Essa E.H.Jafar Vs. Federation of Pakistan

IN T1-I5 FEDERAL SHARIAT COURT

( ORIGINAL JURISDICTION )

PRESENT

Mr. Justice Aftab Hussain Chief Justice Mr. Justice All Hussain Qazilbash Judge Mr. Justice Zahoorul Haq Judge Mr. Justice Ch. Muhammad Siddiq Judge Mr. Justice Malik Ghulam All Judge Mr. Justice Fri Muhammad Karam Shah Judge

SHARIAT PETITION NO. 24/K OF 1979

Essa E.H. Jafar Petitioner

Vs

Federation of Pakistan Respondents & others'.

For the Petitioner. M. Ishaq Ahmed, Advocate.

For the Federation of Dr. Syed Riazul Hassan Gillani, Pakistan advocate assisted by Mr.Dastgir GhaziT, Advocate.

For Government of Hafiz S.A. Rehman r Advocate. Punjab.

For Government of Sind Mr. Saeed A. Sheikh, Advocate General assisted by M.M.Bilal, Advocate.

Date of hearing 19.4.1982.-

JUDGMENT

AFTAflUSSAIN, CHIEF JUSTICE: The petitioner has challenged the vires of Section 34 of Code of Civil Procedure and Section 10 of the Pakistan Refugee Rehabi- litation Finance Corporation Ordinance 1960. Section 34 CPC authorises the Court to allow interest to litigants while Section 10 of the Ordinance of 1960 authorises the Corporation formed under that Ordinance to charge interest at the rate of 4k7, from its borrowers.

2.So far as the petition about the vites of Section 34 of the Code of Civil Procedure is concerned it is clearly beyond our competence pince the matter relates to Procedural Law within the meaning of Article 203-B of the Constitution. 'We do not agree with the argument of the learned counsel for the petitioner that this provision is a provision of Substantive Law since it does not confer any right upon a litigant to receive interest•

F-3

but it confers a discretion on the Court to award Such interest as is provided therein.

3.Preliminary objection was raised about the • contention regarding the vires of Section 10 of the Ordinance that being a provision of fiscal law it was not within the jurisdiction of this Court to strike it off as' repugnant to the holy Ouran and the Sunnah.

4.Article 203-B(c) is as follows:-

(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 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." 'Law thus does not include:

The Constitution, Muslim Personal Law, or any law relating to the procedure of any , Court or tribunal and until expiration of three years from commencementiof Chapter 3-A of the Constitution, any fiscal law, Or (5) anyllaw relating to the levy and collection of taxes and fees, or (6) any law relating to the banking or insurance practice and procedure.

Since Article 203-0 confers upon this Court the juris- diction to correct only a law so as to remove its repugnance with Shariah, the impact of the definition is that any law dealing with matters excepted from its definition would be beyond the pale of the jurisdiction of this Court.

5.The expression 'fiscal law' is not defined in the Constitution. The intention of the Constitution maker can therefore be gathered from a reference to its dictionary meanings, as well as context including what Oireeed6\ or follows it.

6.The preponderating sense in which the word 'fiscal' as an adjective to statutes is used is in regard to 'money, taxes, public treasury'. Thus in "Law Terms and Phrases Judicially interpreted by Sardar Mohammad Iqbal Khan Mokarg 'fiscal'law t _is defined as: "Statutes that relate to the collection of

taxes from peop14 by the Government, e.g., the Stamp Act, the Court Fees Act, etc.? In the Reader's Digest Great Encyclopaedic Dictionary the word 'fisc' is said to mean:

"Public treasury of ancient Rome:

Roman emperor's privy purse, Public Treasury into which estates lapse by escheat."

This is the sense in which, as will be seen later, the word fiscal has been used since its origin in the Roman Law. But it is difficult to concede that sense in Article 203-3 in so far as the Laws about taxes or fees are laws dealing with public revenues and ctn., specifically excluded from the jurisdiction of this Court which means that the expression fiscal law is either a totally different category of law or a category which includes some other matters also. This point was .conceded by the learned counsel for the petitioner in this case. It appears that the word fiscal was originally used as stated above in the sense of something pertaining to public revenues but now it has been given an extended connotation.

