' The facts leading to this Constitutional petition briefly are that the petitioner and respondent No,1 were married in the year 1981 and two daughters namely, Bilquis Bibi and Aziz Bibi were born out of the wedlock. Therefore, the present petitioner turned respondent No, 1 Out of his house and kept the minor daughters with him. Respondent No, 1 filed an application for custody of the minors before respondent No,3 learned Guardian Judge/Judge Family Court, Shahpur, on 23-1-1989 which was decided in her favour on 17-2-1990. The petitioner assailed the order of respondent No,3 before respondent No, 2, Additional District Judge, Sargodha who dismissed the appeal vide order dated 18-6-1990. The petitioner being aggrieved by the judgment of both the Courts below has assailed the same through this Constitutional petition which was filed on 27-8-1990.
2. Status quo order was granted by this Court on 28-9-1990 and thereafter the counsel for the petitioner did appear and petition was dismissed for non-prosecution on 17-9-1990. It was restored on 14-10-1990 and was admitted to regular hearing on 16-11-1990 on the basis of contention of petitioner's counsel that the learned Judge Family Court, Shahpur had no jurisdiction to decide the matter pertaining to the custody of minors. Reliance was placed by the learned counsel on case titled Muhammad Hayat v. Additional District Judge, Okara (PLD 1990 Lahore 350).
3. Thereafter, the petition was twice dismissed for non-prosecution but was last restored on 10-5- 1994. There have been several adjournments in the case which has been pending before this Court for a period of more than four years. Today no one has appeared on behalf of respondent No, 1 but in view of the fact that the petition has already been pending for a considerable period of time, I am proceeding to dispose of the same with the assistance of learned counsel for the petitioner and learned Additional Advocate-General who has, appeared on Court's call.
' This petition had been admitted to regular hearing on the basis of a case titled Muhammad Hayat v. Additional District Judge, Okara (PLD 1990. Lah. 350). That Constitutional petition was accepted on the basis of a report submitted by the Deputy Registrar (Judicial), Lahore High Court, Lahore to the effect that only the Senior Civil Judges in the Province of Punjab had been conferred jurisdiction under section 4(a) of the Guardians and Wards Act, 1890 whereas in Lahore a permanent Court of Guardian Judge existed. It was observed by the Court that a confusion in this regard appears to have arisen on account of a memo. Dated 28-1-1987 according to which, family cases instituted after 1-2-1987 were to be entrusted to and decided by First Class Civil Judges. It was held that this memo. Dated 28-1-1987 could not apply to Guardianship matters in view of the provisions of section 4(A) of the Guardians and Wards Act.
5. It appears that the provisions of West Pakistan Family Courts Act, 1964 were not brought to the notice of the Court and due to lack of proper assistance, the Court of Civil Judge was held coram non judice in respect of guardianship matters.
6. Section 25 of the West Pakistan Family Courts Act, 1964 provides as under:-- "Family Court deemed to be a District Court for purposes of Guardians and Wards Act, 1890.--A Family Court shall be deemed to be a District Court for the purposes of the Guardians and Wards Act, 1890, and notwithstanding anything contained in this Act, shall in dealing with matters specified in that Act, follow the procedure prescribed in that Act."
' Section 2(B) of West Pakistan Family Courts Act provides that: "Family Court means a Court constituted under this Act." ,7. Section 5 of the abovesaid Act gives exclusive jurisdiction to the Family Courts to entertain, hear and adjudicate upon matters specified in the Schedule. Guardianship is listed as Item No,6 in the Schedule of the said Act. The combined effect of all the abovesaid provisions of Family Courts Act, 1964 is that Family Courts have exclusive jurisdiction in respect of guardianship. Matters. While dealing with guardianship cases, the Family Court shall follow the procedure prescribed in Guardians and Wards Act.
8. Rule 7 of the West Pakistan Family Courts Rules, 1965 as amended in 1969 provides that: "7(1) Suits triable under the Act shall be instituted in, and be heard and tried by the Court of the Civil Judge having jurisdiction as provided in rule 6, and wherein any District there is no such Court, such suits shall be instituted in, and be heard and tried by the Court of the District Judge or the Additional District Judge."
9. In view of the aforecited provisions of law, I am of the view That respondent No,3 Judge Family Court, Shahpur had jurisdiction to exercise the powers of Guardian Judge and to decide the present case. This view finds support from a judgment of this Court titled Janat Bibi v. Ramzan and another 1991 CLC Note 239 at p.185 wherein it was held that a Civil Judge is competent to try guardianship cases. The issue of jurisdiction was also considered in case titled Mst. Sajida Parveen v. The Additional District Judge, Rawalpindi and 2 others (1991 MLD 745) wherein it was held, after taking into consideration all the provisions of law, that a Civil Judge First Class is competent to try the application under section 25 of the Guardians and Wards Act, 1890 and its decision would not suffer from defect of jurisdiction.
10. On merits it was argued that the respondent No,1 is a sickly person who does not have sufficient means to bring up and educate the minors properly, and the minors are not inclined towards respondent No,1; that the petitioner cannot live away from the minors without meeting them, and no order in respect of visiting rights was passed by the Courts below, and that the welfare of minors was not taken into consideration by both the Courts while awarding custody to respondent No,1.
11. From the record, I find that respondent No,3 passed judgment dated 20-5-1989 on the basis of that compromise between the parties and awarded custody of minors to respondent No,1. This order was set aside by respondent No,2 vide order dated 16-9-1989 on the ground that respondent No,3 had acted in excess of jurisdiction by deciding disputes regarding dowry etc. Which were outside the scope of proceedings before him. The case was remanded to respondent No,2 who again decided in favour of respondent No,1 regarding custody of minors vide order dated 17-2- 1990. This judgment was upheld in appeal by respondent No,3 vide order dated 18-6-1990. Both the Courts below after appraisal of the entire evidence came to the conclusion that the interest and welfare of the minors lies in their custody being given to their mother. Even otherwise, respondent No,1 had not remarried nor has any allegation of immorality being proved against her. Thus, she is in no way disentitled to custody of the minors. The argument that she is not possessed of sufficient means to educate or maintain the minors properly is also devoid of merit. Since it is the responsibility of the petitioner who is the father of the minors to maintain them wherever they reside.
12. In view of the aforesaid observations, there is no case made out for interference by this Court in the concurrent finding of facts of both the Courts below. I note with concern that the matter has remained pending for almost six years below different forums. Family matters must be disposed of expeditiously in order to minimise the hardship for the parties and to end emotional insecurity caused to the minors due to pendency of proceedings. Learned counsel who are Officers of the Court should offer maximum assistance to ensure early disposal of such cases. This petition is dismissed. The custody is to be handed over to respondent No,1 in terms of the order of learned Judge Family Court, Shahpur with the modification that the petitioner shall be provided an opportunity by respondent No,1 to meet the minors at least one weekend every month. There is no order as to costs.