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‑‑‑S. 15‑‑Coercion‑‑Concept‑‑Plaintiff alleged to have been defrauded by defendant's husband, informed the defendant that her husband was likely to be arrested and his name was likely to appear in local newspapers, as he had defrauded the plaintiff of a substantial sum of money‑‑Defendant was not made to sign for an amount which was in excess of what her husband owed to the plaintiff nor plaintiff threatened to commit any offence against her husband or herself or her property‑‑Threat of criminal prosecution against husband of defendant, held, would not amount to coercion in circumstances.

The plaintiff had a reason to threaten the defendant about the arrest of her husband who had committed an offence for issuing cheques, which were dishonoured, knowing it fully well that he had no cash balance with the Bank. In fact, her husband had been arrested and enlarged on bail by the District and Sessions Judge.

It is no coercion if the plaintiff, who is alleged to have been defrauded by the defendant's husband, informed the defendant that her husband was likely to be arrested and his name was likely to appear in the local newspapers, as he had defrauded the plaintiff of a substantial sum of money. It is not the defendant's case that she was made to sign for an amount which was in excess of what her husband owed to the plaintiff, nor her case is to the effect that the plaintiff threatened to commit any offence against her husband or herself or her property together with two or three other persons who identified themselves as police officers. The threat of criminal prosecution against the husband of the defendant, as alleged, did not amount to coercion.

The case would not fall within the scope of section 15 of the Contract Act, therefore, the Promissory Note was not signed under coercion. It was signed as a mutual settlement.

Kaai Noor Muhammad v. Pir Abdul Sattar Jan P L D 1959 Kar. 348 ref.

(b) Islamic jurisprudence‑‑

‑‑‑ Riba‑‑Definition‑‑What constitutes Riba‑‑Forbiddance of Riba--- Injunctions of Islam.‑‑[Words and phrases]

The word 'Interest', (b), and large, has now been accepted and is understood as Riba . The literal meaning ' Riba is 'increase'. It means "any addition, however, slight, over and above the principal", and thus includes both usury and 'interest. Therefore, Riba includes both 'usury' and 'interest', as known in English terminology. In legal sense, it is that excess amount which a "Creditor" settles to receive or recover from his "Debtor", in consideration of giving time to the said debtor for re‑payment of his loan. Riba is that increase (financial) which an owner of valuable property (Mal) receives from his debtor for giving him time to repay his debt. Riba is also defined to be the name of every increase in lieu of which there is no property (Mal).

Riba, in law, signifies an excess (increase) in a contract in which such excess is stipulated as any obligatory condition on one of the parties, without any return, i.e. without any property (Mal), in exchange. The meaning of the word "Riba" is increase but it does not mean that to recover every kind of increase is Riba and is unlawful. The forbiddance of Riba relates to a special kind of contract which was known amongst the Arabs as Riba al Nasiyah i.e. increase on debt. Ribs is not an increase' simpliciter but in the eye of Shari'ah it is a special kind of increase, otherwise in Bai (sale), there is an increase which is termed as profit, whereas Riba is the consideration or compensation for the period of re‑payment of loan. Since this 'period' is not valuable property (Mal), its return has been declared as unlawful, whether it be money or any other thing. In other words, wherever there is money from the one part and there is only grace period or deferment of the repayment of loan to the other, and for that a 'return' is stipulated, ill is Ribs. On a careful study of several forms of commercial activities And credit transactions, prevalent among Arabs, during the period of Holy Prophet (p.b.u.h.), a transaction which contains excess or addition over and above the principal amount of loan, which is pre‑determined in relation to tire or period to be conditional on the payment of that pre‑determined excess or addition, payable to the creditor‑‑(such a transaction containing the said elements) constitutes Riba and any' sale, transaction or credit facility, in money or in kind has been considered to be a transaction of Ribs, which is unlawful, Haram in territory of Islam, Dar al‑Islam in Muslim Society. There is concensus (Ijma) of the Muslim Jurists on it.

The word Ribs, in its various linguistic forms, has been used at about 20 places in the Holy Qur'an.

Ribs stated in the verse (II‑275) is a Riba prevalent among Arabs in pre‑Islamic era and that is the increase in loans in lieu of period or time (granted to the debtor for repayment of loan), and that is unlawful whether it (Riba) be less or more.

Dictionary meaning of Ribs is an absolute increase (without any attribute or qualification) and in Shari'ah it means the increase or excess which the creditor takes from his debtor in lieu of the deferred period (for repayment of loan).

Interest and Islam cannot remain together in a (Muslim) Society.

There are also a number of traditions of the Holy Prophet (p.b.u.h.) which, forbid Ribs. These traditions have been narrated by Imam Malik, Bukhari, Muslim, Abu Daud, Tirmizi, Nasa'i, Ibn Majah, Ahmad ibn Hanbal, Dar Qurtni and several other Traditionalists in their Collections of Ahadith through various chains of authorities.

Even among the pagans of Arabia, in those dark days of human civilization, usury (interest) was considered to be the money earned by dishonest means.

The injunction as contained in S.XXX:39 of the Holy Qur'an is of an advisory nature, on moral plane, that interest, in reality, does not increase the wealth, but it is the charity, seeking Allah's pleasure, that increases manifold. The other injunction (S.III:12) forbids Muslims to take compound interest (usury), in order to be dutiful to Allah the Almighty, so that real prosperity may come to them. Some people thought that 'trade' and 'interest' resembled each other. By verses 275‑76 of S.II, they were condemned by saying that Allah has permitted 'trade' and forbidden 'interest'. Then came the admonition that whoever devours interest will stand like the one whom Satan has bewildered and maddened by his touch. Then they were ordered to desist from taking interest and he who abstains from taking interest shall be pardoned for his past actions, but he who repeats the same shall go to Hell, where he shall abide for ever. Then came an absolute injunction to Muslims to forego interest, if they really believe in Him and then came the warning, that if you do not forego interest, which has already accrued to you, and desist from taking it any further, beware of war on the part of Allah and His apostle. This warning, in fact, implies that whoever wants to be in peace with Allah and His apostle he is to desist from taking interest, otherwise state of war with Allah and His Prophet (p.b.u.h.) continues. Then came another injunction to be satisfied with receiving back the principal amount, followed by an advice that if the debtor is in difficulty, time be given to him (S.II:277‑80). At the end, (S.II:281) there is a reminder to have fear of Allah and that when they will go back to Allah, on the day of resurrection, each one will be paid back for what he has earned in this world.

