ADNAN-UL-KARIM MEMON, J. The petitioner Mst. Amber Iqbal Khan has filed this Criminal Miscellaneous Application against the order dated 21.6.2024 passed by learned IV-Additional Sessions Judge, Karachi East in Habeas Corpus Petition No.301 of 2024 (Re: Mst. Amber Iqbal Khan v. Syed Yasir Raza and others), for production of her minor sons namely Syed Khizar Yasir and Syed Umair Yasir, whereby learned Presiding Officer has passed the following order: - "... ...Accordingly, the custody of the above named minors/detenues is hereby ordered be handed over to applicant subject to conditions that she surrenders her Pakistani and Canadian passports and same passports of her children/detenues above named and so also execute a P.R Bond in the sum of R.s.500,000/- (Rupees Five Lac Only). She shall not remove the custody of the above named minorsdetenues from the territorial jurisdiction of this district. The respondent No.1 shall also surrenders his Pakistani and Canadian passports. So far the meeting of minors with their father is concerned, the applicant shall allow him to meet with them on alternate day and such meeting shall be supervised by the concerned SHO. In this regard both the parties mutually shall fix the time and duration of such meeting and communicate the same to SHO concerned before meeting. Both the applicant and respondent No.1 shall have to approach the concerned Guardian Court for getting the custody of the minors regulated on opening of the courts after vacation and this order shall seize its effect as and when the parties file Guardian case before the concerned Guardian Court during the month of July 2024."
2. Per learned counsel, the conditions cannot be imposed in the Habeas Corpus Petition; therefore, the impugned order is liable to be set aside. In support of his contentions, learned counsel has relied upon the cases of Shoukat Masih v. Mst. Farhat Parkash 2015 SCMR 731, Mst. Khalida Parveen v. Muhammad Sultan Mehmood PLD 2004 SC 1, Meer Jan Aberras Lehdeaho v. SHO PS Chung Lahore 2018 SCMR 427, Muhammad Faraz Shaikh v. Ms. Jaweria Shahani 2024 YLR 1330, unreported judgment dated 28.12.2022 passed by the Islamabad High Court Islamabad in Writ Petition No. 3181 of 2022, Ms. Louise Anne Fairley v. Sailed Ahmed Rana PLD 2007 Lahore 293, Mrs. Alizbeth Dinshaw v. Arwan M Dinsha 1989 MLD 2209, Mst. Farhat Umair Hanif Ghanchi 2019 CLC 1311, Abid Hussain v. Rukhsana Munir 2020 YLR 1533, Thomson v. Thomson (1994) 3 SCR 551, Mst. Wafa Andaleeb v. Imran Bhatti (2015 PCr.LJ 875) and Mahak Bibi v. Additional Session Judge (2014 MLD 1718). He prayed for allowing the Criminal Miscellaneous Application as prayed.
3. Learned counsel for the respondent has refuted the claim of the applicant with the assertion that the case reported as 2018 SCMR 427 (Mirjam Aberras Lehdeaho v. SHO PS Chung, Lahore), Mst.
Reema v. SHO PS Darri Larkana PLD 2014 Sindh 598, Mahak Bibi v. Additional Session Judge and others 2014 MLD 1718, Sumayya h Moses v. SHO Faisalabad and others PLD 2020 Lahore 716 and Muhammad Younas v. Shahzad Qamar and others PLD 1981 Lahore 280 makes a Guardian Court as the final arbitrator to adjudicate upon the question of custody of a minor. He prayed for the dismissal of the Criminal Miscellaneous Application.
4. I have heard the learned counsel for the parties and perused the record with their assistance and case law cited at the bar.
5. The main thrust of the argument of the learned counsel for the applicant is that this Court under criminal jurisdiction is empowered to order for annulment of the proceedings, if any, pending before the Guardian and Wards Court and the powers can also be exercised under Section 561-A, Cr.P.C while handling the issue of the Habeas Corpus Petition. However, he admitted that ordinarily a petition under Section 491, Cr.P.C is not competent when there is no element of illegal custody by the father of his child but in the welfare of the child as well as to ensure that rights conferred upon the child or protected appropriately then this Court can also pass appropriate orders in exercise in her jurisdiction under Section 561-A Cr.P.C. Learned counsel emphasized that when the minor is foreigner then the family Court in Pakistan has no jurisdiction to decide the custody issue of minor.
6. It is well-settled law that the paramount consideration while deciding the question of custody of the minor is the welfare of the minor which has to be seen in view the age, sex, and religion. Welfare includes his moral, spiritual, and material well-being. While considering what is the welfare of the minor the court shall have regard to the age, sex, and religion of minor, the character and capacity of the proposed guardian, his nearness of kin to the minor, and the preference of the minor if he or she is intelligent enough to make it.
