' SHUJAAT ALI KHAN, J.--- By means of this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has challenged orders dated 4-6-2012, 20-7-2012 and 7-9-2012 passed by the learned Guardian Judge, Chishtian (respondent No,l).
2. Succinctly, the facts of the instant case are that petitioner's matrimony was solemnized with respondent No,2. Out of the wedlock three offspring namely Zoha, Muhammad Sohail and Muhammad Kashif were born. Due to differences between the spouses, the marriage between the parties was dissolved, whereafter the petitioner filed a petition under section 25 of the Guardians and Wards Act, 1890 (hereinafter to be referred as Act) before the learned Guardian Judge, Lahore with the prayer that he be appointed as guardian of the minors Zoha, Muhammad Sohail as they were living with him whereas the custody of Muhammad Kashif be also handed over to him. On the application filed by respondent No,2, the said guardianship petition was transferred to Chishtian, District Bahawalnagar. The petitioner opted to withdraw the said application. While allowing the said application for withdrawal of the guardianship petition the learned Guardian Judge directed the petitioner to hand over the custody of the minors Zoha and Muhammad Sohail to respondent No,2. On the execution petition filed by respondent No,2 vide orders dated 20-7-2012 and 7-9-2012 warrants of arrest against the petitioner under section 100, Cr.P.C. Were issued. Aggrieved by the said orders, the petitioner has filed the instant petition.
3. Learned counsel for the petitioner contends that the execution only lies against a decree, since no decree was passed in favour of respondent No,2 as such no coercive measures could be taken against the petitioner; that the learned Guardian Judge was not competent to issue warrants under section 100, Cr.P.C. Rather the same falls within the domain of the Executive Magistrate; while passing the impugned order dated 4-6-2012, no notice was given to the petitioner and that learned Guardian Judge was not obliged to direct the petitioner to hand over the custody of the minors, who were already with him while dismissing his guardianship petition as not pressed. In addition to his oral submissions, learned counsel has also referred to the cases of Razia Sultana and 4 others v. Razia Begum and 3 others (PLD 200 Lahore 209) and Mst. Kausar Parveen and 3 others v. Ahmed. Ali Zaffar, Judicial Magistrate, Kabirwala, District Khanewal and 2 others (PLD 1997 Lahore 208).
4. Conversely, learned counsel appearing on behalf of respondent No,2, while defending the impugned orders, submits that since order dated 4-6-2012 was passed on the application filed by the petitioner, therefore, he cannot say that he was not given any notice prior to the passing of the said order; that the conduct of the petitioner is also clear from the fact that despite lapse of about two months, he has not complied with the order passed by the learned Guardian Judge; that the learned Guardian Judge is fully empowered to issue warrants of arrest under section 100 of Cr.P.C.
As he enjoys the powers of the Magistrate while dealing with the guardian matter and that the impugned order is appealable under section 47 of the Act, the present petition is not maintainable.
5. After hearing the learned counsel for the parties and perusing the material, attached with this petition in addition to the case-law cited by the learned counsel for the petitioner, I have observed that the petitioner filed guardianship petition on 19-7-2010 by inter alia averring that the minors Zoha and Muhammad Sohail are with him whereas the custody of third kid namely, Muhammad Kashif, is with respondent No,2. Respondent No,2 while submitting reply to the guardianship petition on 12-5-2012 in reply to paragraph No,1 admitted the contents of the said para to the extent that custody of the minors Muhammad Kashif and Zoha was with the petitioner. In this situation, the observation of the learned Guardian Judge to hand over the custody of the minors Zoha and Muhammad Sohail on the ground that prior to passing of the ex parte order dated 4-5-2011 their custody was with their mother/respondent No,2 is misconceived. If it was so, why respondent No,2 while filing reply to the guardianship petition admitted that the custody of the said minors was with the petitioner and especially in the light of the fact that written statement was filed after a year of the ex parte order dated 4-5-2011.
6. Another important question involved in this matter is that as to whether the learned Guardian Judge had the power to direct the petitioner to hand over the custody of the minors to respondent No,2 especially when neither any petition for guardianship of the said minors was filed by respondent No,2 nor she prayed for handing over of their custody while submitting her reply to the guardianship petition. Further, the said order was passed by the learned Guardian Judge while dealing with the application filed by the petitioner for withdrawal of the guardianship petition. The powers of the learned Guardian Judge have been determined under section 7 of the Act, which reads as under:--- "Power of the Court to make order as to guardianship.
