' A suit for recovery of Rs,40,97,535/17 has been filed by Messrs Habib Bank Limited against Messrs Waheed Textile Mills and others, under Order XXXVII, rules 2 and 3 of the Code of Civil Procedure and Section 7(2) of the Banking Companies (Recovery of Loans) Ordinance, 1979.
2. According to the averments made in the plaint, the defendant No,1 had availed of loan facilities between 1974 and 1981. The defendant No,1 also executed two promissory notes in favour of the plaintiff, dated 20-5-1981 and 10-6-1982, respectively. On 25-9-1982 and 29-8-1984, the defendant No,1 acknowledged its liability by addressing two letters to the plaintiff. On 23-1-1984, the defendant No,1 made the last part payment towards the loan.
3. The case of the plaintiff against the defendant No,2 is that in order to secure repayment of the loan, it had created a mortgage in favour of the plaintiff over its Plot No,E-42, admeasuring about 1.00 acre, situated in S.I.T.E, Karachi with all buildings, sheds, structure, machinery etc. By executing a registered collateral mortgage deed, dated 1-10-1977, in favour of the plaintiff. The said mortgage was to cover a loan limit of Rs,15,00,000 with interest at 4% per annum above bank rate with a minimum of 14% per annum.
4. The defendants Nos.3 to 6 had executed separate letters of guarantee, dated 25-8-1982 and 10- 6-1982 respectively, in favour of the plaintiff.
5. Through their letter, dated 28-4-1985, the plaintiff called upon the defendants to clear their outstanding, but no response was received from any of them, and hence the suit.
6. It may be pointed out that the defendants Nos.4 to 6 have failed to defend the suit, but the defendants Nos.1 to 3 have filed applications under Order XXXVII rules 2 and 3 C.P.C. For granting of unconditional leave to them to defend the suit.
7. The main contentions of Mr. Noorullah Manji, learned counsel for the defendants Nos. 1 and 3, may be summarized as follows: -
(i) that the signatures from the defendants Nos.1 and 3 had been obtained by the plaintiff on blank documents, which were filled in Subsequently by the plaintiff without the consent and knowledge of the said defendants;
(ii) that the statements of account filed and relied upon by the plaintiff in the suit are incorrect and have been manipulated;
(iii) that the letters of guarantee executed by the defendants Nos.3 to 6 were not properly stamped, hence the same could not be received in evidence; and
(iv) That the pronotes and statements of account stipulate exorbitant interest rates, which is repugnant to the basic tenets cf Islam and the Constitution, hence the suit is barred under the law.
8. Mr. Naimur Rehman, learned counsel for defendant No,2 has pointed out that pursuant to signing of an agreement, dated 5-12-1983, the plaintiff had released the defendant No,2 as well as Messrs Nisar Industry Limited from their liabilities after receiving a total amount of Rs,28,00,000 from Mr. Inam Elahi and Mr. Aftab Yousuf, the directors of the defendant No,2, as consideration for the same.
Consequently, the suit against the defendant No,2 is liable to be dismissed.
9. As far as the case of the defendant No,2 is concerned, Mr. Rafiuddin Junejo, an Officer and Attorney of the plaintiff, has filed a counter-affidavit On behalf of the latter, wherein it has been categorically denied that the defendant No,2 had been released of its liabilities under the mortgage.
10. Turning to the copy of the agreement, reliance on which has been placed by the defendant No,2 and which has been filed as Annexure 1 to the applicatioh under Order XXXVII, rule 3, C.P. C., para 3 of the same clearly absolves the defendant No,2 of its liability in respect of the outstandings of the defendant No,1 in Account No,2-31330-85, which is the subject-matter of the present litigation between the parties. Mr. A.I. Chundrigar has argued that the agreement refers to the liability of the defendant No,1 in connection with Suit No,440/78, which was also pending in this Court, but the agreement is to be read as a whole in order to ascertain the real intention of the parties. It cannot be spelt out clearly from the agreement that it only relates to Suit No,440/78. Contrary to that, Para. No,3 of the agreement clearly supports the case of the defendant No,2. Consequently, the defendant has succeeded in making out a strong case for granting of leave to him to defend the suit. It is pertinent to point out here, that admittedly the application filed by the defendant No,2 for leave to defend the suit is time-barred, but an application under Section 5 of the Limitation Act (C.M.A.3888/86) has been filed by the defendant and Mr. A.I.Chundrigar, learned counsel for the plaintiff, has already given his no objection for granting of this application.
11. As far as the case of the defendants Nos.l and 3 to 6, is concerned, the contention that signatures of the defendants were obtained on blank documents has been emphatically denied by the plaintiff's Attorney in his counter-affidavit and the onus being on the defendants themselves, the same has not been sufficiently discharged by them since apart from the oral assertion of the defendants, which has been denied by the plaintiff's Attorney in his counter-affidavit, there is no other evidence before this Court to support the defendants' contention. In any case, mercantile practice in modern days permits execution of blank documents, which can be subsequently filled by the creditor, although within a reasonable time. Reference in this respect may also be made to the case of Messrs United Bank Limited v. President, Bazm-e-Salat (F L D 1986 Kar. 464).
