' MIAN SAQIB NISAR, J.---This petition under Article 199(1)(b)(i) of the Constitution of Islamic Republic of Pakistan, 1973 has been filed by the maternal grand-parents of Sana Saleem Syed Shah (aged 13 years) and Abrash Syed Shah (aged 6 years) (hereinafter referred to as the `minors') through the Third Secretary and Vice Consul of the Austrian Embassy in Islamabad seeking the release of the minors and handing over their custody to them, who shall be taken to Austria.
2. Briefly, the facts of the case are that on 11-1-2008 respondent No.1 ("the respondent"), mother of the minors, accompanied by them was arrested at Lahore Airport; on search of luggage of the family, 20 Kgs and 875 grams heroin was recovered, thus, a case F.I.R. No,4/2008 under section 9(c)/15 of C.N.S.A., 1997 was registered with Police station Anti-Narcotics Force, Lahore against the said respondent, she since then, as an under trial prisoner, is confined in Central Jail Kot Lakhpat, Lahore; the minors are also so confined with their mother, especially for the reasons that at the time of her remand before the Magistrate on 12-1-2008 she requested "that I want to keep my children along with myself in judicial lock-up, because I am foreigner and has no relation or friend in Pakistan at this time who will take care of my children."
' The respondent is an Austrian national, so are the minors who were born there on 23-2-1996 and 20-3-2003 respectively; according to their birth certificates produced by the petitioners, the genuineness whereof is not disputed by the lady, the name of the minors' father is Syed Iqbal Hussain Shah. It may be pertinent to mention here that another son of the respondent namely Amer aged about 18/19 years is presently in Austria in the custody of the petitioners (grand parents) under the (Austrian) Court's order dated 19-1-2004.
' On 24-6-2008, the respondent wrote a letter (in her own handwriting) to the Austrian Embassy for sending the minors to Austria so that they could live with her parents (the petitioners). It is expedient to reproduce certain portions of this letter, which reads as under:-- "I request for repatriation of my children Sana, Ibrash and Amer Syed Shah to Austria. My parents are ready to take care of children ' My eldest" son Amer holds an own passport with valid Visa for one year. My younger children Sana and Ibrash are endorsed to my passport with valid visa for one year, and the passport is at the police office Narko, also my only keys of our apartment in Vienna, Austria, what they will need to enter their home.
' My eldest son Amer Syed Shah will be informed on time by my lawyer, to be able to travel with his younger sister and brother, when their travel documents will be ready and also the tickets for all three children.
' Please I request for our children clothes, their laptop and 2 mobiles and the apartment keys from Vienna, Austria, which all is at the NARKO OFFICE Lahore
3. It seems that the Austrian Embassy upon the above letter made efforts to send the minors to Austria, but could not succeed as the jail authorities required a Court order in this regard; pursuant thereto, the petitioners moved a custody petition before the Austrian Court and vide order dated 25-2-2009 the district Court of Josefstadt has allowed them the temporary custody. In this behalf, it is observed that:-- "With the help of the Austrian Ministry of European and International Affairs they want to enable their grandchildren to come back to Austria. In order to achieve this, they need at least temporary custody for their grandchildren . They consider it very important for Sana to be able to get back to school. Also Ibrash would be starting school in September, 2009 Since the release on bail of their mother failed, there is - not even temporarily -- a chance of release in sight. For the children it is more than necessary to go back to a regular life outside of prison, especially for Sana, since her school-attendance was interrupted abruptly."
' Hence this petition.
4. The learned counsel for the petitioners has made reference to the provisions of Article 199(1)(b)
(i) of the Constitution of Islamic Republic of Pakistan, 1973 and section 491 of Criminal Procedure Code to argue that the minors are in an improper and illegal custody, therefore, they should be released and given in the petitioners' custody. It is also submitted that the mother herself has made a request that they be sent to her parents abroad; it is in the welfare of the minors to live with their grandparents and elder brother Amer and to have proper education; the parents are involved in drug trafficking and have blatant track record.
5. This matter came up for hearing on 19-3-2009 when Mr. Rizwan Abbasi, learned counsel for the respondent, apprised this Court that Mirza Saleem Baig Mughal, ex-husband of the respondent, who is the real father of the minors, has already filed a petition under section 25 of the Guardians and Wards Act for their custody, which is presently pending adjudication before the Court of Miss Nadia Ikram, Family/Guardian Judge, Islamabad. Confronted with the above, Mr.Bajwa, the petitioners' counsel, stated that Mr. Mirza and Syed Iqbal Hussian Shah, who has been convicted abroad (Austria) in drug trafficking, is one and same person, therefore, is disentitled to the custody.
