MUHAMMAD BASHIR JEHANGIRI, J.---This appeal by Prince A.M. Abbasi and Princess Rafiquah Abbasi appellants with the leave of the Court is directed against the judgment of a learned Judge in Chambers of the Lahore High Court, Lahore, whereby Writ Petition No,16554 of 1995 was dismissed.
2. The detailed historical and factual background of the controversy has succinctly been noticed by this Court in the earlier round of litigation between the parties in this case and reported as Government of Pakistan v. Brig. His Highness Nawab Muhammad Abbas Khan Abbasi and others PLD 1982 SC 367 and Brig. H.H. Nawab Muhammad Abbas Khan Abbasi, Amir of Bahawalpur v. The Government of Pakistan and others PLD 1984 SC 67. It is, therefore, not necessary to reiterate the facts as they have already been narrated in all the essential details. The scope of this controversy has been in encapsulated in the leave granting order, according to which the dispute in the above appeal relates to the inheritance of property left by Al-Haj late Sir Sadiq Muhammad Khan Abbasi, the late Ameer of Bahawalpur State (The Ameer). The controversy emerged with effect from 19th February, 1969 when the Central Government issued Devolution and Distribution of Properties (Ameer of Bahawalpur Order), 1969, (the Devolution Order) which was published in Gazette of Pakistan (Extraordinary) on 20-2-1969. The Devolution Order was challenged by late Nawab Muhammad Abbas Khan Abbasi who was then the Ameer of Bahawalpur and had claimed all the personal properties of late Ameer of Bahawalpur, to the exclusion of other heirs, on the ground that under the law and custom of the State and the Rule of Primogeniture, he being the eldest son of the Ameer of Bahawalpur was entitled to inherit all of his properties. It appears that a learned Division Bench of Lahore High Court which was seized of the matter partly allowed the petition filed by Brig.
H. H. Nawab Muhammad Abbas Khan Abbasi by declaring that the Devolution Order had not been passed by the Government of Pakistan in accordance with law and, therefore, it was of no legal effect. The case was, however, remitted to the Central Government for fresh disposal of the dispute before it, in accordance with law. The above decision of the learned Division Bench of Lahore High Court was challenged by the Central Government as well as by late Brig. H.H. Nawab Muhammad Abbas Khan Abbasi in Civil Appeals Nos.128 and 129 of 1978, respectively. The decision of the last- mentioned two appeals is reported, as indicated earlier, in Government of Pakistan v. Brig. His Highness Nawab Muhammad Abbas Khan Abbasi and others PLD 1982 SC 367 whereby both the appeals were dismissed. While dismissing these appeals, however, it was observed that Nawab Muhammad Abbas Khan Abbasi was not entitled to claim the properties left behind by the late Ameer on the rule of Primogeniture. It was further observed that the entire estate of the late Ameer is to be distributed amongst all the legal heirs in accordance with the rule of Muslim Law. With regard to the appointment of Enquiry Commission by the Central Government, this Court did not agree with the view of the High Court and observed as under:-- "We may here clarify that we do not agree with the High Court that the Inquiry Commission appointed by the Central Government could not have been appointed for ascertaining the properties left by the late Ameer and to suggest the mode of its distribution to his heirs. In our opinion where a matter is to be decided by the Central Government which can be determined after making some inquiry it can, either itself hold the inquiry in any manner that appears to it to be necessary or justified or get such an inquiry made through its officers. If the latter course is followed it does not imply that it has delegated its powers in the relevant regard because the power throughout remains with it. The inquiry is only confined to fact finding and to making recommendations. The Enquiry Commission while conducting the inquiry must hold it after giving a fair opportunity to all concerned to present their point of view, before making their recommendations. It may give notice to the heirs requiring them not only to give their views about the mode of distribution of the property, but also to indicate if any property belonging to the later Ameer has escaped notice and has not been taken into account so far." 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 till date, except for an interim package; announced by the ,2nd Commission in 1993, the dispute regarding distribution of the properties of the late Atneer among his heirs in accordance with the decision of this Court, remains a far cry.
