PLJ 1990 Lahore 527

(ii) Constitution of Pakistan, 1973--

—-Arts. 203-A, 203-D & 203-H-Provisions of Chapter 3-A-Enactment of-Intention and purpose behind—Determination of—Federal Shariat Court was given adjudicatory jurisdiction while President and Governor were given a mandate to amend law so as to bring such law in conformity with Injunctions of Islam—Held: Intention and purpose behind these provisions (Chapter 3-A) is to bring existing laws in conformity with Injunctions of Islam in an evolutionery manner and not in a radical or revolutionary manner. [P.542JB

(iii) Interpretation of Statutes--

—Constitutional instrument—Interpretation of—Principle for—Cardinal principle for interpretation of constitutional instrument is to ascertain intention of makers of Constitution from words used which must receive their natural and ordinary meaning-Where words clearly admit of only one meaning, that meaning is to be assigned to them even if result be harsh or absurd-If two constructions are possible, that construction which is more reasonable or which ensures smooth and harmonious working of Constitution, should be adopted—Held: Constitution is to be read as a whole and every clause and word of it must be given effect—Held further: Court should avoid a construction which renders any provision meaningless or inoperative.

PLD 1963 SC 486,,/. [Pp.5*>_&541]A

Mr. M.A. Farani, Advocate for Petitioner.

Mr. Shamsher Iqbal Clmghlai, Advocate for H.B.F. Corporation.

Dates of hearing: 6, 7 and 8.5.1990.

judgment

The common questions calling for consideration in these constitutional petitions bearing Nos.153/90, 1202/89, 291/90, 1493/89, 1209/89, 1075/89, 1015/89, 26/90, 354/90,171/90, 337/90 and 53/90 are:-

(/) Whether every statute in Pakistan has not only to satisfy the test that it is in accordance with the provisions in Constitution generally but it has to further fulfil another condition that it is not repugnant to the fundamental principles of Islam as laid down in Holy Quran and Sunnah?

(ii) Whether Article 2-A of the Constitution is self-executing provision in the Constitution and Section 79 and 80 of Negotiable Instruments Act (XXVI of 1981), Section 34-A and 34-B of the Code of Civil Procedure, Subsection (6) and (8) of Section 24 of the House Building Finance Corporation Act (XVIII of 1952) and Section 8 and 12 of the Banking Companies (Recovery of Loans), Ordinance (XIX of 1979) are ultra vires on account of being in contravention of the basic principle relating to 'Ribah' laid down in Holy Quran and Sunnah?

In view of importance of questions involved .in these petitions, they are being disposed of by single judgment.

2. A few uncontested facts necessary for the disposal of these petitions are that the petitioners are borrowers from different financial lending institutions, namely, United Bank Limited; Allied Bank Limited, House Building Finance Corporation and Agricultural Development Bank of Pakistan. These borrowers availed the facility of interest-bearing loans, executed contracts with a condition of repayment of loan with a pre-determined rate of interest; that petitioners have deposited the principal amount and resist the recovery of interest on the sole eround that Article 2-A of the Constitution of Islamic Republic of Pakistan I hereinafter referred to as Constitution) has been made substantive part of the Constitution and so under its impact neither the creditors had right to recover the interest, nor the Court had the authority to decree the payment of interest in view of the unequivocal mandate of prohibition contained in Holy Quran and Sunnah.

3. These petitions were argued by a number of learned counsel. However, the main attack was launched by Mr. M.A. Farani, Advocate. Mr. A.R. Tayyib, Advocate, submitted written arguments with the permission of the Court. On the other hand, the learned counsel appearing on behalf of respondents/financial institutions submitted that the impugned provisions were existing laws and could e only declared as repugnant to injunctions of Islam contained in Holy Quran and Sunnah by Federal Shariat Court. Mr. Farani, the learned counsel for the petitioners raised following points:-

