P L D 1952 Federal Court 120 (PLP)

ABDUL RASHID, C. J.‑This is an appeal by special leave; preferred by Her' Highness Munawar Jahan Begum of Junagadh, from a decision of a Division Bench of the Chief Court of Sind, dismissing her application in the nature of habeas corpus. The appellant was arrested on a charge of an offence under section 302 of the Pakistan Penal Code, committed in Karachi. She presented a bail application in the Chief Court of Sind, and in order to determine whether she should be granted bail, the following letter was addressed by the Chief Court to the Government of Pakistan "Sir, I am directed by the Hon'ble the Chief Judge to state that Her Highness Munawar Jahan Begum of Junagadh, having been arrested by the police in Karachi under a charge under sections 302 and 201 of the Pakistan Penal Code, has applied for bail on the ground, inter alia, that as a consort of a foreign sovereign she is entitled to immunity from arrest and from any other form .of criminal process provided by the domestic legislation of this country. I am therefore to enquire whether the Government of Pakistan recognises His Highness the Nawab of Junagadh as a foreign sovereign, and if so, whether the Government of Pakistan recognises Her Highness Munawar Jahan Begum as his consort". The following reply was received from the Government of Pakistan :‑ "Sir, With reference to your letter No. C/326, dated the 2nd February, 1952, I have the honour to state as follows :‑ (a) The Government of Pakistan does not recognize His Highness the Nawab of Junagadh as a foreign sovereign. (b) The Government of Pakistan. recognizes Her Highness Munawar Jahan as His Highness' consort". It will be noticed from the letter of the Chief Court of Sind and the reply received from the Government of Pakistan that immunity from arrest was claimed by the Begum of Junagadh solely on the ground that she was the consort of a "foreign sovereign". The first question for determination, therefore, is whether the Nawab of Junagadh is a foreign sovereign so far as Pakistan is concerned. In my opinion, this question can be determined only on the information supplied by the appro priate Ministry of the Government of Pakistan and that no other facts or documents can be taken into consideration in determining the status of the Nawab of Junagadh. Reference may be made in this connection to the case of Mighell v. Sultan of Johore (a) 1894 1 Q B E

149. The following passage from the judgment of Lord Esher, M R may be reproduced with advantage :‑ "The first point taken was that it was not sufficiently shown that the defendant was an independent sovereign power. There was a letter written on behalf of the Secretary of State for the Colonies on paper bearing the stamp of the Colonial Office, and which clearly came from the Secretary of State for the Colonies in his official character. He is in colonial matters the adviser of the Queen, and I think the letter has the same effect for the present purpose as a communication from the Queen. It was argued that the judge ought not to have been satisfied with that letter, but to have informed himself from historical and other sources as to the status of the Sultan of Johore. It was said that Sir Robert Phillimore did so in the case of The Charkieh Law Rep. 4 A & E

59. I know he did ; but 1 am of opinion that he ought not to have done so : that when once there is the authoritative certificate of the Queen through her Minister of State as to the status of another sovereign, that in the Courts of this country is decisive. Therefore this letter is conclusive that the defendant is an independent sovereign". This question was also considered by the House of Lords in the case of Duff Development Company Limited v. Govern ment of Kelantan. 1924 1 K B

797. The following observations of Lord Finlay have an important hearing on the question that we have to decide :‑ "The question put was as to the status of the ruler of Kelantan. It is obvious that for sovereignty there must be a certain amount 'of independence, but it is not in the least necessary that for sovereignty there should be complete independence . . . . We were asked to say that it is for the Court and for this House in its judicial capacity to decide whether these restrictions were such that the Sultan had ceased to be a sovereign. We have no power to enter into any such inquiry. The reply of the Colonial Office to Master Jelf on October 9, 1922, states that Kelantan is an independent State in the Malaya Peninsula and that the Sultan is the sovereign ruler, that His Majesty's Government does not exercise or claim any rights of sovereignty or jurisdiction over Kelantan, and that the Sultan makes laws, dispenses justice through Courts, and, generally speaking, exercises without question the usual attributes of sovereignty. "In the face of this statement, it is hopeless to contend that the Colonial Office, by appending to its letter the agreements with Siam and with Great Britain, referred it to the Courts to decide upon these documents whether the Sultan was sovereign or not". It was urged that the reference to the executive govern ment was only one of the methods of determining the status of the husband of the appellant, but that a reference to the Government concerned does not deprive this Court of jurisdiction to determine this question by examining other documents on the record such as the Instrument of Accession. I find myself unable to accept this argument. Lord Finlay, in the judgment already referred to above, pointed out that even if the Colonial Office had sent certain documents to the Court together with its reply about the status of a foreign sovereign, it was not open to the Court to examine those documents for the purposes of determining the status of the person con cerned: The Court must regard the certificate as conclusive. This has been put even more explicity by Lord Atkin in his speech in the House of Lords in the case of Government of the Republic of Spain and S. S. Arantzazu Mendi 1939 A C

