1991 PLP r (PCRLJ)

Mian Abbas Ahmad for Appellant. M.R. Khalid for Respondents. Date of hearing: 27th June 1990. MUHAMMAD MUNIR KHAN, J: -- This Intra-Court. Appeal No. 39 of 1990 arises from the judgment of learned Single Judge in Chamber whereby he on 10-6-1990 dismissed the writ of habeas (Writ Petition No.1045 of 1990) filed by Mst. Fazlan Mai, appellant-petitioner, for the recovery of her minor children, namely, Chakir aged 5-1/2 years, Mst. Hasina Mai aged 3-1/2 years and Baqir aged 1-1/2 years from the alleged illegal/improper custody of their father Rubnawaz, respondent.

2. The appellant is the second wife of the respondent. A year ago the respondent herein contracted third marriage so the relations between the spouses became strained, The respondent turned her out of his house. He detained two children, namely, Chakir and Mst. Hasina Mai with him. She was, however, allowed to take Baqir with her. Subsequently; Baqir was also deceitfully removed by the respondent from the custody of his mother/appellant so she filed Writ Petition No. 1045-90 for the recovery of her minor children which was dismissed by the learned Single Judge on 10-6-1990 mainly on the ground that controversy between the parties required recording of evidence and investigation which was not possible in the writ jurisdiction. ,

3. Learned counsel for the appellant submitted that undisputedly the children are under the age of 7 years, the appellant being their mother has the right ok Hizanat of her children' and that there being no controversy with regard to the facts relevant for the adjudication of the writ petition, there was no need to record evidence or to hold any investigation. He further argued that the writ of habeas in the circumstance& being a speedy and efficacious remedy was quite competent and should have been decided on merits. Learned counsel for the respondents has opposed this appeal.

4. We have considered the matter carefully. We feel persuaded to agree with the learned counsel for the appellant. Undisputedly, three children/detenu are less than 7 years of age. Baqir is a suckling baby. The appellant is the real mother of the children. She has not contracted second marriage whereas the respondent has recently married third wife. We feel that the writ petition could have easily been adjudicated upon on. the admitted facts and there was hardly any need to record evidence or to hold investigation.

5. Pursuant to the above discussion, the appeal is accepted and the impugned order is set aside. Since the learned Single Judge has not considered and discussed the merits of the petition and has dismissed the same on a technical ground, so the case is remanded for fresh decision in accordance with law and may be placed before any Bench. N.H.Q./F-217/L Case remanded.