1. ' Facts of the case out of which this Constitutional petition has arisen are that the order passed under section 25 of the Guardians and Wards Act by the learned Guardian Judge, Okara, dated 2- 5-1991 regarding the custody of a minor daughter of Mst. Tasneem Akhtar respondent No,1 upheld up to the level of the hon'ble Supreme Court of Pakistan is being executed by the learned Senior Civil Judge/Judge Family Court/Guardian Judge, Okara. In pursuance of the said execution petition, a warrant under section 100, Cr.P.C. was issued but as the minor child was removed from the given address, it could not be executed hence a warrant of arrest and attachment of the salary of the petitioner were issued by the learned executing Court to effect the restoration of custody of the minor daughter of the respondent No,1 from the petitioner. This order and the previous order passed by the learned Executing Court were challenged by the petitioner in appeal before the learned Additional Judge, Okara which has also been dismissed vide order, dated 28-9-1992. The interim orders as well as the order passed by the learned Guardian Judge as well the order dated 28-9-1992 passed by the learned Appellate Com/ have been challenged in this Constitutional petition.
2. ' On 3-11-1992, learned counsel for the petitioner made a statement to the effect that the minor is in the custody of grandmother of the minor and, therefore, if a short adjournment is granted, further instructions shall be sought from the petitioner as to when the minor can be handed over to respondent No,1. Resultantly the case was adjourned to 7-11-1992. On that date neither the petitioner nor his learned counsel appeared and the writ petition was dismissed in default. It was restored by this Court vide order dated 8-11-1992 and arguments have been heard today. Mr. Qamar Zaman Qureshi, Advocate, has appeared on behalf of the petitioner and has argued that as Code of Civil Procedure is not applicable to the Guardianship proceedings, the learned Executing Court had no jurisdiction to pass an order of attachment of the salary of the petitioner and issue his warrants of arrest. According to the learned counsel, learned Guardian Judge can only issue a warrant under section 100, Cr.P.C. and if the child is not found at that address, the Court is powerless. The learned counsel has relied in this behalf on case of Begum Zainab Tiwana v. Ch. Aziz Ahmad and 3 others PLD 1967 Lah.
977. Learned counsel has further contended that the impugned orders have been passed without giving an opportunity of being heard to the petitioner. I have asked the learned counsel as to when the final order was passed by the Supreme Court of Pakistan directing the restoration of the custody of the minor to the respondent, learned counsel has stated that it was on 15th of January, 1992 and since then the minor is living with her grandmother at Karachi. Learned counsel states that the petitioner even offered that in case a warrant under section 100, Cr.P.C. is obtained, he will lead to the recovery of the minor from Karachi, but the respondent did not agree. I have asked the learned counsel as to what is the difficulty with the petitioner inasmuch as he has not been able to bring the child from Karachi to Okara for the last about one year and further what is the difficulty in moving an application in writing to the learned Guardian Judge assuring the production of the minor in Court and handing over his custody to the mother on a particular date. Learned counsel is not in a position to give any satisfactory answer to these questions except that the petitioner is a Government servant and his warrants of arrest have been issued, hence, there is an apprehension that he will be arrested.
3. ' I have considered the arguments addressed by the learned counsel for the petitioner. This is a case which speaks volumes about the mala fides on the part of the petitioner. It is highest of disrespect for the Courts of this country including Hon'ble Supreme Court of Pakistan which is being shown by the petitioner who has stated that he is a Government servant. It is very strange that an order for restoration of the custody of the minor has been passed by a Court of comptetent jurisdiction and this order has been upheld up to the level of Supreme Court of Pakistan but the petitioner has successfully frustrated the order for a period of about one year. During the course of this writ petition also the petitioner has played the game of 'hide and seek' and tried to prolong the matter to the maximum he could. Exercise of discretionary jurisdiction is not meant for such like litigants whose conduct is not above board. A person who comes to get equity must come to the Court with clean hands. It is legal and moral duty of the petitioner who is a Government servant to abide by the law. The ultimate Court of the country has held that the child is to remain in the custody of the mother. Plea that the minor is in Karachi living with grand mother should not have been adopted as an excuse for frustrating the orders passed by the Court of competent jurisdiction. Merely on the basis of technicalities, writ jurisdiction is not exercised. Even a void order which is otherwise fair and just need not be set aside in exercise of writ jurisdiction. Even otherwise I do not agree with the learned counsel for the petitioner that the learned Guardian Judge is powerless to get his order implemented and the only remedy available to him is by issuing a warrant of arrest under section 100 of Cr.P.C. and if the same is not executed, the Court becomes powerless. Learned Guardian Judge is also a Civil Judge and, therefore, shall have all the powers which a Civil Judge has for getting his orders implemented. Judgment cited by the learned counsel is distinguishable on facts. Consequently, the impugned orders are not illegal and are, unexceptionable.
4. On the face of it this is a frivolous writ petition. Not only an effort has been made to frustrate the implementation of the orders passed by the Court of competent jurisdiction upheld by the highest Court of country but respondent No,1 has also been put to great inconvenience inasmuch as she has to engage a learned counsel even in this Court who has been appearing in Court on various dates of hearing, therefore, the respondent No,1 is entitled to the grant of special costs. Resultantly this writ petition has no force and the same is, therefore, dismissed. The petitioner shall pay an amount of Rs,10,000 by way of special costs to respondent No,1.