Legal Principle & Question Decided

Ruling Summary: This decision was rendered by the Lahore High Court on 2021-12-31, officially reported as 2024 PLJ 434. In this matter between Rizwan Ellahi & another., Muhammad Sufian Abbasi & 3 others., Faraz Ahmed & another., JUDGMENT and the Respondent, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.

Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.

Full Judgment Text & Judicial Ruling

Court Name: Lahore High Court Judge(s): Ch. Abdul Aziz Title:Rizwan Ellahi & another., Muhammad Sufian Abbasi & 3 others., Faraz Ahmed & another.,

JUDGMENT

Reported As: 2022 LHC 7533, PLD 2024 Lahore 379, PLJ 2024 Lahore 434 Result: Order accordingly Judgment JUDGMENT Ch. Abdul Aziz, J. Since all the afore-mentioned constitutional petitions are moved in similar background and the prayers made therein are of alike nature, hence are being disposed of with one common judgment. 2. A heart wrenching incident which prompted the petitioners to approach this Court occurred in Murree on 07.01.2022 during which 22-tourists got stuck in a blizzard and lost their lives after remaining stranded in their vehicles for whole night. The petitioners, who are residents of Murree, also agitated the insouciant attitude of the public functionaries hailing from different Government Departments which led to the unfortunate incident of 07.01.2022 and besides that also highlighted the lack of interest of various Government Departments which gradually but vividly is making Murree a heaven on earth, into a place vulnerable to climatic disaster. Through these petitions, more or less, issuance of following directions of public interest is sought:- (i) direct the respondents to fix the liability of mal-governance and specific department and persons responsible for the painful incident and death of 22 innocent citizens due to grave negligence. (ii) the ban for travelling to Murree be declared illegal, unlawful and without authority and against the Constitution. (iii) direct the respondents to improve their infrastructure and improve the efficiency by active coordination and facilitation to the public-at-large and local residents of Tehsil Murree. (iv) direct the respondents to take urgent and quick actions in up-gradation of affairs pertaining to Punjab Highway Department, WAPDA, Forest and Tourism Departments etc. (v) the exemplary compensation be awarded to the families of the deceased persons in painful incident of at least five million per casualty. 3. During arguments, indifferent attitude of TMA Murree, Punjab Forest Department, Punjab Wildlife Department, Environmental Protection Agency, PDMA, National Highway Authority, National Motorway Police, Pakistan Metrological Department, Punjab Tourism Department, Rescue-1122 Department and Traffic Police was highlighted through which on one hand the top most tourists' resort Murree is canvassed as losing its ecological attraction and on other hand the lives of its residents are described to have become miserable. The petitioners, who claim to have ancestral ties with the land of Murree also vociferously pleaded that in the wake of tragic incident of 07.01.2022 the residents of the region were trolled on electronic, print and social media through self-knitted stories having no scintilla of reality.

