ASIM HAFEEZ, J. These set of constitutional petitions, details whereof are provided in the attached Annex-A, are decided through consolidated judgment, all of which, largely, touched upon the issues relating to the rights, duties and obligations accompanying bank-customer relationship - which no doubt is decades old issue, still unsettled and recurring frequently with new manifestations; this time the context is unauthorized Electronic Fund Transfer (EFTs) and scope of alleged obligation(s) of the bank(s) to reimburse / compensate the victim(s), i.e., the customer.
Litigation's trajectory:
2. Present litigation started when private respondents [the customer(s)] invoked jurisdiction of Banking Mohtasib ('Mohtasib'), under the provisions of Banking Companies Ordinance 1962 (Ordinance, 1962), by submitting written complaints, on oath, against petitioners, i.e., Bank(s) - [singly referred as the bank and collectively as banks]. Grievances, in brief, were that banks had acted in violation of their contractual obligations, omitted duty of exercising reasonable care and skills and allowed unauthorized EFTs from the accounts of the customer(s). By and large, the customer(s) asserted that they were deceptively and fraudulently induced by the callers, who called them on their registered mobile(s), and represented / impersonated as bank or government officials, where-after customer(s) shared their personal information, identity, access code(s), one- time-passco de(s) (OTPs) on the assumption that information was required for the purposes of periodical check(s). And lately they discovered that amounts were debited / transferred - [this kind of fraud is generically identified as 'authorized push payment' ('APP'), whereby alleged authorization / instructions of the customer(s) were procured, deceptively or fraudulently, and funds were withdrawn / transferred to some beneficiary's account. This specie of fraud is distinguished from 'pull payment fraud', whereby payments are extracted from customer's bank account or debited by debit / credit card(s) without customer's knowledge or approval - these classes of frauds are explained in the case of Philipp v Barclays Bank UK PLC [2023 UKSC 25].
3. Banks denied their obligations to reimburse the amounts on the premise that acts of the customer(s) were in breach of the terms of account-opening documents and on-line banking facility, whereby the customer(s) were not supposed to share confidential information, and in case of non-adherence to agreed conditions no compensation is permissible. Banks claimed that while doing on-line banking, the customer(s) had to follow the instructions conveyed / announced and EFTs are regulated and controlled through autonomous electronic payment system, which is not accessible by the officials of banks and data therein is otherwise encrypted, subject to deencryption upon following protocols, exclusively within the knowledge of the customer(s). It is claimed that two-factor authentication process was in place, wherein before payment instructions are executed a special code, OTP is sent at the registered mobile of the customer(s), and unless OTP is fed in flashed window, no transaction could take effect.
Customer's position is that since banks owe a duty of care and diligence, therefore, banks should inquire into payment instructions before funds are released; and if banks had acted diligently all attempts to withdraw funds illicitly could be foiled. Mohtasib, heard complaints, solicited replies and documents, whereafter complaints were accepted and payment of compensation was recommended - equal to amount unauthorizedly withdrawn / transferred / debited. Mohtasib held banks liable for violating banking laws; responsible for non-co-operation with the customer(s) and attributed failure to undertake firefighting measures, promptly to protect monetary interests of the customer(s). Mohtasib held that banks failed to meet the test of burden of proof, envisaged in section 41 of the Payment Systems and Electronic Fund Transfers Act 2007 (Act, 2007), hence, declared that banks were in breach of their duties. Decisions of the Mohtasib were affirmed by the Office of President of Pakistan by dismissing representations preferred under section 14 of the Federal Ombudsmen Institutional Reforms Act 2013 ('Act 2013'). All cases involve allegation of unauthorized EFTs. Hence, these petitions.
Controversy-in-issue:
4. Banks invoked constitutional jurisdiction seeking 'writ in the nature of certiorari'. Scope of adjudication, under judicial review jurisdiction, is whether subject-matter act(s), done or proceedings taken, are within the ambit of lawful exercise of authority, by the Mohtasib.
