JAWAD HASSAN, J.---This constitutional petition has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution ") and the Court, at initial stage, on 07.05.2021, while issuing notices, has mentioned the following quote of Tammy Duckworth, a US Senator from Illinois and the first women with a disability elected to Congress.
"Don't look at me with pity. I earned this wheelchair . I own this wheelchair . I am proud of it and I am going to use it to get places a hell a lot faster than you could ever run"
2. The Court thereafter , relying on judgments of Hon'ble Supreme Court of Pakistan on fundamental rights of Persons with Disabilities (the "PWDs") reported in "Dr. Shahnawaz 'Munami and others v. The Federal Government of Pakistan and others" (2020 SCMR 1713 ) and by the UK Supreme Court in the case of Paulley v. Firstgroup PLC (2017 SCMR 407)=[(2017) UKSC 4] summarizes that "people who cannot walk to justice, the justice can walk to them". However , this judgment will discuss in detail how the justice has walked by delivering writ of mandamus and appreciating the role of civil society , Government to draft law i.e. Punjab Empowerment of Persons with Disabilities Act, 2021 (the "Act") which gives rights to people with disabi lity including rights of privacy , accessibility and mobility , equity in educa tion, right to home and family , access to justice and right to inherit and own property etc. This Court in its order dated 20.05.2021 also recognizes Report of the Child Care Commission (the "Commission ") authored by Dr. Parvez Hassan, Senior Advocate Supreme Court of Pakistan on the orders of Mr. Justice Mansoor Ali Shah, the then Chief Justice (Now Hon'ble Judge of august Supreme Court of Pakistan) which have been complied with by the Respondents in this case while following the recommendations of the Commission.
3. While writing this judgment, I recall the illustrious quote of Stephen Hawking, English Theoretical Physicist, Director of Research at the Centre for Theoretical Cosmology at the University of Cambridge which reads as follows: "The downside of my celebrity is that I cannot go anywhere in the world without being recognized. It is not enough for me to wear dark sunglasses and a wig. The wheelchair gives me away ."
4. Through this single judgment, I intend to decide this writ Petition as well as conn ected Writ Petition No.22253 of 2021 titled as "Judicial Activism Panel, Human Rights and Public Interest Litigation Association through its Chariman v. Federation of Pakistan and 15 others" as common questions of law and facts are involved in both the cases.
I. BRIEF F ACTS
5. The Petitioner/Sana Khursheed has filed this writ of mandamus under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the " Constitution ") with the following prayer: "In view of the foregoing, it is most respectfully prayed that this Honourable Court may graciously be pleased to direct, monitor and ensure:
1. Strict tangible enforcement of Regulation 5.2.3 of the 2019 LDA Building and Zoning Regulations for provisions of ramps, lift and toilets at public buildings, commercial buildings and apartment for differently-abled persons with a definitive period of time as determined by this Honourable Court, against the Respondent No.2(Secretary , Housing, Urban Development and Public Health Engineering Department), Respondent No.3 (Director General, Lahore Development Authority", and Respondent No.4 (Chief T own Planner , Lahore Development Authority).
2. Strict tangible enforcement of Serial No.53 of the DHA Lahore's Construction and Development Regulations of 2014 for providing at commercial building s meaningful access/exit, entrances through handrail ramps, and space for parking for differently-abled persons, within a definitive period of time as determined by this Honourable Court, against the Respondent No.5 (Chairman, Defense Housing Authority , Lahore) and Respondent No.6 (Administrator , Defense Housing Authority , Lahore) and
3. That the Respondents enact meaningfu l legislation whereby the rights of differently-abled persons in their pursuit of fundamental rights related to meaningful accessibility of public facilities are advanced to place such differently- abled persons on equal footing with the able citizens of Pakistan.
Any other relief which this learned forum deems fit and proper may also kindly be granted in the interest of justice.
6. The connected Writ Petition No.22253 of 2021 has also been filed seeking directions to the concerned quarters to provide special facilities, recreational activities, special institutions, special libraries and other basic facilities which would help the Special Children immensely; and to formulate policies and mechanisms as well as enact laws for the said purpose.
II. PETITIONERS' SUBMISSIONS Submissions of Mr . Ali Rasheed Chughtai, Advocate.
7. Mr. Ali Rasheed Chughtai, Advocate has submitted that the Petitioner/Sana Khursheed is an Advocate, based in Lahore and has been quadriplegic due to a car accident which left her wheelchair bound since 2002 and due to this helplessness, she has to face obstacles in her access to the public, educational, and commercial places, as a quadriplegic wheelchair user. The learned counsel further states that the Petitioner has approached the Respondents Nos.3 and 5 to make arrangements for construction of ramps, lifts and toilets for Petitioner's alike disabled persons but no action in this regard has been taken by either of the said Respondents. Further submitted that the Petitioner earlier filed a writ Petition which was disposed of with directions in the light of the judgments of the august Supreme Court of Pakistan but no action has been taken so far. Learned counsel further submitted that the LDA established under Lahore Develo pment Act, 1975 (the "Act of 1975 "), which functions under Section 6 of the Act of 1975 along with its Rules and Regulations while the Defense Housing Authority (DHA) functions under Defense Housing Authority Ordinance, 1999 (the "Ordinance of 1999 "). Further submitted that it is the duty of the Respondents to construct ramps, lifts and toilets for disabled/wheelchair users and Regulations 5.2.3 of 2019, Lahore Development Authority building and Zoning Regulations (LDA Wheelchair Regulation) and Serial No.53 of the Defense Housing Authority Lahore Construction and Development Regulations of 2014 (the "DHA Regulations of 2014"). He further urged that inaction on part of the Respondents to comply with their own Laws and Regulations compelled the Petitioner to file this writ Petition. Further averred that due to non-provision of ramps and other facilities Petitioner's fundamental rights of life, dignity and freedom of movemen t have been infringed. Learned counsel relied on the judgment reported as Paulley v. First Group [PLC( 2017 SCMR 407)] = [(2017) UKSC 4] in which the scope and enforcement of the policy relating to rights of a disabled person has been discussed in detail.