(1) It was contended that Article 2-A was made substantive part of the Constitution by the President vide a Presidential Order (XIV of 1985) which became effective from 2.3.1985. It was contended that after the said date, the Objectives Resolution became the substantive part of the Constitution and so became the controlling provision. On the basis of this argument, it was contended that all other provisions of the Constitution were subordinate to Article 2-A. All the existing laws had to be examined on the touch stone of Objectives Resolution. Elaborating this point further, it was contended that the impugned provisions relating to charging of interest were null and void on account of being repugnant to injunctions of Islam contained in Holy Quran and Sunnah prohibiting the transactions amounting to 'Ribah'. It was further submitted that the 'Ribah' i.e. charging of pre-determined rate of profit on principal amount, was expressly forbidden in devine injunctions contained in Holy Quran and Sunnah and so, in view of Article 2-A such existing laws have lost their legal efficacy. Reliance was placed on Habib Bank Limited Vs. Muhammad Hussain and others (PLD 1987 Karachi 612), Muhammad Sarwar and another Vs. Tlie State (PLD 1988 F.S.C. 42), Sardar All Vs. Muhammad Ali (PLD 1988 SC 287=PLJ 1988 SC 224), Pakistan Industrial Credit and Investment Corporation Vs. Habib Enterprises Ltd and another (1989 CLC 2070), Ittefaq Foundry Vs. Federation of Pakistan (PLD 1990 Lahore 121) and Muhammad Salah-ud-Din Vs. Government of Pakistan (PLD 1990 FSC 1). No other point was urged.

4. Before I proceed to examine the respective contentions of the parties, it is appropriate to notice the relevant applicable provisions in Constitution relating to Islamisation. Articles 2, 2-A are in Part I. Article 2-A was made substantive part in Part I by the order of the President bearing No.XIV of 1985. While Article 31 occurs in Part II relating to fundamental rights and principles of policy.

5. The Articles 227, 228, 229 and 230 find place in Part No.IX relating to Islamic provisions, while Article 203-A, 203-B, 203-D, 203-F, 203-G and 203-GG are in Chapter 3-A relating to Federal Shariat Court. This Chapter was added by way of various Presidential Orders starting from Presidential Order No.I of 1980.

6. 2. Islam shall be the State religion of Pakistan.

2-A. The principles and provisions set out in the Objectives Resolution reproduced in the Annex are hereby made substantive part of the Constitution and shall have effect accordingly.

31.(1) Steps shall be taken to enable the Muslims of Pakistan, individually and collectively, to order their lives in accordance with the fundamental principles and basic, concepts of Islam and to provide facilities whereby they may be enabled to understand the meaning of life according to the Holy Quran and Sunnah.

(2) The State shall endeavour, as respects the Muslims of Pakistan:-

(d) to compile in a suitable form, for the guidance of (Majlis-e-Shoora) (Parliament) and the Provincial Assemblies, such Injunctions of Islam as can be given legislative effect.

(2» When, under Article 229, a question is referred by a House, a Provincial Assembly, the President or a Governor to the Islamic Council, the Council shall, within fifteen days thereof, inform the House, the Assembly, the President or the Governor, as the case may be, of the period within which the Council expects to be able to furnish that advice.

(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 injunctions of Islam, the House, or, as the case may be, the Provincial Assembly, the President or the Governor shall reconsider the law so made.

(4) The Islamic Council shall submit its final report within seven years of its appointment, and shall submit an annual interim report. The report, whether interim or final, shall be laid for discussion before both Houses and each Provincial Assembly within six months of its receipt, and (Majlis-e-Shoora) (Parliament) and the Assembly, after considering the report, shall enact laws in respect thereof within a period of two years of the final report.

203-A The provisions of this Chapter shall have effect notwithstanding anything contained in the Constitution.

203-B In this Chapter, unless there is anything repugnant ii the subject or context-

(b) 'Court' means the Federal Shariat Court constituted in pursuance of Article 203-C.

(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) 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 * * * * * * * * * * *

203-D(1) The Court may, (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 Quran and the Sunnah of the Holy Prophet, hereinafter referred to as the Injunctions of Islam.

(1A) 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 a 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 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 conformity with the Injunctions of Islam; and 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.

203-F(1) Any party to any proceedings before the Court under Article 203-D 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 a Province may be preferred within six months of such decision). The provisions of clauses (2) and (3) of Article 203-D and clauses (4) to (8) of Article 203-E 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.

(2-A) 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.

(2-B) 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).

;3) For the purpose of the exercise of the jurisdiction conferred by this Article, tiiere shall be constituted in the Supreme Court a Bench to be called the Sharial Appellate Bench and consisting of—

(a) three Muslim Judges of the Supreme Court, and

(b) not more than two Uletna 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 penal of Uleina to be drawn up by the President in consultation with the Chief Justice.

203-G. Save as provided in Article 203-F, 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 oftlie Court.

203-GG. Subject to Articles 203-D and 203-F, any decision of the Court in the exercise of Us jurisdiction under this Chapter shall be binding on a High Court and on all Courts subordinate to a High Court).

203-H(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.

