' MIRZA VIQAS RAUF, J.---By way of this single judgment, I intend to dispose of the instant petition along with Writ Petition No.626 of 2005 as both the petitions have arisen from a consolidated judgment.
2. Brief facts culminating into the decision of above petitions are that Mst. Sardaran Bibi i.e. The original petitioner herein, filed a petition under section 25 of the Guardians and Wards Act, 1890 against respondent No.3 before the learned Senior Civil Judge/Guardian Judge, Mianwali, claiming the custody of minor Sumaira Bibi statedly aged about 7 years. Mst. Sardaran Bibi was maternal grant mother of the minor Sumaira Bibi whereas respondent No.3 is her father. Similarly, respondent No.3 also filed a petition for custody of the minor namely Mst. Gurriya statedly aged about 3/4 years. The said petition was filed against Messrs Muhammad Zaman Khan and others (the petitioners in connected W. P. No.626 of 2005), claiming that the minor Mst. Gurriya (daughter) is in custody of Messrs Muhammad Zaman Khan. Respondent No.3 as well as Messrs Muzafar Khan contested the said petitions by way of filing their respective replies of the said petitions wherein assertions contained in the petitions were controverted.
3. Both the above said petitions were consolidated vide order dated 18.09.2003 by the learned Guardian Judge, Mianwali and the following consolidated issues were framed:--
1. In whose custody welfare of minors Gurria and Sumera Bibi lies?OP Parties.
2. Relief.
4. After framing of issues, both the parties adduced their evidence and in this context, Hayat Ullah Khan appeared as AW-1 and also examined Rafi Ullah as AW-2. In addition to this oral evidence, school certificate of minor Sumaira Bibi was also tendered as Ex.A 1. In contrary, the petitioner appeared herself as RW-1 and Muhammad Zaman Khan was examined as RW-2.
5. After completion of the evidence from both the sides, the learned Guardian Judge accepted the petition filed by Hayat Ullah Khan i.e. Respondent No.3 and dismissed the petition filed by the petitioner Vide judgment dated 06.05.2004. The petitioner as well as Messrs Muhammad Zaman Khan etc. (the petitioners in the connected writ petition) preferred two separate appeals against the judgment passed by the learned Guardian Judge before the learned Addl. District Judge, Mianwali. Both the appeals were consolidated and in pursuance thereof, vide consolidated judgment dated 20.10.2004, the learned Addl. District Judge dismissed both the appeals. The instant writ petitions have been preferred against the said consolidated judgments passed by both the courts below.
6. In both the petitions, learned counsel for the petitioners submits that the minors namely Sumaira Bibi and Mst. Gurriya were born from the wedlock of Hayat Ullah Khan and Mst. Naziran Bibi as Mst.
Naziran Bibi was a cancer patient, so, immediately before her death, she was shifted to her parents house along with two minor daughters. He contends that after death of Mst. Naziran Bibi, minors remain in custody of Mst. Sardaran Bibi, their maternal grandmother. He further adds that respondent No.3 forcibly removed the minor Sumaira Bibi from the custody of her maternal grand mother. In support of his contention, he refers certain portion of evidence. Further maintains that certain developments have also taken place during pendency of the litigation and some of these are that respondent No.3 has contracted second marriage out of which he has a son now. Further maintains that the mother of respondent No.3 also died during this period. Learned counsel further submits that Mst. Sardaran Bibi i.e. Original petitioner in the instant writ petition also died during pendency of instant petition as a result of which her legal heirs were impleaded as petitioners.
Learned counsel refers Para 353 of the Muhammadan Law in support of his contentions wherein certain close relations have been mentioned in case of absence of the mother to whom the custody of the minor vests. He also relies on the judgments of the Hon'ble Apex Courts reported as "Ch. Nazir Ahmad.v. Additional District Judge lll, Sahiwal and others" (1988 SCM R 1359) and "Mst.
Naseem Akhtar v. District Judge, Multan and others" (2009 SCM R 1052).