Consequently, the first contention of Mr. Noorullah Manji cannot be accepted.
12. As far as the second contention of the learned counsel is concerned, the learned counsel has disputed the defendants' liability to the extent of the claim against them. In this respect, it may be pointed out that the claim of the plaintiff is supported by the various statements of account, promissory notes, letters of guarantee etc. It is the case of the plaintiff that the loan limit of Rs,15,00,000 originally allowed by the plaintiff to the defendant No,1, was enhanced to Rs,35,00,000 and, consequently, the promissory note, dated 20-5-1981, was executed on behalf of the defendant No,1 by the defendant No,3. The promissory note, dated 20-5-1981, which was also for Rs,35,00,000 had been executed by the defendant No,1 to enable itself to avail loan facilities to such maximum limit. Consequently, according to the plaintiff, the question, whether the said facility was availed by the defendant to the extent of the maximum limit was not in issue. The limit' of Rs,35,00,000 was the sanctioned limit and by 17-6-1971 the loan availed of by the defendant No,1 was Rs,8,79,749.35.
Reference was also made to the balance confirmation slip (Annexure 'L'), dated 29-8-1984, signed on behalf of the defendant No,1 wherein a liability to the tune of Rs,33,41,405.27 had been acknowledged. Mr. Noorullah Manji has failed to give any satisfactory explanation in respect of the said documents. Consequently, there appears to be little substance in the second contention of Mr. Noorullah Manji as well.
13. The third contention of Noorullah Manji is that the guarantees were executed by the defendants Nos.3 to 6 on Rs,10 stamp paper, while Schedule 1 to the Stamp Act, 1899 required the same to be furnished on Rs,30 stamp paper. Consequently, the documents cannot be received in evidence. In support of his argument, the learned counsel has referred to entry No,34 in Schedule 1 to the Stamp Act, which relates to an Indemnity Bond. The contention has been vehemently opposed by Mr. A.I.
Chundrigar, according to whom, the guarantees furnished by the defendants are simple agreements of guarantee, which according to entry No,5 in the Schedule, were chargeable to stamp duty of Rs,10 each, at the relevant time. Hence the agreements had been properly stamped and were valid.
14. It may be pointed out that an instrument not properly stamped is not invalid but is only subject to the disabilities referred to in Section 35 of the Stamp Act. Such instrument can be. Submitted in B evidence on payment of deficit duty and penalty. Be that as it may, but the basic question is, whether the guarantees are to be construed as indemnity bonds or agreements of guarantee.
15. A Contract of Indemnity has been defined by section 124 of the Contract Act as "a Contract by which one party promises to save the other from loss caused to him by the conduct of the promisor himself or by the conduct of any other person, " A Contract of Guarantee, on the other hand, has been defined by section 126 of the Contract Act as: "a contract to perform the promise, or discharge the liability, of a third person in case of his default.
The person who gives the guarantee is called the 'Surety', the person in respect of whose default the guarantee is given is called the 'Principal Debtor', and the person to whom the guarantee is given is called the 'Creditor'.
16.- A contract of indemnity, therefore, contemplates only a promisor and a promisee. Furthermore, in a contract of indemnity there is no privity of contract between the sureties and the debtor while in the case of the contract of guarantee, surety, creditor and principal debtor are all parties to the contract. The letters of guarantee furnished by the defendants Nos.3 to 6, involve the plaintiff, the defendant No,1 and the defendants No,3 to 6. Furthermore, the defendants Nos.3 to 6 by the letters of guarantee, have promised to discharge the liability of the defendant No,1 in case of its committing default. Therefore, the letters of guarantee cannot be construed as agreements of indemnity but the same are those of guarantee. In that case, there is not dispute that each of such agreements could be executed on stamp papers of Rs,10. The contention of Mr. Manji has, therefore, no force.
17. Turning now, to the last contention of the learned counsel, the argument of Mr. Noorullah Manji is that after insertion of Article 2-A in the Constitution, the. Objectives Resolution has assumed an altogether a different character as it has now become a substantive part of the Constitution.
Consequently, every legislation must now be tested on the touchstone of the Islamic principles as reflected in the Holy Quran and Sunnah. Reliance has been placed by the learned counsel on the recent pronouncements by this Court in Messrs Bank of Oman Ltd. v. Messrs East Trading Co. Ltd.
(PLD 1987 Kar. 404), Habib Bank Limited v. Muhammad Hussain and others (PLD 1987 Kar. 612), Mirza Qamar Raza v. Mst. Tahira Begum and others (PLD 1988 Kar. 169), Irshad H.Khan v. Mrs. Perveen Ajaz (PLD 1987 Kar. 466) and an unreported judgment in the case of Aijaz Haroon v. Inam Durrani (Suit No,375/1987).
