MALIK MUHAMMAD QAYYUM, J.- On 16.1.1989, Muhammad Amin Khan appellant herein filed a petition for inquisition under section 62 of the Lunacy Act, 1912 alleging that Abdul Ghani son of Muhammad Akram Khan was of unsound mind and incapable of managing himself, his affairs and his property.
The petition was contested by respondents Nos.2 to 4. On an application filed by Mst. Farida Khanum, respondent No.5, she was impleaded as a respondent. The learned Additional District Judge after framing the following issues, recorded the evidence of the parties and dismissed the petition on 6.7.1989.
1. Whether Abdul Ghani is man of unsound mind and is unable to manage his property? If so, who can serve as a Manager for the property of Abdul Ghani? OPP.
2. Whether the suit is not maintainable in view of preliminary objection Nos.1,2&4? OPD
3. Whether the suit is bad for non-joinder of necessary parties? OPD
4. Relief.
It was held by the learned Addl. District Judge, that the appellant had failed to produce any medical evidence to show that Abdul Ghani indeed was a person ol unsound mind or an idiot.
According to the learned Addl. District Judge mere oral evidence produced by the appellant was insufficient to prove this fact. This order of the Addl. District Judge has been assailed by the appellant before this Com l bv filing the present appeal under section 83 of the Lunacy Act, 1912.
2. Mr. Amir Alam Khan, learned counsel for the appellant has relied upon the decision of this Court in Mst Jamila Begum vs. Awan un Nass and 15 others (PLD 1978 Lah. 1376 to contend that the Additional District Judge has erred in law in dismissing the application on the ground of insufficient evidence and in suchlike matters, he should have examined Abdul Ghani to find out as to whether lie indeed was a lunatic or to have directed his medical examination. The learned counsel has also relied upon a judgment of Dacca High Court in Munshi Abdul Ghani and another vs. Protiva Rani Devi and others (P.L.D. 1952 Dacca 450). Mr. Wahced A. Saleem, Advocate and Syed Hamid Ali Shah, Advocate for respondents. Nos.2 to 5 contended that no exception off can be taken to the order passed by the Addl. District Judge. They relied upon Habib ullah Mian vs. Golam Rehman's (PLD ION) Dacca 958) and Mst. Zainab Bibi vs. Ghulam Nabi and Another ( PLD 1964 (W.P) Baghdad ul Jadid).
3. From a perusal of the judgment of the Addl. District Judge, it is clear that he has misconstrued the scope of proceedings under section 62 of the Lunacy Act, 1912. This section itself indicates that the proceedings to be held by the Court are not adversav but inquisitorial. According to Ballentine's Law Dictionary, 3rd Edition at page 634. "inquisitorial power" means, "Investigating authority, the power of an administrative agency to inspect accounts, records etc, or to require the disclosure of information through the testimony of witnesses or the production of documents. Similarly in' Black's Law Dictionary, 5th Edition, "inquisition" has been defined as:- "An inquiry or inquest, particularly, an investigation of certain facts made by a sheriff, together with a jury impaneled by him for the purpose. The instrument of writing on which their decision is made is also called an inquisition, In its broadest sense, "inquisition", includes any judicial inquiry".
It is thus obvious that proceedings to be held by the District Court under the Lunacy Act are in the nature of inquiry where the Court is required to find out as to whether a particular person is a lunatic within the meaning of Lunacy Act, 1912. While exercising this power the object for which the Lunacy Act was promulgated, namely, the protection of the lunatics, cannot be lost sight of. In Mst.
Jamila Begum's case supra, it was observed by this court as under:- ". . .The learned District Judge has treated this case as that of a dispute between party and party who are thereby thrown into the vortex of litigation, the intention of one party being merely to hit the other, or to avenge itself.
This is not the object of the Lunacy Act. This Act confers upon the Courts the powers of pater patriae as a father over his children. The Act deals with the care of lanatics and idiots in the same manner as the Guardians and Wards Act provides for the inherent prerogative of the Courts acting as a prudent natural parent of the infant..."
4. The object of inquisition is to find out whether a person is, in fact, o. Unsound mind or idiot within the meaning of the Act and if it be so found, the Court is required to make arrangements for the custody of the person and the property of the lunatic. The Court in such a case acts in locus parentis and its effort is not to find out as It) which of the party before it, is correct, but what is of paramount importance while exercising this jurisdiction is to keep the welfare of the lunatic in mind. In the present case, unfortunately, no effort was made by the Addl. District Judge to find out for himself whether Abdul Ghani was lunatic but he proceeded to dismiss the petition on the ground of insufficiency of evidence, particularly the failure to produce medical evidence. This approach of the Addl. District Judge is clearly erroneous. If he was of the view that the matter could not be decided without medical evidence and indeed it should not have been decided, he should have himself directed the medical examination of Abdul Ghani. It appears that towards the end of the proceedings, an application was filed by the appellant praying that Abdul Ghani be got medically examined and also that he be summoned and examined by the Court itself. Both the prayers were unfortunately refused by the Addl. District Judge on 22.6.1989 on the ground that the application had been filed at a belated stage. This refusal, to say the least, was wholly unjustified.
In law, the Additional District Judge was under an obligation to have examined the alleged lunatic by putting questions to him with a view to arrive at a just conclusion regarding his mental condition. In Mst Jamila Begum vs. Awam un Nass and 15 others (P.L.D. 1978 Lah. 1376) Aftab Hussain, J. (as he then was) observed that:- ". . .The learned District Judge should have put homely questions keeping in view the feeblemindness and weak intellect of Abdus Salam and should have examined him in Court. He could also have been examined on his dietary habits as well as on other points, how he was treated by others, how much land he had, who cultivated it, whether he could plough his land, whether he had any complainant to make of his sister, brother-in-law and others, whether he had a were or had a child. In fact a number of questions which can be put to a child of a few years of age could be put to him. The object of the Act is not thus fulfilled by this perfunctory examination..."
Though it is correct that if held in the cases relied upon by the learned counsel for the respondents namely, Habib Ullah Mian vs. Golam Rehman's (P.L.D. 1960 Dacca 958), Mst. Zainab Bibi vs. Ghulam Nabi and another (P.L.D.1964 (W.P.) Baghdad ul Jadid 1) and also in Jan Muhammad vs. Nizam Din and others (AIR 1926 Lah. 586), the Court cannot base its decision only on its personal observations, but as held in Mst. Jamila Begum's case supra, the examination of the alleged lunatic by the Court could certainly have been helpful in resolution of the controversy and its just decision.
The reliance of the learned counsel for the appellant on' Munshi Abdul Ghani and another vs. Protiva Rani Devi and others (P.L.D 1952 Dacca 450) is of no help as that case concerns itself with the provisions of Order 32 rule 15 C.P.C, and n6t the Lunacy Act, 1912.
6. The learned counsel for the respondents submitted that as the were of Abdul Ghani has not been made a party, the matter could not proceed in her absence. Mr. Amir Alam Khan, Advocate, however, stated that Abdul Ghani was unmarried. Be that as it may, it would be in accord with law and in the interest of justice that Mst. Iftikhar Fatima, who according to the learned counsel for the respondents is were of Abdul Ghani, is impleaded as a party.
As a result of above discussion, this appeal is accepted, the impugned order is sei aside and the case is remanded to the District Judge, Okara for decision afresh keeping in view the observations made above.
No order as to costs.