1. ' Mst. Maria Khan, a resident alien of United States of America, who was a Christian by faith professed Islam and married Zubair Khan respondent in accord with Muslim rites on 3-3-1985 at Washington D.C. (U.S.A.). On 10-11-1985, Mst. Aysha Khan, a female child was born whereas Umair Khan, a son was born on 22-8-1987. Both the children were born out of the wedlock at Washington where the parties have been living together. In September, 1990, both the spouses alongwith their two minor children came to Pakistan and started living in Islamabad. On 23-4-1991, the petitioner accompanied by the two minor children went hack to U.S.A. On 24-4-1991, an application under section 25 of the Guardians and Wards Act was filed by the respondent in the Court of learned Guardian .Judge, Islamabad. In this application, a prayer was made for restoration of the custody of the minors to the applicant on the ground that the minors have been illegally removed from the custody of the applicant by Mst. Maria Khan, his wife. This application was accepted ex parte vide order, dated 13-7-1991. The operative part of the order passed by the learned Guardian Judge as contained in paragraphs 4 and 5 of the judgment is reproduced as under:-- "4. Taking into consideration the statement under path of Muhammad Zubair Khan which has not been rebutted as the respondent did not choose to appear in this Court, there is no escape from accepting the version of the applicant which is on solemn affirmation and supported by documents P.1 to P:6 and the surrounding and attending circumstances of the case. The role of the respondent in taking away the children in deceitful manner from the house of their father is an act which shows that the respondent has not acted in a fair and just manner with her children. She has not acted in the best interest and welfare of the children to deprive them of the patronage, love and affection of their father. The applicant it is evident, had brought the children to Pakistan and had put them in good educational institutions in Islamabad. He wanted to bring them up in a social structure based on his religion. It is also evident that the respondent while deciding to settle in Pakistan had mentally accepted that it would be in the interest of the minor children to be educated and brought up in Pakistan. What prompted the respondent to take this hasty and secretive decision cannot be defended as she has failed to appear and to put up any defence in this case. The facts and circumstances of this case prove that it is in the interest and welfare of the minors to stay in the custody of the applicant and to be educated and brought up under his supervision and control. There is nothing to show that the petitioner who is an educated and a keen father would harm the interest of his minor children.
5. As a result of my above discussion, the application of the applicant is hereby ex parte accepted with costs. The respondent is directed to hand over the custody of the minor namely Mst. Ayesha Khan and Muhammad Umair Khan to the applicant forthwith."
2. ' However, the order could not be executed in view of the fact that the minors had been taken away by Mst. Maria Khan, the present petitioner to U.S.A. Ultimately, in the end of July, 1991, respondent also went to United States. Vide order, dated 21-11-1991, marriage between parties was dissolved by the Court of learned Circuit Judge at Florida: ' IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR DADE COUNTY, FLORIDA ' MARIA KHAN, Petitioner and Muhammad Zubair Khan, Respondent ' Case No,91/25742 FC ' FINAL JUDGMENT OF DISSOLUTION OF MARRIAGE ' THIS ACTION was heard before the Court. On the evidence presented, ' IT IS ADJUDGED:
(1) That the bonds of matrimony between the petitioner, Maria Khan, and respondent, Muhammad Zubair Khan, are hereby dissolved a vinculo matrimonii because the marriage is irretrievably broken.
(2) That the petitioner's maiden name be hereby restored to Maria Bel Socorro Rojas.
(3) Except as to the dissolution of marriage granted in this Final Judgment of Dissolution of Marriage, the Court specifically reserves jurisdiction of this entire matter to enter such further orders and/or judgments as may be equitable, appropriate and just.
3. ' DONE AND ORDERED in Chambers at Miami, Dade County, Florida, this 21 day of November, 1991.
4. ' (Sd.)
5. ' JUDGE-CIRCUIT COURT.
6. ' IN THE CIRCUIT COURT OF THE ' 11TH JUDICIAL CIRCUIT IN AND FOR DADE COUNTY, FLORIDA ' IN RE: THE MARRIAGE OF ' MARIA KHAN, Petitioner ' Muhammad Zubair Khan, Respondent ' FAMILY CIVIL DIVISION.
7. ' CASE NO.91-25741 FC(12)
8. AGREED ORDER ' THIS CAUSE came to be heard upon both parties' consent to an immediate dissolution with bifurcation of all other pending issues, and the parties and their attorneys having agreed to the entry of this orders and the Court being fully advised in the premises, it is hereby.
