THE CHILD MARRIAGE RESTRAINT ACT 1929

THE CHILD MARRIAGE RESTRAINT ACT 1929

(Act XIX of 1929)

C O N T E N T S

SECTION HEADING

1. Short title, extent and commencement.

2. Definitions.

3. [Omitted]

4. Punishment for marrying a child.

5. Punishment for solemnizing a child marriage.

6. Punishment for parent or guardian concerned in a child marriage.

7. Imprisonment not to be awarded for offence under section 3.

8. Jurisdiction under this Act.

9. Cognizance of offence and trial.

10. Preliminary inquiries into offences under this Act.

11. [Omitted]

12. Power to issue injunction prohibiting marriage in contravention of this Act.


[1]THE CHILD MARRIAGE RESTRAINT ACT 1929

(Act XIX of 1929)

[1st October 1929]

An Act to restraint the solemnization of child marriages.

Whereas it is expedient to restrain the solemnization of child marriages:

It is hereby enacted as follows:

1. Short title, extent and commencement.– (1) This Act may be called the Child Marriage Restraint Act [2][1929].

[3][(2) It extends to the whole of [4][the Punjab] and applies to all citizens of Pakistan wherever they may be.]

(3) It shall come into force on the 1st day of April, 1930.

[5][2. Definitions.– In this Act:

(a) “child” means a person who, if a male, is under eighteen years of age, and if a female, is under sixteen years of age;

(b) “child marriage” means a marriage to which either of the contracting parties is a child;

(c) “Government” means Government of the Punjab;

(d) “minor” means person of either sex who is under eighteen years of age; and

(e) “Union Council” means a Union Council, Municipal Committee, Cantonment Board, a Union Administration or, in case of absence of any of these local governments in a local area, any other comparable body constituted under any law relating to the local governments or local authorities.]

[6][3. * * * * *]

[7][4. Punishment for marrying a child.– If a person, not being a minor, contracts child marriage, he shall be liable to punishment of simple imprisonment which may extend to six months and fine of fifty thousand rupees.]

5. Punishment for solemnizing a child marriage.– Whoever performs, conducts or directs any child marriage shall be punishable with simple imprisonment which may extend to [8][six months and fine of fifty thousand rupees], unless he proves that he had reason to believe that the marriage was not a child marriage.

6. Punishment for parent or guardian concerned in a child marriage.– (1) Where a minor contracts a child marriage, any person having charge of the minor, whether as parent or guardian or in any other capacity, lawful or unlawful, who does any act to promote the marriage or permits it to be solemnized, or negligently fails to prevent it from being solemnized, shall be punishable with simple imprisonment which may extend to [9][six months and fine of fifty thousand rupees]:

Provided that no woman shall be punishable with imprisonment.

(2) For the purposes of this section, it shall be presumed, unless and until the contrary is proved, that where a minor has contracted a child marriage, the person having charge of such minor has negligently failed to prevent the marriage from being solemnized.

7. Imprisonment not to be awarded for offences under section 3.– Notwithstanding anything contained in section 25 of the General Clauses Act, 1897[10], or section 64 of the Pakistan Penal Code[11], a Court sentencing an offender under section 3 shall not be competent to direct that, in default of payment of the fine imposed, he shall undergo any term of imprisonment.

8. Jurisdiction under this Act.– Notwithstanding anything contained in section 190 of the Code of Criminal Procedure, 1898[12], no Court other than that of [13][* * *] a [14][Magistrate of the first class] shall take cognizance of, or try, any offence under this Act.

[15][9. Cognizance of offence and trial.– (1) A Family Court shall not take cognizance of any offence under this Act except on a complaint made by the Union Council.

(2) A Family Court exercising the powers of a Judicial Magistrate of the first class shall conduct the trial of an offence under this Act in accordance with the provisions of Family Court Act, 1964 (XXXV of 1964).]

10. Preliminary inquiries into offences under this Act.– The Court taking cognizance of an offence under this Act shall, unless it dismisses the complaint under section 203 of the Code of Criminal Procedure, 1898[16], either itself make an inquiry under section 202 of that Code, or direct a Magistrate of the first class subordinate to it to make such inquiry.

[17][11. * * * * *]

[18][12. Power to issue injunction prohibiting marriage in contravention of this Act.– (1) Notwithstanding anything to the contrary contained in this Act, the Court may, if satisfied from information laid before it through a complaint or otherwise that a child marriage in contravention of this Act has been arranged or is about to be solemnized, issue an injunction against any of the persons mentioned in sections 3, 4, 5 and 6 of this Act prohibiting such marriage.

(2) No injunction under sub-section (1) shall be issued against any person unless the Court has previously given notice to such person, and has afforded him an opportunity to show cause against the issue of the injunction.

(3) The Court may either on its own motion or on the application of any person aggrieved, rescind or alter any order made under sub-section (1).

(4) Where such an application is received, the Court shall afford the applicant an early opportunity of appearing before it either in person or by pleader; and if the Court rejects the application wholly or in part, it shall record in writing its reasons for so doing.

(5) Whoever, knowing that an injunction has been issued against him under sub-section (1) of this section disobeys such injunction shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to one thousand rupees, or with both:

Provided that no woman shall be punishable with imprisonment.]


footnotes :

[1]For Statement of Objects and Reasons, see, Gazette of India, 1927, Part V, p.28; and for Report of the Select Committees, see Gazette of India, 1928, Part V, pp.111-165.

This Act was originally in the Federal ambit, however, the subject on which this law was enacted, devolved to the provinces by virtue of 18th Amendment in the Constitution, hence it was adapted, with amendments, for the province of the Punjab Child Marriage Restraint (Amendment) Act 2015 (XII of 2015).

[2]Substituted for “1928” by the Repealing and Amending Act 1930 (VIII of 1930), s.2 and 1st Sch.

[3]Substituted by the Central Laws (Statute Reform) Ordinance, 1960 (XXI of 1960), s.3 and 2nd Sch (w.e.f. 14th October 1955), for the original sub-section (2), as amended by the Child Marriage Restraint (Amendment) Act 1938 (VII of 1938), s.2, the Adaptation of Central Acts and Ordinances Order, 1949 (G.G.O. 4 of 1949), and the Federal Laws (Revision and Declaration) Act 1951 (XXVI of 1951), s.8.

[4]Substituted for the word “Pakistan” by the Punjab Child Marriage Restraint (Amendment) Act 2015 (XII of 2015).

[5]Substituted by the Punjab Child Marriage Restraint (Amendment) Act 2015 (XII of 2015) for the following:

“2. Definitions.– In this Act, unless there is anything repugnant in the subject or context,

(a) “child” means a person who, if a male, is under eighteen years of age, and if a female, is under sixteen years of age;

(b) “child marriage” means a marriage to which either of the contracting parties is a child;

(c) “contracting party” to a marriage means either of the parties whose marriage is or is about to be thereby solemnized; and

(d) “minor” means person of either sex who is under eighteen years of age.”

Earlier, the following clause (e) had been omitted by the Child Marriage Restraint (Punjab Amendment) Ordinance, 1971 (XXIII of 1971):

“(e) “Union Council” means the Union Council or the Town Committee constituted under the Law relating to Local Government for the time being in force.”

[6]Section 3 “Punishment of male adult below twenty-one years of age marrying a child” omitted by the Muslim Family Laws Ordinance, 1961 (VIII of 1961).

[7]Substituted by the Punjab Child Marriage Restraint (Amendment) Act 2015 (XII of 2015) for the following:

“4. Punishment for male adult above eighteen years of age marrying a child.– Whoever, being a male above eighteen years of age, contracts child marriage shall be punishable with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both.”

[8]Substituted by the Punjab Child Marriage Restraint (Amendment) Act 2015 (XII of 2015) for “one month, or with fine which may extend to one thousand rupees, or with both”.

[9]Substituted by the Punjab Child Marriage Restraint (Amendment) Act 2015 (XII of 2015) for “one month, or with fine which may extend to one thousand rupees, or with both”.

[10]X of 1897

[11]XLV of 1860

[12]V of 1898

[13]The words “a Presidency Magistrate or” omitted by the Adaptation of Central Acts and Ordinances Order, 1949 (G.G.O. 4 of 1949).

[14]Substituted by the Child Marriage Restraint (Second Amendment) Act 1938 (XIX of 1938) for “District Magistrate”.

[15]Substituted by the Punjab Child Marriage Restraint (Amendment) Act 2015 (XII of 2015) for the following:

“9. Mode of taking cognizance of offence.– No Court shall take cognizance of any offence under this Act [* * * *] after the expiry of one year from the date on which the offence is alleged to have been committed.”

The words “except on a complaint made by the Union Council, or if there is no Union Council in the area, by such authority as the Provincial Government may in this behalf prescribe, and such cognizance shall in no case be taken” had been omitted by the Child Marriage Restraint (Punjab Amendment) Ordinance, 1971 (XXIII of 1971).

[16]V of 1898

[17]Section 11 “Power to take security from Complainant” omitted by the Muslim Family Laws Ordinance 1961 (VIII of 1961).

[18]New section added by the Child Marriage Restraint (Second Amendment) Act 1938 (XIX of 1938).


 

THE CHARITABLE AND RELIGIOUS TRUSTS ACT 1920

THE CHARITABLE AND RELIGIOUS TRUSTS ACT 1920 [Pakistan]

(Act XIV of 1920)

C O N T E N T S

SECTION HEADING

1. Short title and extent.

2. Interpretation.

3. Power to apply to the Court in respect of trusts of a charitable or religious nature.

4. Contents and verification of petition.

5. Procedure on petition.

6. Failure of trustee to comply with order under section 5.

7. Power of trustee to apply for directions.

8. Costs of petition under this Act.

9. Savings.

10. Power of Courts as to costs in certain suits against trustees of Charitable and religious trusts.

11. Provisions of the Code of Civil Procedure to apply.

12. Appeal.


[1]THE CHARITABLE AND RELIGIOUS TRUSTS ACT, 1920

(Act XIV of 1920)

[20 March 1920]

An Act to provide more effectual control over the

administration of Charitable and Religious Trusts.

WHEREAS it is expedient to provide facilities for the obtaining of information regarding trusts created for public purposes of a charitable or religious nature, and to enable the trustees of such trusts to obtain the directions of a Court on certain matters, and to make special provision for the payment of the expenditure incurred in certain suits against the trustees of such trusts;

It is hereby enacted as follows:-

1. Short title and extent.– (1) This Act may be called the Charitable and Religious Trusts Act, 1920.

[2][(2) It extends to whole of the Punjab:

Provided that the Government may, by notification in the official Gazette, direct that this Act, or any specified part thereof, shall not extend to any specified area or to any specified trust or class of trusts.]

[3][2. Interpretation.- In this Act–

(a) “Court” means the Court of the District Judge or any other Court empowered in that behalf by the Government and includes the Lahore High Court in the exercise of its ordinary original civil jurisdiction; and

(b) “Government” means Government of the Punjab.]

3. Power to apply to the Court in respect of trusts of a charitable or religious nature.– Save as hereinafter provided in this Act, any person having an interest in any express or constructive trust created or existing for a public purpose of a charitable or religious nature may apply by petition to the Court within the local limits of whose jurisdiction any substantial part of the subject-matter of the trust is situate to obtain an order embodying all or any of the following directions, namely:-

(1) directing the trustee to furnish the petitioner through the Court with particulars as to the nature and objects of the trust, and of the value, condition, management and application of the subject-matter of the trust, and of the income belonging thereto, or as to any of these matters, and

(2) directing that the accounts of the trust shall be examined and audited:

Provided that no person shall apply for any such direction in respect of accounts relating to a period more than three years prior to the date of the petition.

4. Contents and verification of petition.– (1) The petition shall show in what way the petitioner claims to be interested in the trust, and shall specify, as far as may be, the particulars and the audit which he seeks to obtain.

(2) The petition shall be in writing and shall be signed and verified in the manner prescribed by the Code of Civil Procedure, 1908[4], for signing and verifying plaints.

5. Procedure on petition.– (1) If the Court on receipt of a petition under section 3, after taking such evidence and making such inquiry, if any, as it may consider necessary, is of opinion that the trust to which the petition relates is a trust to which this Act applies, and that the petitioner has an interest therein, it shall fix a date for the hearing of the petition, and shall cause a copy thereof, together with notice of the date so fixed, to be served on the trustee and upon any other person to whom in its opinion notice of the petition should be given.

(2) On the date fixed for the hearing of the petition, or on any subsequent date to which the hearing may be adjourned, the Court shall proceed to hear the petitioner and the trustee, if he appears, and any other person who has appeared in consequence of the notice, or who it considers ought to be heard, and shall make such further inquiries, if any, as it thinks fit. The trustee may and, if so required by the Court, shall, at the time of the first hearing or within such time as the Court may permit, present a written statement of his case. If he does present a written statement, the statement shall be signed and verified in the manner prescribed by the Code of Civil Procedure, 1908[5], for signing and verifying pleadings.

(3) If any person appears at the hearing of the petition and either denies the existence of the trust or denies that it is a trust to which this Act applies, and undertakes to institute within three months a suit for a declaration to that effect and for any other appropriate relief, the Court shall order a stay of the proceedings and, if such suit is so instituted, shall continue the stay, until the suit is finally decided.

(4) If no such undertaking is given, or if after the expiry of the three months no such suit has been instituted, the Court shall itself decide the question.

(5) On completion of the inquiry provided for in sub-section (2), the Court shall either dismiss the petition or pass thereon such other order as it thinks fit:

Provided that, where a suit has been instituted in accordance with the provisions of sub-section (3), no order shall be passed by the Court which conflicts with the final decision therein.

(6) Save as provided in this section, the Court shall not try or determine any question of title between the petitioner and any person claiming title adversely to the trust.

6. Failure of trustee to comply with order under section 5.– If a trustee without reasonable excuse fails to comply with an order made under sub-section (5) of section 5, such trustee shall, without prejudice to any other penalty or liability which he may incur under any law for the time being in force, be deemed to have committed a breach of trust affording ground for a suit under the provisions of section 92 of the Code of Civil Procedure, 1908[6]; and any such suit may, so far as it is based on such failure, be instituted without the previous consent of the Advocate General.

7. Powers of trustee to apply for directions.– (1) Save as hereinafter provided in this Act, any trustee of an express or constructive trust created or existing for public purpose of a charitable or religious nature may apply by petition to the Court, within the local limits of whose jurisdiction any substantial part of the subject-matter of the trust is situate, for the opinion, advice or direction of the Court on any question affecting the management or administration of the trust property, and the Court shall give its opinion, advice or direction, as the case may be, thereon:

Provided that the Court shall not be bound to give such opinion, advice or direction on any question which it considers to be a question not proper for summary disposal.

(2) The Court on a petition under sub-section (1), may either give its opinion, advice or direction thereon forthwith, or fix a date for the hearing of the petition, and may direct a copy thereof, together with notice of the date so fixed, to be served on such of the persons interested in the trust, or to be published for information in such manner, as it thinks fit.

(3) On any date fixed under sub-section (2) or on any subsequent date to which the hearing may be adjourned, the Court, before giving any opinion, advice or direction, shall afford a reasonable opportunity of being heard to all persons appearing in connection with the petition.

(4) A trustee stating in good faith the facts of any matter relating to the trust in a petition under sub-section (1), and acting upon the opinion, advice or direction of the Court given thereon, shall be deemed, as far as his own responsibility is concerned, to have discharged his duty as such trustee in the matter in respect of which the petition was made.

8. Costs of petition under this Act.– The costs, charges and expenses of and incidental to any petition, and all proceedings in connection therewith, under the foregoing provisions of this Act, shall be in the discretion of the Court, which may direct the whole or any part of any such costs, charges and expenses to be met from the property or income of the trust in respect of which the petition is made, or to be borne and paid in such manner and by such persons as it thinks fit:

Provided that no such order shall be made against any person (other than the petitioner) who has not received notice of the petition and had a reasonable opportunity of being heard thereon.

9. Savings.– No petition under the foregoing provisions of this Act in relation to any trust shall be entertained in any of the following circumstances, namely:-

(a) if a suit instituted in accordance with the provisions of section 92 of the Code of Civil Procedure, 1908[7], is pending in respect of the trust in question;

(b) if the trust property is vested in the Treasurer of Charitable Endowments, the Administrator-General, the official Trustee, or any Society registered under the Societies Registration Act, 1860 (XXI of 1860); or

(c) if a scheme for the administration of the trust property has been settled or approved by any Court of competent jurisdiction, or by any other authority acting under the provisions of any enactment.

10. Power of Courts as to costs in certain suits against trustees of Charitable and religious trusts.– (1) In any suit instituted [8][* * *] under section 92 of the Code of Civil Procedure, 1908[9], the Court trying such suit may, if, on application of the plaintiff and after hearing the defendant and making such inquiry as it thinks fit, it is satisfied that such an order is necessary in the public interest, direct the defendant either to furnish security for any expenditure incurred or likely to be incurred by the plaintiff in instituting and maintaining such suit, or to deposit from any money in his hands as trustees of the trust to which the suit relates such sum as such Court considers sufficient to meet such expenditure in whole or in part.

(2) When any money has been deposited in accordance with an order made under sub-section (1), the Court may make over to the plaintiff the whole or any part of such sum for the conduct of the suit. Before making over any sum to the plaintiff, the Court shall take security from the plaintiff for the refund of the same in the event of such refund being subsequently ordered by the Court.

