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Petitioner: AIJAZ HAROON VS Respondent: INAM DURRANI
Court Name: Sindh High Court Judge(s): Wajihuddin Ahmed Title: AIJAZ HAROON vs INAM DURRANI Case No.: Suit No,375 of 1987 Date of Judgment:1989-02-18 Reported As: PLD 1989 Karachi 304 Result: Order accordingly
JUDGMENT
JUDGMENT ' This suit, under Order XXXVII, C.P.C., for recovery of a sum of Rs,8,27,831.00, with interest at 14% per annum (in effect) from the date of suit till decree and further interest at the same rate until realisation of the decretal amount, is based on a Demand Promissory Note and, having come up for hearing on 27-10-1987, was partially decreed for the principal amount of Rs,5,00,000.00, covered by the Promissory Note, but, on a contention of the defendant's counsel that the plaintiff was not entitled to claim interest as the same was never agreed either through the Promissory Note or otherwise, Leave to defend was granted for the balance amount claimed in suit. Reliance on behalf of the plaintiff, regarding claim for interest, was made on a notice, dated 19-7-1986. However, as calculation for interest was made from the date of Promissory Note and not from the date of notice it was opined, in the Leave granting order, that the relevant claim could, at best, be raised from the date of such notice and not from the date of the Promissory Note. 2. In the Written Statement filed, following upon the grant of Leave, the defendant pleads, inter alia, that interest is being "illegally and unlawfully demanded by the plaintiff". However, the two learned counsel, not having chosen to lead evidence, on admission of service of notice, dated 19-7-1986, limited the controversy to the lawfulness of the claim of interest alone. 3. Mr. Liaquat Merchant, learned counsel for the plaintiff, sought to support the claim for interest under section 80 of the Negotiable Instruments Act, 1881, read with section 34 of the Code of Civil Procedure. As regards notice for such claim section 1 of the Interest Act, 1839 is also referable. On the other hand, Mr. Akmal Waseem, learned counsel for the defendant, placed reliance on some of the recent pronouncements of this Court whereunder Interest (Riba) is held to be prohibited and irrecoverable.
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4. Albeit the recent decisions of this Court beginning with Bank of Oman v. East Trading Co. Ltd. (PLD 1987 Karachi 404) there still appears to be conflict of opinion on the question of grant of interest amongst some of the learned Single Judges of this Court which requires to be resolved in the light of the latest pronouncements of the Supreme Court of Pakistan. Besides, in the same perspective as aforesaid, it seems necessary, in view of a large number of cases involving claims for interest, that due expression be given to the effect of Article 2-A of the Constitution of Pakistan whereby the Objectives Resolution has become an operative part of the Constitution and is rendered enforceable as such. 5. Till lately, interest was being allowed by Courts in Pakistan pursuant to the statutory law and rarely, if at all, any question arose as regards the jurisdiction to grant the same, it was in 1963, in the case of Bank of Bahawalpur v. Mst. Jeena Bai (PLD 1963 Kar. 239), that Abdul Rahim Kharal, J., of the Karachi Bench of the erstwhile High Court of West Pakistan, declined to grant compound interest on a negotiable instrument as, in the view that found favour with the learned Judge, Section 79 of the Negotiable Instruments Act, 1881, only permitted interest on a Negotiable Instrument as "calculated at the rate specified on the amount of the principal money due". Note, in this case, was also taken of the provisions of the Usurious Loans Act (X of 1918) for holding that the affected party could be relieved under the provisions of that Act. (Now see the W.P. Usurious Loans Ordinance XVIII of 1959). Even this limited reservation in the matter of grant of interest does not seem to have been followed till the induction of the Objectives Resolution as an operative part of the Constitution of Pakistan. 6. But before adverting to and examining the impact of the Objectives Resolution on the laws in force in Pakistan following upon its being introduced as an operative part of the Constitution of the Islamic Republic, and made enforceable, as such, it seems pertinent to refer to the historical background of this Basic Document as also to the varying measures of enforceability accorded to it by superior Courts, from time to time, dating back to the period when it stood incorporated only as a Preamble to the Constitution(s). The Resolution itself is not reproduced here, as apart from the Preamble, it is available, now, as Annex to the Constitution. 7. This Resolution found its way as a Preamble, successively, in the Constitutions of Pakistan of 1956 and 1962, the Interim Constitution of 1972 and the Constitution of 1973. However, as it was in the shape of Preamble only, in relevant decisions of this period, it was used only as an aid to discover the intention of the Constitution-makers if such intention was not clearly manifest in any Constitutional provision, as it stood. 