1988 PLP 579 (MLD)

This is an appeal against an order made by the IIIrd Additional District Judge, Karachi East, dated the 4th October, 1987. The facts leading to the riling of the above appeal are that the respondent No. 1 made a petition under section 62, Lunacy Act, praying the Court to make an inquisition about the lunacy of his mother Mst. Amtul Qadeer and to adjudge her as a lunatic. The further prayers were that in case she is adjudged a lunatic, a guardian of her person and properties may be appointed. The learned Additional District Judge after following a certain procedure came to the conclusion that this Mst. Amtul Qadeer was suffering from the alleged disease (chronic mental illness of schizophrenia). As a result of this finding, she appointed Abdul Rashid, the son, who was petitioner in the Court below the respondent No. 1 in this appeal, as the guardian of the person and the manager of properties of the said lunatic. Mr. Syed Hasan Asghar Rizvi, the learned counsel for the appellants raises a question regarding the procedure adopted by the Court below. It arises in this way that the petitioners are sons and daughters of the lunatic. Notices were issued to the petitioners and the proforma respondent Abdul Basit. The petitioners stated in their affidavits that their mother Mst. Amtul Qadeer is of normal condition and was/is not bed‑ridden but she is an old lady having all senses. According to them the respondent No. 1 in collusion with proforma respondent Abdul Basit obtained false certificate with the mala fide intention and for an ulterior motive. It seems that the Court below granted applications whereby petitioners Nos. 1 and 4 were directed to get Mst. Amtul Qadeer admitted in hospital for the purpose of examination. It seems that Mst. Amtul Qadeer was not admitted in J.P.M.C. but once she was taken to hospital but she was brought back against medical advice. The petitioners did not produce any medical certificate in rebuttal. The Additional District Judge was of the opinion that Mst. Amtul Qadeer is not capable to manage her properties as she was not admitted in hospital despite repeated directions of this Court. I am of the opinion that where an application is made for directing an inquisition for the purpose of ascertaining whether a person is of unsound mind and incapable of managing his/her own affairs, the first thing which has to be done is that a notice shall be given to the alleged lunatic of the time and place at which it is proposed to hold inquisition. In my opinion an order directing an inquisition into a man's or woman's state of mind is a very serious thing, and such an order is intended by the State to be a judicial determination carefully made upon adequate materials. If the Judge considers that it calls for an order directing an inquisition, then it is his/her obvious duty to record an order directing an inquisition. When once that is done, then the application has served its primary purpose. The Judge should then, take certain steps with regard to notice and such notice should be given as provided by section 64 of the Act. Thereafter, he/she should hold the inquisition either by himself/herself or with the aid of assessors. (See section 65 of the Lunacy Act). What I have therefore to see is whether the learned Additional District Judge in this case has directed her judicial mind to the proper procedure that should be followed in matters of this kind. Mr. Rizvi submits that before the learned Additional District Judge directed the petitioners 1 and 4 to admit the lunatic m J.P.M.C., she ought to have satisfied by taking evidence prima facie or by other papers placed before her that there is a case‑ for her to enquire. In the present case my information is that no notice to the lunatic was I served. Accordingly in my judgment, the correct form of order is that; I think an order must be made to the effect that all the proceedings of the Additional District Judge from the moment this application was received be set aside and the Court be directed to take up that application from the very beginning and to deal with it according to law. The parties are directed through their counsel to appear before the learned Judge on 28‑5‑1988. The above appeal is disposed of in the above terms with no order as to costs. AA/A‑379/K Order accordingly.