6. Now it is appropriate to examine Article 2-A in the context of its historical background. It was 7th March, 1949 when the first Constituent Assembly passed Objectives Resolution. It had nine clauses. The founding fathers who constituted the first Constituent Assembly provided guideline to Constituent Assembly for the purposes of framing the Constitution.

7. It is apparent from reading of Objectives Resolution that it provided directive principles of the State policy. It further provided un-equivocal commitment to the two nations theory rooted in Islam. It declared that the 'sovereignty' belongs to God Almighty; that State shall exercise the delegated sovereignty through chosen representatives. It provided that the State shall in general enable the Muslims to fashion their lives in accordance with teachings of Holy Quran and Hadith. It also made clear that State would be the Federal in nature comprising of autonomous units with such boundaries and powers as may be specified. It also declared that the basic rights like security of person, the security of property, freedom of movement, freedom of assembly, freedom of association, freedom of trade, business or profession shall be guaranteed. It also provided commitment to establish independent judiciary. In short this Resolution provided the blue print of the State of Pakistan.

S. The Objectives Resolution was made substantive part of the Constitution vide Presidential Order No.XIV of 1985 with effect from 2.3.1985. The Objectives Resolution had been the subject matter of examination before the superior judiciary before 2nd March, 1985 and after the said date. It will be relevant to notice the decisions of the superior judiciary dealing with the Objectives Resolution now.

9. The Objectives Resolution came for consideration in Asma Jilani's case (PLD 1972 SC 139). Speaking for the Bench His Lordship Mr. Justice Hamood ur Rehman observed as under.-

the 'cornerstone of Pakistan's legal edifice' and recognized even by the learned Attorney General himself' as the bond which binds the nation"must draw its inspiration". This has not been abrogated by one so far, nor has this been departed or deviated from by any regime, military or Civil".

10. Zia-w-Rehman Vs Tlic State (PLD 1986 Lahore 428) is an authority which was decided by the Lahore High Court on 6lh of July, 1972. Examining theconstitutional position whether Objectives Resolution is a Supra-constitutional document and the provisions of Constitution offending it can be struck down by he Court, it was held by Mr. Justice A.R. Sheikh that:-

"After giving earnest consideration to the arguments on both sides, I find that under the grund norm, as enunciated in Asma Jilani's case, the trust for discharge of sovereign functions has been reposed in the people. They have to exercise their choice in free and fair elections for a Constituent Assembly to frame the Constitution and thus the main purpose of the grund norm is served. For the actual task of framing a Constitution for the country set before the popularly elected representatives of the people, the grund norm is to serve as the external and internal limitation to actual exercise of authority by any sovereign, as postulated by A.V.Dicey. Put differently, a popularly elected Constituent Assembly exercising the delegated sovereignty of Almighty Allah is vested with plenary powers to frame a Constitution to achieve the goal, object and the basic ideology of Pakistan. If, however, the Constituent Assembly fails to fulfil its obligations, the remedy will be the resistance to be offered by the people to accept the Constitution on the political forum in the country and not before the Courts. Constituent Assembly remains supreme not subject to judicial scrutiny as an ordinary Act of the Legislature in the sub- constitutional field. Viewed thus the premises for both sets of arguments that some provisions in the interim Constitution offend against the grund norm or the legal Framework Order (an invalid document not legitimized by the Supreme Court).For the same reason the pre-amble and the Principles of Policy have been rightly described by the Attorney General as basic ideology not actionable before the superior Courts".

The same case was examined by the Supreme Court in State Vs Zia ur Rehman and others (PLD 1973 SC 49). Speaking for the Court his Lordship Mr. Justice Hamood-ur-Rehman, the then Chief Justice of Pakistan observed as follows:-

"I regret to have to point out that this is not correct. All that was said by me in my judgment in that case (page 182) was as follows:-

"In any event, if a grund norm is necessary for us I do not have to look to the Western legal theorists to discover one. Our own grund norm is enshrined in our own doctrine that the legal sovereignty over the entire universe belongs to Almighty Allah alone, and the authority exerciseable by the people within the limits prescribed by Him is a sacred trust. This is an immutable and unalterable norm which was clearly accepted in the Objectives Resolution passed by the Constituent Assembly of Pakistan on the 7th of March, 1949. This Resolution has been described by Mr. Brohi as the "corner-stone of Pakistan's legal edifice" and recognised even by the learned Attorney-General himself "as the bond which binds the nation" and as a document from which the Constitution of Pakistan "must draw its inspiration". This has not been abrogated by any one so far, nor has this been departed or deviated from by any regime, military or civil. Indeed, it cannot be, for, it is one of the fundamental principles enshrined in the Holy Quran."

