For Pir Saqab Ali Chishti Advocate
1997 C L
C 657
[Lahore]
Before
Ausaf Ali Khan, J
ABDUL
GHAFFAR‑‑‑Appellant
versus
PUBLIC IN
GENERAL and others‑‑‑Respondents
First Appeal
From Order No. 26 of 1993/BWP, decided on 17th October, 1993.
Lunacy Act (IV of 1912)‑‑‑
‑‑‑‑S.62‑‑‑Allegation
of lunacy‑‑‑Duty of Court‑‑‑Standard of
mental capacity of the alleged lunatic‑‑‑Test‑‑‑Inquisition
for purpose of ascertaining whether alleged lunatic was of unsound mind and
incapable of managing himself and his affairs‑‑‑Essentials‑‑‑Court
was required to form its own independent judgment on the mental state of such
person‑‑‑Court must satisfy itself by enquiry and personal
interview with alleged lunatic that there was ground for inquisition‑‑‑
Question of mental capacity was one for Court to decide and not for the Doctor‑‑‑Court
could not be relieved by medical testimony of its obligation to form its
independent opinion‑‑‑Exigency to refer such matter to
specialist could arise only after examining lunatic and dependent upon
observation of Court that alleged lunatic appeared to be lunatic and incapable
of looking after his person and property‑‑‑Court's order
which had been passed without examining alleged lunatic and same was based on
doctor's opinion that said person was not lunatic was not warranted‑‑‑‑Being
eccentric slightly weak in head are subnormal intellect would not amount to
unsoundness of mind‑‑‑Court was directed to examine alleged
lunatic and refer the matter to specialist of Mental Asylum only if it felt
necessity to do so‑‑‑Where, however, alleged lunatic
qualified minimum standard of mental health and conception of day to day
matters, then Court need not solicit opinion of specialist.
Mst. Jamila
Begum v. Awam‑un‑Nass and 15 others PLD 1978 Lah 1376 ref
Muhammad
Javed Iqbal Qureshi for Appellant.
Mian Ahmad
Naveed Arshad for Respondents. Date of hearing: 17th October, 1993.
JUDGMENT
Muhammad
Ashraf, alleged lunatic is living with his brother and nephews, herein the
respondents Nos.2 to 6. Abdul Ghaffar, herein the petitioner, also brother of
said Muhammad Ashraf filed application under section 62/f1 of the Lunacy Act
(IV of 1912) seeking it to be declared by the District Court, Bahawalnagar that
Muhammad Ashraf was a lunatic, incapable of looking after his person and
property.
2. The respondents
opposed the petition and in their joint averment asserted Muhammad Ashraf to be
perfectly healthy and normal man capable of managing his affairs.
3. After
securing presence of the respondents, the learned Additional District Judge
referred the matter to the Medical Superintendent, District Headquarter
Hospital, Bahawalnagar who vide his report, dated the 18th of August, 1993
found Muhammad Ashraf answering the questions satisfactorily, fully conscious,
well‑oriented in time, person and space with memory intact. The
petitioner, however, was not satisfied with the report as it had emanated from
officiating Medical Superintendent as the Medical Superintendent was on leave
on the date of examination. The petitioner, however, insisted that Muhammad Ashraf
should be examined in the Mental Asylum, Lahore by a specialist. This plea
earlier raised was not accepted by the learned trial Court and also by virtue
of the order, dated the 13th of July, 1993 which is now impugned in appeal.
4. Section
62 of the Lunacy Act relates to power of the District Courts to institute
inquisition as to person alleged to be lunatic by providing:‑‑
"Where
any person is possessed of property and is alleged to be a lunatic, the
District Court, within whose jurisdiction such person is residing may, upon
application, by order direct an inquisition for the purpose of ascertaining
whether such person is of unsound mind and incapable of managing himself and
his affairs."
5. It need
not be over‑emphasised that jurisdiction of the District Courts to take
further action for custody of person or protection of property is dependent
upon finding that a person is of unsound mind and incapable of managing himself
or his affairs. When an application is for directing an inquisition the first thing
which has to be done by the trial Court is to ascertain, either with notice to
the lunatic or without notice, if the case is one which calls for an order
directing an inquisition. It is in fact for the Court to form its own
independent judgment on the point. The learned trial Court has to satisfy
itself by enquiry and personal interview with the alleged lunatic that there is
ground for inquisition. This Court had laid down guidelines in Mst. Jamila
Begum v. Awam‑un‑Nass and 15 others (PLD 1978 Lahore 1376) that the
Court should summon the alleged lunatic and put up homely questions keeping in
view the feable‑mindedness and weak intellect of the person alleged to be
a lunatic. He could be examined on dietary habits as well as on other points,
how was he treated by his relatives with whom he was living, how much land he
had, who cultivated it and such like questions.
6. In the
instant case learned trial Court had not examined the alleged lunatic. In fact
question of mental capacity is one for Court to decide and not for Doctor and
the Court cannot be relieved by medical testimony of its obligation to form an
independent opinion. It need not be gainsaid that being eccentric, slightly
weak in head, or subnormal in intellect does not amount to unsoundness of mind.
Of course after examining the alleged lunatic, the Court could refer to matter
to the Doctor. Here the officiating Medical Superintendent had examined the
alleged lunatic and found him to be normal man. Opinion of the Doctor is
relevant and worthy of consideration in view of provisions of section 18 read
with section 3 (7) of the Lunacy Act. No doubt the opinion of the Medical
Superintendent, Government Mental Hospital, Lahore, being specialist on the
subject could furnish better evidence but the learned District Court did not
have resort to this course because it was too inconvenient for the concerned,
besides being expensive and time consuming. The exigency to refer the matter to
the specialist could arise in this case only after examining the lunatic and
dependant upon observation of the Court that the alleged lunatic appeared to be
lunatic and incapable of looking after his person and property.
7. In view
of what stated above, I partly accept the appeal and modify the impugned order
with the direction to the learned Additional District Judge to examine the
alleged lunatic and refer the matter to the specialist of Mental Asylum only if
he feels the necessity to do so. If the lunatic qualified the minimum standard
of mental health and conception of day to day matters, then the Court need not
solicit opinion of the specialist as the opinion of the local Doctor is already
there on the subject and he can very well further proceed with the case. The
parties are left to bear their own costs.
Appeal
partly allowed
good service
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