P L D 2025 Islamabad 315 (PLP)

MOHSIN AKHTAR KAYANI, J.

Through the instant writ petition, the petitioner Iza Nowak has invoked the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with Section 491, Cr.P.C. with the following prayer:-- a) Issue a writ to the Respondents in the nature of habeas corpus directing Respondents to immediately produce the Minor/Detenu and his half-sister before this Honourable Court; b) Direct Respondents in locating minor/detenu and recovering the same from Respondent No.7; c) Direct the Respondents Nos. 1 to 6 to immediately start the process to send both children back to Poland; d) Direct the relevant authorities to identify and investigate those responsible, directly or indirectly,, for abducting and illegally detaining the Minor/detenu and his half-sister and to prosecute those responsible for offences made out against them under the laws of the Islamic Republic of Pakistan and under international law; e) Both children be recovered and repatriated to Poland. Any other relief that this Honourable Court deems fair and reasonable in the utmost interest of justice given the circumstances may also be granted.

2. Brief facts highlighted by the petitioner side in the instant writ petition are that respondent No.7/Saleem Muhammad is a biological father of minor son namely Ahmed Muhammad, who born on 19.06.2015 from Iza Nowak, biological mother, Polish citizen, who was taken to Pakistan along with her half-sister namely Saadia Muhammad, born on 07.05.2012 from Ex-wife of respondent No.7 namely Joanna Rycharska with the mutual consent for a period of two weeks w.e.f. 05.08.2021 to 19.08.2021, but later on respondent No.7, the biological father of both the minors refused to return the minors to the biological mothers in Poland. The petitioner Iza Nowak has filed instant writ petition for recovery of both the minors as the minors are Polish citizens. This Court while entertaining the instant writ petition on 01.09.2022, issued the notices to the D.G. Emigration and Passport, F.I.A Authorities, Secretary, Ministry of Interior as well as Inspector General Police, Punjab to recover the minors and to produce them before this Court. Pursuant to notice on the permanent residence of respondent No.7/Saleem Muhammad in District Sialkot, S.H.O. Haji Pura, District Sialkot submitted the report that the parents of the said respondents recorded their statement that respondent No.7/Saleem Muhammad visited them on one occasion in a marriage ceremony of the family and thereafter he left, whose whereabouts is not known to them. Similarly, FIA Authorities have also submitted the report that minors landed in Pakistan on 06.08.2021 at Karachi and never exited from Pakistan. The petitioner has also produced the judgment rendered by District Court Sierpc, Poland qua the final custody of minor in favour of petitioner/mother, therefore, the name of Respondent No.7/Saleem Muhammad as well as minor was placed on Exit Control List (ECL) vide order dated 05.10.2022 and Secretary, Ministry of Interior, Government of Pakistan was directed to constitute a Joint Investigation Team (JIT) comprising of Intelligence Bureau (I.B), F.I.A. and NADRA officials for location/identification of respondent No.7/Saleem Muhammad for recovery of two minors children. In compliance of the same, the Joint Investigation Team (JIT) was constituted by the Government of Pakistan, consequent upon the serious efforts made by the Joint Investigation Team (JIT) as well as Amna Baig, DD, AHTC, Waseem Bukhari, A.D. (AHTC) as well as other officials of F.IA, NADRA and officers of Ministry of Interior, Government of Pakistan, minors were located and recovered them with Saleem Muhammad/respondent No.7.