Is exercise of jurisdiction lawful and within the statutory limits prescribed under the provisions of the Act 2013 and Ordinance 1962?
5. Primary objection against the orders is that Mohtasib had acted in excess of jurisdiction, conferred in terms of sections 82A to 82G of the Ordinance, 1962. Banks claim that scope and extent of the jurisdiction of the Mohtasib has had to be construed narrowly and conservatively, since it was not a Court but a tribunal, which had no authority to investigate and determine allegations of fraud, involving third-party, i.e. an anonymous caller or impersonator. Conversely, the customer(s) advocated that scope of jurisdiction of the Mohtasib need to be interpreted liberally, in wide / broad sense, especially when relevant statute empowers the Mohtasib to enquire into complaints against banking malpractices, violations of laws, allegations of maladministration, fraudulent acts in relation to transfer of funds and fraudulent or unauthorized withdrawals or debit entries. Reconciliation of competing claims qua jurisdictional question is a determinable issue, and such question is within the scope of Article 199 (a) (ii) of the Constitution of Islamic Republic of Pakistan 1973.
Submissions:
6. Learned counsel for banks contend that Mohtasib misconstrued extent of its jurisdiction and proceeded to decide factual / controversial disputes, bordering fraud and deception. Adds that Mohtasib misinterpreted section 41 of the Act, 2007, whereby, it erroneously placed obligation of burden of proof on banks, without appreciating that transactions were carried out in line with payment instructions, and banks cannot be penalized in lieu of facilitation extended by the customers, by sharing confidential information. Hence, no instance of unauthorized EFTs occurred.
Add that Mohtasib failed to consider the involvement of the customer(s), who had violated account-opening terms. Adds that cases are fit for trail before court of general jurisdiction.
Reference is made to section 50 of the Act, 2007. It is argued that remedies in cases of fraud and cheating are available under the provisions of Special Courts under Offences in respect of Banks (Special Courts) Ordinance, 1984. And to support submissions, following decisions are cited, Ghulam Mustafa V. Presiding Officer Special Court (Offences against Banks) Rawalpindi and others (2003 MLD 841), Hamza Raza V. The State, etc. (2014 CLD 1943), Naeema A. Sattar V.
Federation of Pakistan, etc. (PLD 2016 Sindh 311), Syed Mushahid Shah and others V. Federal Investment agency and others (2017 SCMR 1218), Mushtaq Ahmed V. Judge Banking Offences Court No.02, Lahore and others (2019 CLD 318), and Hamda Raza V. The State and others (2014 CLD 1493). And with regard to the jurisdiction of Mohtasib, reference is made to cases of United Bank Limited V. Federation of Pakistan and others (2018 CLD 587) and Habib Bank Limited V.
Federation of Pakistan and others (2022 CLD 769).
7. Learned counsel for the customer(s) contend that their clients had promptly approached respective banks and informed about fraudulent withdrawals / transfers, but no corrective measures were taken to stop transfers or retrieval of funds. Add that the customer(s) were constrained to approach Mohtasib to complain about conspicuous failure of banks to perform contractual obligations and discharge statutory duties. Mohtasib found banks liable for maladministration and compensation was accordingly recommended. It is argued that infatuation of banks with enforcement of the Act, 2007 is misconceived, because there in nothing contradictory between Ordinance 1962 and Act, 2007, therefore, the overriding clause in latter statute, which is section 67, is not attracted. Submit that Mohtasib can enquire into complaints of banking malpractices, violations of laws, acts constituting maladministration, fraud in relation to transfer of funds and fraudulent or unauthorized withdrawals or debit entries in the accounts, which is within the domain of its jurisdiction. Some of the customers, who are present, argue that on-line banking services were activated without authorization and likewise daily withdrawal amount limit was enhanced, without approval. It is emphasized that the customer(s) were obligated to share details when phone calls were made from Bank's customer-service numbers and callers claim to be the officials of banks. Reference is made to the cases of Habib Bank Limited V. Muhammad Ayub Mengal and others (2022 CLD 1448) and MCB Bank Limited through Authorized Attorney V.
