IN THE SUPREME COURT OF PAKISTAN
( Appellate Jurisdiction )
Present:
Justice Qazi Faez Isa, CJ
Justice Irfan Saadat Khan
Justice Naeem Akhtar Afghan
CIVIL PETITION NOs.1708-L/2022. 3435-L/2022, 2672-L/2023, 3152-
L/2023, 219-L/2024 AND 303-L/2024
(0n appeal against the orders dated 04.03.2022 in WP No.67705/2021, 31.08.2022 in
WP.46078/2022, 16.05.2023 in ICA.31988/2023, 23.05.2023 in WP No.27299/2023,
23.10.223 in WP.No.69300/2023 and 05.12.2023 in WP. No.52736/2023,
respectively, passed by the Lahore High Court, Lahore)
Khawaja Adnan Zafar (in all cases) … … Petitioner
Versus
Hina Bashir and others (in all cases) … … Respondents
For the petitioner : In person
For the respondent : Not represented.
Date of hearing : 27.03.2024
JUDGMENT
Naeem Akhtar Afghan, J. This common judgment disposes of CPLA
Nos.1708-L/2022. 3435-L/2022, 2672-L/2023, 3152-L/2023, 219-L/2024
and 303-L/2024.
2. After hearing the petitioner in person, we have perused the record
which reveals that out of the wedlock between petitioner and Mst. Hina
Bashir-respondent No.1 (respondent), daughter Romaisa Adnan (having
date of birth 17.07.2012), son Arham Adnan (having date of birth
14.08.2014) and daughter Rahima Adnan (having date of birth
10.10.2016), were born.
3. Due to strained relations between the parties, separation took place
on 10.04.2020. At that time the custody of three minors was with the
petitioner. On 14.04.2020 the respondent filed petition under section 491
of the Code of Criminal Procedure (Cr.P.C.) against the petitioner for
recovery of the minors. The said application was decided by the learned
CP.1708-L/2022 etc 2
Additional Sessions Judge, Lahore vide order dated 21.04.2020 in favour of
the respondent and custody of minors was handed over to the respondent.
4. Apart from challenging the above order by filing Writ Petition
No.19774/2020 before the Lahore High Court, the petitioner also filed a
Guardianship Petition under section 25 of the Guardian and Wards Act
1890 (Act of 1890) on 07.05.2020 before the Guardian Judge Lahore
(Guardian Judge) for permanent custody of minors wherein, on the basis of
statements on Oath of the petitioner and the respondent, it was agreed that
the custody of minors shall be given unconditionally to the petitioner for
wellbeing of the minors with agreement that the respondent shall have
reasonable access to the minors at the residence of the petitioner. The
custody of minors was returned to the petitioner by the respondent and the
petitioner withdrew his Guardianship Petition on 10.08.2020. Writ Petition
No.19774/2020 was also withdrawn by the petitioner from Lahore High
Court on 04.10.2021.
5. Due to differences between the parties, divorce was pronounced by
the petitioner on 12.06.2021. The petitioner again filed a Guardianship
Petition before the Guardian Judge for permanent custody of the minors.
The Guardianship Petition was accompanied by an application under
section 12 of the Act of 1890 for interim custody of the minors. Meanwhile,
the respondent again filed a petition under section 491 Cr.P.C. on
18.06.2021 for recovery of the minors. The said petition was accepted by
the learned Addl. Sessions Judge, Lahore vide order dated 22.06.2021 with
direction to the petitioner to handover custody of the minors to the
respondent. The respondent was also directed to produce the minors before
the Guardian Judge on 28.06.2021 where the Guardianship Petition of the
petitioner seeking permanent custody of the minors was pending.
6. The above order dated 22.06.2021, passed by the learned Addl.
Sessions Judge Lahore was challenged by the petitioner before the Lahore
High Court by filing Writ Petition No.67705/2021 which has been
dismissed vide order dated 04.03.2022, operating para whereof reads as
follows:
“However, in the present case, the minors are two girls and a boy between 05
years to 09 years, therefore, the guardian court will have ultimate powers to
pass a final order which regard to permanent custody of the minors in
CP.1708-L/2022 etc 3
accordance with law. It is appropriate to mention that the learned guardian
court shall ensure that the minors are allowed to meet the petitioner as per
law and the guardianship petition for permanent custody shall be decided
within a period of six months.”
Feeling aggrieved of the above order passed by the Lahore High Court
in Writ Petition No.67705/2021, the petitioner has filed CPLA No.1708-
L/2022.
