' Petitioner availed agri-loan facility from Agricultural Development Bank of Pakistan between the period 21-6-1988 to 17-6-1998 and obtained loan amounting to Rs,5,37,920. The amount has been utilized by the petitioner and he claimed that he paid a sum of Rs,5,96,033 to the Agricultural Development Bank of Pakistan meaning thereby that he paid Rs,58,113 as mark-up or interest to the Bank. The petitioner now is of the view that Bank is not entitled to recover the amount of Rs,1,50,000 which the bank was demanding as the same was Riba and could not be recovered in view of the Injunctions of Islam. The under-consideration petition was submitted with the following prayers:--
(1) That section 15 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances)
Act, 1997 is unlawful, illegal and ultra vires of Constitution of Islamic Republic of Pakistan, 1973.
(2) A direction may please be issued to the respondents in the light of Ayyat 280 of Surah Baqra of Holy Qur'an for granting the time of ease and to waive the mark-up and in the alternative honour the incentive already offered by the respondents.
(3) Those respondents be restrained from recovery of the disputed amount from the petitioner through coercive measures.
(4) That the respondents may please be directed to extend the same and equal treatment as meted out to others vide B.P.R.D. Circular Letter No,19, dated 5-6-1997 whereby the respondent- bank is entitled to only 5% above the principal amount on the basis of consistency, equality etc.
(5) Any other order or direction which may appear to be just and proper may also be passed or issued in favour of the petitioner.
(6) The cost of the petition may also be warded to the petitioner.
(7) And as an interim relief this honourable Court may be pleased to restrain the respondents from affecting recovery of interest amount from petitioner by any measure till final disposal of the petition by this Honourable Court."
2. Report and parawise comments were called for from the Agricultural Development Bank of Pakistan. Report has been submitted. It has been submitted by respondents that they were proceeding in the matter under sections 24 and 25 of Agricultural Development Bank of Pakistan Ordinance, 1961, section 15 of Banking Companies (Recovery of Loans, Advan. Cs, Credits and Finances) Act, 1997 which was promulgated on 2-6-I winch provisions of law were valid and operative and nothing illegal was being .One by the respondents.
3. Learned counsel for the petitioner has been heard in the matter. He has re-affirmed the discourse contained in the petition. Learned counsel also relied upon PLD 1996 Lah. 672, 1997, SCMR 1992, 1998 SCM R 1899 in support of various contentions raised.
4. Article 199 of the Constitution of Pakistan reads as under:-- Article 199.--- (1) Subject to the Constitution, a High Court, may, if it is satisfied that no other adequate remedy is provided by law--
(a) on the application of any aggrieved party, make and order--
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with be affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or
(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing function in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; of
(b) on the application of any person, make an order--
(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in a unlawful manner; or
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or
(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction or that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II.
(2) Subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II shall not be abridged."
By virtue of above provisions, the High Court exercised jurisdiction in cases of non-feasance, malfeasance and misfeasance of public functionaries. Since errors of omission and commission are addressed while acting under Article 199 of the Constitution, the jurisdiction exercised by High Court is forensic in nature and not expropriator as High Court is not required or called upon to substitute its orders for that of the public functionaries, or assume the functions of lower tribunals or decision-makers.
5. The jurisdiction vesting in High Court also comes into play where enforcement of fundamental rights enumerated in Chapter 1 of Part II of the Constitution is required. While exercising powers in this regard, the High Court cannot only, scrutinize the legality and reasonableness of orders or decisions of any decision-maker but can also subject the legislation qua its vires to its judicial review. The constitutionality of legislation, legality and rationality of executive Orders and conformity by Tribunals with substantive and procedural due process are subject-matters of judicial review of High Court under Article 199 of the Constitution. The law and the precedent do not envisage any other role for the High Court in this context.
