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Petitioner: MASSU and 27 others VS Respondent: UNITED BANK LIMITED and another
Court Name: Lahore High Court Judge(s): Mian Allah Nawaz Title: MASSU and 27 others vs UNITED BANK LIMITED and another Case No.: Writ Petition No,153 of 1990/BWP, Date of Judgment:1990-05-30 Reported As: 1990 MLD 2304 Result: Petitions dismissed
JUDGMENT
JUDGMENT ' The common questions calling for consideration in these Constitutional Petitions bearing Nos. 153 of 1990, 1202 of 1989, 291 of 1990, 1493 of 1989, 1209 of 1989, 1075 of 1989, 1015 of 1989, 26 of 1990, 354 of 1990, 171 of 1990, 337 of 1990 and 53 of 1990 are:-- (i) Whether every statute in Pakistan has not only to satisfy the test that it is in accordance with the provisions in Constitution generally but it has to further fulfil another . Condition that it is not repugnant to the fundamental principles of Islam as laid down in Holy Qur'an and Sunnah? (ii) Whether Article 2-A of the Constitution is self-executing provision in the Constitution and sections 79 and 80 of Negotiable Instruments Act (XXVI of 1981), sections 34-A and 34-B of the Code of Civil Procedure, subsections (6) and (8) of section 24 of the House Building Finance Corporation Act (XVIII of 1952) and sessions 8 and 12 of the Banking Companies (Recovery of Loans), Ordinance (XIX of 1979) are ultra vires on account of being in contravention of the basic principle relating to `Ribah' laid down in Holy Qur'an and Sunnah? ' In view of importance of question involved in these petitions, they are being disposed of by single judgment. 2. A few uncontested facts necessary for the disposal of these petitions are that the petitioners are borrowers from different financial lending institutions, namely, United Bank Limited, Allied Bank Limited, House Building Finance Corporation and Agricultural Development Bank of Pakistan. These borrowers availed the facility of interest-bearing loans, executed contracts with a condition of repayment of loan with a pre-determined rate of interest; that petitioners have deposited the principal amount and resist the recovery of interest on the sole ground that Article 2-A of the Constitution of Islamic Republic of Pakistan (hereinafter referred to as Constitution) has been
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made substantive part of the Constitution and so under its impact neither the creditors had rightio recover the interest, nor the Court had the authority to decree the payment of interest in view of the unequivocal mandate of prohibition contained in Holy Qur'an and Sunnah. 3. These petitions were argued by a number of learned counsel. However, the main attack was launched by Mr. M.A. Farani, Advocate. Mr. A.R. Tayyib, Advocate, submitted written arguments with the permission of the Court. On the other hand, the learned counsel appearing on behalf of respondents/financial institutions submitted that the impugned provisions were existing laws and could be only declared as repugnant to Injunctions of Islam contained in Holy Qur'an and Sunnah by Federal Shariat Court. Mr. Farani, the learned counsel for the petitioners raised following points:- - (1) It was contended that Article 2-A was made substantive part of the Constitution by the President vide a Presidential Order (XIV of 1985) which became effective from 2-3-1985. It was contended that after the said date, the Objectives Resolution became the substantive part of the Constitution and so became the controlling provision. On the basis of this argument, it was contended that all other provisions of the Constitution were subordinate to Article 2-A. All the existing laws had to be examined on the touch stone of Objectives Resolution. Elaborating this point, further, it was contended that the impugned provisions relating to charging of interest were null and void on account of being repugnant to Injunctions of Islam contained in Holy Qur'an and Sunnah prohibiting the transactions amounting to `Ribah'. It was further submitted that the Ribah, i,e,, charging of predetermined rate of profit on principal amount was expressly forbidden in devine injunctions contained in Holy Qur'an and Sunnah and so, in view of Article 2-A such existing laws have lost their legal efficacy. Reliance was placed on Habib Bank Limited v. Muhammad Hussain and others PLD 1987 Kar. 612, Muhammad Sarwar and another v. The State PLD 1988 FSC 42, Sardar Ali v. Muhammad An PLD 1988 SC 287, Pakistan Industrial Credit and Investment Corporation v. Habib Enterprises Ltd. And another 1989 CLC 2070, Ittefaq Foundry v. Federation of Pakistan PLD 1990 Lah. 121 and Muhammad Salah-ud-Din v. Government of Pakistan PLD 1990 FSC 1. No other point was urged 4. Before I proceed to examine the respective contentions of the parties, it is appropriate to notice the relevant applicable provisions in Constitution relating to Islamisation. Articles 2, 2-A are in Part I. Article 2-A was made substantive part in. Part I by the. Order of the President beairng No,XIV of 1985. While Article 31 occurs in Part II relating to fundamental rights and principles of policy. 