ZIA MAHMOOD MIRZA, J.~ This habeas corpus petition moved by Mst. Iffat Mir petitioner seeking a direction to be issued to her husband Mobeen Qasim Mir respondent to produce the minor child Salman Mir aged 6 years in this Court and for restoration of the custody of the minor to her was allowed by me on 1.8.1991 by short order reproduced hereunder:- "For reasons to be recorded separately, this habeas corpus petition is allowed and the respondent is directed to hand over the custody of the minor Salman Mir to the petitioner in this Court on 10.8.1991, of course, on the petitioner or some other person furnishing security in the sum of Rs.
10,00,000/- (Rupees Ten Lacs) to the satisfaction of the Additional Registrar of this Court to the effect that the minor shall not he removed out of Pakistan except with prior permission of this Court and that in the event of the respondent moving a petition under section 25 of the Guardians and Wards Act, the minor would be produced before the Guardian Judge as and when required."
I now proceed to record the reasons in support of the afore-noted order.
2. Petitioner. British resident whose parents had moved to United Kingdom in 1976, was married to Mobeen Qasim Mir respondent in Rawalpindi on 26.12.80 Parties were even otherwise closely related to each other. Respondent's father who has since died was the maternal uncle of the petitioner.
Soon after the marriage, the spouses left for England where the petitioner wanted to take up studies in Chartered Accountancy. While in England, two sons, Zeeshan Mir and Salman Mir were born to the couple. Zeeshan Mir, the elder son, is now 8 years old and Salman Mir, who is the bone of contention between the parties in the present proceedings, is aged 6 years. Petitioner is staled to have become a British citizen in 1988 and her minor sons are also thus the citizens of United Kingdom.
3. It is alleged by the petitioner and not denied by the respondent that relations between the spouses became strained while they were living in U.K. They, however, continued living together in England. It is stated that the petitioner alongwith her two minor sons came to Pakistan in January 1989-in order to look after the ailing parents of the respondent and stayed with them till April 1989.
During this period, respondent also visited Pakistan. Petitioner and the respondent alongwith their children once again came to Pakistan in November, 1989. Soon after their arrival, respondent's father dies. It appears that because of the death of his father, respondent decided to stay in Pakistan, whereas the petitioner was adamant to go back to England. It is alleged by the petitioner that attitude of the respondent and his family became harsh towards her and she suspected that the respondent will keep the minors with him and she will be forced to leave for England all alone.
Petitioner, therefore, with a view to secure the return of the minors to England, tried to take them to the house of her uncle but while she was leaving the house of the respondent alongwith the children, the respondent and his mother snatched away from her the younger son Salman Mir and the petitioner managed to take only the elder child Zeeshan Mir with, her to the house of her uncle.
Case of the respondent, on the other hand, is that the petitioner left his house alongwith her elder son Zeeshan Mir in a clandestine manner "leaving the minor Salman Mir with the respondent of her own accord". Be that as it may, petitioner, it is alleged, stayed with her uncle/aunt till 3rd of February. 1990, and during this period, he made efforts for the return of the minor. Salman Mir but the respondent refused to hand him over to the petitioner. Apprehending that she might even lose the custody of the elder child, petitioner left for U.K. Alongwith the said child on 3.2.1990 and in March, 1990, she instituted custody proceedings under the Guardianship of Minors Acts 1971 and 1973 in the High Court of Justice, Family Division, Birmingham District Registry. The District Registrar ordered on 11.6.1990 that the minor Zeeshan Mir does remain in the interim custody of the plaintiff/petitioner but he refused to make any order in respect of the minor Salman Mir. On appeal, interim custody of minor Salman Mir was also granted to the petitioner with the further direction that "forthwith upon service of this order, the minor Salman Mir be returned to the plaintiff and thereafter shall not be removed from the jurisdiction of this Court without further order". This was vide order dated 16.7.1990 passed by the High Court of Justice (Copy annexure 'B'). The matter of custody of both the minors was finally decided by the High Court of Justice, Family Division, Principal Registry, vide order dated 15th March, 1991 (copy Annexure 'C') after hearing both the parties and the counsel for the minors. This order made the following directions:- i) The minors Zeeshan Mir and Salman Mir do remain wards of the Court during their respective minorities or until further orders; ii) Care and control of the said minors be committed to the plaintiff i.e. The present petitioner; iii) The first defendant i.e. Respondent herein shall cause the minor Salman Mir to be returned to the jurisdiction of the Court of England and Wales by not later than 22nd of March, 1991 and deliver up the said minor to the petitioner within 48 hours thereafter; iv) The respondent is not to remove either of the said minors from the care and control of the plaintiff; and v) The respondent's passport to continue to be retained by the Court until further order.
