1. ' MIR MUHAMMAD NAWAZ MARRI, J.---In this Constitutional petition petitioner has assailed the order dated 30-12-1997, passed by learned Additional District Judge-I, Quetta whereby 'the order passed by learned Civil Judge/Family Judge, Quetta was set aside and the case was remanded to the trial Court with direction to decide the same according to provisions of Article 163 of Qanun-e- Shahadat Order. Following prayer has been made:-- "In the circumstances, it is, therefore, respectfully prayed that this Hon'ble Court may kindly be pleased to declare order, dated 30-12-1997 passed by learned Additional District Judge-I, Quetta is absolutely illegal ab initio void and passed without lawful authority, it be further declared that the orders for custody of the minor passed by Civil Judge-I, Quetta with the powers of Judge under the Guardians and Wards Act, dated 13-8-1996 have been passed in accordance with law.
2. ' Any other relief in addition to the above or in place whereof may also be granted to the petitioner.
3. ' Costs of the suit may also be awarded to the petitioner."
2. Precise facts relevant for disposal of instant petition are that petitioner was married to respondent No,1 at Quetta on 1st June, 1994, according to Hanfi School of thought and out of wedlock a child namely Urshia Naz was born on 11-2-1995, at Civil Hospital, Quetta. On the same day the child was taken away by respondent No,1 on the pretext that he wants to show her to his ailing mother. It was undertaken that he would return/bring back, the child after some times.
4. Afterwards as the child was not brought back therefore, petitioner filed an application under section 25 of the Guardians and Wards Act in the Court of learned Senior Civil Judge/Family Judge, Quetta with the prayer that custody of minor be returned to her.
3. The application was contested by the respondent No,1 by way of filing re-joinder to the same whereby after raising certain legal objections the application was contested on merits as well. The learned trial Court i,e, Civil Judge I/Family Judge Quetta passed an interim order whereby he directed that the custody of minor namely Urshia Naz be given to petitioner. Thereafter, the respondent No,1 preferred an appeal before learned Additional District Judge-III, Quetta who granted interim injunction against the order dated 30-10-1995. However, this Court handed over custody of minor to the petitioner vide order dated 21-12-1995, passed in Constitutional Petition No,362 of 1995.
5. ' The learned trial Court out of the pleadings of parties framed following issues for determination:--
(i) Whether the suit is liable to be dismissed in view of P/O 'B', 'C' of W/S?
(ii) Whether plaintiff is entitled for the relief claimed for?
(iii) Relief.
6. ' Thereafter, the parties were directed to adduce evidence in support of their respective claims: Whereupon petitioner examined two A. Ws. Namely Muhammad Shareef and Mehboob Elahi and also got herself examined; in rebuttal respondent No,1 produced R.W. 1 Abdul Khalique, R.W. 2 Haider Shah and R.W.3 Shahzad Hussain besides examining himself. The learned trial Court after appraisement of evidence and hearing the parties accepted the application vide order dated 13- 8-1996, and directions were made that the respondent No,1 shall be entitled to meet the baby once in a month in the house of one Haji Dad Muhammad resident of New Arif Road, Quetta on every Friday at 10-00 a.m. Till 7-00 p.m.
7. ' Being aggrieved of the above order respondent No,1 filed an appeal before the learned Additional District Judge-I, Quetta and petitioner preferred counter-appeal requesting that the duration of the custody to the respondent be curtailed and the venue of meeting be also changed. Appeal of the petitioner was partly accepted in terms that the respondent No,1 shall have custody of minor from the house of petitioner and return her at the same place, vide order dated 10-6-1997. During arguments counsel for the petitioner raised an objection in respect of jurisdiction of the Court. It was contended that since the order under section 25 of the Guardians and Wards Act, 1890 was passed by the Civil Judge in capacity of District Judge, therefore, appeal under section 47 of the Guardians and Wards Act should have been filed before the High Court instead of District Judge, however, the learned District Judge set aside the order as mentioned hereinabove.
8. ' Being aggrieved of the same petitioner has preferred instant Constitutional petition.
3. We have heard Mr. Sarwar Javed, Advocate for the petitioner; whereas the respondent No,1 was represented by Mr. Ejaz Sawati, Advocate.
9. ' Mr. Sarwar Javed, Advocate vehemently argued that the Appellate Court had no jurisdiction to decide the appeal as the learned Civil Judge/Family Judge, Quetta had decided the application under section 25 of the Guardians and Wards in capacity of District Judge, therefore, the appeal should have been filed before this Court. According to him this argument was also agitated before the learned Appellate Court but the same was not considered by it. He further argued that since the appeal was not argued by the learned counsel for the appellant on merits but only a request was made that the date of meeting the minor be extended.
