AIJAZ HAROON vs INAM DURRANI

' 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.

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 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 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.

' 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."

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, 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 held that the grund norms of Pakistan are epitomised "in the Objectives Resolution passed by the Constituent Assembly of Pakistan on 7-3-1949 and were incorporated in the first Constitution of the Islamic Republic of Pakistan of 1956 and repeated again of 1962. Its basic postulates are that sovereignty belongs to Almighty Allah, which is delegated to the people of Pakistan who have to exercise the State powers and authority through their representatives on the principle of democracy." The learned Judge further observed that "the State of Pakistan was created in perpetuity based on Islamic ideology and has to be run and governed on all the basic norms of that ideology, unless the body politic of Pakistan as a whole, God forbid is reconstituted on un-Islamic pattern, which will, of course, mean total destruction of its original concept." In conclusion it was said that: "The Objectives Resolution is not just a conventional preface. It embodies the spirit and the fundamental norms of the Constitutional concept of Pakistan." Salahuddin Ahmed, J., apparently endorsing the observations of the other learned Judges of the Court relative to the Objectives Resolution observed as under:-- "The cornerstone of the State of Pakistan is that the severeignty rests with Allah and Pakistan is His delegatee in the matter of the governance of the State. It is natural, therefore, that the delegatee or for the matter of that any ruler, single or collective, in Pakistan can never have unlimited power.".................................

' This case (Dosso's case) gives me the impression that law has been sacrificed on the altar of expediency. The entire legal system of Pakistan has been derailed as a result of this decision, and the system requires to be put back on the rail, if Pakistan is to pursue its chartered course as laid down in The Objectives Resolution passed by the people of Pakistan."

18. Asma Jilani's case thus postulated that sovereignty of Allah as reflected in the Objectives Resolution was the touchstone on which all State activity was to be tested and that it provided the foundation on which the constitutional structure of the State was to rest.

19. The next case in point is Ziaur Rehman v. State (PLD 1986 Lah. 428), decided on 6-7-1972. This is a Full Bench case from Lahore jurisdiction in which the Bench comprised of A.R. Shaikh, Muhammad Afzal Cheema, Karam Elahi Chohan, Ataullah Sajjad and Muhammad Afzal Zullah, JJ. And the questions posed were such that all the learned Judges were called upon to express separate opinions. The main judgment in the case was, however, delivered by Muhammad Afzal Zullah, J. In the context of interpretation of Article 281 of the Interim Constitution of Pakistan, 1972, and the indemnity provided thereunder it became necessary for the Court to determine the Constitution asking powers of the then National Assembly of Pakistan and, as was inevitable, the role and effect of the Objectives Resolution came under consideration. Extensive citations were made from the decision of the Supreme Court of Pakistan in Asma Jilani's case. Muhammad Afzal Zullah, J.

Differing with Dicey's view in "An Introduction to the Study of the Law of the Constitution", which itself had deviated from Austin's view that the Members of the House of Commons were merely Trustees for the body by which they were elected and appointed, came to the conclusion that the concept' of Trust in so far as the body politic in Pakistan was concerned had different connotations. It was emphasized that the State was obliged to exercise its power and authority through the chosen Representatives of the People and that the Quranic reference to "those who are in authority amongst you" (Chapter 4, Ayat 60, Al-Nisa) negated the possibility of absolute power in a single hand and that authority was exercisable through a plurality of persons in a body constituted by law. Relying in this behalf on Asma Jilani's case, it was observed that when mind was properly applied to the provisions of the Resolution, each concept, contained therein, by passage of time, would not only be known but also be treated as a specific constitutional mandate. Argument that the provisions in the Resolution were too general or vague to be interpreted as constitutional mandates was, on elaborate reasoning, rejected and it was held that the same were capable of enforcement as such and objection that the treatment of the Objectives Resolution as a constitutional provision would create a multi-tiered Constitution was met by observing that there was nothing wrong with such a constitutional system either in law or on principle and prevalence of such Constitutional structures in the Republics of Cyprus & West Germany and the Fifth French Republic were cited as workable examples. It was further observed that in Pakistan itself during the period 1958-62, Laws (Continuance in Force) Order and the Constitution of 1956, operated side by side, the former having been accorded a Supra-constitutional status. In the same context, the position of the Government of India Act, 1935, as superimposed by the Indian Independence Act, 1947, was cited. Reference was also made to the maxim "Salus populiest suprema lex" and the rule of "Audi alteram partem", as instances involving Supra-constitutional import. Reiterating his view in the Journalists' Case, Muhammad Afzal Zullah, J., as the learned Judge then was, declared that the Objectives Resolution was a Supra-constitutional instrument. It will be useful also to make reference to the other views in the same case. Thus A.R. Shaikh, J. While according to the Objectives Resolution the status of grund norm held that the same was not a Supra-constitutional document but was designed to serve as guideline for the Constituent Assembly. It was found that the trust for discharge of sovereign functions was reposed in the people and once they had elected a Constituent Assembly, in a free and fair election, to frame the Constitution the main purpose of grund norm stood served. It was observed that 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. However, if it fails to fulfil its obligations, the remedy would be through the resistance to be offered by the people and the complexity of the problem so arising will be settled on the political forum and not before Courts.

Muhammad Afzal Cheema, J. , while agreeing that the concept of grund norm in an Islamic State was different from that of a nation State of the western pattern, nonetheless, came to the conclusion that while the people of Pakistan and their Constituent Assembly were required to discharge the trust reposed in them by Almighty Allah, in view of the complexity of the problems that may arise in holding otherwise, declared that it was necessary that such Constitution as is framed is adhered to and acted upon by the judicial branch of the State. Subscribing to this view, the learned Judge referred to Article 46 of the Interim Constitution dealing with eradication of Riba, translated as Usuary, to the presumable exclusion of interest, and held that it would not be within the competence of the Courts to examine the question of repugnancy of the provision on the touchstone of the grund norm in the absence of express Constitutional provision to this effect.

Ataullah Sajjad, J. Came to the conclusion that the Objectives Resolution was passed by the Constituent Assembly which consisted of persons who had actually fought for the creation of Pakistan and more than whom no one was conversant with the motive force behind the creation of this country. It was clear, according to the learned Judge, from the reading of the Objectives Resolution passed by the first Constituent Assembly, whose members were associated with the struggle for freedom directly under the leadership of the Father of the Nation, that they did not want to give a piece of advice only by passing this Resolution. Said the learned Judge: "It is not a document ensuring doctrines forcefully expressed but intended to be abandoned. It is not an array of hollow shibboleths. It is the conscience of our body politics-and furnishes the very foundation for raising the Constitutional edifice of Pakistan".. The learned Judge, however, restricted the said Resolution to four basic principles only namely, that (i) the State shall exercise its power through the chosen Representatives, (ii) that Pakistan shall be a Federation, (iii) and that Constitution shall guarantee Fundamental rights and the basic freedoms together with (iv) the Independence of judiciary. No Constituent Assembly, according to the learned Judge, could frame a Constitution in disregard of these precise principles. These principles were found by the learned Judge to have been duly followed in framing and promulgating the Interim Constitution. Karam Elahi Chohan, J., while he accepted the Objectives Resolution as grund norm, was constrained to observe that the matter had to be left to the duly elected Constituent Assembly which had due delegated authority to frame a Constitution undeterred by technicalities and the Interim Constitution so framed was not repugnant to the elements of trust reposed in the People of Pakistan.

