P L D 2009 Lahore 426 (PLP)

MAULVI ANWARUL HAQ, J.

To question a money decree passed against the petitioner it filed RFA No.52/96. The matter of stay of execution of the decree was ultimately decided by the Honourable Supreme Court of Pakistan vide order dated 20-1-1997 passed in CPLAs Nos.14-L to 16-L of 1997. The appellant was directed to deposit decretal amounts with the High Court within two months, which will be invested in the Special Saving Certificates of the Government of Pakistan. The profit accruing was to be paid to the parties who would be entitled to the principal amount as per decision of this Court. The decretal amount was so deposited and invested by this Court by paying the same to respondent No.1 and Special Saving Certificates as detailed in para. 5.3 of the writ petition were issued. Compromise agreements were arrived at into between the petitioner and the decree-holder, which were presented in this Court and recorded on 22-6-2001 and the RFAs were disposed of in terms of the said agreements. According to these orders, which are annexed as C-1, C-2, C-3 to this writ petition, the principal amount was to be released to the petitioner after deduction of Zakat on the principal amount while the said amounts mentioned in the said orders were to be paid to the decree-holder. The grievance being made out in this writ petition is that as against the principal amount of Rs.118,827 million with reference to RFA No.52/96 the respondent No.2 released a sum of Rs.114,083 million and the balance amount i.e. Rs.4,744 million was deducted as Zakat.

2. Learned counsel from the petitioner contends with reference to the definition of a `sahib-e-nisab' as given in the Zakat & Ushr Ordinance, 1980, that the said principal amount could not be treated as an asset of the petitioner-Bank within the meaning of the said law and as such the respondents have no lawful authority to deduct the Zakat. Learned Deputy Attorney-General as well as learned counsel for respondent No.2, on the other hand, argue that since the amount was not kept by the Court rather was invested, as such, it does constitute an asset of the petitioner within the meaning of the said law. It has also been stressed that the orders passed by this Court for release of the amount did provide for deduction of Zakat.

3. I have gone through the several documents, appended with this writ petition as also the pleadings of the respective parties available on record. The facts are not disputed. The order passed by the Honourable Supreme Court on 28-1-1997 (Annex B) leaves no manner or doubt that the petitioner was directed to deposit the decreal amounts with this Court and then direction was issued to this Court to invest the same in the Special Saving Certificates and further to pay the profits to the part, who will be entitled to the principal amount as may be held by this Court. The order was complied with by the petitioner and further this Court implemented the directions regarding investment of thy amount. Section 3 of the Zakat and Ushr Ordinance, 1980, is what is normally called a charging section in fiscal statutes. It provides for charging and collecting of Zakat in respect of asset mentioned in the First Schedule for each Zakat year, from every person who is on the Valuation date and for the whole of the preceding Zakat year been sahib-e-nisab and who owns or possesses such assets on the valuation date. Section 2(xxiii) or the said Ordinance defines 'sahib-e-nisab' to mean a person who owns or possess assets not less than 'nisab' as defined in section 2(xv) (a) of the said Ordinance. However, it specifically includes, inter alia, the following mentioned in Clause (n) thereof;-- "(n) amount of a party to a suit or case kept with or wider the orders of a Court pending decision of the suit or case." It is with reference to this provision that Mr. Ali Zafar, Advocate, is contending that the Zakat is not liable to be charged and collected under the said Ordinance on the amount deposited by the petitioner-Bank in compliance with the orders of the Honourable Supreme Courts of Pakistan, pending decision of this said cases. (in a plain reading of the said provisions, the amount in question having been deposited and consequently kept with this Court and put to use by this Court ill accordance with the directions contained in the orders of the honourable Supreme Court of Pakistan does not constitute 'nisab' for purposes of the said Ordinance. The said contention raised by the learned Law Officer and the learned counsel for the respondent No.2 loses sight of the word "or" between words "kept with" and "under the orders of a Court". Under the normal rules of interpretation "or" is a disjunctive. This being so, an amount kept with the Court or utilization whereof is subject to order of a Court pending decision of a case would squarely falls within the mischief of the said excluding Clause (n) of section 2 (xxiii) of the Zakat and Ushr Ordinance, 1980. So far as the reference to the contents of the orders dated 22-6-2001 of this Court (Annexes C-1, C-2 and C-3) is concerned, the words "after deduction of Zakat on the principal amount" are qualified by the words ''if any". It is hut obvious that the intention is that if any Zakat is chargeable under the law then the same will be deducted. Since the said law excludes the amount in question from the term "nisab", no Zakat will be chargeable and consequently to he collected. The writ petition accordingly is allowed and the act of the respondents in deducting Zakat from the principal amount of investment in Special Saving, Certificates with reference to RFA No.52/96 under orders of the Honourable Supreme Court of Pakistan and then under orders of this Court is declared to be without lawful authority and void The respondents will accordingly refund the amount of Rs.4.744 million to the petitioner Bank. No orders as to costs. M.H./B-13/L Petition allowed.