The word 'fisc' in Corpus Juris Secundum, Vol.36, Page 825 is explained as an anglicised form of the latin fiscus and defined as meaning 'treasury of a kingdom or a state, money chest'. The meaning of the word 'fiscal' is as follows:

"Financial, pertaining to finance; relating to accounts or the management •of revenue; of or pertaining to the treasury or public finances of a government. The term imports some relation to financial operations, and has been held synonymous with "financial" see Financial 36 Corpus Juris Secundum, Page 765, note 24."

In the Black's Law Dictionary also the words 'fisc and fiscal' are expressed as follows: "Fisc. A treasury of kingdom, nation, a state, or other governmental body. An Anglicised form of the Latin "fiscus" (which see)."

"Fiscal. In general, having to do with financial matters; i.e. money, taxes, public

ZAHCORUL HAQ,JUDGE:

I thave had the benefit of going through the elaborate judgment proposed to be delivered by the Hon'ble Chief Justice in Shariat Petition 24/K of 1979, and I agree that the petition be dismissed as it calls into question a law providing Financial Rehabilitation for the Refugees as the very name of the impugned law suggests. But there are certain observations in paras 15 and 16 of the judgment which were not necessary for the decision of this case and they should be considered in an approPriate case when decision thereupon may be directly involved.

I agree that word "fiscal" is nowadays being used in an extended meaning and it has to do with financial matters i.e., money, taxes, public or private revenUes etc or pertaining to the public financ-les of a Government or private financjes of business. I further agree with respect that the word finance would cover the case of borrowing money at interest. It was all very relevant upto this stale.

But with very great respect I do not agree that it was further necessary to hold that "clearly therefore' a law concerning interest is a fiscal law" which is a very wide expression and cits,-not'urealLy directly involvedin this case. The petition could be decided on the ground that Pakistan RefUgees Rehablitation Finance Corporation Ordinance 1960 is a law which provides for giving of loans and charg- ing of interest for those loans and also provides machinery for the same and deals with incidental matters thereto and is therefore clearly a law dealing with finance and is thus covered/by the expression of fiscal law and is excluded from/our jurisdiction.

I have serious reservations on the point that every law which concerns itself with payment of interest, in what- ever casual, incidental form and whether dealing with borrowing of money or not would aUtomatically be covered by the expression "Fiscal or Financial Law" and would be Contd 2

exclUded from our jurisdiction. A great deal of situationsc.can be conceived where a law may concern itself with interest incidentally without the stipula- tion of a debt or partifigiop.money with interest and that law may not be a fiscal or financial law in every case. Every challenge to that law shall have to be decided on the basis of the provisions of that law. We shall not be justified, as a matter of rule, in refusing:

to consider the vires of a law which has a provision of interest incidentally But we shOuld examine whether the provision of interest is such which has the effect of a fiscal law or that it is merely incidental or accidental to some other provision and does not travel so far as to make it a fiscal law. In fact all the provisions may have to be construed in order to arrive at a proper conclusion.

5.For instance if a provision was made in the Sale of Goods Act obliging the buyer of the goods to pay 15% interest to the seller on the total value of the goods in case the buyer makes a breach::61 the contract to ) :

purchase the goods in time but is willing to pay for the same and take the delivery of the goods within a space-of 15 days beyond the fixed time and at the same time it obliges' the seller to deliver the goods to buyer in case - hes tenders the price plus interest as stipulated, then in such a situation it would be rather difficult to brand such a provision of law as a fiscal law merely because it makes a provision of interest. It could be argued that the provision of interest was merely a provision making .

the liquidated damages certain and fixed in order to avoid litigation and therefore the provision was merely in r respect of sale goods and not a fiscal law as the provision of interest was merely of a coincidental nature and not of a substantial nature in this law. Such examples could of course be multiplied but I do not want to enter into an elaborate discussion of the same at this stage as I am of Contd

the iziew that this petition could be disposed of on the grounds indicated in the first para of my judgment.

