1. ' Through this petition the petitioner has assailed the order dated 2-10-2003 passed by the learned District and Sessions Judge, Nawabshah in the capacity of Director, Human Rights for the District.
2. The relevant facts are that an application for guardianship of the minor children born out of the wedlock of Mst. Ansa daughter of Abdul Rasheed and Muhammad Nawaz son of Khursheed Alam was filed in the Court of learned 1st Senior Civil and Family Judge, Nawabshah. It was registered as Guardianship Application No. 45 of 2003.
3. ' During the pendency of above guardianship application the parties and their fathers, namely, Abdul Rasheed and Khursheed Alam respectively entered into a compromise and submitted following application before the Guardian Judge:- "Application u/o 23 RULE 3 C.P.C.
4. ' It is prayed that this Honourable Court may be pleased to dispose of the Guardianship application about the custody of the minors on the following terms and conditions arrived at between the parties.
5. Term and Conditions.
(1) That Abdul Rasheed son of Haji Rehamt Ali the father of the applicant has been appointed as guardian of the minors namely (1) Zahoor Alam, (2) Fraz (3) Jahan Zaib, (4) Mst: Nahej and (5) Mst: Aneela. Abdul Rasheed son of Rehman Ali is maternal grandfather of these five minors. These five minors will remain exclusively in the custody of Abdul Rasheed. Abdul Rasheed being now guardian of these minors will be entirely responsible to look after for the maintenance and education. All the expenses of all sort of maintenance and expenses of the education as well as for the expenses of marriage of said five minors will be borne by Abdul Rasheed.
(2) That none of the son of Abdul Rasheed and the daughter of Abdul Rasheed will at all interfere in the custody of the said minors with Abdul Rasheed as well as nor the applicant will at all interfere in the custody of the said minors with Abdul Rasheed and nor the applicant brother of the applicant and the sisters of the applicant will at all interfere in the custody of said minors and they will not remove the minors at any time from the custody of Abdul Rasheed.
(3) That Abdul Rasheed after every fortnight will report about the welfare, well-being, education and maintenance of the minors to the Court.
(4) That the said minors will be entitled in the share of the applicant in the A pretty of the Abdul Rasheed.
(5) That the opponent and his parents will have no concern and connection about the well-being, welfare, maintenance and education of the said five minors, being given in custody of Abdul Rasheed.
(6) That the parties, applicant and the opponent will withdraw from the criminal cases in the Courts concerned against each other.
(7) That one of the minor Nabeela has been given in the custody of the Khursheed Alam son of Lal Din the grandfather of this minor. All the expenses of the maintenance, education and marriage will be borne by Khursheed Alam, and similarly the applicant, her parent sister and brothers will not at all interfere in the maintenance education up to the marriage of Mst. Nabeela. Khursheed Alam will after every fortnight submit the report to the Court about the well-being, welfare and education of Mst. Nabeela.
(8) That Abdul Rasheed, to whom the custody of the said five minors has been given, has also taken oath on Holy Book before the Court that Abdul Rasheed will himself keep the custody of the said minors with him and will not allow any person the applicant, his sons and daughters to interfere in the custody of the said minors and will not remove from the custody of Abdul Rasheed.
6. Abdul Rasheed will not remove the minors beyond the jurisdiction of Nawabshah.
(9) That none of the party including their parents, brothers and sisters will create and initiate any kind of litigation against each other in future.
(10) That Abdul Rasheed who has been appointed guardian of the said five minors will keep the said minors in his own house at Shahbaz Plaza Moni Bazzar Liaquat Market Nawabshah.
(II) That Abdul Rasheed will be entirely responsible for the safety and security of the said five minors. {{TABLE}} Sd/-RTI: Sd/-LTI: Mst. Ansa Muhammad Nawaz Applicant. Opponent.
