2003 PLP 361 (CLC)

"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‑II, Gulberg II, 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 I 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 v. Javed Ahmed and 2 others (C.A.No.238 of 1999) decided by the Honourable 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 I1 (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 Yin 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 Honourable 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 Foreign 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. " If merely debars issuance of a duplicate of a Bearers Certificate, 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 encashed 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 Ahmad, husband of late Mst. Parveen Qamar, is a practising advocate and had addressed arguments on his own behalf and on behalf of other legal representatives 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.1,00,060), Registered No.637 dated 24‑1‑1995 (amounting to Rs.75,000) Registered No.740 dated 1‑8‑1995 (amounting to Rs.1,00,000) 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. H.B.T./P‑105/L Petition accepted.