Those who are of the view that it is the interest doubled and redoubled only, which is prohibited (verse 130 of Surah AI‑Imran) fail to take into consideration the other verses on the subject. It is one of the accepted principles of interpretation of the Qur'an that, firstly, the Qur'an should be interpreted by the Qur'an itself. Therefore, for the correct interpretation of a verse in the Holy Qur'an, the other verses of the Holy Qur'an, on the subject, must be looked into and taken together to find out the real intention of the Qur'an. and, ‑then, the Sunnah of the Holy Prophet viz. his word, act and maintaining silence on one's words spoken or act done in his presence by the Holy Prophet, be called in aid for its interpretation. Therefore, some of the writers on interest who have expressed their view that it is only the 'usury' (compound or excessive interest) which is prohibited or, in other words, it is the excessive rate of interest, which is prohibited and not a small percentage, to say the least, are entirely mistaken.

Because Ribs is generally translated as usury, and because in modern parlance 'usury' signifies only an 'exorbitant rate of interest' some people have fallen into the error that what the Holy Qur'an has really forbidden is an excessive rate of interest. In truth, it is only a misinterpretation of the term Ribs and a perversion of the Qur'anic teaching. That the Holy‑book does not distinguish between 'exorbitant' and 'reasonable' rates of interest is clear from the verses II: 278‑80.

It is, therefore, not that only exorbitant or excessive rate of interest is prohibited but it includes a small percentage also. The word "Ribs" as used in the Qur'an is absolute in terms, and no attribute or qualification as to its quantity is to govern it, nor it has any credence.

The elimination of interest occupies a key position in the establishment of the Islamic order. The phraseology of the verses of the Holy Qur'an as well as of the Alhadith which condemn the institution of interest clearly portrays the Islamic view point in this regard. Pakistan being an ideological State, the abolition of Riba from the very beginning formed an integral part of State Policy as enshrined in her Constitution.

The term "Ribs" encompasses interest in all its manifestations, irrespective of whether it relates to loans for consumption purposes or for productive purposes, whether the loans are of personal nature or of commercial type, whether the borrower is a Government, a private individual or a concern, and whether the rate of interest is low or high.

Islam recognises the right of man to seek his livelihood on God's earth according to his capacity, ability and natural endowments. But it does not concede him the right to adopt such means in the acquisition of wealth as could lead to his moral degradation or upset the social order. Islam sets the distinction of Halal (Lawful) and Haram (unlawful) in respect of the different means of earning, and imposes the ban of illegality on all those methods which are morally or socially injurious. For this purpose, it has clearly specified those methods which it regards as injurious. Under the Islamic Law, wine and other intoxicants and drinks which spread evil and immorality are not only unlawful (Haram) in themselves, but even their manufacture, sale, purchase and possession have been declared to be unlawful. Islam does not recognise adultery, intoxicating music, dancing etc., as lawful means of livelihood. It declares all such dealings as unlawful in which the gain of one individual is secured by the loss and injury to some other person or persons or society as a whole. Bribery, stealing, gambling, speculation, business based on fraud and deceit, hoarding and holding back the necessaries of life with the object of raising prices, monoplies of the means of production by one or several persons which narrow down the field for others; all these methods have been declared unalwful. It has picked out carefully and branded as illegal all such forms of business as are by their nature capable of causing dispute, or in which the loss or gain depends on mere luck or accident, or wherein the rights of the parties are not distinguishable.

(c) Constitution of Pakistan (1973)‑‑

‑‑‑Art. 2‑A. C1_3‑‑Negotiable Instruments Act (XXVI of 18811, Ss.79 80‑‑Civil Procedure Code (V of 1908), S. 34 & O.XXXVII, R.2‑ Constitutional command under Art. 2‑A, Constitution of Pakistan (1973)‑‑Interest‑‑Claim of interest based on Ss. 79 & 80, Negotiable Instruments Act, 1881 or S. 34 and O.XXXVII, R.2, C.P.C. being violative of Art. 2‑A, has now to be tested on the touchstone of Qur'an and Sunnah which prohibit interest‑‑Custom and usage relating to interest‑‑Significance in Islam‑‑English concepts and principles of Justice, equity and good conscience, in the changed circumstances have now to give way to the Islamic concepts and principle of justice equity and good conscience.

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

A claim to interest under the present law can be based on (1) Statute, (2) Contract, (3) Trade Usage and (4) Equity, in a particular case. So far as claim of interest based on law i.e. sections 79 and 80 of the Negotiable Instruments Act, 1881 is concerned it is now to be tested on the touchstone of the Qur'an and Sunnah which prohibit it. As regards contract, no effect can be given to an agreement if it is contrary to an express provision of law. In Islam, by Sulh' (compromise) nothing can turn Haram (unlawful) into Halal (lawful), or vice versa. Same thing applies to mutual agreements and contracts. So far 'trade usage' is concerned, Islamic law recognizes usage or custom ('urf) as one of the secondary sources of law. Islamic System of law also accepts the legal force and authority of custom and usage. The word "Ma'ruf" in the Holy Qur'an is a pointer to it. Thus, the custom and usages prevalent during the lifetime of the Holy Prophet Muhammad (Sallallaho 'alayhi wa Sallam) and if the Qur'an or Hadith did not repeal them or the Holy Prophet maintained his silence over them, they were deemed to have been carrying the legal validity. 'Many decisions of law are based on usage, so much so that it has been taken as a principle of law". The Islamic legal maxim "usage is like textual manifestation (of law)", goes to that extent to recognize the usage but usage is always subservient to the nass (text of law). If, however, custom or usage is against the divine law or even an Ijma (concensus), they are not enforceable. So far as equity is concerned, the Courts in the Islamic Republic of Pakistan are not supposed to recognise any more as valid the English principles of justice, equity and good conscience. The English concepts must now, the changed circumstances, give way to the Islamic concepts and principles of justice, equity and good conscience. However, the principle of equity is not allowed to pay its role independently in the presence of a clear provision of law. The principle of equity comes into play when there is no provision of the Qur'an and the Sunnah or the Ijma' opposed to the principle of equity, in a given situation.

It is only when the situation is to be governed by Qiyas (analogy) that equity gets preference over it which is wider in its scope than analogy.

High Court is not only competent but bound to enforce 'the existing law' with such adaptations as necessary in accordance with the Qur'an and Sunnah.

Sections 79 and 80 of the Negotiable Instruments Act, 1881, section 34 and rule 2 of Order XXXVII of the Code of Civil Procedure, 1908 relating to grant of interest by the Court must yield to the Injunctions of Islam contained in the Holy Qur'an and Sunnah relating to interest (Ribs) by giving effect to the principles and provisions of the Objectives Resolution made part of the Constitution by virtue of Article 2‑A.

