P L D 1975 Karachi 639 (PLP)

DORAB PATEL, J.‑On the 6th of February 1958, the Government of Pakistan entered into an agreement with the Government of Iran for the demarcation of the frontier between the two countries. According to Article xIl of this agreement, it was to come into force "from the date of exchange of the instructions of ratification which shall take place at Karachi". The agreement was duly ratified in 1959, therefore a Boundary Commission was set up which commenced the task of demarcating the borders of the, two countries. The petitioner claims in this connection that he learnt on 11th July 1963, that the "Republic of Pakistan (now the only respondent in the petition was intending to transfer between 2,500 to 3,000 sq. miles of Pakistani territories to the Government of Iran" and, as according to him, this proposed transfer was illegal, the next day be filed a constitutional petition to challenge it. The petition was filed in the Lahore Seat of the then West Pakistan High Court and paragraphs 3 and 4 of the petition are relevant. They read : "(3) That on the 6th February 1958, the Government of Pakistan entered into an agreement with Government of Iran known as the Pakistan‑Iran Boundary Agreement. The purpose of the said agreement was to re‑demaicate the Boundary line between the two countries first demarcated and fixed in 1884 by an agreement between the then Government of Iran and the Government of India. (4) That the work of re‑demarcation of the boundary line between Pakistan and Iran was started under the said agreement to March 1958 and continued till recently." further, according to the petition, the areas affected by this re‑demarcation of national boundaries were situated in the Chaghai district in Quetta Division and in the Mekran and Kharan districts of Kalat divisions of the ;Province of Baluchistan. Now, according to the petition, the Government .intended to transfer these areas illegally to Iran and this proposed transfer was illegal, because neither the respondent "nor the National Assembly ,nor any one else has any power or authority to cede any territory of :Pakistan to any foreign State whether by treaty or by an executive order or bylaw"; accordingly, on these averments, the petitioner filed his petition, :but the only relief sought was that the respondent should be restrained from transferring or permitting the transfer to Iran of the areas of which full particulars have been given in Annexure 'A' to the petition. The petition ,.was admitted by a Division Bench of the West Pakistan High Court on 15‑7‑1963, and, together with the petition, the petitioner had applied for :an interim injunction to restrain the respondents, pending the hearing of the petition, from transferring the disputed territories to Iran. Tile Division Bench observed with reference to this interim application "but the petition has been presented at the very last moment. The transaction is taking place today." Accordingly the interim application was dismissed in limine, and the petitioner did not take any steps to challenge this order. I would also observe here that the petitioner bad originally impleaded the Provincial Government and three other persons in the petition, but by an order .:dated 13‑1‑1964 these other respondents were dropped, with the result that the petition is now being pressed only against the Government of Pakistan ‑which filed its objections on or about 6‑1‑1964.

2. The respondent raised various pleas in its objections, but in view of the arguments advanced by Mr. Iqbal Haider, it is sufficient to state here that the respondent advanced a preliminary objection that the petition had become infructuous, as the disputed territories had been transferred to Iran on 15‑7‑1963. Then, with respect to the averments in paragraphs 3 and 4 .of the petition, its reply was :‑ "(3) The contents of paragraph 3 are not correct. Detailed answer follows in reply to the paragraphs 6 and

