' JAVED IQBAL, J.---This Constitutional petition calls in question the appellate order dated 2-6-1994 passed by the Additional District Judge-I, 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 Guardians and Wards Act in favour of the petitioner, with the following prayer:-- "It is, therefore, prayed that the order/decree impugned herein dated 2-6-1994 (Annexure-P) passed by the respondent No,2 i,e, Additional District Judge-I, Quetta, in favour of respondent No,1 may kindly be set aside and judgment/decree dated 30-12-1993, passed by learned Senior Civil Judge, Quetta, may kindly be upheld 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 Mst. Samina Akhtar and out of the said wedlock one son namely Waleed Afzal Malik was born (according to the respondent he was named as Mchboob-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 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 judgment and 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 hereinbelow were framed:--
(1) Whether the actual name of the minor is Mehboob-ur-Rehman instead of Waleed Afzal Malik ?
(2) Whether the plaintiff is entitled for the custody of minor ?
(3) 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 judgment 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 handed over to the petitioner in September, 1996 and till that time the petitioner was also allowed to see his minor son as per order dated 30-7-1992. Being aggrieved Mst. Samina Akhtar preferred an appeal, which was heard by learned Additional District Judge-I, Quetta, and ultimately the judgment and decree dated 30-12-1993 was set aside, hence this petition.
4. It is mainly contended by Malik Sultan Mehmood Advocate, on behalf of petitioner that judgment and decree dated 2-6-1994 passed by the learned Additional District Judge-I, Quetta, is contrary to facts, law and justice and liable to be set aside. It is next contended that the learned Additional District Judge-I, Quetta, could not appreciate properly the mandatory provision of the law under Guardians 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 learned Additional District Judge-I, 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 out that amount of Rs,500 per month is being paid as maintenance allowance for the minor. It is prayed that the judgment and decree passed on 30-12-1993 be set aside in the interest and welfare of the minor.
5. Mr. Mohsin Javed, Advocate, has appeared on behalf of respondent and strenuously controverted the abovementioned position and urged emphatically that the impugned order dated 30-12-1993 being free from any illegality or grave 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 derived by the learned Additional District Judge-I, 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 arrangements 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 outset, we may point out that welfare of the minor is paramount consideration and to this paramount consideration all other yield (PLD 1951 PC 33). 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 bounden 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 background of the case, necessity for appointment of such graruian, atmosphere where the minor is to be lived degree of love and affection which he can 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 to his future in any manner or his mother has failed to take proper care of the minor or that he has been deprived of the necessary educational facilities. It is admitted that there is no male member in the family where Samina Akhtar, the mother of minor is residing but it hardly makes any substantial change in the position as she is an educated lady and capable enough to manage her internal and external affairs properly. Besides that her mother and younger sister are living with her and hence it cannot be said that no one is there to look after the minor properly. It is to be noted that minor is presently 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 his, grandmother 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 the petitioner was in a better financial position and earning Rs,8,000 per month. It is, however, to be noted that welfare of the minor does not depend upon the financial condition of the father, but it is love and affection which matters. The strong financial position cannot be made a sole base for handing over the custody of the minor to his father. It may be observed here at this juncture that sufficient evidence is lacking to conclude that in fact the petitioner was earning Rs,8,000 per month as he is likewise a School Teacher, as that of Samina Akhtar. Even otherwise where the family affairs are satisfactory any unnecessary interference by the Court, should be avoided. The observation of the learned Senior Civil Judge, Quetta, that-- "the minor is happy with him and Court itself observed that when the minor was present in Court was happy with his father/plaintiff. Who was given various toys, clothes, shoes and money and was taken him out of the Court for visit." ' are based on presumption for which no concrete evidence is available. It, is nature of kid to become happy on seeing a new toy, but this temporary happiness should not be considered in deciding the welfare and future of the minor. In so far as the question of better educational facilities is concerned, it has been noted that the minor is at present having his education in a school which is located adjacent to the house of his mother and the petitioner could not prove that it was not worth studying or the educational standard was poor and so on, The fact must not be lost sight of that the mother of the minor is also a teacher and she can certainly make up the deficiency if any and moreso, the minor is yet in the beginning of his education career, therefore, the question of better educational facilities at this stage cannot be taken into consideration. This aspect of the matter could be considered at appropriate time. We have also thrashed out the entire evidence as led by the petitioner to find out the alleged misconduct, but nothing has come on record to substantiate the apprehension of the petitioner that the minor is being maltreated and that the behaviour of other family members to the minor is not appreciable. Apart from the mother and as mentioned above there are only two family members i,e, grandmother and aunt, and as such the levelled allegation could not be proved. The financial position of the mother has also been examined by us, in the light of available record which indicates that she is teacher in Islamia Girls School, Quetta, and is able to cater for her day to day needs without being dependent on anyone else. She is getting a reasonable salary and, therefore, it cannot be inferred that the minor would be facing any financial problem or difficulty. It must be kept in view that the minor can be looked after properly in all respects and there are no financial hindrance to fulfil his initial needs and provisions of basic amenities. The judgment dated 2-6-1994 is based on the factual position and all the relevant material has been considered and there is no misreading of evidence, hence no interference is called for. It is quite amazing that the order passed by the then learned District Judge, on 27-5-1993 was not taken into consideration by the learned Senior Civil Judge, Quetta, which has already attained finality and it is beyond the jurisdiction of Senior Civil Judge, Quetta, either to amend it or insert any change therein, hence it shall remain operative as opined by the learned Additional District Judge-I, Quetta. We have also embarked our attention on the main objection as raised by Mr. Mohsin Javed, Advocate, regarding the maintainability of this petition.
This aspect of the matter was dealt by the Hontle Supreme Court and re-affirmed in the case of Noor Muhammad v. Sarwar Khan PLD 1985 SC 313, wherein it was held:-- "Before parting with the case, we may,observe that there is an increasing tendency to file Constitutional petitions even when the Court whose orders are challenged had the jurisdiction to pass those orders, notwithstanding the fact that it has been held time and again that where a.
Court (in contradistinction to a person designata) has jurisdiction to decide a matter, it can do so rightly or wrongly and the mere fact that the decision on a question of fact or law is not correct, does not necessarily render it 'without lawful authority' and certainly not illegal. Refer Badrul Haque Khan v. The Election Tribunal, Dacca and others PLD 1963 SC 704, Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139 and Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 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 CLC 662). It 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 on Muhammad Hussain Munk v. Sikandar PLD 1974 SC 139).
' In view of what has been stated above the petition being devoid of merits, is dismissed, with no order as to cost.