256. The following observations from the judgment deal effectively with the question at issue in the present case :‑ "The question is whether the Nationalist Government of Spain represent a foreign sovereign State in the sense that entitles them to immunity from being impleaded in these Courts . . .On the question whether the Nationalist Gov ernment of Spain was a foreign sovereign State Bucknill, J. took the correct course of directing a letter, dated May 25th, 1938, to be written by the Admiralty Registrar to the Secretary of State for Foreign Affairs, asking whether the Nationalist Government of Spain is recognized by His Majesty's Government as a foreign sovereign State. I pause here to say that not only is this the correct procedure, but that it is the only procedure by which the Court can inform itself of the material fact whether the party sought to be impleaded, or whose property is sought to be affected, is a foreign sovereign State. This, I think, is made clear by the judgments in this House in the Kelantan case. With great respect d do not accept the opinion implied in the speech of Lord Sumner in that case that recourse to His Majesty's Government is only one way in which the judge can ascertain the relevant fact. The reason is, I think, obvious. Our State cannot speak with two voices on such a matter, the judiciary saying one thing, the executive another. Our Sovereign has to decide whom he will recognize as a fellow sovereign in the family of States ; and the relations of the foreign State with ours in the matter of State immunities must flow from that decision alone". I respectfully agree with the opinions expressed in the three judgments to which reference has been made above. In my opinion, the information supplied by the Government of Pakistan is conclusive on the subject. It must be held, therefore, that the Nawab of Junagadh is not a foreign Sove reign. This question having arisen in the Courts in 1952, it is not open to us to determine this question on the interpretation sought to be placed on the Instrument of Accession executed by the Nawab of Junagadh in September 1947 and accepted by the Governor‑General of Pakistan. As the greater part of the argument of Mr. Sleem, on behalf of the appellant, was based on the terms of the Instru ment of Accession, I would like to state it as my opinion that the Nawab of Junagadh by entrusting the subject of External Affairs to the Government of Pakistan lost all international status and cannot, while in Pakistan, claim immunity from civil and criminal processes on the ground that he is a foreign sover eign. The State of Junagadh is now apart of the Federation of Pakistan, and all external sovereignty of the Units constitut ing the Federation has been absorbed by the Federal State, thus depriving the member States of their international status. The Nawab of Junagadh cannot, while in Pakistan, enjoy immunities which might be available to foreign sovereigns in Pakistan. As I have held the certificate of the Pakistan Government to be conclusive on the question of the status of the Nawab of Junagadh, it follows that he cannot be regarded as a foreign sovereign. The question whether his consort can claim any immunities that might be available to a foreign sovereign in Pakistan does not arise. The fining given above is sufficient to dispose of the appeal, It is, therefore, unnecessary for me to deal with a number of supplementary, questions that were raised by the parties at the time of the hearing. I would accordingly dismiss this appeal. AKRAM, J.‑This is an appeal with our special leave obtain ed by the Senior Begum of Junagadh against an order of the Chief Court of Sind, rejecting her application under section 491 of the Criminal Procedure Code for her release from illegal custody and detention in connection with a charge for murder. It appears that the appellant who is residing at present in Pakistan has been committed to the Court of Sessions at Karachi to stand her trial for causing the death of one of her maid‑servants within the Pakistan territory. The ground urged in support of her application before the Sind Chief Court was that under the International Law she was immune from the jurisdiction of the Courts of Pakistan, being the consort of His Highness the Nawab of Junagadh. who possesses the status of a foreign sovereign. It may be mentioned here that prior to the present applica tion under section 491 Cr. P. C. there was a previous application for obtaining bail for her and in connection there with the Chief Judge had made a reference to the Central Government of Pakistan asking for information on the follow ing points :‑ (a) Whether the Government of Pakistan recognises His Highness the Nawab of 'Junagadh as a foreign sovereign, and if so, (b) whether the Government of Pakistan recognises Her Highness Munawar Jahan (appellant) as his consort. The reply received in answer was :‑‑ (a) The Government of Pakistan does not recognise His Highness the Nawab of Junagadh as a foreign sovereign. (b) The Government of Pakistan recognises Her Highness Munawar Jahan as His Highness's consort. Acting on the basis of that information, the Chief Court of Sind dismissed the application under section 491, taking the view that as His Highness the Nawab of Junagadh was not a foreign sovereign he had no international status and conse quently no rights or privileges under the International Law. It is the above dismissal of the application under section 491 Cr. P. C. which has given rise to the present appeal. Counsel for the appellant contended before us :‑ (a) That the Court below was in error in acting solely upon the information supplied by the Central Government of Pakistan with regard to the status of His Highness the Nawab of Junagadh ; that whatever may have been the position prior to the creation of the two Dominions, subsequent thereto the British suzerainty lapsed and the Nawab of Junagadh, therefore, acquired full and absolute sovereignty in and over his State ; that his status, therefore, depended on a proper construction of the Instrument of Accession and not on any view of it taken by the Executive Authorities of the Dominion of Pakistan ; that it was for the Courts alone to construe and interpret the said Instrument of Accession. As regards the above contention, the decided cases clearly lay down that if a foreign Government or its sovereign is not recognised by the Government of a particular country, the n Courts of that country will not recognise such foreign Govern ment or its sovereign. Aksionairnoys Obschestvo A. M. Luther v. James Sagor and Co. 1921 3 K. B.

