Khan Bangesh, learned counsel for the petitioner at length.

5. Much of the facts are not in dispute. It is conceded that Mst. Fatima, minor daughter of the petitioner, was born to Mst. Nijat Begum, the first wife of the petitioner, who unfortunately died during the delivery of the minor girl. It appears that the petitioner had no female member to .look after the minor and, therefore, he was obliged to solicit the assistance of the real grandmother of the minor. She had been with the .answering respondents since then. It also appears from the impugned order of the learned District Judge that the petitioner had never been visiting the minor during this entire period of over three years. It was on this account that when the minor was summoned to the appellate Court, she did not recognize him even at the age of seven years. It is very curious that being a father, the petitioner had not at all visited the minor notwithstanding the death of her mother. It was only after he contracted the second marriage that the petitioner deemed it proper to knock at the door of the Guardian Judge for her custody. During this entire period. the grand-mother had professed motherly emotions qua the minor. Even the minor had developed, as rightly observed by the learned District Judge, affiliation equivalent to that of her mother. Again there is a step-mother in the house of the petitioner who during the litigation had delivered a child of her own from the petitioner. The possibility of step-motherly, treatment being meted out to the minor girl cannot, therefore, be excluded which consideration has rightly weighed with the learned appellate Court in setting aside the order of the learned Guardian Judge granting custody of the minor daughter to the petitioner.

6. In our view the exercise of appellate jurisdiction by the learned District Judge by virtue of the impugned order does not suffer from any defect so as to call for interference in the exercise of our Constitutional jurisdiction by this Court. The finding of the learned appellate Court is not shown to have been the result of misreading or non-reading of any evidence. Again the controversy as to whether the petitioner should or should not be entitled to -the custody of the minor under section 25 of the Guardians and Wards Act, 1890 is essentially a question of fact which had been adjudicated upon by the learned District Judge who was competent to decide the same. It is settled law that the decision on a question of fact made by a competent Tribunal can be challenged before the High Court under Article 199 of the Constitution only on the ground that it is a case of either no evidence or of so glaring a misreading or non-reading of evidence as shocking to the conscious of a prudent man; otherwise the appreciation of evidence like the appellate Court is not the function of the High Court while dealing with the case in extraordinary jurisdiction.

7. There is thus no force in this writ petition. The same is dismissed in limine A.A./1601/P Petition dismissed.