1. ' NAZIM HUSSAIN SIDDIQUI, J.---The petitioners have challenged the provisions of sections 4 and 6 of the Banking Tribunals Ordinance, 1984 (Ordinance LXIII of 1984) hereinafter called the Ordinance, and also the Judgment and Decree dated 16-12-1993 passed, in Suit No,1212 of 1993, against the petitioners by respondent No,1, decreeing the suit for Rs,90,77,881 with future mark-up at the latest prescribed rate from the date of decree till its realization. The facts relevant for decision of this petition are as follows:-- ' The respondent No,2 Agricultural Development Bank of Pakistan in July, 1993 had filed said suit against the petitioners and Mazhar Ali Sayeed, MRs, Hilda Saeed, G.D. Farooqui Hasan Madani, and MRs, Fareeha Saleem, who are/were the Directors and Guarantors of petitioners namely M/s. Zarat International (Pvt.) Limited, for recovery of aforesaid amount, alleging therein that on execution of necessary documents, including deed of hypothecation, demand promissory note, delivery letter for demand promissory note, and irrevocable general power of attorney, a loan of Rs,7.884 million for setting up a ground spraying machinery pool station for custom hiring was granted to the petitioners, who in their written statement admitted to have received the amount of Rs,5,517,700.
2. The petitioners on 10-6-1985 had also executed markup finance agreement, and in its clause 7 it was agreed between the parties that in the event of customer's failure to pay any one installment on its due date, the Bank, notwithstanding anything contained in the agreement and besides other remedies available to it for recovery of its dues, shall have the right to take possession of the goods and sell the same after giving a notice to the customer of its intention to do so. The petitioners failed to repay the loan to the Bank. The respondent No,2 bank approached the Deputy Commissioner Karachi-South, for recovery of bank dues as arrears of land revenue outstanding against the petitioners and also filed the suit in question against the petitioners and their directors and guarantors, which was decreed for Rs,90,77,881 as mentioned earlier.
3. ' Before the institution of Suit, on 7-7-1991 an amount of Rs,19,78,464 was outstanding, as arrears of installments, against the petitioners and respondent No,4 Assistant Commissioner Karachi-South, by Letter NoAC/(9)ADBP/354/92 dated 9-7-1992 allowed the petitioners to make payment of the dues in monthly installments of Rs,35,000 which were to be paid on or before 12th of every month. It appears that monthly installments, as above, were not paid by the petitioners and respondent No,4, by letter dated 2-3-1994, directed the petitioners to pay the installments within three days, which order was also not complied with. Instead, the petitioners informed the respondent No,4 in their letter dated 2-3-1994 as follows:-- "(3) That the learned Hon'ble Chairman/Tribunal overruled our objection and proceeded with the case and passed order on 16-12-1993.
(4) That the judgment dated 16-12-1993 passed by the Hon'ble Tribunal is for the whole amount of loan outstanding plus mark-up accrued thereon, inclusive of the outstanding balance/installments which was payable under the Land Revenue Act.
(5) That the judgment of the Hon'ble Banking Tribunal for Karachi supersedes the order of the learned Assistant Commissioner (S) unless and until set aside or stayed by a superior Court."
4. The provisions of subsections (4), (5) and (6) of section 6 and section 9 of the said Ordinance, which have been challenged in this petition are as follows:---
(4) Upon the defendant failing to file a reply within the time given in the show-cause notice under subsection (2) or upon rejection by the Banking Tribunal of the plea taken by him in the reply, the Banking Tribunal shall pass a decree in favour of the banking company as prayed for in the plaint.
(5) In the event of Banking Tribunal passing a decree against the defendant failing to give a reply to the show-cause notice within the period specified in subsection the Tribunal may, on the application of the defendant file within thirty days of passing of the decree, set aside the same and permit the defendant to file his reply under that subsection provided it is satisfied that there was sufficient cause for the defendant not having filed the reply within the specified period.
(6) All suits filed in the Banking Tribunal shall be disposed of within ninety days of the filing of .The plaint and, in case the proceedings continue beyond the said period, the defendant shall be asked to furnish a bank guarantee acceptable to the Banking Tribunal to the extent of the claim in suit and, on failure of the defendant to furnish such bank guarantee within a period of fifteen days, the Banking Tribunal shall pass a decree in favour of the banking company as prayed for in the plaint: ' Provided that, where the claim of the banking company is based on default of the defendant in payment of agreed instalments, the bank guarantee shall be to the extent of the amount of installments in default: ' Provided further that, in case the proceedings continue beyond a further period of one hundred and twenty days, the defendant shall deposit with the Banking Tribunal in cash the amount claimed in the plaint and, on failure of the defendant to make such deposit within fifteen days, the Banking Tribunal shall pass a decree in favour of the banking company as prayed for in the plaint.
