CONSTITUTIONAL PETITION UNDER ARTICLE 199 OF THE CONSTITUTION OF THE ISLAMIC REPUBLIC OF PAKISTAN, 1973



CONSTITUTIONAL PETITION UNDER ARTICLE 199 OF THE CONSTITUTION OF THE ISLAMIC REPUBLIC OF PAKISTAN, 1973 SAMPLE


IN THE HIGH COURT OF SINDH AT KARACHI 
Constitutional Petition D. No. /2011 

Faraz Channa s/o Qadir Bux Channa, Muslim, Adult, r/o P-2, Chapel Heights, Phase-2, Block 17, Gulistan-e-Johar, Karachi. ------------------------------------------- PETITIONER 

VERSUS
 
1. The Federation of Pakistan, Through the Finance Secretary, Government of Pakistan, Pakistan Secretariat, Islamabad. 

2. The State Bank of Pakistan, Through the Governor, State Bank Building, I. I. Chundrighar Road, Saddar, Karachi. 

3. The Additional Director, Exchange Policy Department, State Bank of Pakistan, I. I. Chundrighar Road, Saddar, Karachi. 

4. The Director, F. I. A. Crime Circle, 25/A, Lalazar, M. T. Khan Road, Karachi. 

5. Khanani & Kalia International (Private) Limited Through its C.E.O, Abdul Munaf Kalia, Having its office at Suite No. 1101-1105, 11th Floor, Block-A, Saima Trade Tower, I. I. Chundrighar Road, Saddar, Karachi. --------------------------- RESPONDENTS 

CONSTITUTIONAL PETITION UNDER ARTICLE 199 OF THE CONSTITUTION OF THE ISLAMIC REPUBLIC OF PAKISTAN, 1973 

The Petitioner abovenamed, respectfully, beg to submit the following facts: 

FACTS 

1. That the Petitioner is a law abiding and respectable citizen and has been working with GEO Television and a resident of the above-mentioned address. 

2. That in September 2008, the Petitioner got admission in BA (Hons.) Design: Graphic Design (1st Year Entry) at the Swansea University UK. 

3. That on 10/09/2008, the Petitioner approached Irfan Jangra, Administrator of Khanani and Kalia International Exchange Company at Bombay Hotel Building, Opposite Habib Bank AG Zurich, I.I Chundrighar Road, Karachi to obtain the draft amount for the sum of GBP £3,125/- towards the first instalment of the University’s Tuition Fees which was 50% and paid cash money in Pakistani Currency to the Administrator In-charge who then delivered a Draft: SDF 066779/SBL/kr-02 issued by Soneri Bank Ltd. Main Branch, Karachi to the Petitioner. 
                        (Photocopy of the Foreign Demand Draft SDF 066779/SBL/kr-02 dated: 10/09/2008 is attached herewith and marked as Annexure “P-1”) 

4. That after the Petitioner submitted the Draft to the University; he received in return an unconditional offer. That thereafter, the Petitioner applied for his student visa through FEDEX, but the process of United Kingdom Student Visa took longer than was normal and expected, and when finally, the Petitioner had successfully been issued the Visa, University refused to allow him to take the term as the term had already started and it was too late. That they had also placed before the Petitioner the options to either wait for the classes to start next year or to cancel his admission, which the Petitioner upon realization of the waste of a year, cancelled his admission at the University. 

5. That after the cancellation of his admission, in a week’s time, the University sent the Petitioner the said draft issued by Respondent No. 5 he had sent earlier for his admission. That upon receiving back the draft, the Petitioner submitted the same draft back to the Administrator Khanani and Kalia International, who told the Petitioner to collect his Pakistani Currency back from them in a few days. However, on the day of collection the Petitioner received information that earlier the night before, in the FOREX Scandal, the Respondent No. 4 had registered a Criminal Case F.I.R no. 76/2008 against the Respondent No. 5 for money laundering and their offices had been sealed and closed with their accounts frozen resulting in the Petitioner to be unable to get their hard-earned money back. 

