2008 S C M R 480

[Supreme Court of Pakistan]

Present: Javed Iqbal, Mian Shakirullah Jan and Nasir-ul-Mulk, JJ

KHAN MUHAMMAD----Petitioner

Versus

Mst. SURAYYA BIBI and others----Respondents

Civil Petition No.2301-L of 2004, decided on 11th July, 2005.

(On appeal from the order/judgment, dated 15-6-2002 passed by the Lahore High Court,
Bahawalpur Bench in Writ Petition No.1940 of 2004/BWP).

(a) Guardians and Wards Act (VIII of 1890)---

----Ss. 17 & 25---Custody of minor---Contest between father and mother of minor---

Entitlement---Prime consideration in such cases would always be welfare of minor---
Right of father being natural guardian of minor would be subject to welfare of minor.

(b) Constitution of Pakistan (1973)---

----Art. 185---Appeal to Supreme Court---Findings of fact recorded by Appellate Court
and upheld by High Court---Validity---Such concurrent findings could not be reversed
without any lawful justification.

Muhammad Ozair Chughtai, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 11th July, 2005.

JUDGMENT

JAVED IQBAL, J.--- This petition for leave to appeal is directed against the order dated
15-6-2004 passed by learned Lahore High Court, Bahawalpur Bench, Bahawalpur,
whereby the writ petition preferred on behalf of petitioner has been dismissed and the
judgment passed by learned Additional District Judge, Haroonabad, has been kept intact.

2. As enumerated in the judgment impugned "facts in short are that Khan Muhammad
petitioner was married to Mst. Surayya Bibi respondent. In consequence of the aforesaid
marriage Muhammad Noman, Muhammad Kamran sons and Mst. Adeeba Bibi daughter
were born. As the matrimonial tie could not be continued so it had ended into dissolution
of marriage. The petitioner filed an application for custody of minors Mst. Adeeba Bibi,
aged 9/10 years and Muhammad Kamran five years of age against Mst. Surayya Bibi,
who was holding the custody of these children. Learned Guardian Judge, Haroonabad
accepted the guardianship application while the petition filed by Mst. Surayya Bibi
against Khan Muhammad for the delivery of custody of Muhammad Noman, which was
residing with Khan Muhammad, was dismissed on 17-9-2003. Aggrieved from the
aforesaid decision of the learned Guardian Judge, Mst. Surayya Bibi filed an appeal
before the learned Additional District Judge, Haroonabad, which was accepted by the
learned Additional District Judge, Haroonabad, to the extent that the custody of Mst.
Adeeba Bibi and Muhammad Kamran, minors would remain with Mst. Surayya Bibi but
her prayer for the delivery of the custody of Muhammad Noman from petitioner was
rejected on 9-3-2004". Being aggrieved a writ petition was preferred which has been
rejected by means of judgment impugned, hence this petition.

3. Mr. Muhammad Ozair Chughtai, learned Advocate Supreme Court entered appearance
on behalf of petitioner who mainly contended that admittedly the age of Kamran is more
than seven years ant; according to Muhammaden Law his custody cannot be handed over
to Mst. Surayya Bibi (respondent) as it would be against the Injunctions of Islam and
more so, it would be impossible for a female to take care of the minors who are growing
day by day. It is contended that the petitioner being father would be in a better condition
to take proper care of the minors as compared to that of their mother which aspect of the
matter has been ignored by the learned Courts below which resulted in serious
miscarriage of justice. It is also pointed out that her daughter namely Mst. Adeeba Bibi is
admittedly more than twelve years of age and has reached the age of puberty whose
marriage is to be arranged which could not be done by her mother being dependent on
her-brothers who are not financially sound and it would adversely affect the future of her
daughter namely Mst. Adeeba Bibi. It is also mentioned that the petitioner has not
contracted second marriage only for the welfare of his children and Muhammad Noman
whose custody was handed over to him is living happily with his father.

4. We have carefully examined the contentions as agitated on behalf of petitioner in the

light of relevant provisions of law and record of the case. We have minutely thrashed out
the entire evidence and perused the judgment of learned appellate forum dated 9-3-2004
as well as judgment impugned. It is well-settled by now that prime consideration in such-
like cases is the welfare of the minor, which being question of tact has been determined
by the learned Appellate Court determination whereof has been upheld by the learned
High Court vide judgment impugned which being well-based does not warrant
interference. Even otherwise, the concurrent findings of fact as recorded by the Appellate
Court and upheld by the learned High Court cannot be reversed without any lawful
justification which is badly lacking in this case. It is worth mentioning that right of the
father being natural guardian of minor, is subject to welfare of the minor because the c
overriding fundamental and paramount important consideration is always the welfare of
the minors.

5. The upshot of the above mentioned discussion is that the petition being devoid of merit
is dismissed and leave refused.

S.A.K./K-5/SC Leave refused.

2008 S C M R 505

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

Malik AMIR AKBAR----Petitioner

Versus

Mian MURID HUSSAIN, ADDITIONAL DISTRICT JUDGE, LAHORE and

others----Respondents

Civil Petitions Nos.1938-L, 1939-L of 2002 and 925-L of 2004, decided on 21st October,

2005.

(On appeal from the order, dated 21-5-2002 passed by the Lahore High Court, Lahore in
Writ Petition No.19822 of 2001 etc.).

(a) Guardians and Wards Act (VIII of 1890)---

----Ss. 17 & 25---Constitution of Pakistan (1973), Art.185(3)---Custody of minor son and

daughter---Dismissal of father's application for custody by courts below and High
Court---Validity---Both children had reached age of maturity, thus, uprooting them at
such stage would be improper particularly in absence of any infirmity in impugned
judgment---Supreme Court dismissed petition in circumstances.

(b) West Pakistan Family Courts Ordinance (XXXV of 1974)---

----S. 5 & Sched.---Constitution of Pakistan (1973), Arts.185(3) & 199---Suit for

recovery of maintenance of minor---Family Court decreed suit @ Rs.20,000 per month
with 15% annual increase therein. in future---Appellate Court in appeal reduced monthly
maintenance to Rs.15,000 with 10% annual increase therein in future, which judgment
was upheld by High Court in constitutional petition---Plea of father was that mother of
minor was in affluent circumstances, who should share maintenance---Supreme Court
disposed of petition with consent of parties by fixing amount of maintenance @
Rs.10,000 per month with 10% annual increase therein from date of judgment of Family
Court subject to deposit of arrears by father within two months in Family Court,
otherwise judgment of Appellate Court would stand revived.

(c) West Pakistan Family Courts Ordinance (XXXV of 1974)---

----S. 5 & Sched.---Constitution of Pakistan (1973), Arts.185(3) & 199---Suit for

recovery of dower amount---Decree for amount of Rs.6,00,000 passed by Family Court
was upheld by Appellate Court and in constitutional petition by High Court---Plea of ex-
husband before Supreme Court was that he was not well off to pay decretal amount---Ex-
wife on her own reduced her claim to Rs.4,50,000 subject to its deposit by ex-husband
within two months with Family Court---Supreme Court with consent of counsel for
parties modified decree in such terms with observations that on failure of ex-husband to
do so, original decree of Rs.6,00,000 would stand revived.

Mian Allah Nawaz, Advocate Supreme Court and C.M. Latif, Advocate-on-Record for
Petitioner (in C.Ps. Nos.1938 and 1939-L of 2002).

Mian Allah Nawaz, Advocate Supreme Court and Haji M. Rafi Siddiqui, Advocate-on-
Record for Petitioner (in C.P. No.925-L of 2004).
Ch. Muhammad Saleem, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-
Record for Respondents Nos.3 and 4 (in C.P. No.1938-L of 2002).

Ch. Muhammad Saleem, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-
Record for Respondent No.3 (in C.P. No.1939-L of 2002).

Respondent No.1 in person (in C.P. No.925-L of 2004).

ORDER

KARAMAT NAZIR BHANDARI, J.--- This order will dispose of the above three Civil
Petitions for leave to Appeal as these are between the same parties and arise from
common background.

2. The marriage between the petitioner and respondent Shahzadi Umerzadi Amir ran into
difficulties and as informed, ultimately broke-up and apparently each has taken another
spouse in his/her life. C.P. 925/L of 2004 arises out of the claim of the petitioner for
custody of minor children, son namely Adil Amir and daughter Alina Amir. The
application was contested, tried and dismissed on 23-7-1999. Petitioner's appeal was also
dismissed, as was the writ petition by the Lahore High Court.

3. We have heard the learned counsel for the parties. It transpires that both the children
are reaching the age of maturity. We consider it improper at this stage to uproot them
particularly when we do not find any infirmity in the impugned judgment. This petition is
dismissed.

4. C.P. 1938-L of 2002 arises out of the dispute about the maintenance of the children.
The Judge Family Court decreed the plaint of Alina Amir and Adil Amir, the minors for
maintenance at the rate Rs.20,000 each per month with effect from April, 1996 till
February, 2000 and future maintenance with an increase of 15% per annum. On appeal by
the petitioner the amount of maintenance was reduced to Rs.15,000 each per month for
the same period with the direction to increase the amount at the rate of Rs.10% per
annum in future. The Lahore High Court dismissed the Constitutional petition for the
petitioner and upheld the appellate order of Additional District Judge. The petitioner
seeks leave to appeal from the judgment of the High Court dated 21-5-2002.

5. In support Mr. Allah Nawaz, learned Advocate Supreme Court strenuously urged that
there is ample evidence on record that the petitioner is not in a position to grant that much
of maintenance. He has referred to the principle of Islamic law to the effect that where the
father is not in affluent circumstances and the mother is, maintenance is to be shared by
the mother. The learned counsel for the respondents 3-4 (the minors) has not contested
the proposition that mother is in affluent circumstances although he has maintained that
the petitioner and his father are very well off to pay the amount of maintenance.

6. After hearing the learned counsel and with their consent we fix the amount of
maintenance at Rs. 10,000 per month per child with the condition that the arrears upto
date i.e. from April, 1996 to October, 2005 along with 10% increase with effect from the
date of judgment of the Family Court shall be deposited by the petitioner in the family/
Executing Court within two months from today failing which this petition will stand
dismissed and the impugned order of the Additional District Judge shall stand revived.
However, the petitioner will be entitled to deduct any amount if any, paid by him towards
maintenance during this period. This C.P. is disposed of in above terms.

7. C.P. 1939/L of 2002 arises out of the claim of Shahzadi Umarzadi Amir respondent
No.3 for recovery of her dower, which claim was decreed by the Judge Family Court on
15-2-2000 in the sum of Rs.6,00,000. Petitioner's appeal against this judgment was
dismissed by the Additional District Judge on 11-10-2001. Lahore High Court dismissed
the Constitutional petition of the petitioner and upheld the two judgments. The learned
counsel Mr. Allah Nawaz has raised the same argument of financial incapacity of the
petitioner. However he has not disputed that the dower amount was fixed at Rs.6,00,000.
In view of the difficult financial position of the petitioner, respondent lady has been
graceful enough to reduce her claim to Rs.4,50,000 on the condition that this amount
shall be deposited in the Family/Execution Court within two months from today. With
consent of both the learned counsel, therefore, we modify the impugned decree and direct
the payment of the dower in the sum of Rs.4,50,000. We further direct that this amount
shall be deposited in the Family/Executing Court within the period of two months form
today failing which this civil petition shall be deemed to have been dismissed with the
result that original decree of Rs.6,00,000? will stand revived.
8. The three petitions stand decided as above. There is no order as to costs.

S.A.K./A-19/SC Petition disposed of.

2008 S C M R 480

[Supreme Court of Pakistan]

Present: Javed Iqbal, Mian Shakirullah Jan and Nasir-ul-Mulk, JJ

KHAN MUHAMMAD----Petitioner

Versus

Mst. SURAYYA BIBI and others----Respondents

Civil Petition No.2301-L of 2004, decided on 11th July, 2005.

(On appeal from the order/judgment, dated 15-6-2002 passed by the Lahore High Court,
Bahawalpur Bench in Writ Petition No.1940 of 2004/BWP).

(a) Guardians and Wards Act (VIII of 1890)---

----Ss. 17 & 25---Custody of minor---Contest between father and mother of minor---

Entitlement---Prime consideration in such cases would always be welfare of minor---
Right of father being natural guardian of minor would be subject to welfare of minor.

(b) Constitution of Pakistan (1973)---

----Art. 185---Appeal to Supreme Court---Findings of fact recorded by Appellate Court
and upheld by High Court---Validity---Such concurrent findings could not be reversed
without any lawful justification.

Muhammad Ozair Chughtai, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 11th July, 2005.

JUDGMENT

JAVED IQBAL, J.--- This petition for leave to appeal is directed against the order dated
15-6-2004 passed by learned Lahore High Court, Bahawalpur Bench, Bahawalpur,
whereby the writ petition preferred on behalf of petitioner has been dismissed and the
judgment passed by learned Additional District Judge, Haroonabad, has been kept intact.

2. As enumerated in the judgment impugned "facts in short are that Khan Muhammad
petitioner was married to Mst. Surayya Bibi respondent. In consequence of the aforesaid
marriage Muhammad Noman, Muhammad Kamran sons and Mst. Adeeba Bibi daughter
were born. As the matrimonial tie could not be continued so it had ended into dissolution
of marriage. The petitioner filed an application for custody of minors Mst. Adeeba Bibi,
aged 9/10 years and Muhammad Kamran five years of age against Mst. Surayya Bibi,
who was holding the custody of these children. Learned Guardian Judge, Haroonabad
accepted the guardianship application while the petition filed by Mst. Surayya Bibi
against Khan Muhammad for the delivery of custody of Muhammad Noman, which was
residing with Khan Muhammad, was dismissed on 17-9-2003. Aggrieved from the
aforesaid decision of the learned Guardian Judge, Mst. Surayya Bibi filed an appeal
before the learned Additional District Judge, Haroonabad, which was accepted by the
learned Additional District Judge, Haroonabad, to the extent that the custody of Mst.
Adeeba Bibi and Muhammad Kamran, minors would remain with Mst. Surayya Bibi but
her prayer for the delivery of the custody of Muhammad Noman from petitioner was
rejected on 9-3-2004". Being aggrieved a writ petition was preferred which has been
rejected by means of judgment impugned, hence this petition.

3. Mr. Muhammad Ozair Chughtai, learned Advocate Supreme Court entered appearance
on behalf of petitioner who mainly contended that admittedly the age of Kamran is more
than seven years ant; according to Muhammaden Law his custody cannot be handed over
to Mst. Surayya Bibi (respondent) as it would be against the Injunctions of Islam and
more so, it would be impossible for a female to take care of the minors who are growing
day by day. It is contended that the petitioner being father would be in a better condition
to take proper care of the minors as compared to that of their mother which aspect of the
matter has been ignored by the learned Courts below which resulted in serious
miscarriage of justice. It is also pointed out that her daughter namely Mst. Adeeba Bibi is
admittedly more than twelve years of age and has reached the age of puberty whose
marriage is to be arranged which could not be done by her mother being dependent on
her-brothers who are not financially sound and it would adversely affect the future of her
daughter namely Mst. Adeeba Bibi. It is also mentioned that the petitioner has not
contracted second marriage only for the welfare of his children and Muhammad Noman
whose custody was handed over to him is living happily with his father.

4. We have carefully examined the contentions as agitated on behalf of petitioner in the

light of relevant provisions of law and record of the case. We have minutely thrashed out
the entire evidence and perused the judgment of learned appellate forum dated 9-3-2004
as well as judgment impugned. It is well-settled by now that prime consideration in such-
like cases is the welfare of the minor, which being question of tact has been determined
by the learned Appellate Court determination whereof has been upheld by the learned
High Court vide judgment impugned which being well-based does not warrant
interference. Even otherwise, the concurrent findings of fact as recorded by the Appellate
Court and upheld by the learned High Court cannot be reversed without any lawful
justification which is badly lacking in this case. It is worth mentioning that right of the
father being natural guardian of minor, is subject to welfare of the minor because the c
overriding fundamental and paramount important consideration is always the welfare of
the minors.

5. The upshot of the above mentioned discussion is that the petition being devoid of merit
is dismissed and leave refused.
S.A.K./K-5/SC Leave refused.
2008 M L D 751

[Lahore]

Before Muhammad Akram Qureshi, J

MAH RUKH BAJWA ---Petitioner

Versus

AFTAB ALAM and 2 others---Respondents

Criminal Miscellaneous No. 44-H of 2006, heard on 29th January, 2008.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition---Custody of minor children---Minor children were

not snatched from the custody of their mother in the near past and they were neither in
illegal and improper custody nor their lives were in danger---Children were living with
the respondents since the year, 1999 and had been produced before High Court on a
number of occasions---Children were reluctant to go to their mother and stay with her, as
they were fully satisfied with the respondents-.-No emergency existed warranting transfer
of custody of children from the respondents to the petitioner---Children were of
understandable age who were, prima facie, leading a satisfied life and their affairs were
being looked after properly and they were showing satisfactory performance in their
education---However, final decision regarding' the welfare of the children and their
custody would only be given by the Guardian Court after recording evidence---Petition
was dismissed in circumstances.
Mst. Haleema Bibi v. Bashir Ahmed and 2 others 2000 PCr.LJ 1685; Muhammad Naseer
Humayun v. Syeda Ummatul Khabir 1987 SCMR 174; Mst. Samina. v. Ashfaque Hussain
and another 2000 MLD 351; Mst. Ansar Bibi v. S.H.O., Police Station Saddar Depalpur,
District Okara and another 2000 YLR 2567; Mst. Aisha Bibi v. Nazir and 2 others 1981
SCMR 301; Mst. Aisha v. -Babar alias Badal and another 2001. PCr.LJ 1250;
Muhammad Javed Umrao v. Miss Uzma Vahid 1988 SCMR 1891; Mst. Nayyara Naureen
alias Shazia v. Muhammad Arif Butt Sabiri 2005 YLR 1047; Mst. Shazia Sharif v.
Zeeshan Ahmed Dodhy and 2 others PLD 2001 Lah. 347 and Mst. Shagufta Yasmeen v.
Babar Ali and another 2006 MLD 136 ref.