Submissions of Mr . Muhammad Azhar Siddique, ASC.
8. Mr. Muhammad Azhar Siddique, ASC submitted that provision of special facilities, including special education, special libraries, recreational activities, special care, health facilities and other basic necessities of life is fundamental right of a special child, denial of which will offend the Constitutional mandate of Articles 3, 9, 14 and 25 of the Constitution. He explained that under Article 3 of the Constitution it is sole responsibility of the State to ensure elimination of all forms of exploitation and play a vital role for providing better lifestyle to special children as per provisions of Article 9 of the Constitution. He submitted that if the provisions pf Article 14 of the Constitution are read together with the provisions of Article 9 of the Constitution then the question will arise whether a special child/person can be said to have dignity of man if his right to life is below bare necessity line without proper food, clothing, shelter , education and health care. He maintained that under Article 25 of the Constitution it is right of the special children to be provided special education as per the standard being maintained in the country for (other) normal children.
9. The attention of the Court has also been drawn towards the constitutional values declared in Articles 35, 37 and 38 of the Constitution. Mr. Muhammad Azhar Siddique, ASC contended that protection of fundamental rights of special children comes within the mandate of Article 35 of the Constitution while Article 37 of the Constitution promotes social justice which covers the provisions of special facilities to special children in Pakistan. Moreover , Article 38 of the Constitution deals with the principle of policy and states in unequivocal terms that the State shall secure the well-being of the people by raising their standards of living after ensurin g equitable adjustment of rights between employers and employees and provide for all citizens, which also includes the special children/persons, within the available resources of the country , facilities for work and adequate livelihood. He asserted that there is no proper legislation for regulating welfare of special children in Pakistan and as the issue of public importance is involved, therefore, the Petitioner has knocked the door of this Court. In this regard , he has placed reliance on the judgments reported as Subay Khan v. Secretary , Labour , Government of the Punjab (PLD 2019 Lahore 253) and Sheikh Asim Farooq v. Federation of Pakistan and others (PLD 2019 Lahore 664) wherein this Court has held that public interest litigation is a powerful tool for individuals and groups for combating illegalities, injustice and social ills, which promoted and protected the larger public interest in case of violation of any fundamental right. Mr. Muhammad Azhar Siddique, ASC further stated that there are a number of pronouncements by the Hon'ble Supreme Court of Pakistan as well as this Court on the issue in hand and he specifically referred to the judgments reported as Malik Ubaidullah v. Government of Punjab and others (PLD 2020 SC 599), Hafiz Junaid Mahmood v. Government of Punjab and others (PLD 2017 Lahore 1), Muhammad Yousaf and another v.
Chairman. Federal Public Service Commission and 4 others (PLD 2017 Lahore 406) and Mian Muhammad Tanvir Ibrahim v. Parks and Horticulture Authority and others (2016 CLC 1508 ). Reference has also been made to the judgment passed by the Supreme Court of UK in the case of Paulley v. First Group [PLC( 2017 SCMR 407)] = [(2017) UKSC 4] in which the scope and enforcement of the policy relating to rights of a disabled person have been discussed in detail.
10. Mr. Abuzar Salman Khan Niazi, Advocate submitted that the Federal Government is also responsible in taking necessary steps for enforcement of rights of special children because under Article 146 of the Constitution it may, with the consent of the Government of a Province, confer powers and impose duties on a Province for making proper legislation in certain cases.
III. RESPONDENTS' SUBMISSIONS Submissions of Barrister Umair Khan Niazi, Additional A.G.
11. Barrister Umair Khan Niazi, Additional Advocate General, Punjab has placed on file a copy of the Accessibility Code of Pakistan, 2006 and conceded the fact that access to public places/facilities is a statutory right of the persons with disability , particularly the persons on wheelchairs, under the afore said legislation. He also drawn attention of the Court towards the provisions of Section 3 of the Special Citizens' Act, 2008 (the "Act of 2008 "), which clearly states that it is the responsibility of the Government to bound the concerned authorities, before construction of buildings in public or private sectors, particularly in Educationa l Institutions, Banks, Hospitals, Shopping Malls, Police Stations, Airports, Railway Stations, Bus Stops, Hotels and other public places to provide the facility of access of wheelchairs. In this regard, he has referred to the detailed order dated 14th of July, 2020, passed by the Hon'ble Supreme Court of Pakistan in the case of Dr. Shahnawaz Munami and others v. The Federal Government of Pakistan and others (2020 SCMR 1713 ), the relevant portion of Paragraph-10 of which is reproduced hereunder for ease of the matter:- "We are satisfied that the broad framework of guidelines provided by this Court from time to time to ensure implementation of laws and providing Fundamental Rights to persons with disabilities are being followed and implemented by the Federal as well as the Provincial Governments. Much more needs to be done. It is however encouraging to note that the process has been initiated and earnest efforts are being made to create an environment and framework where citizens with disabilities are given respect, protection and support and the requisite facilities are also made available to provide them opportunities of getting education of getting education, training and a conductive environment where they can be assimilated in the mainstream of the society . "
Submissions of Mr . Waseem Badar , Advocate for LDA
12. Mr. Waseem Badar , Advocate for Lahore Development Authority (the "LDA") stated that the Respondent/LDA vide Notification No.LDA/TP/829, dated 15.05.2021, constituted a Committee to provide Recommendations for implementation of meaningful access to Public facilities for persons with Disabilities and the Committee vide its minutes of the 2nd/2021 meeting recommended certain amendments in their Building and Zoning Regulations, 2019 (the "Regulations").
Submissions of Mr . Ali Awais, Advocate for the Respondents Nos.5 and 6
13. Mr. Ali Awais, Advocate for the Respondents Nos.5 and 6/DHA stated that they have already taken steps regarding provision of facilities to disabled persons at all Commercial Properties falling within the DHA. He made available copy of letter No.395/1A/Ph-XI, dated 16.07.2021, the relevant paragrap hs of which are reproduced as under:- "1. DHA do cater for provision of ramps in the cmrl bldgs. As per para _53 of DHA Construction and Development.
