' KH. IMTIAZ AHMAD, J.-This writ petition is directed against the order dated 19-1-2009. Passed by the learned ADJ, Rawalpindi whereby he while accepting the appeal dismissed the guardianship petition on the ground that the Family Court at Rawalpindi had no jurisdiction to entertain the guardianship petition.
2. The relevant facts for the disposal of this writ petition are that the present petitioner filed a petition for the custody of her two daughters namely Abeeria who was born on 17-11-1994 and Laiba Noshi who was born on 22-9-1996. This petition was filed on 17-2-2005. In the petition, it was mentioned that husband of the petitioner about three years back after giving beating to the petitioner turned her out frdm the home along with the minors and another daughter .Namely Areeja Gohar who was born on 21-10-2002. The petitioner along with three minor daughters took shelter in the house of her brother at Rawalpindi. It was further alleged that the respondent while enticing away the two daughters namely Abeeria and Laiba Noshi took them with him and kept them in his, custody. It was alleged that the welfare of the minors lies with the mother. The petition was resisted upon the other grounds as well as on the ground that both the minors were residing at Jaranwala District Faisalabad and so the Family Court at Rawalpindi had no jurisdiction: It was further alleged that the petitioner went to the house of her brother in the year, 2002 only along with the younger daughter namely Areeja Gohar while left both the minors Abeeria and Laiba Noshi with the respondent and from that time both the minors were residing with the respondent at Jaranwala District Faisalabad and were getting education in the school. Out of the pleadings of the parties, the learned trial Court framed the following issues:--
(1) Whether the welfare of the minors lies with the petitioner? OPP
(2) Whether the plaintiff has no cause of action to file the instant petition? OPR.
(2-A) Whether this court lacks jurisdiction to hear this petition? OPA.
(3) Relief.
' The parties produced their evidence consisting of statement of Gulshan Jabeen P.W.1 and the statement of defendant Shahbaz Khan as DW-1. Besides this oral evidence, the documents Exh.R-1 to R-5 which are the photographs were put to the petitioner during her statement and Exh. P-6 was the affidavit of the respondent while school leaving certificate of the minors were produced as Exh.
R-7 to R-12. The learned trial Court after hearing the parties decided issue No,1 in favour of the petitioner, issues Nos.2 and 2-A against the respondent and resultantly accepted the guardianship petition. The father preferred an appeal. The learned appellate Court only took into consideration issue No, 2-A which relates to the jurisdiction of the Court and came to the conclusion that the Family Court at Rawalpindi had no jurisdiction and in fact the guardianship petition was to be filed at Faisalabad where the minors were residing and resultantly dismissed the petition with the direction to the petitioner to file the application before the Court having the territorial jurisdiction.
Feeling aggrieved, the present writ petition has been filed.
4. The learned counsel for the petitioner contended that the guardian court at Rawalpindi had the jurisdiction, since the petitioner brought the minors from Fisalabad to Rawalpindi from where they were removed and in such eventuality the Family Court at Rawalpindi had the jurisdiction. In this behalf, he placed reliance upon the cases of Muhammad Iqbal through Special Attorney Faiz Sultan v. Parveen Iqbal (PLD 2005 SC 22), Anne Zahra v. Tahir Ali Khilji and 2 others (2001 SCM R 2000) and Major Muhammad Khalid Karim v. Mst. Saadia Yaqoob and others (PLD 2012 SC 66).
5. On the other hand, the learned counsel for the respondent supported the impugned judgment of the learned appellate Court and also placed reliance upon the same case-law referred by the learned counsel for the petitioner reported in PLD 2012 SC 66.
6. Arguments heard. Record perused.
7. The latest and the recent judgment of the Hon'ble Supreme Court on the point is Major Muhammad Khalid Karim v. Mst. Saadia Yaqoob and others (PLD 2012 SC 66). In the said' case, the Hon'ble Supreme Court observed as under:-- ---Ss. 5 & 7 (2), Second Proviso [as added by Family Courts (Amendment) Ordinance (LV of 2002)]---Guardians and Wards Act (VIII of 1890), Ss. 9(1), 12 & 25---Custody of minor--Territorial jurisdiction---Determination---Minors were permanently residing with their father at place "M" and their mother filed application for their custody before Guardian Judge at place "L"---Guardian Judge as well as lower appellate Court held that the courts at place "M" had territorial jurisdiction over the matter but High Court declared that proceedings initiated by mother of minors, at place "L" were maintainable---Validity--Minors were residing with their father at place "M", where they were admitted to school---Mother had failed to prove that she had brought them to place "L" and was deprived of their custody from there, on account of which the cause of action could arise in her favour at place "L"---Was not established, if before parting, the parties hereto were residing at place "L" so as to attract Rule 6(b) of West Pakistan Family Courts Rules, 1965---High Court had fallen in error while declaring the suit maintainable at place "L"---Supreme Court set aside the judgment passed by High Court and those of Guardian Judge and Lower Appellate Court were restored---Appeal was allowed."