7. On 26.05.2022 the petitioner submitted an application to the
Guardian Judge for visitation of minors during summer vacations and on
Eid-ul-Adha. With consent of parties, the Guardian Judge issued an
interim schedule on 01.06.2022, for interim custody of minors with the
petitioner in the 1st and 3rd week of the month during summer vacations
and for custody of minors with respondent in 2nd and last week of the
month of summer vacations. The petitioner was bound to furnish surety
bond in the sum of Rs.1,00,000/-. The petitioner took the custody of
minors according to the interim schedule on 01.06.2022 but neither
submitted the requisite surety bond nor returned the custody of minors to
the respondent on 08.06.2022 and instead, the petitioner challenged the
interim order dated 01.06.2022 of the Guardian Judge by filing appeal
before Addl. District Judge, Lahore.
8. Vide order dated 08.06.2022, the Appellate Court extended the
custody period of the minors with the petitioner till 30.06.2022 but
subsequently the appeal of the petitioner was dismissed on 22.07.2022
with special cost of Rs.25000/-.
9. On 06.07.2022 the Guardian Judge also re-called its earlier order
dated 01.06.2022 due to non-submission of the requisite surety bond by
the petitioner and ordered the police authorities to initiate proceedings
against the petitioner. The respondent, with bailiff of the Guardian Court
and area police, visited the house of the petitioner but the petitioner and
minors were not found.
10. In view of the above circumstances, the respondent filed Writ Petition
No.46078/2022 in the Lahore High Court for recovery and custody of the
minors. During pendency of Writ Petition No.46078/2022, the petitioner
failed to produce the minors before the Lahore High Court despite repeated
notices and ultimately on the direction of the Lahore High Court, the CCPO
CP.1708-L/2022 etc 4
Lahore with his team succeeded to recover the minors from the petitioner
and produced them before the Lahore High Court. The custody of minors
was handed over to the respondent by the Lahore High Court and Writ
Petition No.46078/2022 was disposed of vide order dated 31.08.2022 in the
following terms:
“It is noticed that application under section 12 of the Guardian and Wards Act 1890,
regarding grant of temporary custody of minors is still pending and fixed for
arguments before the learned trial Court on 03.09.2022, therefore, it is appropriate to
direct the parties to appear before the said Court for arguments on the said
application, which shall be decided in any case on the same day. It is further
observed that the learned trial Court vide order dated 01.06.2022 in Para No.6 made
some observations regarding the stance taken by respondent No.5 (applicant before
the learned trial Court), which are hereby set aside with the direction to decide the
application under section 12 of the Act (ibid), on merits, without being prejudiced by
the observation made in the said order. However, the observations of this Court
reflecting from today’s order are tentative in nature. Till then, the custody of minors
shall remain with the petitioner and if the learned trial Court fails to decide the
matter on the said date, she shall submit her explanation alongwith minors to this
Court on 03.09.2022.”
Feeling aggrieved of the above order dated 31.08.2022, passed by the
Lahore High Court in Writ Petition No.46078/2022, the petitioner has filed
CPLA No.3435-L/2022.
11. According to the petitioner during his meeting with the minors on
24.11.2022, son Arham Adnan informed that he has been physically
tortured by the respondent. The petitioner submitted an application to the
Guardian Judge for medico legal examination of his son Arham Adnan. The
application of the petitioner was taken up by the Guardian Judge on
10.02.2023. On the said date, the Guardian Judge issued notice of the
application to the respondent and fixed the matter for 18.02.2023. The
petitioner challenged the order dated 10.02.2023 of the Guardian Judge
before the Lahore High Court by filing Writ Petition No.10835/2023.
12. During pendency of Writ Petition No.10835/2023, counsel for the
respondent conceded for medico legal examination of minor Arham Adnan
and for recording statements of the minors with regard to their preference
but the petitioner informed the Lahore High Court that he had withdrawn
his application for medico legal examination of minor son Arham Adnan
from the Guardian Court due to lack of confidence in the presiding officer.
13. In view of the above, in the order dated 19.04.2023, the Lahore High
Court held that the Writ Petition to the extent of setting aside the order
dated 10.02.2023 has become infructuous but observed that in the interest
CP.1708-L/2022 etc 5
of justice and for welfare of the minors the petitioner may approach the
Guardian Court with fresh application. By that time the petitioner had
already submitted a fresh application before the Guardian Court which was
fixed for 06.05.2023. The Lahore High Court directed the parties to appear
before the Guardian Judge on 26.04.2023 with direction to the Guardian
Judge to proceed in accordance with law for recording statements of the
minors and for medico-legal examination of minor Arham Adnan if so
required after recording of the fresh statements. The respondent undertook
to produce the minors on the said date before the Guardian Judge.
