1. ' MIAN SAQIB NISAR, J.---With the detailed judgment to follow, this petition is being disposed of inter alia on the following reasons:-
(a) Admittedly, the petitioner and respondent No,1, got married in Scotland and all their children including Misbah Rana (the minor), were born there; after the divorce between the parties, for some time, they have been enjoying the joint custody of their minor children; it is in 2003, that respondent No,I claims to have come to Pakistan along with his children for the purpose of permanently settling here. However, it is not established from the record, if Misbah Rana has been living in Pakistan continuously since 2003, because she according to respondent No,1's counsel was admitted to School in Pakistan only for about nine months before proceeding to Scotland in May, 2005. The minor Misbah Rana is a British National, though she also has a Pakistani citizenship on account of decent of being the daughter of respondent No,1, but except for a very short period, throughout, has been living in Scotland; these facts are sufficient to establish that the minor is the habitual resident of the Scotland Above all, the respondent No,1, in paragraph No,1 of his defences filed before the Sessions Court of Scotland in response to the claim of the petitioner, has conceded 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." It is also conceded in a very clear and unequivocal terms that "Admitted that Misbah Ahmed Rana (Misbah Rana) is habitually resident in Scotland." By virtue of such clear admission, it stands settled that Misbah Rana was/is the habitual resident of Scotland and thus the Scottish Court could competently decide the dispute between the parties about the custody of the minor. In addition to the above, as the respondent No,1 has admitted himself to be the permanent resident of U.K. The argument of the respondents' counsel that Misbah Rana was the resident of Lahore (Pakistan) and in this behalf, an admission has been made by the petitioner in her rejoinder and also the condescendence filed before the Scottish Court, is not well founded.
2. ' The contents of the condescendence and the rejoinder, if read in their proper context, it hardly constitutes any admission as argued. But the admissions made by the respondent No,1 in his defences are so unequivocal and eminent that these cannot be ignored and on the basis of the above, it can be safely held that Misbah was the habitual resident of Scotland. Therefore, the interdict and residence orders passed by the Scottish Court, were competently passed and arc binding upon the respondents.
(b) In pursuance of the claim of the petitioner, the Court of Scotland, was pleased to pass an interdict order in the following terms:-- `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 Ahmed 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.'
3. ' This order was duly served upon respondent No,1 by Sheriff; respondent No,1, engaged M/s. Brollies to act as his agents and attempted to reach an outside Court settlement with the petitioner, thus M/s. Brodics, as per the letter addressed to the solicitor of the petitioner dated 22-7-2005, offered '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 contact with our client, both residential and nonresidential, 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. Furthermore it is stated that "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". It is clear from the above, that no issue about the non-residence of the minor in Scotland or about the jurisdiction of the Scottish Court was raised by respondent No,l. Anyhow, the solicitor of the respondent No,1, thereafter, refused to pursue the matter on his behalf and withdrew from the proceedings and informed that they no longer acts for him. Temporary Lord Ordinary was apprised of the situation, who on 15-11-2005, was pleased to pass the following order:-- "The Temporary Lord Ordinary, having heard Counsel for the pursuer on the pursuer's motion enrolled on 11th of November, 2005, dispenses with the requirements of Rule of Court 23.3. (3), Recalls the Sits 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."
4. ' This order too was served upon the respondent No,1, who engaged M/s. The Anderson Partnership as Solicitors, who on his behalf filed the defences in the Court in June, 2006. Paragraph No,1 of the defences postulates, 'Admitted that this Court has jurisdiction'. Not only that, in the same paragraph, it is mentioned that 'in the year from May, 2005 to May, 2006, he lived in the United Kingdom at 137 Kenmure Street, Glasgow, although he visited Pakistan from time to time. 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'. But still unfortunately, the child was brought by the respondents to Pakistan.
5. ' On account of the above also, it is crystal clear that at ml level, the respondent No,1, either took the objection that Misbah Rana was not the habitual resident of Scotland or the Scottish Courts have no jurisdiction in the matter. Thus as the said respondent has submitted and surrendered to the jurisdiction of the Court of Scotland and made a promise and undertook not to remove the minor from the care and control of the petitioner and also the court, he was under a legal obligation not to breach the orders of the Court and his undertaking. But he in a deceitful and unbecoming manner brought the minor to Pakistan.
6. ' The argument on behalf of the respondents' counsel that the minor herself wanted to leave the roof of her mother and come to Pakistan out of her free will, has no force, because even if she desired to do so, it was the duty of the Respondent No,1 to have apprised the Court of such a development and obtain necessary orders in this behalf, rather arranging for the escape of the child from the jurisdiction of the Scottish Court.