9. Appeal.---(1) Any person aggrieved by an order of the Banking Tribunal passed under subsection (4) or subsection (5) of section 6 or a decree or sentence passed under this Ordinance may, within thirty days of such order, decree or sentence, prefer an appeal to the High Court: ' Provided that no appeal filed by the defendant against a decree shall be entertained unless the defendant has deposited with the Banking Tribunal the amount claimed in the suit under subsection (6) of section 6 or the decretal amount: ' Provided further that, where the claim of the banking company is based on the default of the defendant in payment of agreed instalments the deposit shall be to the extent of the amount of installments in default.
(2) An appeal under subsection (1) shall be heard by a Bench of not less than two Judges."
5. Mr. Salim Salam Ansari learned counsel for the petitioners contended that, in view of Articles 2A, 4, 18, 23, 24 and of the Constitution of Islamic Republic of Pakistan, the above-quoted provisions of the Ordinance are violative of the fundamental rights, guaranteed in the Constitution, as such, are ultra vires and the proceedings taken thereunder are of no legal effect. It is true that any law, under Article 8 of the Constitution, which is inconsistent or in derogation of the fundamental rights, to the extent of such inconsistency shall be void. The Constitution, however, is to be read as whole giving every Article its meaning which shall be consistent with other Articles of the Constitution. Articles 270-A and 270-B were inserted by P.O. No,14 of 1985. Article 270-A was substituted by Act XVIII of 1985 with effect from 30-12-1985. Under Article 270-A of the Constitution, all laws made between 5th July, 1977 and 30-12-1985 were affirmed, adopted and declared, notwithstanding any judgment of any Court, to have been validly made by competent Authority and notwithstanding anything contained in the Constitution shall not be called in question in any Court on any ground whatsoever. The Ordinance, which came in force from 31-12-1984, is covered by Article 270-A and has complete protection from being examined regarding its validity on any ground whatsoever.
6. Further, said Article also conferred validity on the contents of the provisions of the Ordinance.
7. ' In the case of Muhammad Bachal Memon v. Government of Sindh PLD 1987 Kar. 296, which was heard by a Full Bench of this Court consisting of five Judges, the scope of Article 270-A was examined and the unanimous conclusion was as follows:--- "Sub-clause (1) of this Article provides a blanket cover in respect of all the laws, Martial Law Orders, Martial Law Regulations, enactments etc., made or issued between 5-7-1977 and 30-12-1985 and these laws are affirmed to have been validly made in spite of any judgment of any Court to the contrary or in spite of anything contained in the Constitution and it is clearly provided that they shall not be called into question on any ground whatsoever. It, therefore, appears to be clear that the parliament intended to provide complete cover in respect of these laws and wanted to save them from being challenged in any manner. The purpose obviously was to avoid any chaos or confusion because if all these laws which have been made during this period were allowed to be challenged, then the basis of the rights and liabilities which had accrued in pursuance of these laws, would have been disturbed and the same would have created a great deal of difficulty and upheaval. The laws are, therefore, completely saved from the scrutiny of the Courts and nothing which is contained in the present Constitution can be made a test or basis for challenging these laws. We have already held in another Full Bench case of Nazar Muhammad Khan (PLD 1986 Kar.
8. 516) that the validity of the laws including Martial Law Regulations and Martial Law Orders made between 5-7-1977 and the date on which the Article 270-A came into force i.e, 30-12-1985 could not be questioned. We had arrived at that decision after considering the various authorities of the Supreme Court of Pakistan, starting from State v. Ziaur Rehman (PLD 1983 SC 457). The counsel for most of the petitioners have not challenged the vires of any Martial Law Order or Martial Law Regulation in these petitions."
9. ' It was also held that under Article 270-A, Acts, or Orders, which were without jurisdiction or proceedings which were quorum non judice could be challenged.
10. ' The scope of Article 270-A was also examined in the case of Malik Ghulam Mustafa Khar v.
11. Pakistan and others PLD 1988 Lah. 49 by a Full Bench consisting of three Judges of Lahore High Court. It was observed that purpose of Article 270-A (i) was to validate the legal measures enacted during Martial Law notwithstanding 'any Constitutional defect. Jurisdiction of the Courts was completely ousted to question the vires of said legal measures. It was also held that ouster clause completely debarred the Courts from pronouncing upon the constitutionality of said legal measures. Also, it was held that with regard to orders passed, proceedings taken and Acts done in exercise of the powers derived from said legal measures High Court's jurisdiction was limited to qoram non judice, without jurisdiction, malice in law, and violation of the Constitutional provisions.