(1) Where the Court is satisfied that it is for the welfare of a minor that order should be made:---
(a) appointing a guardian of his person or property, or both; or
(b) declaring a person to be such a guardian, the Court may make an order accordingly.
(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.
(3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian instead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act-.
' According to section 8 of the Guardians and Wards Act, 1890, the learned Guardian Court can only pass an order on an application by a person interested in guardianship of the minors. For convenience of reference, the said provision is reproduced as under:- "8. Persons entitled to apply for order. An order shall not be made under the last foregoing section except on the application of---
(a) the person desirous of being, or claiming to be, the guardian of the minor; or
(b) any relative or friend of the minor; or
(c) the Collector of the District or other local area within which the minor ordinarily resides or in which he has property; or
(d) the Collector having authority with respect to the class to which the minor belongs."
A perusal of the afore-noted sections makes it abundantly clear that the Guardian Judge has no power to appoint anybody as guardian of a ward in absence of the specific application. Thus, the learned Guardian Judge, while passing direction regarding handing over the custody of the minors, travelled beyond his jurisdiction.
7. Now coming to the objection raised by learned counsel appearing on behalf of respondent No,2 that in presence of right of appeal under section 47 of the Act, this petition is not maintainable, I am of the view that firstly the order passed by the learned Guardian Judge does not fall in the categories mentioned under section 7 of the Act and secondly if the order is patently illegally, the constitutional jurisdiction of this court cannot he ousted mere on the ground that alternate remedy B of appeal or revision is available. If any case is referred a reference can be made to the case reported as Member (Colonies) Board of Revenue, Punjab, Lahore and others v. Muhammad Shafi and others (2008 SCMR 589), Pakistan Defence Officers Housing Authority Karachi v. Shamim Khan through L.Rs :and 5 others (PLD 2005 SC 592), Ahad Sharif alias Muhammad Ahad and another v.
Javed Tariq and others (2006 SCMR 1356) and Malik Nazar Hussain v. National Bank of Pakistan and another (2004 SCMR 28). In the last case, the august. Supreme Court of Pakistan has inter alia held as under:--- "It is well-settled that if an order or proceedings are patently without jurisdiction, High Court can issue writ in exercise of its jurisdiction under Article, 199 of the Constitution of Islamic Republic of Pakistan, as it has been held in the case of Chairman Central Board of Revenue v. Pak. Saudi Fertilizer Ltd. (2001 SCMR 777)"
' Further, a Division Bench of the Sindh High Court, while dealing with the said proposition in the case of Col. (R) S. Maqbool Illahi v. Pakistan Defence Officers Housing. Authority (2009 YLR 282) has inter alia held as under:--- "17. On behalf of respondent the maintainability of this Constitutional Petition was vehemently assailed on the ground that the petitioner could not have invoked the constitutional jurisdiction of this Court as the impugned notice was merely a show-cause notice which did not violate any fundamental or vested right of the petitioner resulting in legal loss which were essential condition for having recourse to Article 199 of the Constitution of Islamic Republic of Pakistan. It was submitted by Mr. Khalid Jawed that proper course for the petitioner was to have waited for a decision/order in pursuance of the show-cause notice and to, have assailed the same in accordance with the law. This contention advanced by Mr. Khalid Jawed on behalf of the respondent is without any substance in view of the pronouncement made by the honourable Supreme Court in large number of cases to the effect that if the order or action complained of was so patently illegal, void or wanting in jurisdiction that any further recourse to alternate remedy may only be counterproductive and by invoking of Article 199 the mischief could forthwith be nipped in the bud then in such matters existence of alternate remedy would not bar the exercise of Constitutional Jurisdiction by this Court. Reliance may be placed on (i) 1999 SCMR 1881
(ii) 1999 SCMR 1072, (iii) 1993 SCMR 1778 and (iv) PLD 1990 SC 399."
8. For what has been discussed above, I am constrained to hold that while passing the impugned order dated 4-6-2012, learned Guardian Judge travelled beyond his jurisdiction. Consequently, this petition is accepted and order dated 4-6-2012 is set aside. As a necessary corollary the subsequent orders dated 20-7-2012 and 7-9-2012 would remain no more in the field. Before parting with the order, it is observed that respondent No,2 shall be at liberty to establish her right of guardianship of the minors by filing proceedings before the competent Court.