1. ' This petition has been moved under section 491 of the Code of Criminal Procedure. It relates to the alleged illegal detention of Muhammad Abdullah and his minor son Muhammad Ali, aged 3/4 years. Muhammad Abdullah of Pakistan was married to Mrs. Ulla Margareta Sylvia Muhammad of Finland. They separated in Finland. Muhammad Abdullah, on her complaint was deported from there. In his absence, she obtained ex parte divorce as also custody of the minor; from the Municipal Court of Helsinki. After some time, she along with the child left for Sweden and was residing there when a rapprochement reached between the divorced parties. Muhammad Abdullah joined his ex-wife and child in Sweden where they resided together as one household.
2. There was no second marriage, but it is an admitted position that they had all the inter se relations of a husband and wife. They again fell out. One day, in absence of the mother, Muhammad Abdullah removed the minor boy from their joint house and brought him to Pakistan. The mother followed and having reached Lahore, taking advantage of the promulgation of Martial Law, filed a complaint before the Authorities functioning thereunder, on 'whose intervention the police took action and recovered the minor from the custody of Muhammad Abdullah. It appears that the police, for the purpose of recovering the minor, also took Muhammad Abdullah into custody but, later, they disclaimed it.
3. ' The High Court on being moved by Muhammad Asadullah a brother of Muhammad Abdullah for the release of the detenus from alleged illegal detention, directed the police to produce their bodies, so that they might be dealt with in accordance with law. The police produced the detents and the records. Muhammad Abdullah was not under arrest and Muhammad Ali, the minor, was stated to have been recovered in pursuance of registration of a case for offence of kidnapping allegedly committed in Sweden and continued in Pakistan.
4. ' Mrs. Ulla Margareta Sylvia Muhammad, although not a formal party it being a State case, appeared to assist the Court. In view of her vital interest in the matter, the other party was directed to formally implead her as respondent (No,3), the first two being Martial Law and police authorities.
5. ' During the proceedings it was felt that the minor was not in good health. He was given in purely temporary custody of the father. The mother was afforded opportunity, and was also directed to see the boy daily. Both were told, to look after his health. Muhammad Abdullah made a feeble complaint that the mother did not give enough time to the boy during this period. However, it was not pressed as an issue in the case.
6. ' In accordance with the spirit of the Laws being administered by our subordinate Family Courts, the High Court nominated Mr. Mahmood Ali Kasuri one of the senior most lawyers of Pakistan, an ex- Fcderal Law Minister and a respected citizen, to mediate between the contesting parties for a reconciliation, if possible. He after making efforts appreciated by both parties, reported failure - main hurdle according to him being that although they wanted to re-unite one wanted to stay in Pakistan, the other in Sweden.
7. ' Before commencement of arguments in the case, Mrs. Ulla Margareta Sylvia Muhammad was afforded opportunity to put her case in writing, file affidavit and submit documents, which she availed of. She being a Christian lady, and both the lawyers representing the parties being Muslim it was considered just and proper to nominate a non-Muslim lawyer to assist the Court as an amicus curiae. With the consent of the parties, Mr. Rustam S. Sidhwa, a senior and eminent lawyer, was so appointed.
8. ' Although the learned counsel for Mrs. Ulla Margareta Sylvia Muhammad opened the case and addressed the Court in the form of arguments, the contesting parties were not only permitted but also encouraged to have mutual discussion, with the assistance of their learned counsel. Learned counsel for Muhammad Abdullah argued the case on the second day when both the learned counsel informally reported that the contesting parties had nearly reached a settlement out of Court and a draft agreement was prepared as basis for further negotiations. Arguments, however, were not stopped. On the third day, i,e, today, Mr. Sidhwa the learned amicus curiae addressed elaborate arguments. It will not be out of place to mention that some of his submissions, which undoubtedly were the result of hard work and industry, went in favour of the mother's contentions.
9. However, at the end of his arguments, a written `compromise deed' was presented: for consideration. Although it appeared that a final settlement had been reached out of Court, the parties did not agree on the addition of a sentence in the last but one clause (i) of the deed. There was no alternative but to adjourn the case. An order was accordingly dictated in that behalf. Soon thereafter the parties have after leaving the Court room, returned to state that they have scored out the disputed newly-added sentence in the last part of the agreement. I did not take up the case immediately because one party, on their return, was not accompanied by the counsel.
10. Otherwise too, I thought it proper to give ample time to them to think over the agreement. They fully availed of this rather long interval. In the meanwhile, the learned counsel has also appeared.
