' Petitioner Mst. Muqadus Inayat 18 years of age is the only issue of late Ch. Inayat Ullah who died when she was hardly 1-1/2 years old. She has filed this petition through her step-mother and first wife of her late father to challenge the order dated 6-11-1999 passed by the learned Guardian Judge, Daska District Sialkot whereby he allowed respondent No,2 petitioner's mother who had already been appointed as Guardian of the person and property (vide order dated 5-3-1992) to dispose of the petitioner's property. The impugned order reads as under: - ".... Counsel of the petitioner. The petitioner has moved the instant application for grant of permission to dispose of the property of the minor in any manner.
' A perusal of the record available on the file shows that the petitioner is real mother of the minor Muqaddas Inayat and has already been appointed guardian of her by the Court on 5-3-1992. Copy of the guardianship certificate is available on the record. Being the real mother of the minor there is no apprehension that the petitioner can go against her interests. In the circumstances, the instant petition is accepted and the petitioner, is allowed to use the property of the minor in any manner.
File be consigned to the Record Room."
' The application to review the order was dismissed by the same learned Judge on 31-3-2000.
2. The facts as given in the petition are that the petitioner was residing with her mother-respondent No,2. She was student of 1st year in a Local College, Sialkot. According to her she was duped into Nikah with Ihsan Ullah maternal nephew of the respondent No,2. Her thumb-impressions were obtained under duress and when she get a chance managed she run away to join her paternal relatives and got a case registered vide F.I.R No, 355 of 1998 Police Station Daska. Respondent No,2 filed a Writ Petition No,1947 of 1999 in which she prayed that the petitioner Mst. Muqaddas Inayat be lodged in Darul-Aman. She, however, fled to Canada where she sought political asylum and filed a suit for dissolution of marriage against Ihsan Ullah in the Ontario Court (General Division), a copy of which has been annexed with the petition as Annexure'B'. As soon as petitioner left the country respondent No,2 who had already been appointed as guardian of the person and property vide order dated 5-3-1992 moved an application to the learned Guardian Judge for permission to sell the property which permission has been granted vide the impugned order. It is further alleged that by misrepresentation Ihsan Ullah, the alleged husband of the petitioner, procured an order in Writ Petition No,19596 Of 1999 (passed by my learned brother Mr. Justice Iftikhar Ahmad Cheema, J.) on the basis of which case for abduction was registered against petitioner's paternal relatives including her step-mother Mst. Iqbal Begum who is an old lady of above 60 years of age (vide F.I.R.No,389 of 1999, Police Station, Sambrial) when the facts were brought to the notice of the learned Judge through an application under section 12(2), C.P.C., he was pleased to direct that the police shall not arrest any accused in the afore referred criminal case.
3. Learned counsel for the petitioner has assailed the orders passed by the learned Guardian Judge dated 16-11-1999 and 31-3-2000 on the following grounds:-
(i) That the petitioner Mst. Muqaddas Inayat is above 18 years of age; that she had to run for her life and left the Country on account of threats given to her; that respondent No,2 arranged the forcible Nikah of the petitioner with her nephew Ihsan Ullah; that as she rebelled against the said Drama of Nikah respondent No,2 has turned hostile towards her and to wreck vengeance she has procured an order for selling the petitioner's property which is not in petitioner's interests, and therefore, the order cannot be sustained.
(ii) That respondent No,2 was appointed as Guardian of the person and property of the minor vide order dated 5-3-1992. This guardianship order shall after 12-9-2000. Respondent No,2 never applied to sell the property for more than seven years and in an indecent haste an application was filed to sell the property notwithstanding the fact that her guardianship is expiring on 12-9-2000.
This accordingly reflects her mala fide.
(iii) That the impugned order is violate of the mandatory provisions enshrined in sections 29 and 31 of the said Guardians & Wards Act.
(iv) That this Court can interfere not only under Article 199 of the Constitution but also under the parental jurisdiction of this Court as the impugned order has not been passed for the welfare of the minor.
