1. ' This petition under Article 199 of the Constitution of Pakistan read with Article 9 of the Provisional Constitution Order, 1981, is directed against the order of 1st Family Judge and Senior Civil Judge, Karachi, respondent No, 3, dated 19-7-1980, passed in Family Suit No, 628/1918 and the judgment of VIlth Additional District Judge, Karachi, respondent No, 2, dated 26-5-1982, delivered in Family Suit No, 123/1980, dismissing the appeal.
2. ' The facts leading to the filing of this petition briefly stated, are that on an application under sections 10, 12 and 25 of the Guardian and Wards Act, 1890, made by the respondent, the family Judge allowed custody of the minor "SHAHID" who was at the time of making the application, in 1978 was about 4 years, to the respondent/applicant, by the order impugned in this petition.
3. ' The petitioner filed an appeal against the order, which was dismissed.
4. ' I have heard Mr. Farman A. Hashmi, learned counsel for the petitioner.
5. ' The only ground that he has urged in support of this petition is that respondents 2 and 3 have not given any finding on the point as to with whom the welfare of the minor lies.
6. ' In my view, the submission is not correct for respondent 2 after elaborately discussing the background and the facts of case, in paragraph '7' of the judgment has stated as follows :- "7. Judging the present appeal in the light of the above dictum of the Supreme Court and other authorities on this point, 1 have come to the conclusion on the basis of evidence that the respondent Ghulam Waris being the father and natural Guardian of minor Shahid was and is entitled to the custody of his son after Mst. Shamim married a second husband and removed the child without the consent of the natural guardian. The learned Family Court Judge has rightly come to the conclusion that the welfare of the child lies with his real father and not with the step-father or appellant, who naturally has to look after her other children. There is nothing on record to show that the natural guardian i,e,, father is unfit to hold the custody. The minor in this case has been kept away from his father thus depriving the father to exercise his supervision or control on the minor. The stepfather is quite stranger to the minor and one cannot hope that he would treat the minor like his real son in comparison to his real father. The appellant is dependent on her new husband thus the minor cannot be properly looked after and get good education. The welfare of the minor therefore, in the circumstances of the case lies with his father."
7. ' The respondent 3 also in the impugned judgment, on issue No, 2 has stated that the welfare of the minor lies with the person who has been allowed Hizanat of the minor (under the personal law) and after discussing the evidence, he has stated that "on this reason, I can say that the welfare of the minor lies in his custody with the applicant (respondent)".
8. ' Therefore, the stand of the learned counsel that respondents 2 and 3 have not given any finding as to with whom the welfare of the minor lies is not correct.
9. Even if I assume that case has been incorrectly or wrongly decided it cannot make the order as one without jurisdiction.
10. ' Here the observation of Hamoodur Rahman, C. J., in Nawab Sye Raunaq All v. Chief Settlement Commissioner and others (I) may be quoted with advantage.
11. "It is no doubt true that there is a clear distinction between an act wholl without jurisdiction and an act done in the improper exercise of that jurisdiction. Where there is jurisdiction to decide, then as it has often been said there is jurisdiction to decide either rightly or wrongly, and merely a wrong decision does not render the decision without jurisdiction. To amount to a nullity, an act must be non-existent in the eye of law ; that is to say, it must be wholly without jurisdiction or performs in such a way that the law regards it as a mere colourable, exercise of jurisdiction or unlawful usurpation of jurisdiction."
12. ' I therefore, find no substance in this petition and accordingly dismiss it. However, I leave the parties to bear their own costs as Miss Wallail Zahid, learned counsel for respondent No, 1 does not claim any costs.
(1) PLD 1973 SC 236