8. The Objectives Resolution was passed by the first Constituent Assembly of Pakistan on 7-3-1949. Before being moved in the house it had been deliberated upon and emerged as the consensus Basic Document among the learned drawn from all schools a Muslim religious thought It also, by and large, was not unacceptable to the other religious sections of the People of Pakistan. It chalked out the path for the Constitution-makers in Pakistan to adhere to certain norms and principles which could not be given the go by under any circumstances. It spelled out, if I may say so, the Basic Structure of the Constitution which was unalterable. The first Constituent Assembly by passing the same, having as it did the mandate of those who created the State of Pakistan, bound 'itself and those to follow not to deviate or retract from its terms. 9. It will be instructive to reproduce here some extracts from the historic speach made by Prime Minister Liaquat Ali Khan, in the Constituent Assembly on the occasion. Moving the Resolution the First Prime Minister had declared: "Sir, I consider this to be a most important occasion in the life of this country next in importance only to the achievement of independence, because by achieving independence we only won an opportunity of building up a country and its polity in accordance with our ideals. I would like to remind the House that the Father of the Nation, Quaid-i-Azam, - gave expression to his feeling on this matter on many an occasion, and his views were endorsed by the nation in unmistakable
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terms. Pakistan was founded because the Muslims of this subcontinent wanted to build up their lives in accordance with the teachings and traditions of Islam, because they wanted to demonstrate to the world that Islam provides a panacea to the many diseases which have crept into the life of humanity today. It is universally recognised that the source of these evils is that humanity has not been able to keep pace with its material development, that the Frankenstein Monster which human genius has produced in the form of, scientific inventions now threatens to destroy not only the fabric of human society but its material environments as well, the very habitat in which it dwells. It is universally recognised that if man had nct chosen to ignore the spiritual values of life and if his faith in God had not been weakened, this scientific development would not have endangered his very existence. It is God consciousness alone which can save humanity, which means that all power that humanity possesses must be used in accordance with ethical standards which have been laid down by inspired teachers known to us as the great prophets of different religions. We, as Pakistanis are not ashamed of the fact that we are overwhelmingly Muslims and we believe that it is by adhering to our faith and ideals that we can make genuine contribution to the welfare of the world. Therefore, Sir, you would notice that the Preamble of the Resolution deals with a frank and unequivocal recognition of the fact that all authority must be subservient to God. It is quite true and that this is in direct contradiction to the Machiavellian ideas regarding a polity where spiritual and ethical values should play no part in the governance of the people and, therefore, it is also perhaps a. Little out of fashion to remind ourselves of the fact that the State should be an instrument of beneficence and not of evil. But we, the people of Pakistan, have the courage to believe firmly that all authority should be exercised in accordance with the standards laid down by Islam so that it may not be misused. All authority is a sacred trust, entrusted to us by God for the urpose of bein exercised in the service of man SO that it does not become an a ency or tyranny or selfishness You would notice, Sir, that the Objectives Resolution lays emphasis on the principles of democracy, freedom, equality, tolerance and social justice, and further defines them by saying that these principles should be observed in the Constitution as they have been enunciated by Islam. . ' The next clause of the Resolution lays down that Muslims shall be enabled to order their lives in the individual and collective spheres in accord with the teaching and requirements of Islam as set out in the Holy Qur'an and the Sunnah. It is quite obvious that no non-Muslim should have any objection if the Muslims are enabled to order their lives in accordance with the dictates of their religion. You would also notice, Sir, that the State is not to play the part of a neutral observer, wherein the Muslims may be merely free to profess andractise their religion, because such an attitude on the part o the State would be very negation of the ideals which prompted the demand of Pakistan, and it is these ideals which should be corner-stone of the State which we want to build. The State will create such conditions as are conducive to the building up of a truly Islamic Society, which means that the State will have to play a positive part in this effort." ' The Prime Minister then tied the concept of delegated authority with the "chosen Representatives of the People," another feature of the Resolution. In this connection he