TANZIL-UR-RAHMAN, CJ. ---The Federal Shariat Court under Shariat Suo Motu No.2/NWFP/84 examined the North-West Frontier Province Urban Planning Ordinance IV of 1978 and by its decision dated 24-3-1984 held as under:-- "This Act has the same features as the Punjab Act and is generally free of all objections in regard to repugnancy to Shariah. The N.-W.F.P. Government is directed to amend the Act and provide that each residential scheme shall make provision and earmark plot for mosque. As stated in relation to the Punjab Town Improvement Act, 1922 the Government is further directed to provide in this Act for payment of Additional Compensation at the rate of 15% per annum from the date of notice."
2. On an appeal (Shariat Appeal No.4 of 1985), preferred by the Government of the North-West Frontier Province, the Shariat Appellate Bench of the Supreme Court, remanded the matter by its judgment, dated 20th January, 1988, to this Court with the following remarks:-- "It is clear from what has been noted in the case of N.-W.F.P. Urban Planning Ordinance that the Federal Shariat Court found no provision of it to be repugnant to the Injunctions of Islam yet it directed the Government to provide in that Act, that each residential scheme shall make provision and earmark plot for mosque and payment of additional compensation at the rate of 15% per annum from the date of notice.
We had occasion twice earlier to examine such a handling of the cases by the Federal Shariat Court in the case of Federation of Pakistan v. General Public PLD 1986 SC 240 and in Shariat Appeal No.22 of 1984, and held that the specific repugnance and the extent of it should be clearly specified and the direction given should be in terms of the Constitutional authorisation contained in clause
(2) of Article 203-D of the Constitution so that the consequences provided in clause (3) of the same Article fallow. The decision of the Federal Shariat Court does not satisfy the requirements of Article 203-B of the Constitution and for that reason cannot be sustained."
3. The Federal Shariat Court by its above-mentioned judgment appear; to have given the following two directions to the Government of the North. West Frontier Province:-
(i) To provide/earmark plot for mosque in each residential scheme.
(ii) Payment of additional compensation at the rate of 15% per annum from the date of notice.
4. After remand, this Court heard the matter during 28-5-1989 and 1-6-1989 and reserved its judgment. The judgment, however, could not be written and in the meantime the tenure of the then Hon'ble Chief Justice and the other Judges, except that of Mr. Justice Dr. Fida Muhammad Khan, expired. The matter, thus, was heard afresh by this Bench on 14-4-1992.
5. As regards the first point, with regard to direction to provide for a mosque in each residential scheme, the same does not fall within the jurisdiction of this Court as provided under Article 203-D of the Constitution as it has jurisdiction to examine a law or a provision of law, that exists in a statute, or a custom or usage which has force of law. We feel that in the absence of any provision of law, providing for constructing a mosque in every residential scheme, by giving such a direction this Court will be over-stepping its jurisdiction. We are of the considered view that provision of mosque in the residential scheme is not only commendable but is necessary also. However, we feel constrained to point out that this Court has no jurisdiction to give the "direction" to provide for a mosque in every residential scheme and as such the direction as contained in the earlier judgment may be treated as "recommendation".
6. As regards the second point regarding the payment of additional compensation at the rate of 15% per annum on the market value of the land acquired from the date of the notice of acquisition it has been discussed in detail by us while giving our judgment in SSM No.14/NWFP/83 (in the matter of land acquisition). In the said judgment it has been held by this Bench that e the direction to provide in law for payment of such additional compensation at the rate of 15% per annum on account of the delay in making payment by the Government amounts to `Riba'. The direction by itself is contrary to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. Reference may be made to the judgment of this Court in Mahmood-ur-Rahman Faisal v. Government of Pakistan PLD 1992 FSC 1.
7. For the aforesaid reasons we do not feel inclined to give any direction to the Government of the North-West Frontier Province in the matter of Urban Planning Ordinance IV of 1978, on the above two points. For rest of the provisions as contained in the said Ordinance, nothing has been found by this Court (vide its judgment dated 24-3-1984) repugnant to the Injunctions of Islam nor any argument to the contrary has been advanced before us by the Government.
8. With the above observations, the S.S.M. No.2/NWFP/84, stands disposed of.