7. Conversely, learned counsel for respondent No.3 conceded that Mst. Naziran Bibi mother of the minors was residing in her parents house at the time of her death along with the minors. He, however, maintains that minor Sumaira Bibi was handed over to respondent No.3 by her maternal grand parents thereafter. Further adds that the father is the natural guardian and the welfare of the minors vest with him. He also controverts the arguments of learned counsel for the petitioner with regard to second marriage of respondent No.3 as well as any issue arising therefrom. In the last, he submits that there are .Concurrent findings of both the courts below which cannot be interfered with in exercise of writ jurisdiction. In support of his contentions, he relies on the cases reported as "Mst. Maryam Mai v. Judge Family Court, D. G. Khan and 4 others" (2004 SCM R 1382) and "Mst. Zubaida Begum V. Additional District Judge and others" (2002 M LD 202).
8. Having heard the learned counsel for the parties and after perusal of the record, this Court observed that the learned courts below were persuaded with the evidence that respondent No.3 is the father of the minors and he has not contracted second marriage. Furthermore, he is living with his parents and above all, he can better look after the minors. The evidence led by both the sides clearly suggests that respondent No.3 being father of the minors is their natural guardian and he also got admitted the minor Sumaira Bibi in school where she is studying and both the courts below after duly appreciating the evidence available on record reached at the conclusion that welfare of the minors vests with respondent No.3. It is also an admitted fact that Mst. Sardaran Bibi maternal grand mother of the minors had died during pendency of the instant petition. In this view of the matter, contention of learned counsel for the petitioner regarding preferential right of female relations in default of mother as laid down in Para 353 of the Muhammadan Law vanishes. In such an eventuality, Para 355 of the Muhammadan Law will come into play which reads as under:-- "355. Right of male paternal relations in default of female relations.---In default of the mother and the female relations mentioned in section 353, the custody belongs to the following persons in the order given below:-
(1) the father;
(2) nearest paternal grandfather;
(3) full brother;
(4) consanguine brother;
(5) full brother's son;
(6) consanguine brother's son;
(7) full brother of the father;
(8) consanguine brother of the father;
(9) son of the father;
(10) son of father's consanguine brother; ' Provided that no male is entitled to the custody of an unmarried girl, unless he stands within the prohibited degree of relation to her.
' If there be none of these, it is for the Court to appoint a guardian of the person of a minor."
9. The above referred provision of law clearly leans in favour of the father. So far as the judgments referred by learned counsel for the petitioner are concerned, in the judgment reported as "Ch. Nazir Ahmad v Additional District Judge III, Sahiwal and others" (1988 SCM R 1359), to my humble view, the facts were altogether different as in that case, one of the considerations for the refusal of custody to the father was that he got remarried and had children from the second wife but in this case, no such marriage has taken place and even when the learned counsel for petitioner was asked to place on record. The proof with regard to second marriage, he failed to do so. Similarly, the facts of the judgment reported as "Mst. Naseem Akhtar v. District Judge, Multan and others" (2009 SCM R 1052), are not similar to the facts of instant petition. The facts involved in the instant petition clearly attracts the principle laid down in the judgment reported as "Mst. Maryam Mai v. Judge Family Court D.G. Khan and 4 others" (2004 SCM R 1382) wherein the Hon'ble Apex Court in similar circumstances, laid down in Para-4 at Page-1384, the following principle:-- "No doubt, that the minor has been living with the petitioner ever since her birth but she is an old lady with ,weak eyesight and hard of hearings. It is on record that the minor's arm was fractured and due to careless treatment, her arm has not been fully recovered. It is also admitted by the petitioner in her statement that a school and a mosque are adjacent to her house but the minor was neither admitted in the school nor any arrangement was made for her religious studies. She also admitted that neither she nor her husband has learnt the Holy Qur'an. As against it, the respondent's case is that he and his parent who own sufficient land can take care of the minor, in more appropriate manner that the petitioner being natural guardian."
10. In view of the above discussion, this Court is of the view that both the courts below have very ably appreciated the evidence and after due appreciation, reached at their conclusion. The concurrent findings, in my humble view, did not suffer any illegality or perversity, calling for any interference by this Court while exercising the writ jurisdiction. It is further held that constitutional petition cannot be resorted to challenge an order on the ground that evidence was not properly appreciated as findings of the facts recorded by the Court of competent jurisdiction cannot be disturbed solely on the ground that another view could be possible on the same evidence, The High Court in its constitutional jurisdiction cannot sit as a Court of Appeal. Even otherwise, in the wake of fresh developments, in terms of facts as well as law laid down in Para 355 of the Muhammadan Law, the father being natural guardian has preferential right of custody of the minors. This being so, the instant petition fails and is dismissed with no order as to costs.