CH. IJAZ AHMAD, J.- I intend to decide Writ Petition No. 265/99 alongwith following writ petitions having similar facts and law by consolidated judgment:-
1. W.P. No. 264/99.
2. W.P. No. 266/99.
3.. W.P. No. 267/99.
4. W.P. No. 10806/98.
5. W.P. No. 10085/98.
6. W.P. No. 11470/98.
2. The brief facts out of which the present writ petition arises are that the petitioners' father received a loan of Rs.2,34,000/- from the respondent bank and out of the principal amount Rs.46,000/- is still payable by him while the respondents are claiming Riba which is against the Injunctions of Holy Quran and Sunnah and Articles 2-A and 4 of the Constitution of Islamic Republic of Pakistan.
3. The learned counsel of the petitioners contended that interest has already been declared by the Federal Shariat Court against the Injunctions of Islam. He relied upon 1992 Federal Shariat Court
445. He further stated that by addition of Article 2-A it is the duty of every Court to decide controversy between the parties in accordance with the Injunctions of Islam. He relied upon N.L.R.
1993 Civil Law Judgments 104. The learned counsel of the petitioners in other writ petitions and Cr.
Misc. Have adopted the arguments advanced by the learned counsel Syed Iqbal Mehdi Zaidi, Advocate.
4. Ch. Saghir Ahmad, Standing Counsel for Pakistan contended that the petitioners obtained loan from the respondents and executed agreement with the respondents. The petitioners signed the agreement of their own free and sweet will arid agreed to repay the loan with interest, therefore, the petitioners are estopped to agitate the matter before this Court on the well-known principle of Estoppel and Waiver. He further stated that this Court has no jurisdiction to declare any provision of the agreement as well as provision of any Act against Injunctions of Islam. The petitioner has alternate remedy to agitate the matter that clause of agreement or provision of law is against Injunctions of Islam before the Federal Shariat Court. The other learned counsel of the respondents have adopted the arguments of the learned Standing Counsel. The learned Addl. Advocate General also adopted the arguments of the learned Standing Counsel and contended that the writ petition is liable to be dismissed by virtue of the conduct of the petitioners on the well-known principle of approbate and reprobate.
5. I have given my anxious consideration to the contentions of the learned counsel of the parties. It is admitted fact that the Federal Shariat Court in P.L.D. 1992 Federal Court 445) declared interest against the Injunctions of Islam. It is also admitted fact that the aggrieved parties have filed appeals before the Hon'ble Supreme Court which is pending adjudication, therefore, judgment of the Federal Shariat Court is held in abeyance by virtue of Proviso (2) of Article 203-D of the Constitution. I am also fortified by the judgment of Muhammad Mumtaz Masood's case (1994 SCM R 2287). It is also admitted fact that the petitioners in as much as they fully knew that giving and faking of 'Sood' was 'Haram' in Islam, when they applied for the loan, agreed to pay interest, received the loan with interest and utilized the same, so now at this belated stage when they have been asked to pay what they had agreed to pay, it does not lie in their mouth to refuse/avoid to pay the same on interest is against the Injunctions of Islam. I am fortified by the reported judgment of this Court in Ghulam Yasin's case (N.L.R. 1993 S.D. 196) and Inayat Ullah's case (N.L.R. 1992 Civil 145). It is also settled principle of law that State functionaries including judiciary is duty bound to act in accordance with law by virtue of Article 4 of the Constitution where the law is silent or no Statute is available then public functionaries including the judiciary has to exercise their power of dispensation of justice in accordance with the principle of Islam. I am fortified by the reported judgment in Massu's case (1990 M.L.D. 2304) and Raja Nasir Khan's case (P.L.D. 1998 Lahore 20). It is also settled proposition of law that Constitution should be read as a whole and interpreted harmoniously. I am fortified by the following judgments:- P.L.D. 1992 S.C. 595 HakamAli's case.
P.L.D. 1993 S.C. 473 Mian Nawaz Sharif s case.
By virtue of Article 203-G of the Constitution this Court has no jurisdiction to entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the Federal Shariat Court, therefore, writ petitions are not maintainable. I am fortified by the following judgments:- 1990 M.L.D. 2304 Massu's case.
P.L.D. 1992 S.C. 595 Hakam Ali's case.
1993 C. L.C. 129 Habib Bank Ltd. 's case.
1993 C.L.C. 706 Muhammad Islam's case.
1991 M.L.D. 863 M/s. Mumtaz Industries's case.
1991 C.L.C. 1705.
It is admitted fact as mentioned above that the petitioners submitting application for obtaining loan and the terms of the loan was also accepted by the petitioners alongwith terms of Agreement, to repay with interest, therefore, petitioners having no right to approbate and reprobate by virtue of his conduct as the principle laid down by the Hon'ble Supreme Court in Haji Ghulam Rasool's case (P.L.D. 1971 S.C. 376). It is also settled proposition of law that he who seeks equity must come with clean hands but the petitioners do not come with clean hands as the petitioners themselves signed the agreement, therefore, I am not inclined to exercise discretion in favour of the petitioners as the principle laid down by the Hon'ble Supreme Court and this Court in the following judgments:- P.L.D. 1973 S.C. 236 Nawabzada Raunak All's case.
1998 S.C.M.R. 1462 Rana Muhammad Arshad's case.
1990 C.L.C. 1783 G.M. Malik's case.
6. In view of what has been discussed above this writ petition has no force and the same is dismissed with no order as to costs.