' Through the institution of the present Constitutional petition, the petitioner has prayed that the agreement dated 8-6-2001 may be declared as void, illegal because it is not only against law, religion of morality but also against public policy.
2. Facts leading to the filing of the present petition, as narrated by the petitioner, are that on 11-4- 1995, the petitioner applied for financial facility i,e, credit card facility to the tune of Rs,1,50,000 for the purposes of running a travel agency, which amount was sanctioned by respondent-bank and the petitioner had, statedly, returned a sum of Rs,1,23,000 out of Rs,1,50,000, whereas the contractor of Citi Bank i,e, respondent No,2 has demanded a further amount of Rs,1,89,000 as "interest". It has been narrated in the writ petition that in the absence of the petitioner, respondent No,1 obtained a decree against the petitioner to the tune of Rs,2,15,062 on 17-10-1997 from the Banking Court, Lahore, then obtained the warrants of arrest and the petitioner was in fact arrested on 8-6-2001. It has been alleged that the petitioner was made to sign an agreement dated 8-6-2001 under duress. It has further been alleged that the said agreement is illegal because the same was obtained through torture, blackmail and criminal duress. In the above said circumstances, the petitioner has prayed that the so-called agreement is ab initio, void and illegal and the same may be declared as illegal.
3. Learned counsel for the petitioner after challenging the present financial system and elaborating the theories of "international Zionism" and "crackle Pakistan" in his own style has, at last, submitted that the interest/mark-up comes within the scope of "Riba", which has been declared as un-Islamic by the Federal Shariat Court. He has further submitted that the agreement dated 8-6-2001 is a result of fraud, torture and criminal duress, therefore, the same is ab initio, void and illegal.
4. Admittedly, the petitioner obtained a loan facility from the respondent-Bank and must have executed some charge documents favouring bank, 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 Finance Corporation and 2 others 1994 SCMR 2287 has held that "the petitioners secured the loan in question under a written agreement and are 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.
5. So far as the contention raised by the learned counsel in respect of charging of mark- up/interest, as the same in 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 Hashim and 2 others PLD 2000 SC 225 has held that no doubt interest/Riba is un-Islamic, but past and closed transaction cannot be re-opened.
6. In a case reported as Mrs. Farha Nasir v. Pakistan through Secretary to Government, Ministry of Economics and Commercial Affairs, Islamabad and 2 others 2001 MLD 1657 this Court has held that "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 Muhammad Ismail's case PLD 1966 SC 246".
7. So far as the contention of the learned counsel regarding the execution of agreement under duress and blackmailing is concerned, suffice it to say that the petitioner has raised factual controversies in the present writ petition. The petitioner has alleged that he was made to sign the so-called agreement, which is the result of fraud, torture, blackmail and criminal duress. Obviously, these facts cannot be decided without recording the evidence of the parties, which exercise cannot be undertaken by this Court in exercise of its Constitutional jurisdiction and amply falls within the domain of. Courts of plenary jurisdiction. It is settled law that this Court can, in exercise of its jurisdiction vested in it under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, neither enter into factual controversies nor decide disputed questions of facts. Reliance is placed on Muhammad Younas Khan and 12 others v. Government of N.-W.F.P. Through Secretary Forest and Agriculture, Peshawar and others 1993 SCMR 618; Umer Hayat Khan v. Inayatullah Butt and others 1994 SCMR 572; Muhammad Ali and another v. Government of Sindh through Chief Secretary and 2 others 1986 CLC 1123 and Mst. Kaniz Fatima through legal heirs v. Muhammad Salim and 27 others 2001 SCMR 1493.
8. Admittedly, a decree for a sum of Rs,2,15,062 was passed against the petitioner on 17-10-1997, which according to the petitioner has not been called in question through the filing of the appeal.
Moreover, the said judgment and decree has not even been challenged through the filing of the present writ petition thus, the same has attained finality. Undoubtedly, under section 21(1) of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, a remedy of appeal was provided against a judgment and decree passed by the Banking Court. In the instant case, admittedly, no appeal has been filed against the said judgment and decree but instead thereof the present writ petition has been preferred. In view of section 21(1) of the aforesaid Act, a remedy of appeal against the judgment and decree passed by the Banking Court was provided which is in all fairness adequate and efficacious remedy. It has been held in the case of Messrs Chenab Cement Product (Pvt.) Limited and others v. Banking Tribunal,. Lahore and others PLD 1996 Lah. 672 that the invocation of Constitutional jurisdiction under Article 199 is not allowed, in cases where the remedy of statutory appeal is available and such remedy is effective and adequate. The petitioner, without availing the alternate remedy of appeal, has straightaway rushed to this Court with the Constitutional petition, which is not even maintainable under Article 199(1) of the Constitution of the Islamic Republic of Pakistan, 1973.
9. The judgment and decree were passed as far back as on 17-10-1997 but the same have not been assailed before any higher forum as provided under the law. The petitioner slept over the matter and acquiesced over the judgment and decree. Moreover, the present writ petition is hit by the principle of laches.
10. The upshot of the above discussion is that the writ petition is not maintainable, devoid of any merits, thus, the same is dismissed in limine.