' SYED HAMID ALI SHAH, J.---This single judgment will dispose of Writ Petitions Nos. 6945, 7091, 5813, 6134, 5655, 5817, 5815, 6025, 6024, 4950, 5814, 5816, 5518, 6441 of 2009, involving commons questions of law and facts.
2. Petitioners in these petitions, have assailed the vires of section 15 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, being unconstitutional and offending the provisions of Articles 2-A, 3, 4, 9, 18, 23 to 25 and 175 of the Constitution of Islamic Republic of Pakistan.
3. Learned counsel for the petitioners have submitted that vires of section 15 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, have been declared as illegal and ultra vires the Constitution by a learned Full Bench of this Court in the case of Muhammad Umer Rathore v.
Federation of Pakistan 2009 CLD 25.
4. Learned counsel for the respondents has submitted that judgment of learned Full Bench of this Court was assailed in Civil Petition No,134 of 2009, wherein the Honourable apex Court has granted leave to appeal to the petitioner and suspended the operation of the impugned judgment, therefore, these petitions merit dismissal.
5. Heard learned counsel for the parties and record perused.
6. The constitutionality and legality of the provisions of section 15 was assailed in this Court in various writ petitions. Learned Full Bench of this Court in the case of Muhammad Umar Rathore v.
Federation of Pakistan 2009 CLD 257 accepted the petitions and declared the impugned provisions as ultra vires the Constitution. Relevant part is reproduced hereunder:-- "For what has been discussed above, we find that the provisions of section 15 of the Ordinance, are repugnant to the provisions of the Constitution and is in conflict with the fundamental rights. We, therefore, have no hesitation to hold that such provision cannot survive on the touchstone of Articles 2-A, 3, 4, 9, 23, 24, 25 and 175 of the Constitution. The impugned provision is declared ultra vires the Constitution and is of no legal effect.
31. The cases, which have attained finality i,e, where the possession of the mortgage properties have already been delivered sale proceeds stood adjusted towards outstanding amounts and sale-deeds have been registered, under the impugned provision, are past and closed transactions and this judgment will not affect such sales. The other sales under the impugned provision, which have not attained finality are declared illegal and are set aside. The auction price received by the Financial Institutions in respect of the sales, which have not attained finality shall be refunded to the auction purchasers within a period of one month from the date when he approaches the Financial Institution. In view of the above, all such petitions, which fall within the parameters discussed above, are accepted."
7. The judgment in the case of Muhammad Umer Rathore (supra) is a judgment in rem while leave grant order referred to by learned counsel for the respondent Bank (C.P.No,134 of 2009), pertains to the parties therein. The order passed by the Honourable apex Court dated 11-2-2009, whereby the operation of the impugned judgment of this Court, was suspended, it is not applicable to the cases in hands, as it does not fulfil the conditions enumerated in Article 189 of the Constitution. Earlier identical issue was raised before the Honourable apex Court in the case of Maj. Gen. (Retd.) Mian Ghulam Jelani v. The Federal Government through The Secretary, Government of Pakistan, Interior Division, Islamabad PLD 1975 Lah. 63 and it was held as under:-- "The result is that interim relief given at the time of grant of Special Leave to Appeal, 'cannot be termed as final. It can be altered or modified later on. After careful consideration of Article 189 of the Constitution, it is clear none of the conditions enumerated above is attracted or application to the interim or interlocutory order passed by the Supreme Court in General Abdul Hamid's case. This order neither decides a question of law, nor is based upon a principle of law, nor enunciates a principle of law. In this view of the matter, this order suspending the operation of the impugned order is not covered by Article 189 of the Constitution and consequently is not binding on the Courts in Pakistan except of course on the parties in that case."
8. The impugned provisions are ultra vires the Constitution, offend the fundamental rights of the petitioners and as such, impugned action of the respondent's banks by invoking the said provisions of law is not legally sustainable. The same is set aside.
9. For the foregoing, these petitions are accepted and it is declared that remedy of invoking provisions of section 15 is not available to the respondents, having been declared unconstitutional by this Court. The respondents are at liberty to recover their outstanding amounts through any lawful manner except for invoking the impugned provisions. The respondents, however, will be at liberty to invoke provisions of section 15, if the same are held intra vires by the Honourabe apex Court.