(d) Constitution of Pakistan (1973)‑

‑‑‑Arts. 2‑A & 189‑‑Provisions of Art. 2‑A being in the nature of paramount clauses and supra‑constitutional instrument, covers Art. 189 also‑‑Law declared by the Supreme Court of Pakistan either prior to insertion of Art. 2‑A or without considering the said Article is also subservient to the provisions of Art. 2‑A.

Article 2‑A of Constitution of Pakistan (1973), is in the nature of a paramount clause and supra‑constitutional, it covers Article 189 also, and so law declared by the Honourable Supreme Court either prior to insertion of Article 2‑A or without considering the said Article is also subservient to the provisions of Article 2‑A.

Any law which contravenes any provision of the Constitution can be disregarded by a Court of law.

(e) Interpretation of Qur'an‑

‑‑‑Principles.

Bilal A. Khawaja for Plaintiff.

Mumtaz Hussain for Defendant.

A.A. Mohammadally, Addl. A.‑G. (on Court Notice).

Dates of hearing: 25th May, 10th and 11th June, 1987.

JUDGMENT

This is a suit for recovery of Rs.1,90,000 filed by the plaintiff in March 1980, on the basis of demand promissory note dated 25‑1‑1980 executed by the defendant in favour of the plaintiff. The suit was first decreed ex parte vide order dated 22‑4‑1981, whereafter, on an application filed by the defendant under Order IX, Rule 13 read with Section 151, C.P.C. the judgment and decree was set aside by a learned Single Judge of this Court and the defendant was granted leave to defend the suit. Since the execution of the promissory note was not denied by the defendant, only one issue was framed as to "Whether the defendant executed the demand promissory note dated 25‑1‑1980 under coercion or of her own free will"

2. The defendant examined herself on Commission appointed by the Court. In her examination‑in‑chief, her entire case on the question of coercion was that the plaintiff, alongwith 2 or 3 persons, came to her house on or about 25‑1‑1980 and informed her that her husband had taken Rs.1,90,000 from the plaintiff. This amount was, according to her, demanded from her. Alternatively, she was asked to sign two blank papers bearing some stamps and a third paper which according to her was blank. She further stated that the persons accompanying the plaintiff identified themselves as "men of police" and she was informed by all of them that if she did not sign those papers, her husband would be arrested and his name would appear in the newspapers. The defendant further stated that her husband was, at that time, out of Karachi and, therefore, on the next day, she visited the office of the Inspector‑General of Police, Sind with her driver and submitted an application there regarding what had happened at her house, a day earlier.

3. In her cross‑examination, the defendant admitted that she had not mentioned in the pleadings or any of her affidavits filed in the above suit that she had signed two papers bearing stamps and one blank paper at the direction of the plaintiff and other persons accompanying him on 25‑1‑1980 or that she had made an application in relation to the said visit of the plaintiff to her house to the a Inspector‑General of Police, Sind. She, frankly admitted her signatures on 2 letters dated 25‑1‑1980 (Exh.6/7) and earlier dated 23‑1‑1980 (Exh.6/6). She also admitted that neither in her written statement nor any affidavit she mentioned that her husband was out of Karachi at the time of the alleged visit of plaintiff to her house on 25‑1‑1980.

4. The plaintiff examined herself and deposed that he was a retired Director of the Institute of Management, Government of Pakistan, Karachi. He had booked 2 cars, one for his wife and the other for his brother‑in‑law with the husband of the defendant who took the money from him but failed to deliver them. Subsequently, he (the defendant's husband) gave 2 cheques to the plaintiff, one for Rs.1,09,000 and the other for Rs.59,000 in re‑payment. But these cheques (Exhs.6/2 to 6/5) were dishonoured by the Bank. According to the plaintiff, when the husband of the defendant was informed about the dishonoured cheques, he offered to mortgage house No.3/F/3 in Block No.8, Kehkashan Clifton, Karachi and it was in this regard that defendant wrote the letter dated 23‑1‑1980 to the Developers with a copy to the plaintiff (Exh.6/6). However, the Developers did not agree to the mortgage of plaintiff's house in question as no lease had been executed in respect of the said house till then. It was against this background that the defendant executed the promissory note Exh.6/1 and simultaneously wrote another letter dated 25‑1‑1980 (Exh.6/7) to the Developers. The plaintiff specifically deposed that all these documents were executed by way of a "mutual settlement". It is noteworthy that the entire case of the plaintiff regarding the background against which the documents in question were executed by the defendant went unchallenged in cross examination. Not even a suggestion was put to the plaintiff to the effect that his case was false or fabricated or that he had got the demand promissory note in question executed from the defendant under coercion.

5. The defendant categorically stated in her cross‑examination that at the time of the said visit of the plaintiff to her house on 25th January, 1980, her husband was out of Karachi and remained so for four or five days. This is belied by the contents of paragraph 5 of the bail application filed by her husband in the Court of District and Sessions Judge, Karachi (Exh.6/9) wherein he stated that he was present in his house with his wife i.e. the defendants at the time of the said visit of the plaintiff alongwith three other persons.

6. The plaintiff, moreover, had a reason to threaten the defendant about the arrest of her husband who is said to have committed an offence for issuing cheques, which were dishonoured, knowing it A fully well that he had no cash balance with the Bank. In fact, her husband seems to have been arrested and enlarged on bail by the learned District and Sessions Judge, Karachi. Coercion is defined in Section 15 of the Contract Act, as under:‑

"15.‑‑'Coercion' is the committing, or threatening to commit, any act forbidden by the Pakistan Penal Code or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement.

Explanation.‑‑It is immaterial whether the Pakistan Penal Code is or is not in force in the place where the coercion is employed."

It is thus no coercion if the plaintiff, who is alleged to have been defrauded by the defendant's husband, informed the defendant that her husband was likely to be arrested and his name was likely to appear in the local newspapers, as he had defrauded the plaintiff of as substantial a sum of money as Rs.1,90,000. It is not the defendant's case that she was made to sign for an amount which was in excess of B what her husband owed to the plaintiff, nor her case is to the effect that the plaintiff threatened to commit any offence against her husband or herself or her property together with two or three other persons who identified themselves as police officers. The threat of criminal prosecution against the husband of the defendant, as alleged, did not amount to coercion in view of a Division Bench judgment of this Hon'ble Court reported as: Kazi Noor Mohammad v. Pir Abdul Sattar Jan PLD 1959 Kar. 348. Relevant portion reads as under:‑-----

"In order to prove coercion, it must be shown that the creditor applied pressure upon the debtor to procure his consent. The mere fact that an agreement was entered into in fear of criminal proceedings is not sufficient to avoid the agreement on the ground of coercion. I am of the opinion that simply because a creditor threatens his debtor to involve him in a criminal case, it will not be coercion if there be some basis for such a prosecution. Even in England where the law is much more stringent this view holds ground. Cotton L.J. in (1882) 10 Q.B.D. 572 at page 576 observed:-----

"A threat to prosecute is not of itself illegal and the doctrine contended for does not apply, where a just and bona fide debt actually exists, where there is a good consideration for giving a security, and where the transaction between the parties involves a civil liability as well as, possibly, a criminal act. In my opinion a threat to prosecute does not necessarily vitiate a subsequent agreement by the debtor to give security for a debt, which he justly owes to his creditor."

