1. ' AZIZULLAH M. MEMON, J.---The above-stated two High Court Appeals arose under the following circumstances:-- ' Respondent Premier Battery Industries (Pvt.) Limited filed suit bearing No.427 of 2003 in this Court under the original civil jurisdiction, asserting therein, inter alia, that on 10th June, 2003 the representatives of appellant/defendant viz. Karachi Electric Supply Corporation Limited visited the plaintiff's factory premises, situated at F/488, S.I.T.E. Karachi, and threatened to install an overhead high tension transmission line, along with pipes/poles and cables within the factory premises, against the provisions of section 12 of the Electricity Act, 1910 which would generate dangerous electromagnetic rays and would endanger the human life and safety of the workers of the factory, working for manufacturing Dry Battery Cells, the vested and valueable property rights of the plaintiff in the said property would also be affected which are otherwise guaranteed under Articles 9, 18 and 23 of the Constitution of Islamic Republic of Pakistan, plaintiff further contended that despite their refusal to allow any such activity, the appellant persisted with the said demand, but eventually in the face of stiff resistance, lift the factory premises, threatening the plaintiff of installing the said dangerous pole forcefully with the aid of their enforcement cell.
2. Hence, the following prayers were made in the plaint of the said suit:--
(a) Declare that the defendant No.2's actions of threatened installation of overhead high tension transmission line pipe/pole along with cables within the plaintiff's factory premises shall be illegal, arbitrary and without jurisdiction and violative of the fundamental rights as enshrined under Articles 4, 9, 14, 18 and 23 of the Constitution of the Islamic Republic of Pakistan, 1973.
(b) For a permanent injunction restraining the defendants Nos.1 and 2 their officers, employees, servants, person(s) acting under or through them from installing an ovehead high tension transmission poles and cables within the factory premises situated at F/488, S.I.T.E. Karachi of the plaintiff, and further restrain them from taking any other coercive and adverse actions against the plaintiff or any of its representatives and personnel including disconnection of electricity.
(c) Any other better relief which this Hon'ble Court deems fit in the circumstances of this case.
3. ' An application under Order XXXIX, rules 1 &. 2, C.P.C. Was also filed by the plaintiff in the said suit which was heard by a learned Single Judge of this Court and vide order dated 28-10-2003, the appellant/defendant was restrained/prohibited from carrying out the said erection/construction of the poles of installation of high power transmission electricity -wires (complained against) and the operative portion of the said order reads as under:- "The defendants have not denied the sketch No.F.P. 1453 annexed with the suit. In para. 3 of the counter-affidavit the defendants have relied upon said site-plan and stated that high tension line is passing through the plot of the plaintiff since 1981. They have not been able to show as to how and when the route of the line has been changed from the one shown in the said sketch to the one shown in the report of the Official Assignee. The report of the Official Assignee is silent as to the route of the line prior to its dismantling by the KESC. Number of controversial points have been raised by the parties which can only be decided at full-fledged inquiry after recording the evidence and cannot be adjudicated at this stage ..."
4. "In view of the above, a prima facie case is made out in favour of the plaintiff, balance of convenience is in their favour and they are likely to suffer irreparable loss if the proposed H.T. Line is allowed to be installed by the defendants. The Court is also to protect the interest of the private property as against the action of the Corporation. The .Defendants are, therefore, allowed to lay high tension line exactly on the same path/route which was existing in 1981 and as shown in the sketch No.FP1453 i.e. Annexure P-4 to Suit No.724 of 2003."
5. ' It may be mentioned here that the defendant/appellant filed CMA bearing No.5257 of 2003 in the very same suit under Order VII, rule 11 with a prayer to reject the plaint of the said suit, which application was dismissed through the very same order.
6. ' Hence the defendant/appellant has filed these two High Court Appeals against the said two orders.
7. ' We heard Mr. Muhammad Muzaffar-ul-Haq, Advocate for appellant, Mr. Abid S. Zubairi, Advocate for respondents/plaintiff and Mr. Abbas Ali learned Additional Advocate General for respondent No.1 viz. Government of Sindh.
8. ' The controversy involved in the present two appeals was fully discussed by Hon'ble Supreme Court of Pakistan as far back as the year 1994, in judgment pronounced and reported in PLD 1994 SC 693 "Mst. Shehla Zia and others v. Wapda" and the relevant observations may be quoted, with advantage as under:-- "The issue raised involves the welfare and safety of the citizens at large because the network of high tension wires is spread throughout the country. One cannot ignore that energy is essential for present day life, industry, commerce and day to day affairs. The more energy is produced and distributed, the more progress and economic development become possible.
9. ' Therefore, a method should be devised to strike balance between economic progress and prosperity and to minimize possible hazards. In fact a policy of sustainable development should be adopted."
10. "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 facts of human existence. The word "life" has not been defined in the Constitution but it does not mean nor can he restricted only to the vegetative or animal life or mere existence from conception to 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. 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, any factory, power station or such-like installations. Under the common law a person whose right of easement, property or health is adversely affected by any act of omission or commission of a third person in the neighbourhood or at a far off place he is entitled to seek an injunction and also claim damages, but the Constitutional rights are higher than the legal rights conferred by law, be it municipal law or the common law. Such a danger as depicted, the possibility of which cannot be excluded, is bound to affect a large number of people who may suffer from it unknowingly because of lack of awareness, information and education and also because such sufferance is silent and fatal and most of the people who would be residing near, under or at a dangerous distance of the grid station or such installation do not know that they are facing any risk or are likely to suffer by such risk."
11. "Article 14 provides that the dignity of man and subject to law, the privacy of home shall be inviolable. The fundamental right to preserve and protect the diginity of man under Article 14 is unparalleled and could be found only in few Constitutions of the world."
12. We are of the opinion that the plaintiff/respondent made out a strong prima facie case in its favour for issuance of temporary injunction and such a discretion is exercised by learned single Judge within the four corners of the well-settled principles for the grant of injunction under Order XXXIX, rules 1 & 2, C.P.C. In a judgment reported in 2003 CLC 771 (Karachi). "Hussain A. Haroon v. Mrs. Laila Sarfaraz and others" authored by one of us (Shabbir Ahmed J.) it is already reiterated that the Appellate Court will not substitute its own discretion for that of Trial Judge except where discretion was exercised arbitrarily, perversely, contrary to the legal principles, and on the basis of assumptions not borne out by record.
13. ' Hence, vide a short order dated 10-2-2004, both these High Court appeals were dismissed, and above are the reasons for the same.