1990 PLP 428 (CLC)

Suits Nos.167 and 168 of 1974, involve common questions of fact and law, common evidence was recorded therein and the same are, therefore, disposed of by this single judgment.

2. The facts are that 95 cases of tea in each of the suits were shipped in December, 1971, by either plaintiff from Chittagong, in the then East Pakistan, to Karachi, on m.v. Al‑Abbas', a ship belonging to Muhammadi Steamship Company Ltd. The goods were insured with the defendant No.l, per Insurance Policies dated 4‑12‑1971, for identical sums namely, Rs.42,000 (Rupees forty‑two thousand) each. In addition, War Risks Insurance for the goods in transit was also obtained from the Pakistan Insurance Corporation, the defendant No.2, through the defendant No.l. The admitted position is that the vessel `AI‑Abbas' never reached Karachi and was bombed and wrecked by the Indian Air Force at the port of Chittagong during the Indo‑Pakistan War. The two suits, being disposed of through this common judgment, were filed as the defendants, on claims being lodged with them,did not honour their alleged liabilities. Each suit involves a claim of Rs.42,000 (Rupees forty‑two thousand) with interest cr 9% from the date of suit till payment.

3. The defence projected is that there was no contractual obligation on the part of the defendants, that due information was not supplied, that the shipping company has not been sued, that the journey of the goods had already commenced before the promulgation of the War Risks Insurance Ordinance, that the Policies were taken on making misrepresentation and committing fraud through suppression of facts, that no liabilities arose as the losses had occurred before the issuance of War Risks Insurance Policies, if any, and after the coming into force of the War Risks Insurance (Amendment) Ordinance, 1972 and, finally, Pakistan Insurance Corporation is liable only, if at all, as an Agent/Delegatee of the Central Government and no suit against such Agent/Delegatee is competent.

4. On 9‑12‑1974, the following consent issues were adopted by the Court, which, substantially, are common in the two suits:‑‑ , "(1) Whether 95 cases of Tea belonging to the plaintiff were shipped from Chittagong to Karachi on AL‑ABBAS, a ship belonging to the Mohammadi Steamship Company Ltd. in December, 1971? (2) Whether the defendant No.l issued the Insurance Policy mentioned in para. 2 of the plaint in favour of Amjad Agency of which the plaintiff is the sole proprietor`? (3) Whether the defendant No.l obtained from defendant No.2 on behalf of plaintiff a War Risks Insurance Policy as per para. 3 of the plaint? (4) Whether in the circumstances of the case the Shipping Company is a necessary party in the suit? (5) Whether the plaintiff's claim against the defendant is genuine and maintainable in law or not? (6) Whether the contract of insurance was obtained by the plaintiff by making misrepresentation and fraud? (7) Whether the goods of the plaintiff were covered by a War Risk Insurance Policy? (8) To what relief, is the plaintiff entitled?" 5.On 12‑5‑1975 in Suit No.167/74 the :following additional issue was, by consent, struck:‑‑ "Whether the defendant No.2 are the agents of the Central Government and are personally liable for the claim?

6. Issues 1 to 3, and 6: These Issues, which pertain to the shipments of the goods, issuance of the Marine and War Risks Covers and whether any misrepresentation or fraud was involved therein are taken up together. Parties have examined only P.W.1, Tayyab Suleman (Ex.5), as the sole witness in the case and his evidence has, by consent, been treated to be common in both the cases. He has, largely, based his case on documentary evidence. He has produced the Bills of Sales in respect of the two consignments in suits, telegram intimating the factum of shipment, Marine and War Risks Policies, issued by the defendants, copies of claims lodged and relevant correspondence. With the cover, he has included the invoice value, insurance charges, bank charges, etc. In cross examination, he has admitted that the defendant No.l, had prepared its bill on 4‑12‑1971 (Ex. 5/17) but, then, the payment was made per Receipt dated 26‑8 1972 (Ex.5/18). He, however, has explained that "this is how insurable interests are normally paid for and there was nothing unusual in it." The defendants, having examined no evidence of their own, shall have to abide by and he hound by such evidence, as has come on record. They could have, if they had any evidence available, led the same. That they did not choose to lead any such evidence, gives rise to a presumption under Article 129, Illustration (g) of the Qanun‑e‑Shahadat, 1984, that such evidence, as they may have had available with them, if any, would have, if led, gone against their averments. Plaintiffs' evidence, thus, remaining unrebutted, their case, on facts deposed, stands proved. On facts, therefore, it is found that the goods were shipped, as alleged, Marine and War Risk Covers, were taken as pleaded and that there was no misrepresentation or fraud involved.

7. Issues 4,5,7,8 , and additional Issue: Issue No.4, as regards shipping company being a necessary party, has not been pressed and is, therefore, answered in the negative. Issues 5,7,8 and the additional 'Issue, which deal with the lawfulness of the Covers, competence/maintainability of the claims, liability, if any, of the defendant No.2 and the relief are connected, and, therefore, taken up together.

