This petition has been filed under Article 199 of the Constitution read with Articles 187(2), 190 and 203 of the Constitution. The brief facts giving rise to the present petition are that the petitioner out of wedlock with the Respondent No, 2 was blessed with two children i.e. Sarah Saad Amanullah (born On 17-4-1991) and Ameen Saad Amanullah (born on 7-11-1993). It is alleged that in view of certain difference between the petitioner and the Respondent No, 2, the marriage between them had broken. This entailed a very long battle in the Courts of law with regard to custody and visitation rights in respect of the children. According to the petitioner he preferred Guardian and Ward Case No, 371/1995 for the custody of the children which snit was decreed ex parte in his favour on 1-10-1995. The Respondent No, 2 whereafter moved an application to set aside the decree, which was granted by order 29-1-1996 by the Guardian and Ward Judge. It is alleged by the petitioner that the order dated 29-1-1996 was obtained by the Respondent No, 2 with some connivance so much so that he was even prevented from obtaining a certified copy of the order and to file appeal thereagainst, which resulted in him filing C.P. No, S-10/1996 before this Court wherein this Court vide order dated 31-1-1996 allowed the custody to remain with the petitioner.
Thereafter once the certified copy of the order dated 29-1-1996 was made available, the petitioner preferred family Appeal No, 1/1996 before the District Judge who vide order dated 26-3-1996 while dismissing the petitioner's appeal allowed him to have the custody of the children from 9-00 a.m. to 6-00 pm. of every Friday and for 14 days during the summer vacations. Being dissatisfied with the latter order, the petitioner preferred Civil Revision No, 58 of 1996 before this Court which was again dismissed vide order dated 19-5-1996, while this Court was pleased to increase the duration of the visitation to two full days per week i.e. Fridays and Saturdays in addition to 15 days during summer vacations.
2. Being still aggrieved against the order of the High Court, the petitioner preferred C.P.L.A. No, 225 of 1996 which was disposed of through a compromise agreement on 18-6-1996, which is attached as Annex-G to the petition. Since the order of the Honourable Supreme Court approving the agreement between the parties is an important aspect of the case, the said agreement, which essentially pertains to the visitation rights of the petitioner, is reproduced in toto for the sake of convenience :-- "AGREEMENT R/Sheweth:- The parties above named have reached the following settlement and prayed that the petition be disposed of in terms of the following agreement:--
(1) It is settled that during the week the father will be entitled to take the custody of both the minors after 6-00 p.m. on Thursdays and return them punctually before 10-00 a.m. on Saturday.
(2) That during the summer vacation the father will be entitled to the children for the first two weeks and the last two weeks and last one week in the winter vacation except of the present summer vacation which it will be one week.
(3) By consent Khula' will be granted within 7 days from today and withdrawal of the suit for restitution of conjugal rights and G.W. Application No, 371/1995.
(4) That on 22-6-1996 the children will be handed over to the mother by the father.
(5) That the father agrees to pay maintenance of the minors at the rate of Rs, 10,000 per month to the mother and also provide full medical cover to the minors.
(6) That on the night before the day of Eid the father will collect the son and daughter and will return them in the evening on Eid Day.
(7) The petition is disposed off by the consent on the above basis, which would be permanent.
(Sd.)
PETITIONER (SAAD AMANULLAH KHAN)
(Sd.)
Advocate for the Petitioner (RAJA QURESHI)
(Sd.)
Advocate for the Respondent (KHALID ANWAR)
Islamabad Dated: 18-6-1996 Certificate to be true copy (Sd.)- Court Associate Honourable Supreme Court of Pakistan Islamabad."
3. It is alleged by the petitioner that the order dated 18-6-1996 was being implemented in the normal/routine course when suddenly in March 1997 the Respondent Nos, 2 and 3 (the Respondent No, 3 being the mother of Respondent No, 2) refused the petitioner to see or meet his children.
Against this the petitioner preferred a contempt application before the Honourable Supreme Court being Criminal Original Petition No, 6/1997. (It seems that in the meanwhile on 2-4-1997 the Respondent No, 2 had also filed an application before the G and W Judge being case No, 146/1997 claiming the petitioner to have sexually abused the Ward No, 1 i.e. Sarah Saad Amanullah and on such ground it was claimed that the petitioner was disentitled to even have the visitation rights as were ordered by the Honorable Supreme Court on 18-6-1996). The contempt proceedings (i.e. Cr.O.P. No, 6/1997) were heard by the Honourable Supreme Court on 6-5-1997, 22-5-1997 and 20- 10-1997 before a bench headed by Mr. Justice Saeed-uz-Zaman Siddiqui, as he then was. In these orders it has been clearly provided that no ground existed to amend the compromise endorsed by the Honourable Supreme Court on 18-6-1996. The Criminal Original Petition No, 6/1997 was disposed of in the latter terms.
