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37. As to interest, Pakistan's Constitution 1956 provides that the State shall endeavour to eliminate Riba as early as possible (Art. 28‑f). In 1962 Constitution, it was, again, provided in the principles of policy (No. 18) that Riba (usury) should be eliminated. Similar provision was again made in the Constitution of 1973 , (Art. 38‑f) .

38. The Council of Islamic Ideology established for the first time in 1962, in order to make, inter alia, recommendations as to the measures for enabling Muslims to order their lives in accordance with the teachings of Islam, formulated its opinion as long back as in 1964‑1966, that 'Riba is forbidden' and the present banking system is fundamentally based on Riba', and lastly, in its meeting held on 3rd December, 1969 it was unanimously resolved that:‑---

(Report of) Consolidated Recommendations on the Islamic Economic System, Council of Islamic ideology. 1983, pp. 9 and 10).

The matter also engaged the attention of the Council during its subsequent meetings in the year 1970 and after prolonged discussions on its various aspects, a Blue‑print of Islamic Social Order was finally approved. It was sent to the Government in 1971, (p.10 of the Report Op. cit.) but no Legislative measures were taken for elimination of interest from the Country's economy, as provided in the Constitution. (See Art. 230 of 1973 Constitution). In July, 1977, after General Muhammad Zia‑ul‑Haq took reins of power in his hands as Chief Martial Law Administrator, addressing the Council of Islamic Ideology, reconstituted by him, on 29th September, 1977, asked the Council to give its best thought to it and submit its detailed ,report on the subject, as to how the evil of interest could be eradicated. The Council of Islamic Ideology appointed a panel of Economists and Bankers. (p. 19‑21 op. cit.). An interim report was submitted by the Council to General Muhammad Zia‑ul‑Haq, who, in the meantime, had also assumed the office of President to himself. In the light of that report some interim measures were taken by the President for the abolition of interest. On 12th Rabi al‑Awwal, 1939 A.H. 10th February, 1979, as announced by the President, a time limit of three years was set in by him for the complete abolition of interest from the country's economy. The Council of Islamic Ideology submitted its final report to the President on June 25, 1980 (p. 42 op. cit.), wherein a framework was provided so as to enable the Government to eliminate interest from the country's economy by the end of February, 1982 (See Council's Report on 'Elimination of Interest from Country's Economy' annexed with the above Report, Part V Appendix, 1‑114; also published separately). The said report came up for discussion at the International Seminar of Economists on Fiscal System of Islam held at Islamabad during March 6‑11, 1981. The Seminar, in its Communiqu , at the close of Seminar paying its tribute to the Council for the Report described it to be a 'historic document' and 'a pioneering effort, which could be of great use to other Muslim countries in their efforts for transformation of their banking system in accordance with Islam', (p. 44‑45 Op. cit.). A summary of conclusion and recommendations of the Council appearing at pages 93‑114 of the Report on the Elimination of Interest from the Economy, June, 1980 is annexed to this judgment as Appendix 'A' to give an idea as to alternate interest‑free financing system.

39. The Council also appears to have recommended to the Government the repeal of the several enactments relating to interest (Ribs). Refer to the 'first Report of the Council on 'Islamization of Laws' December 1981. Relevant extracts therefrom are reproduced below: ‑

THE INTEREST ACT, 1839 (XXXII OF 1839)

"This Act was considered by the Council in its session held on the 27th September, 1966, and after brief discussion by the members, it was decided that consideration of the Act may be kept pending till final decision of the Council on the question of Riba.

The Act was reconsidered by this Council in its session held on the 11th November, 1981 and its repeal has been recommended with the following comments:‑

THE USURY LAWS REPEAL ACT, 1855 (XXVIII OF 1855)

"This Act was considered by the council in its session held on the 27th September, 1966, and it was decided that as this Act was linked up with the question of Riba, it may be considered later on in the light of the decisions made on the question of Riba.