8. The claims are resisted on the grounds that the Marine Policy of the defendant No.l is neither relevant nor enforcible and that the primary liability, if any, in the context of war risks, is that of the Federal Government (at the time termed as the Central Government) and not that of the Pakistan Insurance Corporation, defendant No.2 herein, which is only an Agent/Delegatee. Even as regards the liability of the Central Government it is argued that no premium was paid at any material time and no cover, therefore, came to subsist. Besides, on the date the cover was issued, it is contended that the subject‑matter of insurance had ceased to exist and,‑therefore, no cover could, in law, be sought or issued.

9. On 5‑12‑1971, the War Risks Insurance Ordinance, (XXXII of 1971) herein referred to as the Ordinance, was promulgated and came into force at once. (P L D 1972 Central Statutes 49). Subsequently, through Ordinance XXXVII of 1972, promulgated on 13‑8‑1972, the Ordinance of 1971 was retrospectively made effective as from 3‑12‑1971. (P L D 1972 Central Statutes 766). Under section 4 of the War Risks Insurance Ordinance, the Central Government was empowered to prepare war risks schemes, one of which pertained to "goods in transit", which, as per section 2 (g) of the Ordinance, inter alia, meant such goods as were "shipped or otherwise despatched from one province to another." Such a scheme, under section 6 of the Ordinance, was to g extend to the subjects contemplated by that section. Section 8 of the Ordinance envisaged that on or after such date as may, by notification, be specified every owner of any "goods" or "goods in transit", insurable under the Ordinance, shall take out a Policy of Insurance against war risks issued in accordance with the scheme relating to such "goods" or "goods in transit". Under section 17 the Government was empowered to employ or authorise the employment of any person or firm to act as its Agent for any of the purposes of the Ordinance. Section 24 of the Ordinance postulated that the Central Government, by notification, could direct the exercise of any of its powers under the Ordinance to be "by such officer or authority as may be specified". Such delegation was made on 5‑12‑1971 favouring the Pakistan Insurance Corporation, established under the Pakistan Insurance Corporation Act, 1952 (XXXVIII of 1952) and the delegation included the obligation to "meet all liabilities of the Central Government" under the Ordinance (for the delegation see P L D 1972 Central Statutes 205). On the same date viz. 5‑12‑1971, War Risks (Goods in Transit) Insurance Scheme, was framed and published (for notification see P L D 1972 Central Statutes 160). Clause 3 of such Scheme made it incumbent or every owner of "goods in transit", required to take out a policy under subsection (1) of section 8 of the‑ Ordinance, to take out such policy under the Scheme and pay the premia provided there for. Sub‑clause (2) of this clause provided that an owner of "goods in transit", who had fulfilled such of his obligations under clause (1), as had fallen due, shall be entitled to the payment of compensation admissible to him under the Ordinance, Rules and the Policy by the Central Government (for Rules see P L D 1972 Central Statutes 145). Proviso was added to the effect that where an owner of "goods in transit" could not fulfil his obligations under sub‑clause (1), for reasons which, to the satisfaction of the Central Government, were beyond his control, he shall also be entitled for the same benefits as aforesaid but a sum equivalent to the amount of premium plus surcharge and interest, if any, remaining unpaid on the date of compensation shall be deducted therefrom. Under clause 4 of the Scheme, every owner of "goods in transit" required to take a Policy under subsection (1) of section 8, was to apply to a Government Agent or such Officer as may be authorized by such Agent. The application was to be made in Form `A' and the amount of premium was to be simultaneously remitted by bank draft, cheque, money order, or postal order or delivered in cash.. Where no amount accompanied the application or the amount of money fell short of the required amount, the application "may by kept in suspense pending the receipt of the amount". Clause 5 of the Scheme required the Government Agent to issue a policy of insurance in Form `B' as soon as possible after receipt of an application made under clause 4, but where the premium was remitted by cheque the Government Agent at discretion, may postpone the issuance of the policy until the cheque had been encashed. Likewise, where the application was unaccompanied by full advance premium, the Government Agent, at discretion, may withhold the issue of policy unless premium was paid in full. Clause 7, which pertains to claims, provided for payment on satisfactory lodging of the claim to be determined by the Central Government and the payment was to be made through the Government Agent. Acting under section 17 of the War Risks Insurance Ordinance, 1971, the Central Government, inter alia, employed Alpha Insurance Company Ltd., defendant No.l herein as its Agent for the purposes of issuing Policies and receiving premia relating to Schemes prepared under the said Ordinance. (For notification dated 5‑12‑1971 see PLD 1972 Central Statutes 203).

