2017 PLP 1229 (YLR)

JAWAD HASSAN, J.

Through the instant petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution") the Petitioner has sought a direction to the Respondents Nos.1 and 2 for placing the name of the Minor namely Mohammad Mustafa/Respondent No.3 on Exit Control List ("ECL") as the Respondent No.1 has dismissed Petitioner's application in this regard vide order dated 25.01.2017.

2. Learned counsel for the Petitioner submits that the Petitioner applied to learned Guardian Judge Lahore for the custody as well as protection of the minor under sections 25 and 12 of the Guardians and Wards Act, 1890 with prayer to include the name of minor on Exit Control List (ECL). It is further submitted that Guardian Judge-III, Lahore (the "Guardian Judge") on 23.01.2017 restrained the Respondent No.3 to remove the minor from territorial jurisdiction of this Court without prior permission. The counsel submits that Respondent No.3 left the house of the Petitioner situated at Hyderabad on the pretext of attending family marriage ceremony at Lahore who later on left the country along with the minor son. The counsel submits that Respondent No.3 has now returned to Pakistan for a short while as she has already applied for permanent residency in Dubai along with minor and it is apprehended that the Respondent No.3 may not remove the minor from Pakistan.

3. Vide order dated 27.01.2017 in C.M. No.1/2017 filed along with the main petition the name of the Respondent No.4 was ordered to be placed on ECL by this Court.

4. On the other hand learned counsel for the Respondents Nos.3 and 4 submitted C.M. No.379/2017 for removing the name of the Respondent No.4 from the ECL. Learned counsel for the Respondents Nos.3 and 4 submitted that the matter is already sub judice before the Guardian Court which has the parental jurisdiction in the matter in hand; that the Guardian Court vide order dated 23.01.2017 has already restrained the Respondent No.3 from removing the minor outside the territorial jurisdiction of the Court; that at the most an order for submission of surety can be passed and that too leaving the Guardian Court to exercise its jurisdiction in this regard having parental jurisdiction; that the instant petition is not competent before this court in view of alternate remedy, already availed by the petitioner. The learned counsel for the Respondents Nos.3 and 4 also stated that when the Respondent No.3 filed the case on 27.01.2017 for the guardianship of the Respondent No.4 (minor), the Guardian Judge also ordered that the minor will not be taken out of the jurisdiction of the Court without prior permission.

5. I have heard the arguments of both the sides and perused the record. The record reveals that the Petitioner himself admitted in paragraphs 16 and 17 of this petition that he has already filed petition under Section 25 of the Guardians and Wards Act, 1890 for the custody of the minor Respondent No.4 in which the Guardian Court has restrained the Respondent No.3 to remove the minor Respondent No.4 from the territorial jurisdiction of the Court without prior permission. It further reveals from the said order dated 23.01.2017 that the Respondent No.3 was also directed to produce the minor along with his passport before the Court on the next date. After the filing of this writ petition, on 27.01.2017, when the Petitioner filed an application to set aside the order dated 27.01.2017, the Guardian Judge on 30.01.2017 stayed the Guardianship Certificate. For the sake of brevity the order dated 27.01.2017 is reproduced below and is as follows: "Vide my separate detailed order of even dated in English, the petition under section 7 of Guardian and Wards Act 1890 filed by Petitioner/Khadija Amjad Wazir is hereby accepted and she is appointed as guardian of person of minor/Muhammad Mustafa Mohsin. Guardian certificate be issued after submission of surety bonds in the sum of Rs.5,00,000/- with one local surety in the like amount to the satisfaction of this Court. Minor will not be taken out of the jurisdiction of this Court without prior permission of this Court. However, this order will not affect the visitation right of father/Muhammad Mohsin (real father of minor)." The record also depicts that with the mutual consent of the parties before the Guardian Judge on 02.02.2017, a meeting of the Petitioner was arranged with the minor Respondent No.4 at 5 pm in presence of Bailiff appointed by the Guardian Court.

6. In view of the above situation, when the Petitioner has availed the remedy before the Guardian Court for redressal of his grievance which stayed guardianship certificate having the parental jurisdiction and has also issued specific direction to the Respondent No.3 and both the parties are appearing before the said Court, where the Petitioner has also filed on 02.02.2017 two (2) separate applications for settlement of meeting time with the minor and also for producing passport of the minor, the instant petition before this Court is not competent. The appearance of the parties with consent before the Guardian Court, due to which the Petitioner has met the Respondent No.4 and also obtained order dated 30.01.2017 for staying the guardianship of minor pursuant to the filing of this writ petition, prima facie shows that apparently there is no apprehension of removing the Respondent No.4 out of country or disobeying the order dated 23.01.2017 and 27.01.2017, therefore, the name of the Respondent No.4 is ordered to be removed from the ECL forthwith by the Respondents Nos.1 and

2. Furthermore, the Respondent No.3 shall furnish surety in the Guardian Court as per its satisfaction, and the parties are directed to plead their case before the Guardian Court which is fixed on 16.02.2017. As the Hon'ble Supreme Court of Pakistan in case titled Sardar Hussian and others v. Mst. Parveen Umer and others (PLD 2004 Supreme Court 357) held that the High Court has full power to do justice, but not to substitute its own decision for decision of inferior Courts. Hence, the Guardian Court, who seized of the matter, shall decide all pending applications of the parties and pass appropriate orders in accordance with law.

7. With the above observations the instant petition along with all the pending applications stands disposed of with the direction the Respondents Nos.1 and 2 to remove the name of the Respondent No.4 (minor) from the ECL forthwith. Apart from this, it is made clear that the Guardian Judge shall not be influenced from the observations made in this order while deciding the matters pending before him. MQ/M-34/L Petition dismissed.