P L D 2017 Lahore 703 (PLP)

IBAD-UR-REHMAN LODHI J.

By means of this appeal, the appellant has challenged the decree dated 12.07.2011 granted in favour of the respondent in his suit filed under Order XXXVII C.P.C. for recovery of Rs.2,30,000/- by the Additional District Judge, Chakwal.

2. In the plaint, the plaintiff/present respondent had come forward with the plea that loan facility of Rs.2,30,000/- was extended by him to the appellant and such deal was named as Qarz-e-Hasna. A pronote and receipt of such loan facility were also separately executed on 25.07.2008, but on account of failure on the part of the defendant/present appellant to repay the same, the plaintiff/present respondent had to file the referred suit for recovery of amount of pronote. The plaintiff, when appeared in the witness box as PW-1, has again deposed that the amount of Rs.2,30,000/- was given by him to the defendant as Qarz-e-Hasna. The learned trial Judge after recording respective evidence of the parties proceeded to decree the suit of the plaintiff as prayed for by means of impugned judgment and decree dated 12.07.2011.

3. When learned counsel for the appellant started arguments on the appeal, the learned counsel for the respondent/plaintiff was directed to demonstrate as to what would be the consequential effect if admittedly some amount changed hands and the person extending such financial facility in favour of the other one call such deal as Qarz-e-Hasna and what would be the legal consequences if such amount is demanded back by the creditor. Learned counsel for the appellant by placing reliance on cases titled Dr. M Aslam Khaki v. Syed Muhammad Hashim and 2 others PLD 2000 SC 225) (Shariat Appellate Jurisdiction), Muhammad Anwar Wahla v. Muhammad Tariq Tung 2002 CLC 1779, Habib Bank v. Messrs Qayyum Spinning Ltd. 2001 MLD 1351 and Badshah Jan v. Allah Ditta Sethi and others PLD 2013 Islamabad 39 has submitted that Qarz-e-Hasna is a loan repayable at borrower's convenience and the same cannot be recovered unless the borrower is in a position to repay the same and that it is a loan given on compassionate ground free from interest, mark-up or service charges and repayable if and when the borrower is able to pay.

4. In comparison whereof, learned counsel for the respondent/ plaintiff with reference to Ayat Nos.177, 245, 282 of Sura Baqra, Ayat No.12 of Sura Maida, Ayat No.18 of Sura Al-Hadeed, Ayat No.17 of Sura Taghabun, Ayat No.20 of Sura Muzammal, as also Tafheem-ul-Quran by Moulana Syed Abul-Aala Modoodi and Tadabar-e-Quran by Moulana Ameen Ahsan Islahi has submitted that term Qarz-e-Hasna in fact is one, used by Allah Almighty in the Holy Quran and wherever this term is used, it denotes to a loan given by the creature to the Creator and nowhere the term Qarz-e-Hasna is used as a fiscal transaction in between two persons amongst creature and such Qarz-e Gasna mainly consists of Aml-e-Salah and Sadqa Jaria and return of said Qarz is left on Almighty Allah Raheem-o-Kareem on the day of judgment.

5. The Holy Quran is the basic and primary source of law and it is complete code of life. In case of any controversy in any matter, one has to recourse to Holy Quran first and in case of any ambiguity, then to other sources of law. The word Qarz-e-Hasna is not coined by anybody, rather it is from Allah Himself and is found in the Holy Quran itself as referred to hereinabove by learned counsel for the respondent during arguments. For ready reference, the verses revealed in Holy Quran in the referred Suras along with its translation and elucidation/explanation by the learned authors of referred Tafseer are reproduced herein below:- From above verses, one can imagine that the almighty Allah, who can create anything by just saying "Kun", is asking humans to give Him loan. Hence, anything that we spend in the way of Allah, in fact, is bestowed by Him. It is only because of His graciousness that He calls it a loan that we spend it in His way and He promises to return it to us in manifold. When He is asking for loan, it does not mean the loan that we get from some individual or bank for our needs, rather "Qarz-e-Hasna/goodly loan" signifies whatever is given to another for selflessly and absolutely pure motives with the belief that he shall get the reward in the next world. The stipulation, however, is that the loan should be a "goodly" one, that is, it should not be tainted with selfish designs and it should be given for the sake of Allah, for the purposes of pleasing Him. In view of above discussion, it is, thus, declared that term Qarz-e Hasna is not available for a loan to be extended by a person in this world to another person.

6. Further in this particular case, although the basic transaction was termed in the plaint and evidence as Qarz-e-Hasna, but at the same time, such transaction was reduced in writing in the shape of pronote and receipt showing such fiscal transaction in between the parties. The execution of pronote although has been denied by the defendant/present appellant, but both the documents Exh.P-1 and Exh.P-2 are shown to have been signed by Muhammad Bashir defendant/appellant. The signatures have been denied by Muhammad Bashir, but not only the learned trial court, but this Court also obtained his signatures in the open Court and, while comparing the same with the signatures available on the referred documents, this is the consensus that both the documents were duly signed by Muhammad Bashir defendant/appellant. While apprehending the dismissal of the appeal and maintaining the decree granted by the learned trial court, the appellant, who is present in person along with his learned counsel requests for return of the decretal amount in some easy installments in view of the present financial constraints being faced by him. With the consent of the decree holder/respondent herein, the decretal amount of Rs.2,30,000/- is, thus, allowed to be paid by the defendant/appellant/judgment debtor by means of monthly installments of Rs.7500/- each per month and first installment in that respect will be made on or by 01.03.2017. It is also agreed in between the parties that by every first date of each month, the amount of Rs.7500/- as installment will be paid by the judgment debtor/appellant/defendant by depositing the same in Bank account No.0010018681740017 of the respondent/ plaintiff in the suit being maintained at Allied Bank Limited, Talagang Road, Chakwal having Branch Code No.0060 and any single default in this regard would tantamount to forthwith and lump sum recovery of the remaining decretal amount and for that purpose, learned Executing Court, if approached, will be at liberty to proceed against the judgment debtor/appellant without notice and without adopting the coercive measures including forfeiture of bank guarantee furnished by him with the learned Executing Court in compliance with direction of order dated 20.09.2011 passed by this Court, when this appeal was admitted to regular hearing.

7. Before parting with this judgment, this Court extends profound gratitude to Mr. Muhammad Kashif, Advocate for the respondent, who rendered his valuable assistance to the Court in reaching a just decision on such intricate question.

8. With these observations, this appeal having no force is dismissed. MQ/M-43/L Appeal dismissed.