10. The position emerging from the record is that Marine Insurance in spect of the goods in question was taken from the defendant No.l, on 4‑12‑1971 (Ex. 5/4) and War Risks Insurance, dated 31‑12‑1971, was issued by the same insurance company, acting as Government Agent. As regards payment for the Marine Insurance Cover, a bill dated 4‑12‑1971, from the defendant No.l, Alpha Insurance Company, in the sum of Rs.810.25, is brought on record (Ex.5/17) and such sum is evidenced to have been paid vide receipt of the same company dated 26‑8‑1972 (Ex.5/18). In so far as the War Risks Insurance is concerned, premium for the same amounting to Rs.105, is reflected to have been received on 31‑12 1971 in the Insurance Policy itself, issued in Form `B' aforesaid, on 31‑12‑1971. In the cross‑examination, conducted on the only witness in the case namely, Tayab s/o Suleman, he was questioned that, while the premium bill for the Marine cover was dated 4‑12‑1971, actual payment of premium was made on 26‑8‑1972, and the witness explained that, that is how insurable interests were, normally, paid for and there was nothing unusual in it. No question, however, with regard to the issuance of War Risks cover or concerning the payment of premium there for, was put. Significantly, it has, also, not been brought out on record as to when the War Risks cover was applied for; though the date of payment of premium in such behalf and the issuance of cover itself have been noted to be 31‑12‑1971.

11. It is to be seen that as a result of promulgation of Ordinance XXXVII of 1972, War Risks Insurance (Amendment) Ordinance, 1972, War Risks Insurance Ordinance, 1971 was made effective as from 3‑12‑1971. If, therefore, it is found that any "goods in transit" were duly insured under the relevant Scheme, the cover became valid as from 3‑12‑1971, for no cover could be taken or issued prior to C 5‑12‑1971. Unless such was the object of the Amending Ordinance XXXVII of 1972 the retroactive operation of the Ordinance w.e.f. 3‑12‑1971 would have no purpose and the Amending statute would be rendered meaningless or redundant and redundancy, under well‑settled rules of interpretation, is to be avoided. Mr. A. Rauf has contended that since the subject‑matter of contract did not subsist on the date the cover was issued, the Insurer is not liable. He relies on "Principles of General Insurance Law" by Hardy Ivamy (2nd Edition) page 25, where, based on English law, in the event of, "loss by fire" the insured is said to require "an insurable interest in the object destroyed" but in the context of Marine Insurance the assured is to be shown "interested in the subject‑matter insured at the time of the loss though he need not be interested when the Insurance is effected". For obvious reasons it is the last category in which the cover(s) in this case may fall. At any event, War Risks Insurance being a compulsory and mandatory requirement under statute and there being an express statutory obligation of the assured, having an insurable interest in the subject‑matter of insurance, when the D War erupted (3‑12‑1971), all that the assured is required to show, in order that entitlement to be reimbursed arises, is insurbale interest when damage, resultant upon war, was caused. This the plaintiffs seem to have shown. Besides, as seen above, if this were not so, umptinious losses occasioned on the 3rd and 4th of December 1971 would never be covered for even the relevant law had not been promulgated till then what to say of any cover being issued on such dates. Insurable interest on datc(s) of cover, therefore, does not appear to have been necessary.

12. The next contention, seeking invalidation of covers in these suits, is based on the ground that premia were not paid at any material time and, as such, no liability against the defendants arose. Reference is made to and reliance is placed upon section 3‑C of the Insurance Act, 1938, inserted by the Insurance (Amendment) Act, 1958. Subsection (4) of that section provides that no Insurer shall assume, in Pakistan, any risk in respect of general insurance business unless and until the premium payable has been received by him or has been guaranteed to be paid by such person in such manner and within such time as may be prescribed. Correspondingly, Rule 44 of the Insurance Rules, 1958, envisages that in cases where premium in respect of any insurance can be ascertained in advance, no Insurer shall assume any risk in respect of general insurance business unless the Insurer has received in cash, by cheque or money order, the full premium payable or has an amount in deposit to the credit of the proposer sufficient to cover the permium or/as a bank guarantee to be resorted to. Rule 45, is also to like effect but operates in somewhat different circumstances. Section 102 of the Act of 1938, provides imposition of fine in case an Insurer makes default in complying with or operates in contravention of any requirements of the Act. Section 103 of the Act, inter alia, provides a corresponding penalty by way of fine on any person who takes out a Policy with an insurer or other person who is guilty of contravening Ss.3, 7 and 93, but not 3‑C of the Act. In support of the proposition that a cover issued, in absence of due consideration, is bad, reliance is placed by the learned counsel on the case of Traps‑Ocean Asia v. Alpha Insurance Company Limited 1981 C L C 1028. It seems that while a contention was raised in such case that no valid cover could be issued in the absence of payment through bank guarantee, stipulated between the parties, Mushtaq Ali Kazi, J., who decided the case, did not express any opinion, one way or the other on the subject, and disposed of. the controversy on the basis that a new contract had come into being, subsequent to the earlier one, on fresh terms and conditions, and such contract governed the situation.