(v) That as the petitioner is a major and admittedly above 18 years of age, it is essential to have her statement recorded in these proceedings, therefore, C.M.No,3 of 2000 be allowed and an Officer of this Court be sent to Canada to, record her statement.
4. In support of the submissions learned counsel for the petitioner relied on the following judgments: -
(1) Hafiz Noor Muhammad and others v. Ghulam Rasool 1999 SCMR-705;
(2) Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (K.M.C.) Karachi and 40 others 1999 SCMR 2883.
(3) Pakistan Telecommunication Corporation and others v. Riaz Ahmad and 6 others PLD 1996 SC 222.
(4) Messrs Pioneer Cement Limited v. Province of the Punjab 2000 CLC 54.
5. Learned counsel for the respondent No,1, on the other hand, vehemently opposed the petition, filed written statement and submitted as under:---
(i) That the respondent No 2 was rightly appointed as guardian on 26-2-2000 and there has been no complaint whatsoever against her ever since then which show that she never acted against the interest of the petitioner-minor.
(ii) That petitioner has come with unclean hands. She is fugitive to law; that she was directed by this Court in writ Petition No,947 of 1999 to appear in Court which order was never complied by her; that she filed a suit for jactitation of marriage which was dismissed; that she is living with her paternal relative who were accused in a case registered vide F.I.R. No, 389 of 1999, Police Station, Sambrial, in the afore referred circumstances, according to the learned counsel for the respondent, petitioner is not entitled to any discre tionary relief under Article 199 of the Constitution.
(iii) That the impugned order has rightly been passed and being mother respondent No,2 is best Judge of petitioner's interests and welfare and no exception can be taken to the order passed.
(iv) That the impugned order being appealable, petitioner has an alternate remedy available to her under sections 39, 43, 47 and 48 of the Guardians and Wards Act.
(v) That there is no justification for the appointment of the Commission to record petitioner's statement in Canada firstly because her apprehension of threat to her life is misconceived, secondly she can herself appear before this Court and make statement and thirdly a fugitive to law cannot request the Court to have her statement recorded at a place of her own choice.
(vi) That the respondent No,2 cannot give any undertaking that she would not sell the petitioner's property as she has been given complete powers by the learned Guardian Judge and this Court should not impose any conditionality on the said order.
6. Learned counsel for the respondent No,1 relied upon the following precedent case law:---
(1) Abdul Rehman v. Haji Mir Ahmed Khan and another PLD 1983 SC 21;
(2) Adamjee Insurance Company Ltd. v. Pakistan 1993 SCMR 1798;
(3) Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, and 20 others PLD.1996 SC 246;
(4) Baz Muhammad and others v. Mst.Zulekha and others PLD 1997 SC 300;
(5) Archibald Campbel Mackilot v. Tobacco Manufacturers (India) Ltd. PLD 1951 Sindh 22.
7. Learned Additional Advocate-General who was asked to assist this Court submitted that the facts and circumstances of this case indicate that respondent No,2 applied to sell petitioner's property because the latter rebelled against the Nikah which prima facie was performed under coercion; that the un-holes haste in which attempt is being made to sell petitioner's property makes the whole exercise dubious; that there are exceptional circumstances which warrant that this Court may interfere and set aside the permission granted to respondent No,2 to sell petitioner's property as petitioner is in Canada, that she is being harassed and the order passed by the learned Guardian Judge was not sustainable in law; that neither any reason has been given nor any constraint or conditionality has been attached to the guardian powers to sell property. He lastly contended that the consideration of the welfare of the minor appears to be in conflict with respondent's attempts to dispose of petitioner's property.
8. Heard.
9. I have given my anxious considerations to the submissions made by both the learned counsel and have also gone through the precedent case law, referred during the arguments. The questions which have been mooted in this petition are as under: -
(i) Whether Mst. Iqbal Begum through whom petition has been filed by Mst. Muqaddas Inayat has locus standi to file this petition as next friend?
