P L D 2006 Peshawar 116 (PLP)

HAMID FAROOQ DURRANI, J.

'This appeal under section 46 of the Mental Health Ordinance, 2001 (Ord. No.VIII of 2001) is filed against the order of learned District Judge, Haripur dated 1-12-2004 whereby the application of appellant for appointment of guardian of Tariq Javed was rejected.

2. The appellant Aurangzeb filed an application under the provisions of sections 32 and 33 of the Ordinance ibid before the learned District Judge, Haripur stating therein that his brother Tariq Javed was mentally disordered person suffering from "ceberal haemmorhage, right side hemiplegi". That the said person owned immovable property in the District Haripur and regarding some of the property he had also filed a revision petition in this Court which was still pending. It was also a ground of application that the said Tariq Javed was involved in matrimonial litigation by his ex wife. That he was not in a position to look-after his property, litigation and other related affairs as the said Tariq Javed was mentally ill and also physically paralyzed. Public at large was arrayed as respondent in the application, notice whereof was published in the daily newspaper on 29-3-2003 and vide order dated 6-5-2003 one Mst. Nighat Tariq was impleaded as one of the respondents. It is pertinent to note here that during the instant proceedings the said Mst. Nighat Tariq was put on notice vide order dated 20-5-2005. She appeared firstly before the learned additional Registrar of this Court on 30-5-2005 and secondly on 29-9-2005 but was not present before the Court today. It is informed by the learned counsel for the appellant that the marital relationship between the appellant and said Mst. Nighat Bibi now stands dissolved and she is no more the wife of the appellant.

3. During the proceedings before the learned district Judge, Haripur the matter of mental ailment of Tariq Javed was referred to Medical Superintendent D.H.Q. Hospital Haripur for constitution of medical board and submission of report thereafter. The opinion of the medical board was received and was made part of the record as Exh.CW1/1. Dr. Sidique-ur-Rehman M.S., D.H.Q. Hospital Haripur appeared before the learned Court in order to verify the contents of report by the medical board and also got his statement recorded. In cross-examination he, in unequivocal terms, admitted that the patient was unable to comprehend any type of questions nor could reply to them. He was also not capable of making opinion and was dependent on others for managing his affairs. It was added that the patient was mentally a disabled person. The opinion of medical board also transpired that the patient Tariq Javed had paralysis of right half of the body along with loss of speech and mental deterioration and further he was unable to give any opinion. The report, however, concluded that the patient was not a mentally disordered person in terms of section 2(m) of the Ordinance ibid.

4. The Mental Health Ordinance, 2001 was promulgated on 20-2-2001 with specific purpose of providing protection to person and property of special people. The starter to the preamble of the Ordinance reads "an Ordinance to consolidate and amend the law relating to the mentally disordered persons with respect to their care and treatment, the management of their property and other related matters". It would also be useful to reproduce here the definition of mental disorder as given in section 2(1)(m) of the Ordinance ibid which reads as under:-- "S.2(1)(m) "mental disorder" means mental illness, including mental impairment, severe personality disorder, severe mental impairment and any other disorder or disability of mind and "mentally disordered" shall be construed accordingly and as explained hereunder:-- (i) "mental impairment" means a state of arrested or incomplete development of mind (not amounting to severe mental impairment) which includes significant impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously responsible conduct on the part of the person concerned and "mentally impaired" shall be construed accordingly; (ii) "severe personality disorder" means a persistent disorder or disability of mind (whether or not including significant impairment of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the person concerned; (iii) "severe mental impairment" means a state of arrested or incomplete development of mind which includes severe impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned and "severely mentally impaired" shall be construed accordingly."

5. Apparently, the opinion of the medical board while seen in juxtaposition to the conclusion contained therein and the contents of cross-examination of Dr. Siddique-ur-Rehman M.S., D.H.Q. Hospital, Haripur, are self contradictory and cannot strictly be made basis for the conclusion arrived at by the learned District Judge enquiring into the matter.

6. In the wake of what has been stated above it is not unsafe to hold that it was for the learned District Judge to decide that the patient Tariq Javed was suffering from any disability of mind or otherwise, keeping in view the provisions of relevant law as well as the material on record.

7. As a consequence, the appeal is allowed. The case is remanded to the learned District Judge, Haripur with the direction to decide the matter with application of independent judicial mind keeping in view the provisions of relevant law. Needless to state that the learned Court while enquiring in to the matter is at liberty to take further evidence, if required, in the matter in order to reach a just and proper conclusion. The service of Mst. Nighat Tariq shall also be ensured before proceeding further in the matter at post-remand stage. Record of the case, if any, requisitioned by this Court shall be forthwith sent to the Court of learned District Judge Haripur. H.B.T./74/P???????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.