' IFTIKHAR MUHAMMAD CHAUDHRY, C.J.---This petition has been filed for leave to appeal against the judgment dated 25-8-2010 in Writ Petition No, 1530 of 2010 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi.
2. Precisely stated facts of the case are that tie of marriage between the petitioner and her former husband Syed Khawar Hussain (respondent) could not continue. However, during subsistence of marriage minor Syed Muhammad Ahmed Hussain alias Muhammad Hamad Shah was born who remained with the mother. On Khula petitioner got her marriage dissolved vide judgment of the Family Court dated 3-11-2007 and subsequent thereto contracted a second marriage with a person residing in United States of America (U.S.A.). The respondent instituted a suit for change of custody being father and natural guardian of the minor. On apprehending removal of the minor outside the country he also obtained a restraint order from the Islamabad High Court by instituting Writ Petition No,363 of 2009. Meanwhile, learned Guardian Judge on having observed codal formalities including recording of evidence, etc. Allowed the application filed by respondent, on 21- 1-2010 directing the change of custody of the minor. Appeal filed by the petitioner also failed as the same was dismissed by Additional Sessions Judge, Islamabad on 9-4-2010. She could not get relief before the High Court as well, as the writ petition filed by her failed vide impugned judgment dated 25-8-2010. It seems that respondent being the natural guardian of the minor was insisting for execution of the order of the Guardian Judge as such the instant petition was taken up for hearing on 22-9-2010 when order for issuance of notice to the respondent was passed. In the meantime, subject to notice, parties were required to maintain status quo. On the next date of hearing viz. 8- 10-2010 following order was passed in presence of parties:-- "It is already 12-45 p.m. And it is not possible to conclude the case today and the case is adjourned to 18-10-2010. In the meanwhile, minor Muhammad Hamad Shah whose original name is stated to be Syed Muhammad Ahmed Hussain son of Syed Khawar Hussain whose passport number is HD5149701 shall not be removed outside the country till decision of this petition. Copy of this letter be immediately sent to Secretary, Ministry of Interior for placing the name of the child on the E.C.L.
Learned counsel for petitioner is required to produce the child in the. Court on the next date of hearing and if petitioner leaves the country, statement in this behalf shall be made by the counsel which we would consider while disposing of the petition on merits."
' It would not be out of context to note that respondent's apprehension was that petitioner intended to go out side the country with her second husband and there was every likelihood that minor Syed Muhammad Ahmed Hussain alias Muhammad Hamad Shah would also be taken by her as in the meantime, she had obtained immigration visa for him as well. When on 18-10-2010 case was taken up, no one appeared on behalf of the petitioner, therefore, following order was passed:-- "Petitioner an 1 her counsel are not present. Adjourned to 20th October, 2010. Learned counsel is required to attend the Court and also ensure production of the child on the next date of hearing. If the petitioner has left Pakistan he would also make statement and would inform the whereabouts of the child. Notice to the petitioner at available address be also sent during, course of the day."
' In response to the above order learned counsel for the petitioner has appeared and filed a statement which reads as under:-- "I Malik Qamar Afzal Advocate Supreme Court make statement before this Hon'ble Court. Mst.
Ammara, the petitioner in C.P.L.A. No,1854/10 has proceeded to United States on 10th October, 2010, as she was in a family way.
' The child is available at the address H. No, I 1-C NARC Officers Colony Park Road, Islamabad."
' As far ,as minor Syed Muhammad Ahmed Hussain alias Muhammad Hamad Shah son of Syed Khawar Hussain is concerned, he has been produced by his maternal grandmother, Mrs. Syeda Robina Waseem. Learned counsel for petitioner states the mother of minor has not taken him with her and has gone herself to USA which is also evident from the statement noted hereinabove.
3. Learned counsel vehemently contends that though the mother had left the Pakistan because she was in the family way, change of custody of minor at this stage would not be in minor's welfare as he has. Been all along living with maternal grandmother and other family members since the time his mother was forced to leave the house of his father as far back as in the year 2004, therefore, he has developed attachment with her. Contrary to it, according to him, the boy has no such attachment with father who has even otherwise no arrangements to look after the child because of absence of any female member in his house. On the other hand, respondent, who has appeared in person, vehemently refutes these statements and states that petitioner - mother had no interest in the minor to look after him which is evident from the fact that she has alone left for U.S.A. Only on account of the order earlier passed by the Islamabad High Court and the order of this Court and that this was the reason that she could not succeed in removing the minor outside the country, otherwise she had obtained immigration visa for him as well. Further states that he has not contracted second marriage because he contemplates to look after his son; that his unmarried sister who is well educated, presently residing with him, will look after him being the nearest kin and that he himself can go to any extent for the purpose of providing everything to him.
