Respondents Nos'. 1 and 2, minor son and daughter of the petitioner filed a suit for grant of maintenance on 4th of December, 1977 against the petitioner through their mother who was married to the petition on 12th of May, 1974. At the time of institution of the suit, according to para. 2 of the plaint age of respondent No. 1 was 2J years while that of respondent No. 2 was 2 --years.
2. It was alleged in the plaint that after the mother of respondents 1 and 2 was turned out by the petitioner from his house, she started living with her parents at Sialkot. It is admitted on record that after marriage mother of the contesting respondents and the petitioner lived in England for about two years where the petitioner according to his written statement had gone to complete his education in Chartered Accountancy. The petitioner is still residing in U. K. As admitted by him.
3. Respondents 1 and 2 demanded amount of Rs. 1,000 as monthly allowance for their maintenance, education and medical expenses from January 1977. The suit having been resisted on various grounds the pleadings of the parties gave rise to two issues: Whether the plaintiffs were entitled to any maintenance and if so to what amount and whether the Family Judge at Sialkot had.
Jurisdiction to deal with the matter. Both the issues were found against the petitioner. Respondent No. 1 was found entitled to Rs. 450 p.m. While respondent No. 2 was found entitled to Rs. 420 p.m. As allowance from January, 1977. The findings arrived at in this behalf by the learned Judge, Family Court, Sialkot were confirmed in appeal by the learned District Judge. The vires of the same have been challenged through this writ petition.
4. Learned counsel for the petitioner has raised the following con--tentions :-
(a) Respondents 1 and 2 being British subjects having been born in U. K. No Family Court in Pakistan has jurisdiction to deal with the matter.
(b) There is no material evidence on record to support the finding with regard to quantum of maintenance allowance as fixed by the Family Court.
(c) The Family Court has not considered income of the petitioner, bare necessities of the minor children and prices prevailing at the relevant time while determining the quantum of monthly allowance to be paid to the minors.
(d) The petitioner being not resident of Pakistan and being a student only at U. K. The Family Court atSialkot has no jurisdiction to entertain the suit of the contesting respondents.
(e) The mother of respondents 1 and 2 is an earning hand being a school teacher and can easily support the minors. . This fact has not been taken into consideration by the Family Court.
(f )I An amount of Rs. 8,000 was given by the petitioner to the maternal-grandfather of the minors as future maintenance as well as education allowance. This factor has not been considered while determining the allowance.
(g) Respondent No. I was hardly 21 years old while respondent No. 2 was 11 years old at the time when suit for grant of maintenance was filed. No allowance for education purposes could be granted to both the minors for the period when they were not admitted to any school. The education allowance has been granted w. e. f. Ist of January, 1977 when respondent No. 1 was less than two years and respondent No. 2 was hardly few months old. They were admittedly not school going children till April, 1978, when respondent No. 1 was admitted to school, while respondent No. 2 started getting edu--cation in a nursery class of a school in April, 1980.
(h) The Judge, Family Court had not been conferred the powers of Magistrate Ist Class to make order for maintenance under section 488, Cr. P. C. And as such the impugned order is without jurisdiction.
5. It is admitted that respondents Nos. 1 and 2, both minors, were born in United Kingdom and not in Pakistan. It is contended that since they are British nationals, therefore, no Court in Pakistan has jurisdiction to decide the matter. There is nothing on record to show that the petitioner is a British national. He holds a Passport duly issued by the Pakistan Government on 18th of October, 1966 and visits Pakistan on that basis. According to the petitioner he went to U. K. For further studies about 10 years ago and as such has acquired the status of a British National. The contention that he is a British national as mentioned above is not proved by any document whatsoever, rather on the contrary he is 'a Pakistan National according to his own Passport, copy of which has been filed as Annex. `A' with his written statement. Further while contesting the suit for dissolution of marriage in 1977 filed by. The mother of the minors he himself gave his address in his Fard Pata Annex: `D' being permanent resident of Sialkot. He filed a suit for restitution of conjugal right against the mother of the minors vide Annex: 'E', certified copy of the plaint. He showed himself to be permanent resident of Mohallah Chowk Imam Sahib, Sialkot in his Fard-Pata attached with the plaint. He admitted himself to be resident of Sialkot. That being so it cannot be said that he is a British National. At the first he may have acquired dual nationality in U. K. Like any other Pakistanis after Pakistan left the Common--wealth. No proof in this behalf has been furnished by the petitioner.