In the situation, it was found expedient to seek clarification from the respondent; the relevant portion of the order reproduced below shall explain her stance:-- "3. Melitta Syed Shah/respondent No,1, when asked, if Mirza Saleem Mughal is the same person, she denies; it is stated by her that she married to Mirza Saleem Mughal on 24-12-1991 and has been divorced by him about 6 years back. It is thereafter that she married Iqbal Hussian Shah, her marriage is registered in the marriage office of the city of Eisenstadt Osterreich, Austria; though, it was on 9th July, but she does not recall the year."
6. Be that as it may, the learned counsel for the respondent when questioned, specifically stated that this petition is competent and maintainable, the minors at present are in improper and illegal custody, the respondent also wants that they should not stay in jail for a single day; it is however, submitted that she is ready and willing to hand over the custody of the minors to their father who, according to the counsel, under the Islamic Law is their legal and natural guardian and is entitled to the custody as per the law laid down in Ahmed Sami and 2 others v. Saadia Ahmed and another 1996 SCM R 268 and Mst. Sultan Zari v. Nisar Muhammad and 2 others 1998 M LD 1173. Mr. Abbasi has submitted that according to the statement of the respondent dated 19-3-2009 Mirza Saleem Baig and Syed Iqbal ~Hussain Shah are two different persons, the minors are the children of Mirza Saleem Baig who has divorced the respondent about six years ago and it is thereafter that she married Syed Iqbal Hussain Shah; Mirza Saleem has never been involved in any drug trafficking and therefore, has a right to the custody of his children, which the respondent as a mother also concedes.
' It is expedient to observe here that the parentage of the minors recorded in the birth certificates, the genuineness whereof is admitted by the respondent, is Syed Iqbal Hussain Shah; in his bail petition moved by Mr. Mirza (in the case in which the respondent has been booked) before the learned Special Judge, C.N.S., Lahore, he is named as alias Syed Iqbal Hussain Shah; in the bail granting order of the Court which was argued by Mr. Rizwan Abbasi, Advocate his name is so written. In the light of the above when questioned on 26-3-2009, the respondent stated that earlier due to the language problem (which is not correct as she could speak and write good English), she mentioned that Mr. Mirza and Mr. Shah are two different persons, but she admitted that he is one; this statement of her made in the Court was duly endorsed by her counsel as well. This to my mind has considerable reflection upon her conduct and veracity. Anyhow, it has been conceded by the respondent's counsel that it shall be against the welfare of the minors if they are compelled to live with their mother in Jail, thus he has suggested two options; firstly, to send the minors to SOS Village, which was also desired by their mother when she appeared on 24-3-2009 and secondly, to give them in the custody of their father Mirza Saleem Baig Mughal, who has initiated proceedings in this behalf. It is submitted that the minors are the respondent's only hope of life, who has been implicated in a false case and if they are removed from the jurisdiction of this Court and sent to Austria and prevented to meet the mother, she may not survive. It is also argued that Amer, who had gone to visit the grand parents in Austria, has been held there as the grand parents have procured an order from the Austrian Court, he though intends to come back to meet his parents, but is restrained on account of the court's order. As regards the custody order of the Austrian Court is concerned, it is stated that such is not binding on the Pakistani Court and is not enforceable here.
7. Ch. Muhammad Sadiq, the learned Additional Advocate-General representing the Superintendent Jail and the State has submitted that though the minors are Austrain national, but their father is a Pakistani; they presently are within the jurisdiction of Pakistani Court, therefore, through habeas corpus proceedings they should not be allowed to be removed from the jurisdiction of this Court; besides that they are Muslims and sending them to secular society shall affect their faith. It is stated that any view expressed by the Austrian Court in its judgment while deciding the custody matter of Amer is restricted to that case and should not prejudice the mind of the Court in these proceedings. It is lastly submitted that for the guardianship and custody issue, the Guardian Court is the only forum having exclusive jurisdiction, therefore, the petitioners should restore thereto and till the final verdict the minors be sent to SOS Village.