7. As discussed above the case does not fall within the scope of Section 15 of the Contract Act. My finding on the issue, therefore, C is that the Promissory Note was not signed under coercion. It was signed as a mutual settlement.

8. In the above suit the payment of interest at the rate of 158 per annum is stipulated in the promissory note itself. The decree is prayed for the principal amount of Rs.1,90,000 together with interest at the rate of 158 per annum till the date of final payment of the decretal amount. The suit after hearing the arguments of the learned counsel for the parties was reserved by me for judgment for 31‑5‑1987. I must say that none of the counsel, during the course of their arguments, adverted to the question of interest. While I was dictating the judgment and came to the last part of it I found that interest has also been prayed for. I, therefore, issued notice to the learned counsel for the parties to address me on that question too. Since the question of interest, in view of my earlier order dated 16‑4‑1987; passed by me in Suit No.5‑19 of 1984 (Bank of Oman v. Eastern Trading Company Ltd PLD 1987 Kar. 404 did assume importance of a general nature, I also gave notice to the Standing Counsel for the Federal Government and the Advocate‑General of Sind.

9. In response to the above, learned counsel for the plaintiff appeared and submitted that he was entitled to interest by agreement as it. is mentioned in the promissory note itself.

10. Mr. Mohammad Ali, learned Additional Advocate‑General in response to the Court notice to Advocate‑General Sind put in his appearance today (11‑6‑1987) in the above suit and submitted that the Objectives Resolution under Article 2‑A is not a supra- Constitutional document. It was further submitted by him that this Court sitting on original side cannot decide the question as to the repugnancy of a law to the Constitution and. therefore, cannot strike down a law. According to him perhaps, it is the High Court exercising its extraordinary jurisdiction on Constitution side that the issue could be "digressed" and decided. No case‑law was cited by him in support of these submissions. Since the above submissions have already been dealt with by me in my order dated 1E‑4‑1987 in the case of Bank of Oman v. East Trading Company Ltd P L D 1987 Kar. 404, the submissions of the learned A.A.‑G. stand repelled.

11. It is regretted that I was not benefited with the arguments of Standing Counsel for Federal Government/ Deputy Attorney‑General of Pakistan though served with the notice.

12. I will now deal with the Injunction of Islam relating to the interest, as laid down in the Qur'an and Sunnah:‑

13. The word "Interest", by and large, has now been accepted and is understood as Riba (See Stiengass English Arabic Dictionary, Lahore, 1979, the word 'Interest'). The literal meaning) of riba is; increase'. It means. "an addition, however slight, over and above the principal", and thus includes both usury and interest. (See: Lanes's Arabic‑English Lexicon). This finds support from the best authorities on Arabic language like Imam Raghib Isfahani and Zubaydi, Refer their Encyclopedic works: Mufradat al‑Qur'an and Taj al‑Arus. Therefore, Ribs includes both 'usury' and 'interest', as known in English terminology. In legal sense, it is that excess amount which a "Creditor" settles to receive/or recover from his "Debtor", in consideration of giving time to the said debtor for re‑payment of his loan. Imam Tabri 0.310 A.H.) in Tafseer Tqbri (Vo1.III, P.64) commenting on the Qur'anic verse writes that:‑--

that is, Ribs is that increase (financial) which an owner of valuable property (Mal) receives from his debtor for giving him time to repay his debt. Ibn Arabi in his noted work, Ahkam al Qur'an (Vol.l P.103) has defined Riba. to be the name of every increase in lieu of which there is no property. (Mal), This is the definition which Allama Burhanuddin al‑Marghinani (d.593 A.H) has also stated in his famous book, al‑Hidayah (See A1‑Hidayah, Qur'an Mahal, Karachi, Kitab al‑Buu' Sing Bail (Sale) Chapter on Riba (Vol. III: p.78), which reads as under:‑--

Ribs, in law, signifies an excess (increase) in a (loan) contract in which such excess is stipulated as an obligatory condition on one of the parties, without any return, i.e. without any property (Mal), in exchange. (See Book XIV on Sale Chapter VIII on Riba or usury, Hadayah, English translation by Hamilton, Lahore, page 289) Imam Fakhrud‑Din AI‑Razi (d.606 A.H) in his well‑known Tafsir al Kabir writes that the meaning of the word Riba is increase but it does not mean that to recover every kind of increase is Riba and is unlawful. The forbiddance of Riba relates to a special kind of contract which was known amongst the Arabs as Ribs al Nasiyah i.e. increase on debt. The other kind of ribs called "Ribs al‑Fadl" is outside the scope of the present discussion). From the above, it can be easily concluded that Riba is not an increase simpliciter but in the eye of Shari'ah it is a special kind of increase, otherwise in Bail (sale), there is an increase which is termed as profit, whereas Riba is the consideration or compensation for the period of re‑payment of loan. Since this 'period' is not valuable property (Mal), its return has been declared as unlawful, whether it E be money or any other thing. In other words, wherever there is money from the one Part and there is only grace period or deferment of the repayment of loan to the other, and for that a 'return' is stipulated, it is Riba. On a careful study of several forms of commercial activities and credit transactions, prevalent among Arabs during the period of Holy Prophet, a transaction which contains excess or addition over and above the principal amount of loan, which is pre‑determined in relation to time or period to be conditional on the payment of that pre‑determined excess or addition, payable to the creditor (such a transaction containing the said elements) constitutes Riba and any sale, transaction or credit facility, in money or in kind has been considered to be a transaction of Riba, which is unlawful Haram in territory of Islam, Dar al‑Islam in Muslim Society. There is concensus of the Muslim Jurists on it.

