Mst. Safina Bibi alongwith her two children (1) Owais son and (2) Mst. Naila Bibi daughter has filed an application under section 67 of the Lunacy Act, 1912 on H10-10-1997 betore the District Judge for issuance of an order for the management of the estate/propeny of Muhammad Fayyaz her husband/respondent No,1 on the ground that he being a person of unsound mind is incapable of managing his property with a "prayer that an order be made for the management of his property including proper provisions for their maintenance out of the income of his property.
2. According to the petitioner her marriage was sotemnized with Muhammad Fayyaz respondent some eight years back and as a result ()I' the wedlock the two children i,e, petitioners Nos,2 and 3 were born. Respondent No,1 being of unsound mind was incapable to maintain them and also to perform his other legal obligations, the petitioner was compelled to live with her parents alongwith her two children. Respondent No, 1 who was in the police service was later on compulsorily retired from the police being a person of unsound mind.
3. The Additional District Judge, after the entrustment of the case to him, took cognizance and passed an order directing an inquisition for the purpose of ascertaining as to whether respondent.
No,1 was of unsound mind and incapable of managing his property or not, he summoned the respondents. Respondent No,1 attended the Court. He was interviewed by the Court by asking certain questions from him to which he gave sane, independent and proper answers to all the questions. However. the Court as an abundant caution, to confirm his mental condition summoned Medical Superintendent, Mental Hospital Dhudhial and on his request an order was passed for keeping respondent No,1 under his observation in- the Government Mental Hospital Dhudhial. After the needful being done Qazi Rashid Hamid, Medical Superintendent, was examined as C.W.1 and who confirmed his report Exh. C.W.1/1 which reads as under:-- In my opinion he is suffering from Schizo effective type of illness, most probably drug induced (Charas) and which is characterised by relapses and remission."
In cross-examination by the petitioner the doctor has said as under:-- "that the patient was suffering from schizo effective type of illness which means that his symptoms presented a mixed picture of Schizo phrenia and maniaz depressive psychosis. The patient .does not remain normal when there are relapses, however, when there is remission, then it can be said that he is having lucid intervals wherein he is quite normal. It is correct that whenever there are relapses the patient is bordering on insanity and he cannot be expected to act sanely and sensibly."
The doctor has further stated in the cross-examination by respondent that:-- "the patient is suffering from short of schizo phrenia."
4. After examining of the Medical Officer and hearing the learned counsel for the parties the learned Additional District Judge dismissed the application of the appellant hence the present appeal.
5. The learned counsel for the appellant has contended that the removal/compulsory retirement of the respondent from service on the ground of his insanity and also per opinion of the Medical Officer the respondent No,1 is an insane man and is incapable of managing his affairs/property and also unable to maintain- the petitioner which is his legal obligation and the application filed by the petitioner deserves acceptance.
6. On the other hand the learned counsel of the respondent has contended that in view of the interview of respondent No,1 conducted by the Court; there was no need of any further proceedings. The examination of respondent No,1 by the Medical Officer is also not in consonance with the relevant provisions of law as according to section 18 of the Act the medical certificate ought to have been made and signed by the Medical Officer in the prescribed form and which has been provided in the Schedule I in Form No,3 but in the instant case the certificate has not been issued on the prescribed form. He has also submitted that the opinion of the Medical Officer is not definite about the insanity of respondent No, 1.
7. In this case firstly we have the view of the Court which has interviewed respondent No,1 by putting certain questions to him and who intelligently answered the same and the Court has recorded its finding to that effect and in such-like cases the observations of the Court by itself are sufficient to drop further proceedings in the case if it arrived at a conclusion that the respondent is not an insane person. In this respect reliance can be placed on Amir-ud-Din Khan v. Atta Mohyud Din Khan, and others (1994 M LD 377) and in which, it was held as under:-- "S.62.---Inquisition as to lunacy--- Essential s---Court holding proceedings under S.62, Lunacy Act, 1912, must first satisfy itself by inquiry and personal interview with alleged lunatic that there was a proper ground for embarking upon inquisition---Where Conn, after examining alleged lunatic 'considered it unnecessary to proceed further, it had power to drop proceedings relating to inquisition---Holding of -interview with alleged lunatic for testing soundness of his mental health has a permissible course in law."
However, the Court in order to confirm the mental condition of respondent No,1 has also obtained the expert's opinion and which also does not indicate in definite terms that the respondent is an insane person.
8. Keeping in view the aforesaid facts and also the procedural defects of not giving opinion by the Medical Officer on a prescribed form the findings of the learned lower Court are not open to any exception and consequently this appeal is dismissed.