18. Mr. A.I.Chundrigar, on the other hand, has argued that Article 2-A of the Constitution in no manner can be construed as a self-executing provision of the Constitution and no law can be struck down by the Court as inoperative or void through the force of this Article. Objection has also been taken to the jurisdiction of this Court to strike down any provision of the Banking. Companies (Recovery of Loans) Ordinance, 1979 or for that purpose, any other law on the said ground.
'19. The Objectives Resolution, which was passed by the Constituent Assembly of Pakistan on 7th of March, 1949 envisages Pakistan, among other things, as a sovereign independent State where Muslims can order their lives according to the principles set out, in the Holy Qur'an and Sunnah. The Resolution was first embodied as a preamble in the Constitution of 1956, and thereafter, it has continued to hold the same status in each succeeding Constitution. However, in 1985, the Resolution was for the first time, made a substantive part of the Constitution, as it was introduced as an "Annex" to the 1973 Constitution by P.0.14 of 1985. Article 2-A was also introduced into the Constitution after Article 2 thereof, which now provides that: "The principles and provisions set out in the Objectives Resolution in the Annex are hereby made substantive part of the Constitution and shall have effect accordingly."
20. It may be pointed out that, the Resolution and the question as to the power of the Courts to declare any law as invalid if not found to be in consonance with the Islamic character of the Constitution has been engaging the attention of our Courts from time to time. Hamoodur Rehman, C.J. (as he then was) in Miss Asma Jilani v. The Government of the Punjab (PLD 1972 SC 139) observed: "In any event, if a grund-norm is necessary for us I do not have to look to the Western legal theorists to discover one. Our own grund-norm is enshrined in our own doctrine that the legal sovereignty over the entire universe belongs to Almighty Allah alone, and the authority exerciseable 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 passed by the Constituent Assembly of Pakistan on the 7th of March, 1949. This Resolution has been described by Mr. Brohi as the "cornerstone of Pakistan's legal edifice" and recognised even by the learned Attorney-General himself "as the bond which binds the nation" and as a document from which the Constitution of Pakistan "must draw its inspiration". This has not been abrogated by any one so far, nor has this been departed or deviated from by any regime, Military or Civil."
21. In Ziaur Rehman v. The State (PLD 1986 Lah. 428), decided by the Lahore High Court on 6th July, 1972, the Objectives Resolution once again came under discussion by the Full Bench of the Lahore High Court. Muhammad Afzal Zullah, J. (as he then was), referred to it as a "Supra-Constitutional Instrument, which is unalterable and immutable" and he further observed that "the present National Assembly has no power to enact any Constitution or law, which either directly or indirectly contravenes any of the provisions of the said Resolution". His Lordship repelled the argument that the provisions of the Resolution are too general and vague to be interpreted only as Constitutional Mandates and held that they were capable of enforcement as such. Muhammad Afzal Cheema, J.
Expressed more or less similar views by observing that in an Islamic State, the ideal position would be that members of the judiciary while discharging their judicial functions should also act as Trustees of Divine sovereignty as much as members of legislatures do. The above views were.
However, not shared by the majority of the Judges, constituting the Bench. According to A.R. Sheikh, J., the preamble of the Constitution and the Principles of Policy mentioned therein can only be referred to as basic ideology not actionable before the superior Courts.
22. This case went before the Supreme Court and the judgment of the Supreme Court is reported as The State v. Ziaur Rehman and others (PLD 1973 SC 49). Hamoodur Rehman, C.J., while ,referring to the Objectives Resolution observed: "I for my part cannot conceive of a situation, in which, after a formal written Constitution has been lawfully adopted by a competent body and has been generally accepted by the people including the judiciary as the Constitution of the country, the judiciary can claim to declare any of its provisions ultra vires or void. This will be no part of its functions of interpretation. Therefore, in my view, however solemn or sacrosanct a document, if it is not incorporated in the Constitution or does not form a part thereof it cannot control the Constitution. At any rate, the Courts created under the Constitution will not have the power to declare any provision of the Constitution itself as being in violation of such a document. If in fact that document contains the expression of the will of the vast majority of the people, then the remedy for correcting such a violation will lie with the people and not with the judiciary. 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 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."
23. In another case, decided by a Full Bench of this Court, reported as Niaz Ahmed Khan v. Province of Sind (PLD 1977 Kar. 604), although the Objectives Resolution did not come directly under discussion, but the question before the Court was, whether Islamic Laws were enforceable before the superior Courts by virtue of Article 2 read with Article 4 of the Constitution of Pakistan. Abdul Kadir Sheikh, C.J. (as he then was), who delivered the judgment, observed: "In order to appreciate the arguments advanced, I may at the outset point out that Article 2 is incorporated in the 'Introductory' Part of the Constitution and as far as its language is concerned, it merely conveys a declaration. The question arises as to the intention of the Makers of the Constitution by declaring. That "Islam shall be the State religion of Pakistan".