' ORDERED AND ADJUDGED
(1) That the parties have agreed to an immediate dissolution of marriage reserving all other issues now before the Court for later Court determination. Neither party waives herein any of his or her rights on any other issues currently raised before the Court.
(2) That the agreed order shall not be deemed an answer by Husband to Wife's Amended Petition for custody and support unconnected with Dissolution of Marriage.
9. ' DONE AND ORDERED in Chambers, at Miami, Dade County Florida, this 21st day of November, 1991.
10. ' (Sd.)
11. ' Circuit Judge.
12. ' With consent of the parties, another order was passed by the learned Civil Judge on 23-12-1991 whereby it was ordered that the minor children shall reside with the mother in Dade County and that no party shall remove the children from the United States without prior permission of the Court.
13. The petitioner was also directed not to remove the children outside the State of Florida. Copy of the order dated 23-11-1991 is annexed with the petition at page 16 is reproduced as under:-- ' IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR DADE COUNTY, FLORIDA ' CASE NO. 91-25742 FC 12 MARIA KHAN, Petitioner ' and ' Muhammad Zubair Khan, Respondent ' ORDER ON TEMPORARY CHILD CUSTODY AND VISITATION ' THIS CAUSE CAME ON TO BE HEARD before me on the parties' various motions, and with the Court not having an opportunity to complete all of the testimony and arguments of counsel, the Court feels it would be in the best interest of the parties to have a temporary child custody and visitation order entered, it is hereby ' ORDERED AND ADJUDGED:
(1) The children shall reside with the mother in Dade County, keeping the status quo, subject to visitation of the father overnight in Florida and in Washington, with the cost of the Washington visits to be the fathers. In any overnight visitation, the Husband shall deposit all of his passports with his attorney in Dade County, Florida or Washington, D.C. And upon written notification of receipt of same, be entitled to the overnight visitation. The wife shall deposit with her counsel her passport.
(2) Neither party shall remove the children of the marriage from the United States without prior Court order from this Court. The wife shall not remove the children from the State of Florida on a permanent basis and the Husband shall not remove the children from the Washington, D.C. Area.
(3) This order shall be enforced by the Department of State and the Pakistan Government.
(4) The husband agrees that the children will not travel nor be taken to ' DONE AND ORDERED in Chambers at Miami, ' Dade County, Florida, ' this 23rd day of ' December, 1991.
14. ' (Sd.)
15. ' JUDGE CIRCUIT COURT ' Subsequently, the parties to the present petition entered into another agreement on 11-1-1992, wherein certain terms were settled between the parties with regard to the custody of the minors which are reproduced as under:-- ' CUSTODY OF THE MINOR CHILDREN
(1) The parties state that the best interests and welfare of the minor children is a parmount consideration. They shall make every effort to foster the respect and affection of the children for each parent and shall do nothing which would injure the opinion of the children for the other party, or which would hamper the free and natural development of the love and affection of the children for the other parent. The parties shall confer with each other on all important matters pertaining to children's health, welfare, education, and upbringing, with a view toward arriving at agreed policies calculated to promote the children's best interests.
16. ' Each shall notify the other promptly in the case of any serious illness or injury of the children while in his or her care. Each party shall continually keep the other informed of their address, telephone number and place of business in the best interest of the children. The parties will share all educational, medical records and progress reports concerning the children in a timely fashion.
(2) The wife and husband agree to continue to educate the children in the Muslim faith as their sole religious affiliation, faith and tradition.
(3) The husband and wife shall have joint legal custody of the minor children Ayesha Khan and .Muhammad Umair Khan, with residential and physical custody being with the husband with liberal rights of visitation granted to the wife to see, visit or be visited by said children in accordance with the terms of this agreement.
17. ' The parties further agree that if the husband leaves the Washington D.C. Metropolitan area, his residential and physical custody shall cease. The children shall not live in or visit any foreign country and the husband will have to make arrangements to have the children sent to the wife's residence in Florida or Washington D.C., where she shall have residential and physical custody. This provision is non-modifiable.