20. In short, therefore, the Lahore Full Bench decision in the case of Ziaur Rehman v. State by majority held that while the Objectives Resolution spelled out the grund norm for Pakistan, Courts were bound by the law as reflected in the constitutional document itself. Supra-constitutional status accorded to the Objectives Resolution by Muhammad Afzal Zullah, J. , and partly by Ataullah Sajjad, J., can, therefore, be treated to be the minority view.

21. The minority view of the Lahore High Court, however, did not find favour on appeal to Supreme Court in State v. Zia-ur-Rehman (PLD 1973 SC 49). The Full Court in the words of Hamoodur Rehman, C.J., inter alia, held as under:-- "It follows from this that under our own system too the Objectives Resolution of 1949 even though it is a document which has been generally accepted and has never been repealed or renounced, will not have the same status or authority as the Constitution itself until it is incorporated within it or made part of it."

' Again: "If it (Objectives Resolution) appears only as a preamble to the Constitution then it will serve the same purpose as any other Preamble serves; namely, that in the case of any doubt as to the intent of the law-maker, it may be looked at to ascertain the true intent, but it cannot control the substantive provisions thereof."

22. In this case, obviously, the Supreme Court was confronted with the enforceability of the Objectives Resolution as a whole with a view to test the indemnity provisions in Article 281 of the Interim Constitution part of the substance of which it had itself indemnified in Asma Jilani's case and as such the all pervading sovereignty of Allah did not, directly, come up for consideration.

23. The next case which may be referred to now is of Nizam Khan v. Additional District Judge, Lyallpur (PLD 1976 Lah. 930) wherein Muhammad Afzal Zullah, J., as he then was declared that when there is no Quranic or Traditional Text or Ijma or binding Qias on a question of law, the Courts in Pakistan should follow the rules of Istehsan and Istislah as understood in Islamic Jurisprudence.

In other words the rules of equity, good conscience and public policy (Istehsan and Istislah) as contained in Muslim Jurisprudence were held to be applicable to a situation not directly covered by the aforementioned sources of Muslim Law. If this is true, it was said, of one branch of existing law in Pakistan, namely, Muslim Law where Istehsan and Istislah should be resorted to, it would be a contradiction in approach not to resolve the controversies arising out of other branches of territorial law when they are silent and vacuum exists to be filled in by rules of equity, justice and good conscience. In such a situation, according to the learned Judge, it would not be permissible for Courts in Pakistan to apply and import, any more, the rules of English law relating to equity, justice and good conscience. In other words all residuary law in Pakistan to be applied in fields other than those occupied by existing statutory law had to be Muslim Law and Jurisprudence and philosophy underlying the same. It was further held that the mandate contained in Article 31(1) of the Constitution to inculcate Islamic values in the lives of Muslims to be carried out by the State, as defined in Article 7, inclusive of other organs and authorities, was not calculated to exclude the judiciary and particularly the superior judiciary. It was observed that while judiciary did not fall within the ambit of State, as defined in Article 7 ibid, that did not mean such authorities as did not expressly fall within that ambit were prohibited from carrying out the objectives laid down in Article 31 etc. It was, however, held that Article 2 of the Constitution was not enforceable in the manner of Article 4 thereof and that Courts could enforce only basic judicial principles and concepts of Islam, where permissible by Constitution and Law in accord with organised rules and legal procedure.

24. As to the observation last mentioned, I would venture to think that while what was said in Nizam Khan's case may have been in line with the then prevailing dicta the position would, with respect, require re-appraisal following the manifest current enforceability of the Objectives Resolution by insertion of Article 2-A in the body of the Constitution immediately following upon Article 2 ibid and synchronizing the two provisions, as the same now stand, side by side and complementing each other, it may well be that Article 2 may now be enforced subject, of course, to such limitations as that concept in itself may inherently be susceptible to.

25. Reference may now be made to the two Full Bench cases from the Sind and Punjab jurisdictions both of which arose following upon the limited imposition of Martial Law in the cities of Karachi and Lahore during the turbulent days of the first half of 1977.

26. In the case of Niaz Ahmad v. Province of Sind PLD 1977 Kar. 604 Abdul Qadir Shaikh, C.J., speaking for the Full Bench of this Court, observed in the context of Article 2, which made Islam the State Religion of Pakistan, that such Article did not "even profess that by its own force, it makes Islamic law to be the law of the land otherwise there would have been no scope for separate provisions being incorporated in a separate part of the Constitution in Part IX under the heading Islamic Provisions. Article 227 declares that the existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, and no law shall be enacted which is repugnant to such Injunctions. Effect to these provisions is, however, to be given only in the manner provided in Part IX. The position has been clarified in Clause (2) of Article 227." As no case for interference was made out either on the foregoing basis or on general principles the petition was disallowed.

' This view, too, inter alia on alteration of law, as aforementioned, and I say so with respect, would be subject to the operative force of the Objectives Resolution.

27. In the other case namely that of Darwesh M.Arbey a Full Bench of the Punjab High Court consisting of Aslam Riaz Hussain, C.J., Karam Elahee Chauhan, Shameem Hussain Kadri, Zakiuddin Pal and Javid Iqbal, JJ., however, held, otherwise. While the consensus of the view was that the High Court, in spite of amendments to Article 245 of the Constitution continued to have jurisdiction to examine the imposition of limited Martial Law and cognate Federal and Provincial actions, in the separate opinions of Shameem Hussain Kadri, J., as he then was, and of Zakiuddin Pal, J. Express reliance was placed on the Objectives Resolution to hold that Parliament did not enjoy blanket powers to amend the Constitution and its Basic Structure, as delineated in the Objectives Resolution, could not be altered.

28. Before going over to the insertion of Article 2-A, in the Constitution of Pakistan, it would be instructive to refer to a Full Bench decision of the Supreme Court of Pakistan, consisting of Muhammad Haleem, C.J. And Shafiur Rahman, Zafar Hussain Mirza and M.S.H. Quraishi, JJ. In the case of Fauji Foundation and another v. Shamimur Rehman (PLD 1983 SC 457). In this case, Muhammad Haleem, C.J., who wrote an extensive judgment, covering virtually all the basics of constitutional law, had occasion to examine the concept of Due Process clause in the American Constitution in comparison with the corresponding provisions of our own Constitution and came to the conclusion that the only criteria for striking down law under our Constitution was furnished by the constitutional provisions themselves which alone are to be used as touchstone for testing the constitutionality of legislation in Pakistan and observed that "no idea or philosophy extranecus to cur Constitution can constitute a criterion for testing the validity of the Statute."

