IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

PRESENT:
MR. JUSTICE SH. AZMAT SAEED
MR. JUSTICE IJAZ UL AHSAN

Criminal Petition No.1011 of 2017

Against order dated 16.08.2017 of Lahore High Court,
Lahore, passed in Criminal Miscellaneous No.47853-H
of 2017.

Mirjam Aberras Lehdeaho Petitioner(s)

VERSUS
SHO, PS Chung, Lahore & others Respondent(s)

For the Petitioner (s) : Ms. Asma Jehangir, Sr.ASC

Ch. Akhtar Ali, AOR

For Respondent No.2 : Ch. Ishtiaq Ahmed, ASC a/w

Ghulam Qasim Dogar and
Ghulam Jaffer Dogar (Minors)

For the State : Ch. Muhammad Waheed Khan,

Addl.P.G, Punjab

Date of Hearing : 05.12.2017

JUDGMENT

IJAZ UL AHSAN, J-. The petitioner seeks leave to

appeal against an order of Lahore High Court, Lahore, dated

16.08.2016. Through the impugned order, a Habeas Corpus

Petition (Crl.Misc.No.47853-H of 2017) filed by the petitioner

seeking recovery of her minor sons namely Ghulam Qasim

Dogar and Ghulam Jaffer Dogar was dismissed.

2. The petitioner, who is a National of Finland met

and later married Respondent No.2, who is presently serving

as DIG, Punjab Highway Patrol. The marriage took place in

1997 in Lahore, Pakistan. Before the marriage, the petitioner

converted to Islam. She states that she continues to be a

Muslim. The parties have three children from the marriage

Criminal Petition No.1011 of 2017

namely, Zahra Bibi Dogar (about 19 years of age presently

living in Canada); Ghulam Qasim Dogar (aged about 17 and a

half years); and Ghulam Jaffer Dogar (about 13 years old). All

three children were born in Lahore, Pakistan.

3. The parties alongwith their children resided in

Lahore till 2009. However, presumably on account of security

concerns, Respondent No.2 decided to apply for Canadian

Immigration for the whole family. On his desire, the family

relocated and settled in Grand Falls-Windsor, Newfoundland,

Canada. Respondent No.2 also purchased a house in Canada

where the family is residing. All three children started

schooling in September, 2009 and till recently were living and

studying in Canada.

4. It appears that the petitioner and the three

children acquired Canadian Citizenship on 17.08.2014.

However, Respondent No.2 only acquired Permanent Resident

Status as he did not apply for citizenship owing to his

Government Service in Pakistan. He returned to Pakistan

after getting such status. He however visited his family off

and on. The three children were in the care and custody of

the petitioner since 2009 who single handedly raised them in

Canada.

5. In 2016, during a visit to his family, Respondent

No.2 appears to have made plans for the petitioner and their

children to visit Pakistan for three weeks. All three children

and the petitioner stayed in Lahore till 05.09.2016. Thereafter

they returned to Canada with the consent of Respondent

Criminal Petition No.1011 of 2017

No.2. In order to ensure that there would be no objection by

the Immigration authorities regarding minors’ traveling with

one parent, Respondent No.2 issued permission letter dated

03.09.2016 in favour of the petitioner.

6. Before the petitioner and the children left for

Canada, Respondent No.2 insisted that the three children

should visit Lahore again during Christmas holidays in

December, 2016. While the daughter appears to have

declined, the two sons agreed to a short visit with an

understanding that they would return to Canada on

26.12.2016. The two children arrived in Lahore on

21.12.2016 with a clear understating that they would return

to Canada on 26.12.2016. However, without disclosing

anything to the petitioner or the children, Respondent No.2

had quietly filed an application in the Guardian Court at

Lahore, under Section 7 of the Guardians & Wards Act, 1890

(the Act, 1890) seeking his appointment as a Guardian of the

person and property of three children. The application was

filed by him on 01.09.2016 when the children were

temporarily in Lahore and later left for Canada with his

permission. It is also significant to note that the daughter had

already attained the age of majority and was therefore an

adult which fact was concealed from the Court.

