P L D 1992 Federal Shariat Court 445 (PLP)

TANZIL-UR-RAHMAN, C.J.--These are four Shariat Petition detailed as under:-- (i) Mr. Muhammad Ismail Qureshy Advocate, the petitioner in Shariat Petition No.118/L of 1991 while challenging subsection (2) of section 3 of the Shari'ah Act, submitted that "although the Shari'ah has been declared as the Supreme Law of Pakistan in subsection (1) of section 3 of the Shari'ah Act, yet the provision of subsection (2) of the same section 3 has refused to place the present political system, including Majlis-e-Shoora (Parliament) and Provincial Assemblies and the existing system of the Government under the Supreme Law of Pakistan that is to say the Injunctions of Islam". It was further submitted by him that "the Government, Majlis-e Shoora (Parliament) and Provincial Assemblies could not claim to be above the Supreme Law and refuse to be governed by the Injunctions of Islam, hence they are repugnant to Qur'an". Reliance has been placed by him on the following Verses of the Holy Qur'an:-- "say: all authority belongs to Allah alone. "(Al-Imran. 3:154) "The authority is none but Allah." (Yusuf. 12:40) "But say not for false thing that your tongues may put-forth this is lawful and this is forbidden". (Nahl. 16:116). Thus, it was submitted that according to Quranic Injunctions the exercising of authority should be surrendered individually and collectively before the commands of Allah, as He alone is the law-giver and the authority of absolute legislation vests in Him. The petitioner has challenged the above provisions of law on several grounds, which are reproduced as under:-- (i) "That National or Provincial Assemblies or the Government cannot resort to independent legislation, nor can they alter, modify any law which is given by Allah or His Prophets as "They are the people unto whom we gave the scripture and command and prophethood." (ii) That if the Government, National or Provincial Assemblies disregard or refuse to obey the commands of Allah and His Holy Prophet, They are violating the Injunctions of Islam and will not be entitled to obedience in its capacity as a political agency set up to enforce the law revealed by Allah through His Holy Prophet (p.b.u.h.) and the declaration in section 3 of the Act that Qur'an and Sunnah shall be Supreme Law of Pakistan is nothing but fraud on Shariah, Constitution and Statute and will be violative of the Constitution as well. (iii) That subsection (2) of section 3 of the Act conferred unfettered powers of legislation and law making to Government, National and Provincial Assemblies on the pattern of Western democracy where the sovereignty is claimed to be vested in the Parliament. (iv) That the so-called Shariat Act cannot override the provisions of Article 2 of the Constitution whereby Islam is declared to be the State Religion of Pakistan and Article 2-A which has incorporated the Objectives Resolution as substantive part of the Constitution." (v) That great Imam Abu Hanifah has defined Islam as under: Islam is complete obedience to the commandments of Allah." (vi) The Hazrat Shah Waliullah, an eminent Scholar of Islam in his classical work: says that the commands of authority in power will not be binding on believers if they are in disregard of commmandments of Allah which is (Maksiyat). This principle is based on Hadees of the Holy Prophet (p.b.u.h.) reproduced herein-under: (vii) That another Scholar of our age Maulana Abut Ala Moududi has also enunciated this principle from the Qur'an in his book "Islamic Law and the Constitution". That no person, class or group, or not even the entire population of the State, as a whole, can lay claim to the sovereignty. God alone is the real sovereign, all others are merely His subjects'. (Islamic Law and the Constitution, Page 146, Islamic Publication, Lahore, 1960). (viii) That Haroon Khan Sherwani, Political Scientist in his book "Studies in Muslim Political Thought and Administration" writes: "Law of God is regarded as supreme and universal, so it is, in the nature of things that man is ordered to obey His exposition of law as revealed to the Prophet (p.b.u.h.) (Page 27, Publisher Sh. Muhammad Ashraf):" (ii) By another Petition No.123/L of 1991, Muhammad Ismail Qureshy, Advocate, the petitioner; has challenged section 19 of the Enforcement of Shari'ah Act, 1991 relating to the "fulfilment of existing obligations as valid, binding and operative till an alternative economic system is evolved". The petitioner while challenging the above provision of section 19 of the Act as repugnant to the Injunctions of Islam, placed his reliance on the following verses of the Holy Qur'an:-- "But Allah hath permitted trade" and forbidden usury. Those who after receiving direction from their Lord, desist shall be pardoned for the past, their case is for Allah (to judge). But those who repeat (the Offence) are Companions of the Fire: They will abide therein (for ever). If ye do it not, take notice of war from Allah and His Apostle: but if ye turn back, ye shall have your capital sums: Deal not unjustly and ye shall not be dealt with unjustly". The Petitioner then referred to few traditions of the Holy Prophet (p.b.u.h.) as under:-- "The Holy Prophet (p.b.u.h.) addressing the Mankind, inter-alia, declared that all the transactions of usury in days of Jahilliah have been crushed under his feet and said that he has written off the entire claim of his Uncle (Hazrat) Abbas arising out of the Past on account of Usury as reported in Muslim:-- The petitioner thus pleaded as under:-- "That section 19 of the Act cannot override the provisions of Article 2 of the Constitution whereby Islam is declared to be the State religion of Pakistan, whereby all the three organs of the State have to obey the Commands of Allah and His Massenger (p.b.u.h.). That the provision of section 19 of the Act is also in conflict with Article 2-A of the Constitution which is declaratory and executory as well. That according to Article 227 of the Constitution all existing laws shall be brought in confirmity with Injunctions of Islam as laid down in the Holy Qur'an and Sunnah and no law shall be enacted which is repugnant to such Injunctions, but section 19 of the Shariat Act is clearly repugnant to the Injunctions of Islam in the light of above quoted verses of Holy Qur'an and Hadees of the Holy Prophet (p.b.u.h.). (iii) M. Khalid Farooq, the petitioner, in Shariat Petition No.14/L of 1992; has challenged the provisions of section 19 of the Enforcement of Shari 'ah Act, 1991, on the ground that the same are repugnant to the Injunctions of Islam. It was contended that "the impugned section is clearly violative of the following Aaya4t of- the Holy Qur'an:-- "But Allah hath