MUZAMIL AKHTAR SHABIR, J.---This constitutional petition challenges the Circular dated 27.07.2012 issued Government of Pakistan, Central Directorate of National Savings, Islamabad and Circular dated 31.07.2012 issued by the Directorate of National Savings, Lahore whereby Foreign Nationals who had made irregular investment in Bahbood Savings Certificates ("BSCs") were held entitled to profit as admissible on regular income certificates only and the department was directed to recover the difference or profit vis-a-vis certificates to settle the matter.
2. The brief facts of the case are that Ashfaq Ahmad, husband of the petitioner was a former Pakistani citizen who acquired Indonesian nationality and ceased to be a Pakistani citizen. During his lifetime, Ashfaq Ahmad purchased BSCs worth Rs,27,00,000/- on the basis of Pakistan Origin Card ("POC"). He died in Lahore on 17.07.2012 and the said certificates were transferred in the name of the petitioner on 02.08.2012 as his legal nominee. In September-2012, respondent No,4 denied payment of profit on the invested amount to the petitioner. On inquiry, It transpired that Circular No,F16(13)S.1/Cert/2012 dated 27.07.2012 issued by Government of Pakistan, Central Directorate of National Saving, Islamabad and Circular No, DNSL.SCH(Rules-BSC)/2012-14053-90 dated 31.07.2012 issued by the Directorate of National Savings, Lahore restricted the payment of BSCs to the foreigners. The petitioner filed this constitutional petition challenging the action of the respondents in denying the payment of profit as per BSCs and only providing payment as would have been due on Regular Income. Certificates ("RIC") providing for lesser rate of profit.
3. The respondents Nos,2 to 4 have filed comments wherein they stated that BSCs could be purchased by a citizen of Pakistan only and it was a scheme for the benefit of the citizens of Pakistan and not for the foreigners. The respondents defended their stance of not allowing the petitioner's claim of profit.
4. The learned counsel for the petitioner has argued that a holder of POC is entitled to various benefits which includes purchasing of property in Pakistan and the BSCs are in the nature of property, therefore, the respondents cannot deny such relief. Furthermore, the profit already received by husband of the petitioner cannot be recovered on the principle of locus poenitentiae.
5. The learned counsel for the respondents have sought dismissal of this petition on the ground that the petitioner is claiming a relief that is only available to the citizens of Pakistan and not allowing the said relief to foreign nationals is based on reasonable classification
6. The BSCs are issued under the powers vested in Federal Government by the Public Debt Act, 1944 (XVIII of 1944) ("Act"). As per Section 28 of the said Act, the Federal Government is authorized to frame rules. In exercise of the said powers, Bahbood Savings Certificates Rules, 2003 ("Rules") have been framed on 30.07.2003. Initially Rule 5 of the Rules provided that a certificate may be purchased by a single widow only. Subsequently, by amendment in the Rules vide SRO No,(1)/2004 dated 20.01.2004 the afore referred Rule 5 was substituted as under: "5. A certificate may be purchased by any of the following, namely: -
(a) a citizen of Pakistan aged sixty years or above; and
(b) a single widow so long as she does not re-marry."
7. Husband of the petitioner purchased the BSCs valuing Rs,27,00,000/-, the detail of which is as follows: Sr.No.Date of Purchase Serial No.Amount
1. September 22, 2008E-483423500,000/-
2. September 22, 2008E-483424500,000/-
3. November 03, 2008E-908475500,000/-
4. March 14, 2011 EA-158121500,000/-
5. September 13, 2011EA- 239132500,000/-
6. September 13, 2011DB-831119100,000/-
7. September 13, 2011DB- 831120100,000/- TOTAL 2,700,000/- At the time of application, the petitioner produced his POC. The concerned authorities considering the petitioner to be a citizen of Pakistan issued the BSCs in favour of the husband of the petitioner on the basis of POC. The POC is issued under Section 11 of the National Database and Registration Authority Ordinance, 2000 ("Ordinance") which is reproduced below: "Section 11: Pakistan Original Cards.--The authority shall issue or renew, or cause to be issued or renewed, in the prescribed manner and on prescribed criteria, terms and conditions, cards to such prescribed class of foreigners and such prescribed class of citizens with dual nationality who have got themselves registered in the prescribed manner, in such form and with such periods of validity thereof upon payment of such fee in such form and manner as may be prescribed, to be called Pakistan Origin Cards and receive applications for registration therefor in the prescribed form."
