CH. MUSHTAQ AHMAD KHAN, J.~This judgment will dispose of civil revision No. 1389 of 1992, writ petition No. 12045 of 1991, writ petition No. 11918 of 1991, Writ petition No. 7816 of 1992, civil revision No. 1026 of 1992, civil revision No. 1496 of 1992, civil revision No. 1497 of 1992, writ petition No. 10194 of 1991, civil revision 817 of 1992 civil revision No. 1195 of 1992 and civil revision No. 857 of 1992, as in all these cases common question of law is involved.
2. These petitions have arisen out of various suits and appeal wherein each case the petitioners were directed to pay court fees in accordance with the provision of court-fees and suit value act of the plaints and in some cases on the memorandum of the appeals. Legality and vires of the orders passed by the learned courts below directing the payment of court-fees have been challenged in these petitions.
3. Malik Waqar Salim Advocate, Mian Sarfraz Hussain Advocate, Mr. Mehdi Khan Advocate, Miss Roshan Ara Advocate, Mr. Mushtaq Ahmad Qureshi Advocate and Mr. Rashid Murtaza, Qureshi Advocate, have appeared in support of the petitioners in the cases which were being represented by them and in the other cases as amicus curai. Other learned counsels for the petitioners have not appeared to argue the petitions. I heard the arguments in these cases on 28.10.1992 and the judgment was reserved and I had asked that any learned counsel who wants to submit a note in writing can also file it in court but except one learned counsel namely Ch. Muhammad Nazir Advocate, Toba Tak Singh who has submitted a note in writing who is learned counsel for respondent in writ petition No. 12045-91. None other has appeared on behalf of the respondents in those cases which have been admitted to a regular hearing. Ran Muhammad Arshad, learned Addl. A.G. Punjab, has appeared to assist the court on Courts call.
4. Mr. Waqar Saleem, Advocate, learned counsel for the petitioner in civil revision No. 817-92 assisted by Mian Sarfraz Hussain Advocate has raised the following contentions:-
1. That the provision of court-fees which require the payment of court fees on the pleadings in suits as well as memorandum of appeal have been declared to be against Injunction of Islam by the Islamabad in case of Bashir and 3 others vs. The State (PLJ 1992 SC........................ (1) therefore, the impugned orders are illegal and without jurisdiction as the relevant law being un-islamic has ceased to remain in force.
2. That by virtue of Article 2 (A) of the constitution of Islamic Republic of Pakistan, this court is competent to declare the provision of Court- fees Act, which require the fixation of the court-fees, against the Injunctions of Islam and hence not enforcible in law courts. In this behalf learned counsel has relied upon the following cases Allah Dad Versus Mukhtar and others ( 1992 SCMR 1273), Mirza Qamar Raza * Vs Mst. Tahira Begum and others (PLD 1988 Karachi 169) Allaha Banda Vs Mst. Khurshid Bibi (1990 CLC 1683) lijaz Haroon Vs. Inam Durrani (PLD 1989 Karachi 304). Learned counsel contends that the impugned orders hence are erroneous in law.
3. That by virtue of Article 2 (A) of the constitution of Islamic Republic of Pakistan, it is the duty of this court as well as courts below to enforce the Injunctions of Islam which clearly provide that no court fees shall be payable by a litigants.
4. That by virtue of provisions of Section 4 of the Shariat Act, 1991, the Shariat Law being the supreme law, even if the judgment of the Federal Shariat Court has not taken effect, the law having been held to be un-islamic, cannot be enforced and no court-fees can be required to be paid by the litigants.
5. That even if the judgment of the Federal Shariat Court is under appeal, all these petitions should remain stayed till the decision of the judgment which may be rendered by the Shariat Appellate Bench of the Hon'ble Supreme Court of Pakistan and the impugned orders should remain suspended.
Miss Roshan Ara Advocate, who is a petitioner in civil revision No. 7816 of 1992 has adopted the arguments addressed by Mr. Waqar Saleem, learned counsel for the petitioner in civil revision No. 817 of 1992. She has however, further argued that in family cases, no court fees is payable.
Mr. Mehdi Khan, Advocate has appeared in support of the petitioners of his own and has argued that the judgment of the Federal Shariat Court being declaratory in nature will apply retrospectively in spite of the proviso to the provision of Article 203-A of the Constitution of Islamic Republic of Pakistan. As very few learned counsels argued the cases, therefore I had fixed the cases for rehearing for today. Except the-learned counsels reported to above none has appeared even today.