7. Respondent No.2 managed to obtain an ex parte

restraining order against the petitioner (in absentia) from the

Court of Guardian Judge-IV, Lahore. In the application, the

address of Respondent No.2 in Lahore was given as the

Criminal Petition No.1011 of 2017

address of the petitioner. It is alleged that Respondent No.2

never disclosed to the Guardian Court that the minors had

left the country with their mother on 05.09.2016 with his

consent. The case was fixed from time to time and notices

were repeatedly issued to the petitioner. Not surprisingly, she

was never served and therefore did not appear before the

Guardian Court.

8. Having tricked the children through various

contrived reasons to stay beyond 26.12.2016, on 03.01.2017,

Respondent No.2 moved an application before the Guardian

Court seeking permission to produce them in the Court to

record their statements. The statements of the minors were

accordingly recorded to the effect that they had no objection if

their father was appointed as their Guardian. There is

nothing on record to indicate that the children were ever

informed or were aware of the nature of proceedings in which

they had recorded their statements. It is apparent that they

neither knew nor had any inkling about the ramifications and

implications of such statements. At no stage, was the Court

informed that the petitioner had already left for Canada and

was living there. However, much belatedly i.e. on 03.03.2017,

six months after the petitioner had left Pakistan with her

children, Respondent No.2 moved an application before the

Guardian Court, stating that the petitioner was no longer in

Pakistan and sought permission to give her address in

Canada. An additional prayer for his appointment as

guardian of the property of minors was also made on the

pretext of some property that he owned jointly with his

Criminal Petition No.1011 of 2017

children. It has also been alleged that although the notice was

sent to the petitioner at her address in Canada through

courier service, it indicated that some matter was pending in

the Court of Nazar Abbas Gondal, Civil Judge, Lahore which

was unclear, deceptive, confusing and also gave a wrong case

number. The guardianship matter was in fact pending before

Guardian Court No.VII, Lahore. The notice did not provide

any other details that could provide any indication to the

petitioner regarding the nature of proceedings pending in

Pakistan.

9. On account of non appearance of the petitioner,

the Guardian Judge passed an ex parte order dated

04.04.2017 granting Respondent No.2 guardianship of the

person and property of the minors Ghulam Qasim Dogar and

Ghulam Jaffer Dogar. It is pertinent to mention here that

despite an understanding that the children would return by

26.12.2016, they were not allowed to return and Respondent

No.2 managed to keep them back on one pretext or the other.

When the children did not return to Canada, the petitioner

became anxious and started asking questions. Having not

received satisfactory answers, she applied for a visa to visit

Pakistan in January, 2017 as her Pakistan Origin Card (POC)

had expired. It is alleged that Respondent No.2 obstructed or

at least did not facilitate renewal of the POC of the Petitioner

to keep her out of the country. In the meantime, the two

children came to know about the order passed by the

Guardian Judge and became restless and suspicious at not

being allowed to return. They contacted their mother on

Criminal Petition No.1011 of 2017

24.04.2017 and informed her accordingly. As soon as the

petitioner received a visa, she travelled to Pakistan on

19.06.2017. She alleges that her repeated requests to see the

children were declined. This prompted her to file a Habeas

Corpus Petition under Section 491 read with Section 561-A,

Cr.PC before the Lahore High Court, Lahore for recovery of

her children. The children were produced before the High

Court on 07.08.2017. The High Court inquired from them if

they were under “detention” or “supervision” of any person to

which they obviously responded in the negative. This

prompted the learned High Court to dismiss the petition as

non maintainable, vide order dated 16.08.2017. Hence, this

petition.

10. The learned counsel for the petitioner submits

that Respondent No.2 had manipulated the visit of his

children to Lahore in December, 2016 and thereafter placed

unlawful restrictions on them by not allowing them to return

to Canada. He is therefore holding them in an unlawful and

improper manner. She further submits that it is in the best

interest and welfare of the minors that they be relieved of this

trauma. She maintains that the children have been deprived

of education, denied any direct contact with their mother and

the forcible detention has caused serious disturbance to their

lives. She further maintains that Respondent No.2 being the

father was the natural guardian of the minors. There was no

need for him to seek a declaration to this effect. He used the

proceedings in the Guardian Court as a cover to deprive the

petitioner of her children and to forcibly detain them in

Criminal Petition No.1011 of 2017

Pakistan against their will. On instructions of her client, the

learned counsel categorically stated that the wishes of the

children be ascertained by this Court and in case, the

children express a wish to stay in Pakistan she would

withdraw the petition.