(emphasis supplied)
8. From perusal of Section 11 of the Ordinance it is seen that POC is issued to prescribed class of foreigners and prescribed class of citizens with dual nationality. The department kept on treating the husband of the petitioner as Pakistani national until there was a judgment of the Hon'ble Supreme Court of Pakistan in the case of Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary, Laws, and others (PLD 2012 SC 1089) whereby it transpired to the respondents that all the holders of POC were not Pakistan Nationals. The afore referred circulars (F16(13)S.I/Cert/2012 dated 27.07.2012 and DNSL.SCH(RulesBSC)/2012-14053-90 dated 31.07.2012) under challenge were issued to meet with the situation relating to foreign nationals who have purchased BSCs. The Circular dated 27.07.2012 was issued by Government of Pakistan, Central Directorate of National Savings, Islamabad with the following conditions: "The undersigned is directed to refer to this Directorate letter dated 25.06.2012 and to state that in case of irregular investment made by Mrs. Hildegard Hayat and Ms. Helga Siddiqui, who had made investment being foreign national as senior citizen and widow respectively, the Finance Division has given policy decision as under:
(i) That irregular investment made in BSC being foreign national having age 60 years or above, investment would be deemed to have been made in the highest paying scheme for which the client was eligible and the excess profit, yielded by the irregular investment would be recovered.
(ii) Since the condition of citizen of Pakistan for widows was promulgated on 01.08.2011, hence the condition of Pakistani Citizenship could not be applied retrospectively and that the existing investments that were made in accordance with the rules in force at the time of investment would continue on existing terms and conditions until maturity or encashment, whichever is earlier.
All regional heads are requested to scrutiny all such irregular investment in BSCs and dispose off accordingly."
The circular dated 31.07.2012 was issued by the Directorate of National Savings, Lahore with the following conditions: "The undersigned is directed to enclose. a copy of CDNS, Islamabad circular No,F.16(13)S.I/Cert/2012 dated 27.07.2012. and advise Officer Incharge, NSCs, Lahore Region as under:-
1. The irregular investment made in BSCs by foreign national aged 60 or above (including the investment accepted on the basis of Pakistan Origin Card) may be allowed profit or Regular Income Certificate recovering difference of profit viz-a-viz BSC to settle the matter.
2. The irregular investment made prior to 01.08.2011 in BSCs by foreign national widows may be allowed to continue their investment or existing terms and condition until maturity or encashment of the scheme whichever is earlier."
9. The respondent department thereafter deducted the profits already received by late husband of the petitioner from the payment being made to the petitioner therefore, the petitioner withdrew her amount from the National Saving Centers. The petitioner challenges to recover Rs,2,77,979/- deducted by the respondents as excess profit from payment made to her. Admittedly, the BSCs are issued under the Act. The Federal Government was authorized to provide any scheme under the Public Debt Act, 1944. For the benefits of citizens of Pakistan, the Rules were framed to issue BSCs in 2003 which were amended vide SRO dated 20.01.2004 providing only the citizens of Pakistan have a right to purchase the afore referred certificates. The late husband of the petitioner provided POC to the respondent department for purchase of the afore referred certificates for first purchase in the year 2008 till last purchase in the year 2011. The POC as per Section 11 of the Ordinance can be issued to a citizen of Pakistan holding dual nationality as well as foreigners who had Pakistan origin but did not possess the citizenship. Under the impression that the husband of the petitioner was a Pakistan National, the respondent department had been paying profits of BSCs to him.
Subsequently, in the case of Syed Mehmood Akhtar Naqvi (Supra) the Hon'ble Supreme Court took up for hearing case of dual Nationals in respect of Membership of Parliament. The respondents in view of the afore referred judgment reached the conclusion that all the holders of POCs were not Pakistani citizens. Therefore the Federal Government and the concerned department scrutinized the matter relating to BSCs. On scrutiny, it transpired that the petitioner's husband at the time of purchase of BSCs was not Pakistan national, therefore, he could not have purchased the BSCs.
Hence, the department has acted accordingly. Although the rules provided that a single widow could purchase the BSCs and condition of being Pakistani citizen was not made applicable to the widows before 01.082011 but in the present case, the BSCs were not purchased by the petitioner herself and hence she cannot claim benefit of the rules even if some certificates were purchased by her husband prior to 01.08.2011.
10. The learned counsel for the petitioner has tried to argue that on the principle of locus poenitentiae the respondents cannot recover the amount already paid by them to the petitioner.
