P L D 1991 Karachi 178, (PLP)

NASIR ASLAM ZAHID, J.‑‑Petitioner No.l in this petition is the Sindh High Court Bar Association, Karachi, and petitioner No.2 is Mr. Sharaf Faridi, President of the Association. Respondent No.l is the Islamic Republic of Pakistan and respondent No.2 is the Province of Sindh. The following prayers have been made in this petition filed under Article 199 of the Constitution:‑‑ "(A) That this hon'ble Court be pleased to declare that the Court Fees Act, 1870, being contrary to and repugnant to the Injunctions of Islam as contemplated by 1973 Constitution, is invalid piece of legislation and is not enforceable. (B) That this Hon'ble Court be pleased to declare that the amendment to the Court Fees Act, 1 S70, through sections 4 and 6 of the Sindh Finance Act IV of 1990, could not be enacted by Respondent No.2 in view of the provisions of 1973 Constitution and as such the same is invalid piece of legislation and it is not enforceable. (C) 'What this Hon'ble Court, be pleased to declare that, in any case, on the original Civil Side of this Hon'ble Court, court‑fees is not payable under the provisions of Court Fees Act, 1870."

2. This petition was admitted to regular hearing on 23‑8‑1990 and, by order dated 20‑9‑1990, Mr.Syed Sharifuddin Pirzada was appointed as amicus curiae to assist the Court in view of the importance of the matter. We heard at length the arguments of the learned counsel for the parties. Mr.Syed Sharifuddin Pirzada also assisted the Court by making his submissions as amicus curiae.

3. Mr.Sharaf Faridi, as petitioner No.2 and as Advocate for petitioner No.l, the Sindh High Court Bar Association, Karachi, raised three contentions in support of the petition: a) Court Fees Act, 1870, is against the Injunctions of Islam and violates Articles 2A, 227 and 37 of lie Constitution. (h) Amendment of the Court Fees Act, 1870 by the Sindh Finance Act, 1990, respecting the maximum court‑fees of Rs.15,000 on plaints etc. and levying a court fee, without any maximum limit, at 2% of the amount on value of the subject‑matter in dispute, is also unconstitutional being in violation of the Injunctions of Islam. (c) In any case, in view of the judgment of this Court in Razak v. Usman (PLD 1975 Kar. 9‑14), no court‑fee is payable under the provisions of the Court Fees Act, 1870, on the original civil side of this Court.

4. As regards the contention based on P L D 1975 Kar.944, Mr.Sharaf Faridi informed that appeal against the said judgment is pending before the Supreme Court and that the Supreme Court has granted stay against the operation of the judgment during the pendency of the appeal. In the circumstances, the petitioners may await the decision of the Supreme Court in such appeal as regards the' third prayer made in this petition.

5. Mr.Sliaraf Faridi began by giving a historical background submitting that till 1780 no court‑fee was payable on plaints etc. filed in any Court in the Indian Sub‑continent. Court‑fees was imposed for the first time in 1780 by Warren Hastings when he commenced organizing the East India Company's Courts but later, on when his successor Lord Cornwallis took over,the court‑fees were abolished by him on the ground that a lax on justice was a disgrace to a civilized society. However, in 1795, after the retirement of Lord Cornwallis, court‑fees were reintroduced and reimposed and it was in 1870 that the present Court Fees Act, 1870 was enacted. A useful discussion on the evolution of the High Courts and historical development of the system of court‑fees in the sub‑continent can be found in P L D 1975 Kar.

944. Since creation of Pakistan till 1974, maximum court‑fees payable on plaints etc. in the Sindh Province remained Rs.10,

000. By the Sindh Finance Act X111 of 197.1, new Schedules I and 11 were substituted for the existing Schedules to the Court Fees Act, 1870, in its application to the Province of Sindh. Bv the entrv in column 3 aeainst Article No.l in the new Schedule I, the maximum limit of court‑ fee was incresed to Rs. 15,000 and the relevant entries in Schedule I read as follows: FIRST SCHEDULE (See Section 3 (c)) SCHEDI. AD VALOREM FEES Article Proper fee Plaint, written,, statement Seven and a half per century of the pleading,sel‑off, or amount or value of the subject counter‑claim or memo‑ matter in dispute but the fee shall randum of appeal (not not exceed maximum of fifteen otherwise provided for in this thousand rupees. Act) or cross objections presented to any Civil or Revenue Court except those mentioned in section

3. However, by Sindh Finance Act XV of 1975, for the aforesaid existing entry to column 3, the following was substituted:‑‑ , "When the value of the subject‑matter in dispute 1,) does not exec one thousand rupees, seven and a half percentum. of the value; (ii) exceeds one thousand rupees, but does not exceed thirty thousand rupees, seven and a half percentum of the first thousand rupees and five per cent.of the remaining value; (iii) exceeds thirty thousand rupees, seven and a half percentum of the first thousand rupees, five per cent. of the next twenty‑nine thousand rupees and two and a half percentum of the remaining value;" This amendment abolished the maximum limit, and court‑fee at 2‑1 /2% of the value in excess of Rs.30,000 became payable without any upper limit. A maximum limit was, however, reintroduced by Court Fees (Sindh Amendment) Ordinance VII of 1977 by providing in section 2 thereof as follows: Amendment Act 1 of 1870.‑‑ Notwithstanding anything contained in the first Schedule to the Court Fees Act, 1870 (Act I of 1870), court‑fee payable thereunder shall not, in any case, exceed fifteen thousand rupees:' Then came the Court Fees (Sindh Amendment) Ordinance XIII of 1978. Section 2 of this Ordinance abolished court‑fee in all criminal cases and also exempted civil cases value whereof did not exceed Rs.25,