18. ' Pakistan or out of the United States alone with the husband or wife their families or their agent(s); (5-a)The wife shall have the right to be visited by the children throughout the summer vacation, which shall be defined as commencing one week after the close of any school one or both children shall attend, and continuing until one week prior to the commencement of the next school year; and
(b) At any time during any other time school is not in session lasting for at least three days, including holidays, teacher's work days, vacation and breaks, at wife's choosing, as set by Florida law or the laws of Maryland or Washington, D.C. Whichever is greater, plus mother's day week-end; and
(c) visitation every other week-end and at least two nights per week each week with the children in the Washington, D.C. Area or sent to her residence at her expense; and
(d) All transportation costs for visitation only for the summer, winter and spring vacations, shall be borne by the husband;
(e) If the husband for any reason refuses to send the children to the wife during any visitation, vacation or holiday, the custody shall automatically reverse.
(6) The husband shall use his best efforts to have the visitation facilitated between the wife and children.
(7) The wife's or husband's failure to avail herself or himself of their visitation rights shall not constitute a waiver of any future rights under the provisions of this Article.
(8) All visitation of every kind shall be overnight and any holiday or weekend visitation or extended visitation, shall commence the night before and extend through the end of the holiday or week- end, whichever is longer.
(9) The wife and husband further agree that the children's education is of paramount importance, and husband agrees to pay for private schooling the children.
(10) If the husband remarries or lives with another woman for three out of six months of any twelve month period (not a calendar year) then the children's residence and physical custody shall be changed to the wife and visitation as herein specified shall be granted to the husband and all other portions of this agreement shall be in effect. In that event the wife shall be the primary residential custodian, unless the wife is remarried at that time.
(11) The husband agrees not to travel out of the Washington, D.C. Area during the period of the children are living with him for any overnight period, for any reason. In the event this provision is breached, the custody shall be reversed.
(12) When each of the children reach age ten (10) years, they shall decide who they will live with and their sole decision without the influence of the parents shall be binding on the parties."
19. ' This agreement was first got attested by Notary Public, State of Maryland, and, then got ratified from the Circuit Court of Florida vide order, dated 22-1-1992, which is reproduced as under:- ' IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR DADE COUNTY, FLORIDA ' MARIA KHAN, Petitioner ' and ' MUHAMMAD ZUBAIR KHAN Respondent ' CASE NO.91-25742 F.C. 12/1/ ' AGREED ORDER ON PROPERTY ' SETTLEMENT AGREEMENT ' THIS CAUSE CAME ON TO BE HEARD BEFORE ME on the property Settlement Agreement and Custody and Support Agreement between the parties dated January 11, 1992, and after being fully advised in the permises, it is hereby.
20. ' ORDERED AND ADJUDGED: ' That the Court does hereby ratify and approve the Agreement between the parties and the parties are directed to comply with same. The Court does hereby reserve jurisdiction over the parties and to enforce the terms of said agreement. All pending Motions are hereby deemed moot.
21. ' DONE AND ORDERED in Chambers at Miami, Dade County, Florida, this 22 day of January, 1992.
22. ' (Sd.)
23. ' JUDGE CIRCUIT COURT ' Thereafter, the parties appear to have lived in United States and to have enjoyed custody of the minors in accordance with the terms of the agreement as well as the order of ratification passed by the Circuit Court. On 6-10-1992, the respondent, who is father of the minor children came to Pakistan alongwith the minor children. The petitioner on 13-10-1992, filed an application in the Circuit Court at Florida from which Court a Writ of Bodily attachment was issued on the same date.
24. Copy of the order passed by the learned Judge Circuit Court has been placed as Annexure 'G' and is reproduced as under:-- ' IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR DADE COUNTY, FLORIDA ' MARIA KHAN, Petitioner ' and ' CASE NO. 91-25742 F.C. 12 ' MUHAMMAD ZUBAIR KHAN, Respondent ' ORDER ' THIS CAUSE CAME ON TO BE HEARD BEFORE ME on petitioner's motion for Contempt, for Writ of Bodily Attachment (Bench Warrant) Release of Passports and for an Immediate Change of Residential Custodial Parent and after being fully advised in the premises, it is hereby ' ORDERED AND ADJUDGED: That the Motion is granted.
25. ' The Clerk of Court is hereby directed to turnover to the petitioner or her counsel, Harry Ternpkins, the Passports of the two minor children, Ayesha Khan and Muhammad Umair Khan, forthwith.
26. ' That the custody of the two minor children is hereby changed to the mother, Maria Rojas, for both primary physical and residence.