It will be observed that this does not say that the Objectives Resolution is the grund norm, but that the grund norm is the doctrine of legal sovereignty accepted by the people of Pakistan and the consequences that How from it. I did not describe the Objectives Resolution as "the cornerstone of Pakistan's legal edifice" but merely pointed out that one of the learned counsel appearing in the case had described it as such. It is not correct, therefore, to say that I had held it, as Justice Ataullah Sajjad has said in his judgment, "to be a transcendental part of the Constitution" or, as Justice Muhammad Afzal Zullah has said, to be a "Supra Constitutional Instrument which is unalterable and immutable".

"There is no mention in these observations either of the Objectives Resolution being the "grund norm" for Pakistan. The "grund norm" referred to by us was something even above the Objectives Resolution which as Sajjad Ahmad Jan J.put it "embodies the spirit and the fundamental norms of the constitutional concept of Pakistan". It was expressed by the Objectives Resolution itself to be translated into the Constitution. Even those that adopted the Objectives Resolution did not envisage that it would be document above the Constitution. It is incorrect, therefore, to say that it was held by this Court that the Objectives Resolution of the 7th of March, 1949, stands on a higher pedestal than the Constitution itself. The views of the minority of the learned Judges in the High Court, in so far as they have sought to read into the judgments of this Court something which is not there, cannot, therefore, be supported."

11. The same view was reiterated in Niaz Ahmad Klian Vs. Province of Sind (PLD 1977 Karachi 604).

12. Now it is the stage to examine the cases decided by the superior judiciary after the Objectives Resolution was made the part of the Constitution.

13. In Messrs Bank of Oman Lid Vs Messrs East Trading Co. Ltd and others (PLD 1987 Karachi 404), the question considered was whether the provisions of Muslim Family Laws Ordinance were repugnant to the injunctions of Islam as laid down in the Holy Quran and Sunnah. His Lordship Mr. Justice Tanzil-ur-Rehman after thorough examination of the case law and the various Articles of he Constitution, held that Article 2-A of the Constitution, was over-riding provisions of the Constitution and the Court had the authority to determine the vires of any law on the touch-stone on the basic principles of Islam as laid down in the Holy Quran and Sunnah.

14. This view was reiterated in Habib Bank Ltd Vs. Muhammad Hussain and others (PLD 1987 Karachi 612), Muhammad Bachal Memon Vs Government of Sind through Secretary, Department of Food and others (PLD 1987 Karachi 296) and Irshad H. KJran Vs. Mrs. Paiveen Ajaz (PLD 1987 Karachi 466).

15. The question cropped up for consideration in SardarAli Vs Muhammad Ah (PLD 1988 SC 287 =PLJ 1988 SC 224). In this case the question involved arose out of pre-emption cases and the Supreme Court considered the effect of the judgment of the Federal Shariat Appellate Court in Malik Said Kamal's case (PLD 1986 SC 360 = PLJ 1986 SC 576). In the said case certain provisions of N.W.F.P. and Punjab Pre-emption Act and Martial Law Regulation No.115 regarding the right of pre-emption of tenant were declared repugnant to the injunctions of Islam. The decision was to take effect from 31.7.1986.

16. The contention was raised that the Objectives Resolution was made substantive part of the Constitution and so the basic principles of Islam as enshrined in Holy Quran and Sunnah had been enforced irrespective of any adjudicatory decision by the Federal Shariat Court; that every Court had a right to enforce the principles of Islam in preference to the provisions of existing law. His
Lordship Mr. Justice Muhammad Afzal Zullah, speaking for the Court, chose not to answer the question on the premises that no adequate assistance was furnished by the learned counsel appearing on behalf of the parties in order to resolve the anamolies between Article 203 and Article 2-A the of the Constitution. However, the observations of His Lordship contained in para Nos.13, 14, 37 and 48 are
worth noticing, for the purpose of answering the question involved in this petition:-

13. "The afore-discussed aspect of the Islamisation of laws through the combined effort of the superior Courts and the legislature finds a pronounced projection in Articles 203-G and 203-GG which lays down that except to the extent provided in Article 203-F (appeal to the Supreme Court and decision thereof by its Shariat Appellate Bench), "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". It is also provided that subject to Article 203-D and Article 203-F any decision of the Court in exercise of its jurisdiction under Chapter 3-A of the Constitution shall be binding on a High Court and on all Courts subordinate to a High Court. As it must have by now been understood "the Court" as defined in Article 203-B(b) read with Article 203-F(2) and (3) would mean the Federal Shariat Court and/or Supreme Court in its Shariat Appellate Bench. The Scheme of Chapter 3-A in general context has also been explained by Shariat Appellate Bench of this Court in the recent case Pakistan Vs Public at large (PLD 1980 SC 240).