13. The question of validity of Insurance Cover, in the absence of simultaneous payment, has, therefore, to be considered irrespective of the decision in the case of Traps‑Occean Asia. It is clear that insurers are precluded from concluding such contracts. Contraventions, generally, under the Act, are punishable with fine for each day of default. Likewise, persons taking out policies, in disregard of the provisions in sections 3,7 & 93 of the Act, are also liable but i not so on contravention of section 3‑C. The rule of thumb, deduced in judicial pronouncements on the subject, is that where sanction against a prohibition is imposition of fine, calculated to protect or generate public revenue, the contravening transaction is not void but where intention of the legislation is to I protect members of the public or any segment of them in their dealings with those exposed to levy of fine, the relevant transactions are void and unenforcible. This is based on the observations made in Anson's "Law of Contract" "Pollock & Mulla on Contract". The relevant judgments, in such context, are reported as Pamulapati v. Kommareddy (A I R 1960 A.P. 39), The Commissioner of Income tax v. Union Tabacco Co.(A I R 1960 Kerala 276), Smt. Janki Bai v. Ratan Melu (A I R 1962 MP 117) and Wali Mohammad v. M/s. Noor Ali (P L D 1963 Kar. 32). However, it would seem that the views of Anson as well as Pollock & Mulla, based on generalisations, assumptions and probabilities do not take into consideration all situations nor are they calculated to do so. Thus, such views may be true in many a case but not, necessarily, in all. In order to come to the correct conclusions relevant provisions in the statute itself have to be examined. The object must always be to discover the intention of the legislature, for it can never be assumed that each prohibition, envisaging punishment for violation by imposition of fine, has the same or similar legislative objective or intendment. The factors to be taken into consideration would, inter alia, include whether the prohibition in the statute is complete, whether the prohibited transaction offends public policy, whether the prohibition is calculated only to make the contravening act more expensive or generate revenue, whether the prohibited act(s) is/are directed to protect the members of the public or any class of them, whether it r‑' applies to both or all the parties to the transaction and, above all, whether the relevant law has, purposely, avoided to term the offending transaction(s) to be inoperative and unenforcible. It would, amongst others, be the cumulative outcome of the foregoing questions that should determine whether the prohibited act is void or ineffective. Applying these tests to the quoted provisions of the Insurance Act, it appears to me that the relevant provisions may not solely be calculated to protect those dealing with the Insurance Companies but, directed, rather, to properly administer the business of Insurance. The refrain is, , essentially, directed to the insurer and, not even incidentally, to the assured and, further, if the legislature intended to completely avoid such transactions there was nothing to preclude it from doing so by employing the requisite language. Section 3‑C of the Insurance Act, noticed above, a recent induction in the Act stops short of that. It seems to have limited itself, and on purpose, to fall in line with the other provisions in the Act, sanctioning fines, considering that to be sufficient in order to remedy the situation. At any event, embarking upon an insurance without, at the outset, payment or receipt of due premium, does not seem to be violative of public policy and the objective seems to be only to make the contravention(s) more onerous, so that insurers are not tempted ‑to over‑step N their limits resulting in, ultimate difficulties, to themselves and inconvenience to the authorities, on the one hand, and the assured, on the other. Any other interpretation would be fraught with difficulties as, in the event it is held that policies hit by lack of corresponding premia are void and unenforcible, sufferers would be the unwary members of the public, and then the law would be found to be calculated to harm rather than protect the citizenry.

14. Another aspect of the case is that under the War Risks Insurance Ordinance XXXII of 1971, it does not seem to have been provided that disabilities under the Insurance Act of 1938, such as they may be, would also apply to covers taken under the said Ordinance. On the contrary, it would appear that while under the War Risks (Goods in Transit) Insurance Scheme, normal procedure is that due payment of premium should accompany an application for cover, it is still in the discretion of the relevant Government Agent to issue or postpone the issuance of policy, if payment or full payment does not so accompany. There is nothing to show that where issuance of a policy is withheld for due payment or even taken out belatedly, while damage on account of war had already been sustained, the Government would not be liable. In point of fact, premia are, admittedly, stated to have been collected much beyond the cessation of hostilities, as would be reflected in a decision of this Court reported as Pakistan Chrome Mines Limited v. Enquiry Officer War Resks Insurance (P L D 1977 Kar. 978) and were found to be validly recovered or sought to be recovered. It is also to be noted that under the Ordinance per section 15 thereof, a War Risks Insurance Fund was established, solely, to cover damage occurring on account of war. It is not the case of the defendants that there are no funds available to defray such loss. As to liability, where the insurer does not preclude responsibility having already accrued prior to the issuance of cover reference may, advantageously, be made to "Macgillivary on Insurance Law" (7th Edition). There‑ it is observed that, in order to avoid liability, there should be an express stipulation that the insurer will not come under liability to indemnify until the first premium is paid (Note 234). Likewise, it is stated that there is no rule of law to the effect that there cannot be a complete contract of insurance concluded until the premium is paid (Note 861). The rule on the contrary seems to be that the insurer is liable to pay in the event of loss before payment although it may be entitled‑to deduct the amount of premium from the loss payable. It is, also, so provided in the Proviso to Clause 3 (2) of the .War Risks (Goods in Transit) Insurance Scheme, though non‑performance may be for reasons beyond control. It would therefore, follow that the payment of premium at a time when the "goods in transit" had already suffered damage, would not curtail or offset the responsibility of the Central Government.

