1. MIR HAZAR KHAN KHOSO, J.-The petitioner Mst. Rahima in this constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan has impugned the order dated 2nd May 1978 passed by the learned Additional District Judge, Quetta dismissing the appeal filed by her under section 47 of the Guardians and Wards Act, 1890 read with section 14 of the West Pakistan Family Courts Act, 1964. Earlier the Civil Judge and Family Court, Quetta on an application under' section 25 of the Guardians and Wards Act had ordered the petitioner Mst. Rabima to hand over custody of their minor daughter Mst. Sakina to respondent Abdul Khaliq. She therefore filed the appeal before the District Court.
2. The short facts as disclosed by the petitioner in his writ petition are that the petitioner and the respondent were married 13 years ago. Out of the wed-lock, a son named Bari and a girl named Sakina were born to them. However some disputes arose between the husband and wife, whereby they could not remain within the bondage any more. Ultimately the dispute ended in separation by a compromise. By the agreement girl Sakina was allowed to remain with her mother and the son Bari was to remain in custody of his father. After obtaining divorce the petitioner married with a stranger in Quetta Town. Sometime after the separation again a dispute arose between the respondent and the petitioner over custody of minor Mst. Sakina. Consequently on 23rd August 1973 respondent Abdul Khaliq filed an application under section 25 of the Guardians and Wards Act against the petitioner in the Court of Civil Judge and Family Court, Quetta requesting for custody of minor child Mst. Sakina. The petitioner contested the applica--tion. However, the learned Civil Judge and Family Court allowed the application of the respondent and ordered the petitioner to hand over the custody of child to her father, the respondent. Against this order, the petitioner filed an appeal in the High Court of Baluchistan. The appeal was disposed of by one of us on technical ground of maintainability and it was held that the appeal was maintainable before the District Judge, Quetta and the petitioner inadvertently had filed it in High Court. In the order it was observed that the District Judge may dispose of the appeal on merits but may not dismiss it on technical ground of limitation. It is established from the record that the petitioner thereafter went into slumber. After a period of five months, she awakened from slumber and filed appeal on 18th November, 1977 in the District Court, Quetta. The, record indicated that the appeal was transferred to the learned Additional District Judge for disposal. The learned Additional District Judge subsequently dismissed the appeal on preliminary ground of limitation. This order of the learned Additional District Judge has given cause to the petitioner to file this constitutional petition before High Court.
3. Mr. Jamil Khan Sherwani appeared for the petitioner Mst. Rahima.
4. Mr. Aslam Chishti, Advocate represented Abdul Khaliq the respon--dent.
5. At the outset, Mr. Sherwani the learned counsel for the petitioner produced an affidavit alleged to have been sworn by Mst. Sakina the ward, stating that she had attained the age of puberty and she had the option of living with her mother or father or to get married according to her own choice.
6. However, Mr. Sherwani failed to convince us as to how this affidavit was to be taken into consideration by us. Indeed, it was even doubted if it could be kept on the file of the petition, what to talk of its being taken into consideration at this stage. However without touching its merits or demerits, we keep it on the file. That is all we could do.
7. Mr. Sherwani next abortively attacked the impugned order of the learned Additional District Judge.
8. He vehemently agitated that the learned Additional District Judge had lightly ignored the observation regarding limitation made by the High Court. Besides, the learned counsel urged that the Judge lightly surpassed the mandatory provisions of sections 5 and 14 of the Limitation Act. On these accounts, the learned counsel argued that the impugned order was illegal and void and as such passed without lawful authority or jurisdiction. On the other hand, Mr. Mohd Aslam Chishti, the learned counsel for the respondent very efficiently counter-attacked the contentions of Mr. Jamil Sherwani. He submitted that the learned Additional District Judge indeed had passed a legal and just order.
9. It was reiterated by Mr. Chishti and not denied by Mr. Sherwani that the appeal was hopelessly time-barred. Under such circumstances, it would be indeed a fallacy to say that the order of the Additional District Judge holding it as time-barred was either bad in law or illegal. Mr. Sherwani candidly did not dispute the jurisdiction of the learned Additional District Judge. Once having Jurisdiction to decide a matter, it was within the competence and authority of the learned Additional District Judge to have decided the matter in any way. It was, therefore within his jurisdiction to have decided the appeal in any way as he did and treated the appeal as time- barred.
10. The learned Additional District Judge has in unequivocal words said that the petitioner had not even moved the Court for condoning the delay caused in filing of the time-barred appeal. We were indeed surprised to find so in the impugned order. During his arguments Mr. Chishty also pointed it out. However, Mr. Sherwani stressed that indeed application for condon--ation of the delay was moved before the learned Additional District Judge, but it was not taken into consideration by him.
11. With the help of Mr. Chishti, we perused the record. However we found such application on the record. But it is strange that it was moved on 3rd May 1978 i.e. One day after the decision of the appeal. How that application came on the record? For what purpose, it was movedIndeed it is a problem to be solved. However we would not like to go into its depth. But we are convinced that such application was not moved at the time of filing of the appeal or even thereafter till the decision of the matter. It would be therefore fallacy to say that the learned Additional District Judge had not taken into consideration the application or ignored the provisions of section 5 or section 14 of the Limitation Act.
12. Indeed, the observations of the High Court that the appeal may not dismissed on technical grounds of limitation, were made in respect of the time that the respondent had already spent in wrongly filing the appeal in the High Court or for some reasonable time that he might have taken for filing the appeal before the Court of District Judge. However such observation was made on compassionate ground, as future of a minor child and that too of a girl was involved in the matter.
13. It was only a suggestion made by the High Court. It was indeed within the competence of learned Additional District Judge to have decided the issue on merits and according to law. Besides the observation had not given any guarantee to the petitioner to present the appeal at any time of her own choice and will. Under such circumstances, the observation made by the High Court would neither help nor come for the rescue of the petitioner.
14. We have already held that the learned District Judge had the jurisdiction to pass the impugned order. Having the jurisdiction to decide matter, he had the jurisdiction to decide it rightly or wrongly.
15. However this Court in its constitutional jurisdiction would not sit as Court of appeal, to import its opinion on this decision of the District Court. That jurisdiction of the High Court is limited one.
16. Interference by High Court in judicial review in its constitutional jurisdiction is permissible in cases, where a subordinate Court, or Tribunal, or an executive authority, exercise C its jurisdiction or authority not vested in it or in exercising its jurisdic--tion or authority, vested in it fails to exercise its jurisdiction or authority, or in the exercise of jurisdiction commits material irregula--rities, misreads evidence or passes orders against the record, or on no evidence etc. However on these principles, voluminous law has been laid by superior Courts of our country. We need not go in its details.
17. However this fact is established that the case of the petitioner is not covered by any of these principles and we are satisfied that no substance or material has been produced by the petitioner before pus to call for the inter--ference of this Court under its constitutional jurisdiction.
18. Under such circumstances, the petitioner merits dismissal.
19. In result the petition is dismissed. However in peculiar circumstances of the case, we will not pass any order as to costs.
20. ZAKAULLAH LODW, J.-I agree.