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Official Citation: 2025 PHC 116
Court / Jurisdiction: Peshawar High Court
Year of Decision: 2024
Decision Date: 2024-12-31
Parties: Al-Khalid Stone Crusher and others vs Khyber Pakhtunkhwa Environmental JUDGMENT
Ruling Summary: This decision was rendered by the Peshawar High Court on 2024-12-31, officially reported as 2025 PHC 116. In this matter between Al-Khalid Stone Crusher and others and Khyber Pakhtunkhwa Environmental JUDGMENT, 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.
Case cited as 2025PHC116
Court Name: Peshawar High Court Judge(s): Syed Mudasser Ameer Title:Al-Khalid Stone Crusher and others vs Khyber Pakhtunkhwa Environmental
JUDGMENT
Reported As: 2025 PHC 116 Result: Petition Dismissed Judgment
CONSOLIDATED JUDGMENT SYED MUDASSER AMEER, J.Through this single judgment, the Court shall decide WP No. 316-A/2025 titled: Al-Khalid Stone Crusher-Vs-Khyber Pakhtunkhwa Environmental Protection Tribunal, Peshawar and others, WP No. 389-A/2025 titled: M/S. Z.K, Jadoon Stone Crusher-Vs-Hashim Iqbal Jadoon and others, WP No. 406-A/2025 titled: Qazi Hammad Stone Crusher Plant Dara Dhodiyal-Vs-Khyber Pakhtunkhwa Environmental Protection Tribunal, Peshawar and others,WP No. 439-A/2025 titled: Naseem Gul Stone Crusher Plant Dara Dhodiyal-Vs-Khyber Pakhtunkhwa Environmental Protection Tribunal, Peshawar and others, and WP No.503-A/2025 titled:Hazara Stone Crusher-Vs-Khyber Pakhtunkhwa Environmental Protection Tribunal, Peshawar & others, as all these petitions arise out of one and same order dated: 11.03.2025 passed by the respondent/Environmental Protection Tribunal, Khyber Pakhtunkhwa, Peshawar (hereinafter referred to as 'EPT'). 2. Facts of the case(s) are that the respondent namely Hashim Iqbal Jadoon (complainant) filed a complaint (No. PC-05/2022)under section 22(3)(ii) of The Khyber Pakhtunkhwa Environmental Protection Act, 2014 (hereinafter referred to as 'KPEPA'), seeking intervention of EPT against the present petitioners(stone crushers)allegedly for their persistent illegal operation of stone-crushing machines, operating without legal authorization, despite being sealed multiple times by authorities. In the complaint, the complainant highlights the willful negligence of the respondents, who continue to violate environmental laws with impunity, causing irreversible damage to ecosystems
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and public health. The complainant urged EPT to take strict legal action against the present petitioners including permanent shut down of their plants, heavy fines and criminal penalties, etc. 3. In response to the complaint, the present petitioners/owners of stone crushing plants filed replies. They also moved application for dismissal of the complaint being malicious, vexatious and not maintainable. Meanwhile, complainant had also moved two applications, one for grant of Interim Relief and another for addition of parties. All these three applications were decided by the EPT vide single consolidated order dated: 11.03.2025, whereby the application of petitioners (owners of stone crushing plants), for dismissal of complaint, was declined while the applications for Interim Relief as well as addition of parties filed by the respondent/complainant were allowed. Hence, the petitioners being aggrieved of the above findings have approached this Court by filing the instant constitutional petitions. 4. The petitioners in these petitions assert that they have legally established crush plants after obtaining all necessary approvals, including authorization from the Mines and Mineral Department, NOCs from the Industries and Consumer Department, and environmental clearance from the Environmental Protection Agency of Khyber Pakhtunkhwa ('EPA'). They emphasize that their operations comply with the prescribed distance requirements maintaining a buffer of 300 meters in rural areas and 500 meters in urban areas, as mandated by relevant regulations. Despite adhering to these legal standards, the petitioners claim they are being subjected to baseless and repeated legal challenges by the respondent/complainant. Consequently, they feel they are being unfairly targeted and harassed through frivolous litigation. They also contend that the complaint filed by the respondent/complainant is also not maintainable on the ground of non-service of statutory notice as required under section 22(3)(ii) of KPEPA and that respondent No.1/EPT also failed to appreciate the mandate of section 22(7) of the KPEPA by not following the procedure as directed to be followed under the provisions of section 200 and 201 of the Code of Criminal Procedure, 1898 ('Cr.P.C'). 5. Arguments heard and record perused. 6. Petitioners are operating Stone Crushing Plants in the Hazara region. The instant lis has a chequered history. Petitioners have been playing cat and mouse with the respondents since long. All the petitioners want is to be left alone to just do their work/business but the respondents are always interfering in the smooth running of their affairs on one pretext or another. They are particularly aggrieved of their non-stop persecution at the hands of respondentNo.4 (complainant), who has taken it upon himself to ensure that the environment is saved. In his quest, the complainant too has been running from pillar to post and is also much aggrieved of the actions, inactions and omissions of the other respondents resulting in inadequacy of measures to protect the environment particularly from the petitioners. 