1. ' NASIM HASAN SHAH, J.-This is a petition seeking review of this Court's judgment dated 7-7.1982 in Civil Appeals Nos, 128 and 129 of 1978.
2. The facts, which form the background, are that the late Ameer of Bahawalpur, Nawab Sir Sadiq Muhammad Khan Abbasi, had died on May 24, 1966, leaving behind 23 heirs. The petitioner herein Brigadier H. H. Nawab Muhammad Abbas Khan Abbasi, the eldest son of the late Ameer, was recognized by the Government of Pakistan as his successor vide order dated 4-6-1966. However, shortly thereafter, a majority of the heirs of the late Ameer approached the Government of Pakistan claiming succession to his personal properties. The petitioner disputed their claim on the ground that in accordance with the law and customs of the State of Bahawalpur, which were guaranteed by the Merger Agreement, the petitioner having succeeded to the Ameerate of Bahawalpur was also entitled to succeed exclusively to the personal properties loft by him as a part of his status as Ameer. The Government of Pakistan was of the opinion that this dispute between the heirs of the late Ruler concerning, as it did, the question of devolution and distribution of the property of a ruler of a Former Princely State fell for decision under the President's Order No, 12 of 1961, namely, the Acceding States (Property) Order, 1961, which, inter alia, provided that where any question arises directly or indirectly between parsons claiming to be heirs and successors of the Ruler of a State or claiming to succeed to the State, concerning devolution and distribution of any property of that State or of Ruler the question shall be decided by an order of the Central Government, Accordingly, a Commission consisting of two Senior Members of the Board of Revenue" was appointed under Article 3 of President Order 12 of 1961, to make inquiry and submit its recommendations with regard to the devolution and distribution of the private properties left by the late Ameer. In pursuance of the recommendations of the Commission with regard to the distribution of the property among the heirs of the late Ameer which were accepted by the President of Pakistan, the Central Government gave effect to them through an order called the Devolution and Distribution of Property (Ameer of Bahawalpur) Order, 1969 (hereinafter referred to as the Distal doe Order), whereby the personal properties left by the late Ameer were distributed among his personal law heirs in the manner specified therein. The broad features of the distribution were that property of the late Ameer was categorised under two Schedules, the first Schedule listed property movable and immovable which was to belong to the petitioner and vest in him as the Ameer of Bahawalpur in his capacity as Ameer and for so long as he was the Ameer. However, with respect to the above property vested in him be was made liable for the discharge of debts and liabilities of the late Ameer. Furthermore, he could not transfer the said property by sale or otherwise nor could he in any manner create any interest in or encumbrance thereon. Any transfer made or encumbrance created was to be void.
3. The rest of the properties, movable and immovable, were included in Schedule II which were directed to be distributed in severality between the petitioner and the remaining personal law heirs of the late Ameer, as indicated in the said Schedule.
4. The petitioner herein feeling aggrieved and dissatisfied with the aforesaid Distribution Order preferred a writ petition (W. P. No, 346 of 1969) in the Lahore High Court to challenge the legality and constitutional competence of the Government of Pakistan to invoke the provisions of the President's Order X11 of 1961 with a view to distribution the property of the late Ameer and to question the validity and propriety of the distribution made in the Distribution Order of 1969 promulgated by it whereby the property indicated in Schedule II was distributed besides him also amongst the personal law heirs of the late 'Ameer'.
5. The High Court, in its detailed and elaborate judgment passed on 4-12-1973 came to the conclusion that the President's Order 12 of 1961 was a valid piece of legislation and that thereunder the Central Government could pass an order for distributing the properties of the late Ameer.
6. However, the order with regard to the distribution that was actually passed, as set out in the Distribution Order, suffered from several errors, inter alia, it had been made at random without disclosing any principle on which it was made, no basis was indicated as to why certain properties were included in Schedule I, while the others were included in Schedule II, nor could the mode of distribution of the property included in the Second Schedule amongst the heirs be justified either on the basis of the Customary Law or on the basis of the law of Shariat. Hence, the matter was ordered to go back to the Central Government for disposal of the dispute afresh, in accordance with law. This was explained to mean the law in force in the State and not necessarily the Customary Law. The petitioner's writ petition was, accordingly, accepted in the above terms. The Government of Pakistan feeling aggrieved by the said judgment challenged it by filing an appeal in this Court (Civil Appeal No, 128 of 1978) asserting that any order passed by the Central Government with regard to the distribution of properties to the heirs of any Ruler of a princely State which had acceded to Pakistan and with whom the Government of Pakistan had entered into some agreements, was an act of State, which could not be scrutinised and questioned before a Court of law. H. H. Nawab Muhammad Abbas Khan Abbasi, petitioner herein, also felt aggrieved by certain findings recorded in the impugned judgment, especially the one to the effect that the Merger Agreement did not guarantee the application of custom in preference to the other laws in force in the State, which observations were considered might prejudice his case before the Central Government, while taking its decision in pursuance of the remand order.
