' M. JAVED BUTTAR, J.--- We propose to decide both these petitions, which involve common question of law and fact, through this common order.
2. These petitions are directed against order, dated 8-3-2004 passed by a learned Division Bench of Lahore High Court, Bahawalpur Bench, whereby Writ Petitions Nos.1141 of 2003 and 3237 of 2003, instituted by the petitioners, were dismissed in limine
3. The petitioners, in both these petitions, are claiming shares in the properties left behind by late Ameer of Bahawalpur, Sir Sadiq Muhammad Khan Abbasi, who died on 24-5-1966. They are not claiming the shares in the said properties as legal heirs of the above named late Ameer of Bahawalpur but as his collaterals, being successors of the predecessor Nawabs of the said late Ameer. The petitioners in C.P.L.A. No,700 of 2004, claim themselves to be the heirs of Fifth Ruler and the petitioners in C.P.L.A. No,1539/L of 2004, claim themselves to be the heirs of 1st Ruler, who died some time before the year 1750. The petitioners in C.P.L.A. No,700 of 2004, in para.3(i) of their Writ Petition No,1141 of 2003, linked themselves with the late Ameer of Bahawalpur the last Ruler of former Bahawalpur State as under:-- "That (late) Sir Sadiq Muhammad Khan Abbasi-V, the last ruler of former Bahawalpur State was the son of His Highness Bahawal Khan-Vth Ruler) H.H. (Late) Ameer of Bahawal Khan-V also had a daughter namely Her Highness Princess Mehr-un-Nisa Abbasi. The petitioners include the sons and daughters of Her Highness Princess Mehr-un-Nisa and Motasim Billah Abbasi (the first male issue of Haji Muhammad Khan). That Haji Muhammad Khan was the real brother of Bahawal Khan Abbasi (V)/real uncle of His Highness Sir Sadiq Muhammad Khan Abbasi (V) and was propositus of the petitioners. The rights of petitioners therefore, flow from both the propositus named above i,e, Haji Muhammad Khan/the real uncle of Sir Sadiq Muhammad Khan Abbasi and Her Highness Princess Mehr-un-Nisa/the real sister of Sir Sadiq Muhammad Khan Abbasi."
4. The petitioners in C.P.L.A. No,1539/L of 2004, in paras. Nos.9 and 10 of their Writ Petition No,3237 of 2003 took the following stand:- "(9) That the petitioners are the heads of seven families which are the branches of the Ruler Family with common ancestry having equal claim of inheritance in the joint pool of the family property left by His Highness late Sir Sadiq Muhammad, Khan Abbasi-V and they are entitled to have their shares according to the law of Sharia when the joint property of the family is sought to be divided by operation of law. It will be pertinent to mention that in Bahawalpur State since the time it became independent State governed by its own laws and matter of property and personal matter like marriage, divorce and guardianship etc. The law of Shariah was applicable, throughout and the State was famous in the sub-continent for this distinctive feature.
(10) That the petitioners even may not be treated as an immediate legal heirs of His Highness Sir Sadiq Muhammad Khan Abbasi_ even then they have the right in the property according to rules of equity good conscience and public policy as contained in Muslim jurisprudence. This rule of family custom was devised in recognition of fundamental principles and basic concept of Islam for the reasons that the members of the family who are being benefited out of the income of the joint property in the proportion to their respective needs, etc. Were otherwise shareholder according to law of inheritance i,e, Shariah."
5. In both these petitions, case of the petitioners mainly is that the property left behind by above said late Ameer of Bahawalpur, has wrongly and illegally been distributed amongst the legal heirs i,e, three widows, ten sons and ten daughters, as the said property was not personal property of the late Ameer but was a common family property which had devolved on the entire family including the petitioners from their common ancestors. It is stressed that besides the property belonging to the State of Bahawalpur, and the personal property of late Ruler, their existed a third category of the property which may be termed as belonging to Ameerate and this last category of property used to be under the control and management of the Rulers for the benefit of all and while distributing the personal property of the late Ameer amongst his legal heirs, this third category of property which belonged to the entire family, has wrongly been distributed amongst the legal heirs of late Nawab. The inclusion of the said third category of property, not described or identified in these petitions, in the list of the properties belonging to Ameer, was assailed through the constitutional petitions before the Lahore High Court, Bahawalpur Bench, which have been dismissed in limine, through the impugned judgment.
6. We have heard the learned counsel for the parties at length and have also seen the relevant record and the law on the subject.