The Act was reconsidered by this Council in its meeting held on 11th November, 1981 and its repeal was recommended with the following comments, namely:‑----

40. The Government of Pakistan on receipt of the 'Council's Final Report on elimination of interest 'appears to have taken some further steps in the direction by first allowing the public the facility of opening Profit and Loss Accounts in all the nationalized Banks and, later on, closing of interest‑bearing Savings Accounts and introducing Mudarabah and Musharikah, as steps towards Islamic Financing System as alternate to the prevailing Banking System. The option, however, remained open with the Banks and the public to either go in for Islamic System or stick to the non‑Islamic system, hitherto maintained. Most probably, due to the rigoros of Income‑tax and Excise laws, and for some other reasons, as the Council was already apprehensive, the practice of granting and receiving loans and other credit facilities on the basis of interest continued to a large extent. Let me quote here from the Council's Report on 'Elimination of Interest from the Country's Economy'‑‑

"The Council wishes to stress that with a view to ensuring the success of the new system of banking, it is of paramount importance that the Government should carry out a thorough reappraisal of the tax system, focusing in particular on the need for greatly simplifying the system of Income‑tax. The need for this measure was earlier underscored by the Council while submitting its Report on the introduction of Zakat and it was pointed out in this context that proper collection of Zakat would be difficult to achieve so long as the Income‑tax system was not simplified and made sufficiently easy for the assessees. Regrettably, however, this recommendation of the Council has yet to be given effect. In submitting its present Report, the Council wishes to express its deep concern in this regard once again, particularly in view of the fact that a thorough‑going reform of the Income‑tax system is a sine qua non for the success of an interest‑free banking system. This is because of the fact that under the new system, the income of the bank would crucially depend upon the profits of the business firms which receive financial assistance from them. If the existing system of Income‑tax remains as it is the business firms would continue the malpractice of concealing their profits and maintaining multiple sets of accounts which would deprive the banks from their rightful share in the profits of these concerns and would thus adversely affect the earnings of the banks. (introduction p.4 para. 4).

41. It is also noticeable that the President, General Muhammad Zia‑ul‑Haq, while constituting Federal Shari'at Court on 27th May, 1980, empowering the said Court to declare a 'law' as void if found repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet, excluded from the jurisdiction of the said Court the consideration of all questions relating to financial matters, including Riba. (Refer Chapter III‑A Article 203‑B(c) of the Constitution of 1973), until the expiration of three years from the commencement of the said Chapter. With the result that the question of interest was to remain outside the jurisdiction of the Federal Shari'at Court upto 26th May, 1983 (See definition of the word 'law' which includes 'any custom or usage having the force of law but does not include the Constitution, Muslim Personal Law, any law relating to the procedure of any Court or Tribunal or, until the expiration of three years from the commencement of this Chapter any fiscal law or any law relating to the levy and collection of taxes and fees or banking, insurance practice and procedure). It is also noticeable that the said period of 'three' years was substituted by 'four' for the word 'three' by the Constitution (Second Amendment) Order, 1983 (P.O. No. 7 of 1983) section 2, (with effect from May 19, 1983); which was again substituted by the Constitution (Second Amendment) Order, 1984 (P.O. No. 2 of 1984) section 2 (with effect from April 26, 1984) by the word 'five' which was again substituted by '10 years' by P.O. No. 14 of 1985, Art. 2 and Sch. item 42 (with effect from March 2, 1985) , that is, the bar to continue till 26th May, 1990.

42. It may also be mentioned that the Commission on Islamic System of Government, appointed on 10‑7‑1983 by the President, had recommended in its Report, submitted in August, 1983, that the power of the Federal Shari'at Court to consider, inter alia, fiscal law in the light of Islam should not more remain excluded. (See Commission's Report, Government Press, Islamabad p, 58).

43. Now, I turn to the question of enforceability of the plaintiff's claim for interest. Learned counsel for the defendant, has taken a stand that interest being un‑Islamic cannot be awarded by this Court. In the first instance, he placed his reliance on my order, dated 16‑4‑1987 passed in Suit No. 519/84 Bank of Oman v. East Trading Company P L D 1987 Kar. 404 and then referred to verses 275‑80 of Surah Al‑Baqarah from the Holy Qur'an. Besides referring to two other judgments of mine reported as Qaiser Ali v. Karachi Road Transport Corporation P L D 1986 Kar. 489 and Star Insurance Company v. Pakistan Insurance Corporation 1987 C L C 61, he cited a decision of my learned brother Mohammad Akram Khan, J. reported as Sardar Abdul Razzaq Khan v. Azad Jummu and Kashmir Government P L D 1986 AJ&K 158. In so far as my two judgments, referred to above, are concerned, it is true that I have not awarded the claim of interest but the same was on different consideration and in different context and have no relevance to the point at issue in the instant case. In so far as the judgment, referred to above, of the High Court of Azad Jammu and Kashmir is concerned, my learned brother Muhammad Akram Khan, J. has, in the first instance, tried successfully to make distinction between (profit) and (interest).