clearly stated: "This naturally eliminates any danger of the establishment of theocracy in the technical sense, theocracy has come to mean a Government by ordained priests....Islam does not recognise either priesthood or any sacredotal authority " ' In dealing with the principles of, democracy, freedom, equality, tolerance and social justice as they have been enunciated in Islam Mr.Liaquat Ali Khan said: ' It has become necessary to qualify these terms, because they are generally used in a loose sense for instance western powers and Soviet Russia alike claim that their systems are based upon democracy yet it is common knowledge that their politics are inherently different when we use the word democracy in the Islamic sense it pervades all aspects of our life, it relates to our system of
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Government and to our society with equal validity because one of the greatest contributions of Islam has been the idea of equality of all men. Islam recognises no distinctions based upon race, colour or birth Similarly we have a great record of tolerance. In the matter of social justice as well, Islam has a distinct contribution to make. Islam envisages a society in which social justice means neither charity nor regimentation ....(and) fundamental laws and concepts which guarantee to make life free from wan Ind rich in freedom. It is for this reason that the (said) principles have been further defined........................... 10. It is thus plain that the Objectives Resolution was the charter! On the basis of which the edifice of the State of Pakistan was to be raised. The founding fathers, to borrow a phrase from the American Constitutional parlance, in giving concrete expression, through this Resolution, to the objectives, underlying the movement for the creation of an independent Pakistan, were in fact translating in unmistakable terms the dreams, the aspirations and the goals which the. Muslims of the Indian Sub-Continent had as their motives for the setting up of this Islamic Republic. The objectives in this Resolution therefore, bound our founding fathers and all those who in the years to follow came to assume the role of Constitution-makers in Pakistan. It is for this reason and none other that every successive Constitution of this republic began with a virtual reproduction of this Resolution. In my humble view, it follows, therefore, that every Constitution in Pakistan having the mandate of our people behind it was and is liable to be tested on the touchstone of this solemn Declaration and must conform to the provisions and principles recorded in it. 11. It must here, also, be stated that the Objectives Resolution, even if it did not find its way as Preamble to the successive Constitutions of this Republic of 1956, 1962, 1972 and lastly of 1973, would still be in the archieves of Parliament and the gazettary record of the Nation as a solemn Declaration and Commitment, providing guidelines, coming down from the Founding Fathers as it did, for the later Costitution and Law-makers to honour, to adopt and to follow. Likewise, it would still have remained the Basic Document, the touchstone, on which the ensuing legislation had to be tested and judged by the superior Courts in times to come. 12. It is in this background that I propose to examine the case-law touching upon the Objectives Resolution during what may, though conveniently yet somewhat inaccurately, be called as the Pre- enforcement era of this Resolution. 13. Thus, in the case of Khurshid Jan v. Fazal Dad (PLD 1964 Lah. 558) a pertinent Reference made by Inamullah and Dawood Khan, JJ. To a Full Bench of the then High Court of West Pakistan, was considered by Yaqoob Ali, Wahiduddin Ahmed and Anwarul Haque, JJ. This reference arose on the question whether, a Musalman woman could, in exercise of her option of puberty, by herself repudiate the marriage brought about during minority. In Hydaya, Baillie's Digest etc. Recourse to Kazi for a decree was essential to bring about an effective end to marriage following upon repudiation on attaining puberty. On the facts of that case the husband relied on consummation of marriage in the ordinary course which precluded the exercise of such option whereas the appellant contended that there was no .Subsisting marriage between the parties when the respondent took her away, with the assistance of police force, and, forcibly, subjected her to cohabitation, as a result whereof an issue was born to the parties. The Full Bench, on a Reference in Appeal, was called upon to determine as to what were the sources of Muslim Law and rules of its interpretation and, further, whether the Courts could differ from the views of the Imams and other juris-consults on the grounds of public policy, justice, equity and good conscience and, besides, in case of conflict in textbooks of high authority how were Courts to determine as to which of the views was correct. Yaqoob Ali, J. As he then was, on an erudite enunciation of the sources of Muslim Law and the rules of its interpretation came to the conclusion that time had come when the doctrine of "Taqleed" could be deviated from and an interpretation more in line with the Quran and Sunnah was adopted.