7. Sd/- LTI: Sd/- LTI: Abdul Rasheed son Khursheed Alam son of Haji Rehmat All of Lal Din.
8. Sd/- Sd/- Advocate for Advocate for applicant. Opponent. {{TABLE}} ' The learned Guardian Judge accepted the compromise vide order dated 27-8-2003, which reads as follows:- "27-8-2003 ' Parties and their learned counsel are present. The father of the applicant Abdul Rasheed Rajput, brother of the applicant Muhammad Saleem, Opponent's father Khursheed Alam are present and heard. They have jointly filed this compromise application under. Order 23, rule 3, C.P.C. Parties admit the contents of this compromise application and their signatures and thumb-impressions. In view of this compromise application the instant guardian and wards application stands disposed of in terms of compromise with no order as to cost. Order accordingly . "
9. ' Subsequently Rasheed Ahmed, maternal grandfather of the wards (five minor children) submitted an application before the learned District and Sessions Judge, Nawabshah under the Human Rights jurisdiction contending that although he had agreed to bear the maintenance expenses of the minor children, but he being an old person aged 70 years, is not able to provide all the basic necessities of life and maintenance as well as the expenses of education of the minors. He submitted that their father Muhammad Nawaz be directed to bear the expenses in modification of the compromise order passed by the learned Family Judge. The learned District and Sessions Judge issued notice to the petitioner /opponent Muhammad Nawaz, who initially opposed the application but ultimately on 2-10-2003 submitted an agreement undertaking to pay maintenance of Rs.3,000 per month. The contents of the agreement is as follows:-- "The parties have agreed that Aneela, Zahoor Alam, Jehanzaib Faraz and Nehaj, were handed over under Guardian Ward Act by the Court to their maternal grandfather Rasheed Ahmed. Their monthly maintenance shall be Rs.3,000 and party No.2 Muhammad Nawaz will deposit it with the Accountant of the Court on fifth of each month. Rasheed Ahmed party No.1 shall receive said amount and shall spend over maintenance of children. And this decision shall be enforced till next order of the Court.
10. Sd/- Sd/- Rasheed Muhammad Ahmed Party Nawaz Party No.1 No.2."
11. ' On the basis of agreement arrived at between the father of minors and grandfather of minors, learned District Judge disposed of the Human Rights petition by the following order:- "Applicant Rasheed Ahmed is present, Haji Khursheed Alam and opponent Muhammad Nawaz are also present. Muhammad Nawaz is father of the children, 5 in numbers namely Zahoor Alam, Jehan Zaib, Fraz, Aneela and Baby Nehaj. These children are in custody of Rasheed Ahmed by the order of the 1st. Senior Civil Judge, Nawabshah under the. Guardianship matter. Khursheed Alam is paternal grandfather of the children. Abdul Rasheed is also the grandfather of the children from maternal side. He has requested through the application in hand that he has taken the custody of the children under the said order of the Court but the Court did not pass any order as to the amount of the maintenance of the children. He requests for settlement or fixation of amount as maintenance of the children so that he could properly maintain the children. The father of the children namely Muhammad Nawaz is agreed to pay Rs.3,000 per month to Rasheed Ahmed as maintenance of the children till further orders of the Court. Mr. Khursheed Alam is also agree with his son in this regard.
12. Rasheed. Ahmed is also agree with the proposed amount of maintenance. The parties have given a written statement under their signatures in this regard too, I, therefore, direct MuhammadNawaz to pay Rs.3,000 to Rasheed Ahmed as maintenance of the children named above on month to month basis to the Accountant of this Court on or before 5th day of each month without fail. The parties have agreed that this settlement may be sent to the concerned Civil Court for record and for an order in writing in the Guardianship matter to avoid complications and violation of the settlement in future. The parties are directed to appear in the concerned Court for the said purpose of law on 3-10-2003 at 11-30 a. m. Positively."