14. The word Riba in its various linguistic forms, has been used at about 20 places (See: S.II‑265, 275, 276, 278, III: 130, IV: 161, XIII : 17, XVI, 92, XVII : 24, XXII : 5, XXVI : 18, XXX : 39, XLI 39, LXIX: 10) in the Holy Qur'an. The relevant for the present discussion are the following verses:‑

"Those who live on usury will not rise (at Resurrection) but like a man possessed of the devil and demented. This because they say that trading is like usury.

But trade has been sanctioned and usury forbidden by Allah. Those who are wanted by their Lord and desist will keep (what they. have taken of interest) already, and those who revert to it again are the residents of Hell where they will abide for ever.

Allah takes away (gain) from usury, but adds (profits) to charity; and God does not love the ungrateful and unjust.

O believers, fear Allah and forego the interest that is owing if you really believe.

If you do not beware of war on the part of Allah and His Apostle. But if you repent, you shall keep your principal. Oppress none and no one will oppress you.

If a debtor is in want, give him time until his circumstances improve; but if you forego (the debt) as charity, that will be to your good, if you really understand.

Have fear of the day when you go back to Allah. Then each will be paid back in full his reward and no one will be wronged."

What you invest at usury in order to increase (your capital) on other people's wealth, does not find increase with Allah; yet what you give in alms and charity, seeking Allah, will be doubled. (A1‑Rum 30:39)

(Because of the wickedness of some among the Jews and because they obstructed people from the way of Allah, we forbade them many things which were lawful for them; And because they practised usury although it had been forbidden them; and for usurping others' wealth unjustly. For those who are unbelievers among them we have reserved a painful punishment (Al‑Nisa'. 4 :160‑161) .

(Translation of the above versus has been reproduced from (Prof.) Ahmad Ali's "Al‑Qur'an" a contemporary translation" (with the only substitution by Allah for God, by me).

15. It is stated in Al‑Muntakhab fi Tafseer al‑Qur'an al Karim, written by a Committee of the Qur'an & Sunnah of the Supreme Council of Islamic Affairs, Ministry of Auqaf, Arab Republic of Egypt that:

(Ribs stated in the verse (II‑275) is a Riba prevalent among Arabs in pre‑Islamic era and that is the increase in loans in F lieu of period or time (granted to the debtor for repayment of loan), and that is unlawful (rte) whether it (riba) be less or more).

(P.66, footnote No.l Surah II, Verse 275),

Reference may also be, made to Alkashshaf 'An Haqa'i Ghawamid al‑Tanzil by Imam, Jadallah Mahmood bin-Umaal‑Zamkhshari (d.528A..H.) Vol. 1 pp. 319‑323).

16. Muhammad Ali al‑Sabuni (now based in Saudi Arbia) in his Tafsir A at al‑Ahkam Damascus, 1397 A.H. 1977 A.C vol. 1 page 383 writes that the dictionary meaning of Riba is i.e. an absolute increase (without any attribute or qualification) and in Shari'ah it means the increase or excess which the creditor takes from his debtor in lieu of the deferred period (for repayment of loan).

17. Syed Qutub Shaheed (may Allah have his infinite Mercy on him) of Egypt, in his notable work, Tafsir fi Zilal al‑Qur'an (verses 275‑81, Surah A1‑Baqarah), has dealt with the question of Riba elaborately. In short, as stated by him "interest and Islam cannot remain together in a (Muslim) Society". An extract from the translation of the above Tafsir reads:

(Reference may also be made to late Syed Abul A'la Maududi's book "Sud" (Interest) Islamic Publication, Lahore, 1968, and his Commentary on the Qur'an, "Tafhim al‑Qur'an" Vol. 1, pp. 210‑18, 287‑88 and 422. Also see Ma'ar' al Qur'an by late Grand Mufti of Pakistan, Mufti Muhammad Shat, Vol. 1 pp.585‑622.

18. There are also a number of traditions of the Holy Prophet which, forbid Riba. These traditions have been narrated by Imam Malik, Bukhari, Muslim, Abu Daud, Tirmizi, Nasa'I, Ibn Majah, Ahmad I ibn Hanbal, Dar Qurtni and several other Traditionalists (Muhaddithin in their Collections of Ahadith through various chains of authorities. Here I may refer to few of them:

(i) Muwatta, Imam Malik, (Arabic‑Urdu), Karkhana‑i‑Tijarat Kutub, Karachi, P. 575. Trans. by Professor Mr. Rahimuddin, published by Sh. Muhammad Ashraf, Lahore 1980, page 303 states the following Tradition.

(Zaid b. Aslam reported that interest in pagan times was of this nature: When a person owed money to another man for a certain period and the period expired, the creditor would say: You pay me the amount or pay the interest. If he paid the amount, it was well and good, otherwise the creditor increased the loan amount and extended the period for payment again).

(ii) AI‑Tarteeb wal‑Bayan by Muhmmad Zaki Saleh, Vol.II Egypt 1374 A . H . -1957 A . C . p.234: states that:

(According to Jabir, the Holy Prophet cursed those who receive and pay interest and the scribe of the deed and those who bear witness to it and said they all are equal, (Muslim).

(iii) Muslim has also reported from Abdullah Ibn Masud that the Holy Prophet cursed the receiver of interest as well as its giver, the scribe of .the interest deed and the witnesses to it; and further said that they all are equal (in the act of committing sin). (Muslim).

19. Let me also refer to the last Sermon of the Holy Prophet in the presence of about a lac of his reverend Companions A The following words of the Holy Prophet are very significant:

(The Holy Messenger of Allah, on his last Pilgrimage and in his last address, declared the prohibition of interest in these words: "Every form of interest (Riba) is cancelled; capital indeed is yours which you shall have; wrong not and you shall not be wronged. Allah has given his Commandment totally prohibiting interest (Riba). I start with the amount of interest which people owe to Abbas and declare it all cancelled. "He then, on behalf of his uncle, Abbas, cancelled the total amount of interest due on his loan capital from his debtor).