000. This provision read as follows: "(2) Abolition of court fees in certain cases.‑‑ Notwithstanding anything contained in the Court Fees Act, 1870 (Act I of 1870), no court‑fees shall by payable in a criminal case and a case of civil nature the value of which dues not exceed twenty‑five thousand rupees." In June 1990, the Sindh Finance Bill, 1990 (Bill No.3 of 1990) was moved in the Sindh Provincial Assembly which inter alia proposed amendments in the law relating to court‑fees by abolishing the maximum limit of court‑fees. It was proposed that court=fee a one` perccntum of the value in excess of Rupees Six Lacs on plaints etc. be payable without any upper limit. While passing the Bill, the Sindh Provincial Assembly increased the proposed court‑fee at 1% of the amount in excess of rupees six lacs to 2%. However, exemption from payment of courtfees on suits upto Rs.25,000 was extended to suits of the value up to Rs.50,

000. Sections 4, 6 and 7 of the Sindh Finance ActIV of 1990 are reproduccd hcre: "(4) In the Court Fees Act, 1870, in its application to the Province of Sindh, in the First Schedule, in Article 1 ‑ (a) in clause (iii) in column 3, for the words "exceeds thirty thousand rupees'", the words "exceeds thirty thousand rupees" but does not exceed six lacs rupees' shall be substituted; (b) after clause (iii), .amended as aforesaid, the .following clause shall be added:‑ . "(iv) exceeds six lac rupees, seven and a half pcrcentum of the first thousand, five percentum of the next twenty‑nine thousand rupees, two and a half pcrcentum of the next rive lacs and seventy thousand rupees and two percentum of the remaining value. (The Court Fees (Sindh Amendment) Ordinance, 1977, is hereby repealed. (7} In the Court Fees (Sindh Amendment) Ordinance, 1978, for th;: wards "twenty five thousand rupees" the words "fifty thousand rupees" shall be substituted." Mr.Sharaf Faridi briefly referred to the relevent provisions of tine 1956 and 1962 Constitutions relating to Islamization of Laws. Article 198 of the 1956 Constitution may be reproduced here: "Provisions relating, to the Holy Our'an and Sunnah.‑ 198.‑(1) No law shall be enacted which is repugnant to the Injuctions of Islam as laid down in the Holy Qur'an and Sunnah, hereinafter referred to as Injunctions of Islam, and existing laws shall be brought into conformity with such Injunctions. (2) Effect shall be given to the provisions of clause (1) only in the manner provided in clause (3). (3) Within one year of the Constitution Day, the President shall appoint a Commission (a) to make recommendations (i) as to the measures for bringing existing laws into conformity with the Injunctions of Islam, and (ii) as to the stages by which such measures should be brought into effect; and (b) to compile in a suitable form, for the guidance of the National and Provincial Assemblies, such Injunctions of Islam as can be given legislative effect. The Commission shall submit its final report within five years of its appointment, and may submit any interim report earlier. The report, whether interim or final, shall be laid before the National Assembly within six months of its receipt, and the Assembly after considering the report shall enact laws in respect thereof. (4) Nothing in this Article shall affect the personal laws of non‑Muslim citizens, or their status as citizens, or any provision of the Constitution. Explanation.‑ In the application of this Article to the personal law of any Muslim sect, the expression "Quran and Sunnah" shall mean the Quran and Sunnah as interpreted by that sect." Apparently no positive action was taken pursuant to clause 3 of Article 198 before the 1956 Constitution was abrogated by the proclamation of Martial Law of 1958. In the 1962 Constitution, Part X deals with Islamic Institution and it comprised Articles 199 to

207. Article 199 created the Advisory Council of Islamic Ideology and by Article 204 (as amended), the Council was, amongst others, entrusted with the functions to (a) examine all laws in force immediately before the commencement of the Constitution (First Amendment) Act, 1963, with a view to bringing them (10) advige the National Assembly, a Provincial Assembly, the President or a Governor as to whether a proposed law is or is not repugnant to the teachings and requirements of Islam as set out in the Holy Ouran and Sunnah. Part IX of the 1973 Constitution comprising Articles 227 to 231 contains provisions regarding the Constitution and functions of the Council of Islamic Ideology but, apart from the preamble, Article 2 (Islam shall be the State Religion of Pakistan) and Article 2A (making the Objectives Resolution passed by the First Constituent Assembly of Pakistan in 1949 a substantive part of the Constitution), the most important provision which reflects the true Islamic character of our Constitution is Article

227. This Article is as follows: "Provisions relating to Holy Our'an and Sunnah: 227 (1). All existing laws shall be brought in conformity with the injunctions of Islam as laid down in the Holy Quran and the Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such Injunctions. Explanation.‑ In the application of this clause to the personal law of any Muslim sect, the expression "Quran and Sunnah" shall mean the Ouran and Sunnah as interpreted by the sect. (2) Effect shall be given to the provisions of clause (1) only in the manner provided in this part. (3) Nothing in this Part shall affect the personal laws of non‑Muslim citizens, or their status as citizens."

