1. ' NAZIM HUSSAIN SIDDIQUI, J.---Petitioner Dilawar Shah has challenged the Orders dated 8-5-1995 and 31-5-1995 passed by the respondents Nos. 1 and 2 respectively. The facts relevant for decision of this petition are as follows: ' Deceased Naseeb Rawan, who was the son of the Petitioner, husband of respondent No,3 Mst.
2. Sardar Begum, and father of the minors whose ages are shown against their names i,e, Jamila 14 years, Noor Bibi 11 years, Ajeera Bibi 10 years, Mariam 9 years, Kausar Naz 7 years and Wajjad 5 years, had died in an accident on 23-2-1992. He married the respondent No,3 in the year 1980 and from said wedlock above named minors were born to the respondent No,3. It is alleged that, during the life time of deceased the respondent No,3 had developed clandestine relations with the one Rizwanullah, and soon after the death of her husband married him (Rizwanullah). The Petitioner had filed the Application No,416 of 1993 for seeking custody of the minors before the respondent No,1, against the respondent No,3. It is alleged that the respondent No,3, in spite of valid service remained absent, as such, the Application was allowed by learned III Senior Civil Judge/Family Judge, as per Order, dated 17th March, 1994. The Petitioner, thereafter, filed Execution Application No,1 of 1994 before respondent No,1 and in pursuance thereof the custody of three minors namely, Ajeera Bibi, Mariam, and Master Wajjad was handed over to the petitioner. The execution application, however, still remained pending for securing custody of the remaining three minors, namely Jameela, Noor Bibi, and Kausar Naz. Thereafter the respondent No,3, in execution proceeding, filed an application under section 12(2), C.P.C. For setting aside the ex parte order, which according to the respondent No,3 was obtained by fraud and misrepresentation.
3. ' The respondent No,1, by order dated 8-5-1995, set aside the ex parte order mentioned earlier and restored the custody of three minors namely, Ajeera Bibi, Mariam, and Master Wajjad, to the respondent No,3, till final disposal of the matter. The petitioner, challenged this order before respondent No,2 and his appeal having No,24/1995 was dismissed by respondent No,2, vide order dated 31-5-1995. Both these orders have now been impugned in this petition.
4. ' The case of the respondent No,3 is that her husband was an employee of Pakistan Steel Corporation and had died in an accident on the date mentioned earlier. She claimed that, after completing Iddat, she married said Rizwanullah,who is also an employee of said corporation, as she had no sources to maintain her said six children. According to her, after the death of her husband, her father-in-law Dilawar Shah and his son Bakhte Rawan had taken away all valuable movable properties belonging to her husband, including a Refrigerator etc. She maintained in the year 1992 the services of her husband Rizwanullah were terminated, as such, he took her and children to his native village in Charsadha. Her husband, however, was reinstated in December, 1994 and thereafter they again started residing in their house at Karachi since January, 1995. She categorically stated that from 1992 to December, 1994 she was in District Charsadha. She stated that, on 29-3-1995 at 2-00 a.m. In the night, the Police forcibly entered in her house and took away minors Ajeera Bibi, Mariam Bibi and Master Wajjad.
5. ' Mr. M.M. Kazi learned counsel for the petitioner has assailed the impugned orders purely on technical grounds. He argued that respondent No,1, as an Executing Court, was not legally competent to entertain the application under Order 12(2), C.P.C. As Rule 13 of West Pakistan Family Court Rules, 1965, provided that on sufficient cause being shown the ex parte order, or decree could be set aside by the Court on application made to it within 30 days of passing of the decree of decision. We may pause here to say that Hon'ble Supreme Court in the case of Major Matloob Ali Khan v. Additional District Judge, East Karachi, 1988 SCM R 747 held that said Rule 13, prescribing limitation period of 30 days, was ultra vires the power of rule making authority as statutes provided no time limitation for making application for setting aside an ex parte decree passed by a Family Court. Learned counsel also argued that the Executing Court could not go beyond the decree and in any case it was beyond its jurisdiction to set aside the ex parte order in question.
6. ' In order to appreciate the contentions raised on behalf of the Petitioner, we feel it is necessary to refer certain provisions of Pakistan Family Court Act, 1964 and that of Guardians and Wards Act, 1890. According to section 5 of the Family Court Act, the Family Court shall have exclusive jurisdiction to entertain, and adjudicate upon the matters specified in the Schedule. Item. No,5 of the Schedule speaks about "Custody of Children". Section 17 of the Family Court Act provides that provisions of the Evidence Act and Code of Civil Procedure, except 10 and 11, shall not apply to proceedings before the Family Court. Section 25 of the said Act provides that Family Court shall be deemed to be a District Court for the purpose of Guardians and Wards Act and notwithstanding anything contained in this Act, shall, in dealing with the matter specified in that Act, follow the procedure prescribed in that Act. Thus, while dealing the question of custody of the minors the procedure prescribed in Guardiance and Wards Act is to be followed and not the procedure contained in Family Court Act. Sections 10, 11, 36, 43, 46 and 48 of the Guardians and Wards Act lay down that the procedure prescribed in the Code of Civil Procedure shall be followed in respect of these sections.