532. Also that the state ment by the Foreign Office relating to the question whether a E foreign State or Government has been recognised is conclusive and final. Duff Development Co. v. Government of Kelantan 1924 A. C. 797 at

814. Reference in this connection may also be made to Martin Wolff's Private International Law 1945 Edn., p.55, and Oppenheim's International Law 6th (1947) Edn., Vol. I, p

684. But if in spite of the above decisions and authorities one is inclined to advert to the Instrument of Accession one would find that the Schedule thereto clearly shows that all external affairs of the State have been made over and entrusted to the Dominion of Pakistan. I am therefore, of opinion, that the Chief Court of Sind, pursuant to the information furnished by the Government of Pakistan, acted rightly in not recognising the claim that His Highness the Nawab of Junagadh was a foreign sovereign. (b) That the Court below was in error in holding that the sovereign should be a foreign sovereign before he can avail himself of the rights and privileges suggested by the Interna tional Law : inasmuch as mere sovereignty was quite sufficient 'to attract the principles of the International Law. Reliance in support was placed on the following passage in the case of Statham v. Statham and the Gaekwar of Baroda L R (1912) p. 92. "Grotius (De Jure Belli ac Pacis) says unequal leagues are made not only between the conquerors and the conquered, but also between peoples of unequal powers even such as never were at war with one another. Grotius, Pufendorf, and VattA agree that in unequal alliance the inferior power remains a sovereign State. Its subjects or citizens owe allegiance only to their own sovereign. Over their disputes and internal dissensions the suzerain power as such has no jurisdiction. In short, the weaker power may exercise the rights of sovereignty so long as by so doing no detriment is caused to the interests or influence of the suzerain power. It follows that the inferior power must in all alliance with other States be controlled by its suzerain. Vattel says a weak State which in order to provide for its safety places itself under the protection of a more powerful one and engages to perform in return several offices equivalent to that protec tion, without, however, divesting itself of the right of government and sovereignty, does not cease to rank among the sovereigns who acknowledge no other law than the law of nations." But the above observation does not seem to me to lend support to the contention that even ‑sovereigns who occupy a some what subordinate position are entitled to an international status and the rights and privileges of the International Law. All that it implies is that by surrendering some of their powers the sovereigns do not necessarily cease to remain a sovereign. It may be interesting here to note that in the same report at p. 94 occurs the following passage :‑ "Several weak but troublesome princes succeeded in succes sion to the throne of Baroda, and in 1874 the then‑reigning Gaekwar was by order of the British Government brought to trial on a charge of attempting to poison the British resident at his Court. The trial was conducted before a mixed commis sion of eminent British officers and natives of the highest rank. A unanimous verdict was not obtained, and in the result the then Viceroy of India, Lord Northbrook, deposed the Gaekwar and appointed another member of the royal house of Baroda to reign in his place." It is apparent that this was neither a judicial trial nor a judicial order, but I have referred to the proceeding merely to point out that if the real purpose of immunity from local jurisdiction is to maintain royal prestige and dignity how then that purpose can be served if the sovereign remains amenable to the jurisdiction of a political commission, though not of a judicial tribunal. The true position, therefore, seems to me to be that sovereigns of this class, who acknowledge subordina tion in some vital matters to the will of some other sovereign are not sovereigns generally entitled to the privileges of the International Law. It is not uncommon nowadays to find sovereigns of States with absolute rights in some respects (internal administration) but with no right or rights subject to strict control, in other respects (foreign relations). The degree of power enjoyed by them generally depending on the arrangements arrived at between them and the Federal Government or some suzerain power. It is very rarely indeed for a sovereign of this class to be given a right to send ambassadors or envoys to represent themselves in other countries. The result naturally is that as such sovereigns have no international relations no occasion for them arises for invoking the International Law But what ever the theories in this respect may have been on the question of immunity under the International Law, the modern Law stated by Martin Wolff in his Private International Law, (1945 Edn., p. 55) is as follows :‑ "Immunity is granted (1) to foreign sovereign States. Non‑sovereign states such as member‑States of a Federal State (Prussia, the Canton of Berne, Connecticut) are not exempted from jurisdiction; they are incapable of exercising any rights of sovereignty in the international sphere. The immunity exists only in favour of those States which have been recognised as such in this country. If the Court is in doubt as to the defendant's quality as a sovereign State it may apply for information to the Foreign Office, and the resulting information is then conclusive." The following passage in Birkenhead's International Law (6th Edn., p. 40) may also be noticed :‑ "In the case of a Federal system, on the other hand, International Law takes cognizance only of the union and disregards the separate States. Here the constituent States of the federation have surrendered to a central authority the entire control of their foreign relations ; they thus form a Bundesstaat, of which the most notable examples are the United States