7. It may, however, be added that no agreement was made in 1884. The statement that the territory line was demarcated and fixed in 1884 is incorrect. (4) In reply to paragraph 4 it is stated that the demarcation of the boundary line between what is now Pakistan territory and Iran had never been concluded and the demarcation was for the first time done in 1958 and 1959. This statement is subject to the detailed facts shown in reply to paragraphs 6 and 7." The respondent then denied that there had been any re‑demarcation of territories as alleged in the petition, and further stated that the boundary line had been demarcated for the first time under the Boundary Agreement. Paragraph 6 of the objections is very important and it reads as follows :‑ "(6) In reply to paragraphs 6 and 7 It is stated that on the British conquest of the region of Sind Kalat area a British Resident was appointed in Kalat which had been recognised as an Indian State and the matter of fixing the boundary between the State (whose foreign policy was controlled by British) and Iran was undertaken by a joint commission to be presided only by a British Officer. Some agreements in this behalf between British Government and Iran in 1871, 1896 and 190? were made but the Boundary line was not drawn except for a small portion covered by the agreement of 106, in which portion at certain points piles of stones had been placed as marks of identifica tion and even these had been destroyed by the lapse of time. The question remained under negotiation and in absence of a clear demarcated line there were overlapping claims of possession in respect of certain areas and in some cases part of territory belonging to Iran was in British hands and in some places Kalat State territory was to Iranian possession. In order to settle this outstanding matter the two Governments i.e. the Pakistan Government and the Iranian Govern ment agreed to appoint a Boundary commission which was finally set up in 1956. This Boundary Commission examined and considered the old maps and agreements in ;great detail, made out on latest maps the demarcation line of the old maps (which were sketchy and not to scale) and after negotiations and approval of the two Governments demarcated on the ground the line according to the agreements and placed proper location marks in the form of boundary pillars. The 1958‑59 demarcation removed the over‑lappings on either side so that what validity belonged to Pakistan remained with Pakistan and in fact Pakistan gained 95 sq. miles of territory compared with the line indicated by the old British agreements. On the other hand certain area which in fact belonged to Iran was given back into their possession." The respondent then pleaded laches, and further submitted that it had taken all possible steps to protect the interests of Pakistani nationals in the affected areas. Finally it denied all the averments in the petition.

3. The Attorney‑General appeared on behalf of the respondent and advanced several preliminary objections, the first being that the petitioner did not have any cause of action for filing this petition, because he was not one of the person. affected by the Boundary Agreement and its consequences. Mr. Iqbal Haider's reply to this submission was that the petitioner had been, at the date of the petition, a member of the Provincial Assembly for the area concerned,., and alternatively he submitted that every citizen of Pakistan was entitled to challenge an illegal transfer of the country's territories. I am not impressed by the plea that the petitioner was a member of the Provincial Assembly for the area concerned, but the more important question is whether the petitioner, as a citizen, is entitled to file the petition. The question can only be decided by reference to the averments in the petition and, as according to the petition, the territories of the country were been illegally transferred, I would accept Mr. Iqbal Haider's submission that' every citizen of the country has the locus stands to file such a petition.

4. The Attorney‑General's next submission was that the transfer of the disputed territories could not be challenged in any event, because the agreement between the two countries came into force only on ratification in Karachi in 1959, and as the agreement thus came into force during Martial Law, there was no legal basis on which it could be challenged, therefore, the mere implementation of the agreement in 1963 could not be challenged. Mr. Iqbal Haider however submitted that the agreement came into force on 6‑2‑1958 when it was first signed. We observed that this overlooked Article XII of the agreement. which expressly states that it would come into force only on ratification. Mr. Iqbal Haider then wanted time to consider this point, which seemed obvious to us. As we were not prepared to grant an adjournment, learned counsel was not able to assist us. But as I am satisfied that the petition must fail on other grounds, I would refrain from deciding this objection, and I would now turn to the objection that the petition had become infructuous, because the transfer of the disputed territories had been effected more than ten years ago.

5. The learned Attorney‑General had raised this objection on 1st April 1974 when the bearing of the petition begun before us, therefore the next week the petitioner filed an application to amend the petition. I may, in this connection, recall here that although the petitioner had referred in the petition to the Boundary Agreement between the two Governments, be had not sought any relief with regard to it, but only sought an injunction to restrain the respondents from transferring the disputed territories. Now, as the transfer has now become a fait accompli, the prayer in the amended application is that :- "(A‑1) The agreement dated 6th February 1958 between the respon dent and Government of Iran is illegal, void ab initio and of no lawful effect and hence not binding on the State of Pakistan since respondent had no lawful authority under the Constitutions of Pakistan in force at the relevant time. (A‑11) that the Cession of territory in pursuance of the aforesaid agree ment and all consequences following therefrom are void, of no lawful effect and not binding since they emerge from a void agreement and are ultra vires of the powers of the respondents under the Constitution of Pakistan in force at the relevant time." As the application was filed after a delay of more than a decade and even then after arguments had commenced, we directed that it would be disposed of with our judgment, and I would now consider it.