7. For transformation of Pakistan into a truly Islamic. Society, Article 227 (1) enjoins that ail "existing laws" shall be brought in conformity with the Injunctions of Islam. The term "existing law" as defined in Article 260 (1) read with Article 268 (7) means all laws in force in Pakistan or any part therof, or having extra‑territorial validity, immediately before the commencing day i.e. 14th August,1973. Then from the commencing day, there is a total restriction on any law being enacted which is repugnant to Injunctions of Islam. Accordingly, after 14th August, 1973, neither the Federal Legislature nor the Provincial Legislature is competent to make any law which is repugnant to the Injunctions of Islam. The effect of clause (2) of Article 227 will be considered in the later part of this judgment.

8. From the submissions made by learned counsel for the parties before us and also by Mr.Syed Sharifuddin Pirzada as amicus curiae, it follows that there is no controversy about the validity of the institution of court‑fees in Islam. In 1966, Court Fees Act was examined by the Advisory council of Islamic Ideology constituted under Article 199 of the 1962 Constitution but that Council made no recommendations in that regard. The Council of Islamic Ideology constituted under Article 228 of the 1973 Constitution considered the question of court‑fees during 1977‑78 and the Council made the following recommendation: It was submitted by Mr.Sharaf Faridi that the above was the final opinion and recommendation of the Council of Islamic Ideology on the question of courtfee and the matter has not been referred by any authority including the Parliament, any Provincial Assembly, President or any Governor for reconsideration. This assertion was not controverted by the learned counsel appearing for the respondents

9. Mr. Sharifuddin Pirzada dwelt at some length on the concept of justice in Islam with reference to the question of court‑fees. He referred to the following verses from the Holy Quran in this context: &i J It‑‑;j ‑1..Jh (1) Translation: (Ayah 7 Sura Rahman) And the firmament has He raised high and He has set up the balance of justice. Commentary: The "Balance (of justice)" in this verse is connected with "the Balance" in the next two verses, that men may act justly to each other and observe due balance in all their actions, following the golden mean and not transgressing due bounds in anything. But the balarce is also connected figuratively with the heavens above in three symbols (1) Justice is a heavenly virtue; (2) the heavens themselves are sustained by mathematical balance; and (3) the constellation Libra (Balance) is entered by the sun at the middle of the zodiacal year." Translation: "O ye who believe! Stand out firmly for Justice as witnesses to Allah, even as against yourselves, or your parents or your kin, and whether it be (against) rich or poor: For Allah can best protect both. Follow not the lusts (of your hearts) lest ye swerve, and if ye distort (justice) or decline to do justice, verily Allah is well acquainted with all that ye do." Commentary: Some people may be inclined to favour the rich, because they expect something from them. Some people may be inclined to favour the poor because they are generally helpless. Partiality in either case is wrong. Be just without fear or favour. Both the rich and the poor are under God's protection as far as their legitimate interests are concerned, but they cannot expect to be favoured at the expense of others. And He can protect their interests far better than any man. (Ayah 8 ‑ Sura Maida) Translation: "O ye who believe stand out firmly for Allah, as witnesses to fair dealing, and let not the hatred of others to you make swerve to wrong and depart from justice. Be just : that is next to piety: and fear Allah, for Allah is well acquainted with all that ye do." (Translations and commentary are by Allma Abdullah Yusuf Ali). In the aforesaid verses from the Holy Quran the supreme importance of Justice in all human relationships and actions is declared and it is ordained that all believes must stand out for Justice even against themselves, their parents and relations. No distinction is made between the rich and the poor as regards imparting of justice. It is ordained that believers should be fair in their dealings and under no circumstance they should swerve from the path of justice. Allah Almighty while directing believers to do justice declares that it is next to piety.

10. Reference was made to Joseph Schacht's "An Introduction to Islamic Law" 1964 Edition where it is stated at page 188 that under Islamic Law, Court costs are unknown. Mr. Sharifuddin referred to page 166 of Justice Dr. Tanzilur Rehman's work "( ",;:Jl.ts rl.hi ~.'~::~‑;:) where on the question of expenses of litigation in Islamic Law it is stated as follows: "The Administration of Justice in Islam" by Mahomedullah Jung was also cited by Mr. Sharifuddin Pirzada. Page 9 of this work was referred where the author states as under: "Benthem had expressed a hope that justice should be administered gratis, and that no stamp duties should be leviable on judicial proceedings. The above view is in complete harmony with the Muslim theory. There are no duties leviable in Islam. There are no stamps or court‑fees: Justice is administered gratis."