7. The issue of distribution of the properties of late Ameer of Bahawalpur has a chequered history but succinctly put, at the advent of Government of India Act, 1935, India was mainly divided into two parts, British India and the Indian States. State of Bahawalpur was one of the large numbers of Indian States. British India comprised of Governors' Provinces and some other areas, which were administered by the Government of India itself whereas the Indian States were mostly under the personal rule of Rulers or Chiefs. The extent of their sovereignty over their States was dependent upon the agreements entered into by these rulers with the British Crown. British India was under the direct rule of the British Crown through its representatives and under the statutes of British Parliament and enactments of Indian legislature. On the other hand, Indian States were allowed to remain under the personal rule of their Chiefs and Princess, under the suzerainty of the Crown, which was assumed over the entire territory of India when the Crown took over authority from the East India Company in the year 1858. In cases of all the Indian States, the responsibility for their external relations and defence lay with the British India or British Crown while the States were responsible for their own internal administration except in few cases where the individual States had entered into special agreements with British Crown for providing guarantees to such States against internal disturbances or revolts etc. The rulers of Indian States continued enjoying certain personal rights and privileges and normally themselves carried on their administration. The Government of India Act, 1935, envisaged a voluntary agreement to be signed by the Rulers of the said States in the matter of accession to the Federation, subject to acceptance of such instrument of accession by the British Crown. When the Indian Independence Act, 1947 was passed, the suzerainty and paramountcy of the Crown over the Indian States lapsed, under section 7(1)(b) of the said Act. Indian States regained their position which they enjoyed prior to the assumption of suzerainty by the Crown and soon thereafter on 3-10-1947, the late Ameer of Bahawalpur Alhaj Sir Sadiq Muhammad Khan Abbasi made his choice to accede to Pakistan and executed an Instrument of Accession under section 6 of Government of India Act, 1935, whereby the State of Bahawalpur acceded to the Federation of Pakistan, which was accepted by the then Governor- General, as adopted by the Pakistan Provisional Constitution Order 1947. Reference may be made to another major Instrument executed by late Ameer of Bahawalpur and accepted by the Governor-General of Pakistan on 11-4-1952, whereby in consideration of the Ameer's accepting for his State, the Constitution of Pakistan to be adopted by the Constituent Assembly of Pakistan, the Ameer of Bahawalpur agreed to receive a privy purse of Rs,29,50,000 annually. In this Instrument, the questions of succession to the personal rights, privileges, dignities etc. And the question that how the dispute with regard to any item of property, or succession to personal rights etc. Were to be resolved, were dealt with in Articles II to IV, which are reproduced hereunder:-- " Article II. His Highness the Ameer shall be entitled to the full ownership, use and enjoyment of all the jewels, jewellery, ornaments, shares, securities and other private properties, movable as well as immovable, not being State properties, belonging to him on the date of this agreement.
(2) His Highness the Ameer shall furnish to the Government of Pakistan within three months of the date of this agreement lists of the movable and immovable property held by him as such private property.
(3) If any dispute arises as to whether any item of property is the private property of His Highness or State property, it shall be decided by the Governor-General of Pakistan whose decision shall be final and binding on all concerned.
' Article III. His Highness the Ameer and the members of his family shall be entitled to all the personal privileges, dignities and titles enjoyed by them whether within or outside the territory of the State immediately before the date of this agreement.
' Article IV. The Government of Pakistan guarantees the succession according to law and custom of the State of Bahawalpur to the Gaddi of the State and to the personal rights, privileges, dignities and titles of His Highness the Ameer of Bahawalpur.
8. On 17-12-1954, shortly before the establishment of the unified Province of West Pakistan, commonly known as One-Unit, late Ameer of Bahawalpur State and the Government of Pakistan executed an agreement known as the "Bahawalpur Merger Agreement". This agreement reiterated the accession of the State of Bahawalpur to the Dominion of Pakistan and the merger of the same in the proposed One-Unit of the said Dominion to be known as West Pakistan. By virtue of this agreement, which was in abrogation of all the previous instruments of Accessions and Agreements, the Ameer of Bahawalpur ceded to the Government of Pakistan, his sovereignty and all rights, authority and powers as Ruler of the State of Bahawalpur. The Government of Pakistan, from the date of Merger Agreement undertook responsibility for the governance of the said State and solemnly guaranteed to the Ameer of Bahawalpur certain rights which were described in the Merger Agreement. Articles II to V, which cover those rights are reproduced hereunder:--- ' Article II. His Highness the Ameer of Bahawalpur shall be entitled to receive annually from the Government of Pakistan for his privy purse a sum of Rs,32 lacs (Rs, Thirty-two lacs only) free of all taxes. The amount -is intended to cover all the expenses of His Highness the Ameer of Bahawalpur and his family, bodyguard, tours, hospitality, maintenance of his residence, marriage and all family ceremonies. The said amount shall be payable to the Ameer of Bahawalpur in four equal instalments at the beginning of each quarter in advance.
' The payment of said amount as herein provided is guaranteed by the Government of Pakistan.
' Article III. His Highness the Ameer shall be entitled to the full ownership, use and enjoyment of all the jewels, jewellery, ornaments, securities and other private properties, movable as well as immovable, not being State properties, belonging to him on the date of this agreement.
' If any dispute arises as to whether any item of property is the private property of His Highness or State property, it shall be decided by the Governor-General of Pakistan whose decision shall be final and binding on all concerned.
' Article. IV. His Highness the Ameer, Her Highness and His Highness's children shall be entitled to all the personal privileges, dignities and titles enjoyed by them whether within or outside the territory of the State immediately before the date of this agreement.
' Article V. The Government of Pakistan guarantees the succession according to law and customs of State of Bahawalpur to the personal rights, privileges, dignities and titles of His Highness the Ameer of Bahawalpur, as specified in Articles II to IV above."
' Thus, in case of any dispute (2nd paragraph of Part-III) as to whether any property was the private property of late Ameer or State property, it was to be decided by the Governor-General of Pakistan whose decision was to be final and binding on all concerned.
9. A list of Palaces and Buildings etc. And other properties recognized by the Government of Pakistan as the personal property of the late Ameer was prepared. The list was duly signed on behalf of the Government of Pakistan on 8-6-1955 and a copy thereof handed over to the late Ameer.
