JUSTICE KHALIL-UR-REHMAN KHAN (CHAIRMAN).--- The appeal filed by the Federation against the judgment of Federal Shariat Court declaring statutory provisions relating to interest (sood), repugnant to Injunctions of Islam contained in Holy Qur'an and Sunnah of the Holy Prophet (peace be upon him), is sought to be withdrawn by moving this application, stating that the Government has decided to withdraw the appeal for the reasons set out in a petition which is simultaneously being filed in the Federal Shariat Court and the contents whereof may be treated as part of this application.
2 The grounds taken and the pleas urged in the attached petition submitted to Federal Shariat Court. Inter alia, are:-
(i) that despite the passage of almost five years, the said appeals have not been disposed of and the matter is lingering on indefinitely;
(ii) that the Government has come to the conclusion that allowing its appeal to remain pending in the Supreme Court would merely delay the Islamization of the laws relating to Riba for an indefinite period, which would not be in consonance with its declared aims and objectives;
(iii) that the Government respectfully seeks that parameters and guidelines be laid down by this Honourable Court within which, and in compliance with the requirements whereof, the Government can then move the necessary legislation for the compliance of its constitutional duty and obligation to enforce a truly Islamic legal system; and
(iv) that very serious issues of the utmost importance having a close and intimate bearing on Pakistan's obligations both to foreign lenders as well as in relation to the functioning of the Banking system in the country, including lending to pay foreign debt, inflation, indexation etc. Are involved and the Government seeks guidance of the Court (i,e, Federal Shariat Court) in the shape of laying down the guidelines on the basis of which the Government can comply with its solemn commitments within the framework of Islamic Injunctions. It is also stated that Government seeks specific parameters and guidelines so as to enable banking and other related laws to be recast in such a manner that they conform strictly to the stipulations of Islam.
3. With these averments, besides seeking guidelines following which the Government, remaining within the framework of Islamic Injunctions can meet its commitments, a further period of two years has been sought for the introduction of Islamic system.
4. Maulvi Anwarul Hague, Deputy Attorney General in support of the application submitted that Order XXXV of the Supreme Court Rules, 1980 deals with the appeals and petitions under Article 203-F of the Constitution and Rule 1 thereof provides that provisions contained in other Orders and Rules relating -to civil and criminal appeals/petitions etc. Mutatus mutandis apply to appeals etc. Filed under Article 203-F, subject, of course, to other provisions of this Order. So Order XV which deals with withdrawal etc. Of appeals equally applies to the Shariat Appeals and an appellant has a right to withdraw the appeal, if appellant so chooses not to pursue it. According to learned Deputy Attorney General, this right of an appellant in a civil cause to withdraw cannot be denied. In this respect reference was made to B.Z.Kaikaus v. Federal Government of Pakistan and others (PLD 1982 SC 409). In this Shariat Appeal, it was held that, "the appellant has a right to abandon his appeal and not to pursue it; that the Court cannot prevent it. This in law also amounts to withdrawal thereof, It was further observed that it is not necessary to go into the motive as to why the appellant has done.
5. Mr. Ismail Qureshi, Advocate, who represents some of the respondents in the connected appeals, opposed this application and states that the purpose of withdrawing the appeal and taking the matter before the Federal Shariat Court is to cause further delay in the implementation of the Qur'anic Injunctions relating to elimination of Riba. According to him Federation of Pakistan having been cited as a respondent in the connected appeals has to present its point of view on the issues involved and in these circumstances the Federal Shariat Court cannot be approached for seeking guidelines which, in any case, can be sought from the Shariat Appellate Bench. Learned counsel submitted that moving of the application in the garb of seeking clarification or guidelines, in fact, amounts to committing contempt of the Supreme Court and contempt proceedings should be initiated against the relevant authorities suo moto.
6. We have given serious consideration to the request seeking permission to withdraw the Shariat Appeal. Rule (1) of Order XV of the Supreme Court Rules, 1980 which applies by virtue of the provisions of Rule (1) of Order XXXV of the Supreme Court Rules, reads as under:- "When an appellant desires to withdraw his appeal he shall make an application to that effect to the Court. The costs of the appeal and the security, entered into by the appellant, if any, shall then be dealt with in such manner as the Court may deem fit."
