' ASIF SAEED KHAN KHOSA, J.---After recovering the minor son of the petitioner and respondent No,1 in connection with case F.I.R. No,656 registered at Police Station Sharqpur Sharif, District Sheikhupura on 27-10-2007 in respect of an offence under section 363, C.P.C. The Investigating Officer of the said case and the Superintendent of Police (Investigation), Sheikhupura had produced him before this Court on the last date of hearing, i,e, 23-10-2009 whereafter the recovered minor namely Omer had been given in the interim custody of Miss Hina Jillani, Advocate who has produced him before this Court today.
2. The facts of this case are quite simple. Peggy Collin petitioner is a French national and Muhammad Ishfaque Malik respondent No,1 was born in Pakistan. They met in London, fell in love, got married on 1-8-1995 and started living together in France where respondent No,1 obtained dual nationality. The couple was blessed with a son who was delivered in. France on 6-8-2000 and was named Omer. Some time thereafter the parties separated and in May 2001 respondent No,1 surreptitiously brought Omer to Pakistan without the knowledge and against the wishes of the petitioner but ultimately the petitioner and respondent No,1 executed an agreement on the basis of which respondent No,1 brought Omer back to France. That agreement was produced before a French Court which , turned it into a judgment of the Court on 5-2-2003. According to that agreement Omer was to ordinarily reside with the petitioner and respondent No,1 was to have visitation rights but he could not remove Omer from the territorial jurisdiction of the Court without the consent of the petitioner. That agreement worked for some time but later on respondent No,1 sought a variation of the judgment which was disallowed by the Court on 28-1-2005. Respondent No,1 filed an appeal against that refusal but his appeal was dismissed on 14-2-2006. It was around that time that respondent No,1 decided to take the law in his own hands and finally on 13-1-2007 he brought Omer to Pakistan in a clandestine manner and without the knowledge or consent of the petitioner. Upon coming to know of that move by respondent No,1 the petitioner rushed to Pakistan and filed Criminal Miscellaneous No,915-H of 2007 before this Court in the nature of habeas corpus.
The hide and seek of respondent No,1 made it quite difficult for this Court to bring him before the Court with Omer and, thus, on 18-10-2007 Criminal Miscellaneous No,915-H of 2007 was withdrawn by the petitioner and on the same day she filed Writ Petition No,10062 of 2007 before this Court seeking issuance of a direction to the local police to register a criminal case against respondent No,1 and others in respect of kidnapping and illegal removal of Omer from lawful guardianship of the petitioner. As a result of a direction issued by this Court in connection with that writ petition F.I.R.
No,656 was registered at Police Station Sharqpur Sharif, District Sheikhupura at the instance of the petitioner on 27-10-2007 in respect of an offence under section 363, P.P.C. Upon persistent failure of the police to recover Omer or to arrest respondent No,1 the petitioner filed the present petition before this Court on 17-3-2008. On 19-3-2008 it was reported to this Court that Omer had been recovered by the police and on that date this Court issued an order to the District Police Officer, Sheikhupura (respondent No,6 herein) to hand over custody of Omer to the petitioner but due to some unknown reason that could not materialize and this Court was told that respondent No,1 had managed to slip away with Omer. Finally on 13-10-2009 respondent No,1 was produced by the police before this Court in custody and on 21-10-2009 Omer was handed over by respondent No,1 to the police which produced him before this Court on that date. The proceedings in the matter were adjourned by this Court to 23-10-2009 on which date arguments of the parties were partly heard and the remaining arguments have been heard by me today.
3. It has been argued by the learned counsel for the petitioner that respondent No,1 had illegally and surreptitiously removed Omer from the jurisdiction of a competent Court and, thus, his custody of the minor was illegal and improper as it was in clear violation of an express order of the Court passed in that regard. She has also submitted that Omer is a kidnapped minor recovered by the police in connection with a criminal case registered for illegal removal of the minor from lawful guardianship of the petitioner within the purview of the provisions of section 363, P.P.C. She has further maintained that Omer had been illegally whisked away by respondent No,1 from France and he had been kept by respondent No,1 in his custody in an improper manner and in utter disregard of his welfare. She has highlighted that during the last about two years the minor has received no education or schooling and he has been hidden in different cities in frightful and appalling conditions while respondent No,1 was being chased by the police. According to the learned counsel for the petitioner the case in hand is not one of determination of guardianship or custody of the minor but is one of restoration of lawful custody. She has informed that at the time of the minor's earlier illegal removal from France to Pakistan in the year 2001 respondent No,1 had been convicted for kidnapping of the minor by the District Court of Pontoise, France but no sentence was passed against him because of the petitioner's grace and mercy. She has further informed that after the present illegal removal of the minor by respondent No,1 from France to Pakistan in the year 2007 the petitioner had lodged a criminal complaint against him before the French Police which matter is now before a French Court and International Warrant for Arrest has already been issued against respondent No,
1. Upon my query the Superintend of Police (Investigation), Sheikhupura present before the Court has confirmed that a copy of that International Warrant for arrest has already been received by the local police. The learned counsel for respondent No,1 has lastly pointed out that respondent No,1 cannot deny existence or validity of the judgments passed by the French Courts regarding the matter of custody/residence of Omer because respondent No,1 had himself filed a suit before the civil Court at Lahore seeking implementation of the relevant judgments of the French Courts and that suit was disposed of by a learned Civil Judge 1st ClaSs, Lahore on 15-12- 2006 .