of America and Switzerland." Oppenheim in his International Law‑6th (1947) Edn., Vol. I, p. 166 declares . Since it is always the Federal State which is competent to declare war, make peace, conclude treaties of alliance and other political treaties, and send and receive diplomatic envoys, whereas no member‑ State can of itself declare war against a foreign State, make peace, conclude alliances or other political treaties, the Federal State, if recognised, is certainly itself an international person, with all the rights and duties of a sovereign member of the Family of Nations. On the other hand, the international position of the member States is not so clear. It is frequently maintained that they are deprived of any status whatsoever within the Family of Nations. But there is no justification for that view." Thus it appears that a sovereign who is not a foreign sovereign is not entitled to rights and privileges suggested by the International Law. It must not .be supposed, however, that mere proof of status as a foreign sovereign is sufficient to attract the rights and privileges of the International Law because it is further necessary to show (i) what actually the International Law is upon the subject, and (ii) whether it is recognised by the State in which it is sought to be enforced. With regard to (i) what the International Law is upon the subject of crimes in the present case ; it may prove interesting to set out here the views expressed by some of the writers on International Law. Halsbury's Laws of England, Vol. IX, p. 245, para. 520 states as follows :- "By the comity of nations a reigning sovereign of another State is treated as exempt from the criminal‑ as well as the civil jurisdiction of all other countries. No one but a sovereign is personally exempt in England from criminal jurisdiction to which all persons who reside in the country, whether subject or aliens, are liable." But Oppenheim in his International Law 6th (1947) Edn., Vol. I ; p. 678, observes :‑ "On the other hand, he (sovereign) must be exempt from every kind of criminal jurisdiction. The wife of a sovereign must be accorded .the same protection and exemption." Phillimore in his commentaries on International Law 2nd Edn., Vol. II, p. 132, states as hereunder :‑ "CVI. But may the delinquent sovereign, under any circumstances, be rendered amenable to the criminal jurisdic tion of a foreign country ? It is difficult in a treatise on law to answer a question which is founded upon the supposition that the representatives of the majesty of the law are the criminals to be tried by the law. If, however, the question must receive a categorical answer, the answer must be in the negative. The historical precedents which might appear to counten ance a contrary opinion are valueless. "Nihil igitur in hoc argumento" proicies rebus similiter a gentibus judicatis," is the just observation of Bynkershoek.. CVII. It is obvious, moreover that this class of cases is happily so rare, and the instances cited are so exceptional in their nature, both from their own circumstances and from the periods of history in which they happened, that Interna tional Law cannot rely upon them as exponents of usage in this arduous matter, but must guide the inquirer by the reason of the thing applied to the exigency of each particular occurrence." (ii) But whatever may be the International Law with regard to the question of immunity in capital crimes, the correct exposition of it seems to be that it cannot have any force or effect in any particular State unless the Government of that State assents to or recognises it. It is manifest that as none of the sovereign States will allow a superiority in the others, so neither can dicate or prescribe any kind of law for the rest. The International Law, therefore, which originates "in the practice and usage long observed by civilised nations in their relations towards each other or in express international agreement" is given effect to by the Courts of Municipal Law only in so far as it is recognised either expressly or impliedly by the State from which those Courts derive their own juris diction and authority. To quote the language used by Lord Alverstone in Weste Rand Central Gold Mining Company v. Rex 1905 2 K B 391 at p. 406. "It is quite true that whatever has received the common consent of civilized nations must have received the assent of our country, and that to which we have assented along with other nations in general may probably be called Inter national law, and as such will be acknowledge and applied by our municipal tribunals when legitimate occasion arises for those tribunals to decide questions to which doctrines of International Law may be relevant. But any doctrine sc invoked must be one really accepted as binding between nations, and the International Law sought to be applied must, like anything else, be proved by satisfactory evidence, which must show either that the particular proposition put forward has been recognised and acted upon by our own country, or that it is of such a nature, and has been so widely and generally accepted, that it can hardly be supposed that any civilized State would repudiate it. The mere opinions of jurists, however eminent or learned, that it ought to be so recognised, are not in themselves sufficient. They must have received the express sanction of interna tional agreement, or gradually have grown to be part of International Law by their frequent practical recognition in dealings between various nations ...........................................But the expressions used by Lord Mansfield .when dealing with the particular and recognised rule of Interna tional Law on this subject that the law of nations forms part of the law of England, ought not to‑be construed so as to include as part of the law of England opinions of text writers upon a question as to which there is no evidence that Great Britain has ever assented, and a fortiori if they are contrary to the principles of her laws as declared by hex Courts." As in the present case it has not been shown that His Highness the Nawab of Junagadh is a foreign sovereign and that the particular principle of immunity claimed under the Interna tional Law has been recognised by the Government of Pakistan, the appellant cannot succeed in her appeal and the appeal must, therefore, be dismissed. CORNELIUS, J.