' KHALIL-UR-REHMAN RAMDAY, J.---On 26-4-2006, we had passed the following order in Criminal Petition No,183-L of 2006:--- "For reasons to be recorded later, this petition is converted into an appeal which is allowed as a result whereof the order dated 20-2-2006 passed by the learned High Court in Criminal ' Misc.37-H of 2006 and the order dated 24-1-2006 passed by the learned High Court in Criminal Misc. No,309-HB of 2005, are set aside. As a further consequence thereof, the custody of the two minor children, namely, Mariyam Mukhtar Almas and Mursaleen Almas is handed over to their mother, namely, Ms. Razia Almas alias Mst. Razia Rehman petitioner.
2. British passport No,705488019 belonging to Mst. Razia Almas, which she had deposited in this Court as a guarantee for not removing the children from the country during the pendency of this petition before this Court, is returned to her after keeping a photocopy of the same . In the circumstances, the restriction imposed by this Court on Mst. Razia Rehman alias Razia almas through an order dated 24-3-2006 regarding travel abroad is also re-called.
3. Under the order of this Court Muhammad Azeem Almas respondent has returned the British Passports of the two minor children bearing Nos. 102270018 and 040468369 to Mst.Razia Almas."
2. Hereunder are the said reasons for passing the said order.
3. Mst. Razia' Rehman petitioner is a British National having born in England of parents who at one time belonged to Pakistan. It appears that she had earlier married one Rehman out of which wedlock a boy, namely, Ubaid-ur-Rehman was born. According to Mst. Razia petitioner, the said Rehman died in an accident whereafter she married Muhammad Azeem Almas respondent in Manchester in the year 1998 out of which wedlock two children, namely, Ms. Mariyum Mukhtar Almas and Mursaleen Almas were born.
' It further appears from the record that the parties, along with the above named three minor children i,e, Ubaid-ur-Rehman who was the petitioner lady's son from her earlier husband and the two minor children born out of the said later wedlock came over to Pakistan around the year 2001 and started living in Multan. It is the claim of the petitioner-lady that she was being continuously mal-treated by her husband while living in Multan and that she along with her said children were being virtually kept in confinement in her said matrimonial home which compelled her mother living in Manchester in England to come to Pakistan and to file a habeas corpus petition in the High Court seeking liberation of the petitioner-lady along with her above mentioned son, namely, Ubaid-ur-Rehman and that it was through an order passed by the learned High Court pursuant to Criminal Misc.222-HB of 2005 that the petitioner and her said son Ubaid-ur-Rehman were recovered from the house of the respondent and were then set at liberty on 29-6-2005. It was added that while filing the said Habeas Corpus petition, the mother of the petitioner, for reasons best known to her, had not sought recovery of the other two minor children of the petitioner born out of her marriage with the respondent which then necessitated the filing of a further petition by the petitioner in the Lahore High Court on 2-8-2005 bearing Criminal Misc. No,309-H of 2005 for the recovery of her said two minor children, namely Mariyum and Mursaleen which did not yield any fruit essentially on the ground that the petitioner had entered into a compromise with the respondent with respect to the custody of the said minor children whereby she had waived her right of HIZANAT (right of the mother to the temporary custody of minor children). The petitioner then felt compelled to file another Habeas Corpus petition in the Lahore High Court on 20-2-2006 bearing Criminal Misc. No,37-H of 2006 which was dismissed by the said learned High Court through an order dated 20-2-2006 on the ground of dismissal of her earlier abovementioned Habeas Corpus petition.
5. This is, what then led the petitioner-lady to this Court through the above mentioned Criminal Petition No,183-L of 2006.
6. As has been noticed above, the petitioner is a British citizen and so are her two minor children in question. From the record as also from the proceedings before us it transpires that the family moved to Pakistan around the year 2001 having lived in England for about four years; that the respondent was adamant on the family continuing to reside in Pakistan while the petitioner-lady, allegedly, on account of the treatment meted out to her by the respondent, was not willing to oblige and wished the family to return to England and that the matrimonial disputes which consequently followed led to the separation of the two spouses and the ultimate dissolution of their marriage. It further appears that there is no possibility of the said two parents reuniting or even the two residing in the same country i,e, either in Pakistan or in England. The unfortunate situation for the two minor children which has thus evolved is that the said two children could either be living with their mother in England or with their father in Pakistan and they unfortunately have to be separated, at least for the time being, from one of the two parents.
7. The difficult question which thus confronts us is to select one of the said two parents with whom the said minors would be living for the present.
8. It is not denied that according to the Muslim Personal Law, the mother has the preferential right to HIZANAT (temporary custody of the minor) till the minor attains the age of seven in the case of males and the age of puberty in the case of a female minors. It is also not denied that the minors in question have still not reached the said ages. It is also anun-deniable fact that according to the law of the land, any agreement reached between the two parents, inter alia, regarding the custody of the minor children is neither valid in law nor even enforceable. Therefore, even if it be presumed that the petitioner-lady had, through some alleged compromise which she is however, denying, waived her right of NIZANAT, the said compromise or agreement had no binding force in the eyes of law. Nothing could be brought on record e.g. The petitioner having re-married or not being of a good moral character which could hay. Dis-entitled the petitioner mother to her right of HIZANAT vis-a-vis the two minor children.
9. This important aspect of the matter appears to have escaped the notice of the Hon'ble Judge Who had decided the earlier Habeas Corpus petition i,e, Criminal Misc. 309-HB of 2005. And what had then escaped the notice of His Lordship deciding the later Habeas Corpus petition filed by the present petitioner I e. Criminal Misc.37-H of 2006 was that an earlier decision in a Habeas Corpus matter could never be permitted to operate as res judicata with respect to any such subsequent petition.
10. These are then the reasons which had persuaded us to pass the above quoted order on 26-4- 2006.
11.However, before we part with this judgment, we feel compelled to notice that while the two parents of the minors in question may have developed the kind of feelings against each other which were not permitting them to live together any more but the fact remains that for the two minor children, one is their mother and the other is their father and they need the care, the love and the affection of both of them. What disturbs us further is that in case the petitioner-lady decides to take the said minors back to England then they would be deprived, at least for some years, of the said care and affection of their father which may not be in the interest of the minors and would not be conducive to their welfare. It would, therefore, be for the good of the said children if their father met them, even occasionally.. But then he is living in Pakistan and would obviously not be free to enter United Kingdom at his will.
12. Faced with this situation and also in view of a PROTOCOL ON CHILDREN MATTERS signed between the Judiciaries of the United Kingdom and Pakistan, we would expect the British High Commissioner in Pakistan and the relevant authorities in the United Kingdom to assist and facilitate the respondent father if and when he desired to visit the said minors in United Kingdom.
13. The office shall send a copy of this judgment to His Excellency the British High Commissioner in Pakistan for his information who may then like to send a copy of the same also to Lord Justice Thorpe, Head of International Family Law in United Kingdom for the information of his Lordship.