4. It is alleged by the petitioner that the respondent violated the afore referred order of the High Court of England, secured another passport and came back to Pakistan. According to the petitioner, after obtaining the order for interim custody of the minor Salman Mir, she had come to Pakistan in October 1990 but could not locate the whereabouts of the minor and, therefore, returned to U.K. Now after the delivery of the final Judgment by the British Court, the petitioner having learnt that the respondent and the minor Salman were in Rawalpindi, she came to Pakistan on 25.5.1991. She obtained a warrant under section I0O Cr.P.C, from a Magistrate but it could not be executed. She then filed this habeas corpus petition. She is also stated to have filed a petition before the District Judge, Rawalpindi, for execution of the decree of the British Court under section 44-A C.P.C, which is fixed for 22.9.1991.
5. On 30.6.1991, notice was ordered to issue to the respondent through a special messenger directing him to produce the minor on the following day. The respondent refused to accept the notice. An order was accordingly passed on 1.7.1991 that bailable warrant for his arrest returnable to the District Magistrate be issued of 3.7.1991. This warrant also could not be executed and it was reported that he had left his house three days ago. Non-bailable warrants were- then ordered to be issued against the respondent for 14.7.1991 with the direction to SSP, DSP of the concerned Sub Division and Inspector of Police Station Sadiq Abad to ensure the arrest of the respondent and production of the minor on the next days of hearing. It was further order that service of the respondent to also effected through publication in Daily 'JANG' and Daily 'NAWA-E-WAQT Rawalpindi. Notice was also ordered to be issued to the respondent to show cause why proceedings in contempt be not initiated against him. In view of the peititoner's apprehension that the respondent may remove the child out of country, Secretary, Ministry of Interior, Government of Pakistan, was directed to issue necessary instructions forthwith to Immigration Authorities not to allow the respondent to take the minor Salman Mir out of Pakistan in any manner without the leave of the Court.
6. On 14.7.1091, the respondent appeared alongwith his Advocate Mr. Abdul Rashid Awan. Both the parties were directed to surrender their passports as also the passport of their child to the Additional Registrar of this Court and the Secretary, Ministry of Interior, Government of Pakistan, was directed not to issue any other passport to the parlies and their child till further orders of this Court.
In order to enable the parties to settle their differences out of Court and to reach some amicable settlement, they were directed to live together at-least for five days in the house of Mian Bashir Ahmad, maternal uncle of the petitioner and paternal uncle of the respondent and the case was adjourned to 20.7.1991. Petitioner did not press the contempt proceedings against the respondent and the notice issued to him was thus re-called. Efforts for reconciliation between the parties, it appears, have remained fruitless.
7. I have heard learned counsel for the parties at considerable length. Parties who have been present throughout the proceedings were also heard in person and they were allowed an opportunity to have exclusive meeting for sorting out their differences but with no better result.
8. Learned counsel for the petitioner has submitted that the petitioner being the mother is entitled in law to the custody of the minor Salman Mir who is admittedly below the age of seven years. She was wrongfully deprived of the custody of the minor by the respondent and his mother who forcibly kept back the child. Learned counsel has further contended that in the presence of the judgment of the High Court of England Granting custody of the minor Salman Mir to the petitioner and directing the respondent to return the minor to her, respondent's custody of the minor is wholly illegal. In the circumstances, it is argued by the learned counsel that it is a fit case for restoring the custody of the minor to the petitioner under section 491 Cr.P.C. In support of the submission, the learned counsel has relied upon the following cases:-
