' MUHAMMAD MUJEEBULLAH J---Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan the petitioner has sought the following relief: "It is, therefore, prayed that this Hon'ble Court be pleased to: (a) issue a writ of mandamus or any other order/direction in the nature of mandamus directing the respondents in the discharge of public duty to consider claim of the petitioner as to his entitlement of bearer certificate more particularly known as U.S. Dollar Foreign Currency Bearer Certificates bearing No,DD002344 worth U.S. Dollar 5000 (Five Thousand U.S. Dollars), which have been lost. In accordance with law, and order refund of the amount of above Government securities alongwith profit accrued, or issue duplicate of the same under the law to the petitioner.
(b) declare that any rule/notification issued in existence if any under the Public Debt Act which are contrary/in violation of the Act are void and of no legal effect to that extent and thus, unenforceable.
(c) permanently restrain the respondents to encash the Government securities with the above serial number mentioned in the petition which have been lost' and dealing thereof may be stopped without consent of the petitioner.
(d) pending hearing of this petition ad interim order directing the respondent No,3, to suspend payment of interest and or maturity value of the Government securities of the above serial number or prohibiting encashment thereof is solicited."
2. The facts giving rise to this petition as contained in the memo. Of petition are that the petitioner is residing at Karachi and is doing business of Import and Exports. He purchased 5 year's U.S. Dollars Bearer Certificate on 22-6-1993 from "Bank of America" Branch, I.I. Chundrigar Road. Karachi, worth U.S. Dollars 5000 (Five Thousand) bearing No,DD002344. The said Certificate was in the possession of petitioner till 9-5-1998. On this date petitioner was on his way to Bank of America for intimation of maturity of the certificate. On the way he stopped at Electronic Market, Saddar, Karachi to look for "Dish Receiver". The said U.S. Dollar Bearer Certificate was in the Diary of the petitioner, which was misplaced from the shop. The petitioner thereafter went to Bank of America and informed in writing to the concerned bank official regarding loss of certificate. The petitioner searched the said certificate for few days and thereafter lodged F.I.R. With Preedy Police Station Karachi. The Bank of America wrote a letter to the respondent No,2, the State Bank of Pakistan, for a caution against this certificate. The petitioner visited the Bank of America for several times but no one turned up with the said certificate. Enquiries were made from State Bank of Pakistan as well, and it was informed that till the filing of the petition no one came to encash the above certificate.
The petitioner contacted the Bank of America Karachi Branch and State Bank of Pakistan with a request to find out some solution to the loss of U.S. ' Dollars Bearer Certificate and entered into correspondence with them, as well.
2-A. It is further stated that a Division Bench of this Court while deciding a similar petition being Civil Petition No,814 of 1996 ordered as follows:-- "a statement has been filed giving undertaking from the respondent No,2 that they will hold an inquiry in respect of loss of Foreign Currency Bearer Certificates (FCBCs) belonging to the petitioner as per law. It is also been undertaken by respondent No,3 that they shall not encash the same FCBCs till finalisation of the inquiry to be conducted by Respondent No,2.
' That respondent No,2 is directed to hold the inquiry and complete the same within a period of six months as provided under the law and the respondent No,3 is directed not to encash the FCBs till the finalisation of the inquiry and, in case, the result of the enquiry is in favour of the petitioner, the respondent No,3., shall issue duplicate certificates in favour of the petitioner. Learned counsel for the petitioner is satisfied with the above undertaking and directions and, as such this petition is disposed of in the terms of the above orders alongwith the pending applications."
3. According to petitioner the respondents offered no solution regarding encashment of the loss of certificate and nobody has encashed the said certificate, therefore, he is entitled to have encashment of the certificate but the respondents have refused to accede to the request of the petitioner on the pretext of certain rules and hence this petition.
4. It is averred in the grounds, in the memo. Of petition that the respondents being public functionary failed to discharge their obligations under the law and the respondent No,2, omitted to determine the claim of the petitioner in the light of the provisions contained in the Public Debt Act, 1944. It is further pleaded that the Government Security involved in this petition is identifiable and is encashable only from respondent No,3, the branch from it was purchased and it has not been encashed by anybody so far, therefore, the petitioner is entitled to the issuance of the duplicate security subject to such conditions as may be imposed by respondent No, 1 .
5. The respondent No,2 in their written statement/comments have stated that the petition is not maintainable, as the petitioner has no locus standi against the respondent No,2 It is submitted that, as a matter of fact it is not expected from a person of having ordinary sense to roam in the Electronic Market at Saddar, Karachi, from shop to shop, keeping a valuable Certificate in a diary.
Just to look for a Dish Receiver. It is further contended that the documents submitted by the petitioner require deep scrutiny and the same can be proved through evidence. It is admitted that the letter from the respondent No,3, the Bank of America was received by the respondent No,2, which was replied on 2-6-1998 referring to Rule 11 of Five Years Foreign Currency Bearer Certificate Rules. 1992, to the effect that no claim of any nature will be entertained in case of any certificate being lost, stolen, destroyed, mutilated or burnt. It is further pleaed that the respondent No,2 is not responsible for any loss as per the terms printed on the bearer certificate, which reads as follows.-- "The bearers of the Certificate is entitled to receive payment of U.S. Dollar five thousand only five years after the date of issue and the profit @ 7,7500 per annum payable half yearly in accordance with the Five Years Foreign Currency Bearer Certificate Rules, 1993 on presentation at the office of issue."