20. Dr. Hameedullah, based at Paris and widely respected for his piety and scholarship, in his book 'Muhammad Rasulullah (Salla‑Ilahu alaihi wa sallam) Karachi, paragraph 34, tracing the history of Ka'ba and writing about its repairs/construction/reconstruction at one point of time, somewhere in 605 A.C., when on a tempestuous day sparks of fire were thrown by the wind on the curtains of the Ka'ba, which caught fire and the building was burnt out, and tempest was allowed by torrential rains, and these dealt the final blow, so that the building of the Ka'ba crumbled down in heaps, writes that "Contributions were asked mom everybody in the town, and it was solemnly announced that for the sacred building only honest money should be offered; prostitutes and usurious peoples were asked not to contribute anything" (underlining is mine). This Implies that even among the pagans of Arabia, in those dark days of human civilization, usury (interest) was considered to be the money earned by dishonest J means. I may also refer to paragrpahs 144 and 226 of the same book. In a general meeting of all the population, both Muslim and non‑Muslim, convened by the Holy Prophet, a Constitution for the State in Madina with Buffer states around, was reduced into writing, constituting the earliest written Constitution of a State, promulgated by its Head in the world. The Christians of Najran who were highly organized religious people and were more fanatically attached to their faith, sent a delegation to Madina consisting, among others, of a bishop and a vicar (second Priest). They voluntarily acceded to the said Muslim State of Madina, as non‑Muslim subject, and obtained a Charter which conferred on them autonomy, both religious and administrative. It was covenanted that "they need no more pay the interest to their creditors, but only the capital of the loans. Naturally he (the Prophet) asked them not to take interest themselves either in future. All was reduced to writing, and the document has come down to us".

21. Analysing the material on the Holy Qur'an and Sunnah of the Holy Prophet, referred to above, forbidding Muslims to devour interest, it is noticed that as the interest‑bearing transactions were prevalent among the Arabs for a long time and it had taken roots in their economic and social life, the prohibition of interest came gradually. The injunction as contained in S.XXX : 39 of the Holy Qur'an is of an advisory nature, on moral plane, that interest, in reality, does not increase the wealth, but it is the charity, seeking Allah's pleasure, that increases manifold. The other injunction (S.III : 12 forbids Muslims to take compound interest (usury), in order, to be dutiful to Allah the Almighty, so that real prosperity may come to them. Some people thought that 'trade' and 'interest' resembled each other. By verses 275‑76 of S.II, they were condemned by saying that Allah has permitted 'trade' and forbidden 'interest'. Then came the admonition that whoever devours interest will stand like the one whom Satan has bewildered and maddened by his touch. Then they were ordered to desist from taking interest and he who abstains from taking interest shall be pardoned for his past actions, but he who repeats the same shall go to Hell, where he shall abide for ever. Then came an absolute injunction to Muslims to forego interest, if they really believe in Him and then came the warning, that if you do not forego interest, which has already accrued to you, and desist from taking it any K further, beware of war on the part of Allah and His apostle. This warning, in fact, implies that whoever wants to be in peace with Allah and his apostle he is to desist from taking interest, otherwise state of war with Allah and His Prophet continues. Then came another injunction to be satisfied with receiving back the principal amount, followed by an advice that if the debtor is in difficulty, time be given to him (S.II:277‑80). At the end, (S. II:281), there is a reminder to have fear of Allah and that when they will go back to All4h, on the day of resurrection, each one will be paid back for what he has earned in this world.

22. Those who are of the view that it is the interest doubled and redoubled. I only, which is prohibited (Verse 130 of Surah Al‑i‑Imran fail to take into consideration the other verses on the subject. It is one of the accepted principles of interpretation of the Qur'an that firstly the Qur'an should be interpreted by the Qur'an itself. Therefore, for the correct interpretation of a verse in the Holy Qur'an, the other verses of the Holy Qur'an, on the subject, must be looked into and taken together to find out the real intention of the Qur'an and., then, the Sunnah of the Holy Prophet viz. his word, act and maintaining silence one's words spoken or act done in his presence by the Holy Prophet be called in aid for its interpretation. Therefore, some of the writers on interest who have expressed their view that it is only the 'usury' (compound or excessive interest) which is prohibited or, in other words, it is the excessive rate of interest, which is prohibited and not a small percentage, to say the least, are entirely mistaken. I may here quote a passage from a notable work of late Dr. Fazl‑ur‑Rahman Ansari "The Qur'anic Foundations and Structure of Muslim Society", Begum Aisha Bawany Wakf, Karachi, Vol. II, P.327, which reads that:‑---

"Because Riba is generally translated as usury, and because in modern parlance 'usury' signifies only an 'exorbitant rate of interest' some people have fallen into the error that what the Holy Qur'an has really forbidden is an excessive rate of L interest. In truth, it is only a misinterpretation of the term Riba and a perversion of the Qur'anic teaching. That the Holy‑Book does not distinguish between 'exorbitant' and 'reasonable' rates of interest is clear from the following: "(Verse II : 278‑80).

In this respect, I may also refer to the verse of the Holy Qur'an (Surah Al‑Maidah, 5:44) that is "Barter not my Signs for a paltry gain". Does it mean that only the barter for a "small" gain/price is prohibited and if the price is "high", there is no prohibition. Only a literalist, unaware of the style and manner of expression of the Qur'an will so contend. In fact, the verse implies that if the entire world is offered to d Muslim in lieu of His one "Sign", the price offered is still small and one should not sell his religion (Din) in consideration thereof. Therefore, the words are to pinpoint the aggravated situation then prevailing in certain parts of Arabia, which .is highly deprecated. It is, therefore, not that only exorbitant or excessive rate of interest is prohibited but it includes a small percentage also. The words Riba as used in the Qur'an is absolute in terms, and no attribute or qualification as to its quantity is to govern it, nor it has any credence (Refer; city).

23. I may now refer, on the question of prohibition of Riba, the first paragraph (p.l) of the "Report of the Council of Islamic Ideology on the Elimination of Interest from the Economy", Islamabad, 1980, which reads as under:‑---

"The elimination of interest occupies a key position in the establishment of the Islamic order. The phraseology of the verses of the Holy Qur'an as well as of the Ahadith which condemn the institution of interest clearly portrays the Islamic point of view in this regard. Pakistan being an ideological State, the abolition of Riba from the very beginning formed an integral part of State Policy as enshrined in her Constitution. In this connection, the Council of Islamic Ideology has frequently been called upon to delineate the true meaning of Riba and to elucidate the verses of the Holy Qur'an pertaining thereto. The Council has all along expressed the view that the term) Riba encompasses interest in all its manifestations, irrespective of whether it relates to loans for consumption purposes or for productive purposes, whether the loans are of personal nature or of commercial type, whether the borrower is a Government, a private individual or a concern, and whether the rate of interest is .low or high . Yet, there has hitherto been hardly any noteworthy progress towards the elimination of interest from the country's economy."