11. Provisions of the Code of Civil Procedure to apply.– (1) The provisions of the Code of Civil Procedure, 1908[10], relating to–

(a) the proof of facts by affidavit,

(b) the enforcing of the attendance of any person and his examination on oath,

(c) the enforcing of the production of documents, and

(d) the issuing of commissions, shall apply to all proceedings under this Act, and the provisions relating to the service of summonses shall apply to the service of notices thereunder.

(2) The provisions of the said Code relating to the execution of decrees shall, so far as they are applicable, apply to the execution of orders under this Act.

[11][12. Appeal.– Any person aggrieved by an order passed, or direction given under this Act, may, within ninety days of the date of such order or direction prefer an appeal to the High Court.]


foot notes

[1]For Statement of Objects and Reasons, see Gazette of India, 1919 Pt. V, p. 88; for Report of Select Committee, see ibid., 1920, Pt. V, p. 85; and for Proceedings in Council, see ibid., 1919, Pt. VI, p. 879, and ibid., 1920, Pt. VI, pp. 49 and 787.

This Act was repealed in the NWFP by the NWFP Muslim Wakfs Act, 1947 (NWFP. Act XXII of 1947), s.37 and Schedule It was extended to the Excluded Area of Upper Tanawal (NWFP) other than Phulera with effect from such date and subject to such modifications as may be notified. see NWFP (Upper Tanawal) (Excluded Area) Laws Regulation. 1950.

This Act was originally in the Federal ambit, however, the subject on which this law was enacted, devolved to the provinces by virtue of 18th Amendment in the Constitution, hence it was adapted, with amendments, for the province of the Punjab by the Charitable and Religious Trusts (Amendment) Act 2012 (X of 2012).

[2]Substituted by the Charitable and Religious Trusts (Amendment) Act 2012 (X of 2012).

[3]Ibid.

[4]V of 1908.

[5]V of 1908.

[6]Ibid.

[7]V of 1908.

[8]Certain words omitted by the Federal Laws (Revision and Declaration) Ordinance, 1981 (XXVII of 1981), s.3 and Schedule II.

[9]V of 1908.

[10]Ibid.

[11]Substituted by the Charitable and Religious Trusts (Amendment) Act 1987 (XII of 1987).


 

THE ANTIQUITIES ACT 1975

THE ANTIQUITIES ACT 1975 [Pakistan]

(Act VII of 1976)

C O N T E N T S

SECTION HEADING

1. Short title, extent and commencement.

2. Definitions.

3. Advisory Committee.

4. Dispute as to whether any product, etc., is an antiquity.

5. Custody, preservation, etc., of certain antiquities.

5-A. Accidental discovery of antiquity to be reported to Director General.

6. Power of entry, inspection, etc.

7. Acquisition of land containing antiquities.

8. Purchase, taking lease, etc., of antiquity.

9. Right of pre-emption in case of a sale of antiquity.

10. Declaration of protected antiquities.

11. Representation against declaration of protected antiquities.

12. The guardianship of antiquity by agreement.

13. Purchasers at certain sales and persons claiming through owner bound by agreement entered into by owner.

13A. Ownership of buried antiquities.

14. Application of endowment for maintenance and preservation of antiquity.

15. Compulsory acquisition of protected Immovable antiquity.

16. Compulsory acquisition of movable antiquities.

17. Protection of place of worship from misuse, etc.

18. Restriction on use of protected immovable antiquity.

19. Prohibition of destruction, damage, etc., of protected antiquities.

20. Restriction on repairs, renovation, etc., of protected immovable antiquity.

21. Direction to the owner to take measures for preservation of antiquity.

22. Execution of development schemes and new constructions in proximity to immovable antiquity.

23. Prohibition of bill posting, neon signs, other kinds of advertisements, etc.

24. Penalty for counterfeiting, etc., of antiquity.

25. Dealing in antiquities.

26. Export of antiquities.

27. Traffic in movable antiquities.

28. Regulation of mining, quarrying, etc.

29. Prohibition of archaeological excavation or exploration without licence.

30. Prohibition of making copies of protected antiquities without licence.

31. Right of access to protected immovable antiquities.

32. Penalty.

33. Jurisdiction to try offences.

34. Power to arrest without warrant.

35. Confiscated antiquities to be made over to Director General.

36. Indemnity.

37. Power to make rules.

38. [Omitted].


[1]THE ANTIQUITIES ACT 1975

(Act VII of 1976)

[14 January 1976]

An Act to repeal and re-enact the law relating to the

preservation and protection of antiquities.

WHEREAS it is expedient to repeal and re-enact the law relating to the preservation and protection of antiquities and to provide for matters connected therewith or ancillary thereto;

It is hereby enacted as follows:-

1. Short title, extent and commencement.– (1) This Act may be called the Antiquities Act, 1975.

(2) It extends to the whole of [2][the Punjab].

(3) It shall come into force at once.

2. Definitions.– In this Act, unless there is anything repugnant in the subject or context–

(a) “Advisory Committee” means the Advisory Committee constituted under section 3;

[3][(b) “ancient”, in relation to an antiquity, means an antiquity which has been in existence for a period of not less than seventy-five years;]

(c) “antiquity” means–

(i) any ancient product of human activity, movable or immovable, illustrative of art, architecture, craft, custom, literature, morals, politics, religion, warfare or science or of any aspect of civilization or culture–

(ii) any ancient object or site of historical, ethnographical, anthropological, military or scientific interest,

(iii) any national monument, and

(iv) any other object or class of such objects declared by the [4][Government], by notification in the official Gazette, to be an antiquity for the purposes of this Act;

(d) “dealer” means a person engaged in the business of buying and selling antiquities; and “deal in antiquities” means to carry on such business;

(e) “[5][Director General]” means the [6][Director General] of Archaeology, Government of [7][the Punjab], and includes an officer authorised by him to exercise or perform all or any of the powers or functions of the [8][Director General] under this Act;

[9][(f) “export” means taking anything out of the Punjab by land or air;]

[10][(ff) “Government” means Government of the Punjab;]

(g) “immovable antiquity” means an antiquity of any of the following descriptions, namely:–

(i) any archaeological deposit on land or under water,

(ii) any archaeological mound, tumulus, burial place or place of internment, or any ancient garden, structure, building, erection or other work of historical, archaeological, military or scientific interest.

(iii) any rock, cave or other natural object of historical, archaeological, artistic or scientific interest or containing sculpture, engraving, inscription or painting of such interest, and includes–

(1) any gate, door, window, panelling, dado, ceiling, inscription, wall-painting, wood work, metal work or sculpture or any other thing which is attached or fastened to an immovable antiquity;

(2) the remains of an immovable antiquity;

(3) the site of an immovable antiquity;

(4) such portion of land or water adjoining the site of an immovable antiquity as are reasonably required for fencing or covering or otherwise preserving such antiquity;

(5) the reasonable means of access to, and convenient inspection of an immovable antiquity; and

(6) any urban site, street, group of buildings or public square of special value which the [11][Government], being of the opinion that its preservation is a matter of public interest by reason of its arrangement, architecture or materials of construction, by notification in the official Gazette, declares to be an immovable antiquity for the purposes of this Act;

(h) “national monument” means any building, structure, erection, place of internment, garden, portion of land or any other place or thing of national importance as may be determined and notified as such from time to time by the [12][Government] in consultation with the Advisory Committee;

(i) “owner” includes–

(i) any person legally competent to act on behalf of the owner, when by reason of infancy or other disability the owner is unable to act;

(ii) a joint owner invested with powers of management on behalf of himself and other joint owners and the successor in interest of such owner; and

(iii) any manager or trustee exercising the powers of management and the successor in office of such manager or trustee;

(j) “protected antiquity” means an antiquity which is declared under section 10 to be a protected antiquity; and

(k) “rules” means rules made under this Act.

3. Advisory Committee.– [13][(1) For the purpose of this Act, the Government shall, by notification in the official Gazette, constitute an Advisory Committee consisting of archaeologists, architects, historians and members of the Provincial Assembly of the Punjab and the Director General shall be the Chairman of the Advisory Committee.]

(2) No act or proceeding of the Advisory Committee shall be deemed to be invalid by reason only of the existence of a vacancy in, or defect in the constitution of, the Committee.

4. Dispute as to whether any product, etc., is an antiquity.– If any question arises whether any product, object or site is an antiquity within the meaning of this Act it shall be referred to the [14][Government] which shall, after consultation with the Advisory Committee, decide the same; and the decision of the [15][Government] shall be final.

5. Custody, preservation, etc., of certain antiquities.– (1) Where the [16][Director General] receives any information or otherwise has the knowledge of the discovery or existence of an antiquity of which there is no owner, he shall, after satisfying himself as to the correctness of the information or knowledge, take such steps as he may consider necessary for the custody, preservation and protection of the antiquity.

(2) Where the owner of an antiquity is not traceable, the [17][Director General] may, with the approval of the [18][Government], take such steps as he may consider necessary for the custody, preservation and protection of the antiquity.

[19][5-A. Accidental discovery of antiquity to be reported to [20][Director General].– (1) Whoever discovers, or finds accidentally, any movable antiquity shall inform the [21][Director General] within seven days of its being discovered or found and preserve it for the period specified in subsection (2).

(2) If, within seven days of his being informed under subsection (1) of the discovery of a movable antiquity or of a movable antiquity having been found, the [22][Director General] decides to take over the antiquity for purposes of custody, preservation and protection, the person discovering or finding it shall hand it over to the [23][Director General] or a person authorized by him in writing.

[24][(3) Where the Director General decides to take over an antiquity he may pay to the person by whom it is handed over to him such cash reward as the Advisory Committee may deem fit.]

(4) If any person who discovers or finds any movable antiquity contravenes the provisions of subsection (1) or subsection (2), he shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both and the Court convicting such person shall direct that the antiquity in respect of which such contravention has taken place shall stand forfeited to the [25][Government].]

6. Power of entry, inspection, etc.– (1) The [26][Director General], may, after giving reasonable notice, enter into, inspect and examine any premises, place or area which or the sub-soil of which he may have reason to believe to be, or to contain an antiquity and may cause any site, building, object or any antiquity or the remains of any antiquity in such premises, place or area to be photographed, copied or reproduced by any process suitable for the purpose.

(2) The owner or occupier of the premises, place or area shall afford all reasonable opportunity and assistance to the [27][Director General] for the purpose of subsection (1).

(3) No photograph, copy or reproduction taken or made under or for the purposes of subsection (1) shall be sold or offered for sale except by or with the consent of the owner of the object of which the photograph, copy or reproduction has been taken or made.

(4) Where substantial damage is caused to any property as a result of the inspection under subsection (1), the [28][Director General] shall pay to the owner thereof reasonable compensation for the damage.

[29][7. Acquisition of land containing antiquities.– If the Director General has reasonable grounds to believe that any land contains any antiquity, he may request the Government to acquire such land under the Land Acquisition Act 1894 (I of 1894) and such acquisition shall be deemed to be acquisition for public purpose.]

8. Purchase, taking lease, etc., of antiquity.– (1) The [30][Director General] may, with the previous sanction of the [31][Government], purchase, or take lease or accept a gift or bequest of, an antiquity.

(2) The [32][Director General] may receive voluntary contributions and donations for the acquisition, preservation or restoration of antiquities and may make suitable arrangements for the management and application of the fund created by such contributions and donations:

Provided that a contribution or donation made for any specified purpose shall not be applied to any purpose other than that for which it has been made.

9. Right of pre-emption in case of a sale of antiquity.– (1) Where the [33][Director General] receives any information or otherwise has the knowledge that any antiquity or any immovable property containing an antiquity is offered for sale or is about to be sold, he may, with the approval of the [34][Government], exercise the right of pre-emption with respect to such antiquity or property and, if he intends to exercise the right, shall give to the person competent to sell a notice in writing accordingly.

(2) If the [35][Director General] does not exercise with respect to any antiquity or property the right of pre-emption within a period of three months from the date of notice given under subsection (l), the antiquity or property may be sold to any person after the expiry of the said period and a notice of such sale shall be given to the [36][Director General].

(3) Save as provided in subsection (2), no antiquity or property in respect of which a notice under subsection (1) has been given shall be sold to any person.

(4) All sales in contravention of subsection (3) shall be void and the antiquity or property so sold shall be forfeited to the [37][Government].

10. Declaration of protected antiquities.– (1) The [38][Government] may, by notification in the official Gazette, declare any antiquity to be a protected antiquity for the purposes of this Act.

(2) A copy of a notification under subsection (1) shall be served on the owner of the antiquity and; in the case of an immovable antiquity, shall also be fixed up in a conspicuous place of or near the antiquity.

(3) A notification under subsection (1) shall, unless it is cancelled by the [39][Government], be conclusive evidence of the fact that the antiquity to which it relates is a protected antiquity for the purposes of this Act,

(4) Antiquities declared to be protected antiquities under the Antiquities Act, 1968 (XIV of 1968), and ancient monuments deemed to be protected antiquities for the purposes of that Act, shall be deemed to be protected antiquities for the purposes of this Act.

11. Representation against declaration of protected antiquities.– (1) The owner of an antiquity to which a notification under section 10 relates, or any person having any right or interest in the antiquity, may, within three months of the service of a copy of the notification, make a representation in writing to the [40][Government] against the notification.

(2) Upon the receipt of a representation under subsection (1) against a notification, the [41][Government], after giving the person making it an opportunity of being heard and after consultation with the Advisory Committee, may, if it is satisfied that there are good and sufficient reasons for objection to the notification, cancel it.

12. The guardianship of antiquity by agreement.– (1) The owner of any immovable antiquity or protected antiquity may, by an agreement in writing constitute the [42][Director General] the guardian of such antiquity and the [43][Director General] may, with the previous sanction of the [44][Government], accept such guardianship.

(2) Where the [45][Director General] has accepted the guardianship of an antiquity in pursuance of an agreement under subsection (1), the owner shall, except as expressly provided in this Act and in the agreement, have the same right, title and interest in and to the antiquity as if the [46][Director General] had not been constituted the guardian thereof.

(3) An agreement under this section in relation to an antiquity may provide for all or any of the following matters, namely:-

(a) the maintenance of the antiquity;

(b) the custody of the antiquity and the duties of any person who may be employed to watch it;

(c) the restrictions upon the right of the owner to alienate, destroy, remove, alter or deface the antiquity or to build on or near the site of the antiquity;

(d) the facilities of access to be allowed to the public;

(e) the facilities to be allowed to persons deputed by the owner or the [47][Director General] for inspection and maintenance of the antiquity;

(f) the expenses to be incurred in connection with the preservation of the antiquity and payment of such expenses if incurred by the owner;

(g) compensation to be paid for any loss sustained by the owner or occupier or any other person as a result of the enforcement or observance of the agreement; and

(h) any other matter connected with the custody, management and preservation of the antiquity.

(4) The terms of an agreement under this section may be altered from time to time with the sanction of the [48][Government] and with the consent of the owner.

(5) An agreement under this section in relation to an antiquity may be terminated upon six months’ notice in writing given by the [49][Director General], with the previous sanction of the [50][Government], to the owner or by the owner to the [51][Director General].

13. Purchasers at certain sales and persons claiming through owner bound by agreement entered into by owner.– Notwithstanding anything contained in any other law for the time being in force, every person who, at a sale for the recovery of arrears of land revenue or any other public demand, purchases any land or property, or any right or interest in land or property, which contains or in which is situated an antiquity in respect of which an agreement under section 12 subsists, and every person claiming any title to any antiquity from, through or under an owner who entered into such agreement, shall be bound by such agreement.

[52][13A. Ownership of buried antiquities.– Notwithstanding anything contained in any other law for the time being in force, the ownership of all buried antiquities shall vest in the [53][Government].]

14. Application of endowment for maintenance and preservation of antiquity.– (1) Where any endowment has been created for the maintenance and preservation of any protected antiquity, or for that purpose among others, and the owner or other person competent in this behalf fails in the proper application of such endowment and, when proposed to him by the [54][Director General], refuses or fails to enter into an agreement under section 12, the [55][Director General] may, for the proper application of such endowment or part thereof, institute a suit in the Court of the District Judge, or, where the estimated cost of maintaining and preserving the antiquity does not exceed one thousand rupees, make an application to the District Judge.

(2) On the bearing of an application under subsection (1), the District Judge may summon and examine the owner and any person whose evidence appears to him necessary, and may pass an order for the proper application of the endowment or of any part thereof, and any such order may be executed as if it were the decree of a Civil Court.

15. Compulsory acquisition of protected Immovable antiquity.– [56][(1) If the Director General apprehends that a protected immovable antiquity is in danger of being destroyed, injured or allowed to fall into decay, he may, request the Government to acquire such antiquity under the Land Acquisition Act 1894 (I of 1894) and such acquisition shall be deemed to be acquisition for public purpose.]

(2) The power of compulsory acquisition under subsection (1) shall not be exercised in the case of–

(a) any antiquity which or any part of which is periodically used for religious observances; or

(b) any antiquity which is the subject of a subsisting agreement under section 12; [57][* * *]

(c) [58][* * * *].

16. Compulsory acquisition of movable antiquities.– (1) If the [59][Government] is of the opinion that any movable antiquity should, by reason of its cultural, historical or archaeological importance, be acquired for the purpose of preservation, the [60][Government] may, by order in writing addressed to the owner, acquire such antiquity:

Provided that the power to acquire under this subsection shall not extend to–

(a) any image or symbol in actual use for the purpose of any religious observance; or

(b) anything which the owner desires to retain on any reasonable ground personal to himself or to any of his ancestors or to any member of his family.