29. If then the Objectives Resolution can be considered a constitutional instrument, as no plausible reason to come to any other conclusion subsists, can the provisions and principles contained therein be not resorted to, to assess the constitutionality of legislation? If it contains the grund norm for the State of Pakistan (sovereigrty of Allah) then cannot the provisions of the Constitution itself be tested, to determine whether the same are in conformity with the same? Besides, the constraints, if any, on the enforceability of this Resolution having since been removed by insertion of Article 2-A aforesaid do the provisions and principles contained therein still not satisfy the test laid down by Muhammad Haleem, C.J., in the case of Fauji Foundation above referred? This brings us to the time when, through P.O. 14 of 1985, Article 2-A was inserted in the Constitution of Pakistan whereby the Objectives Resolution of 1949, as reproduced in the newly added Annex to the Constitution, was made "substantive" part of the Constitution and made enforceable/effective as such. The induction of the Objectives Resolution as an operative part of the Constitution of Pakistan gave rise to an inescapable question whether in the Islamic State of Pakistan where Quran and the Sunnah had become enforceable that which was prohibited therein still remained permissible for Courts to allow and to decree. This, in turn, has occasioned some monumental decisions, legal discourses and even sub-constitutional legislation. Both the learned counsel, Mr. Liaquat Merchant, for the plaintiff, and Mr. Akmal Wasim, for the defendant, have referred to and relied upon three successive decisions of my learned brother, Tanzil-ur-Rehman, J., in the cases of Bank of Oman Ltd. v. East Trading Company Ltd. (PLD 1987 Kar. 404), Irshad H. Khan v. Mrs. Parween Ejaz (PLD 1987 Kar. 466) and Habib Bank Ltd. v. Muhammad Hussain and others (PLD 1987 Kar. 612). However, while Mr. Akmal Wasim contends that pursuant to these decisions interest is not payable at all, Mr.Liaquat Merchant maintains that Tanzilur Rehman, J., himself acknowledged the exclusive jurisdiction of the Federal Shariat Court in such matters as also the curative and contrary provisions in Article 270-A of the Constitution. In order to arrive at the correct conclusion not only the three cited decisions but some others shall also have to be noted.

30. In the case of Bank of Oman Ltd. v. East Trading Company Limited, decided on 16-4-1987 (PLD 1987 Kar. 404), my learned brother Tanzilur Rehman, J. , holding that by induction of the Objectives Resolution as an operative part of the Constitution of Pakistan, through the insertion of Article 2-A, the said Resolution had assumed the character of a Supra-Constitutional instrument, found that all or any provisions of law shown to be repugnant to the principles and provisions in the said Objectives Resolution could be declared by superior Courts to be void and struck 'down in consequence. For reaching these conclusions reliance, inter alia, was placed on the Lahore Full Bench decision in the case of Ziaur Rehman v. The State (PLD 1986 Lah. 428) but the Supreme Court decision on appeal namely State v. Ziaur Rehman (PLD 1973 SC 49) was distinguished on the ground of subsequent constitutional insertion of Article 2-A aforesaid and reliance thereupon, was instead made on the earlier Supreme Court view in the case of Asma Jilani v. The Government of Punjab and another (PLD 1972 SC 139). The learned Judge, however, found the declared power to be subject to the special jurisdiction of the Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court, such jurisdiction having been conferred by the Constitution itself.

Thus, while the learned Judge came to the conclusion that the provisions in section 58(f) of the Transfer of Property Act, 1882, were void being repugnant to the Injunctions of Islam, as reflected in the Quran and Sunnah, he declined to strike down the same on the ground that the Federal Shariat Court, in its exclusive jurisdiction in the matter, had earlier found that these provisions were not so repugnant but a hope was expressed that the said Court would consider the advisability of reviewing its opinion on the subject. In the same case, the decision of a Full Bench of this Court in the case of Muhammad Bachal Memon v. Government of Sind and others (PLD 1987 Kar. 296), .On a reference by the Attorney-General, was noticed but it was observed that while there was a discussion on Article 2-A of the Constitution in the said judgment, the same pertained to a different context namely the,validity of Article 270-A, another insertion in the Constitution, and therefore, was not relevant for the decision in the said case.

31. The same learned Judge had occasion to deal with the concept of interest in the light of Article 2-A of the Constitution in the subsequent case cf Irshad H.Khan v. Mrs. Perveen Ejaz (PLD 1987 Kar.

466) decided on 11-6-1987. Interest was held to be synonymous with Riba, the literal meaning whereof was found to be "increase" or "any addition, however slight, over and above the principal".

It was further held that interest and usury had the same connotations. The learned Judge, however, distinguished that such "increase" referred to an increase on debt, in contradistinction with an "increase" on sale or an "increase" in the nature of profit and that the prohibition of Riba related to what was known amongst the Arabs as Riba AlNasiyah. Copious citations were made in this case to the provisions and principles in the Holy Quran and in the Sunnah of the Holy Prophet (p.b.u.h.) as also to several works attributable to our Doctors of Fiqh. Holding that the provisions of Article 2-A (in turn the Objectives Resolution) incorporated the Paramount Law enforceable in Pakistan, it was declared that sections 79 and 80 of the Negotiable Instruments Act, 1881 and section 34 read with Order XXXVII, Rule 2, C.P.C. Relating to grant of interest by a Court of law, shall yield to the Injunctions of Islam contained in the Holy Quran and Sunnah relative to Riba. It was further held that Article 2- A of the Constitution of Pakistan, being in the nature of a paramount clause and Supra Constitutional in its application, covered enunciations of law by the Supreme Court of Pakistan under Article 189 as well and so also any declaration of such law by the Honourable Supreme Court either prior to insertion of Article 2-A or per Incuriem of that clause such enunciation or declaration being subservient to Article 2-A ibid.

32. It will be in order here also to refer to an Article on "Islamization of laws in Pakistan" by Mr. Justice Gul Muhammad Khan, Chief Justice, Federal Shariat Court of Pakistan (PLD 1986 Journal 249) wherein the learned Chief Justice had occasion to dilate upon the effect of Article 2-A in the context of enforceability of the laws of Quran and Sunnah by Courts in Pakistan and came to the conclusion that whereas the jurisdiction of the Shariat Court was restricted by the Constitution itself to specific laws falling within its purview it would be in order that Courts of General Jurisdiction may exercise relevant powers and that the same, in particular, could be done by the High Courts under Article 199 of the Constitution of Pakistan.

33. In the case of Habib Bank Ltd. v. Muhammad Hussan and others, heard on 11-6-1987 (PLD 1987 Kar. 612) my learned brother Tanzil-ur-Rehman, J., had occasion to interpret the jurisdiction of the High Court, exercising powers under the Banking Companies (Recovery of Loans) Ordinance (XIX of 1979). The learned Judge came to the conclusion that these powers were not exercisable as persona designata but as High Court, as such. He further found that with the introduction of Ariicle 2-A in the Constitution of Pakistan Sovereignty of Allah had beccme enforceable and the Laws in the Holy Quran and Sunnah of the Holy Prophet (p.b.u.h.) had become supreme law of Pakistan and, as a result, the principles and provisions set out in the Objectives Resolution, made part and enforceable as constitutional provisions under Article 2-A ibid, assumed a character higher than the Constitution itself and any law which contravened the same was liable to be brushed aside if it came in the way of Allah's Sovereignty and the supremacy of the Holy Quran and Sunnah in the Islamic Republic of Pakistan. Applying these principles to the institution of interest recourse was had to prohibition in that behalf regarding monopoly capitalism and the monopolistic laws in general and abolition of all kinds of interest. Testing sections 79 and 80 of the Negotiable Instruments Act, XXVI of 1881, section 34 and Order XXXVII, Rule 2, C.P.C. As also Interest Act (XXXII of 1839), on such basis, it was held that the said provisions were void and, as a result, a claim of interest could no longer lawfully be enforced nor a Court of law could decree any amount by way of interest. The learned Judge however, being again confronted with the Full Bench decision in the case of Muhamma I Bachal Memon v. Government of Sind (PLD 1987 Kar. 296) came to the conclusion that as the Banking Companies (Recovery of Loans) Ordinance (XIX of 1979) was promulgated on 1-4-1979 which date fell during the protected period contemplated by Article 270- A of the Constitution grant of interest under the provisions of the said Ordinance could not be withheld as Article 270-A had been found in the said Full Bench decision of Md. Bachal to be valid and binding irrespective of Article 2-A aforesaid.

