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Civil Miscellaneous Application No.5170 of 1984 in Suit No. 519 of 1984, decided on 16th April, 1987.

(a) Registration Act (XVI of 1908)‑‑

‑‑‑S. 17‑‑Transfer of Property Act (IV of 1882), S. 58‑‑Mortgage by deposit of title deeds‑‑Registration‑‑When the writing purports to be creating a right of mortgage in praesenti, it is compulsory registrable under S. 17, Registration Act, 1908 and if the writing is merely recital of the event i.e. the fact of having already deposited the documents of title, with intent to create an equitable mortgage, it is not compulsorily registrable.

Messrs Eagle Star Insurance Co. Ltd, v. Messrs Usman Sons Ltd. and others P L D 1969 Kar. 123 distinguished.

United Bank of India Ltd. v. Azirannessa Bewa alias Azizanessa Bewa P L D 1965 S C 274 ref.

(b) Islamic jurisprudence‑‑

‑‑‑ Interpretation of Qur'an‑‑A verse, though revealed in a particular situation, remains general in its effect and applicability.

(c) Islamic jurisprudence‑‑

‑‑‑Mortgage‑‑---Mortgage is valid both while one is on journey as well as during his stay at place of residence‑‑Mortgage with Possession of mortgaged property being a condition as to its it is not valid unless mortgage is completed with possession qualification.

(d) Pakistan‑‑

‑‑‑ Islamisation of laws and their enforcement by superior judiciary‑‑Historical background‑‑Constitution of Pakistan (1973), Arts. 203‑C, 203‑D, 203‑F & 203‑G.

(e) Islamic jurisprudence‑

‑‑‑Sovereignty of Allah‑‑Qur'anic verses.

(f) Constitution of Pakistan (1973)‑‑

‑‑Art. 2‑A‑‑Effect of Art. 2‑A‑‑Islamic provisions in the Constitution reviewed.

(g) Constitution of Pakistan (1973)‑‑

‑‑Arts. 175(2), 199, 203‑C, 203‑D, 203‑F & 203‑G‑‑Islamisation of laws‑‑Jurisdiction of Courts discussed.

(h) Constitution of Pakistan (1973)‑‑

‑‑‑Art. 2‑A‑‑Object and scope‑‑Objectives Resolution as integral part of the Constitution has now assumed the position of a provision like any other provisions of the Constitution, nevertheless, it can, now, be regarded as supra‑constitutional document.

(i) Constitution of Pakistan (1973)‑‑

‑‑Art. 2‑A‑‑Validity of a provision in the Constitution on touchstone of Art. 2‑A.

(j) Constitution of Pakistan (1973)‑‑

‑‑‑Art. 2‑A‑‑Failure of the Parliament to provide for what has been pledged in Objectives Resolution, so that there is a gap or vacuum in the Constitution‑‑To fill such gap is not the function of Courts but duty of the Legislature.

(k) Constitution of Pakistan (1973)‑‑

‑‑‑Arts. 268 & 2‑A‑‑Exercise of powers by High Court under Art. 268 for construing all existing laws with all such adaptations as are necessary to bring them into accord with the provisions of the Constitution, other than Part II of the Constitution‑‑Scope‑‑Court is not only empowered but obliged to construe the existing laws in the light of Holy Qur'an and Sunnah, as enshrined in the Constitution, except that when a certain law falls within the exclusive jurisdiction of the Federal Shariat Court.

(1) Constitution of Pakistan (1973)‑‑

‑‑‑Arts. 175‑A, 199 & 2‑A‑‑Jurisdiction of Courts‑‑Competency and jurisdiction of the Court is relatable to power given to them by Constitution or by or under law and not the Islamic system, unless it is shown that said system has got the sanction of the injunctions of Islam as laid down in the Holy Qur'an and Sunnah‑‑Exercise of constitutional jurisdiction to declare a law or any provision thereof repugnant to Qur'an and Sunnah and grant relief to petitioner thereunder will be very limited in its scope inasmuch as writs and directions under extraordinary jurisdiction may be issued against "every body which is created by statute and where powers and duties are defined by statute‑‑High Court, however, under its general jurisdiction conferred it under or by law and the Constitution may as well exercise such power e.g. High Court under its original civil jurisdiction may also enforce the existing law in the light of Art. 2‑A, as challenge to any law on the ground that it contravenes a provision of the Constitution can validly be made in a civil suit but such is not the position under Art. 199‑‑Such exercise, however, would be limited to the laws outside the pale of the Federal Shariat Court.

"Islamization of Laws in Pakistan" by Mr. Justice Gul Muhammad Khan, Chief Justice, Federal Shariat Court of Pakistan P L D 1986 Jour. 249 discussed.

(m) Constitution of Pakistan (1973)‑‑

‑‑‑Arts. 2‑A‑‑Principles and provisions of Objectives Resolution, by virtue of Art. 2‑A, are now part of the Constitution and justiceable.

Courts in Pakistan are bound by the Constitution, and any law repugnant to the Constitution is void. The principles and provision of the Objectives Resolution, by virtue of Article 2‑A, are now part of the Constitution and justiceable. Any provision of the Constitution or law, found repugnant to them, may be declared by superior Court as void, subject, however, to the limitation imposed by Articles 203‑A, B (C) 203‑D, 203‑G and 203‑GG of the Constitution whereby special and specific jurisdiction has been conferred on the Federal Shariat Court to declare the law (as defined by Article 203‑B(c) read with Article 203‑G or any provision thereof, as repugnant to the Injunctions of Islam laid down in Holy Qur'an and Sunnah of the Holy Prophet, or that the said law or any provision thereof has been so declared by it (Article 203‑GG).

(n) Transfer of Property Act (IV of 1882)‑‑

‑‑‑S. 58 (f)‑‑Constitution of Pakistan (1973), Art. 203‑D‑‑Repugnancy to injunctions of Islam‑‑Provisions of S. 58(f), Transfer of Property Act, 1882, though declared by Federal Shariat Court to be not repugnant to injunctions of Islam, High Court, however, having a different view expressed its hope that the Shariat Court will consider the advisability of reviewing its opinion on the subject.

The Holy Qur'an; Ahkam al Qur'an by Imam Jassas; Tafseer al- Nasafi; Tafseer Baidawi; Tafseerat Ahmadiyya; Sahih al‑Bukhari; Bada'i 'al‑Sana'i' A1 Kasani; Al Hidayah by Marghinani; Kanz al‑Daqa'iq by Al‑Nasafi; Bahr al‑Ra'iq by Ibn Nujaim; Majallah al Akham al‑'Adliya; Ayub Khan's Friends Not Masters; G.W.Chaudhry's Constitutional Development in Pakistan, I.H.Quraishi (General Editor); A short History of Pakistan; National Assembly Debate on Constitution (First Amendment) Bill in 1963 Dacca Session; Constitution of Pakistan 1962 by M. Monir; Constitutional Recommendations of the Council of Islamic Ideology, 1983; The Fourteenth Report on Islamization of Laws. by the Council of Islamic Ideology; Report on Transfer of Property Act, 1882; Consitution Commission's Report 1983; Tanbir v. Province of E. Pakistan P L D 1968 S C 185; Islamization of Laws in Pakistan by Gul Muhammad Khan, P L D 1986 Jour. 249; Islami Nizam‑i‑Adalat Legislation Dr. Tanzilur-Rahman, Lord Denning's "Closing Chapter." London, 1983; Messrs Eagle Star Insurance CO. Ltd. v. Messrs Usman Sons Ltd. and others P L D 1969 Kar. 123; United Bank of India Ltd. v. Azirannessa Bewa alias Azizanessa Bewa P L D 1965 S C 274 Asma Jilani v. The Government of the Punjab and another P L D 1972 S C 139;The State v. Zia‑ur‑Rahman and others P L D 1973 S C 49; Haji Nizam Ahmad Khan v. Additional District Judge, Lyallpur and others P L D 1976 Lah. 930; Niaz ahmad Khan v. Province of Sind and others P L D 1977 Kar. 604; Habib Bank Ltd. v. Karachi Properties Investment Co. P L D 1984 Kar. 257; Adaikappa v. Chandrasekhara P L D 1947 P C 279; Muhammad Shafi v. Chief Settlement Commissioner 1974 S C M R 359; Muhammad Nawaz Gardezi v. Muhammad Yusuf P L D 1963 S C 51 at page 74; State v. Zia‑ur‑Rahman P L D 1973 S C 49; Ziaur Rehman v. State P L D 1986 Lah. 428; Haji Nizam Khan v. Additional District Judge, Lyallpur and others P L D 1976 Lah. 930; Magor and St. Million's Rural District Council v. New Report Corporation 1952 A C 189; Fathergill v. Monarch Air Lines 1981 A C 280 and Mirpurkhas Sugar Mills Limited v. Consolidated Sugar Mills Limited P L D 1987 Kar. 225 ref.

Habibur Rahman for Plaintiffs.

Muhammad Ali Syeed for Defendants.

Khalid M. Ishaque: Amicus Curiae and A.A. Fazeel, A.‑G. of Pakistan on Court's Notice.

Dates of hearing: 23rd October; 25th November, 1986; 13th, 14th and 15th April, 1987.

ORDER

This is an application under Order XXXVII, Rule 3, C.P.C. filed by the attorney of defendant No.4 for leave to defend the suit. The facts arising out of the above suit have been fully stated by me in my order dated 18th February, 1986 while disposing of C.M.A. Nos.4398 and 4397 of 1984 filed by the defendants Nos.3 and 5 respectively (1987 C L C 288). Now, suffice it to say that defendant No.4 is the wife of defendant No.5 and mother of defendant No.3 and is a share‑holder and director of defendant No.1 company. She has been sued by the plaintiff as mortgagor.

2. Mr. Muhammad Ali Sayeed, learned counsel for defendants submits that defendant No.4 is a Pardahnashin lady who had given her house as security by way of mortgage by signing a memorandum of the title‑deeds, which, according to him, is not valid, as it being a complete document of mortgage ought to have been registered. He further submits that as the said memorandum has been witnessed, it did not remain mortgage but turned into a bond which, being unstamped, is invalid. He further submits that the said memorandum purports to secure a liability of defendant No.l and not of herself, whereas an equitable mortgage can be valid only to secure one's own debts, as it amounts to assigning personal liability for the loan obtained by defendant No.l. At the very outset, I must say that the abovementioned pleas were taken by Mr. Muhammad Ali Sayeed, learned counsel for the defendants, to say the least, half‑heartedly. The total impression that I could gather was that the said pleas, except one, are for the sake of pleas only, because the learned counsel failed to develop the point or cite any law in support thereof. Therefore, the only plea that requires consideration is: whether the memorandum of deposit of title‑deed is a complete document of mortgage and so it ought to have been registered. For this plea, the learned counsel placed his reliance on the case reported as Messrs Eagle Star Insurance Co. Ltd. v. Messrs Usman Sons Ltd. and others P L D 1969 Kar. 123.

3. To appreciate the submission of the learned counsel it seems convenient to reproduce the contents of memorandum in question, which read as under:‑---

"Messrs Bank of Oman Limited,

Variave Building,

I.I. Chundrigar Road, Karachi.

MEMORANDUM OF DEPOSIT OF TITLE DEED

I, Mrs. Mubaraka Piracha wife of Mr. A. Sami Piracha, residing at B‑16/C North Nazimabad, Karachi, hereby confirm that as agreed upon in person I have deposited on 14‑6‑1980 the Title Deed of my property situated at Plot No.F‑51/A‑Block 'F' Scheme 2, North Nazimabad, Karachi measuring about 1,000 Sq. Yds. to secure the payment to you on demand any amount outstanding that may have been or may be lent alongwith interest as agreed between you and Messrs East Asia Trading Company Limited, Karachi.

Yours faithfully,

(Sd.)

(Mrs. MUBARAKA PIRACHA) w/o Mr. A. Sami Piracha

Witnesses & address:

(1) Mr. Zafarullah Paracha,

IV‑C‑1/6, Nazimabad,

Karachi.(Sd.)

(2) Mr. Anwar Beg,

H. No.572, LAC No.l,

Mehmoodabad, Karachi.(Sd.)

DETAILS OF TITLE DEED:

Indenture of Lease between K.D.A. and Mrs. Mubaraka Piracha in respect of Plot No.F‑54/A, Block 'F' Improvement Scheme No.2, Karachi.

Dated 14th June, 1980."

4. In the cited case the operative part of writing referred to in the judgment, reads as under:‑

"(1) That the documents are sent herewith to the Eagle Star Insurance Company Limited by way of equitable mortgage of the value of the properties described below as additional securities, in consideration of the said Eagle Star Insurance Company Limited having granted loan of Rs.6,25,000 (Rupees six lacs twenty‑five thousand) only to Messrs Usman Sons Limited of 22, SR, 3 Serai Road, Karachi by agreement of loan, dated 16th March, 1964.