Sh. Waqar Ahmed for Petitioner.

Malik Qamar Afzal for Respondents.

ORDER

MUHAMMAD AKRAM QURESHI, J.---This order will dispose of Criminal

Miscellaneous No. 44-H of 2006, filed by Mst. Mahrukh Bajwa-petitioner, for the
recovery of minors Mst. Nisha Mehtab and Muhammad Bilal Mehtab, from the custody
of Aftab Alam and Mst. Jamila Hashmi, respondents Nos. 1 and 2 and for the delivery of
their custody to her.

2. Brief facts of the case narrated by the learned counsel for the petitioner are that the
petitioner was married with Mehtab Alam son of Muhammad Fayyaz, on 17-10-1994.
Her husband was running the business of gold jewellery at Old. Anarkali, Lahore. From
this wedlock, Muhammad Bilal Mehtab was born on 20-8-1995, whereas Mst. Nisha
Mehtab on 11-11-1996. All were living at Lahore. On 8-11-1997, Mehtab Alam was
abducted by someone and F I R . No.295 of 1997, dated 22-12-1997, was registered at
Police Station Old Anarkali, District Lahore but he has not been recovered so far.
3. The claim of the petitioner is that respondent No.1 Aftab Alam is elder brother of her
husband whereas respondent No.2, Mst. Jamila Hashmi her mother-in-law. Her stand is
that after disappearance of Mehtab Alam, respondents Nos. 1 and 2, shifted to Lahore and
started living with her in her house; she further claims that on one occasion, she has gone
to the house of her parents to see them, when respondents Nos. 1 and 2, secretly loaded
her entire dowry articles in a truck, removed her golden ornaments and went away to
Rawalpindi along with the above named minor children. It is assertion of the petitioner
that she also went to Rawalpindi and started living with her children in a room at the
lower portion of the house of respondent No.2; that respondent No. 1, who is already
married person, was eager to marry her and respondent No.2 had also been pressurizing
her in this respect; that when she refused to agree with the above said demand of the
respondents Nos. 1 and 2, she was given severe beating upon which, she complained her
mother and brother and that she was turned out of the house of respondent No.2, without
children. She claims that after that, she had been making efforts to secure the custody of
her minor children but respondents Nos. 1 and 2, did not permit the same and thus as a
measure of last resort, she approached this Court. Learned counsel for the petitioner
while referring to the judgments reported as Mst. Haleema Bibi v. Bashir Ahmed and two
others (2000 PCr. LJ 1685), Muhammad Naseer Humayun v. Syeda Ummatul Khabir
(1987 SCMR 174), Mst. Samina. v. Ashfaque Hussain and another (2000 MLD 351),
Mst. Ansar Bibi v. S.H.O., Police Station Saddar Depalpur, District Okara and another
(2000 YLR 2567), argues that both the minor children are in illegal and improper custody
of respondents Nos. 1 and 2, and that the proper custody always lies with mother and that
they may be recovered from their improper custody and handed over to her.

4. On the other hand, the stand of the respondents Nos. 1 and 2, is that after
disappearance of Mehtab Alam, along with jewellery, he was carrying, they started
feeling themselves responsible to look after the petitioner and two children, brought them
to Rawalpindi in March, 1999 and started taking their care. The children were got
admitted in English Medium School GSIS and IPS. They are bearing more than Rs.3,000
per month, as tuition fee, etc. of each child. They further claim that the petitioner of her
own and on the instigation of her family members decided to leave the house of her-in-
laws and left children with them. They state that the children are going school regularly
and that they are in proper custody and living with them happily. Both the children are so
satisfied that they are showing extraordinary results in their school examinations. They
have further mentioned that after the lapse of about seven years the petitioner had filed
the present petition in the year, 2006 for the recovery of the children with mala fide
intention; that in case the children are taking away from their custody and delivered to the
petitioner, the career, education and welfare of the children would suffer; that the children
are enjoying the care and love of the respondents Nos. 1 and 2 It has also been prayed by
the respondents that query may be made from the children regarding their willingness to
accompany their mother or to respondents Nos. 1 and 2. They also informed that
respondents Nos. 1 and 2, have filed a guardian petition under section 25 of the
Guardians and Wards Act, before the competent Court and the proceedings are sub judice
and that petitioner has put her appearance there and the custody of both the children
would legally and properly be regulated by the competent Court. Lastly, they have relied
upon certain documents regarding tuition fee, the performance of the children in their
educational institutions and also petition showing pendency of proceedings under section
25 of the Guardians and Wards Act and that the custody of the minors is being regulated
by the Guardian Court. The learned counsel for respondents, while relying upon the
judgments reported as Mst. Aisha Bibi v. Nazir and 2 others (1981 SCMR 301), Mst.
Aisha v. Babar alias Badal and another (2001 PCr.LJ 1250), Muhammad Javed Umrao v.
Miss Uzma Vahid (1988 SCMR 1891), Mst. Nayyara Naureen alias Shazia v. Muhammad
Arif Butt Sabiri (2005 YLR 1047), Mst. Shazia Sharif, v. Zeeshan Ahmed Dodhy and 2
others (PLD 2001 Lahore 347), and Mst. Shagufta Yasmeen. v. Babar Ali and another
(2006 MLD 136), asserts that the High Court has jurisdiction in appropriate cases to issue
direction in the nature of habeas corpus and restore the custody to the mother from whom
the children was forcibly snatched; that in the present case, the minor children were never
removed and they are in proper custody since from beginning; that the children are being
administered love and affection and. that their affairs are being looked after and that
keeping in view the above situation, no emergency circumstances existed warranting their
removal of custody from the respondents and handing it over to the petitioner.

5. I have considered the contentions of learned counsel for the parties and have gone
through the case-law referred to by them.

6. In the present case, the minor children were never snatched from the custody of the
mother in the near past and they were not in illegal and improper custody and their lives
were not in danger due to the recent snatching, their education or sphere of love and
affection was being effected. The judgments referred to by the learned counsel for the
petitioner are such in which children of tender age, requiring hazanat of their mother,
were snatched and Court considered that emergency powers of the High Court under
section 491, Cr.P.C. may be exercised in favour of the mother to protect lives, restore love
of minor and regulate their custody. In the present case, the children are living with the
respondents since, 1999. Children were produced on number of occasions before this
Court. Even yesterday, they appeared before the Court. When the Court asked the
children to go to their mother and stay with her for some time, the children shown some
reluctance. They were fully satisfied with respondents Nos. 1 and 2. The children were
never snatched during the recent past or a sphere of emergency existed warranting
transfer of their custody from the respondents to the petitioner. Moreover, the children are
of understandable age. They are prima facie leading a satisfied life and their affairs are
being looked after properly. From the documents available on the record, it appears that
they are showing satisfactory performance in their education. However, the final
decision, regarding the proper or improper custody and about the welfare of the children,
can only be given by the learned Guardian Court, on the strength of evidence, recorded
by it. For the time being, there is no emergency warranting the removal of their custody
from respondents Nos.1 and 2 and handing it over to the petitioner. For the time being,
the custody of the minors is not improper and that no emergency circumstances are in
existence under which the provisions of section 491, Cr.P.C. may be invoked. Moreover,
the judgments relied upon by the learned counsel for the petitioner, have no application to
the facts and circumstances of the present case. While declaring so, I am fully inspired by
the judgments referred to by the learned counsel for the respondents.

For the foregoing reasons, the present writ petition has no substance and the same is
hereby dismissed.

N.H.Q./M-3/L Petition dismissed.

P L D 2008 Karachi 132

Before Dr. Rana Muhammad Shamim, J

ASIF ALI---Petitioner

Versus

Mst. TEHMINA NASEEM SHAD and 2 others---Respondents

Constitutional Petition No. S-410 of 2004, decided on 15th January, 2008.

Guardians and Wards Act (VIII of 1890)---

----S. 25---Constitution of Pakistan (1973), Art.199---Constitutional petition---Custody of

minor---Welfare of minor---Courts below concurrently gave custody of minor to mother
and the father who had divorced her had challenged said concurrent judgments of the
courts below in constitutional petition---Validity---Minor was patient of imperforated
disease and had been operated thrice, in such circumstances when minor had attachment
with his mother, in case he was given in the custody of his father who was stranger for
him, it would deteriorate his health---Father, who had contracted second marriage, when
he would leave for his, job, child would be at the mercy of step mother---In presence of
real mother, who was living in a combined family having sisters and mother, it would not
be proper to deprive the child from the natural love and affection of the mother
particularly when nothing substantial had come on record to prove that the mother had
failed to properly look after her son---Scope of powers of High Court while dealing with
the concurrent findings of the two courts below, in exercise of constitutional jurisdiction,
was very limited---Burden of proving that findings recorded by courts below were
vitiated by evidence on record or suffered from non-reading of material evidence or there
was jurisdictional defect, lay on the petitioner, which the petitioner in the present case
had failed to point out---Both courts below had very carefully examined all the aspects of
the matter in regard to the welfare of the minor---Concurrent judgments of the courts
below could not be interfered with by the High Court in exercise of its constitutional
jurisdiction.

1993 CLC 2468; PLD 1978 SC 220; PLD 1962 Lah. 142; Mst. Firdous Iqbal v. Shifaat
Ali 2000 SCMR 838; M. Farrukh Iqbal v. Additional District Judge, Islamabad 1999
MLD 1754 and Mst. Feroze Begum v. Lt.-Col. Muhammad Hussain 1978 SCMR 299 rel.

Kadir Bukhsh Bhutto for Petitioner.

Aman Khattak for Respondent No.1.

ORDER

DR. RANA MUHAMMAD SHAMIM, J.---The petitioner has challenged the

concurrent findings recorded vide judgments dated 29-9-2003 and 31-5-2004 by learned
IX-Civil and Family Judge Karachi Central in G &W No.974 of 2001 and the learned
District Judge Karachi Central in Family Appeal No.108 of 2003 whereby the application
under section 14 of West Pakistan Family Courts Act, 1964 filed by the petitioner was
dismissed and so also the appeal against the same.

Brief facts of the case are that the petitioner and respondent married on 15-9-1997 but
due to some differences the petitioner divorced the respondent in August 2000. From the
wedlock a boy namely Zeerak Asif Ali was also born on 27-10-1998, who is patient of
imperforated and was operated thrice. According to the petitioner, at the time of Tallaq it
was agreed that the respondent will give custody of the minor child to the petitioner,
which the respondent failed to abide and consequently the Guardian and Ward
Application was filed. The respondent in his written statement refuted the claim of the
petitioner that she has ever agreed for handing over the custody of the child to the minor
and further pleaded that the petitioner neither properly maintained her nor her child. The
learned Family Judge dismissed the application and appeal against the same also met
with same fate.
Learned counsel for the petitioner has contended that the learned courts below have not
properly considered the evidence placed on record and without applying judicial mind,
passed the impugned judgments. He contended that the petitioner is an educated person
and is working as lecturer in Government Degree College, Buffer Zone, Karachi, and as
such he can very well look after the minor. He further contended that the paramount
consideration is the welfare of the minor and there are no hard and fast rule and each and
every case has to be decided on its own merits. He contended that the right of Hizanat lies
with the father to have the custody of the minor. He further contended that the
visits/meeting of father was not regulated by the learned trial Court. In support of his
contentions he has placed reliance on the cases reported in 1993 CLC 2468, PLD 1978
SC 220 and PLD 1962 Lahore 142.

On the other hand learned counsel for the respondent No.1 has supported the impugned
judgments. He contended that there is nothing on record to substantiate any misreading or
non-reading of the evidence. He contended that the judgments are well-reasoned and the
petition is not maintainable as the concurrent findings of the Courts below cannot be
challenged while exercising the constitutional jurisdiction. In support of his contentions
he has placed reliance on the cases of Mst. Firdous Iqbal v. Shifaat Ali (2000 SCMR
838), M. Fatrukh Iqbal v. Additional District Judge, Islamabad 1999 MLD 1754 and Mst.
Feroze Begum v. Lt.-Col. Muhammad Hussain 1978 SCMR 299.

I have heard the learned counsel for the parties and have gone through the material
available on record and so also the case-law.

Indeed the admitted fact in the light of the law cited by both the learned counsel is the
welfare of the minor. The child is a patient of imperforated and has been operated thrice
and in such circumstance when he has attachment with his mother, and in case he is given
in the custody of his father, who is stranger for him, it may deteriorate his health. The
petitioner has contracted second marriage and when he will leave for his job, the child
will be at the mercy of step mother. In my humble view in presence of real mother, who
is living in a combined family having sisters and mother, it will not be proper to deprive
the child from the natural love and affection of the mother particularly when nothing
substantial has come on record to prove that the respondent has failed to properly look
after her son.
It is also settled principle of law that the scope of this Court while dealing with the
concurrent findings of the two courts below in exercise of constitutional jurisdiction is
very limited. In such like situation the burden of proving that the findings recorded by
Courts below were vitiated by evidence on record or suffered from non-reading of
material evidence or there was jurisdictional defect lie on the petitioner, which in the
instant case the petitioner has failed to point out. Both the Courts below have very
carefully examined all the aspects of the matter in regard to the welfare of the minor. The
case-law relied upon by the learned counsel for the petitioner in the light of the above
discussion are not relevant to the present case.

In view of the above, I do not find any substance in the present petition calling for
interference in the impugned judgments. Accordingly, this petition is dismissed in limine
along with listed application.

H.B.T./A-140/K Petition dismissed.

2008 C L C 654

[Karachi]

B efore Arshad Noor Khan, J

YAQOOB AHMED----Petitioner

Versus

Mst. SHAISTA and 2 others----Respondents

Constitutional Petition No.S-555 and C.M.A. No.3566 of 2007, decided on 25th

February, 2008.

Guardians and Wards Act (VIII of 1890)---

----S.17---Constitution of Pakistan (1973), Art.199---Constitutional petition---Custody of

minors---Both the Trial. Court and Appellate Court having given the custody of minors to
the mother, father of minors had challenged said concurrent judgments in constitutional
petition---Validity---Prime consideration for determination of custody of minors being
their welfare, the court had to consider the same before handing over their custody to
their mother or father---For the purpose of consideration of the welfare of the minors,
evidence available on record was to be considered by the court---Father of the minors
was residing in a rented house in a joint family system; he was running electric shop used
to remain outside the house in connection with his work and his parents were not
surviving and he was residing with his two married brothers, which had shown that at his
house no one was available to look after the minors properly as they could be looked after
and maintained by real mother of the minors---Said evidence on record had shown that
welfare of the minors lay with their mother who being natural guardian, could maintain
her minors with love and affection in comparison to the others---Maintenance of the
minors was the bounden and primary duty of the father of the minors till the age of his
majority in the case of his son and till the marriage in case of daughter---Non-availability
of funds or paucity of the mother to maintain her minor children, in circumstances could
not be treated as disqualification of mother to refuse her the custody of her children---
Consent of minors to reside with father, was of not much significance while determining
the facts of their welfare---Consent of minor was only to be considered, if the minor was
old enough to form his preference, but in the present case age of minor girl was not more
than 10 years, whereas minor boy was not more than 8 years---Both were not old enough
so as to give any preference to their consent---Mere assumption and presumption that
education of minors would be disturbed, custody of minors could not be refused to their
mother---Judgments passed by the courts below did not suffer from any illegality so as to
declare them as ultra vires the Constitution---Constitutional petition was dismissed, in
circumstances.

Sughra Bibi v. Akhtar Hussain 2007 CLC 474 rel.

Raja Aftab Ahmed Khan for Petitioner.

Respondent No.1 in person.

ORDER

ARSHAD NOOR KHAN, J.---This constitutional petition under Article 199 of the
Constitution of Islamic Republic of Pakistan, 1973 has been filed by the petitioner
thereby challenging the legality and validity of the judgment, dated 22-11-2007 passed by
the learned III-Additional District Judge, Karachi-Central in Family Appeal No.8 of 2007
Yaqoob Ahmed v. Mst. Shaista, whereby she dismissed the appeal and maintained the
judgment, dated 21-12-2006 passed by the learned IV-Civil Judge, Karachi-Central in
G&W Application No.1151 of 2004 Mst. Shaista v. Yaqoob Ahmed whereby the
application for custody of the minors filed by respondent No.1 was allowed.
The facts leading rise to the present petition in brief, are that the respondent No.1 and the
petitioner were married on 27-4-1997 and dower amount was fixed as Rs.50,000. Out of
wedlock two children namely: Baby Fariha, aged about six years and Master Maroof
aged about four years were born. There cropped some matrimonial disputes in between
the spouse as such the petitioner deserted her in the month of June, 2004 from his house
and both the minors were snatched from her. It is further stated in the guardianship
application that the petitioner who is running his business cannot look after the minors as
such the welfare of the minors lies with the respondent and besides the welfare of the
minors, she also possess the right of Hizanat to keep the custody of the minors with her.
Respondent No.1, therefore, prayed for custody of both the minors. Petitioner was served
with the notice who filed written statement, inter alia, denying the allegation levelled by
respondent No.1 against him and has stated that he is in lawful custody of the minors
being natural guardian and that the minors are getting education nicely and he is
maintaining the minors nicely and properly and that even the respondent No.1 did not
attempt to meet with the minors as such neither the welfare of the minors lies with
respondent No.1 nor she possess any right of Hizanat because the minors have crossed
the age of Hizanat.

After pleadings of the parties, the learned trial Court framed the following points for
determination:-

(1) In whose custody the welfare of the minors in question lies?

