M. ASHRAF LEGHARI, J.~ The petitioners through this petition has sought the following reliefs:- "The petitioners therefore pray that this Honourable Court may pleased to issue writ direction as under:-
(a) To set aside the order dated 20th May, 2000, annexed with the void having no legal affect and direct the respondent No.3 to proceed and try Guardian Ward Application No. 616/98 and decide the same on merits after recording evidence.
(b) Any other equitable relief(S) as this Honourable Court may deem fit and proper under circumstances of this Constitution petition."
2. The brief story of this case is that petitioner No. 2 is wife of petitioner No.1 whereas respondent No. 2 is wife of respondent No.1. Petitioner No. 2 and respondent No.2 were admitted in hospital for delivery. Both the ladies gave birth to female childs. Lt is stated in the petition that those female childs were changed by respondents Nos. 1 and 2 fraudulently in collusion with hospital staff and the baby of petitioners Nos. 1 and 2 was given toto respondents No.1 and 2. On the complaint of petitioners, Dr. Syed Shakir Ali Incharge of Pethology Department of Abbasi Hospital Karachi was nominated as inquiry officer in October 1989. The inquiry^ report was submitted in the Court of learned District Judge, Karachi Central which indicated that the baby in dispute was real daughter of petitioners. After that respondents promised that they will return the baby to petitioners but subsequently' they failed to stand by their promise and the FIR was lodged under section 365, PPC at Police Station Nazimabad on 13.1.1990. This case was investigated by the police and the challan was submitted in Court. The trial proceeded in the Court of IInd Judicial Magistrate, Karachi Central but ultimately respondent No. 1 was acquitted as the offence under section 365, PPC could not be proved. However, the finding was given in that judgment that the baby Fatima Sheikh was not the daughter of respondents Nos. 1 and 2 but the petitioners should approach the proper forum having jurisdiction in the matter. Ultimately the civil suit for the custody of the minor was filed. The said suit was also dismissed with the directions to the petitioners to approach the Court of Guardian and Wards Act which are established for that special purpose.
3. Before filing the application for Guardian and Wards Act, the petitioner No. 2 filed application under section 491, Cr.P.C, before this Court but the same was withdrawn on an undertaking that they will approach proper forum for the custody of minor.
4. Thereafter the petitioners filed Guardian and Wards Application in the Family Court, ln the said application an interim order was passed by the Family Court for temporary meeting of the minor with the petitioners. On 3.11.1999 the respondents Nos. 1 and 2 filed an application under Order 7, rule 11, CPC wherein it was urged that the application in Family Court under Guardian and Wards Act was not maintainable as the dispute between the parties was in regard to the identification of correct parentage of the minor and that question canonlike decided by Civil Court by way of declaration on the aforesaid point.
5. Being dissatisfied by the aforesaid order passed, by Family Court, the petitioners have filed this Constitution Petition.
6. Lt is submitted by the learned counsel that petitioner No. 2 Mst. Shahbaz had given birth to a baby in dispute who was later on fraudulently changed with the baby of respondent No. 2. He stated. That he had applied for his relief before almost all the forums but none of the Courts have entertained their plea, it is submitted that inquiry was conducted by the penal of Doctors consisting 10 doctors under the Chairmanship of Dr. Masood Ahmed who gave their report on 6.12.1989 which reads as under:- "The issue of exchange of babies was discussed in detail in the light of Enquiry Committee's report Mr. Ansar Ahmed s/o Sheikh Ahmed to whom the baby of Mst. Shahnaz w/o Ghulam Muhammad was delivered by mistake agreed to return the exchanged baby to its parents through hospital authorities by close of office on 5.12.1989. Mr. Ansar Ahmed did not bring the child as promised till 12 Noon."
7. Learned counsel further submitted that the petitioners have not been able to get justice from any of the forum, therefore he submitted that justice may be imparted to them so that he may get the custody of their daughter which is apparently decided by the Board of Doctors that baby Fehmida Sheikh is the daughter of petitioners. Learned counsel for petitioner was confronted with the preliminary objection raised by learned counsel for respondent that the appeal against the order/decision passed by Family Court would lie before the District Judge and not in this Court. The learned counsel referred to section 47 of Guardians and Wards Act wherein according to him the provision of appeal is provided against the orders passed by Family Court.
8. Mr. Dilawar Hussain learned counsel appearing for respondent has raised preliminary objection that appeal against the decision/order passed by Family Court is to be preferred before District Judge under section 14 of West Pakistan Family Courts Act, 1964.
