QAZI MUHAMMAD JAMIL, J.--Mohammad Saiful-Malk of Chitral has moved this Court for a declaration that the assessm ent of the price of hundred trees which he claims to be his private property out of the forest of Chitral by the respondents was made without lawful authority and of no legal effect. He has also prayed that the respondents be directed not to interfer with the said "hundred trees every year cumulatively or if, for reasons of larger national interest, it is not considered desirable to cut trees, the respondents be directed to pay the petitioner the market price of hundred trees every year as assessed by the petitioner".
2. Mr. K.M.A. Samdani, learned counsel for the petitioner gave back--ground of the former State of Chitral and its ruler and referred to certain documents such as Instrument of Accession executed by late His Highness Haji Muzaffar-ul-Mulk, the predecessor-in-interest of the petitioner on 6th November, 1947, whereby the State of Chitral acceded to the Federation of Pakistan, Supplementary Instrument of Accession of the Stale of Chitral and the agreement with Mehtar of Chitral regarding privy purse, private property and rights and privileges. These documents have been placed on the record by the petitioner. Out of the aforesaid documents, the Agreement Annexure "D/20" is relevant for the purpose of this petition. The terms of this agreement executed on 19th of March, 1953 between the Governor-General of Pakistan and the Mehtar of Chitral include the entitlement of the Mehtar to receive annually from the revenue of the State of Chitral for his privy purse, a sum not exceeding rupees ninety thousand and five hundred free of all taxes which was intended to cover all the expenses of the Mehtar of Chitral and his family. Article II of the agreement recognises 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 held by him as such private property". The details of the Mehtar's movable and immovable property was to be furnished by him to the Government of Pakistan within three months of the date of the aforesaid agreement.
3. The learned counsel for the petitioner has not been able to find out whether the aforesaid details of the Mehtar's property were furnished to the Government or not but it appears that the matter lingered on till 3rd of November, 1961 when the President of Pakistan approved the property mentioned in the communication addressed by the Deputy Secretary, Ministry of States and Frontier Regions, Rawalpindi to the Secretary, Government of West Pakistan, Home Department, Lahore, which also refers to the aforesaid approval of the President of Pakistan. The said communication is numbered as F.3 (9) F.11/61 dated 3rd November, 1961 and placed as Annexure "E/22" with this petition. This communication is the basis for the petitioner to lay his claim on hundred trees per annum out of the forest of Chitral. The subject of this communication is mentioned as "Settlement of private property of the Mehtar of Chitral". In eara. 1 of the said communication, the list of the property is given which is approved as the private property of the then Mehtar of Chitral. That list, no doubt, does not include the aforesaid hundred trees but in para 3 of the said letter, it is stated that "His Highness the Mchtar of Chitral may also be allowed one hundred trees per annum out of timber exported from Chitral".
4. The commitment made in the aforesaid communication was honoured from 1962 to 1964 by allowing the Ruler to cut from the forest hundred trees each year. Subsequently, it was realiscd by the Government that cutting of trees was not in the national interest and, therefore, it was decided that Rs.50,000 was to be paid for the trees only from 1964 to 1969 and not for the trees in future on the firm understanding and assurance given by the then Deputy Commissioner, Chitral that the Government was considering increase in his privy purse. As the Government of Pakistan did not accede to the recommendations of increase in the privy purse the then Mchtar refused to accept the compensation at the aforesaid rate of Rs.50,000. In the meantime from the year 1905-68 nominal sum ranging from 30,000 to 39,000 were paid into the account of the Mehtar by the Deputy Commissioner, Chitral. The Mehtar made representations to the Governor of N.-W.F.P. And the President of Pakistan for the restoration of his right to be benefited from auction of hundred trees each year. It also appears that Mchtar agreed in principle that instead of cutting aforesaid trees on the spot, he would be willing to accept the price of the said trees worked out in accordance with their market value, what followed thereafter is a long-drawn controversy between the Mehtar or his successor and the Federal Government as well as Provincial Government for determining quantum of money in lieu of the said hundred trees. The latest of such controversial assessm ent as mentioned in the petition was the one made in consultation with the forest department in the year 1981-82 amounting to Rs. 15,00,000 approximately which was duly recommended by the Commissioner Malakand Division to the Government of N.-W.F.P. But according to the petitioner the Finance Department of the said Government reduced the sum payable to the petitioner arbitrarily to Rs.4,15,000 per annum for further five years.