11. The learned counsel for Respondent No.2 has

vehemently defended the impugned order. He submits that

being the father of the children, Respondent No.2 was the

best person to take decisions regarding their welfare and

upbringing. He had tried to persuade the petitioner to return

to Pakistan alongwith the children, but she had refused to do

so. He maintains that Respondent No.2 had sent airline

tickets to his children to return to Pakistan which they had

done willingly. However, appropriate proceedings were

initiated bona fide before the Guardian Court in order to avoid

any legal complications. He further maintains that admittedly

the matter is pending before the Guardian Court where an

application moved by the petitioner for setting aside the ex

parte order is already pending. Therefore, the question

regarding custody and welfare of the minors should be left to

be determined by the Court of competent jurisdiction after a

fair trial and evidentiary hearing to enable the parties to put

all requisite material before the Court. On the basis thereof,

an informed decision can be made by the Guardian Court

regarding the welfare and custody of the minors. He has

vehemently argued that in these circumstances, the High

Court was justified in refusing to exercise jurisdiction under

Section 491, Cr.PC observing that the questions of custody

Criminal Petition No.1011 of 2017

and welfare of the minors could more appropriately be

determined by the Guardian Court. Responding to an

assertion made by learned counsel for the petitioner that a

petition under Section 7 of the Act, 1890 was not

maintainable, he submits that there is no bar in the Guardian

and Wards Act, 1890 that may prevent the father/natural

guardian from seeking an order appointing him guardian of

the person and property of the minors. In this context, he has

placed reliance on Section 354 of Muhammadan Law by D.F.

Mulla; Shabana Naz v. Muhammad Saleem (2014 SCMR

343); Jacob A. Chakramakal v. Rosy J. Chakramakal (1975)

ILR 2Mad 384); Kamini Mayi Debi v. Bhusan Chandra (AIR

1926 Calcutta 1193); and Naziha Ghazali v. The State (2001

SCMR 1782).

12. We have heard the learned counsel for the parties

and gone through the record with their assistance.

Considering the peculiar facts and circumstances of this case,

the following questions arise which have a direct bearing on

the outcome of these proceedings:-

i) Whether the petition under Section 7 of the

Act, 1890 was maintainable;

ii) Whether the petition before the High Court

under Section 491 read with Section 561,
Cr.PC was not maintainable;

iii) What is the effect of the impugned order

passed by the High Court; and

iv) What order can be passed by this Court in the

present proceedings?

13. As far as the maintainability of a petition under

Section 7 of the Act, 1890 (Question No.i above) by a real

Criminal Petition No.1011 of 2017

father is concerned, it appears that despite the fact that the

father is a natural guardian, there is no bar in law that places

any restriction on the natural guardian to approach a Court

of competent jurisdiction to be declared as guardian of the

person and property of the minors. It appears that such

declaration provides incremental benefits and convenience in

his transactions relating to the properties held in the name of

the minors. This view is fortified by Section 354 of

Muhammadan Law by D.F. Mulla as well as the following

judgments:-

i) Shabana Naz v. Muhammad Saleem (2014

SCMR 343);

ii) Jacob A. Chakramakal v. Rosy J.

Chakramakal (1975) ILR 2Mad 384);

iii) Kamini Mayi Debi v. Bhusan Chandra (AIR

1926 Calcutta 1193); and

iv) Naziha Ghazali v. The State (2001 SCMR

1782).

14. Having held that there is no bar on the

father/natural guardian against obtaining a guardianship

certificate, we may observe that the circumstances and bona

fides of Respondent No.2 in obtaining such declaration/

certificate need to be examined keeping in view the peculiar

facts of this case. In this context, the following factors are

significant:-

a) The children alongwith the petitioner were

living in Pakistan with Respondent No.2 till
2009;

b) It was on the wish and desire of Respondent

No.2 that the family immigrated to Canada
where the petitioner and all three children
Criminal Petition No.1011 of 2017