' Apparently what the Article means is that in its outer manifestations, the State and its Government shall carry on Islamic symbol. This Article does 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 all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah, and no law shall be enacted which is repugnant to such Injunctions. The effect to these provisions is, however, to be given only in the manner provided in part IX. This position has been clarified in clause (2) of Article 227. The Council of Islamic Ideology has been set up under the Constitution to make recommendations as to measures for bringing existing laws in conformity with the Injunctions of Islam and the stages by which such measures should be brought into effect, and under clause (4) of Article 230 period of seven years has been fixed for the submission of the Report by the Council, and a further two years' period is given for the enacting of laws in respect of Report so as to enable the Parliament and, Provincial Assemblies to consider the Report. There is, therefore, no scope for the argument that Islamic Laws are to be enforced, in their entirety, by virtue of Article 2 itself or as read with Article 4 these laws are, therefore, operative in the manner provided by the Constitution."
24. In Hakam Qureshi, President District Bar Association Lahore v. The Judges of the Lahore High Court (PLD 1976 SC 713), the question that arose before the Supreme Court was, whether the law relating to contempt of Courts is derogatory to the precepts cf Islam and must be struck down on that account. In support of the proposition, Articles 30 and 31 (in Chapter 2, Part II of the Constitution) were relied upon. Qazi Muhammad Gul, J. , who delivered the judgment, observed that: "About the argument based on Principles of Policy laid down in Chapter 2 of Part II of the Constitution in view of the dictum in Ashfaque Ahmad's case, the argument is not available to learned counsel. Moreover, the Principles themselves are not rules of law, their true position having been determined by Article 30 which inter alia provides that the "validity of an action or of a law shall not to be called in question on the ground that it is not in accordance with the principles of policy
25. In Tabir Ahmed Siddiky v. The Province of East Pakistan (PLD 1968 SC 185), the proposition which was being canvassed before the Court was that the Islamic Law, which had even been recognized by the Constitution had an overriding effect over the East Bengal State Acquisition and Tenancy Act, 1950. It was observed by the Supreme Court as follows:- "Mr. Hamidul Haq Chowdhury urged this Court to review the decision in Dosso's case as well as in Muhammad Mehdi Ali Khan Panni's case that Fundamental Rights had disappeared with the promulgation of Martial Law and the Order. He called in aid the provisions of Islamic Law with regard to wakfs, in this context and put forward the proposition that God's Law, which has been recognised even by the present Constitution, must be accorded an overriding position.
Consequently, he suggested, wakf properties could not be taken over by the Government, as the action would be repugnant to the provisions of Islamic Law. Such a plea is, however, not justiciable in Courts under the present Constitution. The responsibility has been laid on the Legislature to see that no law repugnant to the Islamic Law, is brought on the statute book. The grievance, if any, therefore should be ventilated in a different forum and not in this Court. The other factors pressed into service by learned counsel in this context appertain more to the realm of political philosophy than law and would hardly furnish an adequate basis for reconsideration of the two previous decisions of this Court."
26. In Muhammad Bashir v. The State (PLD 1982 SC 139) the parents of the victim had accepted compensation from the appellant, who was accused of an offence punishable under section 302, P.P. C. The question before the Supreme Court arose, whether the same could be recorded as a mitigating circumstance in the light of the Muslim Jurisprudence. Muhammad Afzal Zullah, J., who delivered the judgment had observed as follows:- "We, however, find considerable force in the last ground. Superior Courts in Pakistan have in a large number of cases, applied Islamic teachings and philosophy, when the statute law is silent about a situation, the field is occupied so to say, a statutory void is to be filled, or the Court has discretion to follow one of the several courses, one of which is more in accord with Muslim Jurisprudence. A survey of some of these cases can be found in the judgment of the Lahore High Court in the case of Haji Nizam Khan v. Additional District Judge, Lyallpur and others under the Heading "Trend of Superior Judiciary of Pakistan qua norms/Rules of Muslim Jurisprudence and Law, in situations not otherwise specially provided for"- in paras 40 to 52 of the report. In addition to cases noted in the said survey, this Court took similar view in the case of Mst. Hamida Begum v. Mst. Murad Begum and others. It was held that: "It seems to us that it in an appropriate case where mention may be made of the directives enshrined in the Constitution of the Islamic Republic of Pakistan (1973) regarding the enforcement of Muslim Law responsibility also devolves on the judiciary to implement the spirit underlying these provisions of the Constitution." (The same aspect was dealt with in more detail in Nizam's case under the heading "Duty of the Judiciary in Pakistan, under the Constitution, regarding 'Fundamental Principles and Basic Concepts of Islam', including the accepted Islamic judicial norms and philosophy"--in para 53 to 60)."