8. Heard. There are certain admitted facts of the case. The petitioners, the minors and the respondent are Austrian national; Amer, the elder brother of the minors, who is about 18/19 years is presently in Austria living with the petitioners under the Court's order and is seeking his education there; prior to the arrest of their mother at Lahore Airport on 11-1-2008 the minors were living with her in Austria as is clear from her letter dated 24-6-2008 and also admitted by her in the Court; Sana was seeking her education in Austria while Abresh was to be admitted to school in Austria if he was not confined in Pakistan; there is an order of temporary custody passed by the Austrian Court dated 25-2-2009 in favour of the petitioners; the respondent in her letter dated 24-6-2008 herself has requested the Austrian Embassy to make arrangement that the minors should be sent to her parents (the petitioners) in Austria where all her children could live together under their care; the respondent herself has unequivocally stated that the confinement of the minors in jail is not in their welfare and such confinement is improper and illegal in nature; she suggested that the minors should be sent to SOS Village or given to the custody of their father; the minors have come to Pakistan on a Visa which has expired or is likely to expire. It is the concern of all that the minors should not stay in jail for a single day.
9. On the basis of the above, what needs to be resolved is, if the custody of the minors be given to the petitioners, they be sent to SOS Village or given to the custody of their father. At this stage, it may be relevant to mention that one Khawaja Raza son of Khawaja Hafeez, who is brother in law of Mirza Saleem Baig (his sister's husband) along with his daughters has been regularly present in the Court and on 26-3-2009 when asked he stated that Mirza Saleem is presently in Karachi and is aware of these proceedings; it is on the instance of Mirza Saleem that he has been coming, and that Mirza Saleem is prepared to take custody of the minors for which he has already applied to the Guardian Court at Islamabad; even he expressed his willingness to take the minors in his custody. Vide order dated 26-3-2009, Mr. Raza was asked to apprise Mr. Baig if he would like to contest the matter but no one was present on his behalf on the last date of hearing or even today, rather another sister of Mr. Baig namely Naseem Mirza came to the Court on the last date of hearing and asked for the custody; she, when questioned about her brother, is not in a position to disclose the particulars of his contact; he is stated to be unwell but no proof of his ailment has been brought on the record.
10. I am not inclined to send the minors to SOS Village, which may even being run by an International Organization (NGO), but still is an orphanage. As stated earlier, the minors are Austrian national, their brother is living and is seeking education there; prior to the incident of 11-1- 2008 they were also living and have a home there the respondent expressly had desired that the minors should be sent to Austria; a custody order has been passed in favour of the petitioners by the Austrian Court; it prima facie seems in the welfare of the minors that they should be sent back to their home country which undoubtedly is a welfare State and capable of taking care of even those children whose parents are not there. Unfortunately, the father of the minors being aware of these proceedings has not come forward to ask for their custody despite required by the Court; his relatives have failed to provide his contact; I am not even sure if he is in Pakistan or abroad, free or incarcerated; it seems that a superficial custody petition has been filed by the father before the Guardian Court at Islamabad, though there is no proof on the record if the minors ever ordinarily resided there, the address of Mr. Mirza in the petition is that of Rawalpindi, whereas admittedly the minors since the arrest of their mother are with her at Lahore and prior thereto were in Austria; the mother has made a false statement about the identity of Mr. Mirza; the same lawyer who has represented him in the bail petition is the counsel for the respondent in the CNS Court and these proceedings as well. There is no proof on the record that Mr. Mirza and the respondent are divorced (though it is mentioned in the order of the Austrian Court), but the respondent stated that they are not divorced through any proceedings in Austria, rather a verbal divorce was pronounced in Pakistan; Mr. Mirza and the respondent have been convicted and served the sentence in Austria for drug trafficking; it seems that the respondent and Mr. Mirza are in league on the custody issue; the Pakistani Visa of the minors has expired. Besides, in the backdrop I am apprehensive of the possibility that the minors may not be used as a shield or carrier for any sordid business and God forbid if it so happens, the life of the minors shall be ruined. Therefore, for whatever has been stated above, it is in the best interest that the custody of the minors be given to the petitioners, particularly when Amer, their brother, is even there and is old enough to look after them.
' The writ petition is accordingly allowed, Mr. Alfred Bratranek, Deputy Head of Mission, Austrian Embassy, present in the Court, is allowed to take the custody of the minors from the jail authorities and is directed to make arrangement for sending them to Austria enabling the petitioners to their custody.