' AFrAS HUSSAIN, C. J.-Petition No, 3-P of 1981 challenges the vires of section 58(d) of the Transfer of Property Act which is as follows :- "Usufructuary mortgage.--Where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to mortgagee, and authorizes him to retain possession until payment of the mortgage money and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest, or partly in payment of the mortgage money, the transaction is called a usufructuary mortgage and the mortgagee a usufructuary mortgagee."
2. The objection is that allowing mortgagee to remain in possession of the mortgaged property and to receive its rents and profits after the principal amount is paid up and allowing him to appropriate the additional rents and profits in lieu of interest amounts to permitting Riba which is prohibited by the holy Qur'an.
3. A preliminary objection was raised by Mr. Riazul Hasan Gilani, learned counsel for the Federal Government that the petition questions the legality of a fiscal law to which the jurisdiction of this Court does not extend. We have heard the learned counsel on this issue, and propose to uphold that objection.
4. Article 203-B (c) is as follows :
(c) "law" includes any custom or usage having the forc 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 three 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." `Law' thus does not include :
(1) The Constitution,
(2) Muslim Personal Law, or
(3) any law relating to the procedure of any Court or tribunal and until expiration of three years from commencement of Chapter 3-A of the Constitution.
(4) any fiscal law,
(5) any law relating to the levy and collection of taxes and fees,
(6) any law relating to the banking or insurance practice and procedure.
' Since Article 203-D confers upon this Court the jurisdiction to correct only a law so as to remove its repugnance with Shariab, the impact of the definition is that any law dealing with matters excepted from its definition would be beyond the pale of the jurisdiction of this Court.
5. The expression 'fiscal law' is not defined in the Constitution. The intention of the Constitution- maker can therefore be gathered from a reference to its dictionary meanings, as well as context including what precedes or follows it.
6. The preponderating sense in which the word 'fiscal' as an adjectiv to statutes is used is in regard to money, taxes, public treasury'. Thus in "Law Terms and Phrases Judicially Interpreted by Sardar Muhammad Iqbal Khan Mokal 'fiscal law' is defined as : "Statutes that relate to the collection of taxes from people by the' Government, e. g., the Stamp Act, the Court Fees Act, etc."
In the Reader's Digest Great Encyclopaedic Dictionary the word Ilse' is said to mean : "Public treasury of ancient Rome ; Roman emperor's privy purse, Public Treasury into which estates lapse by escheat."
' This is the sense in which, as will be seen later, the word fiscal has been used since its origin in the Roman Law. But it is difficult to concede that sense in Article 203-B in so far as the Laws about taxes or fees are laws dealing with public revenues and are specifically excluded from the jurisdiction of this Court which means that the expression fiscal law is either a totally different category of law or a category which includes some other matters also. This point was conceded by the learned counsel for the petitioner in this case.
7. It appears that the word fiscal was originally used as stated above in the sense of something pertaining to public revenues but now it has been given an extended connotation.
8. The word 'fisc' in Corpus Juris Secundum, Vol. 36, p. 825 is explained as an anglicised form of the latin fiscus and defined as meaning 'treasury of a kingdom or a state, money chest'.
9. The meaning of the word 'fiscal' is as follows : "Financial, pertaining to finance ; relating to accounts or the management of revenue ; of or pertaining to the treasury or public fihances of a government. The term imports some relation to financial operations, and has been held synonymous with "financial" see Financial 36 Corpus Juris Secundum, p. 765, note 24."
10. In the Black's Law Dictionary also the words 'fisc and fiscal' are expressed as follows : "Fisc. A treasury of a kingdom, nation, a state, or other governmental body. An Anglicised form of the Latin "fiscus" (which see)."
"Fiscal. In general, having to do with financial matters ; i. e. Money, taxes, public or private revenues, etc. Belonging to the fisc, or public treasury. Relating to accounts or the management of revenue.