7. Stone crushing activities in Pakistan, particularly around areas like Margalla Hills, Taxila and Hazara Division, have indeed caused significant erosion and environmental degradation. The industry, driven by demand for construction materials, often relies on blasting and quarrying, leading to hillside denudation and potential damage to ecosystems and communities. Stone crushing operations, especially those involving blasting, cause significant erosion of hillsides, leading to land degradation and loss of vegetation. Back in July 2010, 15 years ago, The Express Tribune published the sad story of stone crushing eating up our mountains. Titled 'Crushing mountains to build buildings', the said article warned us of the dire consequences of the unfortunate and illegal silence of the EPA and governments about this environmental disaster. The following excerpts will remind us: "First it was the Margalla Hills and now the hills of Rutti Mitti of Khyber-Pakhtunkhwa are being crushed to feed the never-ending demand for stone. Despite many attempts by the government to halt the practice, the four-decadeold legacy of stone crushing continues as hills disappear.
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On way to Abbottabad, about an hour and a half from Islamabad, on the right are the lush-green Murree Hills, Nathiagali and Baarian, while on the left are horrific sites of 'scooped' mountains, some peaks almost invisible and stone crushers operating in full swing. About 18 crushers are working there. According to a social worker from the area, Jawadullaha Khan Abbasi, the destruction of the hills has caused severe health problems in the area, such as hepatitis, TB and skin infections. The residents of the area also face other issues such as noise pollution caused by dynamite explosions, heavy machinery and about 80 trucks crossing GhoraGali Lora Road in district Abbottabad daily. Moreover, stone crushing has led to the drying up and contamination of natural streams, the destruction of natural geographical formations, archaeological features and native plant communities. It has also forced native birds to migrate from the area, says Abid Swati, an environment expert in Khyber-Pakhtunkhwa." Many such articles and stories have been consistently published by our newspapers over the years but those responsible kept silently watching as the mountains were eaten up. It is about time that this criminal silence and inaction is ended and concrete measures are taken to save these mountains. Many a times, the honorable Supreme Court has also pointed towards this menace and the proactive approach that is needed to prevent further destruction. It is also disappointing and disturbing that EPA is only focused on the air and noise pollution and doesn't seem much bothered about the eroding mountains. As per the report submitted before the Apex Court in the case of Amer Zshaq& others v. Province of Khyber Pakhtunkhwa & others (PLD 2024 SC 1134) there were 900 crushing plants operating in Khyber Pakhtunkhwa by July 2024. This poses a serious existential threat to the mountains. The inspections conducted and the guidelines provided by EPA available on record show various precautionary measures and safeguards related to air and noise pollution, however there seems to be no such measure taken by the EPA to ensure the safety and preservation of the mountains. In the case of stone crushers such measures are mandatory. Without a comprehensive plan for the preservation of these mountains Environmental Approvals ('EA') cannot, and should not, be issued. If stone crushing can be completely banned in ICT to save the mountains and the environment, why not in Khyber Pakhtunkhwa. The provincial government should also look into the matter and come forward to perform its constitutional duties in this regard. 8. 'Pre-cautionary principle' in environmental cases requires the States to adopt pre-cautionary approach to protect the environment. To prevent damage to the environment before it is actually caused. This is principle 15 of the 'Rio Declaration on Environment and Development, 1992'. Though the 'pre-cautionary principle' has been recognized, acknowledged and applied by the apex Court since Shela Zia's case (PLD 1994 SC 693), it has more force and binding nature now after insertion of Article 9-A in the Constitution of Islamic Republic of Pakistan, 1973 ('the Constitution'). The constitutionally guaranteed fundamental right to a clean, healthy and sustainable environment is not abstract. It is a real and enforceable right. Earlier the Courts interpreted the 'right to life' (Article 9) expansively to include environmental protection and still adopted an inquisitorial and proactive role in environmental cases. Whenever it came to the Court's notice that environment was endangered, the Court has invariably intervened and stopped the environmental damage by applying the 'precautionary principle'.The apex Court in Shela Zia's case emphasized that prevention is better than cure and environmental threats or violations should be arrested from the very inception. Now to ensure the guarantee provided by article 9-A, even more proactive role is required, particularly by those charged with the specific responsibility to protect and preserve the environment. In DG Khan Cement Co. Vs. Government of Punjab (2021 SCMR 834) the apex Court reiterated that courts must act on the basis of the 'pre-cautionary principle' where environmental harm is imminent, cumulative or irreversible. Even more recently, vide Order dated 11.07.2024, his