(2) That Nisar Ahmad, Muhammad Umar, Muhammad Suleman, Muhammad Bashir, Muhammad Salim, Fazal Rahman sons of late Haji Muhammad Usman and Zubeda Begum widow of late Haji Muhammad Usman have interests valued at Rs.5,93,000 (Rs. five lacs ninety‑three thousand) in the said properties in their own rights by way of inheritance and have right to mortgage such interests as owners thereof, which they hereby mortgage as equitable mortgage with Eagle Star Insurance Company Limited."

(3) That Nisar Ahmad is duly constituted attorney of Muhammad Suleman (by virtue of Power‑of‑Attorney dated 22‑2‑1964) and of Muhammad Salim and Muhammad Bashir (by virtue of Power‑of- Attorney dated 24‑2‑1964) and has full authority to mortgage their shares in the properties and in exercise of the power, their shares are hereby mortgaged by him.

(4) That Muhammad Umar is duly constituted attorney of Mst. Zubeda Begum (by virtue of Power‑of‑Attorney dated 27‑6‑1963) and has full authority to mortgage her share in the properties and in exercise of such authority, he hereby mortgages her share.

(5) That the properties in question are free from any kind of encumbrance and shall not be encumbered or alienated by the mortgagors before repayment of the aforesaid loan by Messrs Usman Sons Limited to the Eagle Star Insurance Company Limited.

(6) That the terms hereof shall be binding on the heirs and legal representatives of the mortgagors."

In the case cited, the writings, as quoted above, contained the undertakings that the properties with regard to which documents of title were deposited shall not be alienated or encumbered until the loan advanced by the plaintiffs had been repaid, and, further, the plaintiffs were empowered to recover their loan from those properties. It was thus, held that:‑--

"These writings operate in praesenti to create the relationship of mortgagor and mortgagee between the parties. The writings make the properties in dispute answerable for the claims of the plaintiffs, who are also empowered to recover their dues from the said properties, and further, the writings contain the undertakings that the properties shall not be alienated or encumbered in any manner until the plaintiffs' loans are repaid. In my view, these documents are in effect contracts of mortgage and purport to create in praesenti an interest in the properties in the plaintiff's favour. It being so, the documents were compulsorily registrable under the Registration Act, 1908, and not having been registered, it has to be held that not only these documents are inadmissible in evidence, but also that these documents do not create any mortgage in the plaintiff's favour. Since the deposits of the documents of title are not independent of memorandums, the deposits also would not create any right or interest in the plaintiffs in the disputed properties."

5. If the contents of the writing by which document of title were said to have been deposited with the plaintiffs in the cited case are compared with the contents of the memorandum executed in the instant case it would appear that there is a world of difference between the two. The writing in the instant case is a mere confirmation of deposit of title deeds and not a contract of mortgage. In this respect, I may rely on the case of United Bank of India Ltd. v. Azirannessa Bewa alias Azizanessa Bewa P L D 1965 S C 274. The relevant observation of f A.R. Cornelius, C.J. who delivered the judgment, is of great advantage and is reproduced below: -------

"The mention of the deposit is in the past tense, i.e. 'I deposited'.

There are no words used to show that in praesenti the security was being created, but it is said 'I deposited ...the documents .... with intent to create an equitable mortgage' and in the light of the observations in the judgment of the Privy Council last cited, the possession of such an intent at the time of deposit, being in the past, is capable of being proved by production of the document in evidence. It is indeed probably that the language employed in these 'letters of deposit' is derived from the declaration of law by the Judicial Committee in the case of Sundarachariar, which (we say so with respect) is entirely correct."

6. The rule of test between the two situations in the Eagle Star's case and the instant case seems to be that if the writing purports to be creating a right of mortgage in praesenti, it is compulsorily registrable under section 17 of the‑ Registration Act, and if the writing is merely A recital of the event i.e. the fact of having already deposited the document of title, with intent to create an equitable mortgage, it is not compulsorily, registrable. Looking to the contents of the memorandum of deposit of title deeds in the instant case it cannot be said that a contract of mortgage is being created in praesenti by the said memorandum. The contention is therefore, devoid of any merit.

7. During the submissions of Mr. Muhammad Ali Sayeed, learned counsel for the defendant, a question also arose as to the un‑Islamic character of the said memorandum. Learned counsel submitted that the concept of equitable mortgage is purely an English concept which is foreign to Islam. The said memorandum is not a mortgage according to Islamic Law and it should, therefore, be declared as null and void. In order to know if there is any decision on Transfer of Property Act, 1882, by the Federal Shariat Court, a request in this behalf on my direction was made by the Registrar of this Court to the Registrar of the Federal Shariat Court, who by his letter dated 27‑10‑1986 forwarded to the Registrar of this Court a copy of the order dated 5‑10‑1982 passed by the Federal Shari'at Court in the matter of Transfer of Property Act, 1882. A perusal thereof will show that the whole Transfer of Property Act, 1882, in which the provision relating to equitable mortgage is also contained in its section 58(f) came up for consideration before the Federal Shari'at Court comprising of Aftab Hussain, C.J., Ali Hussain Qazilbash, Ch. Muhammad Siddiq, Maulana Malik Ghulam Ali and Pir Muhammad Karam Shah, JJ and a unanimous decision was made in respect thereof. The order, delivered by the learned Chief Justice, being short, is reproduced in full which reads as under:‑-----

"On the 15th of July 1982, a public notice was issued to invite views of the members of the public inter alia in regard to the question as to whether the Transfer of Property Act, 1882 or any of its provisions, is repugnant to the Holy Qur'an or the Sunnah of the Holy Prophet (p.b.u.b.) and if so, to what extent. No one either from the Ulema, or members of the Bar or members of the public except Mr. Abdul Karim Langah, Civil Judge, Islamabad responded to the notice. Mr. Langah is of the view that no provision of the Act is repugnant to the Shari'ah except the provision as regards interest.

2. It was found unnecessary to consider two Chapters of the Act i.e. Chapter II (sections 5 to 53‑A) and Chapter VII (sections 122 to 129) since it is clarified in section 2 that nothing in Chapter II and in section 129 that nothing in Chapter VII of the Act, shall be deemed to effect any rule of Muslim Law. It is, therefore, clear that the rule of Muslim Law on matters dealt with in various sections of these two Chapters override the provisions of those sections in case of conflict with the provisions of Muslim Law.

3. We have already gone carefully through the other provisions of the Act but except for the provisions allowing interest no other provision is repugnant to the Holy Qur'an and the Sunnah. The provisions regarding interest are in sections 55, 56, 57, 58, 62, 63, 65‑‑69, 69‑A, 72, 76, 77, 108 and 114. It appears that while drafting the Act the provisions of Muslim Law with the exception of interest, have been kept in view.

4. We have already held that interest is a fiscal matter and it is not within our jurisdiction to order necessary amendments in regard to provisions in any Statute concerning it. However, we recommend that the President may kindly consider the advisability of elimination of interest from all Statutes in the dealings between private natural persons, since such restricted elimination does not appear to pose any problem to the Government, the Banks, the Insurance Companies, and other Statutory Bodies.

5. The other provisions of the Transfer of Property Act, 1882 are not repugnant to the Holy Qur'an and the Sunnah."

(Sd.) (Sd.)

Judge‑I Chief Justice.

(Sd.) (Sd.)

Judge‑III. Judge‑IV

(Sd.) Judge‑V.

8. It will be of interest to mention here that the Transfer of Property Act also came up for consideration by the Council of Islamic Ideology under Article 230(1)(c) of the Constitution, 1973. The observations of the Council in respect of the said Act have been published in its 14th Report concerning Islamization of Laws, in May, 1984. Its recommendations relating to the said Act are contained at pages 131 to 155 of the said Report which are annexed by me as Appendix‑I to this order, but it seems proper to reproduce hereinbelow the observations of the Council relating to mortgage from pages 149‑50 of the said Report, which read as under:‑-----

9. In relation to mortgage, I may, further, refer to the Qur'anic provisions, the traditions of the Holy Prophet (p.b.u.h.) and the works of Fiqh. In verse 283 of Surah A1‑Baqarah, the Qur'an says:

"If ye are on a journey, and cannot find a scribe, a pledge with possession (may serve the purpose)."

It may be mentioned that although the Qur'an mentions about 'the mortgage with possession' when one is on a journey, the provision cannot be said to be limited to' that particular situation only, as it is one of the rules of interpretation of the Holy Qur'an that a verse, though revealed in a particular situation, remains general in its effect IC and applicability.

(i) Imam Abu Bakr Ahmad bin Ali Al‑Jassas (d.370 A.H.) in his Ahkam al‑Qur'an, one of the most reputed and authentic commentaries on the Holy Qur'an, Egypt, 1347 A.H. Vol. I, p.622 has stated that reference to journey is for the reason that the facilities of writing and of witnesses are not found generally in a journey. However, it has been narrated of Mujahid that he used to disapprove mortgage except when one is on journey, but 'Ata did not see any thing wrong if there is a mortgage while one is at his residence. In fact, Mujahid leaned towards the literal meaning of this provision of mortgage as it is in the Qur'an. There is, however, no controversy among the jurists of the time and generality of the people in the past that mortgage is valid while one is at his place of residence. It has been narrated by Hadrat 'Aishah that Prophet (p.b.u.h) purchased food from a Jew on deferred payment and pledged his armour in lieu thereof. It is also narrated by Hadrat Anas that the Prophet (p.b.u.h.) of Allah (p.b.u.h) pledged his armour with a Jew at Madina and borrowed barley from him. This proves the validity of mortgage in the state of residence by the act of the Holy Prophet, and Allah the Almighty has commanded "Obey him" and has also said.

"Indeed there is for you in the Messenger of Allah the excellent example (to follow)."

This shows that a mortgage is valid both while one is on a journey as well as during his stay at the place of residence. About possession of the property mortgaged to be with the mortgagee, Jassas referring to the Qur'anic provision says that it proves that the mortgage is not valid unless it is with possession. He assigns two reasons for that view: firstly it is a conjunction on the preceding. The required number and qualifications of witnesses are incumbent for the witnesses. In the same way, the qualification of mortgage to be with possession is a condition. As the evidence of the witnesses is not valid unless it is coupled with the qualification stated above, that is 'the number of witnesses and that there should be two male witnesses from amongst the Muslims and if there are no two male witnesses available then one male and two women who agree to become witnesses' are essential as a rule. In the same way, possession of the mortgaged property being a condition as to its qualification it is not valid unless mortgage is coupled with possession and secondly the mandate of mortgage has been derived from the verse and the verse permits it with the qualification of possession, meaning thereby that it is invalid without possession. So, according to him it stands proved that the mortgage is not valid unless it is with possession. The relevant discussion at p. 622 is quoted as under:‑-----

(ii) In Madarik‑al‑Tanzil, known as Tafseer‑al‑Nasfi, by Abdullah bin Ahmad bin Mahmud al‑Nasfi, (d.710 A.H), Egypt, Vol. 1, 142 it is stated that the word proves the condition of possession. Imam Malik, however, is of the view that mortgage is valid by proposal and acceptance, without possession, as is evident from the following;----

(iii) I may also refer to Anwar al‑Tanzil wa Asrar al‑Tawil, a well‑known commentary on the Holy Qur'an, generally known as Tafsir Baidawi and taught in the traditional Madrasahs of the Indo‑Pak sub‑continent, by Abdullah bin 'Umar Baidawi (d. 791 A.H.) Egypt, 1358 A.H./1939 A.D., page 126. The learned commentator after saying about the validity of a mortgage at the place of habitation, says that G majority is unanimous on the question that possession of the mortgaged property should be with the mortgagee, without being its owner. To quote his own words:‑---

(iv) Another noted commentary of the Holy Qur'an relating to injunctions of the Qur'an, known as Tafseerat Ahmadiyyah by Shaikh Ahmad (d. 1075 A.H.), generally known as Mullah Jiwan of Jonepur (India), published in Dewband page 128, after stating the same thing as already referred to having been stated by Baidawai and Nasafi and also referring to Marghiani, the author of A1‑Hidayah interprets the words that is to pledge is with possession and that is the mandate, as under:‑

10. The above Qur'anic provision of law relating to mortgage has also been dealt with by Imam Bukhari (d.256 A.H./810 A.D.) in his Sahih published in Karachi, Vol. I, Chapter 1577 under the 'Book on Mortgage' (CA116d1:5). He has stated a number of traditions, two of which have already been referred to by me while quoting Imam Jassas above.