6. Mr. Iqbal Haider was conscious of the gross delay in filing this application. This is fatal to the application, because it is elementary law that a constitutional petition is barred by laches. In order to overcome this difficulty, learned counsel submitted half‑heartedly that the relief sought through the amendment was implied in the relief for an injunction, which had been prayed for in the petition, therefore the amendment was only in the nature of formality and bad been filed ex abandand cautela. The submission is fallacious. The amendment application has been filed because the petitioner knows that his petition has become infructuous. He is thus trying to circumvent the law through this application, but on account of his laches the declaratory relief thus sought has also become infructuous. Additionally, I pointed out that the Division Bench, which admitted the petition, had dismissed in limine the application for an interim injunction on the ground of delay. And if that was not enough, the respondent had expressly pleaded in its objections that the petition had become infructuous because the territories in dispute had been transferred to Iran on 15‑7‑1963. These objections were filed in January 1964, this means that the amendment application has been filed after a delay of more than ten years. I agree with , the learned Attorney‑General that such gross delay cannot be condoned. Accordingly, the application is dismissed, and this means that the petition must be dismissed on the ground that it has become infructuous.

7. However, even on merits, the petition is only fit to be dismissed because it is based on an alleged treaty between the British and Iranian Governments in 1884. Even after 11 years the petitioner is not able to produce a copy of this treaty, although his whole case rests on the allegation that the boundaries of Pakistan had been demarcated under this treaty. Nor can there be any question of the respondent being required to produce this treaty because it has denied its existence, and although the respondent expressly denied its existence, the petitioner has been silent about the respondent's denial‑in his reply to the respondent's objections, therefore, as submitted by the learned Attorney‑General, the petitioner must be deemed to have accepted the respondent's statement that there was no treaty between the British and Iranian Governments in 1884. But as the case of the petitioner rests on the sole allegation that the territories transferred to Iran belonged to Pakistan in view of this 1884 treaty, it follows that the petition can only be dismissed.

8. Mr. Iqbal Haider then submitted that the respondent had, in para. 6 of its objections, admitted that boundary agreements had been signed between the British and Iranian Governments in 1871, 1896 and in 1905, and according to the learned counsel, the disputed territories transferred to Iran belonged to Pakistan under these agreements, therefore, their transfer was illegal. This argument cannot be considered, because it is contrary to the averments in the petition, but as the petitioner now wants to base his case on these three agreements he should have amended his petition and he had ten years for so doing. As he did not, to permit him now to base his case on a cause of action not pleaded in the petition would be a gross abuse of the process of the Court which cannot be allowed. The petition must fail on this ground, but as we have heard learned counsel I would briefly refer to his submissions. However, I should not be understood to mean that I am condoning the petitioner's gross negligence in failing to amend his petition, and I would emphasise that a petitioner cannot be permitted to press his claim on acts not pleaded by him in the petition.

9. Now, on the assumption that the petitioner can base his case on these three agreements, the burden is on him to show that the territories transferred to Iran (vide Annexure 'A' to the petition) had formed part of Pakistan under these agreements. The question being obviously one of evidence. the remedy by way of a constitutional petition seems prima facie to be mis conceived. Be that as it may, the petitioner should at least have attempted to make out a prima facie case on the basis of documentary evidence. He has not attempted to do so, and, instead, although we had dismissed an application filed by him on 1‑4‑1974, he has filed a second application for inspection of the respondent's documents on the assumption that the docu ments specified in the application are with the respondent. Mr. Iqbal Haider was aware that if this application was allowed, it would mean a long adjournment in the case, and we had made it clear on 1‑4‑1974 that we deprecated dilatory tactics. He therefore relied on the fact that the petitioner had been permitted inspection of the documents with the respondents on the basis of an order of the West Pakistan High Court dated 19‑1‑1968. But because inspection was permitted more than 6 years ago, I see no reason to permit inspection again when this would necessarily result in a long adjournment in the case. Mr. Iqbal Haider feebly submitted that inspection had not been completed on 22‑1‑1968, but if that be so, the petitioner's counsel should have served a notice on the Attorney‑General for further inspection, and in the event of non compliance with such a notice, the petitioner could have obtained directions from the Court for inspection under Order XI, Civil Procedure Code, and he had 6 years for so doing. He remained idle for 6 years but after the petition had been fixed for hearing, he filed this second inspection application. Prima face, the application is an abuse of the process of the Court, unless the petitioner can prove that it was impossible for him to obtain the docu ments of which he seeks inspection. I would therefore briefly refer to some of the documents of which inspection is sought. "