‑I agree that the appeal should be dis missed and would like to add a few observations of my own. The case is the first of its kind in Pakistan, and I have the impression from the arguments presented at the bar that no case of this kind has ever occurred in the sub‑continent of India during the entire period for which judicial records have been maintained there. In one particular respect, it is even possible that this case is unique of its kind in the world. The researches of learned counsel have failed to produce any prece dent case of a female consort of a sovereign or self‑styled sovereign claiming immunity in relation to a capital charge preferred in the foreign country. There is indeed a case of a deposed Queen of Sweden who had sought refuge in France where it was alleged against her that she had caused the death of one of her chamberlains through some process of justice prescribed by herself, but although it appears that the French Government of the time granted immunity to the ex‑queen, the point of difference remains, namely, that she had been a queen in her own right. Unchivalrous though it may seem, it must be pointed out that the leading authorities on this branch of International Law have never couched their pro positions favouring the immunity of a sovereign's consort in any but the language of suggestion or presumption. This, as well as the fact that writers are not wanting who boldly deny such immunity, may perhaps be traced to the complete absence of all precedents. Particularly in matters of reciprocity, the International Law as accepted and applied by the nations is based very largely on practice, and speaking for myself, were the claim of the appellant's husband to be a sovereign better grounded than on analysis it proves to be, I should still have found myself most reluctant to confer upon Pakistan the dis tinction of being the first State in history to allow a claim of immunity, such as that advanced by the appellant in practice. As immunity for a consort is inconceivable unless the "sovereign", whose consort he or she is, enjoys immunity, the case must stand or fall, according as His Highness the Nawab of Junagadh himself can rightly claim immunity or otherwise. Put shortly, the Crown's resistance to the claim is based upon the information supplied by the Government of Pakistan to the Chief Court of Sind, that the Nawab is not recognised by that Government as a foreign sovereign, Which information is said, on the strength of the Johore case L R (1894) 1 Q B 149 and the Kelantan case L R (1924) A C 797 to be of decisive effect. The reply on this point on behalf of the appellant is twofold. Firstly, it is said that what has been supplied by' the Govern ment of Pakistan in answer to the enquiry of the Chief Court of Sind is not information, but the very conclusion which the Court itself was required to reach. The criticism is hardly tenable for the question before the Court was not whether a certain State claiming the immunity belonging to a foreign sovereign under International Law, was in fact a foreign sovereign or not, but whether the claim of immunity was well -founded and as to recognition that was a matter exclusively for the executive Government of the country, in which the Courts could not possibly have any say. The Supreme Court of the United States in Gelston v. Hoyt (1818) 3 Wheat 246 has stated this proposition in the following words : "No doctrine is better established, than that it belongs exclusively to Governments to recognise new States in the revolutions which may occur in the world". One may, however, in so far sympathise with the view ex pressed by the appellant's counsel that a Court whose primary function is to do equal justice between the parties before it, may often feel that the Government's recognition, necessarily based on purely political considerations, notwithstanding that such action may be guided by the larger interest of the country as a whole, does not take sufficiently into account the indivi dual injustice to a subject of the realm which ensues. It is accepted in the practice of the British Courts that, when faced with such a certificate of sovereignty, it is not open to a Court to examine other evidence in order to invalidate this certi ficate ; the certificate furnishes conclusive evidence upon which the Court must act. Yet instances are not wanting in the British case‑book‑perhaps the Kelantan case is a fair example where, despite the existence of patent drawbacks on the powers exercisable by a State, not only in the international sphere, but even in its domestic affairs, recognition of sovereignty has been accorded to it by the Government of the time, resulting in a complete denial of justice to the opponent, who was a subject. Such cases appear to me to point to the advisability, in proper cases, of some enquiry by the Courts into the facts and circumstances underlying the claim of sovereignty, which has received Government recognition. Admitting that the Courts are less well‑situated than the Government to ascertain the facts relevant to determination of such difficult questions as the exact point where a State becomes independent or loses its sovereignty, whether a pretended Government satisfies the conditions necessary for recognition de facto, or whether a de jure Government has lost its right to recognition as such, it is nevertheless impossible wholly to deny that a Court may, by its own unaided powers, or with the help of the opponent, be able to furnish further and better information to the Government of a kind calculated to affect any decision regard ing the claim of sovereignty by one of the parties before it. Since the Government