' This is a petition under Article 9 of the Provisional Constitution Order, 1981, whereby Mst. Azeeman petitioner wants this Court to declare the order, dated 10-11-1982 of the learned Additional District Judge, Rajanpur, to be without lawful authority and of no legal effect.
2. The facts leading up to this writ petition in brief are that on 22-1-1981, Mst. Azeeman moved application under section 25 of the Guardian and Wards Act, against Allah Ditta respondent before the Guardian Judge, Dera Ghazi Khan for the custody of 7 minor children of her deceased daughter. The application was contested. The trial Court framed the following issues :
(1) Whether the petition is competent on behalf of the petitioner ?
O.P.P.
(2) If issue No, 1 is found in affirmative, whether it is in the welfare of the minors that their custody may be given to the petitioner ?
O.P.P.
(3) Whether the petition is mala fide and the respondent is entitled to get special costs from the petitioner ? If so to what extent ? O.P.P.
(4) Whether the petitioner had moved a similar application earlier and the same was dismissed ? If so, with what legal consequences ? O.P.P.
(5) Relief.
' The trial Court found all the issues in favour of the petitioner and directed that custody of the minors be delivered to her. Feeling aggrieved Allah Ditta respondent filed appeal before the learned District Judge which was entrusted to the learned Additional District Judge, Rajanpur respondent No, 2, who while maintaining the findings of the learned Guardian Judge on issues Nos.
3 and 4 reversed his findings on issues Nos. 1 and 2 and consequently dismissed the application of the petitioners.
3. Learned counsel submits that the finding on these issues is based on the non-reading of the material evidence inasmuch as that Exh. P. 1, annexure 'F' order of the Guardian Judge passed in the earlier application between the parties which was very much relevant for the disposal of issue No, 1 was not considered by the trial Court. Furthermore, the evidence of Abdul Rehman, Dur Muhammad, Nazar Muhammad and Mst. Azeeman P. Ws. Was not discussed while deciding issue No, 2.
As against this, the learned counsel for the respondents has vehemently supported the judgment of the learned Additional District Judge.
4. After hearing the learned counsel for the parties, I find that the learned Additional District Judge while discussing issue No, 1 has stated : "First preliminary objection of respondent raised in written statement was that petition was not maintainable. I propose to disagree. Mst. Azeeman is not a guardian of minors. She has no right of custody. It is doubtful that the minors were taken out or removed from her custody. It is in evidence that ever since the death of their mother the minors were living with their father. Thus the provisions of section 25 Guardians and Wards Act are not applicable to the facts of the present case: I upset the finding of trial judge on issue No, 1 and hold that the petition is not maintainable."
' While discussing issue No, 2, the learned Additional District Judge has stated that : "There is another wife of Allah Ditta the father of the minor. She was the first wife of Allah Ditta. Her children must be grow-up. The mother of Atta Rasul, etc. The minors was second wife of Allah Ditta.
The minors are living in the house of Allah Ditta situate in Dera Ghazi Khan town which is Divisional Headquarter, and has ample civic and educational facilities. Mst. Azeeman lives lonely in Hajipur village miles away in a secluded life. She is old lady with weak eye-sight. She is not living with any male who could look after the children. Atta Rasul R. W. Stated that his stepmother is treating the minors in a fair manner. Atta Rasul is studying in High School. I upset the findings of trial Judge on issue No, 2 and hold that it is in welfare of the minors that they should live with their father Allah Ditta. The custody and guardian ship of minors cannot be settled by private compromise or even arbitration. Learned trial judge has not declared the petition to be mala fide and has not awarded any special costs to the respondents. Learned trial judge held that a similar application moved by Mst. Azeeman earlier and withdrawn by her was no bar to the presentation of present application. I do not propose to upset the findings of trial Judge recorded on issues Nos. 3 and 4."
5. The plain reading of the relevants parts of the judgment indicate that the learned Additional District Judge has not taken into consideration Exh. P. 1, Annexure 'F' which reads as follows : {{URDU TEXT}} ' This order shows that on 6-1-1981 or prior to that the minors had been given in the custody of Mst.
Azeeman and as such the observations of the learned Additional District Judge while discussing issue No, 1 that "it is doubtful that the minors were taken out or removed from her custody. It is in evidence that ever-since the death of their mother, the minors were living with their father" is based on the non-reading of the material evidence which supported the case of the petitioner. As for issue No, 2, I find that the petitioner besides herself had examined 3 witnesses namely Abdul Rehman, Dur Muhammad and Nazar Muhammad to prove this issue. The bare reading of the decision of the learned Additional District Judge on issue No, 2 indicates that the learned Additional District Judge did not care to read and discuss the evidence of the petitioner on this issue, therefore, his finding on issue No, 2 suffers from some legal flaw and infirmity. I am of the view, that since the judgment of the learned Additional District Judge suffers from non-reading of the material evidence of the petitioner, the same cannot be termed as a legal judgment. The A learned Additional District Judge had no authority to decide issues Nos. 1 and 2 without taking into consideration Exh. P. I Annexure 'F' and the settlement of Abdul Rehman Dur Muhammad, Nazar Muhammad and Mst. Azeeman P. Ws. His judgment is, therefore, declared to be without lawful authority and of no legal effect. Since this Court normally does not substitute its own order for the orders of the lower Courts/Tribunals even in those cases where it does interfere., I send back the case to the learned Additional-District Judge, Rajanpur for fresh decision according to law. The parties are left to bear their own costs.