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4. In pursuance of the grievances voiced in the above-mentioned petitions and the submissions made in support thereof, the comments were requisitioned from various Government Departments besides summoning different officials, who were heard at length so as to provide them opportunity of placing on record their respective stance. The dismissal of all the afore-mentioned petitions was urged on the ground that incident of 07.01.2022 was a natural calamity, beyond the reach of Government Departments to curtail and since the petitioners, individually, have not suffered any loss, thus are neither aggrieved nor have locus standi to approach this Court. The acceptance of these petitions was opposed also on the premise that on the tragic night of 07.01.2022, all the functionaries of the concerned Departments remained at their toes in rescuing the stranded citizens and provided them every possible help. 5. Since the dismissal of these petitions was urged on account of their non maintainability due to existence of alternate remedy and absence of locus standi of petitioners as aggrieved persons, hence these aspects are meticulously examined. The petitions in hand, from their very genesis, are in the nature of public interest litigation, more commonly known as pro bono publico. The concept of public interest litigation, as it evolved over the years, provides a right to seek redressal of public grievance directly through constitutional courts without having recourse to lengthy and tedious traditional litigation. The powers of court to address the issues raised through public interest litigation are not unbridled, rather are subject to certain restrictions and limitations. The cases of public interest litigation are entertained by the High Courts within the framework of Article 199 of Islamic Republic of Pakistan, 1973 (hereinafter referred to as "the Constitution"). Such writ can only be issued in favour of a litigant if he successfully demonstrates firstly that there is no other adequate remedy and secondly that he is an aggrieved person. It will not be out of context to mention here that in order to oust a litigant from the court to seek remedy under Article 199 of the Constitution, the respondents must satisfy that the alternate remedy to seek justice is not only effective but expeditious as well. Likewise, to hold a person disentitled from seeking relief under Article 199 of the Constitution, the alternate remedy must be convenient, beneficial and effective. If the alternate remedy, upon evaluation, is found to be less effective, time consuming and calls for invoking the jurisdiction of multiple courts/forums, then the High Courts are all competent to exercise jurisdiction within the framework of Article 199 of the Constitution. The constitutional jurisdiction of High Court can be set in motion, if the agitated grievance gives rise to an exceptional case and is directed against indifferent attitude of public functionaries towards fulfillment of their statutory obligations, likely to affect public-at-large. In the case reported as Habib Metropolitan Bank Ltd. v. Administrator, Karachi Municipal Corporation, Karachi and 3 others (PLD 2014 Sindh 20), the dismissal of a constitutional petition moved in public interest was urged but a learned Division Bench of Sindh High Court turned down such submission with the following observation:- "In the first instance, adverting to legal objection raised by the learned counsel for KMC as to the maintainability of the constitutional petition on the ground that the petitioner has not availed alternate remedy available under the relevant rules/by-laws, suffice it to refer to the well settled principle of law that the alternate remedy must not be less convenient, beneficial and effective then the one sought to be enforced under Article 199 of the Constitution; at the same time it should also be efficacious and speedy. It is also settled law that in appropriate/exceptional cases despite availability of alternate remedy, this Court can exercise its extraordinary constitutional jurisdiction conferred upon it under Article 199 of the Constitution of Islamic Republic of Pakistan." The bona fide of a pro bono publico litigant is to be adjudged on the touchstone of his status as an aggrieved person and secondly on the ground that he is petitioning in the interest of general public. It is further incumbent upon the litigating person to demonstrate that if the agitated grievance is not immediately addressed, it is destined to adversely affect the society as a whole. The parameters within which the public interest litigation can be entertained were examined by the Hon'ble Supreme Court of Pakistan in the case reported as Javed Ibrahim Paracha v. Federation of Pakistan and others (PLD 2004 Supreme Court 482) and observed as under:- "No doubt with the development of new concept of public interest litigation in the recent years, a person can invoke the constitutional jurisdiction of the superior courts as pro bono publico but while exercising this jurisdiction, he has to show that he is litigating firstly in the public interest and, secondly, for the public good or for the welfare of the general public. The word 'pro bono publico' as defined in Black Law Dictionary, Chamber Dictionary and Oxford Dictionary, generally means 'for the public good' or 'for welfare of the whole' being or involving uncompensated legal services performed especially for the public good. 'Public interest' in the Black Law Dictionary has been defined as 'the general welfare of the public that warrants recognition and protection'. Something in which the public as a whole has a stake; especially an interest that justifies governmental regulation. It thus signifies that in case of public interest litigation, one can agitate the relief on his own behalf and also on behalf of the general public against various public functionaries where they have failed to performed their duties relating to the welfare of the public at large which they are bound to provide under the relevant laws."