10. Section 10(1) of the Establishment of West Pakistan Act, 1955, passed on 3-10-1955, though omitted section 6 of the Government of India Act, 1935 but saved all laws enforced in West Pakistan immediately before the appointed date. Similarly, by virtue of Article 202(3) of the Constitution of Islamic Republic of Pakistan, enacted on 29-2-1956, the rights, privileges etc. Of the Rulers of the existing States were recognized and due regard was to be given to the guarantees or assurances given under any agreement referred to in clause (1), with respect to the personal rights, privileges and dignities etc. Of the said Rulers. Thereafter on the promulgation of Martial Law on 7-10-1958 and after the promulgation of the Laws (Continuance in Force) Order, 1958, on 10-10-1958, President's Order No,15 of 1960 called the "Rulers (Recognition of Successors) Order, 1960" was promulgated on 16-6-1960, wherein, it was provided that any reference to the Ruler of State would be construed as including a reference to the person/ recognized, for the time being by the President as a successor to that Ruler. On 2-9-1961. President's Order No,12 of 1961, called "Acceding State (Property) Order, 1961", was promulgated. It provided that the question between persons claiming to be heirs and successors of Rulers of a State or claiming to succeed to the State, concerning the devolution and Distribution of any property of that State or the Ruler, shall be decided by the Central Government.
11. The Constitution of the Islamic Republic of Pakistan, 1962 came into force on 8-6-1962. Article 225 of the said Constitution provided for the continuance of existing laws and Article 223(3) provided for the continuance of rights, liabilities and obligations of the Government arising out of the contract or otherwise.
12. Sir Sadiq Muhammad Khan Abbasi, Ameer of Bahawalpur passed away on 24-5-1966. Brig.
Nawab Muhammad Abbas Khan Abbasi succeeded as the Ameer of Bahawalpur. The recognition to the said succession was accorded by the Government of Pakistan vide order, dated 4-6-1966. A majority of the heirs of late Sir Sadiq Muhammad Khan Abbasi approached the Government of Pakistan claiming succession to the personal properties of the late Ameer. Brig. Nawab Muhammad Abbas Khan Abbasi disputed their claims and entered that he having succeeded to the Ameerate of Bahawalpur was also entitled to succeed exclusively to all the personal properties of the late Ameer of Bahawalpur. This position was not accepted by the Government of Pakistan and it was considered that this dispute came within the purview of the provisions of Acceding State (Property) Order, 1961, and was applicable in relation to the distribution of the property left by the late Ameer.
' Accordingly a Commission consisting of two senior members of Board of Revenue was appointed under Article 3 of the above said Order of 1961, to make inquiry and submit its recommendations with regard to devolution of distribution of private properties left by the late Ameer. The members of the Commission, made a detailed inquiry to ascertain all the properties of the late Ameer and recommended its distribution amongst the heirs. The recommendations were accepted by the President of Pakistan through an order called "The Devolution and Distribution of Property (Ameer of Bahawalpur) Order, 1969" promulgated by the Government of Pakistan on 19-2-1969, published in Gazette of Pakistan Extraordinary issue, dated 20th February, 1969. Under this order, the movable and immovable properties described in the First Schedule were held to belong to Nawab Muhammad Abbas Khan Abbasi as the Ameer of,Bahawalpur in his capacity as Ameer and for so long as he was the Ameer. The rest of the properties were distributed in all the legal heirs of the late Ameer of Bahawalpur including Nawab Muhammad Abbas Khan Abbasi, as set out in the Second Schedule of the Order. As regards the properties in the First Schedule which vested with Nawab Muhammad Abbas Khan Abbasi in his capacity as the Ameer of I3ahawalpur, an embargo was placed on him that he shall not without the previous approval of the Central Government transfer by sale or otherwise any of those properties. This Order also provided that all heirs of late Ameer were liable to pay the estate duty in respect of the properties that had devolved on them.
13. Nawab Muhammad Abbas Khan Abbasi feeling aggrieved of the Devolution and Distribution of Property (Ameer of Bahawalpur) Order, 1969 filed Writ Petition No,346 of 1969 in the Lahore High Court. Lahore calling in question its validity, contending that Merger Agreement of 1954, being a Constitutional Instrument was not subject to the ordinary law, the Government of Pakistan was bound by guarantees and assurances extended to the late Ameer in the Merger Agreement hence provisions contained in the. Acceding States (Property) Order, 1961 (President's Order No,12 of 1961) did not override them, that even under President's Order No,12 of 1961, read with the Merger Agreement, .The Government of Pakistan was bound to decide this dispute regarding succession in accordance with law and custom of the State and rule of primogeniture whereunder Nawab Muhammad Abbas Khan Abbasi alone was entitled to succeed to the entire properties. The validity of the President's Order No,12 of 1961 was also challenged on the ground that it conferred unguided and uncontrolled powers to the Central Government and certain other objections like the excessive delegation of powers and violation of principle of natural justice etc. Were also taken.
