Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Sahibzada MUHABAT KHAN ABBASI and others VS Respondent: GOVERNMENT OF PAKISTAN through Secretary, Kashmir Affairs and Northern Areas and States and Frontier Division, Islamabad (KANA & SARFRON) and others
Court Name: Supreme Court of Pakistan Judge(s): Faqir Muhammad Khokhar, M. Javed Buttar Title:Sahibzada MUHABAT KHAN ABBASI and others vs GOVERNMENT OF PAKISTAN
through Secretary, Kashmir Affairs and Northern Areas and States and Frontier Division, Islamabad (KANA & SARFRON) and others Case No.: Civil Petitions Nos.700 and 1539-L of 2004 Date of Judgment:2006-06-01 Reported As: 2007 SCMR 1649 Result: Petitions dismissed Judgment ORDER ' 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
---
## Page 2
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
---
## Page 3
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
---
## Page 4
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.
---
## Page 5
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
---
## Page 6
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
---
## Page 7
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…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.