7. ' Both these appeals were heard together by this Court and disposed of by its judgment dated 7-7- 1982. The Court upheld the finding of the High Court that President's Order No, 12 of 1961 was a legal and valid instrument in law and in no way conflicted with the Merger Agreement entered into by late Ameer of Bahawalpur with the Government of Pakistan. As for the question about the validity of Distribution Order of 1961 was concerned, the finding of the High Court that it suffered from several errors was found to be correct. It was observed that the State properties of Bahawalpur had been taken over by the West Pakistan Government under section 9 of the Establishment of West Pakistan Act, 1955, while the remaining properties were to be regarded as the properties of the Ameer. This was borne out by the Scheme of Articles of the Merger Agreement of 1954 which showed that only two categories of properties were recognised, the State property and the private property and no third category of impartible inalienable property attached to the office of the Ameer as such, was envisaged. Consequently, all the properties other than the property taken over by the West Pakistan Government as State property was liable to be distributed amongst the heirs of the late Ameer and there was no legal warrant for the division of the said properties into two categories, placing some under Schedule I and the rest in Schedule. II. No part of the private properties of the late Ameer could be set apart for being awarded to the petitioner alone and the whole of it was liable to be distributed, to all the heirs. The Court also agreed with the High Court that President's Order 12 of 1961 did not repeal the substantive law that may be applicable to the dispute, which was of a civil nature, touching important rights of the parties and held that it could not be decided merely in accordance with the Central Government's notions of justice, equity and fairness but could be decided only in accordance with the law applicable to the parties. This was found to be the Muslim Law (Shariat) and it was, accordingly, observed that all the private properties of the late Ameer were liable to be distributed in accordance with the rules of Muslim Law (Shariat). However, the limitations for dealing with the properties included in the Schedule 1, namely, that it could not be alienated or transferred or in any way encumbered was held to be outside the powers of the Central Government on the ground that such limitations could be imposed only by a legislative act and not simply by an order, made in exercise of a power to distribute the property among the legal heirs. The judgment of the High Court was, accordingly, upheld with the clarifications mentioned above. The plea raised by the Central Government that the Distribution Order of 1969 partook of the nature of an Act of State and, therefore, immune from challenge in a Court of law was also found to be untenable. Both the appeals were dismissed on 7-7-1982 with the above observations. The petitioner now seeks review of this judgment.
8. ' Learned counsel for the petitioner . Has urged a number of grounds in support of this question for review. In the first place he contended that one of the cardinal principles governing the grant of relief in constitutional jurisdiction is that the Court must be moved by an aggrieved party, there should be a lis before the court and the decision should be on the specific controversy raised before it and should not be extended to matters which have not been litigated by the parties before it. By the decision sought to be reviewed, this Court, has according to the learned counsel for the petitioner, granted relief to respondents Nos, 2 to 23 which they never asked for and decided points which were not in contest between them. By setting aside the allocation of properties placed in the two Schedules, particularly Schedule this Court has thrown the controversy wide open even on matters which were never before in controversy between the parties. In this connection, it is submitted that the respondents Nos, 2 to 23 had at no stage of the proceedings challenged the allocation of the properties included in Schedule I nor ever pleaded that any interference therein was called for. It was only the petitioner who felt aggrieved by the decision of the Central Government and his grievance too was limited, which he could have given up at any stage. As for the respondents, not only had they submitted and acquiesced in the decision of the Central Government but, in fact, had more than.Once expressed their satisfaction over it. Having renounced their claim to the property included in Schedule I they could not have been allowed to alter their position, nor should they have been granted relief insofar as their claim was barred by estoppel, acquiescence, renunciation. Furthermore, since the exercise of' constitutional jurisdiction by the High Court is governed by the provisions of Civil Procedure Code vide Hussain Bakhsh v.
9. Settlement Commissioner, Rawalpindi and others , the law of pleadings would control the exercise of the constitutional jurisdiction of the Superior Courts and they could not act suo note. This Court in travelling outside the pleadings of the parties had committed an error patent on the face of the record. In support of this submission attention was invited to West Pakistan Transport Company v.
10. The Transport Appellate Authority and others , The Provincial Government, N.-W. F. P. v. M. K. Musafir and another , Shankarlal Narayandas Mundade v. Thi New Mofussil Co. Ltd. And others and Fazl-e Haq, Accountant-Genera, West Pakistan v. The State .
