MIAN NAZIR AKHTAR, J.- This Constitutional petition has been filed for a declaration to the effect that the order conveyed to the predecessor-in-interest of the petitioners vide letter No. F- 10(2)Sch/Cert/95, dated 15.10.1995 is illegal and against the predecessor-in-interest of the petitioners' Constitutional rights and further for a direction to the respondents to issue duplicate certificates against the consideration already received by the respondents or in the alternative to pay back the entire cash with profit in respect of the bearer certificates, which were robbed from Mst. Parveen Qamar/predecessor-in-interest of the petitioners.
2. Briefly stated, the facts giving rise to this petition are that the predecessor-in-interest of the petitioners purchased Special Saving Certificates (Bearer) from the National Saving Centre, Shadman Colony, Lahore bearing Registered No. 484, dated 30.1.1995 for an amount of Rs. 1,0, 000/-, Registered No, 637, dated 24.1.1995 for an amount of Rs. 75,000/- and Registered No. 740, dated 1.8.1995 for an amount of Rs. 1,00,000/-. On 1.8.1995, predecessor-in-interest of the petitioners went to the National Saving Centre, Shadman Colony, Lahore to get profit against her savings. After receiving the profit, when she was returning home, she was waylaid by some unknown robbers, who forcibly snatched away her purse containing certificates and cash amount of Rs. 14,500/-. The predecessor-in-interest of the petitioners immediately went to the National Saving Center Shadman Colony, Lahore and informed the officer-in-charge, Deputy Incharge, the Cashier and other concerned officials regarding the robbery. The husband of Mst. Parveen Qamar, predecessor-in-interest of the petitioners reported the matter to the police, whereupon a criminal case was registered vide F.I.R. No. 97, dated 1.8.1995 at Police Station, Shadman, Lahore. Mst. Parveen Qamar, predecessor-in-interest of the petitioners intimated the concerned National Savings Authorities about the occurrence through a number of letters and requested that the robbed bearer certificates be cancelled and fresh/duplicate certificates be issued to her. However, the request of Mst. Parveen Qamar, predecessor-in-interest of the petitioners was turned down vide letter dated 15.10.1995 in view of Rule 14(3) of the Special Saving Certificate Rules, 1990.
3. I have heard the learned counsel for the petitioners and the learned Deputy Attorney General at length and perused the material on the record, It is admitted in para 2 of the comments/written statement submitted on behalf of the respondents that Mst. Parveen Qamar, predecessor-in- interest of the petitioners had purchased Special Saving Certificates from the National Saving Centre, Shadman vide Registered Nos. 484, 637 and 740 (for a total amount of Rs. 2,75,000/-). It was further admitted that the investment made against the said certificates is still intact and the certificates have not been presented for encashment by anybody.
4. The case of Mst. Parveen Qamar, predecessor-in- interest of the petitioners is that the certificates were robbed from her on 1.8.1995 whereupon her husband immediately got registered.F.I.R. No. 97, dated 1.8.1995 with the police and then informed the National Saving Centre Shadman through letter dated 2.8.1995. The Assistant Director replied this letter through his letter dated 9.8.1995, which reads as under:- "We are in receipt of your letter dated 2.8.1995 regarding the subject cited above and share your agony in the incident which has taken place. We have issued necessary instructions to our Joint Director, National Savings at 121-D-ll, Gulberg-ll, Lahore, for issuing immediate necessary instructions to the Officer Incharge, NSC, Shadman Colony, Lahore to exercise precaution in the matter, in order to avoid fraudulent encashment of the Special Saving Certificate (Bearer) in question."
Thus, the factum of investment made by Mst. Parveen Qamar-deceased, the predecessor-in- interest of the petitioners is admitted, It is also admitted that the robbed certificates were not presented by anybody for encashment. Therefore, the investment made by the deceased with respondents is intact. Her legal heirs cannot be deprived of their property in view of the Constitutional guarantees enshrined in Articles 23 and 24 of the Constitution of the Islamic Republic of Pakistan. Article 23 provides: "23. Provision as to property. -- Every citizen shall have the right to acquire, hold and dispose of property in any part of Pakistan, subject to the Constitution and any reasonable restrictions imposed by law in the public interest."
Article 24(1) provides: "24. Protection of property rights. -- (1) No person shall be compulsorily deprived of his property save in accordance with law."
5. The learned Deputy Attorney General contends that the petitioners are not entitled to claim issuance of duplicate Certificates in view of the prohibition contained in rule 14(iii) of the Special Savings Certificates Rules, 1990.
