KHALIL-UR-REHMAN KHAN, J.- This is a habeas corpus petition under section 491 Cr.P.C, by Mst.
Farrukh Naheed Hashmi against her former husband for the recovery and restoration of the two minor daughters to her custody. Mst. Farrukh Naheed Hashmi, petitioner, was married on 20th December, 1985 at Raiwind, District Lahore to Syed Shah Abrar Qadri, respondent No. 1, and was taken by him to Canada where he was carrying on textile business. The petitioner gave birth to two daughters, namely, Shahzadi Tayyaba Qadri and Shahzadi Saqiba Oadri now aged 6 and 5 years respectively. As differences arose between the spouses the marriage ended in a divorce which was granted by the Superior Court, District of Longueuil, Province of Chebec, Canada, in the proceedings instituted by Syed Shah Abrar Qadri, respondent, against the petitioner. The Canadian Court while deciding the divorce matter also granted physical and legal custody of the two minors to the petitioner while respondent No. 1 was granted visiting rights vide judgment dated 18-1-1993.
2. The case of the petitioner is that on 7-2-1993 when the children in compliance with the order of the Canadian Court visited the respondent father, he misusing the visiting rights abducted the two minors and brought them to Pakistan along with him It is added that the respondent illegally removed the passport and other important documents of the petitioner and as such the petitioner had to undergo It of difficulties in procuring a new passport and other necessary documents. The petitioner added that as the children had been illegally removed from her legal custody in complete violation and disregard of the judgment of the Canadian Court, warrants of arrest of the respondent was issued by the Canadian Court. The matter Was also referred to the Counsel General of Pakistan at Canada who in turn on 4-5-1993 requested the Secretary, Ministry of Interior, Government of Pakistan at Islamabad to provide guidance so as to proceed further in the matter. It was asserted that since the petitioner could not procure custody of the minors through Canadian Court under the above noted circumstances the petitioner had come to Pakistan after incurring It of expense in order to obtain the custody of her minor daughters from respondent No. 1.
The picas in nutshell were that the petitioner is lawful guardian of the minors who are being illegally detained by the father in violation of the judgment of the Superior ( Court of Canada and that even otherwise under the Islamic law, the petitioner is entitled to the custody of the minor daughters and that the respondent has wilfully and deliberately disregarded the order of competent Court of Canada by illegally removing the detenus from the lawful custody of the petitioner.
3. The petition was laid before one of us (Khalil-ur-Rehman Ramday,J.) in Single Bench on 14.11.1993 when the matter was adjourned to next day to place on record certified copy of the judgment passed by the Canadian Court. A bailiff was deputed on 15.11.1993 to recover the minors and to produce them before the Court, if recovered, the same day, to avoid complications. The bailiff returned with two minors after recovering them from Tanvecr Nursery School. The respondent father also appeared before the Court. The petitioner who had arrived from Canada was not able to produce satisfactory surety who could guarantee production of minors before the Court and ensure their availability during the proceedings. She, therefore, offered to stay at her own expense in Darul Aman, Lahore, along with the minor daughters. The petitioner also surrendered her Canadian Passport to this Court in order to eliminate the apprehension expressed by the Respondent that she would remove the minors away from the jurisdiction of this Court. The petitioner and the minors were.
Therefore, lodged in Darul Aman. On 16.11.1993 Ashfaq Hussain Hashmi, brother of the petitioner, submitted an application offering to stand surety on behalf of the petitioner and to guarantee production of the minors before the Court with a view obtain their release from Darul Aman. It was represented that the petitioner and her minor daughters will be residing with the brother of the petitioner who is a responsible senior officer in the National Bank. This offer was accepted by the learned Single Judge the same day and the applicant was directed to execute a personal bond in the sum of one lac rupees to the satisfaction of the Officer on Special Duty (Judicial) or Deputy Registrar (Judicial) of this Court undertaking to produce the two minors before this Court till the decision of the main petition.
4. The other to release the minors from Darul Aman was objected to by the respondent father on 20th November, 1993, the next date of hearing. He submitted that the petitioner holds a Pakistani Passport with the names of minor daughters and the surely amount being meagre the petitioner will remove the minors to Canada. He prayed that amount of surety be enhanced and the petitioner be directed to surrender the Pakistani Passport.
The petitioner denied the possession of Pakistani Passport which according to her had been taken away by the respondent. She, however, with a view to cut short the controversy as to surety bond, expressed her willingness to be lodged in Darul Aman along with her minor children till the next date of hearing. The petitioner was. Therefore, lodged in Darul Aman at her own expense.
