HAMEED AHMAD AYYAZ Versus GOVT. OF PUNJAB

MALIK MUHAMMAD QAYYUM, J.--Dr. Hameed Ahmad Ayaz who is an Advocate of this Court has filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 to challenge the vires of section 2 of the Punjab Finance Act, 1996 whereby Article 1 of the First Schedule of Punjab Court Fees Act, 1870 was amended so as to enhance the rate of court-fee from 7.50 per cent. to 8.50 per cent. and the maximum limit from Rs.15,000 to Rs.34,000.

2. In support of this petition, the petitioner who has appeared in person has argued that the levy and enhancement in court-fee was violative of the Injunctions of Islam as ordained by Holy Qur'an and Sunnah and was hit by Articles 2A, 37 and 227 of the Constitution of Islamic Republic of Pakistan,

1973. It was emphasised by the petitioner that in an Islamic State like Pakistan, the State is under an obligation to provide free and inexpensive justice and the impugned levy was unconstitutitional. He relied upon Division Bench judgment of Sindh High Court in the case of Sindh High Court Bar Association, Karachi and another v. The Islamic Republic of Pakistan and another PLD 1991 Kar. 178.

3. We have heard Mr. Muhammad Ashraf, learned Assistant Advocate General in opposition of this petition.

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4. It needs no gain saying that it is the obligation of every civilized State to provide justice to all its citizens. Right to have access to the Courts of law, and' to obtain justice from the is a universally recognized fundamental and natural right. In some countries it is so specifically provided in the Constitution itself but where it is not, the superior Courts have spelt it out. from the due process and equality clauses contained in their Constitution. In the Universal Declaration of Human Rights it is provided in Article 8 that everyone has the right to an effective remedy by the competent national Tribunal. for acts violating the fundamental rights granted him by the Constitution and by law- Similarly in Article 10 it is stated that everyone is entitled to a full equality to a fair hearing b y an independent and impartial Tribunal in determination of his rights. Similar provisions are contained in European Convention of Human Rights

5. So far as our Constitutional dispensation is concerned Article 37(d) of the Constitution of Islamic Republic of Pakistan, 1973 places an obligation upon the State "to ensure an inexpensive and expeditious justice". It is unfortunate that though a period of about-'24 years has expired since the enforcement of Constitution no concrete measures have at all been taken by any of the Government to give effect to this mandate of the Constitutional. Surely enhancement in, the rate of, court-fee is violation of this Constitutional intent.

6. At the risk of repetition it may be emphasised that one of the most important and cherished right which a citizen possesses is to have access to justice which we State is under an obligation to provide the setting up the necessary machinery. Any measure which unreasonably inhibits, an individual from approaching the Count for redress of his grievance is to be frowned upon. It is indeed distressing that the State should ask its citizens to pay a fee for obtaining justice which is its obligation under the Constitution. Various justifications have time and again been given in support of levy of court-fee one of which is that it discourages frivolous litigation. That may be so but that result can equally be achieved by providing for imposition of costs in suitable cases.

7. In an Islamic State like Pakistan the obligation to do justice stands all the more accentuated. The Allah Almighty and His Holy Prophet have repeatedly emphasised the need to do justice to all manners of people without any fear and favour and without regard for the status, caste or creed of the suitor. If a citizen is prevented from approaching a Court of law on account of min, inability to pay the court-fee, surely the command of Allah Almighty and His Holy Prophet stands violated. The court-fee act is a vestige of our colonial inheritance. Though we are celebrating 50th year of independence unfortunately nothing substantial has been done to remedy this situation. On the other hand it is a matter of shame and regret that the State is resorting to methods like enhancement in court-fee to earn profit from administration of justice.

