' This judgment will dispose of two Writ Petitions Nos.169 of 1992 and 170 of 1992, inasmuch as they arise out of the same guardianship proceedings.
2. Briefly stated facts of the case out of which these two Constitutional petitions have arisen are that the petitioner and respondent No,1 were married in the year 1976. Out of the wedlock three children namely Mst. Tahira Bibi, was born on 7-6-1978, Nisar Ahmed was born on 26-6-1980 whereas Zulfiqar Ali was born in 1984. Subsequently, the petitioner chopped off the nose of respondent No,1 on the basis of the allegation that she is not of good moral character. He was prosecuted and sentenced to 15 days' R.I. Which sentence was upheld. As the children were in the custody of the petitioner, respondent No,1 filed an application for restoration of the custody of the minors under section 25 of the Guardian and Wards Act on 17-4-1989. This application was contested and was dismissed on technical grounds by the learned Guardian Judge vide order dated 22-3-1990. Aggrieved of this order respondent No,1 filed appeal before the learned District Court, Attock. The appeal was accepted on 12-11-1990 and the case was remanded to the learned trial Court for decision thereof on merits after recording of evidence. After recording of further evidence in post remand proceedings, learned Guardian Judge vide order dated 31-10-1991 directred restoration of the custody of the two minor sons namely Nisar Ahmed and Zulfiqar Ali to respondent No,1 whereas no order was passed regarding restoration of the custody of Mst. Tahira Bibi daughter. Respondent No,1 filed appeal challenging the aforementioned order to the extent of refusal of custody of the daughter in District Court, Attock. The petitioner submitted an application for obtaining certified copies of the order on 2-11-1991. The copy was prepared on 23-11-1991 and was delivered to the petitioner on 11-12-1992. The appeal against the order dated 31-10-1991 was filed by the petitioner on 6-1-1992. In this appeal, the petitioner challenged the order passed by the learned Guardian Judge in relation to the minor sons. The appeal filed by the petitioner was dismissed by the learned lower Appellate Court in limine as being barred by time vide order dated 6-1-1992 on the ground that the appeal should have been filed within 30 days w,e,f, the date of preparation of certified copy of the order, which was prepared and was ready for delivery on 23-11- 1991 hence the same is barred by time. The learned lower Appellate Court appears to be not even conscious about the provisions of section 12 as amended up to date by the Act XIII of 1991, which has come into force on 6-4-1991 according to which provision the period requisite for obtaining of certified copies had to start from the date of application and is to be counted up to the date of delivery, regarding which date an intimation, has to be given by the Copying Agency to he applicant about the preparation of the certified copy. This order has been challenged in W.P.170/1992 by the mother who was respondent before the learned Guardian Judge. Appeal filed by respondent No,1 was accepted by the learned District Judge vide order dated 9-1-1992 and minor daughter has also been ordered to be given him. This order has also been challenged in W.P.
No,169/1992, by Mst. Shamim Akhtar, the mother.
3. Mr. Muhammad Ilyas Sheikh, Advocate has appeared on behalf of Mst. Shamim Akhtar petitioner in both the Writ Petitions whereas Kh. Muhammad Fayyaz Ahmed, Advocate has appeared on behalf of Munawar Din respondent No,1 in both the petitions. Nemo for other respondents as they are the Courts who decided the lis.
4. Learned counsel for the petitioner while arguing the Writ Petition No,170 of 1992 has vehemently argued that the order passed by the learned First Appellate Court is without lawful authority inasmuch as the appeal has been filed within 30 days w,e,f, the date of delivery of certified copy of the impugned order and as the petitioner had never been intimated in terms of the provisions of section 12, subsection (5) as amended vide Act 13 of 1991, the period of limitation could not have been started w,e,f, the date of preparation of the copy and as the learned Additional District Judge was not even conscious about the amended legal provisions, it cannot be said that the decision rendered by him is judicious in nature and as such the impugned order of dismissal of the appeal filed by the petitioner in limine is illegal and without a lawful authority.
5. As against the above arguments, learned counsel for the respondent Mr. Muhammad Fayyaz Ahmed Khawaja, Advocate has argued that the period of limitation in this case has to start with effect from the date of preparation of the copy of the order by the Copying Agency which was admittedly prepared on 23-11-1991 and as the appeal had been filed after a period of one month and 15 days and each day's delay has not been explained, the learned lower Appellate Court has rightly dismissed the appeal in limine as being barred by time. Learned counsel has placed reliance on case of Cantonment Board, Kharian Cantt. Through Executive Officer v. Muhammad Shari ( PLD 1991 SC 400).