Regulations, 2014:- a. Every Commercial building having an area of 4500 square feet or above shall have at least one access/exit for the disabled persons, which shall be indicated with proper signage. The entrance shall be through a ramp (slope not more than 25 degrees with non-slip surface) together with stepped entry . If floor of the building is more than two steps high or the riser of step is equal to or more than 6 inches ramp, thus provided shall start in line with the lowest steps but inside the property line. b. Therefore a survey was carried out on 21 Mar 2018 to ensure implementation of this rule in constructed bldgs having area of 4500Sft or above. After complete survey BC Branch issued letters to owners of those buildings where ramps were constructed. In the result almost all of those bldgs. Have constructed ramps.
2. DHA has also carried out fol actions:- a. A letter has already been issued to all DHA registered Architects on 28 Jun 2021 for provision of Wheel Chair Ramps in proposed drawings of cmrl bldgs. Of 4 Marla and above. b. BC Branch is going to issue letter to under constructed/ constructed buildings for provision of portable ramps with entrance step. These Ramps can be placed with entrance when required."
IV. SUBMISSIONS OF AMICUS CURIAE
14. Keeping in view the sensitivity of the issue, it was directed that Kh. Issam Bin Haris, Advocate /Amicus Curiae, was directed to be included in the LDA Committee to assist the LDA authorities in implementing the recommendations given in the Dr. Parvez Hassan's Commission Report. He was further directed to make a deep research work with regard to the jurisprudence developed by other countries on the issue in hand.
15. Kh. Issam Bin Haris, Advocate/ Amicus Curiae by submitting his written submissions stated that accessibility is a fundamental right under "triangular construct of right to life, dignity and equality" as provided in Articles 9, 14 and 25 of the Constitution. He relied on the judgment of the Hon'ble Supreme Court of Pakistan cited as "Malik Ubaid Ullah v. Government of the Punjab and others" (PLD 2020 SC 599) and the judgments of this Court cited as "Hafiz Junaid Mahmood v. Government of the Punjab and others" (PLD 2017 Lahore 1) and "Muhammad Yousaf and another v. Chairman, Federal Public Service Commis sion and 4 others" (PLD 2017 Lahore 406). He further submitted that in other Provinces of country specific legislations dealing with ease of access and mobility of disabled persons, have already been made, which are as follows:-- i). The Balochistan Persons with Disabilities Act, 2017. ii). The Sindh Empowerment of Persons with Disabilities Act, 2018. iii). The ICT Rights of Persons with Disabilities Act, 2020.
Kh. Issam Bin Haris, Advocate/ Amicus Curiae further submitted that unless and until the similar legislation is not enacted by the Government of the Punjab and exercised through Social Welfare Department, Government of the Punjab, this issue will not permanently be resolved. He added that already under the direction of this Court certain Laws/Acts have been promulgated. He relied on the judgments of this Court cited as "Sheikh Asim Farooq v. Federation of Pakistan and others" (PLD 2019 Lahore 664), "Mian Ali Asghar v.
Government of the Punjab and others" (2020 CLC Lahore 157, 2021 MLD 370) [The Punjab High Security Zones (Establishment) Act, 2020], "M C. R. (Pvt) Ltd, Franchisee of Pizza Hut v. Multan Development Authority and others"( 2021 CLD 639),"Muhammad Ahmad Pans. ota and others v. Federation of Pakistan and others" ( PLD 2020 Lahore 229 ).
16. Arguments heard. Record perused.
V. COURT'S PROCEEDINGS
17. Both the writ petitions were admitted and notices were issued to the Respondents with the direction to file their report and parawise comments. On 20.05.2021, the Petitioner filed an Applicati on (C.M. No.02 of 2021) under Section 151 read with Order XIII and Rule 1 of C.P.C. for placing on record the report of the Child Care Commission (the "Commission"), dated 27th of October , 2018 (the "Report"), prepared by Dr. Parvez Hassan, Senior Advocate Supreme Court of Pakistan, after being appointed as the Chair of Commission, pursuant to a direction issued by the Hon'ble Mr. Justice Syed Mansoor Ali Shah, the then Chief Justice of this Court (now Hon'ble Judge of the august Supreme Court of Pakistan) in Writ Petition No.107273 of 2017, vide order dated 22nd of December , 2017.
18. Mr. Ali Rasheed Chughtai, Advocate for Petitioner submitted that the aforesaid Report be made part of the main case because extensive work has been done by all Members of the Commission, including Secretaries of relevant Government Departments, Mr. Saad Rasool, Advocate, Dr. Faisal Bari, Associate Professor , LUMS, Dr. Naeem Zafar , Head of Department, Child Rights Department, University of Lahore, Ms. Sarah Belal, Advocate, Syed Miqdad Mehdi, Advocate, Ms. Rukhsana Shah, former Federal Secretary , Ms. Muniba Mazari, Motivational Speaker and Pakistan's first national (Goodwill) Ambassador to UN Women, Professor Dr. Shazia Maqbool, Head and Consultant, Children's Hospital, Lahore, Ms. Sana Khurshid, Motivational Speaker , Dr. Amjad Saqib, Managing Director , Punjab Welfare Trust for the Disabled, Lahore, Ms. Huma Omar Mansoor and Dr. Eaisha Tareen, Joint Secretary , National Society for Mentally and Emotionally Handicapped Children, Lahore. He further submitted that after extensive meetings, visits to various institutions of special education as well as other related sectors and in depth research by the Members of the Commission chaired by Dr. Parvez Hassan, Senior Advocate Supreme Court of Pakistan, this Report has been finalized with certain recommendations. Therefore, a direction may be issued by this Court to the Respondents to file report and parawise comments in light of the said recommendations.
19. Perusal of Report shows that the Hon'ble Mr. Justice Syed Mansoor Ali Shah in the aforesaid writ petition had made hectic efforts to protect/safeguard rights of the Persons with Disabilities (the "PWDs") and on this issue he had also passed landmark judgments which are being followed throughout Pakistan. In this connection, reference was made to the cases reported as "Malik Ubaidullah v. Government of Punjab and others" (PLD 2020 SC 599), "Hafiz Junaid Mahmood v. Government of Punjab and others" (PLD 2017 Lahore 1) and "Muhammad Yousaf and another v. Chairman, Federal Public Service Commission and 4 others" (PLD 2017 Lahore 406).