11. ' Mr. Brohi, learned counsel for the petitioner also submitted that in so far as all the parties felt that the allocation of the property in Schedule I was in accordance with the principles of equity, fairness and justice, this Court should not, in these circumstances have interfered with it in exercise of its constitutional jurisdiction.
12. ' It was next urged by the learned counsel for the petitioner that the merits of the claim of the petitioner was borne out by the guarantee contained in the Merger Agreement read with the laws and customs of the State of Bahawalpur on the subject. After the recognition of the petitioner as the Ameer, following the law of Primogeniture, there was left no option but to allow the devolution of the late Ameer's property also according to the law of Primogeniture. If there was any property acquired subsequently to the Merger Agreement of course that could 'be treated and dealt with differently.
13. ' As regards the need, the jurisdiction and the propriety for such a review of the judgment by this Court the learned counsel referred and relied upon the decisions of this Court in Lt.-Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty, Government of Pakistan, Karachi and another and Syed Muhammad Zaki and another v. Maqsood All Khan and another .
14. ' Finally it was submitted that the matter was remanded by this Court to the Federal Government for decision afresh but the Officers of the Provincial Government (respondents Nos, 25 to 28) were presently dealing with the matter and not the Federal Government. According to the terms' of the judgment of the Court itself the Federal Government should have dealt with it and not the Officers of the Provincial Government and, accordingly, they should be restrained from intermeddling with the matter.
15. ' It appears that by an Adaptation Order issued in 1975, the Central Government was substituted by the Provincial Government and it is for this reason that the Officers of the Provincial Government are now dealing with the matter. Anyhow, in pursuance of the prayer of the petitioner, which was made through a civil miscellaneous application (C. M. P. No,' 547-R/83) that during the pendency of the review petition, the provincial authorities be restrained from dealing with the matter, the proceedings before :espondents Nos, 25 and 28 were stayed bf one of us (Nasim Hasan on 34-1973 in Chambers, pending the final determination of the review petition.
16. ' The learned Deputy Attorney-General, appearing on behalf of the Federal Government, supported the petitioner to the extent that this Court should not have interfered with the Distribution Order of 1969 and reiterated his erstwhile plea that the decision of the Federal Government under Article 3 of President's Order No, 12 of 1961 amounted to an Act of State and for that reason was immune from challenge in constitutional jurisdiction. He also supported the case of the petitioner that the controversy should not have been re-opened in respect of the properties comprised in Schedule I, because this was not disputed by the respondents. The division made by the Government conformed to and satisfied the principles of equity, justice and fairness and substantially gave effect to their right and should not have been upset in exercise of constitutional jurisdiction.
17. ' Mr. A. R. Sheikh, learned Advocate, representing respondent Nos, 2 to 9 contended that the petition did not satisfy any of the requirements for review. According to him, the learned counsel for the1 2 3 4 5 6 7 petitioner actually wanted a rehearing of all the legal points on which his submissions had already been heard and had been dealt with in great detail in the judgment. In support of his submission that a review petition was not competent in these circumstances he referred to some passages from the two decisions upon which Mr. Brohi had earlier relied upon, namely, Lt.-Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty, Government of Pakistan, Karachi and another and Syed Muhammad Zaki and another v. Maqsood All Khan and another and in addition, also drew our attention to some other decisions of this Court, namely, Mirza Akbar All v. Mirza Iftikhar All and others and the recent judgment of this Court in Zulfikar All Bhutto v. The State .
18. ' As regards the plea relating to admission, pleadings, acquiescence and renunciation of the respondents represented by him, it was contended that admissions are relevant but not conclusive and have to be put to the parfait under section 145 of the Evidence Act. Furthermore, this new ground cannot be made the basis for a review petition. Even otherwise, the learned counsel pointed out that the petitioner had made a frontal attack on the authority of the Government under President's Order No, 12 of 1961 to deal with the property at all. The Government in resisting the writ petition and, thereafter, in its own appeal before this Court claimed absolute immunity for its decisions and acts under President's Order No, 12 of 1961 on the plea that exercise of constitutional power in respect of States and their rulers was an act of State and not open to scrutiny in the supervisory jurisdiction' of the High Court. Thus, the points on which there was a controversy before the Courts included the question as to the validity of President' Order 12 of 1961 and the extent of power conferred on the Central Government by the said Order, namely, whether it had the unguided power o deciding the dispute however it wished or it was subject to any restraint and limitations in their exercise. The Court bad not, therefore, travelled outside the scope of the questions on which there was a lis between the parties. The rights of the respondents, according to the learned counsel, flowed directly from the declaratory judgment granted by the High Court, while deciding these questions especially that the Government is the forum and not the Judge of the law to be applied in deciding the dispute, and to declare what law was applicable was the function of the High Court and this Court. The respondents could not be denied the consequential benefits of the Court's declaration that the Shariat Law was to be applied for deciding the dispute with regard to the inheritance to the Properties of the late Ameer.