7. ' In the case of Malik Khizar Hayat Tiwana v. Mst. Zainab Begum and others PLD 1967 SC 402. The Hon'ble Supreme Court 'examined the point of applicability of Civil Procedure Code in the proceedings, initiated under the Guardians and Wards Act. The contention was raised that the provisions of Civil Procedure Code apply ipse vigora to proceedings thereunder by reason of the provisions of section 141 of the Code of Civil Procedure, for the Guardians and Wards Act itself does not prescribe any special procedure but does specify that a Court under the Guardians and Wards Act means the District Court, having jurisdiction to entertain an application under that Act and a District Court has been specifically defined therein as having the same meaning as a District Court under the Code of Civil Procedure. Against above contention, the argument of the other side was that where the Legislature intended that the procedure prescribed by the Code of Civil Procedure should be followed it has expressly mentioned so, but with regard to other matters the statute itself has prescribed its own procedure. Having taken into consideration above arguments the Hon'ble Supreme Court observed as follows: "This argument is not without force. Even if the procedure of the Code can be said to be attracted to proceedings under the Act where no specific provision has been made in the Act itself that must be under the terms of section 141 of the Code itself only ' as far as it can be made applicable'. This clearly indicates that there can be no blind or rigid adherence if the nature of the cause or matter itself gives a contrary indication. Apart from the scheme of the Act itself to which the learned counsel for the respondent has with reason adverted we are also of the view that in a proceeding under the Act the Court should not lose sight of the fact that the overriding consideration is always the welfare of the minor. The Court in such cases is really exercising a parental jurisdiction as if it were in loco parentia to the minor. This is not a jurisdiction, therefore, in which there can, by its very nature, be any scope for any undue adherence to the technicalities. "
8. ' The dictum laid down by the Hon'ble Supreme Court in respect of the matters, concerning "CUSTODY OF CHILDREN" is that since the Court in such matters exercises parental jurisdiction, therefore, adherence to the technicalities of law is not proper and justified.
9. Adverting to the contention of the learned counsel for the petitioner that application moved under subsection (2) of section 12, C.P.C. Could not be entertained by the Executing Court and it could only be moved to the Court which was passed final judgment, decree or order, it is noted that subject to the provisions of section 47, C.P.C. The provisions of subsection (2) will apply to determination made in the course of execution proceedings whether they be decree or order. The scope of applicability of subsection (2) of section 12 of C.P.C. With reference to the execution proceedings will be confined to the extent the order passed in execution proceedings. The tenor of the impugned order dated 8-5-1995 shows that it was passed as Guardian Judge. Once the ex parte order was set aside all subsequent orders based upon it, stood vacated, modified, altered in terms of the order, whereby the ex parte proceedings were set aside. During the course of arguments, learned counsel for the petitioner conceded that the Court which passed the impugned order dated 8-5-1995 and the Court which was executing it was headed by the same Presiding Officer. It being so, and the paramount consideration being the welfare of the minors, the only question before the respondent No,1 was that whether sufficient cause was shown for setting aside the ex parte order.
10. ' It is clear from the affidavit of respondent No,3 that from 1992 to December, 1994 she was not at Karachi, but in the Application No,416/1993 her address was shown as resident of Karachi. The respondent No,3, in her affidavit, has alleged that the Petitioner was seeking custody of minor girls not for their welfare, but for selling them in the Tribal Areas of Pakistan. Above two grounds, in our view were sufficient for setting aside the ex parte order. Besides, it is an admitted fact that the parties are governed by Sunni Muslim Law. The right of custody (Hazanat) ex facie is that of 'the mother. This right would continue with the mother unless it is shown that welfare of the minors demands that her custody instead of mother be given to some body else. The question of welfare of the minors can be effectively decided only after the evidence is recorded. In the case of Mst.
11. Khundi Devi v. Chotey Lal AIR 1922 Allahabad 338 a D.B. Of that Court observed as follows: "The District Judge who exercises a parental jurisdiction in proceedings under the Guardians and Wards Act, cannot be expected to observe the formality and precision of procedure laid down by the Civil Procedure Code to be followed by Court in the trial of ordinary suits. If the order passed by the District Judge is on the whole reasonable, the High Court will refrain from interfering because he has not acted with proper regard to any statute or loss of evidence of the procedure under Civil P.C."
12. ' Accordingly, we hold that the conclusion drawn in the impugned orders is correct and there is no merit in this Petition.
13. ' On 26-10-1995, after hearing the arguments of learned counsel for the petitioners, we had dismissed this petition in limine and these are the reasons for the same.