Federation of Pakistan through Director (Legal) President's Secretariat Aiwan-e-Sadar, Islamabad and 2 others (2023 CLD 333).
8. Learned Law Officer gave an overview of the Act, 2007, remedies provided therein; highlighted fine distinction between the scope of Ordinance 1962 and Act 2007; and explained rational of promulgation of latter statute, primarily to address issues arising in the context of unauthorized EFTs and problems encountered in wake of on-line banking. Adds that banks are required to adhere to the payment system structured in terms of the Act, 2007 and are obligated to ensure that funds be withdrawn / transferred under proper instructions. Adds that institution of Mohtasib is created to provide cost-effective, quick and effective remedy to a common man without procedural intricacies and formalities of the courts. Submits that case of Habib Bank Limited through Litigation Officer V. Federation of Pakistan through President Secretariat Islamabad and 2 others (2018 CLD 1152) is distinguishable on the premise that adjudication relates to applicability of circular, introducing two-factor authentication, which system is in place and is effectively working.
Analysis:
9. Heard. Record perused.
10. Adjudication is confined to ascertainment and determination of scope and extent of jurisdiction of Mohtasib and to assess whether any irregularity or excess was committed, while deciding complaints. For sake of clarity, it is observed that facts involved in each case; nature and extent of breach of contractual obligations and duty to exercise reasonable care; issue of contributory or competitive negligence on the part of customers and effect thereof are alien to the scope of this judgment, however, references made thereto, in the course of adjudication, are for the purposes of deciding petitions and any such observation / references shall not prejudice individual grievance(s) raised and / or defence pleaded.
Indispensability of Institution of Banking Mohtasib [Ombudsman]
11. Institution / office of Ombudsman, first surfaced in 1809 in Sweden and thereafter continued to exist in one form or other, is manifestation of fulfillment of obligation of the State, which is to ensure provisioning of inexpensive and expeditious justice - Article 37(d) of Constitution of the Islamic Republic of Pakistan, 1973. In context of present case, purpose of office of Banking Mohtasib is to enable cost-free mechanism / forum for citizens for redressal of grievances without resorting to courts - an alternative to judicial remedies -, to protect customers from the consequences / effects of maladministration, to act as quasi-judicial forum to keep oversight over the banks, to check abuse of authority and arbitrary influence / practices of banks, and safeguard rights of the customer(s) by recommending compensation. It is ironic, that though institution of Ombudsman is centuries old still scope and extent of Ombudsman's jurisdiction is unsettled and often subjected to legal challenges seeking re-determination and re-defining of sphere of jurisdictional limits.
Variously, challenges are raised against the institution of Ombudsman on touchstone of directions contained in Article 175 of the Constitution of Pakistan, which challenges failed on the premise that office of Ombudsman is not a court, but a quasi-judicial forum, established by legislative enactment and serves as a vital tool for accountability in diverse governance system.
12. Institution of Mohtasib is here to stay, unless legislated otherwise. Judgments quoted and referred interpret the scope and extent of Mohtasib's jurisdiction and re-defines boundaries thereof, in the context of facts relevant to each case, but none of the judgment had threatened its existence, functioning and effectiveness. Endeavour to settle the scope and extent of jurisdiction is decades old struggle, which is perpetual and will continue to be litigated. This judgment intends to reiterate the significance of the institution of Mohtasib and to amplify contours of jurisdictional sphere, in the context of subject matter complaints, involving issue of unauthorized EFTs. Powers, functions and jurisdictional limits of Mohtasib are provided in sub-section (3) of Section 82A and sub-sections (4) and (5) of section 82B of the Ordinance, 1962 - interplay and working of these provisions were explained in the case of Soneri Bank Limited through Constituted Attorneys/Authorized Officers and another (2013 CLD 1756). Provisions are reproduced hereunder for ease of understanding:- 82A. Appointment of Mohtasib.--There shall be a Banking Mohtasib who shall be appointed by the President in consultation with the Governor of the State Bank of Pakistan.