6. Article 2A of the Constitution is embodiment and expression of a resolve and desire by the State and the nation. It is not a prime-mover for other Articles of the Constitution. The petitioner has been unable to show or establish that the position was otherwise. By virtue of Article 228 of the Constitution, the Council of Islamic Ideology has been assigned a special advisory role which is to give effect to provision of Article 227(1) of the Constitution. Provisions of Chapter 3-A of Part VII of the Constitution create a special jurisdiction for examination of vires of various laws (but not executive orders, decisions or actions) in the light of Injunctions of Islam and an existing law can be declared to be repugnant to Injunctions of Islam to the extent of repugnancy in the law or any provision thereof, with effect from a date in future. It is not the case of the petitioner that sections 24 and 25 of the Agricultural Development Bank of Pakistan Ordinance, IV of 1961 and section 15 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act XV of 1997 are dead wood today on account of any pronouncement of forum created under Chapter 3-A of Part VII of the Constitution. In the presence of special jurisdiction, this Court in exercise of powers in general jurisdiction cannot examine the vires of aforementioned provisions, as is being desired by the petitioner. The petitioner also relied upon provisions of sections 3 and 4 of the enforcement of Shariah Act, X of 1991 to urge that the Civil Courts were required to interfere and to apply law in the light of Islamic Injunctions. Economy of the country is to be Islamized according to section 8 of the Act and till that end is achieved current financial system is to hold the field. International financial obligation till the evolvement of alternative economic system, under section 18 of the Act, are to be discharged fully and existing financial obligations, by virtue of provisions of section 19 which validates all contracts or instruments made in this behalf have to be discharged in accord with existing laws. The petitioner cannot claim benefit of any provision of Act, 1991 moreover such a ground is to be urged in proceedings before a lower Tribunal or Court in the first instance and in case of failure in exercise of jurisdiction by that Tribunal judicial review can be sought for of the decision rendered. The petitioners claim that bank was demanding payment of 'Riba' is based on national thinking. There is no determination by an adjudicatory forum that the amount due to bank was 'Riba'.
7. Verse 58 of Sura Al-Nisa ordains as under:-- "Verily, Allah commands you to give back the trusts to their rightful owners and when you judge between people, judge with fairness. Surely, excellent is the counsel which Allah gives you. Allah is He who hears and observes all." (Holy Qur'an 4:58).
' Allama Rashid Raza in his renowned exigencies of Holy Qur'an "Tafseer Al-Manaar" based on the teachings of Mufti Muhammad Abdou says that this verse of the Holy Qur'an would suffice to work as a "grand norm" and Constitution of an Islamic State, a code of conduct for nations and a complete guide for a pious and a rightful living for the people. In exercise of powers, in discharge of functions, in performance of duties religious or worldly, in dealing with other whatever the trust or due might---whether material or non-material tangible or otherwise, legal or moral has to be given to one to whom it is due. According to Allama Rashid Raza, trust, occurring in the Holy verse, has been used in the widest possible commotion and includes every conceivable obligation towards others. Discharge of liability having been ordained 1)y Allah the Almighty is obligatory for every Muslim. And escape from redeeming a pledge cannot be permitted on any pretext.
8. Agricultural Development Bank of Pakistan is dependent on international monetary agencies and DFIs for its funds. These funds do not come for the free. The Bank has to pay mark-up and interest on the funds so acquired. Where a loan is advanced by Bank to a person, the Bank expects some return on the funds advanced to that person. The petitioner entered into a lawful contract with the Bank according to a valid law in existence at the relevant time, with his free consent and without coercion. That contract is still in existence and is enforceable in accordance with valid existing law of the land. It is not the case of the petitioner that the Bank was charging or trying to recover from the petitioner certain amounts of money over and above what was agreed to between the parties at the time of signing of the contract, therefore, he cannot urge any grievance in respect of recovery of amount due from him. The petitioner should discharge his contractual liabilities in accordance with law. The respondents are not doing anything which is forbidden by law to do. The prayers made by petitioner, therefore, cannot be considered.
9. Dismissed in limine.