permitted trade" and forbidden usury. Those who after receiving direction from their Lord, desist shall be pardoned for the past, their case is for Allah (to judge) but those who repeat (the Offence) are companions of the Fire: they will abide therein (for ever): "O ye who believe! Fear Allah, and give up what remains of your demand for usury, if ye are indeed believers. If ye do it not, take notice of war from Allah and His Apostle: But it ye turn back, ye shall have your capital sums. Deal not unjustly and ye shall not be dealt with unjustly. The impugned section is also conflicting to the following Hadith of the Holy Prophet (p.b.u.h.):-- It was further contended that "the impugned section has clearly contravened the mandatory Articles 2, 2-A and 227(1) of the Constitution of the Islamic Republic of Pakistan as well as the mandatory section 3(1) of the Enforcement of Shari'ah Act X of 1991, whereby the supremacy of the Holy Qur'an and Sunnah has also been guaranteed." (iv) M. Khalid Farooq, the petitioner, in another Petition No.15/L of 1.992, has challenged section 3(2) of the Enforcement of Shar'ah Act, 1991, to be declared as repugnant to the Injunctions of Islam i.e. Qur'an and Sunnah. Reliance has been placed on the following Verses of the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.):-- That the impugned section is also conflicting to the following Hadith of the Holy Prophet. It was thus contended in the Petition that "it is evident from the above cited injunctions of Islam that the impugned section 3(2) is repugnant thereto inasmuch as it has clearly negated the sovereignty of Allah which can be exercised only through the introduction and establishment of the Islamic Political System i.e. Khilafat Ala-Minhaj-us-Sunnah, in our `Islamic Republic of Pakistan' the name recorded in our Constitution of 1973 as per Article

1. It is crystal clear from the said injunctions that Islam is a `Deen' i.e. a complete code of life, therefore, the politics, a major sphere of life, cannot be excluded from the operation of Islam. The race, colour, territory and wealth is no criterion in Islam as alone the piety i.e. Taqwa, is the fundamental characteristic for the honour and esteem of an individual. Most of the injunctions arc contained in the Holy Qur'an and Sunnah, liable to be enforced in letter rind spirit and a very narrow scope is left for legislation on the new problems having emerged by the passage of time and space, but even this legislation has necessarily to be made within the limits of both the said Nasoos by the men to repute for their piety, capability and knowledge of Islam i.e. Abidden, as is evident from the following Hadith of the Holy Prophet (p.b.u.h.) narrated by Hazrat Ali:-- It is reiterated here that in Islam every law or order violative of Qur'an and Sunnah is void and not liable to be obeyed, as had been declared by the First Caliph Hazrat Abu Bakar Siddique in his first address as under:-- 1. appears from the impugned section 3(2) that the Government-respondent has made an absurd and futile effort to oust the jurisdiction of this augus Court as well as the Hon'ble Supreme. Court of Pakistan and High Courts o. Provinces, with the mala fide intention of rendering the esteemed judgment of this august Court reported as Mohammad Salah-ud-din v. Government of Pakistan (PLD 1990 FSC 1) whereby sections 13, 14, 49, 50, 52 and 38(4)(c)(ii) of the Representatives of the People Act, 1976 (LXXXV) of 1976 have been nullified being un-Islamic, and debarring the Honourable Supreme Court of Pakistan from hearing the appeal of the Government-respondent inasmuch as it had realised the weakness of its case. It is needless to mention that the, existing un-Islamic political system had been toppled down through the said judgment by this Hon'ble Court but the Government-respondent had maliciously ventured to stop the advancement of Islamization in our Islamic State of Pakistan with the ulterior motive of continuing the existing un-Islamic political system for ever, whereunder only the feudal lords and the millionairs, lacking Taqwa and knowledge of Islam have been wielding the power and sovereignty since the creation of Pakistan, in complete defiance of the above cited commands of Allah and the Holy Prophet (p.b.u.h.). It is, therefore, vehemently submitted that the impugned section 3(2) is absolutely void and a nullity in the eye of law for the obvious reason of being mala fide and a product of the subordinate legislation, which cannot over-ride the provisions of the Constitution at all, whereunder this august Court as well as the Honourable Supreme Court and High Courts have been invested with the powers of examining and declaring any law to be repugnant to the Injunctions of Islam as per Articles 2, 2-A, 203-D, 203-F, 184 and

199. Hence, this Honourable Court has complete jurisdiction to examine the impugned section 3(2) and declare the same against the Holy Qur'an and Sunnah in treating the aforesaid bar of jurisdiction as mala fide and void. It is also evident that the impugned section 3(2) is apparently un-Islamic being hit by the aforesaid esteemed decision of this Honourable Court reported as PLD 1990 FSC 1". "It is also submitted that in fact the impugned piece of law is not only a shameless denial of the very ideology behind the creation of Pakistan but also a treachery against the tremendous sacrifies of life, honour, chastity and property given by the Muslims, whether men or women, of the sub-continent, who practically had crossed over the River of Blood, embraced the death fearlessly is raising the famous slogan: A question arises as to why our rulers arc afraid of the judicial examination to be made by our Courts including the Hon'ble Supreme Court, this august Court and High Courts, if the existing political system of our country is Islamic? The answer is obvious that the present political system is un-Islamic but the rulers are adamant to deprive the Millat-e-Islamia of Pakistan of their beloved Islamic Political System i.e. Hakoomat-e-Ilahia, for which it had been making utmost efforts and aspiring from centuries:" The petitioner lastly stated that "the impugned section has clearly contravened the mandatory Articles 2, 2-A and 227(1) of the Constitution of the Islamic Republic of Pakistan as well as the mandatory section 3(1) of Enforcement of Shari'ah Act X of 1991, whereby the supremacy of the Holy Qur'an and Sunnah has also been guaranteed. Reliance is also placed on the recent judgment dated 14-1-1992 of the Full Bench of the Hon'ble Lahore High Court delivered in W.P.26 of 1989 as Mst. Sakina Bibi v. Federation of Pakistan". The grievance as shown in all the four petitions is that "although the Shari'ah has been declared as Supreme Law of Pakistan as provided in subsection (1) of section 3 of the Shari'ah Act, but in subsection (2) of section 3 and section 19, in consequence, the supremacy of Shari'ah i.e. Qur'an and Sunnah has been curtailed. By these four Petitions, contents whereof have been quoted in extenso in the foregoing pages, the provisions of sections 3(2) and 19 of the Enforcement of Shari'ah Act, 1991, have been challenged on the ground that they arc repugnant to the Injunctions of Islam as laid down in the Holy Our'an and Sunnah of the Holy Prophet (p.b.u.h.). These provisions are reproduced as under:-- "