The principle of locus poenitentiae provides that a party can withdraw a representation made by it before it has been acted upon by the other party and the matter has not yet been finalized.
However, after finalization of the same, the steps cannot be withdrawn. The principle of locus poenitentiae of receding back the steps is available only where an action or representation has been made erroneously. As per rules, the purchase of BSCs were only limited to the citizens of Pakistan and a person not a citizen of Pakistan was not entitled to purchase the same except in case of a female prior to 01.08.2011. Although profits were payable at regular intervals but it had to be determined the time of final encashment of certificates that what amount was due to be paid to the petitioner. The matter had not yet become a past and closed transaction that could not be re-opened. Therefore, the claim of the petitioner that she is protected under the principle of locus poenitentiae is not available to her in given circumstances of the case. Reliance in this regard is placed on Muhammad Sidiq through L.Rs v. Punjab Service Tribunal, Lahore and others (2007 SCM R 318) and Nazir Ahmad Panhwar v. Government of Sindh through Chief Secretary, Sindh and others (2005 SCM R 1814), the relevant portion of the latter judgment is re-produced below: "The concept of locus poenitentiae is the power to recede till a decisive step is taken but it is not a principle of law that order once passed become irrevocable and a past and closed transaction. It was also laid down that if the order was illegal then perpetual right could not be gained on the basis of such an illegal order. Principle of locus poenitentiae would be applicable in respect of an order passed by an authority who was competent to pass an order in accordance with law and that the order so passed was not in violation or contravention of any law and/or rules made thereunder." (emphasis supplied)
By relying upon the afore referred judgment, it is observed that as the BSCs were purchased against the express provision of law/rules, therefore, the principle of locus poenitentiae cannot be used in favour of the petitioner.
11. The learned counsel for the petitioner further argues that it was a departmental practice that has consistently been followed by respondent department that holders of POC were provided benefits of BSCs, therefore, the same had almost acquired the status of law and it would be extremely unfair to have departure from it after the lapse of many years and thereby disturb rights that have been settled by a long and consistent course of practice. For said purpose, the learned counsel for the petitioner has relied upon Messrs Radaka Corporation and others v. Collector of Customs and another (1989 SCM R 353) wherein the Hon'ble Supreme Court held as under: "Now it is settled law that where the departmental practice has followed as particular course in the implementation of some rule, whether right or wrong, it will be extremely unfair to make a departure from it after a lapse of many years and thereby disturb rights that have been settled by a long and consistent course of practice"
12. There is no cavil to the aforesaid proposition, however, this proposition is subject to some exceptions, one of which is that the department practice against the law or rules on the subject is not sustainable in the eye of law and cannot be implemented as law in force. For this purpose, reliance is placed on a judgment reported as Syed Imam Shah and others v. Government of N.- W.F.P. and others (PLD 2004 SC 285) wherein it has been held that: "In sequel to above mentioned discussion it could be inferred safely without incurring the risk of rebuttal that "practice" and "rule" are not interchangeable terms in view of the difference between their ingredients, components and characteristics. It is worth mentioning that even by efflux of time the "practice" cannot attain the status of "rule". The "practice" in fact has no binding element being not static and subject to change having no consequences unless some mala fide is established for deviation. The rules on the other hand are framed by a Competent Authority in exercise of powers conferred under some statute, law, legislation or enactment having binding effect which cannot be violated/deviated unless otherwise provided." (emphasis supplied)
13. Both the afore referred judgments are constructed harmoniously from which it is apparent that although departmental practice followed for a long time cannot be deviated and attains status of law but only when the same is not against any express provision of law. Therefore, I am not inclined to agree with this argument of the petitioner for the reason that where something is done which is against the law, even if a consistent practice has been followed by the department, that practice cannot unsettle the law. Besides it is settled by now that when a particular thing is required to be done in a particular manner, the same procedure must be followed and cannot be treated as a mere technicality. Reliance is placed on Shahida Bibi and others v. Habib Bank Limited and others (PLD 2016 SC 995) and Muhammad Anwar and others v. Mst. Ryas Begum and others (PLD 2013 SC 255).
14. In view of the foregoing, it is observed that the petitioner's husband could not have purchased the BSCs, therefore, the respondents were entitled to recover the excess amount of profit paid to him or the petitioner. No illegality or erroneous exercise or powers vested in the respondents is made out in the given circumstances of the case whereby their action could be declared to he illegal or without jurisdiction and be declared of no legal effect.
15. For the reasons detailed above, there is no merit in this constitutional petition which is accordingly dismissed.