P L D 1992 Supreme Court 153 (PLP)

JUSTICE SHAFIUR RAHMAN, MEMBER

The Federation of Pakistan has appealed as of right under Article 203-F(1) of the Constitution of the Islamic Republic of Pakistan, 1973 against the judgment of the Federal Shariat Court dated 15-6-1989 whereby, on a Petition filed by the respondent seeking the declaration that section 294-A of the Pakistan Penal Code was in part repugnant to the injunctions of Islam, it not only held that part of that section of the Pakistan Penal Code to be repugnant to injunctions of Islam but also proceeded to examine the contents of section 294-B of the Pakistan Penal Code and the Scheme of the Prize Bonds enforced in the country and held them also to be repugnant to the injunctions of Islam.

2. Hafiz S.A. Rahman, Advocate, the learned counsel representing the appellant has confined his challenge during the course of arguments only to the finding of the Federal Shariat Court in so far as the Prize Bonds Scheme is concerned. The challenge to the finding is that the Prize Bond Scheme is a fiscal statutory instrument and as such was immune from challenge and examination by the Federal Shariat Court on a Petition that was filed in 1984, in view of Article 203-B(c) of the Constitution defining `law' but excluding for a period of ten years from the commencement of Chapter 3-A of the Constitution, any fiscal law from the definition of law open to challenge on the ground of repugnancy. The period of ten years expired on 25-6-1990. On merits also, the finding that the Scheme of Prize Bonds is repugnant to the injunctions of Islam has been disputed.

3. On the 18th of April, 1984, the respondent Shaikh Mushtaq Ali filed a Petition under Article 203-D of the Constitution of Pakistan challenging only the provision of section 294-A of the Pakistan Penal Code in the following words: "Portion of Section 294-A of Pakistan Penal Code, put in Bracket and underlined SECTION 294-A "WHOEVER KEEPS ANY OFFICE, OR PLACE FOR THE PURPOSE OF DkAWING ANY LOTTERY (NOT BEING A STATE LOTTERY OR A LOTTERY AUTHORISED BY THE PROVINCIAL GOVERNMENT) SHALL BE PUNISHED WITH IMPRISONMENT OF EITHER DESCRIPTION FOR A TERM WHICH MAY EXTEND TO SIX MONTHS, OR WITH FINE, OR WITH BOTH." THAT the above-mentioned provision of Law amounts to mixing of right .with wrong and is a clear contradiction with the following provision of the Holy Quran ? "

4. While examining this provision, the learned Judges of the Federal Shariat Court adopted the ordinary dictionary meaning of `Lottery' and came to the conclusion that not all Lotteries were prohibited in Islam. The sort of Lotteries found permitted by Islam were as mentioned in Chapter 37 V. 139 to 141, Chapter 3, V. 44, Chapter 68 V. 48 to 50 of the Holy Quran. The Court concluded as hereunder: "Thus we find two contradictory forms of lotteries and in that situation it is necessary that a test be devised to see as to which one is permitted and which is not. A scrutiny of the above verses and traditions would show that in the approved forms no one should have any personal right or vested interest in the matter and no one was to be deprived of what he already had or contributed in that process. Further, if the exigency of a situation dictated that some out of them had to forego any right, the solution was to make not arbitrarily but through drawing of lots, in the absence of any other valid or agreed form as in the case of Hazrat Younas. Again, wherever a donor, grantor or a man in authority had to select some of those persons who had equal footing in order to confer some right, privilege or concession on them, the matter could be decided by drawing of lots. Such a form of lottery in such cases will be permissible. However, wherever it was a question of causing loss to some in the drawing of lots with the result that others would benefit at the cost of those who lost the lottery, it will be the prohibited type." The Court thereafter proceeded to examine the prevalent forms of the Lotteries and particularly attended to those operated for charitable and philanthropic purposes, but these were held to be repugnant to the injuctions, of Islam because the incentive provided to the investors was not the profit accuring on the investment but the disproportionate prizes distributed by drawing of lots. Besides, the attraction was not so much to the lending of a helping hand to charitable and philanthropic purposes but to avail a chance at prizes detracting thereby the commandment of the Holy Quran on the subject. The Scheme of Prizes Bonds was also examined, and though in such a Scheme the investor's money is safe arid intact, the prizes being related to the interest generated from the capital so accumulated it was held to be equally repugnant to the injunctions of Islam notwithstanding that it could be demonstrated that it was for a definite purpose and for the benefit of the community and State as such.