(2) When an order under sub-section (1) has been served upon the owner, the antiquity to which the order relates shall immediately vest in the [61][Government] free from all encumbrances and the owner shall be entitled to compensation, the amount of which shall be determined in the manner, and in accordance with the principles, hereinafter set out, that is to say,–

(a) where the amount of compensation can be fixed by agreement, it shall be paid in accordance with such agreement;

(b) where no such agreement can be reached, the [62][Government] shall appoint as arbitrator a person who has been, or is qualified for appointment as, a Judge of a High Court;

(c) at the commencement of the proceedings before the arbitrator, the [63][Government] and the person to be compensated shall state what in their respective opinions is a fair amount of compensation;

(d) the arbitrator in making his award shall have regard to the price which the antiquity is likely to fetch on a sale in open market between a buyer and a seller independent of each other;

(e) an appeal shall lie to the High Court against any award of an arbitrator except in case where the amount thereof does not exceed an amount prescribed in this behalf by rules; and

(f) save as provided in this subsection and in any rules made in this behalf, nothing in any law for the time being in force shall apply to arbitrations under this subsection.

17. Protection of place of worship from misuse, etc.– (1) A place of worship or shrine, being an antiquity maintained by the [64][Government], shall not be used for any purpose inconsistent with its character.

(2) A place of worship or shrine in respect of which the [65][Director General] has accepted guardianship in pursuance of an agreement under section 12 shall, unless the agreement otherwise provides, be maintained by the person in whom it is vested or, if there is no such person, by the [66][Government].

(3) Where any antiquity in respect of which the [67][Government] has acquired any right under this Act or the [68][Director General] has accepted guardianship is periodically used for religious worship or observances by any community, the [69][Director General] shall provide for the protection of such antiquity from pollution or desecration–

(a) by prohibiting the entry therein, except in accordance with the conditions prescribed with the concurrence of the person in charge of the antiquity, of any person not entitled so to enter by the religious usages of the community by which the antiquity is used; and

(b) by taking with the concurrence of the person in charge of the antiquity such other action as he may think necessary for the purpose.

(4) Whoever contravenes the provisions of subsection (3) shall be punishable with imprisonment for a term which may extend to three months, or with fine, or with both.

18. Restriction on use of protected immovable antiquity.– A protected immovable antiquity shall not be used for any purpose inconsistent with its character or for a purpose other than that directly related to its administration and preservation.

19. Prohibition of destruction, damage, etc., of protected antiquities.– (l) No person shall, except for carrying out the purposes of this Act, destroy, break, damage, alter, injure, deface or mutilate or scribble, write or engrave any inscription or sign on, any antiquity or take manure from any protected antiquity.

(2) Whoever contravenes the provisions of subsection (1) shall be punishable with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.

(3) The Court trying an offence under subsection (2) may direct that the whole or any part of the fine recovered shall be applied in defraying the expenses of restoring the antiquity to the condition in which it was before the commission of the offence.

20. Restriction on repairs, renovation, etc., of protected immovable antiquity.– (1) The owner of a protected immovable antiquity shall not make any alteration or renovation in, or addition to, the antiquity:

Provided that he may, with the permission of the [70][Director General], make minor adjustments considered necessary for the day to day use of the antiquity:

Provided further that the work for which permission has been given shall be carried out under the supervision of the [71][Director General] or a person authorised by him in this behalf.

(2) Whoever contravenes the provisions of subsection (1) shall be punishable with rigorous imprisonment for a term which may extend to one year, or with fine, or with both.

21. Direction to the owner to take measures for preservation of antiquity.– (1) Where the [72][Director General] considers that any antiquity is not being preserved or conserved properly by its owner, the [73][Director General] may, by order in writing, direct the owner to take such measures for its proper preservation and conservation, and within such time, as may be specified in the order.

(2) If the owner fails to take the measures specified in the order referred to in subsection (1), the [74][Director General] may take all such measures in respect of the antiquity and the expenses incurred for the purpose shall be recoverable from the owner as an arrear of land revenue.

22. Execution of development schemes and new constructions in proximity to immovable antiquity.– Notwithstanding anything contained in any other law for the time being in force, no development plan or scheme or new construction on, or within a distance of two hundred feet of, a protected immovable antiquity shall be undertaken or executed except with the approval of the [75][Director General].

23. Prohibition of bill posting, neon signs, other kinds of advertisements, etc.– (1) No person shall put any neon signs or other kinds of advertisement, including bill posting, commercial signs, poles or pylons, electricity or telephone cables and television aerials, on or near any protected immovable antiquity.

(2) Whoever contravenes the provision of subsection (1) shall be punishable with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both.

(3) The Court trying an offence under subsection (2) may direct that the whole or any part of the fine recovered shall be applied in defraying the expenses of restoring the antiquity to the condition in which it was before the commission of the offence.

24. Penalty for counterfeiting, etc., of antiquity.– (1) Whoever counterfeits, or commits forgery in respect of any ,antiquity with intent to commit fraud or knowing to be likely that fraud will thereby be committed, or causes anything to appear like, or to be believed to be, an antiquity with intent to cause wrongful gain to one person or wrongful loss to another person shall be punishable with imprisonment for a term which may extend to six months or with fine, or with both.

(2) The Court trying an offence under subsection (1) may direct that anything the making or forging of which has constituted such offence shall stand forfeited to the [76][Government].

25. Dealing in antiquities.– (1) No person shall deal in antiquities except under, and in accordance with, a licence granted by the [77][Director General].

(2) Every dealer shall maintain a register in such manner and form as the [78][Director General] may prescribe from time to time.

(3) A licence granted under subsection (1) may be cancelled by the [79][Director General] for the breach of any condition of the licence.

(4) The [80][Director General] may, with a view to securing compliance with the provisions of this section,–

(a) require any person dealing in antiquities to give such information in his possession with respect to any business carried on by him as the [81][Director General] may demand;

(b) inspect or cause to be inspected any book, register or other document belonging to or under the control of any person dealing in antiquities; and

(c) enter and search, or authorise any officer subordinate to him to enter and search, any premises and seize, or authorise any such officer or a police officer, to seize, any antiquity in respect of which he has reason to believe that a contravention of any provision of this section or a breach of any condition of the licence has been committed.

(5) Whoever contravenes the provisions of this section shall be punishable with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.

(6) The Court trying an offence under subsection (5) may direct that any antiquity in respect of which the offence has been committed shall stand forfeited to the [82][Government].

26. Export of antiquities.– (1) No person shall export any antiquity except under a licence to be granted by the [83][Director General]–

(a) for the temporary export of antiquities for the purpose of exhibition, examination or treatment for preservation; or

(b) in accordance with agreements with foreign licences for archaeological exploration and excavations within the term of their licences; or

(c) for the export of antiquities which are not of a unique nature in exchange for antiquities of any foreign country.

(2) All antiquities the export of which is prohibited under subsection (1) shall be deemed to be goods of which the export has been prohibited under section 16 of the Customs Act, 1969 (IV of 1969), and all the provisions of that Act shall have effect accordingly, except that the antiquity in respect of which the provisions of that Act have been contravened shall be confiscated where confiscation is authorised under that Act.

27. Traffic in movable antiquities.– (1) If the [84][Government] apprehends that movable antiquities in any place in [85][the Punjab] are being sold or removed to the detriment of [86][the Punjab], it may, by notification in the official Gazette, prohibit or restrict the movement of any such antiquity or any class of such antiquities for such period and between such places in [87][the Punjab] as may be specified in the notification, except with, and in accordance with the terms of, the written permission of the [88][Director General].

(2) Whoever contravenes the provisions of a notification under subsection (1) shall be punishable with rigorous imprisonment for a term which may extend to three year, or with fine, or with both.

(3) The Court trying an offence under subsection (2) may direct that any antiquity in respect of which the offence has been committed shall stand forfeited to the [89][Government].

28. Regulation of mining, quarrying, etc.– (1) If the [90][Government] is of the opinion that for the purpose of protecting or preserving any immovable antiquity it is necessary so to do, it may, by notification in the official Gazette, prohibit or restrict, within such area as may be specified therein, mining, quarrying, excavating. blasting and other operations of a like nature, or the movement of heavy vehicles, except under and in accordance with the terms of a licence granted by the [91][Director General] and rules, if any, made in this behalf.

(2) Any owner or occupier of land who sustains any loss by reason of any prohibition or restriction by a notification under subsection (1) shall be paid reasonable compensation for such loss.

(3) Whoever contravenes the provisions of subsection (1) shall be punishable with imprisonment for a term which may extend to one year, or with fine, or with both.

29. Prohibition of archaeological excavation or exploration without licence.– (1) No person shall make on any land any excavation or exploration for archaeological purposes, or unearth or attempt to unearth or make any digging in any land or site for taking out antiquities, except under, and in accordance with, a licence granted by the [92][Director General].

(2) A licence under subsection (1) in respect of any land shall not be granted to any person other than the owner of the land except in accordance with the term of an agreement with the owner, and any such agreement may provide for–

(a) the restriction of the owner’s rights in respect of the use and occupation of such land;

(b) the compensation or any other consideration to be paid to the owner; and

(c) any other matter connected with the use of the land for the purpose of such excavation.

(3) A licence under subsection (1) shall not be refused to an owner if he undertakes to carry on the excavation in such manner that it will not result in the loss of archaeological or historical material which in the national interest should be preserved.

(4) Whoever contravenes the provisions of subsection (1) shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.

(5) The Court trying an offence under subsection (4) may direct that any object found in the course of an excavation, exploration, unearthing or digging constituting such offence shall stand forfeited to the [93][Government].

30. Prohibition of making copies of protected antiquities without licence.– No person shall, for any commercial purpose, make a cinematograph film of any protected antiquity or any part thereof except under, and in accordance with, a licence granted by the [94][Director General].

31. Right of access to protected immovable antiquities.– Subject to the provisions of this Act and the rules, the public shall have a right of access to any immovable protected antiquity maintained by the [95][Government] under this Act.

32. Penalty.– A contravention of any provision of this Act or the rules shall, where no punishment has been specifically provided, be punishable with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both.

[96][33. Jurisdiction to try offences.– No Court inferior to that of a Magistrate of the first class shall take cognizance of or try an offence punishable under this Act.]

34. Power to arrest without warrant.– [97][(1) The [98][Director General] or any officer duly empowered by him in this behalf may arrest without warrant any person against whom there is reasonable ground to believe that he has committed an offence under section 5-A, 19, 25, 26, 27 or 29.]

(2) Subject to subsection (3), every person arrested under subsection (1) shall be taken forthwith to the officer-in-charge of the nearest police station.

(3) The [99][Director General] or the officer arresting any person, or the officer-in-charge of a police station to whom any person is taken under subsection (2), shall either admit him to bail to appear before the Magistrate having jurisdiction or have him taken in custody before such Magistrate.

35. Confiscated antiquities to be made over to [100][Director General].– Any antiquity which is confiscated or forfeited under this Act shall be made over to the [101][Director General] for custody, preservation and protection.

36. Indemnity.– No suit, prosecution or other legal proceeding shall lie against Government or any person for any thing which is in good faith done or intended to be done under this Act.

37. Power to make rules.– (1) The [102][Government] may, after previous publication, make rules for carrying out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for–

(a) the form and the conditions of any licence granted under this Act;

(b) regulation of admission of the public to any immovable protected antiquity;

(c) the levy of fees for the grant of any licence under this Act and for admission of the public to an immovable protected antiquity;

(d) the procedure to be followed in arbitrations, the principles to be followed in apportioning the costs of proceedings before the arbitrator and on appeal, and the maximum amount of an award against which no appeal shall lie, under subsection (2) of section 16;

(e) such other matters as are or may be required for carrying into effect the provisions of this Act.

(3) Rules made under this section may provide that the contravention of any of the provisions thereof or of any condition of a licence granted under this Act shall be punishable with fine which may extend to [103][two hundred thousand] rupees.

38. [104][Omitted].


foot note: 

[1]For Statement of Objects and Reasons, see Gazette of Pakistan, 1975, Extraordinary, Pt.III, p.1541. This Act of Parliament received the assent of the President on the 10th January 1976, and published in the Gazette of Pakistan (Extraordinary), Pt I, pp 26-37, dated 14th January 1976.

This Act was originally in the Federal ambit, however, the subject on which this law was enacted devolved to the provinces by virtue of 18th Amendment in the Constitution, hence it was adapted, with amendments, for the province of the Punjab by the Antiquities (Amendment) Act 2012 (XII of 2012).

[2]Substituted for the word “Pakistan” by the Antiquities (Amendment) Act 2012 (XII of 2012).

[3]Substituted by the Antiquities (Amendment) Act 1992 (XXI of 1992).

[4]Substituted by the Antiquities (Amendment) Act 2012 (XII of 2012) for the words “Federal Government”.

[5]Substituted for the word “Director” by the Antiquities (Amendment) Act 1992 (XXI of 1992).

[6]Ibid.

[7]Substituted for the word “Pakistan” by the Antiquities (Amendment) Act 2012 (XII of 2012).

[8]Substituted for the word “Director” by the Antiquities (Amendment) Act 1992 (XXI of 1992).

[9]Clause (f) substituted by the Antiquities (Amendment) Act 2012 (XII of 2012).

[10]Inserted ibid.

[11]Substituted ibid., for “Federal Government”.

[12]Substituted by the Antiquities (Amendment) Act 2012 (XII of 2012) for the words “Federal Government”.

[13]Substituted ibid.

[14]Ibid for the words “Federal Government”.

[15]Ibid.

[16]Substituted for the word “Director” by the Antiquities (Amendment) Act 1992 (XXI of 1992).

[17]Ibid.

[18]Substituted for the words “Federal Government” by the Antiquities (Amendment) Act 2012 (XII of 2012).

[19]Inserted by the Antiquities (Amendment) Ordinance 1978 (XLII of 1978).

[20]Substituted for the word “Director” by the Antiquities (Amendment) Act 1992 (XXI of 1992).

[21]Ibid.

[22]Ibid.

[23]Ibid.

[24]Substituted ibid.

[25]Substituted for the words “Federal Government” by the Antiquities (Amendment) Act 2012 (XII of 2012).

[26]Substituted for the word “Director” by the Antiquities (Amendment) Act 1992 (XXI of 1992).

[27]Ibid.

[28]Ibid.

[29]Substituted by the Antiquities (Amendment) Act 2012 (XII of 2012).

[30]Substituted for the word “Director” by the Antiquities (Amendment) Act 1992 (XXI of 1992).

[31]Substituted for the words “Federal Government” by the Antiquities (Amendment) Act 2012 (XII of 2012).

[32]Substituted for the word “Director” by the Antiquities (Amendment) Act 1992 (XXI of 1992).

[33]Substituted for the word “Director” by the Antiquities (Amendment) Act 1992 (XXI of 1992).

[34]Substituted for the words “Federal Government” by the Antiquities (Amendment) Act 2012 (XII of 2012).

[35]Substituted for the word “Director” by the Antiquities (Amendment) Act 1992 (XXI of 1992).

[36]Ibid.

[37]Substituted for the words “Federal Government” by the Antiquities (Amendment) Act 2012 (XII of 2012).

[38]Ibid.

[39]Ibid.

[40]Substituted for the words “Federal Government” by the Antiquities (Amendment) Act 2012 (XII of 2012).

[41]Ibid.

[42]Substituted for the word “Director” by the Antiquities (Amendment) Act 1992 (XXI of 1992).

[43]Ibid.

[44]Substituted for the words “Federal Government” by the Antiquities (Amendment) Act 2012 (XII of 2012).

[45]Substituted for the word “Director” by the Antiquities (Amendment) Act 1992 (XXI of 1992).

[46]Ibid.

[47]Ibid.

[48]Substituted for the words “Federal Government” by the Antiquities (Amendment) Act 2012 (XII of 2012).

[49]Substituted for the word “Director” by the Antiquities (Amendment) Act 1992 (XXI of 1992).

[50]Substituted for the words “Federal Government” by the Antiquities (Amendment) Act 2012 (XII of 2012).

[51]Substituted for the word “Director” by the Antiquities (Amendment) Act 1992 (XXI of 1992).

[52]Inserted ibid.

[53]Substituted for the words “Federal Government” by the Antiquities (Amendment) Act 2012 (XII of 2012).

[54]Substituted for the word “Director” by the Antiquities (Amendment) Act 1992 (XXI of 1992).

[55]Ibid.

[56]Substituted by the Antiquities (Amendment) Act 2012 (XII of 2012).

[57]The word “or” omitted by the Antiquities (Amendment) Act 1976 (VI of 1977); effective from 2nd August 1976.

[58]Clause (c) omitted ibid.

[59]Substituted for the words “Federal Government” by the Antiquities (Amendment) Act 2012 (XII of 2012).

[60]Ibid.

[61]Substituted for the words “Federal Government” by the Antiquities (Amendment) Act 2012 (XII of 2012).

[62]Ibid.

[63]Ibid.

[64]Ibid.

[65]Substituted for the word “Director” by the Antiquities (Amendment) Act 1992 (XXI of 1992).

[66]Substituted for the words “Federal Government” by the Antiquities (Amendment) Act 2012 (XII of 2012).

[67]Substituted for the words “Federal Government” by the Antiquities (Amendment) Act 2012 (XII of 2012).

[68]Substituted for the word “Director” by the Antiquities (Amendment) Act 1992 (XXI of 1992).

[69]Ibid.

[70]Substituted for the word “Director” by the Antiquities (Amendment) Act 1992 (XXI of 1992).

[71]Ibid.

[72]Ibid.

[73]Ibid.

[74]Ibid.

[75]Ibid.

[76]Substituted for the words “Federal Government” by the Antiquities (Amendment) Act 2012 (XII of 2012).

[77]Substituted for the word “Director” by the Antiquities (Amendment) Act 1992 (XXI of 1992).

