1. CH. MUSHTAQ AHMAD KHAN, J. --- Facts of the case out of which this Constitutional petition has arisen are that the order passed under section 25 of the Guardian & Wards Act by the learned Guardian Judge. Okara dated 2.5.1991 regarding the custody of a minor daughter of Mst. Tasneem Akhtar respondent, No. 1 upheld up to the legal of the Hon'ble Supreme Court of Paksitna is being executed by the learned Senior Civil Judge/Judge Family Court/Guardian Judge, Okara. In pursuance of the said execution petition, a warrant under section I0O Cr.P.C, was issued blit as the minor child was removed from the given address, it could not he executed hence a warrant of arrest and attachment of the salary of the petitioner .Were issued by the learned executing Court to affect the restoration of custody of the minor daughter of the respondent No. I from the petitioner. This order and the previous orders passed by the learned Executing Court were challenged by the petitioner in appeal before the learned Additional Judge. Okara which has also been dismissed Uide order dated 28.9.1992. The interim orders as well as the order passed by the learned Guardian Judge as well as the order dated 28.9.1992 by the learned Appelate Court have been challenged m ibis Constitutional Petition.
2. On 3.11.1992, learned counsel for the petitioner made St statement to the ffect that the minor is in the custody of the grand-mother of the minor and therefore, if a short adjournment is granted, further instructions shall be sought from the petitoner as to when the minor can be handed over to respondent No. 1. Resultantly the case was adjourned to 7.11.1992. On that date neither the petitioner nor his learned counsel appeared and the writ petition was dismissed in default. It was restored by this Court vide order dated 8.11.1992 and arguments have been heard today. Mr. Qamar Zaman Qureshi, Advocate, has appeared on behalf of the petitioner and has argued that as Code of Civil Procedure is not applicable to the Guardianship procedings, the learned Executing Court had no jurisidction to pass an order of attachment of the salary of the petitioner and issue his warrants of arrest. According to the learned counsel, learned Guardain Judge can only issue a warrant under section 100 Cr.P.C, and if the child is not found at that address, the Court is powerless. The learned counsel has relied in this behalf on case of Begum Zainab Tiwana v. Ch. Aziz Ahmad & there others (PLD 1967 Lahore 977). Learned counsel has further contended that the impugned orders has been pased without giving an opportunity being heard to the petitioner. I have asked the leanred counsel as to when the final order was passed by the Supreme Court of Pakistan directing the restoration of the custody of the minor to the respondent, learned counsel has stated that it was on 15th of January, 1992 and since then the minor is living with her grand-mother at Karachi. Learned counsel states that the petitioner even offered that in case a warrant under section I0O Cr.P.C, is obtained, be will lead to the recovery of the minor from Karachi, but the respondent did not agree. I have asked the learned counsel as to what is the difficulty with the petitioner inasmuch as he has not been able to bring the child from Karachi to Okara for the last about one year and further what is the difficulty in moving an application in writing to the learned Guardian Judge assuring the production of the minor in Court and handing over his custody to the mother on a particular date.
3. Learned counsel is not in a position to give any satisfactoiy answer to these questions except that the petitioner is a Government servant and his warrant of'arrest have been issued, hence, there is an apprehension that he will be arrested.
4. I have considered the arguments addressed by the learned counsel for the petitioner. This is a case which speaks volumes about the mala fide on the part of the petitioner. It is highest of disrespect for the Courts of this countiy including Hon'ble Supreme Court of Pakistan which is being shown by the petitioner who has stated that he is a Government servant. It is very strange that an order for restoration of the custody of the minor has been passed by a Court of competent jurisdiction and this order has been upheld up to the level of Supreme Court of Pakistan. The petitioner has successfully frustrated the order for a period of about one year. During the course of this writ petition also the petitioner has played the game of 'hide and seek' and tried to prolong the matter to the maximum he could. Exercise of discretionary juridiction is not meant for such like litigents whose conduct is not above hoard. A person who comes to get equity must come to the Court with clean hands. It is legal and moral duty of the petitioner who is a Government servant to abide by the law. The ultimate Court of the country has held that, the child is to remain in the custody of the mother. Plea that the minor is in Karachi living with grand-mother should not have been adopted as an excuse for frustrating the orders passed by the Court of competent jurisdiction. Merely on the basis of technicalities, writ jurisdiction is not exercised. Even a void order which is otheiwise fair and just need not be set aside in exercise of writ jurisdiction. Even otheiwise I do not agree with the learned counsel for the petitioner that the learned Guardian Judge is powerless to get his order implemented and the only remedy available to him is by issuing a warrant of arrest under section 100 of Cr.P.C, and if the same is not executed, the Court becomes powerless. Learned Guardian Judge is also a Civil .Judge and, therefore, shall have all the powers which a Civil Judge has for getting his orders implemented. Judgment cited by the learned counsel is distinguishable of facts.
5. Consequently, the impugned orders are not illegal and are, unexceptionable.
6. On the face of it this is a frivolous writ petition not only an effort has been made to frustrate the implementation of the orders passed by the Court of competent jurisdiction upheld by the highest Court of country' but respondent No. 1 has also been put to be great inconvenience inasmuch as she has to engage a learned counsel even in this Court who have been appearing in Court on various dates of hearing, therefore, the respondent No. 1 is entitled to the grant of special costs.
7. Resultantly this writ petition has no force and the same is, therefore, dismissed. The petitioner shall pay an amount of Rs. 10,000/- by way of special costs to respondent No. 1.