12. ' The point was also examined by the Supreme Court in the case of 14 appeals, including of Malik Ghulam Mustafa Khar, disposed by the judgment in the case reported in PLD 1989 SC 26, wherein it was held that clause (1) of Article 270-A gave blanket protection to all the laws made during the period in question and their validity could not be questioned before the superior Courts on any ground whatsoever.
13. Thus, it is clear that the validity of the provisions of the Ordinance cannot be questioned on any ground whatsoever. Before striking down the provisions of the Ordinance, the Article 270-A would itself have to be struck down and the Courts being creatures of the Constitution are bound to act within limitations imposed by the Constitution, as such, cannot declare any provisions of the Constitution as invalid. In the case of Sabir Shah v. Shad Muhammad Khan PLD 1995 SC 66 (relevant page 190) the following has been observed: "The conflict in the provisions of the Constitution should not be assumed and if apparently there seems to be any, it has to be interpreted in a harmonious manner by which both the provisions may co-exist. One provision of the Constitution cannot be struck down being in conflict with the other prevision of the Constitution. They have to live together, exist together and operate together."
14. ' Learned Deputy Attorney-General Mr. Ikram Ahmed Ansari has contended that the similar pleas raised in this petition were considered and repelled being untenable and misconceived by a Division Bench of this Court in the case of M/s. Sindh Glass Industries Ltd. And 4 others v. Pakistan through Secretary, Ministry of Justice and Parliamentary Affairs and others 1989 CLC 524, wherein it was contended that the Ordinance was ultra vires the powers of the Federal legislature inasmuch as the Tribunal could not have been constituted and that the provisions of the Ordinance were violative of the fundamental rights guaranteed in the Constitution. He also submitted that, having taken into consideration Articles 175 and 212 of the Constitution and the cases Mir Rahman Khan and another v. Sardar Asadullah Khan and 14 others PLD 1959 Quetta 52, Fauj Din and others v.
15. Akhtar Mahmood Khan and others PLD 1988 Lah.
352. Iftikhar Ahmed v. Muslim Commercial Bank Ltd. And another PLD 1984 Lah. 69 and sections 4, 6, 7 and 12 of the Ordinance, it was held that it was not the cocomposition of a Tribunal which determined the nature of work, but it was the work which was entrusted to the Tribunal, and the procedure provided to dispose of the same was material for determining the nature of work. It was also observed that entry No,3 read with entry No,2 of the concurrent legislative list provided the requisite powers to the Federal Legislature to legislate the Ordinance, and therefore, the same was intra vires of the Federal Legislative poweRs, It was also observed in the above-cited case that the provisions of the Ordinance were not violative of the fundamental rights guaranteed in the Constitution. We are also of the same view as has been expressed in the above-cited case.
16. ' Mr. Salim Salam Ansari next argued that the Tribunal not being covered by Article 212 of the Constitution, it could not decide and proceed with the judicial matters it was dealing with.
17. Complete answer to this contention is also found in the above-cited case (1988 CLC 524). Having taken into consideration various cases including some from Indian jurisdiction i.e, Hari Nagar Sugar Mills Ltd. v. Shaman Sundar Jahanwala and others AIR 1961 SC 1969, Engineer Mazdoor Sabha and others v. High Cycle Ltd. AIR 1963 SC 874 it was observed that there was no clear-cut demarcation between a "Judicial Court", and a "Judicial Tribunal" and in fact both are synonymous and are engaged in discharging the functions of the State are that Tribunal constituted by the Federal Legislature was intra vires of the Federal Legislative powers, Learned counsel for the petitioners was not able to satisfy us that in what way the point raised by him was different from the point adjudicated in the said case.
18. In the last Mr. Salim Salam Ansari contended that on the principle of res judicata the respondent No,1 could not pass the impugned judgment and decree as that the matter was already decided by the respondent No,4 and the petitioners were directed to deposit the dues @ Rs,35,000 p.m. The contention is devoid of any force. Suffice it to say that claim of the Bank was not directly and substantially in issue before the respondent No,4 nor legally he was competent to pass any decree.
19. The only question before him was of recovery, as arrears of Land Revenue, the amount which then had accumulated due to non-payment of the agreed monthly installments. So, this plea is also without any substance.
20. ' In consequence, we do not find any merit in this petition, and the same is dismissed in limine.
21. ' Consequently, C.MA. No,6585 of 1994 is also dismissed.