15. Indeed, it would appear that under the instructions, which are part of the War Risks (Goods in Transit) Insurance Scheme (PLD 1972 Central Statutes 160), the only "goods in transit" excluded are such as "have been shipped or otherwise despatched before the aforementioned date‑‑‑‑". Likewise, under the same instructions it is clearly provided that the policy "is affecting for the voyage for which it has been issued". It is also to be observed that on the date the policy was issued hostilities had already come to an end, as ceasefire took place on 14‑30 hours GMT on 17‑12‑1971 (see address of Yahya Bakhtiar, Attorney‑General, before the International Court of Justice at page 153, Journal, PLD 1973 SC and Journal). It is obvious that if any damage to the "goods in transit" had to take place, it had already materialised on the date the cover was issued and the premium was paid. The Central Government could not have been oblivious to this situation. It is argued by Mr. A. Rauf that the policy was void, as the Government Agent acted beyond the scope of his authority. No retraction, whatever, was made by the Central Government allowing the rule of waiver and estoppel to operate in the case. The only denial and that, too, conditional and apparently for Marine cover, is for Alpha Insurance per letter dated 25‑2‑1974 (Ex.5/16). Waiver is a conscious act, involving intentional relinquishment of a right or defence. It need not be express and may, merely, be implied in a given K, situation. It can also be inferred from the conduct of a party. It is evident, in the circumstances of this case that the Central Government and its Agent and Delegatee did not claim or project any such rights, as above, prior to entering defence in these cases. Rule of estoppel also operates in this case as premium 8 money was collected and never refunded either by the Central Government or by any of the defendants thereby making the plaintiffs to alter their situation.

16. The next contention is that a necessary party namely the Central Government has not been sued in these proceedings. In support, it cited a decision of Dorab Patel, J., as the Hon'ble Judge then was, in the case of Azam Agencies v. Trans‑Oceanic Steamship Co. PLD 1971 Kar. 56 where it was observed that, in the presence of a carrier, its agent could not be sued. A distinguishing view, however, of Noorul Arrin, J., in the case of Pak Industrial Chain Co. v. American Oriental Lines Ins. PLD 1968 Kar. 89 is also available. Actually, the principle does not apply here at all, as the Pakistan Insurance Corporation has been sued, as delegatee of the Central Government, under section 24 of the War Risks Insurance Ordinance (for Notification dated 5‑12‑1971 see PLD 1972 Central Statutes 205). Likewise, Alpha Insurance has been sued, as Government Agent, appointed under section 17 of the same Ordinance (for Notification refer PLD 1972 Central Statute 203). It would appear that the relationship between the Central Government and its delegatee or for IT that matter a Government Agent specially appointed under the above statute, can I only be governed by such statute and cannot be controlled in terms of the Contract Act, 1872, and Irk the Ordinance of 1971 there does not seem to be any bar in, exclusively, raising the claims against these parties. As to the Pakistan Insurance Corporation it must pay in terms of the War Risks Insurance K Ordinance, 1971 as also on the principle involving custody of Funds recognised in the case of Ananthachari v. Ratnam (45 MLD 83). As to Alpha Insurance Company, it would, alternatively, be liable to pay, if it acted in excess of authority conferred on it under statute but that can only be determined in due proceedings.

17. Lastly, may be disposed of the objection that Alpha Insurance Company is not liable on the Marine Insurance Policy in this case. The contention in this behalf seems to be supported on the basis of judgments of this Court reported as Rauf and Company v. Alpha Insurance Company (PLD 1981 Kar. 457) and Haji Razzaq Haji Habib Janu v. Islamic Republic of Pakistan (1986 CLC 740) in each of which cases it has been held that a Marine Insurance Cover would not be effective in relation to damage sustained as a result of war. As such, it is found that Alpha Insurance Company cannot be held liable on the basis of the Marine Insurance Covers issued by it though it could be liable as Goverment Agent, provided that it has funds as such Agent.

