1. ' TARIQ MAHMOOD, J.--- The facts of the case are that petitioner Mst. Razia married with respondent Abdul Waheed, about six years back. Both the parties remained together for some time, then relations between the parties became strained, due to stated cruel acts/attitude of the respondent. Record reveals that the petitioner is living with her father, for the last about four/five years. On 3-4-2000, she filed a suit for dissolution of marriage mainly on the ground that the respondent has been treating her with cruelty and non-maintenance. Although dissolution of marriage was not sought specifically on the ground of Khula' detail averments were made that now it is not possible for the petitioner to live with her husband. Respondent by means of his written statement contested the suit and repudiated the claim of the petitioner. Out of pleading of the parties the learned Family Judge framed two issues. Parties led evidence in support of their respective contentions and learned Family Judge, vide judgment, dated 31-5-2000 was pleased to dismiss the suit. The petitioner feeling dissatisfied with the' decision, filed appeal under section 14 of Family Courts Act, in the Court of District Judge, Kharan. However, during pendency of the appeal, learned counsel for the petitioner, under some misconception of law, submitted an application for withdrawal of the appeal. And, learned District Judge A was pleased to allow the application and directed return of the memo. Of appeal. However, it was observed that she may approach to a competent Court of law, subject to all just exceptions. Subsequently, the petitioner filed this Constitutional petition and challenged the decision of learned Family Judge and reiterated in the memo. Of petition that no appeal was competent against the impugned judgment passed by learned Family Judge and that the same was inadvertently filed but subsequently withdrawn on 28-6-2000.
2. ' Mr. Mohsin Javed, learned counsel for the petitioner, when asked as to whether appeal was not competent against the impugned decision passed by learned Family Judge, he frankly conceded that it was, but it was withdrawn due to mistaken advice of counsel for the petitioner, who represented her in the trial Court. He also conceded that it was his mistake that he reiterated the same position in memo. Of petition and filed instant Constitutional petition. But, argued that availability of alternate remedy does not oust jurisdiction of this Court as this is only relating to procedure. He has relied upon the judgment reported in PLD 2001 Lah. Page 365. On merits, learned counsel argued that the impugned judgment passed by learned Family Judge is not only complete misreading and non-reading of material available on record but the learned Judge has also misinterpreted relevant provision of law. On the other hand, learned counsel for the respondent argued that impugned judgment was appealable before learned District Judge and although appeal was rightly filed, it was subsequently withdrawn, and therefore, this petition is not maintainable.
3. ' We regret to observe that present case is a classic example of carelessness of learned counsel for the petitioner. Although it is easy to say that the petitioner should suffer for the carelessness and the negligence of her counsel, the question is whether the petitioner, who according to stated averments is not willing to live with her husband, at any cost, can be non-suited without there being any fault on her part. Record reveals that the petitioner and her father/attorney are illiterate.
4. Although ignorance of law is no excuse and every body is supposed to know the law, it cannot be ignored that what the petitioner or her attorney/father, a resident of remote area like Qadir Abad (District Kharan), could do for redress of her grievance was to approach a Court of law and through a counsel. This the petitioner did. It appears that the appeal was rightly instituted in the Court of District Judge, Kharan and well within time. But the counsel for the petitioner submitted an application subsequently before the learned District Judge, stating therein that no appeal was competent against the decision of dismissal of suit for dissolution of marriage. Accordingly, he requested for withdrawal of the appeal, so that impugned judgment could be challenged in the High Court in its Constitutional jurisdiction. This was certainly an act of negligence or carelessness of counsel for the petitioner but the petitioner or her father was not at fault. To the misfortune of the petitioner, even the learned District Judge acted unwisely and passed a mechanical order with the observations that she may approach a competent Court o law, subject to all just exceptions.
5. Subsequently, the petitioner engaged a senior counsel at Quetta to institute the present proceedings. The learned counsel had been President of Balochistan Bar Association and Member of Balochistan Bar Council and it is interesting to note that it has been insisted in the memo. Of petition that the appeal was wrongly filed in the Court of District Judge, and so was withdrawn. We recall that at the time of admission, learned counsel did not point out this aspect of the case.