The relevant observation reads as under:‑-----

The learned Judge, thereafter, referring to the verses of the Holy Qur'an (Surah A1‑Baqarah: 278‑279) and their Commentary from Ma'arif al Qur'an by Mawlana Mufti Muhammad Shaft, observed as under:‑--

He also referred to the following Hadiths of the Holy Prophet:

Referring to the legal position as to the enforceability of the claim of interest, learned Judge observed as under:‑

"Hence we are unable to agree to the proposition that charging of interest is legally barred in Azad Kashmir."

The learned Judge, towards the end of the above judgment, which may be termed as its operative part, observed as under:‑

My learned brother, Muhammad Akram Khan, J., as observed by him in the judgment, quoted above, may perhaps be correct that in the absence of a statute, prohibiting interest, in Azad Jammu and Kashmir, he is bound by the judgment of the Supreme Court of Azad Jammu and Kashmir P L D 1979 SC (AJ&K) 62, but the position in Pakistan by insertion of Article 2‑A in the Constitution after 2nd March, 1985 has undergone a change and, as observed by me in my order, dated 16‑4‑1987 Bank of Oman v. East Trading Company P L D 1987 Kar. 404 Courts in Pakistan, giving effect to the principles and provisions of the Objectives Resolution as provided in Article 2‑A, are not only competent but obliged to construe and enforce 'existing laws' with such adaptations as are necessary in the light of the Holy Qur'an AA and Sunnah. Regarding observation of the learned Judge that the Council of Islamic Ideology has not submitted to the Government draft law relating to the prohibition of interest, I may refer to such a draft law prepared by the Council, which is contained in the 'Consolidated Recommendations of the Council on Islamic Economic System', December, 1983 (See pages 110 and 111).

44. It is heartening to note that Mr. Chundrigar did not controvert the un‑Islamic nature of interest, but submitted that this Court may grant interest as the claim pertains to a loan granted to the defendant in 1981 and, in any case, this Court may grant claim of interest for the period preceding the insertion of Article 2‑A in the Constitution i.e. till March 1, 1985. Reliance was placed by him on the case of Bank of Bahawalpur v. Syed Muhammad Shies P L D 1967 Kar. 433. By this judgment the earlier judgment of (late) Justice Muhammad Kharal, reported as Bank of Bahawalpur v. Mst. Jeena P L D 1963 Kar. 239, disallowing compound interest, was overruled by the Division Bench and it was held that 'if the promissory note provides for payment of interest with monthly rests, the original sum and the interest thereon at the end of the month would become 'principal ,money' due on the promissory note or bill of exchange'. The said judgment is much prior to the enforcement of Article 2‑A of the Constitution and has little relevance for the purpose of present discussion. The contention of Mr. Chundrigar that interest may be awarded upto 1‑3‑1985 is without any force as the question of the validity or voidance of certain statute arises when a claim for its enforcement is made through a Court of law and the Court is to decide the vires of the law when the question comes up before it to BB determine one's right or liability. Reference may be made to the case of Jibendra Kishore Achharyya Chowdhury v. Province of East Pakistan P L D 1957 SC 9 and the case of Province of East Pakistan v. Md. Mehdi Ali Khan P L D 1959 SC 387. As to the un‑Islamic nature of interest and in fact, its total prohibition, the same has been elaborately dealt with by me in my judgment, dated 11‑6‑1987, paras. 12 to 24, Suit No. 162/80, Irshad H. Khan v. Mrs. Parveen Aijaz P L D 1987 Kar. 466 which, for the sake of ready reference and to make this judgment self‑contained, is annexed hereto as Appendix 'B' [please see P L D 1987 Kar. 465 at p. 473). Reference as to the prohibition of interest may also be made to a passage from 'The Qur'anic Foundations and Structure of Muslim Society' by Dr. Muhammad Fazl‑ur‑Rahman Ansari, Karachi, Vol. I, p.197, which reads:‑------

"Thirdly, the Holy Qur'an blocks the roads of the monopoly capitalism through its anti‑monopolistic laws in general and the abolition of all forms and all rates of interest in particular."

