' MALIK SHAHZAD AHMAD KHAN, J.---This constitutional petition has been filed against the impugned order dated 21-2-2013, passed by learned Judge Guardian Court, Rawalpindi, whereby the application under section 25 of the Guardians and Wards Act, 1890, filed by respondents Nos.1 and 2 for the custody of the minor Muhammad Hussain was accepted, as well as against the impugned judgment dated 12-11-2013, passed by learned Additional District Judge, Rawalpindi, whereby the appeal filed against the above mentioned order was dismissed.
2. As per brief facts of the present case, respondents Nos.1 and 2 filed an application under section 25 of the Guardians and Wards Act, 1890 against the petitioner No,1 and Abdul Latif Minhas (since died during the pendency of guardian petition) for the custody of minor' Muhammad Hussain by contending therein that they are real paternal grand parents of minor Muhammad Hussain. Mst.
Gohar Fatima (petitioner No,1) was married with Captain Farooq Ahmad Lodhi, who died on 10-7- 2007. After the death of son of respondents Nos.1 and 2, the petitioner No,1, shifted to her parents house, whereas the minor Muhammad Hussain was born later on It was further averred in the guardian petition that Mst. Gohar Fatima contracted second marriage with Iftikhar Ali on 14-12- 2009 and she was living with her husband, whereas the minor Muhammad Hussain was living at the mercy of the servants at the house of parents of petitioner No,1. It was further contended in the petition that parents of petitioner No,1 were not in a position to look after the minor, therefore, custody of the minor Muhammad Hussain be handed over to respondents Nos.1 and 2, as they were entitled for the same, being real paternal grandparents. Mst. Gohar Fatima (petitioner No,1) and Abdul Latif Minhas (since died during the pendency of guardian petition), resisted the application, filed by respondents Nos.1 and 2. The said application, filed by respondents Nos. 1 and 2 was accepted vide impugned order dated 21-2-2013, passed by learned Judge Guardian Court, Rawalpindi. The appeal filed by the petitioners was dismissed vide the impugned judgment dated 12-11-2013, passed by learned Additional District Judge, Rawalpindi, hence the present constitutional petition before this court.
3. It is contended by learned counsel for the petitioners that the impugned decisions of the courts below are result of misreading and non-reading of evidence available on the record; that the first application for the custody of the minor Muhammad Hussain, filed by respondents Nos.1 and 2 was dismissed on merits by the learned Judge Guardian Court, Rawalpindi vide the order dated 7-6- 2008 and in that order, the learned Judge has specifically mentioned that the welfare of the minor lies with his real mother (petitioner No,1) but subsequently the second application, filed by respondents Nos.1 and 2 has been accepted without any legal justification; that the second application of the above mentioned respondents was accepted mainly on the ground that the petitioner No,1 has contracted second marriage but mere this fact that the petitioner No,1 has contracted second marriage would not disentitle her to the custody of the minor; that the impugned decisions have been passed on the grounds that the witnesses of respondents Nos.1 and 2 were not cross examined and their evidence remained un-rebutted but the statements of the witnesses of respondents Nos.1 and 2 were recorded on 21-2-2013 and without providing any opportunity of cross examination to the petitioner, on the same day, the impugned order dated 21- 2-2013 was passed by the learned Judge Guardian Court, Rawalpindi whereby. Guardian Petition filed by respondents Nos. 1 and 2 was accepted; that it has wrongly been held in the impugned decisions that the right to cross-examine the witnesses of respondents Nos.1 and 2 was closed on 6-1-2012 because no examination in chief of the above-mentioned witnesses was recorded by the learned Judge Guardian Court, Rawalpindi before 6-1-2012, therefore, the question of cross- examination on the witnesses of abovementioned respondents, does not arise; that even affidavits of witnesses of respondents Nos.1 and 2 were not exhibited on 5-10-2011 and the same were merely filed on the said date before the learned Judge Guardian Court, Rawalpindi; that after recording the examination in chief of the witnesses of respondents Nos.1 and 2 no opportunity was given to the petitioners to cross examine the said witnesses and to produce evidence in rebuttal, therefore, the impugned decisions of the courts below are not sustainable in the eye of law.