24. And lastly, I may quote a passage from Muhammad Encyclopedia of Seerah, The Editorial Board Afzalur Rahmn, published by The Muslim' Schools Trust, London, 1982, VOI.II p. 418, which reads as under:‑---

To sum up: 'Islam recognises the right of man to seek his livelihood on God's earth according to his capacity, ability and natural endowments. But it does not concede him the right to adopt such means in the acquisition of wealth as could lead to his moral degradation or upset the social order. Islam sets the distinction of Halal (lawful) and Ha (unlawful) in respect of the different means of earning and imposes the ban of illegality on all those methods which are morally or socially injurious. For this purpose, it has clearly specified those methods which it regards as injurious. Under the Islamic Law, wine and other intoxicants and drinks which spread evil and immorality are not only unlawful (Haram) in themselves, but even their manufactures, sale, purchase and possession have been declared to be unlawful. Islam does not recognise adultery, intoxicating, music, dancing etc., as lawful means of livelihood. It declares all such dealings as unlawful in which the gain of one individual is secured by the loss and injury to some other person or persons or society as a whole. Bribery, stealing, gambling, speculation, business based on fraud and deceit, boarding and holding back the necessaries of life with the object of raising prices, monopolies of the means of production by one or several persons which narrow down the field for others; all these methods have been declared unlawful. It has picked out carefully and branded as illegal all such forms of business as are by their nature capable of causing dispute, or in which the loss or gain depends on mere luck or accident, or wherein the rights of the parties are not distinguishable."

25. In order to analyse the nature of the right to interest on a money claim before a Court of law, I can do no better than quote from an unreported judgment, dated 27‑3‑1987 of the Honourable Supreme Court in Civil Appeal No.K‑78 of 1983, Ghulam Abbas v. K.P.T. It was observed that:‑---

"In order to further examine this question, it is necessary to analyse the nature of right to interest on a money claim before a Court of law and on the same analogy before the domestic forum of an Arbitrator. The right to interest, for the period prior to the date of suit or prior to the reference to arbitration is a matter of substantive law, as contrasted with the power given to a Court of law under section 34, C.p.C. or section 29 of the Arbitration Act which is a statutory power within the domain of procedural law. In the present controversy firstly we are concerned with the right claimed substantively by the contractor for a period before the matter reached the forum for adjudication as a liquidated claim based on a legal right. The right to interest, for the period prior to ,the suit arises in one of the four following ways:

(i) agreement, express or implied between the parties,

(ii) mercantile usage,

(iii) statutory provisions

(iv) interest may be also allowed on equitable grounds in proper cases."

In the aforesaid judgment reference was made to the case of Bengal Spur Railway Co. v. Ruttanji Ramii and others A I R 1938 PC 6 wherein it was observed:‑

"The crucial question, however, is whether the Court has authority to allow interest for the period prior to the institution of the suit; and the solution of this question depends, not upon the Civil Procedure Code, but upon substantive law. Now, interest for the period prior to the date of the suit may be awarded, if there is an agreement for the payment of interest at a fixed rate, or it is payable by the usage of trade having the force of law, or under the provisions of any substantive law entitling the plaintiff to recover interest, as for instance, under section 80, Negotiable Instruments Act, 1881, the Court may award interest at the rate of 6 per cent per annum, when no rate of interest is specified in the promissory note or bill of exchange."

26. Reference in the aforesaid judgment was also made to another case, Muhabir Prasad Run to v. Dun a Datta A I R 1961 S C 990 which was to the effect that interest or a period prior to the commencement of suit is claimable either under an agreement, or usage of trade or under a statutory provision or under the Interest Act, for a sum certain where notice is ,given. Interest is also awarded in some cases by Courts of Equity. As regards interest pendente lite, the Court expressed the opinion that such interest can be granted also on the same basis so far as the right to claim interest is concerned."

27. Thus, a claim to interest under the present law can be based, as held above, on (1) Statute, (2) Contract, (3) Trade usage and (4) Equity, in a particular case. So far as claim of interest based on law i.e. sections 79 and 80 of the Negotiable Instruments Act, 1881 is concerned it is now to be tested on the touchstone of the Qur'an and Sunnah which, as, I have noticed above, prohibit it. As regards contract, no effect can be given to an agreement if it is contrary to an express provision of law. In Islam by Sulh' (compromise) nothing can turn Haram (unlawful) into Halal (lawful), or vice versa. Same thing applies to mutual agreements an contracts. Soar 'trade usage' is concerned, Islamic law recognizes usage or custom as one of the secondary sources of law. Islamic System of law also accepts the legal force and authority of custom and usage. The word (Ma'ruf ) in the Holy Qur'an is a pointer to it. Thus, the custom and usages prevalent during the lifetime of the Holy Prophet Muhammad (Sallallaho 'alayhi wa Sallam) and if the Qur'an or Hadith did not repeal them or the Holy Prophet maintained his silence over them, they were deemed to have been carrying the legal validity. "It is laid down in A1‑Ashbah wa'n‑Nadhair: 'Many decisions of law are based on usage, so much so that it has been taken as a principle of law". "(Muhammadan Jurisprudence, Sir Abdul Rahim, 1958 Ed. Lah. see Custom".) The Islamic legal maxim,) i.e. usage is like textual manifestation (of lax), goes to that extent to recognize the usage but usage is always subservient to the nass text of law). If, however, custom or usage is against the divine law or even an Ijma (concensus), they are not enforceable. So far as equity is concerned, the Courts in the Islamic Republic of Pakistan are not supposed to recognise any more as valid the English principles of justice, equity and good conscience. The English concepts must now, in the changed circumstances, give way to the Islamic concepts and principles of justice, equity and good conscience. Reference may be made to the judgment of Mr. Justice Muhammad Afzal Zullah (now, Judge of the Supreme Court) in Haji Nizam's case P L D 1976 Lah. 930 and my own judgment in Qaiser Ali and others v. Karachi Road Transport Corporation PLD 1963 .489. However, the principle of equity is not allowed to play its role independently in the presence of a clear provision of law. The principle of equity comes into play when there is no provision of the Qur'an and the Sunnah or the Ijma' opposed to the principle of equity, in a given situation. It is only when the situation is to be governed by (analogy) that equity gets preference over it, which is wider in its scope than analogy.

28. The claim of interest in the suit before me falls within the sphere of substantive law as well as procedural law, viz. Sections 79 and 80 of the Negotiable Instruments Act, 1881, Section 34 and Rule 2 of Order XXXVII of the Civil Procedure Code, 1908.

29. For the reasons given by me in my order dated 16‑4‑1987 in Bank of Oman v. East Trading Co. and others in Suit So.519/84, PLD 1987 Kar. 404 this Court is not only competent but bound to enforce 'the existing law' with such adaptations as necessary in R accordance with the Qur'an and Sunnah. I had summed up my conclusions in the said order as under:‑

"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, 103‑G and 203‑GG 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 and that the said law or any provision thereof has been so declared by it (Article 203‑GG)".