45. The nature of the right to interest of a money claim before a Court of law has come up for consideration in a number of cases, the last of such a case, perhaps, is an unreported judgment, dated 27‑3‑1987 of the Honourable Supreme Court of Pakistan in Civil Appeal No. K‑78/83, Ghulam Abbas v. Karachi Port Trust [P L D 1987 SC 393] wherein it was held that a claim to interest can be based as of right on statute, contract, trade, usage or equity. It may, with all respect, be submitted that the position as observed by the Honourable Supreme Court, in relation to adjudication of the claim of interest either prior to the institution of the suit or pendente lite (during pendency of the suit) is relatable to the position of statutes viz. sections 34 and Rule 2 of Order XXXVII, C.P.C., sections 79 and 80 of the Negotiable Instruments Act, 1881. The said provisions of law have been held by me as unenforceable in Suit No. 162/80, for having placed reliance on my order, dated 16‑4‑1987 in Bank of Oman v. East Trading Co. in Suit No. 519/84 [P L D 1987 Kar. 404]. The relevant discussion appears in paras. 27 and 30 of my judgment in the aforesaid suit Irshad H. Khan v. Mrs. Parveen Aijaz P L D 1987 Kar. 465 at pp. 481, 483, which reads as under:----

"Thus, a claim to interest under the present law can be based as held above, on (1) Statute, (2) Contract, (3) Trade usage, and (4) Equity, in a particular case. So far as claim of interest based on law i.e. sections 79 and 80 of the Negotiable Instruments Act, 1881 is concerned it is now to be tested on the touchstone of the Qur'an and Sunnah which, as I have noticed above, prohibit it. As regards contract, no effect can be given to an agreement if it is contrary to an express provision of law. In Islam, by Sulh' (Compromise) nothing can turn haram (unlawful) into Halal (lawful), or vice versa. Same thing applies to mutual agreements and contracts. So far 'trade usage' is concerned, Islamic Law recognizes usage or customs as one of the secondary sources of law. Islamic System of law also accepts the legal force and authority of custom and usage. The word (Ma'ruf) in the Holy Qur'an is a pointer to it. Thus, the custom and usages prevalent during the life‑time of the Holy Prophet Muhammad (Sallallaho 'Alayhi wa Sallam) and if the Qur'an or Hadith did not repeal them or the Holy Prophet maintained his silence over them,‑ they were deemed to have been carrying the legal validity. 'It is laid down in Al‑Ashbah wa 'n‑Nadhair. 'Many decisions of law are based on usage, so much so that it has been taken as a principle of law'. (Muhammadan Jurisprudence, Sir Abdul Rahim, 1958 Ed. Lahore see 'Custom'. Islamic legal maxim, i.e. usage is like textual manifestation (of law), goes to that extent to recognize the usage as Nass, but usage is always subservient to the Nass (text of law). If, however, custom or usage is against the divine law or even an Ijm (concensus), they are not enforceable. So far as equity is concerned, the Courts in the Islamic Republic of Pakistan are not supposed to recognise any more as valid the English principles of justice, equity and good conscience. The English concepts must now, in the changed circumstances, give way to the Islamic concepts and principles of justice, equity and good conscience. Reference may be made to the judgment of Mr. Justice Mohammad Afzal Zullah (now Judge of the Supreme Court) in Haji Nizam's case P L D 1976 Lah. 93 and my own judgment in Qaiser Ali and others v. Road Transport Corporation P L D 1986 Kar. 489. However, the principle of equity is not allowed to play its role independently in the presence of a clear provision of law. The principle of equity comes into play when there is no provision of the Qur'an and the Sunnah or the Ijma, opposed to the principle of equity, in a given situation. It is only when the situation is to be governed by Qiyas (analogy) that equity get preference over it, which is wider in its scope than analogy." (para. 27).