(2)............
(3) The jurisdiction of the Banking Mohtasib in relation to banking transactions shall be to -
(a) enquire into complaints of banking malpractices;
(b) perverse, arbitrary or discriminatory actions;
(c) violations of banking laws, rules, regulations or guidelines;
(d) inordinate delays or inefficiency; and
(e) corruption, nepotism or other forms of maladministration.
82B. Terms and conditions of the Banking Mohtasib.-
(1) ............
(4) The Banking Mohtasib shall have the power and responsibility --
(a) to entertain complaints from customers, borrowers, banks or from any concerned body or organization;
(b) to facilitate the amicable resolution of complaints after giving hearings to the complainant and the concerned bank;
(c) to receive evidence on affidavit;
(d) to issue commission for the examination of witnesses; and
(e) in the event that complaints cannot be resolved by consent, to give findings which shall be acted upon in the manner set out herein.
(5) The Banking Mohtasib shall exercise his powers and authority in the following manner:-
(a) In relation to all banks operating in Pakistan. The Banking Mohtasib shall be authorised to entertain complaints of the nature set out herein below:
(i) failure to act in accordance with banking laws and regulations including policy directives or guidelines issued by the State Bank from time to time.
Provided that if there is a dispute as to the proper interpretation of any regulations, directions or guidelines, the same shall be referred to the State Bank for clarification.
(ii) delays or fraud in relation to the payment or collection of cheques, drafts or other banking instruments or the transfer of funds;
(iii) fraudulent or unauthorized withdrawals or debit entries in accounts;
(iv) complaints from exporters or importers relating to banking services and obligations including letter of credits;
(v) complaints from holders of foreign currency accounts, whether maintained by residents or non-residents;
(vi) complaints relating to remittances to or from abroad;
(vii) complaints relating to mark-up or interest rates based on the ground of a violation of an agreement or of State Bank directives; and
(viii) complaints relating to the payment of utility bills.
(b) In relation to banks in the public sector.--The Banking Mohtasib shall be authorized to entertain complaints against such banks on the following additional grounds as well -
(i) corrupt or malafide practices by bank officers;
(ii) gross dereliction of duty in dealing with customers: and
(iii) inordinate delays in taking decisions; and
(c) The Banking Mohtasib shall not entertain any compliant or application which has already been disposed of by the Staten Bank, or any court in Pakistan.
[Emphasis supplied]
13. In view of noted relevant provisions of law, powers and functions of Mohtasib were provided, extent whereof essentially determines the scope of jurisdictional limits. Law entitles and empowers Mohtasib to adjudicate upon subject-matter complaints, wherein complainants alleged incidences of banking malpractices, violations of banking laws, rules, regulations and guidelines, instances of maladministration, fraud in relation to transfer of funds and complain against fraudulent or unauthorized withdrawals or debit entries in the accounts. Hence, assumption of jurisdiction is lawful and is in accord with the mandate of Ordinance, 1962. Bone of contention is whether the jurisdiction exercised commensurate with defined limits or if exceeds the constraints prescribed. Dispute is always regarding the extent of exercise of jurisdiction. Before the scope and extent of jurisdiction is analyzed in the context of present case, it is imperative to address misconception regarding judgment in the case of United Bank Limited V. Federation of Pakistan and others (2018 CLD 587). It is alleged that decision in the case of United Bank Limited (supra) had divested Mohtasib of its jurisdiction, by reducing scope / ambit of jurisdiction to cases where banks admit claim(s) of the complainants - since restraint has been placed on considering disputed questions of fact, hence, it is conceived that every disputed fact is excluded from the jurisdictional sphere. No such restraint is construable. This erroneous view manifests inadequate understanding of paragraph 39 of the judgment, which reads as:- "In the circumstances, this writ petition and the connected writ petitions are allowed and sections 10, 11, 12 and 15 of FIORA are declared to be ultra vires the Constitution. It is furthermore declared that the Banking Mohtasib cannot give any binding decisions on the complaints brought before it involving disputed questions of fact by resorting to the provisions contained in section 82B and 82E of the Ordinance. Orders dated 08.10.2013 and 30.09.2015 passed by the Banking Mohtasib and President of Pakistan are accordingly set aside".