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It further explicitly stems out from the plain reading of Article 199 (1) (c) & Article 199 (2) of the Constitution that High Court is well equipped with the powers to issue a direction for the enforcement of fundamental rights of the subjects, guaranteed under Chapter 1 of Part-II. For the clarity of subject, the afore-quoted provisions are essentially required to be looked into, thus are being mentioned hereunder:- "199. Jurisdiction of High Court. (1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by-law-- (c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental rights conferred by Chapter 1 of Part-II. (2) Subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II shall not be abridged." Now the overreaching question arises as to what are those fundamental rights, which are agitated to be infringed by the respondents. In this regard, it is observed that through instant public interest litigation, the petitioners raised concern about shrinking forests, extinguishing wildlife, rapid deterioration of scenic beauty of Murree hills as well as heedless approach of TMA Murree, Environmental Protection Agency, PDMA, National Highway Authority, Pakistan Metrological Department, Punjab Tourism Department, Rescue-1122 towards discharge of their official duties. With reiteration, it is mentioned that the petitioners hail from Murree and have right to enjoy its God-gifted beauty emanating from the lush green forests, the sky whispering pine trees, the fresh water of natural springs stemming out from these mountains and amongst others the eye-catching fauna and flora of the region. One of the fundamental rights guaranteed under Part-II of Chapter 1 of the Constitution is envisaged in Article 9 whereby no person shall be deprived of life or liberty save in accordance with law. The term 'life' used in Article 9 cannot be restricted to mere existence of a living person rather is stretched to all and every aspect of quality human life. The word 'life' is not defined in the Constitution, thus cannot be given a restricted meaning rather is of wider import. Article 9 bespeaks that an individual is entitled to enjoy the pleasures of life by having access to natural and ecological beauty of places like Murree hills, needless to mention, within a defined sphere of law. Since Article 9 explicitly and unrestrictedly guarantees the right to live a life, it is not required to be established through customary protracted litigation rather is to be enforced vigorously even through a constitutional petition, once the agitated grievance is found to have reasonable substance in it. The term 'life' was comprehensively expounded by the Hon'ble Supreme Court of Pakistan in the case of Ms. Shehla Zia and others v. WAPDA (PLD 1994 Supreme Court 693) and some extracts therefrom are being referred hereunder:- "Article 9 of the Constitution provides that no person shall be deprived of life or liberty save in accordance with law. The word 'life' is very significant as it covers all facets of human existence. The word 'life' has not been defined in the Constitution but it does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception of death. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and Constitutionally. For the purposes of present controversy suffice to say that a person is entitled to protection of law from being exposed to hazards of electromagnetic fields or any other such hazards which may be due to installation and construction of any grid station, and factory, power station or such like installations. The Constitutional Law in America provides an extensive and wide meaning to the word 'life' which includes all such rights which are necessary and essential for leading a free, proper, comfortable and clean life. The requirement of acquiring knowledge, to establish home, the freedoms as contemplated by the Constitution, the personal rights and their enjoyment are nothing but part of life. A person is entitled to enjoy his personal rights, freedom and liberties. Any action taken which may create hazards of life according to law. In the present case this is the complaint the petitioners have made. In our view the word 'life' constitutionally is so wide that the danger and encroachment complained of would impinge fundamental right of a citizen. In this view of the matter the petition is maintainable." Allah Almighty blessed Murree with a heavenly beauty and no one has right to rob it by cutting trees, excavating the mountains for constructing concreate structures or to pollute it by dumping garbage in its hilly slopes. Without an exaggeration, from the facts agitated through instant constitutional petitions, it can be held that the fundamental right guaranteed under Article 9 of the Constitution is being infringed, thus the instant petitions are maintainable. 6. A wade through the contents of the constitutional petitions in hand unfolds that the concerns raised can be bisected in two parts. The first part of these concerns has its roots in the agonizing incident of 07.01.2022 during which 22-persons lost their lives in a blizzard, after remaining trapped in their snow stuck vehicles for whole night,