However , it was observed with great concern that the recommendations made by the Commission in the Report with regard to provision of free environment after making buildings and public facilities accessible to the PWDs, have not so far been implemented. Under the rule of law, access to justice is provided to all citizens of this country and where a citizen cannot walk due to some disability , the Courts are there to remove the hindrances being faced by the PWDs, especially the persons on wheelchairs, because Tammy Duckworth, a US Senator and the first woman with a disability elected to Congress, said that "Don't look at me with pity. I earned this wheelchair . I own this wheelchair . I am proud of it and I am going to use it to get places a hell a lot faster than you could ever run."
20. The Report mentions the International Framework on rights of the PWDs, which includes the UN Convention on the Rights of the Child, 1990, Standard Rules on the Equalization of Opportunities for Persons with Disabilities, 1993, the UN Convention on the Rights of Persons with Disabilities, 2006; the relevant Articles of the Constitution and the legislation made by the legislators of this country on this issue, i.e. the special laws, including the Disabled Persons' (Employment and Rehabilitation) Ordinance, 1981 (the "Ordinance of 1981"), the National Policy for Special Education, 1999, the National Policy for Persons with Disabilities, 2002, the National Policy for Rehabilitation of the Disabled, 1986 and the Mental Health Ordinance, 2001 (the "Ordinance of 2001").
21. Moreover , the issue of accessibility of PWDs to public facilities has been discussed in detail by the UK Supreme Court in the case of Paulley v. First Group PLC (2017 SCMR 407) = [(2017) UKSC 4] and then by the Hon'ble Supreme Court of Pakistan in the judgment reported as Dr. Shahnawaz Munami and others v. The Federal Government of Pakistan and others (2020 SCMR 1713 ) wherein the fundamental rights of the PWDs were recognized and certain directions were also issued to the relevant governmental authorities/departments to progressively build proper ramps for PWDs and to ensure making transport accessible to them. Consequently , while relying on the judgments passed by this Court as well as the Hon'ble Supre me Court of Pakistan which are binding on the Respondents under Articles 189 and 201 of the Constitution, they were directed to file a comprehensive report and parawise comments and Application was disposed of.
22. On 26.05.2021, on the request of learned counsel for the Petitioner , the Secretary , Local Government of Punjab; Metropolitan Corporation Lahore through Chief Officer, Punjab; Chief Executive Officer, Walton Board and Chief Executive Of ficer, Cantt. Board, were allowed <to array as Respondents Nos.7 to 10, with red ink
23. On the said date, Mr. Ahmad Aziz Tarrar, Director General, LDA appeared in the Court along with Mr. Tariq Mehmood, Chief Town Planner , LDA and stated that pursuant to the directions issued by this Court on 20th of May, 2021 in C.M.No.2 of 2021,. a Committee for the implementation of meaningful access to public facilities for PWDs (the "LDA Committee ") has been immediately constituted by the LDA, vide notification dated 25th of May, 2021.
He explained that in the said Committee all the concerned officers of the LDA and some experts from the relevant fields have been included. The TORs of this Committee are as under:- i. Conduct thorough survey to assess implementation of existing LDA laws pertaining to access of persons with disabilities in the public spaces/ facilities; ii. Devise/formulate concrete strategies on how existing standards can be further implemented/enforced along with drafting codified reforms to further improve accessibility for persons facing all kinds of disabilities; iii. Finalize the scope/extent of the revised standards to formulate a report in line with the aforementioned purposes and' in accordance with any directives of the authority; and iv. Forward the report to the authority in accordance with Section 12 of the Lahore Development Authority Act, 1975 (the "Act") for review , assessment and implementation
24. The Director General, LDA further submitted that a number of meetings have been conducted thus far by the LDA Committee, where substantial work and instructions have been issued to the relevant quarters/persons for implementation of the recommendations made by Dr. Parvez Hassan, Sr. ASC/Chairman of the Child Care Commission (the "Commission") in report dated 27th of October , 2018 (mentioned above). Mr. Ahmad Aziz Tarrar, Director General, LDA informed the Court that various surveys have been conducted with regard to provision of meaningful access to public facilities for the persons with disabilities as per TOR (i) of the LDA Committee and mandatory notices have also been issued to the persons concerned under Clause 5.2.3 read with Clause 6.4.2 of the Lahore Development Authority Building and Zoning Regulations, 2019 (the "Regulations") to build ramps, toilets and lifts for persons with disabilities and where the ramps or toilets are not built with appropriate structure, necessary instructions have been issued to the concerned persons under the Regulations. Director General, LDA assured the Court that more surveys would be conducted by the LDA in order to finalize the scope/extent of the revised standards to formulate a report in line with the existing LDA laws relating to access of persons with disabilities in public places/facilities and the recommendations made by the Com mission in Dr. Parvez Hassan's Commission Report would also be strictly adhered to. He also filed a detailed report in the Court along with anuexures, which also includes Map of LDA's jurisdiction and list of the approved building plans with colour pictures, to show all the steps taken by the LDA, which was made part of the record.
25. On 23.09.2021, Mr. Ali Awais, Advocate for the Respondent/ DHA submitted minutes of meeting bearing No.440/K/LA-II/DHA dated 17.09.2021, and stated that pursuant to order dated 07..09.2021, the Petitioner/Ms. Sana Khursheed with her counsel visited the legal Branch of Defense Housing Authority (DHA) on 17.09.2021 and participated in the meeting chaired by the Secretary , DHA. He added that during the said meeting they were explained in detail the procedures/measures for providing of subject facilities to the disabled persons at commercial buildings. In the said meeting following points were mutually decided to be implemented in addition to the steps already taken by the DHA. a. Portable ramps for all existing and prospective structures of 4 marlas to facilitate person with disabilities [with entrance and exits on different sides, if feasible]; b. Ramps for all existing and prospective structures of 8 marlas or more to facilitate persons with disabilities [with entrance and exits on different sides, if feasible]; c. Parking Spots for Persons with disabilities on all 'Central Parking Lots; d. Appropriate Marking sign for parking spots and ramps reserved for disabled person; e. Directions to relevant personnel for accommodating wheelchair user's right to access (i.e. easy entry and exit) at all other Parking Lots/Units associated with commercial structures; and f. Fine imposed for any violation of Sr . No. a-4d.