4. After the order of the Honourable Supreme Court dated 6-51997 (cited supra) the petitioner again commenced meeting the children. However, the Respondent No, 2 filed CM.A. 500/98 in the disposed off Civil Petition No, 225/96 before the Honourable Supreme Court on the basis of a report of one Dr. Parveen Kanji (Gynecologist) to the effect that the Ward No, 1 had been sexually abused by the petitioner and hence the order of the Honourable Supreme Court dated 18-6-1996 was required to be amended so as to stop the petitioner meeting the children. The said CM.A. 500/98 was disposed off by the Honourable Supreme Court vide order dated 5-6-1998 wherein the Honourable Supreme Court did not interfere with the order/compromise dated 18-6-1996 but rather left the said Respondent No, 2 to move the .G and W Court.
5. In the pursuance of the above on 16-7-1998 the Respondent No, 2 filed another application before the G and W Judge praying the suspension of the order of the Honourable Supreme Court dated 18-61996. The said application was dismissed by the G and W Judge vide order dated 2-11- 1998 where against the Respondent No, 2 preferred family Appeal No, 45/98. It is alleged that on the first date of hearing the learned IInd Additional District Judge vide order dated 21-11-1998 ordered for the production of the children against which the petitioner, fearing bias preferred CP No, S- 464/98 before this -Court in which this Court by- order dated 24-11-1998 restrained the 'Ind Additional District Judge from passing any final order. Despite this, the learned IInd Additional District Judge vide order dated 27-11-1998 went on to amend the arrangement/order of the Honourable Supreme Court dated 18-6-1996 holding that in future the Ward No, 1 would meet the petitioner in the lounge of the Defence Club instead of the petitioner's house. Apparently, this was done on account of some "serious allegations" levelled by Ward No, 1 but actually the record only shows that the Ward No, 1 has only said that "Aba ganday hein". The petitioner in person has narrated that due to the impossible and insulting behaviour of the maternal grand mother i.e. the Respondent No, 3, the meetings at the Defence club were disrupted. It is alleged that the Respondent No, 3 during such meetings had loudly called the petitioner different names.
6. In the meanwhile the Honourable Court in CP No, S-464/98 ordered the production of the children on 7-12-1998 it was observed that the children were keen to visit their father and grand mother and had no compliant against their father. As such the custody of both the wards were ordered to be handed over to the petitioner immediately. Ultimately CP No, S-464/98 was dismissed by this Court vide order dated 25-1-1999 on the ground that the order of the IInd Additional District Judge dated 27-11-1998 was only an interim order. The petitioner assailed the order of this Court dated 25-1-1999 in CPLA 47L/99 before the Honourable Supreme Court which was disposed of vide order 9-2-1999 with the observations that since the main appeal before the Additional District Judge was pending the same had to be decided first, however, the request of the petitioner's counsel to transfer the appeal to another Additional District Judge was accepted.
7. The appeal before the Additional District Judge was then transferred to Vth Additional District Judge who heard and reserved the matter to be announced on 3-4-1999. It seems that on 3-4- 1999 the Respondent No, 2 moved an application for transfer to some other Judge which was dismissed by the District Judge on that very date i.e. 3-41999. The main appeal by the Respondent No, 2 was also dismissed by the Vth Additional District Judge on 3-4-1999.
The petitioner alleges that after 3-4-1999 the Respondent No, 2 committed blatant contempt of order of the Honourable Supreme Court dated 18-6-1996 and did not allow the petitioner to meet the children. Simultaneously, the Respondent No, 2 preferred CP No, S161/1999 before this Court, challenging the order of the Vth Additional District Judge dated 3-4-1999. Finally, vide order 22-5- 2000 CP No, S-161/1999 was allowed and the orders of the G and W Court dated 2-111998 and Vth Additional District Judge dated 2-4-1999 were set aside, and G and W Judge was directed to decide the case within three months.