11. Here we may refer to the stand taken by the Province of Sindh in the counter‑affidavit dated 9‑9‑1990 filed on their behalf. Para 8 of the memo of petition referred to the opinion and recommendation of the Council of Islamic Ideology on court‑fees given in 1977‑

78. Reply to this given in para 7 of the Counter‑affidavit is as follows: "That referring to the contents of para 8 of the petition, it is admitted that the Council of Islamic Ideology had considered the question of payment of court‑fee during the year 1977‑78 and had made their recommendations that the court‑fee should be abolished in Constitutional, Civil and Criminal meatters as soon as possible. In the list of the aforesaid recommendations, the policy decision in all the Provinces of Pakistan has not yet been taken to abolish the court‑fee altogether. However, in 1978, the court‑fee payable in criminal cases and in the cases of civil nature the valuation of which do not exceed twentyfive thousand rupees has already been abolished with a view to give relief to the lower income group." Para. 9 of the memo of petition may be reproduced here: "

9. That in view of what has been stated herein, it is submitted that the Court Fees Act, 1879, is in violation of the injunctions of Islam as contemplated by the provisions of the Constitution of the Islamic Republic of Pakistan and, is contrary to the recommendations of the Council of Islamic Ideology and as such no court‑fee is payable on any document including plaint/counter‑claim etc. to be filed in any Court in Pakistan." The specific assertion that levy of court‑fee is violative of the Injunctions of Islam as contemplated by the Constitution has not been denied by the Province of Sindh. Reply to para 9 of the memo of petition as given in para 8 of the Counter‑affidavit filed on their behalf is also reproduced: "Referring to the contents of para 9 of the petition, it is submitted that the exemption from the payment of court‑fee in criminal cases and in cases of civil nature the valuation of which do not exceed twenty‑five thousand rupees was granted by all the provinces on the directives from the then President of the Islamic Republic of Pakistan with a view to partly implement the recommendations of the Council of Islamic Ideology, which is a Federal body. As and when any directions from the Federal Government are received, this Province is under obligation to abolish entire court‑fee payable under the Court Fees Act, 1870." Mr. K.M. Nadeem, learned Assistant Advocate‑General, who represented the Province of Sindh, had frankly conceded that, in view of the opinion of the Council of Islamic Ideoglogy which has not been challenged. by any quarter, the institution of court‑fee is un‑Islamic being violative of the Injunctions of Islamic. As noticed, in the counter‑affidavit it is not denied tht court‑fee is against the Injunctions of Islam but it is stated that recommendation of the Council of Islamic Ideology was partly implemented and entire court‑fee payable under the Court Fees Act, 1870 will be abolished by the Province on direction to that effect being received from the Federal Government. Thereafter, as observed earlier, there is no controversy on the un‑Islamic character of the court‑fees.

12. Despite there being no controversy on the point that court‑fee is against the Injunction of Islam, a plea was taken in the counter‑affidavit on behalf of the Province of Sindh that the court‑fee has not been increased by the amendments made in the Court Fees Act, 1870, by the Sindh Finance Act, 1990, but rather retionalised to give relief to the poor class by extending the exmeption limit from Rs.25,000 to Rs.50,000 and to make up the revenue loss by taxing the higher income group. It was pleaded that the amendments were, therefore, not repugnant to the Injunctions of Islam as well as Article 227 of the Constitution, and were also not violative of Article 2A or 37 (d) of the Contitution. This plea has been taken in some detail in paragraphs 9, 10, 11 and 13 of the Counteraffidavit which read as under: Referring to the contents of para 10 of the petition, it is submitted that the petitioners have themselves admitted the fact that in 1978, an exemption from the payment of court‑fee up to the suit valuations of Rs.25,000 had been allowed generally as a step in a right direction in the sense that sincere effort was made to bring the Court Fees Act in conformity with Article 37(d) and injunctions of Islam. Here the petitioners seems to have intentionally omitted to state the fact that a further step in the same direction has been taken to extend the limit of the said exemption from Rs. 25,000 to Rs.50,000 whereas, the amendment in this respect has also been carried out through the same enactment viz. the Sindh Finance Act, 1990. The said amendment has got a direct bearing upon the issues involved in the petition. 10 That in the context of the contents of para 11 of the petition, it may be submitted that in the Sindh Finance Act, 1990, the following matters concerning the court‑fee have been enacted: (i) that court‑fee on the valuation exceeding Rs.6 lacs has been levied at the rate of 2% of such amount, without any limit; (ii) that maximum limit of court‑fee of Rs.15,000 payable in civil suits has been abolished; and (iii) that the ceiling of exemption form the payment of court‑fee, viz. Rs.25,000 prescribed in 1978 had been further extended to Rs.50,000 to provide more facility and relief to the lower income group. In fact, if all the three aforesaid matters are read together, it could be ascertained that the court‑fee has not been increased through the Sindh Finance Act, 1990, but it has been rationalised with a view to abolish the court‑fee to the extent of Rs.50,000 of the suit valuations to extend the relief for the lower income group and make up revenus loss by taxing the higher income group. It may be pertinent to state that a lot of civil suits in the range of valuation of exceeding Rs.25,000 upto Rs.50,000 are filed mostly by the poor prople. Comparatively, a few suits of the valuations exceeding Rs.6 lacs are filed in which cases only the higher income group is involved who can easily pay the court‑fee for their claims. From the above it reflects that the steps taken by the Government of Sindh are not against the spirit of Article 37(d) of The Constitution of the Islamic Republic of Pakistan and Injunctions of Islam.

