' This writ petition impugns an order dated 12-11-1984 of the learned Additional District Judge, Rawalpindi, passed in appeal from that of the Judge, Family Court in a guardianship case.
2. The contest is between the separated spouses in regard to the custody of their minor off-springs.
The learned Guardian Judge vide his order dated 30-7-1984 on an application under section 12 of the Guardians and Wards Act allowed the respondent-father to see the children in the house of the petitioner-mother for one hour each Friday. The respondent aggrieved of the order preferred an appeal before the learned Additional District Judge who Changed the order to allow him to take away the children for one day "a week.
3. Aggrieved by the said order, the petitioner-mother has preferred the present Writ petition. Mirza Anwar Baig for her, strenuously contended that the order passed by the trial Court was not appealable and that, therefore, the learned Additional District Judge had no jurisdiction to entertain the appeal or change it. He placed reliance upon Adnan Afzal v. Col. (Retd.) Sher Afzal and 2 others PLD 1982 Lah. 755 urging that when such an order was passed without jurisdiction, the writ lay even if it were of interlocutory nature. He further referred to Muhammad Deen Malik and another v. Ilnd Additional District Judge, Karachi and 2 others 1982 SCMR 1223 submitting that section 47 of the Guardians and Wards Act as amended was applicable and that it did not make the order under section 12 of the said Act amenable to appeal. He still further canvassed that the order being neither a "decision" nor a "decree" could not be assailed in appeal under section 14 of the Family Courts Act. Lastly he argued that the point precisely before the learned Additional District Judge was to settle a neutral place here the respondent-father may have been allowed to see the children but he instead increased the duration of the period in complete disregard of the apprehensions of the petitioner that the respondent having dual nationality was most likely to take them away out of Pakistan.
4. The crucial point seems to be whether an order under section 12 of the Guardians and Wards Act was appealable or not. Mr.M.Bilal, for the respondent, placed reliance upon Muhammad Deen Malik and another v. Ilnd Additional District Judge, Karachi and .2 others 1982 CLC 441, Arif Hussain v.
Maria Elice Hussain and another 1983 CLC 353 and Mst. Zaibun Nisa v. Muhammad Mozammil PLD 1972 Kar. 410 in which consistently it was held that such an order was appealable under section 14 of the Family Courts Act as it was a "decision". Unfortunately, no contrary judgment has been cited to Show if an order under section 12 ibid was not appealable. Much stress was laid upon 1982 SCMR 1223 to point out that this question was still being considered by the Supreme Court on the plane that section 27 of the Guardians and Wards Act as lately amended would exclude the application of section 14 ibid and hence an order for interim custody of minors passed under section 12 of the Act being not enumerated among those recounted in section 47, was not appealable. The cited case was not decided one as the Supreme Court has been pleased only to admit the relevant petition to determine the effect of amendment introduced in section 47 of the Guardians and Wards Act as it was not considered in the earlier one reported in Sekhawat Ali and another v. Mst.
Shui Khelay PLD 1981 SC 454 where it was clearly ruled that an orde assed by a Judge, Family Court, was appealable under section 14 of the Family Courts Act. The Karachi view lends considerable support t the contention raised by Mr.Bilal especially in the absence of any view by this Court to the contrary. The impugned order was essentially passed by a Family Court between the contending spouses and relates to a matter included in the Sechedule to the Family Courts Act.
Even subject-matter-wise it squarely fell within the jurisdiction of the said Court and hence section 14 (ibid) will ipso facto apply.
5. Besides all else, the order was of interlocutory nature which may not be easily assailed in a writ, despite having been passed without jurisdiction. Mst. Kaniz Fatima and 3 others v. Member (Revenue), Board of Revenue, Punjab, Lahore and 5 others PLD 1973 Lah. 495 referring to Ramzan v.
Rehabilitation Commissioner (Legal), Sargodha and another PLD 1963 Lah. 461 has categorically laid down that a writ would not lie to impugn or impeach an order of interim nature. There is no gainsaying the fact that allowing the respondent-father to take the children for a day in a week during the pendency of the case was only an interim arrangement and hence could not be impugned in the writ. The reason is that may be in final analysis this order is set aside and the plea of the respondent is entirely disallowed. It is a cardinal principle that only final orders can be assailed in Constitutional jurisdiction. No authority to the contrary, especially to the view expressed by this very Court in D.B., namely, PLD 1973 Lah. 495, was cited at the Bar and, therefore, this would also clinch the matter against the petitioner.
6. Dismissed in limine.