JAVED IQBAL, J.- This Constitutional Petition calls in question the appellate order dated 2.6.94 passed by the Addk District Judge- Quetta, whereby she set aside the order dated 30-12-1993 passed by learned Senior Civil Judge/Family Court, Quetta, granting the application under Section 25 of the Guardian and Wards Act in favour of the petitioner, with the following prayer: It is, therefore, prayed that the order/ decree impugned herein dated 2.6.94, (Annexure-P) passed by the respondent No.2 i.e. Addk District Judge-1 Quetta, in favour of respondent No.1 may kindly be set asideand judgement/decree dated 30-12-1993, passed by learned Senior j Civil Judge Quetta, may kindly be up-held in the interest of justice, ' fair play and equity."
2. The facts leading to the filing of this petition briefly stated are that in 1988 petitioner was married to one Mr&Samina Akhtar and out of the said j wedlock one son namely Waleed Afzal Malik was bom (according to the j respondent he was named as Mehboob-ur-Rehman) who is main figure in this unfortunate controversy as they could not resolve their differences and work out a \ solution conducive to the welfare of the child and Contrarily took the matter to the Court and entered into an endless litigation. The relations between the couple became strained and resulted in dissolution of marriage vide judgement and f decree dated 30-12-1993 passed by the Family Court The petitioner filed a suit on 20-11-1991 wherein the custody of minor was sought The suit as referred to above was contested, and on the pleadings of the parties, issues as reproduced herein below were framed:-
1. Whether the actual name of the minor is Mehboob-ur-Rehman I instead of Waleed Afzal Malik?
2. Whether the plaintiff is entitled for the custody of minor?
13. Relief?
3. The petitioner examined himself and produced one witness namely ? Abdul Samad. On the other hand Mst Samina Akhtar (respondent No.1) examined herself and in addition thereto produced 5 witnesses.
4. The suit was decreed in favour of petitioner vide judgement and decree dated 30-12-1993 with the declaration that name of the minor was Waleed Afzal Malik, and not Mehboob-ur-Rehman, and it was also directed that his custody be handover to the petitioner in September, 1996 and dll that time the petitioner was also allowed to see his minor son as per order dated 30-7-92. Being f aggrieved Mst Samina Akhtar preferred an appeal, which was heard by teamed Addh District Judge-1 Quetta, and ultimately the judgement and decree dated 30- 12-1993 was set aside, hence this petition.
5. It is mainly contended by Malik Sultan Mehmood Advocate, on behalfof petitioner that judgement and decree dated 2&94 passed by the teamed Addh District Judge-1, Quetta, is contrary to facts, law and justice and liable to be set aside,. It is next contended that the learned Addl: District Judge-1, Quetta, could not appreciate properly the mandatory provision of the law under Guardian and Wards Act, which entitles the petitioner to take the custody of his minor son and the factor of dissolution of marriage was altogether ignored, it is also contended that the teamed Addh District Judge-1, Quetta, has wrongly drawn the conclusion that the Family Judge has no jurisdiction to make a declaration regarding the name of minor child by ignoring the documentary evidence, which depicts the fraudulent trend of the respondent. It is also argued that the learned appellate Court could not appreciate the evidence in the' light of settled principle of justice and the welfare of the minor was ignored. It is further pointed put that amount of Rs. 500/- per month is being paid as maintenance allowance for the minor. It is prayed that the Judgement and decree passed on 30-12-1993 be set aside in the interest and welfare of the minor.
6. Mr. Mohsin Javed Advocate, has appeared on behalf of respondent and strenuously controverted the above mentioned position and urged emphatically that the impugned order dated 30-12-1993 being free from any illegality or gave irregularity does not call for any interference. It is also urged that the impugned order has been passed keeping in view the welfare of the minor, who is living in a congenial atmosphere with her mother and his detachment at this stage would ruinous to his career. It is further argued that the factual position drived by the learned Addb District Judge-1, Quetta, is based on facts and evidence as led by the parties, which has been appreciated properly, and therefore, it cannot be disturbed in exercise of Constitutional jurisdiction as conferred upon this court, hence the petition itself is not maintainable. It is further pointed out that the petitioner has failed to substantiate his version that the minor was not being treated properly or the arrangments made for his education were not proper.
6. We have carefully examined the respective contentions as adduced on behalf of the petitioner and for respondent in the light of relevant provisions of law and available record. At the out set, we may point out that welfare of the minor is paramount consideration and to this paramount consideration all other yield (P.L.D.1951 P.C33). It would not be in the interest of child to tear him away from the custody to her mother with whom he has lived constantly. It is the bounded duty of the Court to make proper selection of the guardian and exercise all care, caution and vigilance in the interest and the welfare of the minor. The court must examine all the pros and cons of each case in the light of surrounding circumstances including the back ground of die case, necessity for appointment of such guardian, atmosphere where the minor is to be lived degree of love and affection which he have, the provision of education facilities and its ultimate benefit The impugned order has been examined keeping in view the welfare of the minor. The petitioner has failed to establish that the atmosphere where the minor is living at present is detrimental top his future in any manner or his mother has felled to take proper care of the minor or that he has been deprived of the necessary educational fa<ltt. It is idmMtbht tlpe is no male member in the family where Samina Akhtar, the mother of minor li fMidiaf.Hut it, .Hardly makes any substantial change in the Position as she is an educated lady and capable enough to manage here internal and external affairs properly. Besides that her mother and younger sister are living with her hence it cannot be said that no one is there to lookafter the minor properly. It is to be noted that minor is presendy admitted in School, and therefore, during morning hours the absence of her mother from the house being a lady teacher cannot be declared as detrimental to the interest of the minor, who also remains at School during morning hours. He is enjoying the love and affection of Us grand mother and aunt, hence the question of loneliness does not arise. It has been noticed that the order passed by learned Senior Civil Judge/Family Court mainly revolves around the fact that thepetitioner was in a better financial position and earning Rs.8000/- per month. It is, however, to be noted that welfare of the minor does not depend upon the "Before parting with the case, we may observe that there is an increasing tendency to file Constitutional Petitions even when the Courts whose orders are challenged had the jurisdiction to pass those orders, not with standing the fact that it has been held time acid again that Where a Court (in contradistinction to a pema designate) has jurisdiction to decide a matter, it can do so rightly or wrongly and the mere fact that the decision on a question of fad or law is not correct, does not necessarily render it without lawful authority and certainly not illegal Refer Badmi Haque Khan. V. The Election Tribunal, Dacca and others PJJD.1963 S.C.704, Muhammad Hussain Munir and others Vs. Sikandar and others P.L.D. 1974 S.C. 139 and Abdul Rehman Bajwa Vs. Sultan and 9 others P.L.D 1981 S.C. 522"
7. A bare perusal of the above referred to verdict would indicate that the findings of fact arrived at in exercise of lawful jurisdiction would not be interfered by this Court in exercise of its Constitutional jurisdiction, as the Courts below having jurisdiction to decide the matter could do so rightly or wrongly. (1986 CX.G662)Jt is, however, observed that the impugned order is neither patently illegal nor perverse and as such the question of any interference while exercising our constitutional jurisdiction does not arise. It would not be out of place to mention here that welfare of the minor .Being a question of fact, cannot be challenged by invoking the Constitutional jurisdiction specially when there is no. Misreading of evidence (reliance in this regard can be placed of Muhammad Hussain Munir Vs. Sikandar PUX1974 S.C.139).
In view of what has been stated above, the petition being devoid of merits, is dismissed, no.With order as to cost.