4. This petition has vehemently been opposed by learned counsel for respondents Nos.1 and 2 on the grounds that the affidavits of the witnesses of respondents Nos.1 and 2 were submitted before the learned Judge Guardian Court on 15-10-2011 and if the same were not exhibited in evidence, then it can merely be termed a technicality; that the witnesses of the above mentioned respondents kept on appearing before the learned Judge Guardian Court, Rawalpindi on numerous dates of hearing but they 'were not cross-examined by learned counsel for the petitioners, therefore, right of cross examination of the petitioners was rightly closed vide order dated 6-1-2012; that as number of opportunities were already granted to the petitioners to cross- examine the witnesses of respondents Nos.1 and 2 therefore, there was absolutely no need for giving any further opportunity or cross-examination to the -petitioners; that as the petitioner No,1 has contracted a second marriage, therefore, it is in the welfare of the minor to hand over his custody to respondents Nos.1 and 2; that as there was no evidence in rebuttal to the evidence produced by respondents Nos.1 and 2, therefore, the impugned decisions of the courts below have rightly been passed against the petitioners; that there is no 'substance in the instant petition, hence the same may be dismissed.
5. Arguments heard and record perused.
6. Petitioner No,1 is real mother of the minor Muhammad Hussain, whereas respondents Nos.1 and 2 are paternal grandparents of the minor. The first application for the custody of the minor, filed by respondents Nos.1 and 2 was dismissed on merits by the learned Judge Guardian Court, Rawalpindi vide order dated 7-6-2008 and it was held that as petitioner No,1 is real mother of the minor Muhammad Hussain. Therefore, the welfare of the minor lies with the said petitioner. The second petition for the custody of the minor, moved by respondents Nos.1 and 2 has been accepted by the learned Judge Guardian Court, Rawalpindi mainly on the ground that the evidence of said respondents was not subjected to cross examination and the same remained unchallenged and un-rebutted, therefore, it was held that welfare of the minor lies with the above mentioned respondents. I have noted that examination-in-chief of the witnesses of above mentioned respondents namely Mst. Musarrat Farooq Lodhi (AW-1) and Farooq Ahmad Lodhi (AW-2) was recorded on 21-2-2013 and their affidavits were also exhibited in evidence as Exh.P and Exh.P2 on the same day i,e,, 21-2-2013 but without providing any opportunity to cross-examine the said witnesses, the impugned order dated 21-2-2013 was passed by the learned Judge Guardian Court, Rawalpindi on the same day i,e, 21-3-2013 whereby application for the custody of minor namely Muhammad Hussain, moved by respondents Nos.1 and 2 was accepted. It is not mentioned under the statements of the above-mentioned witnesses that any opportunity to cross-examine the above-mentioned witnesses was provided to the petitioners and they refused to cross-examine the said witnesses. Although the affidavits of the above mentioned witnesses were submitted before the court on 15-10-2011 but admittedly neither the said affidavits were exhibited in evidence nor examination-in-chief of the above mentioned witnesses were recorded on the said date, therefore, it has been wrongly held in the impugned A decisions of the courts below that the right to cross examine the above mentioned witnesses was given to the petitioners but they failed to cross examine he witnesses of respondents Nos.1 and 2. As mentioned earlier, no examination-in-chief of the witnesses of respondents Nos.1 and 2 was recorded on 15-10-2011, therefore, the right to cross examine the said witnesses has illegally been closed by the learned Judge Guardian Court Rawalpindi on 6-1-2013. Furthermore, the examination-in-chief of the witnesses of, respondents Nos.1 and 2 was recorded on 21-2-2013 and their affidavits were also exhibited on the same day i,e,, 21-2-2013, therefore, the right to cross examine the said witnesses cannot be closed on 6-1-2012, when there was neither any examination-in-chief of the witnesses of the respondents Nos.1 and 2 nor their affidavits were exhibited in evidence.
7. In the light of above discussion, this constitutional petition is hereby accepted and the impugned order dated 21-2-2013, passed by learned Judge Guardian Court, Rawalpindi, as well as, the impugned judgment dated 1211-2013, passed by learned Additional District Judge, Rawalpindi are hereby set aside. The case is remanded back to the learned Judge Guardian Court, Rawalpindi with the direction that he will provide opportunity to the petitioners to cross examine the witnesses of respondents Nos.1 and 2 and thereafter he will also provide an opportunity to the petitioners to produce evidence in rebuttal. The, petition under section 25 of the Guardians and Wards Act, 1890, filed by respondents Nos. 1 and 2 shall be deemed to be pending before the learned Judge Guardian Court, Rawalpindi. Parties are directed to appear before the learned Judge Guardian Court, Rawalpindi on 7-4-2014.