' 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 No,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 where in each case the petitioners were directed to pay court-fees in accordance with the provision of Court Fees and Suit Valuation Act on 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 counsel 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 Tek Singh who has submitted a note in writing who is learned counsel for respondent in Writ Petition No,12045 of 1991. None other has appeared on behalf of the respondents in those cases which have been admitted to a regular hearing. Rana Muhammad Arshad, learned Addl. A.-G. Punjab, has appeared to assist the Court on Court's call.
4. Mr. Waqar Saleem, Advocate, learned counsel for the petitioner in Civil Revision No,817 of 1992 assisted by Mian Sarfraz Hussain, Advocate has raised the following contentions:---
(1) That the provisions 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 in case of Bashir and 3 others v. The State PLD 1991 SC 1145, therefore, the impugned orders are illegal and without jurisdiction as the relevant law being unIslamic 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 injunction of Islam and hence not enforcible in law Courts. In this behalf learned counsel has relied upon the following cases: Allah Dad v. Mukhtar and others 1992 SCM R 1273, Mirza Qamar Raza v. Mst. Tahira Begum and others PLD 1988 Kar. 169, Allah Banda v. Mst. Khurshid Bibi 1990 CLC 1683 and Ijaz Haroon v. Inam Durrani PLD 1989 Kar.
304. Learned counsel contends that the impugned orders hence are erroneous in law.
(3) That by virtue of Article 2A of the Constitution of Islamic Republic of Pakistan, it is the duty of this Court as well as the Courts below to enforce the injunction of Islam which clearly provide that no court-fees shall be payable by 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 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,7861 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 counsel argued the cases, therefore, I had fixed the cases for re-hearing for today. Except the learned counsel 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 {{ARABIC TEXT}} it becomes the duty of all the authorities including this Court to refuse enforcement of 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 effort 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 cases of Forbes v. Cochrane 107 ER 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 on 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 State which in fact is an Islamic Slate 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 Encyclopaedia Britannica, page 232, at which page words "Kara Kalpak Autonomous Soviet Socialist Republic" have been described. Relevant portion reads as under:--- "The Republic also called Kara-Kalpakia and Kara-Kalpakistan occupies the western half of the Kyzylkum desert, the delta of the Amu Darya and the south-eastern part of the Ustyurt Plateau. It is bordered on the north by the Aral sea." and further has referred to the word "{{URDU TEXT}}" described in the Boon known as "{{URDU TEXT}}" at page 117, which reads as under:- {{URDU TEXT}} and contended that in Pakistan the law of Mehmood Ghaznavi 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 Additional 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 Article 203 of the Constitution of Islamic Republic of Pakistan, 1973, the judgment stands suspended and therefore the provision of the statute being in existence, 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 touchstone 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 requires payment of court- fees are unIslamic. According to the learned counsel section 4 of the Shariat Act also being a sub- Constitutional legislation cannot override 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 to the arguments of learned counsel for the petitioners.
6. 1 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 judgments 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 pending appeal before the Shariat Appellate Bench of the Hon'ble Supreme Court of Pakistan. Effect of the judgment thus stands suspended as per provisions of Article 203-D 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-A 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 Supreme Court does not expire the provisions of the Court Fees Act shall remain in force. It has been held in case of Sardar Aliv. Muhammad Ali and others PLD 1988 SC 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 Commissioner of Income Tax (Central), Karachi v. Messrs Fakir Cotton Ginning Ltd. PLD 1991 SC 280 and Haji Khurshid Ahmad v. Salabat Ali, A.D.J., 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. A Provisions of the preamble of the Constitution as well as Article 2A 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 v. Government of Pakistan and others PLD 1992 SC
595. 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 v. Industrial Development Bank of Pakistan through Manager and another 1991 M LD 863; Massu and 27 others v. United Bank Limited and another 1990 M LD 2304 and Commissioner of Income Tax (Central), Karachi v. 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 override the provisions of Article 203-A of the Constitution of Islamic Republic of Pakistan which are overriding 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 petitioner are not of any help to the petitioners. I hold that so long as the provisions of the Court Fees Act are there on the statute book and are not declared un-Islamic as a result of effect of the judgment of the Federal Shariat Court the suitors/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 v. Mukhtar and others 1992 SCM R 1273 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 later 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 v. Additional District Judge 1987 SCM R 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 nonpayment, of the court-fees, suit/appeal has not been dismissed/rejected each plaintiff/appellant shall be entitled to make up the deficiency in court- fees within the period of one month with effect from today, failing which, his/her suit/appeal shall stand dismissed. Parties to bear their own costs. A copy of this order should be sent to the Courts concerned immediately.