' This Constitutional petition is directed against the order passed by the President of Pakistan, communicated through Memo. Dated 9-1-2003, whereby the representation of Habib Bank Limited/Agency, against the order dated 13-5-2002 passed by Wafaqi Mohtasib (Ombudsman), has been accepted and it has been observed that proper forum for the complainant/petitioner to seek remedy, is a Court of law.
2. I have heard the learned counsel for the petitioner and have also seen the relevant record, copy of which is attached with this petition including report and comments furnished by respondents Nos.1, 3 and 4, and report furnished by respondent No.5/F.I.A.
3. The relevant facts, as alleged by the petitioner are that on 13-3-1996 the petitioner purchased three Term Deposit Receipts (TDRs) worth Rs,2,15,000 from Habib Bank Limited, Bazar Kalan Branch, Sialkot under the supervision and control of respondent No.4/Zonal Chief, H.B.L., Sialkot Zone, for a period of five years. The TDRs were issued by the then Manager, Akram Bhatti and it was apprised to the petitioner that Rs.2,475 would be adjusted in the said account every month. Thereafter an amount of Rs.57,000 was drawn through cheques by the petitioner from the said account. Later on, the aforesaid Akram Bhatti was transferred to S.I.E. Branch, Sialkot, and he asked the petitioner to open a new account and receive the profit from HBL, SIE, Branch, in future. It is further alleged that on maturity of the TDRs, on 13-3-2001, when the petitioner approached the Bank for the refund of the amount, it came to his knowledge that there was no deposit in his account and that the TDRs were forgery. On contacting respondent No.4/Zonal Chief, the petitioner was informed that TDRs were issued by HBL, but the Manager had stolen the TDRs in question and had fraudulently issued the same to the petitioner. The petitioner was also informed that F.I.R. No.37 of 2000, in this regard, had been got registered by the Bank with F.I.A. The petitioner thus lodged a complaint with respondent No.2/Wafaqi Mohtasib with a request that as the TDRs had completed their tenure on 13-3-2001, the Bank be directed to reimburse the amount to him. The Agency/Bank reported Wafaqi Mohtasib that the complainant was defrauded by Akram Bhatti, the then Manager of Bazar Kalan Branch Sialkot, from October, 1995 to February, 1998 and as an officer in the SIE Branch from 16-4- 1998 to 16-12-1999, the TDRs were not issued by the S.I.E. Branch, they were interpolated, Akram Bhatti absconded and had since been dismissed from service and the Bank had lodged F.I.R. No.37 of 2000 with FIA on 17-5-2000 and after the submission of the challan in Court, the A proceedings against the accused were in progress. The Honourable Wafaqi Mohtasib, vide his order dated 13-5- 2002 held that Akram Bhatti had fraudulently issued TDRs to the petitioner in his capacity as Manager/Officer of the Bank, the Bank is responsible for his actions and he was its employee, the complainant is not to suffer because of the defalcation of an employee of the Bank and it was recommended that the Bank/Agency should reimburse the amount of TDRs to the complainant.
4. The Agency (HBL) made a representation to the President of Pakistan, under Article 32 of P.O.I. Of 1983, against the findings of Wafaqi Mohtasib dated 13-5-2002 which, as mentioned above, was accepted by the President of Pakistan and following order was passed:-- "The liability of the Agency (HBL), in respect of the fraud allegedly committed by Mr. Akram Bhatti, ex-Branch Manager of the Agency is not direct but vicarious. Questions relating to vicarious liability are complicated questions of civil law relating to law of Tort, and such questions can be determined only if it is found on evidence that the employee of the Agency who actually committed the fraud was acting within the scope of his employment and there was no contributory negligence on the part of the claimant. Further these questions relate to private law and F not public law. The Wafaqi Mohtasib has the jurisdiction to investigate complaint of maladministration on the part of an agency relating to its public law functions. The above conclusion is precedent by the President's earlier Order No. 8(800-WMS)/PS/ Legal/ 2001, dated 20- 11-2001.
Accordingly, the President has been pleased to accept the representation of the Agency and set aside the findings dated 13-5-2002 in Complaint No.L/ 4147/01/3237. Proper forum for the complainant to seek remedy is G Court of law. Thus if he would approach the Court the findings of the Wafaqi Mohtasib as well as anything said in this order would not affect the right of parties."
5. The Bank Authorities in their report and comments have taken a stand that the petitioner's claim can only be considered, if it is conclusively found that he was not involved in any manner of the commission of the offence ] and it is irrefutably evidenced that the amounts in question were in fact deposited by him. The F.I.A., CBC, Lahore, was considered as a necessary party and this Court, vide its order dated 18-6-2003, impleaded it as respondent No.5 and directed it to furnish report and comments. The detailed report of F.I.A. Shows that there was no documentary evidence available on the record to prove that the petitioner/ complainant had deposited Rs.2,15,000 in Bank for the issuance of three TDRs. This report thus shows that the deposit of Rs.2,15,000 by the petitioner in the Bank, is a disputed question of fact and it is a matter of evidence. This Court in the exercise of its Constitutional jurisdiction cannot go into the disputed questions of fact and in these circumstances, it has been correctly held by the President of Pakistan that the liability of the Agency (HBL), in respect of fraud allegedly committed by Akram Bhatti, ex-Branch Manager of the Agency, is not direct but vicarious and the questions relating to vicarious liability are complicated questions of civil law relating to law of Tort, and such questions can be determined only if it is found on evidence that the employee of the Agency who actually committed the fraud was acting within the scope of his employment and there was no contributory negligence on the part of the claimant and these questions relate to private law and not public law, whereas Wafaqi Mohtasib has the jurisdiction to investigate complaint of maladministration on the part of an agency relating to its public law functions. The learned counsel has not been able to show any illegality in the order passed by the President of Pakistan. The petitioner has to prove his case through evidence in a regular civil suit in a Civil Court of competent jurisdiction.
6. In view of the above mentioned, I see no merit in this petition, which is accordingly dismissed.