[78]Ibid.

[79]Ibid.

[80]Ibid.

[81]Ibid.

[82]Substituted for the words “Federal Government” by the Antiquities (Amendment) Act 2012 (XII of 2012).

[83]Substituted for the word “Director” by the Antiquities (Amendment) Act 1992 (XXI of 1992).

[84]Substituted for the words “Federal Government” by the Antiquities (Amendment) Act 2012 (XII of 2012).

[85]Substituted ibid for the word “Pakistan”.

[86]Ibid.

[87]Ibid.

[88]Substituted for the word “Director” by the Antiquities (Amendment) Act 1992 (XXI of 1992).

[89]Substituted by the Antiquities (Amendment) Act 2012 (XII of 2012) for the words “Federal Government”.

[90]Ibid.

[91]Substituted for the word “Director” by the Antiquities (Amendment) Act 1992 (XXI of 1992).

[92]Ibid.

[93]Substituted for the words “Federal Government” by the Antiquities (Amendment) Act 2012 (XII of 2012).

[94]Substituted for the word “Director” by the Antiquities (Amendment) Act 1992 (XXI of 1992).

[95]Substituted for the words “Federal Government” by the Antiquities (Amendment) Act 2012 (XII of 2012).

[96]Substituted by the Antiquities (Amendment) Act 1992 (XXI of 1992).

[97]Substituted by the Antiquities (Amendment) Ordinance 1978 (XLII of 1978).

[98]Substituted for the word “Director” by the Antiquities (Amendment) Act 1992 (XXI of 1992).

[99]Substituted for the word “Director” by the Antiquities (Amendment) Act 1992 (XXI of 1992).

[100]Ibid.

[101]Ibid.

[102]Substituted for the words “Federal Government” by the Antiquities (Amendment) Act 2012 (XII of 2012).

[103]Substituted for the words “five hundred” by the Antiquities (Amendment) Act 1992 (XXI of 1992).

[104]Section 38 “Repeal” omitted by the Antiquities (Amendment) Act 2012 (XII of 2012).


 

THE MENTAL HEALTH ORDINANCE 2001

THE MENTAL HEALTH ORDINANCE 2001[PAKISTAN]

(VIII OF 2001)

C O N T E N T S

SECTION HEADING

CHAPTER-I

PRELIMINARY

1. Short title, extent and commencement

2. Definitions

CHAPTER-II

ESTABLISHMENT OF PUNJAB MENTAL HEALTH AUTHORITY

3. Punjab Mental Health Authority

4. Constitution of Board of Visitors

5. Powers and functions of the Board

6. Establishment of psychiatric facilities by the Government

CHAPTER-III

ASSESSMENT AND TREATMENT

7. Care in the Community

8. Care and Treatment on an informal or voluntary basis

9. Duration for periods of detention for assessment, treatment, urgent admission and emergency holding

10. Admission for assessment

11. Admission for treatment

12. Admission for assessment in cases of urgency

13. Emergency Holding

14. Emergency Powers

15. Application by whom to be presented

16. Effect of application for admission

17. General provisions as to applications and medical recommendations

18. Rectification of applications and recommendations

19. Mentally disordered persons found in public places

CHAPTER-IV

LEAVE AND DISCHARGE

20. Order of leave

21. Discharge of a patient

22. Application by a patient for discharge

23. Discharge of a detained person found not to be mentally disordered after assessment

24. Duty of hospital management to inform relatives of the discharge

25. Application for discharge to Magistrate

26. Notice about serious illness or death

27. Transfer and removal

28. Foreign nationals

CHAPTER-V

JUDICIAL PROCEEDINGS FOR APPOINTMENT OF GUARDIAN OF PERSON AND MANAGER OF THE PROPERTY OF THE MENTALLY DISORDERED

29. Judicial proceedings

30. Regulation of proceedings of the Court of Protection

31. Inquiry by subordinate Court on commission issued by the Court of Protection and proceedings thereon

32. Appointment of guardian

33. Management of property of mentally disordered person

34. Responsibility of manager

35. Allowance payable to guardian

36. Powers of manager of property of mentally disordered person

37. Furnishing of inventory of immovable property, etc

38. Inquiry by Court of Protection in certain cases

39. Disposal of business premises under the direction of Court of Protection

40. Investment of assets of mentally disordered person

41. Appointment of a new manager or guardian

42. Dissolution of partnership

43. Securities, etc., of mentally disordered person

44. Maintenance during temporary mental disorder

45. Inquiry by Court of Protection into cessation of mental disorder

46. Appeal to High Court

CHAPTER-VI

LIABILITY TO MEET COST OF MAINTENANCE OF MENTALLY DISORDERED PERSON ADMITTED IN A PSYCHIATRIC FACILITY

47. Liability to meet cost of maintenance of a patient admitted in a psychiatric facility

48. Maintenance out of pay, pension, etc

CHAPTER-VII

PROTECTION OF HUMAN RIGHTS OF MENTALLY DISORDERED PERSONS

49. Cases of attempted suicide

50. Confidentiality

51. Informed consent

CHAPTER-VIII

OFFENCES AND INDEMNITY

52. Penalty for making false statement, etc

53. Indemnity

CHAPTER-IX

INSPECTION OF MENTALLY DISORDERED PRISONERS

54. Inspection of mentally disordered prisoners

CHAPTER-X

FORENSIC PSYCHIATRIC SERVICES

55. Forensic psychiatric services

CHAPTER-XI

MISCELLANEOUS

56. Specialized Psychiatric Treatments

57. Provisions for public and private sector psychiatric facilities

58. Removal of difficulties

59. Power to make rules

60. Ordinance to override

61. Repeal and saving


[1]THE MENTAL HEALTH ORDINANCE 2001

(VIII OF 2001)

[20th February 2001]

An Ordinance to consolidate and amend the law relating to the mentally disordered persons with respect to their care and treatment, the management of their property and other related matters.

WHEREAS it is expedient to consolidate and amend the law relating to the treatment and care of mentally disordered persons, to make better provisions for their care, treatment, management of properties and affairs and to provide for matters connected therewith or incidental thereto and to encourage community care of such mentally disordered persons and further to provide for the promotion of mental health and prevention of mental disorder;

AND WHEREAS the National Assembly and the Senate stand suspended in pursuance of the Proclamation of Emergency of the fourteenth day of October, 1999, and the Provisional Constitution Order No. 1 of 1999;

AND WHEREAS the President is satisfied that circumstances exist which render it necessary to take immediate action;

NOW, THEREFORE, in pursuance of the Proclamation of Emergency of the fourteenth day of October, 1999, and the Provisional Constitution Order No. 1 of 1999, read with the Provisional Constitution (Amendment) Order No. 9 of 1999, and in exercise of all powers enabling him in that behalf, the President of the Republic of Pakistan is pleased to make and promulgate the following Ordinance:-

CHAPTER I

PRELIMINARY

1. Short title, extent and commencement.– (1) This Ordinance may be called the Mental Health Ordinance, 2001.

(2) It extends to the whole of [2][Punjab].

(3) It shall come into force with effect from the 20th day of February, 2001.

2. Definitions.– (1) In this Ordinance, unless there is anything repugnant in the subject or context, –

(a) “approved psychiatrist” means a medical practitioner possessing a recognized postgraduate qualification and registered with the Pakistan Medical and Dental Council and also approved by the Authority;

(b) “Authority” means the [3][Punjab Mental Health Authority] constituted under section 3;

(c) “cost of maintenance” in relation to a mentally disordered person, includes the cost of lodging, maintenance, clothing, medicine and care of a mentally disordered person and any expenditure incurred in removing such mentally disordered person to and from a psychiatric facility together with any other charges specified in this behalf by the Government;

(d) “Court of Protection” means a District Court having jurisdiction under this Ordinance in matters specified herein and designated as such by the Government;

(e) “Court” means a Court of Protection;

[4][(f) “Government” means Government of the Punjab;]

(g) “health facility” means any basic health unit, rural health centre, tehsil hospital, district hospital, teaching hospital and any private medical facility, supervised by a medical practitioner;

(h) “hospital management” means personnel operating and or managing any psychiatric facility or a health facility that has provision for indoor treatment for the mentally disordered;

(i) “informed consent” means voluntary and continuing permission of the patient or if the patient is a minor, his nearest relative or guardian, as the case may be, for assessment or to receive a particular treatment based on an adequate knowledge of the purpose, nature, likely effects, and risks of that treatment including the likelihood of its success and any alternatives to it and the cost of treatment;

(j) “Magistrate” means a Judicial Magistrate of the first class specially empowered by the Government to perform functions and exercise powers of a Magistrate under this Ordinance;

(k) “medical officer” means a medical graduate serving in a Government health facility and registered with the Pakistan Medical and Dental Council;

(l) “medical practitioner” means a medical graduate registered with the Pakistan Medical and Dental Council with good standing;

(m) “mental disorder” means mental illness, including mental impairment, severe personality disorder, severe mental impairment and any other disorder or disability of mind and “mentally disordered” shall be construed accordingly and as explained hereunder:

(i) “mental impairment” means a state of arrested or incomplete development of mind (not amounting to severe mental impairment) which includes significant impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned and “mentally impaired” shall be construed accordingly;

(ii) “severe personality disorder” means a persistent disorder or disability of mind (whether or not including significant impairment of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the person concerned;

(iii) “severe mental impairment” means a state of arrested or incomplete development of mind which includes severe impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned and “severely mentally impaired” shall be construed accordingly;

Explanation:- Nothing contained in clause (m), sub-clauses (i), (ii) and (iii) above shall be construed as implying that a person may be dealt with under this Ordinance as suffering from mental disorder or from any other form of such mental disorder defined in this section, by reason only of promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs;

(n) “mentally disordered prisoner” means a person, who is a prisoner for whose detention in or removal to a psychiatric facility or other place of safety, an order has been made in accordance with the provisions of section 466 or section 471 of the Code of Criminal Procedure, 1898 (Act V of 1898), section 30 of the Prisoners Act, 1900 (III of 1900), section 130 of the Pakistan Army Act, 1952 (XXXIX of 1952), section 143 of the Pakistan Air Force Act, 1953 (VI of 1953) or section 123 of the Pakistan Navy Ordinance, 1961 (XXXV of 1961);

(o) “minor” means a child or adolescent not having attained the age of eighteen years;

(p) “patient” means a person who is under treatment and care;

(q) “place of safety” means a Government run health facility, a psychiatric facility, or residence of any suitable relative who is willing to temporarily receive the patient;

(r) “prescribed” means prescribed by rules or regulations, as the case may be, made under this Ordinance;

(s) “psychiatric facility” means a hospital, institute, ward, clinic, nursing home, day-care institution, half-way house, whether in public or private sector involved in the care of mentally disordered persons;

(t) “psychiatrist” means a medical practitioner possessing a recognized postgraduate qualification in psychiatry and registered with the Pakistan Medical and Dental Council;

(u) “relative” means and includes any person related by blood or marriage or adoption under the personal law, with the mentally disordered person;

(v) “rules” means the rules made under this Ordinance;

(w) “specialized psychiatric treatments” means electro-convulsive treatment, anti-psychotic depot injection, psychosurgery, and such other form of treatment as may be specified for the purposes of this Ordinance; and

(x) “treatment of mentally disordered person” means the assessment and treatment of a mentally disordered person and shall include assessment, care, training, habilitation as well as rehabilitation techniques or measures, as the case may be.

CHAPTER II

ESTABLISHMENT OF [5][PUNJAB MENTAL HEALTH AUTHORITY]

3. [6][Punjab Mental Health Authority].– (1) For the purposes of this Ordinance, the [7][Government] shall constitute, by notification in the official Gazette, the [8][Punjab Mental Health Authority].

[9][(2) The Authority shall consist of a Chairperson and not more than ten members to be appointed by the Government.]

[10][(3) The members of the Authority shall be as follows:-

(i) Secretary to the Government, Health Department;

(ii) Chief Consultant Psychiatrist, Punjab Institute of Mental Health, Lahore; and

(iii) three eminent psychiatrists and two eminent psychologists of at least ten years’ standing.]

(4) The Chairperson and the members of the Authority, other than ex-officio members, shall be appointed on such terms and conditions as may be determined by the [11][Government].

(5) The Chairperson and the members of the Authority shall be appointed for a tenure of fours years. The Chairperson and a member may resign from his office in writing addressed to the [12][Government].

(6) The Chairperson or a member of the Authority may be removed from his office by the [13][Government], for reasons of misconduct, or if he is unable to perform functions of his office, on account of mental or physical incapacity or for any other reason.

(7) The Authority established under sub-section (1) shall carry out the following functions–

(a) advise the Government on all matters relating to promotion of mental health and prevention of mental disorder;

(b) develop and establish new national standards for care and treatment of patients;

(c) recommend measures to improve existing mental health services and setting up of child and adolescence, psychogeriatric, forensic, learning disability and community based services;

(d) prescribe procedures with respect to setting up and functioning of the mental health services and facilities;

(e) prescribe a code of practice to be implemented for achieving the purposes and objects of this Ordinance as well as to be followed by all the mental health personnel involved with the care of patients under this Ordinance;

(f) provide for regular review by the Board of Visitors to ensure that the provisions of this Ordinance for assessment and treatment are being properly carried out, whether or not requested by any individual, patient or his relative;

(g) prescribe for care, aftercare or rehabilitation, under supervision or otherwise;

(h) provide for and regulate the setting up of help lines and crisis centres for the general public with regard to mental health;

(i) provide for, organize and regulate public awareness programs and promote research, publish journals, bulletins, magazines, and other educational material on mental health issues;

(j) discharge such other functions with respect to matters relating to mental health as the Government may require;

(k) register psychiatrists for the purposes of this Ordinance, in such manner as may be prescribed; and

(l) arrange and organize such courses and training programs as may be necessary for carrying out the purposes and objects of this Ordinance.

(8) The Authority may, by notification in the official gazette, make regulations in respect of functions specified in subsection (7).

4. Constitution of Board of Visitors.– (1) The Authority shall, in consultation with the Government [14][* * *], establish Boards of Visitors for carrying out the purposes of this Ordinance as hereinafter provided.

(2) There shall be a Board of Visitors [15][* * *] which shall consist of:

(a) A Chairperson who is or has been a Judge of the High Court;

(b) two psychiatrists, one having a minimum experience of ten years in Government service;

(c) one prominent citizen of good standing;

(d) two medical practitioners of repute with a minimum standing of twelve years, one of whom shall be a nominee of Pakistan Medical and Dental Council; and

(e) Director General Health Services [16][* * *], or his nominee.

(3) The Chairperson and members of the Board shall be appointed for a tenure of two years.

(4) No member shall be deputed to perform any duty as a visitor to a psychiatric facility wherein he has a direct or indirect conflict of interest.

5. Powers and functions of the Board.– (1) The Board may, at any time, enter and inspect any psychiatric facility within its area of responsibility and require the production of any records and documents for inspection to ensure that they are in proper order.

(2) The Board shall periodically inspect every part of a psychiatric facility and examine as far as possible every patient and mentally disordered prisoner. The Board shall inspect records and documents relating to the patients and mentally disordered prisoners since last visitation by the Board.

(3) The Board may make recommendations to a psychiatric facility, the Authority and the Government, concerning improvement of conditions of such facility.

(4) The Authority may order the Board to visit any patient in case it appears necessary for the purpose of investigating any particular matter, or matters related to the capacity of the patient to manage his property and affairs, or otherwise, relating to the exercise of its functions. In compliance of this order, the Board may visit the facility or nominate a sub-committee of not less than two members:-

(a) the Board or the sub-committee, making a visit under this sub-section shall make such report on the visit as the Authority may order;

(b) the Board or the sub-committee, making a visit under this sub-section may interview and examine a patient in private and may require the production of and inspect any documents and/or medical records relating to the patient;

(c) where the sub-committee visits a facility it shall report to the Board and the Board shall make its final report to the Authority; and

(d) where the Board or a sub-committee is to visit a mentally disordered prisoner, it shall also include the Inspector General of Prisons, or his nominee.

(5) Where the Board is satisfied that any patient in a psychiatric facility is not receiving proper care or treatment, it may report the matter to the Authority which may issue such directions as it may deem fit to the medical practitioner, or psychiatrist in charge of the psychiatric facility, as the case may be, who shall be bound to comply with such directions.

(6) The Board shall enter remarks in a register to be kept for that purpose in regard to the management and condition of a psychiatric facility and the inmates therein.

(7) Any information obtained by any member of the Board in the course of his duties or which comes to the knowledge otherwise, shall not be disclosed except to the authorised person(s).

6. Establishment of psychiatric facilities by the Government.– [17][(1) The Government may establish or maintain psychiatric facilities for the assessment, admission, treatment, rehabilitation, care and after care of mentally disordered patients at such places, as it deems fit.]

(2) The psychiatric facilities established under sub-section (1) may organize or maintain separate units for –

(a) persons who are above the age of eighteen years;

(b) child and adolescence psychiatric units;

(c) psychogeriatric units for the elderly; and

(d) persons who have been convicted of any offence and are mentally disordered for whom special security measures shall be required.

(3) Where drug dependence units need to be established, they shall be set up separately which may be within the premises of the psychiatric facility for people who are not mentally disordered but have drug dependence or patients with drug induced behavioural changes.

CHAPTER III

ASSESSMENT AND TREATMENT

7. Care in the Community.– (1) Community based mental health services shall be set up for providing mentally disordered persons, their families and others involved in their care with guidance, education, rehabilitation, after care and preventive measures and other support services on an informal basis.

