ABDULLAH BALOCH, J. Since common question of facts and law is involved in Constitutional Petitions Nos. 121 of 2021, 872 of 2020 and 173 of 2019, thus the same are being decided through this common judgment. The C.P. No.121 of 2021 carries the following prayer: "It is, accordingly respectfully prayed, that this Hon'ble Court may kindly be pleased to set-aside both the impugned orders dated 10-02-2020 passed by the respondent No.2, in complaint No.2019-266, and dated 24-11-2020, passed by the respondent No.3, in presentation No.36/BM/2020, in the interest of justice."
While in C.P. No.872 of 2020 the petitioner sought the following reliefs: "It is, accordingly respectfully prayed, that this Hon'ble Court may kindly be pleased to set aside both the impugned orders dated 11-11-2019 passed by the respondent No.2, in complaint No.2019- 281, and dated 19-05-2020, passed by the respondent No.3, in presentation No. 154/BM/2019, in the interest of justice."
While in C.P. No.(S) 173 of 2019 the petitioner sought the following reliefs: "It is, accordingly respectfully prayed, that this Hon'ble Court may kindly be pleased to set aside both the impugned order dated 09-08-2019 passed by respondent No.3 in presentation No 36/BM/2018 and to upheld the order dated 31-12-2018 passed by respondent No.1 in complaint No. 125310543/2018, in the interest of justice."
2. Facts narrated in the Constitutional Petition No.121 of 2021 are that a complaint under section 82D of the Banking Companies Ordinance ("BCO") 1962 read with section .9 of the Federal Ombudsman Institutional Reforms Act, 2013 (Act-XIV of 2013) was filed by the respondent No.1 to the respondent No.2 for a claim of Rs.3,90,500/-, which was decided in his favour, vide order dated 10th February 2020. Being aggrieved, the petitioner assailed the above order by filing presentation under Section 14 of the Act before the respondent No.3 ("appellate authority") which was also rejected; vide order dated 24th November 2020.
While, facts stated in the C.P. No. 872 of 2020 are that a complaint under section 82-D of the BCO, 1962 read with section 9 of the Federal Ombudsman Institutional Reforms Act, 2013 (Act-XIV of 2013) was filed by the respondent No.1 to the respondent No.2 fora claim of Rs.1,47,000/-, which was decided in his favour, vide order dated 11th November 2019. Being aggrieved, the petitioner assailed the above order by filing presentation for redressal of his grievance under section 14 of the Act before the appellate authority, which was also rejected; vide order dated 19th May 2020.
Whereafter the petitioner filed the instant petition before this Court.
While, facts stated in the C.P. No.(S) 173 of 2019 are that a complaint under section 82-D of the BCO, 1962 read with section 9 of the Federal Ombudsman Institutional Reforms Act, 2013 (Act-XIV of 2013) was filed by the respondent No.1 to the respondent No.2 for a claim of Rs.7,25,000/-, which was, declined by the respondent No.2, vide order dated 31st December 2018. Being aggrieved, the respondent No.1 assailed the said order by-filing presentation for redressal of his grievance under section 14 of the Act before the appellate authority (respondent No.3), which was accepted; vide order dated 9th August 2019 and the petitioner was directed to pay the amount in claim to the respondent No.1, being aggrieved the petitioner filed the instant petitions before this Court.
3. Heard learned counsel for the parties and perused the record with their valuable assistance, which reveals that in all the petitions, the respondent No.1/complainants filed their complaints before the petitioner with regard to fraud of transfer of funds through Internet Banking Funds Transfer (IBFT) from their respective accounts without their knowledge. While the petitioner has failed to timely inform the complainants through WS alert or to detect the fraud.
4. It is astonishingly observed that all the transactions were made from the HBL branches to UBL branches through Internet Banking Funds Transfer specially in the month of April 2018 to June 2018 on different dates and time and despite of the fact the bank was timely informed by the complainants, when the said fraud was disclosed to them on making transactions to withdraw amounts from their accounts, but the bank has failed to take any procedural action towards the complaints of the complainants, rather shifted the burden of responsibility upon the complainants, that the complainant by their self disclosed the password to the others, but after proper appraisal of documentary evidence brought on record the learned Banking Mohtasib Pakistan held that whatsoever happened with the complainants is due to gross negligence of the customer bank. It would be appropriate to reproduce the findings of the learned Banking Mohtasib Pakistan, which have been observed during the course of trial, specially in C.Ps. Nos.872 of 2020 and 121 of 2021, while the same findings were maintained in all the petitions including the C.P. No.(S) 173 of 2019 by the appellate forum, the findings so made in C.Ps. Nos. 872 of 2020 and 121 of 2021 by learned Banking Mohtasib Pakistan are reproduced as under: Findings
15. The facts and circumstances of the complaint as gathered from the papers produced by parties and discussion in hearing it is concluded that due to gross negligence its customer has suffered loss. I, therefore, under the powers vested in me vide section 82D of BCO 1962 read with section 9 of the Federal Ombudsmen Institutional Reforms Act No. XIV of 2013, advise HBL to make good the loss by crediting the complainant's account with a sum of Rs.147,000/- in pursuance of these Findings. The Bank may subsequently recover the said amount from the concerned Bank's beneficiaries under the Law of Land, if so advised. HBL may also strongly pursue the matter with Law Enforcement Agency and PTA.