5. The Articles 227, 228, 229 and 230 find place in Part No,IX relating to Islamic provisions, while Articles 203-A, 203-B, 203-D, 203-F, 203-G and 203-GG are in Chapter 3-A relating to Federal Shariat Court. This Chapter was added by way of various Presidential Orders starting from Presidential Order No,1 of 1980. (2) Islam shall be the State religion of Pakistan. (2-A) The principles and provisions set out in the Objectives Resolution reproduced in the Annexure are hereby made substantive part of the Constitution and shall have effect accordingly. 31.(1) Steps shall be taken to enable the Muslims of Pakistan, individually and collectively, to order their lives in accordance with the fundamental principles and basic concepts of Islam and to provide facilities whereby they may be enabled to understand the meaning of life according to the Holy Qur'an and Sunnah. (2) The State shall endeavour, as respects the Muslims of Pakistan:- (a) to make the teaching of the Holy Qur'an and Islamiat compulsory, to encourage and facilitate the learning of Arabic language and to secure correct and exact printing and publishing of the Holy Qur'an; (b) to promote unity and the observance of the islamic moral standards; and (c) to secure the proper organisation of Zakat (Ushr) Auqaf and mosques.
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227(1) All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such injunctions. (2) Effect shall be given to the provisions of clause (1) only in the manner provided in this Part. (3) Nothing in this Part shall affect the personal laws of non-Muslim citizens or their status as citizens. 229. The President or the Governor of a Province may, or if two-fifths of its total membership so requires, a House or a Provincial Assembly shall, refer to the Islamic Council for advice any question as to whether a proposed law is or is not repugnant to the Injunctions of Islam. 230(1) The functions of Islamic Council shall be-- (a) to make recommendations to (Majlis-e-Shoora (Parliament) and the Provincial Assemblies as to the ways and means of enabling and encouraging the Muslims of Pakistan to order their lives individually and collectively in all respects in accordance with the principles and concepts of Islam as enunciated in the Holy Qur'an and Sunnah; (b) to advice a House, a Provincial Assembly, the President or a Governor on any question referred to the Council as to whether a proposed law is or is not repugnant to the Injunctions of Islam; (c) to make recommendations as to the measures for bringing existing laws into conformity with the Injunctions of Islam and the stages by which such measures should be brought into effect; and (d) to compile in a suitable form, for the guidance of (Majlis-e-Shoora) (Parliament) and the Provincial Assemblies, such Injunctions of Islam as can be given legislative effect. (e) (2) When, under Article 229, a question is referred by a House, a Provincial Assembly, the President or a Governor to the Islamic Council, the Council shall, within fifteen days thereof, inform the House, the Assembly, the President or the Governor, as the case may be, of the period within which the Council expects to be able to furnish that advice. (3) Where a House, a Provincial Assembly, the President or the Governor, as the case may be, considers that, in the public interest, the making of the proposed law in relation to which the question arose should not be postponed until the advice of the Islamic Council is furnished, the law may be made before the advice is furnished: ' Provided that, where a law is referred for advice to the Islamic Council and the Council advises that the law is repugnant to the Injunctions of Islam, the House, or, as the case may be, the Provincial Assembly, the President or the Governor shall reconsider the law so made. (4) The Islamic Council shall submit its final report within seven years of its appointment, and shall submit an annual interim report. The report, whether interim or final, shall be laid for discussion before both Houses and each Provincial Assembly within six months of its receipt, and Majlis-e- Shoora (Parliament) and the Assembly, after considering the report, shall enact laws in respect thereof within a period of two years of the final report. 203-A. The provisions of this Chapter shall have effect notwithstanding anything contained in the Constitution. 203-B. In this Chapter, unless there is anything repugnant in the subject or context-- (b) 'Court' means the Federal Shariat Court constituted in pursuance of Article 203-C. (c) 'Law' includes any custom or usage having the force of law but does not include the Constitution, Muslim personal law, any law relating to the procedure of any Court or Tribunal, or, until the expiration of (ten) years from the commencement of this Chapter, any fiscal law or any law relating to the levy and collection of taxes and fees or banking or insurance practice and procedure and...." 203-D(1) The Court may, (either of its own motion or) on the petition of citizen of Pakistan or the Federal Government or a Provincial Government, examine and decide the question whether or'not