5. Before the learned Single Judge it was also pointed out that an earlier habeas corpus petition (Cr.M.220-H-93) filed by the petitioner seeking restoration of the minors to her custody was dismissed by him vide order dated 27th March, 1993, and as such a second petition, the present one, was not competent and merits dismissal on this score alone. Learned Single Judge in view of the objection taken and the pleas urged, referred the matter to the honourable Chief Justice for constituting a larger Bench for determining the two questions arising in the case, as under:-
(a) having once dismissed a habeas corpus petition in limine, could this Court pass a different order on a subsequent petition filed on the same subject; and
(b) What is the effect of a judgment/order of a competent Court of foreign jurisdiction in such-like matters of custody and in the circumstances obtaining in the present case.
The matter was. Therefore, referred to the Division Bench.
6. Before dealing with the submission of the learned counsel for the parties, it will be appropriate to take notice of certain undisputed facts which have important bearing upon the merits of the case.
These are:-
(a) Respondent father after bringing in February, 1993, the two daughters from Canada to Pakistan initiated on 13th February, 1993, the proceedings under section 25 of the Guardian and Wards Act before the Guardian Judge, Lahore. An application under section 12 of the Act was also filed by him.
The very next day the respondent stated before the learned Guardian Judge that as there are certain technical defects in the guardianship application filed by him, the same be allowed to be returned with permission to i.e a fresh petition. The petition was accordingly dismissed as withdrawn with permission to i.e a fresh one vide order dated 14.2.1993. On the same day, the respondent filed a petition under sections 7 and 10 of the Guardian and Wards Act for custody of both the minors. This petition was also accompanied by an application under section 12 of the Act.
(b) While these proceedings were pending before the Guardian Judge a habeas corours petition (Cr.M.220-H-93) was filed in the name of the petitioner by her brother Ashfaq Hussain Hashmi on 22.3.1993 and the same was dismissed in limine on 27.3.1993 taking notice of the fact that the dispute was admittedly between the two parents regarding custody of the two minors, that the respondent father has already instituted proceedings regarding the custody of minors before the Guardian Judge and as the parties are appearing before the Guardian Judge the petitioner rushing to this Court to seek custody of the minors through habeas corpus petition is not understandable. It was observed that this very claim which is being sought through this petition can legally and properly be sought from the learned Guardian Judge who is seized of the matter and that habeas corpus jurisdiction cannot be invoked to divert the normal process of law and to deprive plenary Courts of their jurisdiction in the matter in which they stand properly seized.
(c) The guardianship proceedings continued lingering on till October, 1993, as no effective proceedings could be held on account of failure of the respondent to submit the requisite process i.e for the service of the present petitioner. Then on 12.10.1993 the petition was dismissed as withdrawn on the statement of the respondent.
(d) The present petition was filed by the petitioner herself on 13.11.1993 and at that time no proceedings before the Guardian Judge were pending in respect of custody of the two minors.
(e) The factual background of relationship between the parties is that the petitioners brother was married to the sister of the respondent. This marriage also broke down and the parties were separated in June, 1990. There are two sons and one daughter of tender ages from this marriage.
The spouses with children were living in Canada but sister of the respondent brought the children to Pakistan but they have now been taken back by the sister to Canada while her former husband, the brother of the petitioner, has returned from Canada and is now living in Pakistan. The assertion of the petitioner is that the children have been removed to Canada to frustrate the efforts of their father to claim them.
(f) Another brother of the respondent with his two sons and one daughter are also living in Canada.
(g) The respondent has married second time and his second wife is expecting baby in near future.
7. We now advert to the respective submissions of the parties. Learned counsel for the petitioner submitted that dismissal in limine of the habeas corpus petition is no bar to the maintainability of the second petition as merits of the controversy were neither examined nor determined in the first petition and secondly illegal custody of an individual is a continuous wrong and with the change of circumstances a subsequent petition is maintainable and the relief in habeas corpus petition cannot be refused on the ground that a petition earlier filed remained unsuccessful. With regard to the second question the learned counsel submitted that judgment rendered by the Canadian Court is conclusive between the parties in view of the provisions of section 13 of the Code of Civil Procedure and that the petitioner being mother has the right of hizanat of minor daughters under Sharia as well and, therefore, she is entitled to seek return of the children to her custody and that the welfare of the minors also lies in restoring their custody to her. In support of this plea reliance was placed on Elizabeth Dinshaw v. Arvand M. Dinshaw (1989 M LD 2209 (Supreme Court of India), Ebtisam Ashour Naqvi v. Syeda Saccda Bano Naqvi (1993 S.C.M.R. 1690) and Mst. Maria Khan v.
Muhammad Zubair Khan (1993 P.Cr.L.J. 1097). In the first case a minor was illegally abducted by a parent from one country to another. The minor was restored to the custody of the person who was granted custody by the foreign court with the observation that the Courts should see that parent does not gain any benefit of his wrong doings. In the second case, the learned Judge of the Supreme Court of Pakistan restored custody of the minor daughter to the mother as a decree of Egypt Court was also in her favour.