11. That referring to the contents of para 13 of the petition, it is submitted that the three matters/amendments enacted through the Sindh Finance Act, 1990, as mentioned in para 11 supra, are taken together:‑ (a) they are not repugnant to the Injunctions of Islam as laid down in Holy Quran and Sunnah as well as Article 227 of the Constitution; (b) they are not in violation of Article 2‑A' of the Constitution, (c) they are not in violation of Article 37(d) of the Constitution, and (d) Same comments are in clause (c) above. (13) That refering to the contents of para. 15 of the section, it is submitted that the court‑fee has not been increased through the Sindh Finance Act, 1990, but rather rationalised to give relief to the poor class of the people by extending the exemption limit from Rs.25,000 to Rs.50,000 and to make up the revenue loss by taxing the higher income group."

13. Mr. K.M. Nadeem, learned Asstt. A.‑G., referred to the aforesaid plea. taken in the counter‑affidavit but did not build up any argument on it. In our view, as levy of Court fee is against Islamic Injunctions, increase in court‑fee through the Sindh Finance Act, 1990, by abolishing the maximum of Rs.15,000 and making court‑fee payable without any upper limit would equally be un‑ 8 Islamic. The plea taken in the counter‑affidavit that court‑fee has not been increased but rationalised by giving "relief to the poor class of the people by extending the exemption limit from Rs.25,000 to Rs.50,000 and to make up the, revenue loss by taxing the higher income" and, therefore, the amendments are not ;ainst the Injunctions of Islam, cannot be accepted. The abolition of court‑fee in iminal cases and grant of exemption in civil cases of the value up to Rs.25,000 id the recent increase by the Sindh Finance Act, 1990, in the upper limit of :emption from Rs.25,000 to Rs.50,000 have been steps in the right direction for :hieving the ultimate goal of the legal system in Pakistan being totally rid of curt‑fee as required by the Injunctions of Islam. But the abolition of the aximum court‑fee of Rs.15,000 and making court‑fee payable without any upper nit, on the plea that rich persons will now be taxed more to make up the loss of ;venue on account of increase in the exemption limit from Rs.25,000 to s.50,000 are retrogressive steps in the wrong direction. In Islam, no distinction is ade between the rich and the poor in the dispensation of justice as is evident om the verses of Holy Quran cited earlier in this judgment. Plea of rationalisation of the court‑fee structure is also devoid of any substance. As levy court‑fee is un‑Islamic, increase in the quantum of court‑fee, whether its arden falls only on the rich would also be against the Injunctions of Islam.

14. The main defence on behalf of the Province of Sindh raised in their punter‑affidavit and forcefully presented by Mr. K.M. Nadeem was that this institutional petition is not maintainable. According to the learned A.A.‑G. as ~e case of the petitioners is that the Court Fees Act, 1870, and its amendments y sections 4 and 6 of Sindh Finance Act, 1990, are repugnant to the Injunctions ," Islam as laid down in the Holy Quran and Sunnah, the proper course under the onstitution for the petitioners was and still is to approach the Federal Shariat ourt. According to Mr. K.M. Nadeem, that is the only competent forum from hich such relief can be obtained. Before dealing with the question of aintainability of this petition, it may again be pointed out that the Court Fees et, 1870, as well as the amendments made in this Act by sections 4 and 6 of the ,ndh Finance Act, 1990, have been challenged being repugnant to the ,junctions of Islam. Court Fees Act, 1870, was an "existing law" on 14‑8‑1973, the commencing day of the Constitution. There is a constitutional requirement of ringing all the existing laws in confirmity with the Injunctions of Islam First Part f Article 227 (1). The three steps referred earlier have been taken so far for ringing this existing law in confirmity with the Injunctions of Islam namely, the court‑fee in all criminal cases had been abolished, exemption in civil suits of the clue upto Rs.25,000 from the payment of court‑fee was given in 1978 and by section 7 of the Sindh Finance Act, 1990, the exemption limit had been increased from Rs.25,000 to 50,

000. In their counter‑affidavit. Province of Sindh have also stated that all court‑fees will be abolished on receipt of a directive to that effect being issued by the Federation to the Provinces. The question whether the High Court can grant relief under Article 199 a constitutional petition by declaring an existing law to be invalid being ;pugnant to the injunctions of Islam is, to put it mildly, not free from difficulty. Howevcr, it may be observed that previously Federal Shariat Court did not have jurisdiction to declare any law relating to the levy and collection of taxes and fees invalid on the ground that it was repugnant to the Injunctions of Islam as the definition of "law" given in Article 203‑B of the Constitution did not include such laws until the expiration of 10 years from commencement of Chapter 3‑A of Part VII of the Constitution. That period of 10 years expired on 24‑6‑1990 and, since 25‑6‑1990, the Federal Shariat Court is also vested with jurisdiction in respect of fiscal laws and any law relating to the levy and collection of taxes and fees. We understand that recently a petition challenging the Court Fees Act, 1870, an existing law, has been admitted to regular hearing by the Federal Shariat Court. Mr. Sharaf Faridi, Advocate, had also submitted that for the time being the petitioners would be satisfied if this Court determines the validity of sections 4 and 6 of the Sindh Finance Act, 1990. Mr. Syed Sharfuddin Pirzada, appearing as amicus curiae, also addressed his submissions on the constitutionality of sections 4 and 6 of the Sindh Finance Act, 1990. In this constitutional petition, therefore, we are confining ourselves to the challenge made to section 4 and 6 of the Sindh Finance Act, 1990.