6. That thereafter, in 2009, after taking admission in the Thames Valley University, the Petitioner went to London and in his absence requested and appointed his father look into this matter. That the father of the Petitioner approached various concerned Government Authorities and even wrote a letter on 11/03/2009 to the Director Exchange Policy Department State Bank of Pakistan for the encashment of the Foreign Demand Draft, but these Authorities had taken no action. 
                            (Photocopy of the letter is attached herewith and marked as Annexure “P-2”) 

7. That it is further submitted that the Petitioner’s father approached the F.I.A on which the Deputy Director F.I.A wrote to the Manager Main Branch Soneri Bank to verify the status of the draft and it was confirmed that the draft amount is available in the bank account of the Respondent No. 5 maintained at the Bank. 

8. That every time the Respondent No. 3 shifted its blame and burden to settle the claim of the Petitioners on Respondent No. 4. That the Respondent No. 4 is avoiding in supplying the necessary information from the servers of Respondent No. 5. It is pertinent to mention here that all such foreign exchange transactions involving transfer of foreign currencies both inwards and outwards of Pakistan takes place through the State Bank of Pakistan as well as the Bank submits their daily statements of accounts of the amount transferred to the State Bank Authorities under the Foreign Exchange Regulation Act 1940. But unfortunately, the Respondent No. 3 with malafide and ulterior motives avoids in settling the claims of the Petitioners. 

9. That furthermore, it is submitted that on 28-12-2010, the Respondent No. 4 wrote a letter to Respondent No. 3 wherein it was categorically stated that the “necessary arrangements into the matter may be made to disperse the claim of the claimants, but despite this letter, the Respondent No. 3 took no action in respect of the settlement of the claim of the Petitioners. 
                            (Photocopy of the Letter dated: 28-12-2010 is attached herewith and marked as Annexure “P-3”) 

10. That the Petitioner came to know that The Special Court (Offences in Banks) Lahore has passed vide order in Case No. 83/2009 on 29-11-2009, under which an action plan has been chalked out to compensate the affected and as per this plan an administration committee has been formed nominating the State Bank of Pakistan (S.B.P), Federal Investigation Agency (F.I.A), Securities Exchange Commission Pakistan (S.E.C.P) and Exchange Companies Association of Pakistan (E.C.A.P) to supervise the claim settlement procedure. 

11. That the Petitioner came to know that the Respondent No. 5 is confined at the Central Prison Karachi where the said notice was served through the Superintendent Jail Central Prison Karachi, copies along with the attached relevant documents of which was also forwarded to the Director F.I.A Karachi, Chairman Exchange Companies Association of Pakistan Karachi, Joint Registrar of Companies Securities Exchange Commission Pakistan (Islamabad Division), and the Director State Bank of Pakistan at Karachi.                            (Photocopy of the legal notice is attached herewith and marked as Annexure “P-4”) 

12. That the inaction by the Respondents No. 2 and 3 and their continuing undue delay in the release of the help-up funds of the Petitioners is patently illegal, unjust and inequitable. This would be apparent from the fact that in a similar case in the Hon’ble Lahore High Court where the Respondent No. 2 also suspended the license of another Exchange Company namely Zarco Exchange Company (Private) Limited of Lahore, similarly resulting in the remittances of many of its innocent customers being held-up without any fault on their part. That the Hon’ble Lahore High Court, taking notice of the predicament of the aggrieved persons whose money was blocked, ordered the Respondents No. 2 and 4 to arrange, through a mechanism devised by the Hon’ble Court, payment of all the claims of such individuals, and resultantly many claims that were made in pursuance thereof have been duly paid. 
                            (Photocopy of the Press Clipping from DAWN’s Issue 10-09-2009, reporting the action taken by the Lahore High Court against Zarco Exchange is attached herewith and marked as Annexure “P-5”) 

13. That it is further submitted that due to the inaction of the Respondents, the Petitioner is placed in a very difficult situation as his claim has been withheld without any plausible explanation and cause. Hence the filing of this petition. 