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Lordship Justice Syed Mansoor Ali Shah, speaking for a full bench of the apex Court in the case of Amir Ishaq and others v. Province of KP and others (PLD 2024 SC 1134), observed as follows: "5. Air pollution causes an estimated one in every nine deaths worldwide, making it the greatest environmental threat to human health. According to the World Health Organization ("WHO"), air pollution is responsible for an estimated seven million premature deaths worldwide every year.4 Almost all air breathed by humans exceeds the WHO Guidelines limits. It is pertinent to mention here that no other location on the planet illustrates the stubborn nature of air pollution challenge more than South Asia, where pollution continued its upward trend in 2021. Bangladesh, India, Nepal and Pakistan - where 22.9 percent of the global population lives - are the top four most polluted countries in the world.5 As per the World Air Quality Report (2023), Pakistan is the second most polluted country in the world with an annual average PM2.5 concentration 14 times above the WHO guidelines, leading to a loss in life expectancy of 4.4 years.6 The most serious issue of air quality in Pakistan is the presence of excessive suspended PM present in the air. It is noted that the triple-planetary crisis, which comprises of interrelated urgent crisis of climate change, biodiversity loss, and widespread pollution must entrench environmental concerns as supreme constitutional norms. This strand of demand often coined as "environmental constitutionalism" is a relatively recent phenomenon at the confluence of constitutional law, international law, human rights and environmental law and embodies the recognition that the environment is a proper subject for protection in constitutional texts and for vindication by constitutional courts worldwide. By acting as a method of constitutionally entrenching environmental law and protection at a more enduring or "higher" constitutional level, environmental constitutionalism entails a transformative approach that relies on constitutions to provide for the architecture of environmental governance, whereupon it then acts to improve environmental protection through various constitutional features such as fundamental rights, recognized principles of environmental governance and the rule of law." 9. A review of the relevant law, i.e. 'KPEPA' would show that the object and aim of the said law as reflected in its preamble also lays much emphasis on 'the protection, conservation, rehabilitation and improvement' of the environment and 'monitoring, prevention and control' of pollution. All these terms also predominantly point towards the prevention of damage rather than cure; the 'pre-cautionary principle'. Thus all the provisions of the Act ought to be viewed in this context. Section 11 of the KPEPA prohibits, in unequivocal terms, the discharge or emission of any effluent or wastes or air pollutant or noise, etc. which is in excess of the Khyber Pakhtunkhwa Environmental Quality Standards ('KPEQS') or other established standards. Section 13(1) of the ibid Act, couched in negative language, lays down a complete and absolute bar on the commencement and/or operation of any project without first obtaining EA from the EPA. How that approval is to be obtained has also been elaborately provided in the said section and rules made thereunder. Much debate was also made on the lack of efficient mechanisms and resultant delays caused by the EPA in the process of granting such EAs, yet the law does not allow that or any other such excuse to be used for commencement or continuance of operations in the absence of the required EA. No matter how long it takes, no matter how difficult it might be, the commencement or operation of any project in the absence of an EA is illegal and must be stopped immediately. There is no exception provided in law, nor can one be created on any grounds whatsoever. Neither the EPA nor the EPT, nor any other authority for that matter, has been vested with any such powers. Any permission, 'conditional approval', 'interim approval', 'NOC', relaxation, exemption, interim-relief, stop-gap arrangement or any other such instrument, by whatever name called, allowing any person or project to commence or continue operations in the absence of an EA is also ab initio illegal, unlawful and void.