3. Supremacy of Shari'ah:--(1) The Shari'ah that is to say the injunctions of Islam as laid down in the Holy Qur'an and Sunnah, shall be the supreme law of Pakistan. (2) Notwithstanding anything contained in this Act, the judgment of any Court or any other law for the time 'being in force, the present political system, including the Majlis-e-Shoora (Parliament) and Provincial Assemblies and the existing system of Government, shall not be challenged in any Court, including Supreme Court, the Federal Shariat Court or any authority or tribunal, Provided that nothing contained herein shall affect the rights of the non-Muslims guaranteed by or under the Constitution." "

19. Fulfilment of existing obligations:--Nothing contained in this Act or any decision made thereunder shall affect the validity of any financial obligations incurred, including under any instructions, whether contractual or otherwise, promises. to pay, or any other financial commitments made by or on behalf of the Federal Government or a Provincial Government or a financial or statutory corporation or other institution to make payments envisaged therein, and all such obligations, promises and commitments shall be valid, binding and operative till an alternative economic system is evolved. Before dealing with the abovesaid provisions of the Act, it seems pertinent to refer first, in some detail, the various provisions of Chapter 3A of the Constitution providing for, inter alia, the establishment, constitution, jurisdiction and powers of the Federal Shariat Court, as the question of the jurisdiction of the Federal Shariat Court has been challenged by the learned Standing Counsel for the Federation with particular reference to the effect of its judgments. Relevant provisions of the Constitution are reproduced as under:-- "203A. The provisions of this Chapter shall have effect notwithstanding anything contained in the Constitution. 2038. In this Chapter, unless there is anything repugnant in subject or context: [Substituted, inserted and omitted by P.O.No.5 of 1982. Arts. 2 and 3.](a) "Chief Justice" means Chief Justice of the Court; (b) "Court" means the Federal Shariat Court constituted in pursuance of Article 203C; (bb) "Judge" means Judge of the Court; (c) "law includes any custom or usage having the force of law but does not include the Constitution, Muslim personal law, any law relating to the procedure of any Court or tribunal or, until the expiration of ten[Substituted successively by P.O. No.7 of 1983 and P.O.No.2 of 198-1 and P.O.No.14 of 1985, Art.2 and Sch., to read above.] years from the commencement of this Chapter, any fiscal law or any law relating to the levy and collection of taxes and fees or banking or insurance practice and procedure and 203C:--(1) There shall be constituted for the purposes of this Chapter a Court to be called the Federal Sahriat Court. [Substituted by P.O.No.7 of 1981, Art.2.](2). The Court shall consist of not more than eight Muslim [Substituted by P.O.No.5 of 1982, Art.2.]Judges, including the Chief Justice, to be appointed by the President. [Substituted by P.O.24 of 1985. Art.4.]3(3). The Chief Justice shall be a person who is, or has been or is qualified to be, a Judge of the Supreme Court or who is or has been a permanent Judge of a High Court. (3A). Of the Judges, not more than four shall be persons each one of whom is, or has been, or is qualified to be, a Judge of a High Court and not more than three shall be Ulema who are well-versed in Islamic law. (4). The Chief Justice and a Judge shall hold office for a period not exceeding three years, but may be appointed for such further term or terms as the President may determine; Provided that a Judge of a High Court shall not be appointed to be a (Judge) for a period exceeding (two years) except with his consent and [Inserted by P.O.No.4 of 1080, Art.2.](except where the judge is himself the Chief Justice,) after consultation by the President with the Chief Justice of the High Court. (413)(9) A [Substituted by P.O.No.5 of 1982. Art. 3.](Chief Justice) who is not a Judge of the Supreme Court shall be entitled to the same salary, allowances and privileges as arc admissible to a Judge of the Supreme Court and a (Judge) who is not a Judge of High Court shall be entitled to the same salary, allowances and privileges as are admissible to a Judge of a High Court. 203D. (1) The Court may, [Inserted by P.O.No.5 of 1982, Art. 4.](either of its own motion or) on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam, as. laid down in the Holy Qur'an and the Sunnah of the Holy Prophet, (p.b.u.h.) hereinafter referred to as the Injunctions of Islam. [Substituted and added and shall be deemed always to have been so substituted and added. by P.O.No. 1 of 1984, Art. 2.](lA). Where the Court takes up the examination of any law or provision of law under clause (1) and such law or provision of law appears to it to be repugnant to the Injunctions of Islam, the Court shall cause to be given to the Federal Government in the case of law with respect to a matter in the Federal Legislative List or the Concurrent Legislative List, or to the Provincial Government in the case of a law with respect to a matter not enumerated in the either of those Lists, a notice specifying the particular provisions that appear to it to be so repugnant, and afford to such Government adequate opportunity to have its point of view placed before the Court. (2) If the Court decides that any law or provision of law is repugnant to the injunctions of Islam, it shall set out in its decision:-- (a) the reasons for its holding that opinion; and (b) the extent to which such law or provision is so repugnant; and specify the day on which the decision shall take effect: Provided that no such decision shall be deemed to take effect before the expiration of the period within which an appeal therefrom may be preferred to the Supreme Court or, where an appeal has been so preferred, before the disposal of such appeal. (3) If any law or provision of law is held by the Court to be repugnant to the Injunctions of Islam:-- (a) the President in the case of a law with respect to a matter in the Federal Legislative List or the Concurrent Legislative List, or the Governor in the case of a law with respect to a matter not enumerated in either of those Lists, shall take steps to amend the law so as to bring such law or provision into confirmity with the Injunctions of Islam; and (b) such law or provision shall, to the extent to which it is held to be so repugnant, cease to have effect on the day on which the decision of the Court takes effect. [Cause (4) omitted by P.O.No.4 of 1980, Art.3.] [Article 203DD, as inserted ibid, substituted by P.O.No.5 of 1982, Art.5.](203DD.