11. ' First, I have questioned both the learned counsel representing the contesting patties. They have separately stated that they are fully satisfied with the 'compromise deed' which has now been produced in the final form in Court. They also state that the compromise has been achieved as a result of thorough straightforward and frank discussions in which both the parties fully participated.
12. Learned counsel for Mrs. Ulla Margareta Sylvia Muhammad states that she understands and can read English. The compromise, according to both the learned counsel, would not only be conducive for improvement of relations between both the contesting parties but also is in the welfare of the minor boy.
13. ' The 'compromise deed' produced in Court is recorded and reproduced below:- ' IN THE LAHORE HIGH COURT, LAHORE ' In re: ' MUHAMMAD ABULLAH--Petitioner ' versus ' INCHARGE PUBLIC COMPLAINT CELL ' and others--Respondents ' Compromise deed ' I, Muhammad Abdullah son of Meraj Din, caste Rajput, resident of House No, 9-Amjad Shaheed Colony, Wheatman Road, Moghalpura, Lahore. ' and ' Mrs. Ulla Margareta Sylvia Muhammad, FRIGG SVAGEN 11, 7TR 14569 NORSBORG Sweden at present residing at 151 Habibullah Road, Lahore have agreed on the following terms for the custody of Muhammad Ali (minor) who was born out of our wedlock on 25-12- 1974.
14. ' That Muhammad Abdullah shall leave Pakistan for Sweden during the month of May, 1971 in the company of Mrs. Ulla Margareta Sylvia Muhammad and both will live in Sweden together.
15. ' That Muhammad Ali (minor) will be got admitted in one of the best nursery/educational institutions for his brought up and education and all the expenses shall be borne by Muhammad Abdullah.
16. ' That every year Muhammad Abdullah will take Mrs. Ulla Margareta Sylvia Muhammad to Pakistan and bear one side Air Ticket expenses from Sweden to Lahore and Mrs. Ulla Margareta Sylvia Muhammad shall stay for a month at Lahore and all the expenses for boarding and lodging shall be borne by Muhammad Abdullah. Mrs. Ulla Margareta Sylvia Muhammad will live with the minor in Pakistan.
17. ' That if Muhammad Abdullah comes to Lahore with Mrs. Ulla Margareta Sylvia Muhammad then their stay shall not exceed one month unless it is agreed to be extended and in that case it must be in writing.
18. ' That Mrs. Ulla Margareta Sylvia Muhammad will always be free to seek interview with the minor Muhammad Ali in Pakistan and stay with him as and when she likes. She will always be free to keep contact with the said minor.
(f) That if both the parties to this agreement mutually agree that the child should be taken to Sweden or Finland they will intimate this Honorable High Court in writing with their intention to do so and will be able to take the child to Sweden or Finland with the permission of this. Honorable High Court.
(g) That Muhammad Abdullah will not in any manner hamper the contact and interview with the minor of Mrs. Ulla Margareta Sylvia Muhammad.
(h) That this agreement will not prejudice or-affect in any manner the rights of Mrs. Ulla Margareta Sylvia Muhammad as mother of the child including her right to the guardianship and custody of the minor.
(i) That Mrs. Ulla Margareta Sylvia Muhammad and Muhammad Abdullah will re-marry in Pakistan.
19. ' (Sd.) (Sd.)
20. ' (Muhammad Abdullah) (Mrs. Ulla Margareta Sylvia Muhammad)
21. ' Dated 15-5-1978 ' Sd/ C.M. Latif Rawn Sd/- Zahid Farani ' Advocate Advocate ' 15-5-1978 ' Both the parties have signed the deed in token of its execution and acceptance by them. They have also signed each page thereof. It is also signed by their learned counsel. Let the statement of Mst. Ulla Margareta be recorded.
22. (Sd.)
23. MA. Zullah JUDGE ' Statement of Mrs. Ulla Margareta Sylvia Muhammad ' I have entered the compromise and signed the compromise deed out of my free-will. No one has put any pressure on me. I have carefully read it (she, on direction from the Court, again loudly read it in Court, though at places with the help of her learned counsel). I understand the contents of the agreement. They are acceptable to me. I am satisfied with the process of negotiations for reaching the compromise. I am also fully satisfied with regard to the assistance given to me by my counsel. I am satisfied with the performance of helper counsel (amicus curiae) appointed by the Court, in addition to the counsel representing both the parties. The agreement, as it is contained in the 'compromise deed', is beneficial to both of us, i,e, Muhammad Abdullah and myself. It is also for the welfare of our child (i,e, the minor). After this compromise, I do not want any criminal proceedings to continue against Muhammad Abdullah. I have decided to remarry him. I have started residing in the house of Muhammad Abdullah and the child is now with both of us. I have no objection to this (present) arrangement. I like it. I have no complaint with regard to the conduct of proceedings in this Court. I am fully satisfied with the procedure adopted and assistance provided to me. As a foreigner, I am fully satisfied with the justice administered in this case.
