EJAZ AFZAL KHAN, J.--- The petitioner, Mst. Ulfat Shaheen, who was granted the custody of minors by the learned Guardian Judge, Bannu vide his judgment, dated 12-4-2004 filed the instant constitutional petition when it was reversed by the learned District Judge in appeal vide his judgment, dated 11-5-2004.
2. Before we could take up the case for hearing, the learned counsel for the respondents raised a preliminary objection by submitting that in view of section 48 of the Guardians and Wards Act, a revision could well be filed which is by all means an adequate remedy, therefore, this constitutional petition is incompetent. The learned counsel to support his contention placed reliance on the case of Niaz Ahmad v. Mst. Nasim Akhtar and 2 others 1983 CLC 183.
3. As against that, the learned counsel appearing on behalf of the petitioner contended that in view of section 5 of the West Pakistan Family Courts Act, it is exclusive jurisdiction of the Family Court to adjudicate upon the matters specified in the Schedule, therefore, no other Court is competent to entertain, hear and adjudicate upon a lis relating to custody of children and guardianship, and that any order passed, by such Court subject to the result of appeal under section 14 of the Act shall be final, as such, constitutional petition is the only remedy in this state of affairs. The learned counsel referred to the case of Mst. Zubeda Naz v. Asif Rashid Minhas and another PLD 1999 Quetta 29.
4. On merits of the case, the learned counsel for the petitioner argued that the entire finding of the learned Additional District Judge is based on photostat prescriptions of the Psychiatrist which have not been proved on the record in accordance with the requirements of law of evidence, therefore, it being unsustainable is liable to be set aside.
5. The learned counsel for the respondents defended the impugned judgment by arguing that when the petitioner admitted that she was examined by a Psychiatrist and that his prescriptions are with her father-in-law, even photostat could be considered by the learned Additional District Judge while deciding the case.
6. Before we answer the objection raised by the learned counsel for the respondents, we would like to refer to sections 47 and 48 of the Guardians and Wards Act, which is reproduced hereinbelow:-- Orders appealable.--- An appeal shall lie 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, subsection (3), returning an application, or
(c) under section 25, 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 settling 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."
7. A perusal of the above quoted provision reveals that an appeal against an order passed under the Guardians and Wards Act will lie to the High Court, but it may be noted that the said provision was amended by Guardians and Wards (Amendment) Ordinance (IX of 1980), whereby it was provided that where the order from which an appeal is preferred is passed by an Officer subordinate to a District Court, appeal shall lie to the District Court. But who is to try such cases, where appeals are to be preferred under the latest dispensation, what would be the status of such decision and how far shall it be final are the propositions in controversy, which too cannot be attended to without referring to the relevant provisions of the West Pakistan Family Courts Act, 1964 (XXXV of 1964), which are thus, reproduced as under:-- "Section 5 Jurisdiction.--- Subject to the provisions of the Muslim Family Laws Ordinance, 1961 and the Conciliation Courts Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule.
Schedule
(1) Dissolution of marriage.
(2) Dower.
(3) Maintenance.
(4) Restitution of conjugal rights.
(5) Custody of children.
(6) Guardianship.
(7) Jactitation of marriage.
(8) Dowery.
Section 14 (1) 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 from a decree passed by a Family Court-- (a) for dissolution of marriage, except in the case of dissolution for reasons specified in clause (d) of item (vii) of section 2 of the Dissolution of Muslim Marriage Act, 1939.
(b) for dower not exceeding rupees fifteen thousands;
(c) for maintenance of rupees five hundred or less per month.
(3) The appellate Court referred to in subsection (1) shall dispose of the appeals filed under this section within a period of four months Section 25. Family Court deemed to be a District Court for purposes of Guardians and Wards Act, 1890.--- A Family Court shall be deemed to be a District Court for the purposes of the Guardians and Wards Act, 1890, and notwithstanding anything contained in this Act shall in dealing with matters specified in that Act, follow the procedure prescribed in that Act."
8. A look at the above quoted provisions would reveal that a Family Court shall not only have exclusive jurisdiction to decide matters relating to the custody of children and guardianships etc. but shall also be deemed to be a District Court for the purposes of the Guardians and Wards Act and that an appeal against an order passed by a Family Court will lie to the District Judge under section 14 of the Act when the Family Court is presided over by a Judge subordinate to a District Judge and that would be an end of the matter. An aggrieved person can file a writ petition in the High Court, that too when the finding of the learned District Judge is based on misreading, non- reading of evidence, erroneous assumption of law and fact, or is founded on considerations which are extraneous to the record.
9. It is true that in view of section 48 of the Guardians and Wards Act, a revision is competent against an order passed by a District Judge, but this provision cannot be read in isolation and in disregard of section 14 which being subsequent legislation would have an overriding effect on all other laws for the time being in force, especially when it is prefaced by a non obstante clause. This controversy was set at rest by the Honourable Supreme Court in the case of Ihsan-ur-Rehman v.
Mst. Najma Parveen PLD 1986 SC 14 in the following words:-- "Section 47 in its purview enacted that all appeals from orders referred therein passed under the Guardians and Wards Act by the Court (as defined in the Guardians and Wards Act) would lie to the High Court (before the amendment). The decision of the Court (defined in section 4(5)(a) of the Guardians and Wards Act as the "District Court" even if it was presided over by a Civil Judge subordinate to a District Court, by virtue of enabling provision contained in section 4-A of the Guardians and Wards Act, was appealable under section 47 only to the High Court. The amendment made in 1980 provided that when 'the Court' was presided over by a Civil Judge subordinate to the District Court, the appeal shall lie to the District Court and not to the High Court.
