ZAFAR IQBAL CHAUDHRY, J Brief facts giving rise to the filing of this petition under section 491, Cr.P.C.
Are that the petitioner was married to respondent No,1 on 28-4-2006 in Canada and the couple was blessed with a son namely Muhammad Abdullah on 27-1-2007 in USA. With the passage of time due to cruel attitude of respondent No,1 the spouse could not keep their matrimonial fold intact and differences arose between the parties which construed the petitioner to settle herself in Canada on 19-4-2007 with her two month's son. Respondent No,1 filed a suit for custody of the minor in the superior Court of New Jersey, USA and the petitioner filed a separate suit in Ontario Court of Justice at Canada. Both the suits were decided in favour of the petitioner and a meeting scheduled was prepared according to which the father had to meet his son in Buffalo New York for twenty-four hours. On third meeting respondent No,1 had kidnapped the child and removed him to Pakistan, hence this petition.
2. The learned counsel for the petitioner submits that respondent No,1 has illegally removed the child from the custody of the petitioner. The matter was already decided by the superior Court of New Jersey, USA and Ontario Court of Justice, Canada according to which the custody was granted to the petitioner and a schedule of meeting of the minor with respondent No,1 was settled and during third meeting he had removed the custody of child from USA to Pakistan and in this way he has committed a heinous criminal offence. He also manoeuvred to prepare fictitious passport of the minor. Keeping in view the judgments passed by the foreign courts the matter has already settled between the parties, therefore, the custody of the minor may be returned to the petitioner.
He continues to maintain that on the complaint of the petitioner FBI has also initiated criminal proceedings against respondent No,1 which are still going on. He further submits that after the aforesaid incident the superior Court of New Jersey, USA has suspended the rights of visitation of respondent No,1 and this fact is established by an order attached with the filed at page No,17.
3. On the other hand the learned counsel for respondent No,1 states that as the child was not brought up properly it was not possible for the respondent to keep the eyes closed from this fact and due to this reason the child has been removed from USA to Pakistan so as to be looked after properly and according to his own wishes. Respondent No,1 has also filed an application under section 25 of the Guardians and Wards Act before the learned Guardian Judge at Lahore for the custody of the minor and the learned Guardian Court has taken cognizance of the matter, therefore, the child cannot be hand over to the petitioner because temporary custody has already been granted to him by the learned Guardian Judge. According to him the matter requires evidence and cannot be decided by this Court through this petition. The learned counsel for the respondent also submits that the respondent is not in a position to go to USA and face the litigation because criminal charges have initiated by the foreign countries and FBI is investigating this case, therefore, it will be in the interest of minor that he should be remained with him in Pakistan.
4. After hearing the learned counsel for the parties and perusal of record with their assistance it is clear that the marriage between the spouses was solemnized in USA and they were blessed with minor son. After arising out of some disputes between the parties the matter regarding custody of the minor detenu was dealt with by the superior Court of New Jersey, USA and Ontario Court of Justice, Canada and custody was given to the petitioner by both the Courts. Respondent No,1 was allowed to visit the child for twenty-four hours as per schedule settled by the Courts between the parties. The clause 8 of the judgment passed by the superior Court of New Jersey; USA is mentioned below:-- "8. Order that neither party shall travel with the minor child to any other country other than the United States of Canada and specifically, should travel only within New York, New Jersey and the Province of Ontario with the minor child B without further order of the Court. "
' The respondent in violation of the order passed by the foreign courts took away the minor to Pakistan without seeking permission from the courts. On this act of the respondent admittedly criminal proceedings have been initiated against him and the visiting terms of respondent No,1 have also been suspended by the foreign courts. The argument advanced by the learned counsel for respondent No,1 that the judgment passed by foreign Courts have no binding force in Pakistan is not tenable because both the parties have contested this issue before foreign Courts arid after fulfilling all the legal formalities the superior Court of New Jersey, USA handed over the custody of the minor' to the petitioner and respondent No,1 has not challenged that order any further which had already attained finality. Removal of the minor in violation of the order, dated 11-2-2007 passed by the superior Court of New Jersey, US is not only mala fide on the part of respondent No,1 but this was also a criminal act for which he is being proceeded there. Even otherwise keeping in view the age of the minor he can only be looked after properly by his mother but not the father specially when the father is not in a position to visit the European countries as per his own statement due to criminal action against him. The custody of the minor cannot be given to respondent No,1 because it will amount to deprive the minor detenu from the National of USA and Canada because due to criminal proceedings against respondent No,1 in the above said countries it is not possible for him to live or stay there. Moreover the previous conduct of respondent No,1 also shows that he can take child anywhere to escape himself from the courts of law.
5. So far as the proceedings under section 25 of the Guardians and Wards Act are concerned, that are based on mala fide of the respondent No,1 and admittedly he removed the child from the custody of his mother from USA which does not need any evidence for assuming the jurisdiction of the Guardian Judge at Lahore. 1 am afraid the argument of the learned counsel for respondent No,1 that as the respondent has filed an application before the Guardian Judge, the minor cannot be handed over to the petitioner is without any force. As also the argument of the learned counsel for respondent No,1 that the order passed by the superior Court of New Jersey, USA and the Ontario Court of Justice, Canada are not applicable in Pakistan also do no carry any force. The orders passed by the foreign courts are applicable in Pakistan.
' Reliance is placed on the case of The Attock Oil Co. Ltd. Rawalpindi and 5 others v. Dr. Ghaith R.
Pharaon and 22 others 1994 SCM R 811 and Grosvenor Casino Limited, Shahrah-e-Kamal Attaturk, Karachi v. Abdul Malik Badruddin 1997 SCM R 323. In this way respondent No,1 has already exhausted two rounds of litigation in USA and Canada and he cannot be permitted to start third round of litigation at Pakistan.
6. In view of above it is clear that the matter of custody has already been decided from the foreign courts where the parties were residing and admittedly the petitioner as well as the respondent are citizens of USA. Even otherwise keeping in view the age of minor namely Muhammad Abdul it is proper that the custody should remain with the petitioner because she is the most suitable person being mother who can properly look after him. In view of above custody of the minor is handed over to the petitioner. Her passport which she has surrendered before the Court vide order, dated 15-5-2008 will be returned to her forthwith.
7. The learned Deputy Attorney-General will inform the Ministry of Interior to exclude the name of the petitioner from the Exit Control List immediately.
8. The respondent if has any grievance regarding the order passed by the superior Court of New Jersey, USA or Ontario Court of the Justice, Canada, can approached to the same Court in this regard. This petition is disposed of in these terms.