--(1) The Court may call for and examine the record of any case decided by any Criminal Court under any law relating to the enforcement of Hudood for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by, and as to the regularity of any proceedings of, such Court and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. (2) In any case the record of which has been called for by the Court, the Court may pass such order as it may deem fit and may enhance the sentence: Provided that nothing in this Article shall be deemed to authorise the Court to convert a finding of acquittal into one of conviction and no order under this Article shall be made to the prejudice of the accused unless he has had an opportunity of being heard in his own defence. (3) The Court shall have such other jurisdiction as may be conferred on it by or under any law. 203E. (1) For the purposes of the performance of its functions, the Court shall have the powers of a Civil Court trying a suit under the Code of Civil Procedure, 1908 (Act V of 1908), in respect of the following matters, namely:-- (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of any document; (c) receiving evidence on affidavit; and (d) issuing commissions for the examination of witnesses or documents. (2) The Court shall have power to conduct its proceedings and regulate its procedure in all respects as to deems fit. (3) The Court shall have the power of a High Court to punish its own contempt. (4) A party to any proceedings before the Court under clause (1) of Article 203D may be represented by a legal practitioner who is a Muslim and has been enrolled as an advocate of a High Court for a period of not less than five years or as an advocate of the Supreme Court or by a jurisconsult selected by the party from out of a penal of jurisconsults maintained by the Court for the purpose. (5) For being eligible to have his name borne on the panel of jurisconsults referred to in clause (4), a person shall be an Aalim who, in the opinion of the Court, is well-versed in Shariat. (6) A legal practitioner or jurisconsult representing a party before the Court shall not plead for the party but shall state, expound and interpret the Injunctions of Islam relevant to the proceedings so far as may be known to him and submit to the Court a written statement of his interpretation of such Injunctions of Islam. (7) The Court may invite any person in Pakistan or abroad whom the Court considers to be well-versed in Islamic law to appear before it and render such assistance as may be required of him. (8) No court-fee shall be payable in respect of any petition or application made to the Court under Article 203D. (9) The Court shall have power to review any decision given or order made by it. 203F.--(1) Any party to any proceedings before the Court under Article 203D aggrieved by the final decision of the Court in such proceedings may, within sixty days of such decision, prefer an appeal to the Supreme Court: Provided that an appeal on behalf of the Federation or of a Province may be preferred within six months of such decision. (2) The provisions of clauses (2) and (3) of Article 203D and clauses (4) to (8) of Article 203E shall apply to and in relation to the Supreme Court as if reference in those provisions to Court were a reference to the Supreme Court. (2A) An appeal shall lie to the Supreme Court from any judgment, final order or sentence of the Federal Shariat Court:-- (a) if the Federal Shariat Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death or imprisonment for life or imprisonment for a term exceeding fourteen years; or, on revision, has enhanced a sentence as aforesaid; or (b) if the Federal Shariat Court has imposed any punishment on any person for contempt of the Court; (2B) An appeal to the Supreme Court from a judgment, decision, order' or sentence of the Federal Shariat Court in a case to which the preceding clauses do not apply shall lie only if the Supreme Court grants leave to appeal. [Substituted by P.O. No.12 of 1982, Art 2.](3) For purpose of the exercise of the jurisdiction conferred by this Article, there shall be constituted in the Supreme Court a Bench to be called the Shariat Appellate Bench and consisting of-- (a) three Muslim Judges of the Supreme Court; and (b) not more than two Ulema to be appointed by the President to attend sittings of the Bench as ad hoc members thereof from amongst the judges of the Federal Shariat Court or from out of a panel of Ulema to be drawn up by the President in. consultation with the Chief Justice. (4) A person appointed under paragraph (b) of clause (3) shall hold office for such period as the President may determine. (5) Reference in clauses (1) and (2) to "Supreme Court" shall be construed as a reference to the Shariat Appellate Bench. (6) While attending sittings of the Shariat Appellate Bench, a person appointed under paragraph (b) of clause (3) shall have the same power and jurisdiction, and be entitled to the same privileges, as a Judge of the Supreme Court and be paid such allowances-as the President may determine. 203G. Save as provided in Article 203F, no Court or tribunal, including the Supreme Court and a High Court, shall entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the Court. [Inserted by P.O.No.5 of 1982, Art. 7]"203GG. Subject to Articles 203D and 203F, any decision of the. Court in the exercise of its jurisdiction under this Chapter shall be binding on a High Court and on all Courts subordinate to a High Court. 203H.