1. ' MOHAMMAD AFZAL CHEEMA, petition for special leave to appeal is directed against the appellate order of the Lahore High Court dated 15-2-1974 whereby dismissing the petitioner's appeal F. A.
0. No, 14/1974 the learned Judge in Chamber upheld the order of the Guardian Judge, Jhang, directing the petitioner to restore the custody of Mst. Shagufta Parveen a 2 years old daughter of the petitioner to the respondent her mother.
2. ' The short background of the case is that the petitioner and the respondent, both residents of Chak No, 200, Tehsil Chiniot, District Jhang, were married 4 years earlier. A daughter Shagufta Parveen was born in the wedlock. It was a case of marriage in exchange and in lieu of the respondent the petitioner's sister was married to her brother Ghulam Mohammad who died. Refusing to oblige her in-laws by re-marrying her deceased husband's brother the petitioner's sister returned to live with her parents. This had serious repercussions on the marriage of the petitioner with the respondent who also separated, each alleging desertion against the other. It is not disputed that at the time of separation their minor daughter Shagufta Parveen remained with the petitioner. However, according to the respondent she was snatched by him from her but according to the petitioner she was voluntarily left by her with a view to coerce the petitioner to prevail upon his sister to re-marry the younger brother of the respondent.
3. ' On 3-12-1971 the respondent moved an application before the Guardian Judge under section 25 of the Guardians and Wards Act seeking the restoration of the custody of the minor. Having recorded the evidence of the parties and heard their counsel, learned Judge came to the conclusion that the interest and welfare of the minor demanded her restoration to the respondent and directed accordingly. This order of the Guardian Judge was unsuccessfully challenged by the petitioner before the High Court which dismissed his appeal in limine.
4. ' In support of the petition for leave to appeal learned counsel for the petitioner tried to argue that the petitioner had filed a suit for restitution of conjugal rights which was good enough to establish his bona fide and disprove allegations of desertion levelled by the respondent against the petitioner. It was asserted that in fact it was the respondent who had deserted the petitioner deliberately leaving their stickling baby with him in order to pressurize him to agree to the proposal of the re-marriage of his sister with her brother and that having herself cast away the child she could not be heard to seek the restoration of its custody.
5. Having heard the learned counsel at length we have not been able to spell out any justification for the grant of special leave to appeal. Admittedly the parties are Hanfis' by faith. No allegations of immorality were levelled against the respondent who has been living with her parents in the same village. The concurrent finding of the Courts below that the interest and welfare of the minor demanded the restoration of her custody to the mother is unquestionable. Learned counsel has not been able to raise any legal ground but instead has in vain tried to seek an unwarranted reappraisal of the evidence which cannot be allowed at this stage in exercise of its Constitutional jurisdiction as consistently held by this Court. The petition is therefore dismissed.