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any law or provision of law is repugnant to the Injunctions of Islam, as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet, hereinafter referred to as the Injunctions of Islam. (1-A) Where the Court takes up the examination of any law or provision of law under clause (1) and such law or provision of law appears to it to be repugnant to the Injunctions of Islam, the Court shall cause to be given to the Federal Government in the case of a law with respect to a matter in the Federal Legislative List or the Concurrent Legislative List, or to the Provincial Government in the case of a law with respect to a matter not enumerated in the either of those Lists, a notice specifying the particular provisions that appear to it to be so repugnant, and afford to such Government adequate opportunity to have its point of view placed before the Court). (2) If the Court decides that any law or provision of law is repugnant to the Injunctions of Islam, it shall set out in its decision: (a) the reasons for its holding that opinion, and (b) the extent to which such law or provision is so repugnant; (c) and specify the day on which the decision shall take effect: (Provided that no such decision shall be deemed to take effect before the expiration of the period within which an appeal therefrom may be preferred to the Supreme Court or where an appeal has been so preferred, before the disposal of such appeal). (3) If any law or provision of law is held by the Court to be repugnant to the Injunctions of Islam-- (a) the President in the case of a law with respect to a matter in the Federal Legislative List or the Concurrent Legislative List, or the Governor the case of a law with respect to a matter' not enumerated in either those Lists, shall take steps to amend the law so as to bring such law or provision into conformity with the Injunctions of Islam: and such law or provision shall, to the extent to which it is held to be so repugnant, cease to have effect on the day on which the decision of the Court takes effect. 203-F(1) Any party to any proceedings before the Court under Article 203-D aggrieved by the final decision of the Court in such proceedings may, within sixty days of such decision, prefer an appeal to the Supreme Court: ' Provided that an appeal on behalf of the Federation or a Province may be preferred within six months of such decision. (2) The provisions of clauses (2) and (3) of Article 203-D and clauses (4) to (8) of Article 203-E shall apply to and in relation to the Supreme Court as if reference in those provisions to Court were a reference to the Supreme Court. (2-A) An appeal shall lie to the Supreme Court from any judgment, final order or sentence of the Federal Shariat Court-- (a) if the Federal Shariat Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death or imprisonment for life or imprisonment for a term exceeding fourteen years, or, on revision, has enhanced a sentence as aforesaid; or (b) if the Federal Shariat Court has imposed any punishment on any person for contempt of the Court. (2-B) An appeal to the Supreme Court from a judgment, decision, order or sentence of the Federal Shariat. Court in a case to which the preceding clauses do not apply shall lie only if the Supreme Court grants leave to appeal). (3) For the purpose of the exercise of the jurisdiction conferred by this Article, there shall be constituted in the Supreme Court a Bench to be called the Shariat Appellate Bench and consisting of-- (a) three Muslim Judges of the Supreme Court. And (b) not more than two Ulema to be appointed by the President to attend sittings of the Bench as ad hoc members thereof from amongst the Judges of the Federal Shariat Court or from out of a panal