27. ' Respondent is in criminal contempt of Court for removing the children from the United States, in direct violation of the agreement between the parties, which was ratified and approved by this Court.
28. ' That a Writ of Bodily Attachment (Bench Warrant) is to be issued forthwith.
29. ' DONE AND ORDERED in Chambers at Miami, Dade County, Florida, this 13 day of October, 1992.
30. ' (Sd.)
31. ' JUDGE CIRCUIT COURT ' On 23-1-1993, the petitioner came to Pakistan and filed an application- for setting aside of the ex parte order passed by the learned Guardian Judge, Islamabad, dated 13-7-1991 on 31-1-1993. An application for grant of permission to meet the minors was also filed in the Court. On the basis of this application, vide order dated 31-1-1993, the learned Guardian Judge directed production of the children for meeting the petitioner. The order passed by the learned Guardian Judge is reproduced as under:-- ' 31-1-1993 {{URDU TEXT}} ' It appears that another order was passed by the learned Civil Judge in an independent suit filed by the petitioner for production of the minor children which was set aside by the learned Additional District Judge, Rawalpindi. Therefore, on 2-2-1993, the minors were not produced before the learned Guardian Judge, who directed that the application shall be replied to and the arguments shall be heard on the application for production of the minors on 9-2-1993. A copy of the order, dated 2-2-1993 passed by the learned Guardian Judge is reproduced as under:-- ' 2-2-1993 {{URDU TEXT}} ' A perusal of the record further shows that Mst. Maria Khan petitioner also filed a Civil suit in the Court of learned Senior Civil Judge, Islamabad and from that Court vide order, dated 26-1-1993 obtained an order to the effect that the minors shall be produced before that Court on 27-1-1993.
32. This order was challenged by the respondent in appeal before the learned Additional District Judge, Islamabad, which was accepted and the order was set aside by the learned Additional District Judge on 1-2-1993. It is this order which has been referred to by the learned Guardian Judge in his order, dated 2-2-1993 reproduced above. In the order passed by the learned Appellate Court, it has been observed that in case the minors are produced in Court, there is possibility that they are abducted and rather taken away to United States by the petitioner and further that the matter already being pending before the learned Guardian Judge, the Civil Court should not have interfered with the matter. Thereafter, titled Criminal Miscellaneous has been filed in this Court under the provisions of section 491, Cr.P.C. On 8-2-1993. It has been prayed in the application that the respondent having removed the children from United States from the custody of the petitioner in violation of the judgment rendered by the Courts of competent jurisdiction, the custody of the minors with him is illegal and therefore, minors should be recovered from him and their custody be handed over to the petitioner. This application was heard by this Court on 8-2-1993. A bailiff was deputed to produce the minor children in Court on 9-2-1993. However, on 9-2-1993, Mr. Abdul Basir Qureshi, Advocate on behalf of the respondent stated that the children have been taken to Swabi, which is the native village of the respondent, and, in case the children are brought in this Court, there is a possibility of children being abducted/kidnapped at the instance of the petitioner because the agencies are working at the back of the petitioner to apprehend the children, who will take away the minors outside the jurisdiction of this Court. Learned Single Judge of this Court directed that Superintendent of Police, Islamabad should personally recover the children and produce them before the Court on 13-2-1993. On 13-2-1993, Additional S.P. Islamabad was present in Court and submitted that Muhammad Pervez Rathore, S.P. Islamabad is sick and therefore, unable to attend the Court. Learned counsel for the respondent however, filed power of attorney on behalf of the respondent and undertook to produce the children in Court on 15-2-1993. The Court directed the Additional S.P. To associate himself in the recovery of the children to be produced on 15-2-1993. Another development which took place in this case, is that the order, dated 9-2-1993 directing recovery of the minor children through the S.P. Islamabad has been challenged by the respondent in Cr.P.S.L.A. No,22 of 1993 wherein the Honourable Supreme Court passed the following order on 14-2-1993.
33. ' ORDER "Muhammad Zubair Khan petitioner with Mr. Abdul Basir Qureshi, Advocate Supreme Court. Ch. Akhtar Ali, Advocate-on-Record Heard. The record has also been perused. The petitioner undertakes to produce the minors in the High Court on 15-2-1993, which is the next date of hearing and also on any other date thereafter as directed by the High Court. The operation of impugned order is suspended till 15-2-1993. If the petitioner produces the minors in the Court on 15-2-1993, and thereafter, as per orders of the High Court, neither he shall be deprived of their custody, nor the order as to the coercive measures for their production in the Court, be implemented till further orders. However, if he fails to produce the minors in the Court on 15-2-1993, or any other date in accordance with the directions of the High Court, on such failure, this order shall stand vacated."
