1. ' Through this Constitutional petition, petitioner seeks to declare the impugned order, dated 6-11- 1997 passed by learned 1st Additional District Judge, Karachi (South) as improper, without jurisdiction and contrary to law.
2. ' Precisely the facts of the petitioner's case are that she was Chirstian and had embraced Islam on 5-1-1983 and changed her name as Shahnaz and married with Asif Riaz son of Riaz Nasir Khawaja, respondent No,1 on 26-1-1983. Out of wedlock three children were born. Her further case is that she was divorced on 21-11-1990 by her husband and an agreement was entered between them whereby the minors were agreed to remain in custody of the petitioner and respondent No,1 would be entitled to visit them. After the divorce her husband left Karachi and settled in Germany and neither visited the minors nor ever sent a single peny as maintenance. Her further case is that grandfather of the minors viz. Respondent No,1 had illegally snatched the minor from the custody of the petitioner and she filed application under section 491, Cr.P.C. As Criminal Miscellaneous Application No,1290 of 1993 before this Court and this Court vide orders, dated 1-12-1993 set the minors free to go according to their wishes and consequently they joined the petitioner.
3. Subsequent to that respondent No,1 filed Guardians and Wards case against the petitioner for seeking the custody of the minors and it was on 28-8-1996 learned Family Judge delivered judgment and directed the petitioner to hand over the custody of the minors, to respondent No, 1 .
4. The said judgment was challenged by the petitioner and such appeal is pending before respondent No,2 (learned Additional District Judge, Karachi (South)). Petitioner has further mentioned in the petition that she moved an application under Order XLI, rule 27, C.P.C. Read with section 14 of the Family Courts Act, 1964 alongwith affidavit to which respondent No,1 filed counter- affidavit and petitioner filed rejoinder. Learned Appellate Court dismissed such application on 16- 12-1997 with regard to the adducing of the evidence of the minor Rubina Asif Khawaja. Petitioner finding no alternate or other legal remedy invoked the extraordinary jurisdiction of this Court and filed the petition under Article 199 of the Constitution of Islamic Republic of Pakistan.
5. ' Ch. Rashid Ahmed on behalf of the petitioner and Mr. Anwar Khan for the respondent No,1 and Mr. Jai Jai Veshno, learned Additional Advocate-General for respondent No,2 have been heard at length.
6. ' Learned counsel for the petitioner mainly argued that the impugned order is improper, unconstitutional, against the fundamental rights and without jurisdiction, hence null and void in the eye of law. He next argued that learned Appellate Court has failed to appreciate the fact that statement of minor is very essential and important for the proper adjudication of the matter while deciding the custody of the minor. He next contended that Madam Night Sultana the first Guardians and Wards Judge had in fact asked the questions from minors and checked their intelligence but these facts could not be brought on record due to her transfer and her successor Judge did not record the same. It is further contended that learned Appellate Court while dismissing the application has ignored well-settled principles of law that the desire and wishes as well as mental attachment of the minors are important factors to decide the guardians and wards cases. He lastly urged that provisions of section 17, subsection (3) of Guardians and Wards Act has not been complied with in this case which lays down that if a minor is old enough to form an intelligence preference the Court may consider that preference. In support of above contentions he placed reliance on PLD 1978 Lahore 711 and 1991 MLD 965.