Clause 3 of the Objectives Resolution now forming part of the Constitution (Article 2‑A) reads as under:‑

" ....the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Qur'an and the Sunnah;"

So, it is the Constitutional command for the State (Islamic Republic of Pakistan) to take such steps as would 'enable' the Muslims of Pakistan to live as Muslims. Therefore, any law which not only disregards such a commandment but positively violates it, is to be disregarded in view of Article 2‑A. The provisions of sections 79 and 80 of the Negotiable Instruments Act, 1881, section 34 and Rule 2 of Order XXXVII, C.P.C. so far as they relate to awarding interest on money claims are clear violations of the Constitutional mandate, as provided in Art. 2‑A read with clause 3 of the Objectives Resolution, referred to above. The aforesaid provisions of law and Rules, on the other hand, 'disable' Muslims of Pakistan from leading their lives as Muslims, according to the requirements of Islam as set out in the Holy Qur'an and Sunnah in relation to Riba (Interest) and, therefore, for the obvious repugnancy to the Injunctions of Islam, contained in the Holy Qur'an and Sunnah, extensively quoted by me in the foregoing paragraphs, the aforesaid provisions of substantive as well as procedural law relating to interest (Ribs) cannot be enforced by this Court, due to their repugnancy to the mandatory provisions of the Qur'an and Sunnah relating to interest (Ribs) ...." (para. 30)

46. Now, coming back to brass tacks of the case, Mr. Chundrigar submitted that the plaintiff in the above suit seeks a decree for the following amounts:‑‑

(i) Rs.10,00,000 towards principal amount of loan.

(ii) Rs.5,48,431 towards interest outstanding on 30‑6‑1985 i.e. prior to institution of suit.

(iii) Rs.4,00,000(approximate) towards interest, at the agreed rate during the pendency of the suit.

(i) As regards the principal amount of Rs.10 lacs, after rejecting the plea of the defendant's counsel that the payment made by him during pendency of the suit was towards principal amount, the whole of the principal amount of Rb.10 lacs remains due and payable by the defendant.

(ii) As regards the amount of interest of Rs.5,48,431 for a period prior to the institution of the suit, the same is alleged to be due and payable under section 79 of the Negotiable Instruments Act, 1881 read with section 34, C.P.C. and under mutual agreement. Section 79 of the Negotiable Instruments Act, 1881 provides for the calculation of interest payable under a Negotiable Instrument until tender or realization before institution of suit and the Court may also award interest under section 34, C.P.C. for any period prior to the institution of the suit. The Court is also empowered to award interest, in certain eventualities, under the Interest Act, 1839. Previously the power to award interest was also exerciseable under the Usury Laws Repeal Act, 1855, but the same has now been repealed by Ordinance No. XXVII of 1981. So far as sections 79, 80 of the Negotiable Instruments Act, 1881 and section 34 and also Rule 2 of Order XXXVII, C.P.C. are concerned, I have already held, in Irshad H. Khan v. Parveen Aijaz (Suit No. 162180), [P L D 1987 Kar. 46 ], that the said provisions of law are in conflict with Article 2‑A of the Constitution, and likewise it is now held that the Interest Act, 1 39 is void for the same reasons. The claim of Rs.5,48,431 for a period prior to the institution of the suit, is, therefore, not enforceable It may, further be added that when a claim is made to and a dere is sought through a Court of law, burden is on the plaintiff to show that the claim is lawfully due against the defendant and is payable by him. The above suit was filed on 3‑7‑1985 whereas Article 2‑A was inserted in the Constitution, with effect from 2‑3‑1985. The said amount of interest is no more awfully due against the efendant and so cannot be decreed by this Court.

(iii) As regards claim of interest amounting to Rs.4 lass, approximately, due from the date of the institution of the suit viz. from 3‑7‑1985 until payment (which in this case is fixed as 11‑8‑1987), reliance is placed by the learned counsel for the plaintiff on section 8(2) of the Banking Companies (Recovery of Loans) Ordinance, 1979. Section 8 read as under:‑

"8.‑‑Judgment and decree:‑

(1) A Special Court shall, after the case has been heard, pronounce judgment as early as practicable, and on such judgment a decree shall follow forthwith.

(2) The decree shall provide for interest or return, as the case may be, on the judgment debt from the date of the institution of the suit till payment ‑‑

(a) in the case of interest bearing loans, for interest at the contracted rate or at the rate of two per cent above the bank rate whichever is the higher:

(b) .......................................................... .......................

(c) ...........................................................

Explanation.‑‑ Its this subsection, in clause (a), 'bank rate' means the bank rate determined and made public under the provisions of the State Bank of Pakistan Act, 1956 (XXXII of 1956)."