(2) Whether applicant is entitled for grant of custody of minors in question?

(3) What should the order be?

The parties led their evidence in pro and contra to their respective claims and the learned
trial Court after hearing of the learned counsel for the parties allowed the guardianship
application thereby directing the petitioner to hand over the custody of the minors to
respondent No.1. The petitioner being highly aggrieved and dissatisfied with the
judgment passed by the learned trial Court preferred Family Appeal bearing No.8 of 2007
Yaqoob v. Mst. Shaista, which was entrusted to the learned III-Additional District Judge,
Karachi-Central, who after hearing the learned counsel for the parties dismissed the
appeal, having no substance, hence the present petition.
I have heard Mr. Raja Aftab Ahmed Khan, Advocate for the petitioner and respondent
No.1 in person.

The learned counsel for the petitioner vehemently contended that the minors have been
admitted in well repute school and are getting education and are securing flourishing
marks in their annual examinations and handing over the custody of the minors will
interrupt their education which will be detrimental to the future of the minors and that the
minors had given their consent before the learned trial Court to remain with the petitioner
which consent of the minors has not been considered by both the lower Courts, as such
the wishes of the minors have not been kept in consideration by both the lower Courts.
According to him he is maintaining the minors nicely, who do not want to join the
respondent No.1 being their mother as such no order against the wishes of the minors
could be passed by the Court, as such judgments passed by both the lower Courts may be
set aside. In support of his contention he has relied upon the case of Sughra Bibi v.
Akhtar Hussain reported in 2007 CLC 474.

The, respondent has contended that the orders passed by the learned lower Courts did not
suffer from any misreading of the evidence as such the same could not be disturbed by
this Court.

I have considered the arguments advanced on behalf of the parties and have gone through
the material available before me. Admittedly the present proceedings relate to the custody
of the minors as such the prime consideration for determination of the lis in between the
parties is, the welfare of the minors. The Court has to consider the welfare of the minors
to handover the custody to the mother or the father of the minors, keeping in view all the
material evidence and allied circumstances to determine as to with whom welfare of
minors lies. In the present case the age of minor Fariha has been disclosed, in para.2 of
the guardianship application, as six years and age of Master Maroof is four years, at the
time of filing the petition before the learned Guardian Judge. Para.2 of the guardianship
application has been admitted by the petitioner in para.2 of his written statement as such
there is no cavil with regard to the age of the minors. According to section 17 of the
Guardian and Wards Act, the welfare of the minors is to be considered by the Guardian
Judge. For the purpose of consideration of the welfare of the minors, the evidence
available on record is to be considered by the Court. In the present case the petitioner has
examined himself as witness and in his evidence he has admitted that he is residing in a
rented house and that he has two elder brothers who are married and they are residing in
the same house in joint family system and that both the minors are getting proper
education and they are being looked after at home by him. He has also admitted in his
evidence that he is an electrician and is earning is Rs.12,000 per month, which is
sufficient to maintain his children. He has also examined D.W. Mehmood Shah in
support, of his version, who has deposed that petitioner is running electric shop and
earning Rs.12,000 to Rs.15,000 per month and that both the minors are residing with the
petitioner, who are getting proper education. The evidence, of the petitioner and his
witness therefore, fully shows that the petitioner is running electric shop and obviously he
used, to remain outside the house in connection with his electric work and according to
the petitioner his parents are not surviving and he along with his two married brothers, is
residing in joint family system, which shows that at his house no one is looking after the
minors properly as could be looked after and maintain by real mother. The said evidence,
therefore, shows that the welfare of the minors lies with their mother and being natural
guardian she can maintain her minors with all love and affection in comparison of the
others. So far is the maintenance of the minors is concerned, it is the bounden and
primary duty of the father to maintain his children till the age of majority, in case of son,
and till the marriage in case of daughter. As such non-availability of funds or paucity of
the mother to maintain her children could not be treated as disqualification of the mother
to refuse the custody of her children and father of the children is duty bound to maintain
them.

The contention of the learned counsel for the petitioner that the minors had consented
before the learned trial Court to reside with their father, has not been given due
consideration by both the learned lower Courts, in my humble opinion, is devoid of any
force as the consent of the minors is of no much significance while determining the facts
of their welfare; even the ages of the minors have been admitted by the petitioner in his
written statement as such presently the age of minor baby Fariha could not be more than
10 years and age of Master Maroof could not be more than 8 years and said age being
grown up age could not be treated as the age of maturity of the minors, so as to give
importance to their consent. According to subsection (3) of section 17 of Guardian and
Wards Act, 1890, the consent of the minor is only considerable if the minor is old enough
to form initiate preference, the Court may consider that preference but in the present case,
I do not find that both the minors are old enough so as to give any preference to their
consent.

The contention of the learned counsel for the petitioner that the minors are getting
education properly and in case, if the custody of the minors is given to the respondent, the
education of the minors will be disturbed. The contention raised by the learned counsel
for the petitioner, in my humble opinion, is devoid of any force, for the reason that on
mere assumption and presumption that the education of the minors will be disturbed, the
custody of the minors could not be, refused to their mother, as discussed above, it is the
primary duty of the petitioner to look after and maintain his children and the petitioner
cannot avoid his responsibility to maintain the minors, in case, if their custody is given to
their mother. The case of Mst. Sughra Bibi (supra), relied upon by the learned counsel for
the petitioner, in my humble opinion, is distinguishable from, the circumstances of the
present case as the said case was filed by the paternal-grandmother of the minors which is
not the case in hand, as such the case of Sughra Bibi is not applicable to the
circumstances of the present case.

For the foregoing reasons, I do not find that the judgments passed by the learned lower
Courts, suffer from any illegality so as to declare them as ultra vires to the constitution.
The petition has, therefore, no merit and the same is hereby dismissed in limine.

H.B.T./Y-4/K Petition dismissed.

P L D 2007 Supreme Court 292

Present: Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan and Saiyed
Saeed Ashhad, JJ

SAJJAD AHMAD RANA and others---Petitioners

Versus

Ms. LOUISE ANNE FAIRLEY and others---Respondents

Civil Petition No.1079 of 2006, decided on 18th January, 2007.

(On appeal from the judgment of the Lahore High Court Lahore dated 29-11-2006 passed
in Writ Petition No.9730 of 2006).

Constitution of Pakistan (1973)---

----Art. 185(3)---Guardians and Wards Act (VIII of 1890), S.25---Petition for leave to
appeal---Custody of minor---Welfare of minor---Partys' counsel, during course of
arguments had agreed to dispose of the matter in terms of a compromise which they had
reduced into writing under instructions of the parties---Supreme Court, in circumstances,
converted the petition for leave to appeal into appeal and observed that Court would not
like to enter into factual controversy and legal questions raised by both the counsel,
which were essentially of very substantial nature, however, in some other appropriate
case, the Court would pronounce an authoritative judgment thereupon and that Court had
heard the case at length and could have disposed of on merits but it was considered in the
interest of welfare of minor that matter should be settled between the parties amicably
instead of encouraging litigation between the parties in respect of custody of the minor---
Supreme Court, therefore, disposed of the case in the terms that the contents of the
compromise/agreement shall be read as integral part of the judgment of Supreme Court;
that as a consequence of compromise between the parties, the impugned judgment of
High Court was set aside; resultantly, Constitutional petition filed by the mother of the
minor before the High Court, was dismissed holding that any observation made therein in
respect of the factual controversy or on the law point shall cease to have any effect and
will not be quoted as precedent; that the mother shall be free to visit the minor and before
travelling to Pakistan, she would intimate to the Registrar of Supreme Court about her
travelling plan and stay in Lahore; that on receipt of such request, the Registrar shall
work out the travelling expenditures in the Pound Sterling and father of the minor shall
be directed to deposit the same with the Registrar within a period of ten days of the
intimation by mother and on deposit of the amount, mother shall be duly intimated at the
cost of the father; that the cost incurred by her in purchasing the tickets and staying in the
Hotel shall be reimbursed to her against a valid receipt in Pakistan; that the father
however, shall have no excuse for not depositing the amount or causing delay failing
which he shall be dealt with for contempt of the order of Supreme Court and that as the
mother is a foreigner, therefore, the Registrar shall also send a letter to the Provincial
Inspector-General of Police for providing her full protection/security during her arrival,
departure and stay in Pakistan and the I.-G.P. shall send a report of the measures so taken
for her security to the Registrar of Supreme Court.

Malik Muhammad Qayyum, Dr. Rana M. Shamim, Shaukat Ali Mehr, Advocates
Supreme Court, Arsand Ali, Chaudhry, Advocate-on-Record for Petitioners.

Ms. Naheeda Mehboob Elahi, Advocate Supreme Court and Mehr Khan Malik,
Advocate-on-Record for Respondent No.1.

Ch. Khadim Hussain Qaiser, Addl. A.-G. for Respondent No.2.

Nemo for Respondent No.3.

ORDER
IFTIKHAR MUHAMMAD CHAUDHRY, C J.---This petition has been filed under
Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 against the
judgment of Lahore High Court, dated 29th November, 2006 in Writ Petition No.9730 of
2006 instituted by Ms. Louise Anne Fairley daughter of Violet Robertson against
petitioner Sajjad Ahmad Rana son of Mushtaq Ahmed Rana and two others.

2. Precisely stating the facts of the case are that the petitioner being a Pakistani citizen by
birth contracted marriage with respondent No.1 on 22nd January, 1986 in U.K. From the
said wedlock, 4 children were born including Misbah Irum Rana (Moliy Campbell) on
16th July, 1994) in U.K. The union of petitioner and respondent No.1 could not continue
as she was divorced by Blackburn County Court on 18th October, 2001. Statedly Misbah
Irum Rana continued to live in the U.K. with her father. However, visiting rights were
given to respondent No.1 during weekends and holidays under an arrangement between
the parties. It is stated that petitioners Sajjad Ahmed Rana along with Misbah Irum Rana
and other children came to live in Pakistan in 2003. And from 2003 to onward, the
children continued to visit their mother off and on. It so happened that when Misbah Irum
Rana had gone to spend holidays in the month of June, 2005, her mother, respondent
No.1 filed a petition in the Sessions Court of Scotland and succeeded in obtaining order
on 29th June, 2005 following by another order dated 15th November, 2005. In the
meantime, Misbah Irum Rana travelled along with her family members including
petitioners, one sister and one brother to Pakistan where she stayed with her father. The
respondent No.1 started alleging against the petitioner that he has forcibly removed
Misbah Irum Rana to Pakistan, therefore, she filed proceedings compelling to petitioner
to bring back Misbah Irum Rana to Scotland. In continuation of these efforts on her
behalf, a petition under Article 199 of the Constitution of Islamic Republic of Pakistan,
1973 read with section 491, Cr.P.C. in the nature of Habeas Corpus was filed before the
Lahore High Court, Lahore for recovery of Misbah Irum Rana. In the writ petition
following prayer was made:--

"It is therefore, most respectfully prayed that writ petition under Article 199 of the
Constitution of Islamic Republic of Pakistan, 1973 read with section 491, Cr.P.C.
in the nature of Habeas Corpus may kindly be accepted and custody of minor
Misbah Ahmed Rana by respondents Nos.1 and 2 be declared as illegal and
improper. Minor be recovered from their illegal and improper custody and placed
in Neutral Custody or with British High Commission in Islamabad and an order
that her custody be restored/returned to petitioner and she returned to country of
her habitual place of residence be passed."

3. Petitioner contested the petition on a number of grounds including the one, that after
divorce between the petitioner and her, she is living with a person without matrimonial
relation and out of their such union, a female child has born. Therefore, she is
disqualified for the custody of Misbah Irum Rana, besides she is not in unlawful custody
of the petitioner who being her father and natural Guardian, is entitled to retain her
custody. A learned Judge of the Lahore High Court vide impugned judgment allowed the
petition and passed the following order:--

"Therefore, this petition is allowed, respondents Nos.1 and 2, shall hand over the
custody of the minor Misbah Ahmed Rana within seven days from today to some
Senior Female Officer of the British High Commission, who shall be responsible
to, send the minor onward to Scotland, where her custody should be restored to
the petitioner, respondents Nos.1 and 2 are also directed to hand over the two
passports of Misbah Ahmed Rana to such Officer of the British High Commission
for her journey."

Against the above order, instant petition has been filed.

4. Learned counsel for both the parties addressed arguments at a considerable length in
support of their respective contentions. Reference to a number of documents was also
'made by them to strengthen their view-point.

5. Malik Muhammad Qayyum, Advocate Supreme Court appearing for petitioner argued
that as far as the petition under Article 199 is 'concerned, it was not competent under the
law and the learned High Court had taken departure from the settled principles while
deciding the question relating to custody of minor Misbah Irum Rana and ignored the
supreme consideration i.e., the welfare of the child which is necessarily require to be
considered by the Court called upon to decide the issue of custody of a minor. According
to him admittedly in the instant case, Misbah Irum Rana had attained the puberty,
therefore, she is mature and her say is very important in the case and according to him, it
is also borne out from the record that she was examined by the learned Judge of the
Lahore High Court in Chambers where she declined to join her mother for the reasons
mentioned hereinabove.

6. On the other Ms. Naheeda Mehboob Elahi, learned Advocate Supreme Court for the
respondent vehemently contended that as the respondent Misbah Irum Rana was habitual
to live in Scotland where she was born, brought up and she was getting education and she
was brought to Pakistan despite injunctive orders operating against the petitioner,
therefore, it would be in the interest of justice and welfare of Misbah Irum Rana to go
back to Scotland.

7. We would not like to enter into factual controversy and legal questions raised by both
the learned counsel, which are essentially of very substantial nature. However, in some
other appropriate case, this Court would pronounce an authoritative judgment thereupon'
because of the fact that during the course of arguments, partys' counsel agreed to dispose
of the matter in terms of a compromise which they have reduced into writing under
instructions of the parties and stated that the matter be disposed of finally in terms
thereof. It would be appropriate to reproduce hereinbelow the contents of
compromise/agreement in extenso:

"(a) That Louise Anne Fairley respondent No.1 agrees to withdraw her petition
under section 491, Cr.P.C. read with Article 199 of the Constitution bearing
No.9730/2006 filed before the High Court of Lahore, let this be set aside.

(b) That petitioners agree that Louise Anne Fairley (respondent No.1) may visit
Misbah Irum Rana whenever she so desires for whatever period at their expense
in Lahore, Pakistan and complete entire travel expenditure and stay' expense shall
be borne by petitioner No. 1.

(c) That petitioner No.1 has no objection whatsoever if Misbah Irum Rana is
called by her mother on telephone or internet (any time).

(d) That petitioner No.1 and his other children would have no objection if the
Minor 'Misbah Irum Rana desires to travel to Scotland to meet her mother.

(e) That respondent No.1 surrenders her full right to custody of Misbah Irum Rana
in favour of petitioner and both the parties will withdraw their cases in this
respect from the jurisdiction in Scotland and from the jurisdiction in Pakistan.
Further both the parties agree that they will not claim any costs whatsoever from
the other party for the litigation filed at their instance before any Court.
 It is, therefore, requested that matter be disposed of as per compromise proposal
agreed by the contesting parties.

(Sd.)

Naheeda Mehboob Elahi,

Advocate Supreme Court of Pakistan,

Petitioner No.1.

Counsel for Respondent No.1

(Sd.)

Khadim Hussian Qaiser,

Additional Advocate-General,

Petitioner No.2.

Punjab

Counsel for Respondent No.2

(Sd.)

Malik Muhammad Qayyum,

Advocate Supreme Court of Pakistan

for Petitioners Nos.1 and 2.

(Sd.)

Dr. Rana M. Shamim,

Advocate Supreme Court for

 Petitioners Nos. 1 and 2.

(Sd.)

Kanwar Iqbal Ahmed,

Advocate Supreme Court.

(Sd.)

Pervaiz Tanoli,

Advocate Supreme Court.

8. At this juncture, we may point out that in terms of clause (d) of the above compromise,
petitioner, his counsel as well as Misbah Irum Rana stated that whenever she would
desire to travel to Scotland to meet her mother, she would be free to do so, however, she
stated that presently she had no intention to visit to her mother. Although we have heard
the case at length and could have disposed of on merits but we considered that it would
be in the interest/welfare of Misbah Irum Rana that matter should be settled between the
parties amicably instead of encouraging litigation between the parties in respect of her
custody (Hazanet). Thus we dispose it of in the following terms:--

(i) The contents of the compromise/agreement shall be read as integral part of this
judgment.

(ii) As a consequence of compromise between the parties, the impugned judgment

dated 29-11-2006 is set aside. Resultantly, Constitutional Petition bearing No.
9730 of 2006 filed by the respondents before the High Court of Lahore, is
dismissed holding that any observations' made therein in respect of the factual
controversy or on the law point shall cease to have any effect and will not be
quoted as precedent.
 (iii) The respondent No.1 shall be free to visit Misbah Irum Rana and before
travelling to Pakistan, she would intimate to the Registrar of this Court about her
travelling plan and stay in Lahore. On receipt of such request, the Registrar shall
work out the travelling expenditures in the Pound Sterling and petitioner shall be
directed to deposit the same with the Registrar within a period of ten days of the
intimation by Respondent No.1 and on deposit of the amount, respondent No.1
shall be duly intimated at the cost of the petitioner and the cost incurred by her in
purchasing the tickets and staying in the Hotel shall be reimbursed to her against a
valid receipt in Pakistan. Petitioner, however, shall have no excuse for not
depositing the amount or causing delay failing which he shall be dealt with for
contempt of the Order of this Court

(iv) As respondent No.1 is foreigner, therefore, the Registrar shall also send a
letter to the Inspector-General of Police, Punjab for providing her full
protection/security during her arrival, departure and stay in Pakistan and the I.G.P.
shall send a report of the measures so taken for her security to the Registrar of this
Court.