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

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

So, it is the Constitutional command for the State (Islamic Republic of Pakistan) to take such steps as would "enable" the Muslims of Pakistan to live as Muslims. Therefore, any law which not only disregards such a commandment but positively violates it, is to be disregarded in view of Article 2‑A. The provisions of Sections 79 and 80 of the Negotiable, Instruments Act, 1881, Section 34 and Rule 2 of Order XXXVII, C.P.C. so far as they relate to awarding interest on money claims are clear violations of the Constitutional mandate, as provided in Art. 2‑A read with clause 3 of the Objectives Resolution, S referred to above. The aforesaid provisions of law and Rules, on the other hand, 'disable' Muslims of Pakistan from leading their lives as Muslims, according to the requirements of Islam as set out in the Holy Qur'an and Sunah in relation to Riba (interest) and, therefore, for the obvious repugnancy to the Injunctions of Islam, contained in the Holy Qur'an and Sunnah, extensively quoted by me in the foregoing paragraphs, the aforesaid provisions of substantive as well as procedural law relating to interest (Ribs) cannot be enforced by this Court, due to their repugnancy to the mandatory provisions of the Qur'an and Sunnah relating to interest (Riba). I may further state that in several other judgments of mine, such as Star Trading Company v. Pakistan Insurance Corporation 1987 C L C 61 and Qaiser Ali and others v. Karachi Road Transport Corporation P L D 1986 Kar. 489, I have avoided to award interest, though in different context.

31. Before parting with this discussion, it may be added that I am conscious of the Constitutional position as laid down in Article 189 of the Constitution that law declared by the Honourable Supreme Court is binding on all the Courts of Pakistan, but I feel equally bound by the provisions of Art. 2‑A of the Constitution, and since I have already held that Art. 2‑A is in the nature of a paramount clause and supra‑Constitutional, it covers Art. 189 also, and so law T declared by the Honourable Supreme Court either prior to insertion' of Art.2‑A or without considering the said Article, with utmost respect, is also, in my humble opinion, subservient to the provisions of Art. 2‑A. I may here venture to reproduce relevant paragraph from Haji Nizami's case P L D 1976 Lah. 930. It reads:‑

"All doubts in interpretation of law and appreciation of evidence would be resolved in manner consistent with Islamic Principles and jurisprudence in preference to any contrary norm. Courts for which law declared by a superior Court is binding as law, when faced with any of the above situation qua precedent binding law, would treat it as if written law but, in order to assist and act in aid of the superior Courts which laid down the precedent might, with respect, deliberate Islamic point of view which would in turn help reappraisal and reinterpretation on Islamic lines. Such points would ordinarily have to be raised and canvassed formally so as to take advantage of. The controversy in each case would have to be specified after due study with the help of the Bar. This would help the entire judicial system to develop on the pattern envisaged in the Constitution. "

32. Reliance may also be placed on the case of Jibendra Kishore Achharyya Chowdhury v. The Province of East Pakistan PLD 1957 SC 9. It was, inter alia, a case of violation of Article 18 of 1956 Constitution which declare that "Subject to law, public order or morality, (a) every citizen has the right to profess, practise and propagate any religion; and (b) every religious denomination and every sect thereof has the right to establish maintain and manage its religious institution in accordance with his religion. It was observed that:

"There can be no doubt that these drastic provisions of the Act strike religious institutions at their very root, and the question is whether, that being the effect of the provisions, they constitute an infringement of the fundamental right guaranteed by Article 18 of the Constitution The very conception of a fundamental right is that it being a right guaranteed by the Constitution cannot be taken away by the law, and it is not only technique filly inartistic but a fraud on the citizens for the makers of a Constitution to say that a right is fundamental but that it may be taken away by the law. I am unable to attribute any such intent to the makers of the Constitution who in their anxiety to regulate the lives of the Muslims of Pakistan in accordance with the Holy Qur'an ands Sunnah could not possibly have intended to empower the legislature to take away from the Muslims the right to profess, practise and propagate their religion" . . . . . . . . . . . . . . . . . . . . . . . . .

This judgment is cited in support of the proposition that any law which contravenes any provision of the Constitution can be disregarded I by a Court of law.

33. I would also like to add that the said judgment may be applied and interpreted as to the power of the Court to disregard the provision of law found repugnant to the Constitution and, thus, in the given situation that the existing law viz. Sections 79 and 80 of the Negotiable Instruments Act, 1881, Section 34 and Rule 2 of Order XXXVII of the Code of Civil Procedure, 1908 relating to grant of interest by this Court must yield to the Injunctions of Islam contained in the V Holy Qur'an and Sunnah relating to interest (Ribs) by giving effect to the principles and provisions of the Objectives Resolution made part of the Constitution by virtue of Article 2‑A .

34. In the end, I would like to quote several verses from the Holy Book of Allah, which are self‑explanatory:‑

(O ye who believe

Enter into Islam

Whole‑heartedly

And follow not

The footsteps

Of the Evil One;

For he is to you

An avowed enemy (S.II:208)

(The Religion before Allah

Is Islam (submission to His Will):

Nor did the People of the Book

Dissent therefrom except

Through envy of each other

After knowledge had come to them.

But if any deny the Signs of Allah,

Allah is swift in calling to account) (S.III:19)

(If anyone desires

A religion other than

Islam (submission to Allah),

Never will it be accepted

Of him; and in the Hereafter

He will be in the ranks

Of those who have lost

(All spiritual good). (S.III:85)

(But no, by the Lord,

They can have

No (real) Faith,

Until they make thee judge

In all disputes between them,

And find in their souls

No resistance against

Thy decisions, but accept

Them with the fullest conviction. (S.IV:65)

(We have sent down

To thee the Book in truth,

That thou mightest judge

Between men, as guided

By Allah (S.IV:105)

(If any do fail to judge

By (the light of) what Allah

Hath revealed, they are

(No better than) Unbelievers).

(And if any fail to judge

By (the light of) what Allah

Hath revealed, they are

(No better than) wrong‑doers).

(To judge by (the light of)

What Allah hath revealed,

They are (no better than)

Those who rebel). (S.V:47)

(It is not fitting

For a Believer, man or woman,

When a matter has been decided

By Allah and His Apostle,

To have any option

About their decision

If anyone disobeys Allah

And His Apostle, he is indeed

On a clearly wrong Path).

(Trans: by Abdullah Yousuf Ali).

35. For the reasons aforesaid. I decree the suit only for the principal amount of Rs.1,90,000 (Rupees one lac ninety thousand) with no interest thereon. The plaintiff shall also be entitled to costs of the suit.

M.B.A./I‑18/K Suit decreed.

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