(ii) Whether the petitioner has an alternate remedy of filing appeal against the impugned order and if answer is in the affirmative is this petition incompetent solely on the ground of other remedies being available in law?
(iii) Whether the impugned orders are violate of mandatory provisions of Guardians and Wards Act?
10. So far as the first question is concerned, admittedly, Mst. Lqbal Begum is the first wife of Ch. Inayat Ullah, father of the petitioner Mst. Muqaddas Inayat and is issueless. It is not denied that Mst.
Muqaddas Inayat has executed power of attorney in favour of Mr. Taki Ahmad Khan, Advocate and the same has not been disputed at any stage. In the F.I.R. No, 355 of 1998, dated 31-11-1998, Police Station, Sambrial petitioner has leveled serious allegations against her mother respondent No,2 (F.I.R. Is annexed as Annexure-A with the petitioner). She has alleged that she was taken to the house of an Advocate where her mother and 5/6 persons with weapons were sitting. They threatened her that if she did not sign the papers, she would be killed, she entreated those people in tears that they should not coerce her but this was of no avail and she had to sign those papers which included blank form; that she was threatened that in case she disclosed that incident to any one she would be killed; that the Nikahnama prepared was bogus inasmuch as petitioner never consented to Nikah that no 'Maulvi' came there to perform the Nikah; that as soon as she got an opportunity she ran and joined Ali Akbar who is a paternal relative over which the maternal relatives got enraged. She reiterated the afore referred stand in her statement recorded under section 164, Cr.P.C. Before the Magistrate on 21-11-1998 wherein she further alleged that her Nikah had been forcibly performed with Ihsan Ullah just to grab the landed property. Both in the F.I.R. And in the statement recorded under section 164 Cr.P.C. She has leveled serious allegations against the respondent No,2, her mother. I have gone through the written statement filed by the respondent No,
2. In answer to para.4 of the petition the averments made in petitioner's statement under section 164 Cr.P.C. Have not been denied. In these circumstances, prima facie there is sufficient material to indicate that the interests of petitioner are in conflict with the respondent No,2 at least as far as petitioner's property is concerned. In these circumstances, the petition filed through next friend i,e, Mst. Iqbal Begum, her stepmother, cannot be objected to particularly when the petitioner is in Canada and has expressed serious apprehension of threats to her life if she comes to Pakistan.
Coming to the question as to whether this petition is incompetent on account of availability of alternate remedies of appeal I may observe that the principle that a person must exhaust other remedies available to him before he invokes the writ jurisdiction under Article 199 of the Constitution is not an inflexible rule rather it is norm of propriety. This is in line with the law laid down by the Hon'ble Supreme Court in a case reported as Gatron (Industries) Limited v.
Government of Pakistan and others 1999 SCMR 1072 wherein at page 1086 it was observed as under:--- .. Be that as it may, it is well settled that the rule about invoking the Constitutional jurisdiction only after exhausting all other remedies, is a rule of convenience and discretion, by which the Court regulates its proceedings and it is not a rule of law affecting the jurisdiction.A Constitutional petition is competent if an order is passed by a Court or Authority by exceeding its jurisdiction even if the remedy of appeal/revision against such order is available, depending upon the facts and circumstances of each case."
It is imperative to note that the Constitutional petition filed by the respondent No,2 (Writ Petition No,1947 of 1999) regarding the alleged abduction of the petitioner is pending in this Court. The writ petition filed by Ihsan Ullah, (respondent No,2's nephew) whose Nikah was performed according to petitioner under duress is also pending decision before this Court (Writ Petition No,19596 of 1999).
Property demanded that this Constitutional petition wherein serious allegations have been leveled against the respondent No,2 and Ihsan Ullah, petitioner in the afore-referred writ petition, may also be entertained and decided on merit. Petitioner has also explained the reasons of her fleeing the Country and seeking asylum in Canada. In a social milieu where murder of young women are committed and sanctified in the name of honour, the apprehension expressed by her may not be entirely ill-founded.