11. As regards the discussion on the subject by noted Jurists, I may quote below from several text‑books of renowned Jurists, as under:

(i) Imam Abu Bakar bin Mas'ud al‑Kasani (4. 587 A. H;) in his well‑known book Bada'i al Sanai fi Tartibal Shara'i Egypt, 1328 A. H. /1910, Vo1.6, page 135 in its 'Book on Mortgage' writes, inter alia, that the mortgaged property to be in possession of the mortgagee is a condition of its validity. He, however, states that there is a difference of opinion, whether possession is a condition or it is a constituent part (cue) of the contract' of mortgage itself like acceptance, as under:‑----

(ii) Allama Burhanuddin A1 Marghiani, the author of A1‑Hidayah, a very well‑known book taught in the traditional schools of the sub‑continent writes in Vol.II, p.516 that a contract of mortgage is constituted by proposal and acceptance and is completed by possession. A1‑Marghinan further writes that according to some Jurists the contract of mortgage is complete immediately upon declaration, for, it is an act purely voluntary. Nevertheless, according to him possession of the property mortgaged is absolutely requisite to the obligation. Imam Malik has, however, said that a contract of mortgage is valid and binding immediately upon the consent of the parties, because it is relatable to the property of both and consequently is similar to sale. On the other hand, the argument of Hanafi doctors of Fiqh is that the text of the Qur'an as to the fact of possession is evident and further that the act of mortgaging being voluntary, it must be effectually concluded which K can only be done by taking over possession. It is further stated that

upon a person receiving a mortgage, the acceptance being then ascertained, the contract is complete and consequently binding. In fact on the mortgaged property having been delivered to the mortgagee, and his taking possession of the same, he is entitled to detain it until he receives the payment of debt. He also becomes answerable in case of its being destroyed in his hand. The original text reads as under:‑

(iii) A1 Nasafi in Kanz al‑Daqa'iq, a text‑book on Fiqh which is also taught in this Sub‑continent, by Abdullah bin Muhammad al‑Nasafi (d .710‑A . H .) , whose commentary on Qur'an has already been quoted above, published at Delhi, page 437, writes almost the same 1 thing about possession as had already stated by Marghaani in al Hidayah. In his words:‑

(iv) Allama ibn Nujaim (d.970 A.H) in his famous book N1‑Bahr al Raiq, which is a commentary of Kanz al Daqa'iq, Egypt, 1334 A.H. Vol. 8, page 231, while explaining what has already been quoted from Kanz al Daqa'iq says that the contract does not become incumbent without possession:

(v) And, lastly, I may refer to Majalla al‑Ahkam al‑'Adliyah, generally known as Al‑Majalla, a codified compendium of several Islamic civil laws compiled by a committee of jurists during the reign of Sultan Abdul Hameed, the second, in 1869‑1976 A.D. Book V of the same relates to mortgage. The provisions of the law have been stated in sections 701‑761. Some of the provisions relevant to the point, are referred to from A1‑Majalla as under:‑

12. Following is the translation of the above sections by C.R.Tyser and two other officials of the District Court of Kyrenia, in the Book "The Mejeille", published by All Pakistan Legal Decisions, Lahore, 1967, pp.106‑110:‑

701. Rehn is to make a property a security in respect of a right of cue, the payment in full of which from that property is permitted.

The property is called "Merhoun" and also "Rehn" (n.k. hereafter called "pledge").

706. The pledge becomes a concluded contract by the offer and acceptance of the pledgor and pledgee. But, until it is received, it is not complete and irrevocable. Therefore, the pledgor, before delivery can go back from the pledging.

719. The giving of a pledge by the principal debtor to his surety is lawful.

722. The pledgee keeps the thing pledged in person, or he causes it to be kept by someone whom he trusts, such as his family or his partner or his servant.

724. If the thing pledged is an animal the cost of forage, and the wage of the herdsman, falls on the pledgor.

And if it is immovable property, expenses incurred for improving its use and for its preservation, like repairing it, and watering it, and grafting, and weeding it, and the cleaning of the water channels, falls on the pledgor.

729. A consequence of making a pledge is that the pledgee has a right to keep possession until redemption of the pledge, and if the pledgor has died, he has a better right than the other creditors, and can make full payment of the debt from the pledge.

13. A further question arises whether this Court has got jurisdiction to strike down as un‑Islamic the provision of section 58(f) of the Transfer of Property Act, 1882, which relates to "mortgage by deposit of title deeds". As it involved the interpretation of the Constitution, a notice was issued to the learned Attorney‑General to address the Court on the question of jurisdiction. Mr. Khalid M. Ishaque, Advocate was also requested to appear and address as amicus curiae on the point of jurisdiction.

14. As regards the question of jurisdiction Mr. Khalid M. Ishaque, referring to the several provisions of the Constitution, submitted that notwithstanding the provisions contained in Chapter 3‑A of the Constitution, this Court, being a Court of general jurisdiction, is empowered to enforce an existing law and construe the same with all such adaptations as are necessary to bring the same in accord with the provisions of the Constitution, as laid down in sub‑Articles (1) and (6) of Article 268 read with Article 2‑A of the Constitution, as inserted by President Order No.14 of 1985 (Revival of the Constitution Order, 1985), making the principles and provisions set out in the Objectives Resolution, reproduced in the Annex, as part of the Constitution. The only exception, he submitted, is the decision of the Federal Shari'at Court, in the exercise of its jurisdiction under the said Chapter, subject to the decision in appeal, if any, by Shari'at Appellate Bench of the Supreme Court, which shall be binding on a High Court. For this proposition, reliance was placed by him on a number of decisions namely Miss Asma Jilani v. The Government of the Punjab and another P L D 1972 S C 139; The State v. 2ia‑ur‑Rehman and others P L D 1973 S C 49; Haji Nizam Ahmad Khan v. Additional District Judge, Lyallpur and others P L D 1976 Lah. 930 and Niaz Ahmad Khan v. Province of Sind and others P L D 1977 Kar. 604.

15. Mr. Ali Ahmed Fazeel, learned Attorney‑General, who appeared on 13‑4‑1987 and 14‑4‑1987 in response to Court notice, referred to Articles 175, 199, 203 and 204 of the Constitution of Pakistan and submitted, in the first instance, that a High Court has got jurisdiction which is conferred on it by the said Articles. This Court as Original civil Court will be exercising the civil jurisdiction conferred on it under law i.e. paragraphs 9 to 14 of the letters patent of the High Court of Judicature, Lahore, Sind Civil Courts Act, 1926, West Pakistan Civil Courts Order XXI of 1955 and High Court Establishment of Courts Order VIII of 1970. He further submitted that, in the present case, special jurisdiction is conferred on this Court by Banking Companies (Recovery of Loans) Ordinance, 1979. Therefore, the jurisdiction of this Court, in the suit before it, being a jurisdiction of a special Tribunal is limited and cannot go beyond it, inasmuch as it cannot exercise the jurisdiction of a High Court, under the Constitution or the law, other than the Banking Companies (Recovery of Loans) Ordinance, 1979, and thus, cannot strike down any law, even if it is not in accordance with the Constitution. Reliance was placed by him on Habib Bak Ltd. v. Karachi Properties Investment Co. P L D 1984 Kar. 257.

16. As regards the effect of the provisions of Article 2‑A, he submitted, the Objectives Resolution represents only a "pious wish" on the part of the Constituent Assembly, and is not a Supra‑Constitutional Document. Just mentioning (I mean, he did not read or cite any portion of the judgment) the recent Full Bench Judgment of this Court relating to Article 270‑A, he submitted, that no provision of the Constitution can be struck down on the basis of Article 2‑A read with Annex. When I mentioned Article 268 to him, his reply was that in view of the in‑built machanism regarding Islamization of laws, the High Court has got no power to enforce the existing law in accordance with the Holy Qur'an and Sunnah. About the article of Mr: Justice Gul Muhammad Khan P L D 1986 Jour. 249, which I referred to him, he showed his inability to agree with the view expressed therein. However, after some discussion, he submitted that if, at all, the view is taken to be correct the High Court may perhaps exercise its power under writ jurisdiction, but not under original Civil/Special jurisdiction.

17. On the other hand, Mr. Muhammad Ali Sayeed learned counsel for defendant No.4 referred to the provision of section 2(f) and section 6 of the Banking Companies (Recovery of Loans) Ordinance, 1979 and submitted that this Court is exercising the powers of a civil Court and has got the jurisdiction to strike down any law if it is not in accordance with the Constitution. Reliance was placed by him on Adaikappa v. Chandrasekhara A I R 1948 P C 12 and Muhammad Shafi v. Chief Settlement Commissioner 1974 S C M R 359. On the question of Article 2‑A, while adopting the arguments of Mr. Khalid Ishaque, it was submitted by him that Article 2‑A read with the Annex. (Objectives Resolution) is a paramount clause of the Constitution and all other provisions in the Constitution must be interpreted and understood as subordinate to this paramount clause, representing the exercise of power. Wherever any Article or clause of the Constitution is in obvious conflict, it must yield to the paramount clause. He described the Resolution to be the next achievement after the achievement of Pakistan. By means of this Resolution, a parameter has been laid down. All authority must be subservient to Allah. The members of the Constituent Assembly and the Legislature to be the delegatees or attorneys are bound to discharge their functions as trustees of the Divine Will, he added.

18. The question of exercising jurisdiction by a High Court, or, if I may say so, for that matter, the Supreme Court in relation to the Islamization (or Shariatization, as a draftsman in the Federal Ministry of Law put it), of laws and their enforcement by Superior Judiciary has a history behind it. I am conscious that the Courts of law in their judgments should avoid repeating history, as the history is its own judge. But, to my mind, a Judge may refer to history, if it is important or necessary for proper understanding of the Constitution or a provision of the statute because, sometime, as it happened in Pakistan, the political battles are fought on legal arena. I, therefore, feel it appropriate to trace back the question of enforcement of Islamic law by Courts to the very inspection of Pakistan, as it is not only pertinent to the above case, but has a larger perspective and is very much alive even today in the contemporary history.

19. When the Britishers captured the reins of powers from the hands of the Mughal Rulers in the Sub‑continent, the pre‑existing Islamic Laws which had been in force for a number of centuries, were repealed by the Britishers. They enforced their own laws and established their o own legal system as common to every Colonial power in the recent history of the world. Regulation No.11 of 1772 was a first step in the direction. After the war of Independence, termed by historians as "Mutiny" in 1857, a number of substantive laws, e.g. Contract Act, Transfer of Property Act, Penal Code etc. were enacted by the tritishers and to enforce them, procedural laws like that of Codes of Civil Procedure, Criminal Procedure and Evidence Act were framed and a new Court system was evolved and put into practice, and to run that system the legal profession came into existence for the first time in the Sub‑continent which we have inherited from them. However, it was the Muslim Personal Law alone which, during pre‑Partition days, was applied by the British Indian Courts pursuant to the powers conferred on them by several legislative enactments, limiting their powers and jurisdiction to apply it within the spheres defined in those enactments, such as Muslim Personal Law (Shari'at) Application Act, 1937, that a new term "Anglo‑Mohammadan Law" was coined for and came to be known in this Sub‑continent. Thus, all the Civil, Criminal, Fiscal, Commercial, Taxation and other laws as enforced by the British Parliament or Indian Legislature with the exception of Personal Law, as aforesaid, continued (and still continue) to be applied in Pakistan. The British rulers, through their laws and system, demolished Muslim social and cultural structure. They also changed our social concepts and ideas, viz. the moral background of our laws too. It meant that a cancellation mark had been drawn across one system of morality and culture, and the foundation of another ethical, cultural and social system had been laid. The result was that they legalised adultery, gambling, drinking and other corrupt practices and trades. They even subverted our basic concept of law‑making that Allah the Almighty is the Sole Law‑maker and the words and deeds of His Last Prophet Muhammad (Sallahu 'alaihi Wa Sallam) are binding on us. It is, thus, understandable that eversince the inception of Pakistan (August 14, 1947), there has been a constant demand, on national level, to bring the existing laws in conformity with the Holy Qur'an and Sunnah. It was most natural because Islam had proved to be a decisive force in the struggle for establishment of Pakistan. In fact, the Pakistan was founded in the name of Islam.