I may also refer to section 34‑B(a) of Civil Procedure Code which too, in substance, is relatable to interest. It reads as under:‑

"34‑B. Interest, etc., dues of banking Company.‑‑ where and in so far as a decree is for payment of money due to a banking company in re‑payment of a loan advanced by it, the Court shall, in the decree, provide for interest or return, as the case mall be, on the judgment debt from the date of decree till payment ‑

(a) in the case of interest bearing loans, for interest at the contracted rate or at the rate of two per cent above the bank rate, which ever is the higher;

(b) ................. :

(c) ...........................................................

47. Section 8 of the Ordinance promulgated in 1979 regulates the rate of interest payable under the decree from the date of institution of the suit till payment. Prior to the aforesaid Ordinance, the C615‑it was not bound to allow the interest at 2 per cent above the Bank rate or at the contract d rate whichever is higher, but it has now been so provided expressly in section 8(2) of the Ordinance. Section 34‑B(a) of Civil Procedure Code, in substance, is also to the same effect except that in respect of interest‑bearing loans it provides for FF decree for interest from he date of .decree till payment at the same rate (underlined by me).

48. Subsection 2(a) of section 8 of the said Ordinance, or section 34‑B(a) of Civil Procedure Code do not seem to be suffering from any defect, as to the vires of enacting the same and so these provisions cannot be said to be void ab initio. However subsequently, on the incorporation of Art. 2‑A, as on 2nd March, 1985, the said section 8(2)(a) and section 34‑B(a) relating to interest may be challenged to be declared as void or not enforceable by their repugnancy to the mandate of the Qur'an and Sunnah relating to Ribs (interest) and this Court feels warranted to hold the claim of interest even made under section 8(2)(a) of the said Ordinance or section 34‑B(a) of the Civil Procedure Code as illegal, being based upon void provisions of law as against the Qur'an and Sunnah, but I am confronted with newly added Article 270‑A of the Constitution, 1973, when revived. Clause (1) of the said Article which seems to be relevant for the purpose of deciding the question of interest claimed under section 8(2) of the Ordinance read with section 34‑B(a) of Civil Procedure Code is reproduced as under:‑

Art. 270‑A(1):---

"The Proclamation of the fifth day of July, 1977, all President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders, including the Referendum Order, 1984, (P.O. No. 11 of 1984), under which, in consequence of the result of the referendum held on the nineteenth day of December 1984, General Mohammad Zia‑ul‑Haq became the President of Pakistan on the day of the first meeting of the Majlis‑e‑Shoora (Parliament) in joint sitting for the term specified in clause (7) of Article 41, the Revival of the Constitution of 1973 Order, 1985 (P.O. No. 14) of 1985), the Constitution (Second Amendment) Order 1985 (P.O. No. 24 not 1985), and all other laws made between the fifth day of July, 1977, and the date on which this Article comes into force are hereby affirmed, adopted and declared, notwithstanding any judgment of any Court, to have been validly made by competent authority and, notwithstanding anything contained in the Constitution, shall not be called in question in any Court on any ground whatsoever . . . . . . . . . . "

(2) ............................................................................................... ...........................................................

(3) ............................................................................................... ...........................................................

(4) ............................................................................................... ...........................................................

(6) ............................................................................................... .......................................................................................................... "