6. The petitioners' learned counsel has relied on the judgment in the case of The State Bank of Pakistan, Securities Department, Central Directorate through its Chief Manager, Lahore Vs. Javed Ahmed and 2 others (C.A. No. 238/99) decided by the Hon'ble Supreme Court of Pakistan vide judgment dated 29.11.2001 to urge that rule 14(iii) of the Rules is void, being repugnant to Article 24 of the Constitution of the Islamic Republic of Pakistan. The precedent case pertains to interpretation of the Five Years Foreign Currency Bearer Certificates Rules, 1992 and Section 11 of the Public Debt Act, 1944. Section 11 (1-A) of the Act provides, "If a Government Security in any of the forms notified in pursuance of paragraph (iv) of sub- clause
(a) of clause (2) of Section 2 has been defaced or mutilated, the holder thereof may, in such manner, and subject to such conditions and on payment of such fees, if any, as may be notified by Government, apply for the issue of a duplicate security, or for the refund of its value}:- (Provided, that, where such Government Security is in the form of Prize Bond, the holder thereof may apply only for the refund of Its value").
However, rule 11 of Five Years Foreign Currency Bearer Certificates Rules, 1992 provides: "No claim of any nature will be entertained in case of any certificate is lost, stolen, destroyed, mutilated or burnt."
Obviously, the rule is inconsistent with the provisions of the Act and was declared to be ultra vires of the provisions of the Act by the Hon'ble Supreme Court of Pakistan. The relevant para 19 from the judgment reads as under:-- "We have seen that Section 11 (1A) of the Act provides a right to holder of such a certificate to have issued a duplicate one in case the original had been defaced or mutilated, therefore, this rule to the extent that no claim shall be entertained even in case the same had been defaced or mutilated is ultra vires of the said provisions of the Act, therefore, could neither be pressed into service nor enforced."
The case in hand is governed by the Special Savings Certificates Rules, 1990 framed by the Federal Government. The rules do not make any provision, similar to that of Section 11 of the Public Debt Act, 1944 and rule 11 of the Five Years Currency Bearer Certificates Rules, 1992. It contains rule 14(3), which reads as under:-- "No duplicate certificate shall be issued under any circumstances in lieu of Bearers Certificates."
It merely debars issuance of a duplicate of a Bearers Certificates, whether lost, stolen or mutilated, It does not provide like rule 11 of the above-referred Rules, 1992, that no claim of any nature will be entertained in case any certificate is lost, stolen, destroyed or mutilated or burnt. Meaning thereby that a person who has made investment can put up the claim before the concerned authorities for refund of the amount invested by him on a clear proof that investment was actually made by him.
In the present case, it is admitted that Mst. Parveen Qamar, predecessor-in- interest of the petitioners had purchased Special Savings Certificates, detailed in para 2 above. They cannot be deprived of their property in view of the provisions of Articles 23 and 24 of the Constitution of the Islamic Republic of Pakistan. The Government is supposed to be a fair litigant and is not expected to take up a position so as to deprive a citizen of his or her legitimate rights qua property. The Special Savings Certificates Rules, 1990 have not been framed under any statutory authority, at least none is mentioned in the Rules. Therefore, these may be treated to be mere administrative instructions. Even if rule 14(3) is followed, it merely forbids issuance of duplicate certificates. The petitioners may not be entitled to claim duplicate certificates but they are still within their rights to claim return of the investment with profits, particularly in view of the fact that the robbed certificates have not been got en-cashed by anyone. Hence the respondents have not sustained any pecuniary loss. They are holding the investment made by Mst. Parveen Qamar-deceased, predecessor-in-interest of the petitioners, which is in the nature of a trust with them. They are bound under the law to refund the amount of the investment with profits earned thereon under the provisions of the scheme, to the petitioners.
7. Mian Qamar-ud-Din Ahmed, husband of late. Mst. Parveen Qamar, is a practicing Advocate and had addressed arguments on his own behalf and on behalf of other legal representative of the deceased Mst. Parveen Qamar. He undertakes that the petitioners will furnish a surety bond to cover the entire amount paid to them by the respondents with a clear stipulation to refund the amount, if any other lawful claimant comes forward to claim the amount on the basis of the above-referred certificates.
8. For the foregoing discussion, the petition is accepted and the respondents are directed to refund the entire investment made by Mst. Parveen Qamar-deceased, predecessor-in-interest of the petitioners on the basis of Special Saving Certificates bearing Registered No. '484, dated 30.1.1995 (amounting to Rs. 1,00,000/-), Registered No. 637, dated 24.1.1995 (amounting to Rs. 75,000/-), Registered No. 740, dated 1.8.1995 (amounting to Rs. 1,0, 000/-) and Registered No. 6, dated 5.6.1993, with profit accrued to them under the scheme. The petitioners will furnish a bond with an undertaking to return the amount, if at any subsequent stage, any other lawful claimant comes forward to claim the amount and a decision is made by the concerned authorities of the National Saving for paying the amount to the claimants. The parties are left to bear their own costs.