7. ' On the other hand Mr. Anwar Hussain vehemently refuted the arguments of petitioner's counsel and stated that petition is not maintainable and is liable to be dismissed. According to him the minors right from their time of birth were being looked after and educated by respondent No,1 their grandfather as petitioner Mst. Shahnaz and Asif Khawaja were doing jobs and were living independently and there was no one to look after them as such they used to leave the minors with respondent No,1 from morning till evening. After some time the parents of the minors used to visit them on week ends and after the divorce, children remained with respondent No,1 all along. After divorce father of minors left abroad and petitioner used to visit the minors in the house of respondent No,1 and was never objected. Learned counsel further argued that thereafter petitioner again converted to her original religion and became Christian and contracted marriage with Robert Edward on her visit to Canada in 1990. It was lastly contended that petitioner got annoyed with respondent No,1 on his refusal to allow the minors to go with the petitioner to the Church Learned counsel submitted that all the above factors were considered by Guardian and Ward Court and same were the main reasons for allowing the minors' custody to the respondent No,1 by the said Court. Since no application with regard to adducing the evidence of minors was made before the trial Court as such same is not maintainable before the Appellate Court and on this point learned counsel refers section 17(3) of Guardians and Wards Act and states that same is not applicable in this case as argued by petitioner's counsel because under subsection (3) of the said section it is left with the discretion of the Court to form an intelligence preference if minor is old enough to do so. This provision of law does not leave the Court to examine that minor as a witness.
8. In support he placed reliance on the cases reported in 1987 CLC 163, 1983 SCMR 398.
9. In this matter it is admitted that petitioner never preferred any application before the trial Court to record the evidence of minors during the entire proceedings. It is only at the appellate stage that she preferred an application under Order XLI, rule 27, C.P.C. Which relates to the production of additional evidence at the appellate stage. The perusal of above provisions of law defines that the parties to an appeal shall not be entitled to produce additional evidence whether oral or documentary unless the trial Court had refused to admit evidence which ought to have been admitted. Moreover, power to allow additional evidence is discretionary in nature and it has been rightly refused by the Appellate Court. Subsection (3) of section 17 of Guardians and Wards Act referred by petitioner's counsel is not attracted in this case as firstly that the opinion of intelligence preference is to be formed by asking relevant questions if minor is old enough to understand the same and secondly it does not stipulate that the statement in evidence of the minor is to be recorded. In the case of Mst. Khairunnisa and others v. Shah Behram and others, 1991 CLC 994, it has been observed by the Peshawar High Court that additional evidence could be allowed only where trial Court improperly refused to admit evidence. Irrespective of this it is also held that to allow additional evidence is purely discretionary in nature. Hon'ble Supreme Court in the case of Bashir Ahmed v. Ahmad-ul-Haq Siddiqi, 1985 SCMR 1232 has observed as under:-- ' "O.XLI R.27 and Constitution of Pakistan 1973, Art. 185--Additional evidence--Production of-- Application for---Refusal of--Ground for--Failure to produce necessary witnesses before trial Court seriously weakening case of petitioner--Subsequently, application for permission to produce additional evidence submitted, in attempt to repair damage', before Appellate Bench of High Court--Such Bench, however, dismissing application inter alia on ground that additional evidence not to be allowed in order to enable (any) party to patch up weaker part of its case or to fill up omission or to enable to raise new point--Held: View taken by Judges in High Court refusing permission to petitioner to produce additional evidence at appellate stage to be quite correct and not to be faulted."
10. ' Here in this case as stated above, the reason that children from their childhood are being continuously maintained by respondent No,1 their grandfather and the fact that petitioner has not only re-married but has converted to her original religion viz. Christianity cannot be lost sight while deciding the welfare of the minors. In these circumstances of the matter it would be appropriate that the custody of the minors be retained by respondent No,1 who would be in a better position to look after them so far their education and other facilities are concerned. Here I feel proper to refer the case of Shah Abdul Salam v. Additional District Judge, Jhang and 2 others 1988 SCMR 608. In this citation Hon'ble Supreme Court in the similar circumstances of the case has held that it would be in the welfare of the child that he should live with appellant who looks after for nine (9) years and brought him up as their son. The citations referred by the petitioner's counsel are on different facts and circumstances as such are not applicable to the facts of the petitioner. Irrespective of the above, learned counsel for the petitioner has not been able to show that the learned Appellate Court had no jurisdiction to pass the impugned order. He has also not been able to refer to any illegality, misreading or non-appraisal of evidence, hence calling in question the said judgment in Constitutional petition is not warranted by law. Consequently the order of the Appellate Court is maintained and petition is dismissed with no order as to costs.