4. As against that the learned counsel for respondent No,1 has argued that by virtue of Articles 4 and 5 of the Constitution of the Islamic Republic of Pakistan, 1973 even the petitioner, despite being a French national, is under an obligation to obey the Constitution and the laws of Pakistan and under the laws of this country a father is always a natural and legal guardian of his child and a Christian mother cannot claim custody of the child after expiry of the period of Hizanat. He has laid great emphasis on the point that respondent No,1 is a Muslim and the petitioner is a Christian and the Islamic ethos of this society do not warrant a Muslim Pakistani boy to be handed over a Christian French mother with a prospect that the boy may lose his Muslim and Pakistani identity. He has also argued that according to section 13, C.P.C. Foreign judgments are ineffective in Pakistan if they come in conflict with the laws of this country. He has placed reliance in this regard upon the cases of Grosvenor Casino Ltd. v. Abdul Malik Badruddin (PLD 1988 Karachi 104), Mst. Mangti v. Mst.
Noori and others (1995 CLC 210) and Mst. Maria Khan v. Muhammad Zubair Khan (1993 PCr.LJ. 1097).
It has further been argued by him that in cases where there is a danger of the minor being taken out of the country the Courts in this country are quite reluctant to transfer custody of such minor and he has referred in respect to the cases of Mst. Musarrat Parveen v. Muhammad Akram (1991 PCr.LJ 878), Mst. Shamshad Begum v. Muhammad Saad Bin Moghani and another (1989 PCr.LJ 1327) and Mrs. Suhair Mamdouth Sudki Deais Dar v, Nabeel Dar and another (1996 SCM R 1083). He has also contended that a petition under section 491, Cr.P.C. Is not maintainable against a father of a minor because custody of the minor with his/her father is never illegal or improper for the purposes of section 491, Cr.P.C. He has placed reliance in this regard upon the cases of Mst. Mariam Rozina v.
Robert Ashraf (1985 PCr.LJ 1469) and Mst. Syedan Bibi v. District and Sessions Judge Khanewal and 2 others (2005 PCr.LJ 1780). He has also maintained that delay in filing of a petition in the nature of habeas corpus is usually fatal to such a petition, as was held in the case of Ahmed Jawad Sarwar v. Mst. Zenia (1996 SCM R 1907). According to him a petition under section 491, Cr.P.C. Is maintainable in the matter of custody of a minor only in cases .Of real urgency and it was so held in the case of Nisar Muhammad and another v. Sultan Zari (PLD 1997 SC 852). It has lastly been urged by him that wishes of the concerned minor are of considerable importance in such cases and in the present case the minor does not wish to live with the petitioner.
5. The learned Additional Advocate-General, Punjab and the learned Deputy Prosecutor-General appearing for the State have maintained in unison that the minor son of the petitioner had been illegally removed by respondent No,1 from lawful guardianship of the petitioner and, therefore, it shall be just and fair to restore custody of the minor to the petitioner.
6. After hearing the learned counsel for the parties and the learned law officers at some length and after going through the material and the precedent cases referred to by them I must observe that I have felt distressed over some of the arguments addressed by the learned counsel for respondent No,1, particularly those based upon different faiths professed by the contesting parties to this case and different nationalities and cultures they come from. It is proverbial that all is fair in love and war and in the present 'case it appears that respondent No,1 actually believes in that. When it came to falling in love with a Christian girl religion did not matter to respondent No,
1. When it came to marriage and setting down French nationality of the petitioner and France as an abode did not bother respondent No,
1. When it came to producing a child and bringing him up in France religious inclinations of his spouse and western culture did not make any difference to respondent No, 1 . For respondent No,1 religion, nationality and culture did not have much significance as long as it suited him but when the marital relations between respondent No,1 and the petitioner hit turbulence and ultimately came to a dead end in the war of sorts that ensued over custody of the child respondent No,1 has now found it to be advantageous and convenient to take shelter behind faith, nationality and culture. To respondent No,1 it may appear to be a fair ruse or stratagem in the war over custody of the child but I. Have found such volte-face on the part of respondent No,1 to be offensive to justice, equity and good conscience.
