CH. IFTAKHAR HUSSAIN, J.- M/S Shaft and Sons, a sole proprietor-ship concern of one Muhammad Aslam imported Rubber and V-belts from Korea. He was to pay to Karachi Port Trust (KPT) a sum of Rs. 4,65,000/- for which said Muhammad Aslam approached Bank of Oman to furnish a guarantee for the afore-mentioned money. The bank obliged and Arshad Aziz-petitioner herein, executed a promissory note while other petitioners provided letters of guarantee with equitable mortgage by depositing title deed of their properties. KPT encashed the Bank Guarantee and the Bank of Oman had to pay the guaranteed amount of Rs. 4,65,000/- with 14% mark-up amounting to Rs.
2,69,497.97. The Bank of Oman after failing to receive above said amount from the parties concerned filed a suit before Banking Tribunal No. 1, Lahore for recovery of money advanced. After usual proceedings the Tribunal decreed the suit vide judgment and decree dated 8.5.1994.
2. Instead of filing an appeal under Section 9 of the Banking Tribunals Ordinance, LVIII of 1984, Arshad Aziz etc have filed the present petition. M/S Shafi and sons were impleaded neither as petitioner nor as respondent. The reason shown is that Muhammad Aslam, the sole proprietor has died in the year, 1990 and the present petitioners are not aware of the whereabouts of legal heirs of Muhammad Aslam.
3. Learned counsel for the petitioner has submitted that in view of Article 175 of the Constitution, judicial power can be exercised by a court only and the Banking Tribunal being neither a court as defined in Article 175 nor an administrative Tribunal under Article 212 of the Constitution lacked the jurisdiction to deal with the matter; that the Banking Tribunals Ordinance, LVIII of 1984 was liable to be struck down being violative of the Constitution and fundamental rights 23, 24,
25. Next submission is that the Federal Shariat Court has declared mark-up as un-islamic in Shariat Petition No. 109/1/1991 and as such no Court can recover any amount on the basis of a system declared un- islamic. It was next contended that equitable mortgage, too, was un-islamic. On the basis of these submissions it was prayed that judgment/decree dated 8.5.1994 of the Banking Tribunal may be set aside and further that the Banking Tribunal Ordinance, 1984 may be declared ultra vires the Constitution.
4. Learned counsel for the respondent-Bank has submitted that in view of the specific remedy of appeal provided under the law, this petition was misconceived. He has supported the impugned decree as well/the Ordinance, LVIII of 1984.
5. The contentions of the parties have been considered. Article 175 of the Constitution is not a self- executing provision (it lacks the characteristics of self-executing provisions) nor it has defined Courts. It also does not limit the bodies which only can be called Court. Courts or judiciary in Article 175 appear to have been used in a generic sense in contradistinction to executive bodies the hierarchy of which culminates, in the case of Federation, in the President; and in case of the Provinces in the Governor. Courts or judicial forums thus would be all those bodies which perform judicial functions and dispense justice. The Banking Tribunal constituted under Ordinance LVIII of 1984 has all the embellishments of a Court. At the most it can be said to be a special Court dealing with a specific matter. The vires of the Ordinance vis-a-vis the fundamental rights and the Constitution have already been examined in M/S Sind Glass Industries Ltd., etc vs. Pakistan (1989 CLC 524) and it has been held that the Ordinance as well as the Banking Tribunal were competently legislated and constituted and further the provisions of the Ordinance did not militate against the fundamental rights. As most of questions raised by the petitioners already stand answered in the precedent case, further discussion of the subject would be un-needed splashing of verbiage.