4. Since the dispute qua the distribution of the estate of the late Ameer involved lot of intricate questions regarding the status of the properties available for distribution among the heirs, this Court at leave stage suggested to the learned Deputy Attorney-General representing the Federal Government in the State and Frontier Regions Division, Islamabad to agree to the appointment of a retired Judge of this Court to head the Enquiry Commission but this suggestion was opposed by the learned Deputy Attorney-General and respondent Nos.5(i) to 5(v). This Court accordingly heard the learned counsel for the appellants and the caveator and reached the conclusion that- the interim package announced by the 2nd Commission (Barlas Commission) did not make out any basis for the interim distribution of the properties among the legal heirs of the late Ameer; that "Except for respondents Nos.5(i) to 5(v) all other heirs of the late Ameer are opposing interim package proposed by the Enquiry Commission which otherwise did not prima facie, appear to be proper as it had failed to spell out any sound basis for the interim package". This Court accordingly granted leave to appeal to consider whether in the circumstances of the case, the interim package announced by the Enquiry Commission met the ends of justice and was in accordance with the direction of this Court contained in various pronouncements made with regard to the dispute of inheritance of the properties of late Ameer.
5. About a year after granting.Leave to appeal respondents Nos. 5(i) to 5(v) moved an application on 13-11-1999 under Order XX, Rule 2 read with Order XXXIII, rule 6 of the Supreme Court Rules, 1980 for summary determination of the appeal. Besides respondents Nos.5(i) to 5(v) filed Paper Books Nos.IV to VIII containing the almost entire copies of the proceedings so far taken and the record of the disputed properties between the parties. Pending decision of the C.M.A. No,1318 of 1999 for summary disposal of the appeal as aforesaid, the Federal Government on 17-8-2000 moved an application through Mr. Tanveer Bashir Ansari, the then Deputy Attorney-General for Pakistan under Order XXXIII, rule 6 of the Supreme Court Rules, 1980, praying therein that "an Enquiry Commission headed by a retired Judge of this Court, may be appointed to determine and resolve the matter of Distribution/Devolution of the properties of the late Ameer for all times to come in the interest of justice. He further prayed for early hearing of 'the main appeal. A letter of Mr. Javid Akram, the then Secretary to Government of Pakistan in the Kashmir Affairs and northern Areas and States and Frontier Regions Division (SAFRON) addressed to Mr. Aziz A. Munshi, the then Attorney-General for Pakistan wherein the willingness of the Federal Government to the suggestion of this Court made to the learned Deputy Attorney-General who represented the Federal Government before this Court at the time of grant of leave to appeal referred to above was indicated and to the appointment of a retired Judge of this Court to head the new Enquiry Commission was agreed to. Since this letter has a direct bearing on the fate of this appeal, it is reproduced hereunder:-- "D.O. No,F.2(1)-Sec.VII/95-III Kashmir Affairs and Northern Areas and States and Frontier Regions Division, Government of Pakistan, Islamabad the 13th May, 2000 Subject: Distribution/Devolution of the Properties of Late Ameer of Bahawalpur. My dear Attorney-General, I would like to draw your kind attention that- this Division deals with the Affairs of ex-State and their Rulers.
2. After the death of former Ameer of Bahawalpur (Sir Sadiq Muhammad Khan Abbasi), the Central Government appointed a Commission in 1967 for the distribution of the properties left by the late Ameer. The recommendations of the Commission were approved by the President and in pursuance of Article 3 of the Acceding States (Property) Order, 1961, the Devolution and Distribution of Property Order was issued in 1969. The new Ameer of Bahawalpur (Brig. Muhammad Abbas Khan Abbasi) filed a writ petition in the Lahore High Court challenging the validity of the Devolution and Distribution of Property Order, 1969 and P.O. No,12 of 1961. The Lahore High Court remanded the case to the Central Government for a fresh decision in accordance with laws. Against the decision of the Lahore High Court, the Ameer of Bahawalpur preferred an appeal in the Supreme Court. In the light of the Supreme Court's judgment, the Federal Government appointed a Commission of Enquiry. On the recommendations of the Commission, the Federal Government constituted a Committee consisting of the Commissioner, Bahawalpur Division, Deputy Commissioner, Rahimyar Khan and a representative of States and Frontier Regions Division. The recommendations of the Committee were considered by a Committee under the Chairmanship of the then Cabinet Secretary which approved a package for the distribution of the urban property of the late Ameer. After the approval of the package for urban property by the President, the same was sent to the Commissioner, Bahawalpur for implementation.