are not bound by a certificate once issued, and may withdraw recognition at any time, and since ex hypothesi, the claim is by a person whose "sovereignty" is under an evident cloud, leading him to seek constitutive recog nition from a Court of a foreign sovereign, such a course, being within the power and duty of a Court, may be directly ad vantageous to the interests of justice. If the view of the Government remains unchanged as a result of such reference the Court, of course, must accept the certificate and act upon it. Conceivably a Court may, in a proper case make a similar reference' on behalf of a claimant who has not been recognised for purposes of immunity. It is from this point of view that I propose to second part of Mr. Sleem's argument. which may be stated as follows. As is provided by clause (b) of subsection (1) of section 7 of the Indian Independence Act, 1947, the sove reignty of the British Crown over the Indian States of which Junagadh was one, together with all treatise and agreements then in force between the Ruler of Junagadh and His Majesty the King of England, lapsed on the 15th August, 1947, and the consequence was that the Ruler of Junagadh, becoming free of all control by any State or authority on earth, was con stituted a sovereign Ruler of an independent State. It was in that capacity that he negotiated with the Government of Pakistan and finally concluded on the 15th September 1947, an Instrument of Accession. A copy of this Instrument has been placed on the record and by virtue of subsection (9)‑ of section 6 of the Government of India Act, 1935, this Court is required to take judicial notice of it. Reference was in par ticular made to the fact that the Nawab expressly declared that, he executed the Instrument "in the exercise of my sovereignty in and over my (said) State". In clause (8) of the principal part of the Instrument, which was accepted by the Governor‑General of Pakistan by signature in writing, the following words occur :‑ "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 powers, au thority and rights now enjoyed by me as Ruler of this State. A schedule is annexed, which is divided into four parts, under the following sub‑headings:‑ A.‑Defence. B.‑External Affairs. C.‑Communications and D.‑Ancilliary. Under each sub‑head there are placed a considerable number of subjects, and it is not denied that the enumeration of these subjects is sufficiently exhaustive to effect a complete transfer of executive and legislative power in respect of the main subject, as indicated by the sub‑heading, to the Government of Pakistan. While admitting that as a result, there was com plete transfer of power to enter into relations with foreign States, Mr. Sleem appeared to argue that the residue of powers left with the Ruler, which could be gauged from the remaining subjects included in the lists contained in the 7th Schedule to the Government of India Act, cover a very wide field, and in the exercise of these powers, the Ruler is free of alt control. The mere fact of one State being in some respects dependent) upon another State was not sufficient to deprive the former State of all pretension to sovereignty, but on the other hand, there were numerous instances where the British Courts in the United Kingdom have granted judicial immunity to Indian Ruling Chiefs as well as Rulers of the Malay States, despite patent drawbacks in several respects upon the completeness of their sovereignty. It was true that in all those cases certificates of sovereignty had been procured by the claimant from appro priate Secretaries of States, and that here the' appropriate Ministry had, by their certificate, negatived the claim to sovereignty but he (Mr. Sleem) was contending that the action taken by the Pakistan Ministry was not supported by the facts within their knowledge. The Government of Pakistan were aware when they accepted the Instrument of Accession that Junagadh was an independent sovereign State and having themselves by the Instrument. defined the area within which the administrative functions of the State were to be appropriated by the Pakistan Govern ment, they could not deny that clause (8) of the Instrument reserved to the Ruler a very great measure of his original sovereignty. The contention that by the lapse of the suzerainty previous ly exercised over the Indian States by the British Crown, each of those States became forthwith an independent sovereign State, in the eye of International Law, appears at first sight to be logical, and I confess that I was attracted also at one time by the consideration that in accepting the control of external relations in respect of the territory of Junagadh from the Ruler, the Government of Pakistan must be deemed to have conceded that the Ruler possessed such control in himself and could validly transfer the power. On closer examination however the‑ proposition exhibits a flaw, viz., in the assumption that by the mere removal of a pre‑existing control over a certain community, which control had the effect of depriving it of international status, that community becomes an inde pendent community and its Government becomes a sovereign ruler for the purpose of International Law. For it is axiomatic that the expression 'law' has no application in the case of unrestrained powers ; International Law only acquires meaning in relation to a society or comity of independent States, and therefore the first condition of its application in relation to a new State . might, in the positivist sense, be thought to be the fact of recognition by other States already included in such society or comity. This view has been expres sed by Oppenheim in his valuable work on International Law in the following terms "Through recognition only and exclusively, State becomes an international person and a subject of International Law" Yet it must be admitted that, in any concrete case, particularly one which has formed the subject of controversy, the require ment of recognition may not be fulfilled in respect