8. Learned counsel for respondent No. 1 in reply argued that the petitioner stands disentitled to invoke jurisdiction of this Court as she did not disclose the fact of dismissal of habeas corpus petition earlier filed by her. In support of this plea reliance was placed on Muhammad Sharif v.
Member, Board of Revenue (1992 M.L.D. 1437), Mukhtar Ahmad v. A.C. (Con.) (NLR 1992 CLJ 535) and Bashir Ahmad v. Sardar Muhammad Yaqoob Khan (NLR 1992 A.C. 93). It will be recalled that the learned Single Judge refused to entertain proceedings under section 491 Cr.P.C, because of the fact that the Guardian Judge was seized of the guardianship proceedings instituted by the respondent in which proceedings attorney of the petitioner after service had also entered appearance.
Learned counsel further argued that the second petition is not maintainable as any order passed therein would amount to reviewing the order dated 27th March, 1993, dismissing the first petition.
He referred to various judgments in which it has been laid down that section 369 Cr.P.C, precludes review of the order in criminal proceedings. As the principle is well settled and reference to section 369 Cr.P.C, is sufficient there is no need to notice these precedents.
9. It was next argued that Canadian Court's judgment merits to be ignored as the same has been rendered contrary to the principles pertaining to the custody of minors, enunciated by Sharia and as such section 13 CPC is not applicable. Elaborating the submission, learned counsel argued that the Canadian Court while granting custody to the mother has not kept in view the moral and spiritual welfare of the minors and non-consideration of these matters amongst others provided by section 17 of the Guardian and Wards Act renders the judgment unenforceable in Pakistan. He argued that social and cultural atmosphere of Canada is not conducive for up-bringing of Muslim children and specially the girls and that the respondent father wants to bring up his daughters in congenial and spiritual atmosphere so as to shape their personality and character in accordance with tenets of Islam, In support of this plea reference was made to Sara Palmer v. Muhammad Aslam (1992 M LD 520) and Miss Christine Brass v. Dr. Javed Iqbal (PLD 198l Pesh. 110). Lastly he argued that a decision of a non-Muslim Judge and rendered in a non-Muslim country is not admissible in view of the provisions of Sharia Act and Article 2-A of the Constitution. Learned counsel for the respondent did not pursue this plea as he had nothing to substantiate the same.
We would, therefore, reserve our comments in this respect.
10. Learned counsel for the petitioner in reply submitted that the petitioner cannot be said to have approached this Court with unclean hands and that she is not guilty of non-disclosure of the factum of dismissal of the first petition He submitted that it will be recalled that on the very first day of hearing of this petition the petitioner in answer to the query of the learned Single Judge slated that she had not met her brother since her arrival in Pakistan from Canada; that she was putting up with her other relatives and not with her brother as she apprehends that if she meets her brother and resides with him, the respondent, who is desperate person would come to know of her arrival and would most certainly try to harm her personally. Learned counsel explained that as she did not met her brother she was not aware of dismissal of the first petition filed by the said brother in her name and it was for that reason that the counsel appended the certificate that this was the first petition being filed by her and such a statement was made honestly and bona-fidley. The fact that the petitioner had made the aforesaid statement is uncontrovertible. The truth of the statement gets further support from the fact that address of the petitioner in this petition is different from the address of the petitioner/attorney given in the first petition. The plea that the petitioner had not met and was not living with her brother, also appears to be correct as for want of satisfactory surety she offered to stay at Darul Aman. The brother of the petitioner came up on 16.11.1993 with the offer of furnishing suitable duret\ bond and the said surety was accepted but when request to enhance the amount of surety was made, again she offered to stay at Darul Aman. We arc. Therefore, satisfied that the petitioner approached this Court with clean hands and that there is no deliberate concealment of the fact of dismissal of the first petition.
11. It may also be noted that proceedings before the Guardian Judge were got dismissed as withdrawn by the respondent thereby depriving the petitioner to have the matter adjudicated on merits. The first habeas corpus petition was dismissed by this Court as the Guardian Judge of plenary jurisdiction was seized of the matter and the legal effect of the judgment of the foreign Court could be determined in the said proceedings. The respondent knowing that the habeas corpus petition has been dismissed got the petition filed by him in the Court of Guardian Judge dismissed as withdrawn thereby depriving her the opportunity to establish that the mother cannot legally avail of the judgment of the foreign Court. In the presence of the foreign judgment, unless otherwise established, the petitioner mother's right to have the custody of the minor daughters has It) be conceded.