18. The residue question to be considered is one for grant of interest. In the case of Aijaz Haroon v. Inam Durani (PLD 1989 Kar. 30.1) I have expressed an opinion that interest cannot be charged or made payable under Pakistan dispensation of Laws. Plaintiffs in each of these cases have claimed interest at 9% per annum from the dates of suits till payment. On the basis of the ratio in Aijaz Haroon's case the claim of interest is liable to be disallowed straightaway. However, another learned Judge of this Court, my brother Mamoon Kazi, J., in Habib Bank Ltd. v. Waheed Textile Mills (PLD 1989 Kar. 371) has disagreed with the view in the case of Aijaz Haroon, on reaching a conclusion that Article 2‑A of the Constitution, which makes the Objectives Resolution of 1949 a "substantive part of the Constitution" and have effect accordingly" cannot be resorted to by a Court of law to deviate from any legislation lawfully made, what to say of other Constitutional provisions, not conforming to the Objectives in the said Resolution. Such dictum of my learned brother as also other case‑law which has emerged since the decision in Aijaz Haroon's case ibid has to be taken note of and it has to be determined whether the views in Aijaz Haroon's case call to be re‑considered.

19. The reasons for arriving at a different conclusion in the case of Habib Bank Limited v. Waheed Textile Mills, shortly, are that the insertion of Article 2‑A in the Constitution of Pakistan does not make the Objectives Resolution to be "self‑executing" and further that a Constitutional provision cannot be tested on the touchstone of another such provision.

20. The insertion of Article 2‑A in the Constitution of Pakistan is based on a definite historical background, as reflected in judicial pronouncements in the pre insertion era. Thus in the case of Miss Asma Jallani v. The Government of Punjab (PLD 1972 SC 139) the highest Court in the land, in the face of the abrogated Constitution of 1962, looking for norms governing the State, in the words of Hamoodur Rahman C.J., observed:‑‑ "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 legal sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority exerciseable by the people within limits prescribed by Him is a sacred trust. This is an immutable and unalterable norm which was clearly accepted in the Objectives Resolution passed by the Constituent Assembly of Pakistan on the 7th of March, 1949." Again the Honourable Chief Justice further observed:‑‑ "This has not been abrogated by anyone 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 Ouran". (Underlinings are mine.)

21. Subsequently, following upon the introduction of the Interim Constitution of Pakistan, 1972, in the case of State v. Zia‑ur‑Rehman and others (PLD 1973 SC 49) in the context of the Objectives Resolution, which had only figured as a preamble to such Interim Constitution this is what the same learned Chief Justice had to observe:‑‑ "Therefore, in my view, however solemn or sacrosanct document, if it is not incorporated in the Constitution or does not form a part 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." Again, in the same context and in the same passage Hamoodur Rahman, C.J., further said:‑ "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 part of it. If 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." (Underlinings are mine).

22. In Federation of Pakistan v. United Sugar Mills Limited and others (PLD 1977 S.C. 397), this is how the matter was dealt with:‑‑ "In Pakistan this Court in the case of Zia‑ur‑Rehman (P L D 1973 S.C. 49) has, however, firmly laid down the principle that a Constitutional provision cannot be challenged on the ground of eing repugnant to what are some times stated as "national aspirations" or an "abstract concept" so long as the provision is passed by the competent Lagislature in accordance with the procedure laid down by the Constitution or a supra eonstitutional instrument". (Underlinings are mine).

23. Dicta in Re: Ziaur Rehman was again re‑affirmed in Fauji Foundation v. Shamimur Rehman (P L D 1983 SC 757).

24. Now, as reflected in the quoted excerpts from leading case of Ziaur Rehman, it clearly follows that if a basic document, solemn and sacrosanct, such as the Objectives Resolution, were to be incorporated in the Constitution and L formed part thereof, it would control the Constitution. 1t was to cover such a failing, if failing it at all was, that Article 2‑A in the Constitution was inserted, through President's Order 14 of ‑1985, promulgated on 2‑3‑1985 and retained, unaltered, by passage of the 8th Amendment to the Constitution. The same is reproduced hereunder:‑‑ "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."

25. It is thus clear that the Objectives Resolution is now part and parcel of "the substantive part of the Constitution" and is to "have effect accordingly". Can a M question, therefore, arise that the postulates in the Resolution are yet unenforcible?

26. Such question can be approached from different angles. Firstly, the promulgation, which followed upon the cases of Zia‑ur‑Rehman, United Sugar Mills Limited and Fauji Foundation ibid. squarely meets the requirement (whether such requirement arose at all‑‑see the case of Aijaz Haroon) raised in those cases and is clearly calculated to make the Resolution effective and capable of being enforced. If this was not so, the Constitutional Amendment would be meaningless and redundant, for if the Resolution was expressly accorded the status of a "substantive part of the Constitution", any interpretation to relegate it back to the proclaimed status of the pre‑insertion era should have no other implication. This, patently, cannot be the position.