GROUNDS 

In view of the above facts, the Petitioner seeks relief, inter-alia, on the following grounds: 

I. That the Respondents No. 2 and 3 are avoiding to settle the claim of the Petitioner on the ground that the claim of the Petitioner requires to be verified first by Respondent No. 4 from the record of Respondent No. 5. In this regard, it is submitted that through its letter no. FIA/CCK/FIR 76/200816764-65 dated 28/12/2010 addressed to the Additional Director (Exchange Policy Department) State Bank of Pakistan, Respondent No. 4 has previously asked them to disburse the amount of the Petitioner, and, this accordingly, requires no verification on part of Respondent No. 4. Even otherwise, Respondents No. 2 and 3, being the regulator of banks and exchange companies, can verify the claim of the Petitioner from their own record as Respondents No. 2 and 3 requires all banks and authorized dealers dealing in foreign exchange to maintain their record and submit their returns to them. 

II. That there is no factual controversy in the facts and circumstances of the case as Respondent No. 5 has never denied its liability to the Petitioner in this context as well as Respondent No. 4 has also directly verified the claim of the Petitioner through its letters. 

III. That the retention of the held-up amount of the Petitioner for no fault of them violates the provisions enshrined in Articles 4 and 24 of the Constitution of the Islamic Republic of Pakistan is contrary to public policy. 

IV. That the Respondents No. 1, 2 and 3 are required to promptly refund the amount of the Petitioner, as they have no legal right to continue to retain the same, after letter addressed by the subordinate of Respondent No. 4 to the Manager, Soneri Bank, which confirmed the claim of the Petitioner as well as letter addressed to Respondent No. 3 for refund of the said amount. 

V. That the retention of the amount of the Petitioner is unequivocally repugnant to the principles of natural justice as well as against the principles of equity, fair justice and good conscience. 

VI. That the conduct of the Respondents No. 1, 2 and 3 towards the Petitioner violates the provisions of Article 24 of the Constitution as no person can be deprived of his property without lawful justification. It is an admitted position that the laws of Pakistan permit the Respondents No. 1, 2 and 3 to withhold the amount of the Petitioner without any lawful reason as this tantamount to subject the Petitioner to grave injustice and prejudice. 

VII. That in the case of ZARCO, which is similar as mentioned earlier, the persons affected by the action taken against ZARCO by the Respondents No. 2 and 4, whose funds were similarly withheld has been paid back to those affected persons. However, the Petitioner who has been affected as a result of the seizure of the funds of Respondent No. 5 by the remaining Respondents (similar to ZARCO’s case) are still being withheld on no lawful reason. This conduct is discriminatory and negates the provisions of Article 25 as envisaged in the Constitution of Pakistan.

VIII. That the Petitioner seeks leave to urge additional grounds at the time of hearing of this Petition. 

PRAYER 

The Petitioner above-named, respectfully prays as under: 

a. A declaration that the act of Respondents No. 2 and 3 in seizing and continuing to withhold the amount of the Petitioner in the sum of GBP £ 3, 125/- is without any lawful authority, of no legal effect, and without any reasonable or plausible justification. 

b. Direct the Respondents to disperse to the Petitioner without any reasonable delay, the amount claimed by the Petitioner. 

c. Any other relief this Hon’ble Court deems fit, proper and necessary under the relevant circumstances of this case. 

d. Costs of the petition.

K A R A C H I                                   (SAJID MIR)      

Dated 00.00.0000                 Advocate for the petitioner

CERTIFICATE

                    This is to certify that this is a first constitutional petition under article 199 of the constitution of Pakistan 1973 and no such application of same nature has been preferred by undersigned on behalf of the present petitioner.

K A R A C H I                                   (SAJID MIR)      

Dated 00.00.0000                 Advocate for the petitioner


Document(s) filed: Annexure ‘P-1 to P-5’ 
Document(s) relied upon: Annexure ‘P-1 to P-5’and all other documents that are necessary and relevant to the subject matter.
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