7. ' The further argument of learned counsel for the respondents that as the above noted defences were filed by the solicitors, without due instructions from respondent No,1, and unauthorized admissions were made that 'the minor is habitual resident of the Scotland' and that 'the Court has the jurisdiction', therefore, such solicitor was removed. Resultantly, these admissions have no legal value and are not binding upon his client. When questioned, he stated that the removal of the solicitor was made before the order dated 15-11-2005, was passed by the Temporary Lord Ordinary, as this fact of removal is clearly mentioned in the said order. I am afraid, that the above submission is not well-founded, because according to the defences, which are placed on the record by the petitioner and not disputed by the respondent No,1, it is very much clear that these were filed after 15-11-2005 and somewhere in the month of June, 2006, as in the last line of paragraph No,1 of the defences, it is mentioned that 'In the year from May, 2005 to May, 2006', duly establish that these were filed by M/s. The Anderson Partnership, after the removal of previous solicitors of respondent No, l. Moreover, a reference to these defences has been made in paragraph No,12 of the noted petition, and in written reply of the respondents, they have only stated 'matter of record'; no plea has been raised that such defences were filed without or against the instructions of the respondent No,1 and were unauthorized and that the solicitor, who was responsible for filing the defences, was removed by respondent No,1 in consequence thereof.
8. From the above, I am constrained to conclude that the respondent No,1, having himself admitted the jurisdiction of the Court in Scotland and submitted and surrendered thereto and promised not to remove the child from the care and control of the petitioner and the Court, was debarred to bring the child to Pakistan. This in the facts and circumstances of the case is flagrantly illegal, a deceitful and a dishonest act on part of the respondents.
(c) The maintainability of the present petition has not been questioned by the counsel for the respondents, on the ground of the institution and pendency of the guardianship petition filed by respondent No,
1. Rather Dr. A. Basit, Advocate, has candidly stated that he would be happy, if the matter is decided by this Court even by exercising its parental jurisdiction; the jurisdiction vesting in this Court, under the High Court Letters Patent and Section 3 of the Guardians and Wards Act.
9. However, his objection about the competency of the petition is that as the custody of the minor with respondent No,1, is not 'without lawful authority' or 'in unlawful manner', or 'illegal or improper', therefore the writ/order in the nature of habeas corpus cannot be issued; he states that father of a minor is a legal and natural guardian and therefore, he cannot be said to be retaining the custody illegally.
10. However, when questioned, that if a Pakistani Court has passed an order directing not to remove the child from the custody of a parent by the other and the order is violated, whether the removal would fall within the ambit and scope of Article 199 and section 491 ibid, he concedes to the proposition. Obviously, if the above rule is applicable regarding the orders passed by the Courts of Pakistan, I fail to understand, as to why, the same rule cannot be extended to the valid orders of the foreign jurisdiction, especially, to which jurisdiction the defaulting party has surrendered. Therefore, in exercise of my jurisdiction, both under Article 199 of the Constitution of Islamic Republic of Pakistan and section 491, Cr.P.C. 1 declare that the present petition is competent and maintainable.
(d) The other proposition involved in the matter that under Article 12 of the Convention on the Rights of the Child, to which, Pakistan and U.K. Are the signatories, the view and opinion of the minor is very important, and as in this case the minor has expressed her view through Media and before the Court that she does not want to go back to Scotland and live with her mother, rather would stay with her father in Pakistan, therefore, in the light of above, and in respect of such opinion this petition should be disallowed. I have considered the above plea and find that in the order dated 30-6-2006 passed by the Lord Ordinary, a reporter has been appointed to ascertain the views of the minor and this order still is in force: 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. Besides, I have examined and interviewed the child in my chamber, though she wanted to live in Pakistan, but in my view, the reasons given by her that she is being prevented by the petitioner to lead her life in lines and according to the Islamic virtues seems to be tutored. At present, she is under the influence of respondents and therefore, much weight and importance cannot be given to her opinion.
(e) As regards the proposition raised before this Court by the counsel for the respondents that as the child professes Islamic faith, therefore, it is not in her welfare to send her back to U.K., where the culture and norms are fundamentally in contradiction to the Islamic injunction, suffice it to say that the question about the welfare of the minor, can only be decided by a Court where the minor is habitually residing. In this case, as has been admitted by the respondent No,1, in his defences before the Scottish Court and also held by this Court, the minor is habitually resident of Scotland, therefore, I would not like to interfere in the jurisdiction of that Court regarding the determination of the issue of the welfare. Let the respondent No,1, raise these pleas before the Court in Scotland.
11. ' 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 arc also directed to hand over the two passports of Misbah Ahmed Rana to such Officer of the British High Commission for her journey.