15. Learned counsel for the petitioner and Mr. Syed Sharifudding Pirzada had highlighted the supreme importance of Article 2‑A of the Constitution which makes the Objectives Resolution substantive part of our Constitution and further provides that it shall have effect accordingly. Time and again the Objectives Resolution has been referred, discussed, commented and relied upon in the judgments by the Superior Courts in Pakistan as the Basic Document embodying our grund norm that the legal sovereignty over the entire universe belongs to Allah and the authority exercisable by the people within the limits prescribed by Him is a sacred trust. It has been stated that the ideology of Pakistan is enshrined in the Objectives Resolution. It has been observed that the grund norm of Pakistan is epitomised in the Objectives Resolution passed by the First Constituent Assembly of Pakistan on 7‑3‑1949 and that its basic postulates are that sovereignty belongs to Almighty Allah which is delegated to the people of Pakistan who have to exercise the State powers and authority through their representatives on the principles of democracy. Objectives resolution has been held to embody the spirit and fundamental norm of the constitutional concept of Pakistan. A very useful and erudite discussion on the Objectives Resolution and Article 2‑A of the Constitution is to be found in the judgment of Wajihuddin Ahmed, J. in the case of Aijaz Haroon v. Inam Durrani reported in PLD 1989 Karachi

304. On the independent enforcibility of Article 2‑A of the Constitution and whether a law can be declared as invalid being in conflict with the Objectives Resolution after its incorporation in the Constitution through Article 2‑A, there are conflicting decisions. Mr.Syed Sharifuddin Pirzada referred to the following judgments in this context: (i)Bank of Oman v. East Trading Co Ltd. PLD 1987 Kar 404 (ii) Habib Bank Ltd. v. Muhammad Hussain PLD 1987 Kar. 612. (iii) Habib Bank Ltd. v. Waheed Textile Mills Ltd. PLD 1989 Kar.371 (iv) Aijaz Haroon v. Inam Durrani PLD 1989 Kar. 304. (v) Farhat Jaleel v. Province of Sindh PLD 1990 Kar. 342. (vi) Nizam Khan v. Additional District Judge PLD 1976 Lah. 930. (vii) Aziz A. Shaikh v. Commissioner of Income Tax PLD 1989 SC

613. Reliance had also been placed by Mr. Sharaf Faridi on Article 37(d) of the Constitution. Article 37 appears in Chapter 2 of Part II of the Constitution dealing with Principles of Policy. Article 37(d) provides that the State shall ensure inexpensive and expeditious justice. According to Mr. Sharaf Faridi, by abolishing the maximum limit of court‑fee of Rs.15,000 and requiring payment of court‑fee without an upper limit, Sindh Province has acted against Article 37(d). Article 30(2), however, provides that validity of an action or of a law shall not be called in question on the ground that it is not in accordance with the Principles of Policy. Reference may again be made to Article 227(1) which requires that all existing laws shall be brought in conformity with the Injunctions of Islam and that no law shall be enacted which is repugnant to such Injunctions, but clause (2) of Article 227 is as follows: "Effect shall be given to the provisions of clause only in the manner provided in this Part. An argument was raised by Mr.K.M. Nadeem, learned AA.‑G., that in view of clause 2 of Article 227, a petitioner cannot resort to Article 199 of the Constitution and seek relief from the High Court that a, law is repugnant to the Injunctions of Islam. All these difficulties have been highlighted in the judgment of the Supreme Court in the case of Sardar Ali v. Mohammad Ali reported in PLD 1988 S.C.287 authored by Mr. Justice Mohammad Afzal Zullah (as he then was). In paragraph 36 of the said judgment it has been observed as follows:‑ "It has to be mentioned here that arguments on Article 2A of the Constitution having been addressed during the oral hearing, it was pointed out to all the learned counsel that the Constitution had provided the mechanism and methodology of Islamisation of the existing laws in various provisions thereof. For example Part III, Chapter 3‑A (Federal Shariat Court and Shariat Appellate Bench of Supreme Court of Pakistan and Legislature); Part‑IX (Council of Islamic Ideology and the Legislature); Part‑II Chapter‑2 (Implementation of the Basic Principles relating to Islamisation by the Executive and Legislative Organs of the State). They were asked to reconcile the specific provisions which barred the jurisdiction of the Courts regarding the process of Islamisation with their plea for direct application (by the Courts) of the Islamic law in preference to Statute Law." The specific provisions of the Constitution which create difficulty in that behalf pointed out in paragraph 36 of the said judgment were Articles 203‑G, 227 (1) (2) (3), 29 (1), 30 (2), 203‑A and 203‑B. Then in paragraphs 37 and 38, the Supreme Court observed as follows:‑ "It has to be noted that no serious attempt has been made by any of the learned counsel to face the difficulty presented by the afore‑quoted provisions of the Constitution in the acceptance of their contention regarding the direct operation of the Resolution, so as to annul the enacted provisions of statute law. While making this remark we should not be understood to have minimised its Constitution position by virtue of Article 2‑A or even without its becoming a formal part of the Constitution. What is being emphasised is that no argument suggesting a reasonable and acceptable reconciliation of the aforestated barring provisions has been advanced. They prima facie create bar of various types for treating the 1949 Resolution as a self‑executory Instrument enforcible by the Courts, for the change of the existing statute law into Islamic enforcible Law, over and above the methods envisaged in various Constitututional provisions. Articles 30(2); 203‑G and 227(2); it cannot be ignored, do at least prima facie create direct bar of the type aforementioned regarding Islamisation of Laws and the Constitution; as distinguished from their interpretation and enforcement even in the existing form, with the help of Islamic principles. Moreover, a question of great constitutional importance arises with regard to the conferment of the special jurisdiction on the two forums created under Chapter 3‑A in this behalf‑‑the Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court. It may be argued that an indirect bar is also contained in Article 203‑A. It gave an overriding effect, vis‑a‑vis the remaining Constitution, to the Islamisation process envisaged in Chapter 3‑A. An important question, for example would arise whether, the fields kept out of jurisdiction of the Federal Shariat Court and the Supreme Court in their Islamisation jurisdiction under Articles 203‑D and 203‑F by virtue of the definition of law in Article 203‑B(G), were intended to be included in the jurisdiction of all the Courts‑‑say, civil judges and the other forums including revenue, under MLR‑