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awaiting rescue workers who never turned up. The second part of the grievance pertains to the mishandling of affairs by the public functionaries destroying the ecological system of Murree. In order to assess the actual reasons which led to the catastrophe of 07.01.2022 and the nose dive decline of the natural beauty of Murree, not only the comments from various departments were requisitioned but right of hearing was also given to the relevant officials. 7. Firstly, it is considered appropriate to dilate upon the incident of 07.01.2022 but before that it appears to be in fitness of things to tentatively look at the distribution of responsibilities amongst various Government Departments for countering any calamitic disaster. In the wake of deadly earth quake of 2005 which took the lives of approximately 87000 people, caused injuries to 138000 persons out of whom many were left crippled for rest of their lives and displaced around 3.5 Million citizens, a need was felt to devise a credible disaster management system, accordingly the needful was done through Act No.XXIV of 2010 which is called as the National Disaster Management Act, 2010 (hereafter referred to as "NDM Act 2010"). Under its Section 8 Federal Government was to establish the National Disaster Management Authority (hereinafter referred to as "NDMA") and under Section 15 each Provincial Government was required to set up a Provincial Disaster Management Authority (hereinafter referred to as "PDMA"). The powers and functions of NDMA and PDMA are given in Sections 9 and 16 respectively. Since the calamity of 7th January 2022 hit Tehsil Murree and the grievances voiced in the instant petitions are mainly pointed towards different organs of the Government of Punjab, hence Section 16 wherein the powers and functions of PDMA are envisaged has some importance. Similarly, through necessary implication of Section 18, the respective Provincial Governments were required to establish a District Disaster Management Authority (hereinafter referred to as "DDMA") for each District, the powers of which are further given in Section 20. Under Section 16, the PDMA was made responsible for making plans of Disaster Management in the Province and to take numerous steps foremost out of which were to formulate and monitor Provincial Disaster Management Policy; identify the Districts vulnerable to disasters and to take preventive steps; lay down guidelines for different departments regarding preparation of Disaster Management; organize and coordinate specialized training programmes for officers, employees and voluntary rescue workers; facilitate community training and awareness programmes; set up, maintain and upgrade mechanism for early warning about an apprehended disaster to the general public etc. It is observed that for the Province of Punjab with a population of around 110 Million, PDMA is made functional only with 94 personnel including 07 officers. For implementing the objectives of NDM Act 2010 through notification No.149-2017/186/Admn-I dated 22.06.2017 Governor of the Punjab constituted DDMA for each District and its formation is mentioned hereunder:- 1. Deputy Commissioner Chairperson 2. Mayors of Metropolitan/Municipal Corporations Member 3. Chairman District councils Member 4. District Police Officer Member 5. Two elected representatives to be nominated by the Chief Minister for each DDMA Member 6. Two representatives of NGOs/Civil Society to be nominated by Chair Member 7. CEO District Health Authority Member 8. CEO District Education Authority Member 9. Additional Director Livestock Member 10. Deputy Director Agriculture (Extension) Member 11. District Food Controller Member 12. SP/DSP Special Branch Member 13. Executive Engineer, Irrigation Member 14. Executive Engineer Member 15. Executive Engineer Highways Member 16. Executive Engineer Buildings Member 17. District Emergency Officer (Rescue 1122) Member 18. Disaster Management Officer, Pakistan Red Crescent Society Member 19. All Chief Officers of Municipal Corporation/Municipal Committees/District Councils Member 20.Federal Government Officers which the DDMAs decide to co-opt as per powers delegated under sections 20 & 22 of NDM Act 2010Member

