' Through the filing of this Constitutional petition, the petitioner has in substance challenged the charging of interest/mark-up on the ground that the same is "Riba" which is prohibited under the Islam.
2. The facts of the case are that the petitioner availed financial facility for a sum of Rs,2,94,500 in the year 1991, but could not repay the instalments in time. According to the petitioner, although he has paid a sum of Rs,3,15,949 from time to time, yet the respondent-Bank has still raised a further claim of Rs,1,02,274 vide notice, dated 7-8-1998, which is against the instructions of State Bank of Pakistan as well as Injunctions of Islam, hence, the present Constitutional petition.
3. Nobody has entered appearance on behalf of respondents Nos.1 to 3, however, the respondent- Bank represented.
4. Learned counsel for the petitioner has contended that the interest/mark-up comes within the scope of riba, which has been declared as un-Islamic by the Federal Shariat Court in a judgment rendered in Dr. Mahmood-ur-Rahman Faisal and others v. Secretary, Ministry of Law, Justice and Parliamentary Affairs, Government of Pakistan, Islamabad and others (PLD 1992 Federal Shariat Court 1). Conversely, the learned counsel for the contesting respondent has opposed the issuance of any writ.
5. Admittedly, the petitioner obtained a loan facility from the respondent-Bank and must have executed some charge documents favouring Bank. Undoubtedly, the petitioner entered into agreement with his free-will, therefore, even under the Islamic norms of justice, the petitioner is bound to fulfil the contractual obligations and commitments undertaken through the execution of those documents. Reliance is placed on Messrs Momin Motor Company v. The Regional Transport Authority Dacca and others (PLD 1962 SC 108). Hon'ble Supreme Court of Pakistan in a case reported as Muhammad Mumtaz Masud and 2 others v. House Building Corporation and 2 others (1994 SCM R 2287) has held that "the petitioner secured the loan in question under a written agreement and is bound by the terms of the said agreement." It would be appropriate to refer the case of Syed Anwar-ul-Hussain v. District Manager, Small Business Finance Corporation Branch, Vehari and 2 others (2001 YLR 2741) wherein the aforesaid judgments have been referred and is apt to the facts and circumstances of the case.
6. So far as the only contention raised by the learned counsel in respect of charging of mark- up/interest, as the same is un-Islamic, is concerned, suffice it to say that this Court in view of Article 203(G) of the Constitution has got no power or jurisdiction, under the law, to determine the same as per principle laid down by this Court in the case of Muhammad Ramzan v. Citi Bank (2001 CLC 158). Furthermore, the Hon'ble Supreme Court of Pakistan in the case of Dr. Muhammad Aslam Khaki v. Syed Muhammad Hussain and 2 others (PLD 2000 SC 225) has held that no doubt interest/Riba is un-Islamic, but past an closed transaction cannot be re-opened.
7. Admittedly, the petitioner has got an alternative remedy to file a suit against the respondent- Bank under section 9 of Act XV of 1997, therefore, the writ petition is not maintainable in view of the principle laid down in Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore and 20 others (PLD 1996 SC 246) and Mrs. Farha Nasir v. Pakistan through Secretary to Government, Ministry of Economics and Commercial Affairs, Islamabad and 2 others (2001 M LD 1657).
8. In view of the above discussion, I am not inclined to exercise my Constitutional jurisdiction under the facts and circumstances of the case, which otherwise has no merits.
9. It is in this perspective and for the reasons stated above, I am constrained to dismiss this petition, leaving the parties to bear their own costs.