2014 PLP 519 (MLD)

FAROOQ ALI CHANNA, J.

The petitioner Mst. Shamshad Bibi has filed this Constitution Petition for recovery of her children namely Tehmina, Asad Nazeer and Ahad Nazeer allegedly, detained by Mst. Hina Noreen the respondent No.3. The petitioner has prayed as under:-- (a) Direct the respondents Nos.1 and 2 to conduct raid at the above mentioned address to recover the detenues from the wrongful confinement of Mst. Hina Noreen and her companions and make assurance for production of the detenues before this Hon'ble Court and also take strict legal action against them who have illegally put the detenues in their wrongful confinement amounting to abduction. (b) Direct the respondents Nos.1 and 2 to provide lawful protection to the applicant and detenues. (c) Any other equitable relief which this Hon'ble Court deems fit and proper in circumstances of the case.

2. Pursuant to notice, the respondent No.3 is present. Mr. Muhammad Aslam Bhutta, Advocate has filed Vakalatnama on her behalf. The S.H.O, Police Station Sohrab Goth also produced the alleged detenues.

3. Learned counsel for the petitioner has contended that the petitioner is real mother of the detenues, who were confined wrongfully by their step mother the respondent No.3. Her husband Nazeer Ahmed was murdered about two months back, as such; there is no one to look after her detained children.

4. Conversely, learned counsel for the respondent No.3 has contended that all the three children are residing in the house of respondent No.3 by birth and were being looked after by their deceased father, till his murder about two months back, they have not been confined wrongfully. So far as the custody of the minors is concerned, the same cannot be transferred except by the order of the Family Court under Guardians and Wards Act.

5. Learned A.P.G. at the very outset states that from the facts narrated by the children before this Court, no case of 'habeas corpus' is made out, therefore the constitution petition is liable to be dismissed, whereas the learned A.A.G. has supported the contentions of the petitioner.

6. Besides the submissions made by learned counsel for both the parties, all the three children namely Tehmina aged about 16 years, Asad Nazeer aged about 14 years and Ahad Nazeer aged about 10 years allegedly detained wrongfully by the respondent No.3 present in Court seems to be grown up and matured and stated that they are taking proper education and cared properly, they are residing with respondent No.3, their father deceased Nazeer Ahmed who was murdered about two months back was also residing with them. They also stated that their father in his life time had informed them that the petitioner Mst. Shamshad Bibi is their mother, but they never remained with her nor she made any attempt to meet them whenever they visited their village. They further stated that they do not want to go with the petitioner and intend to reside with their step mother Mst. Hina Noureen.

7. In view of the above facts and circumstances, no case of habeas carpus is made out, nor the transfer of custody of the detenues is warranted. However, the petitioner would be at liberty to seek appropriate remedy for the custody of minors provided under the law through the family court, which is the competent forum to take care of and determine the welfare of ward with either party. In the above terms, the instant constitution petition is disposed of. MWA/S-7/Sindh Order accordingly.