10

obtained citizenship. On account of

professional reasons, he did not seek
citizenship but got Permanent Resident
Status which allows him to enter and exit
Canada at his convenience;

c) From the material placed before us it

appears that there was an understanding in
the family that either Respondent No.2
would visit the family in Canada as and
when he could or in the alternative, the
petitioner alongwith the children would visit
Pakistan during holidays;

d) The above arrangement continued till 2016

when Respondent No.2 appears to have
changed his mind and decided to bring the
family back to Pakistan. However, by this
time, the petitioner had taken up
employment in Canada and the children had
started attending Schools/Colleges at
various levels in Canada and seven years
had elapsed in the meanwhile. It has been
asserted on behalf of the petitioner and not
denied by the Respondent that the family is
well settled and assimilated in the new
environment;

e) It appears that there was some resistance

from the petitioner, her adult daughter and
possibly the two children to permanently
return to Pakistan for the reason that they
had settled down in Canada and appear to
be happy. However, in order to force them to
come back to Pakistan, Respondent No.2
used devious and deceitful methods. On the
promise that they would only be visiting
their father for a short holiday and would be
Criminal Petition No.1011 of 2017

11

allowed to return to Canada in December,

2016, the children came to Pakistan in good
faith with the blessings of their mother.
What neither the petitioner nor the children
knew was that Respondent No.2 had other
plans and had gone to great lengths to create
a legal cover to support his actions;

f) Respondent No.2 approached the Guardian

Court without disclosing the exact facts,
took pains to conceal the correct address of
the petitioner, did not inform the Court that
the daughter was already an adult and also
withheld the fact that he had granted
permission, in writing, to the children to
return to Canada. The purchase of a 5 Marla
plot in the joint names of Respondent No.2
and the two boys, was also, in our opinion a
device, possibly under legal advice, to create
grounds of appointment of Respondent No.2
as guardian of property of the minors and
thus postponement of age of majority from
18 to 21 years. He got the orders in his
favour without contest, ex parte and behind
the back of the petitioner; and

g) Initially, the petitioner was shown as

residing at the house of Respondent No.2 in
Lahore and at a belated stage her Canadian
address was placed on record. However, the
notice sent to the petitioner did not contain
the requisite information which would have
enabled her to get information about the
matter pending before the Guardian Court
and to instruct a lawyer to contest the
matter on her behalf. The petitioner also
appears to have taken advantage of the fact
that she was not residing in Pakistan.
Criminal Petition No.1011 of 2017

12

15. All the above factors point towards manipulation,

deceit and lack of bona fides on the part of Respondent No.2.

The application for appointment of guardian of the person

and property of the minors was used for improper purposes in

order to provide legal cover to the wishes and designs of

Respondent No.2. We are therefore not willing to hold that the

certificate under Section 7 of the Act, 1890 by itself and

notwithstanding the facts and circumstances narrated above

is a perfect answer and defence available to Respondent No.2

to assert a right to keep the children in Pakistan against their

will and take unilateral decisions regarding their custody and

other aspects of their lives, which have direct nexus with their

welfare. In view of the foregoing discussion we find that the ex

parte order/judgment of the Guardian Court, Lahore is not

sustainable.

16. As regards Question No.ii above, we find that the

petition under Section 491 read with Section 561, Cr.PC was

indeed maintainable. Where the petitioner, who is the real

mother of the children bona fide believed that the children

had been removed from her custody by exercise of deception

and trickery, and thereafter forced to stay in Pakistan against

their will, she could not be precluded from approaching the

High Court, which was not denuded of its jurisdiction under

Sections 491 and 561 Cr.PC to provide relief to the petitioner.

Reliance of the learned counsel for Respondent No.2 on Nadia

Parveen v. Almas Noreen (PLD 2012 Supreme Court 758);

Abdul Rehman Khakwani v. Abdul Majid Khakwani (1997

Criminal Petition No.1011 of 2017

13

SCMR 1480); and Naziha Ghazali v. The State (2001 SCMR

1782) to assert that resort to Section 491, Cr.PC can be made

only when the children of tender age have been snatched

recently and there is a real urgency in the matter is

misplaced. We have perused the said judgments and find that

they are distinguishable on facts and not be applicable to the

specific facts and circumstances of this case as has

elaborately been noted above.