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of Ulema to be drawn up by the President in consultation with the Chief Justice. 203-G.Save as provided in Article 203-F. No Court or Tribunal, including the Supreme Court and a High Court. Shall entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the Court. 203-GG.Subject to Articles 203-D and 203-F, any decision of the Court in the exercise of its jurisdiction under this Chapter shall be binding on a High Court and on all Courts subordinate to a High Court). 203-H(3) Neither the Court nor the Supreme Court shall in the exercise of its jurisdiction under this Chapter have power to grant an injunction or make any interim order in relation to any proceedings pending in any other Court or Tribunal. 6. Now it is appropriate to examine Article 2-A in the context of its historical background. It was 7th March, 1949 when the first Constituent Assembly passed Objectives Resolution. It had nine clauses. The founding fathers who constituted the first Constituent Assembly provided guideline to Constituent Assembly for the purposes of framing the Constitution. 7. It is apparent from reading of Objectives Resolution that it provided directive principles of the State policy. It further provided unequivocal commitment to the two nations theory rooted in Islam. It declared that the `sovereignty' belongs to God Almighty; that State shall exercise the delgated sovereignty through chosen representatives. It provided that the State shall in general enable the Muslims to fashion their lives in accordance with teachings of Holy Qur'an and Hadith. It also made clear that State would be the Federal in nature comprising of autonomous units with such boundaries and powers as may be specified. It also declared that the basic rights like security of person, the security of property, freedom of movement, freedom of assembly, freedom of association, freedom of trade, business or profession shall be guaranteed. It also provided commitment to establish independent judiciary. In short this Resolution provided the blue print of the State of Pakistan. 8. The Objectives Resolution was made substantive part of the Constitution vide Presidential Order No,XIV of 1985 with effect from 2-3-1985. The Objectives Resolution had been the subject-matter of examination before the superior judiciary before 2nd March, 1985 and after the said date. It will be relevant to notice the decision of the superior judiciary dealing with the Objectives Resolution now. 9. The Objectives Resolution came for consideration in Asma Jilani's case PLD 1972 SC 139. Speaking for the Bench His Lordship Mr. Justice Hamoodur Rehman observed as under:-- "In any event, if a ground norm is necessary for us I do not have to look to the Western legal theorists to discover one. Our own ground norm is enshrined in our own 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 Objective Resolution passed by the Constituent Assembly of Pakistan on 7th of March, 1949. This Resolution has been described by Mr. Brohi as the 'cornerstone of Pakistan's legal edifice' and recognized even by the learned Attorney- General himself 'as the bond which binds the nation `must draw its inspiration'. This has not been abrogated by any one so far, nor has this been departed or deviated from by any regime, military or civil." 10. Zia-ur-Rehman v. The State PLD 1986 Lah. 428 is an authority which was decided by the Lahore High Court on 6th July, 1972. Examining the Constitutional position whether Objectives Resolution is a Supra-Constitutional document and the provisions of Constitution offending it can be struck down by the Court, it was held by Mr. Justice A.R. Sheikh that:-- "After giving earnest consideration to the arguments on both sides, I find that under the grund norm, as enunciated in Asma Jilani's case, the trust for discharge of sovereign functions has been reposed in the people. They have to exercise their choice in free and fair elections for a Constituent
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Assembly to frame the Constitution and thus the main purpose of the grund norms is served. For the actual task of framing a Constitution for the country set before the popularly elected representatives of the people, the grund norm is to serve as the external and internal limitation to actual exercise of authority by any sovereign, as postulated by A.V. Dicey. But differently, a popularly elected Constituent Assembly exercising the delegated sovereignty of Almighty Allah is vested with plenary powers to frame a Constitution to achieve the goal, object and the basic ideology of Pakistan. If, however, the Constituent Assembly fails to fulfil its obligations, the remedy will be the resistence to be offered by the people to accept the Constitution on the political forum in the country and not before the counts. Constituent Assembly remains supreme not subject to - judicial scrutiny as an ordinary Act of the Legislature in the sub-constitutional field. Viewed thus the premises for both set of arguments that some provisions in the interim Constitution offend against the grund norm or the legal Framework Order (an invalid document not legitimised by the Suprethe Court). ' For the same reason the preamble and the Principles of Policy have been rightly described by the Attorney-General as basic ideology not actionable before the superior Courts. ' The same case was examined by the Supreme Court in State v. Zia-ur-Rehman and others PLD 1973 SC 49. Speaking for the Court his Lordship Mr. Justice Hamood-ur-Rehman, the then Chief Justice of Pakistan