20. The first Constituent Assembly of Pakistan, in or about March, 1949 passed a Resolution called "The Objectives Resolution," which is reproduced below:‑----

The Objectives Resolution

(In the name of Allah, the most

Beneficent, the most Merciful)

Whereas Sovereignty over the entire universe belongs to Allah Almighty alone and the authority which He has delegated to the State of Pakistan, through its people for being exercised within the limits prescribed by him is a sacred trust;

This Constituent Assembly representing the people of Pakistan resolves to frame a Constitution for the sovereign independent State of Pakistan;

Wherein the State shall exercise its powers and authority through the chosen representatives of the people;

Where the principle of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed;

Wherein 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;

Wherein adequate provision shall be made for the minorities to profess and practise their religion and develop their cultures; Wherein the territories now included in or in accession with Pakistan and such other territories as may hereafter be included in or accede to Pakistan shall form a Federation wherein the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed;

Wherein shall be guaranteed fundamental rights including equality of status, of opportunity before law, social economic and political justice and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality;

Wherein adequate provision shall be made to safeguard the legitimate interests of minorities and backward and depressed classes;

Wherein the independence of the judiciary shall be fully secured; Wherein the integrity of the territories of the Federation, its independence and all its rights including its sovereign rights on land, sea and air shall be safeguarded;

So that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity."

The Objectives Resolution, as such, I must say, can be regarded as a landmark in the Constitutional history of Pakistan as it, for the first time, laid the ideological foundation of Pakistan. It acknowledged that sovereignty over the entire universe belongs to Allah Almighty alone", recognized that "the authority to be exercised by the people of Pakistan within the limits prescribed by him is a sacred trust" and accepted the Injunctions of Islam, as enshrined in the Holy Qur'an and Sunnah, to be the guidelines for running affairs of the State in almost all its spheres, whether political, social or economic.

21. As regards the Sovereignty of Allah over the universe, the Holy Qur'an says:

The above versus have been translated as under;

1. It is His to create and enjoin.(Al-A raf 7:54)

2. Authority belong to Allah alone.

He commands that you worship none but Him. This is the right way;

but most men are ignorant. (Yusuf 12:40)

3. So all glory to Him who holds the kingdom of all things, to whom. (Yaseen 36:83).

4. "O Lord of all dominions,

You give whom it pleases You the kingdom,

and you take away the power from whosoever You will;

You exalt whom You please and debase whom You will.

All goodness is Yours (Entirely.) Indeed

You have the power over all things. (Al‑Imran 3:26)

5. and He does not share His authority with anyone (A1‑Kahf 18:26)

22. For obedience to the Holy Prophet Muhammad (p. b. u. h . ) the Holy Book, Qur'an ordains as under:‑

The above verses from different Surah(s) of the Qur'an have been translated as under:

1. He who obeys the Apostle obeys Allah; (A1‑Nisa 4:80).

2. Accept what the Apostle gives you, and refrain from what He forbids, (A1‑Hashr 59:7).

3. We have sent no Apostle but that he should be obeyed by the will of Allah. (A1‑Nisa 4:64) .

4. Indeed, by your Lord, they will not believe till they make you adjudge in their disputes and find no constraint in their minds about your decisions and accept them with full acquiescence. (A1‑Nisa 4:65).

5. No believing men and women have any choice in a matter after Allah and His Apostle have decided it. Whoever disobeys Allah and His Apostle has clearly lost the way and gone astray. (A1‑Ahzab 33:36).

6. Obey Allah and the Prophet (p.b.u.h.), and beware. If you turn away, remember, that the duty of Our Apostle to give you a clear warning. (A1‑Ma'idah 5:93).

7. Obey Allah and the Prophet (p.b.u.h.), if you really believe. (A1‑Anfal 8:1).

8. O Believers obey Allah and His Messenger, and do not turn away from him when you hear him speak: (A1‑Anfal 8:20)

9. Obey Allah and His Apostle, and do not disagree among yourselves or you will be unmanned and lose courage. Preserve, for Allah is with those who endure. (Al‑Anfal 8:46).

10. Say: "Obey Allah and obey the Apostle. If you turn away, then for him in his duty to fulfil and for you the burden that you carry; yet if you obey him you will be rightly guided. (A1‑Noor 24:54).

11. Say: "If you love Allah then follow me that Allah may love you and forgive your sins; for Allah is forgiving and kind". (A1‑Imran 3:31).

12. Say: "Obey Allah and His Messenger"; if they refuse (then remember) Allah does not love disbelievers. (A1‑Imran 3:32).

13. Obey Allah and the Prophet (p. b. u. h.), that you may be treated with mercy: (A1‑Imran 3:32).

14. Obey Allah and His Prophet (p. b. u . h.) . Allah is aware of all you do. (AI‑Mujadilah 58:13) .

15. O you who believe, obey Allah and the Prophet (p.b.u.h.) and those in authority among you; and if you are at variance over something, refer to Allah and the Messenger, if you believe in Allah and the Last Day. This is good for you and the best of settlements. (Al‑Nisa 4:59).

16. Those who disobey Allah and the Prophet and exceed the bounds of law, will be taken to Hell and abide there for ever and shall suffer despicable punishment. (Al‑Nisa 4:14).

17. Surely those who do not believe, and obstruct others from the path of Allah and oppose the Prophet after the way of guidance has been opened to them, will not hurt Allah in the least and He will nullify all their deeds. (Muhammad 47:32).

18. O you who believe, obey Allah and the Prophet, and do not waste your deeds. (Muhammad 47:33).

23. The Government of Pakistan established Talimat‑i‑Islami Board headed by no less an eminent Scholar of Islam than 'Allama Syed Sulaiman Nadvi, to make recommendations as to the incorporation of Islamic provisions and other allied matters in the Pakistan Constitution. Besides, 31 learned 'Ulama of Pakistan unanimously compiled and submitted to the Government 22 points in January, 1951, to be incorporated in the proposed Constitution. Points Nos.l, 2 and 22 which are relevant for the purposes of the present discussion are reproduced as under:‑----

24. In 1954, the Constituent Assembly passed a Bill amending sections 10, 10‑A and 10‑B of the Government of India Act, 1935, whereby the Governor‑General could no longer dissolve the legislature or remove the Cabinet except under certain circumstances. To great misfortune of the people of Pakistan, Ghulam Muhammad, the then Governor‑General, with military backing, Refer: Ayub Khan "Friends and not Masters" on 24th October, 1954, issued a proclamation declaring state of Emergency throughout Pakistan and dissolved the Constituent Assembly. Indeed, General Muhammad Ayub Khan, the then Commander‑in‑Chief,

Major‑General Iskandar Mirza the then Defence Secretary to the Government of Pakistan, among several others, figured in the new Council of Ministers. This was done when the Assembly had almost completed its task of Constitution‑making. The draft Constitution was ready to be placed before the Assembly. In fact, it had already been made public that the Constitution would be enforced on 25th December, 1954, the birthday anniversary of late Quaid‑i‑Azam. The action of Governor‑General, Ghulam Muhammad was challenged by Maulvi Tamizuddin Khan, who was President of the Assembly, by filing a Writ Petition under section 223‑A, Government of India Act, 1935 in the then Chief Court of Sind, against the Federation of Pakistan and others. The then Chief Court of Sind allowed the petition and directed that the writ should issue. The judgment, however, on appeal was reversed by the Federal Court, as passed without jurisdiction. It was thus held that the Constituent Assembly when it functioned under subsection (1) of section 8, Indian Independence Act, 1947, acted as the Legislature of the Dominion within the meaning of section 6 of that Act; that under subsection (3) of the latter section the assent of the Governor- General was necessary to all legislation by the Legislature of the Dominion; that since section 223‑A, Government of India Act, 1935, under which the Chief Court of Sind assumed jurisdiction to issue the writs had not received such assent, that section was not law and that, therefore, that/Court had no jurisdiction to issue the writs, (Federation of Pakistan; Maulvi Tamizuddin Khan P L D 1955 F C 240). The action of Chulam Muhammad brought down the whole nation to disgrace as, in effect, he was held to be a servant of British Crown. He was thus not answerable to the People of Pakistan. The Ministers appointed were more or less Executive Councillors of the Viceroy of British India (Refer: G.W. Choudhury's book "Constitutional Development in Pakistan" and I.H. Qureshi (General Editor) "A Short History of Pakistan". Book four on "Alien Rule and the Rise of Muslim Nationalism").

25. Ghulam Muhammad wanted to frame a Constitution of his own choice and enforce it by an executive Order, but the verdict of the Pakistan Federal Court in the case of Usif Patel P L D 1955 F C 387 made his attempt abortive. A Second Constituent Assembly was, thus, formed and, at last, a Constitution was passed and promulgated on 23rd March, 1956. Chapter‑I of Part XII of that Constitution contained the following Islamic provisions:‑

"197.‑ (1) The President shall set up an organization for Islamic research and instruction in advanced studies to assist in the reconstruction of Muslim society on a truly Islamic basis.

(2) Parliament may by Act provide for a special tax to be imposed upon Muslims for defraying expenses of the organization set up under clause (1), and the proceeds of such tax shall not, notwithstanding anything in the Constitution, form part of the Federal Consolidated Fund.

198.‑ (1) No law shall be enacted which is repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah, hereinafter referred to as Injunctions of Islam, and existing law shall be brought into conformity with such Injunctions.

(2) Effect shall be given to the provisions of clause (1) only in the manner provided in clause (3).

(3) Within one year of the Constitution Day, the President shall appoint a Commission‑‑‑

(a) to make recommendations‑‑

(i) as to the measures for bringing existing law into conformity with the Injunctions of Islam, and

(ii) as to the stages by which such measures should be brought into effect; and

(b) to compile in a suitable form, for the guidance of the National and Provincial Assemblies, such Injunctions of Islam as can be given legislative effect.

The Commission shall submit its final report within five years of its appointment, and may submit any interim report earlier. The report, whether interim or final, shall be laid before the National Assembly within six months of its receipt, and the Assembly after considering the report shall enact laws in respect thereof.

(4) Nothing in this Article shall affect the personal laws of non‑Muslim citizens, or their status as citizens or any provision of the Constitution.

Explanation.‑‑In the application of this Article to the personal law of any Muslim sect, the expression "Qur'an and Sunnah" shall mean the Qur'an and Sunnah as interpreted by the sect."

26. Article 197 required the President to set‑up an organization for Islamic research and instruction in advance studies to assist in the reconstruction of Muslim Society on a truly Islamic basis. The expenses for the purpose were to be made by a special tax to be imposed upon the Muslims. Article 198 provided that no law shall be enacted which is repugnant to the Injunctions of Islam, as laid down in Holy Qur'an and Sunnah, and that the existing laws shall be brought in conformity with such injunctions. The second clause of Article 198, however, enjoined that the effect shall be given to the above requirement as to the law‑making in the manner indicated in the third clause of the Article. This clause of the Article enjoined upon the President to appoint a Commission to make recommendation as to the measures for bringing existing laws in conformity with the Injunctions of Islam and the stages by which such measures shall be brought into effect. The Commission was also made responsible to compile in a suitable form, for the guidance of National and Provincial Assemblies, such Injunctions of Islam as can be given legislative effect. "The overall effect of this Article was that legislature was Supreme inasmuch as a law passed in contravention of the requirement of Article 198 could not be successfully challenged in a Court of Law, nor a Writ of Mandamus could lie to compel the Executive or the Legislature to bring existing laws in conformity with the Injunctions of Islam." Tanbir v. Province of E. Pakistan P L D 1968 SC 185.

27. However, one day before the expiry of one year's time fixed in the Constitution a Chairman of the above Commission was named by the then President of Pakistan, but no members were appointed nor any concrete steps were taken to achieve the objectives indicated in Article 198. In fact, before any beginning could be made in this direction, the said Constitution of 1956 was abrogated by the proclamation made by Iskandar Mirza, the then President of Pakistan, on 8th October, 1958 with General Muhammad Ayub Khan Commander‑in‑Chief of Pakistan Army as Chief Martial Law Administrator who, only after about 20 days on 27th October, 1958, was all powerful when Iskandar Mirza was made to resign and leave the country. Later on, General Muhammad Ayub Khan was able to achieve what Ghulam Muhammad had failed, in having a Constitution of his own choice which was imposed by Ayub Khan as Constitution of 1962. In that Constitution setting up of an Advisory Council of Islamic Ideology was provided for. By the first (Constitution) 'Amendment Act, 1963, the Council was also made responsible to examine all laws in force immediately before the amendment of the Constitution (First Amendment) Act, 1963, with a view to bring them into conformity with the teaching and requirement of Islam as set out in the Holy Qur'an and Sunnah.

28. In the Constitution of 1962, it was specifically provided that the laws which are found repugnant to the fundamental rights granted by the Constitution itself, the High Courts and the Supreme Court could declare those laws as ultra vires to the Constitution, and hold them as null and void, but there was no provision in the Constitution of the Islamic Republic of Pakistan that the Courts could declare laws repugnant to the Injunctions of the Holy Qur'an and Sunnah, as inoperative and void.