3. On 22.12.2022, a C.M. No.4773-2022 was filed before this Court by the Attorney General Office, Islamabad with the prayer that F.I.A. Authorities be allowed to produce the minors along with respondent No.7 (their father before this Court). The case was taken up on the same date and minors, were produced and direction was issued to the F.I.A. Authorities to release respondent No.7/Saleem Muhammad subject to surety of Rs.100,000/- with one surety to the satisfaction of F.I.A. Authorities. However, his name was placed on Exit Control List (ECL) and he was directed to surrender his both passports i.e. Polish and Pakistan to the Deputy Registrar (Judicial) of this Court. Mr. Piotr Kunat, First Secretary/DHM and Mr. Rafal Bartochowski put appearance on behalf of the Embassy of Poland in Islamabad to represent both the mothers namely Iza Nowak and Joahna Rycharksa, both Poland Nationals, who are real mothers of Ahmed Muhammad and Saadia Muhammad, who are also Polish citizens. Both the mothers were out of country at the time of filing of petition, therefore, the minors were initially placed with the Embassy of Poland along with the present wife of respondent No.7/Saleem Muhammad namely Iqra Qureshi as a caregiver however, on the same day, another C.M bearing No.4779/ 2022 was filed by the petitioner side that officials of Embassy of Poland are not authorized to keep the outsider (Iqra Qureshi) in the Embassy area, pursuant thereto order dated 22.12.2022 was further amended on the same date and matter was adjourned to 27.12.2022 with the directions that minors be lodged in the women Crisis Centre, Islamabad for the time being along with Iqra Qureshi as caregiver. The real mothers of the minors namely Iza Nowak and Joanna Rycharska put their appearance along with the Embassy staff of the Poland on 27.12.2022, when minors were handed over to both the real mothers of the minors on temporary basis for one day and case was fixed for today for arguments as well as for the assessment of minors through interview in Chambers.

4. Learned counsel for the petitioner contends that Respondent No.7/Saleem Muhammad, Ex-Pakistan citizen visited the Poland and entered into marriage contract with Joanna Rycharska, the mother of Saadia Muhammad on 29.10.2005, however, the marriage was ended with divorce on 28.02.2017, but the minor Saadia Muhammad was in custody of the real mother. The respondent No.7 further entered into a civil partnership with Iza Nowak and become the father of Ahmed Muhammad minor son. He further contends that respondent No.7 after giving the assurance to the real mother, taken both minors for a temporary custody with the permission to visit Pakistan in order to see their grandparents and later on changed his position and refused to return to Poland, despite the fact that both the minors were studying in the school and as such it amounts to a child abduction, which is a crime and at present different complaints have been registered against respondent No.7 in Poland for such offence, even he has violated the courts orders in Poland, which was passed by the competent Court qua the visitation and custody of the minors. It has further been contended that both the minors are not Pakistani citizen, even mothers are not Pakistani citizen as well as respondent No.7, who is also not a Pakistani citizen, rather he is citizen of Poland, therefore, the habitual place of minors be considered as Poland and the minors be handed to the real mothers for their return to their habitual abode in Poland.

5. Conversely, learned counsel for respondent No.7/Saleem Muhammad contends that he being the real father has taken care of minors in Poland as both the mincrs are Muslims and no religious education was being provided by the real mothers, due to which he shifted to Pakistan with the consent of both the mothers. He further submits that both the minors were studying in Iqra Children School Rawalpindi and were looked after by the step mother in Pakistan namely Iqra Qureshi as respondent No.7/Saleem Muhammad contracted marriage with Iqra Qureshi in Pakistan around 11 months ago. He father contends that the minors are properly taken care of as per Muslim religious values in Pakistan, therefore, they be kept in Islamabad in all circumstances.

6. Learned Additional Attorney, Barrister Munawar Iqbal Duggal, assisted this Court while going through the provisions of Citizenship Act, 1951 and contends that Pakistan and Poland have not entered into dual citizenship treaty nor any other law recognizes such aspect in Pakistan, whereas respondent No.7/Saleem Muhammad adopted for Poland citizenship, therefore, he ceases to be a Pakistani citizen.

7. Arguments heard record perused.

8. Perusal of record reveals that the minor son namely Ahmed Muhammad, date of birth 19.06.2015, Passport No.EU 9060287 and Saadia Muhammad, date of birth on 07.05.2012, Passport No. EU 9114568, who born from Iza Nowak and Joanna Rycharska. Both the minors travelled to Pakistan with respondent No.7/Saleem Muhammad the biological father, based upon the permission granted by both the mothers only for the period starting from 05.08.2021 to 19.08.2021, but later on respondent No.7 disappeared from the last known address in Pakistan along with the minors.