observed as follows:-- "I regret to have to point out that this is not correct. All that was said by me in my judgment in that case (page 182) was as follows:- "In any event, if a grund norm is necessary for us I do not have to look to the Western legal theorists to discover one. Our own grund norm is enshrined in our own 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 Objective Resolution passed by the Constituent Assembly of Pakistan on the 7th of March, 1949., This Resolution has been described by Mr. Brohi as the 'corner stone of Pakistan's legal edifice' and recognised even by the learned Attorney-General himself 'as the bond which binds the nation' and as a document from which the Constitution of Pakistan 'must draw its inspiration'. This has not been abrogated by any one so far, nor has this been departed or deviated from by any regime, military or civil. Indeed, it cannot be, for, it is one of the fundamental principles enshrined in the Holy Qur'an." ' It will be observed that this does not say that the Objectives Resolution is the ground norm, but that the ground norm is the doctrine of legal sovereignty accepted by the people of Pakistan and the consequences that flow from it. I did not describe the Objective Resolution as 'the corner-stone of Pakistan's legal edifice' but merely pointed out that one of the learned counsel appearing in the case had described it as such. It is not correct, therefore, to say that I had held it, as Justice Ataullah Sajjad has said in his judgment, 'to be a transcendental part of the Constitution' or, as Justice. Muhammad Afzal Zullah has said, to be a 'Supra-Constitutional Instrument which is unalterable and immutable': "There is no mention in these observations either of the Objectives Resolution being the `ground norm' for Pakistan. The `ground norm' referred to by us was something even above the Objective Resolution which as Sajjad Ahmad Jan, J. Put it 'embodies the spirit and the fundamental norms of the Constitutional concept of Pakistan'. It was expressed by the Objectives Resolution itself to be translated into the Constitution. Even those that adopted the Objectives Resolution did not envisage that it would be document above the Constitution. It is incorrect, therefore, to say that it was held by this Court that the Objectives Resolution of the 7th of March, 1949, stands on a higher pedestal than the Constitution itself. The views of the minority of the learned Judges in the High
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Court, in so far as they have sought to read into the judgments of this Court something which is not there, cannot, therefore, be supported." 11. The same view was reiterated in Niaz Ahmad Khan v. Province of Sindh PLD 1977 Kar. 604. 12. Now it is the stage to examine the cases decided by the superior judiciary after the Objectives Resolution was made the part of the Constitution. 13. In Messrs Bank of Oman Ltd. v. Messrs East Trading Co. Ltd. And others PLD 1987 Kar. 404 the question considered was whether the provisions of Muslim Family Laws Ordinance were repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. His Lordship Mr. Justice Tanzil-ur Rehman after thorough examination of the case-law and the various Articles of the Constitution, held that Article 2-A of the Constitution was overriding provisions of the Constitution and the Court had the authority to determine the vires of any law on the touch-stone on the basic principles of Islam as laid down in the Holy Qur'an and Sunnah. 14. This view was reiterated in Habib Bank Ltd. v. Muhammad Hussain and others PLD 1987 Kar. 612, Muhammad Bachal Memon v. Government of Sindh through Secretary, Department of Food and others PLD 1987 Kar. 296 and Irshad H. Khan v. Mrs. Parveen Ajaz PLD 1987 Kar. 466. 15. The question cropped up for consideration in Sardar Ali v. Muhammad Ali PLD 1988 SC 287. In this case the question involved arose out of preemption cases and the Supreme Court considered the effect of the judgment of the Federal Shariat Appellate Court in Malik Said Kamal's case PLD 1986 SC 360. In the said case certain provisions of N.-W.F.P. And Punjab Pre-emption Act and Martial Law Regulation No,115 regarding the right of pre-emption of tenant were declared repugnant to the Injunctions of Islam. The decision was to take effect from 31-7-1986. 16. The contention was raised that the Objectives Resolution was made substantive part of the Constitution and so the basic principles of Islam as enshrined in Holy Qur'an and Sunnah had been enforced irrespective of any adjudicator decision by the Federal Shariat Court; that every Court had a right to enforce the principles of Islam in preference to the provisions of existing law. His Lordship Mr. Justice Muhammad Afzal Zullah, speaking for the Court, chose not to answer the question on the premises that no…
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