' Since common questions of law and facts are involved in twenty-four writ petitions Nos. 1694 and 1194 of 1987, 1314, 1075, 1313, 1081, 818, 1611 and 1205 of 1988, 495, 18, 1419, 1342, 1319 of 1989, 1510, 2190, 689, 858, 1378, 1446, 1858, 1500, 1469 and 1499 of 1990, so I propose to dispose of them through this single judgment.
2. The writ petitioners had obtained loan from Banks/Institutions at different rates of interest. In default of the payment of loan, they were issued notices and recovery proceedings were initiated.
They have filed these writ petitions for declaration that the respondents are not entitled to recover interest from them because 'Reba' was/is 'Haram' 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 Republic 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 Additional 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 have also completely barred the jurisdiction of other Courts including the High Court; that Chapter 3-A of the Constitution (which contains Articles pertaining to the Federal Shariat Court) is a higher form 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 proper legislation, no practical effect can be given to the declaration of intent embodied in this Article.
5. Conversely, Messrs 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/notices/orders, which seek to recover something, which is `Haram' 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. I have considerd the matter carefully. I feel persuaded to agree with the learned Additional 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 un-islamic, or without declaring the provisions of law, under which A 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 reproduced advantageously:-- ' 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 override 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 principles and provisions set out in the Objectives Resolution produced in the Annex, a substantive part of the Constitution and shall have effect accdordingly. It has no where 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 include Article 203-0, are not subordinate to Article 2-A of the Constitution and Chapter 3-A of the Constitution remains supreme.
7. Even otherwise, I do not feel inclined to exercise the Constitutional powers of this Court in aid of the petitioners inasmuch as they fully knew that giving and taking of {{URDU TEXT}} was 'Haram' in Islam when they applied for the loan, agreed to pay {{URDU TEXT}} received the loan with interest and utilized the same, so now when they have been asked to pay what they had agreed to pay, it does not lie in their mouth to refuse/avoid to pay the same saying that it was/is `Flaram' in Islam.
Let it be made clear that neither I am in favour of interest {{URDU TEXT}} nor I consider it as {{URDU TEXT}}However, I am of the view that he, who does not want to pay interest {{URDU TEXT}} he should not accept the loan with interest deceitfully. If he applies for the loan, consciously agrees to pay the interest on it then he should not resile from his promise on the pretext that the interest is `Haram' in Islam.
8. Pursuant to the above discussion, I do not see any justification to interfere in exercise of the Constitutional powers of this Court with the action taken/notices issued by the respondents for the recovery of loan with interest against/to the petitioners, so all these petitions arc dismissed leaving the parties to bear their own Costs.