--(1) Subject to clause (2)- nothing in this Chapter shall be deemed to require any proceedings pending in any Court or tribunal immediately before the commencement of this Chapter or initiated after such commencement, to be adjourned or stayed by reason only of a petition having been made to the Court for a decision as to whether or not a law or provision of law relevant to the decision of the point in issue in such proceedings is repugnant to the Injunctions of Islam; and all such proceedings shall continue, and the point in issue therein shall be decided, in accordance with the law for the time being in force. (2) All proceedings under clause (1) of Article 203B of the Constitution that may be pending before any High Court immediately before the commencement of this Chapter shall stand transferred to the Court and shall be dealt with by the Court from the stage from which they are so transferred. (3) Neither the Court nor the Supreme Court shall in the exercise of its jurisdiction under this Chapter have power to grant an injunction or make any interim order in relation to any proceedings pending in any other Court or tribunal." Now adverting to the provisions of Sections 3(2) and 19 of the Enforcement of Shari'ah Act, 1991, a plain reading of the said provisions will reveal that: In subsection (1) of section 3 under the heading "Supremacy of Shari'ah" the Shari'ah that is to say the Injunctions of Islam as laid down in the Holy Our'an and Sunnah has been declared "the supreme law of Pakistan". However, notwithstanding the said declaration "the present political system, including the Majlis-e-Shoora (Parliament) and Provincial Assemblies and the existing system of Government", have been saved from being "challenged in any Court, including Supreme Court, the Federal Shariat Court or any authority or tribunal". By section 19, it has been provided that the existing financial obligations shall be "binding and operative till an alternative economic system is evolved". These provisions viz. sections 3(2) and 19, as provided, shall run counter to any decision of any Court or anything contained in the Shari'ah Act, or the Constitution, without affecting the validity of any financial obligations. These provisions are available to be challenged both on the ground of their conflict with the provisions of the Constitution and the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. To deal first their conflict with the Constitution, it is an accepted principle of interpretation that any law which comes into conflict with the Constitution or any provision thereof cannot co-exist. Article 3(2) makes an exception to the application of Shari'ah to current political system in Pakistan. It means that the Injunctions of Islam as laid down in the Holy Our'an and Sunnah will not govern the political system of the country. It goes a step further when it says that the provisions of subsection (2) shall pervail notwithstanding any judgment of the Federal Shariat Court or the Supreme Court. In effect, this provision of law is violative of the provisions of the Constitution inasmuch as the term "law" as defined in Article 203B(c) "includes any custom or usage having the force of law but does not include the Constitution, Muslim personal law, any law relating to the procedure of any Court or tribunal or, until the expiration of ten years from the commencement of this Chapter, any fiscal law or any law relating to the levy and collection of taxes and fees or banking or insurance practice and procedure". After the expiry of ten years' period from the date of the commencement of Chapter 3A, which contains the provisions relating to the establishment and jurisdiction of the Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court, the Federal Shariat Court has got jurisdiction in all matters except the Constitution, Muslim Personal Law and any law relating to the procedure of any Court or tribunal. As provided in clause (3) of Article 203DD of the Constitution, the Federal Sharial Court can be conferred upon such other jurisdiction by or under any law. But, its jurisdiction, cannot be taken away or curtailed by means of a law, as the jurisdiction conferred or barred by a specific provision of the Constitution cannot be interfered with by means of an ordinary law. Constitution is the fundamental law of the land. It is, thus, a recognized and well-established principle of interpretation of statutes that all laws should be subservient to the Constitution and must conform to it. The power and jurisdiction conferred on the Federal Shariat Court under the Constitution cannot be taken away, curtailed or abridged by an ordinary piece of legislation, such as the Shari'ah Act of 1991. Consequently, the exception as provided in subsection (2) of section 3 shall be invalid, in so far as it relates to the curtailment of the jurisdiction of this Court, which is quite contrary to the Constitutional provisions conferring jurisdiction on this Court. Furthermore, since the Shari'ah Act is an ordinary law, its provisions are challengeable before this Court under Article 203D(1) of the Constitution. It is apparent that subsection (2) of section 3 makes an exception to the political system and the existing system of the Government and the Provincial Assemblies and the system of Government and takes it outside the ambit of the jurisdiction of this Court. This political system is provided in the Constitution and the law, for example, the Representatives of People Act, 1976 and Political Parties Act, 1962. So far as the exception of the provisions of the Constitution is concerned the jurisdiction of this Court is specifically barred, but the jurisdiction to examine a law which has got a bearing on the political system of the country cannot be taken away, which vests in this Court by virtue of Article 203D read with Article 203B(c) of the Constitution. In result, the provisions of section 3(2) while testing on the anvil of the Constitution, are ultra vires to the provisions of the Constitution of the Islamic Republic of Pakistan, 1973, with particular reference to Chapter 3A. Now, to examine the provisions of section 3(2), as to their repugnancy to the Injunctions of Islam as laid down in the Qur'an and Sunnah of the Holy Prophet (p.b.u.h.) as provided under Article 203D(1) of the Constitution, reliance may be placed, in the first instance; on among others, the following three Verses of the Qur'an:

(This day have I perfected your religion for you, completed my favour upon you, and have chosen for you Islam as your religion. (Al-Maidah V: 3 Translation: Abdullah Yousuf Ali). (O ye who believe! enter into Islam wholeheartedly and follow not the footsteps of the evil one. (Al-Baqara II: 208, Translation: Abdullah Yousuf Ali). (Then is it only a part of the book that ye believe in, and do you reject the rest) (Al-Baqara II: 85, Translation: Abdullah Yousuf Ali). Commenting on the first verse, quoted above, Allama Muhammad Asad in his Translation and Commentary of the Our'an writes-- "According to all available traditions based on the testimony of the Prophet's contemporaries, the above passage which sets, as it were a seal on the message of the Qur'an was revealed at Arafat in the afternoon of Friday, the 9th of Zhu'1 Hijjah, 10 H; eighty-one or eighty-two days before the death of the Holy Prophet (peace be upon him). No legal Injunction whatosever was revealed after this verse and this explains the reference to God's having perfected the faith and bestowed the full measure of his blessing upon the believers. Man's self-surrender (Islam) to God is postulated as the basis, or the basic law, of all true religions. This self-surrender expressed itself not only in belief in Him but also in obedience to His command: and this is the reason why the announcement of the completion of the Qur'anic message is placed within the context of a verse containing the last legal ordinances ever revealed to the Prophet Muhammad (peace be upon him). (The Message of The Qur'an, Dar al-Andalus Gibralter, (1980). Commenting on the second verse it is stated in the Meaning of the Qur'an, English translation by Ch. Muhammad Akbar, of Abul A'la Maududi's Tafhimal-Qur'an that:

"Come into the fold of Islam completely without any reservation. Your thoughts, your theories, your culture, your sciences, your manners, your dealings, your efforts, etc. should in every aspect of life, be subordinated to Islam. You should not divide your life into different compartments so as to follow Islam in one and discard it in the other:" (The Meaning of the Qur'an Vol. III). In Tafseer Allama Shabbir Ahmad Usmani, it is so stated that-- "In the previous verse the sincere believers were praised in order to condemn hypocrisy, now the most important instruction is given to all the Muslims. The Muslims should accept Islam in toto--only Islam should be followed outwardly and inwardly, in faith and action. There should be no divided attachment or loyality. A Muslim should follow Islam and Islam alone. He must not be led away to believe or obey any other laws or systems either by the insinuation of Satan or his friends or by the upsurge of his own wisdom of God. Consequently in faith and action a Muslim should not budge away an inch from the path set by Islam. This Verse is a negation of the innovation of the pseudo- Islamist and the perverted ideas and thoughts infused by the hypocrites and orientalists into the Islamic ideology. (Tafseer-e -Usmani, Maktaba-e-Matloob, Karachi). Commenting on the third verse it is stated in the Meaning of the Qur'an, English translation by Ch. Muhammad Akbar, of Abul A'la Maududi's Tafhimal-Quran that:

As a concrete example of this may be cited the strange conduct of the different clans of the Jews, who lived in the neighbourhood of Madina. Before the migration of the Holy Prophet (peace be upon him), they had entered into alliances with the neighbouring Arab clans, Aus and Khazraj when one Arab clan went to war with the other clan, their respective Jewish allies bf the other. Thus Jews waged war upon Jews, whereas this was clearly against the teaching of their scriptures which they knowingly violated. But when the Jews of one clan fell into the hands of the other clan as prisoners of war. They would redeem after taking ransom for them. When they wee questioned about this inhuman trade of their own brethren, they tried to justify it, saying that it was allowed by the scriptures. It is strange that they forgot the same scripture which they brazenfacedly violated by going to war against each other. Thus on the one hand, they accepted that part of scriptures which allowed ransom for prisoners and, on the other, rejected that part which prohibited war against their own brethren in faith:' (The Meaning of the Qur'an vol. III, Islamic Publications Limited, Lahore). Reference may also be made to the following observation of the Lahore High Court in a case reported as Allah Ditta v. The State PLD 1992 Lah. 45, about the Shari'ah Act, which reads as under:

In the light of `Shari'ah' which is now the supreme law of the land under the recently enacted Enforcement of Shari'ah Act, 1991, despite some of its apparent infirmities in the form of certain vague and exclusionary provisions aiming at saving the present political and economic system which is being perpetuated by a particular class to safeguard its own vested interests in violation of the basic concept of `Shari'ah' embodied in God's explicit command in the Holy Qur'an: For the aforesaid discussion, it is found that the provision of subsection (2) of section 3 of the Shari'ah Act, 1991 is repugnant to the Injunctions of Islam as laid down in the Qur'an, quoted above. Now for the other provision of section 19 of the Sharia'h Act, it aims at saving the existing financial obligations incurred (perhaps, up to the date of the passage of the Sharia'h Act, that is, incurred upto 11th May, 1991), from the operation of the provisions of Article 3(1) of the Sharia'h Act. It is thus intended that such agreements would remain outside the pale of "Shari'ah that is the Injunctions of Islam as laid down in the Qur'an and Sunnah". To keep the financial agreements beyond the purview of Shari'ah appears to be against the Qur'anic Injunctions, quoted above. Undoubtedly, the Quran enjoins upon Muslims to fulfil their promises as would be evident from the following verses of the Qur'an and traditions of the Holy Prophet (phu.h.): The Holy Qur'an enjoins upon all Muslims of the world, wherever they may, that:

(Ye who believe fulfil all obligations) (Al-Mai'dah V:1). Abdullah Yousuf Ali highlights the above-mentioned Injunction in his own style. He says: "This. line has been justly admired for its terseness and comprehensiveness. Obligations: Uqud: the Arabic word implies so many things that a whole chapter of Commentary can be written on it. first, there are the divine obligations that arise from our spiritual nature and our relation to God. He created us and implanted in us the faculty of knowledge and foresight; besides the intuition and reason which He gave us. He made Nature responsive to our needs, and His Signs in Nature are so many lessons to us in our own inner life; He further sent Messengers and Teachers, for the guidance of our conduct in individual, social and public life. All these gifts create corresponding obligations, which we must fulfil. But in our own human and material life we undertake mutual obligations, express and implied. We make a promise we enter into a commercial or social contract; we enter into a contract of marriage; we must faithfully fulfil all obligations in all relationships. Our group or our State enters into a treaty; every individual in that group or State is bound to see that as far as lies in his power, such obligations are faithfully discharged. There are tacit obligations; living in civil society, we must respect its facit conventions unless they are morally wrong, and in that case we must get out of such society. There are tacit obligations in the