5. The only ground urged by the learned counsel for the petitioner is that the disputed hundred trees or their equivalent market value being the private property, having been declared so by the President of Pakistan, could not be interfered with by the respondents and the impugned action in arbitrarily fixing a certain amount to be paid to the petitioner in lieu of his claim to the said property or the market value of the same is violative of his fundamdental rights as enshrined in Articles 23 and 24 of the Constitution. The learned counsel argued that before executing the Instrument of Accession with the Federation of Pakistan, the ruler of the former State of Chitral was an absolute ruler and that he had certain defined private property. Referring to the above mentioned memorandum communication of 3-11-1961 the learned counsel stated that hundred trees out of the forest of Chitral were settled as private property of the former ruler which he cannot be deprived of by any act of Government of N.-W.F.P. Or to that matter of Federation of Pakistan.
6. Mian Mohammad Ajmal Khan, learned Additional Advocate-General appearing on behalf of the respondent No.1, has taken up the stand which has been consistently put forward by the Government of N.-W.F.P. That the said hundred trees were not the private property of the Mchtar and were never declared so and that it was ex-gratia grant made to him in view of the financial difficulties faced by him. He stated that as late Ex-Mehtar could not submit a list of movable and immovable property held by him as private property within the period stipulated by the aforementioned supplementary agreement, the Provincial Government submitted certain proposals to the Federal Government for determining such private property of the late Ex-Mehtar.
In their final recommendations, he was allowed hundred trees to supplement his otherwise meagre income. In the written comments they justified their recommendations on compassionate grounds and based on sympathy for the successor of late Mehtar who was then an infant. The learned Additional Advocate-General referred to the notification dated 31st of July, 1975 issued by the Government of N.-W.F. P. Home and Tribal Affairs Department, which gave the decision of Government of N: W.F.P. After taking into consideration the recomendations of Dir-Swat Land Enquiry Commission with regards to the private and personal property of Saiful Mulk Nasir, ex- Mehtar of Chitral. The authority to do so was derived by the sProvincial Government from the provisions of Distribution of Properties (Chitral) Regulation of 1974 (Regulation II of 1974). In the schedule with the notification, a number of items are given as to be the movable and immovable property of ex-Mehtar. The learned Additional Advocate-General pointed out that the disputed hundred trees do not find any place in the aforesaid schedule. On the contrary he argued that the forest of Chitral was declared as State property by the Provincial Government.
7. The issues involved in this petition are not as simple as they appear to the learned counsel for the parties. Their approach to the problem involved in this case was not profound enough to assist us in the controversial issues of constitutional importance to be resolved for settling the dispute before us- If the obligation of the Federation of Pakistan to the successor of the former Ruler of Chitral was a simple contractual nature this Court shall refrain from exercising its constitutional jurisdiction for the enforcement of contractual obligations. But the aforesaid obligations of the Federal Government basically arise from Instruments of Accession executed by late Lt.-Col. His Highness Haji Muhammad Muzaffar--ul-Mulk, Ruler of Chitral State. There is also on the record a supplementary Instrument of Accession executed by the heirs of said Ruler of former State of Chitral. Prior to independence and under British rule, India was divided into what they called British India and Indian States. British India was directly ruled from London and had a status of a colony externally and internally dependent on British Government, whereas the Indian States enjoyed a fair amount of internal independence with British Government having paramount power over them called suzerainty of British Government over the States. The Rulers of the said States helped the British Government to establish its rule in India and their co--operation with the British Government sustained its continued colonial rule over rest of India. Therefore, British Government not only protected them during their rule over India but also gave them options to join one of the Dominions, namely India and Pakistan or to remain independent after the British decided to quit India. Indian Independence Act, 1947, recognised the peculiar status of the Indian States and incorporated the said options in its provisions. The Accession to one of the Dominions was to take place by executing a document, called Instrument of Accession. Such an Instrument of Accession was signed by most of the States laying down the terms and conditions and the mutual obligations of the States and the respective Dominions which they wished to accede to. Strictly speaking the execution of such an Instrument of Accession shall be considered as a covenant between two independent States. The consequences flowing therefrom shall render obligatory on the part of both the parties, the State and the Dominion to implement the commitments made therein. On the strict point of view such obligations may not be the subject-matter of a dispute in the Municipal Courts of B Pakistan yet such obligations once having been merged into the jurisprudential fabric of the polity of Pakistan and the former Rulers having attained status of ordinary citizens the said obligations could be enforced through a Court of law.
8. The aforesaid Instrument of Accession executed by the Ruler of Chitral was duly accepted by the then Governor-General of Pakistan. The respondents have placed the said Instrument as Appendix-I with their written statement. The terms and conditions on which the said Ruler acceded to Pakistan are quoted below: "I accede to Pakistan on the same terms and conditions with regard to Defence, External Affairs and Communications as existed between me and the British Government and on the enjoyment of the same privileges I received from the British Government. Nothing in this Instrument affects the continuance of my sovereignty in and over this State or save as provided by or under this Instrument the exercise of any power or authority and rights now enjoyed by me in regard to the internal administration of my State."