6. The main question involved in this case is as to whether respon--dents 1 and 2 having been born in U. K. Can be treated to be Pakistani Nationals and the Courts of law in this country have jurisdiction to decide the matter. According to the provisions as contained in sections 4 and 5 of the Pakistan Citizenship Act of 1951 every person born in Pakistan after the commencement of the Act shall be a citizen of Pakistan by birth and subject to the provision of section 3 a person born after the commencement of the Act shall be a citizen of Pakistan by descent, if his father is a citizen of Pakistan at the time of his birth. According to section 14 of the Succession Act of 1925 the domicile of a minor follows the domicile of the parent from whom he derived his domicile of origin.
It is not denied that the petitioner is citizen of Pakistan by birth. That being so respondents Nos. j and 2 would be citizens of Pakistan by descent as provided by section 5 of the Citizenship Act, irrespective of the fact that they were born in U. K. As such the Judge, Family Court at Sialkot had jurisdiction to decide the matter. The petitioner has not been able to examine himself as his own witness. His brother Muhammad Ashraf D. W. 2 appeared on his behalf as his, attorney on 5-2-1979 before the learned Judge, Family Court and examined himself as such. According to him the petitioner went to London 7/8 years ago to complete the course of Chartered Accountancy which according to him was to be completed in September, 1979. He has stated that the petitioner is getting stipend while completing his course of Chartered Accountancy from various firms where he works. He has however, admitted in cross-examination that during the period of 8/9 years the petitioner has visited Pakistan twice. He brought an old car and some articles with him. The car had not been released by the Customs till February 1979 when P. W. 2 made his statement. He has admitted that the petitioner brought a Toyota Car of 1974 Model when he visited Pakistan in 1976.
This car according to him sold by the petitioner in Pakistan. According to him petitioner also brought many other valuable articles such as music centre refrigerator etc. Which he sold away in Pakistan. On the contrary mother of the minor has examined herself as P. W. 2 and has stated that the petitioner has been working Accounts Officer in various business firms. According to her when she left London he was working as Accounts Officer in a well known Textile industry. She has categorically denied the suggestion in cross-examination that the petitioner is completing the course of Chartered Accountancy. According to her he has been working as Accounts Officers since long in various business firms and getting good salary. According to P. W. 1, Zahoor Ahmad father of .P. W 2, the petitioner has been earning about 10(12 thousands of rupees monthly in London and can easily pay amount of Rs. 1 000 for maintenance of the minor children.
7. There is nothing on record to show that the petitioner is still completing his course of Chartered Accountancy and in that capacity is getting stipend from the business firm where he works as apprentice. P. W. 2 who was living with him for about two years as his wife in London has categorically stated that has been working as Accounts Officer in some business concerns and getting good salary. The entire evidence produced by the parties has been duly examined and discussed by the Judge, Family Court in his judgment and as a result of that he has fixed maintenance allowance for respondents Nos. 1 and 2. It is correct as laid down in Rahim Shah v. The Chief Election Commissioner of Pakistan and another (PLD1973SC24) and Muhammad Hussain Munir and others v. Sikandar and others (PLD1974SC139) that the scope of interference by the High Court under Article 199 of the Constitu--petition is limited to the inquiry whether the Court or tribunal while under--taking the proceedings has acted in accordance with law. If the answer is 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, misdirection or failure to follow judicial procedure, are treated acts done without lawful authority and vitiate the proceedings undertaken b the tribunal on this ground. The Court or a tribunal having jurisdiction to decide a matter is competent to decide it rightly or wrongly and the mere fact that decision is incorrect does not render it as without lawful authority. It cannot be said in the case of a Court or tribunal as the case may be having jurisdiction to determine a matter that it had acted illegally or with material irregularity merely because it has come to a erroneous decision on a question of fact or even of law. If the Court interferes in such matters on the ground of order being erroneous then it will act as an Appellate Court which is not the intention of the Constitution so far Article 199 is concerned.