12. The conduct of the respondent in instituting the guardianship proceedings and then withdrawing the same smacks of mala fides It may be noted that on 17.11.1W3 the respondent filed an application in the Court of the Guardian Judge seeking restoration of the petition under sections 7 and 10 of the Act, which was got dismissed as withdrawn on 2.10.1W3. This application was filed when pursuant to the order passed in this second habeas corpus petition bailiff had already recovered the minors. This restoration application was filed so as to advance the plea that proceedings were pending before the Guardian Judge. Nothing more be said as to maintainability of this restoration application and the reasons which motivated the respondent to move this application. In these circumstances no serious objection can be taken to the maintainability of the second habeas corpus petition-
13. The present habeas corpus petition in the changed circumstances is competent also for the reason that in the first petition entitlement of the mother to seek restoration of children to her custody was not considered on merits. This Court on account of pendency of the guardianship to entertain the proceedings under section 491 Cr.P.C. Moreover the decision of an application under section 491 Cr.P.C, is not a judgment, so the question of bar of section 369 Cr.P.C, does not arise and even reconsideration of a matter on successive applications is not barred if a case is made out on fresh grounds. See Muhammad Amal Khan v. It. Col. Muhammad Shafaat (PLD 1976 Lahore 396 (FB)
Again where question of liberty of a cititen or of legality of the custody is involved the Court cannot refuse to perform the duty merely on technical grounds. The Court is not relieved of its duty because a certain ground or a question of law or fact or certain reasoning which could have shown the order of detention to be unlawful were not raised or taken before the Court in an earlier petition.
In the Full Bench case of Nasim Fatima v. Government of West Pakistan (PLD 1967 Lah 103) it was observed as under:- "A second petition on fresh grounds is not barred by reason of the dismissal of earlier petition, for the Court is concerned with the examination of the question whether the custody is in fact lawful or not, which depends upon the lawfulness of the order and not on the rejection of an earlier petition, It is generally accepted that a second application under section 491 is competent, if fresh facts have emerged and on fresh grounds."
Seen in the a forenoted context the petitioner cannot be said to stand precluded from maintaining the present petition under section 491 Cr.P.C.
14. With respect to the plea that the petitioner cannot claim right to seek restoration of the custody of the minors by placing reliance on the Canadian Judgment and that section 13 C.P.C, is not applicable, learned counsel for the petitioner submitted that the petitioner is as good a Muslim as the respondent is and that she realises her duty to bring up her minor daughters according to the tenets of Islam and that the petitioner is prepared to reside in Pakistan along with the minor daughters provided the respondent father guarantees their maintenance expenses and provides residence for them. This offer was not acceptable to the respondent as he came out with the plea that he does not want his daughters to live with the petitioner as he would not like even her shadow to fall on the minor daughters. The attempt of respondent father to tarnish the personality of the mother has not impressed us. His claim of having all virtues on his side has also not impressed us.
We are also of the view that the respondent is taking refuge under the Islamic principles only to frustrate the effort of the mother to receive custody of the minor girls. He himself claims to be a man of effluence, and had he real intention to keep the minor daughters away from Canadian society he would have agreed to provide residence to the children in Pakistan and also to provide them maintenance. We have gained the impression that he has no intention to shoulder his own responsibility and fulfil his obligation which Sharia places on him. He or his family has planned to send children of the same age of his sister along with her to a society in Canada which he otherwise statedly abhors. He after marrying a girl from a small town of Raiwind took her to Canada and continued to live with his own children in that very society without recollecting the tenets of Islam and without realising the so called injurious culture of Canada. He thought of bringing the minor daughters to Pakistan, by abducting them, only when the order of the Canadian Court went against him. His brother continues to live in Canada along with his children of that very age. These circumstances amply demonstrate that his claim to bring up his children in suitable Islamic atmosphere is a mere hoax and it is being used as a pretext to deprive a Muslim mother from the hizanat of her minor daughters.
15. The plea that the Canadian judgment is contrary to the principles of Sharia pertaining to custody of minor children has also no merit. Sharia recognises right of hizanat of the mother in respect of minor girls and the welfare of the minors lies in granting custody of the minor daughters to their mother unless she is shown to have disqualified herself by her own conduct. Except tor a bald allegation nothing has been placed before us to show that conduct of the mother was such as would disentitle her to the hizanat of the minor girls. The granting of custody of the minors by the Canadian Court in the circumstances is thus not in violation of any principle enunciated by Sharia.
In the circumstances noted above on consideration of spiritual as well as moral welfare of the minor, the mother does not stand disqualified as she is a Muslim and she realises her duty to bring up the minors in accordance with the tenets of Islam. We may note that the judgments referred to by the learned counsel for the respondent are distinguishable as in the one case the mother was a Christian lady and in the facts and circumstances of the case it was observed that the foreign Court's order as to custody is to be considered subject to paramount consideration of welfare of the children.