The Banking Companies (Recovery of Loans) Ordinance, 1979 came into force on 1st day of April, 1979, which falls during the period ‑‑ 5th day of July, 1977 and the day on which the above Article 270‑A came into force. A Full Bench of this Court comprising of the learned Chief Justice and four other learned Judges in a Constitution Petition, Muhammad Bachat Memon v. Government of Sind P L D 1987 Kar. 296, has held that Article 270‑A is valid. (See unanimous conclusion of the Court p. 337 supra). This decision will, therefore, GG govern the laws etc. promulgated between 5th July, 1977 and 29th December, 1985. Such laws by virtue of Art. 270‑A and the Full Bench judgment, referred to above, will now stand on a different footing. The jurisdiction of the Courts to strike down such laws 'on any ground whatsoever' has been ousted indirectly, by providing a blanket protection to all such laws etc., while saying in Art. 270‑A that 'notwithstanding anything contained in the Constitution shall not be called in question in any Court on any ground whatsoever'. With the result that the normative contents of such laws cannot be tested on the anvil of Article 2‑A, even if the Court comes to the conclusion that such laws or any one of them or any provision thereof is repugnant to the Injunctions of the Holy Qur'an and Sunnah, such as, section 8(2) of the Banking Companies (Recovery of Loans) Ordinance, 1979 which binds down a 'Special Court' to award interest (contrary to the mandate of the Qur'an) on the judgment debt from the date of the institution of suit till payment, at contracted rate or at the rate of two per cent above the Bank rate whichever is the higher and, similarly, all other Courts in Pakistan are bound to award interest, as provided under section 34‑B(a) of the Code of Civil Procedure added by Ordinance (LXIII of 1980 promulgated by the President, that 'in so far as a decree is for payment of money due to a banking company in repayment of a loan advanced by it, the Court shall, inter alia, in the decree, provide for interest or return, as the case may be, on the judgment debt from the date of decree till payment, in the case of interest bearing loans, for interest at the contracted rate or at the rate of 2% above the bank rate, whichever is the higher'. The Objectives Resolution, after insertion of Article 2‑A in the Constitution, provides us with a higher norm of moral values, recognized by Islam, which was not hitherto available in the Constitution till March 1, 1985 but the addition of Article 270‑A, which came alongwith Article 2‑A, puts a constraint on the powers of the Courts, rather debars them, to test the provisions of Article 270‑A on the touchstone of Article 2‑A, as the provisions of Article 2‑A or any other provision of the Constitution has been made subservient to by 'notwithstanding' phrase used in Article 270‑A. It is a higher class of legislation, meaning thereby that such provision made in Article 270‑A shall prevail, if there be any inconsistency in the same and other provisions of the Constitution.

49. A question may, perhaps, arise: has our Parliament in view) of the constraint placed by Article 2‑A, the power to make, affirm,; adopt, or validate any law against Allah Almighty's sovereignty on the supremacy of the Qur'an and Surinah, in breach of 'sacred trust', as delegatees of Allah (Refer to the opening paragraph of the, Objectives Resolution). The answer unhesitating is in the negative.; So, can our Parliament, for example, pass a law legitimizing sodomy, legalising prostitution and holding sexual relationship without legal H marriage as 'right action' or 'a marriage of convenience' If not, how is it, then, that the Parliament can grant legitimacy to a law, for example, section 8(2) of the Banking Companies (Recovery of Loans) Ordinance, 1979, or Ordinance LXIII of 1980, and provide for interest in the decree which is absolutely prohibited by the Qur'an and Sunnah, and for those who do not abstrain from it, the Qur'an declares 'take notice of war from Allah and His Apostle' (Surah Al‑Baqrah verse 279).

50. And lastly, in this behalf, I venture to reproduce a tradition (with its translation) of the Holy Prophet narrated by Ibn Maja (d. 274 A.11. = 886A.C.) from a compendium tilled ah 'AHKAM‑I‑ISLAM' (Injunctions of Islam) p. 153, compiled by the Council of Islamic Ideology, as provided under Article 230(1)(d) of the Constitution of Pakistan, for the guidance of Majlis‑i‑Shoora (Parliament) and the Provincial Assemblies. It reads as under:‑--

51. I am, however, bound by the decision of the Full Bench of this Court. P L D 1987 Kar. 296, wherein it has been observed that Article 270‑A is valid and the validity of Article 270‑A cannot be tested on the touchstone of Article 2‑A or vice versa. (p.328, para.1 17 Supra). I am, therefore, constrained to say, with a heavy heart, that the plaintiff is entitled under section 8(2) of the Banking Companies (Recovery of Loans) Ordinance, 1979 to claim interest for J the period of pendency of the suit from 3‑7‑1985 till payment which, in this case, has been fixed, by my short order, as 11‑8‑1987. The amount of interest accrued from 3‑7‑1985 to 30‑6‑1987, to be exact, as submitted later on by the plaintiff's counsel, is Rs.3,74,969 which till payment, as ordered, will be in the neighbourhood of Rs.4 lacs (approximate). However, the said sum of Rs.4 lacs representing the amount of interest for the period aforesaid stands paid pendente lite by the defendant and is adjustable accordingly.

52. In the result, there remains due and payable the sum of Rs.10,00,000 (Rupees ten lacs) being the principal amount of loan which is decreed with costs thereon.

53. A declaration has been sought in the prayer clause that the immovable property belonging to the defendant being Plots No. 4‑D/1 and 4‑D/II, Gizri Boulevard, Phase IV, Defence Housing Authority,