29. Although the Constitution of 1962 declared as its first principle of law‑making that "no law should be repugnant to Islam, and by the Constitution (First Amendment) Act, 1963 Principle No.l was made more realistic by inserting "No law shall be repugnant to the teachings and requirements of Islam, as set out in the Holy Qur'an and Sunnah", but under Article 6(i) of the Constitution it was provided that "the responsibility of deciding whether a proposed law does or does not violate or is or is not otherwise in accordance with the principles of the law‑making is that of the Legislature concerned. In sub‑Article (2) of the said Article 6 it was further provided that "validity of a law shall not be called in question on the ground that the law disregads, violates, or is otherwise not in accordance with the principles of law‑making". The question arose in the Supreme Court of Pakistan in the case of Ali Nawaz Gardezi v. Muhammad Yusuf P L D 1963 S C 51 at p. 74, whether the provisions of section 7 of the Muslim Family Laws Ordinance, 1961, relating to divorce were in strict conformity with Islamic Law. Justice S.A. Rahman who wrote the judgment (and the other four learned Judges namely, A.R. Cornelius, J., Fazl‑e‑Akbar, J., B.Z.Kaikaus, J., and Hamoodur Rahman, J. concurring) observed that "it is a question which does not fall within the province of this Court by reason of Articles 5 and 6 of the Constitution".

30. Here I may also refer to the debate in the Assembly on the Constitution (First Amendment) Bill in 1963 Session at Dacca p. 1709. Mr. Khurshid Ahmad, the then Law Minister opposing the suggestion that the law Courts should be given jurisdiction to determine whether a particular law is in accordance with Holy Qur'an and Sunnah, said that:

"The position is that in my winding up submissions, I would be very clear; it would be deterrent at this stage to give this right to the Courts to determine as the last authority whether a particular law is in accordance with the Holy Qur'an and Sunnah and I have made detailed submission on that point and I would not like to repeat them. Finally, I would say, there has been many proposals in this country since 1947, subject to correction, but there is no proposal which was ever brought before any Committee in which such a provision was made. As I submitted earlier, the Constitution provides a machinery whereby we can islamise our laws. We have already amended Article 204, we have provided that the Advisory Council should give report annually in a nicer and better and more beneficial and practical way. Islam should not be the subject‑matter of argument of professional lawyers, our Courts are not conversant with the religious knowledge and very few lawyers with western knowledge ever dared make any 'Ijtehad' and very few lawyers conversant with the western jurisprudence are entitled to make submission about our religious faith. Then it would be a great mistake to leave this matter to the Court and the arguments of the counsel who would be representing the litigant parties and the Court would be determining this question in a particular case where the party would be represented by particular lawyers putting particular point of view and we cannot leave the interpretation of Islam to such parties. It would be dangerous. The best thing is that we create a situation in the country by education and by the spirit of 'Ijtehad', we create such public opinion that we islamise our laws. Article 198, I would say again, of the late Constitution had nothing compelling in it whereby the House was bound to accept the recommendations of the Commission. Under Article 198, the Commission was to give the report in five years and then that report was to be brought before the National Assembly. Ultimately it was for National Assembly whether to make the laws or not. I maintain that this matter was not envisaged to be debated in the Courts."

31. The provision of law‑making concerning Islam, as envisaged in 1962 Constitution, in the words of late Justice M. Munir, former Chief Justice of Pakistan in his commentary on the Constitution of Pakistan, 1962 (p. 215), was "merely illusory". It remained merely as a statement of the position about Islam as a sort of manifesto of Constitution‑makers. In fact, it proved to be a dead letter of the Constitution. So far as the Court's jurisdiction to declare a law as repugnant to Islam was concerned, it was denied to them.

32. In February, 1969, on submitting resignation by F.M. Ayub Khan, to General Yahya Khan Martial Law was again imposed in the country and the Constitution of 1962 was abrogated by General Muhammad Yahya Khan who was, later on, held as "Userper" by the Hon'ble Supreme Court in Asma Jillani's case. The Martial Law was, however, lifited in 1972 with the promulgation of an Interim Constitution in 1972, followed by a permanent Constitution in August, 1973. It was passed by the collective will of .the people of Pakistan expressed through their chosen representatives. This Constitution, too, provided that "all existing laws shall be brought in conformity with the injunctions of Islam as laid down in the Holy Qur'an. and Sunnah, and that no law shall be enacted which is repugnant to such Injunctions". The Council for Islamic Ideology (the word 'Advisory' having been dropped) was also provided for and, unlike the two previous Constitutions, a time‑limit of 9 years, in all, was fixed to bring all the existing laws in conformity with the Qur'an and Sunnah (Articles 227‑‑30).

33. Although it was provided in Article 227 that "all existing law shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah", but the effect to be given was restricted to the legislature concerned and no power was conferred on Superior Courts for their enforcement as such. Thus, the position relating to Islamic Law even under the Constitution of 1973 remained the same as that under the Constitution of 1962 except that a time‑limit of 9 years was fixed to give legislative effect to the recommendation of the Council of Islamic Ideology, which was due to be completed by August 1982. But, again, on 5th July, 1977, as a result of certain upheavals in the country, the Constitution of 1973 was suspended an6 Martial Law was proclaimed by the Chief of the Army Staff, General Muhammad Zia‑ul‑Haq, as Chief Martial Law Administrator, who after sometime, also, assumed the office of President to himself.

34. On 1st January, 1978 General Muhammad Zia‑ul‑Haq made an announcement that the Superior Courts of Pakistan will be empowered to declare "any" law repugnant to the Qur'an and Sunnah, as void. But, perhaps, on second thought, instead of conferring jurisdiction on the High Courts and the Supreme Court, four Shari'at Benches in all the four High Courts and one Appellate Shari'at Bench in the Supreme Court were established by a Presidential Order promulgated on 10th February, 1979 to declare as void, any "law" but restricted by its definition, if found repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Prophet (p.b.u.h.). After nearly 15 months, a separate Court for the purpose called "Federal Shari'at Court" was established and for that purpose a Constitution Amendment Order was promulgated on 27th May, 1980 and a new Chapter 3‑A was added to the Constitution. The Federal Shari'at Court was first constituted comprising of one Judge from each of the four High Court:;

as members thereof and a retired Judge of the Supreme Court as its Chairman. After about a year, it was found expedient that three 'Ulama of traditional learning and well versed in Islamic Law, be also included in the said Federal Shari'at Court as members thereof. Later on, two 'Ulama of traditional learning well versed in Islamic law were also included in the Shari'at Appellate Bench of the Supreme Court, to make the entire set up workable and acceptable to the people.

35. On 30th December, 1985 the Martial Law, imposed since 5th July, 1977, was lifted and the Constitution, 1973 was restored by Revival of the Constitution Order, 1985. In the Constitution, so revived, a new provision as Article 2‑A was inserted by P.O. No.14 of 1985, Article 2 and schedule Item 2 (with effect from March 2, 1985), by which the Objectives Resolution formed as substantive part of the Constitution and is to have effect accordingly. The new Article reads as under:‑

"2‑A.‑‑The principles and provisions set out in the Objectives Resolution reproduced in the Annex. are hereby made substantive part of the Constitution and shall have effect accordingly."

This insertion or incorporation of the Objectives Resolution in the Constitution has a background. The question as to the legal effect of the Objectives Resolution, earlier incorporated as preamble to the Constitutions of 1956 and 1962 as well as the Interim and Permanent Constitutions of 1972 and 1973 respectively came up for consideration, perhaps, for the first time, in Asma Jillani's case P L D 1972 S C 139.

Late Chief Justice Hamoodur Rahman regarding the Objectives Resolution observed as under:‑

"In any event, if a grund norm is necessary for us I do not have to look to the Western legal theorists to discover one. Our own grund norm is enshrined in our own doctrine that the real sovereignty over the entire universe belongs to Almighty Allah alone, and the authority exercisable by the people within the limits prescribed by Him is a sacred trust. This is an immutable and unalterable norm which was clearly accepted by the Objectives Resolution passed by the Constituent Assembly of Pakistan on the 7th of March 1949. This Resolution has been described by Mr. Brohi as the "corner stone of Pakistan's legal edifice" and recognised even by the learned Attorney‑General himself "as the bond which binds the nation" and as a document from which the Constitution of Pakistan "must draw its inspiration". This has not been abrogated by any one so far, nor has this been departed or deviated from by any regime, military or Civil. Indeed, it cannot be, for, it is one of the fundamental principles enshrined in the Holy Qur'an.

Say, 'O Allah, Lord of sovereignty. Thou givest sovereignty to whomsoever Thou pleasests, and Thou takes away sovereignty from whomsoever Thou pleasests. Thou exaltest whomsoever Thou pleasest and Thou abesest whomsoever Thou pleasest.

The basic concept underlying this unalterable principle of sovereignty is that the entire body politic becomes a trustee for the discharge of sovereign functions. Since in a complex society every citizen cannot personally participate in the performance of the trust, the body politic appoints State functionaries to discharge these functions on its behalf and for its benefit, and has the right to remove the functionary so appointed by it if he goes against the law of the legal sovereign, or commits any other breach of trust or fails to discharge his obligations under a trust. The functional Head of the State is chosen by the community and has to be assisted by. a Council which must hold its meetings in public view and remain accountable to public. It is under this system that the Government becomes a Government of laws and not of men, for, no one is above the law. It is this that led Von Hammer, a renowned orientalist, to remark that under the Islamic system "the law rules through the utterance of justice, and the power of the Governor carried out the utterance of it."

At page 147 of the Report it was further observed that:‑

"Pakistan is an Islamic Republic. Its ideology is enshrined in the Objectives Resolution of the 7th April 1949 (sic), which inter alia declares wherein 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 Sunnah. We should, therefore, turn more appropriately to Islamic Jurisprudence for the definition of "law". On method of defining "law" is to know its source. In Shari'at, laws have devine origin. They are contained in the Holy Qur'an, and Hadith, namely, precepts and actions of the Holy Prophet (peace be upon him). The other sources are Ijma' Consensus and justice deductions including Qiyas: Analogy, Istihsan or Justice, Equity, Public good, Istidlal; Reason and Ijtihad; Justice Exposition. While Juristic Deductions are judge‑made laws, Ijma' is based on the doctrine of Imam Shafe'i that "the voice of the people is the voice of God", and is the most fruitful source of law‑making in Shari'at. In the present day context the Legislative Assemblies comprising of chosen representatives of the people perform this function. Thus, in Islamic jurisprudence, the will of a sovereign, be the monarch, the President or the Chief Martial Law Administrator is not the source of law can The People as delegatee of the Sovereignty of the Almi ht alone laws which are in conformity with the Hol Qur'an and Sunnah."

The question again came up before the Supreme Court for consideration in the case of State v. Zia‑ur‑Rehman P L D 1973 S C 49. Regarding the Objectives Resolution, the Chief Justice Hamoodur Rehman, again observed that:‑

" ..after a normal written Constitution has been lawfully adopted by a competent body and has been generally accepted by the people including the judiciary as the Constitution of the country, the judiciary cannot claim to declare any of its provisions ultra vires or void. This will be no part of its function of interpretation. Therefore, in my view, however, solemn or sacrosanct a document, if it is not incorporated in the Constitution or does not form a art thereof it cannot control the Constitution. At any rate, the Courts created under the Constitution will not have the power to declare any provision of the Constitution itself as being in violation of such a document. If in fact that document contains the expression of the will o the vast majority of the people then the remedy for correcting such a violation will lie with the people and not with the judiciary. It follows from this that under our own system too the objectives Resolution of 1949, even though it is a document which has been generally accepted and has never been repealed or renounced, will not have the same status or authority as the Constitution itself until it is incorporated within it or made art of it. (Underlined by me). I it appears only as a preamble to the Constitution, then it will serve the same purpose as any other preamble serves, namely, that in the case of any doubt as to the intent of the law‑maker, it may be looked at to ascertain the true intent, but it cannot control the substantive provisions thereof."

It was further observed that:‑

"The Objectives Resolution being the "grund norm" for Pakistan. The "grund norm" referred to by us was something even above the Objectives Resolution which as Sajjad Ahmad Jan, J. put it "embodies the spirit and the fundamental norms of the constitutional concept of Pakistan". It was expected by the Objectives Resolution itself to be translated into the Constitution.

Even those that adopted the Objectives Resolution did not envisage that it would be document above the Constitution. It is incorrect, therefore, to say that it was held by this Court that the Objectives Resolution of the 7th of March 1949, stands on a higher pedestal than the Constitution itself."

