1999 PLP 2708 (YLR)

I intend to decide Writ Petition No.265/99 alongwith following writ petitions having similar facts and law by consolidated judgment:‑‑ (1) W.P. No.264/99. (2) W.P. No.266/99. (3) W.P. No.267/99. (4) W. P. No.10806/98. (5) W.P. No.10085/98. (6) W. P. No.11470/98.

2. The brief facts out of which the present writ petition arises are that the petitioner's father received a loan of Rs.2,34,000 from the respondent‑Bank and out of the principal amount Rs.46,000 is still payable by him while the respondents are claiming Riba which is against the Injunctions of Holy Qur'an and Sunnah and Articles 2A and 4 of the Constitution of Islamic Republic of Pakistan.

3. The learned counsel of the petitioner contended that interest has already been declared by the Federal Shariat Court against the Injunctions of Islam. He relied upon PLD 1992 Federal Shariat Court

445. He further stated that by addition of Article 2A it is the duty of every Court to decide controversy between the parties in accordance with the Injunctions of Islam. He relied upon PLD 1992 Lah.

462. The learned counsel of the petitioner in other writ petitions and criminal miscellaneous have adopted the arguments advanced by the learned counsel Syed Iqbal Mehdi Zaidi, Advocate.

4. Ch. Saghir Ahmad, Standing Counsel for Pakistan contended that the petitioners obtained loan from the respondents and executed agreement with the respondents. The petitioners signed the agreement of their own free and sweet will and agreed to repay the loan with interest, therefore, the petitioners are estopped to agitate the matter before this Court on the well known principles of estoppel and waiver. He further stated that this Court has no jurisdiction to declare any provision of the agreement as well as provision of any Act against Injunctions of Islam. The petitioner has alternate remedy to agitate the matter that clauses of agreement or provision of law is against Injunctions of Islam before the Federal Shariat Court. The other learned counsel of the respondents have adopted the arguments of the learned Standing Counsel. The learned Additional Advocate‑General also adopted the arguments of the learned Standing Counsel and contended that the writ petition is liable to be dismissed by virtue of the conduct of the petitioners on the well known principle of approbate and reprobate.

5. I have given my anxious consideration to the contentions of the learned counsel of the parties. It is admitted fact that the Federal Shariat Court in PLD 1992 Federal Shariat Court 445) declared interest against the Injunctions of Islam. It is also admitted fact that the aggrieved parties have filed appeals before the Hon'ble Supreme Court which is pending adjudication, therefore, judgment of the Federal Shariat Court is held in abeyance by virtue of proviso (2) of Article 203‑D of the Constitution. I am also fortified by the judgment of Muhammad Mumtaz Masood's case 1994 SCMR 2287. It is also admitted fact that the petitioners inasmuch as they fully knew that giving and taking of 'Sood' was 'Haram' in Islam, when they applied for the loan, agreed to pay interest, received the loan with interest and utilized the same, so now at this belated stage when they have been asked to pay what they had agreed to pay, it does not lie in their mouth to refuse/avoid to pay the same on the touchstone of Injunctions of Islam that the interest is against the Injunctions of Islam. I am fortified by the reported judgment of this Court in Ghulam Yasin's case NLR 1993 SD 196 and Inayat Ullah's case 1992 CLC

3. It is also settled principle of law that State functionaries including Judiciary is duty bound to act in accordance with law by virtue of Article 4 of the Constitution where the law is silent or no statute is available then public functionaries including the Judiciary has to exercise their power of dispensation of justice in accordance with the principles of Islam. I am fortified by the reported judgment in Massu's case 1990 MLD 2304 and Raja Nasir Khan's case PLD 1998 Lah.

20. It is also settled proposition of law that Constitution should be read as a whole and interpreted harmoniously. I am fortified by the following judgments:‑‑ PLD 1992 SC 595 Hakam Ali's case PLD 1993 SC 473 Mian Nawaz Sharif's case. By virtue of Article 203‑G of the Constitution this Court has no jurisdiction to entertain any proceeding or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the Federal Shariat Court, therefore, writ petitions are not maintainable. I am fortified by the following judgments:‑‑ 1990 MLD 2304 Massu's case. PLD 1992 SC 595 Hakam Ali's case. 1993 CLC 129 Habib Bank Ltd.'s case 1993 CLC 706 Muhammad Islam's case. 1991 MLD 863 M/s. Mumtaz Industries 'case 1991 CLC 1705 It is admitted fact as mentioned above that the petitioners submitted application for obtaining loan and the terms of the loan was also accepted by the petitioners alongwith terms of agreement, to repay with interest, therefore, petitioners having no right to approbate and reprobate by virtue of his conduct as the principle laid down by the Hon'ble Supreme Court in Haji Ghulam Rasool's case PLD 1971 SC

376. It is also settled proposition of law that he who seeks equity must come with clean hands but the petitioners themselves signed the agreement, therefore, I am not inclined to exercise discretion in favour of the petitioners as the principle laid down by the Hon'ble Supreme Court and this Court in the following judgments:‑‑ PLD 1973 SC 236 Nawabzada Raunak Ali's case. 1998 SCMR 1462 Rana Muhammad Arshad's case. 1990 CLC 1783 G.M. Malik's case In view of what has been discussed above this writ petition has no force and the same is dismissed with no order as to costs. C.M.A./M.A.K./M‑1051/L Petitions dismissed.