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P L D 1989 KARACHI 371

HABIB BANK LIMITED
V/S
WAHEED TEXTILE MILLS LIMITED AND OTHERS
Per Mamoon Kazi, J.
(a) Constitution of Pakistan (1973), Articles 203G, 30 & 268:
There is another important aspect of the matter which requires to be considered as Article 227 clause (2) of the Constitution shows that the “Islamic Provisions” contained in Part IX of the Constitution can take effect only in the manner provided therein. An exception has been made in the Constitution only in case of Chapter 3-A in Part VII, thereof which by virtue of the non-obstante clause inserted in Article 203-A of the Constitution has been placed on a higher pedestal than Article 227(2) of the Constitution. Article 203-G is another important Article, its importance being emphasized by the fact that the jurisdiction of any Court or tribunal including the Supreme Court and a High Court has been barred in respect matters to which the jurisdiction of the Federal Shariat Court extends. [p. 388] K.
However, when the Constitution has already made provisions for the Islamisation of laws in Pakistan and an effective machinery for the purpose has also been provided, the Courts in Pakistan cannot take upon themselves the task of declaring any law as invalid on the ground of its being inconsistent with or repugnant to the tenets of Islam, more so, in view of the express provisions contained in Articles 203-G, 227(2) and 30(2) of the Constitution and also for the reason that no such jurisdiction has been conferred on the Courts by Article 2-A of the Constitution. The Courts in terms Article 175(2) of the Constitution can exercise such jurisdiction which has been conferred on them by the Constitution.
[p. 389] N.
It may again be observed with great respect, that, Article 268(6) cannot be invoked by the Courts to bring any legislation in accord with the injunctions of Islam, even if the same are reflected in accord with the injunctions of Islam, even if the same are reflected in the Holy Qur’an or Sunnah, unless the same is permitted by the Constitution itself. Article 268(6) also cannot be called in aid to overcome the restrictions imposed by Article 203-G or 227(2) of the Constitution. No doubt, the Objectives Resolution has now been made a substantive part of the Constitution, nevertheless by its own force it cannot render the Injunctions contained in the Holy Qur’an or Sunnah an integral part of the Constitution. Article 268(6), therefore cannot be invoked by the Courts in any case to bring any existing law in accord therewith by necessary adaptations.
I am accordingly of the view that the provisions of the Objectives Resolution read with Article 2-A of the Constitution cannot be given effect to by the Courts inasmuch as that no law in Pakistan can be tested by the Courts on the touchstone of the Objectives Resolution to bring it in accord with the Injunction of Islam except within a limited sphere as pointed out above, and the Courts in Pakistan are under a moral legal obligation to give effect to the law in force in Pakistan. Consequently, even if the contention of Mr. Manji that charging of interest is prohibited by Islam, is accepted, still the laws in force in Pakistan permitting the plaintiff to charge interest on the principle amount due against the defendant must be given effect to. [p. 390] P, Q, R, S
Order accordingly.
A. I. Chundrigar for Plaintiff.
Noorullah Mangi for Defendants Nos. I and 3.
Naim-ur-Rehman for Defendant No.2.
Date of hearing: 28th February, 1989.

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