6.As to the argument that the exclusion of all fiscal laws from the jurisdiction of this Court has given equal treatment to Government Banks and Insurance Companies as well as the private Banks and Insurance Companies, suffice it .to say that the Courts are not concerned with reasonableness of law as long as it is made by a competent legislature and within the bounds of the Constitution or the Islamic Injunctions, as the case may be. In any case the whole set of laws in respect_ and Ingdrande of procedure and practice of bankingLstand excluded separatelyapartL,fronlitheifiscalilaws.

7.With the observations made above I agree that this petition be dismissed.

btf4,nrsal

JUDGE-II

Islamabad, the 13/J(J&4AJAVV

A.RAHMAN/**

ajOi\i\' f ((or oi

or private revenues, etc. Belonging to. the fisc, or public treasury. Relating to accounts or the management of revenue. Of or pertaining to the public finances of a Government or private finances of business."

The word 'fisc' is similarly explained in Oxford English Dictionary. According to it the word fiscal means not only "of or pertaining to the fisc or treasury of a state or prince; or pertaining to the public revenue", but also '"of or pertaining to enancial matters in general". Similaride'r --;)meanIngj are given in other dictionaries also.

The learned counsel for the Petitioner urged that the word 'fiscal law' in!Artrdig ZO-B*,sh-oul_Pbe interpreted in its preponderating sense of laws pertaining to public revenue or public treasury. When his attentipn was drawn to Black's Law Didtionary and Oxford Dictionary he submitted that the extended meaning of 'fiscal' that is, "of something pertaining to financial matters generally" cannot be applied to Article 203-B. He also argued that if the word fiscal is inter- preted as meaning financial matters generally, all the laws which not only pertain to borrowing and lending but also to sale and purchase for example the Contract Act, sat as well as of Gcods Act will also have to be included in the category of laws which are outside the juris- diction of this Court.

It is difficult to give such a narrow interpretation as suggested by the learned counsel to the expression 'fiscal law' in view of the language in which the word law is defined. The laws relating to the levy and collection of taxes and fees which are laws about public revenue, are treated as a category separate from fiscal law. Thus the intention of the law makers is clear that fiscal law is something different from the laws of taxes or fees. This was conceded by the learned counsel for the petitioner also. In this view Of the matter it is not possible to confine fiscal law to matters pertaining to public revenue only but it will

have to be given an extended meaning so as to include private financial matters.

The other objection that it may have to be interpreted as including laws of sale and purchase of property and goods is not relevant. At present what is relevant is whether the word fiscal law includes law allowing interest. That it does include such laws will be clear from the consideration of the meaning of financial matters, since as seen in Corpus Juris Secundum Vo13Page 825, the Oxford English Dictionary and the Black's Law Dictionary, the word fiscal imports, same relation to private financial operations. The word finance according to the Oxford English Dictionary means "settlement with a creditor; payment of debt;

parting of money at interest " According to Corpus Juris Secundum, Vol.36, one of the meanings of word finance is 'borrowing of money at interest". Clearly therefore a law concerning interest is a fiscal law. The primary aim of excluding fiscal laws from the jurisdiction of this Court appears to be to give protection to all laws concerning interest. It would have been opposed to the principle of equality if the Government had given this protection to its man Banks or Insurance Companies and taken it away from privately owned Banks or Insurance Companies. It is for this reason that no distinction is made between one type of Banks or Insurance Companies and another. On the same principle it appears that the laws relating to interest whether applicable to government or to com- panies or to private persons have been given protection for three years. We are, therefore of the view that the provision challenged by the petitioner in this case is not within our jurisdicton. Same view was taken by the Shariat Bench of the Lahore High Court in Shariat Petition No.71/L of 1979, Mian Zahoor Ahmad Vs. The Central Government, decided on 18.3.1980.

The Paki-stan Refugee Rehabilitation Finance Corporation Ordinance 1960 sets up a Corporation of the same name by finances provided by the Government for lending money to smally businessmen in oi.der to improve their financial position. This i an Ordinance which deals with Government finances. Eventif the expression 'fiscall law' w%used in the narrow meaning as urged by the counsel for the petitioner, the Ordinance would fall within its ambit also.

The petition is therefore dismissed.

CHIEF JUSTICE

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