' Petitioner is entitled to all the fundamental rights guaranteed by the Constitution of Islamic Republic of Pakistan. Articles 9 and 23 pertains to the rights to life and property which reads as under:---
9. Security of person.---No person shall be deprived of life or liberty save in accordance with law.
23. Provisions as to property.---Every citizen shall have the right to acquire, hold and dispose of property in any part of Pakistan, subject to the Constitution and any reasonable restrictions imposed by law in the public interest."
' The narration of events as given in the F.I.R., the statement under section 164, Cr.P.C and the submissions made by the learned counsel for the petitioner prima facie indicate that there are serious threats of violation of her fundamental rights to life and property as stipulated in the foregoing Articles of the Constitution. Keeping this aspect in view and conscious of the fact that when the issue of a minor is brought before a Court in parental jurisdiction the Court would entertain the petition irrespective of the question as to who has laid the information. The Court would interfere if the matter brought to its notice reflects that the fundamental rights of a minor particularly who is not in the Country are likely to be violated. The precedent case to which reference has been made by respondent's learned counsel is of no avail as the facts of the instant case are distinguishable.
' The last question relates to the legality of the impugned order. Before delighting on this aspect it is necessary to refer to some of the provisions of the Guardians and Wards Act which have been an important bearing on the instant case, Sections 29 and 31 of the Guardians and Wards Act reads as under:--- ' Section 29. Limitations of powers of guardian of property appointed or declared by the Court.
' Where a person other than a Collector or a guardian appointed by will or other instrument, has been appointed or declared by the Court to be guardian of the property of a ward, he shall not, without the previous permission of the Court,-
(a) .
(b).
' Section 31. Practice with respect to permitting transfers under section 29.
(2) The order granting the permission shall recite the necessity or advantage, as the same may be, describe the property with respect to which the Act permitted is to be done, and specify such conditions, if any, as the Court may see fit to attach to the permission; and it shall be recorded, dated and signed by the Judge of the Court with his own hand, or, when from any cause he is prevented from recording the order with his own hand, shall be taken down in writing from his dictation and be dated and signed by him.
(3) The Court may in its discretion attach to the permission the following among other conditions, namely: -
(a) That a sale shall not be completed without the sanction of the Court;
(b) That a sale be made to the highest bidder by public auction, before the Court or some person specially appointed by the Court for that purpose, at a time and place to be specified by the Court, after such proclamation of the intended sale as the Court, subject to any rules made under this Act by the High Court, directs;
(c) That a lease shall not be made in consideration of a premium or shall be made for such term of years and subject to such rents and covenants as the Court directs;
(d) That the whole or any part of the proceeds of the Act permitted shall be made into the Court by the Guardian, to be disbursed therefrom or to be invested by the Court on prescribed securities or to be otherwise disposed of as the Court directs.
(4)
' The law has provided an elaborate procedure to regulate the powers of guardian particularly when he is granted permission to transfer or dispose of property. The rationale behind the afore retired guide-line is that the interests of the minor should not be jeopardized. As bare reading of the impugned order would show that it has given unlimited power to respondent No,2 and has not attached any conditionality stipulated in the Statute. The contentions of the learned counsel for the petitioner as also the learned Additional Advocate-General that permission to sell the property of the-petitioner has been obtained as respondent No,2 was not happy over petitioner's rebellion against the forced Nikah and the undue haste is motivated by the fact that the order dated 5-3- 1992 appointing her as guardian is likely to lapse within three months i,e, 12-9-2000. In the afore- going circumstances the impugned order cannot be sustained in law and is hereby set aside.
Since, I have allowed this petition C.M.No,3 of 2000 praying for the appointment of Commission to record her statement in Canada has become infructuous and no order is needed to be passed on 'the said application. Disposed of.