26. Muhammad Hassan Iqbal, Secretary Social Welfare and Bait-ul-Maal Department, Government of the Punjab, Lahore (the "Secretary Social Welfare") appeared and submitted his detail report by affirming the suggestions of Kh. Issam Bin Haris, Advocate/Amicus Curiae regarding enactment of specific legislation like other Provinces of country . He stated that they have already been working on the issue for last one year and prepared draft bill of "the Punjab Empowerment of Persons with Disabilities Act, 2021" (the "Draft Act"), which has been sent to the Standing Committee of Cabinet on 10.08.2021 for further actions as per law .
27. Learned Law Officer submitted that under Punjab Government Rules of Business, 2011 (the "Rules of 2011") the Secretary Social Welfare and Bait-ul-Maal Department, Government of the Punjab, Lahore has the mandate to administer the law on the issue in hand. He further submitted that already under the direction of this Court certain Laws/Acts have been promulgated for social justice by constituting Committees. He relied on the judgments of this Court cited as "Sheikh Asim Farooq v. Federation of Pakistan and others" (PLD 2019 Lahore 664), "Mian Ali Asghar v. Government of the Punjab and others" (2020 CLC Lahore 157, 2021 MLD 370), "M. C.R. (Pvt.) Ltd., Franchisee of Pizza Hut v. Multan Development Authority and others" (2021 CLD 639), "Muhammad Ahmad Pansota and others v . Federation of Pakistan and others" ( PLD 2020 Lahore 229 ).
VI. ENECTMENT OF LA WS UNDER GUIDANCE OF THIS COUR T
28. It is also pertinent to mention here that the Government has already enacted following Legislations/Laws under the guidance/direction of this Court by constituting Committees: Sr.
No.Law/Legislation Cases 1 The Punjab Domestic W orkers Act, 2019Subay Khan v . Sohail Shahzad Secretary Labour Govt of Punjab, etc. (PLD 2019 Lahore 253)
2 Punjab Food Authority (Disposal of Excess Food), Regulation, 2019Barrister Muhammad Ahmed Pansota v. Federation of Pakistan, etc. (PLD 2020 Lahore 229 )
3 Commercial Courts Ordinance, 2021M. C.R. (Pvt) Ltd, Franchisee of Pizza Hut v . Multan Development Authority , etc. (2021 CLD 639 )
4 The Punjab High Security Zones (Establishment) Act, 2020Mian Ali Asghar v . Government of the Punjab, etc. (2020 CLC Lahore 157 = 2021 MLD 370 )
5 Draft Bill of the Punjab Empowerment of Persons with Disabilities Act, 2021In W.P. No.30364 of 2021, titled as "Mst. Sana Khursheed v . Government of the Punjab, etc."
6 Urban Forest Policy Sheikh Asim Farooq v . Federation of Pakistan, etc. (PLD 2019 Lahore 664)
VI. DETERMINA TION BY THE COURT
29. State is not a natural institution rather a product of ages and an outcome of common and collective wisdom of human being's experiences coupled with the evolutionary process motivated by the ultimate strive to survive and prosper . Every person is though born free but is under certain limitations and obligations, imposed by the State through laws and regulations and also by the customs practiced and prevailed in the relevant community/society .
However , the purpose behind such constraints by both and most importantly of laws and regulations made and enforced by the State is solely and wholly to achieve common good for all. The State being an institution is established, approved and adopted by the human kind initially and primarily with the main objective of protecting and preserving individual's rights to life, liberty and property as a single person is deemed weak and vulnerable whereas the collective union of people is strong and capable of protecting rights of each individual against transgression thereof by another individual, group of individuals or even by the State through its institutions itself.
The English philosopher and father of political philosophy Thomas Hobbes. John Locke and Jean-Jacques Rousseau, chief proponents of the theory of Social Contract also proposed that before establishment of State and the Government there was a state of nature where no individual ruled over another and everyone was free ultimately resulting into quarrels, confrontations and violations of natural and moral laws and no one being there to put a stop on that and to enforce those codes against each other thus prompted all the human beings to enter into a social contract wherein each one agreed to give up his individual rights to the collective and general will. The submission of all his rights by an individual before the collective will, the State, was on the one and only condition that the State will protect all those rights for him/her . Hence, under the Constitution, Part-II, Chapters 1 and 2, the fundamental rights are provided to the citizens of Pakistan.
30. When a State is making laws under the Constitution and taking actions in furtherance of that to protect the rights and dignity of PWDs, it is actually fulfilling its promise towards that individual to whom it has made a pledge through the Social Contract and when it remained fail to protect these rights in the way that it should, then it amounts to defiance and failure from the pledge. While examining Articles, 3, 9, 14, 25 and 35 of the Constitution, the State should embrace its citizens like a mother; guardian and protector who do not apply unify standards to provide children similar kind of things that she gave to one child but diversify the provisions with respect to particular requirements of each child. Equality does not only mean equal treatment with reference to the provision of means but most importantly it is to ensure that if the means so provided have been equally sufficient and instrumental to meet the same ends 'or not. However , Article 38 of the Constitution deals with promotion of social and economic well-being of the people that starts with "the State shall secure the well-being of the people irrespective of sex, caste, creed or race, by raising their standard of living" . While Article 38(d) of the Constitution deals with provision of basic necessities of life such as medical relief. A ladder might have been helpful for a person to climb up the building but giving the same ladder to a person with impaired ability to walk to reach at the top of very building does not amount equal treatment but an approach, which is neither sanguine nor justified rather depicts a modus operandi, which is improper and indifferent at the same time. The State must therefore, distinguish and address the abilities and inabilities of citizens to obliterate the challenges which hampers their meaningful exercise of fundamental rights as provided and guaranteed to them by the Constitution.