17. This Court has on various occasions examined the

question of exercise of jurisdiction by the High Court where

the matter involves custody of minors while the matter is sub

judice before the Guardian Court. In Ahmed Sami and 2

others v. Saadia Ahmed and another (1996 SCMR 268) at

page 271, it was held that:

“It is true that a Guardian Court is the final arbitrator to

adjudicate upon the question of custody of child but this
does not mean that in exceptional cases when a person who
is holding the custody of a minor lawfully and has been
deprived of the custody of minor has no remedy to regain
the custody pending adjudication by the Guardian Court.
In exceptional cases where the High Court finds that the
interest and welfare of minor demanded that the minor be
committed immediately to the custody of the person who
was lawfully holding the custody of minor before he was
deprived of the custody, the Court can pass appropriate
order under section 491, Cr.P.C. directing restoration of the
custody of minor to that person as an interim measure
pending final decision by the Guardian Court.”

18. In Shaukat Masih v. Mst. Farhat Parkash and

others (2015 SCMR 731), we held at page 734 that:

“We have been informed that so far respondent No. 1 has

not filed any appeal against the relevant order passed by
the learned Guardian Judge nor any application has so far
Criminal Petition No.1011 of 2017

14

been filed before the learned Guardian Judge seeking recall

of the ex parte order and reconsideration of the matter on
its merits. Be that as it may we find that through the
impugned order passed by the High Court a minor girl has
been given in the custody of her real mother and even if
there are some questions regarding proper exercise of
jurisdiction by the High Court in the matter still we would
not like the little girl to be made a ball of ping pong and
shuttle her custody during the legal battles being fought by
those interested in her custody. Faced with this
unfortunate situation we have decided to invoke this
Court's jurisdiction under Article 187(1) of the Constitution
of the Islamic Republic of Pakistan, 1973 which allows this
Court to issue such directions, orders or decrees as may be
necessary for doing complete justice in any case or matter
pending before it. Invoking the said jurisdiction of this
Court we set aside the order passed by the learned
Guardian Judge, Shahkot, District Nankana Sahib on 24-7-
2014 and cancel the Guardianship Certificate of the said
date and direct the learned Guardian Judge to consider the
application submitted before him by the present petitioner
regarding custody of the relevant minor as a pending
application, to hear all the parties concerned, including the
mother of the minor, and then to decide the matter of
custody of the above mentioned minor afresh after
attending to all the jurisdictional, legal and factual issues
relevant to the controversy raised by the parties. During the
interregnum the custody of the minor shall remain with her
mother and the learned Guardian Judge shall attend to the
request, if any, made regarding visitation rights.”

19. In Muhammad Khalil-ur-Rehman v. Mst. Shabana

Rahman and another (PLD 1995 SC 633), this Court held on

pages 638 and 639 that:

“In view of the above observation, it is quite clear that in

appropriate cases the Court under section 491, Cr.P.C. if it
reaches the conclusion that a minor has been illegally
removed from the custody of a person who was holding his
custody lawfully, the Court is empowered under section
491, Cr.P.C. notwithstanding the provisions of Guardians
and Wards Act to pass appropriate orders. We are,
therefore, of the view that the jurisdiction of the Criminal
Court is not barred under section 491, Cr.P.C. to pass
Criminal Petition No.1011 of 2017

15

appropriate order with regard to custody of a minor who

has been illegally removed from the custody of person, on
account of the provisions of Guardians and Wards Act. …
As earlier pointed out, the two provisions, namely section
491, Cr.P.C. and section 25 of the Guardians and Wards
Act deal with two different situations and as such the
question of ouster of jurisdiction of criminal Court under
section 491, Cr.P.C. on account of provisions of section 25
or 12 of Guardians and Wards Act did not arise at all. There
is no overlapping between the provision of section 491,
Cr.P.C. and section 25 of the Guardians and Wards Act.”

20. In the case of Mst. Nadia Perveen v. Mst. Almas

Noreen and others (PLD 2012 SC 758) we held at page 760

that:

“It has consistently been held by this Court in the cases of

Muhammad Javed Umrao v. Miss Uzma Vahid (1988 SCNIR
1891), Nisar Muhammad and another v. Sultan Zari (PLD
1997 SC 852), Mst. Khalida Perveen v. Muhammad Sultan
Mehmood and another (PLD 2004 SC 1) and Naziha Ghazali
v. The State and another (2001 SCMR 1782) that the matter
of custody of minor children can be brought before a High
Court under section 491, Cr.P.C. only if the children are of
very tender ages they have quite recently been snatched
away from lawful custody and there is a real urgency in the
matter and also that in such a case the High Court may
only regulate interim custody off the children leaving the
matter of final custody to be determined by a Guardian
Judge. In those cases this Court had repeatedly
emphasized that in such matters the jurisdiction of a High
Court under section 491, Cr.P.C. is to be exceptional and
extraordinary case of real urgency keeping in view that even
a Guardian Judge has the requisite powers of recovery of
minor children and regulating their interim custody.”