24. (At this stage, Muhammad Abdullah has intervened and states that a shortwhile ago, his wife (what he means is, his would-be wife, as according to the agreement they are yet to remarry) was telling him that she appreciated the standard of proceedings and justice being administered in Pakistan. She also appreciated the just manner in which the proceedings have been conducted in this case by the High Court).
25. (Sd.)
26. M.A. Zullah JUDGE ' Let the statement of Muhammad Abdullah be recorded.
27. (Sd.)
28. MA. Zullah JUDGE ' Statement of Muhammad Abdullah.
29. ' I have compromised the subject-matter of this petition out of Court with Mrs. Ulla Margareta Sylvia Muhammad, whom I have decided to remarry. We have also decided to remarry in Pakistan. This is one of the terms of the compromise. I have not been brought under any pressure for reaching the compromise. I have entered the compromise out of my free-will. It is beneficial for both of us. I understand English well. I can read it. I have read this agreement. I have signed it with free-will. The compromise is not only beneficial for the parties but it is also in the welfare of the minor. My counsel rendered proper assistance to me in these proceedings. I have no complaint with regard to the assistance rendered by Mr. Rustam S. Sidhwa as amicus curiae appointed by this Court. I have no objection with regard to proceedings conducted in this Court. I am fully satisfied with them. They, to my full satisfaction, were just and proper.
30. (At this stage, Mrs. Ulla Margareta Sylvia Muhammad has questioned Muhammad Abdullah by speaking to him in English).
31. ' Have I done anything with you (with regard to the compromise) by force?
32. ' A. No, ' Learned counsel for Mrs. Ulla Margareta Sylvia Muhammad has suggested one last question to he asked from each one of the contesting parties, namely, whether they would keep the welfare of the minor in their view in future as well. The suggestion is reasonable. Let this question be asked.
33. ' O. Will you keep the welfare of the minor in your view in future as well?
34. ' A. (by Mrs. Ulla Margareta Sylvia Muhammad) I have always tried to do everything for the welfare of the minor and I promise that I will always keep his welfare in my mind.
35. ' A. (by Muhammad Abdullah) I will always keep the welfare of my son, Muhammad Ali, in my mind.
36. (Sd.)
37. M.A. Zullah JUDGE ' A compromise has been reached out of Court between the contesting parties, with the assistance of their learned counsel. It includes the question of the custody of Muhammad Ali, the minor, which is now the subject-matter of this petition. I have examined both the parties and questioned their learned counsel. During the examination of both the parties, learned counsel have been afforded opportunity to put questions. The parties have also been afforded opportunity to question each other which they availed of.
38. After recording their statements and observing their demeanour in Court and keeping in view the statements made by their learned counsel, I am satisfied that the compromise reached by the contesting parties is voluntary and is otherwise free from coercion and undue influence of any type. It is not only beneficial for both of them but is also in the welfare of the minor. Arrangements have been made for the well-being and education of the minor. Care has been taken in the agreement that both the parties should have opportunity of showing love and affection to him. I am also satisfied that the compromise reached between the parties, apart from improving the present relations between the parties, would be of considerable assistance to them in resolving future disputes between themselves, including those relating to the minor.
39. As in all such like matters the welfare of the minor, throughout remains the main consideration and the jurisdiction of this Court under section 491, Criminal Procedure Code, being discretionary, therefore, on the afore-expressed satisfaction I have no hesitation in accepting the above- recorded terms of the compromise as the basis of the decision of this Court. .
40. ' As both the contesting parties have reached a compromise, which has been accepted by the High Court being in the welfare of the minor it would be desirable if the State Agencies (Martial Law Authority and Police Investigating Officer) also act in the spirit of the compromise. Mrs. Ulla Margareta Sylvia Muhammad has stated that she is satisfied with the arrangements relating to the custody of the minor as settled and determined in the compromise deed. Therefore, it is obvious that both the parties would not like the aforesaid Agencies to take any action which would have the effect of disturbing these salutary arrangements. With the above order, observations and remarks, this petition is finally disposed of.
41. ' Before closing this order, I deem it necessary to note with appreciation the performance of the learned counsel for all the parties and particularly of Mr. Rustam S. Sidhwa, Advocate who acted as amicus curiae. The efforts made by Mr. Mahmood Ali Kasuri for bringing about a reconciliation between the contesting parties have also been appreciated by them with gratitude.