JUDGMENT MUHAMMAD MUNIR KHAN. J.-Through this Constitutional Petition, Allah Bakhsh, petitioner, seeks declaration to the effect that the judgment/decree passed by the learned Addl. District Judge, Layyah, respondent No.3, is illegal, without lawful authority and of no legal effect.
2. The facts leading to this writ petition, briefly, are that the petitioner filed a suit for the recovery of Rs.5,()()()/- as compensation/damages to his crops before the Chairman. Union Council. Shadoo Khan, Tchsil and District Layyah, against Muhammad Bakhsh and Ahmad Bakhsh, respondents No. 1 and 2. The the High Court; that Chapter 3-A of the Consitution (which contains Articles pertaining to the Federal Shariat Court) is a higher from of legislation as Article 203-A stipulates "the provisions of this Chapter shall have effect notwithstanding anything contained in the Constitution and that the provisions of Article 2-A are not self-executory and, in the absence of property legislation, no practical effect can be given to the declaration of intent embodied in this Article.
5. Conversely, M/S Khadim Nadeem Malik and Pervaiz Akhtar, Advocates who mainly argued on behalf of the petitioners urged that the "interest", which is "Reba", is prohibited in Islam. In view of Articles 2-A, 31 and 38(f) of the Constitution, the High Court can grant the prayer made in these petitions and, issue writ of mandamus against notice/noticcs/ordcrs, which seek to recover something, which is "Harram" in Islam and that Article 2-A of the Constitution, being later in time, would have an overriding effect on other provisions of the Constitution including Chapter 3-A.
6. 1 have considered the matter carefully. I feel persuaded to agree with the learned Addl.
Advocate-General. I am of the view that it is not possible for this Court to grant the relief sought in these petitions without declaring the "interest" as unislamic, or without declaring the provisions of law, under which notices have -been issued for the recovery of the interest, as repugnant to the Injunctions of Islam. This kind of declaration. I am afraid, cannot be given by this Court in view of the clear bar of jurisdiction envisaged in Chapter 3-A of the Constitution, which may be re- produced advantageously:- v Article 2-A: "The Objectives Resolution to form part of substantive provisions: - The principles and provisions, set out in the Objectives Resolution reproduced in the Annex are hereby made substantive part of the Constitution and shall have effect accordingly."
Article 203-A: "Provisions of Chapter to ovenide other provisions of Constitution. The provisions of this Chapter shall have effect notwithstanding anything contained in the Constitution."
Article 203-G: "Bar of Jurisdiction.- Save as provided in Article 203-F, no Court or tribunal, including the Supreme Court and a High Court, shall entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the Court."
Furthermore, the provisions of Chapter 3-A of the Constitution have overriding effect qua Article 2- A, although the same (Article 2-A) was later in time inasmuch as no consequential corresponding amendment has been made in Article 203-A of the Constitution. Article 2-A has simply made the principle and provisions set out in the Objective Resolution reproduced in the Annex a subtanlive part of the Constitution and shall have effect accordingly. It has nowhere been stated in this Article that this Article will override the provisions of Chapter 3-A of the Constitution. So it is crystal clear that the provisions of Chapter 3-A which includes Article 203-G, are not subordinate to Article 2-A of the Constitution and Chapter 3-A of the Constitution remains supreme.
(b) Constitution of Pakistan, 1973- -Art.199-The provisions of Chapter 3-A of the Constitution have the over-riding effect qua Article 2- A-Although this Art. Being later in time-Held that: It is nowhere stated in this Article that it will over- ride the provisions of Chapter 3-A of the Constitution-It is crystal clear that the provisions of Chapter 3-A which include Art. 203-G are not subordinate to Art. 2-A-Chapter 3-A of the Constitution remains supreme.
(Para 6)
(c) Constitution of Pakistan, 1973-- -Art. 199-Loan-Interest thereon-Payment of-He who does not want to pay interest should not accept the loan with interest decitifully-Tf he applies for the loan consiciously agrees to pay the interest on it-He should not resile from the promise on the pretext that the interest is "harram"--In Islam. t (Para 7)
For the Petitioner: Parvaiz Akhtar and Khadini Nadeem Advocates.
For the Respondent: Masood Javed, Shafat Ali ,Muhammed Irfan, Abdul Razaq Pirzada Abde-Saeed, Khalid Akan Mohammed Latif Lodhi, Nadeem Randid, Mahammed Iqbal and Anwral Haq, Advocates.
Date of heating: 9th December, 199.0.
MUHAMMAD MUNIR KHAN, J.-Since common question of law and facts are involved in twenty four writ petitions No.1694-87, 1194-87, 1314-88, 1075-88, 1313-88. 1081-88, 818-88, 1611-88, 1205-88, 495- 89, 18-89, 1419-89, 1342-89, 1319- 89, 1510-90, 2190-90, 689-90, 858-90, 1378-90, 1446-90, 1858-90, 1500-90, 1469-90 and 1499-90, so 1 propose to dispose of them through this single judgment.
2. The writ petitioners had obtained loan from Banks-Institulions at different rates of interest, ln default of the payment of loan, they were issued notices and recovery proceedings were initialed.
They have filed these writ petitions for declaration that the respondents arc not entitled to recover interest from them because "Reba" was/is "Harram" in Islam.
3. Mr. Tassaddaq Hussain Jillani, learned Additional Advocate-General, who was asked by the Court to render assistance, has raised preliminary objection qua the maintainability of these writ petitions in view of Articles 203-A and 203-G of the Constitution of the Islamic Repubic of Pakistan, 1973 (hereinafter referred as the Constitution. To avoid the judicial exercise which may, ultimately, prove to be merely academic. I feel that the issue of the maintainability of the writ petitions and of the jurisdiction of this Court to adjudicate the question involved in these writ petitions should be decided first. *
4. The learned Addl. Advocate-General argued that this Court cannot issue the writ prayed for and make the declaration .Sought in these petitions as Articles 203-A and 203-G have not only created a separate forum to resolve such issues but haw also completely barred the jurisdiction of other Courts including C.1.459 ross-examinalion by the adversaries. In the present case also it is an admitted position that these witnesses were cross-examined on oath as required under section 6(i) of the Oath Act. For these reasons the objection raised by the learned counsel for the appellant is not tenable.
Now adverting to the question of default in the payment of rent, the version of the appellant is that he. Had made payment of'rent for the months of July, August and September. 1987 to the respondent's father who failed to issue receipts for the same, lt is alleged by the appellant that rent for the month of June. 1987 was also paid by the appellant to the respondent's father who had issued receipt to him. Mir Af/al. Father of the respondent in para 4 of his written statement states that he never received any rent from the appellant nor he ever issued any receipt to the appellant but in his cross-examination he admits that some time he used to receive rent and some time his son. In his affidavit of evidence, the respondent specifically stales that the appellant never paid rent for the said period to his father and such an allegation is absolutely false and after thought but he too in his cross-examination repudiates his stand by saying that he did mil know whether his father had received the rent for the months of July, s August and September. 1987. The evidence adduced by the respondent does not inspire confidence and is lull of contradictions. 1 am also of the view that default, if any, committed by the appellant was not wilful and therefore I am not inclined to exercise my discretion in favour of the respondent.
As a result. 1 set aside the judgment dated 27-5-1990 passed by the learned It Senior Civil Judge and Rent Controller (Central) Karachi in Rent Case No.290 of 1988 but with no order as to costs.