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It needs no elaboration that the legislative object of NDM Act 2010 could best be achieved through proper coordination of the offices mentioned in afore-mentioned schedule. To the dismay of this Court, it is noticed from record that though the role of PDMA in disaster management is nothing less than a protagonist but it badly failed to cope with the situation. It is observed that the Metrological Department issued forecast of heavy snowfall and not about the blizzard. Even forecast of heavy snowfall was not properly transmitted to the concerned Departments either by the Metrological Department or by the PDMA. Even on the crucial date PDMA was awaiting the appointment of its Director General after the retirement of previous one but unfortunately the needful was not done by the Government of Punjab within time. While embarking upon the tragedy of 7th January, 2022 following points are essentially required to be highlighted:- (i) After having carefully perused the schedule mentioned above, it is noticed that Pakistan Metrological Department figures nowhere in the structure of notification No.149-2017/186/Admn-I dated 22.06.2017 issued by the Governor of Punjab for the implementation of the objects mentioned in NDM Act 2010. This Court is not oblivious of the fact that Pakistan Metrological Department is a Federal entity but still NDMA was required to include it so as to counter any disaster in best possible manner. Despite the lapse so mentioned, Pakistan Metrological Department cannot be exonerated from its responsibility of intimating the concerned Departments about the weather threat alert. Surprisingly, though the Metrological Department issued an alert about expected rain and heavy snowfall but took no pragmatic steps towards apprising other Departments in this regard such as Rescue-1122, Punjab Highway Department, NH&MP, PTDC, and District Administration Rawalpindi etc. Instead of issuing weather advisory through publication in Print Media, circulation via electronic media and intimation to PDMA and other offices by proper correspondence, the calamity alert was only transmitted through WhatsApp Message on the mobile phone of Director General, PDMA on 5th January, 2022 who had already relinquished the charge on the eve of his retirement. A fact-finding enquiry was conducted about the 7th January incident by four senior officers of Punjab Government and it evinces therefrom that WhatsApp message so forwarded to Director General, PDMA was not seen till 18th of January, 2022. The improper issuance of weather forecast inevitably became the root cause of the incident. (ii) The Punjab Highway Department had major role to play for clearing snow from the roads. A huge budget is allocated to the Department along with vehicles and personnel for its smooth working. Though an attempt was made to canvass before this Court that during the tragic incident of 07.01.2022 the Punjab Highway Department put best of its efforts but the frailty of such stance was badly exposed from the record. Initially, it was stated before this Court that approximately 29-vehicles including snow blowers of Highway Department were located at Key-Points and remained functional in clearing the roads. Later, when the record was requisitioned from the Punjab Highway Department, it unveiled that for operating the afore-mentioned 29-vehicles, only 20-persons were deputed and 15 out of them were not even having requisite expertise to handle them. It is considered important to mention here that nine of these persons were recruited as Greasers, whereas remaining six were employed as Bitumen Colly, Filter Colly, Rack Colly, Watchman, Work Taker and Time-Keeper. These persons were neither employed as Drivers/Operators nor had requisite abilities of operating the vehicles or even to clear the snow from the roads. As this was not enough, it further divulged from record that the job of sprinkling salt to counter the slippery ice roads, was outsourced to a private contractor in lieu of Rs.7.500 Million, as service charges only with no supervisory check. Even the salt to be sprinkled on the road was provided by the Punjab Highway Department having enough manpower and logistic support to do the job. Living in a developing country like Pakistan with financial constraints, we cannot chew such extravagant spending so as to digest it. The state of affairs so mentioned speaks volume about the inefficiency of Punjab Highway Department, which somehow aggravated the impact of snow storm and the loss caused by it. (iii) Rescue-1122 is a prestigious organization in the developing countries like Pakistan and was established to provide various facilities to the citizens in times of need. The personnel of Rescue-1122 are provided extensive training to render services in emergent situations and needless to mention a huge expense is incurred from public exchequer in this regard. Most of the victims of 7th January calamity remained stuck on a patch of about 2/3 kilometers on Nathia Galli Road starting from a place known as Kuldana Murree. A report was requisitioned from Murree Wing of Rescue-1122 which was accordingly submitted and it was put forth therein that on the night of 7th January, 2022, approximately 25-victims of severe weather were attended. In order to adjudge the veracity of such stance, the log-book of Rescue-1122 was perused from which it emerged that none of the victims receiving medical treatment was located on the road leading from Kuldana to Nathia Galli. Indeed, all these persons received treatment at places around Mall Road of Murree wherein the situation was not so alarming and were suffering from routine medical problems like temperature and indigestion etc. An ample opportunity was provided to the officials of Rescue-1122 for demonstrating that they reached calamity hit areas but they failed in

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this regard. It will not be out of place to mention here that deployment of Rescue-1122 personnel at different points definitely would have reduced the intensity of the…

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