19. ' Mr. Abdul Hakeem Khan, learned counsel for respondents 20 to 23 contended that his clients were not signatories to the representation made to the President of Pakistan for allowing a part of the property to be set apart for the petitioner with a view to maintaining his dignity and status. He also pointed out that not all of them had subscribed to the counter-affidavit or to the compromise. In any case, the admissions if any, made being erroneous and gratuitous, in ignorance of their legal rights had to be ignored and in this connection he relied upon Muhammad Imam All Khan v. Sardar Hussain Khan .
20. ' After bearing the learned counsel for the parties at some length we find that the legal requirements for review of the judgment are not made out in the circumstances of the present case. As explained by this Court in the recent case of Zulfikar All Bhutto v. The State that before an error can be "a ground for review it is necessary that it must be one which is apparent on the face of the record, that is it must be so manifest so clear that no Court could permit such an error to remain on the record. It may be an error of fact or of law, but it must be an error which is self- evident and floating on the surface and does not require any elaborate discussion or process of ratiocination". There is no such error of fact or of law in the impugned judgment as may be said to be self-evident, floating on the surface, which the Court should not allow to stand in the record and thereby attract the power of review enjoyed by this Court.
21. The nature and amplitude of controversy brought to the High Court is evident from the nature of the stand taken by the petitioner in his writ petition and the resistance shown to it by the8 9 10 Government of Pakistan. In view thereof, the Court had of necessity to examine the constitutional position of Acceding and Merged States, the privileges and the status of rulers of such States, the powers reserved and the rights enjoyed under the Merger Agreement and President's Order 12 of 1961 and the exact law applicable to the parties while settling disputes between heirs and successors of a rule of a State concerning the devolution and distribution of any property that State or of the Ruler. The present instance was an illustrative case of the exercise of-supervisory constitutional jurisdiction of the High Co and the pleadings of the parties could neither control in every detail it exercise nor be decisive in the matter of the exposition of the constitutional ' position, the legal status of the Ameer, the powers enjoyed by the Government while deciding a dispute between the claimants of a deceased Ruler and the interpretation of and application of law in this regard.
22. ' As for the plea that this Court had allowed to respondents 2 to 23 more than what they themselves were claiming it may be pointed out that the matter has gone back to the Government for exercising its powers and functions within the limits of law indicated. If the petitioner feels that any pleading, acquiescence, estoppel, renunciation can be enforced against all or some of the respondents he has to make out a case in accordance with law before the Government which has been adjudged to be the forum for administering the law of the land in this respect. It may be pointed out that though our attention was drawn to the pleadings and the alleged compromise at the time of the hearing of the main appeals these were never sought by D anyone, not even the petitioner himself, to be made the basis of the decision of the issues involved. They cannot, therefore, be made the basis for obtaining review of our judgment.
23. ' As regards the relief to be granted and the extent of interference made by this Court we have simply affirmed the view of the High Court that there was a misconception on the part of everyone with regard to scope of the power enjoyed by the Government in the matter and indicated the specific law applicable to the question. The petitioner on his part thought that his recognition as Ameer was decisive of all questions, leaving nothing for the Government to decide. The Government on its part thought that it could decide the matter in any manner that it liked, applying any law it liked or none at all and simply implement its own notions of justice, fairness and equity.
24. The other respondents were interested only in "equitable distribution of this estate under current law" and in evolving for it "an acceptable formula under which the said distribution may be undertaken in the best interest of all concerned". That is an expectation or hope which may yet, even after the decision of this Court, be met and realized. If the Court had in the matter of relief riot given full effect to declaration of the law, and stopped short of it, the judgment would have ex facie become inconsistent and the Court would have been driven to undertake the role of administering the law itself by involving itself in intricate factual controversies and disputes. Which, as found by the Court in its impugned judgment, was the exclusive function of the Government to decide.
25. ' As regards the civil miscellaneous application (C. M. P. No, 547/R/1983) we do not see how it is linked with the petition for review of the judgment of this Court. Dated 7.7-1982 but concerns only the question of its execution and must fail on that short ground.
26. ' The upshot is that this review petition shall stand dismissed. The parties are left to hear their own costs. PLD 1970 SC 1 PLD 1965 SC 248 PLD 1965 SC 489 AIR 1946 P C 97 P L 1960 SC 295 PLD 1962 SC 335 PLD 1976 SC 3091 2 3 4 5 6 7