SALAHUDDIN PANHW AR, J.---- Record reflects that service was held good against respondent No.1 after observing all service modes.
2. On merits, he contends that matter pertains to custody of minors namely Amna Batool, Dua Batool, Araf Batool, Muhammad Qavi and Muhammad Rehan Mateen however he admits that during pendency of litigation they (minors) have attained the age of majority . He refers to the judgment passed by the apex Court whereby instant petition was remanded back on the ground that order of this Court dated 05.05.2017 whereby instant petition was dismissed, is not speaking. He contends that he preferred petition for custody of minors, same was partly allowed however custody of three kids was not allowed hence he preferred Civil Appeal No.40/201 1 but learned District Judge dismissed his appeal and declined custody of the kids who are residing with their mother (respondent No.1).
At this juncture, the petitioner was confronted with the fact that how the petition, arose out of G&W Act, would sustain when minors have attained majority? To this, it is contended that respondent No.1 has contracted marriage with a criminal person who is an active member of land mafia, he further conten ds that at present his children, being major are studying in different colleges, hence issue of welfare of his childre n can be decided by this Court even if they have attained the age of majority . He states that he intends to transfer his property to his children due to his love and affection towards them. He also emphasizes over order dated 06.03.2014 passed by this Court whereby respondent No.1 and her husband Mitha Khan were called. He relied upon PLD 1984 Kar . 245 .
3. Prima facie, issue of custody of minors was decided by the trial Court as well appellate Court which the petitioner claims to be against the law however it is an admitted position that meanwhile the minors have attained majority hence are no more minors. The position, being so, gives rise to a proposition i.e.:- "What would be effect of attaining of majority during continuity of a lis, arising out of G&W Act?
I would not hesitate in saying that every special law is aimed to absolutely and exclusive deal with special situation or subject. It is always the law which vests jurisdiction and mere status of a court shall be of no legal effect to dress it up as special court unless and until the special law so directs. Normally every 'adult ' person is believed to be aware of consequences of his acts and omissions but in the case of a minor such is not the position and legally he (minor) cannot enjoy the right of choosing which otherwise is available to an 'adult '. In short, the minority itself is taken as legal disability therefore, to ensure a proper care and protection to the 'welfare of minor' the State enacted "The Guardians and W ards Act".
The Act is a special law and was / is enacted to consolidate and amend the law relating to guardian and ward .
The term 'ward' has been defined by the Act itself as:- "Section 4(3). ' ward ' means a minor for whose person or property or both there is a guardian; This prima facie means that a guardian Court would have jurisdiction only if the question of person or property of a minor is involved or is brought before the Guardian Court which, in law, is the ultimate guardian of the welfare of the minor regardless of dispute that it is for person or property of minor or for both. The moment legal disability (minority) turns into legal ability (majority) not only jurisdiction of the Guardian Court shall come to an end but also the powers of guardian, even if appointed, ceases. This even has been made clear by the Act itself by Sections 41(1)(c) and 41(2)(c) for both i.e. 'powers of a guardian of person' and 'powers of a guardian of the property' as:- "by the ward ceasing to be a minor; "
I would add a little that continuity of a lis includes appeal too which, in legal parlance is the continuity of original lis.
Needless to say that Constitutional jurisdiction of this Court in matters of writ of certiorari is not an independent jurisdiction but is meant to control and supervise the jurisdictional power (s) of subordinate courts / tribunals B hence at any stage of the continuity of a lis the turning of legal disability (minority) into legal ability (majority) would render such lis infructuous and any order would be coram non judice because it is a cardinal principle of law that the jurisdiction must be acquired before a judgment is given, and a judgment rendered by a Court which has no jurisdiction in the matter , is a nullity in the eye of law. Reference may be wade to case of Mst. Imtiaz Begum v.
Sheikh Azmat Ullah PLD 1959 Lahore 750. The concern of a parent towards his children regardless of their minority or majority cannot be doubted nor he/she (parent) cannot be prevented from such concern but such concern or apprehension alone would never be sufficient to infringe any of the fundamental rights which otherwise are guaranteed by Chapter-II of the Constitution. Further , involvement of Mitha Khan (husband of respondent No.1) in criminal cases though was not considered at the trial stage however same at his stage is not helpful for the petitioner as minors have attained the age of majority . I would be completely safe in saying that no such jurisdiction lies with Guardian Court; its appellate or supervisory Court. The above proposition stands answered accordingly .
4. With regard to judgment reported in PLD 1984 Kar. 245 passed by a divisional bench of this Court wherein it is held that in case of admission, plea of petitioner therein would be allowed; that citation pertains to Local Government Election and is not helpful for the petitioner .
5. In consequence to above answer to framed proposition, the instant petition has become infructuous and is dismissed as such.
However , while parting I would respond to other plea (s), raised by petitioner , regarding his intention to transfer his property in favour of his children. It would suffice to say that since the no law of the lands restricts the petitioner from making such transfer of his property in favour of his children (if same is free from all encumbrances) then he needs no permission of any Court nor this intention alone could help him to control the wishes of an adult if he (adult) chooses otherwise.
6. With regard to influence of criminal person and apprehension of father (petitioner) that his children are still in youthful age and their future may ruin by the person who is involved in criminal cases, it would suffice to say that petitioner would be at liberty to approach concerned Magistrate as well SSP concerned if situation so demands.
The SSP concerned, if approached, shall investigate the matter and shall ensure that children of petitioner are safe; in case there is serious apprehension, steps shall be taken to provide complete protection to them which even otherwise is responsibility of the police.