34. ' (Sd.)
35. ' Muhammad Afzal Lone, ' Judge."
36. ' On 15-2-1993, the children were produced by the learned counsel for the respondent and the order passed by the Honourable Supreme Court, dated 14-2-1993 was placed before this Court. On that date, the minors met their mother for about 2-1/2 hours, and both the parties agreed that instead of arguing the interim matter, the main case be fixed at an early date. Resultantly, the case was listed for hearing on 20-2-1993. Written statement was also filed by the learned counsel for the respondent .. The children were handed over to the respondent-father after they had met their mother. Both the learned counsel as well as the parties who were present in Court stated that no fresh order need be passed with regard to the meeting of the minors with their mother, inasmuch as the parties have themselves made arrangement for meeting of the minors with their mother at the house of the respondent. Consequently, no order was passed with regard to the further meeting of the minors or their appearance in Court. Arguments in the case could not be heard on 20-2-1993, inasmuch as, learned counsel for the respondent placed on record certain document, which the learned counsel for the petitioner wanted to go through. Arguments in the case were heard on 24-2-1993. Meanwhile, another order was passed by the Honourable Supreme Court on 22-2-1993 to the following effect:-- ' ORDER "The learned counsel for both the parties have been heard. The proceedings before the High Court have not been stayed. These may continue. As the petition for leave to appeal is pending, it appears appropriate that, in case, an order adverse to the petitioner i,e. Muhammad Zubair Khan is passed by the High Court, it should not be implemented till further orders. I order accordingly."
37. ' (Sd.)
38. ' Muhammad Afzal Lone, ' Judge.
39. ' 22-2-1993 ' Arguments were heard in this case on 24-2-1993, and 1-3-1993, and after completion of the arguments, I directed production of the minors for examination in Court on 6-3-1993. On 6-3-1993, the minors were produced by the respondent in Court, who met their mother for a period of about 40 minutes and thereafter, I examined the minors. Observations of my examination which are contained in my order dated 6-3-1993 are reproduced as under:-- "Aisha Khan and Muhammad Umair minors have been produced by the respondent. They have met their mother for 40 minutes. I have examined the minors. They are pretty and intelligent children. They have lot of love and affection for the parents. On my asking both the minors have stated that they want to live with their parents, Mother and father. They arc very happy and getting proper education."
2. Sardar Muhammad Aslam Khan, Advocate, appearing on behalf of the petitioner has raised the following contentions:--
(i) that the mode of retention of the custody of the minor children had been decided by the Courts of competent jurisdiction of United States of America. The respondent fraudulently and in a deceitful manner removed the minors from Washington to Pakistan in violation of the agreement which had been ratified by the Circuit Court of U.S.A., therefore, the custody of the respondent is illegal and hence can be restored to the petitioner under section 491, Cr.P.C.
40. ' Reliance is placed by the learned counsel on judgments reported as 1989 MLD 2209, 1992 MLD 520 and 1991 P Cr. L J 2372, and unreported judgment passed in case of Mst. Mazloom Akhtar v.
41. Zabarat Khan (Criminal Miscellaneous No,5-H of 1991) placed on the file of this Court.
(ii) that as per ages of the minors, Hazanat vests in the petitioner and removal of the custody of the minors by the respondent from the petitioner being illegal and in violation of the orders passed by the Courts of competent foreign jurisdiction, this Court is competent to recover the minors from the custody of the respondent and restore the same to the petitioner in spite of the fact that the proceedings are pending before the learned Guardian Judge.
42. ' Learned counsel has placed reliance on case of M. Javed Umrao v. Uzma Wahid 1988 SCM R 1891.