31. It is quite relevant to note here that the preamble of the UN Convention on the Rights of Persons with Disabilities., 2008 which is a document of international significance to which Pakis tan is not only a signatory but it has also rectified the same provides the following goals to be secured by Nations of world for the persons with disabilities:-
(a) Reaffirming the universality , indivisibility , interdependence and interrelatedness of all human rights and fundamental freedoms and the need for persons with disabilities to be guaranteed their full enjoyment without discrimination,
(b) Recognizing that disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others,
(c) Recognizing the importance of the principles and policy guidelines contained in the World Programme of Action concerning Disabled Persons and in the Standard Rules on the Equalization of Opportunities for Persons with Disabilities in influencing the promotion, formulation and evaluation of the policies, plans, programmes and actions at the national, regional and international levels to further equalize opportunities for persons with disabilities,
(d) Recognizing also that discrimination against any person on the basis of disability is a violation of the inherent dignity and worth of the human person,
(e) Recognizing further the diversity of persons with disabilities, 0 Recognizing the need to promote and protect the human rights of all persons with disabilities, including those who require more intensive support,
(g) Concerned that, despite these various instruments and undertakings, persons with disabilities continue to face barriers in their participation as equal members of society and violations of their human rights in all parts of the world,
(h) Recognizing the importance of international cooperation for improving the living conditions of persons with disabilities in every country , particularly in developing countries,
(i) Recognizing the valued existing and potential contributions made by persons with disabilities to the overall well- being and diversity of their communities, and that the promotion of the full enjoyment by persons with disabilities of their human rights and fundamental freedoms and of full participation by persons with disabilities will result in their enhanced sense of belonging and in significant advances in the human, social and economic development of society and the eradication of poverty , Similarly the Convention also recognized the accessibility right of PWDs in the following manner:- Article 9 - Accessibility
1. To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportatio n, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas.
These measures, which shall include the identification and elimination of obstacles and barriers to accessibility , With respect to right of PWDs regarding access to Justice Article 13 of the Convention provides as follows:- Article 13 Access to justice 1, States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of proce dural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages, 2, In order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff.
32. The above referred portion of the UN Convention, which is a document of international character under the umbrella of United Nations quite eloquently , highlights the signification and import of the subject and realization on the part of the State parties that they owe an obligation of fulfilling promises towar ds the PWDs and they identified the areas in which they are still lagging behind and urged each one of them while binding itself first, to make that done through initiatives in the legislative, executive and judicial procedure of the country . It is quite commendable that legislative initiatives have been taken in the form of The Balochistan Persons with Disabilities Act, 2017, The Sindh Empowerment of Persons with Disabilities Act, 2018 and The ICT Rights of Persons with Disabilities Act, 2020 , however , there is still need to have one in the Province of Punjab, which is undoubtedly most populated province of the Country .
33. As this case was also of public importance, therefore, in order to move forward, it was directed that the Secretary Social Welfare and Bait-ul-Maal Department, Government of the Punjab, Lahore, shall constitute a Committee under his own supervision to hear all the stakeholders including following members:
1. Mr . Ali Arshad Chughtai, Advocate;
2. Ms. Sana Khursheed (Petitioner);
3. Mr . Mohammad Azhar Siddique, ASC;
4. Barrister Muhammad Umair Khan Niazi; Additional Advocate-General.
5. Ms. Sadia Malik, Assistant Attorney General for Pakistan.
6. Sahibzada Muzaffar Ali Khan, Advocate
7. Mr . Ali Awais, ASC;
8. Barrister Haris Azmat, ASC;
9. Barrister Mary= Hayat, Advocate,
10. Ms. Gulzar Butt, Advocate The Making of the Law for the PWDs
34. On 15.10.2021, Syed Yawar Abbas Bukhari, Minister for Social Welfare and Bait-ul-Maal and Secretary Social Welfare, after appearing, submitted progress report and apprised the Court that pursuant to the order dated 04.10.2021, the meetings of Committee were held on 05.10.2021 and 11.10.2021 and the suggestions of the Committee were duly considered, incorporated and added new Chapter i.e. Part 2(II) dealing with Rights and Entitlements of Persons with Disabilities in the original Draft Act:- o No Discrimination; o Right to privacy; o Women, Children and elderly people with disabilities; o Accessibility and mobility; o Protection from abusive, violent and intolerant behavior; o Equity in education; o Right to live independently in community; o Right to home and family; o Freedom of expression and right to information; o Right of political participation; o Access to justice; o Right to inherit and own property; o Participation in sports, cultural and recreational activities; o Protection of Persons with Disabilities in risk and disaster situations and rehabilitation; o Right to certification;
35. To finalize the legislation, Syed Yawar Abbas Bukhari, Minister for Social Welfare and Bait-ul-Maal, Lahore was directed to hold a workshop and convene a meeting on the Draft Act by inviting other Stakeholders and Secretaries of all the relevant Departments i.e. (1) Secretary , Specialized Healthcare Department; (2) Secretary Primary and Secondary Healthcare Department; (3) Secretary , Housing and Physical Planning Department; (4) Secretary Transport; (5) Secretary , Home Department; (6) Secretary , Punjab Emergency Service (Rescue 1122), (7)
Secretary , Higher Education Departme nt, (8) Secretary Local Government and Community Development, Government of the Punjab, Lahore etc. and take inputs/suggestion/participations
36. On 02.11.2021, Secretary Social Welfare apprised the Court that pursuant to the order dated 15.10.2021, a workshop regarding finalization of Draft Act was convened, wherein the stakeholders/Special Persons with disabilities have massively and actively participated and gave their valuable input/suggestions on the Draft Act.
However , sought time for finalization of the Draft Act.