8. In the present case the Judge, Family Court having jurisdiction to decide with regard to fixation of amount of allowance to be paid. By the petitioner to his minor children determined the matter after due appraisal of the entire record. Such determination is not open no scrutiny by this, Court in 'exercise of its extraordinary jurisdiction. The contention that the decision of the Judge, Family Court is raised upon no material evidence has no substance as there is sufficient evidence on record to show that the) petitioner has been earning good amount as Accounts Officer
9. It has been vehemently argued by the learned counsel for the petitioner that amount of Rs. 870 to be paid monthly has been determined arbitrarily as the petitioner is not in a position to pay so much amount. I am not in a position to make any observation in this behalf. The fact however, remains that amount of Rs. 870 would be hardly equivalent to 44 Pounds which the petitioner keeping in view the evidence brought onrecord can easily pay. Further as discussed above even if the determination in this behalf may be erroneous the same cannot be interfered with in the present proceedings.
10-- It .Is true that necessities of life of the minor children as well as the prices prevailing at the relevant time should be taken into consideration While determining the maintenance allowance.
The cost of living even with regard to bare necessities has gone very high. It is admitted that both the minor children, at present are school going and getting good education. Respondent No. 1 is about 5J years old while respondent No. 2 is about 4J years old at this time. Keeping in view the cost of living and the type of education they are getting, the amount fixed as maintenance allowance does not appear to be excessive particularly in view of fact that the petitioner according to the evidence on record is earning hundreds of Pounds equivalent to thousands of rupees in P.I currency. His position as such has been duly examined by the Court, and it has been held that he can easily spare amount of about 44 Pounds a month out of his earnings. This amount: to a finding of fact which cannot be interfered with in the present proceedings.
11. There is no doubt that mother of both the minors being a school teacher is getting about Rs. 300 as salary but that does not mean that the petitioner can be absolved of his obligation to maintain his minor children. Their mother throughout has been present in the Court during the course of the proceedings: She has stated that whatever she earns she spends on her children. Even if she earns sufficient amount to maintain her children it the duty of the petitioner under the law being their father to maintain) is them till they attain the age of majority.
12. There is nothing on record to show that amount of Rs. 8,000 was ever paid to the maternal- grand father of the minors. The suggestion put to him while appearing as P. W. 1 has been denied by him. Further Seth Iqbal through whom the aforesaid amount is alleged to have been paid has not been produced. By the petitioner in the Court. The version advanced in this behalf by the petitioner has been disbelieved by the Court. That being 'so the evidence produced by the parties on this point cannot be reappraised. '
13. In has been admitted by the learned counsel for respondents 1 and 2 that respondent No. 1 was admitted to school in April 1978 while respondent No. 2 was admitted to school in April, 1980. . In that view of -the matter respondent No. 1 would be liable to be paid amount of Rs. 350 p.Rn, till March, 1978 from January, 1977 and similarly respondent No. 2 amount of Rs. 320 The amount of allowance determined by the Judge, Family Court also includes education allowance. It is obvious that education allowance could not -be allowed unless -the children were admitted to the school.
Learned counsel for respondents 1 and 2 when confronted 'with this situation has conceded that the education allowance tilt the aforesaid period is deductible from the amount of allowance fixed by the Court p.m. Till March, 1980. However, they will be entitled to be paid the amount as fixed by the Judge, Family Court from April; 1978 and April, 1980 respectively. '
14. The result is that the writ petition partly succeeds on the last point only. It stands rejected with regard to other contentions raised by the learned counsel for the petitioner. There will be no order as to costs.