Of or pertaining to the public finances of a Government or private finances of business."
11. The word 'fisc' is similarly explained in Oxford English Dictionary. According to it the word fiscal means not only "of or pertaining to the fisc or treasury of a state or prince ; or pertaining to the public revenue", but also "of or pertaining to financial matters in general". Similar wider meanings are given in other dictionaries also.
12. The learned counsel for the petitioner urged that the word 'fiscal law' in Article 203-B should be interpreted in its preponderating sense of laws pertaining to public revenue or public treasury.
When his attention was drawn to Black's Law Dictionary and Oxford Dictionary he submitted that the extended meaning of 'fiscal' that is, "of something pertaining to financial matters generally" cannot be applied to Article 203-B.
13. He also argued that if the word fiscal is interpreted as meaning financial matters generally, all the laws which not only pertain to borrowing and lending but also to sale and purchase for example the Contract Act, as well as the sale of Goods Act will also have to be included in the category of laws which are outside the jurisdiction of this Court.
14. It is difficult to give such a narrow interpretation as suggested by the learned counsel to the expression 'fiscal law' in view of the language in which the word law is defined. The laws relating to the levy and collection of taxes and fees which are laws about public revenue, are treated as a category separate from fiscal law. Thus the intention of the law makers is clear that fiscal law is something different from the laws of taxes or fees. This was conceded by the learned counsel for the petitioner also. In this view of the matter it is not possible to confine fiscal law to matters pertaining to public revenue only but it will have to be given an extended meaning so as to include private financial matters.
15. The other objection that it may have to be interpreted as including laws of sale and purchase of property and goods is not relevant. At present what is relevant is whether the word fiscal law includes law allowing interest. That it does include such laws will be clear from the consideration of the meaning of financial matters, since as seen in Corpus Juris Secundum Vol. 36, p. 825, the Oxford English Dictionary and the Black's Law Dictionary, the word fiscal imports, same relation to private financial operations The word finance according to the Oxford English Dictionary means "settlement with a creditor; payment of debt parting of money at interest "According to Corpus Juris Secundum, Vol. 36, one of the meanings of word finance is "borrowing of money at interest".
Clearly therefore a law concerning interest is a fiscal law.
16. The primary aim of excluding fiscal laws from the jurisdiction of this Court appears to be to give protection to all laws concerning interest. It would have been opposed to the principle of equality if the Government had given this protection to its own Bank or Insurances Companies and taken it away from privately owned Banks or Insurance Companies. It is for this reason that no distinction is made between one type of Banks or Insuranc Companies and another. On the same principle it appears that the laws relating to interest whether applicable to government or to companies or to private persons have been given protection for three years. We are, therefore, of the view that the provision challenged by the petitioner in this case is not within or jurisdiction. Some view was taken by the Shariat Bench of the Lahore High Court in Shariat Petition No, 71-L of 1979, Mian Zahoor Ahmad v. The Central Government, decided on 18-3-1980.
' The petition is dismissed.
' The petition is dismissed by a majority of five to one.
' ZAHOORUL HAQ, J.-I have had the advantage of perusing the elaborate arguments of the Hon'ble Chief Justice in the judgment proposed to be delivered by him. I agree that section 58 (d) is a fiscal law as it deals with payment of debt and its interest, is excluded from or jurisdiction and that E the petition may be dismissed. But I have some reservations in respect of last sentence of para. 15 and the contents of para. 16 which according to my humble view were not necessary for the disposal of this petition and should have been left to be considered in an appropriate case.
2. I agree that word "fiscal" is nowadays being used in an extended! Meaning and it has to do with financial matters i. e., money, taxes, public or private revenues etc. Or pertaining to the public finances of a Government or private finances of business. I further agree with respect that the word finance would cover the case of borrowing money at interest. It was all very relevant upon this stage.
