Brief facts out of which the present writ petition arises are that the petitioner challenged the vires of the order, dated 18-11-1998 passed by the trial Court issuing warrant of arrest of. The petitioner under section 100, Cr.P.C. Learned counsel for the petitioner submits that impugned order passed by the learned Civil Judge under section 100, Cr.P.C. Is not sustainable in the eyes of law, as the learned Civil Judge has no jurisdiction to pass such order. In support of his contention he relied upon the following judgments:-- PLD 1997 Lahore 208 (Mst. Kausar Parveen's case)
PLD 1985 Azad J&K 11 (Mst. Janat Bibi's case).
2. Learned counsel for the respondents submits that trial Court has inherent power to pass any order as is envisaged by section 151, C.P.C. Read with section 25 of the Guardians and Wards Act. He further submits that the petitioner was directed twice to appear alongwith the minor before this Court but the petitioner did not appear before this Court alongwith the minor; and the writ petition was dismissed for non-prosecution as the petitioner and his counsel did not enter appearance on 6-12-1999. Therefore, writ petition is liable to be dismissed.
3. Learned counsel for the petitioner in rebuttal submits that ingredients of section 100, Cr.P.C. Are not attracted as the custody of the minor lies with the natural guardian. Therefore, impugned order is illegal.
4. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. It is admitted fact that petitioner was directed twice by this Court to appear alongwith the minor but the petitioner did not enter appearance and the writ petition was dismissed for non-prosecution due to none appearance of the petitioner and his counsel due to the aforesaid direction. However, the writ petition was restored in interest of justice and fair play vide order, dated 23-12-1999. Thereafter, petitioner entered appearance on 1-2-2000 and stated that his counsel had left the profession. In the interest of justice and fair play, Mr. Alamgir Advocate was directed to appear and plead the case of the petitioner. The judgments cited by the learned counsel for the petitioner are distinguished on facts and law. In the cited judgment Mst. Janat Bibi's case PLD 1985 Azad J&K 11, the petitioner moved an application before the S.D.M. Under section 100, Cr.P.C. Against the illegal detention of Mst. Yasmin Akhtar daughter of the petitioner. Similarly in Mst.
Kausar Parveen's case PLD 1997 Lahore 208, Hassan Akhtar filed application under section 100, Cr.P.C. Before Mr. Amjad A.I Zafar, Judicial Magistrate 1st Class for the search of his wife. In the present case the trial Court directed the petitioner to produce minor in the Court for the purpose of regulating and implementation of earlier order of the Court the trial (sic) has passed the impugned order. Petitioner as mentioned above did not obey the direction of this Court twice he was directed to appear alongwith the minor. It is settled principle of law that Constitutional jurisdiction is basically discretionary in character. It is settled principle of law that he who seeks equity must come with clean hands. Keeping in view the conduct of the petitioner I am not inclined to exercise my discretion in favour of the petitioner as per principle laid down by the Hon'ble Supreme Court in the following judgments:-- PLD 1973 SC 236 (Nawabzada Ronaq A.I's case).
1998 SCMR 1462 (Rana Arshad A.I's case).
Before parting with the judgment I would record the word of thank for Mr. Alamgir learned Advocate who rendered valuable assistance in resolving the important issue besides Mr. G.H. Khan Advocate.