9. Aggrieved against the order dated 22-11-1998 the petitioner preferred a Review Application Bearing No, 433/2000 (in CP. No, S161/1999) which was disposed of by this Court vide order 6-7- 2000 clarifying that the order of the Honourable Supreme Court dated 18-61996 was unaffected and the petitioner could seek its implementation in accordance with law.
10.Against the order dated 22-5-2000 the petitioner also preferred C.P.L.A. No, 380-K/2000 before the Supreme Court which was disposed of vide order dated 27-12-2002 directing the G and W Court to decide the matter expeditiously, preferably within three months. Regrettably the `G' and 'W'
Court till date has not finally disposed of the matter despite clear directions having been given by this Court so also by the Honourable Supreme Court.
11.In view of orders dated 4-1-2001 and 27-1-2001 passed by G and W Judge the petitioner preferred CP No, S-148/2001 in this Court. Since in the meanwhile the Honourable Supreme Court vide order dated 27-12-2002 had disposed of CPLA No, 380-K/2002 the petitioner did not press CP No, S- 148/2001. Such withdrawal is recorded in the order dated 9-4-2004 passed by this Court in CP No, S-148/2001.
8. As its stand today Guardian and Ward Cases Nos, 146 of 1997 (filed by the Respondent No, 2) and 486 of 1998 (filed by the petitioner) are pending before G and W Judge, being Respondent No, 1 i.e. IVth SCJ Karachi (South). These are cross-suits filed by the petitioner and Respondent No, 2 in respect of the custody of the children. Both the petitioner and Respondent No, 2 have filed two applications before the G and W Judge. The petitioner in his application has sought the direction to admit the children to the best of educational institutions, while Respondent No, 2 in her application seeks the relief that the children be examined in the chamber and having reached the age of discretion the two suits be disposed in terms of their statement. It was in this backdrop that the present petition was filed seeking, inter alia, the relief of implementation of the order of the Honourable Supreme Court dated 18.6.1996, so also an arrangement whereby the children would meet the petitioner in the presence of a Court Commissioner.
13. In the background of the case Dr. Farogh Naseem, the learned counsel for the petitioner, has argued that the order of the Honourable Supreme Court dated 18-6-1996 is still in the field arid this Court has the power to implement such a decision under Article 187 of the Constitution. He has further contended that since 3-4-1999 the Respondents Nos, 2 to 4 have prevented the children to meet the petitioner and hence statement of the children showing their reluctance to meet the father is a result of tutoring and brain washing and this Court in the interest and welfare of the children is not bound by such statement. The learned counsel has also contended that allegations against the petitioner are patently false and belied by the record and having been cooked up by the Respondent No, 2 with a view to non-suit the petitioner from having custody of the children and from even meeting them. In support of this contention the learned counsel had placed reliance upon Syed Maqsood Ali u. Sofia Naushaba 1986 PSC 427, Javed Akhter v. Nasreen Akhtar 2006 YLR 2215 and Mst. Hameed Mai v. Irshad Hussain PLD 2002 SC 267. On the other hand Mr. Haider Waheed, learned counsel for the Respondents Nos, 2 to 4 has taken the plea that the order of the Honourable Supreme Court dated 18-6-1996 is -no longer in. the field and the petition is not maintainable due to disputed questions of facts being involved in the matter and also in view of pendency of the G and W cases, which constitutes alternate remedy. Mr. Haider Waheed, learned counsel appearing for Respondents Nos, 2, 3, 4 and wards, has insisted that the Court should go through the counter-affidavits filed by. Mst. Ayesha Tahir, Respondent No,
2. She in her two counter- affidavits filed in reply of application under Order XXXIX, Rules 1 and 2, C.P.C. and application under Section 151, C.P.C. has stated that the contents of Paragraphs 1, 2 and 3 of the affidavit in support of the petition are false and misleading. She has vehemently denied the same. She has stated that the petitioner with deliberate mala fide intention is trying to mislead the Court by suggesting that the compromise agreement dated 18-6-1996 was in fact part of the Honourable Supreme Court's Order dated 18-6-1996. It is stated that the said agreement comprised of undertaking given by one private party to another. She has stated that such undertaking was never made to the Honourable Supreme Court. She has further stated that the Supreme Court has merely recorded the said compromise and as a result thereof disposed of Civil Petition for Leave to Appeal No, 225 of 1996 vide order dated 18-6-1996. She has also stated that as per clause 5 of the said compromise agreement the petitioner agreed to pay maintenance of the minors at the rate of Rs, 10,000 per month to the mother and also to further provide full medical cover to the minors. She urged that the petitioner never fulfilled his aforesaid obligations. It is specifically denied by the Respondent No, 2 that she has defied any order of the Honourable Supreme Court. Her case is that the compromise referred to by the petitioner is not part of any order of the Honourable Supreme Court. She further stated that it was merely an agreement between the parties, which subsequently was negated by the cortduct of the parties. She has emphasized that the on sexual abuse of the petitioner had prevented the children from continuing the compromise agreement. Mr. Haider Waheed, learned counsel for the respondents, in his arguments has attacked the character of the petitioner and placed emphasis on sexual abuse and immorality towards the children. He submitted that the allegation of sexual abuse 'are the children's owns version of the tragic events and any wrong doing/tutoring on the part of the Respondents Nos, 2, 3 and 4 is vehemently denied. Respondent No, 2, Mst. Ayesha in her counter-affidavit has denied that the children even felt love and affection for the petitioner. She has stated that they were crying and screaming at the prospect of meeting the petitioner.