Petition is converted into appeal and stands disposed of in the above terms with a note of
thanks to the learned counsel for the parties for assisting the Court in disposal of the
matter.

M.B.A./S-9/S Order accordingly.

2007 C L C 1403

[Northern Areas Court of Appeals]

Before Justice Qazi Ehsanullah Qureshi, Chairman Justices Altaf Hussain and Syed
Tahir Ali Shah, Members

Mst. FAUZIA BEGUM----Petitioner

Versus

AMIN SADDRUDDIN JAMAL GONJI----Respondent

C.P.L.A. No.4 of 2007, decided on 15th June, 2007.

(a) Guardians and Wards Act (VIII of 1890)---

----Ss. 17 & 25---Custody of minor son aged 2 years---Father having nationality of

Canada, while mother living in a village of District Gilgit---Minor living with mother
since his birth---Father's claim for custody of minor son after divorcing his mother---
Validity---Mother's love and affection for and .her commitment to her child could not be
matched with any other relation---Lap of real mother would be God's own cradle for a
child---Removing child at such tender age from mother would tantamount to height of
cruelty---Not proved on record that atmosphere of mother, where minor was living .was
detrimental to minor's future or career or mother could not take care of minor or his.
welfare in view of financial strangulation---Father, since birth of son had neither visited
him nor paid any maintenance---Father was trying to take away his son from mother,
which after her divorce was the only hope and charm in her life---If father applied again
for custody of minor after his having reached to age of seven (7) years, .then court would
decide such application on the choice of minor as to where he wanted to reside (with
mother or father)---Application for custody of minor filed by father was dismissed with
observations that Father could see and meet his son once in a month at residence of
minor, while education and maintenance of minor son would be the responsibility of
father.

(b) Guardians and Wards Acct (VIII of 1890)---

----Ss. 17 & 25---Custody of minor child, entitlement to---Essential considerations---

Prime consideration before court would be betterment of minor, but not claims/wishes of
contending parties and attaining target age of minor prescribed under his Personal Law---
Principles.

The prime consideration before the court would be the interest of the minor and to see
whether in so tender age a minor can be snatched from the mother; and whether an infant
can survive comfortably without mother.

No doubt according to Fiqa Jafaria the target age is prescribed, but there is no such
provision available under section 25 of the Guardians and Wards Act, 1890, nor it is
.given to understand anywhere that guardianship case shall be decided on the basis of the
views expressed by different schools of thought. The Court has to determine the custody
of minor notwithstanding the rights of father or mother, but betterment of the minor.

Attaining the target age of minor is neither absolute nor settled law. While settling the
matter of custody, the supreme consideration is the convenience and well-being of the
minor, rather than claims and wishes of the contenders. No doubt, wish of the minor can
also be kept in view by the courts, provided the minor is grown up enough to form an
intelligent opinion. Each case has to be decided on its own merits. Custody of the minor
son could be refused in cases where the age proved to be more than seven years.

(c) Guardians and Wards Act (VIII of 1890)---

----Ss. 17 & 25---Custody of minor son---Poverty of mother---Not a valid ground to
deprive mother from such custody---Father responsible to maintain minor son.

Syed Jaffar Shah for Petitioner.

Mir Ghulam Sarwar and Muhammad Issa for Respondent.

Date of hearing: 15th June, 2007.

JUDGMENT

JUSTICE QAZI EHSANULLAH QURESHI (CHAIRMAN).---Brief facts giving rise

to the instant petition are that the petitioner and respondent locked in the ties of marriage
on 4-4-1999 at village Gulmit Tehsil Hunza District Gilgit. In duration of marriage
thereafter, strain relations developed, between the parties and resultantly the ties of the
spouses disconnected and the .marriage was finally dissolved on 8-10-2005.

That out of their wedlock son Solomon Ali Khan was born on 13-8-2003, who is still
living with the mother-petitioner since birth.

The respondent/husband moved the Court of District .and Sessions Judge/Guardian

Judge, Gilgit under sections 10 and 25 of the Guardians and Wards Act, 1890, which
application was hotly contested, reply, replication, and rejoinder filed pro and contra
evidence recorded, ultimately the learned Guardian Judge reached to the conclusion that
the respondent/petitioner is entitled for the custody of minor and also allowed him to take
the minor abroad, if need be, subject to guarantee in writing for the production of the
minor before the Court after every three months, in order to facilitate the meetings of the
minor son with his mother, the date of meeting has to be reckoned from the date of
handing over the minor to the respondent/petitioner (father). In the event of Failure on the
part of petitioner/father to produce the minor son as per Court directions, the
petitioner/father has to be burdened with cost to the tune of Rs.2,50,000 payable to the
respondent/mother now petitioner. The meetings of the son with the mother is to be
arranged by the Court.

Not satisfied with the aforesaid .judgment/order announced by the Guardian Judge, dated
23-11-2006, the petitioner then respondent preferred an appeal in the Chief C o u r t
Northern Areas Gilgit. The learned Chief Court after hearing the parties maintained the
impugned judgment passed by the District and Sessions Judge/Guardian Judge, Gilgit.
The petitioner Fouzia Begum still aggrieved has come to this Court for her redressal.

The learned counsel for the petitioner addressed that the subordinate Courts below had
erred in law; judgment so passed is a result of misconception, misconceivment and
misinterpretation of law. No doubt Ismailie Fiqa is sub sect of Shia sect and according to
Shia Law the mother can retain his son up to the age of 2 years and daughter up to .the
age of 7 years, but in the interest of minor paramount consideration for the purpose is the
well-being and welfare of the minor, which has to be kept in view.

Assailing judgment passed by Chief Court, the learned counsel for the petitioner
submitted that the judgment by the Guardian Judge, Gilgit was not properly looked into
by the Chief Court and this aspect of the matter was not at all attended that once the
minor child is out of Northern Areas what-to say of foreign country, the jurisdiction of the
Guardian Judge culminates there and then and he is left with no powers whatsoever to
call for the .child from outside Northern Areas, so such order was nothing but gamble. He
also submitted that after the compromise taken place between the parties effected by
conciliation and Arbitration Penal Gulmit and accepted by respondent, prior, to initiating
the Court for guardianship the respondent in the circumstances estopped by his own-
conduct to move the Guardian Judge that the respondent/ petitioner claiming to be
Muslim confessed that he is Alcohol Addict and Womanizer, attends Clubs, etc. oftenly.
So being Muslim the conduct of respondent is against the Injunctions of Islam and moral
ethics, the so more such admissions on the part of the respondent reflects and recoils his
character which otherwise expose the atmosphere, environments and spectrum in which
respondent is leading life and where he intends to take his minor son.

The Darned counsel for the respondent in rebuttal hotly pressed that the minor son is
aged about 3 to 4 years and under the Shia Law, the father is entitled for his custody as
the minor has crossed the age limit of 2 years. Besides justifying Muslim Personal Law,
Further advanced that the minor can be well-looked alter at Canada where he can get
good education and high standard society whereas here at Hunza he will be spoiled, as he
would neither be able to get good education nor could enjoy happy and prosperous life at
backward village Gulmit, all the more the resources of the petitioner mother are limited
and meagre, so petitioner would not be in a position to attend to child basic requirements,
and in this way the career and future of the minor would be affected adversely and also
that it would deprive him from Canadian Nationality in the long run. He also vehemently
pressed that the petitioner (mother) of the minor never bothered to appear before
Guardian judge nor appeared in the witness-box, nor brought the son on single date to
enable the respondent/father to see his charming, loving son for whom he is striving and
crying since long. He was of the view that under the law, in case pleadings are not
supported by the party during the statement, the application for guardianship goes
unrebutted and taken to be correct.

We have heard the learned counsel for the parties at length perused the record carefully
and. also gone through the relevant case-laws specially on the subject i.e. welfare of the
minor and age limit according to Fiqa Jaffria.

We have also a glimpse on the judgments and findings declared by Guardian Judge and
Chief Court. The conclusion drawn by the District Judge and the Chief' Court does not
appear to be legal rather against the interest and welfare of the minor. What prevailed
upon the subordinate Courts is the Foreign charm, attraction and Nationality of the west.
Forgetting the spirit of theme and rationale behind the provision. Vis-a-vis sentiments and
emotional attachments of mother towards son (Specially, the mother of the East) and son
towards mother.

The prime consideration before the court was the interest of the minor and to see whether
in so tender age a minor can be snatched from the mother and could without mother an
infant can survive comfortably.

No doubt according to Fiqa Jafaria the target age is prescribed, but there is no such
provision. available under section 25 of the Guardians 'and Wards Act, nor it is given to
understand anywhere that guardianship case shall be decided on the basis of the views
expressed by different School of thoughts. The Court has to determine the custody of
minor notwithstanding the rights of the father or mother, but betterment of the minor.

As to financial restraints, that she had no independent source of income, poverty is no

ground to deprive the mother from the custody of her minor son. As otherwise it is the
responsibility of father to maintain his son. However, the wishes of the minor can 6e
taken into consideration, but it is next to impossible that minor can declare his intention
at the age of two years. Removing away the child at the age of two years, from the
mother, who happens to be always loving and affectionate and whose commitment to the
child cannot be matched with any other relation, there is also famous saying that a lap of
real mother is Gods' own cradle for a child, in this state of affair removal of infant from
mother would be tantamounting to height of cruelty.

In this case the respondent/father failed to establish, that the atmosphere of the mother,
where the minor is aboding is detrimental to minor's future or career in any manner or
mother could not take care of minor or welfare of the minor in view of Financial
strangulation.

Attaining the target age of minor is neither absolute nor settled law. While settling the
.matter of custody, the supreme consideration is the convenience and well-being of the
minor, rather than claims and wishes of the contenders. No doubt, wish of the minor can
also be kept in view by Courts, provided the minor is grown up enough to Form an
intelligent opinion. Each case has to be decided on its own merits. There are bundle of
authorities on the subject, where the custody of the minor son was even refused in cases
where the age proved to be more than seven years.

The salient feature of this case as indicative from the record and as stated by the learned
counsel for the petitioner that child was born in the year 2003, the respondent father
never visited his son nor sent any maintenance, while he was himself enjoying his life
fully, on contrary, his demeanour can be imagined from the fact that he had divorced his
wire, left her at the mercy of God, now trying to take away his son, the only hope and
charm in life of the mother. Enough is enough.

We in the wake of above discussion arc unanimous on the point that in the present
circumstances the respondent/father is not at all entitled for the custody of his minor son
Solomon Ali Khan. The petition is, therefore, accepted, however, the respondent/rather
could see and meet his son as and when he likes, once a month at the residence of the
minor son Solomon Ali Khan (mother's house) or any third place fully secured, so that
the minor may not be mishandled and removed illegally by the father, for that matter the
respondent/father would meet the son through S.H.O. concerned, who will be duty bound
to take care of the security of minor at any cost. In the father/respondent being foreigner
could not afford to meet his son every month, it is up to him to see and meet, whenever
he gets opportunity.
Secondly we are also conscious about the sentimental attachment of the father with son,
so in this scenario we are settling time for obtaining the will of the minor, the
respondent/father can apply to the Guardian Judge when the minor son Solomon Ali
Khan reaches to the age of seven (7) i.e. on 13-8-2010) or thereafter. The Court in this
regard may ascertain the choice of the son, as to where, he wants to reside, (with father or
mother) if the result is in negative (against the father) even then in accordance with the
schedule as streamlined above, meeting of father and son shall continue, however, if the
respondent/ father now wants to sec and meet his son, before leaving the country, he may
move the Guardian Judge, who is directed to arrange the meeting.

So far the education and maintenance of the son is concerned, i t will be the responsibility
of the father/respondent.

In this view or the situation the petitioner/mother is strictly directed to cooperate fully
and would not try to make any hindrance or obstacle in the way of meetings of the minor
son with father. In otherwise event the Court shall take serious action against the
petitioner/ mother for flouting and evading the orders of the apex Court.

Order announced no order as to cost. File be consigned to

record.

S.A.K./23/Glt Petition accepted.

P L D 2007 Lahore 576

B efore Muh ammad Jeh an gir A rsh ad, J

Mst. NASREEN ---Petitioner

V e r s u s

ADDITIONAL DISTRICT JUDGE WITH POWER OF GUARDIAN JUDGE,

ALIPUR and others---Respondents

Writ Petition No.20 of 2007, decided on 30th April, 2007.

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5, Sched. & S.14---Guardians and Wards Act (VIII of 1890), Ss.12 & 25---
Custody, of minor and appointment of guardian of minor's property---Matter of
custody of minor would be governed by West Pakistan Family Courts Act, 1964
and not under Guardians and Wards Act, 1890---Matter of appointment of
guardian of minor's property would be entertained and decided by nominated Civil
Judges as Guardian Judges---No revision would be competent under West Pakistan
Family Courts Act, 1964---Final judgment or decree passed in matter of custody of
minor would be subject to appeal in terms of S.14 of the Act--- Principles.

(b) West Pakistan Family Courts Act (XXXV of 1964)---

----Ss. 9 & 14---Guardians and Wards Act (VIII of 1890), Ss.12 & 25---Application for
setting aside of ex parte order or decree---Order of Family Court dismissing
such application---Appeal against---Scope--- Such order, though not covered by
terms "final judgment or decree" would be appealable as of right for being
decision of Family Court within meaning of S.14 of West Pakistan Family
Courts Act, 1964---Principles.

Mst. Mubin Khanam v. Javed Ahmad Khan 1991 MLD 1039 rel.

(c) West Pakistan Family Courts Act (XXXV of 1964)---

----Ss. 5, 7(2)(3), 8(c), 9(5) & Sched.---Guardians and Wards Act (VIII of 1890),
S. 25---Custody of minor---Order of ex parte proceedings against defendant---
Application for setting aside of such order--- Dismissal of application for
being time-barred---Validity---Defendant was not served in person---Ex parte
proceedings were initiated against defendant on basis of proclamation in newspaper
and report of Process Server regarding refusal to receive notice---No notice was
issued to defendant by registered post A/D or courier service or by both with
copies of plaint, schedule of witnesses and documents referred to in S.7(2)(3)
of West Pakistan Family Courts Act, 1964---No notice was issued to chairman of
Union Council where defendant resided---Record did not establish as to whether on
receipt of notice, Chairman of Union Council ever displayed same on Notice
Board of Union Council for a period of seven days and informed the Family Court
after expiry of 'such period that notice had been so dis played per
requiremen t of S.8(3) of West Pakistan Family Courts Act, 1964---Held,
impugned s e r v i c e o f d e f e n d a n t e i t h e r t h r o u g h s u c h r e f u s a l o r b y
proclamation in newspaper could not be considered to be due service being
violative of provision of S.8 of West Pakistan Family Courts Act, 1964.

(d) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 9(5)---Ex parte proceedings, setting aside of---Plea of defendant was that
her address given in plaint was incorrect, thus, report of Process Server
regarding her refusal to receive notice was invalid-- Effect---Such fact could not
be decided in a summary manner, but same c o u l d b e d e c i d e d a f t e r f r a m i n g o f
i s s u e s a n d r e c o r d i n g o f evidence.
(e) Administration of justice---

----Court should always lean in favour of adjudication of causes on merits and

nobody to be non-suited on technical grounds.

Mst. Bundi Begum v. Munshi Khan and others PLD 2004 SC 154 rel.

(f) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Custody of minor---Welfare of minor would be the supreme

and paramount consideration---Principles.

Mst. Razia Bibi v. Riaz Ahmad and another 2004 SCMR 821 and Sardar Hussain
and others v. Mst. Parveen Umeer and others PLD 2004 SC 357 rel.

Akhtar Hussain Khawaja for Petitioner.

Mehmood Ashraf Khan for Respondent No.3.

ORDER

MUHAMMAD JEHANGIR ARSHAD, J .---Mst. Nasreen petitioner is

aggrieved of order dated 4-10-2006 passed by learned Civil Judge 1st Class/Guardian
Judge, Alipur whereby her application for recall/setting aside ex parte order dated
20-4-2005 passed in a guardianship application titled "Ghulam Abbas v. Public-at-
Large" was dismissed and the order dated 1-12-2006 passed by learned Additional
`District Judge (Syed Muhammad Zafar Abbas Sabazwari), dismissing petitioner's
revision against the above order of learned Guardian Judge dated 4-10-2006.

2. The facts in brief are that Ghulam Abbas respondent filed an application before the
Civil Judge/Guardian Judge against the petitioner seeking custody of minor children
namely Mst. Umera Abbas alias Uzmi minor aged 5 years and Fahad Abbas minor aged
2-1/2 years and as the petitioner failed to appear before the learned Guardian Judge
despite service through publication in daily "Sang-e-Meel", Multan, the learned
Guardian Judge vide, judgment dated 20-4-2005 allowed the said application ex
parte and directed the petitioner to hand over the custody of the minors within one month.
The petitioner on 10-6-2006 filed an application seeking recall/setting aside of the above
mentioned ex parte order. The learned Guardian Judge after receipt of the reply and
hearing arguments vide order dated 4-10-2006 dismissed the same holding the same to be
.barred by limitation. The revision against the said order filed by the petitioner was
also dismissed by learned Additional District Judge, Alipur on 1-12-2006. Through
this constitutional Petition both the above mentioned orders have been sought to be
declared as without lawful authority and of no legal effect.