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10. After laying down various safeguards and elaborate mechanisms to ensure the safety of the environment and prohibiting any activities that might be harmful, KPEPA provided strict and robust mechanism for its enforcement on various levels. This, at the EPA level, starts with an Environmental Protection Order ('EPO'). Section 17 empowers the EPA to immediately stop any such activity and also to proceed further and take other measures. Section 18 (1) provides that any failure to comply with the provisions of section 11, 12, 13, 14 and 17 or any order passed thereunder shall constitute an offence punishable as provided therein. Any such offence is triable exclusively by the EPT established under section 21 of KPEPA. The EPT has been vested with dual powers and jurisdictions; original jurisdiction under section 22 and appellate jurisdiction under section 23 of KPEPA. Whereas under section 23 it hears appeals against any orders or directions of the EPA, under section 22(3) it can try and take cognizance of any offence upon a complaint in writing (i) by the EPA or any Government Agency or local council or (ii) by any aggrieved person. 11. The instant case pertains to this section 22(3)(ii), where Respondent No.4 (the Complainant as an aggrieved person) filed complaint against the petitioners on the grounds mentioned therein. Sections 22(5) and (7) vests the EPT with the powers of the Sessions Court and allows it to follow the procedure laid down in the Cr.P.C. The EPT issued summons, notices, etc. and directed the petitioners to furnish bonds, however till date none of them complied with the directions of EPT and instead filed applications for summary dismissal of the complaint being non-maintainable. EPT dismissed their applications and by way of interim order, restrained them from all activities. To understand the gravity of the offence as defined in section 18(1) of KPEPA, for which the petitioners are being tried by the EPT, it is also important to read section 38 of KPEPA, which is as follows: "38. Cognizable offences.---The offences specified in sub-section (1) of section 18, of this Act shall be cognizable to the extent of registration of case, arrest of the polluters / violators, taking action at site warranted to suspend or stop any illegal activity under the Act, rules made thereunder on a written report by any member of the Agency sent to the Incharge of Police Station concerned. The In-charge of the concerned local police station or post shall be duty bound to accompany, provide safety and security to the members of the Agency." Thus, the law not only empowers but requires the EPT, EPA and even a police officer (upon a written report by any member of EPA) to suspend or stop any illegal activity under this Act. Even otherwise, the overall scheme, letter and spirit of KPEPA is such that every person and authority relevant has been required to protect and preserve the environment and to prevent and stop pollution. Hence, to interpret the law in a manner to deprive the EPT from such powers of stopping violation of KPEPA would,defeat the very aim and purpose of and, be against the scheme, letter and spirit of the law. In a similar situation, the hon'ble Lahore High Court, in the case of Muhammad Ayaz v. Government of Punjab and others (2017 CLD 772), held that application of the 'precautionary principle' and the overall reading of the Pakistan Environmental Protection Act, 1997 and its implementation in letter and spirit required to interpret its provisions in such manner so as to enable the EPA to enforce its orders. Thus it is clear that the EPT seized of a matter has all the powers to stop or suspend any illegal activity under KPEPA. 12. Petitioners rely on Article 18 of the Constitution to claim their right to do business and earn a livelihood. Even the fundamental right to trade and do business, etc. as enshrined in Article 18 ibid is not absolute; it is subject to such qualifications as may be prescribed by law. The right is limited to lawful activities. Prohibited activities are not protected by this article for good and obvious reasons. At the very foundation of the human rights and liberties in a harmonious society is the principle that "the freedom of one citizen ends where the liberty of another begins". One cannot claim the right to conduct a business that deprives another from breathing clean air. More so, when the deprivation is not of one person but the public at large. No prudent mind, much less a law, would allow such activity to continue. KPEPA has been enacted to stop any such activities. It is