10. ' Whereas on the other hand Mr. Ejaz Sawati, Advocate strenuously opposed the petition on the ground that the appeal was rightly filed before the learned District Judge as an appeal against the order of Guardian Judge who is not a District Judge or an Additional District Judge, lies to the District Court under clause b(1) of section 14 of West Pakistan Family Courts Act. In this behalf he relied on the Judgments of Honourable Supreme Court reported in PLD 1981 SC 454 and PLD 1986 SC 14. He further argued that the case was rightly remanded by' the learned Additional District Judge-I, Quetta to the trial Court to decide the application keeping in view provisions of Article 163 of the Qanun-e-Shahadat Order which is still pending before the trial Court. He stressed that in this regard no illegality or irregularity has been committed by the learned Appellate Court. He further argued that the point of jurisdiction had never been agitated before the learned Appellate Court on the contrary petitioner surrendered to the jurisdiction of Appellate Court by way of filing cross appeal, therefore, he is estopped to object jurisdiction of learned Appellate Court.
11. ' We have considered the arguments put forth by the learned counsel for parties and perused record of the case minutely, as well as judgments of both the Courts below. It is to be noted that crucial point involved in this case is whether the District Court was competent to hear the appeal or otherwise. It may be noted that admittedly a Family Judge acting under the Balochistan Family Courts Act, 1964 has been conferred exclusive jurisdiction of the Family Court to adjudicate upon matters specified in the Schedule of which Item No,5 refers to the custody of the child subject to provision of Muslim Family Laws Ordinance, 1961 and Conciliation Courts Ordinance, 1961. Section 25 of the Family Courts Act, 1964, confers on the Family Court while deciding a case under Guardians and Wards Act, status of District Court; whereas section 14(1)(b) prescribes that an appeal against the order lies before the High Court if it is passed by District Judge, Additional District Judge. Clause
(b) of the above subsection prescribes that the appeal lies to the District Court in any other case.
12. Simultaneously the Guardians and Wards Act, 1890 has not been repealed, therefore, section 47 of the Guardians and Wards Act and sections 14 and 25 of Family Courts Act,1964, are to be read together to find out whether an appeal lies before the High Court or District Court against an order passed under section 25 of the Guardians and Wards Act. For the sake of convenience section 47 of Guardians and Wards Act is reproduced hereinbelow:--
47. Orders appealable.--An appeal shall lie to the High Court from an order made by a Court--
(a) under section 7,appointing or declaring to appoint or declare a guardian; or
(b) under section 9, subsection (3), returning an application; or
(c) under section 25, making or refusing to make an order for the return of a ward to the custody and of his guardian; or
(d) under section 26, refusing leave for the removal of a ward from the limits of the jurisdiction of the Court, or imposing conditions with respect thereto; or
(e) under section 28 or section 29, refusing permission to a guardian to do an act referred to in the section; or
(f) under section 32 defining, restricting or extending the powers of a guardian; or
(g) under section 39 removing a guardian; or
(h) under section 42, refusing to discharge a guardian; or
(i) under section 43, regulating the conduct or proceedings of a guardian or settling a matter in difference between joint guardians, or enforcing the order; or
(j) under section 44, imposing a penalty: ' Provided that, where the order from which an appeal is preferred is passed by an officer subordinate to a District Court, the appeal shall lie to the District Court."
13. Bare perusal of clause (c) of the above section reveals that against an order passed under section 25 of the Guardians and Wards Act appeal lies to the High Court. An amendment was made in section 47 in the year 1980 by adding proviso to section 47 which states that where the order against which an appeal is preferred is passed by an Officer subordinate to a District Court, the appeal shall lie to the District Court. Section 14 of Family Courts Act, 1964 deals with appeals. The same is reproduced hereinbelow:-- "14. Appeal.--(1) Notwithstanding anything provided in any other law for the time being in force, a decision given or decree passed by a Family Court shall be appealable--
(a) to the High Court, where the Family Court is presided over by a District Judge, an Additional District Judge or any person notified by Government to be of the rank and status of a District Judge or an Additional District Judge; and
(b) to the District Court, in any other case. (2) No appeal shall lie from a decree by a Family Court--
(a) for dissolution of marriage, except in the case of dissolution for reasons specified in clause (d) of item (viii) of section 2 of the Dissolution of Muslim Marriages Act, 1939;
(b) for dower not exceeding rupees one thousand;
(c) for maintenances of Rupees twenty-five or less per month.