5. The Court also proceeded to examine of its own, section 294-B of the Pakistan Penal Code and divided it into two parts; one permissible according to the injunctions of Islam and the other not so. The permissible group covered by this section was of the those products which were sold for a price and additional product was given as an incentive, the same or other commodity either in larger quantity or in bulk without any scheme of drawing of prizes or lots. This was held to be a part of the sale because the purchaser knows what he is purchasing and the vendor knows what he is offering for sale and what is its price. The price being known and the property being sold available for inspection no element or risk of chance was involved. Such a sale, though induced and publicised with a reward to attract customers was not hit by any provision or injunctions of Islam. As regards the prohibited category, it included those where certain tickets, coupons or tabs were found or given on purchase of the product which led further to the drawing of lots or these by themselves exchangeable for known products. In such cases the inducement is by an uncertain and unknown event, depending on chance and such a promotion of sale was clearly hit by the injunctions of Islam, generally prohibiting gambling, wagering and swearing etc.

6. On these findings supported extensively from the injunctions of Islam/Quran and the Sunnah of the Holy Prophet (PBUH), the Federal Shariat Court held sections 294-A and 294-B of the Pakistan Penal Code and the Scheme of the Prize Bonds to be opposed to the injunctions of Islam, at the same time limiting the direction to the President to take steps to amend sections 294-A and 294-B of the Pakistan Penal Code suitably on or before the Ist of December, 1989 failing which they shall cease to have effect. The statutory instrument relating to Prize Bond was not struck down or ordered to be suitably amended.

7. The word `lottery' used in section 294-A of the Pakistan Penal Code introduced in the Penal Code in the year 1870 has not been legally defined. The dictionary meaning of the word `lottery' came up for consideration in Taylor v. Smetten (1883) 11 Queen Bench Division 207 and was dealt with. as hereunder: "In Webster's dictionary a lottery is defined to be a "distribution of prizes by lot or chance," and a similar definition is given in Johnson; such definitions are in our opinion correct, and in such sense we think the word is used in the statute, and in this view we are justified by the language of some of _ the earlier statutes directed against unlawful games and lotteries."

8. This dictionary definition of lottery has come to acquire a legal meaning for the purposes of section 294-A of the Pakistan Penal Code. Section 294-A of the Pakistan Penal Code prohibits lottery except were it is operated or conducted as a State Lottery or is authorised by Provincial Government. Lottery of a particular description is hit by injunctions of Islam is undisputed. There is yet a category of Lotteries which are not prohibited by injunctions of Islam. A definition of Lottery which is sought to be prohibited in the context of Islamic injunctions is, therefore, called for, so as to leave others outside the purview of prohibition and to distinguish them. The Federal Shariat Court in the impugned judgment has reproduced a number of instances where decision by drawing of lots may be permissible in the modern context as was earlier. No exhaustive list can be provided but where a contentious matter is required to be decided and there are no vested rights involved or statutory rules available, for determining eligibility and priority, such a, recourse to lotterv may be permissible. However, where vested rights are involved, where guidelines for the exercise of public power are readily ascertainable or where some form of property is put at risk, lottey cannot b and is not an approved system according to the injunctions of Islam as a mod of decision. 9: So far as the issue of prize bonds is concerned, the Federal Sharia Court dealt with the subject and while discussing the matter of prize bonds, the Court concluded as hereunder: "The net result is that luring people to contribute for pious any charitable causes on the temptations of monetary and wordl; gains in such schemes would not only amount to paying exorbitant interest in that form but also defeating the Qurani~ dictates."

