1994SCMR2271 (PLP)

Muhammad Naim‑ur‑Rehman, Advocate instructed by Shabbir Ghaury, Advocate‑on‑Record for. Petitioner. Nemo for Respondents. Date of hearing: 24th August, 1994. MUHAMMAD MUNIR KHAN,'J‑‑‑This petition for leave to appeal is directed against the order of High Court of Sindh, Karachi dated 25‑5‑1994 whereby prayer made by the petitioner for proceeding in contempt against respondents Nos.2 to 4 was declined.

2. The relevant facts are that Mrs. Suhair Mamdouh Sudki Deais Dar (respondent No. l) is the wife of Nabil Dar (petitioner). A son namely, Afzal Nabil Dar aged about two years was born opt of .the wedlock. The relations between the husband and wife became strained. On 7‑4‑1994, mother/respondent No.1 filed an application under section 491, Cr.P.C. for the custody of child against the father/petitioner in the High Court of Sindh, Karachi. While delivering the interim custody of the child to the mother, the High Court passed the following order on 10‑4‑1994:‑‑ "

The interim custody of the minor Afzal Nabil Dar is handed over to the petitioner (respondent No.l herein) in Court who shall produce the minor before this Court on the next date or every subsequent date thereafter. In order to ensure that the petitioner would not remove the minor from the custody of this Court, her passport issued by the Hashemite Kingdom of Jordan has been taken from her in Court and shall remain deposited with the Nazir of this Court till further orders. At this stage Mr. Channa points out that the passport of the minor Afzal Nabil is secured by the police and it is accordingly directed that the said passport shall also be deposited by the S.H.O. of P.S. Market, Hyderabad with the Nazir of this Court immediately."

3. After getting the custody of the child, respondent No. l slipped out of Pakistan with the minor. On this the petitioner filed a Criminal Miscellaneous Application No.704 of 1994 under sections 3 and 4 of the Contempt of Courts Act, 1976 not only against the mother/respondent No. l but also against Bashir A. Mujahid and Rana M. Shamim, Advocates (respondents No.2 and 3) and Farooq Qaiser, Honorary Consul of Hashemite Kingdom of Jordan (respondent No. 4). The High Court vide impugned order dated 25‑5‑1994 issued notice to the mother/respondent No. l to show cause as to why she should not be prosecuted for an offence punishable under sections 3 and 4 of the Contempt of Courts Act, but refused to issue notice against respondents Nos.2 to

4. The High Court observed: "I do not agree with learned counsel for the applicant that respondents 2 and 3, who are members of legal profession can be tried under Contempt of Court Act, in respect of an advice tendered by them to the respondent No.

1. Respondent No.4 is a member of the Diplomatic Corps and the only allegation against him is, that his car was used by the respondent No.

1. For that purpose he cannot be held guilty under the Contempt of Court Act. Hearing on 6‑6‑1994."

4. Learned counsel for the petitioner relied on paragraphs 27 to 29 of the Affidavit of the Solicitor of respondent No. l filed in the proceedings before the English High Court of Justice, Family Division (a copy whereof is available at pages 149 to 170 of the Paper Book relevant portion being at pages 159 and 160 of the Paper Book) to contend that Bashir A. Mujahid and Rana M. Shamim, Advocates had aided and abetted respondent No. l to contravene the order of the High Court and as such have frustrated the process of law. As regards respondent No. 4, the learned counsel submitted that without the active abetment of respondent No. 4 it was not possible for respondent No. 1 to leave Pakistan alongwith the child/minor, therefore, he is also liable to proceedings in contempt. According to the learned counsel, he (respondent No.4) is not entitled to the privileges available to the fully accredited foreign diplomats. In the alternative, learned counsel requested that respondent No.4 be‑summoned to explain how respondent No. l was able to leave the country when her passport and the passport of the minor/child had been kept in the High Court, and the Police Station respectively.

5. We do not see sufficient ground for believing that respondents Nos.2 to 4 have committed contempt of Court. The relevancy and admissibility of the Affidavit filed by the Solicitor of respondent No. I in the English High Court is doubtful. Even otherwise, the names of respondents Nos.2 and 3 are not mentioned in paragraphs 27 to 29 of the Affidavit relied on by the counsel for the petitioner. They cannot and should not be proceeded against for the simple reasons that they were the counsel of respondent No.l who has allegedly violated the order of the High Court. As regards respondent No.4, be that as it may, the fact remains that no action can be taken against him on the surmises and conjectures that without his active abetment the respondent No. l could not have gone out of Pakistan with the child/minor. The High Court has given valid reasons for not issuing process against respondents Nos.2 to

4. We do not see any reason to disagree with the same.

6. Adverting to the alternative prayer made by the learned counsel for the petitioner, we feel that it is not possible for this Court to summon respondent No.4 for explaining how respondent No. l was able to leave the country with her child/minor in this Petition arising out of an application made under sections 3 and 4 of the Contempt of Court Act, 1976 where under a contemner can only be punished with imprisonment not exceeding six months.

7. No case is made out for interference. Leave to appeal is therefore, refused, A.A./N‑393/S Leave refused.