14. It is clear from the fore-going analysis and interpretation of the relevant Constitutional provisions that the existing laws were to continue in full operation and effect, notwithstanding the Islamisatjon process. All proceedings including appeals were to be decided and concluded under the existing laws. They were to cease having effect only from the day specified by the Court in that behalf. The rights accrued under those laws by virtue of their continued operation, were not affected. Any other course, as is illustrated by the facts of those cases, would have been unfair'.

37. 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 Constitutional position by virtue of Article 2-A of even without its being 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 pri/na facie create bar of various types for treating the 1949 Resolution as a self-executory Instrument enfrocible by the Courts, for the change of the existing statute law into Islamic enforcible law, over and above the methods envisaged in various Constitutional provisions. Article 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 form 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 over-riding cffcct,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 Article 203-D and 203-F by virtue of the definition of law in Article 203-B(c) 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 by-passing the specific afore-quoted barring provisions and Chapter 3-A (as interpreted earlier), except for the claim thai '.he Resolution would override the same. These questions need to be answered notwithstanding the facl lhal the superior Courts in Pakistan ^ have since lorn; applied the Muslim Law and Principles in field of interpretation as distinguished from the change of stalute law.

48. As already pointed out no serious attempt has been made at the Bar to reconcile this submission of Article 2-A with the other relevant provisions of the Constitution which prima fade lend to creale bar even if not an unsurmouniablc one. They, amongst others are, Article 30(2); 203-A, 203-G and 22"^?(2). Again it has to be remarked that on this aspect enough assistance to our entire satisfaction on this delicate and very imporlant issue was not rendered: as, would appear from the afore quoted general submissions made at the Bar. Be lhal as il may, il would not be necessary to make any more observations on this aspect lor ihe lime being excepl lhal the Resolution i> an important instrument and "embodies the spiril and ihe Fundamental norms of the^ Constitutional concept of Pakistan", a phrase used in the case of Asma Jilani. In limes to come, much more would be said about its contents, value and importance, as the repository of. every high principles of Constitutional and ideological importance. One of them, for example the sovereignty of Allah was given concrete meaning and applied as such in lhal case. For the present, there is no need to go into these questions any further except to reilerale ihe observations in that case."

17. Habib Bank Limited Vs. Messrs Textile Mills Lid and 3 others. (PLD 1989 Karachi 371), is an authority for the proposition lhat Objectives Resolution despite addition of Article 2-A is not still self-executory Article. His Lordship Mr. Justice Mainoon Ka/i observed as follows:-

I am accordingly of the view thai the provisions of the Objectives Resolution read with Article 2-A of the Conslitulion cannot be given effect to by the Courts inasmuch as lhat no law in Pakislan can be tested by the Courts on (he touch-stone of the Objectives Resolution to bring it ,*— in accord with the injunctions of Islam except within a limited sphere, as pointed out above, and the Courts in Pakistan are under a moral and legal obligation to give effect to the law in force in Pakistan. Consequently, even if the contention of Mr. Manji that charging of interest is prohibited by Islam, is accepted, still the laws in force in Pakistan permitting the plaintiff to charge interesl on the principal amount due against the defendant must be given effecl to".

18. In Mian Aziz A. Sheikh Vs Tlic Commissioner of Income Tax Investigation, Lahore (PLD 1989 SC 613), Mian Aziz A. Sheikh increased the dower money of his wife to Rs.10,00,000/- and transferred the share of value of Rs.6,40,000/- to his wife. She received dividend of Rs.43,527/-. The Income Tax Officer included this sum in the income of Mian Aziz A. Sheikh holding that the transfer of shares was not adequate consideration within the meaning of Section 63-A (iii) of the Income Tax Act. Appeal by Mian Aziz. A. Sheikh failed before the Income Tax Officer. In the constitution petition the High Court did not interfere. On appeal the Supreme Court accepted the appeal by holding that the Courts were required 'n> applv the common law of Islam in such cases where no concrete Auction wa- :>ro\i,Ld bv she statute. Dealing with the effecl of Article 2-A, His hip Mr. Justice Muhammad Al/al Znllali. the C'hicf Justice of Pakistan, •;;nil lor [he Court, uavc the iollowim: ob-ervalions:-