9. This Court has gone through the consent letter to go abroad, issued by Joanna Rycharska, the mother of Sadia Muhammad and Iza Nowak, the mother of Ahmed Muhammad in favour of respondent No.7, which clearly spells out that both the consent letters permits the respondent No.7 to travel Pakistan for two weeks only under the care of respondent No.7/father, even this Court has been guided with the decision passed on 07.02.2022 by the District Court Sierpc, 3rd Family and Juvenile Division with the question that minor Ahmed Muhammad, son of Saleem and Iza, for the duration of the proceedings, shall reside with his mother, Iza Nowak, at any place where she may reside. Even the complaint was also referred to the County Police Headquarters in Sierpc highlighting the abduction of the minor Sadia Muhammad by the father Saleem Muhammad on 29.09.2021.

10. The record further reflects that Respondent No.7/Saleem Muhammad entered into marriage with Joanna Rycharska on 29.10.2005 and after the birth of Sadia Muhammad on 07.05.2012, they jointly filed for divorce proceedings before the Court in Poland, which was culminated into final judgment on 28.02.2017, however, during this period, respondent No.7 entered into a civil partnership with the Iza Nowak and during his relationship Muhammad Ahmed was born on 19.06.2015, though during the course of proceedings respondent No.7/Saleem Muhammad claims that both the mothers of the minors were Muslim and he entered into Islamic marriage contract with both these women, Polish citizens, however both the ladies were confronted with the help of their Polish Counsel/Translator in the Court, who in categorical terms denied such aspect, however, this Court will not enter into this question at this stage, but Iza Nowak denies any marriage with Saleem Muhammad.

11. Keeping in view the above background, it appears that initially the case was filed by Iza Nowak, the mother of Ahmed Muhammad, the minor son, but she also refers the abduction of Sadia Muhammad, though the mother of Sadia was not party to the instant proceedings, however, both the sides were agreed upon and have no objection on the right of hearing to be extended to the Joanna, Rycharska, whose claim has been referred in the instant writ petition, therefore, this Court permitted both the mothers to argue their case through their duly notified counsel Barrister Aqeel Malik as well as GRZEGORZ ZACZEK, Polish Counsel Mr. Piotr Kunat, First Secretary/DHM and Mr. Rafal Bartochowski, Consul/Head of Consular Section of Embassy of Republic of Poland, Islamabad, who have assisted this Court and confirms that Pakistan and Poland have no yet entered into any bilateral treaty of dual citizenship and any person who become the citizens of Poland, especially who was ex-Pakistani, will not retain any other citizenship. Learned Additional Attorney General also referred this aspect on the basis of Section 14 of Citizenship Act, 1951, which is as under:?

14. Dual citizenship or nationality not permitted. - (1) Subject to the provisions of this section if any person is a citizen of Pakistan under the provisions of this Act, and is at the same time a citizen or national of any other country he shall, unless he makes a declaration according to the laws of that other country renouncing his status as citizen or national thereof, cease to be a citizen of Pakistan.

12. While referring the above provision of law, learned Additional Attorney General takes the stance that the respondent No.7/Saleem Muhammad has obtained the citizenship of Poland, which has not been denied by the respondent No.7 in the Court, even passport has been produced by the F.I.A Authorities to that effect, which left nothing in favour of respondent No.7, who is admittedly not a citizen of Pakistan at the moment as he ceases to be a citizen of Pakistan in terms of Section 14(1) of the Citizenship Act, 1951, in such scenario, he has been confronted with the present position of law, whereby he claims that he travelled to Pakistan on a visa, which further justified the legal position taken by learned Additional Attorney General, therefore, first question has been settled that respondent No.7/Saleem Muhammad as well as both the minors, who are holding their Passport No.EU 9060287 and Passport No. EU 9114568, both the mothers namely Iza Nowak and Joanna Rycharska are of citizens of Poland.