3. But with very great respect I do not agree that it was further necessary to hold that "clearly therefore a law concerning interest is a fiscal law" which is a very wide expression and is not really directly involved in this case. The petition could be disposed of on the ground that section 58 (d) of the Transfer of Property Act is a law which defines usufructuary mortgage and stipulates payment of mortgage money as a loan by mortgagee to mortgagor, and mortgagor delivers possession of his property as a security for the payment of the said loan with further stipulation that the rents or profits of that property may be appropriated by the mortgagee either towards payment of interest on the said loan or towards the payment of the said loan or partly for either of the same and it is thus essentially a law in respect of securing and payment of loan and interest for the same and therefore it is a financial and fiscal law excluded from or jurisdiction.
4. I have serious reservations on the point that every law, which concerns itself with payment of interest, in whatever casual, incidental form and whether dealing with borrowing of money or not, would automatically be covered by the expression "Fiscal or Financial Law" and would be excluded from or jurisdiction. A great deal of situations can be conceived where a law may concern itself with interest incidentally without the stipulation of a debt or parting of money with interest and that law may not be fiscal or financial law in every case. Every challenge to that law shall have to be decided on the basis of the provisions of that law. We shall not be justified, as matter of rule, in refusing to consider the vires of a law which has a provision of interest incidentally. But we should examine whether the provision of interest is such which has the effect of a fiscal law or that it is merely incidental or accidental to some other provision and does not travel so far as to make it a fiscal law. In fact all the provisions may have to be construed in order to arrive at a proper conclusion.
5. For instance if a provision was made in the Sale of Goods Act obliging the buyer of the goods to pay 15% interest to the seller on the total value of the goods in case the buyer makes a breach of the contract to purchase the goods in time but is willing to pay for the same and take the delivery of the goods within a space of 15 days beyond the fixed time and at the same time it obliges the seller to deliver the goods to buyer in case he tenders the price plus interest as stipulated, then in such a situation it would be rather difficult to brand such a provision of law as a fiscal law merely because it makes a provision of interest. It could be argued that the provision of interest was merely a provision making the liquidated damages certain and fixed in order to avoid litigation and therefore the provision was merely in respect of salad goods and not a fiscal law as the provision of interest was merely of a coincidental nature and not of a substantial nature in this law.
Such examples could of course be multiplied but I do not want to enter into an elaborate discussion of the same at this stage as I am of the view that this petition could be disposed of on the grounds indicated in the first para of my judgment.
6. As to the argument that the exclusion of all fiscal laws from the jurisdiction of this Court has given equal treatment to Government, Banks and Insurance Companies as well as the private Banks and Insurance Companies, suffice it to say that the Courts are not concerned with reasonabiness of law as long as it is made by a competent Legislature and within the bounds of the Constitution or the Islamic Injunctions, as the case may be. In any case the whole set of laws in respect of procedure and practice of banking and insurance stand excluded separately apart from the fiscal laws.
7. With the observations made above I agree that this petition be dismissed.
MUHAMMAD TAQ! USMAN, have had the benefit of perusing the' judgment of the honourable Chief Justice in this case. While appreciating the academic effort he has undertaken in construing the 'Fiscal Law' I feel myself constrained to dissent from the reasoning, and consequently the conclusions expressed therein.
2. The substance of this petition and the objection in limine raised by the learned counsel for the respondent is mentioned in the first three paragraphs of the said judgment. It is therefore, unnecessary to repeat them here. Suffice to point out that the primary issue in this case is whether section 58 (d) of the Transfer of Property Act is a "Fiscal Law" within the meaning of Article 203-B (c) so as to be excluded from the jurisdiction of this Court.
3. This necessitates an enquiry into the meaning of the terms "Fiscal Law" as used in the said Article.
In view of the fact that this term is notK defined in the Constitution, we are to construe it in accordance with the accepted principles of Interpretation.
4. The word "Fiscal" (when employed as an adjective), by reference to authoritative dictionaries, clearly admits of three different meanings, namely :
(a) Pertaining to national or public revenue (hereinafter referred to as "the first meaning)".