Ariicle 2-A read with Objectives Resolution of ihe Con-iilulicM accouline to some jurists, as \vcli as some decided cases, was enacted on account oi an observation in the judgment ol this Court in the case. 77.v Stale V. Ziiiiir Rehman ami others (PLD 1973 SC' 40). According io others, it always lormcd part ol the constitutional set ol Pakistan. Be that as it may. the present position is that Article 2-A read \vith Objecii\cs Resolution: the Principles of Policy (which are being enforced by ihc superior Courts in an indirect manner—See. Miss Benaxir BhuUoo's case (PLD 1°S8 SC 416): Chapter 3-A. PartA'I! of the Constitution, \iz-a-\iz the functioning of the Federal Sharial Court and the Shariat Appellate Bench of this Court; and Article 22"; and cither provisions of the Constitution relating to Islamisalion, are being interpreted and applied in various situations. This Court, no doubt, has for the time being, lell open ihe final verdict on the combined effect of these constitutional set up in so far u> the question ol Islamisalion is concerned—See Sardar Ali's case ! PLD 1'Ks¹ SC 2-T--= PL.I 10SS SC 224).

Nevertheless in individual cases wherever necessary, the superior Courts are alrcadv eneaecd in the process of inlcrpreUtlion and adjudication in this filed. The judicial wisdom is accumulatine. experience is being uaiiicd and considerable discussion in judgments and otherwise is goiniz 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 slated and would not be acted upon.Article 227(1) not only requires that all existing law- shall b: brought in conformity with the injunctions of I-hm but it a'-o command-as a mandate thai 'No law shall be enacted which is repugnant to -uch injunctions'. It is a command to all law-makinn bodies and lunclion.iries II will be anomalous lo assume that although in Article 22"" iher^ ^:s a command lo all the legislative bodies not lo enact any law which i-repimnant lo Islamic Injunctions, nevertheless il permit- the funciionanc-ol the Slate at all levels to go on enacting rules like tho-e ol evidence which have the force of law and which are repugnant lo the Injunction- oi' Islam, it is in this context thai the curlier made remark* about ilie conducl f^:'Stale functionaries in Pakistan get illustrated, i.e. none would i ver ns^c'-t that he has power or would lay down a rule liaving she force of law. which is runtffmni to Injunctions of Islam. In the context of the present case, nailier 'he icffslaiiii'c, under the command contained in Article 227(1) has the •\i\\ c>'!l' c-uci u law in a/n field including those relating to Taxes, which is '••.fLi'jian' to Injunctions ot Islam, nor anv oilier functionary including the /•:i('":t Ta.\ Authorities has an\ such power to lay down anv un-l\lanuc ••;i,V. ;i.':,\ •': ^::e,-. a l(trce o¹ law.

Thi.- i^ in addition to the reasoning which prevailed in ihe Muhvmmatl Bi.Jiir \'s. The State (PLD 1982 SC I3'»i which had approved the judgment of the Lahore High Court in the case of//;,/'/ M:a/n Khan Vs. Additional Dislria Jiuli>i; L.\a/!;>tir and others (PLD 1976 Lah.930). The approach then was that although it was not possible for the Courts to enforce Islamic Law in those fields which were fully occupied by statutory dispensation yet, it was not only open to the Courts but they were duty bound to apply common law of Islam, its jurisprudence and philosophy, in fields which were not occupied by statutory dispensation. Various examples of those subjects are enumerated in the concluding part of the judgment of Haji Ni/am's case".

19. This question is to be looked from another angle i.e. our Slate has a written Constitution. The Constitution provides the distribution of power between various organs of the State; thai legislature is given the task of making laws; the judiciary is given the task of intcrprctling the laws while the executive has been apportioned the function of implementing the law with the power of the State. This trichotomy is expressly provided in the Constitution. I can safely say that our Government is not the Government of persons, dynasties but the Government under the Constitution with enumerated powers. A few words may be said about the nature of the Constitution. The celebrated constitutional writer Wade & Philips in 5th Edition observed as lollov.s:-

"By a Constitution is normally meant a document having a special legal sanctity which sets out the frame work and the principal functions of the organs of Government ol a State and declares the principles governing the operation of those organs. Such a document is implemented by decisions of the particular organ, normally the highest Court of the State, which has power to interpret its contents".

In Murbwy Vs Madison (1S03) 1 Crunch 137 it is observed as follows:-

"The Constitution is either a superior, paramount law, unchangeable by ordinary means, it is on a level with ordinary legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts, on the part of the people to limit a power in its own nature illimitable".