27. In Haji Nizamuddin v. Additional District Judge, Lyallpur and others (PLD 1976 Lah. 930) reference to which has been made in the above judgment, the following observations were made by the same learned Judge:- "The above weighty observations show that when there is no Qura'nic or Traditional text or Ijma or a binding Qiyas on a question of law, the Courts are to follow the rules of Istihsan and Istislah as understood in Islamic Jurisprudence. In other words, the rules of equity, good conscience and public policy (Istihsan and Istislah) as contained in Muslim Jurisprudence are to be applied to situations not directly covered by the aforementioned sources of Muslim Law. If this is true of one branch of existing law in Pakistan, namely, Muslim Law that Istihsan 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 a vacuum exists to be filled in by rules of equity, justice and good conscience. In such a situation, 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 has to be Muslim Law and Jurisprudence and philosophy underlying the same."
28. After the Objectives Resolution was made a substantive part of the Constitution, a question arose before Tanzilur Rehman, J., a learned Judge of this Court in Messrs Bank of Oman Limited 'v .
Messrs East Trading Co. Ltd. (PLD 1987 Kar. 404), whether after introduction of such amendments, the Courts in Pakistan can strike down any legislation as invalid if the same was found inconsistent with the tenets of Islam as reflected in the Holy Qur'an or Sunnah. In this case the provisions of Section 58(f) of the Transfer of Property Act, 1882 came under scrutiny before the learned Judge, and the precise question before him was, whether the same were repugnant to the Injunctions of Islam. It was held by my learned brother that after insertion of Article 2-A in the Constitution, the Objectives Resolution had become actionable before the superior Courts in Pakistan. Borrowing the expression from Muhammad Afzal Zullah, J., in the case of Ziaur Rehman v. The State, the Resolution was held by him to be a "Supra-Constitutional document". It was further held by him that any "existing law" in Pakistan, by virtue of Article 268(6) of the Constitution must now be construed with necessary adaptations to bring it in conformity with the Injunctions of Islam as reflected in the Holy Qur'an and Sunnah.
29. The views expressed in the above case were once again followed by the same learned Judge in Habib Bank Limited v. Muhammad Hussain and others (PLD 1987 Kar. 612). The principal issue before him in this case was, whether charging of interest by the plaintiff was lawful, in view of the Injunctions contained in the Holy Qur'an and Sunnah against the same. However, Article 270-A of the Constitution came under discussion in the case, under which the Banking Companies (Recovery of Loans) Ordinance, 1979, by virtue of which interest was claimed by the plaintiff, had received protection, and in view of the judgment of the Full Bench of this Court in Muhammad Bachal Memon v. Government of Sind (PLD 1987 Kar. 296), wherein it had been decided that the validity of Article 270-A of the Constitution cannot be determined on the touchstone of Article 2-A Dr vice versa, the plaintiff was found .To be entitled to claim interest to the extent as provided in section 8(2) of the Banking Companies (Recovery of Loans) Ordinance, 1979.
30. Similar question once again came under discussion before the same learned Judge in Irshad H.
Khan v. Mrs. Perveen Ajaz (PLD 1987 Kar. 466) and Mirza Qamar Raza v. Mst. Tahira Begum PLD 1968 Kar. 169 and similar views were once again expressed by him. In the former case, the question once again related to the claim of "Riba" by the plaintiff and in the latter case, the question 'was as to the immunity provided to the provisions of the Muslim Family Laws Ordinance, 1961 by our Constitution.
It was held that the provisions of the said Ordinance can be challenged to the extent of their repugnancy to Article 2-A of the Constitution. Exception was made only in case of the clauses of the Objectives Resolution which relate to the fundamental rights.
31. The view expressed by Tanzilur Rahman, J, in the above cases has now been followed by my learned brother, Wajihuddin, J. In the case of Aijaz Haroon v. Nam Durrani (Suit No,375/87). The question once again before the learned Judge related to the claim of interest by the plaintiff in the case. My learned brother, while referring to the Objectives Resolution as "the Basic Structure of the Constitution", has further held that "every Constitution in Pakistan having the mandate of its people is liable to be tested on the touchstone of this Solemn Declaration." In this case, although the plaintiff was not allowed to claim interest from the defendant, but in view of the "not infrequent erosion in the buying power of the paper currency from time to time", the matter was referred to a Commissioner, appointed by my learned brother, for making assessment in respect of the present value of the amount loaned by the plaintiff to the defendants.
32. It is an established cannon of constitutional construction that the Constitution is to be considered as an organic whole and effect is to be given, as far as possible, to all its provisions. It may be pointed out that the framers of our Constitution have introduced various provisions in the Constitution in order to achieve the goals set out in the Objectives Resolution. Mention may be made particularly of those provisions which have been inserted in the Constitution to achieve Islamisation of the laws in force in Pakistan. To begin with, Article 2 of the Constitution, unequivocally declares that "Islam shall be the State religion of Pakistan". Article 29 in Chapter 2, Part II of the Constitution, further declares that the "Principles of Policy", (set out in the Chapter in the Articles 29 to 40) shall be followed by each organ or authority of the State and each person performing functions on behalf of an organ or authority of the State. Article 30 places the responsibility with respect to principles of policy on the State. Reference is also necessary to Article 31 of the Constitution, which enjoins upon the State to take steps to enable the Muslims of Pakistan, individually and collectively, to order their lives in accordance with the fundamental principles and basic concepts of Islam and to provide facilities whereby, they may be enabled to understand the meaning of life according to the Holy Qur'an and Sunnah. Besides the above Principles of Policy, the other "Islamic Provisions" are embodied in Parts VII and IX of the Constitution.