6. In support of his case regarding Writ Petition No,169 of 1992, learned counsel for the petitioner has argued that as the order of dismissal of the appeal filed by the petitioner is illegal and without a lawful authority, therefore, the order passed in appeal filed by respondent No,1, which is the subject-matter of this writ petition is also liable to be set aside inasmuch as the same order being subject-matter of controversy in one appeal cannot be allowed to become final for the purpose of other appeal and therefore, the order challenged in this writ petition is also liable to be set aside with the result that both the appeals are liable to be remanded to be decided afresh on merits.
Learned counsel for respondent No,1 has argued that this writ petition should be decided separately and there is no bar to this Court for upholding the order passed by the learned lower Appellate Court to the extent of the daughter. Learned counsel has, however, conceded that there was one application regarding all the three minors, evidence is also the same and application regarding minor daughter was dismissed by the learned Guardian Judge whereas it was allowed qua the sons on the basis of same evidence. It is in appeal that the minor daughter has been directed to be restored to the custody of respondent No,l. Learned counsel has further conceded that while deciding the question of welfare of the minor daughter, which is predominant consideration for taking a decision as to whether she should remain restored to the custody of the father has to be taken on the basis of same evidence which will be the basis for decision of appeal filed by the petitioner, if the same is remanded.
7. I have considered the arguments addressed by the learned counsel for the parties and have also gone through the record. The appeal filed by the petitioner referred to above is within time as the time requisite for supply of copies is to be calculated up to the date of delivery of the certified copy of the order as per provisions of section 12 of the Limitation Act as amended. There is nothing on record to show that the petitioner was intimated about the completion of the certified copy of the order earlier. Consequently, the period requisite for copies case cannot be counted up to date of preparation of the certified copy of the order i,e, 23-11-1991.
' Section 12:
(1) In computing the period of limitation prescribed for any suit, appeal or application, the day from which such period is to be reckoned shall be excluded.
(2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded.
(3) Where a decree is appealed from or sought to be reviewed, the time requisite for obtaining a copy of the judgment on which it is founded shall also be excluded.
(4) In computing the period of limitation prescribed for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded.
(5) For the purposes of subsection (2), (3) and (4), the time requisite for obtaining a copy of the decree, sentence, order, judgment or award shall be deemed to be the time intervening between the day on which an application for the copy is made and the day actually intimated to the applicant to be the day on which the copy will be real for delivery."
It is established on record that the learned First Appellate Court was not even conscious of this amendment and did not apply his mind while determining the question of limitation. Even the judgment cited by the learned counsel for the respondent No,1 supports the contention of the petitioner that while determining the period requisite for obtaining of certified copy, an intimation of a date of preparation of the certified copy has to be given and established on record. In this case, the petitioner was not even called for to explain the delay. Consequently, it is quite clear that the learned Additional District Judge while dismissing the appeal in limine did not judiciously determine the question of limitation and therefore, the judgment of dismissal of appeal challenged in W.P. No,170 of 1992 is held to be without a lawful authority and as such is set aside. As a result of setting aside the order dated 31-10-1991 passed by the learned lower Appellate Court, the appeal filed by the petitioner shall be deemed to be pending before the learned First Appellate Court and shall be decided afresh on merits. As the order passed by the learned Guardian Judge which shall be sub judice before the learned District Court has been modified on appeal filed by the respondent No,1, it will be in the interest of justice that the Writ Petition No,169 of 1992 is also accepted and the order passed in appeal filed by respondent No,1, is also declared to be illegal and without lawful authority and is set aside so that both the appeals could be decided simultaneously by the learned District Judge, inasmuch as the appeals arise out of the same order and had to be decided on the basis of the same evidence recorded in the case, on the basis whereof the question of welfare of all the three minors has to be determined for deciding as to which of the parties is to retain or get the custody of the three minor children. Assessment of evidence to determine the welfare of the minor sons and decision thereon will definitely react on the decision regarding custody of minor daughter as well. Even otherwise learned lower Appellate Court appears to have not correctly appreciated the principle of welfare of the minor daughter as ennunciated by superior Courts in this behalf. Choice of the minor has also not be given due consideration.
' Resultantly, the order dated 31-10-1991 passed by the learned lower Appellate Court which has been challenged in W.P. No,169 of 1992 is also declared to be illegal and is set aside with the result that the appeal filed by respondent No,1 shall also be deemed to be pending before the learned District Court. It is directed that both the appeals shall be decided together within a period of three months w,e,f, 27-5-1993 on which date both the parties are directed to appear before the learned lower Appellate Court. The parties are left to bear their own costs.