PARVAIZ ALI CHAWLA, J. - The instant writ petition has been directed against the order dated 23.5.2008 passed by the learned Judge Family Court, Sargodha, respondent No. 2, and the judgment dated 2.2.2009 rendered by the learned Additional District Judge, Sargodha, respondent No. 1, with the prayer that the said order and judgment of the learned Court below may be set aside and the case be remanded to the learned Trial Court with the direction to give a visiting schedule to the petitioner to see his minor son living with respondent No. 3.
2. Briefly the facts are that the petitioner filed a petition through his mother Mehr Khatoon, a special attorney under Section 25 of the Guardian and Wards Act, 1890 for the custody of his minor son namely Khizar Abbas; that during the pendency of the said petition, the (sic) learned Guardian Court with, the prayer that the learned Court may issue a visiting Schedule for the meeting of the petitioner with his minor son and in paragraph No. 4 of his petition the petitioner also undertook that if a monthly visiting Schedule is issued by the Court, the petitioner shall withdraw his petition for custody of the minor that without deciding the said petition, the learned Trial Court proceeded to dismiss the petition filed by the petitioner under Section 25 of the Guardian and Wards Act, ibid. The petitioner assailed the said order of the learned Guardian Court in the District Court, Sargodha, which was entrusted to a learned Additional District Judge, Sargodha who vide his judgment dated 2.2.2009 observed that there were three petitions filed by the petitioner pending in the Court of learned Guardian Judge, of of which one petition was for grant of visiting schedule but without having (sic) the said petitions, the learned Guardian Judge proceeded to decide the main petition filed under Section 25 of the Guardian and Wards Act.
Having noticed this illegality the learned Appellate Court observed that the petition for custody of the minor was launched unauthorisedly without necessary power-of- attorney by the appellant (petitioner herein). Thus the learned Appellate Court declined to remand the petition holding that in de novo trial there was least chance of the appellant's success, therefore, he allowed the application for withdrawal of the main petition filed by the petitioner in the Guardian Court with the permission to the petitioner to file a fresh petition.
3. I have heard the learned counsel for the parties and have perused the record.
4. Admittedly, inter alia the petition for giving visiting schedule was pending in the learned Guardian Court but without deciding the said petition and the two other petitions, the learned Guardian Judge decided the main petition filed under Section 25 of the Guardian and Wards Act, 1890 by the petitioner. The learned Appellate Court has noticed this illegality in his impugned judgment yet the conclusion drawn by the learned Appellate Court was not pragmatic. A perusal of the judgment of the learned Guardian Judge reveals that he did not decide the issues between the parties as to whether the petition was filed by an unauthorized person. Therefore, in this regard the observation of the learned Additional District Judge was thus erroneous, It has been admitted by the learned counsel for respondent No. 3 that the learned Guardian Judge should have first decided the three miscellaneous petitions filed by the petitioner and then to have decided the main petition. The learned counsel for the petitioner has once again reiterated his offer that if a visiting schedule is given by the learned Guardian Court, he would withdraw the main petition for custody of the minor. He has also submitted that the. Petitioner is now permanently residing in Pakistan. I therefore, agreeing with the contention of the learned counsel for the petitioner accept this writ petition, set aside the impugned order and judgment of the learned Courts below and remand the case to the- learned Guardian Court with the direction to decide the miscellaneous petitions filed by the petitioner, particularly the petition for giving visiting schedule first and then to decide afresh the main petition, after affording an opportunity to the parties to lead their evidence.