Instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is directed against the order, dated 25-9-1999 passed by the learned Additional District Judge, Attock whereby he set aside the order, dated 16-7-1999 passed by the trial Court.
2. Briefly stated the facts are that the petitioner filed an application under section 25 of the Guardian and Wards Act for the custody of his son namely Muhammad Hassan. The said application was resisted by the respondent.
3. Alongwith said petition, the petitioner also moved an application under section 12 of Guardian and Wards Act for temporary custody of the minor. The said application was also resisted by the respondent. Vide order, dated 11-6-1999 application under section 12, Guardian and Wards Act was disposed of with the observation that on each and every date of hearing the minor shall be produced in the Court and shall be handed over to the petitioner from 8-00 a.m. To 12-00 noon and the said meeting shall be under the supervision of Naib-Nazir of the Court. On 18-6-1999 the petitioner moved an application for reviewing the said order, dated 11-6-1999. This subsequent application was also resisted by the respondent. However, vide order, dated 16-7-1999 the trial Court reviewed his previous order, dated 11-6-1999 and directed that minor shall be given in the custody of the petitioner for 8 hours on one day of the each month. With this modification the said application was disposed of vide order, dated 16-7-1999. The respondent felt aggrieved of the subsequent order, dated 16-7-1999 and filed an appeal which was heard and disposed of by the learned Additional District Judge, Attock, who vide order, dated 25-9-1999 accepted the appeal, set aside the subsequent order dated 16-7-1999 and restored the previous order, dated 11-6-1999.
4. Being aggrieved of order 25-9-1999 of the learned Additional District Judge, Attock the petitioner has filed the instant writ petition.
5. Arguments have been heard and record perused.
6. Contention of the learned counsel for the petitioner is that the trial Court was competent to modify/vary and alter the order, dated 11-6-1999 as such the learned Additional District Judge was not justified in accepting the appeal and restoring the order, dated 11-6-1999 and places reliance upon Mst. Nasera Begum v. VIth Additional District Judge, Karachi and 2 others PLD 1985 Kar. 645, that vide order, dated 16-7-1999 the trial Court was pleased to direct that custody of minor be handed over for 8 hours once a month and the said order was in the welfare of the minor, that paramount consideration while passing the order under section 12, Guardian and Wards Act is the welfare of the minor and places reliance upon Mst. Naushaba v. Dr. Nasim and others 1987 SCM R 974 and Raja Qureshi v. Mrs. Yasmeen' Qureshi PLD 1981 Kar.
61. He, thus, submitted that the learned Additional District Judge was not justified in passing the impugned order, dated 25-9-1999.
7. Conversely the stand of learned counsel for the respondent is that the learned Guardian Judge was not competent to review .His own order, dated 6-11-1999 as there is no such provision in section 12 of the said Act, that arrangement made vide order, dated 11-6-1999 was being acted upon so the trial Court was not justified to review his own order, that petitioner had not challenged the order, dated 11-6-1999 as such the same has attained finality.
8. A perusal of the petition shows that parties were married on 23-4-1997 whereas the minor was born on 8-3-1998. Instant petition was moved on 1-5-1999 for the custody of said minor. The trial Court while disposing of application under section 12, Guardian and Wards Act vide order, dated 11- 6-1999 directed that meeting of the minor with the petitioner shall be arranged on each date of hearing from 8-00 a.m. To 12-00 noon and the minor shall be given in the custody of petitioner under the supervision of Naib Nazir of the Court. This order, dated 11-6-1999 has been modified vide order, dated 16-7-1999 whereby the custody of minor has been ordered to be given to the petitioner for 8 hours on one day of each month. This subsequent order has been set aside by the learned Additional District Judge vide order, dated 25-9-1999 and the original order, dated 11-6- 1999 has been restored. The age of the minor is bit more than 1-1/2 years and under these circumstances handing over of the minor to the father for 8 hours in a month does not appear reasonable.
9. Since the minor is of very tender age so the order passed by the trial Court, dated 11-6-1999 was justified one and the appellate Court has rightly restored the said order by accepting the appeal.
There is no force in the writ petition and the same is hereby dismissed.