27. Another mode of approaching the question is by taking recourse to the reasoning, which has found favour with Ajmal Mian, C.J., while interpreting the provisions of Articles 175 and 203 of the Constitution, pertaining to the separation of judiciary, in the Full Bench case of this Court reported as Sharaf Faridi and others v. The Federation of Pakistan (P L D 1989 Karachi 404). In such case, the learned Chief Justice, referring to Chapter 2 in Part II of the Constitution, entitled "Principles of Policy", has made the weighty observation that in clause (2) of Article 30 in such Chapter the Constitution‑makers envision that "the validity of an action or of 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 ground." On such basis, the Full Bench concludes that, in so far, as no equivalent provision is available in Articles 175 and 203 of the Constitution, the inference and implication is that such Articles are enforcible under Article 199 of the Constitution of Pakistan. This line of reasoning is also supportable on the basis of some dicta of the Indian Supreme Court, which the learned Chief Justice quotes, where equivalent provisions, such as those in Articles 175 and 203 of our Constitution, have been, likewise, given effect to, notwithstanding, that there was no express provision for the enforcement of the same. In my humble view, Article 2‑A is on a higher footing, if for no other reason, except the bare fact that such Article envisages the Objectives Resolution to be a "substantive part of the Constitution" and "have effect accordingly".

28. There is yet another reason why routine enforcibility, in a Constitutional H provision must be inherent, unless expressly excluded or unless specific machinery is created for enforcement. Such enforcement has, primarily, got to be through the judicial segment of the State though, of course, the remaining organs in the triochotomy of dispensation of State power may not be excluded from acting upon and giving effect to the Constitutional mandates. Unless this was so, a Constitutional provision, otherwise effective would be rendered nugatory, ndepending upon the creation of enforcement machinery through sub constitutional legislation. Such interpretation of a Constitution is not permissible, except where expressly provided for, as for instance in the case of Article 212 of the Constitution, which provides for creation of Special Tribunals through special laws. It must also be remembered that other provisions regarding Islamisation etc. were already there and Objectives Resolution, as well, was part of the Constitution, though as a preamble, yet, Article 2‑A not only made it a "substantive part of the Constitution" as anticipated in Re: Ziar‑ur‑Rehman but postulated it to take "effect accordingly". Surely, it was not meant to be an exercise in futility.

29. My learned brother Mamoon Kazi, J. has drawn a parallel from Article 8 of the Constitution of Pakistan wherein a law made, in contravention of Fundamental Rights is envisaged to be void and has proceeded to reason that such being the express effect of contravention necessary enforcement can be made under Article 199 of the Constitution. Such a mandate, it is said, is lacking in Article 2‑A. The short answer to that observation is that the Chapter on Fundamental Rights is itself based on one of the Clauses in the Objectives Resolution, which requires that in the State of Pakistan Fundamental Rights shall be guaranteed and the Constitution‑makers have given effect to that guarantee by employing the relevant terminology in Article 8 ibid. The other provisions, declarations and affirmations in the Objectives Resolution are of various kinds, some of a higher order than even the Fundamental Rights, for instance, the G Sovereignty of Allah and the concept of democracy etc. and others of the same or even of a lower order. Each one of those matters were taken care of in the Constitution of Pakistan as it was actually framed but some of them and, in particular, the Sovereignty of Allah and independcncc/separation of judiciary, consequent upon the express provisions in the Constitution were not fully brought into play and it is for this reason that it was considered necessary to make the Objectives Resolution a substantive part of the Constitution and to give effect to it accordingly, if that was at all needed. Here, I would venture to quote an observation of N.S. Bindra from the very excerpt on which my learned brother Mamoon Kazi, J., has himself relied in the case of Sharaf Faridi v. Federation of Pakistan (P L D 1989 Karachi 404): "The absence of penalty is one of the circumstances to be considered in determining whether a constitutional prohibition is intended to be self executing; but is not sufficient of itself to postpone the operation of a provision which it appears from all the circumstances was entitled to be self‑operative."

