1. ' Petitioners Mst. Azizan Bibi and Muhammad Bashir have invoked Constitutional jurisdiction of this Court against an order dated 13-12-1992 passed by the District Judge Badin under section 12 of the Guardians and Wards Act in Guardianship Application No, 14 of 1992.
2. ' Minor Muhammad Tayyab is the subject-matter of this litigation. He is son of Mst. Azizan Bibi (petitioner No, 1) from her husband Javed Iqbal who died in 1989. Respondents Nos. 2 and 3 are surviving parents of deceased Javed Iqbal while petitioner No, 2 (Muhammad Bashir) is father of Mst. Azizan, who has remarried with one Muhammad Sharif.
3. ' In their Guardianship Application No, 14 of 1992 respondents Nos. 2 and 3 moved an application under section 12 of the Guardians and Wards Act with following prayer: "That this Honourable Court may be pleased to pass the interim order for the production of the minor Muhammad Tayyab as there is every likelihood of his removal from the jurisdiction of this Honourable Court."
4. ' Said application was contested by the applicants. Applicant Bashir Ahmed filed objections in which he took stand that minor Muhammad Tayyab aged 3-1/2 years old, was residing with his mother applicant Mst. Azizan Bibi at Gagoo in District Vehari, where she was living as wedded wife of Muhammad Sharif her second husband. Applicant Bashir Ahmed challenged the application under section 12 of said Act being non-maintainable. After hearing counsel for the parties the learned District Judge, Badin under the impugned order dated 13-12-1992 allowed the application moved under section 12 of the said Act.
5. ' Mr. Madad Ali Shah learned counsel for the petitioners argued that after death of Javed Iqbal in 1989, applicant Azizan Bibi remarried with Muhammad Sharif Arain on 16-1-1992 and since then she was living with her new husband and her minor son, in Village Gagoo, District Vehari and as such the Court of District Judge, Badin had no jurisdiction in the matter. It was next argued that learned District Judge, Badin should have determined the point of jurisdiction before ordering minor Muhammad Tayyab to be produced in his Court on each and every date of hearing for the purpose of remaining with the respondents Nos. 2 and 3 for 3 hours. Learned counsel for the petitioners referred to paras. 8 and 10 of the main guardianship application and para. 2 of the affidavit of respondent No, 2 and the Vakalatnama by Mst. Azizan in favour of Mr. Allah Dino Jamali, Advocate, Badin and argued that the respondents Nos. 2 and 3 knew that applicant Mst. Azizan and minor Muhammad Tayyab were living in District Vehari and not within territorial jurisdiction of District Court, Badin and yet the guardianship application was filed at Badin. It was lastly argued that while passing the impugned order, learned District Judge had not discussed the point of jurisdiction. In support learned counsel for the petitioner cited the cases of:
(i) Fahimuddin Khokhar v. Mst. Zaibunnisa (PLD 1968 Kar. 774).
(ii) Dr. Rauf Ahmed v. Mst. Razia Farhat (PLD 1971 Kar. 897).
(iii) Sh. Muhammad Rashid v. Mst. Zarnigar Qaiser Sheikh (PLD 1980 Lah. 61).
(iv) Muhammad Noor v. The District Magistrate, Peshawar (PLD 1970 SC 273).
6. ' Mr. Zainul Abdin Mirza, learned counsel for the respondents 2 and 3 challenged maintainability of the Constitutional petition on the ground that the petitioners could have filed appeal under section 14 of W.P. Family Courts Act and hence an alternative remedy being available the invoking of Article 199 of the Constitution of Pakistan was not correct. It was further argued that Mst. Azizan Bibi had admittedly remarried with an outsider and as such it would not be in the interest of minor Tayyab to live with her Learned counsel for the respondents 2 and 3 cited the case of Arif Hussain v. Maria Elice Hussain and another (1983 CLC 353) where the view taken was that an order passed under section 12 of the Guardians and Wards Act can be challenged under section 14 of the W.P. Family Courts Act. In respect of competency of the District Judge, Badin to deal with this matter it was argued on behalf of the respondents 2 and 3 that in the ordinary course of things the minor was supposed to be with Mst. Azizan Bibi in Deh Achh, District Badin and that the minor had been illegally removed to a place in District Vehari and such action was challenged by the respondents 2 and 3. In support learned counsel cited the case of Muhammad Siddique Siddiqui v. Mst. Aziz Bibi and others (PLD 1970 Lah. 596) where the view taken was, that the "place where the minor ordinarily resides" appearing in subsection (1) of section 9 of the Guardians and Wards Act, is to be determined by finding out, as to where the minor was ordinarily residing and where such residence would have continued but for the recent removal of the minor to a different place. In cited case father left his minor children in schools at Rawalpindi before proceeding abroad on a short visit and in his absence the children were removed and got admitted in schools at Lahore, against the wishes of their father, by their maternal grandmother, who moved a Court at Lahore for being appointed as guardian of the person of minors. The father of the minors on return, took objection to the jurisdiction of the Court at Lahore and also moved an application under section 25 of Guardians and Wards Act at Rawalpindi and also moved for stay of the proceedings at Lahore. The Court at Lahore allowed application of maternal.Grandmother after holding that the minors had come to Lahore in a normal way. Such flading was set aside by the Lahore High Court which held that it was a case of removal against the wishes of the father and as such Lahore did not become an ordinary place of residence of the minors.
7. For the purpose of deciding an application under section 12 of the Guardians and Wards Act, the District Judge had firstly to determine the point of jurisdiction if the same was challenged and thereafter he had to decide the question for interim custody. Unfortunately learned District Judge has determined none of these points. In case the respondents 2 and 3 had made out a case for grant of application under section 12 of Guardians and Wards Act, then custody of the minor should have been ordered to be given to them. According to subsection (1) of section 12 of Guardians and Wards Act, the Court may direct production before itself or at any other place, of a minor and may make such order for the temporary custody and protection of the person and for property of the minor as it thinks fit.
8. There is force in the contention of learned counsel for the respondents 2 and 3 that since the applicants could have moved an appeal under section 14 of W.P. Family Courts Act, hence the Constitution petition was not maintainable, I, however, convert the Constitution petition into an appeal under section 14 of the W.P. Family Courts Act.
9. Since learned District Judge has neither given any finding about his jurisdiction in light of the case- law cited at the Bar, nor he has determined, as to, who would have interim custody of the minor till decision of the application under Guardians and Wards Act, I have no alternative but to remand this matter to learned District Judge for disposal according to law. Learned District Judge is required to consider the authorities mentioned above and to determine the question of jurisdiction in light of the provision contained in section 9(1) of Guardians and Wards Act read with Rule 7 of W.P. Family Court Rules. Learned District Judge is also required to pass an order of interim custody of the minor if he has jurisdiction to try this case. With these observations, the impugned order is set aside in exercise of the powers contained in section 14 of the W.P. Family Courts Act and the matter is remanded as already ordered. Constitution petition treated as Family Appeal is decided accordingly.