' Article 227(1) in Part IX provides that: "All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such Injunctions". It may be pointed out that in accordance with the provisions contained in Part IX, the Council of Islamic Ideology has been set up which can make recommendations as to the measures for bringing existing laws into conformity with the Injunctions of Islam, advise on any question referred to it, whether a proposed law is or is not repugnant to the Injunctions of Islam, etc. It is also pertinent to refer to Chapter 3-A which has now been inserted in Part VII of the Constitution whereby Article 203-A to Article 203-J have been added thereto. A Federal Shariat Court has been constituted under Article 302-C, which has been empowered either of its own motion or on a petition by a citizen of Pakistan or, the Federal Government or a Provincial Government, to examine and decided the question, whether or not any law or provision of law is repugnant to the Injunctions of Islam.
(The term 'law' used in Chapter 3-A is to take the meaning given thereto by Article 203-B(c) of the Constitution).
33. As already pointed out in the foregoing paragraph, the above, provisions are set out in Parts II, VII and IX of the Constitution. The provisions embodied in Articles 29 to 40 referred to as "Principles of Policy" by the framers of the Constitution, are contained in Part II thereof. According to Article 30(2) of the Constitution, "the validity of an action or of law shall not be called in question on the ground that it is not in accordance with the Principles of Policy and no action shall lie against the State or any organ or authority of the State or any person on such ground". Reference is also necessary to Articles 203-G and 227(2) of the Constitution. The former bars the jurisdiction of any Court or tribunal, including the Supreme Court and a High Court to entertain any proceedings or to exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the Federal Shariat Court (referred to in Chapter 3-A, Part VII of the Constitution). Article 227(2) while referring to clause (1) of Article 227, provides that: "(2) Effect shall be given to the provisions of clause (1) only in the manner provided in this part"
(Part IX of the Constitution).
34. It may be noted that in Parts VII and IX of the Constitution, its framers have provided for a complete legal machinery for bringing the laws referred to therein in conformity with the Injunctions of Islam. However, in the case of the Objectives Resolution, although it is provided by Article 2-A of the Constitution that it shall have effect, but no further provision has been made in the Constitution for the Courts to test any law in force in Pakistan, on the touchstone of the injunctions contained in Holy Qur'an or Sunnah through the force of Article 2-A. The status conferred by the Constitution on the other provisions relating to the Policy of the State and embodied in Chapter 2 in Part II of the Constitution is also of mere declarations. In fact, one finds the Objectives Resolution reflected to a large extent in such provisions. A question therefore, arises, is Article 2-A self-operative? Legislative intent can always be gathered either from the express language of the statute or by necessary implication. However, omissions are not to be lightly inferred. To quote as an instance, reference may be made to Article 8 of the Constitution which declares that any law found inconsistent with or derogatory to the fundamental rights shall be void. The expression of the will of the constitution-maker is so clearly manifest in Article' 8 (read with Article 199) of the Constitution, that the Courts would have no hesitation in declaring a law as void if not found in consonance with any fundamental right guaranteed by the Constitution.
Nothing prevented the framers of the Constitution from expressing themselves in similar terms in respect of the Objectives Resolution too, if the intention was to make the same self-operative.
Provisions leaving something to be supplied by further legislation cannot be construed as self- executing.
35. While referring to self-executing and non-self-executing Constitutional provisions in his book known as The Interpretation of Satutes and General Clauses Act (4th Edition), N.S.Bindra at page 682 says: "Constitutional provisions are not self-executing if they merely indicate a line of policy or principles, without supplying the means by which such policy or principles are to be carried into effect............
36'. There being no further rule supplied by the Constitution rendering the Objectives Resolution enforceable by the Courts, it cannot be construed as self-operative, notwithstanding the introduction of Article 2-A in the Constitution.
37. Reference may be made to the case of Sardar Ali and others v. Muhammad Ali and others (PLD 1988 SC 287), wherein Article 2-A of the Constitution directly came under discussion before the Supreme Court. Although no definite finding was given on the question as to its effect, it was, however, observed: "As already pointed out no serious attempt has been made at the Bar to reconcile this submission on Article 2-A with the other relevant provisions of the Constitution which prima facie tend to create a bar even if not an insurmountable one. They, amongst others are: Articles 30(2), 203-A; 203-G; and 227(2). Again it has to be remarked that on this aspect enough assistance to our entire satisfaction on this delicate and very important issue was not rendered; as, would appear from the aforequoted general submission made at the Bar. Be that as it may, it would not be necessary to make any more observations on this aspect for the time being except that the Resolution is an important instrument and "embodies the spirit and the Fundamental norms of the Constitutional concept of Pakistan," a phrase used in the case of Asma Jilani. In times to come, much more would be said about its contents, value and importance, as the repository of every high principles of Constitutional and ideological importance. One of them, for example, the sovereignty of Allah was given concrete meaning and applied as such in that case. For the present there is no need to look into these questions any further except to reiterate the observations in that case."