7. A cursory glance on the above rule shows that it does not talk of grant of permission to withdraw an appeal. The object of the rule is to deal with the question of costs, evidently on the assumption that the appellant has a right to withdraw his appeal any time. Without express provision the right to withdraw a civil appeal implied from Rule (1) cannot extend to the withdrawal of criminal appeal and it is for this reason that this Court has held in many cases that a person who brings an appeal from an order of acquittal of the respondent, with the leave of the Court, does not have the right to abandon the appeal at his will, as such a course is opposed to public policy and is unwarranted both by the rules and practice of the Court. Such an absolute right to withdraw cannot be inferred with respect to a Shariat appeal also in view of the nature of the controversy involved in a Shariat appeal as well as in view of the provisions of the Constitution of the Islamic Republic of Pakistan and Rule (5) of Order XXXV of the Supreme Court Rules, 1980. Rule (5) of.Order XXXV of the Supreme Court Rules, 1980 reads as under:-- "An appeal filed against the final decision of the Federal Shariat Court under Article 203-D of the Constitution shall not be dismissed on account of absence of the appellant nor shall it abate in the event of the death of any of the parties to it." Clause (6) of Article 203-E of the Constitution of the Islamic Republic of Pakistan, 1973 reads as under:- "A legal practitioner or jurisconsult representing a party before the Court shall not plead for the party but shall state, expound and interpret the Injunctions of Islam relevant to the proceedings so far as may be known to him and submit to the Court a written statement of his interpretation of such Injunctions of Islam."
8. It may be noted that provisions contained in clauses (4) to (8) of Article 203-E of the Constitution apply to the proceedings before the Supreme Court as well, by virtue of clause (2) of Article' 203-F of the Constitution. Moreover, it is bounden duty of the Government, as is claimed in the application itself, to eliminate Riba with a view to comply with its commitments. The avowed purpose of withdrawing the appeal is to enable the Federal Shariat Court to provide guidance on the issues raised in C the petition but the same cannot be achieved as the appeal sought to be withdrawn is not the only appeal pending before the Shariat Appellate Bench. There are 75 other appeals filed by the Banks, Financial Institutions and others, and due to pendency of these appeals, the Shariat Appellate Bench shall remain seized with the matter and the matter being sub judice before this Court cannot be simultaneously taken up by, the Federal Shariat Court. Learned Deputy Attorney- General was unable to show as to how and under what provision of law the Federal Shariat Court can entertain the petition presented to it. Moreover, the inference that the appellant in a civil litigation has a right to withdraw his appeal at any time is based on the principle that by withdrawing the appeal the appellant naturally accepts the judgment appealed against and to such acceptance the respondents in the appeal can have no objection. But that is not the situation here as on query learned Deputy Attorney General stated that withdrawal of the Shariat D Appeal from the Shariat Appellate Bench does not amount to acceptance of the judgment passed by the learned Federal Shariat Court as the Government/Federation of Pakistan has certain reservations against the impugned judgment and is seeking guidelines for implementing the judgment and for introducing changes in the Banking system etc.
9. As to the pleas that the appeal has not been disposed of for a period of almost five years by the date of filing of the application for withdrawal of appeal i,e,1-7-1997 and that the Government is of the view that by allowing its appeal to remain pending, the process of Islamisation of laws relating to Riba will be delayed for an indefinite period, learned Deputy Attorney General was asked as to whether the Government in all this period submitted any application for fixing of the appeal or even the application seeking withdrawal of appeal since the date of its filing. The fact of the matter is that instead of seeking hearing of the appeal itself or the application seeking withdrawal of appeal, the Government has been causing delay in hearing of the appeal as at one time the then Government denitrified the appointment of two Ulema who had been appointed to attend sittings of the Bench as ad hoc members of the Shariat Appellate Bench. Then, one of the Ulema members of the Bench remained sick for quite some time and it was only after his demise that appointment of another learned member was made thereby making possible the constitution of Shariat Appellate Bench. It was on account of these reasons that the Shariat Appeals could not be disposed of early and now when the appeals have been fixed, the Federation is seeking permission to withdraw the appeal so as to approach the Federal Shariat Court for guidelines and to obtain a further period of two years for introducing the Islamic Banking system in accordance with the guidelines which will be provided by the Federal Shariat Court.