34. At this stage also and, with respect, I would like to take note of the Address of Mr.Jusitce Dr.Nasim Hasan Shah on the subject of "The Objectives Resolution and its Impact on the Administration of Justice in Pakistan" which address was delivered on August 3, 1987 at the International Islamic University at Islamabad (See PLD 1987 Jour. 186). The Honourable Supreme Court Judge in this discourse, inter alia, made mention of the decision of Tanzil-ur-Rehman, J. In the case Bank of Oman ibid in the context of some Quranic verses, as reflected in the Objectives Resolution and observed as under:-- "It is only if the Courts of general jurisdiction could have the authority to say whether an existing law is or is not Islamic unhampered by the limitation imposed on the Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court then alone the goal of administration of justice in conformity with the precepts of Islam can become reality."

' The discourse, on a reference to exercise of judicial power in the context of enforcement of the laws of Quran and Sunnah as resolved in the Objectives Resolution, was concluded with the following observation:- "The wheel has turned the full circle. New and exciting prospects have appeared on the horizon and a new dawn is rising."

35. Reference has been made to the learned discourses of the Chief Justice of the Federal Shariat Court and of the Honourable Judge of the Supreme Court, as quoted above not as authorities or precedents but more or less in the same way as references are made 36. ' to observations of prominent authors of legal treatises for such observations coming from judicial personages at this level are entitled to no less respect and consideration.

36. Here mention may also be made to the case of Mirza Qamar Raza v. Mst. Tahira Begum and others (PLD 1988 Kar. 169) also decided by my learned brother, Tanzilur Rehman, J. In this case, question before the Court was whether sections 7 and 8 of the Muslim Family Laws Ordinance (VIII of 1961) could stand the test of Article 2-A of the Constitution of Pakistan, as introduced through P.O.

14 of 1985, and confirmed through the Eighth Amendment to the Constitution. The learned Judge found that even though Ordinance VIII of 1961 was a protected statute under Articles 8(3)(b) and 20 of the Constitution read with the First Schedule thereof, every legislation, even though it qualified all constitutional tests, generally, was further to be tested on the touchstone of Article 2-A and therewith of the Objectives Resolution. In the view that prevailed with the learned Judge, the aforesaid provisions of Ordinance VIII of 1961 being not in conformity with the Injunctions of Quran and also negating Article 227(2) of the Constitution, had, in accordance with Article 268 of the Constitution, to be construed with all such adaptations as were necessary to bring the same in accord with the provisions of the Constitution. The learned Judge, in his exhaustive and erudite discourse on the subject, also had occasion to refer to the case of Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yousuf (PLD 1963 SC 51), but, apparently, distinguished its application in view of the observations of the Supreme Court in that case itself, to the effect that whether or not the result achieved by section 7 of Ordinance VIII of 1961 was in strict conformity with Islamic Law was a question which did not fall within the province of the Court to determine by reason of Articles 5 and 6 of the Constitution of 1962.

37. While I am in respectful agreement with the view of the learned Judge that every statute in Pakistan has not only to satisfy the test whether it is in consonance with the constitutional mandates generally but has also to further fulfil the additional or inclusive qualification that it does not contravene the principles and provisions of the Objectives Resolution, as now also mandated by Article 2-A of the Constitution, I respectfully, in adherence to the Supreme Court dictum in Syed Ali Nawaz Gardezi's case (PLD 1963 SC 51), tend to think that all that the legislature, in codifying section 7 ibid, intended to do, was to abolish "Talaq-e-Bidat" and to legislate the Islamic Law provisions pertaining to two forms of "Talaq-us-Sunnat" viz. "Talaq Ahsan" and "Talaq Hasan", as far as may be. As rightly pointed out by my learned-brother Tanzilur Rehman, J., the legislative machinery does not appear to have fully succeeded in doing so and Ordinance VIII of 1961, being an "existing law" in terms of Article 260 of the Constitution read with Article 268(7), adaptations can be construed therein.

38. In the context of adaptation, I would, respectfully, venture to think that whereas there are limitations as to period of time in the earlier parts of Article 268 there do not seem to be any for a "Court, tribunal or authority" under. Article 268(6) to read the relevant laws with necessary adaptations to bring the same "into accord with the provisions of the Constitution" and this, if I may say so, shall apply to "the provisions of the Constitution" as they stand, at any given time, in relation to the defined "existing laws", for the Constitution is an organic and not a static legislation. However, in consonance with the weighty observations of the Supreme Court of Pakistan in the case of Syed Ali Nawaz Gardazi PLD 1963 SC 51 the object of the legislation being clear namely to do away with "Talaq-e-Bidat" Courts of law, in my humble view, should be extremely slow in according restricted meanings to sections 7 and 8 of the Muslim Family Laws Ordinance, 1961 and brooking the defeat of the objectives of the law on account of any technicalities and procedural flaws in the legislation. It is, however, to be hoped that, in due course of time, the necessary amending exercise will be undertaken with a view to eliminate the lacunas, such as the same may be, and ensuring the full rights of the women segment of Muslim society in Pakistan and by that I mean the high and undiluted rights guaranteed to women by the Quran and Sunnah and, to say the least, "Taliq-e- Bidat", which exposes a Muslim woman to the capricious and momentary whims of her husband is certainly none of that genus. The foregoing observations, it is made clear, do not mean that my learned brother, Tanzil-ur-Rehman, J. Would have intended it to be other side. In fact, in the decided case, the learned Judge was according a greater protection to a Muslim woman, subscribing to Fiqh Jafria, than that which was available to her 'under section 7 of the Muslim Family Laws Ordinance, 1961. Sections 7 and 8 of the said Ordinance, thus, in my view are valid.

39. At this stage, reference may also appropriately be made to two of the latest decisions of the Lahore High Court on the subject, reported as Shah Bazud Din Choudhry and 27 others v . Services Industries Textiles Ltd. PLD 1988 Lah. 1 and Malik Ghulam Mustafa Khar and others v. Pakistan and others PLD 1988 Lah.

49.

40. In the first of these cases, Khalil-ur-Rehman Khan, J. In a winding up petition, while issuing directives under section 290 of the Companies Ordinance, 1984, elaborated succinctly the Injunctions of the Quran and Sunnah regarding charging any payment of interest in the context of the Objectives Resolution having become substantive and enforceable part of the Constitution and found that investments made in the Respondent Company, carrying interest, were not conducive to "public interest" which lay in creating conditions whereby Muslim citizens were enabled to order their lives, in the individual and collective spheres, in accordance with the requirements of Islam, as set out in the Holy Quran and Sunnah. Directions were, therefore, issued for entering into requisite arrangements to convert the investments on the lines of Mudaraba or Musharika financing.