13. ' Subsequently the petitioner invoked the Constitutional jurisdiction of this Court on 29-10-2003 alleging that the order passed by the learned District and Sessions Judge as Director, Human Rights is illegal, without jurisdiction and is liable to be set aside.
14. ' As the law pertaining to the jurisdiction of Director, Human Rights has not been considered in any judgment by any superior Court, therefore, Mr. Jhamat Jethanand, Advocate, was appointed amicus curiae to assist this Court and the learned Addl. A.-G., was also requested for the assistance.
15. ' I have heard Mr. Muhammad Shoaib Shibli, learned counsel for the petitioner, .Mr. Masood A.
16. Noorani, learned Addl. A.-G., and Mr. Jhamat Jethanand, learned amicus curiae. Since the case is still at katcha peshi stage, therefore, the presence of the respondents Nos. 2 and 3 is not necessary.
17. ' Mr. Shoaib Shibli has submitted that after a compromise order passed by the Guardian Judge the Director, Human Rights had no jurisdiction to entertain any application assailing the order of Guardian Judge. He has maintained that the Director, Human Rights had no jurisdiction to modify the order passed by the learned Guardian Judge: ' He was pointed out that learned Director, Human Rights (District and Sessions Judge) has not passed any order on merits of the case but has disposed of the matter before him on the basis of an agreement arrived at between the maternal grandfather of the minors and father of the minors.
18. Mr. Shibli contended that although the agreement bears signature of the petitioner but it has been obtained under coercion and force. The factum of coercion and force is a question of fact which cannot be entertained in exercise of Constitutional jurisdiction because it is always a matter of evidence.
19. ' Messrs Jhamat Jethanand and Masood Ahmed Noorani, Advocates have submitted that the prime consideration in such matters is the welfare of minors and the order impugned in this petition is not an order passed by the learned Director, Human Rights on merits or on the point of legality of the order passed by the learned Guardian Judge. They have submitted that under the Islamic Law the father is responsible for the maintenance of the children and is not absolved of this responsibility, even if in the facts and circumstances of a particular case, the custody of the minors is given to any suitable person other than father. In this case a compromise was arrived at before the learned Guardian Judge, whereby 5 children were given in the custody of maternal grandfather and one minor, namely, Nabeela was given in the custody of Khursheed Alam, the paternal grandfather. The maternal grandfather Abdul Rasheed was saddled with the liability of maintenance of 5 minor children. Abdul Rasheed being an old person found it difficult to bear the expenses of maintenance and education of five minor children. He, therefore, approached the Director, Human Rights for necessary arrangement. The Director, Human Rights on the basis of second agreement between the parties accepted the arrangement whereby father had undertaken to pay the maintenance of five minor children at the rate of Rs.3,000 per month and a copy of the subsequent agreement /settlement was sent to the Guardian Judge with the consent of the parties in order to avoid further complications and violation of the settlement in future. The learned Director, Human Rights directed the parties to appear before the learned Guardian Judge on 3-10-2003. Report was called from the Director, Human Rights, who has submitted his report alongwith the copy of order passed by the learned 1st. Senior Civil and Family Judge on 7-10-2003.
20. In his comments he has stated that his findings were persuasive in nature and not binding. The learned 1st, Senior Civil Judge in his order dated 7-10-2003 has observed that both the parties have agreed before the Director, Human Rights Commission that father Muhammad Nawaz shall pay maintenance of Rs.3,000. He merely kept the order on record with further observations that the parties may act upon the aforesaid `Iqrarnama' annexed with the order of Director, Human Rights Commission. It is evident from the comments of learned Director, Human Rights and the order passed by the learned Guardian Judge that there is no binding direction or finding by any Court and there is no decree which is executable through a Court of law. The arrangement is persuasive only and flows from the undertaking given by father of the minors. The Director, Human Rights has not interfered' with the order passed by the learned Guardian Judge. Mr. Jhamat Jethanand has submitted that the District Judge being appellate authority under the Family Courts Act could convert the application into appeal and decide the matter. Since the learned District Judge has not treated the application as appeal and has not converted the proceedings initiated under Human Rights into an appeal under the Family Courts Act, therefore, I will not consider this aspect raised by Mr. Jhamat Jethanand. Mr. Jhamat Jethanand has further submitted that the observation of learned Director, Human Rights Commission in his comments that the order passed by him is persuasive is not correct because it is in pursuance of an agreement arrived at between the parties and any agreement arrived at between the parties in such matters should be binding on them, notwithstanding whether there is any judicial order in this behalf or not. Mr.Masood Ahmed Noorani, learned Addl. A.-G., supports the view of Mr. Jhamat.
