1. ' MUHAMMAD AFZAL ZULLAH, J.-Leave to appeal has been sought from judgment dated 9-7.1985 of the Lahore High Court; whereby a Writ Petition arising out of a guardianship matter filed by the petitioner, was dismissed.
2. ' The relevant facts as noted by the High Court are that : ' Mst. Najma Malik respondent applied for the recovery of custody of her minor son Zesnan from Abdul Rauf, her previous husband and Abdul Ghafoor the latter's father. The learned Guardian Judge by order dated 12-6-1984 passed under section 12 of the Guardians and Wards Act (No, VIII) of 1890 directed the production of the minor in Court as the interim measure so as to be dealt in accordance with law. The present petitioner who is very closely related to Abdul Rauf and his father was conducting the case on their benalf before the Guardian Judge. Several opportunities were sought by and through him to produce the minor before the Court but without any result. The learned Guardian Judge accordingly treating this as a case of defiancp -and directed the payment of fine at the rate of Rs, 10 per day till the delivery of the custody of the minor. This order was also not complied with by the petitioner, whereupon he was directed to be arrested and kept in the civil prison till the delivery by him of the custody of the minor to the respondent. The petitioner and Abdul Rauf then preferred an appeal, pleading that the minor had been removed out of the country and thus out of the jurisdiction of the learned trial Court. No evidence was, however, produced to substantiate this plea. Accordingly their appeal was dismissed with the finding that they had defined the directions of the learned Guardian Judge deliberately.
3. ' In. The Constitution petition filed in the High Court by petitioner alone, adjournment was sought on 26-3-1985 with the undertaking that the minor would be produced before the Guardian Judge.
4. Accordingly the order impugned in the High Court was suspended and the case was adjourned to 28-4-1985 and then to 5-6-1985. Despite these opportunities the petitioner failed to fulfil his undertaking made in the Court on 26-3-1985. He was allowed another adjournment to enable him to produce the child. He was also directed to produce the power of attorney executed in his favour by Abdul Rauf and Abdul Ghafoor.
5. ' Despite several efforts made by the learned Single Judge in the High Court so that the petitioner and his principles should give up the attitude of antagonism towards the Courts and comply with the direction of the learned Guardian Judge at least once so that further proceedings on the main petition might be conducted and concluded in favour of one or the other party, they have remained adament on their irrational attitude and unlawful defiance. Accordingly the writ petition met with the expected result, namely, its dismissal. The concluding paragraph of the impugned judgment reads as follows : "After hearing learned counsel for the petitioner at some length I am convinced that the petitioner in collusion with Abdur Rauf, previous husband of Mst. Najma Malik, deliberately did not deliver the minor to Mst. Najma Malik. The petitioner who was reportedly brother-in-law of Abdul Rauf has contumaciously tried to frustrate the order of the learned Guardian Judge. In my view, he is not entitled to any discretionary relief as he has approached this Court with unclean hands."
6. So long as the petitioner and/or Abdul Rauf pursue the same old wrong path it would not be possible to obtain any relief either in the discretionary writ jurisdiction of the High Court or in the discretionary jurisdiction of this Court to grant leave to appeal. In the circumstances like those of the present case this Court would not grant any discretionary relief. This petition, therefore merits to be dismissed on the simple ground that it is not a fit case for grant of leave to appeal.
7. It is however observed that if so advised the petitioner can even now-approach the learned Guardian Judge with a fresh application and should make an effort to show his bona fides. If such an application is made and the previous direclions of the learned Guardian Judge are complied with, there is no reason to apprehend that the further proceedings in the main petition for the custody of the minor shall not be conducted in accordance with the law and the justice in the light of the facts and circumstances of the case. The fact that the father and the grand-father of the minor are ordinary residents of a foreign country can be brought to the notice of the Guardian Judge when the question of the advisability of the transfer of the custody of the minor on permanent basis from them to the mother arises for the final decision of the main petition. The only fact that on question of interim custody the petitioners remained unsuccessful up to the Supreme Court would not necessarily mean that they would also remain unsuccessful on the major question of the welfare of the minor when deciding the main petition finally.
8. ' For the aforestated reasons, it being not a fit case for grant of leave to appeal the same is refused.
FEDERAL SHARIAT COURT