M, Tabassum Aftab Alvi, J.--The supra titled Habeas Corpus petition has been addressed under Section 491 of Criminal Procedure Code, 1898, whereby following prayer is made by petitioner:- "It is, therefore, most respectfully prayed that while accepting this petition, the non-petitioners may please be directed to produce the minor girls named Laweeza Salik Khan, date of birth 7th March 2005, Larina Salik Khan, date of birth 15th January 2008 and Lavina Salik Khan, date of birth 10th January 2009, before this honorable Court and Custody of the minors handover to the petitioner herein for the best welfare and future of the minors."
2. The precise facts culminating into filing of the instant petition are that petitioner Salik Zahoor Khan, is a British national who married to Respondent No, 1 viz Nazia Salik, at Mirpur Azad Kashmir in the year 2004. Out of the wedlock three daughters namely Laweeza Salik Khan, Larina Salik Khan and Lavina Salik Khan were born. As per stance of petitioner Respondent No, 1 is suffering from different diseases like Schizophrenia, Post Partum Psychosis, Paranoia, Delusions and Hallucinations, since 2008. It is averred that in January, 2Q14, Respondent No, 1 Nazia Salik, came in Pakistan alongwith the aforesaid minors to attend marriage ceremony of her brother. After completion of visit period, when Respondent No, 1 was asked by petitioner to return back to UK with the minors, however, she was not allowed by Respondents Nos. 2 and 3 for ulterior motives. As per claim of petitioner, Respondents Nos. 2 and 3 have planned to compel Respondent No, 1 to abandon UK and also determined to retain children in Pakistan, who will also destroy their passports. It is maintained that High Court of Justice family Division, UK has issued an order dated 30th March, 2015, commanding that minors are British nationals, wards of the UK Court and habitually resident in England and Wales who were removed from UK jurisdiction to Pakistan, }mice, private respondents shall handover the children alongwith travel documents as well as passports to petitioner. It is further stated that interim custody of minors shall also be determined by the Court of competent jurisdiction. The claim of petitioner is that UK and Pakistan superior Courts have signed a UK-Pakistan Judicial Protocol in, 2003, on children matters and superior Courts of Azad Jammu & Kashmir are signatory of the said protocol. It is alleged that minors children were abducted from UK' and retained illegally in jurisdiction of this Court, who cannot be detained here according to spirit of the aforesaid protocol. It is maintained that Respondents Nos. 2 and 3 retained the minors in home and did not allow them to go outside, move freely and meet with petitioner and his relatives. The stance of petitioner is that Respondents Nos. 1 to 3 are also not capable to meet daily needs of the minors who have been deprived from better education and medical facilities, hence, the petitioner constrained to file the instant Habeas Corpus petition.
3. Mr. Muhammad Yaseen Khan, the learned counsel for petitioner, while reiterating the grounds of petition submitted that as minors as British Nationals who were brought in Pakistan (Mjrpur Azad Kashmir) only to attend marriage ceremony of their maternal uncle, however, they have been illegally detained by Respondents Nos. 2 and 3 for ulterior motives. He further argued that Respondent No, 1 is a patient of various diseases who cannot look after the minors properly, therefore, welfare of minors lies with father-petitioner. The learned counsel further pressed into service that as the matter pertains to custody of the minors, which is subjudice in the High Court of Justice, Family Division, Birmingham, UK, therefore, on the basis of command issued by the aforesaid Court minors are in illegal custody of Respondents Nos. 1 to 3, hence, they are liable to be returned back at UK. The learned counsel in support of his contentions referred to and relied upon the following case law:- ,
(i) Ali Akbar us. Mat. Kaniz Maryam, [PLD 1956 Lahore 484].
(ii) Muhammad Sadiq vs. Mrs. Sadiq Safoora [PLD 1963 (W.P.) Lahore 534].
(iii) Muhammad Yousuf alias Salim vs. Aba Ali Adam and others [1992 P.Cr.LJ 2176].