Explanation.– For the purposes of this section, community shall include, family, home, workplace, educational institutions and other places where care and after care can be provided on an informal or voluntary basis.

8. Care and Treatment on an informal or voluntary basis.– Any person who himself seeks or is brought by a relative or is referred by a medical practitioner or is referred by any authority for forensic psychiatric assessment, shall be examined by a psychiatrist or a medical officer nominated by him who shall record his findings in writing and decide that the patient be treated on an out-patient basis or otherwise. Any such person on withdrawal of his consent may be discharged in accordance with the provisions of this Ordinance.

9. Duration for periods of detention for assessment, treatment, urgent admission and emergency holding.– For the purposes of this Ordinance, there are four types of detention of a patient, namely; (1) admission for assessment, (2) admission for treatment, (3) urgent admission, and (4) emergency holding. The duration for each type of detention shall be as follows:-

(a) The period of detention for the purposes of assessment shall be up to 28 days from the date of application made under section 10;

(b) The period of detention for the purposes of treatment shall be up to six months from the date of application made under section 11, and is renewable under the provisions of the said section;

(c) The period of detention for the purposes of urgent admission shall be up to 72 hours from the time of application made under section 12; and

(d) The period of detention in the case of a patient for the purposes of emergency holding already in hospital, shall be up to 24 hours from the time of application made under section 13.

10. Admission for assessment.– (1) A patient may be admitted to a Psychiatric Facility and detained there for the period allowed by subsection (4) in pursuance of an application made in accordance with subsections (2) and (3).

(2) An application for admission for assessment may be made in respect of a patient on the grounds that –

(a) he is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a psychiatric facility for assessment (or for assessment followed by initial treatment) for at least a limited period; and

(b) he ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons; and

(c) specifying that care and treatment in the community and on an informal and voluntary basis is not possible.

(3) An application for admission for assessment shall be founded on the written recommendations in the prescribed form of two medical practitioners, one of whom should be a medical officer and one should be a psychiatrist, or where a psychiatrist is not available, a medical practitioner with experience in psychiatry, including in each case a statement that in the opinion of such medical practitioners the conditions set out in sub-section (2) above are complied with.

(4) A patient admitted to a psychiatric facility in pursuance of an application for admission for assessment may be detained for a period not exceeding 28 days beginning with the day on which application was made under this section, but shall not be detained after the expiration of that period unless before it has expired he has become liable to be detained by virtue of a subsequent application, order or direction under the provisions of this Ordinance.

(5) Where a psychiatrist deems it fit he may discharge the patient from detention and advise the patient to continue treatment on voluntary basis.

(6) The patient, his relative or guardian shall have the right of filing only one appeal against the order of detention under this section to a Court of Protection within a period of 14 days from the day on which the application was made. The decision of the Court of Protection shall be final for the period of detention under this section.

11. Admission for treatment.– (1) A patient may be admitted to a psychiatric facility and detained there for the period allowed by the following provisions, in pursuance of an application made in accordance with this section.

(2) An application for admission for treatment may be made in respect of a patient on the grounds that –

(a) he is suffering from mental illness, severe mental impairment, severe personality disorder or mental impairment and his mental disorder is of a nature or degree which makes it appropriate for him to receive medical treatment in a psychiatric facility; and

(b) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is admitted under this section.

(3) An application for admission for treatment shall be founded on the written recommendations, on the prescribed form of two medical officers, one of whom shall be an approved psychiatrist, including in each case a statement that in the opinion of such medical officers the conditions set out in sub-section (2) above are complied with; and each such recommendation shall include–

(a) such particulars as may be prescribed of the grounds for that opinion so far as it relates to the conditions set out in clause (a) of that sub-section; and

(b) a statement of the reason for that opinion so far as it relates to the conditions set out in clause (b) of that sub-section, specifying, whether other methods of dealing with the patient are available and, if so, why they are not appropriate.

(4) A patient admitted to a psychiatric facility in pursuance of an application under this section may be detained in a psychiatric facility, for a period not exceeding six months allowed by clause (b) of section 9 but shall not be so detained or kept for any longer period unless the authority for his detention is renewed under this section–

(a) the authority for detention of a patient may, unless the patient has previously been discharged, be renewed from the expiration of the period of six months referred to in sub-section above, for a further period of six months;

(b) from the expiration of any period of renewal under clause (a) above, for a further period of one year, if necessary and so on for periods of one year at a time.

(5) The patient, his relative or guardian may file an appeal against the order of detention under this section to a Court of Protection:

Provided that only one appeal shall lie during the subsistence of each period of detention.

12. Admission for assessment in cases of urgency.– In any case of urgent necessity, an application for admission for assessment may be made in respect of a patient in accordance with the following provisions –

(i) an urgent application may be made either by a relative of the patient or medical officer; and every such application shall include a statement that it is of urgent necessity for the patient to be admitted and detained under this section and that compliance with the provisions relating to an application for treatment, under section 11 would involve undesirable delay;

(ii) an urgent application shall be sufficient in the first instance if founded on the medical recommendation of an approved psychiatrist or his nominated medical officer and if practicable, the nominated medical officer shall not be the same medical officer referred to in sub-clause (i) above;

(iii) an urgent application shall cease to have effect after 72 hours from the time when the patient is admitted under this section to the psychiatric facility unless –

(a) the second medical recommendation required by section 11 above is given and received by the psychiatrist in-charge of the facility within the said period of 72 hours; and

(b) that such recommendation and the recommendation referred to in sub-clause (ii) above together comply with all the requirements as contained in section 17.

13. Emergency Holding.– If in the case of a patient who is receiving treatment for mental disorder as an inpatient in a psychiatric facility who wishes or attempts to leave and it appears to a medical officer –

(i) that the patient is suffering from mental disorder to such a degree that it is necessary for his health or safety or for the protection of others, for him to be prevented from leaving the facility, and

(ii) that it is not practicable to secure the immediate attendance of the psychiatrist in charge or his nominated medical officer for the purpose of furnishing a medical recommendation,

the medical officer shall record that fact in writing and in that event the patient may be detained in the hospital for a period of 24 hours from the time when the fact is so recorded or until the earlier arrival of the psychiatrist in charge or his nominated medical officer.

14. Emergency Powers.– Where in case of an emergency a medical practitioner is unable to obtain informed consent in writing, he may administer treatment, notwithstanding the provisions of section 51, that in his professional opinion, is necessary for:-

(i) saving the patient’s life; or

(ii) preventing serious deterioration of his condition; or

(iii) alleviating serious suffering by the patient; or

(iv) preventing the patient from behaving violently or being a danger to himself or to others.

15. Application by whom to be presented.– (1) Subject to the provisions of subsection (3), the application on a prescribed form shall be presented by the husband or wife of the patient or, if there is no husband or wife or the husband or wife is prevented by reason of mental disorder, absence from Pakistan or otherwise from making the presentation, by the nearest relative of the patient.

(2) If the application is not presented by the husband or wife, or, where there is no husband or wife, by the nearest relative of the patient, the application shall contain a statement of the reasons why it is not so presented, by the husband, wife or the nearest relative and of the connection of the applicant with the patient, and the circumstances under which he presents the application.

(3) No person shall present an application unless he has attained the age of majority and has within fourteen days before the presentation of the application, personally seen the said patient.

(4) The application shall be signed and verified by the applicant, and the statement of prescribed particulars by the person making such statement.

16. Effect of application for admission.– (1) An application for the admission of a patient to a psychiatric facility under this Ordinance, duly completed in accordance with the section under which he is being admitted, shall be sufficient authority for the applicant or any person authorized by the applicant, to take the patient and convey him to a psychiatric facility at any time within the following periods, that is to say–

(a) in the case of an application made other than an emergency application within the period of 14 days beginning with the date from which the patient was last examined by an approved Psychiatrist or medical officer, as the case may be, before giving a medical recommendation for the purposes of the application;

(b) in the case of an emergency application, under section 12, the period of 24 hours beginning at the time when the patient was examined by an approved psychiatrist or his nominated medical officer giving the medical recommendation which is referred to in section 11 above, or at the time when the application is made, whichever is the earlier.

(2) Where a patient is admitted within the said period to a psychiatric facility as mentioned in sub-section (1), on an application made under sections10, 11 or 12, as the case may be, the application shall be sufficient authority for the hospital management to detain the patient in the said facility in accordance with the provisions of this Ordinance.

(3) Any application for the admission of a patient under sections 10, 11 or 12, as the case may be, and which appears to be duly made and is founded on the necessary medical recommendations, may be acted upon without further proof of the signature or qualification of the person by whom the application or any such medical recommendation is made or given or of any matter of fact or opinion stated therein.

(4) Once a patient is admitted to a psychiatric facility in pursuance of an application for admission for treatment, any previous application under this Ordinance by virtue of which he was detained in a psychiatric facility shall cease to have effect.

17. General provisions as to applications and medical recommendations.– (1) General provisions as to applications:-

(a) subject to provisions of this section, an application for admission for assessment or for treatment may be made either by the nearest relative of the patient, by an approved psychiatrist or nominated medical officer; and every such application shall specify the qualification of the applicant to make such an application;

(b) every application for admission shall be addressed to the hospital management to which admission is sought;

(c) before or within a reasonable time after an application for the admission of a patient for assessment is made by an approved psychiatrist or a nominated medical officer, as the case may be, he shall take such steps as are practicable to inform the person (if any) appearing to be the nearest relative of the patient, that the application is to be or has been made;

(d) none of the applications mentioned in sub-section (1) above shall be made by any person in respect of a patient unless that person has personally seen the patient within the period of 14 days ending with the date of application;

(e) any recommendation given for the purposes of an application for admission for treatment, may describe the patient as suffering from more than one form of mental disorder, namely, severe mental impairment, severe personality disorder, mental impairment, or any other disorder or disability of mind:

Provided that the application shall be of no effect unless the patient is described in each of the recommendations as suffering from the same form of mental disorder whether or not he is also described in either of those recommendations as suffering from another form.

(f) each of the applications mentioned in subsection (1) above shall be sufficient if the recommendations on which it is founded are given either as separate recommendations, or as a joint recommendation signed by the medical officer and a psychiatrist.

(2) General provisions as to medical recommendations:-

(a) where recommendations are required for the purposes of an application under this Ordinance, they shall be signed on or before the date of the application, and shall be given by a medical officer or an approved psychiatrist who have examined the patient either together or separately, but where they have examined the patient separately not more than five days must have elapsed between the days on which those separate examinations took place;

(b) of the medical recommendations given for the purposes of any application as referred under clause (a) above, one shall be given by an approved psychiatrist and unless that psychiatrist has previous acquaintance with the patient, the other such recommendation shall, if practicable, be given by a medical officer who has such previous acquaintance.

18. Rectification of applications and recommendations.– (1) If within the period of 14 days beginning with the day on which application was made in respect of the patient to be admitted to a psychiatric facility for assessment or for treatment the application or any medical recommendation given for the purposes of the application, is found to in any respect incorrect or defective, the recommendation or application may, within that period and with the consent of the management of the psychiatric facility, be amended by the person by whom it was signed; and upon such amendment being made the application or recommendation shall have effect and shall be deemed to have had effect as if it had been originally made as so amended.

(2) Without prejudice to sub-section (1) above, if within the period mentioned in that sub-section it appears to the management of the psychiatric facility that one of the two medical recommendations on which the application for admission of a patient is founded is insufficient to warrant the detention of the patient in pursuance of the application, they may, within that period, give notice in writing to that effect to the applicant; and where any such notice is given in respect of a medical recommendation, that recommendation shall be disregarded, but the application shall be, deemed always to have been, sufficient if –

(a) a fresh recommendation complying with the relevant provisions of this Ordinance (other than the provisions relating to the time of signature and the interval between examinations) is furnished to the hospital management within that period; and

(b) the fresh recommendation, and the other recommendation given earlier on which the application is founded, together comply with those provisions.

(3) Where the medical recommendations upon which an application for admission is founded are, taken together, insufficient to warrant the detention of the patient in pursuance of the application, notice under subsection (2) above may be given in respect of either of those recommendations; but this subsection shall not apply in a case where the application is of no effect by virtue of clause (e) of sub-section (1) of section 17 above.

(4) Nothing in this section shall be construed as authorizing the giving of notice in respect of an application made as an emergency application, or the detention of a patient admitted in pursuance of such an application after the period of 72 hours referred to in clause (iii) of section 12 above unless the conditions set out in clauses (a) and (b) of that section are complied with or would be complied with apart from any error or defect to which this applies.

19. Mentally disordered persons found in public places.– (1) If an officer in charge of a police station finds in a place to which the public have access, a person whom he has reason to believe, is suffering from a mental disorder and to be in immediate need of care or control the said officer may, if he thinks it necessary to do so in the interest of that person or for the protection of other persons, remove that person to a place of safety, which means only a Government run health facility, a government run psychiatric facility, or hand him over to any suitable relative who is willing to temporarily receive the patient.

(2) A person removed to a place of safety under this section may be detained there for a period not exceeding 72 hours for the purpose of enabling him to be examined by a psychiatrist or his nominated medical officer and for making any necessary arrangements for his treatment or care.

CHAPTER IV

LEAVE AND DISCHARGE

20. Order of leave.– (1) An application in the prescribed form, for leave of absence in regard to any mentally disordered person (not being a mentally disordered prisoner) who is formally admitted in any psychiatric facility may be made to the psychiatrist in charge of the facility, by a relative who is desirous of taking care and custody of such mentally disordered person for a specified period, requesting that he may be allowed on his application to take care and custody of such a patient and subject to the assessment by a psychiatrist, in charge of the said facility, who may allow or deny the said application:

Provided that no application under this sub-section shall be made by a person who has not attained the age of majority.

(2) Every application under sub-section (1) shall be accompanied by an undertaking-

(a) to take proper care of the mentally ill patient;

(b) to prevent the mentally ill patient from causing injury to himself or to others; and

(c) to bring back the mentally ill patient to the said facility on the expiry of the period of leave.

(3) On receipt of the application under sub-section (1), the psychiatrist in charge may grant leave of absence to the mentally ill person for such period as he may deem necessary and subject to such conditions as may, in the interests of the personal safety of the mentally ill patient or for the protection of others, be specified in the order.

(4) In case a patient is not returned by the relative after a specified period of leave, the said psychiatrist shall report to the magistrate, in whose jurisdiction the psychiatric facility is situated, and the referring authority and the Magistrate if satisfied, may direct the police to recover and return the said patient to the psychiatric facility.

(5) In any case where a patient is absent from a psychiatric facility in pursuance of order of leave granted under this section and it appears to the psychiatrist that is it necessary to do so in the interest of the patients’ safety or for the protection of other persons, he may by notice in writing given to the patient or to the person for the time being in-charge of the patient, revoke the leave of absence and recall the patient to the psychiatric facility.

(6) If after the passage of reasonable time after the notice as given under sub-section (5) above, the patient does not return or is not returned, then the psychiatrist may report to the Magistrate and the referring authority of the reasons of revoking the leave of absence.

(7) If the Magistrate is satisfied with the report of the psychiatrist and the reasons as mentioned in this section, he may direct the police to locate and produce the patient before him on a specified date and the Magistrate after hearing the patient, the person in charge and the concerned psychiatrist or their representatives, may make an order placing the patient in the psychiatric facility or allow him to continue being in the care and custody of the person in charge or may make such other orders as he may deem fit.

(8) Without prejudice to what has been stated above in this section, the period of detention under provisions of section 10 or 11 shall continue during the period for which order of leave was granted:

Provided that a patient in whose favour order of leave has been granted under this section shall not be recalled, after he has ceased to be liable to be detained for the periods specified under section 10 or 11, unless he is absent, at the expiration of period specified under the above referred sections, without leave from the psychiatric facility.

21. Discharge of a patient.– (1) The psychiatrist in-charge of the treatment of a patient, may by order in writing, direct discharge of the patient at any time he deems it appropriate.

(2) Where any order of discharge is made under sub-section (1), in respect of a person who has been admitted or is undergoing treatment as a patient in pursuance of an order of a referring authority, a copy of such order shall be immediately forwarded to that authority by the psychiatrist in charge.

(3) Any person admitted in a psychiatric facility under an order made in pursuance of an application made under this Ordinance, may be discharged on an application made to the psychiatrist in charge:

Provided that no patient shall be discharged under this section if the psychiatrist in charge certifies in writing that the patient is unfit to be discharged for reasons of his own health and safety or the safety of others.

22. Application by a patient for discharge.– (1) Any patient, not being a mentally disordered prisoner, who feels that he has recovered from his mental disorder, may make an application to the Magistrate for his discharge from the psychiatric facility.

(2) The Magistrate may after making such inquiry as he may deem fit, pass an order discharging the person or dismiss the application:

Provided that no subsequent application for discharge shall be made by the patient during the said period of detention.

23. Discharge of a detained person found not to be mentally disordered after assessment.– If any person admitted in a psychiatric facility is subsequently found not to be mentally disordered and is capable of taking care of himself and managing his affairs, an approved psychiatrist, of the said facility shall forthwith, discharge such person from the psychiatric facility and notify the fact to the referring authority and the nearest relative.

24. Duty of hospital management to inform relatives of the discharge.– Where a patient detained under this Ordinance in a psychiatric facility is to be discharged, the management of the psychiatric facility shall take such steps as are practicable to inform the relative (if any), of the patient and or the applicant (if any), and or any suitable person who is willing to accept the responsibility to take care and custody of the said patient; and that information shall, if practicable, be given at least seven days before the date of discharge.

