' IFTIKHAR MUHAMMAD CHAUDHRY, C 1.---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. Stately 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. I 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, party's' 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 herein below 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,l.
' 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 shill 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.