6. Heard, Miss Sofia Sated, learned counsel for the petitioner and M/s. A.H. Mirza and M.K. Shikoh, Advocates for the respondents.
7. At the very out set the learned advocates for the respondents have submitted that Civil Petition No,814 of 1996 was decided on the concession of the then Advocate for respondent No,2, that they will hold an inquiry in respect of loss of foreign currency bearer certificate belonging to the petitioner as per law. And that respondent No,3, shall not encash the same till finalization of the inquiry conducted by respondent No,2. According to the learned Advocates, the undertaking in the earlier petition has no binding effect in the present petition. In support of their submission they have placed reliance on a Single Bench judgment of Lahore High Court in the case of Muhammad Azim v. Muhammad Aslam 2000 YLR 1043, wherein it has been held that any concession given by a counsel on question of law was neither binding on his client nor on the Court.
8. On the other hand, learned counsel for the petitioner has submitted that refusal of the petitioner to hold inquiry and issue the duplicate certificate with reference to rule 11 of the Five Years Foreign Currency Bearer Certificate Rules 1992, issued under section 28 of the Public Debt Act, 1944, is misplaced. She has submitted that it is provided in the said rule that no claim of any nature will be entertained in case of any certificate lost, stolen, destroyed, mutilated or burnt. She has maintained that the petitioner has never asked the respondent No,2 to pay any claim to compensate the loss but has merely requested for issuance of duplicate certificate in terms of section 11 of the Public Debt Act, 1944. She has contended that admittedly the Foreign Currency ' Bearer Certificate purchased by the petitioner was issued by Governor State Bank of Pakistan, by order of the President of Pakistan and is a Government Security as defined in section 2(2) of the Public Debt Act, 1944. She has further submitted that under section 11(1) of the Public Debt Act, the petitioner is entitled for issuance of duplicate security. Section 11(1) reads as under:-- "11(1). If the person entitled to a Government Security not being security in a form notified in pursuance of paragraph (iv) of sub-clause (a) of clause (2) of section 2, applies to the Bank alleging that the security has been lost, stolen or destroyed, or has been defaced or mutilated, the Bank may, on proof to its satisfaction of the loss, theft, destruction, defacement or mutilation of the security, subject to such conditions and on payment of such fees as may be prescribed, order the issue of a duplicate security payable to the applicant."
9. The word 'bank' used in the above section means the State Bank of Pakistan as defined in section 2(1) of the Public Debt Act, 1944. The learned counsel for the petitioner has argued that the respondent No,2, has failed to discharge its mandatory duty under section 11(1) of the Public Debt Act, 1944 and, therefore, the respondent No,1 be directed to act in accordance with law.
10. The learned Advocates for the respondents are not able to rebut the contentions of the learned counsel for the petitioner.
11. We have very carefully considered the contentions raised before us, the documents produced by the parties and the relevant law on which reliance has been placed.
12. We are persuaded to agree with the contention of learned counsel for the petitioner that the respondent No,2 has failed to discharge its duty under the law. The respondent No,2 is a very responsible institution and we regret to say, that the respondent No,2 instead of helping the person in distress, in accordance with law has acted in a manner unwarranted and not expected by a highly responsible institution. The petitioner has never filed any claim of loss with respondent No,2 but the respondent No,2 and its officials have continued to harp on the tune; that under rule 11 of the Five Years Foreign Currency Bearer Certificate Rules ,1992, no claim can be entertained. It is unfortunate that the authorities in the State Bank of Pakistan, failed to discharge their duty under section 11(1) of the. Public Debt Act, 1944. The provisions in section 11(1) are very obvious and do not require any interpretation. There is no ambiguity in the law. There is no complication and there can be no difficulty in acting upon the requirement of the relevant law. The only reason, which we find, for non-compliance with the dictate of law, is the lack of sense of responsibility on the part of authorities concerned and non-realization of the difficulties faced by the petitioner, which is highly deprecated.
13. Consequent to the above discussion, the petition is allowed and the respondent No,2 is directed to hold inquiry as required under section 11(1) of the Public Debt Act, 1944 and to complete the same within the period of three months from receiving the copy of this order and if the satisfactory evidence is produced to the effect that the security (Foreign Currency Bearer Certificate) has been lost, the respondent shall issue a duplicate security payable to the petitioner subject to such conditions and on payment of such fee, as may be prescribed. The respondent No,3 is directed not to encash the relevant FCBCs till the finalisation of the inquiry and if the result of inquiry is in favour of the petitioner the duplicate certificate shall be issued under the orders of respondent No,2 in accordance with law and the respondents are further directed that if the duplicate certificate is issued the same shall be encashed in accordance with law. Since no rule/notification has been brought to our notice contrary to the provisions contained in section 11(1) of the Public Debt Act, 1944, therefore, no declaration/direction is required in this behalf.
14. The petition stands disposed of as above with no order as to costs.
15. After hearing the learned Advocates for the parties, the petition was allowed by short order on 29-9-2001.These are the detailed reasons in support thereof.