10. Learned Deputy Attorney General was unable to inform us as to the steps, if any taken by the Government itself for introducing the necessary changes in the financial and the Banking system to bring the same in conformity with the Injunctions of Holy Qur'an and Sunnah of the Holy Prophet (Peace be upon him). It is primary obligation of the Federal Government coming into power from time to time to transform the present system according to the Injunctions of Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.) and so it is obligatory for the Federation which, in any case, is a party to the connected appeals as respondent to provide all assistance necessary to resolve the intricate issues involved in the Shariat Appeals. Even as a respondent, a party, specially the Federation of Pakistan/Government, is required under clause (6) of Article 203-E of the Constitution of the Islamic Republic of Pakistan to assist the Court truly and effectively so that the Injunctions of Islam are explained, expounded and interpreted. We have already directed the Federal Government to nominate its experts to render assistance to this Court. The Government on account of its public announcements stands committed to eliminate Riba and introduce economic and banking system according to the Injunctions of Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.).
11. As regards the last plea to initiate contempt proceedings, suffice it to say that real issues involved in the matter should receive our attention rather than the side issues, which may or may not be arising. The Government, in any case, is before us and is bound to take a definite stand in the matter. Therefore, we are not persuaded to entertain this plea.
12. For the reasons given above, the application (SMA NO.708 of 1998) seeking withdrawal of Shariat Appeal is rejected. The above are the reasons for our short order dated 24th February, 1999.
(Sd.)
Justice Khalil-ur-Rehman Khan, Chairman.
(Sd.)
Justice Munir A. Sheikh, Member. Agreeing, I have respectfully added a short note.
(Sd.)
Justice Wajihuddin Ahmed, Member.
(Sd.)
Justice Maulana Muhammad Taqi Usmani, Member.
(Sd.)
Justice Dr. Mahmood A. Ghazi, Member. JUSTICE WAJIHUDDIN AHMED (MEMBER).---Having had the advantage of going through the reasons, ascribed by the learned Chairman for the short order of dismissal of S.M.A. No,708 of 1998 and fully agreeing with the same, I consider it necessary to add a few words in the way of further reasons for the short order above mentioned. The referred S.M.A. Was filed on 30-6-1997 and does not seem to have been diligently pursued with the result that the same could be registered only in 1998. It is a very short application and proceeds, ,thus:--- "(1) That the Government has decided to withdraw the present case for the reasons set out in a petition which is simultaneously being filed in the Federal Sb, Fiat Court and the contents whereof may kindly be treated as part of the present application. Copy annexed.
(2) It is, therefore, prayed that this Honourable Court may be pleased to allow the Government to withdraw the present appeal."
Since the reasons for seeking withdrawal are to be found in the application stated to have simultaneously been filed before the Federal Shariat Court (FSC), copy whereof is annexed, note thereof has not been taken in the main order. It is, however, significant that the application to the FSC is filed under Article 203-D rather than Article 203-E(9) of the Constitution, which has specifically conferred power of review on the Federal Shariat Court relative to any decision given or order made by it. The normal principle, on the other hand, is that a party cannot simultaneously seek review from the same forum, which decided a case and pursue and appeal before a higher forum. It has to choose its remedy. Obviously, because the present appeal had been preferred and the same remained pending for no less than five years, the Federal Government had irretrievably chosen its remedy as such and the application as above to the Federal Shariat Court was hardly warranted. Even so, while affirming the primacy of Islamic Law and submitting to the Islamic Injunctions pertaining to Riba, the Federal Government in its referred application to the FSC proceeded to state that the judgment of the FSC affecting Riba was rendered only by three Judges of the Court and that the application lately filed by the Federal Government by heard either by the entire Court or by at least five Judges of the FSC. The application in question correspondingly proceeded to paint a virtual dooms-day scenario concerning the effect of the Federal Shariat Court judgment, in words which need to be reproduced as below:--- "11. That it is necessary to point out that very serious issues of the utmost importance having a close and intimate bearing on Pakistan's obligations both to foreign lenders as well as in relation to the functioning of the Banking system in the country are raised in the present case. By way of illustration, some of the salient issues are set out in the succeeding paras. Infra for purposes of elucidation.
12. That, as is widely known, Pakistan's obligations to foreign Governments and international agencies run into billions of dollars. These obligations have to be serviced by periodical repayments on a continuing basis. Since the present condition of the national economy is not such that these repayments can be made out of the Government's own resources, further assistance is sought internationally by the Government for the discharge of its contractual and legal obligations.