' The perusal of the above said judgment clearly shows that if the petitioner succeeds in proving that she brought the minors from Faisalabad to Rawalpindi and was deprived of their custody from Rawalpindi, then of course the Family Court at Rawalpindi had the jurisdiction to entertain the guardianship petition. However, if she fails to prove this fact and it stands established that the minors were residing with their father at Faisalabad permanently, then in view of the above said case-law, it would only the Family Court at Faisalabad which had the jurisdiction.
8. Keeping in view the above said principle laid down by the Hon'ble Supreme Court in the above mentioned case, now it is to be seen that as to what evidence has been produced by the parties in this respect. As has been mentioned above that the guardianship petition was filed in the year 2005 and in path No, 6 of the petition, it was mentioned by the petitioner that her husband about three years back had given her beating and she along with all the three minors came to.
Rawalpindi at the house of her brother but thereafter in Para No, 7, it was mentioned that the respondent enticed away both the minors Abeeria and Laiba Noshi and took them from Rawalpindi and kept them with him but nowhere in the petition, it is alleged that as to when the respondent took away both the minors from Rawalpindi. In the written reply filed by the respondent, he categorically mentioned in para 3 that in the year 2002, the petitioner only brought her younger daughter with her while left both the minors with the respondent and both the minors were residing with the respondent and were getting education from the school. The petitioner herself appeared as AW-1 and submitted her affidavit, Exh. A-1. In the said affidavit, in para No,. 5, it was mentioned that the defendant in February, 2002 turned her out along with three daughters and so the petitioner came to the house of her brother with three daughters. In para No,6, it was maintained that the defendant on the pretext of reconciliation came there and while enticing away both the daughters took them with him. However, even in this affidavit, it was not mentioned that as to when the respondent took away both the daughters. The desertion took place in the year 2002 but the petition for the custody of the minor was filed after three years i.e, in the year 2005. In the cross- examination, she deposed that the respondent took away the minors in January, 2002 and then in the year 2007 he brought both the minors for meeting with her and after obtaining photographs went away. She admitted the photographs and her meeting with the minor. Now this statement shows that allegedly the respondent took away the minors in January, 2002. However, in the affidavit Exh. A-1, in para No, 5, the petitioner maintained that defendant deerted her in February, 2002 and then she came back to her brother's house along with the minors. The question arises that when she was deserted in February, 2002 then how the respondent could take away the minors in January, 2002. For arguments sake, if it be, presumed that respondent took away the minors in the year 2002 then question arises that as to why the petitioner kept silent for three years i.e, till the year 2005 and did not file any petition for the custody of the minors. This also shows that the respondent had not taken away the minors from Rawalpindi as alleged by the petitioner. On the other hand, Shehbaz Khan respondent submitted the affidavit, wherein it was maintained that in June, 2002, when there were vacations in the school, both the minors were at Jaranwala and the petitioner along with the younger daughter went to Rawalpindi and that both the minors never brought to the Rawalpindi by the petitioner. It was further maintained that both the minors remained studying in a school at Faisalabad till March, 2003 and from March, 2003 they were shifted to school at Jaranwala. It was also maintained that the respondent had never brought both the minors from Rawalpindi to Jaranwala. In the cross-examination, he denied that prior to June, 2002, both the minors were not studying in a school but volunteered that both were studying in Punjab Cadet School Faisalabad. The School Certificate produced by the respondent also shows that both the minors continuously kept studying at Faisalabad. Even the petitioner has not produced her brother to corroborate her version that both the minors were brought to Rawalpindi from Faisalabad. In this way, it stands established that both the minors were never brought to Rawalpindi as alleged by the petitioner nor they were taken back by the respondent from Rawalpindi. On the other hand, both the minors were continuously in the custody of their father at Faisalabad, where they were getting the education also and thus in view of the principle laid down in the above mentioned case, the appellate Court had committed no illegality by holding that the Family Court at Rawalpindi had no jurisdiction and rightly directed the petitioner to move the petition at Faisalabad where the minors were permanently residing.