3. Two of the heirs of the late Ameer, namely, Prince A. M. Abbasi and Sahibzadi. Ruqayya Abbasi, obtained stay order from the. Lahore High Court which was later on dismissed by the Court. They went to the Supreme Court of Pakistan. The Supreme Court granted Stay Order, which was later on vacated. The Supreme Court in its Interim decision of 28th December, 1998 (Annexure I) has inter alia stated that:-- We suggested to the learned Deputy Attorney-General to agree to the appointment of a retired Judge of this Court to head the Enquiry Commission but this suggestion was opposed by respondent No,5 in the above petition and the Central Government also did not appear to be agreeable to this suggestion.' On receipt of the judgment, the advice of the Law and Justice Division was obtained on some points (Annexure II). The advice of the Law and Justice Division is at Annexure III. In the light of the advice of the Law and Justice Division; you are requested to inform the Supreme Court that the Government of Pakistan is willing to agree to the appointment of a retired Judge of the Supreme Court to head the new Enquiry Commission which should determine a new package for the distribution of the property of the late Ameer of Bahawalpur on the basis of Shariah. This action would be contingent upon an undertaking by the petitioners to withdraw/pend their case before the Supreme Court. With best regard. Yours sincerely, (Sd.)
(Javed Akram). Mr. Aziz A. Munshi, Attorney-General of Pakistan, Islamabad."
6. This plea of the Federal Government was vehemently opposed by respondents Nos.5(i) to 5(v) by filing objections to the maintainability of the C.M.A. The original objection to the maintainability of the last-mentioned C.M.A. Had been placed on the file of C.M.A. No,1811 of 2000 at pp.13 to 15.
7. The Federal Government has thus agreed to the proposal of this Court referred to in the earlier part of the leave granting order to the appointment of a retired Judge of this Court to head the Enquiry Commission. After hearing the learned counsel for the parties, we deem it appropriate at this stage to amend the leave granting order adding thereto as to whether the Enquiry Commission for the distribution of the properties in dispute should be headed by a retired Judge of this Court as a lot of intricate questions regarding the status of the property available for distribution, among the heirs and the law applicable thereto are involved.
8. The learned Judge in Chambers of the High Court has observed in the impugned judgment that the 'matter of devolution/distribution of the property of late Ameer of Bahawalpur is in the melting pot for the last more than 30 years' and that, therefore, it was high time that this long-standing dispute should attract the attention of the Supreme Court to resolve once for all the controversy in order to alleviate the suffering of the parties which are aggravating on account of unconscionable delay. It was the view of the learned Judge that the late Ameer had been given substantial portion of property indicated in the 'First Schedule' in pursuance of the Devolution Order. But this mode of distribution was set at naught by this Court in terms unequivocally holding that the property of the Ameer of Bahawalpur ought to be distributed strictly in accordance with Shariah. The implication, according to the learned Judge, was that the claim of the late Ameer or his successors-in-interest distribution of the property on the basis of principle of primogeniture was not entertained.
Thereafter in order to implement the decision of this Court reported in Government of Pakistan v.
His Highness Nawab Muhammad Abbas Khan Abbasi and others PLD 1982 SC 367, a Federal Commission of Enquiry was constituted under the Chairmanship of Mr. H.U. Beg the then Secretary Finance to the Government of Pakistan. In Paper Book No,V filed by respondents Nos.5(i) to 5(v), it was noted by the learned Judge that the Commission held a number of meetings; all the known heirs were called upon to present their case personally; that the appellants and respondents Nos.5(i) to 5(v) presented their point of view through their respective counsel and thereafter it transpired from the perusal of the report that a lot of property was in possession of predecessor- in-interest of the writ petitioners who were supposed to safeguard and maintain it in their capacity as its custodians. The learned Judge further found that a negligible portion had been handed over to some other legal heirs, majority of whom according to the report, were virtually pauper having no means of subsistence in the absence of their share of property. The Committee observed in the report that the legal issues. Were being raised time and again with a view to buying further time and delaying the distribution of the property. The writ petitioners were even heard by the Committee which worked under the Chairmanship of Mr. Murtaza Barlas. Another Committee headed by Mr. Humayun Faiz Rasool also discussed the matter regarding the hearing of the heirs but as they had already been heard at length by the Committee, therefore, there was no point of hearing them again and again. The learned Single Judge further noticed that the interim package announced by the Committee was not of entire property left by Ameer which nonetheless needs to be implemented. Ultimately while dismissing the review petition reported in Brig. H.H. Nawab Muhammad Abbas Khan Abbasi, Ameer of Bahawalpur v. The Government of Pakistan and others PLD 1984 SC 67, the learned Judge observed that the matter of distribution/devolutions required determination of intricate factual controversies among the legal heirs of the late Ameer of Bahawalpur which was the exclusive function of the Central Government to determine and further that all the successive Committees tried to finalize the issue and now at this stage if this interim package is thwarted, it would certainly to the hopes of the other legal heirs who till date have been deprived of their due shares would dash to the ground and, therefore, dismissed the writ petition.