[Emphasis supplied]
14. I am afraid that text and context of the judgment is misread. Above-referred decision has neither curtailed nor blocked remedy of approaching Mohtasib nor any such construction could be attributed. Evidently, sections 82B and 82E of the Ordinance 1962 were not declared ultra vires - though some provisions of Act 2013 were declared ultra vires. Hence, sections 82B and 82E of the Ordinance 1962 are intra vires. Judgment had not placed any judicial clog / encumbrance on the powers, functions and jurisdiction of Mohtasib, except observing that no binding decisions to be made with respect to disputed questions of facts. Conventionally, Ombudsman does not decide intricate and complex questions of law and facts; Ombudsman does not interfere in matters which are sub-judice in court(s) of law; Ombudsman does not conduct regular trials, still empowered to call for affidavits and appoint commission for recording of evidence. Jurisdiction conferred is in the nature of quasi-judicial jurisdiction, where Mohtasib is entitled to receive evidence on affidavits, without the necessity of strictly following evidentiary principles. One must not overlook, evidently the significant role of the Mohtasib, which is to act as mediator for the purposes of resolving the disputes amicably, which makes application and adoption of evidentiary principles inapplicable for such mediation proceedings. Qanun-e-Shahadat Order 1984 is not applicable to arbitration proceedings, which leads to inference that meditators are not bound by the rigours of Qanun-e- Shahadat Order 1984 - and so is the Mohtasib. Statute per se supports adjudication of questions of fact, to an extent and extent is determinable by the Mohtasib.
Sub-section (4) of section 82B of the Ordinance 1962 extends certain powers and responsibilities, which empowers Mohtasib to receive evidence on affidavits and issue commissions for recording of evidence - which provides procedural facilitation to enable Mohtasib to enquire into complaints of banking malpractices [jurisdiction available in terms of section 82A(3)(a) of the Ordinance 1962]. It implies that evidence to limited extent, for discharging jurisdictional obligations, can be recorded by the Mohtasib. Hence, construing ratio in the case of United Bank Limited (supra) in a manner that every fact asserted and controverted will give rise to a disputed question of fact, attracting jurisdictional limitation / encumbrance is wrong and manifest erroneous construction thereof. No empirical guideline(s), conventional wisdom, guiding principles, legal presumption, judicial precedent, established doctrine, standard interpretation and interpretative tool is available for determining that what constitutes 'a disputed question of fact', scope whereof differs in each case, depending upon the facts, circumstances, pleadings, affidavits-in-evidence, report regarding examination of witnesses and effect thereof - disputed question of fact for the purposes of determination of jurisdictional limit of the Mohtasib is different from benchmark of determining what constitutes a triable issue in terms of Order XIV of Code of Civil Procedure 1908. I reiterate that every fact asserted and denied by other side will not per se become a disputed question of fact, by applying civil law principles contained in Order XIV, ibid, but such determination should be left for the determination by the Mohtasib - for ascertaining that what is a disputed question of fact and scope thereof; whether is it fair to exercise jurisdiction or avoid exercise thereof; answers to all these questions depends on the facts of each case. In short, learned counsel for banks misread the ratio of judgment in the case of United Bank Limited (supra), which has had no import of disentitling the Mohtasib from exercising powers and performing functions in accordance with the mandate of Ordinance, 1962. Scope and extent of jurisdiction of the Mohtasib is aptly and effectively elaborated and explained in the case of Messrs Muslim Commercial Bank Ltd. through Lawful Attorney V. Federation of Pakistan through Director, (Legal-II), President's Secretariat and 2 others (2020 CLD 829). Perusal of sections 82A, 82B and 82E of the Ordinance 1962 suggests that legislature contemplated role of the Mohtasib as a shadow regulator - without prejudicing the role, influence and powers of State Bank of Pakistan.