(iv) Ms. Louise Anne Fairley us. Sajjad Ahmed Rana and 2 others. [PLD 2007 Lahore-293] In case of All Akbar, supra, it was held by the apex Court of Pakistan that as minor was removed from jurisdiction of the Lahore High Court, which can entertain and adjudicate upon application. It was further held that right, to Muhammadan mother to the custody of minor is subject to the control of father and if she takes away the minor against wishes of father to a place where the father cannot exercise supervision and control, she acts without authority and her taking away the minor amounts to removal of the ward from the custody of father.
In case of Muhammad Sadiq, ibid, it was held by the Lahore High Court that father must be regarded as natural guardian of his children both male and female until they attain the age. Of 18 years.
In case of Muhammad Yousuf alias Salim, supra, it was held by the Karachi High Court that in matter of custody of minors High Court has jurisdiction under section 491 Cr.P.C. To adjudicate upon the lis which is definitely more efficacious, speedy and appropriate remedy.
In case of Ms. Louise Anne Fairley, ibid, it was held by the Lahore High Court that despite restraining order passed by Court of foreign jurisdiction, father removed the minor to Pakistan. It was opined that matter pertaining to custody of minor was pending before the Court of foreign jurisdiction as they were nationals of that foreign country, hence, by entertaining Habeas Corpus 'petition the Court directed to the father to handover custody of minor to her mother and raise all pleas before the Court of foreign jurisdiction.
4. Raja Inani Ullah Khan, the learned counsel for private respondents, strenuously argued that as the minors are in custody of their real mother who has the right of Hizanat, therefore, their custody cannot be deemed as illegal, hence, petition is not maintainable. He further argued that welfare of the minors lies with the mother, thus petition is bad in law. The learned counsel maintained that petitioner has got an alternate remedy of filing an application under Section 25 of Guardian and Wards Act, 1890, before the concerned Family Court, Mirpur, hence, submitted for dismissal of petition.
5. After hearing the learned counsel for parties at great length, we have perused the contents of petition and examined the appended record. We have also heard mother, grandmother as well as father of the minors and have given our earnest thought to the points raised by the learned counsel for parties.
6. Admittedly petitioner and Respondent No, 1 got married at Mirpur in the year 2004 and out of the Wedlock three children viz Laweeza Salik Khan, Larina Salik Khan and Lavina Salik Khan, were born at UK. It appears from record that till 2014, petitioner and Respondent No, 1 both have been living at UK and enjoying joint custody of their aforesaid children. However, Nazia Salik, Respondent No, 1, came in Pakistan (Mirpur Azad Kashmir) alongwith the minors in January, 2014. The minors are, therefore, British nationals, who except for a very short period, throughout have been living in UK, which fact is sufficient to establish that they are habitual resident of United Kingdom. All the aforesaid minors possessed British Passports, hence, are British citizens. The petitioner has filed a petition for custody of the minors before the High Court of Justice (Family Division) the Family Court at Birmingham, UK which has passed the following order on 30th March, 2015:-- "1. Laweeza Salik Khan (a girl) born on 7th March 2005, Larina Salik Khan (a girl) born 15th January 2008 and Lavina Salik Khan (a girl) born on 10th January 2009 shall be made Wards of this Honourable Court during their minority or until further order.
2. The said children are habitually resident in the jurisdiction of England and Wales.
3 The children have been wrongfully retained outside of the jurisdiction of England and Wales in September 2014.
4. The Respondent Nazia Salik and or Muhammad Tariq Khan and/or Zanfar Tariq shall handover the children Laweeza, Larina and Lavina Salik Khan along with all travel documents in respect of each of the said children, including their passports, to the Applicant Father immediately, upon his arrival in AK girpur area. The Respondent Nazia Salik and/or Muhammad Tariq and/or Zanfar Tariq that the children's passports must be handed over to the Applicant Father Salik Zahur Khan at the same time as the children are delivered into his care.
5. Every person within the jurisdiction of this Court who is in a position to do so shall co-operate in assisting and securing the immediate return to England and Wales of Laweeza Salik Khan, Larina Salik Khan and Lavina Salik Khan, Wards of this Hon'ble Court.