9. Mr. Naveed Rasool Mirza, learned Advocate Supreme Court, at the very outset contended that the impugned judgment of the Lahore High Court has completely ignored the direction contained in the case of Government of Pakistan v. His Highness Nawab Muhammad Abbas Khan Abbasi and others PLD 1982 SC 367. He further submitted that the appellants were condemned unheard when their application to the Distribution Committee admittedly remained unattended and in the proceedings of the Committee, the appellants were not given a fair hearing and, therefore, the impugned judgment of the Lahore High Court was coram non judice being violative of the principle of audi alteram partem. Reference was made to the law laid down in the precedent of Dina Sohrab Katrak's case PLD 1959 SC (Pak.) 45 and Anisa Rehman's case 1994 SCM R 2232. Mr. Naveed Rasool Mirza, learned Advocate Supreme Court, Mr. Fakhruddin G. Ebrahim, learned Senior Advocate Supreme Court and a number of other counsel representing the other respondents then respondents Nos.5(i) to 5(v) adopted the contentions raised by Mr. Naveed Rasool Mirza, learned Advocate Supreme Court. Mr. Fakhruddin G. Ebrahim, however, added that the Committee appointed by the Federal Government made recommendations in the shape of interim package.
The package which was impugned in the High Court was maintained and the writ petition was dismissed which gave rise to this appeal. According to Mr. Fakhruddin G. Ebrahim, the perusal of the appeal therein for the appointment of a Commission headed by a learned Judge of this Court made through this Court was initially opposed by the contesting respondents Nos.5(i) to 5(v) and the Federal Government separately but later on the Federal Government agreed to the said perusal and prayed for the appointment of the Committee which should be headed by a retired Judge of this Court which was a proper order.
10. As against this, Mr. Fazle Hussain, learned Advocate-on-Record representing the answering respondents Nos.5(i) to 5(v) opposed the appointment of a Committee headed by a retired. Judge of this Court saying that the said application of the Federal Government had been filed without any notice to the answering respondents or serving them any such notice. Mr. Fazle Hussain, learned Advocate-on-Record, also urged that even otherwise application styled under Order XXXIII, rule 6 of the Supreme Court Rules was tantamount to a review petition or for recall of the order dated 30-11- 1998 passed by this Court which was totally incompetent. It was also challenged having been filed mala fide to abuse the process of this Court. According to Mr. Fazle Hussain, learned Advocate-on- Record, the leave granting order passed by this Court on 30-11-1998 after notice to all the parties and after taking into consideration the various judgments/orders passed by this Court relating to the distribution of the property of late Ameer held the ground.
11. Mr. Fazle Hussain, learned counsel for the respondents also took serious exception to the appointment of a retired Judge of this Court to head the Committee on the ground that he being not the servant of the Federal Government, could not be so appointed, for his appointment would be tantamount to abdication of power vested in the Federal Government to distribute the property of Ameer of Bahawalpur, therefore, the request of the Federal Government to this extent should not be acceded to.
12. The contentions in our considered view are devoid of substance. No doubt, the Federal Government is that exclusive authority vested with the power to distribute the property of Amir of Bahawalpur according to the Presidential Order but it has not been debarred from seeking assistance of either the servants of the Federal Government or any other person/expert in the concerned field before exercising the power, therefore, the appointment of a retired Judge of this Court as head of the Committee which is merely recommendatory body and not a body to decide the matter finally does not amount to abdication of power by the Federal Government in its favour.
