' As maintainability of appeal is in question, therefore we invited the learned counsel for the parties to advance arguments on this preliminary point. We have heard learned counsel for the parties at full length and have gone through the record with their able assistance as well as case-law referred to by them.
2. For deciding the point of maintainability, noting of brief facts of this case is necessary.
Respondent No,1 on 27-10-2010 filed an application under section 25 of the Guardians and Wards Act, 1890 for custody of minor son Muhammad Adyan Ali Khan aged five years against the appellant who is the mother of minor, in the Court of learned Senior Civil Judge with the powers of Guardian Court/Judge Family Court, Rawalpindi. The prayer made in the application is as under:-- "It is, therefore, respectfully prayed that in the circumstances, guardianship and custody of the minor son may kindly be transferred and entrusted to the father the petitioner who is the natural and legal guardian of the minor, in the interest and welfare of the minor."
' The application was contested. Learned trial Court refused the petition to the extent of entrustment of custody, however, gave the schedule for visitation of petitioner with the minor. The appellant filed an appeal under section 14(b) of the West Pakistan Family Courts Act, 1964 before the learned District Judge, Rawalpindi. The respondent also filed an appeal against the said judgment/order. Both the appeals were decided vide consolidated judgment dated 30-4-2013 passed by learned District Judge, Rawalpindi and both the appeals were dismissed. The appellant filed Writ Petition No,1206 of 2013 before this Court, which was dismissed by the learned Single Judge vide order dated 12-6-2013. Hence, this appeal.
3. Learned counsel for the appellant argues that as no appeal was provided for the appellant against the order of visitation passed by the learned Guardian Judge under section 47 of the Guardians and Wards Act, 1890; that when the Guardian Judge passed the order of visitation of minor, therefore the appeal filed by the appellant herself under section 14(b) of the West Pakistan Family Courts Act, 1964 was not competent and for the purposes of maintainability of instant appeal, that appeal filed by the appellant before learned District Judge can be just ignored. While relying upon "1982 SCM R 1223 (Muhammad Deen Malik and another v. IInd Additional District Judge Karachi and 2 others)" argues that leave has been granted in a case to determine whether section 47 of Guardians and Wards Act, 1890 has become redundant in view of the combined effect of sections 5, 14 and 25 of the West Pakistan Family Courts Act, 1964.
4. On the other hand, learned counsel for the respondent while relying upon "PLD 1967 Supreme Court 402 [(1) Malik Khizar Hayat Khan Tiwana and (2) Malik Ghulam Muhammad Khan v. (1) Mst.
Zainab Begum, (2) Ch. Aziz Ahmad Waraich, District Judge, Lahore and (3) Qazi Muhammad Dastgir, Guardian Judge, Lahore] and PLD 1986 Supreme Court 14 (Ihsan-ur-Rehman v. Mst. Najma Parveen)" argues that for passing an order of visitation the powers are with the Family Court and not with the Guardian Judge, therefore the appellant has rightly filed an appeal against the order in the Court of District Judge/Appellate Court and after dismissal of that appeal writ petition was filed, hence, this I.C.A. Is not competent.
5. We have considered the arguments of learned counsel for the parties as well as case-law cited by them.
6. The case is very simple but learned counsel for the appellant has tried to make it as intricate/complicated and also tried to make it the case of interpretation as well as redundancy of section 47 of the Guardians and Wards Act, 1890.
Learned counsel for the appellant has frankly admitted that for order of visitation powers are with the Family Court and not with the Guardian Judge, therefore admitted that the learned trial Court has passed these orders as Family Court. Even otherwise we have seen that application under section 25 of the Guardians and Wards Act, 1890 was moved, which has been dismissed by the learned trial Court, against which certainly an appeal is provided under section 47(c) of the Guardians and Wards Act, 1890; which is reproduced as under for ready reference:-- "47. Orders appealable.-An appeal shall lie to the High Court from an order made by a District Court,--
(a) under section 7, appointing or declaring to appoint or declare a guardian; or
(b) under section 9, subsection (3), returning an application; or
(c) under section 25, making or refusing to make an order for the return of a ward to the custody and of his guardian; or
(d) under section 26, refusing leave for the removal of a ward from the limits of the jurisdiction of the Court, or imposing conditions with respect thereto; or
(e) under section 28 or section 29, refusing permission to a guardian to do an act referred to in the section; or
(f) under section 32 defining, restricting or extending the powers of guardian; or
(g) under section 39 removing a guardian; or
(h) under section 42, refusing to discharge a guardian; or
(i) under section 43, regulating the conduct or proceedings of a guardian or settling a matter in difference between joint guardians, or enforcing the order; or
(j) under section 44, imposing a penalty:"
If against the original order an appeal is provided, no I.C.A is competent in the light of Proviso to subsection (2) of section 3 of the Law Reforms Ordinance, 1972. Even otherwise against the order of visitation passed by learned trial Court, appeal has been preferred by the appellant herself under section 14(b) of the West Pakistan Family Courts Act, 1964, which is as follows: "14. Appeal. Notwithstanding anything provided in any other law for the time being in force, a decision given or a decree passed by a Family Court shall be appealable-
(a) to the High Court, where the Family Court is presided over by a District Judge, an Additional District Judge, or a person notified by government to be of the rank and status of a District Judge or an Additional District Judge.
(b) to the District Court; in any other case."
7. All the arguments advanced by learned counsel for the appellant seem to be academic in nature because same are not relevant in this case. As for determination of maintainability of appeal, it is immaterial whether any specific party to the proceedings has a right of appeal or not.
For determination it is sufficient that against the original order i,e, passed by the learned Guardian Judge/Judge Family Court in this case, the appeal was provided or not. Certainly the respondent was having a right to file an appeal under section 47 of Guardians and Wards Act, 1890, as the application made before the Guardian Judge was for the entrustment and transfer of guardianship and custody of minor, therefore appeal in hand is not maintainable. The case-law referred to by learned counsel for the appellant is not applicable to the facts of this case.
8.When the appeal filed by the appellant herself under section 14 of the West Pakistan Family Courts Act, 1964 was dismissed, she preferred writ petition before this Court which was heard and decided by the learned Single Judge, on this score also I.C.A is not competent. The appellant cannot be permitted to blow hot and cold in the same breath.
9.In this view of the matter, we hold that the instant appeal is not competent. It is hereby dismissed.