6. As far as contentions of petitioner relating to repugnancy to Islam or otherwise of provisions relating to interest or mark-up are concerned, this matter cannot be examined in the Constitutional jurisdiction of this Court under Article 199 of the Constitution. Only Federal Shariat Court can undertake this exercise under provisions of Chapter 3-A of the Constitution. By virtue of Article 203-A of the Constitution which has over-riding effect Over the other provisions, the matters to which jurisdiction of Federal Shariat Court extends cannot be examined by the High Court. Even otherwise there is no force in the contentions raised by the petitioners. As for as contention of the petitioners, that charging of mark-up and interest have been declared un-islamic by the Federal Shariat Court, is concerned, that too is without any basis since that judgment is under appeal and by virtue of Cl. (b) of Sub-Article (2) of Article 203-B of the Constitution, it is deemed to be suspended. Objection qua equitable mortgage is also misplaced. A judgment from Karachi jurisdiction (PLD 1987 Kar. 404) had declared Section 5$ (f) of Transfer of Property Act, relating to mortgage by deposit of title-deeds to be un-islamic but subsequently Federal Shariat Court which earlier had declared most of provisions of Transfer of Property Act as being not repugnant to injunction of Islam re-examined the relevant provisions and declared vide judgment dated 5.5.1988 (un-reported) that equitable mortgage was not repugnant to Injunctions of Islam. The relevant part of the judgment is as follows: "It will be seen from Verses 282-283 of Surah Al-Baqarah that Allah Subhana-Heo requires of persons entering into such transactions, as given therein, the writing as a proof as also witnesses thereon. In case, however, one is on journey and the witnesses and scribes are not available then he can rely on a mortgage of a movable property that he may have with him. In the second part of Verse 283, it is father stated that in case none of these things are available and the lender agrees to enter into transaction without all that even then it is permissible and duty is cast then on the borrower to return all that as if it was a trust. Consequently if the lender and the borrower agree on the hypothecation of the title deeds in respect of that transaction, there will be no repugnancy to Quran and Sunnah.
2. In view of the above discussion, we think that the decision already made by this Court in respect of Section 58 (f) of the Transfer of Property Act, 1882 is quite valid and no interference is called for.
This reference is thus disposed of."
5. Banking Tribunals Ordinance, LVIII of 1984 is a special law and deals with a specific subject.
Section 5 of the Ordinance prescribes powers of the Banking Tribunal established under the Ordinance. Sub Section (3) of Section 5 reads as under:- No Court other than a Banking Tribunal shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a Banking Tribunal extends under this Ordinance, including a decisions as to the existence or otherwise of finance and the execution of a decree passed by a Banking Tribunal: Provided that nothing in this sub-section shall be deemed to affect:-
(a) the right of a Banking Company to seek any remedy before any Court or otherwise that may be available under the law by which the Banking Company may have been established or under that law as amended from time to time; or
(b) the power or jurisdiction of the Banking Company or any Court such as is referred to in clause (a); or to require the transfer to a Banking Tribunal of any proceeding pending before the Banking Company or any such Court immediately before the commencing day."
Section 9 provides for an appeal against the order, decree and sentence passed by the Tribunal.
Section 10 attaching finality to orders of the Tribunal, reads as under: "Subject to the provisions of appeal under section 9, no Court or other authority shall call, or permit to be called in question any proceeding, order, judgment or decree of a Banking Tribunal or the legality or propriety of anything done or intended to be done by the Banking Tribunal under this Ordinance."
A cumulative effect of Section 10 and Section 5(3) would result in ouster of jurisdiction of High Court in all matters which come within the purview of the Banking Tribunals Ordinance. This ouster of jurisdiction would, afortiori, imply that the decree impugned herein could only have been challenged before the forum prescribed by Section 9 of the Ordinance and nowhere else. The applicability of the Ordinance cannot be by-passed, circumvented, nullified or abridged through any ingenuity, contrivance or ingeniousness. The petitioners had raised certain questions of jurisdiction before the Banking Tribunal. The settled law is that such questions are raised in the same hierarchy. The petitioners could very well have agitated the matter before the appellate Forum as well but they instead of that chose to file this constitutional petition. In view of the specific remedy of appeal provided under the germane law, and ouster clause of jurisdiction of courts, this petition is misconceived, is not entertainable and as such stands dismissed.