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unperceivable that the very law enacted to stop an activity would somehow be used to perpetuate it. The absence of any provision in the KPEPA or the rules, etc. or of any order or existence of any vacancy in any office or any deficiency for that matter cannot vest a person with the license or permission to continue an activity, which is prohibited to start with. 13. Petitioners have tried to build a strong case on several arguments reflecting various deficiencies in the rules and procedure adopted in the impugned order and/or by the EPAor EPT. It is their case that since proper procedure as required by S.22 of KPEPA as well as the one provided for proceeding with a criminal complaint in Cr.P.C, has not been adopted in letter and spirit, the entire edifice built thereon must fall and they should be allowed to continue with their stone crushing activities under the 'Conditional/Provisional Approvals' given by some officer of EPA or some other agency. They stress that something required to be done by law in a particular manner must be done in that manner or not at all and proper procedure having not been followed by the EPT, the proceedings before it should be quashed. No doubt, this legal principle is of fundamental importance in our legal system and ensures across the board application of laws and procedures to avoid any discrimination, arbitrariness or unreasonableness. However, the context in which it is applied matters the most. If a person has been deprived of his legal or fundamental right by adopting a procedure that is not in accordance with law, this principle will always come to his rescue and will set the proceedings initiated against him at naught, annulling the steps taken towards depriving him of what lawfully belonged to him or from stopping him to do what he was lawfully entitled to do. All this rests on one single foundation; The right or liberty to begin with must be lawful. Only holder of a lawful right can challenge the deficiencies or procedural irregularities of a process depriving him of that right. A person having no right to begin with, cannot question the procedural improprieties of the actions taken by authorities or law enforcing agencies for stopping him to do what is even otherwise prohibited by law from its very inception. Regardless of any notice or action taken by the respondents, the law itself prohibits the petitioners from carrying out any activities in the absence of EA. The available record has been thoroughly perused and the petitioners were also asked at the bar, however there is no EA or 'Initial Environmental Impact Assessm ent ('EIA')available with any of the petitioners. Petitioner in WP No.389-A/25, Ms. Z. K. Jadoon, insisted that his case was different from all others as he possessed a valid 'Approval' in accordance with the Act. The said 'conditional approval' No. 1820 dated: 24.12.2020 is available at page 58 of his petition. It looks nothing like the EA required by section 13 of KPEPA. To further ensure this, the representative of EPA present in the Court was also required to submit a report, clearly providing the status of each petitioner. The report so submitted by the EPA also clearly states the same fact; none of the petitioners have obtained an EA. 14. So far as the procedural improprieties contained in the impugned order are concerned, they do not seem to have caused any prejudice to anyone. It would have been appropriate for the worthy EPT to have decided each application separately to avoid any impression of a mix-up, particularly between the civil and criminal jurisdictions vested in it. However, the said error is not fatal to the otherwise valid proceedings going on before it. Even otherwise, the matter before this Court transcends the mere review of an interim procedural order. At its core, it requires the Court to determine whether writ jurisdiction under Article 199 of the Constitution may be invoked to undermine or nullify a judicial act that enforces binding EPOs issued by EPA; orders which have attained finality due to the failure of the accused to avail the statutory right of appeal under Section 23(1) of the KPEPA within the prescribed 30-day limitation. These EPOs, issued on 10.10.2024 under Section 17 of KPEPA, explicitly directed an immediate cessation of activities at the petitioners' crush plants and have not been challenged by any lawful means. Their continued violation thus constitutes a clear breach of environmental law. The impugned order dated 11.03.2025 passed by EPT does not dispose of the main complaint but addresses the petitioners' non-compliance with
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these valid EPOs. It is noted that the private complaint pending before the EPT, filed under Section 22(3)(ii) of KPEPA, stands as a distinct legal proceeding initiated by an aggrieved party. In responding to that complaint, and more crucially, to the documentary evidence of EPO violations, the EPT acted within its statutory and constitutional mandate. The failure of the EPA itself to file a formal complaint under Section 17(3)(ii) following non-compliance does not preclude the EPT's power, indeed its obligation, to prevent continued environmental harm in the public interest. In doing so, the EPT rightly exercised its preventive jurisdiction under Section 22(7) and 38 of KPEPA, read with Section 133 and other enabling provisions of Cr.P.C. The Supreme Court in Islam-ud-din v. Ghulam Muhammad (PLD 2004 SC 633) has…
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