21. After very careful consideration I am of the opinion that in the matter pertaining to human rights the main consideration should' be the protection of human rights and particularly when the rights of minor children or female are involved. The technicalities should not frustrate the ends of justice.
22. The learned District and Session Judge, Nawabshah has exercised jurisdiction in pursuance of the scheme framed for the protection of human rights of all clauses of society in the Country by the Chief Justices Committee held in Quetta and Islamabad on 9-3-1990 and 13-4-1991. This scheme was framed in consonance with the purpose of Objective ' Resolution passed by the first Constituent Assembly of Pakistan on 12th of March, 1949 after a deliberation of five days, which was tabled on 7th of March, 1949. Now Objective Resolution is the substantive part of the Constitution under Article 2-A of the Constitution and is an appendix to the Constitution. It had laid emphasis on ensuring and guaranteeing all fundamental human rights with special emphasis to the dispensation of justice in accordance with the law laid down in Holy Qur'an And Sunnah According to Islamic Law, the Courts exercise parental jurisdiction and in exercise of that jurisdiction they are empowered to deal with the matters of Hizanat (custody) of the minor children. The responsibility for maintenance of children is always on the father.
23. Notwithstanding, the custody given to any other person by the Court either in pursuance of some ,settlement/ arrangement or looking to the facts and circumstanc-:s of the case. Thus if two parties approach th6 Director, Human Rights, with a settlement which is in the interest of minors and promotes the human rights generally and the rights flowing from Qur'an and Sunnah specially, the Director, Human Rights can entertain such matters without going into technicalities, of course with the limitation that in doing so the Director, Human Rights Commission shall not interfere with the powers of the judicial officers conferred on them under the law. In the present case the learned Director, Human Rights has merely accepted a settlement, which appear to be in consonance with the justice and the Islamic Law and forwarded the same to the Guardian Judge to take it into consideration. The learned Director, Human Rights has neither set aside the order passed by the Guardian Judge nor he has modified the same by his own finding.
24. ' The parties themselves requested through a settlement duly signed by them for modification of the earlier arrangement and the learned Director, Human Rights accepted the same, to which no exception can be taken. As already observed the contention that signature of the petitioner was obtained by coercion and force cannot be entertained in these proceedings under Article 199. I am of the opinion that on the remaining matters the views expressed by the learned amicus curiae and the learned Additional A.-G., are in consonance with the dictates of justice and for the welfare of the minors, with which I fully agree. I would further like to observe that writ jurisdiction is discretionary and even if there is any order which is not technically correct or there is any irregularity but it has not caused any miscarriage of justice and is on the contrary in further of the interest of justice and welfare of the persons concerned, this Court shall not interfere in exercise of the Constitutional jurisdiction. The reason being that this Court in exercise of jurisdiction shall always come in aid of C the justice and shall never come in aid of injustice, although there may be some irregularity which does not go to the root of the case.
25. ' Since there is no wrong assumption of jurisdiction, incorrect exercise of jurisdiction or any injustice caused to any party, therefore, the petition is without substance, which stands dismissed in limine.
26. ' Before parting with this order I would like to record my appreciation for the assistance rendered by Mr. Jhamat Jethanand, learned amicus curiae and the learned Additional A.-G., to the Court.