115. And that too when the former's jurisdiction is exclusive under Article 203‑G. It will have to be determined as to whether in the matter of Islamisation, when keeping the excluded laws out of the jurisdiction of the forums created in this behalf, by the Constitution itself under Chapter 3‑A, the same object was intended to be achieved through other Courts, Tribunals or functionaries. In this respect no attempt has been made even to visualise any answers to these questions nor, any reason for bypassing the specific aforequoted barring provisions and Chapter 3‑A (as interpreted earlier), except for the claim that the Resolution would override the same. These questions need to be answered notwithstanding the fact that the superior Courts in Pakistan have since long applied the Muslim Law and and principles in the field of interpretation as distinguished from the change of statute law on that basis. The generalisation in some of the submissions that all these provisions are to be read with the Resolution, has not proved to be of much help. The Courts are required to act in accord with the Constitution and cannot ignore altogether the limitations mentioned above. They have to be reconciled. An attempt has been made in some recent judgments by the Sindh High Court to rely on Article 268 of the Constitution for the proposition that the Resolution having become a part of the Constitution, "adaptations" can be made under clause (6) thereof by the Courts, "as are necessary to bring them in accord with the provisions of the Constitution". It is remarked that, prima facie this power existed for the transitional period, only for "adaptation" by not only the Courts but also by all "Tribunals" and "Authorities", concerned with the enforcement of the laws. Such an interpretation of Article 268(6) cannot be upheld without a fuller examination and proper assistance. Moreover, this or similar other exercise has, for the same reasons, to be deferred till that type of cases come before the Court." In the case of Aziz A. Shaikh v. Commissioner of Income Tax reported in PLD 1989 S.C.613, Mr. Justice Mohammad Afzal Zullah (as he then was) again made observations in relation to Article 2‑A as follows: "The question of Islamization as a constitutional and legal question, distinquished from its general implications, has been the subject of legislation, both constitutional and other statutory dispensation, as well as of the precedent law. Article 2A read with Objectives Resolution of the Constitution according to some jurists, as well as some decided cases, was enacted on account of an observation in the judgment of this Court in the case The State v. Ziaur Rehman and others PLD 1973 S.C.49. According to others it always formed part of the constitutional set up of Pakistan. Be that as it may, the present position is that Article 2‑A read with Objectives Resolution; the Principles of Policy (which are being enforced by the superior Courts in an indirect manner‑‑See Miss Benazir Bhutto's case PLD 1988 S.C. 416); Chapter 3‑A Part VII of the Constitution, vis‑a‑vis the functioning of the Federal Shariat Court and the Shariat Appellate Bench of this Court, and Article 227; and other provisions of the Constitution relating to Islamization, are being interpreted and applied in various situations. This Court no doubt has, for the time being, left open the final verdict on the combined effect of these constitutional provisions and mandates and other parts of our Constitutional set up in so far as the question of Islamization is concerned‑‑See Sardar Ali's case PLD 1988 S.C.287. Nevertheless in individual cases wherever necessary, the superior Courts are already engaged in the process of interpretation and adjudication in this field. The judicial wisdom is accumulating, experience is being gained and considerable discussion in judgmens and otherwise is going on. All this would ultimately assist the Supreme Court in rendering final verdicts in this behalf regarding interaction and operation of these provisions. That however, does not mean that wherever a provision is clear and its effect is clear it would not be so stated and would not be acted upon The final verdicts of the Supreme Court will come in due course of time. But the process of Islamization of laws through interpretation by the Superoir Courts of Pakistan has been continuously in progress. In addition, as ovserved by the Supreme Court, the relevant provisions of the Constitution relating to Islamization including Articles 2‑A and 227 and the Principles of Policy are being interpreted in various situations.