9. I would first like to examine the implication of section 47 of Guardians and Wards Act which reads as under:- "Orders appealable:- An appeal shall to the High Court from an order made by a Court-
(a) Under section 7, appointing or declaring or refusing to appoint or declare a guardian, or
(b) Under section 9, sub-section (3), returning an application, or
(c) Under section 35, making or refusing to make an order for the return of a ward to the custody of his guardian, or
(d) Under section 26, refusing leave for the removal of a ward from the limits of the jurisdiction of the Court, or imposing conditions with respect thereto, or
(e) Under section 28 or section 29, refusing permission to a guardian to do an act referred to in the section, or
(f) under section 32, defining, restricting or extending the powers of a guardian, or
(g) Under section 39, removing a guardian, or
(h) Under section 40, refusing to discharge a guardian, or
(i) Under section 43, regulating the conduct or proceedings of a guardian or setting a matter in difference between joint guardians, or enforcing the order, or
(j) Under section 44 or section 45, imposing a penalty.
(Provided that, where the order from which an appeal is preferred is passed by an officer subordinate to a ^ District Court, the appeal shall lie to the District Court)."
10. The word District was substituted by word Court with an amendment in Guardians and Wards Act in the year 1926 whereas, new proviso to section 47 of Guardians and Wards Act was added to this section in the year 1980, which postulates that if that order under appeal is passed by an officer subordinate to District Court, then in that event the appeal shall lie to the District Court.
11. Section 14 of West Pakistan Family Courts Act, 1964 reads as under:- "Appeal.-Notwithstanding anything provided in any other law for the time being in force, a decision given or a decree passed by a Family Court shall be appealable-
(a) To the High Court, where the Family Court is presided over by a District Judge, an Additional District Judge or a person notified by Government to be of the rank and status of a District Judge or an Additional District Judge; and
(b) to the District Court, in any other case.
(2) No appeal shall lie a decree passed by Family Court-
(a) for dissolution marriage except in the case of dissolution for reasons specified in clause (d) of item (viii) of section 2 of the Dissolution of Muslim Marriages Act, 1939; for dower not exceeding rupees one thousand-;
(c) for maintenance of rupees twenty five or less per month."
12. Section 14 of Family Courts Act starts with the word notwithstanding anything provided in any other law for the time being in force, wherein the appeal is to be preferred under Clause A of section 14 of the High Court where the Family Court is presided over either by the District Judge, Additional District Judge or any other person notified by Government to be of the same rank having status of District Judge or an Additional District Judge and all other appeals would lie before District Court in Clause B of Section 14. This point was resolved in the case of Mst. Zubeda Naz vs. Asif Rashid Minhas and another (PLD 1999 Quetta 29), wherein their lordships have observed as under:- "As far as Guardian and Wards Act is concerned, section 47(1 )(c) of the Act prescribes that appeal lies to the High Court from an order made by a Court under section 25 of the Guardian and Wards Act. Section 14 of the Family Courts Act started with word "notwithstanding anything provided in any other law for the time being in force" the effect is to exclude any provisions of the Guardian' and Wards Act which would be contrary to section 14 of the Family Courts Act, 1964. This view was taken by the Sindh and Balochistan High Courts reported in PLD 1973 Karachi 503 which was, subsequently, confirmed by the Honourable Supreme Court in Sakhawat Ali and Ehsan-ur- Rahman's case mentioned hereinabove.
For the foregoing reasons we are of the considered opinion that appeal lies before the District Judge under section 14 of the Family Courts Act, 1964. The petition has no force which is accordingly dismissed."
13. Looking to the above, the appeal against the order passed by Family Court which was passed by a Senior Civil Judge is to be preferred before the District Judge and not before this Court as the provisions of Family Courts Act have overriding effect upon the provisions of Guardians and Wards Act. Even otherwise according to new proviso to section 47 of Guardian and Wards Act, the appeal would lie before the District Judge.- The learned counsel for petitioners has not even preferred an appeal before this Court but he has filed Constitution Petition which does not lie in any manner.
14. However, I feel that the relief has been denied to the petitioners by Civil Court as well as Guardian and Wards Courts, therefore, in the interest of justice, the petitioners should not be non- suited every where and the relief ought to have been given to them by a proper forum. I a.m, therefore, of the view that the declaration in regard to the correct parentage of baby is to be given by the Civil Court after examining the evidence of both the parties.
15. The petitioners would be at liberty to file a fresh suit in regard to the declaration in the Civil Court, if they are so advised.
16. Thereafter, so far custody of minor is concerned, that is to be decided on the basis of age by a proper forum at an appropriate time. If she becomes major or sufficiently grown up, then in that event the point of custody is to be resolved upon the statement of girl.
I had dismissed this petition in limine by a short order dated 5.3.2003 and these are the reasons for the same.