41. In the second of the above cases, namely Re: Malik Ghulam Mustafa Khar, a Full Bench of the Lahore High Court had occasion to consider the impact the Objectives Resolution could have made, after having been rendered operative and enforceable pursuant to Article 2-A ibid, on Article 270-A of the Constitution of Pakistan and observed that while interpreting the Constitution the Objectives Resolution must always be present to the mind of the Judge and where the language Qf the constitutional provision permits exercise of choice the Court must choose such interpretation as be deducible from the principles embodied therein. However, it was further observed that this did not mean that the Objectives Resolution was to be given status higher than that of other provisions in the Constitution and used to defeat such provisions since one provision of the Constitution cannot be struck down on the basis of another and to the same effect the decision of this Court in Muhammad Bachal Memon's case, having been spelled out to be, agreement therewith was expressed.

42. It is with respect pointed out that the Objectives Resolution, in the above recapitulated background is not just another Constitutional provision and, even if it- were so, all Constitutional_ provisions do not carry equal status.

43. In the case of Muhammad Naseer v. The State PLD 1988 FSC 58, a Full Bench of the Federal Shariat Court had occasion to consider the effect of Article 2-A and with it the Objectives Resolution on the penal law in force in the country. The precise question before the Court was whether the offence of Zina alleged to have been perpetrated on a dead woman, retrieved from her grave, could be punishable under the existing law, if no express provision in that behalf subsisted in the codified law on the subject. In that case in which I, as the then Advocate-General for the Province of Sind had occasion to address the Court, a submission was made that in virtue of Article 2-A and the Objectives Resolution, thereunder, having been made operative and enforceable part of the Constitution, offences contemplated by the laws of Quran and Sunnah could be held punishable even though the same did not form part of the codified penal law of the land. Gul Muhammad Khan, C.J., in such context, observed as under:- " However, as argued by the learned Advocate-General, Sind, and supported by the Assistant Advocate-General, Punjab, Mr. Abbasi and the Advocate-General of N.-W.F.P., it is not correct that if the statutory law does not include an offence, it' would mean that that act would go unpunished even if it was an offence under the Muslim Law. According to them, the entire body of the Muslim Law has become now a part of the law of this country, as existing law and so if an offence falls even thereunder the principal Courts of the country shall be entitled to try it. It is to be noted that it is nowhere given as conferring validity only to such laws which are duly enacted in codified form by the competent legislature."

' It was further observed:- "Now the entire field of Muslim Law has been made applicable, not by any ordinary law, but by the Constitution itself, as per Article 2-A, enforced with effect from 3rd of March, 1985."

' Again:- "Now in 1985, it is the entire body of Muslim Law which has been enforced and so no objection is due for lack of it being in the form of codified enactment, to make it the Existing Law of Pakistan."

' Reference in this behalf was also made to the case of Bank of Oman PLD 1987 Kar. 404 and the case of Mirza Qamar Raza PLD 1988 Kar.

169. In conclusion the learned Chief Justice observed as under: - "So, for the purposes of the case before us it cannot be denied that if a person satisfies his lust on a dead body he can be held guilty of Zina-bil-jabr as defined in section 6 of the Ordinance VII of 1979."

44. It would be appropriate now to refer to a Full Bench decision of the Supreme Court of Pakistan in the cases of Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287 decided on 4-5- 1988. The Bench comprised of Muhammad Haleem, C.J. Mr. Muhammad Afzal Zullah, Nasim Hasan Shah, Shafiur Rahman and Zaffar Hussain Mirza, JJ. And the main judgment of the Court was delivered by Hon'ble Muhammad Afzal Zullah, J. In this case, which pertained, inter alia to the effect of an earlier declaration of law by the Supreme Court in its Shariat Appellate Jurisdiction touching upon the rights of pre-emption of tenants under the Land Reforms Regulation, 1972, MLR 115 of 1972, North-West Frontier Province Pre-emption Act (XIV of 1950) and the Punjab Pre-emption Act (I of 1913) as enunciated in the case of Government of N.-W.F.P. v. Malik Said Kemal Shah PLD 1986 SC 360, the Court was called upon to consider the impact made by the Objectives Resolution which, since had been inducted as on operative part of the Constitution through the insertion of Article 2- A in the body of the Constitution and made enforceable, as such. The Shariat Appellate Bench decision in Said Kamal's case was rendered under Chapter 3-A of the Constitution and the pre- emption rights in the above-referred statutes were held repugnant to the Injunctions of Islam and the effective date of such declaration was determined to be 31-7-1986. Question arose as to what would be the effect of the declaration in Said Kamal's case on pending litigation under the laws held to be repugnant particularly in view of the intervening enforceability of the Objectives Resolution. It was held that if the rights under the laws, which had ceased to be effective, following upon the Court's declaration, had matured, before the effective date of the declaration, into decree(s) the same gave rise to rights which the successful plaintiff and his heirs were entitled to defend and unless such decree was set aside, modified or varied in accordance with the same law it would continue to hold the field unless it was taken away by statute by express words or by very clear intendment. It was further observed that the controversy was to be resolved on the basis of the provisions in Chapter 3-A of the Constitution alone in virtue of which judicial machinery was provided and judicial process was introduced as one of the modes of Islamisation of Laws and that such provisions being entirely in consonance with the Objectives Resolution no case was made out to reconsider or review the decision in Said Kamal's case in the face of enforceability having been accorded to the Objectives Resolution. In this context regarding assailment of such decree on the general principles of Islamic Common Law it was observed as under:- "Indeed, now there are hundreds of cases wherein, in order to interpret and apply Constitutional and other Statute laws or where the law is silent or a field is unoccupied by it or when answering discretionary questions, the Courts of Pakistan have applied the rules and principles of Islamic Law and Jurisprudence amongst others as residuary law. It is our effort to continue this process (in an evolutionary manner) as it is the demand of national conscience and ethos. The State is committed to the implementation of the principles of the State Policy and those in The Objectives Resolution of 1949. They are indeed salutary rules for our State Policy."

45. Note was taken of the contention firstly, that as soon as the Shariat Appellate Bench rendered its view in the case of Said Kamal PLD 1986 SC 360 or at least when judgment in that case became effective the relevant substantive provisions of the Pre-emption laws alongwith Concomitant procedural provisions got annulled under the Islamic dispensation and that secondly the Objectives Resolution having been accepted as "substantive part" of the Constitution and enforceable as such the provisions and principles in such Resolution became self "executory" notwithstanding the other provisions in the Constitution including Chapter 3-A thereof expressly dealing with Islamisation through judicial process. The following observations were made in that context:- "We regret, neither of the two contentions, as presented by the learned counsel, can prevail in the position obtaining in this case, so as to avoid the effect of the relevant provisions of the Constitution in Chapter 3-A, as interpreted earlier. The first one, in our view, fails even on the touchstone of Islamic principles and our interpretation of the relevant provisions of Chapter 3-A would stand. The second one would also fail because of the failure of the first one. Admittedly the Islamic content of both is the same, which, as touchstone, does not support their stand on merits.