36. In order to complete the background, it will not be out of context to mention that General Muhammad Zia‑ul‑Haq, in his search for a true Islamic system of State, assigned the work of formulation of the Constitutional recommendations to several Bodies and Committees viz. the Council of Islamic Ideology, the then Majlis‑e‑S hoorah (his own creation) and his Cabinet Committee. The Council of Islamic Ideology submitted its first report in or about March, 1982 but the same was sent back to the council for its reconsideration. The council, thereupon, submitted its second report on "Constitutional Recommendation" on 4‑6‑1983 which, inter alia, recommended that‑‑

"Article 1(2).‑‑ The basic sources of all legislation are the Qur'an and Sunnah.

Article 1(3).‑‑ The President, his ministers, advisers, Government officials and the members of the Majlis‑i‑Shoora are accountable for their actions to the people in accordance with the injunctions of Islamic Shari'ah.

Article 1(19).‑‑ Public Revenue shall be raised on the basis of Zakat, Ushr, Khums and Fai: the Government, however, shall, within the limits of Shari'ah, be authorised to levy such other taxes as are necessary.

DEFINITION OF ISLAMIC STATE

Article 2 A State wherein the Muslims enjoy ruling power, submitting themselves, to the Sovereignty of Allah, and as the vicegerents of Allah, enforce and practise the injunctions of the Qur'an and Sunnah, and wherein the Islamic laws are held supreme to all other laws, is an Islamic State.

LAWS REPUGNANT TO THE QUR'AN AND SUNNAH TO BE VOID:

Article 3(1).‑‑ All laws of the State shall be in conformity with the injunctions of the Qur'an and Sunnah.

Article 3(2).‑‑ Any law, or any custom or usage having the force of law, in so far as it is repugnant to the injunctions of the Qur'an and Sunnah, shall, to the extent of such repugnancy, be void.

JUDICIARY.

11. Art.(1)‑‑TheJudiciary of the State shall consist of following Courts:

(a) The Supreme Court.

(b) The High Courts.

(c) Other subordinate Courts established by law.

(3) Establishment of Special Courts or Tribunals shall be prohibited, and no citizen shall be deprived of his right to seek justice, from an ordinary Court of Law.

(4) No Court shall be deprived of its power and jurisdiction to hear a claim or complaint against the President, a Minister of any of the Government officials, nor shall it be subjected to any condition or limitation imposed on its jurisdiction.

(6) (a) The President shall appoint the Chief Justice of the Supreme Court.

(e) No Judge shall be appointed to a sanctioned and permanent post in the Supreme Court or in any of the High Courts on a temporary basis.

(8) When the Chief Justice of the Supreme Court or of a High Court is absent, or is unable to perform the functions of his office due to any other case, the President shall appoint the most senior of the other Judges of the Supreme Court or of the High Court concerned, as the case may be to act as Chief Justice of the Supreme Court or of the High Court concerned.

(10) Subject to this Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by this. Constitution shall not be abridged."

37. The other two Committees also submitted their reports. It appears that General Muhammad Zia‑ul‑Haq was, perhaps, not fully satisfied with the said reports. He, therefore, on 10‑7‑1983 appointed a Commission to consider the reports of the three Bodies/ Committees and after reviewing them submit. its consolidated recommendations to the President. The said ;Commission comprised of four members of the Council of Islamic Ideology and 12 others, including two Ad‑hoc 'Ulama members of the Shariat' Appellate Bench and two retired Judges of the Supreme Court. In fact, one member of the Council was appointed as its Chairman. The said Commission, inter alia, recommended in its report dated 4 ‑ 8 1983 that:

38. The President accepted the recommendations of the Commission and made the Objectives Resolution as part of the Constitution (vide P.O. No.14 of 1985). This completes the background of the Objectives Resolution. Before proceeding further, I must say that the insertion of the Objectives Resolution in the Constitution, as Article 2‑A, is a most significant contribution made by the President in the process of Islamization, otherwise, excepting the few steps taken by him in the direction, the whole process of Islamization which was intended to be completed by August 1982, as envisaged by Article 230 of the Constitution, had received a setback during Martial Law regime, inasmuch as the Annual Reports of the "Council of Islamic Ideology" for 1977‑78, 78‑79, 79‑80, 80‑81, 81‑82, 82‑83 and 1983‑84 and many other reports e.g. on Pakistan Code, Taxation and Fiscal System, Education, Family Planning, Islamic Economic system, Islamic Judicial System, Insurance etc. , which were to be considered annually, were presented in the National Assembly, Senate and the Provincial Assemblies only in or about 1986 after the lifting of the Martial Law.

39. Now, in order to understand the effect of Article 2‑A, it seems pertinent to first review the Islamic provisions in the Constitution, as a whole. The Islamic provisions (I do not mean, other provisions are un‑Islamic, by implication), which are, in one way or the other, concerned with the intention of enforcement of Islam in Pakistan, are contained in Articles 2, 2‑A, 19, 31, 37(h), 38(f), 40, 41(2), 62(e), 203‑A to 203‑GG and 227 to 230. Article 1 provides that Pakistan shall be a Federal Republic to be known as "Islamic Republic of Pakistan"; Article 2 provides that Islam shall be the State religion of Pakistan; Article 2‑A has already been quoted above. Article 19 provides for freedom of speech, subject to any reasonable restrictions imposed by law in the interest of glory of Islam. Article 31 provides that the steps shall be taken to enable the Muslims of Pakistan individually and collectively, to order their lives in accordance with the fundamental principles‑ and basic coneopts of Islam, according to Holy Qur'an and Sunnah. Article 37(h) casts a duty on the State to prevent the consumption of alcoholic liquor otherwise than for medicinal and, in case of non‑Muslims, religious purpose. Article 38(f) casts a duty on the State to eliminate Riba as early as possible. Article 40 provides for strengthening rionds with Muslims and promoting international peace.

Article 41(2) provides that a person shall not be qualified for election as President unless he is a Muslim. Article 62(e) prescribes as one of the conditions for a Muslim to be elected or chosen as a member of Majlis‑e‑Shoora (Parliament) that he has adequate knowledge of Islamic teaching and practices obligatory duties prescribed by Islam as well as abstains from major sins. Articles 227 to 230 (Part IX), entitled as "Islamic Provisions" contain the provisions relating to the Holy Qur'an and Sunnah. Article 227 provides that all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah and that no law shall be enacted which is repugnant to the Injunctions of Islam. Article 228 provides for the constitution of a Council of Islamic Ideology. Article 229 relates to making references by Majlis‑e‑Shoora (Parliament) etc. to the Islamic Council for advice on a question whether a proposed law is or is not repugnant to the Injunctions of Islam. Article 230 prescribes the functions of the said Council, which include (a) making recommendation to the Majlis‑e‑Shoora (Parliament) and the Provincial Assemblies as to ways and means of enabling and encouraging the Muslims of Pakistan to order their lives individually and collectively in all respects in accordance with the principles and concepts of Islam as enunciated in the Holy Qur'an and Sunnah; (b) advising a House, a Provincial Assembly, the President or a Governor on any question referred to the Council as to whether a proposed law is or is not repugnant to the Injunctions of Islam; (c) making recommendation as to the measures for bringing existing law into conformity with the Injunctions of Islam and the stages by which such measures should be brought into effect; and (d) to compile in a suitable form for the guidance of Parliament and the Provincial Assemblies such Injunctions of Islam that can be given legislative effect. Article 230(4) provides that the Council shall submit its final report within seven years of its appointment, and shall submit an annual interim report. The report, whether interim or final, shall be laid for discussion before both Houses and each Provincial Assembly within six months of its receipt, and Majlis‑e‑Shoora (Parliament) and the Assembly, after considering the report, shall enact laws in respect thereof within a period of two years of the final report. (Underlining is mine).

40. As regards jurisdiction of the Courts, Article 175(2) provides that "no Court shall have any jurisdiction save as is or may be conferred R on it by the Constitution or by or under any law. Article 199 confers extraordinary Constitutional jurisdiction on a High Court, which inter alia, provides that on the application of any aggrieved person, a High Court may make an order giving such directions to any person or authority including any Government exercising any power of performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II of the Constitution. Article 203‑C provides for the establishment of Federal Shariat Court. Under Article 203‑D Federal Shariat Court may, either of its own motion or on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government examine and decide the question whether or not any law or provision of law including any custom or usage having the force of law, but excluding the Constitution, Muslim Personal Law, an law relating to the procedure of an Court or tribunal or, until the expiration of 10 years from the commencement of Chapter 3‑A of the Constitution an fiscal law or an law relating to the levy and collection of taxes and fees or banking or insurance practice and procedure (Underlining by me), is repugnant to the Injunctions of Islam, as laid down in the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.). If the Court decides that any law or provision of law within its defined sphere is repugnant to the Injunctions of Islam, it shall (a) set out in its decision the reason for its holding that opinion, and (b) the extent to which such law or provision is so repugnant; and specify the day on which the decision shall take effect. The President in the case of law with respect to the matter in the Federal Legislative list or the Concurrent Legislative List, or the Governor in the case of e law with respect to a matter not enumerated in either of these Lists shall take steps to amend the law so as to bring such law or provision into conformity with the Injunctions of Islam; and such law or provision shall, to the extent to which it is held to be so repugnant, cease to have effect on the day on which the decision of the Court takes effect (Article 203‑D(3) (b)]. Article 203‑G says that save as provided in Article 203‑F, which relates to an appeal to the Supreme Court against a decision of the Federal Shari'at Court, no Court or Tribunal including the Supreme Court and a High Court, shall entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the said Court and subject to Articles 203‑D and 203‑F, any decision of the Federal Shari'at Court in exercise of its jurisdiction under Chapter 3‑A shall be binding on a High Court and on all Courts subordinate to High Court.

41. It is noticeable that the Federal Shari'at Court is only to look into a law with a view to find out if the said law or any provision thereof is repugnant to the Injunctions of Islam. If it is so found, it shall be so declared, with the result that the said law shall cease to be effective as on and from the day the decision of the Federal Shari'at Court takes effect. The Federal Shari'at Court is not obliged, under the Constitution, to legislate, or to frame a new law or a provision thereof, as substitute of the said law or provision thereof, to bring it into conformity with Shari'ah, because it does not possess such legislative power or advisory capacity. In other words, its function is not to bring the existing law into conformity with the Injunctions of Islam. For example, while examining section 302 of the Penal Code, 1860 relating to murder, read with the provision of its non‑compoundability under the Criminal Procedure Code, 1898, the Federal Shari'at Court may declare that the offence of murder is compoundable and the existing provision of law, to that extent, is repugnant to the Injunctions of Islam. But the Federal Shari'at Court is not obliged to frame the law of Qisas and Diyat, as it would be outside its scope. The constitutional function of advising the Government as to the measures for bringing the said law into conformity with the Injunction of Islam has been assigned to the Council of Islamic Ideology. (Articles 227‑‑30).

42. Such is the scheme of things laid down in the Constitution in the matter of Islamization of laws and the society. Now, with this perspective, it will be useful to revert to consider the effect of the Objectives Resolution under Article 2‑A.

43. The Objectives Resolution, as preamble, was not given a position equal to that of a provision of the Constitution, what to say Supra‑Constitutional position. "It was unjusticeable and preambulatory provision", as observed by Mr. Justice Muhammad Afzal Cheema (as he then was) in Ziaur Rehman v. State P L D 1986 Lah. 428. However, in the same judgment Mr. Justice Muhammad Afzal Zullah (as he then was) expressed the view that "the Objectives Resolution is "Supra‑Constitutional Instrument" which is unalterable and immutable and the present National Assembly has no power to enact any Constitution or law which either directly or indirectly contravenes any of the provisions of the said Resolution" (supra). This view of Mr. Justice Muhammad Afzal Zullah, it appears, did not find favour with the Hon'ble Supreme Court when the matter came up in Appeal before them and it was observed that the Objectives Resolution was not higher than the Constitution. State v. Ziaur Rehman P L D 1973 S C 149. Nonetheless the Objectives Resolution was declared to be a "grund norm"‑‑an "immutable and unalterable norm", as observed by late Chief Justice Hamoodur Rehman, and in the words of Mr. Brohi, "as the Cornerstone of Pakistan edifice" P L D 1972 S C 139.