Thus, every year further loans are taken from foreign Governments and international agencies to enable the Government to repay loans which have been taken in the past. In the event that the Government defaults in the discharge of its obligations, the result will be: Firstly, that Pakistan will be declared as a defaulter in international markets. Secondly, Pakistan will not be able to obtain any further foreign loan or credit. Thirdly, not merely foreign Governments and international lending agencies will refuse to extend credit facilities to the Government but even foreign commercial banks will refuse to advance any money to the Government, Fourthly, letters of credit which are opened by Pakistani Banks to enable the import of goods will no longer be acceptable abroad. In consequence, the import of goods into the country will be drastically, and perhaps critically, reduced. In particular, this would have a direct impact and bearing on the import of wheat, edible oil, petroleum and oil, as well as other commodities. Fifthly, quite apart from the adverse impact on the Government, commercial and industrial companies operating in Pakistan would find it almost impossible to import capital goods and machinery for further industrialization of the country. Similarly, the import of raw materials to allow the continued functioning of plants and factories in the country would be adversely affected.
14. That the above are some of the implications of the Government defaulting in its obligations. The importance given in the Holy Qur'an and Sunnah to the honouring of solemn commitments is well known. At the. Same time it is imperative that the requirements of rslam for, and in relation to, the elimination of Riba should also be complied with. It is for this reason that the Government respectfully seeks the guidance of this honourable Court in the shape of laying down the guidelines on the basis of which the Government can then comply with its solemn commitments within the framework of Islamic Injunctions." Having recast the background as above, it would be pertinent to identify here the declared object of seeking withdrawal of the appeal from this Court and filing of a simultaneous application by the Federal Government before the FSC. Such was as under:--- "(18) That the Government seeks authoritative answers to these fundamental issues which will enable it to comply with its international and domestic obligations while remaining firmly within the frame work of Islamic Injunctions. In other words, the Government seeks a workable solution which will prevent the country from becoming an international defaulter and will also allow the functioning of the Banking system in any shape or form which may be sanctioned by the Injunctions of Islam, It is for these reasons that the Government seeks specific parameters and guidelines so as to enable banking and other related laws to be recast in such a manner that they conform strictly to the stipulations of Islam." To attain the stated objective the following relief was said to have been claimed by the Federal Government from the FSC:--- "It is, therefore, prayed that this Honourable Court may be pleased-
(a) to constitute a larger Bench for the purpose enunciated in the above,
(b) to allow a time period of two years for the introduction of a truly Islamic system in accordance with the guidelines laid down by this Honourable Court.
(c) Pass such interim or other orders as may be deemed appropriate in the interest of justice."
The most significant aspect of this matter is that the process of Islamization and concomitant elimination of Riba from the polity of Pakistan has now been going on for almost two decades. A good deal of work has been done over the years in such directions and besides individual efforts institutional exercises have been continuously undertaken. What is more, the impugned judgment of the F.S.C., which the Federal Government accepts in one breath and does not implement in the other, itself lays down the methodology of implementation. It needs to be pointed out here that while an appeal from a Federal Shariat Court judgment, 'declaring any law or provision of law as repugnant to the Injunctions of Islam, precludes such< judgment to take effect before the disposal of the appeal (proviso to Article 203-D(2) of the Constitution), there is no bar on the Federal Government or the Federal legislature or on their provincial counterparts to act upon the Injunctions of Islam on their own. None of this seems to have been done at any level either during the period of five years before the making of the applications to this Court and to the F.S.C., nor during the period of (almost) two years, which had been sought from the F.S.C. No less significant is the fact that none of the functionaries has put up either in this Court or in the F.S.C. Its own modalities for ensuring the elimination of Riba from the Islamic Republic of Pakistan. This, I may add here, should now be done by the Government and the other (State run) appellants before this Court while their appeals are pending so that the methodology which has found favour with the F.S.C., can be more closely examined with reference to all other points of view.
Having said as much, this has not been found to be a fit case either on the factual or the legal plane to allow withdrawal of the instant appeal. As observed by the learned Chairman and manifested in Article 203-E(6) of the Constitution the proceedings before the F.S.C. Or in appeal before this Court are not partisan proceedings and even parties are required to state, expound and interpret the Injunctions of Islam impartially and without any ill motive. Besides, as already pointed out in the main order, under Order XXXV, Rule 5 of the Supreme Court Rules, I 1980, an appeal filed against the final decision of the F.S.C., under Article 203-D of the Constitution cannot be dismissed even on account of absence of the appellant nor can it even abate in the event of death of any of the parties, provisions which are a clear departure from routine appeals in the Supreme Court as well as in other for a. Thus, allowing withdrawal of this appeal has not been nor could conceivably be a routine or mechanical exercise.
Seen in the above perspective, no case for withdrawal of the Shariat appeal was made out and S.M.A. No,708 of 1998 was dismissed for reasons appearing in the main order together with those added hereinabove.