2013 PLP 661 (MLD)

CH. MUHAMMAD YOUNIS, J.

The instant regular first appeal has been preferred under section 46 of the Mental Health Ordinance, 2001, against the order dated 14-3-2007 passed by the learned District Judge, Muzaffargarh through which the learned District Judge accepted the petition of respondent No.1 for the appointment of guardian and manager of the property of her son Mehr Nawazish Ali.

2. Briefly stated the facts relevant for the disposal of the instant appeal are that Mst. Ghulam Jannat who happens to be the real mother of Mehr Nawazish Ali filed a petition under Mental Health Ordinance, 2001, for her appointment as guardian/manager of the person and property of her mentally disordered son Mehr Nawazish Ali.

3. The petition was vehemently resisted by the appellant. The appellant claimed to be the legally wedded wife of said Mehr Nawazish Ali. She is daughter of respondent No.2 Ghulam Shabbir, whereas respondents Nos. 3 to 6 are sons of Ghulam Shabbir and brothers of the appellant. Mehr Nawazish Ali owns more than 8 squares of land but he being mentally disordered person was unable to look after his interest and manage the property or operate the bank account properly. The respondent contended in the reply to the petition that said Mehr Nawazish Ali was suffering from Psychological and Mental problem and avoided to see and mix up with the people. He was shy and sometime he suffered from fits. According to appellant/Najma Parveen 6 squares of the land had been given to her as dower by the said mentally disordered person.

4. Out of the pleadings of the parties following issues were framed by the learned court of protection. ISSUES. (1) Whether Mehr Nawazish Ali is mentally dis-ordered? OPA (2) If issue No.1 is proved in affirmative, whether it is in the welfare and interest of Mehr Nawazish Ali that present petitioner be appointed as Guardian of his person and property? OPA (3) Relief.

5. The learned District Judge after recording the evidence of the parties and hearing the arguments accepted the petition parly and held the said Mehr Nawazish Ali as mentally disordered person of second category and though he was capable of taking care of himself but was not in a position to look after his property so the respondent No.1 was appointed as manager of his property.

6. Feeling aggrieved of the order/judgment of the learned District Judge the instant appeal has been preferred on the grounds that proper and legal issues were not framed; that the findings of the learned District Judge were erroneous on the issues and that the said Mehr Nawazish Ali was not mentally disordered person so the application of the respondent No.1 was liable to be dismissed. It was further contended that Mutation No.583 had been sanctioned in respect of the land given to the appellant in dower so she was owner of the said land but the learned District Judge did not consider and appreciate the evidence produced by the parties and the impugned order being result of mis-reading and non-reading of evidence is not sustainable in the eye of law.

7. The learned counsel for the respondent No.1 vehemently opposed the appeal and argued that no Regular First Appeal is maintainable. However, an appeal against the order could be filed by the appellant.

8. I have considered the arguments advanced from both the sides and perused the record.

9. The main emphasis of the learned counsel for the appellant was that the court of protection failed to get the allegedly mentally disordered person medically examined as was required by the provisions of Section 30 of the Mental Health Ordinance, 2001. Admittedly, the court examined the said Mehr Nawazish Ali and the respondent No.1 has produced the medical evidence to prove that he was mentally disordered person. The report of the doctor was also produced in evidence regarding mental health of the said person. Doctor Muhammad Arif Saeed appeared in the witness box as AW-2 and deposed that on 12-12-2002 Mehr Nawazish Ali was admitted in Nishter Hospital Multan where he was posted as Medical Superintendent and he was discharged from hospital on 24-12-2002. A Medical Board headed by him comprising Doctor Tariq Mehmood, Assistant Professor of Medicine and Doctor Khalid Iqbal, Assistant Professor of Psychiatry had examined the said Mehr Nawazish Ali and they unanimously compiled the report Exh.P1 signed by him and the above named members. The admissibility of the report was objected to by the learned counsel for the appellant. I am of the view that when signatory of the report and head of the Medical Board himself appeared in the witness box and was subjected to lengthy cross-examination no such objection could be raised. He was not an interested witness so report of the Medical Board was enough to prove the fact that Mehr Nawazish Ali was suffering from Psychotic illness and was insane. The report Exh.A12 was self explanatory. The learned counsel for the appellant has not been in a position to point out any mis-reading or non-reading of the evidence or any illegality or irregularity in the impugned order passed by the court of protection. The respondent No.1 was the real mother of Mehr Nawazish Ali and he was being looked after by her. The appellant was not recognized and acknowledged by the said Mehr Nawazish Ali as his wife. Even if it be so, the court of protection had to keep into consideration the welfare of mentally disordered person and the mother was the best person to take care of her son. She had absolutely no adverse interest against him. It has rightly been held by the learned District Judge that Mehr Nawazish Ali was mentally disordered person of second category and due to this reason he allowed the petition of respondent No.1 only to extent of property of her son. She was rightly appointed as manager of the property of the mental disordered person as no one else except the mother could take better care of the said Mehr Nawazish Ali.

10. As regards the evidence of RW-1 Ghulam Abbas, he is real brother of the appellant and is interested witness. The evidence of RW-2 Muhammad Aslam regarding the mental health of the said Mehr Nawazish Ali stands negated by the report of Medical Board Exh.P

1. I find no legal infirmity or illegality in the impugned order/judgment. As regards the non-maintainability of the R.F.A., the objection of the learned counsel for the respondent No.1 is of technical nature. Though regular first appeal is not provided but an appeal against order of court of protection is provided under section 46 of the Mental Health Ordinance, 2001. So, this appeal shall be deemed to have been filed against the impugned order.

11. In the light of the above discussion, the appeal is hereby dismissed being devoid of any substance. KMZ/N-78/L Appeal dismissed.