14. Mr. Haider Waheed, in support of his arguments has relied upon 1994 MLD 1098 (Zainab Bibi v.
Rehmat Ali). In this authority it has been observed by a learned Single Judge of the Lahore High Court that:-- Neither the Guardian Judge nor the lower appellate Court ascertained the wishes of the minors. As the minors in the present case have admittedly attained the age of discretion, such an exercise should have been undertaken."
It has further been observed in the referred judgment that the judgment of the appellate Court given without ascertaining the discretion of minors was unlawful and of no legal effect. The Court had remanded the case for fresh decision. In another authority 1980 CLC 1802 (Tassadiq Hussain Shah v. Surraya Begum) the Honourable Supreme Court, Azad Jamu and Kashmir, has observed that:-- "10. The minor lived all this period with his mother and for that reason his ways must be entirely different from the ways of the appellant. Apart from it, the appellant had remarried and has children from his second wife. The proverbial maltreatment of the step-mother outweighs the presumption that the welfare of the minor lies with the father."
In another authority 1988 SCMR 1359 (Nazir Ahmad v. Additional District Judge III, Sahiwal), the Honourable Supreme Court has observed as under:-- "....She appears to be aged about 14 years now and studies in the sixth class of a Convent school.
She appears to be an intelligent girl. We asked her if she would be willing to reside with her father but she categorically stated that since she had been from her childhood brought up by her maternal-. grandparents she would only like to stay with them and not with the petitioner. The petitioner before us levelled the allegation that not only the maternal-grandparents were old and infirm and could not look after her but they make her work in their house as a servant and did not give her proper education. In reply Mst. Farzana told us that these allegations were false. She did not work as a servant in her maternal-grandparents' house but regularly went to her studies it was only because the petitioner has been a constant disturbance for her.
We have heard learned counsel for the parties. In the light of what has been stated above, in our considered opinion the custody of Mst. Farazana should remain with her maternal-grandmother as ordered by the Lahore High Court Bahawalpur Bench vide judgment dated 23rd May, 1987 in Writ Petition No, 1166 of 1986/BWP."
In another authority 2000 YLR 3046 (Farah Waqar v. Waqar Ahmad Khan) a learned Single Judge of the Lahore High Court has observed that:-- "Wishes of minor were to be taken into consideration while deciding the custody."
In another authority 2003 YLR 1105 (Barkat Bibi v. Zahida Parveen), a learned Single Judge of the Lahore High Court has observed that:- "While settling the matter of custody of minor the supreme consideration is the welfare and betterment of minor rather than the claims and wishes of the respective contenders. Wishes of minors have also to be kept in view by the Court, if the minor is grown up enough to form an intelligent opinion."
Mr. Haider Waheed has also cited 1991 CLC Note 148 (Kaniz v. Noor Muhammad). In this case, the minors were aged 17 and 15 years and they were grown up during litigation. The Court has observed that:-- "Minors' welfare would lie in the continuation of their present associations for the remaining period because their removal from well accustomed environment would in all probability act to their detriment."
Lastly, the learned counsel for Respondents Nos, 2, 3 and 4 has cited 1980 CLC 1955 (Surraya Begum v. Tassadiq Hussain Shah) a learned Single Judge of Azad Jammu and Kashmir has observed as under:-- "Compelling child to be out of custody of mother amounts to depriving him of affection of mother.