7. Apart from that while taking refuge behind his Muslim faith respondent No,1 appears to have forgotten that his conduct must also match his faith and mere lip service to the faith is not enough to win sympathy of the Court. It is difficult for this Court to ignore that at the time of the minor's earlier removal from France to Pakistan in the year 2001 respondent No,1 had been convicted for kidnapping of the minor by the District Court of Pontoise, France but no sentence was passed against him because the petitioner had shown grace and mercy towards him. It is also hard to overlook that after the present removal of the minor by respondent No,1 from France to Pakistan in the year 2007 the petitioner had lodged a criminal complaint against him before the French police which matter is now before a French Court and International Warrant for Arrest has already been issued against respondent No,
1. It is also not possible for this Court to pay no heed to the stark reality that presently respondent No,1 is behind the bars in connection with a criminal case registered in respect of kidnapping of the selfsame minor. As if this were not enough respondent No,1 has consistently and persistently demonstrated through his conduct that he has no regard for the law and judicial process both here and abroad.
There is no denying the fact that respondent No,1 broke his agreement with the petitioner regarding Omer's custody/residence, he flouted the judgment rendered by the District Court (Tribunal de Grande Instance) of Chalons-en-Champagne, France on 5-2-2003, the judgment handed down by the District Court of Pontoise (Tribunal de Grande Instance de Pontoise), France on 28-1-2005 and also the judgment delivered by the Court of Appeal, Versailles, France on 14-2-2006 and he has persistently and contumaciously been avoiding the process of this Court and of the police for the last more than two years till his recent arrest. It also cannot be ignored by this Court that throughout this period respondent No,1 has been on the run with his minor son and has been hiding in different cities and places throughout the country paying little or no attention to the minor's welfare, state of mind, education, schooling and congenial atmosphere for his upbringing. At the present juncture respondent No,1 is in custody of the police and the minor has become a shuttlecock between his different relatives. With the credentials of respondent No,1 mentioned above it hardly lies in his mouth to invoke Articles 4 and 5 of the Constitution and talk about obedience to the Constitution and the law. Respondent No,1 is a previous convict, a fugitive against whom International Warrant for Arrest stands issued and he is already under arrest in this country facing a criminal charge. His antecedents are checkered as far as obeying the judicial process is concerned. He has repeatedly demonstrated through his conduct over the last many years that his passion for keeping custody of his minor son eludes or outruns his eagerness for his son's welfare.
With such credentials and antecedents of respondent No,1 mere professing of Muslim faith by him and his mere incidence of birth in Pakistan may not suffice all by themselves to conclude that welfare of the minor would lie in living with him rather than in living with a Christian mother of French origin whose credentials are blotless, whose antecedents are clean, whose proven love and care for the child has dragged her in foreign land facing untold trials and tribulations and whose courage, fortitude and character may be better suited for imbibing good moral, social and human, values in the minor's personality.
8. Although elaborate arguments have been addressed before this Court by the learned counsel for respondent No,1 regarding different aspects Of this Court's jurisdiction under section 491, Cr.P.C.
And as to how custody of the minor cannot be taken away from respondent No,1 in exercise of such jurisdiction yet I have found such arguments to be missing the point. It is an admitted fact that the minor in issue was born in France, he is a French citizen besides claiming his additional Pakistani citizenship on account of his father being a Pakistani, the minor's parents had got married in France and after living in that country together for some years their divorce had taken place in France and till date the judgments mentioned above rendered by different French Courts regarding custody/residence of the minor with the petitioner are still holding the field. It is also not disputed that the minor has been recovered by the police of Police Station Sharqpur Sharif, District Sheikhupura in connection with the above mentioned criminal case C lodged by the petitioner against respondent No,1 and others for an offence under section 363, P.P.C. In respect of kidnapping of the said minor and after recovering the minor in connection with that criminal case he had been produced before this Court on the last date of hearing by the police. In view of these admitted and undisputed facts there is very little left for this Court to do at this stage in the present proceedings, filed in the nature of habeas corpus. The minor in issue has been recovered by the police in connection with investigation of the relevant criminal case and such recovery has come about under the umbrella provided by this Court through the present petition. The umbrella of this Court had only provided impetus and support to the local police which was even otherwise under a statutory duty to affect the necessary recovery of the minor allegedly kidnapped. It is quite satisfying to note that the impetus and support provided by this Court in the matter has worked and the minor has been recovered by the police. With the achievement of that objective the role of this Court ends for the present and now it is for the local police to deal with the matter in accordance with the law.
9. Upon my query the Investigating Officer of the above mentioned criminal case and the Superintendent of Police (Investigation), Sheikhupura have stated that the recovered minor is the subject matter of a case of an alleged kidnapping from the .Custody of a guardian lawfully appointed by a Court of law and, therefore, custody of the recovered minor is to be restored by the police to that guardian till completion of the investigation and trial. The said police officers have been allowed to do the needful and within the view of the Court they have handed over custody of the recovered minor to the petitioner who is his real mother and a lawfully appointed guardian.
This petition, thus, stands disposed of.