37. This Court directed the Secretary Social Welfare to seek guidance from Ms. Rukhsana Shah, retired Federal Secretary; who set up the Autism Welfare Trust in Lahore, to create awareness about Autism, ADHD and Learning Disabilities in Pakistan, and to train parents and teachers of special and mainstream schools in the management of these disabilities; is a member of the Child Care Commission set up, by the Chief Justice of Lahore High Court and is on various government and civil society committees relating to Inclusive Education and Rights of Persons with Disabilities. She was also directed to appear before this Court on the said date in order to give her valuable input/suggestion in the issue in hand.
38. On 09.11.2021, Secretary Social Welfare submitted latest version of Draft Act and stated that another meeting was convened, wherein the stakeholders/Special Persons with disabilities have massively and actively participated and gave their valuable input/suggestions on the Draft Act. However , sought some more time for finalization of the Draft Act.
39. Ms. Rukhsana Shah, retired Federal Secretary appeared before this Court and submitted following suggestions on the Draft Act:
1. Article 8(2) is contradictory as it says "if otherwise qualified for admission". This is against the CRPD because no educational institution can refuse admission to PWDs on any grounds whatsoever , as education is a fundamental right.
2. Article 8(5): Why should PWDs be 3% of more of total enrolled tudents? According to the WHO, disability in Pakistan is from 3% to 17% of the population. The lower bar should be raised o at least 10%. Only when children with disabilities are admitted in this number in educational institutions will they be able to achieve their potential.
3. Articled 8(6 e): The word "including but no limited to" should be added before "extra time for completion etc."
4. Article 30 should provide a one-step registration process at the District level, rather than separate offices dealing with Assessment, Certifications and Registration. These different offices/Boards take too long a time and are slow .
5. Article 32 says that an Establishment should pay to the Fund a sum equal to the wages it would have paid to the PWD employee. This is too little, and only if the fine is at least doubled, will establishment actually employ PWDs.
40. Secretary Social Welfare was directed to hold meeting with Ms. Rukhsana Shah and obtain her valuable input/suggestions on the Draft Act, finaliz e the Draft Act within three days and then send it to the Law Department and Cabinet for its early approval.
41. Pursuant to the previous orders, Secretary Social Welfare has submitted up-to-date version of Draft and stated that the same has been sent to the Cabinet for its approval after various consultative meetings with the stakeholders, Ms: Rukhsana Shah, retired Federal Secretary and other related Departments, actively participated and gave their valuable input/suggestions on the Draft Act.
42. It is imperative to note here that this is first kind of Law/ Legislation made on the direction of this Court for the empowerment of persons having disabilities, with the assistance of experts including, stakeholders, relevant Departments/Bodies, Mr. Ali Rasheed Chughtai, Advocate (learned counsel for the Petitioner) and Kh. Issam Bin Haris, Advocate/ Amicus Curiae , after consultative workshops and public meetings. Their efforts are highly appreciated.
43. Today , Secretary Social Welfare has submitted report by stating that after detailed meetings with Law and Parliamentary Affairs Department, Government of the Punjab, Lahore almost all identified discrepancies were rectified and on 02.12.2021 after re-arti culating several clauses cleared vetted Draft Act. He added that while reshaping the Sections and clauses of the Draft Act, due diligence has been taken to keep the objectives, purpose and proposed arrangements of the Act intact keeping in view the rights, welfare and rehabilitation of the PWDs. He submitted that after getting the vetted Draft of "the Punjab Empowerment of Persons with Different Abilities Act, 2021 " has been submitted to the Standing Committee of the Cabinet on Legislative Business for consideration and approval.
44. It is also worth mentioning that the aforesaid efforts make a principle that the citizens/persons, who cannot walk to justice, the justice can walk to them because the foundation of rule of law is the access to justice and the dispensation of justice as provided under Articles 4 and 37(d) of the Constitution. This Court succeeded in a substantive way to conclude the case by way of incorporating all the Constitutional Rights for the persons having disabilities in the shape of "the Punjab Empowerment of Persons with Different Abilities Act, 2021", which are similar with the fundamental rights provided in the Constitution. This Court has followed the observation of the Hon'ble Supreme Court of Pakistan in the case of "Dr. Shahnawaz Munami supra wherein Mr. Justice Ijaz ul Ahsan, Judge of the Supreme Court has held that "We are satisfied that the broad framework of guidelines provided by this Court from time to time to ensure implementation of laws and providing Fundamental Rights to persons with disabilities are being followed and implemented by the Federal as well as Provincial Governments. Much more needs to be done ".