10. The petitioner wants to inspect "copies of the agreements between Iran and British India arrived in 1871, 1875, 1897, 1905 and 1958." Mr. Iqbal Haider conceded that this demand was based on the objection filed by the respondent in January 1964, but in its objection, the respondent has stated that there were only three agreements between Iran and the British Govern ment in 1871, in 1896 and in 1905. Obviously, the application could have been drafted with more care. Secondly, treaties and agreements made by Her Majesty's Government are published through Her Majesty's Stationery's Office, but the petitioner has not even attempted to obtain these copies; and Mr. Iqbal Haider merely stated that copies of these agreements were with the Law Ministry in Islamabad, but that it was very difficult to inspect them in Islamabad. As the petitioner had more than 10 years for inspection, I am not impressed by this explanation. Secondly, the Attorney‑General, who has practised for many years in Quetta, stated that copies of all the agreements between Britain and Iran were available in the Library of the Baluchistan Government at Quetta. Mr. Iqbal Haider apparently did not know of the existence of this Library in Quetta although the petitioner is from Baluchistan. But, according to Mr. Iqbal Haider, this would have been of no avail, because he sought inspection of the maps attached to the agreements, and the further submission was that copies of the maps would not be sufficient. In advancing this plea, learned counsel assumed that the original agreements and maps were with the respondent. The learned Attorney‑General stated that the respondent never had the original agreements with Iran in its possession, because the agreements had been signed between Iran and Britain, and not between Iran and the Government of India. I have no hesitation in accepting the Attorney‑General's assurance, and no adverse inference can be drawn against the respondent for not producing these agreements and maps. as contended by Mr. Iqbal Haider, because Mr. Iqbal Haider has failed to show that these agreements and maps were in the respondent's possession. I would also observe here that maps must thereafter have been prepared, on the basis of these agreements, by the Survey or General of India, and the petitioner could and should have produced these maps. Secondly, maps of Baluchistan prepared by the Surveyor‑General of Pakistan, at leaqt after the creation of the Province of West Pakistan, would have been relevant and should have been produced, but the petitioner has not made any attempt to do so.

11. I now turn to some of the other documents of which inspection is sought. Thus the petitioner wants to inspect "the delimitation of the constituencies for B. D. Elections of 1959 and 1964" and the lists of voters for those elections for the Districts mentioned in Ahnexure `A' to the petition. I agree that the records of the limitation of these constituencies and the lists of voters would be relevant. That is obvious, and as the petitioner was an M. P. A. from Baluchistan, he had about 10 years for obtaining these documents from the office of the Election Commission. But if we were now to order inspection of these documents, it would mean directing the respondent to purchase these documents for the benefit of the petitioner, with the further result that the hearing of the petition would be delayed. Or to take another example, the petitioner wants inspection of the maps of the Police Stations for the Districts in which the disputed territories fall. These maps would be relevant, because they could show whether our Government had exercised jurisdiction over the areas specified in Annexure `A' to the petition. But as Law and Order are provincial subjects, these maps would be with the Provincial Government. Even at this stage of arguments, Mr. Iqbal Haider was not able to state that be or the petitioner has even attempted to obtain these Police maps from the Baluchistan Government, and, on the other hand, the Provincial Government had been impleaded in the petition, but it was dropped by an order dated 13‑1‑1964. Now if the Provincial Government had been a party to the petition, it could have been directed to produce the relevant Police maps, but as the petitioner allowed the Provincial Government to be dropped, I see no reason to direct the respondent to purchase and produce these maps in order to enable the petitioner to find out whether he has a case, because that is what he is trying to do through this. application.

12. I would also refer here to the third and last application filed by the petitioner. This is under Order XIX, rules 1 and 2, C. P. C. "for the cross -examination of Mr. Ghulam Hussain, Secretary, Pakistan‑Iran Boundary Commission who has filed on behalf of the respondent the Counter‑Affidavit/ Parawise Comments dated the 6th January 1964. When the Attorney‑General stated that Mr. Ghulam Hussain died some years ago, Mr. Iqbal Haider dropped this application. The application is dismissed as infructuous, but it ii unfortunate that it was filed without any attempt to verify whether the person sought to be examined was dead or alive.