6. However, since reference of filing of appeal in the Court of District Judge was also there, therefore, we in good faith thought that her plea of dissolution of marriage was declined by both the forums below. We also recall that we directed the learned counsel to read the statement of lady and since after perusal of same, we found it a fit case for admission, the petition was admitted for regular hearing. However, we record our regrets of the omission, as it has certainly prolonged the agony of parties. In our view, Mr. Muhammad Ashraf, Advocate, who represented the petitioner in the trial Court, was under an obligation to go through the relevant provision of law before submitting the application for withdrawal of the appeal on the stated ground. We have to presume that the petitioner or her father/attorney had paid the legal charges to aforementioned counsel and since her counsel was the best person to advice, in the matter, so if she had accepted the advice and consequently application for withdrawal was filed, we found no fault in the conduct of the petitioner or her attorney/father. Record also reveals that after withdrawal of appeal from the Court of learned District Judge, Kharan, her father/attorney travelled all the way from remote and backward area of Qadir Abad to Quetta to institute the present proceedings. Here he engaged a very senior Lawyer, as mentioned hereinbefore, but even he did not care to go through the relevant provision of law, before filing the instant petition.
7. ' Accordingly, we are of the view that as a matter of fact the withdrawal of appeal from the Court of District Judge cannot be attributed to the petitioner or her father/attorney, as they did all what they could do, placed in the situation and the act is entirely attributable to the carelessness of her counsel. But it is no justice to say that the petitioner should suffer for the carelessness of her counsel and may institute a suit for damages because in this case, tissue is of dissolution of marriage and both the parties are separately residing for the last about five years and the lady has specifically stated in her plaint that she was not willing to live with the respondent, at any cost. In these peculiar facts and circumstances of the case, the question for consideration is, what the duty of the Court was. In our view, it was a simple case for dissolution of marriage which was declined by the learned Family Judge. Appeal was rightly instituted but withdrawal was allowed on the ground, legally not available. The application on the face of it was misconceived and its cursory examination could lead in its dismissal and decision of the appeal on merits. The learned District Judge before passing the order was under a legal obligation to seriously consider the same. Had the learned District Judge applied his judicial mind in the facts and circumstances of the case and relevant provision of law, he could have refused withdrawal on the stated ground and there was no occasion for him to observe that the petitioner may approach a competent Court of law. The District Judge should not have dealt with the application merely from point of speedy disposal of the appeal. A very heavy responsibility lies on the Courts in dealing with the matters of oppressed class, particularly in remote and backward areas, where the litigants may not have proper legal assistance. It cannot be ignored that the administration of justice is the ultimate responsibility of the Court and it has to deliver the same in C even-handed manner. So the role of the Court was not limited to pass a mechanical order on the application submitted by a party, even if such party chooses to withdraw the appeal, in that, withdrawal was sought on the ground, not legally available. Settled law is that "the act of the Court shall prejudice no man".
8. In these events of the background, we are of the view that it is not a case where the appeal had been withdrawn by the petitioner's learned counsel from the Court of District Judge only on account of his negligence or carelessness. Here the act and conduct of the District Judge in passing a mechanical order on the application filed by the petitioner's counsel, without realizing that factually, appeal was rightly instituted or raising the question of maintainability is also a factor which led to the petitioner in withdrawing the appeal and consequently filing of instant Constitutional petition in this Court. In our view, order, dated 28-6-2000 passed by the learned District Judge was without lawful authority, in that, the effect of this order is that he had refused to exercise jurisdiction, which was actually vested in him. We are conscious of the fact that the petitioner has not specifically sought this relief and has only impugned the judgment of Family Judge but in the peculiar circumstances of the case we cannot ignore it, particularly when the order of District Judge is part of the record and very much relevant in resolving the real controversy between the parties. Settled principle of law is that a Court has the powers to mold the relief and grant the same, in the interest of justice, even if not asked.
9. The upshot of the above discussion is that we declare order, dated 28-6-2000, passed by learned District Judge, Kharan having been passed without lawful authority and consequently of no legal effect. Accordingly, the appeal filed before learned District Judge, Kharan would be deemed to have been validly instituted and pending, so he is directed to decide the appeal filed by the petitioner after providing opportunity of hearing to both the parties. It being a family matter and to avoid further delay, we direct the parties through their counsel to appear before learned District Judge, Kharan on 13-9-2001, who will decide the matter as far as possible within a period of one month from the date of first hearing/appearance. /Order accordingly.