' On the other hand, the Government of Pakistan took the stand that the Merger Agreement of 1954 was a treaty arrived at between two Sovereign States and it could not be called in question in any of the Municipal Courts in the country and alternatively it was contended that the merger Agreement was subject to the ordinary law of the land, it could be modified and altered by the provisions of President's Order No,12 of 1961, that the Devolution and Distribution of Property (Ameer of Bahawalpur) Order, 1969 was a fair and equitable distribution of the estate left on the demise of the late Ameer of Bahawalpur among his heirs. Other technical objections like the bar of jurisdiction of High Court etc. Were also taken. The other respondents, namely, the other heirs of the late of Ameer supported contentions of the Government of Pakistan raised before the High Court to the effect that the above said Order of 1969 was lawfully passed by the Central Government by way of an equitable and fair administration of the estate left by the late Ameer. They however, supported Nawab Muhammad Abbas Khan Abbasi in his contentions that the estate was not liable for the payment of Estate Duty.
14. The High Court in a detailed and elaborate judgment passed on 4-12-1973, Brigadier His Highness Nawab Muhammad Abbas Khan Abbasi, Ameer of Bahawalpur v. Government of Pakistan through the Joint Secretary Ministry of States and Frontier Regions, Rawalpindi PLD 1978 Lah. 1166 concluded that the Central Government was competent to decide the dispute concerning the devolution and distribution of the property of the State of late Ameer under section 3 of the Acceding States (Property) Order, 1961 P.O. No,12 of 1961 which was a valid piece of legislation.
However, it was further held that the Devolution and Distribution of Property (Ameer of Bahawalpur)
Order, 1969 was not passed in accordance with law and, consequently, was of no legal effect. The learned Judges of the High Court further ordered that "the matter shall go back to the Central Government for fresh disposal of the dispute before it in accordance with law". The writ petition filed by Nawab Muhammad Abbas Khan Abbasi was, accordingly, accepted to the above extent.
The Government of Pakistan as well as Nawab Muhammad Abbas Khan Abbasi aggrieved by the judgment of the High Court and filed appeals (Civil Appeals Nos.128 and 129 of 1978). This Court vide a detailed judgment dated 7-4-1982 Government of Pakistan v. Brig. His Highness Nawab Muhammad Abbas Khan Abbasi and others PLD 1982-SC 367 dismissed both the appeals subject to the observations made in the judgment. The history and nature of the dispute narrated above, has been taken from the above judgment. The author Judge (Dr. Nasim Hasan Shah, J.) while writing such a well-researched judgment, also summarized the findings recorded by the learned Judges in the High Court on the various issues raised before them in the abovesaid Writ Petition No,346 of 1969, which for the sake of convenience are reproduced below:-- "The High Court, by its judgment passed on 4-12-1973 in Writ Petition No,346 of 1969, recorded the following findings:--
(a) On the point of the character and the weight to be attached to the Bahawalpur Merger Agreement executed on 7-12-1954 between the then Governor-General of Pakistan and the late Ameer of Bahawalpur State, it was held that after the promulgation of the 1962 Constitution the umbrella of the Constitution and its backing in support of the Merger Agreement was altogether withdrawn and was no longer available. Nor did it (the Constitution) by itself, provide any constitutional safeguard to the guarantees and assurances contained in the Agreement. Although the Merger Agreement continued to remain in force without this additional constitutional backing under sub-Articles (1) and (7) of Article 225(1) of the 1962 Constitution but merely as a "legal instrument" and not as a "Constitutional Instrument". It was, thus, relegated to the position of and became an ordinary "existing law" and could not be equated with the Constitution itself.
Consequently, the Legislature ordinarily competent to legislate on the matter, was not precluded from making any law overriding the provisions of the Merger Agreement in question nor were its powers to make laws under the Constitution curtailed and controlled by the provisions contained in the Merger Agreement.
(b) On the question whether the stipulations contained in the Instrument of Association or the Merger Agreement amounted to the stipulations of a treaty between the foreign powers and, therefore, being an act of the State, the jurisdiction of Municipal Courts of this country was barred from entertaining any dispute arising out of it, it was held that the Courts in this country are bound by the terms of the Constitution of Pakistan and the laws in force here. The Merger Agreement in question was an Instrument of Accession executed by the late Ameer of Bahawalpur and accepted by the Governor-General of Pakistan in accordance with section 6 of the Government of India Act, 1935. The proviso to subsection (4) of section 6 of the Act laid down that if any Instrument has, in fact, been accepted by the Governor-General, the validity of the Instrument or of any of its provisions shall not be called in question and the provisions of this Act shall, in relation to the State, have effect subject to the provisions of the Instrument. Under subsection (9) of this section all Courts are bound to take judicial notice of every such instrument. The validity of the Instrument or any of its provisions cannot be called in question in any Court. But this bar of jurisdiction is restricted to any attack against the validity of the Instrument or any of its provisions. It does not work in any other direction and debar the Court from enforcing the agreement or any of its provisions between the citizens of Pakistan. In fact, this proviso itself expressly lays down that the provisions of the Act shall have effect subject to the provisions of the Instrument. In short by the terms of the proviso to section 6(4) of the Government of India Act, 1935, the validity of an Instrument of Accession or of any of its provisions shall not be called in question. Short of that there was no bar against any Court from entertaining any dispute for the enforcement of the Instrument of Accession or any of the guarantees, assurances and stipulations contained therein. The Courts cannot go behind the Instrument and challenge its validity but this does not debar these Courts to look into the effect of the Instrument on the rights of the main contesting parties before the Courts who are citizens of Pakistan in relation to a cause of action which for the first time accrued to them long afterwards on the death of the late Ameer on the 24th of May, 1966. The contention raised to the effect that the jurisdiction of the High Court was barred to entertain the dispute was, therefore, held as not tenable.