of even a majority of the States constituting international society, at a time when the separate existence of the new State has long been recognised and when its people and Rulers have been dealing with their counterparts in many other States freely, according to the established rules of intercourse between nations. This is not only the case where the difficulty arises from there being a de facto Government operating in a parti cular territory, as opposed to a de jure Government belong ing to the ancient order of things and possibly working in exile. A definition of the commencement of the existence of a State has been attempted by J. L. Brierly; in his well‑known book "The Law of Nations" which appears to vie to set out very 'satisfactorily the conditions necessary for the birth of a new international person. I quote from page 122 of the 4th Edition :‑ "A new State comes into existence when a community acquires not momentarily, but with a reasonable probability of permanence the essential characteristics of a State, namely,; an organised Government, a defined territory; and such degree of independence of control by any other State as to be capable of conducting its own international relations". Taking judicial notice of the existence and nature of the State of Junagadh in pre‑Partition India, the conditions of an organis ed Government and a defined territory would appear to be satisfied. The suzerainty of the British Crown deprived the State of all independence in conducting relations with foreign coun tries, and this condition may be supposed to have been remedied by the lapse of such sovereignty. Yet, the further condition remained unsatisfied naively that such independence of control was not acquired "with a reasonable probability of permanence" and in fact as the Instrument of Accession proves such indepen dence was precarious and might even be described as momen tary. The Indian Independence Act 1947 contains but two references to the constitutional position of the Indian States after the conferment of independence upon the two Dominions of India and Pakistan. One has been referred to already, namely, the lapse of the suzerainty of the British Crown. The other is contained in subsection (4) of section 2 of the Act, which Mr. Sleem attempted to utilise as proof that the Act did not contemplate absorption of existing States in the territory of the respective Dominions, but which seems to me to‑carry a wholly different connotation. The subsection runs as follows:‑ "(4) Without prejudice to the generality of the provisions of subsection (3) of this section, nothing in this section shall be construed as preventing the accession of Indian States to either of the new Dominions". Now, subsection (1) of section 2 provides generally for differentiation of the territories of India and Pakistan respectively, and subsection (2) provides for division of the area known as British India between the two Dominions. Subsection (3) purports to enable increase or decrease in the territory of each of the two Dominions but imposes two restrictions, viz., firstly that no area which was not part of British India should be included in either Dominion without the consent of that Dominion, and secondly that no area included in British India before the Partition which since the Partition had become part of one of the two Dominions, should be excluded from that Dominion without the consent of that Dominion. The territory of Indian States was not included in British India. Reading subsection (4) with subsection (3) therefore, it would seem perfectly clear that it enables an Indian State, of its free choice to offer accession to either of the two Dominions and imposes only one condition namely that Dominion should accept the proposal. The suggestion that subsection (4) excludes the possibility of the territory of an acceded State being absorbed in the Dominion to which it accedes is negatived by the context, contained in section. 2, as well as, it seems to me, by the clear terms of section 5 of the Government of India Act 1935, pro viding that there shall be a Federation by the name of Pakistan, which should include inter alia "such Indian States as may accede to the Federation". It should be mentioned that this provision is not wholly new. The original section 5, which was converted by amendment into its present shape by a Constitutional Order of 1947, provided power to His Majesty to constitute a Federation of India which was to include "the Indian Stares which had acceded or may thereafter accede to the Federation". For the purposes of the present argument however the particular significance of subsection (4) in section 2 of the Indian Independence Act, 1947 is the suggestion which it carries of the limited choice lying before the Indian States, as a result of the Partition. I am aware that the opposite view, viz., that the Indian States also possessed a right to remain independent of either Dominion, has powerful arguments and votaries, to support it. An exhaustive examination of the merits of the respective arguments is, however, of no great advantage in the decision of this case. I will therefore content myself with pointing out that, in actual fact, each Indian State has, sooner or later, acceded to one or the other Dominion. No better proof is necessary or to be expected, having regard to the incidents of relations among states inter se, that such independent state hood as was acquired by the State of Junagadh by the lapse of British suzerainty, carried with it no "reasonable probability of 'permanence" and that from its inception, its expectation of life was what the event proved, namely, a merely momentary independent existence. In this view of the matter, the references to sovereignty contained in the Instrument of Accession must be understood in a somewhat qualified sense The acceptance of power in. regard to external affairs qua the territory of Junagadh would not necessarily involve a concession that the Ruler possessed, much less that he exercised, any