' Through this judgment, I propose to dispose of Writ Petitions Nos.1686 of 2001, 1156 of 2001, 1684 of 2001, 2524 of 2001, 2170 of 2001, 2824 of 2001, 3270 of 2001, 3452 of 2001, 9978 of 1999, 9668 of 1999, 11070 of 1999, 9052 of 2000, 9069 of 2000, 1850 of 2001, 8564 of 2000, 2490 of 2001, 2488 of 2001, 4702 of 2001, 2492 of 2001, 2494 of 2001, 536 of 2001, 7071 of 2000, 1554 of 2001, 1522 of 2001, 2113 of 2001, 8936 of 2000, 10446 of 1998, 5892 of 1998, 4580 of 1999, 11658 of 1998 and 5962 of 1998 as common question of law is involved in all these petitions.
2. Brief facts of the case are that the petitioners obtained loan under various schemes from the respondents, who are financial institutions through written agreement entered between the parties.
The grievance of the petitioners is that they are either ready to pay the principal amount or they have already paid but they are not ready to pay the interest/mark-up in view of the fact that the same has been declared un-Islamic by the Federal Shariat Court and also the Shariat Appellate Bench of Supreme Court of Pakistan reported as Dr. Aslam Khaki v. Syed Muhammad Hashim and others (PLD 2000 SC 225). It is also contended that under Article 2A of the Constitution this Court is obliged to declare the demand of the respondents about interest mark-up to be illegal.
3. On the other hand, the learned counsel appearing on behalf of the respondents contends that under Article 203(g) of the Constitution this Court has no jurisdiction to enter into Arena where it is required to declare any law repugnant to Injunctions of Islam, which is the exclusive jurisdiction of the Federal Shariat Court. So far as the judgment reported as PLD 2000 SC 225 is concerned it is pointed out that the target date given in said judgment is 30-6-2001, which is yet to come. It is also pointed out that in the said judgment the past and closed transactions like the cases in hand are protected, therefore, no relief can be granted to the petitioners in these cases. It is further submitted that if the petitioners are aggrieved they have an alternate remedy by approaching the Banking Courts under section 9 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. According to the learned counsel, the petitioners are covered under sections 2(c) and 2(d) of the said and Act are not entitled to approach this Court, therefore, since they are having an alternative remedy, cannot seek relief from this Court.
4. I have heard the arguments of the learned counsel for the parties and perused the record.
5. In a recent judgment reported as Muhammad Ramzan v. Citi Bank N.A. (2001 CLC 158). The Division Bench of this Court had held that:-- "Similarly the contention of the learned counsel of the appellants that section 15 is against the Injunction of Islam has no force by virtue of Article 203-G of Constitution qua the same 'relief. The appellant has alternate remedy to agitate the matter before the Federal Shariat Court. The Hon'ble Supreme Court of Pakistan has held that no doubt interest/Riba is un-Islamic but past and closed transactions are not to be opened. It is admitted fact that agreement was executed between the parties before the judgment of the Supreme Court of Pakistan. It is settled proposition of law that judgment has prospective effect and not retrospective effect."
6. In another identical matter reported as Mrs. Farha Nasir v. Pakistan through Secretary to Government, Ministry of Economic and Commercial Affairs, Islamabad and 2 others (PLD 2001 Lahore 668) this Court has held that:-- "Petitioners have alternate remedies to file suit against the respondents under section 9 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. Therefore, writ petitions are not maintainable as per principle laid down by the Hon'ble Supreme Court in Muhammad Ismail's case (PLD 1966 SC 246)."
7. It is also settled law that contractual rights and liabilities cannot be enforced or allowed to be wriggled out through Constitutional petition. The petitioners had entered into agreement with their free-will, therefore, even under Islamic norms of justice, the petitioners are bound to honour their commitment/agreement. Reliance can be placed on Messrs Momin Motor Company v. The Regional Transport Authority, Dacca and others (PLD 1962 SC 108). Even the Hon'ble Supreme Court of Pakistan in an identical case reported as Muhammad Mumtaz Masud and 2 others v. House Building Finance Corporation and 2 others (1994 SCM R 2287) although before the decision of the Shariat Appellate Bench of the Supreme Court but after the decision by the Federal Shariat Court has observed as follows:-- "The grievance of the petitioners before the lower forums as well as before this Court is that in view of the judgment of the Federal Shariat Court reported as Dr. Mahmood-urRehman Faisal and others v. Secretary, Ministry of Law, Justice and Parliamentary Affairs, Government of Pakistan, Islamabad and others (PLD 1992 F.S.0 1) declaring interest as prohibited being repugnant to the Injunction of Islam, they are not required to pay interest on the loan secured by them from the respondent and muchless compound interest. The judgment of the Federal Shariat Court has not yet attained finality as appeal against it is pending disposal before the Shariat Appellate Bench of this Court. The petitioners secured the loan in question under a written agreement and are bound by the terms of the said agreement. There is no legal error in the discretion exercised by the lower forums in declining to issue the writ prayed for."
8. There is no denying the fact that the Riba is Haram not only today but since the time of Holy Prophet (peace be upon him) but at the same time our financial system/ institutions were being run under certain codified laws. The provisions of said statute have no doubt been declared against the Injunctions of Islam but at the same time the target dated 30-6-2001 had been fixed by the Hon'ble Supreme Court of Pakistan, till such time either that date passes or new financial system is introduced the law already governing the financial system shall have its course.
9. The bona fide of the petitioners is also questionable inasmuch as at the time when they entered into agreement with the respondent institutions, it is unbelievable that the petitioners did not know that the agreement, which they are entering into, is based on interest/mark-up which is not in accordance with Islam. Since they willingly and knowingly entered into those agreements, therefore, they are not entitled to wriggle out from those commitments/agreements/ liabilities under these circumstances. The said agreements were entered under a valid law which is still in force.
10. In this view of the matter and for what has been stated above, I find no merit in these petitions, which are accordingly dismissed, with no order as to costs.