13. Now question arises as to whether this Court is in a position to settle the issue of interim custody of the minors, who are not Pakistani citizen, rather have been abducted by the real father, who is also Polish citizen and travelled to Pakistan, he hide the minors and concealed their whereabouts from their real mothers. This Court has to exercise its jurisdiction in terms of Article 199 of the Constitution of Pakistan read with Section 491, Cr.P.C. as well as Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, where every person has to be treated in accordance with law, which is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan. This aspect if taken into account with the mandate of Article 199 of the Constitution, it appears that respondent No.7 has violated his own commitment made to the real mother in Poland and deceive the mothers as well as minors and violated the agreed terms of permission, though he assured the mothers that the minors will be returned to Poland after the end of visit.

14. In such situation, this Court has to see what is the habitual place of residence of the minors under the concept of Hague Convention on the Civil Aspects of International Child Abduction, 1980, though Pakistan acceded to the Hague Convention on 22.12.2016 with certain reservations in relation to Articles 24 and

26. However, Article 3 clarify the position, which is as under:-- The removal or the retention of a child is to be considered wrongful where - a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

15. As such it was never denied by both the parties before this Court that minors are permanent and habitual resident of Poland. Both the minors were studying in Poland before their removal in Kindergarten as well as in Class 3 in custody of both the mothers. It is also admitted position before this Court by both the parties that respondent No.7/Saleem Muhammad used to visit the minors only for weekend by taking the interim custody from both the mothers and return them the same on Sunday as both the minors were studying in regular school, this aspect was further confirmed in the interview with the minors in Chambers by this Court, who confirmed that they were permanent resident of Poland and studying in their respective classes and supervised by their mothers and only allowed to visit the father on weekend, such aspect also goes against the respondent No.7/Saleem Muhammad.

16. Now adverting towards the legal position in Pakistan, this Court also ensures the protection to the child, especially, who has been removed from his habitual place of residence in violation of any legal order or against the wishes of the real mothers, though in one case the judgment of Court of competent jurisdiction of District Sierpc is in field, which is duly recognized under the law in terms of Section 14 of Civil Procedure Code, 1908, where this Court shall presume, upon the production of any document purporting to be a certified copy of a foreign judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record, which is not the case.

17. I have also been guided by the principles laid down in case law reported as 2019 MLD 1722 [Sindh] (Jahan Ara v. Province of Sindh through Secretary, Home Department, Karachi and others), whereby it was held that "Mere pendency of a guardianship application or availability of such jurisdiction would not ipso facto debar jurisdiction of habeas corpus yet it would not control the absolute and exclusive jurisdiction of Guardian Court in such like matter but could only be availed under certain criterion/situation". Similarly in PLD 2011 Lahore 423 (Roshni Desai v. Jahanzeb Niazi and others) it was held that under Islamic Law, father of an illegitimate child has no legal tie with the child even though he is the biological father and the blood tie between the two is undisputed

Mother of an illegitimate child is not only entitled to the custody of the child but is also regarded as the guardian of the child to the total exclusion of the father. Similarly, in case law reported as 2019 SCMR 116 (Ms. Shazia Akbar Ghalzai v. Khurram Mehboob and others), whereby it was held that Material and overwhelming factors pointed towards welfare of the minor being best served and protected, if his custody was handed over to the mother. In case law reported as PLD 2022 Islamabad 120 (Abdul Farooq and another v. Mst. Maryam Farooq and others), it was held that Tenders Years, doctrine of guided exercise of discretion by Courts in custody matters, where Courts assumed that healthy development occurred when young children were raised by their mothers. Contemporary psychological and sociologically research questioned assumption that mother was necessarily the best parent for raising a child in all circumstances. In case law reported as PLD 2010 Lahore 48 (PEGGY Collin v. Muhanimad Ishfaque Malik and 6 others) it was held that With such credentials and antecedents of respondent mere professing of Muslim faith by him and his mere incidence of birth in Pakistan might not suffice all by themselves to conclude that welfare of the minor would lie in living with him rather than in living with a Christian mother of French origin whose credentials were blotless, whose antecedents were clean, whose proven love and care for the child had dragged her in foreign lands facing untold trials and tribulations and whose courage, fortitude and character might be better suited for imbibing good moral, social and human values in the minor's personality. In case law reported as 2020 YLR 1533 [Lahore] (Abid Hussain v. Rukhsana Munir and others), it was held that Matter of custody had already been decided by foreign courts and the minors were foreign nationals

Respondent had secretly, without consent and knowledge of the petitioner brought the minors to Pakistan-Petition was accepted and the custody of minors was handed over to the petitioner. In case law reported as 2018 SCMR 427 (Mirjam Aberras Lehdeaho v. SHO, Police Station Chung, Lahore and others), it was held that 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.