Father although natural guardian after 7 years of age of minor yet Court concerned with welfare of minor irrespective of age of minor."
15. I heard both the learned counsel and have perused the entire case file, which is quite voluminous. I had an opportunity of meeting both the children Sarah Saad Amanullah and Ameen Saad Amanullah in presence of their parents and their counsel for more than two hours in my chamber on Saturday, 15-7-2008, from 3 p.m. to 5 p.m. I had met the minors, their parents and the learned counsel appearing for them. They all remained sitting comfortably in my chamber and I had lengthy conversation with them in order to resolve this matter amicably to the satisfaction of both the parties and their counsel. I have no hesitation in admitting that I miserably failed in my attempt to pass a consent order. My earnest desire was that this matter along with all the pending cases in the lower Courts should be ended amicably with only one page consent order, which I could not do in spite of efforts made by me. The main reason was adamant behaviour of the children refusing to meet their father. I have observed that on certain occasions the children were getting aggressive while their mother remained silent throughout and did not disturb the proceedings. Petitioner has brought two photo albums containing photographs of the children during the period when they were used to visit him. There were hundreds photographs showing that the children were very happy with the father. He had also displayed a video of children at his laptop computer, which he had brought with him. The video was seen by the children, myself as well as their Counsel and mother of the children. Children were seen playing with their father very happily and the video was self-speaking. The case law cited by Mr. Haider Waheed is in respect of custody of minors. I am in agreement with Mr. Haider Waheed as well as the judgments quoted by him and I am of clear view that at this age the custody of the minors cannot be given to the father by the Court of law against the consent of minors. However, under no law, the visiting rights can be denied to the father.
16. In my opinion the precise question which is required to be addressed is whether the order of the Honourable Supreme Court/Compromise dated 18-6-1996 hold the field or whether the same has been modified. Admittedly, Cavil Petition No, 225/96 in the Honourable Supreme Court was disposed of on 18-6-1996 in terms of the compromise agreement dated 18-6-1996 between the parties. Clause 7 of the said compromise dated 18-6-1996 is of paramount importance according to which the said compromise would be permanent. Apart from this the Honourable Supreme Court vide its orders dated 6-5-1997, 22-5-1997 and 20-10-1997 in Criminal Original Petition No, 6/97 refused to amend or modify its order/compromise dated 18-6-1996. Even in its order dated 5-6- 1998 on C.M.A. 500/98 in CPLA 225/96 the Honourable Supreme Court did not amend its order/compromise agreement dated 18-6-1996 but only allowed the Respondent No, 2 to move an appropriate application before G and W Judge. This order cannot be interpreted so as to assume that the Honourable Supreme Court had allowed modification of the order dated 18-6-1996. It is needless to mention that the order of the Honourable Supreme Court can only be modified or altered by Honourable Supreme Court itself and not by any other Court. One fails to understand that as to how and on what basis the learned IInd Additional District Judge vide order dated 27-11- 1998 could have amended the order of the Supreme Court dated 18-6-1996. The fact that the order of the Honourable Supreme Court dated 18-6-1996 was unaltered can be further inferred from the fact that in its order dated 9.2.1999 in CM.A. 47-K/99 and the, last order of the Honourable Supreme Court dated 27-12-2002 in Civil Petition No, 380-K/2000 the Supreme Court did not alter or amend its earlier order dated 18-6-1999. Furthermore, vide order passed by this Court in the Review Application (No, 433 of 2000) dated 6-7-2000 in C.P. No, S-161 of 1999 it has been clearly observed that the order of the Supreme Court dated 18-6-1996 remained unaffected and unaltered and petitioner could seek its implementation in accordance with law. The Respondent No, 2 has not questioned such order dated 6-7-2000 which has attained finality. Even otherwise the order dated 6-7-2000 is based upon a sound principle that it is the Supreme Court alone which can amend/alter/modify its own order. This being so, the contention of Mr. Haider Waheed that the order of the Honourable Supreme Court/compromise dated 18-6-1996 has been altered and does not hold the field is devoid of any force.
17. The next question is that since order of the Honourable Supreme Court/Compromise dated 18- 6-1996 is still in the field, what is the course available to the petitioner to seek its implementation?