3. At the very outset, I would like to point out that after enforcement of
Family Courts Act, 1964 matters relating to the custody of the minors are now to be
governed by the said Act and not under the Guardians and Wards Act; and only the
matters pertaining to the appointment of guardian of the minor's property are
now to be entertained and decided by the nominated Civil Judges as Guardian
Judges. Since no revision is competent under the Family Courts Act, 1964, therefore,
any final judgment or decree passed in the matters of custody of the minors is
subject to appeal before the District Court/District Judge where the Family
Court is not presided over by District Judge, Additional District Judge or a person
notified by the Government of the rank and status of District Judge or Additional
District Judge in terms of section 14 of the Punjab Family Courts Act, 1964, therefore,
neither the revision filed by the petitioner before the learned Additional District
Judge against the order dated 4-10-2006 seeking recall/setting aside of ex parte order
dated 20-4-2005 .was maintainable, nor the same could be competently entertained
by the learned Additional District Judge as Guardian Judge. However, there is IB another
important aspect of the matter pertaining to the decision of the Family Court
dismissing/rejecting application for setting aside ex parte order or decree. Such like
orders though not covered by the term "final judgment or decree" making them
appealable as of right in such like cases yet the same are definitely covered by the.
words "decision given" as enumerated in section 14 of the Family Courts Act, 1964
and such like decisions though interim in nature, like the present one, are
definitely appealable, otherwise, the same would amount to shutting the doors for the
aggrieved person against such like orders and would also amount to putting a seal even
on patently illegal and without jurisdiction decisions dismissing such application against
ex parte judgments/decrees, etc. like the present one. Since the instant case the learned
Judge family Court refused to set aside the ex parte order dated 20-4-2005, therefore, the
same was definitely appealable being decision of a Family Court, within the
meaning of section 14 of the Family. Courts Act, 1964. Reliance is placed on the
case Mst. Mubin Khanam v. Javed Ahmad Khan 1991 MLD 1039.

4. On merits it has been noticed that the learned Judge Family Court dismissing
application of the petitioner on the ground that same was barred by limitation without
noticing the fact that admittedly the petitioner was never served in person and it was on
the basis or report of the Process Server regarding refusal to receive notice and
further through proclamation in "Sang-e-Meel", Mutlan, whereas in terms of section
8(c) of the West Pakistan Family Courts Act, the learned trial Court did not take
notice of, the fact that neither a notice by registered post acknowledgement due or by
courier service or by both with copy of the plaint, copy of the schedule referred in
subsection (2) of section 7 and copy of documents referred in subsection (3) of said
section, nor any notice to the Chairman of the Union Council where the petitioner
resided, was sent as required by clause (ii) of subsection (c) of section 8. Similarly, it is
not established from the record whether on receipt of the said notice, the Chairman of
the Union Council ever displayed the same on the Notice Board of the Union
Council for a period of seven consecutive days and informed the Family Court after
the, expiry of the said period that notice had been so displayed, per requirement of
subsection (3) of section 8, therefore, impugned service of the petitioner either through
refusal or by proclamation in the newspaper cannot be considered as due service either
under the Family Courts Act or in terms of Order V, Rule 20, C.P.C. as applicable to
the Family Courts in terms of subsection (6) of section 8 of the said Act. Further it was
case of the petitioner in her application filed for recall/setting aside of the ex parte decree
that she was resident of Mohallah Bokhari Uch Sharif, Ahmadpur Sharqia, on which
address she had already filed suits for the return of dowry articles as well as
maintenance against the respondent and he had already entered appearance in those cases
but in the proceedings initiated by the respondent her address was shown of Ward
No.12, Alipur and on the basis of said incorrect address report of refusal was
procured which fact cannot be decided in a summary manner and for that after
framing of issues the evidence had to be recorded. It is established principle of law
that court should always lean in favour of adjudication of causes on merits and
nobody to be non-suited on technical grounds as held in Mst. Bundi Begum v.
Munshi Khan and others PLD 2004 SC 154. In the instant case the learned trial
court dismissed the application of the petitioners without affording her
opportunity of producing evidence in a summary manner. Further it has been
noticed that before passing the order dated 20-4-2005 the learned Judge Family Court
did not record any findings that handing over custody of the minor to the respondent
was in the welfare of the minors which was the only paramount consideration for
deciding custody application. The learned Judge Family Court as well as the
learned Additional District Judge also failed to take notice of the fact that petitioner
was involved in a Hudood case by the respondent and she remained behind the bars
for a considerable length of time. I am, therefore, satisfied that all the
proceedings against the petitioner were not only conducted in violation of
provisions of section 8 of the Family Courts Act but also in haste and arbitrary
manner. Even the order dated 20-4-2005 granting custody of the minors to the
respondent does not indicate that same was passed after application of mind that
the delivery of custody of the minors to the respondent was in the welfare of the
minors which is the supreme and paramount consideration in such like cases as
held by the Hon'ble supreme Court of Pakistan in the case Mst. Razia Bibi v. Riaz
Ahmad and another 2004 SCMR 821 and Sardar Hussain and others v. Mst.
Parveen Umeer and others PLD 2004 SC 357.

5. The upshot of above discussion is that this writ petition is allowed and
the entire proceedings conducted by the learned Judge Family Court including
the order dated 20-4-2005 accepting application of the private respondent and
handing over custody of the minors to him, as well as the order dated 4-10-2006 of
the learned Judge Family Court dismissing petitioner's application for recall/setting
aside the order dated 20-4-2005 and the order dated 1-12-2006 of the learned
Additional District Judge, Alipur dismissing petitioner's revision petition, are set
aside being without lawful authority and the application filed by the
respondent for seeking custody of the minors is declared to be pending
before the learned Judge Family Court who shall decide the same afresh
after recording of evidence and in accordance with law.

S . A . K. /N-53/L Case remanded.

2007 Y L R 402

[Lahore]

Before Muhammad Muzammal Khan and Syed Sajjad Hussain Shah, JJ

Mst. NASIM AKTHAR and 2 others---Appellants

Versus

IQBAL AHMED CHAUDHARI and another---Respondents

I.C.A. No.56 of 2006 in Writ Petition No.18289 of 2005, decided on 1st November, 2006.

West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional

petition---Maintenance to minors---Custody of minors had been given to father by
Guardian Judge---Mother's constitutional petition was dismissed---Minors, on their
own, came back to live with mother and she filed suit for recovery of maintenance
allowance for said minors---Held, mother's right of hazanat was put to rest by
dismissal of her constitutional petition and she was not entitled to claim maintenance
allowance for minors who had reverted to her on their own---Father, in circumstances,
could not be legally bound down to provide maintenance allowance for minors whose
custody was handed over to him.

Muhammad Siddique Awan for Appellants.

Respondent No.1 in person.

ORDER

Appellants assailed the judgment dated 2-2-2006 passed by the learned Single Judge in
Chambers of this Court, whereby on constitutional petition filed by respondent No.1,
order dated 14-6-2005 directing him to pay interim maintenance, was declared to be
illegal and without lawful authority.

2. Succinctly, relevant facts are that custody of two minor daughters and a son was given
by the learned Guardian Judge to respondent No.1 vide his order dated 2-12-2003.
Dispute of guardianship attained finality by dismissal of constitutional petition by this
Court, as far back as in the year 2003-04 and the custody of all the minors was handed
over to respondent No.1. The minors of their own, came back to live with the appellant
No.1 and she filed a suit for recovery of their maintenance allowance. Learned Judge
Family Court cognizant of the suit on 14-6-2005 directed respondent No.1 to pay interim
maintenance allowance at the rate of Rs.900 per month for Mst. Asma minor. Respondent
No.1 aggrieved of direction dated 14-6-2005, filed a constitutionalpetition, which was
accepted as noted above. Appellants, thereafter, filed instant appeal and respondent No.1
in response to notice by this Court appeared.

3. We have heard the learned counsel for the appellants and have examined the record.
Undeniably, controversy regarding custody of the minors stood concluded by dismissal of
appellant's constitutional petition (Writ Petition No.4490 of 2003 on 17-3-2003 and
thereafter appellant's right of "Hazanat" was also put to rest by dismissal of another
constitutional petition (Writ Petition No. 16131 of 2004), on 16-3-2004. After conclusion
of this matter, appellant No.1 was not entitled to claim maintenance allowance if the
minors have reverted to her of their own. In the given circumstances of this case,
respondent No.1 cannot be legally bound down to provide maintenance allowance for the
minors whose custody was handed over to him.
4. Besides the reasons noted above, we are not persuaded to form a different opinion to
the one expressed in the impugned judgment and consequently, dismiss this appeal being
devoid of any merit. There will be no order as to costs.

F.B./N-114/L Appeal dismissed.

2007 C L C 1612

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

Mst. MUNIRA BIBI----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, SHEIKHUPURA and 2 others----Respondents

Writ Petition No.2400 of 2004, heard on 26th June, 2007.

Guardians and Wards Act (VIII of

1890)---

----S. 25---Constitution of Pakistan (1973), Art.199---Constitutional petition---Custody of

minors---Both Guardian Judge and the Appellate Court concurrently dismissed
application of mother of minors under S.25 of Guardians and Wards Act, 1890 for
custody of minors---Courts had appointed respondent brother of deceased father of
minors as their guardian---Petitioner had challenged the concurrent judgments of courts
below---Petitioner, who was mother of minors had claimed that it was in the welfare of
minors that minors should live with her---Case of respondent, who was brother of
deceased father of minors, .was that petitioner was of bad character who along with
others killed her husband and that she had no source of income---Petitioner had failed to
produce any worthwhile evidence in support of her claim for custody of minors---
Petitioner lady had no source of income, .whereas respondent (uncle) was a teacher and
he was looking after the minors and they were getting education---Petitioner allegedly
was living with corrupt persons---Respondent (uncle) had deposed that he could look
after the minors in better manner and that minors did not want to meet petitioner who had
no house---Trial Court had rightly observed that it was in the welfare of minors that they
should remain with respondent (uncle)---Trial Court, in circumstances, had rightly
dismissed application of petitioner for custody of minors and Appellate Court had rightly'
upheld said judgment---In absence of any illegality or infirmity in the impugned
judgment, same could not be interfered with in constitutional jurisdiction of High Court--
Paramount consideration, in determining the question of custody of minor, being welfare
of minor; it was in the welfare of minors that they should remain with their paternal-
uncle/respondent.

Sardar Hussain and others v. Mst. Parveen Umar and others PLD 2004 SC 357 rel.

Tahir Mahmood Khokhar for Petitioner.

Muhammad Tariq Awan for Respondents.

Date of hearing: 26th June, 2007.

JUDGMENT

SYED SAKHI HUSSAIN BOKHARI, J.--- In this constitutional petition, the petitioner
has prayed for setting aside judgment dated 10-10-2003 passed by learned Additional
District Judge, Sheikhupura and order, dated 24-7-2003 passed by learned Guardian
Judge, Sheikhupura.

2. Relevant facts for the disposal of this writ petition are that Mst. Muniran Bibi,
petitioner filed application udder section 25 of Guardians and Wards Act against Master
Bashir Ahmad (respondent No.3) and stated that she was married to Nazir Ahmad and out
of this wedlock two sons and two daughters (Usman Ali aged 10 years, Nasira Parveen
aged 8 years, Iqra Bibi aged 5 years and Ehsan Ali aged 4 years) were born. She further
stated that on the night between 1/2-9-2000 her husband was murdered anti case F.I.R.
No.185 of 2000 was registered at Police Station Safdarabad against petitioner and others.
She was arrested m the said case and sent to jail. The respondent took the minors with
him and also rented out the house of her husband. She averred that she was acquitted on
9-2-2002 and she asked the respondent to give the minors to her but he refused, therefore,
she was constrained to file application. The petitioner stated that it is in the welfare of
minors that they should live with her. The respondent mentioned in reply that on 6-9-
2001 the Guardian Judge, Sheikhupura had appointed him guardian of the minors and
their property acid succession certificate was issued on 26-11-2001 and that Rs. 1,60,000
belonging to the deceased (Nazir Ahmad) have been transferred in the account of minors
on the basis of order passed by Court. The respondent stated that petitioner is of bad
character and she had illicit relations with one Liaqat Ali who was murdered and case
F.I.R. No.34 of 1997 under sections 302, 34, P.P.C. was registered at Police Station
Chowk Azam. She along with others (Sajida and Akram) had killed Nazir Ahmad on 2-9-
2000 because her paramour, LiagatAli had been murdered. She had illicit relations with
Muhammad. Akram and case F.I.R. No.185 of 2000 dated 2-9-2000 under section 302,
P.P.C. was registered at Police Station Safdarabad District Sheikhupw~a and petitioner
was challanecl. The petitioner was acquitted and he had filed appeal against her acquittal
The respondent stated that it is dangerous for the minors to live with petitioner and it is in
the welfare 'of the minors that they should remain with him. The petitioner has not
challenged order of leagued Guardian Judge; dated 6-9-2001 whereby he had been
appointed guardian of person and property of minors. The petitioner is living with her
friends at different places aid she is not in a position to bring up the minors properly.
Learned trial Court framed issues, recorded evidence and dismissed the application
brought by petitioner vide order dated 24-7-2003. The petitioner filed appeal thereagainst,
which was dismissed vide judgment, dated 10-10-2003 passed by learned Additional
District Judge, Sheikhupura. Hence this writ petition.

3. I have heard the arguments and perused the record.

4. As mentioned above Mst. Muniran Bibi, petitioner had filed application under section
25 of Guardians and Wards Act for custody of minors (Unman Ali aged 10 years, Nasira
Parveen aged 8 years, Iqra Bibi aged 5 years and Ehsan Ali aged 4 years). The petitioner
is mother of minors. As mentioned earlier at the tone of institution of application, the
minors were aged about 10, 8, 5 and 4 years but now they are aged about 14, 12, 9 and 8
years. The case of petitioner is that, it is in the welfare of the minors that they should live
with her. However, the case of respondent is that petitioner is of bad character. Also that
she along with others killed her husband and that she has no source of income, therefore,
she is not in a position to look after the minors, hence it is in the welfare of the minors
that they should remain with him. Admittedly Master Bashir Ahmad, respondent No.3 is
brother of Nazir Ahmad (father of minors) and .he is bringing up the minors since the
death of their father. The case of petitioner is that it is in the welfare of the minors that
they should live with her. However, she has failed to produce any worthwhile evidence in
support of her case. She has no source of income. The respondent is a teacher and as
mentioned earlier he is looking after the minors. He appeared as R.W.2 and stated that
minors are getting education. He further stated that petitioner is living with corrupt
persons. He deposed that he could look after the minors in better manner and that minors
do not want to meet the petitioner. The petitioner has no house. He also examined R.W.1,
Bashir Ahmad in support of his case. The statements of R.W.1 and R.W.2 are convincing
and confidence-inspiring and there is nothing on record to disbelieve the same. As
mentioned above petitioner has failed to produce any worthwhile evidence in support of
her case. The order dated 24-7-2003 shows that learned trial Court observed that it is in
the welfare of the minors that they should remain with Master Bashir Ahmad. So in the
circumstances of the case, I find that learned trial Court has rightly dismissed the
application brought by petitioner. The judgment dated 10-10-2003 shows that learned
Additional District Judge has decided the appeal brought by petitioner after appraisal of
entire material available on record. Para.7 of the said judgment reads as under:--

"Onus to prove this issue was on applicant. Applicant herself appeared as A.W.1
and produced one Mehmood Ahmed as A.W.2. She also produced photocopy of
judgment dated 9-2-2002 passed by learned Additional Sessions Judge as Mark
"A". During cross-examination-she admitted that she is working as a Maid
Servant. All of emphasis of her cross-examination was that she is a lady of bad
character and was having illicit relations with some persons. Due to her immoral
life she managed murder of her husband. A.W.2 is employer of appellant. He was
also providing livelihood to appellant. On the other hand respondent produced
oral as well as documentary evidence regarding study of minors. While
scrutinizing evidence produced by both the parties it is established that applicant
is having no proper source of income to look after or bring up minors. She is also
not having any shelter to live therein. Although she is having share in estate of her
deceased husband being his legal heir but in absence of any proper source of
income is not in a position to bring up minors in a better atmosphere and to
provide them education and livelihood. Welfare of the minors is paramount
consideration to be looked into at the time of decision of entitlement for custody
of minors. So, appellant remained failed to prove this issue in her favour which is
decided against her."

It is well-reasoned judgment. There is no illegality or infirmity in the impugned

judgment. It is clear from the evidence on the record that it is in the welfare of the minors
that they should remain with respondent. As mentioned earlier, minors are aged about 14,
12, 9 and 8 years. Today they arc present in Court and they are not willing to live with
their mother (petitioner) rather they want to live with their paternal-uncle (Master Bashir
Ahmad, respondent No.3). Even otherwise in determining the question of custody of
minor the paramount consideration is the welfare of the minor. Reliance can be placed on
the case of Sardar Hussain and others v. Mst. Parveen Umar and others PLD 2004 SC
357. As such it is in the welfare of the minors that they should remain with their paternal-
uncle (Master Bashir Ahmad, respondent No.3). So impugned judgments are just and
proper and there is no justification to warrant interference by this Court.

5. The upshot of the above discussion is that this writ petition has no force and the same
is accordingly dismissed. No order as to costs.

H.B.T./M-405/L Petition dismissed.

P L D 2007 Lahore 300

Before Mian Saqib Nisar, J

LOUISE ANNE FAIRLEY---Petitioner

Versus

SAJJAD AHMED RANA---Respondent

Writ Petition No.9730 of 2006, decided on 29th November, 2006.

(a) Civil Procedure Code (V of 1908)---

---O. VIII, R. 5---Evasive denial---Effect---If statement of fact contained in

plaint/petition is not specifically controverted in written statement and an evasive answer
is given, it amounts to admission.

(b) Pleadings---

---Admission---Scope---No one can be allowed to retract from his admission made in

pleadings, which stands on higher pedestal than ordinary admission made elsewhere-No
one can plead his. case beyond the scope of his pleadings.