8. Although much more can be said on the subject but we do not feel any necessity of doing so in view of the judgment of Sindh High Court in Sindh High Court Bar Association, Karachi v. The Islamic Republic of Pakistan and another PLD 1991 Kar. 178 which is on all fours with present case. There the amendment made in the Court Fees Act by Sindh Finance Act, 1990 which had the effect of enhancing the rate of court-fee were examined on the touchstone of the various provisions of Constitution of Islamic Republic of Pakistan, 1973 and Injunctions of Islam. Nasir Aslam Zahid, J. (as his Lordship then was) speaking for the Bench - observed that Sindh Finance Act, 1990 was violative of Articles 2A, 37(d} and 227 of the Constitution and was, therefore, of no legal effect. The ratio in the said case fully applies to this petition before-us.

9. Though on the above findings this petition is liable to be accepted but we think that we will be failing in our duty if we do not highlight the Islamic aspects. No one has ever denied and at least on our part we after going through various books on the subject have not come across any opinion in support of the levy of court-fee under Islamic dispensation of justice. The demand for payment of court-fee is wholly foreign to and militates against the Islamic Injunctions. This question was examined by the Islamic Ideology Council set up under Article 228 of the Constitution of Islamic Republic of Pakistan, 1973 which in its report for the year 1977-78 concluded that the demand for payment of court-fee was un-Islamic. It accordingly made the following recommendations:--

10. The matter also came up before the Federal Shariat Court in Mahmood-ur-Rehman Faisal v. Secretary, Ministry of Law, Justice and Parliamentary Affairs, Government of Pakistan and others PLD 1992 FSC 195 in which after exhaustive survey of the law on the subject it was held that provisions of Court Fees Act and the other Provincial Acts were contrary to the Injunctions of Islam as ordained by Holy Qur'an and Sunnah. This judgment is under appeal before the Supreme Court of Pakistan and has, therefor,. not attained finality but nevertheless it can be referred to for its persuasive value in view of the illuminating discussion contained therein.

11. Another point which arises in the present proceedings is as to whether this Court can enter into controversy raised in this petition in view of Article 227(2) of the Constitution which ordains that Islamic provisions of Constitution can only be enforced in the manner provided in Part 9 of the Constitution. Sub Article (1) of Article 227 is in two parts. The first part contains a direction that all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in Holy Qur'an and Sunnah and the second part contains, a prohibition on enactment of any law which is repugnant to the Injunctions of Islam. In the case of Sindh High Court Bar Association, Karachi (supra) it was observed that the Courts may not be able to give effect to first part of Article 227 but it can certainly examine a law framed subsequent to enforcement of Article 227 of the Constitution to see as to whether the prohibition imposed by the Constitution on enactment of any law contrary to the Injunctions of Islam has been violated. Furthermore it has not been disputed before us by any one that the concept of court-fee militates against the Injunctions of Islam which seems to be the admitted position. For the same reason Article 203-GG would not apply.

12. The next question is as to what relief may be granted in the present proceedings. Sindh High Court in the case of Sindh High Court Bar Association, Karachi's case (supra). Keeping in view the fact that the judgment of the Federal Shariat Court in Dr. Mahmood-ur-Rehman's case was under appeal before the Supreme Court instead of declaring section 9 of the Sindh Finance Act is ultra vires had passed the following order:--

"In view of our conclusions in this petition, we have decided to issue the following directives:--

(a) The concerned officers of the Sindh High Court will accept plaints, written statements, pleadings, set offs or counter-claims, memoranda of appeals or cross-objections presented or filed in the Sindh High Court with court-fees affixed on such documents payable under the Court Fees Act, 1870 (as applicable to the Sindh Province) ignoring its amendment by sections 4 and 6 of the Sindh Finance Act, 1990, as if these two sections were not enacted;

(b) Similar directive be issued to all Courts subordinate to the Sindh High

Court and exercising Civil Jurisdiction. "

We are also inclined to dispose of this petition by issuing similar direction to the concerned officers of the Lahore High Court and all the Courts subordinate to it.

No order as to costs. -

M.B.A./H-25/L Order accordingly.