(b) Pertaining to financial matters in general (hereinafter referred to as "the Second meaning").
(c) Pertaining to the public finances, or financial affairs of a government (hereinafrer referred to as "the third meaning").
' The first two meanings are discussed in the judgment of the Honourable Chief Justice, while the third one has not been dealt with therein. This meaning, however, appears in the authoritative dictionaries as a separate alternative one as will more fully appear hereinafter.
5. The issue may accordingly be crisply stated as follows :- Which of the aforesaid three meanings has been intended by the legislature in using the term "Fiscal Law" in Article 203-B (c) of the Constitution? In order to ascertain the intention of the Legislature, I shall deal with each of the said meanings seriatim.
' In regard to the first meaning (i. e. "pertaining to the public revenue,") it was contended that the word "Fiscal Law" in the said Article of the Constitution cannot be restricted to the revenue laws. This contention was based on the fact that the law "relating to the levy and collection of taxes and fees" appear separately after the word "Fiscal Law" in the same Article. The argument runs that the Legislature could not have indulged in tautology and must have intended something different by the use of the term "Fiscal Law". This argument has merit, and consequently, it is difficult to apply the first meaning here,As for the second meaning e. "Pertaining to financial matters in general)," it undoubtedly appears in several dictionaries, but is nevertheless more difficult in my opinion to apply in Article 203-B (c) of the Constitution. The reasons are as follows :-
(i) It is well-known principle of interpretation that the words of a statute must he given their ordinary, common or popular meanings. When a word can be construed in three different was, we must prefer the one which is commonly used in ordinary expressions. The word "Fiscal" is not commonly used in the sense of "financial matters" in general. This fact is evident from the "Corpus Juris Secundum" (Vol. 36, p. 491) which defines the word "Fiscal" as follows :- "While the word "Fiscal" as an adjective may be used to mean of or pertaining to financial matters generally the term is commonly used to signify of or pertaining to public treasury or revenue ; of or pertaining to the treasury or public finances of a Government." (Italics mine) This clearly shows that this second meaning of the word is not common in general or popular usage, but is only a potential one.
' Moreover, it cannot be denied that the word "Fiscal", would hardly convey to the mind of a person with a reasonable knowledge Of the English language the meaning of private financial transactions. The general impression created by this word is that it relates to the financial aspect of a government, and not to the financial matters in general.
' There seems no reason, therefore, to apply this potential meaning in Article 203-B (c) of the Constitution leaving aside the meanings which are common .And popular in general usage.
(ii) The learned counsel for the petitioner has raised the objection that if the second meaning is adopted in Article 203-B (c) of the Constitution, all the laws which not only pertain to the lending or borrowing of money, but also to sale, hire and purchase will stand excluded from the jurisdiction of this Court, because these laws relate to "the financial matters in general".
' This objection is very material in nay view, and cannot be overlooked by regarding it as irrelevant in this case. Where two or more constructions are possible, the effect and consequences of each construction are to be considered to ascertain the intention of the legislature. This principle is well established and needs no citation of authorities. Suffice to quote following apposite remarks : "if the enactment is, as Brett L. J. Said in the R. L. Alston," unfortunately expressed in such language that is leaves it quits as much open, with regard to its form of expression, to the one interpretation as to the other we must try and get at the meaning of what was intended by considering the consequences of either construction."
(Craies on Statute Law, 6th Edn., pp. 94-95)
' It is necessary, therefore, to refer to the dictionary meaning of the word `Financial' when used as an adjective, The Living Webster Dictionary of the English language defines "Financial" as "of or pertaining to finance or money matters" (3rd Edn. 1974, the English language Institute of America).
' The word "Finance", in turn, bears a host of meanings which embrace all monetary transactions whether public or private. These meanings include "Settlement with a creditor, payment of debt, parting of money at interest "(Oxford English Dictionary)" borrowing of money at interest (Corpus Juris Secundum)" the management of pecuniary affairs (The Living Webster Dictionary Op cit).