1. Safia Bibi v. Ghulam Hussain Shah (PLD 1970 Azad J&K 13),
2. Gulzar Khurshid Ahmad v. Sajjad Akbar (1977 P.Cr.L.J. 800).
3. Gullan v. Allah Dill a (1984 P.Cr.L.J. 1047).
4. Rizwana Bokhari Vs. Abdul Majeed Shah (P.Cr.L.J. 2582),
5. Sakina Bibi v. Muhammad Aslam (1987 P.Cr.L.J. 377),
6. Muhammad Naseer Humayon v. Syeda Ummatul Khabir (1987 S.C.M.R. 174),
7. Uzma Vahid v. Muhammad Javed Umrao (1988 P.Cr.L.J. 1883)
8. Muhammad Javed Umrao v. Uzma Vahid (1988 S.C.M.R. 1891),
9. Shabhir Hussain v. Shehnaz Parveen (1989 P.Cr.LJ. 1689).
10. Fauzia Jamil v. Syed Farhat Hussain Shah Bokhari (1989 P.Cr.LJ. 1736),
11. Bachai Mai v. Allah Ditta (1990 P.Cr.L.J. 93),
12. Tauqir Fatima v. Lethal Mehdi Shah (1990 P.Cr.LJ. 342),
13. Mussarat Jabeen v. Dr. Khalid Nawab (1990 P.Cr.LJ. 686),
14. Aasia v. Mashhud Ahmad (P.Cr.LJ. 8471. And
15. An unreported judgment of Mr Justice Allah Dino G. Memon of the Sindh High Court in Cr.M. 308 of 1989.
Crux of all the afore-referred judgments by and large is that ordinarily, the disputes as to the custody of the minors are to be determined by the Guardian Courts/Family Courts but this Court can also interfere in exercise of jurisdiction vesting in it under section 491 Cr.P.C, to order restoration of custody of minor child where it is illegally and improperly disturbed and that any such order is, of course, without prejudice to the rights of the parties to have the matter of custody finally determined by the Guardian Court.
Learned counsel has also referred to two judgments from foreign jurisdiction -- one of Supreme Court of India reported in 1989 MLD 2209 and the other of the Court of Appeal in England in Re H.
Flnfantsl (1966) 1 All.E.R. 886) for the proposition that the conduct of a person taking a child from the custody of a person to whom it had been entrusted by the Court (though of a foreign country) is most reprehensible and that a Judge should pay regard to the orders of the proper foreign Court unless he is satisfied beyond reasonable doubt that to do So will seriously harm the interest of the child.
9. Learned counsel appearing for the respondent has argued that the respondent being the father of the minor is his natural guardian. His custody of the minor cannot, therefore, be said to be illegal or improper so as to attract the jurisdiction of this Court under section 491 Cr.P.C. According to the learned counsel, an application under section 491 Cr.P.C, is maintainable only where custody of the minor is found to be illegal and emergent relief is necessary in the interest of the minor. Learned counsel has contended that the petitioner can well take recourse to the Guardian Court where the question of custody of the child can be determined more satisfactorily. Learned counsel has submitted that it is not correct that the respondent snatched the minor Salman Mir from the petitioner. The fact of the matter, according to the learned counsel, is that the petitioner left the respondent's house stealthily and took along the elder child with her leaving behind the minor Salman Mir of her own accord. Respondent's custody of the minor cannot thus be dubbed as illegal. Learned counsel for the respondent has also vehemently contended that if the custody of the minor is delivered to the petitioner, she will difinitely take him away to England where it would not be possible for the respondent to exercise any control over the minor which is his right being a natural guardian. Proceeding on these premises, learned counsel has argued that the petitioner is thereby disqualified to have the custody of the minor. Reference in this connection is made to para to 354 of the Principles of Mahomedan Law by D.F. Mulla which in relevant aspect states that "a female, including the mother, who is otherwise entitled to the custody of a child, loses the right of custody, if she goes and resides, during the sub-stance of the marriage at a distance from the father's place of residence." Learned Counsel has also placed reliance on- 1) Muhammad Bashir v. Ghulam Fatima (PLD 1953 Lahore 73').
