' KH. IMTIAZ AHMAD, J.--- Through the present writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the order dated 17-3-2012 passed by the Guardian Judge, Rawalpindi whereby the learned trial Court declined the permission for the production of the witnesses namely Dr. Sohail Akhtar and Administrator Rasheed Nursing Home, on the ground that the evidence of these witnesses was not necessary to decide the real controversy between the parties regarding the custody of the minor.
2. The relevant facts for the disposal of this petition are that the present petitioner filed a petition under section 25 of the Guardians and Wards Act for the custody of the minor namely Mehar Nosh Ali Qizilbash at present aged about 4-1/2 years against respondent No,2 namely Mst. Shama Raza, who is real mother of the said minor. In the main petition in para No,9 of the petition, it was specifically mentioned that respondent had contracted Hepatitis-C virus and the known causes for the spread of this virus either Blood transfusion or otherwise. Similarly, in para No,11(k) it was again mentioned that the respondent had contracted Hepatitis-C virus. The respondent submitted written statement wherein she denied of having Hepatitis-C. It may also be mentioned here that the petitioner also annexed the list' of documents which he intended to produce in evidence and at serial No,7 he mentioned the name of Record-keeper of Rashid Nursing Home Family Health Hospital, Islamabad and the record of hospitl at serial No,13. The issues were framed and the petitioner produced the evidence and also placed on record the documents with regard to the disease of the respondent which were placed on record as Mark-A, Mark-B, Mark-C and Mark-D which were objected by the other counsel. Thereafter, the petitioner moved the written application for summoning of above-said two persons namely Dr. Sohail Akhtar and Incharge Rasheed Nursing home in order to prove the disease of the respondent which application was resisted by the other side and the learned Guardian Court vide order dated 17-3-2012 dismissed the petition only on the ground that the statements of these witnesses were not necessary.
3. The learned counsel for the petitioner contended that in the main petition it was specifically mentioned that the respondent was suffering from Hepatitis-C which could be spread by blood transfusion or otherwise. Not only this in the attached list he also mentioned the name of Record- keeper of Rashid Nursing home and record of the family health Hospital, Islamabad but inadvertently could not mention the names of the witnesses through they are necessary for determining the welfare of the minor.
4. On the other hand, the learned counsel for respondent No,2 contended that the name of said persons were not mentioned in the list of witnesses and that the document had already been placed on record and so there is no necessity for examining the said witnesses.
5. Arguments heard, record perused.
6. In a family suit ordinarily against the interlocutory orders, High Court does not interfere unless a case of grave miscarriage of justice is made out or where it is a case of lack of or excess of jurisdiction. In the present case the main controversial point which is to be decided is the welfare of minor. The Guardian Court exercises the parental jurisdiction and in order to determine the welfare of the minor there is no prohibition upon the guardian court to collect all the available evidence so that it could be finally resolved that as to where the welfare of the minor lies. In the present case as has been mentioned above, that in the main writ petition it was specifically alleged 4 that the respondent was suffering from Hepatitis-C. In the list attached with the plaint Record-keeper of Rashid Nursing Home and of the Family Health Hospital, Islamabad was mentioned. There is no denial of the fact that the documents with regard to disease of respondent had been placed on record as Mark-A to Mark-C but during the arguments both the learned counsel have admitted that at the time of statement of the respondent these documents were put to respondent but she denied these documents and maintained that she was not suffering from any disease so was her claim in her written reply of the main petition. In such eventuality it would be in the interest of the minor that at least the evidence required to be produced by the petitioner must come on the record. What would be the value of this evidence would be determined by the trial Court at the final hearing. The only point remains, that when the parties fail to mention the name of the witnesses then whether for all times he is debarred from producing the witnesses under section 7(2) of the Family Court Act it is specifically provided in its proviso that the parties may with the permission of the court call any witness at any later stage if the court considered such evidence expedient in the interest of justice. Whenever any such discretion was left open with a court, such discretion should be liberally exercised in a beneficial manner. The parties may with the permission of the court call any witness at any later stage under section 7(2). Proviso if the court considered such evidence necessary in the interest of justice. The reference may be made to the case of Mst. Anwar Bibi v.
Muhammad Akram and others (2012 MLD 614) (Lahore), Muhammad Akram v. Judge, Family Court and others (2009 CLC 269) (Lahore), Malik Irfan Ahmed Gheba v. Zubi Irfan and 4 others (2004 MLD 635) (Lahore) and Wajid Asgher Cheema v. Mst. Anshka and another (PLD 2011 Lahore 534).
7. Since in the present petition also the welfare of the minor is involved and in view of the above mentioned facts, the Guardian Court should have allowed the petitioner to examine the witnesses proposed to be produced. Accordingly, this writ petition is allowed, impugned order of the learned Guardian Court dated (17-3-2012 is set aside with the result that the petition moved by the petitioner for examination of the witnesses stands accepted.