(c) As to the effect of the Acceding State (Property) Order, 1961.- (President's Order No,12 of 1961) on the Bahawalpur Merger Agreement, dated 17th December, 1954, executed between late Ameer of Bahawalpur and the then Governor-General of Pakistan; it was held:--
(i) Article 3 thereof simply provided a forum of exclusive jurisdiction for the settlement of disputes between the rival claimants to the succession to an acceding State or its Ruler concerning the devolution and distribution of their properties.
(ii) The provisions of the President's Order No,12 of 1961 are not at all in conflict with the Merger Agreement. The Merger Agreement does not expressly specify the forum for the settlement of any dispute arising out of it. This aspect is provided for in the President's Order No,12 of 1961. The provisions of this order do not override any of the provisions of the Merger Agreement and the two are complementary to each other. Indeed, on this view of the matter, most of the contentions advanced based on the supposition that the provisions of President's Order No,12 of 1961 have no overriding effect as against the provisions of the Merger Agreement were besides the point.
(iii) Article 7 of the President's order does not bar the jurisdiction of the High Court to entertain a petition challenging the validity of an order made under Article 3 of the Order, became thereunder it is only order made in compliance with its provisions, substance and form which are immune from challenge before the High Court and this immunity does not extend to any order passed by the Central Government which cannot properly be brought within the four corners of this Article and was in reality made in excess of the powers conferred by it. In support of this view reliance was placed on Khair Muhammad Khan v. The State PLD 1966 SC 604.
(iv) The Order, however, does not repeal the substantive law that may be applicable to the disputes of the kind arising between the parties. The disputes being of a civil nature touching important rights of the parties thereto, the Central Government in deciding these disputes must act judicially as a quasi-judicial Tribunal or a sole arbitrator constituted for their settlement.
' The Devolution and Distribution of Property (Ameer of Bahawalpur) Order, 1969, passed by the Central Government under Article 3 of the President's Order No,12 of 1961, is bad because--- ' it is based on the report of a Enquiry Commission consisting of two Members of West Pakistan Board of Revenue, whereas under Article 3 of the President's Order No,12 of 1961, the Central Government was vested with the power to decide the dispute in question by an order. There is no provision in this Order for the Central Government to delegate its authority and constitute a Commission or appoint any Enquiry Officer for holding an enquiry into the matter in dispute before it. The procedure followed is contrary to the principle "delegatus non potest delegare" and also against the principle contained in section 73 read with the provisions contained in Order XXVI of the Civil Procedure- Code dealing with issuance of Commissions. The Central Government in the discharge of its functions under Article 3 of the President's Order No,12 of 1961, could not therefore, entrust the entire enquiry to the Commission appointed by it for the purpose.
(ii) the order passed by the Government is not a "speaking Order". The distribution of the properties between the appellant (H.H. Nawab Muhammad Abbas Khan Abbasi) and respondents Nos.2 to 23 has been done at random without disclosing any basis for doing so. The properties enumerated in the First Schedule were vested in the appellant in his capacity as the Ameer and for so long as he was the Ameer. The remaining properties in dispute were divided between the appellant and respondents Nos.2 to 23 in severality as set out in detail in the Second Schedule. The parties were held liable for their share of the estate duty. There is no basis laid down for the inclusion of the properties in the First Schedule and to distinguish them from the rest of the properties in dispute included in the Second Schedule;
(iii) the distribution of the property in the Second Schedule of the impugned order cannot be justified either on the basis of the application of the alleged Customary Law or the Shariat to this case. In the absence of any valuation of these properties it cannot be said that the mode of division thereof was in accordance with the respective share of all the different heirs of the late Ameer under the Shariat Law.
(iv) the plea of the appellant that he was the sole heir and the entire property in dispute was Ameerate property attached to the Gaddi of the Ruler and, thus, devolved on him was rejected illegally, in limine, vide its letter, dated 10th July, 1967 without affording him any reasonable and adequate opportunity for hearing by the Central Government.
(v) the Central Government had not allowed any reasonable opportunity to tke appellant to show cause against that impugned order. The Central Government did not hear him before accepting the report submitted by the Commission of which he had no notice at all.
(e) As regards, the main contention of the appellant on the merits that under Article V of the Merger Agreement dated the 17th December, 1954, whereby the Government of Pakistan had guaranteed the succession according to "law and customs of the State of Bahawalpur" to the personal rights, privileges, dignities and title of His Highness the Ameer of Bahawalpur, as specified in Articles II to IV, which Articles relate back to the private properties, movable as well as immovable, not being the State properties belonging to the late Ameer of Bahawalpur on the date of the Merger Agreement; therefore, in view of the law and customs of Bahawalpur which was the rule of primogeniture applicable to this family the appellant succeeded to the Gaddi as a Ruler and the Ameerate and as the personal properties were attached to the Gaddi he was entitled to succeed to them to the exclusion of the respondents Nos.2 to 23, it was held that the Government of Pakistan had merely guaranteed the succession according to the "law and customs of the Bahawalpur State" and it did not guarantee the application of the customs in preference to the other laws in force in the State. This stipulation only means that the succession shall be according to rule of law in general. It did not mean that this rule of law was immutable for all times and that the Legislature competent to legislate in that matter could not pass any law modifying the law of succession in this behalf.