Most of these meanings encompass the whole field of commercial law, or the law of obligations, such as law of sale, hire, partnership, mortgage, pledge, guarantee and so forth. It follows that the construction of the word, "Fiscal" as "Financial" matters in general" will bring the . Whole area of commercial dealing within its scope. Once the term "Fiscal Law" is interpreted as a Law relating to all financial matters, both public and private" there remains no basis to draw a distinction between interest bearing transactions and transactions unrelated to interest.
' It is a settled principle of interpretation that where words in a statute admit of different meanings, that meaning will be adopted which accords with justice, reasonableness and sensibility, and that meaning will be discarded which produces great harshness or absurdity, or defeats thcObject of the statute. (See Craies : on Statute Law, 6th Edn., pp. 70, 86-87 and 95).
The application of the second meaning would in my view result in unreasonableness and absurdity. The adoption of this construction, would result in defeating the object of this construction, would result in defeating the object of this part of the Constitution rather than carrying it into effect. Such an interpretation would mean that virtually every class of commercial N contract, the law of torts and all other laws containing a pecuniary element would be effectively excluded from the jurisdiction of this Court. Indeed, it is difficult to conceive of any civil law which is totally devoid of a financial element, having regard to the sophistication of modern commercial dealings and an essentially free enterprise economy.
' It is clear, therefore, that the adoption of the second meaning would denude this Court of all meaningful powers and render it almost a Nullity. Such an intention cannot be imputed to the Legislature in the light of the historical factors which led to the establishment of this Court, the object of the Acs and surrounding circumstances. Had the legislature intended such a drastic curtailment of powers of this Court, it would have said so in express and unambiguous terms.
(See Craies : Op cit, pp. 92-93, 122-124).
The object of the Act which gave birth to this Court was the Islamisation of the existing laws. Hence, the Court was empowered to examine these laws in the light of the Holy Qur'an and Sunnah. The exclusion of the fiscal laws from the jurisdiction of this Court was, in my view, to avoid the consequent vacuum that could have resulted in the financial system of the government in the event of a sudden change in such laws. It does not mean that the Legislature intended to maintain the status quo in the legal system of the country, which would be the practical result of the adoption of this second meaning, thereby clearly defeating the intention of the Legislature. The establishment of this Court together with the resultant establishment of this Court together with the resultant changes in the structure of the judiciary was very drastic indeed. Clearly, it was not an exercise in futility. The second meaning, therefore, in my opinion cannot be applied to Article 203-B
(c) of the Constitution.
' I am, consequently, left to consider the third meaning of the word "Fiscal". This meaning is an established one. For example, the Black's Law Dictionary states one of the meanings of "Fiscal" to be public finances of government." In the Corpus Juris Secundum, Vol. 36, p. 491 the following entry appears after the word "Fiscal": "While the word "Fiscal" as an adjective may be used to mean of or pertaining to financial matters generally, financial, pertaining to finance, relating to accounts or the management of revenue, the term is commonly used to signify of or pertaining to public treasury or revenue; of or pertaining to treasury or public finances of Government public as distinguished from private finances and revenue. (Italics mine).
' These citations are sufficient to establish that the word "Fiscal" is commonly used in the sense of matters pertaining to the public finances of a government. The term "Public Finance" is defined as follows : "The financial operations of all levels of government. Such operations include budgeting, Taxing, appropriating, purchasing, borrowing, disbursing funds, and regulating the currency." (Saloan and Zurcher: A Dictionary of Economics, 3rd Edn. p. 262), It shows that the word "public finance" is not restricted to public revenue, but covers all the financial operations of a government. Accordingly, if the word "Fiscal Law" in the Article 203-B (c) of the Constitution is construed as "laws relating to the public finance of the government," it will not be confined to the laws" relating to the levy and collection of taxes and fees", but will encompass every law which relates to the financial operations of the government, such as the laws relating to government loans, securities etc. ' This construction, in my opinion, is the proper one to be applied in Article 203-B (c) for the following reasons :
(i) The rejection of the first two meanings on the grounds mentioned herein before implies the necessary acceptance of the third.