38. In another case reported as Muhammad Sharif v. Member (Revenue) Board of Revenue Punjab (PLD 1987 Lah.58), Muhammad Afzal Lone, J., while commenting on Article 2-A of the Constitution and the Objectives Resolution has observed that although the latter occupies a pivotal position in the Constitution after insertion of Article 2-A therein, but now it is the obligation of the State to carry forward the establishment of an Islamic Society. However, in Shabazud Din Chaudhry v. Messrs Services Industries Textiles Limited (PLD 1988 Lah. 1) another learned Judge of the Lahore High Court, while referring to Article 2-A of the Constitution, held that an order under section 290 of the Companies Act, 1984 could be passsed against a company which was receiving interest in contravention of the injunctions of Islam.
39. The consensus of the authorities referred to in the foregoing paragraphs, therefore, clearly is that, although the fundamentals of our policy are clearly reflected in the Objectives Resolution and the principles of democracy and social justice as enunciated by Islam are to be clearly reflected in our Laws, but no legislation in our country can be tested and struck down by the Courts on the touchstone of the Objectives Resolution or Article 2-A of the Constitution or for that purpose, the Principles of Policy enshrined in our Constitution in Chapter 2, Part II thereof as the Resolution is no more than a Declaration defining the ideology of Pakistan, not capable of being enforced by the Courts. Justice Hamoodur Rehman, in the case of Miss Asma Jilani (PLD 1972 SC 139), while referring to the definition of "law", observed that: "So far as a Judge is concerned, if a definition is necessary, all that he has to see is that the law which he is called upon to administer is made by a person or authority legally competent to make laws and the law is capable of being enforced by the legal machinery. This, in my view, brings in the notion both of 1,egitimacy and efficacy." (The underlining above is mine).
' The question before the Supreme Court had arisen as to the interpretation of Article 2 of the 1962 Constitution, which corresponds to Article 4 of the 1973 Constitution which gives a right to every citizen of Pakistan to be dealt with in accordance with the law.
40. There is another important aspect of the matter which requires to be considered as Article 227 clause (2) of the Constitution shows that the "Islamic Provisions" contained in Part IX of the Constitution can take effect only in the manner provided therein. An exception has been made in the Constitution only in case of Chapter 3-A in Part VII, thereof which by virtue of the non-obstante clause inserted K in Article 203-A of the Constitution has been placed on a higher pedestal than Article 227(2) of the Constitution. Article 203-G is another important Article, its importance being emphasized by the fact that the jurisdiction of any Court or tribunal including the Supreme Court and a High Court has been barrec n respect of matters to which the jurisdiction of the Federal Shariat Court extends. My learned brother Tanzilur Rehman, J., in PLD 1987 Kar. 612 has, however, held that since the jurisdiction of the Federal Shariat Court in respect of any fiscal law or any law relating to the levy and collection of taxes and fees or banking or insurance practice and procedure has been barred until the expiration of ten years from the commencement of Chapter 3-A there is no inconsistency between Article 2-A and Article 203-G of the Constitution until then. It may be observed with utmost respect, that a constitutional provision cannot L, be construed as valid for a certain period and to cease to be effective thereafter. However, in Parts VII and IX of the Constitution its framers have provided for an effective legal mechanism for introduction of the Islamic Laws into our legal system. The Islamic Principles referred to as "Principles of Policy" and embodied in Ghapter 2 in Part II of the Constitution only reflect the policy of the State, which, according to Article 30(2) of the Constitution are not actionable. A question, which therefore, arises is, when the functions in respect of the Islamisation of laws in Pakistan have been expressly restricted by our Constitution to the Council of Islamic Ideology or the Federal Shariat Court (Article 227(2) and Article 203-(G), can such provisions be overridden by Article 2-A? If the rule of harmonious construction is to be followed, then effect beyond what is provided in Article 2-A itself cannot be given to the Objectives Resolution. Unless Article 2-A is construed as a Supra- Constitutional provision, no law can be tested on the touchstone of the Objectives Resolution or Article 2-A. It may be pointed out that a Constitutional provision cannot be tested on the touchstone of another such provision unless such an intention can be gathered from the provision itself either from the express language used therein or by necessary intendment. In Malik Ghulam Mustafa Khar v. Pakistan and others (PLD 1988 Lah. 49), it was observed that: "While interpreting the Constitution the Objectives Resolution must be present to the mind of Judge and where the language of the Constitutional provision permits exercise of choice, the Court must choose that interpretation which is guided by the principles embodied therein. But that does not mean, that Objectives Resolution is to be given a status higher than that of other provisions and used to defeat such provisions. One provision of the Constitution cannot be struck down on the basis of another. To the same effect is the decision of the High Court of Karachi, in Muhammad Bachal Memon's case with which we respectfully agree. The language of Article 270-A(1) does not admit of any doubt and leaves no choice for the Court. We have already held that the validation of the legal measures cabined in Article 270-A(1) is well within the competence of the Parliament. In construing Article 270-A(1), therefore, Article 2-A does not hold out any interpreting constraint."