44. By inserting Article 2‑A and thereby making the Objectives Resolution as integral part of the Constitution, it has now assumed the' position of a provision like any other provision of the Constitution. Nevertheless it can, now, be regarded as "Supra‑Constitutional document", as earlier observed by Mr. Justice Muhammad Afzal Zullah. (as he then was) in his judgment Ziaur Rehman v. State P L D 19861 Lah. 428. The Objectives Resolution is said to be containing principles and provisions. In fact, Article 2‑A itself says so. An analysis of the said Resolution will show that its opening paragraph is, in fact, a declaration in the form of a preamble that Sovereignty over the entire universe belongs to Almighty Allah alone. It indicates mutual relationship between God and man. In view of this, no human determinate superior, or the State as a person by legal fiction, or its several Organs, e.g. Legislature, Executive or Judiciary, can claim to be sovereign in the Islamic State of Pakistan because, both in the political as well as legal sense, the absolute and final power vests in Allah the Almighty alone. This Sovereignty finds expression through the Holy Qur'an and the Sunnah of His Prophet, Muhammad (p.b.u.h) (Refer: paras. 18, 19 supra‑‑The Qur'anic versus regarding Allah's Sovereignty and obedience to Him and His Prophet (p. b. u. h .)) . For all practical purposes, therefore, all authority is to be exercised by the elected representatives of the people and it must be exercised within the limits prescribed by Almighty as a sacred trust from Him, as Sovereignty vests in Him alone.

45. The Constitution‑makers seem to have pledged that the said relationship will not only be exhibited in but, will also, for all practical purposes, control their entire effort to frame a Constitution. It binds down the Legislature not to enact any law in derogation of the Holy Qur'an and Sunnah. The Resolution, thereafter, expressed in unequivocal terms the will of the Constituent Assembly, representing the people of Pakistan, to frame a Constitution, wherein the State is to exercise its power and authority through chosen representatives of the people. It connotes that no Constitution is valid unless it has the tacit approval of the elected representatives of the people of Pakistan. The resolution then affirms the observance of the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam, in the said Constitution, and that the Muslim shall, be enabled to order their lives in accordance with teachings and requirements of Islam as set out‑ in the Holy Qur'an and Sunnah. It means that the State will not obstruct and prevent Muslims from obeying the command ment of Allah, either individually or collectively, by making a provision in the Constitution or enacting any law repugnant to the Injunctions of Islam. Then, it is confessed that adequate provisions shall be made for (i) the minorities, (ii) formation of a Federation, wherein units will be autonomous with such limitations on their powers and authority as may be prescribed, (iii) the guarantee of fundamental rights subject to law and public morality, (iv) securing independence of judiciary and (v) safeguarding integrity of the territories of the Federation, its independence and sovereign rights so that the people of Pakistan may prosper and attain their rights and honoured place amongst the nations of the world and make their full contribution towards international peace and progress and happiness of humanity. All the above principles and provisions have been made, more or less, in the mandatory form by using the word 'shall'. It is thus, implied that no provision in the Constitution can be made which disregards the principles of democracy as enunciated by Islam, and so the door for absolute monarchy or a totalitarian dictatorship is closed for ever. The question, however, is about the authority who is to give effect to these declarations, principles or provisions enumerated in the said Objectives Resolution, the Legislature or the Courts There can be no dispute that primarily it is the duty of the National Assembly, Senate and Provincial Assemblies who are responsible to give effect to them, by means of making appropriate provisions in the Constitution and enacting laws to achieve the Objectives, but in case they show indifference or fail to adhere to the said principles and objectives while making Constitution or law, can the Court intervene and strike down a provision of the Constitution or law found to have been made in derogation of and repugnant to the principles and provision of the Objectives Resolution and enforce the existing law with such adaptations as are necessary, in accordance with the teachings and requirements of Islam as set out in the Holy Qur'an and Sunnah. In other words, if the Constitution fails to exhibit the said principles and provisions it will be considered that the Constitution lacks in achieving the said Objectives. Similarly, if no provisions are made in the Constitution to enable the Muslims to order their lives in accordance with the requirements of Islam, as set down in the Holy Qur'an and Sunnah, it will be deemed that Constitution does not reflect the true spirit of the declaration made in the Resolution. As regards their effect or, in other words, their justiceability, in my humble opinion, the Objectives Resolution having now been incorporated into the Constitution and in view of the observations of the Honourable Supreme Court in Asma Jillani's case the said principles and objectives will be justiceable and any provision in the Constitution or law, which is not in accord with Objectives Resolution, can be stuck down by the Courts, in a particular case, when it is challenged before them, on the ground that it is repugnant to the paramount clause of the Constitution. The Courts will. however, exercise this jurisdiction within the limits prescribed by the Constitution and the law. Thus, if the Constitution makers or the legislature are found to have disregarded the said precise principles and provisions while framing the Constitution or enacting any law, such a provision of the Constitution or law can be held by the Courts to that extent invalid. I am mindful of the decisions of our Supreme Court in Saeed Ahmad's case P L D 1974 S C 151 and Fauji Foundation's case P L D 1983 S C 457 that judiciary being itself the creation of the Constitution cannot declare a provision of the Constitution as void. But, with all respect and humility, I may submit that the question to test the validity of a provision in the Constitution on the touchstone of Article 2‑A was not considered in the said cases. The question may, perhaps, require re‑consideration in view of the incorporation of Article 2‑A in the Constitution which was not, then, in existence. The Objectives Resolution, in my humble view, occupies a unique position in the Constitution, inasmuch as it lays down the main purpose of the Constitution and the same is to be construed so as to determine the original intent in the light of the contemporary content, in order to effectuate the said intent and purpose which, of course, will involve the interpretation of Article 2‑A as to its place and scope vis‑a‑vis the other provisions of the Constitution. As far as this Court is concerned the question of striking down any provision of the Constitution has neither arisen before me nor perhaps, at the moment, I am called upon to decide the question as I am hearing a suit on the original side of the High Court, under a special jurisdiction conferred on it by the Banking Companies (Recovery of Loans) Ordinance, 1979.

46. Another question may, perhaps, arise that if the Constituent Assembly or for that matter the Parliament has failed to provide for what has been pledged in the Objectives Resolution, so that there is a gap or vacuum in the Constitution. Can that gap be filled in by the Court I do not think so. It will not be the right course for the Courts to fill up that gap. The Courts are not to legislate. The judges U are to interpret the law as it exists. If there is a gap, it is the function and duty of the Legislature to fill it up. It would amount to a "naked usurpation of the legislative function under the thin disguise of interpretation" as observed by Lord Simonds in Major and St. Millons Rural District Council v. New Report Corporation 1952 A C 189. This view, of course, was criticized by Lord Diplock in Fathergill v. Monarch Air Lines 1981 A C 280 who called it "narrowly semantic approach" but, to my mind, if the view of Lord Diplock is taken to be correct, it would amount to traversing on the field of legislation rather than interpretation. The situation will, however, be different if there is an 'existing law' as contemplated by Article 268, which does not fall within the exclusive jurisdiction of the Federal Shariat Court. For example, section 8(2) of the Banking Companies (Recovery of Loans) Ordinance, 1979 prescribes certain rate of interest that the Courts are called upon to provide interest in the decree against the borrower, will the Court enforce the same even if it is found repugnant to the Injunction of Islam

47. There is, however, one more aspect of the matter which, requires some clarification. The Objectives Resolution lays down certain principles and also makes certain provisions. For such principles, for example, clause 3 of the Resolution which in substance, is the same as Article 31, enabling the Muslims to order their lives in accordance with the Injunctions of Islam as laid down in Holy Qur'an and Sunnah, or the last paragraph of the Resolution which contains the same thing as that of Article 40, are such principles as well enforceable by the Courts V As far as the principles contained in Chapter 11 of the Constitution are concerned which are described as "Principle of Policy", the responsibility for their observance is with the concerned organ and authority of the State (Article 29), and in the definition of State, Judiciary has not been included (Article 7). It may further be observed that Article 30 expressly provides that the responsibility of deciding whether any action of an organ or authority of the State or of a person performing the functions of or on behalf of an organ or authority of the State is in accordance with the Principles of Policy is with that organ or authority of the State, or of the person concerned and the legality of an action or of a law shall not be called in question on the ground that it is not in accordance with the principles of policy and, no action shall lie against the State, any organ or authority of the State or any person on such grounds. Reference may be made to Brohi's Fundamental Law of Pakistan, Karachi, 1958 and Mr. Justice Zullah's judgment in P L Di 1976 Lah. 930.

48. It is, however, noticeable that although an exception has been made with regard to non‑justiceability of the Principles of policy forming part of Chapter 2 of Part II, but there is no such exception with regard to Article 2‑A relating to the principles stated in the Objectives Resolution which finds place in Part I of the Constitution.

49. A Constitution does not bring general principles into existence; it only sanctifies and confirms them. These principles are generally termed as Directive Principles of State Policy which are, in fact, Rules of Guidance in formulation of State Policy. Such Principles are either stated in the preamble of a Constitution or form part of the Constitution. They are generally declared as not enforceable through Courts of laws. I may quote Muhammad Munir, a former Chief Justice of Pakistan from his book "Constitution of the Islamic Republic of Pakistan", page 215 which reads:‑---

"It is usual in 'constitutional instruments to set out the aims and objects of the State. The part of the Constitution in which they are stated is a sort of the manifesto of the Constitution‑makers, and, except where a strong ideological party controls the Government from outside, such declarations remain as dead as the manifestos of demagogues after elections. The subjects mentioned range, from such lofty declarations as the promotion of unity among the Muslim States, international peace and security, and goodwill and friendly relations amongst all nations and the settlement of international side; and the ordering of the lives of the Muslims in accordance with the fundamental principles and basic concepts of Islam and provision of facilities to the Muslims to enable them to understand the meaning of life, on the ideologic side, to such prosaic matters as compulsory social insurance, provision of basic necessities during infirmity, disease and unemployment and of human conditions of work, on the welfare side. Since the objects of the Stale can be achieved and its purposes fulfilled only through legislation, and not by ad hoc decrees, the "Principles of Policy" are to be considered as positive objects of legislation and thus, principles of law‑making."

But, now the position has changed. The principles and the provisions of the Objectives Resolution have been added to the Constitution and it has been specifically stated that effect is to be given to them. If the Constitution is not exactly co‑extensive with the Objectives Resolution, after it has formed part of the Constitution, the latter should override the former. The position as quoted above has been true to the constitutional position as obtaining till 29th December, 1985, but on and after 30th December 1985 the position has undergone a change in respect of the principles laid down in the Objectives Resolution due to incorporation of the Objectives Resolution in the Constitution, which will be noticed by me presently vis‑a‑vis their enforcement by the Court.

50. Now I turn to the question of the exercise of power by this Court under Article 268 for construing all existing laws with all such adaptations as are necessary to bring them into accord with the provisions of the Constitution, other than Part 11 of the Constitution. The existing laws as defined by clause (7) of Article 268, which continued to remain in force from the commencing day of the Constitution of 1973 in so far as they remained applicable under or where adopted, until they were altered, repealed or amended by the appropriate legislature. The extent of the applicability of an existing law and manner in which it requires adaptation, is to be determined by the Court which is called upon to enforce a particular case. It is also noticeable that clause (3) provides that for the purpose of bringing the provisions of any existing law into accord with the provisions of the Constitution (other than Part II of the Constitution), the President may by order, within a period of 2 years from the commencing day, make such adaptation by way of modification, addition or omission, as he may deem necessary or expedient. It is further provided under clause (5) that the adaptation by the President shall be subject to the provisions of an Act of the appropriate Legislature. Thus, within a period of two years from the date of commencement of the Constitution, the President, and in respect of laws falling within the provincial sphere the Governor with authority of the President could issue an adaptation order, adapting the existing laws, by modification, addition or omission, in any manner that may be considered to be necessary or expedient. Of course, the appropriate Legislature may, at any time after the commencing day, adopt or amend the existing laws to bring them in accord with the Constitution, and such Act, when passed by the Legislature will supersede the President's or the Governor's adaptation, if made previously. Under the provision of clause (7), the word "construe the law with all such adaptations as are necessary" tend to show that the Court, in order to apply existing law as defined under clauses (1) and (7) of Article 268, reading that:‑

"(1) Except as provided by this Article, all existing laws shall, subject to the Constitution, continue in force, so far as applicable and with the necessary adaptation, until altered, repealed or amended by the appropriate Legislature.

(7) In this Article, "existing laws" means all laws (including Ordinances, Orders‑in‑Council, Orders, Rules, Bye‑laws, Regulations and Latters Patent constituting a High Court, and any notifications and other legal instruments having the force of law) in force in Pakistan or any part thereof, or having extra territorial validity, immediately before the commencing day."

are obliged to make necessary adaptations in order to enforce the law in conformity with the Constitution.