25. Application for discharge to Magistrate.– Where any patient is admitted under section 10 or 11, his relatives may apply to the Magistrate within the local limits of whose jurisdiction the psychiatric facility is situated for his discharge and the Magistrate may, in consultation with psychiatrist in charge of the treatment, after giving notice to the person at whose instance he was admitted and after making such inquiry as he may deem fit, either allow or dismiss the application:

Provided that no subsequent application for discharge shall be made during the said period of detention.

26. Notice about serious illness or death.– If a patient becomes seriously ill or dies, that fact shall be notified to his nearest relatives, if known or on whose application the patient was admitted and also to the authority by whom the patient was referred to the psychiatric facility.

27. Transfer and removal.– Transfer and removal of patient placed in a psychiatric facility to another such facility in [18][any other Province or territory of Pakistan] shall be carried out in accordance with any general or special order of the [19][Government with the consent of the Government of that Province or territory], provided that a notice of such intended transfer or removal has been given to the applicant.

28. Foreign nationals.– (1) When an arrangement has been made with any foreign state with respect to the placement of a patient, the Federal Government may issue a notification under this Ordinance directing the [20][Government for such placement of the patient].

(2) On publication of a notification under sub-section (1), the agent of the foreign state in which the alleged mentally disordered person ordinarily resides may make an application for an order to the [21][Government].

(3) The functions of the Magistrate shall be performed by such officer as the [22][* *] Government may by general or special order appoint in this behalf, and such officer shall be deemed to be the Magistrate having jurisdiction over the alleged mentally disordered person for the purposes of this section.

(4) The [23][* *] Government may specify approved psychiatrists for the purposes of this section.

CHAPTER V

JUDICIAL PROCEEDINGS FOR APPOINTMENT OF GUARDIAN OF PERSON AND MANAGER OF THE PROPERTY OF THE MENTALLY DISORDERED

29. Judicial proceedings.– Whenever any person is possessed of property and is alleged to be mentally disordered, the Court of Protection, within whose jurisdiction such person is residing may, upon application by any of his relatives having obtained consent in writing of the [24][Advocate General Punjab], by order direct an inquiry for the purpose of ascertaining whether such person is mentally disordered and incapable of managing himself, his property and his affairs.

30. Regulation of proceedings of the Court of Protection.– (1) The following provisions shall regulate the proceedings of the Court of Protection with regard to the matter to which they relate, namely:-

(a) notice shall be given to the mentally disordered person of the time and place at which it is proposed to hold the inquiry;

(b) if it appears that personal service on the alleged mentally disordered person would be ineffectual, the Court may direct such substituted service of notice as it thinks fit;

(c) the Court may also direct copy of such notice to be served upon any relative of the alleged mentally disordered person and upon any other person to whom in the opinion of the Court notice of the application should be given;

(d) the Court may require the alleged mentally disordered person to attend, at such convenient time and place as it may appoint for the purpose of being personally examined by the Court, or to any person from whom the Court may desire to have a report of the mental capacity and condition of such mentally disordered person;

(e) the Court may likewise make an order authorising any person or persons therein named to have access to the alleged mentally disordered person for the purpose of personal examination; and

(f) the attendance and examination of the alleged mentally disordered person under the provisions of clause (d) and clause (e) shall, if the alleged mentally disordered person be a woman who, according to customs of the country, ought not to be compelled to appear in public, be regulated by the law and practice for the examination of such persons in other civil cases.

(2) The Court, if it thinks fit, may appoint two or more persons to act as assessors to the Court in the said proceedings.

(3) Upon the completion of the inquiry, the Court shall determine whether the alleged mentally disordered person is suffering from mental disorder and is incapable of managing himself and his affairs, or may come to a special finding that such person lacks the capacity to manage his affairs, but is capable of managing himself and is not dangerous to himself or to others, or may make any such order it deems fit, in the circumstances of the case, in the best interests of such person.

31. Inquiry by subordinate Court on commission issued by the Court of Protection and proceedings thereon.– (1) If the alleged mentally disordered person resides at a distance of more than fifty miles from the place where the Court is held to which the application is made, the said Court may issue a Commission to any subordinate court to make the inquiry, and such subordinate court shall thereupon conduct the inquiry in the manner hereinbefore provided.

(2) On the completion of inquiry the subordinate court shall transmit the record of its proceedings with the opinion of the assessor, if any have been appointed, and its own opinion on the case; and the Court shall thereupon proceed to dispose of the application in the manner provided in sub-section (3) of section 30:

Provided that the Court may direct the subordinate court to make such further or other inquiry as it thinks fit before disposing of the application.

32. Appointment of guardian.– Where a mentally disordered person is incapable of taking care of himself, the Court may appoint any suitable person to be his guardian, or order him to be looked after in a psychiatric facility and order for his maintenance.

33. Management of property of mentally disordered person.– (1) Where the property of the mentally disordered person who is incapable of managing it, the Court shall appoint any suitable person to be the manager of such property.

(2) No person, who is a legal heir of a mentally disordered person, shall be appointed under section 32 to be the guardian of such a person or the manager of his property, as the case may be, unless the Court for reasons to be recorded in writing considers that such appointment is for the benefit of the mentally disordered person.

(3) The guardian of a mentally disordered person and the manager of his property appointed under this Ordinance shall be paid, from out of the property of the mentally disordered person, such allowance as the Court may determine.

34. Responsibility of manager.– A person appointed as a manager of the property of a, under this Ordinance, shall be responsible for the care, cost of treatment and maintenance of the mentally disordered person and of such member(s) of his family as are dependent on him.

35. Allowance payable to guardian.– The manager of the property of the patient shall pay to the guardian of the patient such allowances as may be fixed by the Court for the care and maintenance of the patient and of such members of his family as are dependent on him.

36. Powers of manager of property of mentally disordered person.– (1) Every manager appointed under this Ordinance shall, subject to the provisions of this Ordinance, exercise the same power in regard to the management of the property of the mentally disordered person in respect of which he is appointed as manager, as the mentally disordered person would have exercised as owner of the property, had he not been mentally disordered and shall realize all claims due to the estate of the mentally disordered person and pay all debts and discharge all liabilities legally due from that estate and in exercise of powers under this section regard shall be had first of all to the requirements of the mentally disordered person and the rights of the creditors, if any:-

Provided that no manager so appointed shall without the permission of the Court –

(a) mortgage, create any charge on, or transfer by sale, gift, exchange or otherwise, any movable or immovable property of the mentally disordered person; or

(b) lease out or give on bailment any such property.

(2) The permission under proviso to sub-section (1) may be granted subject to such conditions or restrictions as the Court may think fit to impose.

(3) The Court shall cause notice of every application for permission to be served on any relative or friend of the mentally disordered person and after considering objections, if any, received from the relatives or friends and after making such inquiries as it may deem necessary, grant or refuse permission having regards to the interest of the mentally disordered person.

37. Furnishing of inventory of immovable property, etc.– (1) Every manager appointed under this Ordinance shall, within a period of three months from the date of his appointment, deliver to the Court an inventory of the immovable property belonging to the mentally disordered person and of all assets and other movable property received on behalf of the mentally disordered person, together with a statement of all claims due on and all debts and liabilities due by such a person.

(2) All transactions under this Ordinance shall be made through a bank authorized by the Court.

(3) Every such manager shall also furnish to the Court within a period of three months of the closure of every financial year, an account of the property and assets in his charge, the sums received and disbursed on account of the mentally disordered person and the balance remaining with him.

(4) If any relative of a mentally disordered person impugns, by a petition to the Court, the accuracy of the inventory or statement referred to in sub-section (1) or, as the case may be, any annual account referred to in sub-section (3), the Court may summon the manager and summarily inquire into the matter and make such order thereon as it thinks fit.

(5) Any relative of a mentally disordered person may, with the leave of the Court, sue for an account from any manager appointed under this Ordinance or from any such person after his removal from office or trust, or from his legal representatives in the case of his death, in respect of any property then or formerly under his management or of any sums of money or other property received by him on account of such property.

38. Inquiry by Court of Protection in certain cases.– Where a mentally disordered person had, before the onset of his mental disorder, contracted to sell or otherwise disposed of his property or any portion thereof, the Court may, after conducting an inquiry, direct the manager appointed under this Ordinance to perform such contract and to do such other acts in fulfillment of the contract as the Court considers necessary and thereupon the manager shall be bound to act accordingly.

39. Disposal of business premises under the direction of Court of Protection.– Where a mentally disordered person had been engaged in business before he became mentally disordered, the Court may, if it appears to be in the best interest of such a person, after proper hearing notices have been issued to dependants, relatives for hearing to dispose of his business premises, direct the manager appointed under this Ordinance in relation to property of such person to sell and dispose of such premises and to apply the sale proceeds thereof in such manner as the Court may direct and thereupon the manager shall be bound to act accordingly.

40. Investment of assets of mentally disordered person.– All sums received by a manager on account of any estate in excess of what may be required for the current expenses of a mentally disordered person or for the management of his property, shall be paid into the public treasury on account of the estate, and shall be invested, from time to time, through state owned investment agencies, in the interest of the mentally disordered person.

41. Appointment of a new manager or guardian.– (1) The manager of the property of a mentally disordered person may resign with the permission of the Court, or for sufficient cause and for reasons to be recorded in writing, be removed by the Court and such Court may appoint a new manager in his place.

(2) Any manager removed under sub-section (1) shall be bound to deliver the charge of all property of such a person to the new manager, and to account for all monies received or disbursed by him.

(3) The guardian of the person of a mentally disordered person may resign with the permission of the Court, or for sufficient cause and for reasons to be recorded in writing, be removed by the Court and such Court may appoint a new guardian in his place.

42. Dissolution of partnership.– (1) Where a person, being a member of a partnership firm, is found to be mentally disordered, the Court may, on the application of any other partner, order for the dissolution of the partnership or on the application of any person who appears to that Court to be entitled to seek such dissolution dissolve the partnership in accordance with the provisions of the Partnership Act, 1932 (IX of 1932).

(2) Upon dissolution a partnership firm to which sub-section (1) applies, the manager appointed under this Ordinance may, in the name and on behalf of the mentally disordered person, join with the other partners in disposing of the partnership property upon such terms, and shall do all such acts for carrying into effect the dissolution of the partnership as the Court may direct.

(3) Notwithstanding anything detained in the foregoing provisions, the Court may, instead of appointing a manager of the estate, order that in the case of cash, or in the case of any other property, the produce thereof, shall be realized and paid or delivered to such person as may be appointed by the Court in this behalf, to be applied for the maintenance of the mentally disordered person and of such members of his family as are dependent on him.

43. Securities, etc., of mentally disordered person.– (1) Where any stock or Government securities or any share in a company are standing in the name of, or vested in, a mentally disordered person beneficially entitled thereto, or in the manager dies in the estate or himself becomes mentally disordered, or is out of the jurisdiction of the Court, or it is uncertain whether the manager is living or dead, or neglects or refuses to transfer the stock, securities or shares, or to receive and pay over thereof the dividends to a new manager appointed in his place, within fourteen days after being required by the Court to do so, then the Court may direct the company or [25][the Government] to make such transfer, or to transfer the same, and to receive and pay over the dividends in such manner as it may direct.

(2) The Court may direct those dividends, the profit of shares, stock and Government securities shall be deposited in the mentally disordered person’s bank account.

(3) Where any stock or Government securities or shares in a company is or are standing in the name of, or vested in, any person residing out of Pakistan, the Court upon being satisfied that such person has been declared to be mentally disordered and that his personal estate has been vested in a person appointed for the management thereof, according to the law of the place where he is residing may direct the company or [26][the Government] to make transfer of such stock, securities or shares or of any part thereof, to or into the name of the person so appointed or otherwise, and also to receive and pay over the dividends and proceeds, as the Court thinks fit.

44. Maintenance during temporary mental disorder.– If it appears to the Court that the mental illness of a mentally disordered person is in its nature temporary and that it is expedient to make provision for a temporary period, for his maintenance or for the maintenance of such members of his family as are dependent on him, the Court may direct his property or a sufficient part thereof to be applied for the purpose specified therein.

45. Inquiry by Court of Protection into cessation of mental disorder.– (1) Where the Court has reason to believe that any person who was found to be mentally disordered has ceased to be mentally disordered, it may direct any court subordinate to it to inquire whether such person has ceased to be mentally disordered.

(2) An inquiry under sub-section (1) shall, so far as may be, be conducted under this Ordinance.

(3) If after an inquiry under this section, it is found that the mental disorder of a person has ceased, the Court shall order all actions taken in respect of such person under this Ordinance to be set aside on such terms and conditions as that Court thinks fit to impose.

(4) Without prejudice to the generality of the powers given above, the court shall have powers to make such orders and give such directions as the Court thinks fit, for the betterment of such a person.

46. Appeal to High Court.– An appeal shall lie to the High Court from an order made by a Court of Protection under this Chapter, within a period of sixty days from the date of order of the said Court.

CHAPTER VI

LIABILITY TO MEET COST OF MAINTENANCE OF MENTALLY DISORDERED PERSON ADMITTED IN A PSYCHIATRIC FACILITY

47. Liability to meet cost of maintenance of a patient admitted in a psychiatric facility.– (1) The cost of maintenance of a patient admitted in a Government owned psychiatric facility shall be borne by the Government:

Provided that–

(a) the authority which made the order has not taken an undertaking from any person to bear the cost of maintenance of such a person; and

(b) there is no provision for bearing the cost of maintenance of such person by the Court of Protection under this Ordinance.

(2) Person holding public office or a public servant who is paid by the Government and is mentally disordered shall continue to receive benefit as per entitlement even after he retires voluntarily or on attainment of the age of superannuation or on the basis of medical invalidation.

(3) In case of defence personnel, the paymaster of the military circle within which any psychiatric facility is situated shall pay to the officer in charge of such facility the cost of maintenance of such a mentally disordered person received and detained therein under this Ordinance.

(4) Where any such person admitted in a psychiatric facility has an estate or where any person legally bound to maintain such person has the means to maintain such person, the Government or local authority liable to bear the cost of maintenance of such a person under any law, for the time being in force, may make an application to the Court within whose jurisdiction the estate of such a person is situated or the person legally bound to maintain the said person and having the means therefore resides, for an order authorizing it to apply his estate towards the cost of maintenance or directing the legally bound person to bear the cost of maintenance.

(5) Nothing contained in the foregoing provisions shall be deemed to absolve a person legally bound to maintain a mentally disordered person from maintaining such a person.

48. Maintenance out of pay, pension, etc.– (1) Where any sum is payable in respect of pay, pension, gratuity or any allowance to any person by the Government and the person to whom the sum is payable if certified by a Magistrate under this Ordinance to be a mentally disordered person, the officer under whose authority such sum would be payable, may pay to the person having charge of the mentally disordered person so much of the said sum, as he thinks fit, having regard to the cost of maintenance of such person and may pay to such members of the family of the mentally disordered person as are dependent on him for maintenance, the surplus, if any, or such part thereof, as he thinks fit, having regard to the expenses of maintenance of such member.

(2) Where there is any further surplus amount available out of the funds specified in sub-section (1) after making payments as provided in that subsection, the Government shall hold the same to be dealt with as follows, namely:-

(a) where a mentally disordered person is certified to have ceased to be mentally disordered by the Court of Protection within the local limits of whose jurisdiction such person resides or is admitted, the whole of the surplus amount shall be paid back to that person;

(b) where a mentally disordered person dies before payment, the whole of the surplus amount shall be paid over to those of his heirs who are legally entitled to receive the same; and

(c) where a mentally disordered person dies during his mental disorder without leaving any person legally entitled to succeed to his estate, the whole of the surplus amount shall be paid into the State Treasury.

CHAPTER VII

PROTECTION OF HUMAN RIGHTS OF MENTALLY DISORDERED PERSONS

49. Cases of attempted suicide.– A person who attempts suicide shall be assessed by an approved psychiatrist and if found to be suffering from a mental disorder shall be treated appropriately under the provisions of this Ordinance.

50. Confidentiality.– No patient shall be publicized nor his identity disclosed to the public through press or media unless such person chooses to publicise his own condition.

51. Informed consent.– (1) Before commencing any investigation or treatment a psychiatrist or nominated medical officer shall obtain written informed consent, on a prescribed form, from the patient or if the patient is a minor, his nearest relative or a guardian, as the case may be.

(2) Where the consent of a patient to any form of investigation(s) and or treatment(s) has been given the patient or if the patient is a minor, his nearest relative or a guardian, as the case may be, may withdraw his consent in writing at any time before the completion of the treatment.

(3) Without prejudice to the application of sub-section (2) above to any treatment given under the plan of treatment to which a patient or if the patient is a minor, his nearest relative or a guardian, as the case may be, who has consented, to such a plan may, at any time withdraw his consent in writing to further treatment, or to further treatment of any description under the plan of treatment.

CHAPTER VIII

OFFENCES AND INDEMNITY

52. Penalty for making false statement, etc.– (1) Any person who willfully makes a false entry or statement in any application, recommendation, report, record or other document required or authorized to be made for any of the purposes of this Ordinance, with an intent to get someone to be detained for assessment or for treatment of mentally disordered; or with intent to deceive, makes use of any such entry or statement which he knows to be false, shall be guilty of an offence under this Ordinance.

(2) Any person employed in a psychiatric facility, who strikes, ill-treats, maltreat or willfully neglects any patient confined in such psychiatric facility or willfully violates or neglects any of the provisions of this Ordinance shall be guilty of an offence.

(3) Any manager of estate of a patient who willfully neglects or refuses to deliver his accounts or any property in his possession within the time fixed by the Court shall be guilty of an offence.