But it has to be remarked that this approach/reply in this case would not resolve the Constitutional question raised on the basis of the Resolution. At present the contention as presented in that behalf in the context of the particular provisions of the Constitution involved in this case is too wide to be accepted. This is so notwithstanding the highly important constitutional position of The Resolution which might be further spelled out in other cases which might come before the Court."

' With this judgment Muhammad Haleem, C.J. , Nasim Hasan Shah, Shafiur-Rehman` and Zafar Hussain Mirza, JJ. Agreed, Dr. Nasim Hasan Shah, J. Adding a separate note of his own which, however, pertained to the effectiveness of a decree already passed under the law as it then stood and the governance of rights thereunder.

46. It will thus be observed that this decision is based on a question regarding which no express Injunction of the Quran was involved and it was expressly held that the element cf contravention of Islamic principles was manifestly absent and that the precise effect of the insertion of Article 2-A would be considered and dealt with by the Supreme Court of Pakistan at a more appropriate time and in some other context. Two out of the above-referred decisions of Tanzilur Rehman, J. Namely Bank of Oman v. East Trading Co PLD 1987 Kar. 404 and Habib Bank Ltd. v. Md. Hussain PLD 1987 Kar.

612 were considered but doubt was expressed as to the general applicability of Article 268 as that provision apparently pertained to a transitional period and "for want of proper assistance" and "fuller examination" "this or similar other exercise" was "deferred".

47. What is significant, however, is that the foregoing decisions were not deviated from. As to the observation regarding Article 268 ibid being for a transitional only, the same is perfectly true, so far as it goes, but it will be for consideration that Article 2-A, having made the Objectives Resolution expressly enforceable, perhaps, the aid and assistance of Article 268, invoked by Tanzilur Rehman, J. May not have been necessary at all. For such proposition it may be submitted that a constitutional provision being, what it may be, any sub-constitutional legislation, not in accord therewith, to the extent of inconsistency or pro tanto is to give way. In the same context attention is respectfully drawn to the provisions of Article 268(6) whereunder, a "Court, Tribunal or Authority", is to read "Existing Laws" with necessary adaptations to bring the same in conformity with the provisions of the Constitution and that should include amended provisions thereof. This, of course,would be restricted to the laws in force prior to the commencing day of the Constitution as that is how "Existing Laws" have been defined. Mr. Khalid M. Ishaque in his Article entitled, "Constitutional Reliefs: Need for new Formulation" (See PLD 1987 Jour. 213), has attempted to meet this situation by pointing out that, perhaps, the Constitution, having remained in abeyance till about the end of 1985 and having revived with Article 2-A, being part thereof, Article 268 could be held to be applicable as another transitional period, had, by force of circumstances, come into play.

48. The correct interpretation seems to be, as I have pointed out earlier, that Article 268 need not have been applied at all, as the Objectives Resolution and later Article 2-A of the Constitution, operated by their own force and any law, which came in conflict with the laws of the Qur'an and Sunnah, whether it be a law subsisting prior to the Constitution or one that surfaced subsequent to it, could simply be disregarded and denied any effect for, inter alia "effect" was to be given to the Objectives Resolution. That adaptations could be made under Article 268 (6), in respect of legislation which has followed in the wake of the Constitution, would involve the invocation of interpretative aids, which, may border on stretching the meanings of the provision further than appears to be necessary and may even come in conflict with the binding observations of the Supreme Court of Pakistan, cited as above.

49. While on this question it would be useful to refer not only to Article 227 of the Constitution but to the entire scheme of Part IX of the Constitution entitled, "Islamic Provisions" which comprises of Articles 227 to 231. Article 227 (1) ordains that all "Existing Laws", meaning thereby pre-Constitution laws in force in Pakistan (see Articles 260 and 268 (7) of the Constitution), shall be brought in conformity with the Injunctions of the Quran and Sunnah (shortly referred to as Injunctions of Islam) and further that "no law shall be enacted which is repugnant to such Injunctions." Thus the first part of Article 227(1) is in line and almost co-extensive with Article 268 of the Constitution, at least in so far as the qualification or limitation as to period in the laws is concerned. Clause (1), however, in turn, is subject to clause (2) of Article 227 which postulates that "effect shall be given to the provisions of clause (1), only in the manner provided in "Part IX aforesaid. Part IX of the Constitution itself in virtue of Article 227 (3) is not to "affect the personal laws of non-Muslim citizens or their status as citizens," and besides, the expression "Quran and Sunnah" has been defined to mean in relation to personal law of any Muslim Sect the same as interpreted by that sect. Now, Part IX of the Constitution envisages the creation of a "Council of Islamic Ideology" whose functions, inter alia, are to recommend to the Parliament and the Provincial Assemblies ways and means for 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" and to render advice in relation to references as to proposed laws regarding their Islamic connotations, such references emanating from the President, a Governor, a House of Parliament or a Provincial Assembly, the reference from the President or Governor being discretionary to the Head of the State or the province concerned and the reference from the legislature, being mandatory if two-fifths of the relevant membership so desires. The Council is also to make recommendations as to the measures for bringing existing laws in conformity with the Injunctions of Islam and to compile in a suitable form for the guidance of the Parliament and the Provincial Assemblies, "such Injunctions of Islam as can be given legislative effect". The Council, in relation to the foregoing, is to submit annual interim reports and a final report, the final report stipulated to be within seven years of its appointment. A great deal has been said by my learned brother Tanzilur Rehman, J. As to how the provisions of Part IX have virtually stood frustrated. The operation of Part IX of the Constitution having thus remained largely fruitless, the provisions in Chapter 3-A of the Constitution regarding a new Shariat Jurisdiction and later Article 2-A of the Constitution have appeared in the Constitution as a panacea to remedy the resulting situation. The impact and significance of the new Shariat Jurisdiction is clear and manifest but at the same time it is restricted and limited. Hence Article 2-A, which has resurrected the dicta in Re: Asma Jilani by catering to the requirements laid down in the subsequent Supreme Court case of Zia-ur-Rehman,

50. Reverting to Part IX of the Constitution it may be noted that the concluding portion of Article 227(1) which envisages that "no law shall be enacted which is repugnant to" the Injunctions of Islam is an independent provision and does not appear to be controlled by Article 227(2), which later clause postulates that effect is to be given to the provisions of clause (1) of Article 227 only in the manner provided in Part IX of the Constitution. I have arrived at this formulation on the basis of the scheme of Part IX of the Constitution whereunder neither the President nor the Provincial Governors can issue any Ordinances nor can Parliament nor any Provincial Assembly pass any legislation which is contrary to the Islamic Injunctions and in case of the slightest doubt reference to Islamic Ideology Council is to emanate and as any un-Islamic law would be in negation of Part IX of the Constitution and, if that be so and there being a prohibition for such law making, Courts of law in furtherance of Articles 227(1) itself can strike down the same for its un-Islamic content. Since, however, such course of action did not, uniformly, find favour in the superior Courts a mechanism, which already existed in the Objectives Resolution and in the Constitution, read as a whole, has now expressly and in unequivocal terms been recognised through Article 2-A for bringing all laws to conform to the Injunctions of Islam and a check has been expressly mandated whereby the contravening laws can, unreservedly, be struck down at the judicial level.