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' In opting for revision of what our Doctors had determined in times of yore one of the pursuasive factors, manifestly, was that in the Constitution of 1962, which then held the field, express provisions were made to enable the Muslims of Pakistan "individually and collectively to order their lives in accordance of the teachings and requirements of Islam and (as ?) set out in the Quran and Sunnah, that no law should be enacted which is repugnant to the Quran and Sunnah and that all existing laws should be brought in conformity with the Quran and Sunnah". Dictum of the Judicial Committee of the Privy Council in the case of Agha Muhammad Jaffer' v. Kulsoom Bibi (ILR 25 Cal. 9) namely, that "it would be wrong for the Courts to put their own construction on the Quran in opposition to the express ruling of commentators of great antiquity and High Authority" was departed from on account of the aforesaid provisions in the Constitution (Objectives Resolution). It was concluded that there could be no disagreement on questions covered by the Quran, Sunnah of the Holy Prophet (p.b.u.h.) and Ijma, all of which were binding. As to questions covered by juristic analogy (Qayas) and Istidlal it was found permissible for Courts to adopt any of the conflicting views of the early Aimma and Faqihs "subject, of course, to the qualification that they possess the requisite knowledge". With this view Anwarul Hague, J. Concurred but Wahiduddin Ahmed, J. , holding that the doctrine of "Taqleed" was based on the inaptness of Qazis and on their predilection to follow the "weak opinion", and that nothing having happened since to make departure therefrom by arming the Courts with power to disagree with our Doctors or to prefer one opinion over the others, adhered to the view of the Privy Council in the case of Agha Muhammad Jafer augmented as it was by corresponding views of Waliullah, J. In th,e case of Muhammad Yaseen v. Rehmat Ellahi (AIR 1947 All. 201), of Suleiman C.J. , in the case of Anis Begum v. Muhammad Istafa Wali Khan (ILR 55 All. 743) of Fazal Ali, J., in Fazalur Rehman v. Mst. Aisha (AIR 1929 Pat. 81) and the Privy Council itself in the cases of Abul Fateh Ahmed Ishak (I L R 22 Cal. 619) and Baqar All Khan v. Anjuman Ara Begum (I L R 25 All. 236). Wahiduddin Ahmad, J. Was obviously impelled to come to this conclusion in the background of the view of Imam Al Shafi'i, followed by other Doctors to the effect that a person could exercise Ijtihad only if he was well versed in the Quran and Sunnah, possessed knowledge derived from Ijma and was equipped with the rules of Ijtihad (personal reasoning) through Qiyas (analogy) and it is only thus that correct decisions may be arrived at "for no body knows what is hidden except Allah". The following passage from Al Shafi'i may, also, be instructive in this behalf: "Nobody should apply analogy unless he is competent to do so through his knowledge of the commands of the Book of God: its prescribed duties and its ethical discipline, its abrogating and abrogated (communications), its general and particular rules, and its (right) guidance. Its (ambiguous) communications should be interpreted by the Sunnah of the Prophet (p.b.u.h.); if no Sunnah is found, then by the consensus of the Muslims; if no consensus is possible, then by analogical deduction. ' No one is competent to apply analogy unless he is conversant with the established Sunnah, the opinions of (his predecessors) the agreement (consensus) and disagreement of the people, and has (adequate) knowledge of the Arabic language. ' Nor is he regarded as competent in analogical (reasoning) unless he is sound in mind able to distinguish between closely parallel precedents and not hasty in expressing an opinion unless he is certain of its correctness. Nor shall he refrain from listening to the opinions of those who may disagree with him, for he might be warned against (possible) forgetfulness or be confirmed in his right (judgment). In so doing he must exert his utmost power not to be misled by personal (bias), so that he knows on what ground he has rejected another. Nor should he be more preoccupied with the opinion he has given than with the one with which he disagrees, so that he knows the merits of what he accepts as compared with that which he rejects."