2) Ali Akbar v. Kaniz Maryam (PLD 1956 Lahore 484) and 3) Chiragh Bibi v. Khadim Hussain (PLD 1967 Lahore 382).
In the first judgment it was held that "though the mother has a right to hizanat, the father is the natural guardian and entitled to exercise control and supervision over the child and if the mother removes the child to a place where father is unable to exercise his control the mother loses her right to custody." In the second case, it was held that where the minor is over 7 years of age, the right of custody under Muslim Law belongs to the father and that in the absence of evidence to the contrary it should be presumed that the' welfare of a minor' lies in such minor being handed over to a relation entitled to his custody under Muslim Law. In the last mentioned case of Chiragh Bibi v.
Khadim Hussain (Supra), it was laid down that if a woman who has the hizanat of a child denies the father of the child, who is under Muslim Law, his or her natural guardian, access to the child, she must be considered to have done something injurious to the mental and emotional wellbeing of the child. In such an event, custody is to be restored to the father.
Learned counsel for the respondent has pointed out that both the minors are greatly attached two the respondent and more so Salman Mir who has been with him ever since the petitioner left him behind in December 1990. That being so, learned counsel has contended that if the custody of minor is now handed over to the petitioner, the minor will be highly disturbed mentally and emotionally.
As regards the judgment of the High Court of England (Annexure 'C'), learned counsel has submitted that it is without jurisdiction as the minor Salman Mir was not within the jurisdiction of that Court when the judgment in question was delivered. Even otherwise, the said judgment is not conclusive in view of the provisions of section 13 CPC as it was rendered in disregard of the Pakistan Law on the subject.
10. I have considered the submissions made by the learned counsel for the parties. It is an admitted position that the petitioner is the mother and the respondent is the father of the minor Salman Mir who is below 7 years of age. It is also not in dispute that according to Muslim Law, mother is entitled to the custody (Hizanat) of her male child until he completes the age of 7 years unless she marries a second husband or she otherwise loses the right of custody for some other reasons as are mentioned in para 354 of D.F. Mulla's Treatise on Mahomedan Law. That being so, the petitioner is legally entitled to the custody of the minor and was so entitled when the respondent in December, 1989, held back the minor with him. Allegation of the petitioner is that the minor Salman Mir was forcibly snatched away from her by the respondent and his mother. This allegation though denied by the respondent, prima facie appears to be correct because there is no reason forthcoming as to why the petitioner should have left the minor Salman Mir with the respondent and taken the other child alongwith her. Respondent no doubt is the natural guardian of the minor being his father but he cannot hold and retain his custody forcibly and against the wishes of the petitioner who in law is entitled to the custody of the minor or without obtaining proper orders for the custody of the minor from a Court of competent jurisdiction. It is not the case of the respondent that he has obtained any such order. In fact, he has not even moved the Guardian Judge/Family Court for securing the custody of the minor Salman Mir though he is stated to have made an application under section 25 of the Guardians and Wards Act for the custody of the other child i.e. Zeeshan Mir. He is evidently holding the custody of the minor against the wishes of the petitioner. In the circumstances, his custody prima facie, appears to be illegal. Refer PLD 1970 Azad J & K 13 and 1984 P.Cr.L.J. 2582. In the first case, father had taken away the minor children from their mother who because of the ages of the minors was in law entitled to their custody, it was held that "where a person is legally entitled to the custody of a child the detention of the child by any other person is illegal". In the second case, it was observed that since the minor son was admittedly below 7 years of age, his mother was entitled io the Hizanat of the minor and the right of the respondents - grandfather and paternal uncle, had not yet accrued. In the circumstances, it was held that "the custody of the minor by the respondent has to be declared illegal or at least improper". In the present case, the respondent has also been holding/retaining the custody of the minor Salman Mir in defiance of the judgment of the High Court of England aforementioned whereby he was directed to hand over the custody of the said minor to the petitioner. Argument of the learned counsel appearing for the respondent that the judgment in question was without jurisdiction has not impressed me because under section 14 CPC. a presumption is raised with regard to the competency of the foreign Court. Even otherwise, it is borne out from the record that the respondent remained associated with the proceedings culminating in the final judgment. He was admittedly represented by the counsel. That being so, the respondent should have either challenged the judgment in question in appropriated proceedings to have it set aside or, in all fairness, ought to have honoured it by complying with the directions contained therein. Viewed from this angle also, the respondent's custody of the minor can be said to be improper if no wholly illegal. Law is fairly well settled that where a father obtains custody of his minor child without having recourse to law, his custody will be illegal and in such a case this Court is competent to exercise jurisdiction under section 491 Cr.P.C, and to order restoration of the custody to the mother. Refer 1984 P.Cr.L.J. 1047, 1984 P.Cr.L.J. 2582, 1987 P.Cr.L.J. 377, 1988 P.Cr.LJ. 1883, 1989 P.Cr.L.J. 1968, 1990 P.Cr.LJ. 686 and 1990 P.Cr.LJ. 847.