30. This brings me to another germane question in the matter which pertains to the basis structure of the Constitution. The Indian Supreme Court in a number of cases namely, L.C. Golaknath v. State of Punjab (A I R 1967 S.C. 1643), Kesavananda Bharati v. State of Kerala (A I R 1973 S.C. 1561), Indira Nehru Gandhi v. Raj Narain (A I R 1975 S.C. 2299); Minerva Mills v. Union of India (AIR 1980 SC 1789); Waman Rao v. Union of India (A I R 1981 S.C. 271) and Sanjeev Coke Manufacturing Co v. Bharat Coking Coal Ltd. (A I R 1983 S.C. 239) has come to the conclusion that the basic structure and essential framework of the Indian Constitution postulated, sovereignty vesting in the people and emanating supremacy of the Constitution, demorcatic form of Government, secular character of the State, fundamental rights minus right to property, separation of powers between the legislature, the executive and the judiciary and Federal character of the Constitution. Some of these and earlier cases on the point came up for consideration before our Supreme Court in the case of Fauji Foundation (P L D 1983 S.C. 457) but were not approved on the ground that the Indian Supreme Court had itself been inconsistent on the subject. It is no doubt true that there have been tosses and turns in the Indian jurisdiction before reaching and firmly determining the doctrine of basic structure. But this is inevitable in the judicial process. Such inconsistency as there was when Re: Fauji Foundation was decided seems to have been removed by the subsequent decisions of the Indian Supreme Court. Reappraisal may, thus, be called for. Besides, if basic structure of our Constitution, which is spelled out in the Objectives Resolution, was found wanting at the time when the Fauji Foundation case was decided that situation has also to be re‑considered in the context of the post incorporation period of Article 2‑A. This I say even though during the pre insertion era of Article 2‑A there are some decisions subscribing to the concept of basic structure and the case of The State v. Abdul Ghaffar Khan (P L D 1957 Lab. 142), authored by Shabbir Ahmed, J., holding that Parliament in Pakistan, unlike Parliament in England, was not supreme and that power to amend the Constitution did not imply power to liquidate Pakistan, may, on the point, be cited. It would seem that the Objectives Resolution, having been passed by the only Assembly, invested with Constitution‑making power in Pakistan, which could frame a Constitution by simple majority and its entire work of Constitution making, stopping there, shall be deemed to have laid down the basic structure of the Constitution. By force of circumstances when the Eastern half of Pakistan was shorn off and the available representatives of the people met, confronted with a national calamity of such magnitude, they also decided to adopt the Objectives Resolution, as preamble to the successive Constitutions, Interim and Final, of 1972 and 1973, respectively, thereby re‑enforcing the view that the Objectives Resolution comprised of the basic norm and the fundamental framework of the Constitution, to which it must conform. Any Constitutional provisions, or, for the matter of that, any sub‑constitutional legislation in conflict with any of the declarations in the Objectives Resolution must therefore, make way for such declarations to be effective. Indeed, alive to this situation, the Supreme Court of Pakistan in the case of Ms. Benazir Bhutto (P L D 1988 SC 416), only too broadly, made pointers in that direction.

31. Lastly, I would venture to make reference to the full bench decision in the case o f Sharaf Fariddi v. the Federation of Islamic Republic of Pakistan (P.L.b 1989 Karachi 404). It would appear that while in that case the majority of the learned Judges, constituting the Bench, came to the conclusion that a Constitutional provision was enforcible under Article 199 of the Constitution even though it was not expressly so provided in such provisions, the learned Judges also apparently, concluded that no provision of the Constitution can be tested on the touchstone of another such provision and that only harmonious construction of various constitutional provisions has to be made. To such view I have also, in my humble way, subscribed in the case of Aejaz Haroon. But such conflict at times becomes inevitable as reflected in the case of Ahmad Saeed Kirmani v. FazA Elahi and others (P L D 1956 Lah. 807), Pakistan v. Ahmad Saeed Kirmani (P L D 1958 S.C. 397), Nasrullah Khan v. Election Commission (P L D 1966 Lah. 850) and Jamal Shah v. Election Commission (P L D 1966 S.C. 1) and some canons of interpretation have to be invoked. Even in the case of Sharaf Faridi itself while certain provisions in the Constitution were found to be contravening Articles 175 and 203, the deviations were overcome in by‑passing the same and issuing the necessary orders under Article 199 of the Constitution. In Mohd Bashir v. The State (P L D 1982 SC 139) criminal liability was softened to meet the Objectives.

32. No more need be said on the subject. All Courts in Pakistan are bound by declarations of law made by the Supreme Court, both positive and negative. I am bound to follow the judgments of, the Supreme Court of Pakistan in the cases of Asma Jilani, Ziaur Rehman, United Sugar Mills, Fauji Foundation and Ms. Benazir Bhutto and adhere to my earlier view that Article 2‑A of the Constitution P is a self‑executing provision introduced to meet the judicial objections in the case of Ziaur Rehman and once those objections stood satisfied, the implications in Ziaur Rehman's case must be honoured. As such, all or any enactments providing for charge or payment of interest, contravening the basic tenets of the Holy Quran and Sunnah as they are, cut across the Sovereignty of Allah and, as a result, must make way to those superior norms. .

33. Accordingly, while no interest is allowed, in consonance with the principles adopted in the case of Aijaz Haroon v. Inam Durrani (P L D 1989 Kar. 304) the plaintiffs would be entitled to the equivalent in present day monetary terms of that which was due to them in 1972 namely, the sums of Rs.42,000 each in the two suits herein decided, to ascertain which Mr. A.K.M. Idris, who was earlier appointed Commissioner in the case of Aijaz Haroon, is appointed such Commissioner in these cases as well. His fees, initially, will be Rs.2,000 in each case to be paid by the plaintiffs, in the first,instance, but, to be reflected in the Bill of costs. It may be pointed out here that such equivalent in an inflationary situation has, of necessity, to be an apparently and ostensibly, larger count but where deflation is encountered in any of the relevant periods, the count must, in that situation, stand, on the same principle, duly reduced. The suits are, therefore, decreed for Rs.42,000 each in terms of constant value of rupee, as of 1972, payable at Karachi, reckoned in present day monetary terms, as above. Preliminary decree shall follow, accordingly, but only in the foregoing terms. A.A/T‑73/K Suits dec