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 
 
2 
 
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 
 
3 
 
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 
 
4 
 
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 
 
5 
 
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 
 
6 
 
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 
 
7 
 
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 
 
8 
 
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 
 
9 
 
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 
ZR/*