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14. With respect, the learned Judges were, more or less, really saying the same thing and protecting against the same problem though' there may have been differences of degree and partly of substance. In Yaqoob Ali, J., conditioning the power to interpret and to differ with the possession of "the requisite knowledge", and, in Wahiduddin Ahmad, J. Pointing out the absence of change of circumstances to warrant discarding of "Taqleed" altogether and leaving the matter for due legislation, there is obvious community of thought and object. 15. It must, however, be observed, that unless due sanction is spelled out to interpret and to apply the tenets of Muslim Law and evolutionary process is allowed to be undertaken and what better institution can there be for that purpose than the judicial component of the State, with ample room for trial and error, the latter of course correctable at the level of the higher echelons or that of the legislature, Muslim Law can never assume the character of the dynamic force which Almighty Allah wills it to be. There will, in such exercises, be errors and pitfalls but the corrective process of ultimate judicial dispensation and the appropriate legislative measures can always be counted to suppress the mischief and to advance the objective. This will, in addition, be possessed of the advantages of evolutionary elements and relieve the society of abruptness and suddenness, not uncommonly, associated with legislation alone, taken in isolation. It is to be remarked that Abu Hanifa and other Imams, in their own times, were also discouraged from applying independent reasoning (Ijtehad). They, however, did not surrender and considered themselves competent to do what earlier Muslims did. It was declared; "They were men and we are also men" (Abdal Wahab Khallaf; Khulasat Tarikh Al Tashri Al Islami, Beirut 1968, page 102). Modern scholars, including Allama Iqbal, accept the opinion of Imam Malik who declared: "It is upto a person to accept or reject the opinion of the other, except one, namely, the Prophet." (Abdul Wahab Khallaf: Khulasat Tarikh Al Tashri Al-Islami, Beirut 1968, page 102) Says Allama Iqbal: "From about the middle of the first century upto the beginning of the fourth not less than nineteen schools of law and legal opinion appeared in Islam. This fact alone is sufficient to show how incessantly our earlier Doctors of law worked in order to meet the necessities of a growing civilization". 16. The case of State Bank of India v. Custodian of Evacuee Property (PLD 1969 Lah. 1050), decided by a Division Bench comprising of Sardar Muhammad lqbal and Muhammad Afzal Zullah, JJ. , may also be referred here because of its Islamic content. In this case, on a comparative examination of the laws of War and Peace in Islam and in Western Jurisprudence, Muhammad Afzal Zullah, J., who spoke for the Court, held, that legal theory of war in Islam enjoined that enemy aliens "under express or implied AMAN cannot be deprived of their rights as to property and to deal with it, subject, of course, to the condition that the exercise of such rights does not, directly or indirectly, add to the war potential of the enemy". Thus Muslim Law was clearly applied in a field already covered by statute and statutory rules. 17. The first significant departure from the role of interpretative aid accorded to the Objectives Resolution came in Asma Jilani's case PID 1972 SC 139. This was a case where, on the abrogation of the Constitution of 1962 by General Agha Muhammad Yahya Khan, a question, ultimately, arose as to, what in the absence of a Costitutional Instrument, was the grund norm for the State of Pakistan in the context of Kelsen's theory which had earlier been adopted by the Supreme Court in Dosso's case PLD 1958 SC 533 Hamoodur Rehman, C.J. , with whom Wahiduddin Ahmad, J. Agreed, observed as under:-- "Our own grund norm is enshrined in our doctrine that the legal sovereignty over the entire universe belongs to Almighty Allah alone, and the authority exercisable by the people within the limits prescribed by Him is a sacred trust. This is an immutable and unalterable norm which was clearly accepted in the Objectives Resolution." It was further noted that the Resolution had not been "departed or deviated from by any regime, Military or Civil. Indeed it cannot be-Yaqub Ali, J, in a separate, though elaborate judgment,
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observed that the ideology of Pakistan "is enshrined the Objectives Resolution of 7th March, 1949. We should, therefore, turn more appropriately to Islamic jurisprudence for the definition of law." The theory of "the rule of chosen representatives as trustees of the ultimate sovereign, Almighty Allah" was considered and adopted and Judges and lawyers were advised "to refresh their minds about the true import and form of law". Sajjad Ahmed Jan, J., in his judgment, declared that, "our grund norms are derived from our Islamic faith, which is not merely a religion but is a way of life. These grund norms are unchangeable and are inseparable from our polity". It was…
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