(f) On the question whether the appellant was immune and exempt from the payment of the estate duty and application of the West Pakistan Land Reforms Regulations, 1959 (MLR-64), it was observed that according to the Bahawalpur Merger Agreement, the late Ameer of Bahawalpur was entitled to the full ownership, use and enjoyment of his private properties, not being State properties. In this connection, a list of those properties was also drawn up and recognized by the Government. By this, it was agreed that these properties shall not be treated as the State Properties. But it did not mean that these properties, in the private ownership of the late Ameer of Bahawalpur, were, in any manner, placed above the law of the land and were not subject to it like all other owners of private properties. As a citizen of Pakistan, the laws of land were equally applicable to him, subject to the immunities, if any, and the personal privileges, dignities and titles enjoyed by hini and his family members.
' It was further observed that the question as to whether the private properties in dispute left behind by the late Ameer of Bahawalpur on his demise on the 24th May, 1966, were liable for the estate duty under the Estate Duty Act, 1950 had come up only indirectly. So far none of the competent authorities vested with jurisdiction in this behalf under the Estate Duty Act had passed any order against the appellant and respondents Nos.2 to 23. The provision made in the Devolution and Distribution Order for the proportionate payment of the estate duty that may be due from the heirs of the late Ameer was altogether gratuitous. The eventuality for the payment of the estate duty, if any, still remained to be ascertained at the hands of the competent authorities under the Act. It shall be for the appellant and respondents 2 to 23, after estate duty has been levied to the satisfaction of the competent authorities that they were saved from the operation of the Estate Duty Act. Since this matter is already pending before the Controller of Estate Duty no further opinion can be expressed at this stage."
15. The legal heirs of the late Ameer, supported the judgment of the High Court in both the appeals.
This Court after having heard the learned counsel for the parties, while dismissing both the appeals, on 7-4-1982 Government of Pakistan v, Brig. His Highness Nawab Muhammad Abbas Khan Abbasi and others PLD 1982 SC 367, held as under:-
(i) The argument of the Deputy Attorney-General that the instrument of Accession entered into by the Ameer with the Government of Pakistan amounted to an Act of State and, therefore, no proceedings can be initiated before the Courts of law in the country to enforce any of its terms, was not accepted and the meaning of the phrase "Act of State" as explained in the Superintendent, Land Customs Torkham (Khyber Agency) v. Zewar Khan and 2 others PLD 1969 SC 485 and special Reference under Article 187 of the Interim Constitution of the Islamic Republic. Of Pakistan by President Zulfiqar Ali Bhutto PLD 1973 SC 563, was followed/adopted that the said phrase (Act of State) "in its wider sense denotes "those acts of the Crown which are done in the exercise of its prerogative powers in the sphere of foreign affairs, such as, the making of war or peace, the accession or cession of territory, the recognition of a new State or the new Government of an old State. Acts of the latter kind are not justiciable in the Municipal Courts". It was concluded that the Government cannot plead an Act of. State against the subject and that the Courts are not debarred from examining the effect of Merger Agreement. As regards the Rule of primogenitures being asserted by Nawab Muhammad Abbas Khan Abbasi and his claim to succeed to the entire private properties of the late Ameer, to the exclusion of all the other heirs, on the basis of Article V of the'Merger Agreement, it was held that in Article V, no reference was made to private properties, that persohal rights did not include the "proprietary rights" and a distinction was made between personal rights and the personal property and on the basis of Article IV it was held that only two categories of property were recognized, the State property and the private property and no third category was envisaged. It was thus, concluded that whatever was not found to be State property was the private property of the Ameer and while State property was to be taken over by the West Pakistan Government under section 9 of the Establishment of West Pakistan Act, 1955, the dispute was only with regard to the succession to the private property and Article V of the Merger Agreement extended guarantee regarding succession according to law and custom of the State of Bahawalpur only to personal rights which did not embrace private property, consequently the question between heirs of the Ruler concerning devolution and distribution of the property could be decided by the President of Pakistan according to Article III of the Merger Agreement or the Central Government under section 3 of the President's Order No,12 of 1961. It was clarified that President's Order No,12 of 1961 was not in conflict with the Merger Agreement and was only complimentary to it.
(ii) The High Court had held that the distribution of the property under order of the Central Government had been done at random without disclosing any basis for doing so. This Court after having considered some documents placed before it, concluded that according to the report of the Inquiry Commission, the copy of which was not placed before the High Court, apart from the portion of the property in Schedule I, which was attached to the office of the Ruler to be held by the new Ameer subject to the condition that no part of it was to be alienated or transferred without prior permission of the Central Government, the rest of the property was divided among the heirs including the new Ameer, in accordance with the principle of Muslim Law, justice and fairplay. It was further held that "all the heirs 'had an adequate opportunity to represent their point of view before the Commission, which appears to have made strenuous efforts to ascertain the properties left by the late Ameer of Bahawalpur and get them evaluated, from Engineers (So far as urban properties were concerned) and Revenue Officers (as regards agricultural property) and to make as fair a distribution as was possible in accordance with their rights". It was expressly held that contention of the Nawab Muhammad Abbas Khan Abbasi that under the Merger Agreement, he was entitled to succeed to the entire property of the late Ameer, on account of the Rule of primogeniture, according to law and customs of the State, was without force. It was further held that the property was to be distributed in accordance with Muslim Personal Law (Shariat).