The argument advanced in the case of Muhammad Din Malik was that if an appeal under section 47 was not competent in a case decided by a Family Judge, then there was no need for the Legislature to have made the amendment at all. Prima facie the argument is attractive that is why leave to appeal was granted. But on deeper scrutiny, it seems that the amendment was made by the Legislature under some misapprehension. It seems that the law declared by the Lahore High Court in the case of Parveen and Manzoor Hussain (decided in 1975 and 1977) was treated to have concluded the controversy and the contrary view taken in the earlier cases decided in 1971, 1972 and 1973 (Karachi), it was assumed to have been superseded by the Lahore cases. If so, it was wrong assumption because the two different views were expressed by separate High Courts and although the view of one has persuasive value for the other, they were not as such binding on each other. Be that as it may be overruled view expressed in the Lahore cases was, it has been noted earlier, made the basis of bringing, amendment, the proviso in section 47, on the assumption that the appeal (as held in the Lahore cases) was competent under section 47 of the Guardians and Wards Act and not under section 14 of the Family Courts Act. This incorrect assumption led to the enactment of the proviso."
10. Having thus, considered in the light of the foregoing discussion and the above quoted dictum of the apex Court, we have no hesitation to hold that only a constitutional petition shall be competent in this state of law.
11. Now we are to see whether the learned Additional District Judge has based his finding on an evidence as could be looked into under the law. A perusal of the impugned judgment would reveal that the learned Judge while deciding this case was influenced by the prescriptions of Psychiatrist and drew inferences therefrom without realising that the prescriptions were neither produced in original nor their author was examined to prove them in accordance with the provisions of the law of evidence. He could not have taken into account any of those prescriptions without proper proof.
Now the question is whether it is an error of law? We have no doubt in our mind that it is; and it is an error of law which will entitle this Court to interfere in the exercise of its constitutional jurisdiction if a finding of fact is based on no evidence or is contrary to evidence on record, or the inferences drawn therefrom are not in accordance with law.
12. The first celebrated judgment was given by Lord Denning in 1959 in the case of Baldwin and Francis Ltd. v. Parents Appeal Tribunal 1959 AC 663 wherein it was held as under:-- "There are many cases in the books which show that if a Tribunal bases its decision on extraneous considerations which it ought not to have taken into account or fails to take into account a vital consideration which it ought to have taken into account, thus, its decision may be quashed on certiorari and a mandamus issued for it to hear the case afresh. The cases on mandamus are clear enough; and if mandamus will go to a Tribunal for such a cause, then it must follow that certiorari will go also; for when a mandamus is issued to the Tribunal, it must hear and determine the case afresh, and it cannot well do this if its previous order is still standing. The previous order must either be quashed on certiorari or ignored; and it is better for it to be quashed."
13. In his book, the Discipline of Law, while giving a fascinating account of his personal contributions to the changing face of. English Law, Lord Denning highlighted the concept of error of law and jurisdiction on page 74, in the following words:-- "This brings me to the latest case. In it I ventured to suggest that whenever a Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it and its decision is void, because Parliament only conferred jurisdiction on the Tribunal on condition that it decided in accordance with the law."
14. In the case of Rahim Shah v. Chief Election Commissioner PLD 1973 SC 24, the Honourable Supreme Court elucidated this principle in the following words:-- "The scope of interference in the High Court is, therefore, limited to the inquiry whether the Tribunal has in doing the act or undertaking the proceedings acted in accordance with law. If the ,answer be in the affirmative the High Court will stay its hands and will not substitute its own findings for the findings recorded by the Tribunal. Cases of no evidence, bad faith, misdirection or failure to follow judicial procedure, etc. are treated as acts done without lawful authority and vitiate the act done or proceedings undertaken by the Tribunal on this ground. Where the High Court is of opinion that there is no evidence proper to be considered by the inferior Tribunal in support of some point material to the conviction or order, certiorari will be granted."
15. To the same effect is the case of Assistant Collector v. Al Razak Synthetic (Pvt.) Ltd. 1998 SCMR 2514, wherein it was held that:-- "In our view, it was not proper on the part of the learned Judges of the Division Bench of the High Court to have decided the above technical questions without getting first the decision of the Central Board of Revenue on the basis of the material which the parties might have produced before it in support of their claims. The High Court generally does not investigate disputed questions of fact in exercise of its constitutional jurisdiction. However, it can interfere with a finding of fact if it is founded on no evidence or is contrary to the evidence on record or the inferences drawn therefrom are not in accordance with law."
16. In the case of Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa and 5 others 2001 SCMR 338, the Honourable Supreme Court after taking stock of a series of its judgments held as under:-- "There is no cavil with the proposition that ordinarily the High Court in its constitutional jurisdiction would not undertake to reappraise the evidence in rent matters to disturb the finding of facts but it would certainly interfere if such findings are found to be based on non-reading or misreading of evidence, erroneous assumptions of jurisdiction, misapplication of law, excess or abuse of jurisdiction and arbitrary exercise of powers. In appropriate cases of special jurisdiction, where the District Court is the final Appellate Court, if it reverses the finding of the trial Court on the grounds not supported by material on record, the High Court can interfere with it by issuing writ of certiorari to correct the wrong committed by the Appellate Authority."
17. When viewed in this context, we are convinced that the finding of the learned Additional District Judge being tarred by the error of law and jurisdiction cannot be maintained.
18. For the reasons discussed above, this writ petition is allowed, the impugned judgment and order are set aside and the case is sent back to the learned Additional District Judge-IV, Bannu for decision afresh in accordance with law within a period of two months after examining the Psychiatrist as a C.W. The parties are directed to appear before the said Court on 5-10-2004. A copy of this judgment be also sent to the learned Additional District Judge wherever he is posted at the moment.