(4) Without prejudice to criminal prosecution under any other law for the time being in force, whoever is guilty of an offence under sub-section (1), (2) or (3), shall be punishable with imprisonment for a term which may extend to one year or with fine which may extend to twenty thousand rupees, or with both.

(5) Any person who carries out any form of inhumane treatment, on a mentally disordered person which includes: trepanning, branding, scalding, beating, exorcising, chaining to a tree etc. of any such person or subjecting a child to the cultural practice of rendering him mentally retarded, by inducing microcephaly, or subjecting any such person to physical, emotional or sexual abuse, shall be guilty of an offence, punishable with rigorous imprisonment which may extend to five years or with fine extending up to Rs.50,000 or with both.

(6) Any person who contravenes any of the provisions of this Ordinance or of any rule or regulation made thereunder, for the contravention of which no penalty is expressly provided in this Ordinance, shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both.

53. Indemnity.– (1) No suit, prosecution or other legal proceedings shall lie against any person for anything which is in good faith done or intended to be done in pursuance of this Ordinance or the rules made thereunder.

(2) No suit or other legal proceedings shall lie against the Government for any damage caused or likely to be caused for anything which is in good faith done or intended to be done in pursuance of this Ordinance or the rules or orders made thereunder.

CHAPTER IX

INSPECTION OF MENTALLY DISORDERED PRISONERS

54. Inspection of mentally disordered prisoners.– (1) Where any person is detained under the provisions of section 466 or section 471 of the Code of Criminal Procedure 1898 (Act V of 1898), section 130 of the Pakistan Army Act, 1952 (XXXIX of 1952), section 143 of the Pakistan Air Force Act, 1953 (VI of 1953), or section 123 of the Pakistan Navy Ordinance, 1961 (XXXV of 1961), the Inspector-General of Prisons, if the accused person is detained in a jail, and the Board of Visitors or any two members of such Board, if the accused person is detained in a psychiatric facility, may visit him in order to ascertain his state of mind and such a detainee shall be visited once at least in every six months by the Inspector-General of Prisons or, as the case may be, the Board or any two members of such Board, shall make a report as to the state of mind of such person to the authority under whose order the accused person is detained and the Inspector-General of Prisons or, as the case may be, the Board of Visitors or any two members of such Board, shall make a report as to the state of mind of such person to the authority under whose order the accused person is detained.

(2) The Government may empower the officer in charge of the jail in which such accused person is detained to discharge all or any of the functions of the Inspector General of Prisons under sub-section (1).

CHAPTER X

FORENSIC PSYCHIATRIC SERVICES

55. Forensic psychiatric services.– (1) Special security forensic psychiatric facilities shall be developed by the Government to house mentally disordered prisoners, mentally disordered offenders, as may be prescribed.

(2) Admission, transfer or removal of patients concerned with criminal proceedings in such facilities shall be under the administrative control of the Inspector General of Prisons.

(3) The Board of Visitors shall have an access to such persons admitted in forensic psychiatric facility in accordance with the provisions of this Ordinance.

CHAPTER XI

MISCELLANEOUS

56. Specialized Psychiatric Treatments.– (1) Specialized psychiatric treatment may be carried out with the informed consent of the patient, on the orders in writing by the psychiatrist in charge of the treatment of the patient or his relative or guardian, if the patient is a minor.

(2) All electro-convulsive treatments shall preferably be administered under general anesthesia.

(3) All electro-convulsive treatments shall be advised by a psychiatrist, in charge of the patient, recording the reasons for such advice and stating the reasons as to why the alternative available methods of treatment are not appropriate.

(4) Administration of long acting anti-psychotic depot injections shall only be carried out upon the advice of a psychiatrist for a period as specified in the prescription and such cases shall be reviewed periodically.

(5) No person shall advise and carry out psychosurgery or make any decision to carry out psychosurgery, except in cases where it is decided to be necessary and appropriate in a meeting in this regard, attended by a neurosurgeon, a neurophysician, a physician, two approved psychiatrists and a clinical psychologist.

57. Provisions for public and private sector psychiatric facilities.– The provisions of this Ordinance shall apply to all psychiatric facilities whether in public or private sector.

58. Removal of difficulties.– If any difficulty arises in giving effect to any of the provisions of this Ordinance, the [27][Government] may make such order, not inconsistent with the provisions of this Ordinance, as may appear to [28][it] to be necessary for the purpose of removing the difficulty:

Provided that no such power shall be exercised after the expiry of two years from the coming into force of this Ordinance.

59. Power to make rules.– [29][(1) The Government may, by notification in the official Gazette, make rules for carrying out the purposes of this Ordinance.]

(2) Without prejudice to the generality of the foregoing power, the rules may provide for all or any of the following matters, namely:-

(a) to prescribe forms for any proceedings under this Ordinance;

(b) to prescribe places of admission, places of safety and regulation of treatment of mentally disordered persons;

(c) to regulate the admission, care and treatment of under trial persons or convicted prisoners;

(d) to regulate the management of a mental health facility; and

(e) to prescribe conditions subject to which a psychiatric facility may be licensed.

60. Ordinance to override.– The provisions of this Ordinance shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.

61. Repeal and saving.– (1) The Lunacy Act, 1912 (IV of 1912), is hereby repealed.

(2) Notwithstanding the repeal of Lunacy Act, 1912 (IV of 1912), hereinafter referred to as the repealed Act,–

(a) all orders made, acts done and powers exercised under the repealed Act shall be deemed to have been validly made, done and exercised and deemed always to have had effect accordingly; and

(b) nothing contained in this Ordinance shall be deemed to apply to proceedings, suits or appeals and applications pending under the repealed Act before any court immediately before the commencement of this Ordinance and such proceedings, suits, appeals and applications shall continue to be heard and disposed of in accordance with the provisions of the repealed Act.


Foot Note

[1]Pursuant to the Proclamation of Emergency of the fourteenth day of October, 1999, and the Provisional Constitution Order No. 1 of 1999, read with the Provisional Constitution (Amendment) Order No. 9 of 1999, and in exercise of all powers enabling him in that behalf, the President of the Republic of Pakistan promulgate this Ordinance on 20 February 2001; and, was published in the Punjab Gazette (Extraordinary), Pt I, dated 20 February 2001, pages 115-48.

This Ordinance was originally in the Federal ambit, however, the subject on which this law was enacted, devolved to the provinces by virtue of 18th Amendment in the Constitution, hence it was adopted, with amendments, for the province of the Punjab by the Punjab Mental Health (Amendment) Act 2014 (XI of 2014).

[2]Substituted for the words “Pakistan” by the Punjab Mental Health (Amendment) Act 2014 (XI of 2014).

[3]Substituted for the words “Federal Mental Health Authority” by the Punjab Mental Health (Amendment) Act 2014 (XI of 2014).

[4]Substituted by the Punjab Mental Health (Amendment) Act 2014 (XI of 2014) for the following:-

“(f) “Government” means Government or, as the case may be, the Provincial Government;”.

[5]Substituted for the words “FEDERAL MENTAL HEALTH AUTHORITY” by the Punjab Mental Health (Amendment) Act 2014 (XI of 2014).

[6]Substituted for the words “Federal Mental Health Authority” by the Punjab Mental Health (Amendment) Act 2014 (XI of 2014).

[7]Substituted for the words “Federal Government” by the Punjab Mental Health (Amendment) Act 2014 (XI of 2014).

[8]Substituted for the words “Federal Mental Health Authority” by the Punjab Mental Health (Amendment) Act 2014 (XI of 2014).

[9]Substituted by the Punjab Mental Health (Amendment) Act 2014 (XI of 2014) for the following sub-section (2):-

“(2) The Authority shall consist of a Chairperson and not more than fourteen members to be appointed by the Federal Government.”

[10]Substituted by the Punjab Mental Health (Amendment) Act 2014 (XI of 2014) for the following sub-section (3):-

“(3) The members of the Authority shall be as follows:

(i) Secretary, Ministry of Health, Government of Pakistan;

(ii) Director General, Ministry of Health, Government of Pakistan;

(iii) Provincial Health Secretaries;

(iv) Advisor in Psychiatry, Medical Directorate, General Headquarters (GHQ); and

(v) Seven eminent psychiatrists of at least ten years good standing.”

[11]Substituted for the words “Federal Government” by the Punjab Mental Health (Amendment) Act 2014 (XI of 2014).

[12]Substituted for the words and commas “Secretary, Ministry of Health, Government of Pakistan” by the Punjab Mental Health (Amendment) Act 2014 (XI of 2014).

[13]Substituted for the words “Federal Government” by the Punjab Mental Health (Amendment) Act 2014 (XI of 2014).

[14]The word “concerned” omitted by the Punjab Mental Health (Amendment) Act 2014 (XI of 2014).

[15]The words “at the provincial level” omitted by the Punjab Mental Health (Amendment) Act 2014 (XI of 2014).

[16]The words “of the Province” omitted by the Punjab Mental Health (Amendment) Act 2014 (XI of 2014).

[17]Substituted by the Punjab Mental Health (Amendment) Act 2014 (XI of 2014) for the following sub-section (1):-

“(1) The Federal Government may in any part of Pakistan, or the Provincial Government may within the limits of a Province, establish or maintain psychiatric facilities for the assessment, admission, treatment, rehabilitation, care and after care of mentally disordered patients at such places, as it deems fit.”

[18]Substituted for the words “the same Province or some other Province” by the Punjab Mental Health (Amendment) Act 2014 (XI of 2014).

[19]Substituted for the words “Provincial Government with the consent of the other Provincial Government” by the Punjab Mental Health (Amendment) Act 2014 (XI of 2014).

[20]Substituted for the words “Provincial Government concerned within which such order may be made” by the Punjab Mental Health (Amendment) Act 2014 (XI of 2014).

[21]Substituted for the words “Provincial Government concerned” by the Punjab Mental Health (Amendment) Act 2014 (XI of 2014).

[22]The word “Provincial” omitted by the Punjab Mental Health (Amendment) Act 2014 (XI of 2014).

[23]The word “Provincial” omitted by the Punjab Mental Health (Amendment) Act 2014 (XI of 2014).

[24]Substituted for the words “Advocate General of the Province concerned” by the Punjab Mental Health (Amendment) Act 2014 (XI of 2014).

[25]Substituted for the words “government concerned” by the Punjab Mental Health (Amendment) Act 2014 (XI of 2014).

[26]Substituted for the words “Government concerned” by the Punjab Mental Health (Amendment) Act 2014 (XI of 2014).

[27]Substituted for the word “President” by the Punjab Mental Health (Amendment) Act 2014 (XI of 2014).

[28]Substituted for the word “him” by the Punjab Mental Health (Amendment) Act 2014 (XI of 2014).

[29]Substituted by the Punjab Mental Health (Amendment) Act 2014 (XI of 2014) for the following sub-section (1):-

“(1) The Federal Government may, in consultation with the Provincial Governments, by notification in the official Gazette, make rules for carrying out the purposes of this Ordinance.”

THE TRANSPLANTATION OF HUMAN ORGANS AND TISSUES ACT 2010

THE TRANSPLANTATION OF HUMAN ORGANS AND TISSUES ACT 2010 [Pakistan]

(Act VI of 2010)

C O N T E N T S

SECTION HEADING

1. Short title, extent and commencement.

2. Definitions.

3. Donation of organ or tissue by a living person.

4. Donation of human organs or tissues after death.

5. Evaluation Committee.

6. Transplantation to be carried out by the team of transplant surgeons and physicians, etc.

7. Effects etc., to the donor and the recipient.

8. Monitoring Authority.

9. Prohibition of removal or transplantation of human organs for any purpose other than therapeutic purpose.

10. Punishment for removal of human organ without authority.

11. Punishment for commercial dealings in human organ.

12. Punishment for contravention of any other provision of this Act.

13. Offences by companies.

14. Cognizance of offences.

15. Savings.

16. Protection of actions taken in good faith.

17. Power to make rules.

18. Removal of difficulties.


[1]THE TRANSPLANTATION OF HUMAN ORGANS AND TISSUES ACT 2010

(Act VI of 2010)

[18 March 2010]

An Act to provide for removal, storage and transplantation of human organs and tissues for therapeutic purposes.

WHEREAS it is expedient to provide for the regulation, removal, storage and transplantation of human organs and tissues for therapeutic purposes and for matters connected therewith or ancillary thereto;

It is hereby enacted as follows:-

1. Short title, extent and commencement.– (1) This Act may be called the Transplantation of Human Organs and Tissues Act, 2010.

(2) It extends to the whole of [2][the Punjab].

(3) It shall come into force at once.

2. Definitions.– In this Act, unless there is anything repugnant in the subject or context,–

(a) “brain dead” means irreversible loss of brain and brain-stem functions simultaneously;

(b) “death” means an irreversible cessation of the entire function of brainstem;

(c) “donor” means a person who donates any part of his body, organ, tissue or cell;

(d) “Evaluation Committee” means a committee appointed under section 5;

[3][(dd) “Government” means Government of the Punjab;]

(e) “human organ” mean any part of a human body, organ or tissue;

(f) “Monitoring Authority” means an authority constituted under section 8 to monitor the process of transplantation of human organs or tissues and matters relating thereto;

(g) “payment” means payment in money or money’s worth but does not include any payment for defraying or reimbursing,–

(i) the cost of removing, transporting or preserving the human organ to be supplied; or

(ii) any expenses or loss of earnings incurred by a person so far as reasonably and directly attributable to his supplying any organ from his body;

(h) “prescribed” means prescribed by rules made under this Act;

(i) “recognized institution” means a medical institution or hospital for practice of operative surgery in transplantation of human organs or tissues to be recognized by the Monitoring Authority;

(j) “recognized transplant surgeon or physician” means Surgeons or Physicians possessing appropriate qualifications, experience, and trained in the relevant field, to investigate, examine and carry out transplantation surgery of human organs or tissues; and

(k) “transplantation” means the grafting of any human organ or tissue of any living or deceased person to some other living person for therapeutic purposes.

3. Donation of organ or tissue by a living person.– (1) Notwithstanding anything contained in any other law for the time being in force, a living donor who is not less than eighteen years of age, may, during his lifetime, voluntarily donate any organ or tissue of his body to any other living person genetically and legally related, who is a close blood relative and the donation of organ or part or tissue by such person for therapeutic purpose shall be regulated in the manner as may be prescribed. In the case of regenerative tissue, i.e. stem cells, there is no restriction of age between siblings.

Explanation.– For the purpose of this section, the expression “close blood relative” means parent, son, daughter, sister, brother and includes spouse:

Provided that transplantation shall be voluntary, genuinely motivated and without any duress or coercion.

(2) In case of non-availability of a donor as explained under sub-section (1), the Evaluation Committee may allow donation by a non-close blood relative, after satisfying itself that such donation is voluntary.

4. Donation of human organs or tissues after death.– (l) Any person who is not less than eighteen years of age may before his death, in writing duly signed and verified by the respective Evaluation Committee, donate any of his organ or tissue for transplantation and for this purpose may authorize any medical institution or hospital duly recognized by the Monitoring Authority. The cases of unclaimed brain dead hospitalized patients shall be presented to an Evaluation Committee for transplantation after an intense search for their relatives within twenty-four hours.

(2) On the death of a donor referred to in sub-section (1), any close relative of the deceased shall inform the Evaluation Committee about the deceased and cause the removal of the human organ or tissue in accordance with the authorization.

(3) A donation under this section may be executed in such form and manner as may be prescribed and may be revoked at any time during the lifetime of the donor in the presence of two witnesses.

5. Evaluation Committee.– (l) As soon as may be after the commencement of this Act the [4][Government] may, by notification in the official Gazette, appoint as many Evaluation Committees as may be necessary which shall consist of a surgical specialist, a medical specialist, a transplant specialist, a nephrologist, and a neurophysician and an intensivist where available and two local notables having a good record of social service. The Evaluation Committee shall be established for every medical institution and hospital where at least twenty-five transplants are being carried out annually.

(2) The Evaluation Committee shall–

(a) ensure that no organ or tissue is retrieved from non-related living donors without the prior approval of the Evaluation Committee;

(b) determine brain death of a person;

(c) determine propriety of removal of a human organ from any living person using brain death protocol to be formulated; and

(d) determine fitness or otherwise for transplantation of a human organ into any other body.

6. Transplantation to be carried out by the team of transplant surgeons and physicians, etc.– (l) The transplantation of human organ or tissue or removal of any part of human organ for the purpose of transplantation shall only be carried out by the recognized professionals who shall, before the removal of any human organ from the body of the deceased, ensure that written certification has been obtained from the Evaluation Committee that death has occurred.

(2) For the purpose of sub-section (1) a person shall be deemed to be medically and legally dead at the time when in the opinion of the Evaluation Committee, based upon acceptable standard of medical practice, there is–

(a) an absence of natural respiratory and cardiac functions and attempt at resuscitation are not successful in restoring those functions; or

(b) an irreversible and permanent cessation of all brainstem functions and future attempt of resuscitation or continued supportive maintenance would not be successful in restoring such natural functions.

(3) On the commencement of this Act the [5][Government] shall on the recommendation of the Monitoring Authority, by notification in the official Gazette, publish the list of medical institutions and hospitals as recognized medical institutions and hospitals for practice of operative surgery in transplantation of human organs and tissues. The [6][Government] may revise the list from time to time.

(4) No hospital or medical institution shall carry out transplantation of human organs and tissues unless it is recognized as provided in sub-section (3).

7. Effects etc., to the donor and the recipient.– (1) No transplantation of a human organ and tissue from a donor other than defined in sub-section (1) of section 3 shall be carried out without prior permission of the appropriate Evaluation Committee and only at such medical institutions and hospitals which have been notified under sub-section (3) of section 6; provided that such donation by Pakistani citizens shall not be permissible to citizens of other countries.