The petitioner's counsel has relied upon Article 187 of the Constitution which clearly provides that any direction/order/decree of the Supreme Court shall be executed by the High Court in whole jurisdiction the implementation is sought. I have been able to lay my hands on Khushi Muhammad v. IG, Police 1999 SCMR 2868 and Umar Gul v. GOS 2007 YLR 3191 which provide that under Article 187 of the Constitution the orders of the Honourable Supreme Court are to be implemented by the High Court. This being the clear position in law, I have no doubt in my mind that this petition, principally seeking implementation of the order of the Honourable Supreme Court/compromise dated 18-6- 1996, is maintainable. On this score the next objection of Mr. Haider Waheed is also hereby over- ruled.
18.The next objection raised by Mr. Haider Waheed is that any arrangement of visitation sought; by the petitioner in respect of the children cannot be ordered as the children themselves are in no mood to see their father. It is correct that in the chamber meeting on 15-7-2008 the children hadclearly stated that they did not wish to see their father.. Mr. Waheed has stated that there is plethora of case law to the effect that once the children reach the age of discretion the custody matters are to be disposed of in terms of their wishes which itself will constitute their welfare. There is no cavil with this proposition and there are many judgments to that effect. In the judgment relied upon by Dr. Farogh Naseem reported as Syed Maqsood Ali v. Sofia Naushaba 1986 SCMR 426 it has been clearly mentioned by the Supreme Court that where the parents were involved in litigation for a long period of time and children had remained with the mother, it cannot have been ruled out that the children were acting under the influence of their mother. In the case the Honourable Supreme Court refused to go by the statement of the children and instead directed the parties to come up with viable formula. With the assistance of the counsel the parties in that case submitted a compromise . statement for interim arrangement which was to continue for six months so that a conducive relationship could be developed between the father and children. This judgment seems to be applicable to the facts of the present case also. I have myself been able to lay my hands on Mukhtar Ahmad Khan v. Mst. Aziza Begum PLD 1975 Lahore 86 wherein Muhammad Afzal Zullah J, as he then was, was pleased to observe that the desire expressed by a minor to live with either of the parents was not sufficient by itself to control the question of custody. Even otherwise in the present proceedings the petitioner is only seeking visitation rights in respect of the minors and their implementation, which rights have already been determined by the Honourable Supreme Court in its order/compromise dated 18-6-1996. The question of final custody and visitation rights are distinct in nature. As stated above even in the question of custody, the statement of the minors may not always be conclusive, the same will have very low probative value in relation to visitation rights. In Nemat Ullah Qureshi v. Mst. Bilqis Sitara PLD 1973 Lahore 442 it was observed that pending final adjudication of custody, a parent could seek the access in respect of the children by way of a temporary measure. In Mrs. Parveen v. Kh. Muhammad Ashar PLD 1975 Lahore 334 it was observed that estrangement between parents and children should be avoided at all costs and mere allegation by the husband that the woman was of immoral character was not sufficient to refuse interim custody to the mother. In Ghulam Sakina v. Ghulam Abbas PLD 1978 Lahore 1389 it was observed that a bare allegation of a party imputing unchastity to the mother of the minor cannot inspire confidence and custody orders were made. In Sardar Hussain v. Mst. Parveen Umer PLD 2004 SC 357 the Honourable Supreme Court although did not interfere with the orders of the custody made by the G and W Court, it was pleased to observe that father could still get visitation rights in respect of the children. To similar effect is Mst. Nighat Firdous v. Khadim Hussain 1998 SCMR 1593. Thus it is clear that the law favours the right of visitation of a parent to remain intact even if the custody is awarded to the other parent.
19. As discussed earlier in preceding paragraphs of this judgment, I have seen the photographs in two albums so also the video film in the laptop of the petitioner. These photographs and video films clearly show that the children were very attached to their father i.e. the petitioner. Even the order of this Court dated 5-12-1998 in CP S-464/98 clearly recorded that the children were very keen to visit their father and the paternal grand mother had no complaint against the father. It was in view of this that the Court had passed the order of custody. During the course of hearing on 15-7-2008 in my chamber the petitioner had clearly stated that in the hearings before the Supreme Court on 6- 5-1997, 22.5.1997 and 20-10-1997 Saeed-uz-Zaman Siddiqui J, as he then was, had met the children who had clearly shown their keenness to be with the father. It is true that this fact has neither been recorded in the said Supreme Court order neither the same has been pleaded in the petition the oral assertions by the petitioner (in person) to this effect have not been denied before me by the Respondent No, 2 who was also present before the said Supreme Court hearing. The Court in these proceedings has to reject any technicalities as held in Hameed Mai v. Irshad Hussain PLD 2002 SC
267. It can also be fairly gathered from the language of the order dated 6-5-1997 wherein the Supreme Court had allowed the children to be kept by the petitioner for some period. Order of the Supreme Court dated 22-5-1997 shows that the children had met in the Judges chamber on that day, whereafter the Judges ordered that the arrangement dated 18-6-1996, should not be disturbed, clearly implying that the children were happy with the father. In fact vide order dated 20.10.1997 the Honourable Supreme Court had clearly observed that the order of the Supreme Court/compromise dated.18-6-1996 would not be amended.
