2014LHC7180

JUDGMENT SHEET
IN THE LAHORE HIGH COURT, MULTAN BENCH

MULTAN.
JUDICIAL DEPARTMENT
W.P. No.3707 of 2012
Mst. Shahnaz Akhtar Versus. A.D.J. etc.
J U D G M E N T.
Date of Hearing 03.12.2014.

Petitioner By Mr. Tariq Muhammad Iqbal Chaudhry, Advocate.
Respondents by Malik M. Naeem Iqbal, Advocate.
MAHMOOD AHMAD BHATTI, J: Mst. Shahnaz
Akhtar, the petitioner filed this petition to assail the validity of the
orders dated 9.12.2011 and 8.3.2012 passed by the learned Judge
Family Court, Chichawatni and an Addl. District Judge,
Chichawatni, District Sahiwal, whereby an application moved by
Muhammad Imjad alias Amjad Ali, respondent No.3 herein for the
DNA test of Habib-ur-Rehman, the minor was dismissed vide
order dated 8.3.2012 and the revision petition filed by the
petitioner against the order dated 9.12.2011 of the learned Judge
Family Court was dismissed, holding the same not to be
maintainable under the W.P. Family Courts Act, 1964.
2. The facts necessary for the disposal of this writ petition are
that Mst. Shahnaz Akhtar, the present petitioner instituted a suit
for the enhancement of maintenance of Habib-ur-Rehman, the
minor. It is pertinent to mention that Mst. Shahnaz Akhtar

W.P.No.3707 of 2012 2
instituted this suit as next-friend of Habib-ur-Rehman by
maintaining that she is his mother. It was averred in the plaint that
maintenance of the minor was fixed at Rs.1000/- vide the
judgment and decree dated 25.10.2005 passed by the learned
Judge Family Court, Chichawatni, and that with the passage of
time, this maintenance is too meager to meet the expenses incurred
on the education of Habib-ur-Rehman, who was stated to be a
student of 8th class. On 26.10.2014, Muhammad Amjad,
respondent No.3 filed an application requesting the learned Judge
Family Court to order the conducting of a DNA test of Habib-ur-
Rehman. It was maintained by him that Habib-ur-Rehman is not
his son and that he is the son of the brother of Mst. Shahnaz
Akhtar, who had adopted him as his adopted son/Leay Paalik. This
application was resisted tooth and nail by Mst. Shahnaz Akhtar.
However, the same was allowed by the learned Judge Family
Court, Chichawatni vide order dated 9.12.2011, observing that:-
“The applicant/plaintiff has asserted that the minor child is

not the offspring of both the parties, rather is the son of
Muhammad Younis, the brother of respondent/defendant.
The determination of parentage of the child is much
important for determining of his fair rights and liabilities;
therefore, the application in hand is hereby accepted at the
expense of applicant/plaintiff.”
3. Feeling aggrieved by the aforesaid order dated 9.12.2011
passed by the learned Judge Family Court, Chichawatni, Mst.
Shahnaz Akhgtar filed a revision petition, which was dismissed by

W.P.No.3707 of 2012 3
the learned Addl. District Judge, Chichawatni vide order dated
8.3.2012.
4. In support of the petition, the learned counsel for the
petitioner has reiterated the contents of the writ petition. He has
also placed reliance on the judgments reported as “Aman Ullah v.
The State” (PLD 2009 S.C. 542) and “Naseer Ahmad v. Mst.
Azrah and another” (PLD 2010 Karachi 61) to urge that DNA
test is not a conclusive proof of parentage and that Birth
Certificate and School Leaving Certificates are to take precedence
over the report of a DNA test.
5. The arguments advanced by the learned counsel for the
petitioner have been controverted and refuted by the learned
counsel for respondent No.3. He has argued that the impugned
orders are unexceptionable. He has postulated that the very fact
that the petitioner is putting up resistance in offering herself or the
minor child for the DNA test shows that there is a meat in the
contention of respondent No.3 that the minor is not his offspring
and he is not liable to pay maintenance to him.
6. I have heard the learned counsel for the parties and perused
the impugned judgments with their assistance.
7. When asked as to what loss, if any, was to be caused to Mst.
Shahnaz Akhtar, the petitioner if the DNA test was conducted as
ordered by the learned Judge Family Court, the learned counsel for
the petitioner evaded and ducked the question. It was simply urged
by him that the learned Judge Family Court is not vested with any
authority to pass any such order and that the disputed as to the
W.P.No.3707 of 2012 4
parentage ought to be resolved by a Civil Court. His attention was
invited to the recent judgment of the Hon’ble Supreme Court of
Pakistan reported as “Salman Akram Raja and another v.
Government of Punjab through C hief Secretary, and
others”(2013 S C M R 203) in which an indepth discussion was
made by the apex Court regarding the value and importance of
DNA test. He took the plea that regardless of the importance of
DNA test in this day and age, it is wholly unnecessary in the case
of the petitioner. Be that as it may, he could not show as to how
the impugned order is illegal or without jurisdiction or how it
suffers from illegal infirmity.
8. It cannot be lost sight of that the petitioner has not filed this
petition on behalf of Habib-ur-Rehman, the minor, rather she has
filed this petition on her own. It can hardly be overemphasized that
she is not a plaintiff before the learned Judge Family Court, rather
she is acting as the next-friend of the minor. Therefore, the very
maintainability of the writ petition on her part is questionable.
Furthermore, the interim order passed by the learned Family Court
cannot be challenged in writ jurisdiction unless the same suffers
from excess of jurisdiction or is patently illegal. It has been
repeatedly held by this Court that when the law does not provide
for the second appeal or the revision, and, on the contrary,
prohibits the challenging of interim orders as per the command of
law contained in subsection (3) of Section 14 of W.P. Family
Courts Act, 1964, writ petition is not to be treated as a substitute
therefor. At this stage, it is also worthy of note that the petitioner