20. A constitutional instrument has, in the first instance, to be interpreted in the same manner as any other statue and the cardinal rule here is that the function of the Court called upon to interpret any of its provisions is to ascertain the intention of the makers of the Constitution from the words used which must receive their natural and ordinary meaning. Where the words arc clear and admit
of only one meaning, that meaning is to be assigned to them even if the result be harsh or absurd, as the Court is not concerned with the policy of a statute. If two constructions are possible, that construction should be adopted which is more reasonable or which will ensure a smooth and harmonious working of the Constitution, or which will save a statute from invalidity, or not offend against a fundamental right. A Constitution is to be read as a whole, and every clause and word of it must be given effect. The Court should avoid a construction which renders any provision meaningless or inoperative and must lean in favour of a construction which will render every word operative rather than one which may make some words idle and nugatory. A Constitution ought to be interpreted as an organic whole, giving effect to its various parts and trying to harmonise them, so as to make it an effective and efficient instrument for the governance of the country. Reference may be made to Fa/lul Qadecr Chowdhry's case (PLD 1963 SC 486).

21. There is yet another important rule of interpretation of a constitutional instrument that the Constitution may comprise of both self-executing provision and the provisions which are not self-executory. Dealing with this aspect, the following rule contained in Treatise on Constitutional Law by Cooley's Constitutional Limitations is woYth cxamination:-

"But although none of the provisions of a constitution are to be looked upon as immaterial or merely advisory, there are some which, from the nature of the case, are as incapable of compulsory enforcement as are directory provisions in general. The reason is that, while the purpose may be to establish rights or to impose duties, they do not in and of themselves constitute a sufficient rule by means of which such right may be protected or such duty enforced. In such cases, before the constitutional provision can be made effectual, supplemental legislation must be had; and the provision may be in its nature mandatory to the legislature to enact the needful legislation, through back of it there lies no authority to enforce the command. Some times the constitution in terms requires the legislature to enact laws on a particular subject; and here it is obvious that the requirement has only a moral lorce; the legislature ought to obey it; but the right intended to be given is only assured when the legislation is voluntarily enacted. Illustrations may be found in constitutional provisions requiring the legislature to provide by law uniform and just rules (or the assessment and collection of taxes; these must lie dormant until the legislation is had; they do not displace ihcMaw previously in force, though the purpose may be manifest to do away with it by the legislation required".

22. Guided by these principles of interpretation relating constitutional instrument and weighty observation of His Lordship Mr. Justice Muhammad Afzal Zullah in Sardar's case. I herein proceed to examine the provisions relating to Islamisalion in the Constitution. As already indicated that Article 2 and 2-A are embodied in Part I which is Chapter introductory in nature to the Constitution.
Article 31 has been inserted into Chapter II wherein the guideline/ideological orientation of the Stale have been provided. By virtue of Article 31, the State had been mandated to make the teachings of Holy Quran and Islam compulsory, to facilitate the learning of Arabic language and to promote unity, observance of Islamic moral standards. Under Article 28 a Council of Islamic Ideology, a ery
high institution was constituted to make recommendations to Majlis-c-Shoora (Parliament) and the Provincial Assembly as to ways and means to enable the Muslims of Pakistan to live individually and collectively in accordance with principles and concepts of Islam as enunciated in Holy Quran and Sunnah and, to advise the House, Provincial Assembly, the President or the Governor on any question referred to its Council as to whether a proposed law is or is not repugnant to Injunctions of Islam and further to make recommendation as to measures for bringing existing laws into conformity will: the injunctions of Islam and stages bv which such measures should be brought into effect. This Council was further mandated to submit its final report within seven years of its appointment and also to submit annual interim report. It was further specified in the Constitution that the report shall be laid for discussion before both the Houses and each Provincial Assembly which shall enact laws in respect thereof within a period of two year* ol 'the receipt of final report.