(2) No human organ or tissue shall be removed from the body of a living person except for the purposes of section 3 and no transplantation team of a recognized medical institution or hospital shall undertake the removal or transplantation of any human organ or tissue from a living donor unless they have explained the effects, complications and hazards connected with the removal of organ or tissue for transplantation to the donor and its outcome in the recipient respectively in such manner as may be prescribed.

8. Monitoring Authority.– [7][(1) The Government shall, by notification in the official Gazette, constitute a Monitoring Authority consisting of the following:-

(i) Minister for Health or a nominee of the Chief Minister; Chairperson

(ii) Secretary to the Government, Health Department; Member/Secretary

(iii) Secretary to the Government, Home Department or his representative not below the rank of Additional Secretary; Member

(iv) President, Transplantation Society of Pakistan or his nominee; Member

(v)

Executive Director Pakistan Medical Research Council or his nominee; Member

(vi) President, Ophthalmologic Society of Pakistan or his nominee; Member

(vii) President, Pakistan Medical Association of Pakistan or his nominee; Member

(viii) President, Pakistan Society of Gastroenterology or his nominee; Member

(ix) Surgical Transplant Specialist nominated by the Government; Member

(x) Chairperson of the Punjab Health Care Commission or a nominee of the Health Care Commission; and Member

(xi) any other outstanding Medical Specialist nominated by the Government. Member]

(2) The Authority so constituted shall–

(a) monitor transplantation and enforce prescribed standards for recognized medical institutions and hospitals;

(b) investigate and hold inquiry into the allegations of breach of any provision of this Act;

(c) inspect recognized medical institutions and hospitals for examination of quality of transplantation, follow up medical care of donor and recipient and any other matter ancillary thereto and also periodically inspect institutions wishing to be recognized;

(d) cause establishment of a National Registry and national and regional networks for evaluating quality and outcome of transplant centers and cause enhancement and promotion of transplantation; and

(e) due to shortage of available human organs for transplantation to meet lifesaving patient needs; the Monitoring Authority will explore and support the international collaboration of xenotransplanation in future, after considering all ethical and safety risks and also continue to examine and collect global data on the practices, safety, quality, efficacy and epidemiology of stem cell as well as non-human organ transplantation.

(3) The Monitoring Authority shall appoint an Administrator, preferably from the medical profession, in consultation with the [8][Government] and also appoint such other officers as may be required, on terms and conditions, to be determined by it, to carry out the day-to-day business of the Authority, for which the [9][Government] shall provide a reasonable annual grant.

(4) The [10][Government] in consultation with the Monitoring Authority shall establish a fund consisting of grants by the Federal and Provincial Governments and contributions by NGOs, philanthropists and other individuals for the transplantation or indigent patients including post transplant care and medicines.

(5) The pool of voluntary donors and registry of potential recipients shall be established and regulated as may be prescribed.

9. Prohibition of removal or transplantation of human organs for any purpose other than therapeutic purpose.– No donor and no person empowered to give authority for removal of any human organ shall authorize the removal of any human organ for any purpose other than the therapeutic purposes.

10. Punishment for removal of human organ without authority.– (1) Whoever renders his services to or at any medical institution or hospital and who for the purposes of transplantation, conducts, associates with or helps in any manner, in the removal of any human organ without authority, shall be punished with imprisonment for a term which may extend to ten years and with fine which may extend to one million rupees.

(2) Where any person convicted under sub-section (1) is a registered medical practitioner, his name shall also be reported to the Pakistan Medical and Dental Council for appropriate action including removal of his name from the register of the Council for a period of three years for the first offence and permanently for subsequent offence.

11. Punishment for commercial dealings in human organ.– Whoever,–

(a) makes or receives any payment for the supply of, or for an offer to supply, any human organ;

(b) seeks to find a person willing to supply for payment of any human organ;

(c) offers to supply any human organ for payment;

(d) initiates or negotiates any arrangement involving the making of any payment for the supply of, or for an offer to supp1y any human organ–

(i) takes part in the management or control of a body of persons, whether a society, firm, or company, whose activities consist of or include the initiation or negotiation of any arrangement referred to in clause (d); or

(ii) publishes or distributes or causes to be published or distributed any advertisement,–

(a) inviting persons to supply for payment of any human organ;

(b) offering to supply any human organ for payment; or

(c) indicating that the advertiser is willing to initiate or negotiate any arrangement referred to in clause (d),

shall be punished with imprisonment for a term which may extend to ten years and with fine which may extend to one million rupees.

12. Punishment for contravention of any other provision of this Act.– Whoever contravenes any provision of this Act or any rule made, or any condition of the registration granted thereunder for which no punishment is separately provided in this Act, shall be punished with imprisonment for a term which may extend to three years or with fine which may extend to three hundred thousand rupees or with both.

13. Offences by companies.– Where any offence, punishable under this Act has been committed by a company, its Chief Executive or Director or any other person who, at the time the offence was committed was incharge of, and was responsible to, the company for the conduct of business of the company, as well as the Company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that a company shall be liable to pay fine only:

Provided further that nothing contained in this section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.

Explanation.– For the purposes of this section,–

(a) “company” means any body corporate and includes a firm or other association of individuals; and

(b) “director”, in relation to a firm, means a partner in the firm.

14. Cognizance of offences.– (l) No Court inferior to that of the Magistrate of First Class empowered under section 30 of the Code of Criminal Procedure, 1898 (Act V of 1898) shall try an offence punishable under this Act.

(2) No court shall take cognizance of an offence under this Act except on a complaint in writing made by,–

(a) the Monitoring Authority or its Secretary; or

(b) an aggrieved person who has given notice of not less than fifteen days, in such manner as may be prescribed, to the Monitoring Authority, of the alleged offence and of his intention to lodge a complaint.

(3) Notwithstanding anything in section 32 of the Code of Criminal Procedure, 1898 (Act V of 1898) it shall be lawful for a Magistrate referred to in sub-section (1) to pass any sentence authorized by this Act even if such sentence exceeds his powers under the said section.

(4) Notwithstanding anything in the Code of Criminal Procedure, 1898 (Act V of 1898) the offences punishable under this Act shall be non-bailable.

15. Savings.– Neither the grant of any facilities of any authority for removal of any human organ from the body of the donor deceased or alive in accordance with the provisions of this Act nor removal of any human organ or tissue from the body of a deceased person with due care in pursuance of such authority shall be deemed to be an offence punishable under section 297 of the Pakistan Penal Code (Act XLV of 1860).

16. Protection of actions taken in good faith.– (1) No suit, prosecution or other legal proceedings shall lie against any person for anything which is done in good faith or intended to be done in pursuance of the provisions of this Act or rules made thereunder.

(2) No suit or other legal proceedings shall lie against the [11][Government] for any damage caused or likely to be caused for anything which is done with due care in good faith or intended to be done in pursuance of the provisions of this Act.

17. Power to make rules.– The [12][Government] may, by notification in the official Gazette, make rules for carrying out the purposes of this Act.

18. Removal of difficulties.– If any difficulty arises in giving effect to any provision of this Act, the [13][Government] may make such order as [14][it] considers necessary or expedient for the purpose of removing the difficulty.


foot notes

[1]This Act of Majlis-e-Shoora (Parliament) received the assent of the President on the 17th March, 2010, and published in the Gazette of Pakistan (Extraordinary), dated 18th March 2010, pp.89-96.

This Act was originally in the Federal ambit, however, the subject on which this law was enacted, devolved to the provinces by virtue of 18th Amendment in the Constitution, hence it was adopted, with amendments, for the province of the Punjab by the Punjab Transplantation of Human Organs and Tissues (Amendment) Act 2012 (LVII of 2012) w.e.f. 1st November 2012.

[2]Substituted for the word “Pakistan” by the Punjab Transplantation of Human Organs and Tissues (Amendment) Act 2012 (LVII of 2012).

[3]Inserted ibid.

[4]Substituted for the words “Federal Government” by the Punjab Transplantation of Human Organs and Tissues (Amendment) Act 2012 (LVII of 2012).

[5]Substituted for the words “Federal Government” by the Punjab Transplantation of Human Organs and Tissues (Amendment) Act 2012 (LVII of 2012).

[6]Ibid.

[7]Substituted by the Punjab Transplantation of Human Organs and Tissues (Amendment) Act 2012 (LVII of 2012).

[8]Substituted ibid., for the words “Federal Government”.

[9]Substituted for the words “Federal Government” by the Punjab Transplantation of Human Organs and Tissues (Amendment) Act 2012 (LVII of 2012).

[10]Ibid.

[11]Substituted for the words “Federal Government” by the Punjab Transplantation of Human Organs and Tissues (Amendment) Act 2012 (LVII of 2012).

[12]Ibid.

[13]Ibid for the word “President”.

[14]Ibid for the word “he”.


 

THE EMPLOYMENT (RECORD OF SERVICES) ACT 1951

THE EMPLOYMENT (RECORD OF SERVICES) ACT 1951[ PAKISTAN]

(Act XIX of 1952)

C O N T E N T S

SECTION HEADING

1. Short title, extent, application and commencement.

2. Definitions.

3. Exemption.

4. Service book to be produced by employee.

5. Form of the service book.

6. Entries in the service book.

7. Power of Inspection.

8. Penalty.

9. Cognizance of offences.

10. Prosecution.

11. Protection of action taken under the Act.

12. Power to make rules.


[1]THE EMPLOYMENT (RECORD OF SERVICES) ACT 1951

(Act XIX of 1952)

[18 April 1952]

An Act to make provision for the compulsory maintenance of the records of service of persons in certain classes of employment in certain areas.

Whereas it is expedient to make provision for the compulsory maintenance of the record of service of persons in certain classes of employment in certain areas; it is hereby enacted as follows:-

1. Short title, extent, application and commencement.‑ (1) This Act may be called the Employment (Record of Services) Act, 1951.

[2][(2) It extends to the whole of [3][the Punjab].]

(3) It applies to all persons concerned as employers or employees in such classes of employment and in such areas as the [4][[5][* * *] Government] may specify by notification in this behalf.

(4) It shall come into force on such date as the [6][[7][* * *] Government] may, by notification in the official Gazette, appoints.

2. Definitions.– In this Act, unless there is anything repugnant in the subject or context,–

[8][* * * * * * * * * * * *]

(b) “employee” means a person to whom this Act applies engaged for hire or for any other pecuniary consideration by an employer, or an apprentice;

(c) “employer” means any person to whom this Act applies engaging the services – manual or clerical, skilled or unskilled – of another for hire or for any other pecuniary consideration or an apprentice for the purpose of carrying on his calling, trade, business, undertaking or manufacture or for, personal or domestic service and includes any body of persons whether incorporated or not and any managing agent of any employer;

[9][(cc) “Government” means Government of the Punjab;]

(d) “Labour Commissioner” means the officer so designated and appointed by the [10][[11][* * *] Government];

(e) “prescribed” means prescribed by rules made under this Act; and

(f) “wages” has the same meaning as in the Payment of Wages Act, 1936 (IV of 1936).

3. Exemption.‑ The [12][[13][* * *] Government] may exempt from the provisions of this Act any establishment or undertaking where records of service are maintained to the satisfaction of the Government.

4. Service book to be produced by employee.‑ (1) Before engaging an employee the employer shall require from him his service book, if he asserts that he has been previously in employment under any other employer and the employee shall produce the service book if he has one.

[14][(2) If the employee has no service book, the employer shall, at his own cost, provide one and keep it with himself.]

(3) The service book [15][if any produced by the employee under sub-section (1)] shall be kept by the employer, who shall give the employee a receipt there for in the prescribed form.

(4) Nothing in this section shall prevent an agreement between the employee and the employer whereby it is provided that the employee shall keep and maintain a duplicate of his service book.

(5) The employer shall hand over service book to the employee on the termination of the employee’s service with the employer, except where the [16][employee] has kept and maintained a duplicate of service book.

[17][(6) If the service book handed over to the employee under sub-section (5), or the duplicate thereof maintained by him, is lost by him, the employer shall provide him with a duplicate service book and may charge him the prescribed price.]

5. Form of the service book.– The service book shall be of the size and in the form as may be prescribed and a passport size photo of the employee if a male shall be affixed to it. The service book shall contain particulars of identification of the employee, the names and other particulars of the persons under whom employed from time to time, period of employment, occupation, rate of wages including allowances, if any, leave taken and records of conduct and efficiency by employers.

6. Entries in the service book.– The employer shall at the commencement of the employment and during the continuance of the same make such entries therein from time to time as are required by this Act and the rules made there under and he and the employee shall sign the entries as they are made.

7. Power of Inspection.– The Labour Commissioner or an officer authorised by him in writing may by written notice require an employer or an employee to produce the service book or the duplicate service book or any other paper or document which he may have reason to believe contains the particulars noted in the service book and thereupon the employer or the employee, as the case may be, shall comply if he is in possession of the said book, paper or document.

8. Penalty.– Any breach of the provisions of this Act or the rules made thereunder shall be punishable in the case of an employer with fine which may extend to [18][five thousand] rupees, and in the case of an employee with a fine which may extend to [19][five hundred] rupees and for the purposes of this section any failure or refusal to comply with a requirement duly made by a person empowered under this Act or under the rules made thereunder to make it shall be deemed to be a breach of the said provisions.

9. Cognizance of offences.– No court shall take cognizance of an offence punishable under this Act unless previous sanction for prosecution has been accorded on the prescribed form by the Labour Commissioner and except upon complaint by any public servant or by a person authorised in this behalf by the Labour Commissioner in writing on the said form.

10. Prosecution.– Any infringement of or refusal or omission to carry out the provisions of this Act or the rules made thereunder by any person may be reported to the Labour Commissioner or to any other officer appointed in this behalf by him by an order in writing for such local limits as may be assigned in the order, for sanction of prosecution or for such other action as he may deem proper to take.

11. Protection of action taken under the Act.– No suit, prosecution or legal proceeding shall lie against any person in respect of anything in good faith done or intended to be done under this Act or the rules made thereunder.

12. Power to make rules.– (i) The [20][[21][* * *] Government] may, after previous publication, make rules[22] for carrying into effect the purposes of this Act.

(ii) In particular and without prejudice to the generality of the foregoing power such rules may provide for–

(a) the form of the service book and the particulars to be entered therein;

(b) the quality of paper and covering page of the service book;

(c) the number of pages of the book;

(d) the time within which any entry in the service book shall be made and the occasions on which a fresh entry shall be made ;

(e) the authorization of persons to manufacture and sell service books on prescribed forms;

(f) the procedure at any investigation and for proceeding before the grant of sanction for prosecution by the Labour Commissioner;

(g) the persons and class of public servants who may be authorised by the Labour Commissioner to make complaints under this Act; and

(h) the manner of calculation of monthly wages.


[1]For Statement of Objects and Reasons, see Gazette of Pakistan, 1951, Pt. V, dated the 23rd November, 1951, pp. 4 and 5, and for Report of Select Committee, see ibid., 1951, Ext., pp.335-339.

This Act was originally in the Federal ambit, however, the subject on which this law was enacted, has devolved to the provinces by virtue of 18th Amendment in the Constitution, hence it was adapted, with amendments, for the province of the Punjab by the Employment (Record of Services) (Amendment) Act 2011 (XI of 2011).

[2]Substituted by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1961), s.3 and 2nd Schedule, for the original sub-section (2) (with effect from the 14th October 1955).

[3]Substituted for the word “Pakistan”, by the Employment (Record of Services) (Amendment) Act 2011 (XI of 2011).

[4]Substituted by Adaptation Order, 1964, Art. 2 and Schedule, for “appropriate Government”.

[5]The word “Provincial”, omitted by the Employment (Record of Services) (Amendment) Act, 2011 (XI of 2011).

[6]Substituted by Adaptation Order, 1964, Art. 2 and Schedule, for “appropriate Government”.

[7]The word “Provincial”, omitted by the Employment (Record of Services) (Amendment) Act, 2011 (XI of 2011).

[8]The original cl. (a) as amended by A.O. 1961, Art. 2 and Sch., has been omitted by A.O., 1964, Art. 2 and Sch.

[9]Inserted by the Employment (Record of Services) (Amendment) Act 2011 (XI of 2011).

[10]Substituted by Adaptation Order, 1964, Art. 2 and Schedule, for “appropriate Government”.

[11]The word “Provincial”, omitted by the Employment (Record of Services) (Amendment) Act, 2011 (XI of 2011).

[12]Substituted by Adaptation Order, 1964, Art. 2 and Schedule, for “appropriate Government”.

[13]The word “Provincial”, omitted by the Employment (Record of Services) (Amendment) Act, 2011 (XI of 2011).

[14]Substituted by the Employment (Record of Services) (Amendment) Ordinance, 1960 (18 of 1960), s.2, for the original sub-section (2).

[15]Inserted ibid., s.2.

[16]Substituted ibid, and shall be deemed always to have been so substituted.

[17]Added by the Employees (Record of Services) (Amendment) Ordinance 1960 (18 of 1960), s.2.

[18]Substituted for the word “fifty” by the Employment (Record of Services) (Amendment) Act 2011 (XI of 2011).

[19]Ibid., for the word “five”.

[20]Substituted by Adaptation Order, 1964, Art. 2 and Schedule, for “appropriate Government”.

[21]The word “Provincial” omitted by the Employment (Record of Services) (Amendment) Act 2011 (XI of 2011).

[22]For the Employment (Record of Services) (Federal Capital) Rules, 1956, see Gazette of Pakistan, 1956, Pt. I, pp.522-527.