P L D 1978 Lahore 1365 (PLP)

Mst. Zainab Bibi v. Ghulam Nabi and another P L D 1964 B J 1 and Habib Ullah Mian v. Golam Rahman P L D 1960 Dacca 958 ref. M. Pervaiz Akhtar for Appellant. Hafiz Ghulam Muhammad A wan for Respondent. Date of hearing : 16th November 1977. By his order dated 4-10-1976 under appeal, the learned District Judge, Sargodha, has disposed of an application made under section 62 of the Lunacy Act (IV of 1912) holding that the respondent was a person not of an unsound mind. The learned District Judge, on an application made to him, summoned the respondent and invited a reply from him. On his denial of being a lunatic, the learned Judge, instead of directing an inquisition, resorted to putting to the respondent a few questions relating to the appellant's treatment with the respondent and observed that the respondent had well understood the questions and was capable of answering them correctly. He did not bother to record those questions and answers and forthwith declared that the respondent was of sound mind. Feeling aggrieved, the appellant has come up in appeal alleging that the case was disposed of in a summary way without adopting the proper procedure prescribed by law.

3. The learned counsel for the respondent controverted the plea and contended that the only requirement of the Court as contemplated by section 41 of the Act was to personally examine the lunatic and declare about his state of mind. I am afraid, the learned District Judge has made a great haste in disposing of the application after examining the respondent by questioning him in a fashion not known The perusal of the record shows that the questions put to the respondent and the answers made by him were not recorded and in the absence of such a material on record about the type of questions posed and answers made, it cannot be found out that they were sufficient to satisfy the Court to reach a conclusion that the respondent was of sound mind. It was the duty of the learned Judge to have satisfied himself that the respondent was capable of managing himself and his affairs and not simply that he was of sound mind or otherwise. Such a satisfaction, therefore, should not be arbitrary but based on sound judicial principles found on record after a thorough preliminary enquiry. Conclusion on mere persona summary observation, without adopting the procedure laid down in section 62, cannot be sustained. This view of mine finds support from Mst. Zainab Bibi v. Ghulam Nabi and another (P L D 1964 B 11) and Habib Ullah Miah v. Golam Rahman (P L D 1960 Dacca 958).

4. For the reasons aforementioned, the appeal is allowed, the impugned order is set aside and the case is remanded to the learned District Judge, Sargodha, to determine the dispute afresh in accordance with law. The parties are, however, left to bear their own costs. Appeal allowed.