16. In view of the apparent bars in Articles 30(2), 203‑A and 227(2), is the present petition maintainable? Is it a case where the High Court should deny relief and ask the, petitioners to approach the Federal Shariat Court observing that this Court has no jurisdiction in the matter or ask them to approach the Court again after the final verdicts of Supreme Court on the powers of the Superior Courts regarding Islamization of laws become available? In the present case, we are faced with an extraordinary situation. As has been observed earlier, there is no controversy on the un‑Islamic character of court‑fees. The opinion of the Council of Islamic Ideology tendered in 1977‑1978 that court‑fee is repugnant to the Injunctions of Islam has not been challenged by the respondents. It has not been challenged by any quarter. In fact, according to the counter‑affidavit filed on behalf of the Province of Sindh, the recommendation of the Council of Islamic Ideology has been partly implemented by taking the aforementioned three legislative steps to abolish court‑fees in criminal case and granting exemption in civil cases upto Rs.50,000 and that courtfee will be abolished on receiving a directive to that effect from the Federal Government. Then we are not considering an "existing law" but sections 4 and 6 of the Sindh Finance Act, 1990, amending the law relating to court‑fees. First part of Article 227 (1) requires that all existing laws shall be brought in conformity with the Injunctions of Islam. It visualizes that existing laws are not expected to be Islamized immediately on the commencement of the Constitution but that such laws will be brought in conformity with the Injunctions of Islam over a period of time and one method for achieving this objective is through the decisions of the Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court. It has to be noticed that the decision of the Federal Shariat Court takes effect on the day (in future) specified in the decision and till such speed date the law declared by the Federal Shariat Court as repugnant to the Injunctions of Islam remains valid. However, in relation to sections 4 and 6 of the Sindh Finance Act, 1990, it is the second part of Article 227 (1) which is relevant. It directs that no law shall be enacted (after the commencing day) which is repugnant to such Injunctions. This provision cannot be interpreted to authorize the making of an un‑Islamic law and its continuing validity till it is held to be repugnant to the Injunctions of Islam by the Federal Shariat Court. But this was the precise stand taken on behalf the Sindh Government. Mr.K.M. Nadeem, learned A.A.G., had to concede that sections 4 and 6 of the Sindh Finance Act, 1990, are repugnant to the Injunctions of Islam but, according to him, these amendments in the court‑fee laws would remain valid till such time these are found to be un‑Islamic by the Federal Shariat Court. Here reference may be made to Articles 229 and 230(3). If Sindh Assembly had any doubts about the opinion of the Council of Islamic Ideology given in 1977‑78 on the question of court‑fees, it could have referred the proposed amendments in the Court Fees Act, 1870, to the Council under Article

229. Then clause (3) of Article 230 provides as under:‑‑ (3) "Where a House, a Provincial Assembly, the President or the Governor, as the case may be, considers that; in the public interest, the making of the proposed law in relation to which the question arose should not be postponed until the advice of the Islamic Council is furnished, the law may be made before the advice is furnished: Provided that, where a law is referred for advice to the Islamic Council and the Council advises that the law is repugnant to the Injunction of Islam, the House or, as the President or the Governor shall reconsider the law so made." But procedures under Articles 229 and 230(3) were not resorted by the Sindh Assembly perhaps for the reason that the opinion of the Council of Islamic Ideology given in 1977‑78 has been accepted.

17. In view of the above position and special circumstances particlularly there being no controversy on the un‑Islamic character of court‑fees and the acceptance of the opinion of the Council of Islamic Ideology (of 1977‑78) and its partial implementation by the Sindh Province and the complete bar, without any exception, in the second part of Article 227 (1) of the Constitution, we are of the view that this Constitutional Petition is competent. It was not necessary for the petitioners to approach the Federal Shariat Court and clause (2) of Article 227 is also not a bar to the maintainability of this petition. These bars might have come in the way of the petitioners if the Council of Islamic Ideology had not given its opinion or there had been any controversy on the un‑Islamic character of court fees or the matter related to an existing law. We may, with advantage, rely upon, the following observation of the Supreme Court in the case of Aziz A. Shaikh v. Commissioner of Income Tax (PLD 1989 S.C. 613) after stating that final verdicts on the interaction and operation of provisions of the Constitution relating to Islamization are still to be given:‑ "That, however, does not mean that wherever a provision is clear it would not be so stated and would not be acted upon."

18. Having reached the conclusion that sections 4 and 6 of the Sindh Finance Act, 1990, are repugnant to the Injunctions of Islam and also violative of Articles 2‑A and 37(d) of the Constitution, it has to be considered as to what relief can be granted in this petition under Article 199 of the Constitution. Till the Supreme Court gives its final verdicts on Constitutional provisions relating to Islamization of laws, it will remain doubtful whether a declaration can be given under Article 199 that a statutory provision is void on the ground that it is repugnant to the Injunctions of Islam. Yet, to enforce its findings that sections 4 and 6 of the Sindh Finance: Act, 1990, are repugnant to the Injunctions of Islam and also violative of Articles 2‑A and 37 (d), the Court can certainly give appropriate directives to regulate its working and procedures and so also of the Courts subordinate to it. 19, In view of our conclusions in this petition, we have decided to issue the following directives:‑‑ (a) The concerned officers of the Sindh High Court will accept plaints, written statements, pleading, set‑offs or counter‑claims, memoranda of appeals or cross objections presented or filed in the Sindh High Court with court‑fees affixed on such documents payable under the Court Fees Act, 1870 (as applicable to the Sindh Province), ignoring its amendment by sections 4 and 6 of the Sindh Finance Act, 1990, as if these two sections were not enacted; (b) Similar directive be issued to all Courts subordinate to the Sindh High Court and exercising civil jurisdiction. This constitutional petition stands disposed of in the above terms with no order as to costs. M.B.A./S‑690/K Order accordingly