Dr. Shahid Hassan Siddiqui vs. State Bank of Pakistan

IN THE FEDERAL SHARIAT COURT

(Original Jurisdiction)

PRESENT

MR. JUSTICE RIAZ AHMAD KHAN, CHIEF JUSTICE

MR. JUSTICE DR ALLAMA FIDA MUHAMMAD KHAN

JUSTICE MRS. ASHRAF JAHAN

SHARIAT PETITION NQ.3/K OF 2008

Dr. Shahid Hasan Siddiqui, Residing at 130/1, Street No.9, Off Khayaban-e-Mushm, Phase VI, Defence Housing Authority, Karachi . .. Petitioner Versus The State Bank of Pakistan and 30 others Banks. Respondents Counsel for the Petitioner .... In person Counsel for the Federal Govt Mr M. Aslam Butt, Deputy Attorney General & Mr. M Pervez Khan Tanoli, Standing Counsel

Counsel for the Respondents Mr Jam Asif Mehmood, No.2,7,12,13,17,19,20,22,23 Advocate on behalf of and 24 Ahmad and Mr Qutubuddin Saim, Advocates

Counsel for the Respondents Mr Ghulam Murtaza and No.ll, 15 and29 Mr Ameer Nausherwan Adil, Advocates Counsel for the Respondents Mr Asad Ladha, Advocate on No 1,4,5,6,9,18 and 28 behalf of Mr. Salman Akram Raja, Advocate Counsel for the Respondent Mr. Muhammad Ilyas, Advocate No 21 on behalf of Mr A I.Chundngar, Advocate Counsel for the Respondents Mr Naveed-ul-Haq, No 10 and 25 Advocate Counsel for the Respondent Mr Fida Hussain, No 14 Law Officer Date of Institution 30 08 2008

Date of hearing 22 11 2016

Date of decision Uf. 12 2016

JUDGMENT

DR. ALLAMA FIDA MUHAMMAD KHAN. Judge:- The

Petitioner Dr. Shahid Hasan Siddiqui has challenged the gross and continued exploitation of depositors by the Domestic and Foreign Banks operating in Pakistan

2.This petition, after having been admitted for regular hearing on 12.01.2009, was transferred to Karachi as per request of the Petitioner.

It was fixed on several dates but could not be decided for one reason or another. Finally, it was fixed on 22.11.2016 and, after hearing the learned Petitioner and the learned Counsel for the Respondents, the judgment was reserved The following paras contain reasons for our decision.

3.We heard the learned Petitioner as well as Deputy Attorney General, Standing Counsel for Federal Government and learned counsel for the other Respondents i.e. State Bank and other Banks. The learned petitioner submitted that:

* this practice is in utter violation of the agreement. Banks, by not sharing their profits with the depositors in the real sense,

are violating the very spirit of the PLS system. This is also against the Injunctions of Islam,

complete violation of commitment which in fact amounts to the breach of trust and exploitations. Banks, by paying a negative rate of returns in real terms, are exploiting the depositors. This is un-Islamic as Islam is against all forms of injustices and exploitations and pleads an economic system which aims to secure extensive socio-economic justice;

all the Banks may be directed to share their profit justly and equitably with the depositors and ensure that the minimum rate of return paid to depositors is not less than the rate of inflation in the country;

this will at least minimize the aggravating alarming financial situation in the country;

the State Bank of Pakistan may also be directed to ensure complete compliance;

the high Banking spread being unjust and harmful be directed to be restricted to 3.5 percent without further loss of time

the BCD Circular No.29 may be declared discriminatory, unjust, unlawful and against the Injunctions of Islam and, therefore, order that the accounting entries of write-off the advances under this Circular be reversed.

x these advances with upto date mark-up may be called back to be dealt with as per existing laws and regulations; and * the State Bank of Pakistan be directed to withdraw the permission granted to Banks, vide BPD Circular No. 16, dated 14.04.2005, regarding offering different rates of return to their depositors/ investors m the same category, as this is unjust,

4.The Deputy Attorney General referring to the comments filed by the Finance Division submitted that the Circular No.29, dated 15.10 2002 had been issued by the State Bank of Pakistan in terms of Section 33-B of the Banking Companies Ordinance, 1962. This was just for the purpose of settlement of long outstanding Non Performing Loans of the Banks. However, it is presently subjudice before the Honourable Supreme Court of Pakistan in Suo Moto Case No.26/2007.

