' The appeal is addressed against the order of learned Additional Sub Judge, Mirpur passed on August 30, 1988, whereby decree for payment of Rs,9,800 in addition to Counsel fee in the sum of Rs, 550 was passed in favour of Mst. Raj Begum, plaintiff-respondent and against defendants- appellants.
2. Defendant-appellant No,1 is Habib Bank Ltd. Jatalan Branch and Khadim Hussain, defendant- appellant No,4 is the Manager of the Bank. Mst. Raj Begum opened her account in Habib Bank Ltd.
Jatalan. Branch in September 1974 under account No, 1133. She deposited the amount in the Bank from time to time. A sum of Rs, 9,800 was withdrawn from her account on August 4, 25, September 16, November 1, 1975 and January 3, 1976. In 1976, she approached the Manager of the Bank for payment of the amount to her when she learnt that the aforesaid amount was withdrawn from her account previously. She denied to have withdrawn the amount on which she was apprised that the amount was withdrawn by a woman on the identification of Habibur Rehman son of Fazal Khan, Chib Rajput of Ghazi-Gorah Tchsil Bhimber. Khadim Hussain, the Manager of the Bank Jatalan Branch, on apprehending foul play approached Habibur Rehman who accepted the liability by giving undertaking in writing for refund: of the amount. On his failure to remit the amount, the Bank Manager instituted: criminal proceedings against the said Habibur Rehman under sections 419 and'
420, Penal Code. As the amount was not accounted for, Mst. Raj Begum instituteda civil suit for recovery of the amount on March 5, 1977. She raised the aforesaid facts in her pleadings. The suit was contested by the Habib Bank Authorities and Khadim Hussain, the Manager of the Bank. The learned Additional Sub Judge decreed the suit.
3. Mr, Abdul Latif Dutt, the learned counsel for the appellants assailed the finding of the learned Additional Sub-Judge. It was emphasized that the impugned decree was passed without any evidence and proof of the claim of the plaintiff-respondent. The learned counsel urged that plaintiff herself received the amount. In the alternative, it was suggested that unless impersonation was established by evidence, the Bank was not responsible to account for the amount in dispute.
The contention was opposed by Mr. M.S. Tariq, the learned Counsel for the respondents who supported the impugned order.
4. It is admitted that Mst. Raj Begum is the holder of account No, 1133 in Habib Bank Branch Jatalan.
It is also admitted that the amount in dispute was withdrawn from the Bank on different occasions.
It is averred by Khadim Hussain, in his written statement that a complaint under sections 419 and 420, Penal Code was instituted before the Magistrate on September 5, 1976, wherein Habibur Rehman was ascribed impersonation and deception.
5. Mst. Raj Begum has not appeared as a witness. She produced Subedar (retd.) Muhammad Shall and Muhammad Rafique. Both these witnesses deposed in support of execution of an agreement Ex. PA, whereby Habibur Rehman, on acceptance of the liability of the amount, agreed to repay it. In rebuttal, Abdul Khalique, Manager of the Bank, Habib Bank Ltd. Jatalan Branch appeared as a witness. He produced record of the account No, 1133 and statement of account, in addition to forms issued from time to time in respect of the aforesaid transaction of withdrawal of the amount.
6. The oral evidence produced in support of execution of document Ex.PA, is an indirect support of the claim of the plaintiff. However, copy of the order of the Magistrate passed on February 17, 1977, directly lends support to the claim of the plaintiff. Mr. Abdul Latif Dutt, the learned Counsel argued that the order of the learned Magistrate cannot be read in evidence as the same was neither tendered in evidence nor proved as such.
7. It is correct that the rules of procedure and the provisions of the Evidence Act postulate that a document, desired to be produced in evidence, must be duly proved, as such, in compliance with the conditions laid down under the procedures and the Evidence Act. But this is not an absolute rule. It is permissible to read a document in evidence when its genuineness is unquestionable and not disputed. This view finds support from Maqsood Hussain Shah's case, PLD 1989 SC (AJ&K) 45, wherein it was held that an undisputed public document, the genuineness of which is not questioned, though not received and proved in evidence under the rules of procedure, can be considered in evidence. On the basis of the aforesaid authority, it is permissible to examine the order of the learned Magistrate, recorded on the complaint of Khadim Hussain against Habibur Rehman, under sections 419 and 420, Penal Code. The objection is, therefore, not sustained.
8. It is quite clear from the copy of the order of the Magistrate that Khadim Hussain instituted a complaint against Habibur Rehman for withdrawing the amount by deception, at various times.
The complaint was dismissed for want of proof. Be that as it may, the fact remains that the Bank Manager himself was satisfied that the amount was not withdrawn by the account-holder but by a third person by impersonation and deception. Institution of the complaint tantamount to admission of the claim of the plaintiff.
9. A Bank is the trustee of the account holder. It is enjoined upon the Bank to ensure that no withdrawal is made by a third person to the detriment of the true account-holder. The rules of procedure applicable to Bank transaction, equally enjoined upon the Bank authorities to satisfy themselves before making payments on a cheque or otherwise. In this case, it appears that the Bank Manager and his staff, in derogation to their duty, allowed withdrawal from the amount of the plaintiff-respondent. Thus, it is a clear case of negligence of the Ba9k staff and the Manager. The Habib Bank is the principal and it employees act as its agents. The principal is equally responsible for the negligence, omission and commission of its agents. Therefore, the liability when not suffered by the Manager of the Bank, its agent, then the liability has to be satisfied by the Bank itself. The order of the learned Additional Sub-Judge suffers from no defect. It is, therefore, maintained.
10. There is no force in the appeal. It is accordingly dismissed with costs.