41. Although in the above case, the Objectives Resolution was not given a status higher than Article 270-A, however, the importance of the Resolution, which, as pointed out above, reflects the very ideology of Pakistan, cannot be overlooked. Even the Military Rulers did not undermine its importance when the country was being governed under their rule. As has been observed by Muhammad Afzal Lone, J. , in Muhammad Sharif's case, the Courts in Pakistan can always seek guidance from the Resolution to expound the Constitution and to understand its true meaning.
However, when the Constitution has already made provisions for the Islamisation of laws in Pakistan and an effective machinery for the purpose has also been provided, the Courts in Pakistan cannot take upon themselves the task of declaring any law as invalid on the ground of its being inconsistent with or repugnant to the tenets of Islam, more so, in view of the express provisions contained in Articles 203-G, 227(2) and 30(2) of the Constitution and also for the reason that no such jurisdiction has been conferred on the Courts by Article 2-A of the Constitution. The Courts in terms of Article 175(2) of the Constitution can exercise such jurisdiction which has been conferred on them by the Constitution.
42. It is pertinent to point out here that my learned brother Wajihuddin, J., while concurring with the views expressed by Tanzilur Rahman, J., in the aforesaid cases, has gone to the extent of holding that the Resolution can be given effect to by the Courts even without calling in aid Article 2-A of the Constitution. My learned brother Tanzilur Rahman, J., in the aforesaid judgments, has placed reliance on the observations of the Justice Hamoodur Rahman, in the case of Ziaur Rahman (PLD 1973 SC 49) according to which the Objectives Resolution could not be invoked by the Courts in aid to strike down any provision of law found repugnant to the Injunctions of Islam on account of the reason that it had not then been made a substantive part of the Constitution. The clog, according to my learned brother, has now been removed after the insertion of Article 2-A in the Constitution. It may be pointed out with great respect, that the aforesaid observations were made by Justice Hamoodur Rahman, when the Resolution was not a substantive part of the Constitution and its effect can be examined only in consonance with the provisions of Article 2-A of the Constitution which did not exist in the Constitution when the judgment in the case of Ziaur Rahman was given by the Supreme Court. Article 2-A by providing that the Resolution "shall have effect accordingly" only means that the Resolution is to be construed in accord with the other provisions of the Constitution and is to be given effect accordingly.
43. My learned brother Tanzilur Rahman, J., in the aforesaid judgments, has also found the barrier created by Articles 227(2) and 203-(G) of the Constitution not insurmountable. He has further held that Article 268, clause (6) of the Constitution can always be invoked by the Courts to construe any legal provision with such adaptations as are necessary to bring it into accord with the provisions of the Constitution. It may again be observed with great respect, that, Article 268(6) cannot be invoked by the Courts to bring any legislation in accord with the Injunctions of Islam,- even if the same are reflected P in the Holy Qur'an or Sunnah, unless the same is permitted by the Constitution itself. Article 268(6) also cannot be called in aid to overcome the restrictions imposed by Article 203-G or 227(2) of the Q Constitution. No doubt, the Objectives Resolution has now been made a substantive part of the Constitution, nevertheless by its own force it cannot render the Injunctions contained in the Holy Qur'an or Sunnah an integral part of the Constitution. Article 268(6), therefore R cannot be invoked by the Courts in any case to bring any existing s law in accord therewith by necessary adaptations.
44. I am accordingly of the view that the provisions of the Objectives Resolution read with Article 2- A of the Constitution cannot be given effect to by the Courts inasmuch as that no law in Pakistan can be tested by the Courts on the touchstone of the Objectives Resolution to bring it in accord with the Injunction of Islam except within a limited sphere as pointed out above, and the Courts in Pakistan are under a moral and legal obligation to give effect to the law in force in Pakistan.
Consequently, even if the contention of Mr. U Mtinji that charging of interest is prohibited by Islam, is accepted, still the laws in force in Pakistan permitting the plaintiff to charge interest on the principal amount due against the defendant must be) given effect to.
45. In view of the above conclusion, it is not necessary for me to turn to the second limb of Mr. Manji's argument that charging of interest has been prohibited by the Holy Qur'an.
46. The upshot of the above discussion is that although unconditional leave is granted to the defendant No,2 to defend the suit, the suit against the other defendants is decreed in the sum of Rs,40,97,535.17 jointly and severally with interest at 4% above the bank rate, subject to the minimum of 4% per annum with quarterly rests from the date of the filing of the suit till realisation of the amount, together with costs. C.M.A. No,3886/86 is, therefore, dismissed. C.M.A. No,3887/86 is granted. C.M.A.No,3888/86, filed by the defendant No,2 is also granted in view of the no objection given by Mr. A.I.Chundrigar.