7. The invocation and passing of the writ of Habeas Corpus is enshrined in Article 199(1)(b)(i) of the Constitution whereby any person may file an application seeking the High Court to direct that "a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner". However, the invocation and passing of the writ is subject to the satisfaction of the High Court and no adequate remedy is provided by the law. However, in the present case, the applicant-mother filed Habeas Corpus Petition No.301 of 2024 before the learned IV-Additional Sessions Judge, Karachi East, and the custody of the minors/detenues was handed over to applicant subject to conditions that she surrenders her Pakistani and Canadian passports and same passports of her children/detenues above named and so also execute a P.R Bond in the sum of Rs.500,000/- (Rupees Five Lac Only). She was further directed not to remove the custody of the minors/detenues from the territorial jurisdiction of the district South. So far the meeting of minors with their father is concerned, the applicant was directed to allow the father to meet with them on alternate days and such meeting shall be supervised by the concerned SHO. Both the applicant and respondent No.1 were directed to approach the concerned Guardian Court to get custody of the minors. Now the father has applied for custody of the minors before the concerned Guardian Court, which factum is also objected to by the applicant on the premise that the objectives of the Hague Convention are to protect children from wrongful international removals or retentions from their lawful custodians by requiring that Children be returned to their country of habitual residence for resolution of any custody dispute and in compliance of Article 12, the child be returned, and any dispute over permanent custody be litigated at the place of habitual residence and the learned Guardian Court should refrain from exercising the jurisdiction to the matter which is already sub- judice in another international forum; that the child in the age of Hizanat cannot be handed out to the respondent-father, this aspect is covered by a number of the judgments rendered by the Supreme Court where the welfare of child is held to be the key consideration.
8. Primarily, the G&W Act allows a person to be appointed the guardian of a minor "if it is satisfied that it is for the welfare of the minor ..." It is only once a person is appointed the guardian that they may seek recourse to Section 25 of the G&W Act for recovery of custody of a ward. Whatever the inter se relations between the parents may be, the purpose of a writ of Habeas Corpus when it comes to the production of a child is to ensure that the child is, at any given moment, capable of being produced before a Court of law. However, "... there can be no question that a Writ of Habeas Corpus is not to be issued as a matter of course, particularly when the writ is sought against a parent for the custody of a child. Clear grounds must be made out ..." The writ must only be issued in favor of a person who is entitled to custody of the child.
9. This right to custody, however, "is a dwindling right" which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is.
10. The Supreme Court in the case of Mst. Qurat-ul-Ain v. Station House Officer, Police Station Saddar Jalalpur Jattan, District Gujrat and others has held that the tendency of the High Courts to readily and unhesitatingly resort to extreme measures by involving law enforcement agencies in family matters cannot be appreciated, especially where no element of criminality is there and the child is in the lawful and rightful custody of the parent. Such actions cause unnecessary trauma and harassm ent for the concerned parent, especially where the concerned parent is the real father of the child. The High Court must exercise extreme care, caution, and circumspection in such matters. Only in exceptional and extraordinary circumstances, where all other methods and measures fail and an element of criminality, forced removal, kidnapping, and/or abduction of the child is involved. Issuance of a writ of habeas corpus in a custody matter should be an exception, and not the rule, as the G&W Act provides the Guardian Court with all requisite powers to pass and enforce its orders in matters of custody of the child(ren).
11. It is, in my opinion, inappropriate for this court under section 561-A Cr.P.C. to encroach upon and arrogate itself the powers of a Guardian Court, which is the court of competent jurisdiction under the law, to decide all matters relating to custody of child(ren). The Supreme Court in the cases Shabana Naz v. Muhammad Saleem (2014 SCMR 343), Muhammad Owais v. Nazia Jabeen (2022 SCMR 2123 and Beena v. Raja Muhammad (PLD 2020 SC 508) has dilated upon the subject issue needs no further deliberation on my part.
12. An upshot of above discussion is that in the presence of an adequate remedy, the High Court is precluded from exercising jurisdiction under section 561-A Cr.P.C.
13. I am of the view that the purpose of filing this Criminal Miscellaneous Application is served as the minors have already been produced before learned IV-Additional Sessions Judge, Karachi East in Habeas Corpus Petition No.301 of 2024 and custody has been handed over to the applicant; and, conditions so imposed has already been lifted and no more in the field thus cannot be acted upon under the circumstances of the case as discussed supra. Prima facie the minor is with the applicant-mother and the issue of permanent custody is under adjudication before the learned Guardians and Wards Court instituted by the respondent-father for that the learned court is first required to see whether it has jurisdiction to adjudicate the matter on the subject issue in the light of law laid down by the Supreme Court and law cited by the learned counsel for the applicant. The issue of jurisdiction must be decided on a priority basis within one week to end the anxiety of the parties for the reason that in cases, concerning the custody of a child, this Court is not required to go into the intricacies/technicalities of the matter in Criminal Jurisdiction and should confine its findings to the extent of the welfare of the child/minor which is a paramount consideration for that the proper forum is available under the law, which is subject to its jurisdiction.
14. In the light of the facts and circumstances mentioned above the instant Criminal Miscellaneous Application is disposed of along with the pending application(s), in the above terms.