independent authority in the field of international affairs. There being a defined territory and a permanent resident population and as the map shows, direct access to the sea, there was clearly capacity, on the part of both the Government as well as the people of Junagadh, to enter into relations with foreign States and peoples, and the Instrument of Accession must be understood in this respect to have had the practical effect of securing control of such external relations to the Federal Government of Pakistan. As for the saving clause whereby the sovereignty of the Ruler of Junagadh was preserved, that too in my opinion must be understood in a strictly practical sense. It cannot, in any case, be construed as a concession that the Ruler of Junagadh was to continue even after his accession to Pakistan, to enjoy the right to become an international person. . It is true that despite the transfer of power effected by the Accession Instrument, the Nawab retained power in himself over the entire field bf internal administration in his State, but this would not, of itself, constitute him an independent sover eign within Pakistan. His territory having become by virtue of the accession a part of Pakistan, which is in fact and by expression a Federal State, it must be assumed that in inter national affairs, neither he nor his State has any independent existence‑apart from the Federation: It is conceded that Pakistan is not a mere confederation of States, where in certain instances, the confederating units have been allowed to retain some power over their own external relations. The distinction is well expressed by Brierly in the passage quoted below (p. 113)‑ "But it is usual today to distinguish a federal State, that is to say, a union of States in which the control of the external relations of all the member States has been permanently sur rendered to a Central Government so that the only State which exists for international purposes is the State formed by the union, from a confederation of States, in which, though a Central Government exists and exercises certain powers, it does not control all the external relations of the member States, and therefore for international purposes there exists not one but a number of States". Mr. Sleem points out that such residue of power as the Nawab still retains after executing the Instrument of Accession has been deemed sufficient in the case of the Gaekwar of Baroda for the grant of immunity by a British Court on a certificate from the India Office; Statham v. Statham & Gaekwar of Baroda L R (1922) P.

92. There is however material difference between the view which may be taken by a Court out of Pakistan regarding the status of a member State of the Pakistan Federa tion and the view which we as a domestic Court of Pakistan must necessarily take. As I understand the case cited by Mr. Sleem, and other similar cases which were referred to in the argument, the British Courts have been content firstly to ascertain whether the claimant independently exercises in respect of a territory, high administrative powers though not necessarily the entire administrative power, and secondly whether his territory is or is not within the dominions of His Majesty the King of England. From the point of view of the Government of Pakistan, and a Court constituted in Pakistan, no part of the Federation of Pakistan can be regarded as terri tory which is foreign qua Pakistan, and any independent powers exercisable within the' terms of Government of India Act by a unit of the Federation are not to be regarded as connoting the possession‑of sovereign powers by such unit as against the Federation of Pakistan. It should be pointed out that the original Government of India Act, by section 18 provided for representatives of the Indian States to the number of 104 and 125 to sit in the Council of State and the Federal assembly respectively, which Houses were to constitute the Federal Legislature. Without attempting to unravel the difficult problem of the situs of sovereignty in a Federal State, I think that this circumstance by, itself is sufficient to show an inten tion that, under the machinery of accession, the sovereignty of the Acceding States was intended to be merged in the sovereignty of the Federation. This provision is no longer to be found in the Government of India Act, as it has been re placed by a clause in the schedule to the Instrument of Accession namely clause (1) under heading "D.‑Ancillary", referring to "Election to the Dominion Legislature". For these reasons it would appear that the refusal of the Government of Pakistan to recognise the Nawab of Junagadh as a foreign sovereign is based on excellent grounds. No grounds appear for making any further enquiries on the subject. I may add here with reference to the argument which was put forward, although with no great force, that the Courts of Pakistan are not bound by the practice or the British Courts to seek infor mation from the executive in cases of this kind, that I am fully persuaded that the practice is based on sound principle and the Court of Pakistan would be acting in conformity not only with the British practice but also with the practice prevalent in many other old established civilised States such as France and‑the United States in following it. Mr. Sleem's final argt1ment that the Ruler should be granted immunity, if not as a foreign sovereign at least as a sovereign within Pakistan, may be disposed of very briefly. Such a claim can only be founded on the municipal law, and it has to be conceded that there is no existing law of Pakistan under which any such immunity can be claimed for the Ruler. The argu ment that he was for a time a foreign sovereign possessing such immunity, and that in the absence of anything in the Instru ment of Accession whereby this immunity was withdrawn, he must be deemed to carry it with him, has already been seen to be fallacious from its very foundation: For these reasons I would dismiss this appeal. A. H. Appeal dismissed.