character of host and guest, wayfarer or companion, employer or employed, etc. etc., which every man of Faith must discharge conscientiously. The man who deserts those who need him and goes to pray in a desert is a coward who disregards his obligations. All these obligations are inter-connected. Truth and fidelity are parts of religion in all relations of life." It is further commanded in the Qur'an that-- (Fulfil the covenant of God who ye have entered into it, and break not your oaths after ye have confirmed them. Indeed ye have made God your surety for God knoweth all that ye do. And be not like a woman who breaks into untwisted stands, the yarn which she has spun after it has become strong (Al-Nahl XVI: 92). Abdullah Yousuf Ali says in his note on the above Verse: "of fidelity to the Prophet taken at Aqaba fourteen months before the Hijra and repeated a little later see v.8 and n.705. But the general meaning is much wider. And this may be viewed in two aspects (1) Every path taken, or covenant made is covenant before God, and should be faithfully observed in this it approaches in meaning to v.1(2) in particular, every Muslim makes, by the profession of his faith a covenant with God, and he confirms that covenant every time he repeats that profession. He should, therefore, faithfully observe the duties taught to him by Islam." In Surah Al-Mominun, while defining the qualifications and qualities of Muslims, it is declared: ("And who shepherds of their pledge and their covenants" The other Verse of the Holy Qur'an (17:34) says: i.e. keep your covenant, Lo! of the covenant it will be asked. The Holy Prophet (p.b.u.h.) is also reported to have said, "The Muslims are to abide by their terms and conditions". (Abu Dawud, Sunan, Karachi, Vol. 11, p. 150). Imam Tirmizi has, however, added to the above: "Except the condition that forbids any thing lawful or makes permissible anything prohibited." (Jami' Tirmiza, Karachi, Vol. 1., p, 251). Imam Baihaqqi has further added in his al-Sunan al-Kubra: "That which is in consonance with what is right." The Holy Prophet (p.b.u.h.) has clearly stated in another Hadith: "Any condition that is not in the Book of Allah is void." (Sahih'al -Bukhari Istanbol, Vol. III, p.29). In the light of the above Verses of the Holy Our an and Traditions of the Holy Prophet (p.b.u.h.), it can be easily concluded that an agreement or condition which is contrary to the Injunctions of Islam is not permitted. There are contracts which being against the Injunctions of the Holy Qur'an are void and cannot be enforced. See Surah Al-Baqarah, Verse 275 wherein Almighty Allah permitted trading and has forbidden interest. "As for him who returneth (to riba, interest), such are rightful owners of the Hell-fire. They will abide there. It, therefore, follows that while a trading contract is enforceable in law, a contract of interest or based on interest is not enforceable to the extent of interest." Section 19 provides for the fulfilment of existing obligations. The fulfilment of an agreement is obligatory on every Muslim under the Injunctions of Islam. But its fulfilment must not require any thing or act to be performed which is prohibited by the Injunctions of Islam. Therefore, fulfilment of the obligations arising out of "Riba bearing transaction" cannot be held as legal and in accordance with the Injunctions of Islam. The Holy Prophet (p.b.u.h.) in his last sermon on the event of Haj declared that all transactions of Ribamade in the days of Jahilliyyat have been crushed under his feet. He has written off all the claims of his uncle Abbas of the past, based on Riba. (Al-Jami'li-Tirmizi, Egypt, Vol. V, page

273. Reference may also be made to another Tradition of the Holy Prophet (p.b.u.h.) wherein it is stated: `There is no obedience to the people in .a matter which involves a sinful act to the Creator. So, if the peoples' representatives make a law which is contrary to the Injunctions of Islam its obedience is not obligatory. It is true that Muslims are obliged to accept each and every Injunction of Islam as the Holy Our'an has ordained: '(Ye who believe enter into Islam wholeheartedly and follow not foot step of the Evil one). (Al-Baqarah, II: 208). However, keeping in view the above verse of the Holy Qur'an, Imam Abu Yusaf has derived from it the following dictum: (A Muslim is bound to regulate his conduct according to the laws of Islam wherever he may be. (Dr. Hamidullah: The Muslim Conduct of State, Lahore, page 218 ef. Al-Sarakhsi: Al-Mabsut Vol. X, p.95). In view of the above, if any financial obligation, contract, agreement or commitment relates to Riba, that is, it involves lending and borrowing of loan on Riba, it is not valid, binding or operative to the extent of Riba, such obligation, agreement, contract or promise relates to Federal Government, Provincial Governments, Banks or other financial Institutions, firms, companies registered in Pakistan on the one hand and Pakistan citizens, on the other wherever they may be. Thus the impugned section 19 of the Shari'ah Act to the extent of involving Riba is declared repugnant to the Injunctions of Islam as laid down in the Qur'an and Sunnah of the Holy Prophet (p.b.u.h.). These provisions under challenge, also provide that section 3(2) and section 19 will be enforced notwithstanding any decision of ante, Court including the Supreme Court and the Federal Shariat Court. The said "notwithstanding clauses" also seem violative of the Constitutional provisions contained in Chapter 3A. Commenting on the provisions of Chapter 3A with special reference to Article 203GG the learned Chairman. Mr. Justice Muhammad Afzal Zullah (Now, Chief Justice of Pakistan) of the Shariat Appellate Bench of the Supreme court in the matter reported as Pakistan v. Public-at-Large PLD 1986 SC 240 observed that

'The importance and consequences of a decision rendered by the Court under Article 203-D can well be measured from the fact that the Federal and Provincial Legislatures are bound to make repeal or amend a law as a result and in pursuance of such decision. '(Article 203-D(3)(a). And it is to be done within the period to be specified by the Court (Article 203-1)(2)). Not only this, and notwithstanding whether the Legislature is able to do this or not in such period the law or the provision of law so declared as repugnant to the Injunctions of Islam shall cease to have effect to the extent of the declared repugnancy from the day specified by the Court. The effect rather impact of what is stated above can be visualised from the fact that this special jurisdiction of the Court is notwithstanding anything contained in the Constitution (Article 203-A) and further that no other Court not even the Supreme Court, except when acting in a specified Bench thereof (Article 203-F) in a special appellate jurisdiction (Article 203-G) has such power and jurisdiction. And vis- a-vis the High Courts, it has been declared that subject to Articles 203-D and 203-F the decision of the Court in this special jurisdiction shall be binding on them as well as on all Courts which are subordinate to them (Article 203-GG)." The learned Chairman further observed that

