' Abdul Malik, petitioner, was married to Mst. Gule Rehmana (respondent No.1) daughter of Ejaz Ahmad Khan, respondent No.2 on 23-7-1987. Out of the wedlock, a daughter named Marshal was born on 29-10-1989. The parties parted ways, consequently resulting in divorce by the petitioner to respondent No.1 on 13-5-1997. Then, on 9-9-1998, the petitioner approached the learned Guardian Judge, Lahore under section 25 of the Guardians and Wards Act, seeking custody of the minor daughter who was with the mother, respondent No.
1. Respondent No.1 filed her written statement. Out of the pleadings of the parties, four issues were framed. The parties were put to trial. Examination-in-chief of P.W.1 was recorded on 26-5-2000, and the cross-examination was reserved till the next following day. On 27-5-2000, the parties arrived at a compromise. Abdul Malik, petitioner volunteered to make a statement which was recorded in Urdu, rough translation of which is to the following effect:-- "Stated that if the respondent can hand over to me the minor twice a month, I am ready to bear the expenses of return air ticket of Peshawar; that I can also deposit, an amount of Rs.1,00,000 for investment in some profit bearing scheme in the name of the minor so that on attaining the age of majority she should get the same; that I am ready to pay maintenance for the minor; that on festivals like Eid and on birth days of the minor, she may be handed over to me and I would bear her expenses; that if the respondent would hand over the minor to me as per schedule to be chalked out by the Court for regular meetings and on festivals, I am ready to abide by all the conditions of the respondent, and shall have no objection to the minor's permanent custody with the respondent."
' Respondent No.1, in turn, accepted the offer/statement of the petitioner, and undertook to abide by the schedule to be settled by the Court regarding the meetings etc., of the minor with the petitioner, and disposal of the petition accordingly. The statements of the parties bear their signatures and thumb-impressions as well as signatures of their respective counsel.
2. The then learned Judge, Family Court, Lahore, seized of the matter, disposed of the petition vide the impugned order, dated 27-5-2000. The schedule of meeting of the minor with the petitioner father was settled as follows:--
(1) The petitioner father would take the custody of the minor from Lahore Airport on the evening of Friday of the second week of the month and would return the minor to the custody of the respondent mother on the next following Sunday evening at Lahore Airport through Peshawar- Lahore bound flight with a week's intimation in advance prior to visitation. The schedule could be changed with consent of the parties, but the mother would be bound to hand over custody to the father for a period of two days in a month.
(2) For 10 days, during summer vacations and 4 days during winter vacations, the first day of Eid- ulZaha and on the birth day, the minor was to be handed over to the father for which the petitioner-father was to arrange return ticket for the minor.
(3) The respondent was to open an account in any scheduled Bank at Peshawar or at any other suitable place, with the consent of the petitioner, who was bound down to deposit Rs.20,000 by the 5th of each month.
' These directions were quite in consonance with the compromise arrived at between the parties, as reflected in their statements, dated 27-5-2000. The learned Judge, however, proceeded to further observe in paragraph 8 of the order as follows:-- "I may further be permitted to mention that the father of the respondent also undertakes to deposit Rs.3,00,000 in the name of minor. The said amount of Rs.3,00,000 was allegedly invested by the applicant at the time of constructing the respondent's house. The father of respondent, however, maintains that the said payment would be voluntarily deposited in the name of minor, therefore, the same may not be made a part of the proceedings. The parties further undertook that with effect from this date, they would not agitate any claim against each other and the matter would be deemed to have been settled for all times to come. The Court expects that the father of the respondent would also deposit Rs.3,00,000 in the name of minor keeping in view the alleged participation of the applicant in constructing the house of the respondent."
3. On coming to know of the above extracted portion of the order, Mst. Gule Rehmana, respondent No.1 filed an application on 4-7-2000 before the learned Guardian Judge for deletion of the afore- quoted paragraph 8 of the judgment. A similar application was filed on 16-7-2001 by Ejaz Ahmad Khan, respondent No.2, who is father of respondent No.1, with the prayer that the said paragraph should be scrapped from the judgment. Both the petitions were heard by the learned successor Guardian Judge who by his impugned order, dated 31-10-2002, while otherwise keeping intact the judgment, dated 27-5-2000 of his predecessor, directed deletion of the offending paragraph 8. The petitioner filed an appeal which has since been dismissed by the learned Additional District Judge vide order dated 24-4-2003. Hence, this Constitutional petition to assail the afore-mentioned orders.
4. I have heard the learned counsel for the parties and have also scanned through the record.
5. Admittedly, the petition filed by the petitioner seeking custody of his minor daughter was not adjudicated upon with reference'to the pleadings and the evidence. The judgment, dated 27-5- 2000 delivered by the learned Guardian Judge, stemmed out of a compromise arrived at between the parties, which was reflected in their statements recorded by the Court. On the record, there is no statement of Ejaz Ahmad Khan, respondent No.2 undertaking to deposit Rs.3,00,000 in the name 'of the minor. There is no proof on the record about the petitioner paying invested Rs.3,00,000 on the construction of the respondent's house. Moreover, Ejaz Ahmad Khan, respondent No.2 herein, was not a party to the petition before the learned Guardian Judge. It is settled law that where an order has been passed against a person without his knowledge, particularly when he has been burdened with a liability, it would be a sufficient cause for re-opening or vacating the same.
Doubtless, the learned Guardian Judge had observed that the father of the respondent undertook to deposit Rs.3,00,000 but, as shown above, there is no such undertaking on the record. Moreover, from the observations of the learned Guardian Judge himself, viz: "The Court expects that father of the respondent would also deposit Rs.3,00,000 in the name of minor keeping in view the alleged participation of the applicant in constructing the house of the respondent" it appears that the same was a mere wishful thinking on the part of the learned Guardian Judge, otherwise it had no factual foundation. The learned successor Guardian Judge was, therefore, right in expunging the offending paragraph 8 from the judgment, and the learned Additional District Judge, Lahore, was justified in not interfering with the order.
6. For the foregoing reasons, the impugned orders do not suffer from any fundamental vice so as to attract Constitutional jurisdiction. The writ petition, being devoid of merit, is dismissed, leaving the parties to bear their own costs.