(c) Guardians and Wards Act (VIII of 1890)---

---S. 9---Place of residence of minor---Determination---During the period since May,
2005 till August, 2006, minor, in the present case, was in foreign country and was
studying in school---Father admitted such fact in his defence before Court of foreign
jurisdiction---Effect---Such length of time was good enough to mean that minor was
ordinarily residing in that foreign country and not in Pakistan, within the meaning of S.9
of Guardians and Wards Act, 1890.

(d) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Custody of minor---Ulteriorly motivated removal

of minor---Despite restraining order passed by Court of foreign jurisdiction, father
removed minor to Pakistan---Mother of minor sought custody of the minor by invoking
constitutional jurisdiction of High Court---Plea raised by mother was that removal of
minor was ulteriorly motivated and to defeat orders of Court of foreign jurisdiction---
Validity---Having surrendered and submitted to jurisdiction of foreign Court and also
making solemn promise that the child would not be removed, it was inconceivable as to
how, father of minor could think about violating, disobeying and disregarding Court's
order and breached his promise---Such action of father, bringing the child in Pakistan was
oblique, dishonest, ulteriorly motivated and was tainted with fraud to circumvent orders
of Court of foreign jurisdiction and deprive mother of her lawful custody---On account of
pendency of proceedings before Court of foreign jurisdiction and orders passed in favour
of mother and against father, which were binding upon him, he could not retain custody
of the minor on the principles of law, justice, equity and good conscience.

(e) Constitution of Pakistan (1973)---

----Art. 199(1)(b)(i)---Expressions "without lawful authority" and "in an unlawful

manner"---Scope---Such expressions mean that such a custody should not be against or
unauthorized by law; in defiance of law; in disregard or disobedience of law;.
impermissible under law; without excuse and justification of law.

(f) Criminal Procedure Code (V of 1898)---

---S. 491---Habeas corpus order---Jurisdiction of High Court---Scope---If custody of a
person held by another is "illegal" or "improper", order under S.491, Cr.P.C. can be
issued by High Court.

(g) Constitution of Pakistan (1973)---

---Art. 199---Criminal Procedure Code (V of 1898), S.491---Constitutional petition---

Custody of minor---Despite restraining order passed by Court of foreign jurisdiction,
father removed the minor to Pakistan---Plea raised by mother was that such custody of
minor with father was illegal---Validity---If much sanctity was attached to order passed
by Court in Pakistan, then same legal status and sanctity should be conferred and given to
orders passed by Court of foreign jurisdiction, when such orders were passed in proper
exercise of jurisdiction and especially in the circumstances when delinquent party had
surrendered to the jurisdiction of that Court---There were interdictory and residence
orders passed by Court of foreign jurisdiction and also an undertaking had been given by
father, not to remove the minor from care and control of mother and also jurisdiction of
that foreign Court---Bringing the child over to Pakistan and retaining its custody was
"without lawful authority", "illegal" and "improper" in circumstances.

(h) Words and phrases---

----Improper---Meaning.

Black's Law Dictionary 6th Edn., p.757 rel.

(i) Fraud---

----No one can be allowed to have premium of his fraud.

(j) International law---

----Judicial comity, principle of---Applicability---Pakistan is not a pariah, rather a
responsible State and is a part of civilized community of Nations---Judiciary of Pakistan
is fully established and institutionalized and is one of the most important organs of the
State---Interaction of a State as a whole with other Nations undoubtedly is based upon
mutual respect and confidence and this stands true for the judicial organ as well---When
world has squeezed into a global village, it has become expedient that principles of
comity should be strictly applied, adhered and resorted to all levels of the State
institutions---Upon such principle, Court of one jurisdiction, subject to condition that
orders do not contravene any domestic law of country should give the effect to judicial
decisions of Courts of another State, as a matter of deference and mutual respect, even if
no obligation exists to do so---It should be based upon willingness on part of judiciary of
one civilized State to grant privilege and respect to orders of foreign jurisdiction-It is the
matter of mutual accommodation, shown to the orders of each other, especially which are
passed in proper exercise of jurisdiction---Such respect is founded and structured upon
rules of courtesy, civility, affability, amity, consideration, gesture of goodwill and good
fellowship to the orders passed by the Court of other country.

(k) Convention on the Rights of the Child---

----Art. 12---Criminal Procedure Code (V of 1898), S.491---Constitution of Pakistan

(1973), Art. 199---Constitutional petition---Maintainability---Custody---Views of minor--
Despite restraining order passed by Court of foreign jurisdiction (U.K.), father removed
the minor to Pakistan---Mother of minor had sought custody of the minor by invoking
habeas corpus petition---Plea raised by father was that he being legal and natural
guardian of the minor, his custody was not illegal, and the minor wanted to live with her
father in Pakistan---Validity---Orders were passed by Court of foreign jurisdiction, within
proper exercise of jurisdiction and father had not been an upright, fair, honest man, rather
in removing the child, was guilty of showing disrespect and violated Court's orders,
besides breaching his own undertakings---Father had obtained custody in a wrongful
manner, therefore, petition was competent within the ambit of Art. 199 of the
Constitution and S.491, Cr.P.C.---Instead of relying upon the views of minor, High Court
felt expedient to leave it to Court of foreign jurisdiction, which had already passed
requisite order and inter alia on the basis of such report might like to finally decide
whether the child should live with mother or with father---In the matter pertaining to
custody of minor, paramount consideration was welfare of minor and such was also the
rule in U.K.---Though Islamic principles were very much relevant for determination of
such issue but other factors were also relevant---Pakistan Courts could exercise their
jurisdiction only with regard to minors who were ordinarily residing in Pakistan---As the
minor was not ordinary resident of Pakistan and her custody matter was pending
adjudication before Court of foreign jurisdiction, therefore, High Court declined to
interfere in the jurisdiction of competent Court---High Court directed father to hand over
custody of the minor to petitioner, who was real mother of the minor---Constitutional
petition was allowed in circumstances.

Uzma Wahid v. Muhammad Javed Umrao 1988 PCr.LJ 1883; Muhammad Javed Umrao
v. Miss Uzma Wahid 1988 SCMR 1891; Miss Hina Jilani, Director of A.G.H.S. Legal
Aid Cell v. Sohail Butt PLD 1995 Lahore 151 and Sara Palmer v. Muhammad Aslam
1992 KLR Crlo. Cases 417 ref.

Mrs. Nahida Mahboob Elahi for Petitioner.

Dr. A. Basit for Respondent.

Date of hearing: 29th November, 2006.

JUDGMENT

MIAN SAQIB NISAR, J.---This petition was allowed through a separate short order of
even date and the reasons given therein, may be read as an integral part of this detailed
judgment.

2. The petitioner is the mother of Misbah Ahmed Rana (minor), whereas, respondents
Nos. 1 and 2, are father and sister of the minor respectively. According to, the petitioner's
case, the minor was allegedly abducted by respondents Nos. 1 and 2, (hereinafter referred
to as the respondents), from her care and custody illegally and improperly and brought
from Scotland to Pakistan by dodging and deceiving the Law Enforcing Agencies in the
Scotland and in clear violation of the order of the Scottish Court in favour of the
petitioner.
3. Brief facts of the case arc, that the petitioner, a born British National and respondent
No. 1, a Pakistani citizen by birth, who had migrated and settled in U.K., got married in
Glasgow on 22-1-1986 and on account of this marriage four children were born in
Glasgow and are British Nationals by birth. Respondent No.1, also has acquired the
British Nationality. Misbah Ahmed Rana was born on 16-7-1994; the petitioner and
respondent No. 1, were divorced by Blackburn Country Court on 18-10-2001 it is the
petitioner's case that after the divorce, respondent No.1, continued to live at former
matrimonial home of the parties at 19 Moss, Street Blackburn, Lancashire BBI 5 HW.
The children also lived there and attended local School at Blackburn and the parents
enjoyed their joint custody. It is stated in paragraph No.4 of the petition that respondent
No.1 has promised that if the petitioner did not seek orders in respect of the children from
the Court, he would allow her regular weekend and holiday access but he reneged on the
promise and without consulting the petitioner or obtaining her consent, removed three
youngest children from Scotland to Pakistan and occasionally allowed the children to
speak to the petitioner on telephone.

Anyhow, when the minor children were present in Scotland in June, 2005, they were
living with the petitioner and since respondent No.1, had previously removed them from
Scotland without the consent of the petitioner, therefore, she was apprehensive that he
may not do so again and forcibly take the children to Pakistan, thus in these
circumstances, the petitioner filed a petition in the Court of Sessions Scotland and prayed
for protection of interdict and ad interim interdict orders as follows:

(i) It being in the interest of the said children that a residence order providing that
they live with the pursuer should be made and it being better for them that such
order be made, decree should be granted as first concluded for.

(ii) The pursuer being reasonably apprehensive, in the circumstances

condescended upon, that the defender shall attempt to remove the said children
from her care and control or out with the jurisdiction of the Court, is entitled to
the protection of the Court and to an order for interdict as second concluded for.

(iii) In these circumstances and having regard to the balance of convenience an

interim order should be granted as first concluded for.
 (iv) In the circumstances and having regard to the balance of convenience, interim
interdict should be granted as second concluded for.

(Copy of the petition has been filed along with the petition as Annexure-C).

4. The Lord Ordinary of Court of Sessions in Scotland was pleased to pass the following
order on 29th June, 2005, which reads as follows:--

"The Lord Ordinary having heard counsel for the pursuer in Chamber no caveat
having being lodged ad interim grants interdict against the defender from
removing or attempting to remove Adam Ahmed Rana and Misbah Ahmad Rana
the children of the parties from the care and control of the pursuer and from that
of anyone to whom the pursuer has entered the care and control of the pursuer and
from that of anyone to whom the pursuer has entrusted the care and control of
said children or out with the jurisdiction of the Court."

The respondent No.1, who at the relevant time, was residing at 1/Right, 137 Kenmore
Street, Pollock Shields, Glasgow, was served by the Sheriff with the above order on 30-6-
2005. He engaged M/s. Brodies to act as his agents and through them attempted to reach
with the petitioner an out of Court's settlement, which could not materialize. M/s. Brodies
withdrew from the case and informed the court that they no longer act for the respondent
No.1. The temporary Lord Ordinary was apprised of this situation, who on 15th of
November, 2005, was further pleased to pass the following order:--

"The temporary Lord Ordinary, having heard Counsel for the pursuer on the
pursuers' motion enrolled on 11th of November, 2005, dispenses with the
requirements of Rule of Court 23.3. (3), Recalls the Sist granted on 2nd August
2005, ad interim Makes a Residence Order providing that the child Misbah
Ahmed Rana born on 16th of July, 1994 live with the pursuer and in respect that it
is stated in letter No.13 of process, that the Defender's solicitor no longer acts for
him, Ordains the defender to intimate to the Deputy Principal Clerk of Sessions, 2
Parliament Square, Edinburgh, EHI IRQ within fourteen days from the date of
intimation hereof, whether or' not he insists in being the Defender in the action
under certification that failure to do so may result in the Court granting such order
as it thinks fit. Appoints the pursuer's solicitors to serve a notice in terms of Form
30.2 of the Appendix to the Rules of Court together with a copy of this
 interlocutor on the Defender and to lodge a certificate of execution of such service
in process."

The above order was served upon the respondent No.1. The petitioner thereafter,
appointed "The Anderson partnership" as his solicitor, who filed the defences in the Court
on his behalf in June, 2006. It is also the case of the petitioner that in order to ascertain
the views of the minor, the court was pleased to appoint a reporter to contact all the
relevant parties and to prepare an independent report for the court, but on 25-8-2006, at
4-00 p.m. one of Misbah Ahmed Rana's friend came to the petitioner's residence and said
that Misbah has informed her that she is going to London with her sister Tehmina, the
respondent No.2. And on 26-8-2006, the petitioner received a call from Misbah stating
that she is in the company of respondents in Pakistan and the petitioner heard that Misbah
Ahmed Rana; was being dictated what tar say to the petitioner.

On account of the facts mentioned above, it is stated that Misbah is in the illegal and
improper custody of respondents, who both in connivance with each other to outrightly
flout the orders of the Court of Sessions in Scotland, has planned this abduction and has
illegally brought Misbah to Pakistan.

5. The written statement has been filed by respondents, and it has been stated that Misbah
herself abandoned the roof of her mother's house on her own initiative and with her
volition; this happened as the petitioner, started living with Mr. Campbell as his common
law wife; the gentleman is not related to Misbah within the prohibited degree, under the
injunctions of Islam; she even has changed her name as entered in the Birth Register
(Misbah Rana) to Molly Campbell without adopting the legal procedure for it. As Misbah
escaped from the custody of her mother, neither her father nor her elder sister can held
responsible for it; no law enforcement agency in Scotland has either been deceived or
defied. It is reiterated that respondent Sajjad Ahmad Rana and Tehmina has no role
whatsoever to play in the escape of Misbah Rana from the house of her mother in the
circumstances narrated above. Lahore (Pakistan) is the ordinary place of residence of
Misbah Rana. In paragraph No.7 of the reply, it is stated that answering respondent No.1,
took the minor and her brother Adam to U.K., on the desire of the petitioner, to spend
some time with her in Scotland. However, she has exploited this opportunity to obtain an
interim custody and interdict orders from the Court of Sessions in Scotland. In this view
of the matter, the ordinary and habitual place of Misbah is Lahore, where she has also
been enrolled in a proper school. In reply to various paragraphs of the petition, pertaining
to the initiation of the proceedings by the petitioner before the Court in Scotland and the
orders passed by the Court and the defences given by the respondent No.1, are not
specifically controverted by the respondents, either evasive denial has been given in this
behalf or it is stated to be a matter of record. It is, however, emphasized by the
respondents that no abduction of any type has taken place; the minor herself escaped
from the home of her mother; no one either instigated or induced her to do so; besides,
the writ petitioner is not a fit person to hold the custody of Misbah Rana; this is
particularly so as she is living with Mr. Campbell from whom she now has a baby. It is
also stated in the reply that "Sajjad Ahmed Rana is entitled to the custody of the minor,
which is in her welfare. She is entitled to be brought up as a good Muslim girl in Islamic
Environment." The respondents have also mentioned that the case for the appointment of
the guardian has been filed by respondent No.1, about Misbah, which is pending
adjudication in the Court of learned Guardian Court at Lahore.

6. The petitioner has filed the rejoinder to the written statement and it has been
highlighted that in June, 2006, respondent No. 1, through his Agents Anderson
partnership, filed his defences upon which, the Lord Ordinary, was pleased to pass an
order on 30-6-2006, whereby Margaret Hughes, Advocate, Edinburgh was directed to
enquire into and report to the Court on all the facts and circumstances, relating to the care
and upbringing of the child Misbah and to ascertain the views of the child Misbah and the
report to be transmitted to Deputy Principal Clerk of Session 2, Parliament Square,
Edinburgh. If respondent No. l's stand that Misbah wishes to stay with him, is true than
he should be willing to allow Misbah to return home and express her views to the reporter
appointed by the Court of Sessions. If Misbah according to the respondent No.1, was
`escaping her home' then why did he abduct her in presence of the court order dated 29-6-
2005. it is also stated that the Scottish Court was pleased to grant interim residence order
as requested by petitioner dated 15-11-2005 and in June, 2006, respondent No.1,
instructed Messr's Vigil Crawford, who instructed Messr's Anderson partnership as
Edinburgh agents to move a motion seeking an interim residence order; this was opposed
by the petitioner's solicitors and it is during the court hearing that the court ordered that a
reporter should enquire into the facts and circumstances of the case and record the views
of Misbah. In the rejoinder, the petitioner has denied the allegation of the respondents
stated in the written statement that she after having embraced Islam has converted to
Christianity.

7. I have heard learned counsel for the parties. It is argued by Mrs. Nahida Mahboob
Elahi, learned counsel for the petitioner that the respondents have concealed about the
proceedings and the orders passed by the Scotland Court in the petition filed before the
Guardian Court. The minor is the habitual residence of Scotland, where she has been
living since her birth except for few months, when she earlier was brought to Pakistan by
respondent No.1, without the consent and the permission of the petitioner; the whole
family of respondent No.1 is also the resident of U.K., as his mother died in Glasgow, her
sister and other family members live there, therefore, it is the Court, where the minor
habitual residing, which has the jurisdiction to decide about the custody of the minor.
Learned counsel also submits that in the parawise comments, the respondents have not
specifically denied about the proceedings initiated by the petitioner and pending before
the Scottish court, in which, respondent No.1 has not raised any objection to the
jurisdiction of that court, rather has submitted to the jurisdiction of the Court in Scotland.
Further the various orders passed by the Scottish Court have not been disputed. Upon the
proposition about the non-maintainability of the present petition, on account of the
petition for the guardianship filed by respondent No.1, and pending before the Guardian
Court, learned counsel for the petitioner by relying upon the judgments reported as Uzma
Wahid v. Muhammad Javed Umrao 1988 PCr.LJ 1883 and Muhammad Javed Umrao v.
Miss Uzma Wahid 1988 SCMR 1891, states that both the jurisdictions are not
overlapping and they do not exclude each other. Further reliance has been placed upon
Miss Hina Jilani, Director of A.G.H.S. Legal Aid Cell v. Sohail Butt PLD 1995 Lah. 151
to argue that in such circumstances, the custody of the minor should be given to the
petitioner. Learned counsel for the petitioner, has also submitted that the judiciary of
Pakistan, at the highest level and also U.K. and Scotland Judiciary, have entered into a
protocol to return the minor in the case of child abduction by the parents, to the
jurisdiction wherefrom the child has been removed, therefore, the questions about the
welfare of the child are to be best determined where the child ordinarily and habitual
resides and not by the Court, where he/she is brought through abduction and in a deceitful
manner and has violated the Laws in bringing the child to Pakistan. It is also submitted
that in a civilized Nations, the orders passed by the Judiciary of one country is ordinarily
respected and given due weight and importance by the judiciary of the other country.