10. The Scheme and Accounting Procedure in respect of issue o~ National Prize Bonds describes the Scheme as hereunder: "This Bonds will be called the National Prize Bonds. The Bonds will be issued as a Central Government Loan, as a form of Government Security, which would give investors a chance of winning a prize, instead of yielding them interest. The bonds will be issued by the Government of Pakistan with effect from Ist October, 1960 and w:11 remain on tap till such time as the Government notifies closure of their sale in the Gazette of Pakistan. This and the further provisions of the Scheme clearly show that it has been given effect to, is operated, managed and controlled under a statutory instrument which is fiscal in character. It appears to have been issued in 1956 or near about and amended thereafter from time to time. The portion reproduced above describing the Scheme remains unamended todate.

11. As pointed out earlier in the judgment, the petition filed in the Federal Shariat Court on 18-4-1984 which led to the impugned decision, did not directly or indirectly attack the Prize Bonds Scheme. It was during the course of the proceedings and while examining the repugnance of section 294-A of the Pakistan Penal Code that the Federal Shariat Court itself proceeded to examine the Prize Bonds Scheme and called certain witnesses in order to ascertain its nature, philosophy and implementation. The Presidential Order No. 1 of 1980 which is Constitution (Amendment) Order, 1980, for the first time introduced on the 27th May, 1980 Chapter 3-A of the Constitution. It is a complete Code by itself. It establishes an exclusive Court to deal with specified matters and to grant remedies in forms specified on which consequential action is to be taken by the authorities nominated therein. The whole of this Chapter is to take effect notwithstanding anything contained -in the Constitution. It permits the Federal Shariat Court and enjoins upon it to examine law with a view to determine whether it is repugnant to the injunctions of Islam or not. Law has been defined so as tc limit and control the general and ordinary meaning of law and it reads a; hereunder:- "`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 three 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;"

12. By a subsequent amendment, the expression "three years" was substituted by "ten years". A fiscal law, therefore, would not qualify, under this definition of `law' till 26th of. May, 1989, as available for examination and challenge under Chapter 3-A of the Constitution. A jurisdictional bar would exist. The record of the judgment shows that the hearing of this matter took place in the Federal Shariat Court on 30-6-1987, 19-2-1989, 20-2-1989 and 21-2-1989 i.e., at a time when the Federal Shariat Court was not competent to examine the question or adjudicate on it. The decision was given on 15-6-1989 when in fact the jurisdiction in the matter was possessed. May be, it is for this reason that the Federal Shariat Court examined the scheme of Prize Bonds but did not examine whether it was statutory fiscal instrument or not, and whether it had jurisdiction at the relevant time to examine it, recorded the finding but did not give the declaration or the direction as it was required to do under Article 203-D(2) and 203-D(3). It only directed that if the amendment in sections 294-A and 294-B of the: Pakistan Penal Code is not made to conform to the decision of the Coui,~they shall cease to have effect. No mention of the Prize Bonds Scheme was made, though the finding, as reproduced above, was definitely recorded that it was against the Ouranic injunctions.

13. As the matter happened to be outside the jurisdiction of the Federal Shariat Court at the time when the matter was examined, the findings recorded in the form in which it have been recorded with regard to the National Prize Bonds Scheme could not be recorded. Hence, we accept the appeal only to the extent as is being challenged before us namely, the finding recorded with regard to the Scheme of National Prize Bonds and its being against injunctions of Islam and set it aside. The appeal succeeds only to this extent. In other respects it is dismissed. The amendments directed by the Federal Shariat Court in sections 294-A and 294-B of the Pakistan Penal Code be made till 30th June, 1992. ORDER OF THE COURT The Court unanimously holds that- (1)??????? Section 294-A of the Pakistan Penal Code in so far as it exempts "State lottery or a lottery authorized by the Provincial Government" is rerpugnant to the injunctions of Islam; (2)??????? Section 294-B of the Pakistan Penal Code in so far as it by its generality prohibits free trade in commodities on fair market price also, is repugnant to the injunctions of Islam. The Court holds by a majority that the findings and observations' recorded by the Federal Shariat Court with regard to the National Prize Bonds Scheme being repugnant to the injunctions of Islam are without jurisdiction in view of the bar contained in Article 203-B(c) of the Constitution and sets it aside. The appeal succeeds to this extent only. Necessary steps be taken by the 30th of June, 1992 to give effect to this decision failing which the aforesaid portions of sections 294-A and 294-B of the P.P.C. shall cease to have effect. M.BA./F-234/S ??????????? Order accordingly