21. Findings to the same effect have been recorded in

Abdul Rehman Khakwani v. Abdul Majid Khakwani and 2

others (1997 SCMR 1480) and Mst. Khalida Parveen v.

Muhammad Sultan Mehmood and another (PLD 2004 SC 1).

Criminal Petition No.1011 of 2017

16

22. The Guardian Court is the final Arbiter for

adjudicating the question of custody of children. However,

where a parent holding custody of a minor lawfully has been

deprived of such custody, such parent cannot be deprived of a

remedy to regain the custody while the matter is sub judice

before a Guardian Court. Therefore, in exceptional cases (like

the instant case), where the High Court finds that the best

interest and welfare of the minor demand that his her custody

be immediately restored to the person who was lawfully

holding such custody before being deprived of the same, the

Court is not denuded of jurisdiction to pass appropriate

orders under Section 491, Cr.PC directing that custody be

restored to that person as an interim measure pending final

decision of the Guardian Court. While the tender age of the

minor is always a material consideration but it is not the only

consideration to be kept in mind by the High Court. Other

factors like best interest and welfare of the minor, the

procedural hurdles and lethargy of the system, delays in

finalization of such matters, the handicaps that the mother

suffers owing to her gender and financial position, and above

all the urgency to take appropriate measures to minimize the

trauma, emotional stress and educational loss of the minor

are equally important and also need to be kept in mind while

granting or refusing an order to restore interim custody by

the High Court. The two provisions of law namely Section

491, Cr.PC and Section 25 of the Guardian and Wards Act

deal with two different situations. As such, the question of

ouster of jurisdiction of the High Court on account of

Criminal Petition No.1011 of 2017

17

provisions of Sections 12 or 25 of the Guardian and Wards

Act or pendency of proceedings under the said provisions

does not arise. There is no overlap between the two provisions

as both are meant to cater for different situations, the first to

cater for an emergent situation, while the latter to give more

long term decisions regarding questions relating to

guardianship of minors keeping in view all factors including

their best interest and welfare.

23. We are not persuaded by the argument of the

learned counsel for Respondent No.2 that the remedy under

Section 491, Cr.PC is barred in view of the availability of an

alternative remedy by way of approaching a Guardian Court

of competent jurisdiction. This Court as well as the High

Court in exercise of their powers under Section 491, Cr.PC

have to exercise parental jurisdiction and are not precluded in

all circumstances from giving due consideration to the welfare

of the minors and to ensure that no harm or damage comes to

them physically or emotionally by reason of breakdown of the

family tie between the parents. It was with this object in mind

that vide order dated 05.12.2017 we directed Respondent

No.2 to produce the two children before us in chambers. We

met the two boys aged 17½ and 13 years in chambers

without the parents or their counsel being present. We talked

to them in an informal and friendly atmosphere to determine

their respective levels of maturity, the way they were handling

their present situation and most importantly their wishes.

The minors appeared to be well groomed, confident and

mature boys for their age. They were visibly under stress and
Criminal Petition No.1011 of 2017

18

did not come across as particularly happy. On gently being

questioned by us, they clearly and in no uncertain terms

stated that they were finding it hard to adjust in Lahore and

would like to return to Canada to continue their education.

They however stated that they loved their father very much

and would be happy to return to Pakistan during holidays

and also spend time with him if and when he came to

Canada. They also informed us that they had been admitted

to Lahore Grammar School where they had been unable to

make friends, adjust to the new system and get into the flow

of things socially or academically. They spent most of their

time playing video games and watching movies at home and

were missing school which was causing academic loss,

mental stress and possibly emotional trauma. Although their

movement was not entirely restricted, they found it better and

safer to stay home most of the times. They had done this for

the past almost one year.