"However, it is pertinent to note that while it would be permissible under Article 203-D(3)(a), to seek guidance from the judgment of the Court, as to how the new law is to be made; yet, it has been left absolutely free and open for the agencies concerned to make. the new law in a manner which according to their judgment will be "in conformity with the Injunctions of Islam", In that eventuality it would be of advantage for them to keep in view all the principles which are essential for the Court, to avoid the possibility of ,repugnancy again. Because the law can again be brought before the Court for similar scrutiny." It has further been observed that

" .under the present Constitutional disposition it is not only the duty of the Federal Shariat Court but also of "the State" under the general provisions of the Constitution, to enact new laws in accordance with the Injunctions of Islam and bring the existing laws also in accord therewith. In addition, the Governments--Central and Provincial as also the respective legislatures have been bound by a specific duty to do so, in pursuance of the declarations of the Court under Chapter 3 -A of the Constitution (Article 203-D(3)(a)). Thus, under the Constitution in particular it is three-fold joint effort and function of the three main limbs of the State to bring into operation the Injunctions of Islam, in harmony with each other though the duty of the Court is to do the necessary scrutiny after every exercise by the Government and the Legislature, if need be." Reference may also be made to an Article written by Raja Amir Akbar, Advocate, published in the Daily Jang, Rawalpindi, April 15, 1992, wherein the learned Advocate, while discussing the provision of Article 2031)(1) of the Constitution stated that-- The Article further states :- In the light of the above, it is evident that the Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court exercise their jurisdiction under Chapter 3-A, which was added by P.O. No.1 of 1980 (Article 3) with effect from 25-6-1980. This Chapter 3A is self-contained and quite distinct from the other provisions of Chapters 1, 2 and 3 of Part VII relating to Judicature in general. The provisions of Chapter 3A "shall have effect notwithstanding anything contained in the Constitution". In result, the judgment of the Federal Shariat Court under Article 203D of the Constitution unless set aside or modified by the Shari'at Appellate Bench of the Supreme Court, is binding on all High Courts and subordinate Courts thereto (Article 203GG). Furthermore, the respective Legislature, Federal or Provincial, as the case may be, is bound to implement such judgment whereby a law or provision of law has been found repugnant to the Injunctions of Islam. Consequently, the Legislature cannot sit in judgment over the decisions of the Federal Shariat Court. It has no power to pass a law brushing aside the judgment of the Federal Shariat Court as to the repugnancy of a law or a provision of law. challenged in this Court or examined by this Court under its Suo Motu jurisdiction under Article 203D(1) of the Constitution. On that ground, too, the provisions of sections 3(2) and 19 are violative of the provisions of the Constitution and are held ultra vires, besides that they are repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah as discussed in detail hereinabove. And lastly, as a guiding principle to our legislature, we would like to refer to the Qur'anic Verse 36 of Surah 33, Al-Ahzab that is:-- "Whenever God and His Apostle have decided a matter, it is not for a faithful man or woman to follow another course of his or her own choice." This obligation, which equally applies to a Muslim individual, ruler, judge, party and the State and its different organs including its functionaries, has been further stressed in the verse: "Those who do not Judge by what God has revealed--those indeed are the evil-doers." In consequence of the above Qur'anic Verses, no temporal legislation, be it substantive or procedural, is valid if it is found to contravene the Injunctions of Islam as contained in the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.). To conclude the discussion, we may refer, at the end, Verses 82-83 and 84 of Surah XVII, which are self-explanatory and read as under:-- "We send down (stage by stage) in the Qur'an that which is a healing and a mercy to those who believe: To the unjust it causes nothing but loss after loss." "Yet when we bestow Our favours on man, He turns away and becomes Remote on his side (instead of coming to Us), and when evil seizes him he gives himself upto despair." "Say: "Everyone acts according to his own disposition: But your Lord knows best who it is that is best guided on the Way." For the aforesaid reasons the provisions of section 3(2) of the Shari'ah Act, 1991, are declared as repugnant to the Injunctions of Islam as well as Chapter 3A of the Constitution of the Islamic Republic of Pakistan. Similarly, the provisions of section 19 of the Shari'ah Act, 1991, to the extent that they relate to "interest bearing transactions" and "the exclusion of the judgments of the Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court" are declared repugnant to the Injunctions of Islam as well as Chapter 3A of the Constitution of Pakistan, 1973, conferring jurisdiction on this Court. And unless they are amended suitably and brought in conformity with the Injunctions of Islam, within six months from today, the said provisions shall cease to be effective from 13th November, 1992. Before parting with the matter, we would like to observe that Maulana Gohar Rahman and Mr. Riazul Hassan Noori have also addressed the Court as jurisconsults, produced by the petitioners and supported the petition. Maulana Gohar Rahman also submitted a written note before the Court. The said written note relating to the provisions challenged in the above petitions we appended to this petition as Annexure-A. In result, the Shariat Petitions Nos.118/L of 1991, 123/1, of 1991, 14/L of 1992 and 15/L of 1992 stand accepted. These are the reasons for our short order, dated 12-5-1992 declaring sections 3(2) and 19 of the Enforcement of Shari'ah Act, 1991 as repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.) M.BA./690/FSC Petition accepted.