C.P. No. 121 of 2021 Findings:
12. In view of observations given above, I am of the view that HBL has not been able to protect the interest of its account holder and has committed maladministration. No matter the customer has divulged his personal information to an un-known caller which he should not have done, but primary question remains that had this new facility not become functional by default/automatically without knowledge of account holder in violation of prescribed Law and Regulations and that too without disclosures of terms and conditions of transfer, the account holder would have been saved from the loss. I, therefore, under the powers vested in me vide section 82D of BCO, 1962 read with section 9 of Federal Ombudsmen Institutional Reforms Act 2013, advise HBL to make good the loss by crediting the Complainant's account with a sum of Rs.390,500 (principal amount), associated IBFT charges, in pursuance of these Findings."
Likewise observations so made by the learned appellate forum in C.P. No.(S) 173 of 2019 are reproduced as under: "10. It has become crystal clear that the complainant/ accountholder was defrauded by fraudulent internet/mobile banking transactions on 26-27-th June, 2018 when he had received a telephone call from Bank's Helpline Number (021111-111-425) requesting therein that credentials like CNIC Number, Date of Birth, ATM Card Number is required by the Caller for allegedly verification of bio data rather for the activation of mobile/internet banking channel and complainant accordingly followed the instructions of caller and shared his personal information conceiving fraudster as HBL representative. The representative of the bank could not provide plausible answer to the question that as to why only a few pieces of information are required to open mobile/internet/e-banking channel and why not more questions are randomly asked by the helpline operator to avoid impersonation by the fraudster (s) as a client/ accountholder of the particular Bank. Keeping the aforementioned scenario in view, it can be safely established that a fraud has been committed by the cyber criminals with the Bank to cause loss to the complainant/accountholder. The Bank failed to act as a custodian of the hard earned savings, of the complainant and is could not perform its sacred duty as trustee.
11. The Bank was given ample opportunity to rebut the claim the Complainant. The Bank, however, failed to rebut that loss occurred was the result of the fraudulent withdrawals/transfer of funds and the Helpline of the Bank was used.
12. The ambit and extent of jurisdiction of Banking Mohtasib is spelt out under section 82A(3)(a), section 82B(4)(5) and section 82F of the Banking Companies Ordinance, 1962. The cumulative reading and perusal of these provisions of law undoubtedly leads to the conclusion that the Banking Mohtasib is to inquire into the complaints about banking malpractices, maladministration, wrong doings, the fraudulent transactions, the corrupt and mala fide practices by bank officials and pass appropriate orders on conclusion of inquiry.
13. These powers of the Banking Mohtasib when considered in context with sections 18 and 24 of the Federal Ombudsmen Institutional Reforms Act, 2013 further show that in matters falling within the jurisdiction of the Banking Mohtasib, the jurisdiction of other courts or authorities is excluded; and the provisions of Act 2013 have the prevalence. However, in this case, the learned Banking Mohtasib has failed to appreciate the scope of his powers and jurisdiction.
14. In view of this order of the learned Banking Mohtasib is liable to be set aside being unsustainable. The representation of the complainant deserves to be accepted as the bank itself admitted that a fraud had been committed with the customer/ accountholder by the cyber criminals and the Bank has already taken up the issue with FIA/PTA.
15. In the circumstances, it is just and fair to accept the representation of the complainant and to order payment of total amount of Rs. 725,000/- (Rupees Seven Lacs and Twenty Five Thousand only) to the complainant by the Bank.
16. Accordingly, the Hon'ble President has been pleased to (a) accept the instant Representation of the complainant the victim of fraud namely Mr. Abdul Waheed (b) to set aside the impugned order of Banking Mohtasib (c) direct the Bank to pay Rs.725,000/- (Rupees Seven Lacs and Twenty Five Thousand only) to the complainant forthwith and to (d) direct the Bank to pursue the matter of criminal prosecution with FIA to get the culprits punished in accordance with law.
Compliance for section (c) is to be reported to the Banking Mohtasib within 30 days of the receipt of this order."
5. Bare perusal of above observations so made by the Banking Mohtashib and appellate forum clearly indicates that the petitioner/ customer bank has failed, to detect the fraud timely and to initiate criminal proceedings through FIA against the beneficiaries. Thus, admittedly this is gross negligence at the part of petitioner and the learned counsel for the petitioner has failed to point out any material illegality or irregularity in the impugned orders passed by the learned forums to warrant interference by this Court.
For the above reasons, petitions being devoid of merits are dismissed with no order as to cost.