(iii) As regards the property in Schedule-I, which was awarded exclusively to Nawab Muhammad Abbas Khan Abbasi subject to certain conditions, on the ground that he being the successor to Ameerate, was entitled to some property apart from what was his rightfully share, in order to enable him to maintain his status as a Ruler, it was held to be not justified. It was reiterated by this Court that only two categories of the property viz. State property and the private property were envisaged in the Merger Agreement of 1954 and no third category of the property which was attached to the office of Ameerate, was envisaged therein. The argument of Mr. A.K. Brohi learned counsel of Nawab Muhammad Abbas Khan Abbasi, in this regard, was repelled by this Court in the following manner:- "The argument of Mr. Brohi that the Ameer of Bahawalpur was a Corporation Sole and the entire property belonged to the person occupying the office of the Ameer, is not correct. No statute was shown to us which creates the Ameer of Bahawalpur as a Corporation Sole, nor can he be deemed to have become so by the terms of the Merger Agreement. As State property was to be taken over by the West Pakistan Government under section 9 of the Establishment of West Pakistan Act, 1955 and possession thereof was accordingly taken over by it, only the private property was left and this had to be distributed among all the heirs in accordance with the principles of Muslim Law. Here we may mention that our attention was drawn to the fact that with effect from 20-12-1971 by the President's Order No,15 of 1972 on the subject to "Ruler of Acceding States (Abolition of Privy Purses and Privileges) Order, 1972" the right of a Ruler to a privy purse, and all other privileges or title guaranteed or granted to a Ruler by or under any instrument of accession, agreement or under any law were abolished and it was submitted that in the present context there is no point in reserving any property left by the late Ameer of Bahawalpur for maintaining the status and position of his successor as a ruler. We may observe that as the Instrument being relied upon in support of this submission (President's Order No,12 of 1972) was not in the field when the impugned Order of 1969 was passed by the Central Government it could not affect the situation."
(iv) It was thus, finally concluded that no property could be exclusively reserved for the present Ameer and the whole of the property which was declared as private property, apart from the State Property which stood taken over by the Government of West Pakistan, was liable to be distributed to all the heirs in accordance with the Muslim Personal Law (Shariat). It was however, further observed that the property covered by Schedule-II had not been distributed strictly in accordance with the Muslim Law but only "substantially", with it and therefore, the criticism of the High Court that the distribution of the property made by the Central Government to the various heirs of the late Ameer was not based on any principle, was well-founded. Consequently, the order of the High Court in remanding the case to the Central Government and for fresh decision in accordance with law, was maintained, however, as against the finding of the High Court the Authority of the Central Government to appoint an Inquiry Commission to ascertain the properties left by the late Ameer and to suggest the mode of its distribution to his heirs, was recognized and with these observations, both the appeals directed against the judgment of the High Court remanding the matter to the Central Government for a' decision afresh, passed in Writ Petition No,346 of 1969, were dismissed."
16. Civil Review Petition No,23 of 1982 instituted by Nawab Muhammad Abbas Khan Abbasi was dismissed by this Court Brig. H.H. Nawab Muhammad Abbas Khan Abbasi, Ameer of Bahawalpur v.
The Government of Pakistan and others PLD 1984 SC 67 on 27-11-1983.
17. It appears that after the decision of this Court referred to above, two Commissions were appointed by the Central Government for distribution of the estate of the late Ameer among the legal heirs but even upto the second round of litigation before this Court, till September, 2001, except for an interim package, announced by the second Commission in 1993, the dispute regarding distribution of the properties of the late Ameer among his heirs in accordance with the decision of this Court remained a cry. This was so observed by this Court at the stage of second round of litigation, in para.3 of its judgment dated 12-11-2001 Prince A.M. Abbasi and another v.
Government through Secretary and 24 others PLD 2002 SC 170.
18. The above said interim package was impugned in the High Court. The High Court maintained it and dismissed the writ petition which gave rise to Civil Appeal No,1915 of 1998 resulting in the above mentioned, judgment dated 12-11-2001 passed by this Court PLD 2002 SC 170 (supra).
19. This Court after having considered the entire history and circumstances of the case, in the above said judgment dated 12-11-2001 PLD 2002 SC 170 held that the interim package announced by the Inquiry Commission did not meet the ends of justice and was not in accordance with the directions of this Court contained in various pronouncements with regard thereto in general and the two cases: one fled by the Government of Pakistan PLD 1982 SC 367 (supra) and secondly by Brig. H.H. Nawab Muhammad Abbas Khan Abbasi (supra) PLD 1984 SC 67 in particular and it was concluded as follows:- "(16) The perusal of these judgments and the record, thus, warrants that the controversy shall have to be resolved afresh in accordance with the direction contained in the case of Government of Pakistan PLD 1982 SC 367 (supra) and the observation made subsequently in Review Petition in Brig.
H.H. Nawab Muhammad Abbas Khan Abbasi (supra) by this Court.