There is to be found a schedule with the Instrument of Accession which gives detail of the matters with respect to which the Dominion Legislature may make laws for the State of Chitral. The subjects so narrated are confined to Defence, External Affrais and Communications. However, after the death of the former Ruler of Chitral his son executed a supplementay Instrument of Accession which virtually amounted to surrender of all the powers to the Government of Pakistan. The schedule to the said supplementary Instruments enhanced the items over which Federal Legislature may make laws to an extent that nearly no subject was left out from the purview of the said Legislature. The provisions relevant to the disposal of this case are to be found in para. 11 which reads as follows:- "xi. "I further declare that the subsidies which I have been receiving from the Government of Pakistan will now be paid into the State Treasury and shall form part of the State Revenues, in lieu of the privy purse which shall be determined with due regard to my requirements under a separate agreement."
Article I of the Agreement so executed declares the entitlement of the Mehtar of Chitral to receive annually from the revenue of the State of Chitral for his privy purse a sum not exceeding rupees ninety thousand and rive hundred free of all taxes as detailed in the schedule annexed to this agreement. Rest of the Articles deal with the nature of the privy purse and its mode of payment. For other purposes clause 2 of Article II is significant which is reproduced below:- "His Highness the Mehtar shall furnish to the Government of Pakistan within three months of the date of this Agreement lists of all the movable and immovable property held by him as such private property."
There are following provisions of clause 3 of Article II of the Agreement which may have repercussion on the outcome of the case before us:- "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."
It may be pointed out here that by the aforesaid Supplementary Instrument of Accession the Mehtar of Chitral declared that the Constitution of Pakistan to be framed by the constitutent Assembly of Pakistan would be the Constitution for his State. Consequently, on 21st day of February, 1966 another agreement was executed between the President and the Mehtar of Chitral who was then a minor and acted through the regent. This was a declaration as a sequal to the provisions of Supplementary Instrument of Accession to the effect that the Mehtar or the successor "shall bear true faith and allegiance to the Islamic Republic of Pakistan, conscientiously discharge the obligations of a citizen of Pakistan under the Constitution and the law ....". Thus the status of the Mehtar of Chitral as citizen was recognized and acknowledged.
9. To the above brief historical perspective certain legislative measures taken by both the Federal and Provincial Governments may also be added to complete the picture of Mehtar's status in Pakistan. Regulation I of 1969 was promulgated by the then Governor of erstwhile Province of West Pakistan which took away the exercise of any powers or performance of any function with respect to any matters falling within the legislative competence of the Provincial Legislature and relating to the administration of certain specified territories, namely, the Tribal Affairs comprising the former States of Dir, Swat and Chitral from the Rulers of such territories. The provisions of the said Regulation also transferred services of the employees of the former States to the Government of West Pakistan. But the most important provisions of the said Regulation in relation to the case in hand are laid down in its paragraph 5 which is re-produced below:-
5. Continuance of taxes-The proceeds of all taxes, fees, tolls, import and other moneys payable under or in accordance with any law in force immediately before the commencement of this Regulation, or any customs or usage having the force of law, towards the revenues of the administration of the specified territories, commonly known as the revenues of the State of Dir; the State of Chitral or the State of Swat, shall be payable towards the revenues of the Province of West Pakistan and all moneys so payable towards the public fund or any other fund of any such State shall be payable towards such fund of the Government of West Pakistan as the Provincial Government may direct.
Thus it will be seen that by Regulation I of 1969 Rulers of former States of Dir, Swat and Chitral were further deprived of their administrative and financial powers. The aforesaid legislative measure is still in the field and none of the aforesaid Rulers has questioned the same. By a Notification dated 13th November, 1971 an Inquiry Commission was appointed by the North-West Frontier Province Government to determine the private property of the Rulers of former States of Dir, Swat and Chitral and the property which is to be declared- as State property. Later on the N.-W.F.P. Government deriving its powers from Distribution of Property (Chitral) Regulation 1974, Regulation 11 of 1974 specified certain property given in the schedule of a Notification dated 30th July, 1975 as private property of Saiful Mulk Nasir, ex-Mehtar of Chitral. Similarly the said Government declared certain other property as to be the State property. In para. 5 of the aforesaid Regulation of 1974 it is provided that the State property shall vest and shall be deemed to have vested in the Provincial Government on or from the date of coming into force of the said Regulation. The forests of Chitral are included in the list of State property. The disputed 100 trees are not mentioned in the schedule of the aforesaid Notification pertaining to the private property of the ex-Mehtar of Chitral.
9-A.There is yet another piece of legislation significant for this case called President Order 15 of 1972 (Rulers of Acceding States (Abolition of Privy Purses and Privileges) Order, 1972). In the interpretation clause of the said Order, privy purse has been defined to include any allowance whatever payable to a Ruler under any Instrument of Accession, or other agreement (para. 3(b),.