Section 82C of the Ordinance 1962 empowers the Mohtasib, where Court refers a reference to Mohtasib for inquiring into matter, where banking company has acted in mala fide manner or in violation of the banking rules and regulations, to pass orders in accordance with the provisions of the Ordinance, 1962. Is this not an anomaly that when court sends a reference to Mohtasib for exercising powers under the provisions of Ordinance 1962, which includes determination of allegation of mala fide - prima-facie a question of fact - Mohtasib may decide that question but not eligible to decide a question of fact when complaint is filed. In view of the above, I hold that judgment in the case of United Bank Limited (supra) does not bar assumption of jurisdiction by Mohtasib - whether exercise thereof is lawful or not, in the context of subject matter petitions, will be decided in latter part of the judgment.
Configuration of the transaction(s):
15. It is essential to get to the nub of the transactions to understand the scope and extent of the duties of banks, element of deception / fraud involved, extent of the role / involvement of the customer(s). Understanding of subject transactions may facilitate in ascertaining effect of contributory negligence and its repercussion qua quantum of compensation claimed. Fraud alleged is classified as 'authorized push payment' (APP), and to some extent cases attract classification of 'pull payment fraud' - explained supra.
16. Operating bank account from one's smart-phone, with the tip of the finger, is certainly convenient but risky too, if done without adherence to the instructions, consented to at the time of opening of account or agreed upon activation of on-line banking services - through Debit / Credit Cards or banking app. Simplicitor, on-line withdrawal or transfer of funds by the customers, in accordance with the instructions conveyed and followed, constitutes an authorized transaction - whether approval / authorization is accorded upon being induced by deception of fraud, if proved by the one who is victim, is a different scenario. And conversely withdrawal or transfer of funds, without customer's knowledge or approval is an unauthorized transaction. In latter case banks are required to show that payment instructions were properly conveyed and same are coming from the person duly authorized. Where banks doubt authenticity of the instructions, they may hold an inquiry before acting upon the same. To this extent there is no confusion. Problem arises, where customer claims that instructions passed / conveyed to the bank, either directly by the customer through phone-banking facility or following instructions on banking app, were induced by deception or fraud. And what would be the position where customer had communicated payment instructions through phone-banking facility or passed instructions through banking app, and after transaction was carried through, raised an objection that instructions were induced by deception or fraud. In this scenario whether the bank could be held liable or directed to reimburse the customer(s), who conveyed instructions of payment. What would be the obligations of banks in such situation. Whether bank is expected to exercise duty of reasonable care and skills, when it simply acted on the instructions of the customer(s) and had no doubt qua the credibility of instructions. Another question is what if customer(s) is involved in facilitating the transaction. What is the level of involvement of the customer. Whether customer is victim of fraud or collaborator / abettor. Whether customer is entitled for compensation despite contributory negligence. Some of the instances of contributory negligence constitute sharing of sensitive information like PIN's passwo rds, access codes, OTP's, Debit/Credit card(s) number and CNC. In some cases, customers disowned use of debit cards at ATM's and credit card(s) for shopping. Question requiring consideration by Mohtasib is whether factum of disputed transactions was reported promptly.
Likewise, on-line transactions, where sensitive / confidential information is shared and as consequence thereof loss of funds happened - whether act of sharing of information discretely constitutes an act of contributory negligence. These critical issues need determination.
