INCONSISTENT DECISIONS OF SUPERIOR COURTS

INCONSISTENT DECISIONS OF SUPERIOR COURTS <!--[if gte mso 10]> INCONSISTENT DECISIONS OF SUPERIOR COURTS By Ch. Irshad Ahmad Former Federal Law Secretary [Case: Allied Bank of Pakistan v. Wafaqi Mohtasib and others PLD 2001 Karachi 203] Two cheques were drawn on an account holder's account with Allied Bank. Account holder contended that the cheques did not bear his signature. The bank investigated the complaint and concluded that the cheques were signed by the account holder. On 16-9-1991 the account holder complained to the Wafaqi Mohtasib that the bank has unauthorisedly debited his account on the basis of forged cheques. The bank, inter alia contended that since it has been privatised w.e.f. 12-9-1991 the Wafaqi Mohtasib could not accept the complaint for investigation against it because the jurisdiction of the Mohtasib extends only to the federal departments or bodies owned or controlled by the Federal Government and not to private bodies. The Wafaqi Mohtasib did not accept the bank's contention regarding ouster of his jurisdiction, and ultimately directed the bank to credit the account holder's account with the sum that was withdrawn from it through the disputed cheques. The bank impugned the direction of the Wafaqi Mohtasib through a petition under Article 199 of the Constitution in the Sindh High Court. In the High Court the bank, inter alia, contended that the Wafaqi Mohtasib had no jurisdiction to accept the complaint for investigation against it because it was a private body. 2. The High Court, however, vide its judgment dated 1-2-2001 (PLD 2001 Karachi 203) held: "that when the act complained against was committed the bank was an agency as defined in Article 2(1) of P.O.1 of 1983 and so was the position when the complaint was made to the Wafaqi Mohtasib, therefore, the jurisdiction once acquired by the Wafaqi Mohtasib shall continue till the conclusion of the proceedings notwithstanding the denationalisation of the bank". The finding of the High Court that the bank was an agency as defined in Article 2(1) of P.O. 1 of 1983 when the complaint was made to Mohtasib does not conform with the statement of facts narrated in the judgment which shows that the complaint was made on 16-9-1991 whereas the bank had already been privatised on 12-9-1991. For the purpose of this commentary this point is, however, insignificant. 3. The decision of the High Court in Allied Bank's case is inconsistent with an earlier decision of the said Court. In Constitutional Petition No.3546 of 1993 the High Court vide its judgement dated 18-4-1998 had held that "the bank which was originally nationalized but was privatised in 1992 the case against a private bank or for that matter any private agency cannot be looked into by the Mohtasib". (Quoted with approval by the Supreme Court in Muslim Commercial Bank v. Momin Khan 2002 SCMR 958). It is an established rule that reported and unreported decisions of superior Courts have equal binding force. The judicial comity requires that decisions of superior Courts of co-ordinate jurisdiction remain consistent. The decision of the High Court dated 18-4-1998 in Constitutional Petition No.3546 of 1993 and the decision dated 1-2-2001 in Allied Bank's case are irreconcilably inconsistent. I feel that there is. a dire need that each High Court establishes a system by which its decision on the particular point should be available to the Bar as well as to the Bench when another case involving the same point is heard by the High Court.