13. I now turn to paragraph 6 of the petition. There the petitioner has stated that 5,000 to 10,000 persons were effected by the alleged illegal transfer of territories by the respondent. This allegation was also repeated several times before us by Mr. Iqbal Haider. Accordingly I enquired why the petitioner had not filed, in support of his case, the affidavits of a few of the thousands of persons thus alleged to have been affected, and as he could easily have done so, the Attorney‑General invited us to reject his allegations as false. Mr. Iqbal Haider's explanation was that the petitioner had mostly been in detention during the pendency of this petition. The explanation is not correct. In the first place, the petitioner was always assisted by counsel and had engaged three counsel at one time. Secondly, it is true that the petitioner is now in detention, but admittedly, this detention began only a few months ago. Learned counsel however relied on the fact of the petitioner's detention at the date of the institution of the petition. The petitioner had been in detention at that date and for a long time thereafter, but he lied been released by a Division Bench of this Court, of which I was a member, in September 1968 (see P L D 1969 Kar. 87). This means that he bad more than 5 years for collecting the material in support of his petition, and as be made no attempt to do so, I have no hesitation in accepting the Attorney‑General's submission that the petitioner has been grossly negligent in the prosecution of his petition. The application for inspections is not bona fide and is dismissed, and it is therefore not necessary to consider the Attorney‑General's claim for privilege with regard to some of the documents of which inspection was sought through this application.

14. Mr. Iqbal Haider's next submission was that the petition was, supported by the admissions contained in the respondent's objections, filed in January 1964. As I showed earlier, the respondent has stated in paragraph 6 of its objections that as the borders between the two countries had never been demarcated, despite the three agreements, except for a very small part of the border, there were overlapping claims between the two Governments, hence the agreement of 1959 to demarcate the borders. The paragraph then, states that Pakistanis "of the affected areas in the border belt" had been given the option "to remain Pakistani citizens and to move across the border into Pakistan". Mr. Iqbal Haider relied on this statement and the further statement that Pakistani citizens abandoning territories in the border belt would be given compensation by the Iranian Government. Now the paragraph has to be read as a whole, and it is clear from the earlier part of the paragraph that this "border belt" was disputed territory, therefore the mere fact that Pakistanis had occupied it or that they would receive compensation for abandoning their properties in this "border belt" would not amount to an admission, except on the further assumption that territories. occupied by Pakistanis on the midnight of 14th July 1963, had by the mere fact of such occupation, become Pakistani territory. That was Mr. Iqbal Haider's submission, but mere possession, without more, is not sufficient even under municipal law to create title by adverse possession. Yet, according to the learned counsel, possession by unknown persons, for periods of time which were not known, was sufficient to create title under international law. I can only express my regret that this argument was seriously advanced, and I may with advantage quote here a passage from Oppenheim's Interna tional Law (5th Edition), Vol. I, at p. 456 "

243. From the conception of prescription, as above defined, it becomes apparent that no general rule can be laid down as regards the length of time and other circumstances which are necessary to create a title by prescription. Everything depends upon the merits of the individual case. As long as other powers keep up protests and claims, the actual exercise of a sovereignty is not undisturbed, nor is there the required general conviction that the present condition of things is in conformity with international order. But after such protests and claims, if any, cease to be repeated, the actual possession ceases to be disturbed, and thus under certain circumstances matters may gradually ripen into that condition which is in conformity with international order. The question, at what time and under what circumstances such a condition of things arises, is not one of law, but of fact." Not only is learned counsel's submission frivolous but as is clear from the passage quoted, it turns on disputed question of fact which cannot be decided without recording evidence, therefore the remedy of a constitutional petition is misconceived.

15. Finally, according to the petition, any transfer of Pakistani territory was illegal and impossible. However, in his arguments before us, learned counsel submitted that the President had no authority to transfer any part of the country, and in support of this argument, he referred us to the judg ment of Indian Supreme Court in the Reference by the President of India (AIR 1960SC845). As the petitioner has completely failed to show that any Pakistani territory was transferred, it is unnecessary to examine the submission advanced or the judgment relied upon. The petition is without merit and is dismissed with costs. K. B. A. Petition dismissed.