(ii) This construction accords with the populur sense in which the word "Fiscal" is used as stated above.
(iii) The word "Fiscal" so construed accords with its economic usage. In the "Dictionary of Economics and Business" (By E. E. Nemmers, 1976, Littlefield, Adams P-172) the term "Fiscal" has been defined as follows :
(1) Pertaining to financial affairs.
(2) More recently used in a special sense as opposed, for example, to "monetary." Then it refers to the "fist" that is the financial aspect of the government."
(iv) This construction is free from the defects which may result from the first two constructions as has been mentioned in the foregoing discussion. It does not result in tautology, nor in unreasonableness or absurdity.
(v) It will not be irrelevant to take into consideration Article 73(2) of the Constitution which defines a similar term, namely, "Money Bill". The Article reads as follows :- "For the purpose of this chapter, a Bill of amendment shall be deemed to be a money Bill if it contains provisions dealing with all or any of the following matters, namely :-
(a) The imposition, abolition, remission, alteration or regulation or regulation .Of any tax.
(b) the borrowing of money, or the giving of any guarantee, by the Federal Government, or the amendment of the law relating to the financial obligations of the government.
(c) The custody of the Federal Consolidated Fund, the payment of money into, or the issue of moneys from, that fund.
(d) The imposition of a charge upon the Federal consolidated fund or the abolition, or alteration of any such charge.
(e) The receipt of moneys on account of the public accounts of the Federation, the custody or issue of such moneys ;
(f) The audit of the accounts of the Federal Government ; and
(g) any matter incidental to and of the matters specified in the preceding paragraphs.
' The same difinition of the word "Money Bill" has been given in Article 115 (b) of the Constitution in relation to the provincial money bill.
' Now, the word "money bill" although synonymous in meaning to financial laws in general, have been given a restricted meaning in the said Articles. That is to say, these words have been limited to matters relating to the financial operations of the government, as opposed to private financial matters.
' According to the principles of interpretation of statutes these Articles may be used as an aid to construe the word "Fiscal Laws" a term which is similar in import to "money bill". The Privy Council in Blackwood V. R. Has laid down the following rule "One of the safest guides to the construction of sweeping general words which it is difficult to apply in their full literal sense is to examine other words of like import in the same instrument, and to see what limitations must be imposed on them. If it is found that a number of such expressions have to be subjected to limitations or qualifications, and that such limitations or qualifications, are of the same nature, that forms a strong argument for subjecting the expression in dispute to a like limitation or qualification."
(Craies on Statute Law, op cit, p. 177 ch. 9 ; 6)
' In the instant case, by construing the word "Fiscal Law" as "matters relating to public finances of the government" no limitation is being imposed on the literal sense of the word. We are merely adopting one of the dictionary meaning of the word which is equally possible literally, and in the light of the above cited principle, Articles 73(2) and 115(2) of the Constitution are reasonable grounds for, at least, preferring one dictionary meaning over the other.
The upshot of the above reasoning is that the words "Fiscal Law" in Article 203-B (c) of the Constitution are, in my opinion, restricted to the laws relating to the public finances of the government, and do not extend to private financial transactions. Accordingly section 58(d) of the Transfer of Property Act falls within the jurisdiction of this Court, which is empowered to examine its yin's in the light of the Holy Qur'an and Sunnah.
' The judgment in this case was reserved on the question of jurisdiction without fully hearing the parties on the merits. In the light of foregoing, I am of the opinion that this petition cannot be dismissed on the point of jurisdiction. This case, accordingly, should be decided on its merits.