23. B\ Presidential Order No.I of I'M), Constitution (Amendment) Order, U'SO, Chapter 3-A was suhstituled in part VII ot the Constitution. Under Article 20>-A u was provided that the provision ol this Chapter shall have effect noHMthstandinsi anvthing in the Consiiuilion. Under Article 203-C, Federal Shariat Court was constituted and under Article 203-D it was given power to examine and decide the question whether or not any law or provision of law is repugnant to I he Injunctions of Islam as laid down in Holy Quran and Sunnah. It the Federal Shariat Court comes to conclusion that any law or provision o.f the law is contrary to injunctions ol Islam, it is required to give reasons for holding such opinion, the extent to which the law or provision was so repugnant and specify the
clay on which the decision shall take effect. The President or the Governor were also further required to take steps to amend the law. so as to bring such laws or provision in conformity with Injunctions of Islam. It was further provided that such laws or provisions shall to the extent of adjudication cease to have effect on the day on which the decision of Court takes effect. Under Article 203-F the judgment of Federal Shariat Court was made appealable to Federal Appellate Sharial Bench of the Supreme Court. In this Chapter another two Articles which are of importance are Article 203-G and Article 203-H. Under Article 203-G, the jurisdiction of the other Courts including Supreme Court and High Court was ousted to entertain any proceedings or exercise any power or jurisdiction in
respecl of any matter within the power or jurisdiction of this Court. While under Article 203-H it was provided that the existing law shall continue till the petition is adjudicated by the Federal Shariat Court

24. It is apparent from the examination (if Article 227. 229 and 230 relating to the Council ol Islamic Ideology thai the Council \vas given a nlandate to give recommendation relating to bringing the existing laws in contormily with the Injunctions ol Islam and the President, the Governor and the appropriate legislatures were given the duty of amending or enacting laws in conformity with the recommendations ol the report ol the Council ol Islamic Ideology.

25. Similarly, a bare readme of Article 203-D shows that the Federal Sharial Court was given adjudicates v jurisdiction, and in sub clause (3) of the Article the President and the Governor was ghen a mandate to lake the step to amend the law so as to bring such law or provisions in conformity with the Injunctions ol Islam. The conspicuous feature of Article 203-D is that in sub clause (b) of clause
3 of this Article, it was provided that such law or provision shall to the extent to which it has been adjudicated to be repugnant cease to have died on the day on which the decision of ihe Court lakes effect. Under Article 203-H the effect of the judgment of Federal Sharial Court was withheld till the decision of appeal by the Federal Sharial Appellate Bench of the Supreme Court. I am, therefore, clear in
my mind that the intention and purpose behind these provisions is to bring the existing laws in conformity with the Injunction* of Islam in an evolutionary manner and not in a radical or revolutionary manner. By Article 203-A the provisions of this Chapter shall h:i\e to be given effect notwithstanding anything contained in the Constitution.

2(>. The up-shot of examination of afore-noted provisions of Constitution leads to conclusion that Article 2-A is not a self-executing provision in the Constitution. It is to be rendered ellectual by appropriate legislation to be made bv ilv Parliament (Majlis-e-Shoora). an appropriate legislature in conlormity with the expert opinion of the Council ol Islamic Ideology and the decision ol Federal j Sharial Court/Federal Sharial Appellate Bench of! he Supreme Court. The object and intention behind these provisions is to seek the ultimate object ol enlorcing provisions of Shariat without causing immediate and quick dislocation. There is no cavil with the fact thai Hie cieo:! .•- .'!u life ol international monetary system. Our country is also unlorlunalely iniervoven with iniernaliona), imperialist monetary system being the recipient of loans and aids from developed countries. The intention of the Constitution has been to create ihc forum of Council of Islamic Ideology and Federal Sharial Court to give the opinion alter extensive deliberation and a Federal Sharial Court has been vesled with adjudicatory jurisdiction to render the decision having the effect of crazing the existing laws found to be repugnant to injunctions of Islam from the statute book. To my mind this mandate is scientific, evolutionary, and had to be achieved through the mechanism provided in the Constitution. On the principle of harmonious construction. I am. therefore, clear in may mind that Article 2-A is not self-executing provision in Consiiiulion and ihis Courl had no jurisdiclion to test any lav., jtaiiHe or provision ol law on yard-stick of Objectives Resolution. With due respect to scholarly approach ol His Lordship Mr. Justice Tanzil-ul-Rehman and Mr. Justice Wajih-ud-Din. I am not in agreement with iheir view lhal Article 2-A is a sell-executory proviMon.

2~!. In the light of the fore-uoini: analysis. I find no merits in these petitions, which are dismissed, leaving the parties to bear own cosls.

28. Before parting wilh ihis judgment, 1 feel it necessary to slate that by this opinion, I do not mean to undervalue or undcr-assess the value of the Objectives Resolution. The Objectives Resolution is ihe spirit of ihe Consiiiulion. Il has been propelling; lorce in the creation ol the country. I am, therefore, clear thai the Slate functionaries including judiciary is under a statutory duty to follow the common law ol Nam in the fields where there is no statutory dispensation and in field where the Slate functionaries had to pass orders in exercise of their discretionary