3. As against the above arguments addressed by the learned counsel for the petitioner, Mr. Abdul Basir Qureshi, Advocate, learned counsel for the respondent has raised the following contentions:--
(i) that the judgments of the Circuit Court in violation of the terms whereof it is alleged that the respondent has removed the minors and hence custody with him is illegal are not lawful and are not enforceable in Pakistan in view of the provisions of Civil Procedure Code and at any rate those having been rendered on the basis of the agreement between the parties cannot be termed as adjudication and, as such it cannot be said that the respondent has brought the minors from United States of America in violation of the lawful judgments of foreign Courts. Consequently, the respondent being the real father and natural guardian of the minors cannot be said to be in illegal custody of the minors and hence the provisions of section 491, Cr.P.C. Are not attracted in this case.
43. ' Learned counsel has relied upon the provisions of sections 13, 14 and 44-A of Civil Procedure Code as well as the judgments reported in AIR (33) 1946 Mad. 296, I L R Vol.40 Mad. 112, 1985 CLC 296, 1951 AC 352, PLD 1981 Pesh. 110 and AIR 1957 Cal.
44. 103.
(ii) that as per general principle of law any decision by a foreign Court or Tribunal or a foreign quasi-judicial functionary is not enforceable in another country unless such decree or decision is embodied in a decree of the Court of that country.
45. ' In the case in hand, the judgments relied upon by the petitioner have not been embodied in the decree of the Court of this country. Rather, the judgment of the learned Guardian Judge, which still holds the field is to the effect that the children are to be restored and to remain in the custody of the respondent. Therefore, no relief can be granted to the petitioner on the basis of so-called adjudications of the Courts of foreign jurisdiction, which are not even on merits. Reliance is place on case of Fazal Ahmad v. Abdul Bari PLD 1952 Dacca 155.
(iii) that the petitioner is resident alien of United States of America. She has no place of living in Pakistan. The proceedings for setting aside of the ex parte order passed by the learned Guardian Judge lodged by the petitioner are pending adjudication before the learned Guardian Judge, Islamabad. As per provisions of Family Courts Act read with Guardians and Wards Act, the learned Guardian Judge is the Court of exclusive jurisdiction to take decision in the matter of retention of custody. In case the minors are handed over to the petitioner, there is no guarantee that she will not remove the minors from the jurisdiction of the learned Guardian Judge and even outside Pakistan with the result that the guardianship proceedings shall stand frustrated. Jurisdiction of this Court under the provisions of section 491, Cr.P.C., therefore, cannot be exercised in aid of frustration of the proceedings pending before a Court of competent jurisdiction. Reliance is placed by the learned counsel on case reported as PLD 1981 Pesh. 110, 1991 P Cr. L J 878, AIR 1970 Mad. 92, PLD 1957 Kar. 50 and AIR 1931 Mad. 478, Mckee v. Mckee 1951 AC 352.
(iv) that the matter is already pending before the learned Guardian Judge and that Court is quite competent to regulate the delivery of the interim custody as well as the meetings of the minors with the parents. The petitioner has already moved the learned Guardian Judge for setting aside of the ex parte order passed against her. She has also filed a suit before the learned Senior Civil Judge which is pending adjudication. The matter is already pending before the Honourable Supreme Court of Pakistan, wherefrom an order has been passed that in case the order under section 491, Cr.P.C. For recovery of the minors from the custody of the respondent and delivery to the petitioner is passed, is not to be implemented. Resultantly, passing of an order of recovery of the minors from the custody of the respondent and handing them over to the petitioner, will be a futile exercise and will in fact amount to pre-empting the jurisdiction of learned Guardian Judge, which is a Court of exclusive jurisdiction. Extraordinary jurisdiction under section 491, Cr.P.C., therefore, cannot be exercised in this case when the minors are admittedly living with their father and are getting proper education as well as brought up, and, further, a proper arrangement exists for meeting of the minors and the mother with mutual consent of the parties. Reliance by the learned counsel is placed on cases reported as 1983 P Cr. L J 1470, 1993 P Cr. L J 1135, PLD 1975 Kar.
46. 118, 1973 P Cr. L J 98, PLD 1969 SC 187 and AIR 1931 Mad.
47. 773.