24. The admitted facts and circumstances of the case,

documents on record and our candid interview with the

children, where neither of the parents or their counsel were

present, lead us to conclude that the children are mature

enough to make an informed and conscious decision

regarding the place where they wish to live and receive

education in the immediate future and the parent they want

to be with for the time being. Keeping in view their

educational, emotional and social needs, their wishes must be

respected by the parents as well as this Court.

Criminal Petition No.1011 of 2017

19

25. Our answer to the third question, “what is the

effect of the impugned order passed by the High Court” is that

the learned High Court has abdicated its jurisdiction and

taken its hands off the case without giving it much thought or

considering the specific facts and circumstances of the

instant case. It has declined to exercise jurisdiction and

relegated the parties to contest the matter before the

Guardian Court where Respondent No.2 has already obtained

an ex parte order under Section 7 of the Act, 1890. Although

we have been informed that the petitioner has moved an

application for setting aside the ex parte order, the matter is

still pending and considering the ground realities, lethargy of

the system, delaying tactics and procedural hurdles in

disposal of matters of this nature, it is unfair to expect that

the issue will be resolved any time soon. There are no easy

answers or procedural shortcuts on the basis of which the

legal and factual issues involved in this litigation can be

resolved on a fast track basis. However, we have to be mindful

of the fact that lives of two young men have been put on hold,

while their parents battle it out, motivated by egos and/or

their respective desires to ensure that the children grow up in

a manner and environment considered suitable for them by

one parent or the other. This situation requires an objective

assessment by an impartial Arbiter acting in loco parentis,

motivated by nothing but the objective of looking after and

ensuring the best interest and welfare of the children. We

therefore hold that in exceptional circumstances like these,

we are not hampered or impeded by technical and procedural

Criminal Petition No.1011 of 2017

20

hurdles from doing complete justice. Such powers are

available to this Court under Article 187 of the Constitution of

Islamic Republic of Pakistan, 1973. In appropriate cases

where there is a real and imminent danger of physical,

emotional or any other harm coming to a minor, this Court

would not be shy of exercising powers in its parental

jurisdiction coupled with its constitutional mandate to do

complete justice to safeguard and secure the interests of the

minors. Reliance is placed on Shaukat Masih v. Farhat

Parkash (2015 SCMR 731) and Khalida Perveen v.

Muhammad Sultan Mehmood (PLD 2004 Supreme Court 1).

26. Now we advert to Question No.iv above, “what

order can be passed by this Court in the present proceedings”.

As stated above, considering the specific facts and

circumstances of the case, we find that the High Court erred

in law in failing to determine the real wishes of the children. It

confined itself to asking one or two very routine generic and

generalized questions which were neither phrased nor

designed to elicit the whole truth or determine the real wishes

of the children. We get the distinct impression that the High

Court acted with undue haste despite the importance and

delicacy of the issue before it. It lost sight of the fact that in

suitable cases it has ample powers under the law as well as

the Constitution to protect and safeguard the interests of

minors to ensure that as far as possible their physical safety,

emotional well being and welfare is secured and protected

after a balanced and dispassionate assessment of the

situation. Unfortunately, the learned High Court shied away

Criminal Petition No.1011 of 2017

21

from this legal and constitutional obligation for reasons best

known to it.

27. In view of the foregoing, we set aside the ex parte

order/judgment dated 04.04.2017 passed by the Guardian

Court, Lahore against the petitioner. All administrative

actions taken and orders passed by administrative

authorities/State functionaries as a result of orders passed

by the Guardian Court or on the basis of application(s) moved

by any of the Respondents are also set aside, recalled and

declared null and void. The guardianship petition shall be

deemed to be pending before the said Court. It shall grant

reasonable time and opportunity to the petitioner to file her

replies/written statements. Thereafter, the Court shall

proceed to decide the matters strictly in accordance with law.

We further direct that as an interim measure, the custody of

the two children namely Ghulam Qasim Dogar (aged about 17

years) and Ghulam Jaffer Dogar (aged about 13 years) shall

be handed over to the petitioner, who is their real mother.

28. In view of the above discussion, we convert this

petition into an appeal and allow the same. The impugned

judgment of the High Court dated 16.08.2017 is set aside.

Judge

Judge

Announced by me in open Court

At Islamabad on _______________.

Judge
Criminal Petition No.1011 of 2017

22

APPROVED FOR REPORTING

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