After abolishing the privy purses and withdrawing other privileges of the Rulers of the Acceding States, the Central Government was empowered to grant in lieu of the privy purse and other privileges of a Ruler so abolished, maintenance allowance the standard of which has been laid down in para. 5 of the said Order. Para. 7 of the said Order further empowers the President of Pakistan to grant a Ruler any privilege, facility or concession for such period and on such conditions as he may determine. So at least since the prompulgation of Order 15 of 1972 on 18-4- 1972, the President of Pakistan could in his own discretion grant a Ruler any privilege, facility or concession. The privy purse which also included any other allowance under any Instrument of Accession or other agreement was abolished.
9-B. We have exhaustively dealt with the Instrument of Accession and other agreements flowing here from executed by the Ruler of Chitral and his successor and have also examined the administrative actions and legislative measures adopted by the competent authorities in order to determine the nature of the demand of the petitioner to the entitlement of 100 trees, or an equivelant value, annually from the forest of Chitral. There is no doubt, that the agreement executed on 19-3-1953 between the then Governor-General of Pakistan and the then Mehtar of Chitral with regards to his privy purse, other allowances and his private property was the direct result of Instrument of Accession signed by the said Mehtar and, therefore, is to be read as part of the said Instrument. It is also not disputed that the private property of the Ruler of Chitral as approved by the President of Pakistan was enlisted in detail in the above-quoted communication of the Central Government dated 3-12-1961. The provision of 100 trees per annum from the forest of Chitral is also given in the said communication. But the items specifically given as private property of the Ruler did not include the aforesaid 100 trees. A paragraph was added in the said communication which reads as follows:- His Highness, the Mehtar of Chitral may also be allowed 100 trees per annum out of timber exported from Chitral."
It is also pertinent to note here that the aforesaid notification issued by the N.-W.F.P. Government with regard to the private property of the Ruler also did not include the aforesaid 100 trees as his private property. As a matter of fact, the entire forest of Chitral was declared as State property.
Obviously, the said 100 trees cannot be termed as part of the privy purse of the Rules as the same has been specifically defined and determined in the aforesaid agreement of 19-3-1953.
10. The above-quoted para. Of the communication dated 3-11-1961, with regards to the grant of 100 trees per annum to the Ruler patently reflects by the language which is used therein that apart from the private property of the Ruler, he is to be allowed 100 trees per annum out of timber exported from Chitral. The word "allow" lends support to the argument of the Government of N.- W.F.P. That the said 100 trees was an allowance made to the Ruler and could not be called his private property. This has been made further clear by the subsequent notification made by the Provincial Government on the recommendations of Dir, Swat and Chitral Land Enquiry Commission with regards to the private property of the Ruler. Another significant part of the above-quoted contents of the communication of 1961 is completely ignored by both the parties, i.e, that 100 trees per annum are to be allowed to the Ruler "out of timber exported from Chitral". This means that no specific part of the forest consisting of 100 trees at any given time was earmarked for the Ruler but he was allowed a number of trees per annum from the timber which is meant for export from Chitral. Such a provision could hardly invest the Ruler with any right over the standing trees in the forest.
11. There is yet another aspect of the case. After the passage of President Order 15 of 1972, the privy purse and privileges which, as stated above, included any allowance whatever payable to a Ruler were abolished. It appears that wittingly or unwittingly the Ruler or his successor has since been negotiating with the President of Pakistan time and again as narrated above for the fixation of an allowance in lieu of disputed hundred trees. The Ruler and his successors have been conceding the fact that an allowance nearly equivalent to the handred trees shall be acceptable to them and at times they accepted the same. In such a situation, the claim of hundred trees per annum per se can hardly be called a claim to private property.
12. We, therefore, find that the disputed hundred trees to be ear-marked annually for the petitioner are not the private property of the Ruler of Chitral. As such, the assertion of the petitioner that his Fundamental Rights as enshrined in Articles 23 and 24 of the Constitution of Pakistan are being violated cannot be entertained. However, the Communication of 1961, which carries the stipulation with regard to hundred trees to be earmarked annually for the petitioner from the timber exported from Chitral has been subject of recognition by the respondents from time to time and is still being acted upon by them even if its terms are negotiated and disputed by the parties at times. We, therefore, find that such a stipulation, so long it has not been specifically withdrawn, has to be honoured in the light of the various decisions taken from time to time by the. Federal Government in consultation with the petitioner.
13. We, therefore, issue direction only to this extent that the commitment made in the aforesaid Communication of 1961 is to be acted upon in the light of various decisions taken by the President of Pakistan by mutual consultation with regards to the mode of its implementation. Rest of the prayer of the petitioner is not accepted. There shall, however, be no order as to costs.