P L D 1995 Peshawar 14 (PLP)

The learned counsel for the respondents at the very outset raised a preliminary objection as to the maintainability of the present appeal. He contended that after the amendment in section 47 of the Act, ibid, by Ordinance XI of 1980, an appeal would lie to the District Judge and not in the High Court. The amendment in section 47 of the Act to the extent relevant reads as follows:‑‑ "Provided that where the order from which an appeal is preferred was passed by an officer subordinate to a District Court, the appeal shall lie to the District Court." As against this the learned counsel for the appellant submitted that the jurisdiction of the District Court is still ousted as the amendment relied upon by the learned counsel for the respondents has not been extended to the Provincially Administered Tribal Areas in terms of Article 247(3) of the Constitution. For the proper appreciation of the issue sub‑Article (3) of Article 247 of the Constitution is reproduced as under:‑‑ "247(3). No act of Majfs‑e‑Shoora (Parliament) shall apply to any Federally Administered Tribal Area or to any part thereof, unless the President so directs, and no act of Majlis‑e‑Shoora (Parliament) or a Provincial Assembly shall apply to a Provincially Administered Tribal Area, or to a part thereof, unless the Governor of the Province in which the Tribal Area is situate, with the approval of the President, so directs; and in giving such a direction with respect to any law, the President or, as the case may be, the Governor, may direct that the law shall, in its application to a Tribal Area, or to a specified part thereof, have effect subject to such exceptions and modifications as may be specified in the direction."

4. A plain reading of the above Article has made it clear that any law or act of Parliament has to be extended to PATA by virtue of President's or Governor's order. Thus it has been established that without an independent Notification by the Governor for the application and extension of amendment made in the manner required by Article 247(3) of the Constitution, the jurisdiction of the District Court is still not restored, therefore, the objection of the learned counsel for the respondents being without any force must fail. .

5. As regards the merits of the appeal the learned counsel for the appellant assailed the impugned order on the ground that the Guardian Judge, under the Guardians and Wards Act, 1890, had no authority to appoint Naseeruddin, respondent No. 2, as guardian of person and property of lunatic person. He agitated that under section 17 of the Guardians and Wards Act, jurisdiction of the Guardian Judge could only be invoked when a question regarding the appointment of a minor person arises. To examine the correctness of the view taken by the learned counsel for the appellant, section 17 of the Guardians and Wards Act is reproduced below:‑‑ "

17. Matters to be considered by the Court in appointing guardian.‑ (1) In appointing or declaring the guardian of the minor, the Court shall, subject to the provisions of this section, be guided by what consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. (2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor of his property. (3) If the minor is old enough to form an intelligent preference, the Court may consider that performance. (4)

(5) The Court shall not appoint or declare any person to be guardian against his will:' The main purpose of this section seems to safeguard the interest and welfare of minor and his property by appointment of a guardian till he attains the age of majority which, according to Majority Act, 1875, is 21 years. Amir Hussain, respondent No.l is admittedly of more than 50 years of age and at present is residing with appellant who is his step-brother from the father side. Amir Hussain, respondent, is the. son of Mst. Sifat Bibi from her first husband, Nasim Lal, who was original owner of the house in which the said two brothers are residing. When her husband, Nasim Lai, died Mst. Sifat Bibi married Khuzra Khan, father of appellant Sadbar Khan. After the death of Mst. Sifat Bibi litigation started between two brothers. Appellant, Sadbar Khan, in a suit before the Senior Civil Judge, Chitral, sought declaration to the effect that the house was gifted to him by his mother, Mst. Sifat Bibi, on condition that he would look after her and her lunatic son till death. The learned Senior Civil Judge, Chitral, held the gift in favour of Mst. Sifat Bibi, by her first husband, Nasim Lal, valid whereas gift in favour of Sadbar Khan, appellant by his mother Mst. Sifat Bibi, being not proved, declared void. Consequent', both the sons, i.e. Sadbar Khan, appellant and Amir Hussain, respondent (lunatic) were declared to be the owners of the suit house in equal shares. The findings of the learned Senior Civil Judge were upheld up to this Court.

6. The question still remains as to under what law the interest and welfare of the lunatic person is to be protected and safeguarded. Reference in this respect may be made to section 71 of the Lunacy Act, 1912, which for the sake of convenience is reproduced as under: "S.71.‑‑(1) In all other cases the District Court shall appoint a manager of the estate of the lunatic and may appoint a guardian of his person: Provided that a District Court may, instead of appointing a manager of the estate of a lunatic, exercise any of the powers conferred on the High Court under sections 56 and 59. (2) Any person who has been appointed by the District Court or Collector to manage the estate of a lunatic shall, if so required, enter into a bond in such form and with such sureties as to the Court or the Collector, as the case may be, may sewn fit, engaging duly to account for what he may receive in respect of property of the lunatic." A bare reading of the above section of law makes it manifest that the District Court is empowered to appoint a manager and guardian to take care of person and estate of the lunatic except in certain cases where the District Court may direct the Collector to take such charge. Thus it has been established that for the appointment of a guardian of a lunatic person, the Court of District Judge is to be approached for initiating proceedings under the Lunacy Act, 1912. The order of the learned Guardian Judge, Chitral, is hereby declared to be without lawful authority. In view of the above, I accept this appeal and set aside the impugned order passed by the Guardian Judge. I make no order as to costs. AA./1632/P Appeal accepted.