' FAKHRUDDIN G. EBRAHIM, J.-This Constitutional petition under tide 199 of the Constitution is directed against an appellate order made by the learned Additional Sessions Judge, Karachi allowing the appeal filed by respondent No, 2 herein against the order of the Family Court awarding the custody of his minor daughter Ambreen to the petitioners Nos. 2 and 3 herein jointly. We may at once point out that the minor is today 11 years 11 months old and it is unfortunate that this litigation which commenced as far back as October, 1968 when the petitioners moved an application under section 25 of the Guardians and Wards Act, was not concluded in the lower Court until 1st March, 1975 and this Constitutional Petition has remained pending since the year 1975.
2. The petitioner No. 1 is the grandfather of the minor Ambreen who was born out of a wedlock between respondent No, 2 and Salma, the deceased daughter of petitioner No. 1. The marriage took place on 26-8-1966. Ambreen was born on 6-9-1967. The mother, Mst. Salma unfortunately died on 28-8-1968. The application under section 25 of the Guardians and Wards Act was made by the grandfather of the petitioner No. 1 and the prayer was that the minor's custody be given to Mst.
Raisa Begum the step-mother of Mst. Salma and Mst. Hameeda Begum the maternal consanguine aunt of the minor. In other words Mst. Hameeda Begum is the step sister of the deceased Mst.
Salma. The Family Court as aforesaid awarded custody to these two ladies which order was reversed in appeal which is the order impugned in this petition.
2. Mr. Wajihuddin, the learned counsel for the petitioners raised two contentions in support of this petition, the first being that under Muslim Law mother's mother and maternal aunt had a preferential right to the custody of the child as against the father and other relations of the minor's father and, therefore, the custody was rightly granted to petitioners Nos. 2 and 3, which order ought not to have been interfered with by the Appellate Court. The learned counsel is right at least to this extent that Mst. Hameeda Begum the maternal aunt of the child had the preferential right to obtain custody though there is some doubt as regards the preferential right of mother's mother inasmuch as it is not clear whether a step-grandmother would also be included in this category. Be that as it may, the settled law is that at best there is a presumption that the Hizanat be granted to the persons who have preferential right under the Muslim law, but the decisive consideration in making an order awarding custody to one or the other person is the welfare of the child. Therefore, a Court hearing an application under section 25 of the Guardians and Wards Act may grant custody to a person other than one who is entitled to its custody under Muslim law if the welfare of the child so demands. In the present case the two reasons which prevailed with the Appellate Court for not granting custody to the petitioners Nos. 2 and 3 were that the minor Ambreen had been taken care by the father right from the date of the birth. The child had been very well looked after and in so far as the petitioners are concerned they had not spent any amount over the minor at any time, since her birth. The Appellate Court also repelled the contention that the father who was a doctor in Government service was by reason of his occupation unable to take care of the child for it had been demonstrated before him that in fact he had taken good care of the child. If for these reasons the Appellate Court came to the conclusion that the petitioners Nos. 2 and 3 Were not entitled to the custody of the child, an order admittedly within the competence of the Court below, there is hardly any room for interference in or Constitutional jurisdiction under Article 199 of the Constitution. We may here with advantage refer to the observation of this Court in the case reported in Haroon Alam v. N.I.R.C. (1): '................... By the terms of the powers conferred upon this Court by Article 201 {{FOOT NOTE}}
(1) 1974 PLC 161 {{FOOT NOTE}} ' of the Interim Constitution or Art. 199 of the present Constitution. As I understand the Articles, the precursor of which is Article 98 of the 1962 Constitution, the function of the High Court is to ensure that all other Tribunals Act within the limits of their own powers. If they do so then although they may come to a wrong finding of fact or even of law I do not think that the High Court would be justified in interfering for jurisdiction to decide must include the jurisdiction to decide wrongly as well as the jurisdiction to decide rightly. If, therefore, we were to be satisfied that the proceedings are validly maintainable before the Commission we would not any how interfere and the argument raised on Article 216, therefore, would be deprived of any practical importance, and the Supreme Court judgment reported in Muhammad Husain Munir v. Sikandar and others (I) observed that :- "The High Court's supervisory jurisdiction under Article 98(2) (a) (ii) of the 1962 Constitution (for that matter under Article 199(i) (a)(ii) of the present Constitution) having regard to its nature of content is assailable to its jurisdiction under section 115, Civil Procedure Code except in two important respects ; first ; the former jurisdiction being a creation of the Constitution stands in a higher pedestal than that under section 115, C. P. C. Second : the former jurisdiction has a wider reach than the jurisdiction under section 115, Civil Procedure Code, which is confined to subordinate Courts.
However, that may be, it is wholly wrong to consider that the above Constitutional Provision was designed to empower the High Court to interfere with the decision of a Court or Tribunal of inferior jurisdiction, merely because in its opinion "the decision is wrong. In that case, it would make the High Court's jurisdiction indistinguishable from that exercisable in a full-fledged appeal, which plainly is not the intention of the Constitution maker."
3. The result, therefore, is that this petition is dismissed but in the circumstances there will be no order as to costs.
4. Before we part we observe that Mr. Wajihuddin rightly pointed out that the petitioners are after all the maternal relations of the child and the child should become stranger to them. His request was that we may pass an order whereby the minor has the opportunity of meeting her maternal relations. The request is to or mind eminently fit and proper. We find from the record of the present case that a consent order was made on 26-2-1979 to enable the maternal relations of the child to meet the child during the pendency of this petition. The arrangement contained in this order will continue at least once every fortnight, to begin with. If Mr. S. M. Raza, the learned counsel who had kindly consented to arrange the meeting of the child and the maternal relations at his residence is for some reasons unable to continue the arrangement, the parties will be at liberty to seek further directions from this Covet.