Examination of orders on merits:
17. Mohtasib ignores and overlooks to consider the effect and consequence of 'contributory negligence' and 'comparative negligence'. Apparently, Mohtasib shifted absolute responsibility on banks by placing reliance on section 41 of the Act 2007. It is appropriate to understand rational and relevance of section 41, read with section 40 of Act 2007, which are reproduced hereunder:- "40. Consumer's Liability.--- A consumer shall be liable for any unauthorized Electronic Fund Transfer involving the Account of such consumer only if the card or other means of access utilized for such transfer was an Accepted Card or other means of access and if the issuer of such card, code or other means of access has provided a means whereby the user of such card, code or other means of access can be identified as the person authorized to use it, such as by signature, photograph, or finger print or by electronic or mechanical confirmation.
41. Burden of Proof.--- In any action which involves a consumer's liability for an unauthorized Electronic Fund Transfer, the burden of proof shall be upon the Financial Institution or the Authorized Party to show that the Electronic Fund Transfer was authorized or, if the Electronic Fund Transfer was authorized, then the burden of proof shall be upon the financial Institution or the disclosures required to be made to the consumer under this Act were in fact made in accordance with the provision thereof".
18. Aforesaid provisions of law need appreciation in the context of submissions by learned counsel for banks, who emphasized that factum of sharing of sensitive information was not denied, including the fact of receiving of OTPs on registered mobile phones still no call-logs of registered mobile phones were appended with the complaints. There are cases where withdrawals / debits were attributed to misuse of debit / credit cards - whether loss of card was reported and how promptly. This inquiry by the Mohtasib is conspicuous by its absence. Section 41 of the Act 2007 used expression 'unauthorized Electronic Fund Transfer' which prima facie raised a query that whether such transactions where instructions were issued by the customer(s) authenticity whereof is though disputed, if at all application of strict rule of burden to prove is to be applied. Whether strict compliance of rule of burden of proof is warranted qua trasactions where customer had issued instruction for payment, but renege afterwards and raise plea of inducement by deception or fraud. Whether any evidence could be produced by the bank in such situation to meet the test of burden of proof. I refrain from commenting on all these issues because determination of these issues would enable the Mohtasib to reach conclusion, whether to exercise jurisdiction or avoid adjudication and suggest invocation of remedy under section 50 of the Act, 2007 or other concurrent remedies. Constitutional courts, in exercise of judicial review jurisdiction, would not decide or determine that where the jurisdiction of the Mohtasib starts and where it ends. It has to be determined by the Mohtasib. Problem arises and jurisdiction of constitutional courts are invoked when Mohtasib fails to determine what to decide and what not to decide. In cases before me Mohtasib fails to segregate cases where exercise of jurisdiction is justified and where it was not. I will not undertake that exercise to review each case. I leave it to the good judgment of the Mohtasib to decide matters afresh in exercise of jurisdiction vested in law. These are fit cases for remand, where Mohtasib would decide that which cases are triable by Mohtasib and which are otherwise triable by courts of general jurisdiction. Judgments cited and not discussed, are distinguishable on facts.
19. During course of hearing a query is posed that whether remedy of appeal provided in terms of sub-section (4) of section 82E of the Ordinance, 1962 is superseded by allowing remedy of representation with the Office of the President in terms of section 14 of the Act 2013. It appears that section 67 of the Act 2013 extends overriding effect to the provisions of Act 2013 and preference in case of any inconsistency with any provision of relevant legislation. Is there exist any conflict in the context of remedy of appeal and representation. Are remedies concurrent or not. Whether remedy of appeal before the regulator is more efficacious, effective and appropriate. All these questions are left open to be considered in any other case since this court is setting aside the orders impugned and remanding the matter to the Mohtasib for decision on the complaints, afresh.
20. In view of the aforesaid, these petitions are allowed, decisions by the Banking Mohtasib and orders of dismissal of representations by the president are set-aside. Subject matter complaints shall be deemed pending before the Mohtasib, which shall decide the complaints afresh after affording opportunity to the parties to produce documents, affidavits and evidence, in support of their respective claims. No order as to the costs.