51. In short and to put succinctly, the laws existing on the commencing day of the Constitution were to be brought in line with the Injunctions of Islam by enforcing the Objectives Resolution through Courts of law (now clarified through Article 2-A) and through the machinery introduced in Part IX of the Constitution. No law, after the enforcement of the Constitution, could be enacted which ran counter to the Injunctions of Islam but if any law thus enacted was still, found to be so contravening, it could be corrected either in accordance with the mechanism introduced through Part IX aforesaid or, alternatively, through ordinary judicial process, which later option now stands recognised per Chapeter 3-A of the Constitution and, still more, in Article 2-A, since introduced in the body of the Constitution.

52. I would now take up consideration of the effect of Article 270-A, as interpreted by a Full Bench of this Court in the case of Muhammad Bachal Memon and others ibid on the basis of which it was held in the case of Habib Bank Ltd. PLD 1987 Kar. 612 that if a law was protected under clause (1) of Article 270-A the same could be allowed to stand ground notwithstanding Article 2-A, the Objectives Resolution, and the acknowledged sovereignty of Allah. The view in Md. Bachal's case was only tentatively and in passing expressed by Naimuddin, C.J. Dealing, as the Court was, with only a preliminary objection.

53. In a recent decision of the Supreme Court of Pakistan in the case of Miss Benazir Bhutto v.

Federation of Pakistan and another PLD 1988 SC 416 a Full Bench of the Court, headed by Muhammad Haleem, C.J, and comprising of eleven Judges, on an exhaustive examination of law, came to the conclusion that while Article 270-A was a valid Constitutional provision, a view similar to that in Muhammad Bachal's case ibid, the protection accorded to laws, falling thereunder, was only in relation to the competency of such laws, which pursuant to the deeming clause, could be treated to have been made competently but that once the Constitution was revived and operated in its fullness every such law was liable to be tested, as to its validity, on the touchstone of Fundamental Rights. This was so as Article 270-A, according to the view which found favour in the Supreme Court of Pakistan, was a provision in the nature of an Indemnity Clause and validated past enactments and past and closed transactions. Such laws, it was further held, could be amended in the manner provided, therefor, in Article 270-A itself, which, as was done by Naimuddin, C.J. In Md. Bachal's case, was accorded the status of a Constitutional provision.

54. What, however, must further be noted is that the Honourable Chief Justice, who wrote the main judgment in the case made specified mention of the Preamble to the Constitution (and thereby to the Objectives Resolution) regarding an extremely weighty observation that the "Ideology of Pakistan" was based on Muslim Nationhood and included Islamic Ideology which, in clear terms in the Constitution, meant Injunctions of the Holy Quran and Sunnah and was the principal factor in the concept of Muslim Nationhood which resulted in the partition of the sub-continent on the basis of, what is commonly known as, the Two Nation Theory. The learned Chief Justice in the context of interpreting the word "morality" in Article 17 (1) of the Constitution cited Ayat 152, Soora Al-Inam (vi), which ordains: "Draw not near to shameful deeds, and that which be concealed."

' It was observed that the above verse was the touchstone of what is moral and what is immoral, that morality was part and parcel of the Islamic ideology of Pakistan and stood included in the expression "Integrity of Pakistan". Individually and collectively, therefore, the Muslims according to the learned Chief Justice, had to live within an exclusively moral framework, as enjoined by the Holy Quran and the Sunnah, as no civilized society could deny such standard of morality. Mohammad Haleem, C.J. Continued by observing that the concept of democracy in our Constitution should, therefore, be regarded as having been imbued with individual and collective morality as in the Holy Quran and Sunnah and, that, it went without saying that morality provided the basis for the spiritual values of the society inclusive of democracy, freedom, equality, tolerance and social justice.

55. This being the position every law in force in Pakistan, whether it be covered by a constitutional or a sub-constitutional instrument, is available for being tested in consonance with other Constitutional Provisions some of which are of an higher status such as the Fundamental Rights and one amongst them is of the highest order namely the Sovereignty of Allah as recognized, declared and enjoined in the Objectives Resolution, giving rise to another norm namely the ascendancy of the Laws of Quran and the Sunnah. However, as repeatedly held by the superior Courts in this Country, every judicial forum, faced with an apparent conflict in two or more Constitutional Provisions, has, in principle, to endeavour to resolve such conflict by attempting to obviate the same through the application of the principle of harmonious construction. But this, too, is subject to well recognised and time honoured doctrines which, in the context of this case, however, I am not called upon to recapitulate.

56. In the foregoing view of the matter, the obstacle in the way of applying the Objectives Resolution to existing laws, as interpreted by Tanzil-ur-Rehman, J. Has been found by the Supreme Court of Pakistan, though impliedly, to be non-existent.

57. Respectfully adhering to the principles enunciated by Tanzil-ur-Rehman, J., above and mandated by the Supreme Court decision last cited I am of the view that all laws whether they be constitutional or sub-constitutional must yield to the Sovereignty of Allah as reflected in the Holy Quran and Sunnah and if there be a clear command in that behalf it is that command alone which has to be given effect to and all othe$ legislation applicable in this Islamic Republic of Pakistan must be construed as subordinated thereto. Sovereignty over the entire universe vesting, as it does, in Almighty Allah, is the cornerstone of the Constitutional edifice of this Republic and the Injunctions of Islam, meaning thereby Injunctions of Quran and Sunnah, as interpreted by a particular sect in Islam in relation to the personal law of that sect and subject to the status and personal laws of non-Muslims, are enforceable, as such.

58. This being so, I am constrained to hold that section 34, read with corresponding provisions of Order XXXVII of the Code of Civil ' Procedure, 1908, sections 79 and 80 of the Negotiable Instruments Act, 1881, in so far as the same pertain to interest, and Interest Act, XXXII of 1839, as a whole, are no longer good law and Courts in Pakistan are precluded from decreeing interest in any form whatever.

59. This, however, does not conclude the controversy. From the foregoing, it is manifest that grant of interest is prohibited directly under the Injunctions of Quran itself. However, a modern society is beset with the evils or ill-effects of the prevalence of an economic order, where paper currency happens to be in vogue and holds the field as correct legal tender. This has given rise to volatile changes in the value of such legal tender and a common ailment of such a monetary system is its being constantly subjected to what has been termed by economists as "Inflation" or erosion in the buying power of the paper currency from time to time and, on occasions also "Deflation", as was experienced during the great depression of the thirties. Question, therefore, arises whether, in such circumstances, a borrower or for that matter, a purchaser in a sale, subject to deferred payment, is liable to return or pay only that count in terms of the paper currency which he borrowed or agreed to pay when such a deferred payment, as aforesaid, fell due. It would be appropriate now to quote Verse 7, Surah 'Al-Imran', relating to the interpretation of the Holy Quran which ordains:- "For its (Quran's) hidden meanings, but no one knows its hidden meanings except Allah and those who are firmly rooted in knowledge.........................

' To Hazrat Ali, as reproduced in Nahjul Balagah, Khutba 194, page 248, is attributed the under- noted golden saying:- "Our Philosophy and our preaching could only be understood by superior minds and sincere hearts."