20.In light of the above, one can safely come to the conclusion that this is not a fit case where the statement of the children could be accepted since having remained under the custody and complete supervision of the mother and maternal parents/relatives to the B complete exclusion of the petitioner and his part of the family for the last 8 to 9 years, the statement of the children are a result of tutoring and brain washing. At the end of the day the welfare of the children as held in Mukhtar Ahmad Khan v. Mst. Aziza Begum (cited supra) would mean that the children should be attached to both the parents. Even recently in Javed Akhtar v. Nasreen Akhtar 2006 YLR 2215 it has been mentioned that the total deprivation of the children from association with the father would not bring any healthy state of mind.
21.This brings me to the last contention raised by Mr. Haider Waheed, Advocate that there are serious allegations against the petitioner for having sexually abused the Ward No, 1 Sarah Saad Amanullah and being violent and therefore he cannot be allowed any visitations rights. These allegations are vehemently denied by the petitioner. In order to finally resolve the veracity of these allegation for the purposes of determining the right of final custody proper inquiry and evidence is required to be led (see 2007 MLD 658 and 1988 CLC 219'6). Since these allegations are being levelled by the Respondent No 2 to even deny the visitation rights to the petitioner, the Court will have to decipher from the available record as to what would be the merit of such far reaching allegations. -These allegations were levelled by the Respondent No, 2 for the first time on 2-4-1997 before G and W Judge when an application bearing No 146/97 was made seeking to alter the visitation arrangement finalized as per the order of the Supreme Court/compromise dated 18-6- 1996. Very importantly when the Supreme Court in Criminal Original Petition No, 6/1977 had passed order dated 6-5-1997, 22-5-1997 and 20-10-1997, the said allegations had already been levelled by the Respondent No, 2 and the Honourable Supreme Court took a conscious decision' of not amending the arrangement through its order dated 18-6-1996. In other words these allegations were not found to be believable by the Supreme Court. In the litigation a great stress has been placed by the Respondent No, 2 on the reports of one Gynecologist Dr. Parveen Kanji dated 9-2- 1998 and 14.5 \1998 available at Pages 369 and 373. Interestingly, the same Gynecologist has changed her report on 1-8-1998 available at page 375, observing that the Ward No, 1 has changed her story. Reference is again invited to the order of this Court dated 7-12-1998 in CP No, 464/98 wherein the Respondent No, 2 had agreed to surrender the custody of the children to the petitioner on the condition that she would get visitation rights. If the petitioner had sexually assaulted the Ward No, 1 and such fact was recorded by the Gynecologist as claimed by the Respondent No, 2 on 9-2-1998 and 14-5-1998 then why on 7-12-1998 the said Respondent No, 2 had agreed to hand over the custody of the children to the father/petitioner? The order of this Court dated 15.12.1998 in CP No, S-4'64/98 further belie the stance of the Respondent No,
2. Again the video films are from April till November 1998 showing immense love and affection between petitioner and children. The photographs in the album show the children with the petitioner in hill stations which the petitioner has stated to be during the summer vacations of 1996, 1997 and 1998. During the Chamber hearing on 15-7-2008 the petitioner had broken down into tears-expressing his unconditional love for the children. The very fact that the petitioner is still pursuing the matter leads credence to his stance.
22.In light of the above I am of the considered view that for the purposes of stopping the visitation of petitioner the allegations against him are not substantiated. On the contrary, from the record and discussion above it is pretty clear that the allegations have only been made so as to prevent a father from even meeting the children. Also the statements of the children do not inspire any confidence since the allegations pertain to a time when the Ward No, 1 was too young much time has lapsed and all along the children have remained under the influence of the Respondent No, 1, who allowed their tender minds to be brain washed.