14. ' There is no ambiguity about this section and the same is very much clear that an appeal lies before the High Court where the Family Court is presided over by District Judge, Additional District Judge or any person notified by the Government to be the rank and status of a District Judge or an Additional District Judge where the Family Court is presided over by Judge subordinate to the District Court the appeal. Lies before the District Court. This question for the first time came before the Hon'ble Supreme Court for consideration in case Sakhawat Ali v. Mst. Shui Khelay reported in PLD 1981 SC 454 wherein it was held that neither section 25 of the Act repeals section 14 nor does it refer to the litigant's right of appeal. If that had been the intention of Legislature it would have been enacted accordingly because repeals are not to be lightly implied. It was further observed that section 25 only prescribes that the procedure of the Guardians and Wards Act shall be followed by the Guardian Judge and not the procedure contained in the said Act, therefore, it has nothing to do with the question of the formal knowledge. The order passed under this law could be challenged by the aggrieved party. Lastly it was held that since the word "Procedure" in section 25 is ambiguous and the purpose that right of an appeal is not a matter of procedure, therefore, an appeal against an order of Guardian Judge who is not a District Judge or an Additional District Judge lies to the District Court under clause (b), subsection (1) of section 14. A similar question again came before the Hon'ble Supreme Court for consideration in case Ehsanur-Rehman v. Mst. Najma Parveen reported in PLD 1986 SC 14 wherein plea was taken that no appeal in guardianship matters was competent before the High Court under the Guardians and Wards Act, 1890, after the enactment of West Pakistan Family Courts Act (XXXV) of 1964. In reply while relying on leave granting order dated 13-12-1981, reported in 1982 SCMR page 1223 wherein leave was granted to consider whether on account of amendment made in section 47 of Guardians and Wards Act of 1890, was it necessary for this Court to reconsider the view taken in Sakhawat Ali's case or otherwise. In this regard the following two points were formulated by the Hon'ble Supreme Court:--
(i) Whether it is covered by the pronouncements made by the Supreme Court in the case of Sakhawat Ali and if so?
(ii) Whether the said decision needs to be re-considered?
15. ' The above questions were answered in the above-cited judgment in the following words:-- "Section 47 in its purview enacted that all appeals from orders referred therein passed under the Guardians and Wards Act by 'the Court' (as defined in the Guardians and Wards Act) would lie to the High Court (before the amendment). The decision of 'the Court' (defined in section 4(5)(a) of the Guardians and Wards Act as the 'District Court') even if it was presided over by a Civil Judge subordinate to a District Court, by virtue of enabling provision contained in section 4-A of the Guardians and Wards Act, was appealable under section 47 only to the High Court, The amendment made in 1980 provided that when 'the Court' was presided over by a Civil Judge subordinate to the District Court the appeal shall then lie to the District Court and not to the High Court. The argument advanced in the case of Muhammad Deen Malik was that if an appeal under section 47 was not competent in a case decided by a Family Judge, then there was no need for the Legislature to have made the amendment at all. Prima facie the argument is attractive that is why leave to appeal was granted. But on deeper scrutiny it seems that the amendment was made by the Legislature under some misapprehension. It seems that the law declared by the Lahore High Court in the case of Parveen and Manzoor Hussain (decided in 1975 and 1977) was treated to have concluded the controversy and the contrary view taken in the earlier cases decided in 1971; 1972 and 1973 (Karachi), it was assumed to have been superseded by the Lahore cases. If so, it was wrong assumption because the two different views were expressed by separate High Courts and although the view of one had persuasive value for the other, they were not as such binding on each other. Be that as it may, the overruled view expressed in the Lahore cases was, it has been noted earlier, made the basis for bringing, by amendment the proviso in section 47; on the assumption, that the appeal (as held in the Lahore cases) was competent under section 47 of the Guardians and Wards Act and not under section 14 of the Family Courts Act. This incorrect assumption led to the enactment of the proviso.
16. ' Although the presumption is that redundancy is not to be imputed to an enactment nor ignorance of law is to be imputed to the law-making Agency; but this presumption can differ from case to case, And in proper situations the superior Courts have made corrections where the Legislature is demonstrably shown to have made a visible error. Here one visible error is that the Karachi view was deemed to have been subordinated to the Lahore view which on no jurisprudencial basis can be upheld as correct. The two judgments were not rendered by the same Court as it used to be the situation when the West Pakistan High Court had different Benches at Karachi and Lahore.
17. Secondly for a more weighty reason the amendment would not be deemed to have diluted, in any way, the effect of the law declared by this Court in Sakhawat Ali's case, which was decided on 23- 3-1981, while amendment was made on 26th March, 1980, The declaration of law in the case of Sakhawat Ali the Supreme Court of Pakistan in pursuance of the mandate of the Constitution will override the amendment made in section 47 and nullify its effect by virtue of Article 189 of the Constitution."
18. As far as Guardians and Wards Act is concerned, section 47(1)(c) of the Act prescribes that appeal lies to the High Court from an order made by a Court under section 25 of the Guardians and Wards Act. Section 14 of the Family Courts Act started with word "notwithstanding anything provided in any other law for the time being in force" the effect is to exclude any provisions of the Guardians and Wards Act which would be contrary to section 14 of the Family Courts Act, 1964. This view was taken by the Sindh and Balochistan High Court reported in PLD 1973 Karachi 503 which was, subsequently, confirmed by the Hon'ble Supreme Court in Sakhawat Ali and Ehsan-ur-Rehman's case mentioned hereinabove.
19. ' For the foregoing reasons we are of the considered opinion that appeal lies before the District Judge under section 14 of the Family Courts Act, 1964. The petition has no force which is accordingly dismissed.