' Guided by the quoted verse in Surah 'Al-Imran' and the dictum of Hazrat Ali abovementioned, it, .Humbly, appears to me that while a borrower of a purchaser, as aforementioned, cannot be forced to return anything more than the amount due, he may not, at the same time and by the same token, be permitted to pay anything less than that which he, in the first instance borrowed or agreed to pay. There is authority, dating back from the days of our earliest Doctors, to the fact that where a contract of sale is concluded but payment is deferred and, subsequently, the legal tender loses its value, wholly or in part, the buyer is obliged, according to pre-ponderance of view, to pay on the date, when payment becomes due, such amount, in terms of the current legal tender or in terms of gold and silver, which is equivalent to the real worth of the currency, which was the subject-matter of or for which the contract was concluded. Similar principle is applicable in relation to loans. Thus, if a person had borrowed money at a time when the value of money was at a particular level, in terms of purchasing power, and that value, discernably, diminished at the time of return, the borrower is liable to pay at least the equivalent of the real worth of the currency loaned out to him. In this behalf reference is made and reliance is placed on "Tambih Al-Ragood Ale Masail Al-Naqood" by Al-Syed Muhammad Amin Abedeen Shami, compiled in 1230 A.H.

60. The next question is whether this situation can be taken judicial notice of? In the "Monthly Statistical Bulletin", Vol. 36, for October, 1988, issued by the Federal Bureau of Statistics, Statistics Division, Government of Pakistan, p.130, Consumer Price Index, for the monetary value of Rs,100, as in 1980-81, shows its equivalent, in August, 1988, to be 165.03 and like position., in relation to Wholesale Price Index, for the same period, is shown to be Rupees 170.94 for R.100..00, as in 1980-81. On the other hand, Economic Survey, 1987-88, issued by the Economic Advisors' Wing, Finance Division, Government of Pakistan, Islamabad, gives out the Sensitive Price Indicator, (1975-76=100) as Rs,239.85 in 1986-87 whereas Sensitive Price Indicator (1986-87=100) appears to be Rs,155.99 in 1987-88.

61. Viewed in the foregoing light it is obvious that in their official pronouncements the Federal Government of Pakistan and its various agencies and the State Bank of Pakistan have neither been wanting nor slow in acknowledging, officially, in instruments, as sacrosanct as budgetary provisions and official publications, that inflation is rampant in the country. All efforts to keep it in check and to maintain the intrinsic value of the rupee have failed. Thus what was borrowed some years back if it is ordered to be returned on the basis of the same count would result in manifest in justice to the creditors inasmuch as that which will thus be returned would not have the same intrinsic value and buying power as it possessed, at the time of grant of loan.

' The Law of Allah does not brook injustice of any kind and, therefore, whenever a case for payment, for refund or return of money, comes before a Court of law in Pakistan it has to be the endeavour of that Court to order the payment, refund or return, as the case may be, of so much of current legal tender to the person entitled as is equal, in terms of buying power or other intrinsic value, to the amount initially, loaned out contracted to be paid or deposited.

62. The above are facts of which judicial notice could be taken under section 57 of the Evidence Act, 1872 and, now, under its equivalent in section 112 of the Qanun-e-Shahadat, 1984. Indeed the scope of powers in such context is very wide. Thus, Thayer in "Preliminary Treatise on Evidence at the Common Law", page 309, spoke of judicial notice as "an instrument of great capacity in the hands of a competent judge not nearly as much used in the region of practice and evidence as it should be." In the case of Golapari Jain, v. Gourange Meher AIR 1969 Orissa 266, drought in the western part of Orissa for the past 3 or 4 years was judicially noted. Similarly, in M. Lakshmayya v.

Sri Rajah Varadaraya Apporow Bahadur ILR 36 Mad. 168, Madras High Court held that it was not necessary to prove that population had increased and that there was great demand for land on the part of cultivators than in parts of the country while in former times land was plentiful and cultivators were scarce. Our own Supreme Court in the case of Begum Nusrat Bhutto v. Chief of Army Staff etc. PLD 1977 SC 657 took judicial notice of the turmoil in the country during the pre- Martial Law period in spite of seriously disputed facts (see pages 693 and 701 etc. , of the report).

63. This brings me to the crucial question as to how equity is to be done between the parties. For obvious reasons no rule of thumb' is available to determine the extent of erosion, which the principal sum due, and earlier decreed in this case, has suffered till the date of payment, if any, or the decree. Such matter, as a rule involves application of detailed accounting procedures, based on official data on the subject. Simple decree on the basis of the afore quoted statistics may not do. The case, therefore, in principle, calls for a Preliminary Decree, if one can be passed under law.

This, however, does not imply that where smaller amounts or periods are involved a given case cannot be disposed of on approximations.

64. The relevant provision regarding Final and Preliminary Decrees is contained in section 2(2) of the Code of Civil Procedure, 1908, which provision defines such decrees. It is true that there are specific provisions for Preliminary Decrees in Order XX, Rules 12 to 16 and 18 and in Order XXXIV, Rules 2 to 5 and 7 to 8 C.P.C., but the same, in my view contain only examples in which Preliminary Decrees u may be passed and such Decrees can be passed, wherever the requirements of a case so dictate, under section 2(2), C.P.C., which is the basic provision in the Code in that behalf. I am fortified in this view by the decisions in Dattatraya Purshotam Parnekar and others v. Radhabai Balkrishna AIR 1921 Bom.220, (Raja) Peary Mohan Mookerjee v. Manohar Mookerjee AIR 1924 Cal. 160 and a Travancore Full Bench decision reported in AIR 1953 T.C.

220.

65. I would, therefore, grant in this case to the plaintiff a decree of a Preliminary nature for assessm ent as to what was the equivalent real worth of the money which was initially borrowed that is to say of the sum of Rs,5,00,000 as payable on 20-5-1984, the amount and date reflected, as they are, in the Promissory Note in suit. For this purpose and in order to make accurate assessment I would appoint a Commissioner to do the needful and for that purpose the Commissioner would be entitled to seek assistance from the relevant functionaries of the State Bank of Pakistan. Mr. A.K.M. Idris, Advocate, of this Court is appointed such Commissioner and his fees, tentatively, shall be Rs,5,000, which would be included in the Bill of Costs. The Commission shall be returnable within three months from the date this Preliminary Decree is transmitted to the learned Commissioner.

66. Before parting with this case it may be pertinent to mention that learned counsel had stated at the Bar that there was a difference of opinion amongst the Judges of this Court in that the referred judgments of my learned brother Tanzil-ur-Rehman, J. Were dissented from by other learned Judges. On this premises a case for reference to a larger Bench could have arisen. However, the only decisions cited are in Suits Nos.136 of 1987 and 765 of 1987 in each of which cases ex parte decrees were passed and no reference to the dicta laid down by Tanzil-ur-Rehman, J. Arose.

Element of dissent, conventionally, occurs when a particular decision is cited, dis-agreement therewith is expressed and reasons to the contrary are recorded. No such situation subsists here. It is thus that I have chosen to record my own humble views in endorsement of what has been, so eloquently, expressed by my learned brother, Tanzil-urRehman, J.