Mr. Rashid Murtaza Qureshi Advocate has appeared today and has requested to address oral arguments instead of submissions of a note in writing and has raised the following contentions: -
1. That by virtue of the preamble to the Constitution of Islamic Republic of Pakistan, 1973, which opens with the words " "it becomes the duty of all the authorities including this court to refuse enforcement un-islamic laws and rather to declare such laws as void and as the law of court fees being violative of the provisions of the preamble itself which specifically provides that every efforts should be made for equality before the law and for protection of fundamental rights and achievement of islamic, social, economic and political justice and as the law of court-fees is un-islamic as it is against the will of the society and in fact is a clog on the right of the depressed to get justice' this court should interfere in the matter and strike down the illegal orders passed by the two courts below which require the payment of court-fees. In this connection, learned counsel has referred to the preamble as well as to the introduction part of the book Constitution of Islamic Republic of Pakistan written by Munir. Learned counsel has further argued that laws are of two types one laws of God which do not change and second the man-made laws which must give way to the laws of God and the will of the society in accordance with the changing circumstances. Learned counsel relies on case of Forhes vs. Cochrane (107 E.R. 450) wherein it is held as under:- "I do not therefore feel myself fettered by any thing expressed in either of them, in pronouncing the same opinion upon the right expressed slavery, as if they had never passed. If, indeed, there had been any express law, commanding us to recognise those rights, we might then have been called upon to consider the propriety of that which has been said by the great commentator upon the laws of this country. 'That if any human law should allow or enjoin us to commit an offence against the divine law, we are bound to transgress that human law"..
The Pakistan being a creation of an Islamic ideology, in such a stale which in fact is an Islamic State Court fee cannot be allowed to be recovered from the depressed and poor people who come to courts to get justice. Learned counsel referred to Encyclopedia Tritianica page 232, at which page words "Kara Kalpak Autonomous Soviet Socialist Republic have been described. Relevant portion reads as under:- "The republic also called KaraKalpakia and Kara-Kalpakistan occupies the western half of the Kyzylkum desert, the delta of the Amu Darya and the southeastern part of the Ustyurt Plateau. It is bordered on the northy by the Aral sea." fy t*\ W -J^ld \z. < ''(J* ^ #tbs fl r, and further has referred to the word * .*0^ *" described in the , , ^ Bonn knowp as " ^ J'J * at pagfi. 117, which read^ as under:- {{Urdu text}} and contended that in Pakistan the law of Mehmood Ghazanvi and the laws of God are to be enforced without any hesitation and as the demand for payment of court-fees is patently un- islamic and against the principles of islamic, social justice hence the impugned orders are illegal and without a lawful authority.
5. As against the above arguments addressed by the learned counsel on behalf of the petitioner, Rana Muhammad Arshad, learned Addl. A.G. Punjab, has argued that the judgment rendered by the Hon'ble Federal Shariat Court has already been appealed against and hence as per provisions of Constitution of Article 203 of the Constitution of Islamic Republic of Pakistan, 1973, the judgment stands suspended and therefore the provision of the statute being inexistence, the impugned orders are quite valid and lawful and no fault can be found therewith. Learned counsel has further argued that the preamble of the Constitution although has become a part of the Constitution yet it has to be interpreted in harmony with other provisions of Constitution and not in isolation. Learned counsel argues that Article 203=A is a complete bar to the jurisdiction of other courts and that it is the Federal Shariat Court to take cognizance of legality of laws on the touch stone of the Injunctions of Islam. It is only the Federal Shariat Court who had the jurisdiction to decide the questions involved and since the matter is already pending before the court of superior jurisdiction, this court has no jurisdiction to hold that the provision of the Court-fees Act which require payment of court-fees are un-islamic. According to the learned counsel Section 4 of the Shariat Act also being a sub-Constitutional legislation cannot over-ride the provisions of the Constitution and hence the impugned order cannot be set aside by this court.
Regarding the arguments raised by Mr. Rashid Murtaza Qureshi, learned counsel for the petitioners, learned Additional Advocate-General, Punjab has argued that the arguments are quite idealistic but in Pakistan the provision of Constitution and the law govern the area of jurisdiction Of the courts as well as that of legislature. Legislation power is not enjoyed by this court and the adjudication of cases has to be made in the light of the provisions of the Constitution and the laws, hence no weight can be given of the arguments of learned counsel for the petitioners.
6. I have considered the arguments addressed by the learned counsel who have appeared and who have filed a note in writing and have perused the various judgment cited at the bar.
Admittedly judgment of the Hon'ble Federal Shariat Court referred to by the learned counsel for the petitioners is subject matter of a pending appeal before the Shariat Appellate Bench of the Hon'ble Supreme Court of Pakistan. Effect of the judgment thus stand suspended as per provisions of Article 203-1 with the result that provisions of the court-fees Act in pursuance whereof the lower courts have directed the petitioners to pay court-fees are still a part of the statute and have the force of a law. Article 203 of the Constitution reads as under:- 203-A....
The provisions of this Chapter shall have effect notwithstanding anything contained in the Constitution.
203-D....
(2) If the court decides that any law or provision of law is repugnant to the Injunctions of Islam it shall set out in its decision:-
(a) the reasons for its holding that opinion; and
(b) the extent to which such law or provision is so repugnant; and specify the day on which the decision shall take effect.