8. Dr. A. Basic, learned counsel for the respondents, at the very start of his arguments has
expressed his no objection about the maintainability of this petition, on the score of the
initiation and pendency of the guardianship petition filed by the respondent No.1. But
states that the case of the petitioner does not fall within the purview of Article 199 of the
Constitution of Islamic Republic of Pakistan, because the custody of Misbah with her
father, according to the laws of Pakistan, cannot be held to be "without lawful authority".
Besides, section 491 of the Criminal Procedure Code, is also not attracted to the case, as
his custody is neither "illegal" nor "improper".

9. Learned counsel for the respondents has further argued that the minor has not been
abducted by the respondents, rather she on account of the reasons, stated in the reply, has
left the roof of her mother, out of her own free will and therefore, the minor cannot be
compelled to go and live with the petitioner. Dr. A. Basit, submits that according to the
Article 12 of the Convention on the Rights of the Child, which has been ratified by
Pakistan in the custody matter, the opinion of the minor has to be given due weight and
respect. It is also stated that Hauge Convention on the Child abduction, though has been
ratified by the U.K. but not by Pakistan, therefore, the principles laid down in the Hauge
Convention are not applicable in this country. It is submitted that the omission to ratify is
not without a purpose, but it has not been approved, as it would contravene the provisions
of Articles 2, 2-A and 227 and the principles of policy enshrined by the Constitution of
the Islamic Republic of Pakistan. Dr. A. Basit, argued that the concept of abduction of a
child by the parent, is not applicable in the Pakistan. The learned counsel has also
emphasised that the values and the culture in Pakistan, regarding the family set up is all
together different from Western World and the religion has great impact upon the family
set up and the society as a whole, therefore, a Muslim child born to a Muslim family,
needs to be brought up according to the Islamic value and the culture and this is not
possible in the U.K., where the social norms are in direct contradiction.

He argued that the child today is in Pakistan and has previously been resided over here;
she by descent is a Pakistani citizen and is ordinary and habitual resident of Pakistan,
living with his family including the father Sajjad Rana, sister Tehmina, brother Adam and
her stepmother and step-baby sister and has also been studying in Pakistan in the School,
therefore, it is the Pakistani Courts, which have the jurisdiction to determine the question
about the custody of the minor. Dr.A. Basit, has stated that the custody of Misbah is not
being held in an unlawful manner, as has been contemplated by Article 199(b) of the
Constitution of Islamic Republic of Pakistan, the right of custody has been protected by
the order of the learned Guardian Judge, on the petition, filed by respondent No.1, which
order is still in force. He states that the writ be dismissed on the short point that the
custody is not unlawful; however he has submitted that the parental jurisdiction, as
contemplated by section 3 of the Guardians and Wards Act, 1890 and the Letters Patent of
this Court should be exercised; he stated that the proof about the child being the
ordinary/habitual resident of Pakistan is that she earlier had come to Pakistan with the
permission of the mother, with the intention to permanently reside in Pakistan and has
been going to the school since the year, 2003, and thereafter, visited Scotland
occasionally; the learned counsel submits that when in the year 2003, the minor was
brought to Pakistan, the petitioner never moved the Scottish Court or propounded any
grievance that the child was abducted,. According to the Passport of the family, it is clear
that the minor Misbah along with other arrived in Pakistan on 3-3-2003 and stayed here
till 17-5-2003, at that time, Misbah was of 9 years of age; she came back to Pakistan in
June, 2003; the minor was admitted in Punjab Grammar School Modal Town; she lived in
Pakistan, till June', 2005 and when she went back to U.K., to spend the holidays, the
interdict order dated 29-6-2005 was procured by the petitioner, it is emphatically argued
that respondent No.1, has never surrendered to the jurisdiction of the Scottish Court,
rather he had asked his solicitor to challenge the jurisdiction of the court, as Misbah was
not the ordinary or habitual resident of Scotland, which plea was not taken by the
solicitor in the defences and this compelled the respondent No.1, to dismiss the solicitor,
thereafter, the proceedings against the respondent has gone un-represented and are ex
parte, therefore, any admissions made by his solicitor are of no legal significance and
value and are not binding upon him; it is submitted that it is the welfare of the minor,
which is very key factor to be taken into consideration by the Court while deciding the
custody issue and the element of surrender to the jurisdiction of the foreign court, does
not arise. Lastly, it is submitted that the last word in the matter belongs to the minor
Misbah and she time and again, through the media and before this Court has
unequivocally avowed that she would like to live with his father in Pakistan and has not
been abducted. In support of his contentions, reliance has been placed on the case
reported as Sara Palmer v. Muhammad Aslam 1992 KLR Cr1. Cases 417.

10. Having heard the arguments of both the sides, I find that the following are the key
questions, which need to be adjudged and determined in this case:--

(1) Whether Misbah Rana, the minor, is the habitual resident of the Scotland
(U.K.) and therefore, the Court there has the jurisdiction or she ordinarily resides
in Pakistan and it is the Pakistani Court, which possesses the jurisdiction to decide
the question about her custody.

(2) What is the effect of the proceedings and certain orders passed by the Scottish
Court regulating the custody of Misbah Rana, pending final determination of the
claim brought by the petitioner against respondent No.1 in Scotland.

(3) Whether the custody of Misbah Rana, held by respondents, is "without lawful
authority" or "in unlawful manner" or "illegal or improper", so as to bring the case
of the petitioner, within the purview of Article 199 of the Constitution of the
Islamic Republic of Pakistan and/or section 491, Cr.P.C.

(4) Whether Misbah Rana, has come to Pakistan, out of her own free will and
there is no element of any abduction or deceitful removal of the child, from the
jurisdiction of the U.K's Courts in violation of the Court order and the
undertaking given by the respondent No.1, to the Court there and what is the
effect of her opinion in the light of the orders passed by the Court in Scotland.

(5) Whether the question about the welfare of the minor, should be adjudged by
this Court in the light of the Islamic norms and culture or such issue should be left
for the determination of the Court in Scotland.

QUESTION NO.1.
12(sic). While answering this question, I may refer to certain facts, which are admitted
between the parties; the petitioner by birth is a U.K citizen, whereas, respondent No.1
was born in Pakistan, but has acquired the British National since long and has dual
nationality; they were married in U.K and all their children are born British Nationals;
they along with their children have been permanently living in U.K; the children have
been studying in U.K and after the divorce between the parties, Misbah Rana was in the
joint custody of the parents till 2003. However, the disputed facts are, that it is claimed by
the petitioner that the girl was removed by the respondent No.1 to Pakistan without her
consent, whereas, it is the stance of respondent No.1, that it was the understanding of the
petitioner that the child was brought here with the intention that the entire family of the
said respondent, shall settle in Pakistan. It is further the case of the respondents that the
minor has been in Pakistan since 2003, but no proof in this behalf has been filed by the
respondents, rather the counsel for the respondents has relied upon certain admissions,
which according to him, are made by the petitioner in the condescendence filed by her in
the Scottish Court, such as "in 2003 without either consulting with the pursuer or
obtaining her consent the defender unlawfully removed the three youngest children from
Scotland and moved them to Pakistan to reside there permanently with him". She
according to Dr. A. Basit has also admitted in the said document that since 2003 the
minor is permanently and continuously residing in Pakistan. However, when asked to
substantiate the same with reference to any such admission, only inferences were drawn
by him and no specific portion was brought to the notice of the Court, whereas the
respondents have not brought on record any document including the Passports of the
child that she has been constantly living in Pakistan since 2003. No School record has
been attached to the reply, which could show her study over here. However, when the
child was asked about her stay and study in Pakistan she narrated it to be about a year.

From the above, it remains unclear about the length of the period, the child stayed in
Pakistan. But this ambiguity stands removed on account of the fact that when the notice
was served upon the respondent No.1 by the Scottish Court regarding the custody
petition/claim of the petitioner filed there, he engaged M/s Brodies as his agents, who on
his behalf, attempted to settle the matter outside the court and addressed a letter dated 22-
7-2005, to the solicitor of the petitioner in which an offer was made "Our client has
advised that the children confirmed that they wished to reside with their mother for the
time being but that they would wish to contact with our client, both residential and non-
residential, when he is in the country every few months. Our client is at present prepared
to respect the children's' summons for calling in the event that you do wish to do so,
please let us know so that we may enter appearance. It is further stated therein "It is
hoped that the parties will now be able to agree matters amicably and that progress of the
Court action will not be necessary." In this letter, or any other correspondence from the
respondents' side, it was never claimed that the child is not the habitual resident of
Scotland, rather was ordinarily residing in Pakistan and thus the question about her
custody cannot be settled in Scotland even through a compromise. Above all, respondent
No.1, filed his defences to the claim of the petitioner before the Scottish Court, through
his solicitor "The Anderson Partnership" and made very clear, unambiguous and
unequivocal admissions, which settles the factual aspect of the matter regarding the
habitual or the ordinary residence of Misbah Rana. In paragraph No.1 of the defences
filed by the solicitors in June 2006, it is clearly conceded that "Admitted that Misbah
Ahmed Rana (Misbah Rana) is habitually resident in Scotland. Admitted that this
Court has jurisdiction". Not only that, in the same paragraph, it is admitted that "The
defender is permanently resident of Glasgow. He is domiciled in the United Kingdom.
He is a British Citizen. He possesses a British Passport. He travels with the benefit of a
passport issued by the authorities in the United Kingdom. He works part-time. In the
year from May 2005 to May 2006, he lived in the United Kingdom at 137 Kenrnure
Street, Glasgow although he visited Pakistan from time to time". This admission made by
respondent No.1, in his defences being part of his pleadings is binding upon him and he
therefore, now cannot resile or withdraw from such admissions on the excuse that his
solicitors have drafted the defences and made these admissions without his instruction.

The argument of Dr. A Basit, that it is on account of such unauthorized act on part of the
solicitors that the said respondent has removed them, which is reflected in the order of the
Temporary Lord Ordinary dated 15-11-2005 and therefore, the admission has no binding
effect upon his client. I am afraid, that this contention is not well founded, rather it is
misconceived because at the time when the above order was passed, the respondent No.1,
was being represented by M/s Brodies and not by M/s "The Anderson Partnership",
which had filed the defences on his behalf, as is clear from the month and year mentioned
thereupon i.e. June, 2006; besides in the defences, in the last line of paragraph No.1, it is
stated that "In the year from May 2005 to May, 2006, he lived in the United Kingdom."
This clearly shows that the defences were not filed prior to 15-11-2005, rather in June
2006. Be that as it may, till date, respondent No.1, has neither taken any action against
the solicitors for their alleged unauthorized act of filing the defences nor has ever applied
to the Court of Scotland that such defences should not be considered to have been filed
upon his instructions and on his behalf. Rather the petitioner had filed these defences
along with the present petition and in paragraph No.12 thereof, it is stated "Respondent
No.1 put in appearance through his solicitors "The Anderson Partnership" and filed
defences in the Court of Sessions against claim of petitioner (copy of Defences filed by
respondent No.1, are attached as Annexure D"). In their written reply to this para, it is
stated "matter of record"; again no plea has been taken that the defences are unauthorized
or without instruction, for which the solicitor was removed. In the above situation, I am
constrained to hold that where the statement of fact contained in the A plaint/petition is
not specifically controverted in the written statement and an evasive' answer as above is
given, it amounts to an admission, therefore, on the p r i n c i p l e that no one can be
allowed to retract from his admission made i n t h e pleadings, which stands on a higher
footing and pedestal than the o r d i n a r y admission made elsewhere and that no one can
plead his case, b e y o n d the scope of his pleadings, I fail to understand, as to how the
r e s p o n d e n t s can take up the plea that the minor is not the habitual resident o f
U . K . Examining the second part of the question, if Misbah Rana, is t h e ordinary
resident of Pakistan and thus the court here has the j ur is di ct io n t o decide about her
custody? Suffice it to say that no proof has been g i v e n by the respondents that she was
continuously living in Pakistan, s ince M a y , 2003, till May 2005; the travel documents
and the school record o f t h e minor has not been filed along with the reply. Anyhow,
even a s s u m i n g that during this period, she was here, the question is, if s h e w a s
brought to Pakistan with the consent of the petitioner to p e r m a n e n t l y settle here; the
argument of Dr. A. Basic, is that it was under t h e arrangement between the parties and
such arrangement s h o u l d b e presumed, because for the recovery of the custody, the
p e t i t i o n e r never brought any proceedings either in U.K or Pakistan. I am a f r a i d , no
such inference can be drawn against the petitioner, for her i n a c t i o n or silence. Not only
the above, during the period since May, 2 0 0 5 , till 25th August, 2006, Misbah Rana was
in U.K and was s t u d y i n g i n the school, and according to respondent No.1's own
admission in his defences, he states "In the year from May, 2005 to May 2006, he lived
i n the United Kingdom." This length of time was good enough to m e a n that the child
was ordinarily residing in U.K and not in Pakistan, w i t h i n the meaning of section 9 of
the Guardians and Wards Act, 1890. T h i s question is accordingly answered.

Question No.2

13. While a n s w e r i n g this question, it may be stated that as has been highlighted in the
n a r r a t i o n of the facts, the petitioner had propounded the claim about the c us to dy of
the minor before the court in Scotland and on 29-6-2006, the c o u r t was pleased to grant
ad interim interdict order (injunction) against the respondent No.1, from removing or
attempting to remove Misbah Rana from the care and control of the petitioner or the
jurisdiction of the court. This order was duly served upon the respondent No.1 on 30-6-
2005. Though he attempted an outside court settlement with the petitioner through M/s
Brodies but never moved to the court for the withdrawal of the said order; thereafter, ' the
residence order dated 15-11-2005 was passed by the Temporary Lord Ordinary. This
order was again never assailed or sought to be recalled. Rather respondent No.1 through
his solicitors "The Anderson Partnership" filed his defences and prayed for the residence
order in his favour regarding the minor and for such an ad interim order. In the alternate,
he suggested for the meeting and contact with the minor, as has been requested in
paragraph No.1 of the conclusion of the defences; he never questioned the passing of the
two orders mentioned above and instead in specific words promised and undertook that
"The Defender has no intention of removing Misbah Rana from the care and control of
the Pursuer without the Pursuer's consent or without an Order of Court." It has not been
pleaded or established by the respondents that the consent of the petitioner or the order of
the Court was obtained for removing the child to Pakistan. Thus having surrendered and
submitted to the, jurisdiction of the Scottish Court and also making solemn promise that
the child shall not be removed, it is inconceivable, as to how, the said respondent could
think about violating, disobeying and disregarding the Court's order and breach his
promise, except that his action of bringing the child here is oblique, dishonest, ulteriorly
motivated and is tainted with fraud to circumvent the orders of the Scottish Court and
deprive the petitioner of her lawful custody.

In view of the above, I hold that on account of the pendency of the proceedings before the
Scottish court and the orders passed in favour of the petitioner and against respondent
No.1, which were/are binding upon him, on what principles of law, justice, equity and
good conscious, he can retain the custody of the minor.

Question No.3

14. According to Article 199 (1) (b) (i), of the Constitution of the Islamic Republic of
Pakistan, 1973, this Court has the power and the jurisdiction to satisfy itself, that the
custody of a person is not being held by another "without lawful authority" or "in an
unlawful manner". The above are the expressions of art and in spirit, it means that such a
custody should not be against or unauthorized by law; in defiance of law, in disregard or
disobedience of law, impermissible under the law, without excuse and justification of law.
According to section 491 of Criminal Procedure Code, a habeas corpus order can be
issued by this Court, if the custody of a person held by another is "illegal" or "improper";
thus the proposition which comes for direct consideration is whether respondent No.1 is
holding the custody of the minor under the sanction of law or otherwise. The case of the
petitioner is that there are interdict and residence orders passed by the Scottish court and
also an undertaking has been given by the respondent No.1, not to remove the minor from
the care and control of the petitioner and also the jurisdiction of that court, therefore,
bringing the child over to Pakistan and retaining its custody in breach of the above, is
thus "without lawful authority", "illegal" and "improper".

Dr. A. Basit, learned counsel for the respondents states that respondent No. 1 is the father
of the minor and he is the legal and natural guardian and according to the Personal Law
of the minors, in force in Pakistan, he needs no permission of the court to retain the
custody as the minor has reached the age beyond the "Hizanat", (a period, during which a
mother under the Personal Law, may keep the custody of a female child). I have
confronted Dr. A. Basit, Advocate with the proposition that "if there is a litigation
between the parents regarding the custody of the minor child before the Pakistani Court
and the Court has passed an injunctive order in favour of the plaintiff, restraining the
defendant of the case from removing the custody of the child and if in violation of the
order, child is removed, whether the custody of the defendant who even may be a father,
can be said to be lawful" he candidly replied that "such custody shall be unlawful". I fail
to understand, if that much sanctity is attached to the order passed by the Court in
Pakistan, why should the same legal status and sanctity should not be conferred and given
to the orders passed by the Court of foreign jurisdiction, when such orders have been
passed in the proper exercise of the jurisdiction and especially in the circumstances that
the delinquent party has surrendered to the jurisdiction of that Court. Moreover, the word
"improper" has even a wider meaning and according to the Black's Law Dictionary Sixth
Edition at page 757, it is defined to mean "Not suitable; unfit; not suited to the character,
time, and place. Not in accordance with fact, truth, or right procedure and not in accord
with propriety, modesty, good taste, or good manners." Undoubtedly, the removal of
Misbah Rana to Pakistan is a deceitful and defrauding act on part of the respondents. The
manner in which, the child has been brought to Pakistan, no other conclusion can be
drawn except that the respondents hatched a conspiracy and with the clear object to
circumvent, defeat; and frustrate the order of the Scottish court and to deprive the
petitioner, who was holding the custody in a lawful manner, brought the child to Pakistan
by alluring the child. The respondents are guilty of playing fraud and it is settled principle
of law that no one can be allowed to have the premium of his fraud. Before parting with
this question, I feel expedient to mention that Mrs. Nahida Mahboob Elahi. Counsel for
the petitioner, has argued that as the minor has been brought to Pakistan in a deceitful and
illegal manner, and this action falls within the purview of the child abduction by a parent,
therefore, this Court should exercise its power under the Judicial Protocol entered in
between the Judiciary of Pakistan and U.K in January 2003, at the highest level. Dr. A.
Basit, has challenged the legal sanctity of this Protocol on number of grounds. I do not
find appropriate to dilate upon the above, because in my considered view the present
petition can be decided without going into the question about the validity of the Protocol.
To my mind, the principle, which is squarely applicable to the case in hand, is of "judicial
comity". In this behalf, it is held that Pakistan is not a pariah, rather a responsible State
and is a part of a civilized community of Nations; the Judiciary of this country is fully
established and institutionalized and is one of the most important organs of the State.