W.P.No.3707 of 2012 5
had filed a revision petition before the learned Addl. District
Judge, Chichawatni, which on the face of it was not maintainable.
Therefore, the petitioner cannot be allowed to reagitate the matter
through the instant writ petition.
9. For what has been stated above, there is no merit in this
petition, which accordingly is dismissed.
(MAHMOOD AHMAD BHATTI)

JUDGE
Approved for reporting
JUDGE
Rana Zahid Bashir*

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JUDGMENT SHEET

IN THE LAHORE HIGH COURT, MULTAN BENCH

W.P. No.3707 of 2012

Mst. Shahnaz Akhtar Versus. A.D.J. etc.

Date of Hearing 03.12.2014.

MAHMOOD AHMAD BHATTI, J: Mst. Shahnaz

orders dated 9.12.2011 and 8.3.2012 passed by the learned Judge

Family Court, Chichawatni and an Addl. District Judge,

Chichawatni, District Sahiwal, whereby an application moved by

DNA test of Habib-ur-Rehman, the minor was dismissed vide

order dated 8.3.2012 and the revision petition filed by the

petitioner against the order dated 9.12.2011 of the learned Judge

Family Court was dismissed, holding the same not to be

maintainable under the W.P. Family Courts Act, 1964.

that Mst. Shahnaz Akhtar, the present petitioner instituted a suit

for the enhancement of maintenance of Habib-ur-Rehman, the

minor. It is pertinent to mention that Mst. Shahnaz Akhtar

instituted this suit as next-friend of Habib-ur-Rehman by

maintenance of the minor was fixed at Rs.1000/- vide the

judgment and decree dated 25.10.2005 passed by the learned

Judge Family Court, Chichawatni, and that with the passage of

time, this maintenance is too meager to meet the expenses incurred

on the education of Habib-ur-Rehman, who was stated to be a

student of 8th class. On 26.10.2014, Muhammad Amjad,

respondent No.3 filed an application requesting the learned Judge

Family Court to order the conducting of a DNA test of Habib-ur-

Rehman. It was maintained by him that Habib-ur-Rehman is not

application was resisted tooth and nail by Mst. Shahnaz Akhtar.

However, the same was allowed by the learned Judge Family

Court, Chichawatni vide order dated 9.12.2011, observing that:-

“The applicant/plaintiff has asserted that the minor child is

3. Feeling aggrieved by the aforesaid order dated 9.12.2011

passed by the learned Judge Family Court, Chichawatni, Mst.

Shahnaz Akhgtar filed a revision petition, which was dismissed by

the learned Addl. District Judge, Chichawatni vide order dated

4. In support of the petition, the learned counsel for the

petitioner has reiterated the contents of the writ petition. He has

also placed reliance on the judgments reported as “Aman Ullah v.

test is not a conclusive proof of parentage and that Birth

Certificate and School Leaving Certificates are to take precedence

over the report of a DNA test.

5. The arguments advanced by the learned counsel for the

petitioner have been controverted and refuted by the learned

counsel for respondent No.3. He has argued that the impugned

orders are unexceptionable. He has postulated that the very fact

that the petitioner is putting up resistance in offering herself or the

contention of respondent No.3 that the minor is not his offspring

and he is not liable to pay maintenance to him.

the impugned judgments with their assistance.

7. When asked as to what loss, if any, was to be caused to Mst.

Shahnaz Akhtar, the petitioner if the DNA test was conducted as

parentage ought to be resolved by a Civil Court. His attention was

invited to the recent judgment of the Hon’ble Supreme Court of

Pakistan reported as “Salman Akram Raja and another v.

Government of Punjab through C hief Secretary, and

others”(2013 S C M R 203) in which an indepth discussion was

made by the apex Court regarding the value and importance of

DNA test. He took the plea that regardless of the importance of

of the petitioner. Be that as it may, he could not show as to how

the impugned order is illegal or without jurisdiction or how it