(Provided that no such decision shall be deemed to take effect before the expiration of the period within which an appeal therefrom may be preferred to the Supreme. Court or, where an appeal has been so preferred, before the disposal of such appeal).
Hence it is quite clear that so long as the appeal is decided by the Hon'ble Supreme Court and the date for amendment of the law if fixed by the 'Hon'ble Supremen Court does not expire the provisions of the Court-fees Act shall remain inforce. It has been held in case of Sardar Ali vs. Muhammad Ali and others (PLD 1988 S.C. 287), that the judgment of the Federal Shariat Court is to take effect not retrospectively but prospectively on the expiry of the target date which in this case "stands suspended. No doubt Hon'ble Supreme Court of Pakistan as well as this court has held in various cases that in vacant areas principles of Islamic laws is to apply but in those cases where statute is already there, it is the statute which is to apply. Reference in this behalf can be made to cases of Comm. Of Income Tax ('Central! Karachi versus Messrs Fakir Cotton Ginnting Ltd. (PLD 1991 S.C. 280) and Haji Khurshid Ahmad v. Salahat Ali ADJ. Sahiwal (1992 CLC 2270). Resultantly, provisions of the court-fees being still on the statute book, the impugned orders which have been passed by the Law Courts cannot be said to be illegal and therefore are not liable to be set aside in exercise of the revisional or writ jurisdiction of this court. Provisions of the preamble of the Constitution as well as Article 2 (A) of the Constitution of Islamic Republic of Pakistan also do not change the situation inasmuch as the same have to be interpreted in harmony and alongwith other provisions of the Constitution as case of Hakim Khan and 3 others versus Govt, of Pak. And others (PSC 1992 SC Pak. 40). Resultantly this court has no jurisdiction to declare the provisions of the Court-fees Act a fiscal statute as un-islamic and void which is the exclusive jurisdiction of the Federal Shariat Court and the matter is admittedly pending adjudication before the Shariat Appellate Bench of the Hon'ble Supreme Court of Pakistan. Other reported cases wherein it has been held so are reported as under:- Messrs Mumtaz Industries vs. Industrial Development Bank of Pakistan through Manager and another (1991....M.L.D. 863), Massu and 27 others vs. United Bank Limited and another (1990 MLD 2304) and Comm, of Income Tax ('Central! Karachi. Versus Messrs Fakir Cotton Ginning and Pressing Industries Limited Gambat and another (PLD 1991 SC 280).
Consequently, no fault can. Be found with the orders passed by the courts below which have been impugned in these petitions. Provisions of the Shariat Act being sub-Constitutional Legislation also do not over ride, the provisions of Article 203/A of the Constitution of Islamic Republic of Pakistan which are over riding provisions, resultantly, this court is not competent to declare the law of court- fees as un-islamic determination of which question falls within the exclusive jurisdiction of the Federal Shariat Court. No doubt every person and every authority in Pakistan should make every effort to achieve the ideals which is mentioned in the preamble to the Constitution of Islamic Republic of Pakistan and the Injunctions of Islam as contained in the 'Quran and Sunnah' but everything has to be done in accordance with the Constitution and Laws inasmuch as each organ of the state has to function within its own areas legislation is the prerogative of the legislature and duty of the judiciary is to interpret the Constitution and the laws and to enforce the same in accord with the provisions of Constitution of Islamic Republic of Pakistan. Consequently, arguments addressed by the learned counsel for the petitioners are not of any help to the petitioners. I hold that so long as the provisions of the Court-fees Act are there op the statute book and are not declared un-islamic' as a result of effect of the judgment of the Federal Shariat Court the suiters/applicants/appellants shall have to pay Court- fees in the law courts. Judgments cited by the learned counsel appearing on behalf of the petitioners are not of any help to them. Judgment reported as case of Allah Dad Vs. Mukhtar and others (1992,PSC (Crl.) 386) besides being distinguishable on facts, has not been followed in the latest judgments rendered by their lordships of Hon'ble Supreme Court of Pakistan, consequently, these petitions shall have to be decided in the light of the latter view of the Hon'ble Supreme Court of Pakistan, particularly, when the matter is already pending adjudication before the Shariat Appellate Bench of the Hon'ble Supreme Court of Pakistan.
Argument of the learned counsel Miss Roshan Ara, Advocate is not acceptable in view of law laid down in case of Mirza Daud Beg vs. Additional District Judge (1987 SGMR 1161) wherein it has been held that court-fee is payable in family cases as well. Matters cannot be stayed merely because the matter is pending before the Hon'ble Supreme Court in view of the finding that judgment of the Federal Shariat Court operates prospectively.
Resultantly, all these petitions have no force and the same are therefore dismissed, in view of the complicated legal questions involved in all the aforementioned petitions, where the lis is still pending and due to the non payment of the court-fees, suit/appeal/has not been dismissed/rejected, each the period of one month with effect from today, failing which, his/her suit/appeal shall stands dismissed. Parties to bear their own costs. A copy of this order should be sent to the courts concerned immediately.