It was clarified in the order dated 19.04.2023 by the Lahore High
Court that the Guardian Judge shall not be influenced by the observation
made by the Courts below in the earlier round of litigation or by any interim
or final order passed by the Lahore High Court in Writ Petition
No.10835/2023.
14. The following observations were also made by the Lahore High Court
in its order dated 19.04.2023 in Writ Petition No.10835/2023:
“It is imperative to observe that this case is classical example where parents after
their separation/divorce in order to satisfy their self-nurtured ego, make the minors a
shuttlecock, which act in general is required to be deprecated in our society.”
15. According to the petitioner the order dated 19.04.2023 passed by
Lahore High Court was not complied with in letter and spirit by the
Guardian Judge.
16. The petitioner challenged the order dated 19.04.2023 passed by
Single Bench of the Lahore High Court in Writ Petition No.10835/2023 by
filing Intra Court Appeal (ICA) No.31988/2023 which was dismissed vide
order dated 16.05.2023 holding the petitioner at liberty to raise his
grievance before the Guardian Judge who shall determine the factual
controversy and decide the same within a period of ninety days from the
date of receipt of certified copy of the order dated 16.05.2023.
Feeling aggrieved of the above two orders passed by the Single Bench
and Division Bench of the Lahore High Court, the petitioner has filed CPLA
No.2672-L/2023.
17. For deciding the pending application of the petitioner under section
12 of the Act of 1890 for interim custody of the minors, the Guardian Judge
CP.1708-L/2022 etc 6
observed the minors in camera and after hearing learned counsel for the
parties, the application of the petitioner under section 12 of the Act of 1890
was dismissed by the Guardian Judge vide order dated 03.09.2022 with the
following visitation schedule of the petitioner with the minors till final
decision of the Guardianship Petition of the petitioner:
“….the petitioner being real father of the minors is held entitled to have visitation with
his minors for 2-hours on the first and third Saturday of every calendar month from
11:00 AM to 01:00 PM before this Court subject to submission of surety bond valuing
10,00,000/-, with one local surety for the satisfaction of this court. The petitioner is
bound to pay the travelling expenses of the minors Rs.1000/- per head for their each
meeting to the respondent. Meeting of minors with the petitioner shall be subject to
payment of complete maintenance allowance if any fixed by the court. It is hereby
held that for implementation of above said schedule there shall be no need to move
any separate miscellaneous application as court shall issue Robkar for
implementation on verbal request of the party concerned, which shall be made well in
time and the same shall be incorporated in interim order.”
18. The above order was challenged by the petitioner by filing appeal
before Addl. District Judge Lahore, which was dismissed vide order dated
02.11.2022 against which the petitioner filed Writ Petition No.27229/2023
with the contention that the order dated 19.04.2023 passed by the Lahore
High Court in Writ Petition No.10835/2023 has not been complied with in
letter and spirit by the Guardian Judge causing prejudice to the petitioner.
19. During pendency of Writ Petition No. 27229/2023, vide order dated
17.05.2023, the Lahore High Court directed for production of the minors
before the Guardian Judge on 20.05.2023 for their thorough interview and
for recording their statements after affording opportunity of meeting of the
petitioner with the minors on the same day. It was further ordered that
record of Guardian Judge be summoned after recording statement of the
minors.
20. Subsequently Writ Petition No.27229/2023 was disposed of by the
Lahore high Court vide order dated 23.05.2023 in the following terms with
the observations that the petitioner has made the matter complicated by
filing multiple applications/petitions without allowing the Guardian Judge
to comprehensively re-hear and decide the matter with further observations
that the Guardian Judge has not complied with the directions of the Lahore
High Court recorded in its order dated 17.05.2023.
“….Therefore, this Court is inclined to dispose of the present petition with the
direction that parties shall appear before the learned trial Court on 03.06.2023 at
11:00 a.m. i.e., the date for which the matter is already fixed and the minors will be
free after taking their ongoing annual examinations. The learned trial Court shall
allow the petitioner to have an exclusive meeting with the minors without intervention
CP.1708-L/2022 etc 7
of any third person including respondent No.3/mother, for at least one hour. Once the
said meeting ends, on the same day, the minors shall be interviewed thoroughly and
their views shall be recorded in verbatim where after the learned trial court is
expected to conclusively decide the matter in accordance with law, after extending an
opportunity of hearing to the parties and/or their learned counsel, preferably within a
period of one week.”