51. I would now like to refer to the learned observations of Mr. Justice Muhammad Afzal Zullah (now Judge of the Supreme Court) from his judgment reported as Haji Nizam Khan v. Additional District Judge, Lyallpur and others P L D 1976 Lah. 930 which reads as follows at pages 1007‑1008:‑

"I observed earlier (Part IX supra) that the Courts in Pakistan have to adopt and apply Islamic philosophy and its accepted judicial principles in some field, but within certain limitations. They need to be spelt out. While on the one hand, as explained in the said Part, our Constitution does not prohibit, rather requires the Courts to apply Islamic law and principles in some fields which are unoccupied; on the other, it bars their application for the time being in some others‑‑these are the limitations and are indeed very important. Under Article 268, protection and continuance has been afforded to one major branch of law, i.e. the "existing law". Article 227 provides a mandate that: "all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah, in this Part referred to as the Injunctions of Islam" and further regarding the new laws: "No law shall be enacted which is repugnant to such injunctions." Effect to this provision shall be given "only in the manner" provided in Part IX of the Constitution (Article 227 (2); whereunder for this purpose a Council of Islamic Ideology has been created, functions whereof are specified in Article 230). The Islamic provisions, Article 227(3) lays down, "shall not affect the personal laws of non‑Muslims of their status as citizens". It would be thus seem that in respect of the existing laws as also the new laws of similar type (see definition of existing law) no one has any right to insist upon their modification through Courts which are not empowered to change them so as to bring them in conformity with Islamic Injunctions. Thus, all 'positive, existing and future, laws', subject to their vires otherwise, are to be applied as they are, regardless of their position vis‑a‑vis Islamic Injunctions. For example, notwithstanding the fact that Pakistan Penal Code contains various un‑Islamic provisions, the Courts cannot refuse to enforce them as such on the ground that they contravene Islamic injunctions."

52. The legal position as to the scope of Article 268(6) as enunciated in the judgment stated above, has now undergone a change by incorporation of Objectives Resolution as Article 2‑A in the Constitution. Thus, the Court is not only empowered but obliged to construe the existing laws in the light of Holy Qur'an and Sunnah, as enshrined in the Constitution, except that when a certain law falls within the exclusive jurisdiction of the Federal Shariat Court.

53. As an step further, it has been submitted by Messrs Khalid Ishaque and Muhammad Ali Sayeed that since the Federal Shariat Court is not empowered to grant any relief even if it so declares that a certain provision of law is repugnant to the Injunction of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet (peace be upon him), this Court will be empowered to enforce the law, in accordance with the Injunction of Islam, as laid down in the Holy Qur'an and Sunnah which is wider in scope than the Sunnah of the Holy Prophet (peace be upon him) alone.

54. In this respect, I may now refer to a thought‑provoking paper read by Mr. Justice Gul Muhammad Khan at the 5th Jurists' Conference held at Karachi in March, 1986 P L D 1986 Jour. 249. In the said paper the learned author who is also the Chief Justice of the Federal Shariat Court, relying on the observations of late Chief Justice Hamoodur Rahman, in Asma Jillani's case and taking note of the latest development of incorporation of the Objectives Resolution as Article 2‑A in the Constitution; has opined at page 267 as under:‑

"The condition laid down has now been fulfilled by Article 2‑A as incorporator (sic) by the R.C.O., 1985 and, therefore, any provision whether it be in the Constitution or the law which is in violation of the Objectives Resolutions must be declared repugnant.

71. The Article 2‑A further states that the Muslims shall be enabled to order their lives in the individual and collective sphere in accordance with the teaching and requirements of Islam as set out in the Holy Qur'an and the Sunnah. The most important aspect of these two clauses in that firstly the Sovereignty of Almighty Allah must be enforced in every sphere of life which means that every other law which may be in conflict with the Divine law must be made ineffective and inoperative. The view is strengthened by the other clause which casts duty on the State to enable the Muslims to order their lives in the individual and collective spheres in accordance with the teaching and requirement of Islam as set out in the Holy Qur'an and the Sunnah. Consequently, any law or an executive order which violates any injunction of Qur'an and Sunnah or deviates from them may be declared ultra vires by a Court of competent jurisdiction and all effects flowing from it as null and void.

72. The question that arises is that which is the competent Court to such a situation It is an established principle of Islamic law that there must be a forum to resolve every type of dispute. The State, on the other hand, has the authority to establish a number of Courts both horizontally and vertically for the purpose and divide the total judicial power amongst them. It may again be emphasised that in Islamic legal system the State cannot retain any segment of the judicial power with it or refuse to entrust the whole to judicial forum. In other words the judicial power must reside in its entirety with the judiciary at any given time. The factual situation at present is that Federal Shariat Court has no power to declare the repugnancy of any Constitutional provision, personal law, a law relating to procedure of any Court or Tribunal or until the expiration of 10 years from 25‑6‑1980 any fiscal law or any law relating they (sic) levy and collection of taxes and fees or banking or insurance practice and procedure. As a rule the excluded subjects be justiceable and the relief thereunder, must be available to a litigant if the law or the Sovereignty of Allah it to prevail. The position, after Article 199 of the Constitution has been restored from the 30th of January (sic) 1985, conforms totally to the Islamic requirements. This Article provides that High Court may on the application of an aggrieved party make an order directing a State functionary to refrain from doing anything he is not permitted by law to do or to do anything which he is required by law to do. The Court can also declare any act or provision as without lawful authority and grant interim relief. Now suppose an act of a legislature is in violation of the sovereignty of Allah Almighty or in other words is against the teachings of Qur'an and Sunnah, it will be inoperative and anything done thereunder by any one shall be equally null and void. The Federal Shariat Court can only declare the laws within its ambit as repugnant to Islam but cannot give a relief. Unlike the Federal Shariat Court there is no exclusion of laws except those concerning Armed Forces from the jurisdiction of the High Court and they can also grant not only a relief but an interim relief as well. So, in this improved constitutional setting the High Courts cannot only declare a law as un‑Islamic but they can also grant interim relief as well as the final one. Consequently, the remedy provided by the Federal Shariat Court at present may be considered as inadequate and litigants may justifiably take every writ petition even those in the nature of Shariat petitions before the High Courts instead of the Federal Shariat Court."

55. With due respect, the statement of the learned Chief Justice about acquisition of the Court's jurisdiction under Islamic system or law (para. 72), is too general, if not vague. It is an accepted notion in the Constitutional law that the superior Courts are the creation of the Constitution and they exercise such jurisdiction which is conferred on them under the Constitution or law. In Pakistan, Article 175(2) of the Constitution is specific on the point. It says that "No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law". Thus, in Pakistan, the competencey and jurisdiction of the Courts is relatable to power given to them by Constitution or by or under a law, and not the Islamic system, unless it is shown that the said system has got the sanction of the Injunction of Islam as laid down in the Holy Qur'an and Sunnah. Of course, there: are certain principles in Islamic judicial system which have got their roots and basis in the Qur'an and Sunnah, but it can hardly be said that it gives us a "System‑‑a composite whole" "or provides us with the entire judicial fabric so as to warrant the exercise of all‑embracing judicial power by our Courts, under that system or law. It may be clarified that the judicial capacity of a Court, in a general sense, and specific jurisdiction to try a case are two different things. Reference may also be made to my book Hurmat Publications, Rawalpindi). The learned Chief Justice, however, seems to be of the view that the High Court in exercise of its extraordinary jurisdiction under Article 199 of the Constitution may declare a law or any provision thereof as repugnant to the Qur'an and Sunnah, and grant relief to a petitioner thereunder. But, to my mind, the exercise of the jurisdiction in such a case, will be very limited in its scope inasmuch as writs and directions under extraordinary constitutional jurisdiction may be issued against "every body which is created by statute‑‑and whose powers and duties are defined by statute". (Lord Dennings "Closing Chapter" London, 1983, p. 123). So, the writs and directions under Article 199 of the Constitution cannot be issued against firms, companies and individuals as they, in no sense, can be regarded as 'public authorities'. In my humble view, therefore, a High Court under its general jurisdiction conferred on it under or by law and the Constitution may as well exercise such power e.g. this Court under its original Civil Jurisdiction may also enforce the existing law in the light of Article 2‑A, as challenge to any law on the ground that it contravenes a provision of the Constitution can validly be made in a civil suit. It is not confined to be made only through a Constitution petition, because there is nothing in Article 199 or any other Article of the Constitution, which provides that such a challenge can be made through Constitution petition only. Reliance is placed on Mirpurkhas Sugar Mills Limited v. Consolidated Sugar Mills Limited P L D 1987 Kar. 225. But this exercise will be limited to the laws outside the pale of the Federal Shariat Court.

56. The observation of the learned author that the High Court can grant relief, interim as well as final, in respect of the laws falling within the exclusive jurisdiction of Federal Shari'at Court, is open to serious doubt, because for giving the relief, a High Court is to declare first the said existing law as repugnant to Injunctions of Islam, which cannot be done by a High Court in respect of the laws falling within the jurisdiction of Federal Shari'at Court.

57. This discussion will remain incomplete unless I advert to the submission of the learned Attorney‑General with reference to recent judgment pronounced by the Full Bench of this Court in Constitution Petition No. 126 of 1986 Muhammad Bachal Memon v . Government of Sind and others P L D 1987 Kar. 296. I sent for the file from the Branch and had the occasion to re‑read the judgment. The submission, as far as I could understand because it was neither elaborated nor firmly made by the learned Attorney‑General, meant that the provisions of Constitution cannot be tested on the touchstone of Article 2‑A. The leading judgment, as it appears to me, was written by my learned brother, Muhammad Zahoorul Haque, J. with which my learned brother, Choudhary Abdul Qadeer, J. agreed. This judgment finds no mention of Article 2‑A or any discussion thereon. It is, however, in the judgment written by the learned Chief Justice (and both of my learned brothers, Ally Madad Shah and Hyder Ali Pirzada, JJ. agreeing with both the judgments) there is a discussion on Article 2‑A of the Constitution but that appears to have been made in a different context, that is, the invalidity of an amendment in the Constitution (Article 270‑A) on the basis of another amendment (Article 2‑A) cannot be tested. Thus, the judgment referred to by the learned Attorney‑General has no relevance to the point at issue before me, otherwise the said judgment is binding on this Court.

58. The upshot of the entire discussion is that the Courts in Pakistan are bound by the Constitution, and any law repugnant to the Constitution is void. The principles and provisions of the Objectives Resolution, by virtue of Article 2‑A, are now part of the Constitution and justiceable. Any provision of the Constitution or law, found repugnant to them, may be declared by superior Court, as void, subject, however, to the limitations imposed by Articles 203‑A, B(c), 203‑D, 203‑G and 203‑GG AA of the Constitution, whereby special and specific jurisdiction has been conferred on the Federal Shari'at Court to declare the law (as defined by Article 203‑B(c) read with Article 203‑G or any provision thereof. as repugnant to the Injunctions of Islam laid down in Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.),and that the said law or any provision thereof has been so declared by it (Article 203‑GG).

59. The point before me, as urged by the learned counsel for defendant No. 9, concerns a mutual contract of mortgage relatable to clause (f) of section 58 of the Transfer of Property Act, 1882, which must essentially be governed by the concept of social justice in Islam, as envisaged in the Objectives Resolution, forming part of the Constitution. It has already been noticed that the Federal Sheri'at Court has not found anything therein, rather in the whole of the Transfer of Property Act, 1882, except the provision of interest, to be repugnant to the Injunction of Islam, as laid down in the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.), and that decision is binding on a High Court and on all Courts subordinate to it, as provided in Article 203‑GG. I am, therefore, bound by that decision, notwithstanding the fact that for the reasons discussed in the earlier part of this order relating to mortgage, I have reached a different conclusion that section 58(f) of the Transfer of Property Act, 1882 is repugnant to the Injunctions of the Holy Qur'an and Sunnah. (The F.S.C. may, perhaps, consider the advisability of reviewing its order) I, therefore, E reject the last contention of the learned counsel for defendant No. 4. However, the leave to appear and defend the suit is granted to her, on her furnishing security in the principal amount of Rs.66,00,000 (Rupees sixty‑six lacs) minus the value of the Bungalow which stands estimated to be of Rs.7,00,000 (Rupess seven lacs) at the time of the contract of mortgage. The security to be furnished within two months, to the satisfaction of the Nazir of this Court.

60. Before parting with the matter, I must mention that at the last moment a question also arose that the provision of interest in the Banking Companies (Recovery of Loans) Ordinance, 1979 is un‑Islamic and can be struck down by this Court. The plea, in the background of the arguments advanced by Messrs Khalid M. Ishaque and Muhammad Ali Sayeed, carries weight, but will be considered at the time of final hearing of the suit. At the moment, I am concerned with the grant or refusal or application under Order XXXVII, Rule 3, C.P.C. wherein I consider it to be a triable issue in defence.

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