It may be significantly emphasized here that the said Committee shall make only recommendations qua distribution of the property of Amir of Bahawalpur but the ultimate decision rests with the Federal Government in the matter which can pass any order it deems fit as it will not be bound by the recommendations of the Committee.
13. We are of the considered view, therefore, that this Court while granting leave had very aptly took into consideration the long drawn out history of litigation of this case as highlighted in Government of Pakistan v. His Highness Nawab Muhammad Abbas Khan Abbasi and others PLD 1982 SC 367 and Brig. H.H. Nawab Muhammad Abbas Khan Abbasi, Amir of Bahawalpur v. Government of Pakistan and others PLD 1984 SC 67. Preceding the disposal of appeal against the order of the Lahore High Court by this Court, the High Court had held that the distribution of the property under order of the Central Government in pursuance of the President's Order "Devolution and Distribution (Ameer of Bahawalpur) Order, 1969" had been done at random without disclosing any basis for doing so and the properties had not been valued and that it was not clear whether the mode of division was in accordance with the Customary Law or Shariah Law. It was, however, held by this Court in Nawab Muhammad Abbas Khan Abbasi's case (supra) that the perusal of the report showed that apart from the portion of the properties in Schedule I which were attached to the Office of the Ruler and to be held by Ameer subject to the condition that no part of it shall be alienated or transferred without prior permission of the Central Government, the rest of the properties should be divided among the heirs including . The present Ameer in accordance with the principle of Muslim Law, justice and fair play. The question, therefore, arose before two cases cited above whether any interference was called for in the Devolution and Distribution Order, 1969 passed by the Central Government. Agreeing with the learned High Court in the first round that as valuable civil rights of the parties were involved the decision could not be taken arbitrarily but had to rest on some principle; that the rule of decision in the absence of any compulsion to the contrary could be only the Muslim Personal Law (Shariah); that no such compulsion existed to be governed by the law and custom of the State. It was accordingly concluded that the distribution of property made in the Devolution and Distribution Order is not in accordance with the said rule. The private property of the late Ameer was divided into two parts and dealt with in Schedule I and Schedule II of the Order. As regards the property in Schedule I, this was awarded, subject to certain conditions to the appellant (in Civil Appeal No,129 of 1978) on the ground, that he, being the successor to the Ameerate, was entitled to some property apart from that was his rightful share in order to enable him to maintain his status as a Ruler. In this context, it was further observed as under:- "The award of any property on this account, however, was not justified. We have already seen that only two categories of the property viz. State Property and the Private Property was envisaged in the Merger Agreement of 1954 and no third category of the property which was attached to the office of the Ameerate was envisaged therein. The argument of Mr. Brohi that the Ameer of Bahawalpur was a Corporate 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 Corporate 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."
' Even the property covered by Schedule II has not been distributed strictly in accordance with Muslim Law, but only "substantially" with it the other two factors being "justice" and "fair play".
Consequently the criticism laid down by the High Court that the distribution made by respondent No,1 therein (in Civil Appeal No,129 of 1978) in distributing the property to the various heirs of the late Ameer was found to be not based on any principle or rule or any law but on its own personal notions. Ultimately both the appeals directly against the judgment of the High Court in the earlier round of litigation remanding the matter to the Central Government for a decision afresh, passed in Writ Petition No,346 of 1969 were dismissed.
14. In the case of Brig. H.H. ,Nawab Muhammad Abbas Khan Abbasi (supra), the judgment in the case of Government of Pakistan (supra) was sought to be reviewed by the petitioners therein.
15. In view of what has been discussed above, we hold that in the circumstances of the case, the interim package announced by the Enquiry =mission does not meet the ends of justice and is also not in accordance with the direction of this Court contained in various pronouncements with regard thereto in general and the two cases: one filed 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.
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/clairnants 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 fair play 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-Salam residing at Lahore these days to head the Committee for ascertaining the properties left by the late Amir 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 TA/DA from Lahore to Bahawalpur and return for any number of visits, which shall be a 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 Committee 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.