23.I am of the considered view that the welfare of the children lies in meeting with their father, who should have a clear say in the affairs and upbringing of the children, in particular, the education of the son and marriage of the daughter. Mr. Haider Waheed, learned counsel for the Respondents Nos, 2 to 4 stated that these proceedings have been going on since 1996-97 and it was about time that not only the present case but the two suits pending before the G and W Judge should also be finally decided. I fully agree with the contention raised by Mr. Waheed and while granting visitations rights to the petitioner, this is a fit case where the final custody should be granted to the Respondent No, 2 who has already kept the kids all along. This arrangement should also be in keeping with the order/compromise of the Honourable Supreme Court dated 18-6-1996 according to which the visitation rights of the petitioner as spelt out in the compromise will be on permanent basis as per clause 7 of the said compromise agreement and the custody case i.e. G and W Case No,. 371/95 filed by the petitioner would be withdrawn, thereby clearly implying that the final custody would rest with the mother i.e. Respondent No,
2. Despite such final determination by the Supreme Court both the petitioner and Respondent No, 2, filed cross Suits No, G and W cases Nos, 146/97 and 486/98. The Respondent No, 2 had filed case No, 146/97 with a view to amend the visitation rights having been given to the petitioner and petitioner had filed case No, 486/98 with a view to claim final custody in respect of the children. In this long legal battle with allegations and counter allegations both the father and mother lost sight of the fact that in the ultimate result the losers were the children as their welfare lay in the fact that both the parents should have an effective say in their upbringing and the children should be attached to both the parents. The report cards of the Ward No, 2 are also not very impressive and perhaps one reason being that the father has no role in his education. Once again this calls for providing for visitation rights to the petitioner.
24. As already stated above, I am impressed with the arguments of Mr. Haider Waheed that both the custody cases pending before the trial Court should, be finished and accordingly I order both the said cases i.e. GW Suit/cases Nos, 146/97, and 486/98 pending before the Respondent No, 1 (IVO. SCJ, Karachi, South) and the present petition to be disposed of in terms of the order of the Supreme Court/compromise dated 18-6-1996 whereby the final custody will rest with the Respondent No, 2 and the petitioner shall get visitations rights in terms of the said agreement dated 18-6-1996, except that the words "Thursday" and Saturday" appearing in clause (1) of the said agreement shall be read as "Friday" and "Sunday" respectively.
25.Before parting I am constrained to make the following observations:-
(a) Mr. Moinuddin Ahmed, learned Deputy Registrar (Judicial) shall be entrusted with the task to seek implementation of the present order in letter and spirit and either party may approach him for its implementation. Mr. Moinuddin Ahmed shall have permission to seek police aid in case the same is required to get the order of this Court implemented. Each time Mr. Moinuddin Ahmed is called upon to take any step, he may himself determine a reasonable fee and recover the same (without seeking any approval from the Court) from the petitioner and Respondent Nos, 2 to 4, as the case may be i.e. whoever approaches him;
(b) all the concerned parties i.e. the petitioner and Respondent Nos, 2, 3, and 4 are warned that nothing should be done to disobey this order and all efforts should be employed to implement the same in letter and spirit failing which this Court shall adopt effective measures; c) following the guidelines given by the Supreme Court in Syed Maqsood Ali Mst. Sofia Naushaba 1986 SCMR 426 according to which steps should be taken to create an environment whereby the children are enabled to meet their parents smoothly, for the first twelve weeks from today, prayer
(b) in the petition is allowed whereby both the wards i.e. Sarah Saad Amanullah and Ameen Saad Amanullah would meet the petitioner twice a week for two hours on each meeting in the presence of Mr. Moinuddin Ahmed, Deputy Registrar (Judicial) and to the exclusion of everyone else in the room of Mr. Moinuddin Ahmed in the High Court premises. Mr. Moinuddin Ahmed shall have all' the powers to implement the orders including the option to seek police aid. For every such meeting Mr. Moinuddin Ahmed's fee shall be Rs, 1500 payable by the petitioner directly to Mr. Moinuddin Ahmed; (d)it is expected that both the learned counsel shall fully apprise their respective clients of the contents of this order so also the sanctity of the Court orders. An extra effort shall be made by the learned counsel for the respondents to also apprise the Wards of the true meaning of this order.
Both counsel shall make every effort to explain to their clients (and the wards) of the necessity to abide by the Court orders and the consequences which may result in case there is violation of Court orders;
(e) in the manner as aforesaid there shall be no order as to costs.