In the event the Father Salik Khan is unable to secure/retrieve the children's passports as so directed in the order. The British High Commission/Foreign Commonwealth Office is directed to issue emergency travel documents without the Mother's consent for the children Laweeza Salik Khan (a girl) born on 7th March 2005, Larina Salik Khan (a girl) born 15th January 2008 and Lavina Salik Khan (a girl) born on 10th January 2009 in assisting the return of the children as so directed by the United Kingdom Court.
7. The Applicant shall fax copies of this order to the Clerk to the Right Honble Lady Justice Black at the Royal Courts of Justice, The Strand, London WC2A 2LL (DX 44450 Strand RCJ; Fax 020 7947 6408); and to the Head of the Consular Division, Foreign and Commonwealth Office, Spring Gardens, London SW1A 2PA, te1.020 7008 0212, fax 020 7008 0152.
8. The matter shall be listed for directions within 7 days of the return of the children to England and Wales or in the event that they have not been returned to the jurisdiction of England and Wales, the matter shall be listed for directions at 10.30 on 14th May 2015 before The Hon 'ble Mr. Justice Keehan at Royal Courts of Justice, Strand, London, WC2A 2LL.
Costs reserved.
AND THE COURT RESPECTFULLY REQUESTS:
9. Any person not within the jurisdiction of this Court who is in position to do so to co-operate in assisting and securing the immediate return to England and Wales of the Wards, Laweeza, Larina and Lavina Sank Khan,
10. AlI judicial, administrative and law enforcement authorities of the Islamic Republic of Pakistan to use their best endeavours to assist in taking any steps which may to them appear necessary and appropriate in locating, safeguarding and facilitating the return to England and Wales of the said minor child pursuant to the laws of the Islamic Republic of Pakistan and in accordance with the Protocol made on the 17th January 2003 in London and signed by the Hon'ble Chief Justice of the Supreme Court of Pakistan and by the Right Hon'ble the President of the Family Division of the High Court of Justice of England and Wales.
Ordered by The Honble Mr. Justice Keehan.
On 30th March 2015."
As petitioner, private Respondent No, 1 and all the manors are British nationals, therefore, the UK Court could competently decide the dispute between parties about custody of the /minors, hence, order passed by the UK Court is binding on private-respondents.
7. The contention of the learned counsel for contesting respondents that welfare of the minors lies' with the mother, suffice it to say, that the question about welfare of the minors can only be decided by the Court where the minors are habitually residing. In the B given case, as has been held earlier that UK Court has jurisdiction, hence, we would not like to interfere in the jurisdiction of the Court seized with the matter regarding determination of issue of welfare. The contesting respondents may raise plea before the Court in UK.
8. We are alive that as per Article 12 of the Convention on the rights of children to which, Pakistan and UK are the signatories, view and opinion of the minor is very important. We, therefore, examined and interviewed the children in chamber at Circuit Mirpur, on 22,05,2015. Although the minors wanted to join their father, subject to , condition that their mother alongwith grandparents also accompanied them, otherwise they wanted to live with their mother. However, we are of the considered view that as the minors are living with their mother and grandparents, therefore, due to influence of private respondents, much importance cannot be given to their opinion. -
9. The crux of above discussion is that by allowing .The instant Habeas Corpus petition, Respondents Nos. 1 to 3 are hereby directed that they shall allow petitioner to meet the minors Laweeza Salik Khan, Larin. Salik Khan and Lavina Salik Khan, on every day, for two hours from 11:00 a.m. To 01:00 p.m., in their present residence, for fortnight. After the aforesaid period private Respondents Nos. 1 to 3 shall handover the custody of the minors alongwith their travelling documents to father-petitioner and in case of their failure to do so, Judge Family Court, Mirpur shall summon the minors after fortnight on the' very next day, from the aforesaid private-respondents and handover them to father-petitioner. The British High Commission Islamabad shall be responsible to send the minors along with petitioner and their mother, if she is also willing, to UK. An attested copy of the instant judgment shall be transmitted. To Judge Family Court, Mirpur for information and compliance.