' Civil Miscellaneous Application No,1811 of 2000
(17) We have also considered the desirability of the appointment of the Committee by the Federal Government headed by a retired Judge of this Court. In order to decide all the questions arising out of the main controversy and taking into consideration the rights of all the heirs/claimants to the property of the Ameerate of Bahawalpur in the light of the two earlier reported judgments of this Court in Government of Pakistan (supra) and Brig. H.H. Nawab Muhammad Abbas Khan Abbasi (supra), it is expedient to intervene because the earlier Committees, namely Barlas Committee and Humayun Faiz Rasool Committee despite lapse-of more than thirty years have come up with only an interim package and could not resolve the intricate legal questions encompassing the controversy in its entirety. The Committee headed by a retired Judge of this Court would still be constituted by the Federal Government and all the assistance that would of necessity be appropriate in resolving the legal and factual issues under the guidance of the retired Judge of this Court heading the Committee would tend to minimize pitfalls and further litigation between the parties. We are, therefore, of the considered view that in the interest of justice, equity and fairplay and in order to render adjudication of the controversy once for all, the Committee to be constituted by the Federal Government for making recommendations shall be headed by a learned retired Judge of this Court.
' Conclusion
(18) Now the stage is set for considering out of the available retired Judges of this Court, the name of the learned retired Judge to head the Committee. After due consideration, we agreed on the name of Justice (R.) Abdul Shakoor-ul-Islam residing at Lahore these days to head the Committee for ascertaining the properties left by the late Ameer of Bahawalpur, the extent of the shares of various claimants therein and to suggest the mode of the distribution of the properties amongst the claimants/heirs, in the light of the two judgments rendered by this Court in (i) Government of Pakistan v. His Highness Nawab Muhammad Abbas Khan Abbasi and others PLD 1982 SC 367 and
(ii) Brig. H.H. Nawab Muhammad Abbas Khan Abbasi and others v. Government of Pakistan and others PLD 1984 SC 67 and make recommendations to the Federal Government of Islamic Republic of Pakistan accordingly.
(19) The remuneration of the learned Judge is fixed at Rs,5,00,000 in lump sum which shall include T.A./D.A. From Lahore to Bahawalpur and return for any number of visits, which shall be charge on the properties in dispute if the parties do not make contribution for the said purpose. The learned Judge is requested to conclude the recommendations within three months if possible. The constitution of the Commission shall be finalized and communicated by the Federal Government in the concerned Ministry to the learned retired Judge of this Court within sixty days with effect from today.
(20) The titled Civil Appeal No,1915 of 1998 is accordingly accepted, the impugned judgment of the learned High Court dated 3-7-1997 is set aside and the controversy is disposed of in the light of the above directions accordingly.
(21) In the circumstances of the case, we leave the parties to bear their own costs."
20. In pursuance of the above order, the Federal Government on 7-3-2002, constituted a Committee headed by Mr. Justice (R.) Abdul Shakoor-ul-Islam, which got published notices in various newspapers on 25-3-2002 and the said Committee after hearing a number of persons, claimants and the legal heirs of the late Ameer of Bahawalpur, submitted its report dated 5-6- 2002, recommending and concluding as follows:-- "32. (1) Properties left by the late Ameer subject-matter of the Supreme Court judgments are those mentioned in Mr. Abu Nasar's report and in the first and the Second Schedule of the Devolution and Distribution Order, 1969.
(2) The shares are: 3 widows 1/8 the rest of 7/8 amongst 10 sons and 10 daughters in the ratio of 2:1.
(3) Mode of devolution in view of the two judgments dealt with in the main report.
(4) Other matter about encroachers and disposal unauthorizedly relating to third parties, normal law of the land would take care. No benefit can accrue by groping in the dark.
(5) However, it has come to notice that some heirs had usufruct of agriculture land in their possession, while others did not have any land in their possession. The local revenue authorities may be directed to investigate and estimate the loss to those deprived of their due, and the Federal Government from the compensation of the resumed land, make necessary adjustment.
33. Recommendations 36 years have gone by many heirs, even their heirs have died in the meanwhile. Sharia Law is being applied for the distribution of the inheritance. So it is not only an official responsibility but an Islamic duty to finalize the matter as "soon as possible. Therefore, it is recommended that action may be taken step by step
34. Shares of the heirs are undisputed and these are 3 widows 1/8th the balance 7/8 amongst the 10 sons and 10 daughters in the ratio of 2:1.
35. ..
36. ..
37. ..
38. ..
21. The record further shows that another Committee was constituted under the Chairmanship of Mr. Justice (R.) Abdul Qadeer Chaudhry, a learned Judge of this Court, for implementing the abovesaid recommendations dated 5-6-2002 of the above Committee and at the stage when this Committee took certain steps for giving effect to the above said, the petitioners in both these petitions instituted the above mentioned writ petitions in the Lahore High Court, Bahawalpur Bench, which as mentioned above, were dismissed on 8-3-2004.
22. In view of the above mentioned, particularly the findings of this Court recorded in 1982, we find no merit in these petitions. However, as the learned Judges of the Lahore High Court, Bahawalpur Bench dismissed the writ petitions instituted by the petitioners in limine, through the impugned judgment with the observations that the same would not debar the petitioners from availing any other remedy(s) available to them under the law, we think it would be appropriate to simply dismiss these petitions so that the relief, if any, given to the petitioners through the above observations remains intact and is not taken away by us.
' In view of the above mentioned, we find no merit in these petitions which are dismissed. Leave refused.