' TALAT QAYUM QURESHI, Mst. Bibi Nasim respondent No,1 was legally wedded wife of Riaz Muhammad respondent No,5. Out of their wedlock a son named. Hamza was born about 4 years ago. Soon after the birth of Hamza, relations between spouses became so strained that respondent No,1 abandoned minor son and left the house of respondent No,5. The petitioner who was real grandmother of minor took the minor in her lap and looked after and nourished him till date.
Respondent No,1 in the year 1999 moved an application for custody of minor Hamza in the Court of learned Guardian Judge, Mansehra. An application of interim custody on the minor was also filed.
The learned Guardian Judge vide order, dated 21-2-2000 accepted the application of respondent No,1 for interim custody of minor and directed that the minor be handed over to her. Feeling aggrieved by the said order the petitioner filed appeal before the learned District Judge, Mansehra.
Similarly respondent No,5 also preferred appeal before the same Court against the impugned order but the learned Additional District Judge vide order, dated 31-5-2000 dismissed both the appeals on the simple ground that the said Court under section 47 (c) of the Guardians and Wards Act has no jurisdiction to entertain the appeals. Being aggrieved with the said order, dated 31-5- 2000 the petitioner has now filed writ petition in hand.
2. Mr. Syed Shabbir Hussain Shah, Advocate, the learned counsel representing the petitioner argued that it was the Court of learned District Judge where the appeal would lie against the order of the Guardian Judge and the impugned order being against the expressed provision of law is liable to be set aside.
3. This Court issued pre-admission notice on 27-6-2000 to respondents in response to which Mr. Iftikhar Afzal, Advocate entered appearance on behalf of respondent No,1 and argued that the appeal against the order of the Guardian Judge would lie before High Court and the order of the learned Additional District Judge, Mansehra is just and legal.
4. We have heard the learned counsel for the parties and perused the record.
5. The argument of the learned counsel for the petitioner that appeal does not lie before High Court and it lies before learned District Judge and the order, dated 31-5-2000 passed by learned Additional District Judge, Mansehra holding that appeal would lie before this Court (High Court) is wrong has force in it. Section 47 of the Guardians and Wards Act, 1890 deals with appealable order.
The same is reproduced hereunder for convenience:--- "47. Orders appealable.---An appeal shall lie to the High Court from an order made by a Court,-
(a) under section 7, appointing or refusing 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 an award to the custody 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, refusing to discharge a guardian; or
(h) under section 40, refusing to discharge a guardian; or
(i) under section 43, regulating the conduct or proceedings of a guardian or setting a matter in difference between joint guardians, or enforcing the order; or
(j) under section 44 or section 45, 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.
' The proviso was added by Ordinance XI of 1980 on 26-3-1980.
6. The question as to whether the appeal would lie before the District Judge or before the High Court, came up before august Supreme Court of Pakistan in "Sakhawat Ali and another v. Mst. Shui Khelay" PLD 1981 SC 454 and their Lordships while resolving the matter held:-- "There is no ambiguity about this section unless we ignore the elementary fact that there have always been two tiers of Courts in the District and Sessions Courts of the country. The Civil Judges form the lower tier of the District Courts, whilst the District Judges and the Additional District Judge constitute the upper tier of the District Courts. There is a similar hierarchy of Courts on the criminal side. And, appeals from the judgments of District Judges and of Additional District Judges have always been filed in the High Court, whilst, subject to the question of pecuniary jurisdiction, appeals from the lower tier of the District Courts, namely the Civil Judge have been filed in the District Courts. Now there can be no question of the valuation of the dispute in guardianship matters, but the District Judges are empowered, under the rules framed under the said Act, to transfer guardianship cases to Civil Judges. And, when the Civil Judge acts as the Guardian Judge, clause
(b) of subsection (1) of section 14 prescribes that an appeal against his order lies to the District Court. This is in accordance with the law."
' Through the said illuminating judgment of august Supreme Court of Pakistan, the view taken in 'Mst. Zeenatun Nisa v. Muzzamal' PLD 1972 Karachi 410 and "Muhammad Ismail v. Mst. Zubaida" PLD 1973 Karachi 503 was upheld whereas the dictum laid down in 'Muhammad Ismail v. Fazal Ahmad'
PLD 1969 Lahore 834, 'Mst. Parveen v. Khawaja Muhammad Akhtar' PLD 1975 Lahore 334 and 'Manzoor Hussain v. District Judge' PLD 1977 Lahore 911 was not approved by the august Supreme Court of Pakistan. The said judgment is, dated 22-3-1981.
7. A proviso to section 47 of Guardians and Wards Act was added Ordinance 11 of 1980 on 26-3-1980 which is as under:--- "Provided that where the order from which an appeal is preferred is passed by an Officer subordinate to District Court the appeal shall lie to District Court."
' Once again the matter came before the august Supreme Court of Pakistan in "Ehsanur Rehman v.
Mst. Najma Parveen' PLD 1986 SC 14. ' After thrashing all the judgments mentioned above of Baluchistan High Court and Lahore High Court their Lordships held:-- "The amendment made in 1980 provided that when "the Courts" 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."
After going through the judgments of august Supreme Court of Pakistan it is quite clear that when a Civil Judge acts as a Guardian Judge, clause (b) of subsection (1) of section 14 prescribes that an appeal against his order shall lie to District Court.
8. Keeping in view the above judgments we have no hesitation to hold that appeal against the order of the Guardian Judge lies before District Judge and not before High Court. We, therefore, accept the writ petition in hand and set aside the impugned judgment/ order, dated 31-5-2000 passed by learned Additional District Judge, Mansehra and direct that the appeal filed by the petitioner would be deemed to be pending before learned Additional District Judge, Mansehra who would decide the same on merits in accordance with law.