11. Even if il be assumed for the sake of argument that the respondent's custody of the minor child was not illegal or proper, yet since the minor has been brought up before, this Court, he can be deal with according to law under section 491(l)(a) Cr.P.C, which provides: "Any High Court may, whenever it thinks fit, direct (a) that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealwith according to law".
According to the dictum of the Supreme Court recorded in Muhammad Rafiq v. Muhammad Ghafoor (PLD 1972 S.C. 6), if the person brought up before the High Court is a minor, the Court was make over his custody to the guardian which will be dealing with him in accordance with law.
Relevant observation of the Supreme Court is reproduced hereunder:- "The High Court has two-fold jurisdiction under this section (i) to deal with a person within its appellate criminal jurisdiction according to law: and (ii) to set him at liberty if he is illegally or improperly detained. The question which falls for determination, however, is that if the Court finds that the person brought before it was not being illegally or inproperly confined or detained what order can be passed regarding the custody of that person.
If the person is a minor, the Court may make over his custody to the guardian which will be dealing with him in accordance with law, but if the person is major, the only jurisdiction which the Court can exercise is to set him at liberty whether illegally or improperly detained in public or private custody or not. *****
12. As already noted above, it is well settled that according to the Muslim Law, mother is entitled to the custody of a male minor child until he has completed the age of 7 years and the law also presumes that the welfare of the minor lies in his living with the mother. Nothing has been brought on the present record to rebut this presumption. In the circumstances, since the minor has been brought before the Court and under section 491(l)(a) Cr.P.C, he has to be dealt with according to law, restoring his custody to his mother, the petitioner, which the law presumes to be in his interest will be dealing with him in accordance with law. Thus, viewed from whatever angle i.e. Whether the respondent's custody is illegal and improper or not, it is competent of this Court to hand over the custody of the minor to the petitioner and in my view, in the facts and circumstances of this case highlighted hereinabove, particularly the fact that the mother has remained deprived of the custody for about a year and a half, it is an appropriate case where the custody of the minor be restored to the petitioner. It has been so ordered accordingly. It is, or course, open to the respondent to initiate proceedings for custody of the minor before the Guardian Judge/Family Court who will decide the matter in accordance with law uninfluenced by anything said in this judgment.
13. Learned counsel appearing for the respondent as also the respondent himself expressed an apprehension during the course of hearing that in case the custody is handed over to. The petitioner, she will take away the minor to England thereby depriving the respondent of his control and supervision over the minor which as a natural guardian he has a right to exercise and it might also frustrate the custody proceedings which the respondent may initiate before the Guardian Judge/Family Court. In order to all the apprehension of the respondent and to safeguard his interest, it has been directed in the short order reproduced hereinabove that the petitioner of some other person shall furnish a security in the sum of Rs. 10,00,000/- (Rupees Ten Lac) to the satisfaction of the Additional Registrar of this Court to the effect that the minor shall not be removed out of Pakistan except with his prior permission of this Court and that in the event of the respondent moving a petition under section 25 of the Guardians and Wards Act, the minor would be produced before the Guardian Judge as and when required.
14. For the reasons stated above, this petition stands accepted with the directions contained in the short order reproduced in para 1 of this judgment.