4. We have heard learned counsel for the petitioner at a considerable length and have also gone through the judgments passed by the learned Guardian Judge, first Appellate Court as well as the High Court. Undoubtedly, there are three concurrent findings of facts against the petitioner - mother and argument has been advanced to persuade us to interfere in these judgments on the ground that it would not be in the interest of minor in such like cases if the custody is changed. In this respect he has placed reliance upon the following reported judgments:--
(1) Mst. Razia Rehman v. Station House Officer and others (PLD 2006 SC 22).
(2) Khan Muhammad v. Surayya Bibi (2008 SCM R 480)
(3) Mst. Naseem Akhtar v. District Judge, Multan and others (2009 SCM R 1052).
' The judgment relied upon by the learned counsel in the case of Razia Rehman (supra) arises out of a Habeas Corpus Petition under section 491, Cr.P.C. Which came up before this Court for consideration with regard to the custody of his son Ubaid-ur-Rehman from her first husband who died in an accident whereafter she had contracted second marriage. As far Ubaid-ur-Rehman, minor is concerned it may be stated, that no one claimed his custody or Hizanat because his father had died in accident and the mother wanted to take the minor with her to U.K. Where she was earlier living and on the basis of these facts relief was extended to her. This case is not applicable, at all in any manner to the case in hand because, the respondent being father of the minor has contested the proceedings right from the Court of Guardian Judge up to this Court and is very keen to accept the custody of minor and look after him. As far as remaining two judgments are concerned principle of welfare of minor was discussed. It was held that although the father is entitled but the predominating consideration should be the welfare of the minor. As far as the proposition of law is concerned, there is no cavil with it and this test is to be applied on the facts of each case in its peculiar circumstances. In this behalf reference may also be made to Mrs. Seema Chaudhry and another v. Ahsan Ashraf Sheikh and others (PLD 2003 SC A 877). According to facts of this case a divorced mother who had given birth to a child from her first husband had contracted second marriage; whereas the father of the child had not married again, therefore, considering these circumstances the custody of minor was not given to the mother though both were living in Pakistan and the Court observed that "The scanning of the facts pleaded by the parties would bring us to the irresistible conclusion that it would not be in the interest and welfare of the minor to allow to the petitioner to keep the child in her custody in the house of his step- father. More essentially, this judgment is applicable with its full force on the facts and circumstances of this case. Admittedly, the petitioner had married a person residing in USA and now she has left the Pakistan, palpably, to join her second husband in U.S.A., and that she had even maneuvered to obtain immigration visa for the child seemingly for no purpose other than taking him away from his superintendence to a place far flung from the one of the father, for which, no plausible reason could be offered. We are, therefore, of the considered opinion that for these reasons the petitioner is not entitled to the custody of minor and the respondent father of the minor - is entitled to have the custody in the larger interest and welfare of the minor which is always a predominating condition in such like cases.
5. Thus, for the foregoing reasons the concurrent findings of facts recorded by the Guardian Judge and affirmed by the first Appellate Court as well as by the High Court are maintained. The petition is dismissed and leave refused.
6. As the minor Syed Muhammad Ahmed Hussain alias Muhammad Hamad Shah son of Syed Khawar Hussain, is presently in custody of her maternal grandmother, namely, Mrs. Syeda Robina Waseem, therefore, she is directed to hand over the custody of the minor to the respondent before the Registrar of this Court, who shall submit the compliance report during course of the day.
Needless to observe that Mrs. Syeda Robina Waseem would have right to meet the minor Syed Muhammad Ahmed Hussain alias Muhammad Hamad Shah and for this purpose on every Friday at 3-00 p.m., respondent Syed Khawar Hussain shall deliver the custody of the minor to her and shall take him back on next day viz: Saturday at 3-00 p.m. This arrangement shall continue between the parties unless they change the same with their mutual consent before a Court of law.