5.The learned counsel appearing on behalf of the Respondent No.21 submitted that the Circular No.29 of 2002, issued by the State Bank of Pakistan impugned by the Petitioner has already expired with effect from 31.01.2005. He has also placed on record letter No BPD/PU-

34/SBP-Scheme/9584/2005-4199 dated 12th April, 2005 issued by the State Bank of Pakistan which is reproduced hereinunder:-

“EXPIRY OF SBP COMMITTEE FOR RESOLUTION

SETTLEMENT OF CASES UNDER BPD CIRCULAR

N0.29 OF 2002_________________________________

As you are aware that SBP Scheme issued vide BPD Circular No 29 of 2002 titled as “New Guidelines on Write-Off o f Irrecoverable Loans and Advances ” has expired on 30.06.2003(except ZTBL for which date of expiry was 31.12.2003), the tenure of SBP Committee constituted vide BPD Circular Letter No. 8 dated 10.03.2003 for the resolution of disputes under provisions of aforementioned SBP Scheme has finally expired w e f. 31.01.2005 and the Committee cease to exist from the said date.

This is for information and further reference”.

6.The learned Standing Counsel for Federal Government submitted that according to the Constitution of Pakistan, the Federal Shariat Court has only the jurisdiction to declare any law or provision of law as repugnant to the Injunction of Islam, whereas the Petitioner has not challenged any Law or provision of law. He has called in question, the Policy of the Government, which is beyond the jurisdiction of this Court.

7.The learned counsel on behalf of the State Bank of Pakistan relied upon a ju d g m en t reported as PLD 1992 FSC Page 1 and prayed that

the instant petition is not maintainable before this Court under the Constitution, therefore, it may be dismissed

8.As is evident from the above, all the respondents opposed the Petition and prayed that the instant petition may kindly be dismissed as not maintainable.

9.We have anxiously considered and examined the contentions of the Petitioner as well as the comments filed and submissions made by the Respondents. It is pertinent to mention that, as provided under Article 203-D of the Constitution, the Federal Shariat 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 ( ^ j ‘d'j .oil Keeping in view the above provision, we may point out that the petitioner has neither challenged any law or provision of law as required under Rule 7(d) and (e) of the Federal Shariat Court (Procedure) Rules, 1981, nor has given any particular Nass of the Holy Quran or Sunnah of the Holy Prophet ( ^ j ‘d'j ^

relating to the relevant law or its provisions, which specifically support his contentions. The following facts brought to our notice are also worth consideration

a). the matter is subjudice before the Supreme Court of Pakistan,

b). the impugned circular issued by the State Bank of Pakistan had already expired with effect from 31.01 2005, as stated at Bar by the learned counsel and as such is no more in the field now, and

c). the petitioner has challenged policy of the State Bank of Pakistan which being a procedural matter relating to the practical operation/transaction in the Domestic and Foreign Banks operating m Pakistan, is beyond the jurisdiction conferred upon this Court by the Constitution.

10 In view of the above mentioned legal and factual position, we dismiss this petition accordingly.

JUSTICE DR ALLAMA FIDA MUHAMMAD KHAN

JUSTICE RIAZ AHMAD KHAN

Chief Justice

\ h £2-

JUSTICE MRS ASHRAF JAHAN

Announced in open Court on 15/l t-jut£ at Isl amabad M u je e i/*