45. It is not out of place to emphasize that the preamble of the Constitution which has propounded and highlighted the purpose and objects of the Constitution, the will of the People, and shed light on its salient features envisioned a State and the system of government where principles of equality and social- justice shall be fully observed as enunciated by Islam. It also pledged for a State wherein fundamental rights shall be guaranteed including equality of status, equality of opportunity and equality before law. The Constitution does not classify or makes any distinction on the basis of ability of person or class to which it belongs but it vouched for the protection of the fundamental rights to every mother's child because there is no child from a lesser God and all are equivalent, creation of the same Creator and citizens of equal status, whether a PWD or any other person. Pertinently , the Article 4 of the Constitution clearly provides inalienable right of every citizen to be treated as "per law and no action detrimental to the life, liberty , body shall be taken except as per law and this Article has to be read With Articles 9 and 25 of the Constitution. The Article 25 of the Constitution reaffirmed this pledge with an unequivocal and definite declaration that all citizens are equal before law and is entitled to equal protection of law. However , it further delineates that the state shall even then be permitted to make special provision for mother and children. This exclusivity of the subject with respect to the women and children further emphasized that equality does not denote equal in accordance with all but equal in accordance with the subject and most importantly as per the object, which is to be achieved. However , it is observe d that women and children, in this masculine society of ours, certainly requires special attention with respect to realization of their fundamental rights because of certain factors illiteracy , patriarchal character of the society etc. and therefore Article 25 does not only permit but in essence, it commands and requires that the State should undertake special legislative, administrative and judicial initiatives to ensure protection of the rights of women and children. Since Article 35 of the Constitution deals with protection of marriage, family , the mother and the child, therefore, similar is the case with PWDs . Like women and children, they require special attention of the State and its institutions in order to claim equal protection of law, which is their fundamental right under Article 25. More over, Article 26 of the Constitution also dictates that there shall be no discrimination against any citizen on the ground of race, religion, caste, sex and place of residence in respect of access to places of public entertainment or resort and PWDs are well within their fundamental right to claim protection of this Article and it is the duty of Government, government agencies, regulatory bodies and other establishments offering public to access for the purposes of entertainment, shoppin g, eating, recreation etc. to fulfill this solemn pledge by provision of adequate means to access those places by the PWDs because under Article 14 of the Constitution, they have an inviolable right to dignity and a dignified access to the public places is their inviolable fundamental right and an provis ion that of is a fundamental duty of the. State and the relevant authorities accordingly . Moreover , under Article 37(f) of the Constitution it is the duty of State to enable PWDs, like all other citizens, through education, industrial development and all other methods to participate fully in all forms of national activities, including employment in the service of Pakistan. The Hon'ble Supr eme Court of Pakistan in "Dr. Shahnawaz Munami supra not only ensured the implementation of fundamental rights but also given directions which reads as under: ii) The provisions of laws relating to rehabilitation and employment of the disabled persons be followed and implemented in letter and spirit; iii) The Federal and Provincial Governments are directed to ensure establishment of grievance redressal mechanisms to redress grie-vances of disabled persons and awareness campaigns regarding availability of these grievance redressal mechanism be run; It is therefore held that State being provider , the Government being executor and the Judicature being custodian of the fundamental H rights cannot absolve from their responsibilities towards the PWDs. Hence, draft law made by the Government of Punjab is in line with the II judgment of Hon'ble Supreme Court of Pakistan, mentioned supra.
46. In view of the constitutional provisions mentioned above and by following the judgment of the HonThle Supreme Court of Pakistan in the case of "Dr. Shahnawaz Munami supra and the judgments of High Court cited in "Malik Ubaidullah v. Government of Punjab and others" (PLD 2020 SC 599), Hafiz Junaid Mahmood v. Government of Punjab and others" (PLD 2017 Lahore 1) and Muhammad Yousaf and another v.
Chairman, Federal Public Service Commission and 4 others" (PLD 2017 Lahore 406) this Court allows both the writ Petitions, and directs the Government Departments, performing their functions within jurisdiction of this Court, in connection with the affairs of Province of Punjab, and other local authorities under the respective laws, that
(1) The Punjab Empowerment of Persons with Different Abilities Act, 2021, once enacted and notified by the Assembly , shall be implemented in letter and spirit in order to protect the fundamental rights of PWDs;
(2) All the Respondents shall take steps to protect, manage and provide all facilities to the PWDs in accordance with the Act; and
(3) The Departments shall inform the public and create awareness regarding the rights of the PWDs through the media and other means.
(4) The directions issued by the Hon'ble Supreme Court of Pakistan in the case of "Dr. Shahnawaz Munami supra in paragraph No.1 1(2) and (3) shall be strictly followed.
(5) The Punjab Government is also directed to revise and amend such laws where clear direction and command is not entrusted to any authority as under the Punjab Rules of Business, the Secre tary Social Welfare and Bait ul Maal Department has clear mandate to make laws and policies, under Schedule-II of the Punjab Government Rules of Business, 201 1.
47. Before parting with this judgment, this Court highly commends and appreciates the brave and bold step taken by the Petitioner Ms. Sana Khursheed, Advocate and the inputs given by her along with other activists, who participated in the Commission made by this Court, are parallel to what Tammy Duckworth, US Senator quoted (mention above).
48. I also appreciate the efforts of all Government Departments whose representatives appeared before this Court from time to time and complied with orders under doctrine of continuing mandamus and prepare the draft of "the Punjab Empowerment of Persons with Different Abilities Act, 2021". This excellent draft of the Act would not have been prepared without guidance received by this Court and all the parties on the excellent report of Dr. Parvez Hassan, the Chairman of the Commissio n which is highly commendable. The Court especially appreciates the efforts of Kh. Issam Bin Haris and Mr. Ali Rasheed Chughtai who prepared the basic Act with the Government under the guidance of Dr. Parvez Hassan in order to achieve the rights of PWDs for their betterment and to create first of this kind law in Pakistan different than the one mentioned of other Provinces. This exercise was done to achieve the public perception of the institutions in Pakistan, for gaining the public confidence by complying the directions of Hon'ble Supreme Court of Pakistan given in paragraph No.11 (iii) in the case of "Dr. Shahnawaz Munami supra. The litigant gains confidence of the institutions on the satisfaction of grievances by all the institutions of the Country and while hearing this case, the Court has endeavored to gain confidence of public at large especially the people who could not walk ro the Court for justice but the justice walks towards them by gaining their confidence. It is again affirmed that the Hon'ble Supreme Court of Pakistan in "Dr. Shahnawaz Munami supra has clearly directed the Federal and Provincial Governments to ensure establishment of grievance redressal mechanisms to redress grievance of disable persons and launch awareness campaigns regarding availability of these grievance redressal mechanism. I would also appreciate efforts made by Dr. Parvez Hassan, the Chairman of the Commission and the members of the Committee / Sub-Committee, which prepared the Drafted Act; especially Syed Yawar Abbas Bukhari, Provincial Minister for Bait-ul-Maal and Social Welfare and Muhammad Hassan Iqbal, Secretary Social Welfare and Bait-ul-Maal Department, Government of the Punjab, Lahore. The efforts of learned Law Officers, Barrister Umair Khan Niazi, Additional Advocate General, Ms. Sadia Malik, Assistant Attorney General, Dr. Rizwan Naseer , Secretary Punjab Emergency Service (who agreed to rescue and provide services of 1122 to PWDs), Mr. S.M. Imran, the then Vice Chairman LDA and its legal, Advisor Sahibzada Muzaf far Ali Khan, ASC, Mr. Ali Awais, Advocate for DHA, Barrister Maryam Hayat, Advocate and Ms. Rukhsana Shah, are also highly commendable and appreciated by this Court.