18. High Court under Section 491, Cr.P.C. is empowered to issue any direction within its territorial jurisdiction to recover any minor, who has illegally been removed from the custody of mother and may exercise its parental jurisdiction by considering the welfare of the minors as well as to ensure that no harm or damage is caused to them physically or emotionally by reason of their removal from habitual place of residence like in this case, hence this Court comes to conclusion that the best interest and welfare of minors lies with the mothers.

19. It is settled law that no one is allowed to abduct the minors, even though he is a father, like in this case. Respondent No.7/Saleem Muhammad has cheated the real mothers and deprived the minors from love and affection of their real mother, who are holding lawful custody in the Poland. The record clearly establishes that minors were illegally removed from foreign jurisdiction, they shall be returned to their habitual place of residence and parties are directed to approach the Guardian Court in Poland, who shall decide the matter in accordance with law.

20. While considering the above referred principles, it is admitted position that both the mothers namely Joanna Rycharska and Iza Nowak, their minors namely Ahmed Muhammad, Passport No.EU 9060287 and Saadia Muhammad, Passport No. EU 9114568 as well as respondent No.7 are citizens of Poland, even the District Court of Sierpc has passed the order in favour of the mother and terminated the rights of Respondent No.7/Saleem Muhammad to the extent of Sadia Muhammad, all these aspects go against the Respondent No.7/Saleem Muhammad, who has admittedly violated the law of Poland as well as of this country.

21. This Court has interviewed the minors, who duly acknowledged their schooling in Poland and admitted before this Court that they were living with their mothers and only visiting the father on weekend in Poland, therefore, this Court comes to an irresistible conclusion that Respondent No.7/Saleem Muhammad has abducted the minors in breach of the legal obligation and commitment under the law of Poland as well as violated the right to life envisaged in Article 9 of the Constitution of Islamic Republic of Pakistan, 1973. The case in hand is exceptional and extraordinary, where minors have not been returned to Poland by using religion as a tool by father, which is not permissible ground in any jurisdiction to be considered, as the primary question relates to welfare of the minors.

22. In these situations, the Pakistani Courts have duly regarded the foreign judgments and discourage such parents, who abduct the minors from foreign jurisdiction and came to Pakistan for their ill-motives.

23. For what has been discussed above, instant writ petition is ALLOWED, both the minors namely Ahmed Muhammad, date of birth 19.06.2015, Passport No.EU 9060287 and Saadia Muhammad, dated of birth on 07.05.2012, Passport No. EU 9114568 are hereby handed over to the real mothers namely Iza Nowak and Joanna Rycharska in presence of Mr. Rafal Bartochowski, Consul/Head of Consular Section, Embassy of Poland in Pakistan.

24. This Court appreciates the efforts made by the FIA Authorities, NADRA officials, Officers of Ministry of Interior, Intelligence Bureau as well as Crisis Centre, Islamabad, who put their real efforts for recovery of the minors and provided them due care in Pakistan. The FIA Authorities are also directed to hand over the passport of minors bearing No.EU 9060287 and No. EU 9114568 to both the mothers. Secretary, Ministry of Interior as well as FIA authorities are directed to remove the names of both the minors from Exit Control List (ECL), who are allowed to travel to Poland with their real mothers. 25 Before parting with this judgment, this Court has also been assured by the Embassy of Poland as well as by their real mothers that they have no objection on the visitation of minors by the father namely Saleem Muhammad/Respondent No.7 in Poland.

26. Copy of this judgment be forwarded to the Director General, Emigration and Passport, FIA, Secretary, Ministry of Interior and to the Embassy of Poland in Pakistan for reference purposes. MH/19/Isl. Petition allowed.