The interaction of a State as a whole with other Nations undoubtedly is based upon the
mutual respect and confidence and this stands true for the judicial organs as well. Now
when the world has squeezed into a global village, it has become expedient that the
principles of comity should be strictly applied, adhered and resorted to all the levels of
the State institutions. Upon the above principle, the court of one jurisdiction, subject to
the condition that the orders does not contravene any domestic law of the country, should
give the effect to the judicial decisions of the Courts of another State, as a matter of
deference and mutual respect even if no obligation exists to do so. This should be based
upon the willingness on part of the judiciary of one civilized State to grant privilege and
respect to the orders of the foreign jurisdiction; it is the matter of mutual accommodation,
shown to the orders of each other, especially which are passed in the proper exercise of
jurisdiction; this respect is founded and structured upon the rules of courtesy, civility,
affability, amity, consideration, gesture of goodwill and good fellowship to the orders
passed by the Court of the other country and this is exactly one of the rule in my mind on
account of which, I am constrained to hold that as in this case, the orders were passed by
the Scottish Courts within the proper exercise of jurisdiction and the respondent No.1,
has not been an upright, fair, honest man, rather in removing the child, is guilty of
showing disrespect and has violated the Court's orders, besides breaching his own
undertakings, and has obtained the custody in a wrongful manner, therefore, this petition
is competent within the ambit of Article 199 of the Constitution of Islamic Republic of
Pakistan and section 491 Cr. P.C.

Question No.4

15. Though it is the case of the respondent No.1 that Misbah Rana has left the roof of the
mother out of her own free will and this impression was propagated by the respondents
through the media as well. I have examined the minor in my Chamber; she stated that her
mother gave her. Haraam food to eat; she was not permitted to offer the prayer as per the
Muslim faith and that one Mr. Campbell was living with her mother without there being a
marriage between the two, therefore, she does not want to live with her mother. When
questioned about the "Halaal" and "Haraam", the child does not know the distinction; she
does not know how to recite the prayer. I do not disbelieve her that may be on account of
Mr. Campbell's presence or any other reason, she was/is not willing to live with the
petitioner, but at the same time, I cannot overlook that it is not a case where the child of
his own, after leaving the house of one parent, wants to go and live with the other parent.
In this case, it is a totally different scenario. Despite the interdict and residence orders of
the court in Scotland, the promise/undertaking given by respondent No.1, the child has
been brought to Pakistan. When further asked, the child concedes that her Pakistani
passport was procured by respondent No.1, nor ticket was purchased by him, she in the
company of respondents flew from Glasgow to Lahore (Pakistan) and all this was
arranged and managed by her father. The question is, even if child wanted to come to
Pakistan but respondent No.1 was fully aware that there are the orders against him and he
also has undertaken not to remove the child from the care and control of the petitioner
and out of the jurisdiction of the Scottish Court. Thus in this view of the matter, as a law
abiding and prudent man, instead of going by the desire of the minor, he should have
taken the court into confidence and procured the permission. This was not done, rather
after coining to Pakistan, the respondents commenced a media campaign to justify the
action; the respondent No.1, filed Writ Petition before this court claming that the police is
harassing him and wants to interfere in his custody and send the child back to U.K.
.Comments were sought from the police authorities at the highest level, who denied the
allegations; he thereafter, initiated guardianship petition in the Guardian Court and
procured the injunctive order, when there was no serious threat to him from wretched
lady, who was abroad. All these events speak for themselves and lead to the conclusion
that it is a case of deliberate and deceitful removal of the child by the respondents. The
child as mentioned earlier, was allured to leave the roof of the mother's house and the rest
was all taken care by the respondent No.1. Now the said respondent by taking the shelter
under the litigation in Pakistan wants to perpetuate his illegal custody.
16. As mentioned earlier, though the minor wants to live in Lahore (Pakistan) with his
family and according to the Article 12 of the Convention on the Rights of the Child, the
opinion of the child who is capable of giving an opinion, should be given weight. In my
view such opinion should have been expressed before the Scottish Court, where the
matter between the parties is pending and the Court in order to ascertain the opinion and
views of the minor, has already appointed a Reporter vide order dated 30-6-2006. Thus
instead of relying upon the views of the minor myself, I feel expedient to leave it to the
Scottish Court which has already passed the requisite order and inter alia on the basis of
such report may like to finally decide, whether the child should live with the mother or
with the father.

Question No.5

17. As far as the law in Pakistan is concerned, in the matter pertaining to the custody of
the minor, the paramount consideration is the welfare of the minor. I understand this also
is the rule in U.K. Though Islamic principles are very much relevant for the
determination of the above issue, but other factors are also relevant, however, the
Pakistani Courts shall exercise their jurisdiction only with regard to the minor, who are
ordinarily residing here. As Misbalt Rana is not the ordinary resident of Pakistan and her
custody matter is pending adjudication before the Court in Scotland, therefore, I would
not like to interfere in the jurisdiction of the competent Court.

In the light of what has been stated above, this petition is allowed; respondents are
directed to hand over the custody of the minor Misbah Ahmed Rana, within seven days
from today to some Senior Female Officer of the British High Commission, who shall he
responsible to send the minor onward to Scotland, where her custody should be restored
to the petitioner; respondents are also directed to hand over the Passports of Misbah
Ahmed Rana to such Officer of the British High Commission for her journey.

M.H./L-25/L Petition allowed.

2007 P Cr. L J 1928

[Lahore]

B efore Fazal-e-Miran Chauhan, J

SHAH BANO----Petitioner

Versus

STATION HOUSE OFFICER (S.H.O.), POLICE STATION TANDLIANWALA and

another----Respondents

Criminal Miscellaneous No.715/H of 2007, decided on 7th August, 2007.

Criminal Procedure Code (V of 1898)---

----S. 491---Guardians and Wards Act (VIII of 1890), Ss.12 & 25---Custody of minor---
Petition for---Petitioner (mother) had prayed that her minor son aged 5 years, who was
illegally removed by respondent/ex-husband of the petitioner, be recovered and his
custody be handed over to her---Petition under S.491, Cr. P. C., no doubt could be moved
even during pendency of application under Ss.2S & 12 of Guardians and Wards Act, 1890
when there was apprehension of removal of ward from the territorial jurisdiction of the
court or the mother who was contesting the case with zeal and vigour for regaining of the
custody, especially when the minor was removed from her custody illegally by .the father,
but present was not a case of forcible .illegal removal---Petitioner, earlier filed
application under S.491, Cr.P.C. before District Judge alleging that her minor son was
removed illegally by the respondent---District Judge dismissed- said application by
observing that minor was not removed forcibly, but there was dispute about the custody
of minor---District Judge directed the petitioner to file an application under Ss. 12 & 25
of Guardians and Wards Act, 1890 before Guardian Judge---Petitioner never challenged
said order and after remand of the case she disappeared and did not appear before the-
Guardian Judge---Petitioner, by her own conduct, established that she was not entitled to
any relief under S.491, Cr.P.C.---Paramount consideration would be the welfare of the
minor---Minor presumed to be well acquainted with his father/respondent, who was also
his natural Guardian---No direction could be passed to declare the custody of minor with
respondent/father to be illegal---Petition was dismissed, in circumstances.

Muhammad Javed Umrao v. Miss Uzma Vahid 1988 SCMR 1891 and Abdul Rehman
Khakwani and another v. Abdul Majid Khakwani and 2 others 1997 SCMR 1480 ref.

A.D. Nasim for Petitioner.

Muhammad Yawar Ali for Respondent No.2.

Muhammad Asghar Abbas Nasim.

ORDER

FAZAL-E-MIRAN CHAUHAN, J.--- By filing this criminal miscellaneous, it is prayed

that Nalain Muhammad, minor son of the petitioner aged 5 years illegally removed by
respondent No.2, ex-husband of the petitioner, be recovered and his custody be handed
over to the petitioner.

2. Brief facts of the case are that; the petitioner Shah Bano and respondent No.2
Muhammad Ayub got married according to Muslim rites and Nikah was solemnized on
11-7-1999 and a son namely Nalain Muhammad was born from the wedlock. The
relations between the parties became strained and the petitioner was divorced by
respondent No.2 on 13-10-2004. On 10-2-2005, the petitioner moved an application
under section 491, Cr.P.C. for recovery of minor Nalain Muhammad, alleging therein that
the relations between the spouses became strained and the petitioner shifted to her
parent's house and on 20-1-2005, the minor child was removed illegally by respondent
No.2. The learned District Judge, Faisalabad, by its order, dated 2-3-2005, dismissed the
criminal miscellaneous by observing that the minor was not removed forcibly, -the
dispute is that of custody of the minor and directed the petitioner to file an application
under sections 12 and 25 of Guardians and Wards Act before the Guardian Judge,
Faisalabad. It also transpired from the order of learned District Judge that the application
under section 25 was already pending before the Senior Civil Judge, Faisalabad. This
order of the learned District Judge was not challenged by the petitioner. On 23-2-2005,
she moved an application under section 12 for interim custody of the minor. The
Guardian Judge, by its order, dated 9-3-2005, directed respondent No.2 to hand over the
custody of the minor to Shah Bano till 11-3-2005. This order was challenged by
respondent No.2 by filing an appeal, which was heard and accepted by learned Additional
District Judge, Faisalabad by its order, dated 25-3-2005, setting the order, dated 9-3-2005
of Guardian Judge, Faisalabad. This order of learned Additional District Judge,
Faisalabad was challenged by filing Writ Petition No.6278 of 2005. The learned Single
Judge in Chambers accepted the writ petition and set aside the order, dated 25-3-2005
holding that the appeal would be deemed to be pending and parties were directed to
appear before the learned lower Appellate Court who shall decide the question of interim
custody of the minor keeping in view the welfare of the minor. Thereafter, the petitioner
contracted marriage with Gulzar Bari and did not appear before the learned Additional
District Judge, Faisalabad after remand. She did not appear before the Guardian Judge,
Faisalabad in the application under sections 25 and 12 and the same were dismissed in
default on 16-12-2006. Thereafter, on 21-5-2007, the petitioner moved second application
under section 25 of Guardians and Wards Act for custody of the minor and also prayed
for interim custody of the minor. Reply to this application was filed by respondent No.2.
He raised as many as thirteen preliminary objections regarding maintainability of the
petitions, concealment of previous litigation at Faisalabad and contracting of two
marriages, during this period respondent No.2 also filed an application under sections 25
and 12 of Guardians and Wards Act in the Court of Guardian Judge, Faisalabad. Both the
petitions are pending disposal.

3. It is argued by learned counsel for the petitioner that; the present petition is
maintainable despite pendency of application under section 25 of Guardians and Wards
Act. It is a case of illegal removal of the minor by respondent No.2 and in this view of the
matter; this Court has the jurisdiction to pass an order and direct respondent No.2 to hand
over the custody of the minor to the petitioner, as she is entitled to the custody of the
minor during the pendency of application under section 25 of Guardians and Wards Act.
Further argues that; it is in the welfare of the minor that his interim custody be given to
the petitioner. It is denied that the petitioner contracted fourth marriage with one Mazhar,
after getting divorce from Gulzar Bari. Reliance has been placed on .the case-law
reported as Muhammad Javed Umrao v. Miss Uzma Vahid 1988 SCMR 1891 and Abdul
Rehman Khakwani .and another v. Abdul Majid Khakwani and 2 others 1997 SCMR
1480.

4. Conversely, learned counsel for respondent No.2 opposed this petition contending that;
it is not a case of removal of the minor from the custody of the petitioner. The petitioner
left the minor with respondent No.2.and went to the house of her parents way back in
September, 2004. The petitioner was divorced by respondent No.2 on 13-10-2004 and
thereafter, she moved an application under section 491, Cr. P. C. on 20-2-2005, which
was dismissed by the learned Additional District Judge, Faisalabad on 2-3-2005 and this
order was not challenged by her and the finding of learned Additional District Judge that,
it is not a case of snatching of the minor attains finality. Thereafter, the petitioner moved
petition under sections 25 and 12 of Guardians and Wards Act on 23-2-2005. Further
states that; the petitioner had failed to establish that the minor was in his custody and was
illegally removed by respondent No.2. His application under sections 25 and 12 was
dismissed for non-prosecution as she was not interested to prosecute the same, because
she lost her interest in the minor after contracting third marriage with Gulzar Bari. The
petitioner was a divorcee before she contracted marriage with respondent No.2. After she
was divorced, she contracted third marriage with Gulzar Bari and thereafter with one
Mazhar. This conduct of the petitioner shows that during 2005-2006, she enjoyed her
marriages with Gulzar Bari and Mazhar and now after getting divorce from the two later
husbands, she had filed second application at Tandlianwala under sections 25 and 12. All
the facts and previous litigation has been deliberately concealed by the petitioner to
misguide this Honourable Court. Finally argues that; the case-law cited, by learned
counsel for the petitioner has no bearing on this case. Facts of those cases are altogether
different. The petitioner, by her own conduct, disentitled herself of the relief, claimed in
the case.

5. I have heard learned counsel for the parties and perused the record. Since, there is
protracted litigation between the parties at different forums for getting the custody of the
minor Nalain Muhammad. The relations, had never been congenial between the spouses
and the marriage tie could not succeeded and separation was made between the parties;
hence, keeping in view the gravity of factual controversy and welfare of the minor, the
Courts always opt to exercise their parental jurisdiction in order to facilitate the welfare
of the minor. Allegedly, on 20-1-2005, the minor was illegally removed by respondent
No.2, whereas, the petitioner filed criminal miscellaneous for the recovery of the said
minor before the District Judge, Faisalabad, who vide order, dated 2-3-2005 dismissed
the petitioners' application with the finding that, the minor was not removed forcibly; so
far the matter related to the custody of the minor and the petitioner was directed to move
application under sections 12 and 25 of Guardians and Wards Act before the concerned
Guardian Judge.
6. From the finding of the learned District Judge, Faisalabad, it came to knowledge that;
the application under section 25 of Guardians and Wards Act was already pending before
the Senior Civil Judge, Faisalabad. This fact was concealed by the petitioner at that time-
and adopted a novel way to get the custody of the said minor and thereafter the petitioner
did not challenge the order passed by the learned District Judge, which attained finality.

7. From the controversy of the parties, one thing is apparent that' the parties had remained
in litigation in order to let down each other and none of them had taken care for the
minor. As far as conduct of the petitioner, she left the minor with respondent No.2 and
went back to her parents' house and subsequently, on 13-10-2004, respondent No.2
divorced the petitioner. Consequently, the petitioner instead of pursuing the matter
regarding custody of the minor, she contracted third marriage with one Gulzar Bari and
did not pursue her case before Guardian Judge, Faisalabad, which application was
dismissed in default on 16-12-2006. After getting divorce, she as .alleged by the
respondent, started living with one Mazhar. This all shows that petitioner was never
interested in the custody of the minor seriously. Now her second application under
section 25 and section 12 are pending before Guardian Judge, Tandlianwala, Faisalabad,
who shall hear and decide the same in accordance with law.

8. While hearing both the learned counsel for the parties, the petitioner was provided
opportunity to meet the .minor namely Nalain Muhammad and the said minor seemed to
be quite alien towards his mother i.e. petitioner and emotional attachment presumed to be
leaned towards his father respondent. No.2 due to the fact that since the divorce, the
mother-petitioner did -not attend to the minor and had been engaged in entering into
marriage with other persons and as consequence of such. The law cited by the learned
counsel for the petitioner does not apply to the facts of this case. There is no cavil with
the proposition that petition under section 491, Cr.P.C. can be moved even during
pendency of application under sections 25 and 12 of the Guardians and Wards Act, when
there is apprehension of removal of ward from the territorial jurisdiction of the Court or
the mother who is contesting .the case- with zeal and, vigour for regaining of the custody
especially when the minor is removed from her custody illegally by the father. In this
case, as held by the learned District Judge, Faisalabad .way back on 2-3-2005, that it is
not a case of forcible illegal removal. The petitioner never challenged that order. Rather
she after remand disappeared and did not appear before the Guardian Judge, Faisalabad.
As discussed in the foregoing pas s the petitioner by her own conduct established that she
is not entitled to any relief under section 491, Cr.P.C.

9. In such circumstances, it is the discretion of the Court to exercise its parental

jurisdiction and keeping in view the protracted litigation between the parties; the
paramount consideration would be 'the welfare of the minor, hence, the minor presumed
to be well acquaintance with his father-respondent No.2, .who is also his natural
guardian. The petitioner, if so advised may approach the appropriate forum for the
custody of the minor. At this juncture, no such direction can be passed to declare the
custody of the minor to be illegal, hence, this petition having no merit is hereby
dismissed.

H.B.T./S-150/L Petition dismissed.