4. I have considered the arguments addressed by the learned counsel for the parties and have gone through the record as well as the case-law cited from both sides. There is no cavil with the proposition that this Court is competent to exercise powers under section 491, Cr.P.C. Even if the proceedings are pending before the learned Guardian Judge, if it is found that the custody of the minors is illegal with the respondent and it is necessary that the same should be restored with immediate effect to the petitioner. This view has now been finally settled in case of 'M. Javed Umrao' referred to supra at pare 1897 of the report. There is also no cavil with the proposition that the ordinarily removal of a minor child in violation of an order passed by a Court of competent jurisdiction of foreign country is not lawful and act of removal of a minor from the custody of the person in whom it vests by way of Hazanat and also by way of an order of the Court of a foreign country makes the custody of the remover as illegal for the purpose of exercise of jurisdiction under section 491, Cr.P.C. However, in this case there are other circumstances also that too shall have to be taken into consideration while taking a decision as to whether the custody can be said to be illegal within the meanings of section 491, Cr.P.C. For exercising powers there under by this Court. In the case in hand, judgments/adjudications by compromise between the parties by a Circuit Court of Florida stand proved on record and are rather admitted. Removal of minors in violation thereof ordinarily shall not be a lawful act. However, prior to the passing of those orders, the Court of learned Guardian Judge, Islamabad has passed an order according to which it is the respondent who is to retain the custody of the minors and the petitioner is to restore the custody to the respondent. The orders passed by the Circuit Court of United States of America being of later date, therefore, shall have to give way to the earlier order passed by the learned Guardian Judge of Pakistan which is a Court of competent jurisdiction. Therefore, bringing of children from United States of America by the respondent to Pakistan, who is real father of the minors and is a natural guardian, will be an act having the backing of a valid order passed by the learned Guardian Judge, who is a Court of exclusive jurisdiction. Consequently, it cannot be said that the respondent brought the children from U.S.A. Illegally or that his custody at the present is not lawful. The minors are now residing in Islamabad. They have been examined by me. They are quite happy and are living with their father. The petitioner is also meeting them at various intervals with mutual arrangements between the parties. She has filed an application for setting aside of the ex parte order passed by the learned Guardian Judge. She obtained an order of production of the minors from Civil Court while the same has been set aside in appeal. There is a judicial finding by the learned Appellate Court that it will not be proper to hand over the custody of the minors to the petitioner who is a foreign lady as there is a possibility that she will remove the children from outside the jurisdiction of the learned Guardian Judge as well as outside Pakistan. That order has not been challenged and has become final. Honourable Supreme Court in the proceedings arising out of the present petition has also directed that if an adverse order is passed against the respondent, it is not to be implemented meaning thereby that even if this petition is accepted, the custody of the minors cannot be handed over to the petitioner. Consequently, in view of the facts and circumstances of the case, I hold that custody of the respondent being presently held by him is not improper or illegal. He is father and natural guardian. Proceedings are pending before the learned Guardian Judge who has all the powers to regulate the meetings of the minors with the petitioner and also delivery of temporary custody. Those proceedings are decided and pending earlier to the filing of the present petition. The conduct of the respondent has also been cooperative. Right from the beginning he produced the minor children in Court of his own. He is allowing the petitioner to meet the children on week ends. He has made a statement in Court that he will create no hindrance in the meeting of the minors with the petitioner, who is their real mother. The minors are satisfied and they are not agitated. Consequently, any order disturbing the custody of the minors, which is presently with the respondent will definitely-affect the proceedings pending before the learned Guardian Judge and will further complicate the natter, while dealing with the case of the minors. It is always welfare of the minors which is to be kept in view. Even while passing an order under section 491, Cr.P.C., this Court must keep in mind as to whether passing of an order of change of custody will add to the welfare of the minor. In the case in hand, I am of the view that if an order of restoration of the custody of the minors is passed in favour of the petitioner, it will not be in the welfare of the minors. Consequently, I hold that it is not a fit case for exercise of my jurisdiction under the provisions of section 491, Cr.P.C. On facts. The petition has, therefore, no force, and the same is dismissed.
5. Before parting with this judgment, however, it is observed that as stated by the respondent in Court, the petitioner shall be allowed to meet the minors as per mutual arrangements which already exist and in case the parties have any difficulty in the manner of meeting, they can approach the learned Guardian Judge for regulation of meeting of the minors. It is further directed that the guardianship matter, which is pending adjudication before the learned Guardian Judge, Islamabad, as well as the civil suit, which, I am told, has already been transferred to this Court, shall be finally decided within a period of three months w,e,f. The date a copy of this order is received in the Court of learned Guardian Judge, Islamabad. This direction has been issued under the provisions of Article 203 of the Constitution of Islamic Republic of Pakistan, 1973. With the above observations and directions, this petition stands disposed of.