21. Feeling aggrieved of the above order passed by the Lahore High Court
in Writ Petition No.27229/2023, the petitioner has filed CPLA No.3152-
L/2023.
22. The petitioner submitted an application before the Guardian Judge
for conducting the interviews of the minors in camera before the parties or
their counsel due to apprehension that earlier the actual statements of the
minors were not made part of the record. The said application of the
petitioner was dismissed by the Guardian Judge vide order dated
19.07.2023 with the observation that in its order dated 23.05.2023 passed
in Writ Petition No.27229/2023 Lahore High Court had directed that the
minors should be interviewed thoroughly and their views shall be recorded
in verbatim with expectation of conclusive decision of matter by the
Guardian Judge after hearing the parties.
While dismissing the application of the petitioner for interview of the
minors through video camera, the Guardian Judge observed that the
minors are regularly appearing before the Court due to which there is no
need to interview the minors through video camera.
23. The above order passed by Guardian Judge was challenged by the
petitioner before the Lahore High Court by filing Writ Petition
No.52736/2023 which has been dismissed with cost of Rs.25,000/- vide
order dated 05.12.2023 against which the petitioner has filed CPLA No.303-
L/2023.
24. On 18.09.2023 the petitioner submitted an application to the
Guardian Judge to review the material to help with proper risk assessment
and conduct proper interviews of the minors considering the delay of about
two months and reports about the attempt of respondent to coerce and
dissuade the minors from reporting the truth to affect the quality of inquiry
and investigation.
25. According to the petitioner, the Guardian Judge was in haste to
schedule the interview of the minors while dis-regarding the above
CP.1708-L/2022 etc 8
application of the petitioner due to which the petitioner filed Writ Petition
No.69330/2023 before the Lahore High Court soliciting directions to the
Guardian Judge to decide the application of the petitioner regarding risk
assessment material ahead of the interview of the minors and for chance
custody of the minors for their safety and security based on existing
material, inter alia, statements of the minors dated 22.06.2022 before the
Magistrate (in a Criminal Complaint lodged by the petitioner against
respondent) or provide equitable access to the minors at the petitioner’s
home till factual controversy is addressed.
26. Writ Petition No.69300/2023 was dismissed by the Lahore High
Court vide order dated 23.10.2023 against which the petitioner has filed
CPLA No.219-L/2024.
27. It is observed that the application of the petitioner under section 25
of the Act of 1890 for permanent custody of minors is still pending decision
before the Guardian Judge. The orders of the Courts below assailed by the
petitioner in the instant petitions are interim in nature. According to the
established practice, settled principles of law and policy of this Court,
ordinarily interim orders passed by the high Court are not interfered under
Article 185(3) of the Constitution of the Islamic Republic of Pakistan 1973
and such intervention is warranted only in exceptional circumstances
involving flagrant violation of law, wrongful exercise of jurisdiction or a
manifest grave injustice. Reference in this regard is made to the cases of
“Multan Development Authority v. Muhammad Ramzan”1, “Salah-ud-din v.
Zia Farhat”2, “Dossani Travels Pvt. Ltd v. Travels Shop (Pvt.) Ltd.”3,
“Federation of Pakistan v. Shafiq ul Hassan”4, “Abdul Baqi v. Khan
Muhammad”5, “Province of Sindh v. Sartaj Hyder”6 and “Attiq ur Rehman v.
Tahir Mehmood”7.
28. In view of the above, all these petitions arising out of interim orders
passed by the Courts below are held not maintainable. Moreover, the
impugned interim orders passed by the Courts below are in accordance
with law and have not caused any injustice to the petitioner or prejudice to
1
PLD 1989 SC 629
2
1996 SCMR 1528
3
PLD 2014 SC 1
4
2020 SCMR 2119
5
PLD 2022 SC 546
6
2023 SCMR 459
7
2023 SCMR 501
CP.1708-L/2022 etc 9
the application of the petitioner for permanent custody of minors which is
pending decision before the Guardian Judge.
For the above reasons leave to appeal is refused and consequently all
the petitions are dismissed. However, the Guardian Judge should decide
the pending application of the petitioner for permanent custody of the
minors at the earliest in accordance with law. Copy of this order be sent to
the respondents.
Chief Justice
Judge
Judge
Islamabad:
27.03.2024
(M. Saeed)
NOT APPROVED FOR REPORTING.
Announced in open Court on 16th April, 2024 at Islamabad.
Judge
