' These two writ petitions, bearing Nos.447/F and 448/F of 1991/BWP, maintained by Abdul Razzaq; respectively arise out of claim for maintenance of his minor son Ijaz Mahmood brought on 3-11- 1987 through his divorced mother, Mst.Ashran Begum and his own petition under section 25 of the Guardians and Wards Act brought against Mst.Ashran Begum on 1-6-1989 for guardianship of the said minor son. Both the matters were separately tried by same learned Family Judge and decided simultaneously on 2-6-1990 by means of independent judgments to uphold the claim for maintenance at the rate of Rs,500 p.m. Payable from the date of institution of suit and reject the claim for guardianship with the conclusion reached that welfare of the minor lies in his custody resting with the mother because father has not been able to discharge the burden of solitary issue laid on him for showing the interest of the minor to be vesting in his being given in his custody inasmuch as he had since married another woman but mother of the minor has not contracted a second marriage and can properly look after him.
2. Two separate appeals brought by the father came up for hearing before the same learned Additional District Judge who, after hearing, dismissed both the appeals on 5-3-1991 by affirming the findings reached by the Family Court and upholding its respective orders by means of his independent judgments.
3. These writ petitions have been tried to be sustained on the basis of contentions that since the child had now reached the age over seven years, therefore, his mother was not vested with the right of custody and the question of his guardianship had to be decided after comparing respective merits and demerits but not upon considering the evidence adduced by the father alone inasmuch as the mere fact of his having married another woman could not per se lead to the conclusion that she may be incapable of giving love and affection to the minor Ijaz Mahmood and hence, the existence of a step-mother for him was liable to be left out of consideration. So far as the order of maintenance, learned counsel has contended merely that the amount is excessive and the father cannot pay it, as had even been admitted by the Family Court.
4. After giving due consideration to the above contentions, I have not been able to find merit in any of them. As regards the question of guardianship, suffice it to say that it stands admitted on the record that second wife of the petitioner has got her own children born from him and whatever be her virtues towards Ijaz Mahmood she cannot have precedence over his real mother and, above all, learned Judge Family Court has reached his conclusion after due consideration of all the facts and concurrent findings on the point reached below are not liable to be thrown open for reconsideration at this stage and, even if, it may be possible for this Court to, on the basis of same evidence, reach a conclusion different from those which have been reached below, there would not be made out a justification for interference in Constitutional jurisdiction wherein this Court does not normally undertake determination afresh of disputed questions of fact. Writ jurisdiction is not really capable of being invoked in such circumstances and precedents of high authority can be cited in that behalf. It was held by a Division Bench of this Court in Mst. Mahmooda Begum v. Chief Settlement Commissioner, West Pakistan and another (PLD 1962 Lah. 911) as under:- "There is a fundamental difference between the power to hear appeals or revisions and the power to issue writs. A Court which is competent to hear an appeal or a revision is competent to set aside the order of a Court sought to be appealed from or revised on the ground that in the circumstances of the case the order was not proper or just but when the question to consider is whether or not a writ should issue, the consideration before the Court has to be whether or not the order against which the issue of a writ is sought was within the jurisdiction of the authority which had passed it, and a writ will not issue on the ground that though the order was within the jurisdiction of the tribunal or authority which had passed it, the circumstances of the case demanded that it should not have been passed."
Scope of interference in writ jurisdiction is limited to those cases where the orders impugned are without lawful authority and of no legal effect. In Muhammad Hussain Munir and others v. Sikandar and others (PLD 1974 SC 139), while examining these terms, their Lordships of the Supreme Court observed:-- "These are expressions of art and refer to jurisdictional defects as distinguished from mere erroneous decisions whether on a question of fact or even of law."
And held:-- "It is wholly wrong to consider that the above Constitutional provision was designed to empower the High Court to interfere with the decision of a Court or tribunal of inferior jurisdiction, merely because in its opinion the decision is wrong. In that case, it would make the High Court's jurisdiction indistinguishable from that exerciseable in a full-fledged appeal, which plainly is not the intention of the Constitution makers."
5. Two Courts below have decided questions of pure fact in lawful exercise of their exclusive jurisdictions and, viewed from the above standards set by the precedents, there does not exist any case at all for interference being made by this Court in its Constitutional power of writs.
6. Foregoing suffices also for the disposal of matter relating to maintenance of the minor whose indefeasible right for the purpose is liable to be decided by keeping in view all the requirements of a minor and upon considering the capability of the father to pay maintenance but not with reference to his capacity for its payment because a person possessed of capability to pay maintenance may, for reasons of his own expediency, easily evade the liabilities by intentionally refusing to be possessed of the capacity for its payment. Petitioner should be presumed to be an able-bodied healthy person because there has not even been alleged any such factor as could possibly have led to the petitioner being rendered incapable of earning for being able to pay maintenance to the minor. Alleged poverty of father cannot relieve him of his liability to provide for maintenance of his minor child. Hence, the assertion about the petitioner being not possessed of sufficient means for the purpose has to be repulsed for the consideration that rather than failing to, on that account, discharge his legal and moral duty of maintaining his minor child, he should endeavour to increase his resources for providing maintenance for the child incapable of supporting himself.
7. Result of the foregoing is that there is no substance found in either of the writ petitions and both of them are, hence, dismissed summarily.