SALAHUDDIN PANHWAR, J.---Heard learned counsel for respective parties as well the Secretary, Culture, Tourism, Antiquities and Archives Department.
2. On last date of hearing viz. 02.11.2021 following order was passed :- "Focal person of Culture, Tourism, Antiquities and Archives Department, contends that they are taking measures in view of judgment passed by this court with regard to examination of heritage properties notified under the Heritage Act 1994 and will submit complete lists along with written statement on next date.
Needless to mention that Culture, Tourism, Antiquities and Archives Department, shall classify properties in two groups, one notified under the Heritage Act 1994 and another notified under the Ancient Monument Preservation Act 1904. Needless to mention that in judgment passed by divisional bench of this court properties notified under the Act of 1994 whereas Culture, Tourism, Antiquities and Archives Department, is not entitled to examine the architectural value of the properties/ places as notified under the Act of 1904 therefore both lists shall be filed separately."
3. Pursuant to that, Secretary, Culture, Tourism, Antiquities and Archives Department, present submits list of protected sites/monuments under the Antiquities Act 1975 as under:-
4. Can one take an exception to the historical value. (s) of all such 'protected sites/monuments', declared/notified under the Ancient Monument Preservation Act 1904 and subsequently notified under the Antiquities Act 1975? The answer to this can be nothing but a big 'NO'. The Culture, Tourism, Antiquities and Archives Department was/is established with the sole purpose to ensure protection/preservation of these properties with their "antiquity". It shall never be sufficient to give such properties in the relevant list or notification but requires much more including, but not limited to:-- a) continuous control and management of such properties; b) managing these properties in such manner and fashion that none trespass into such properties; c) assuring that none cause any harm or damage to 'antiquity' thereof in any manner including removing / damaging anything from such properties; These are all to be done by the department so that value of such declared/ notified properties are assured to be as they must be. These properties, needless to remind, have their independent value, as is evident from its meaning, provided by Section 2 (c) of the Act as:- "(i) any ancient product of human activity, movable or immovable, illustrative of art, architecture, craft, custom literature morals, politics, religion, warfare or science or of any aspect of civilization or culture"
Let the generation or world know the civilization or culture of past generation is responsibility of all those wherever such properties are found which one can't unless the same are protected / preserved, as insisted under the Act.
5. Accordingly, the department shall also submit the detail report as to how and what steps are being taken so as to ensure preserving 'antiquity value' thereof. The report shall also include earlier and present picture (s) of these properties so as to see how these properties are being protected / preserved. Besides report shall also include pictures from google.
6. During hearing of listed applications, learned counsel for plaintiff contends that they have been condemned unheard while declaring their property viz. Saddar Mansion as heritage though direction were issued by the divisional bench of this court whereby departmental committee was required to provide opportunity of hearing. A full and proper hearing of those, having interests in such like (private) properties, was/is necessary and same cannot be taken while taking any decision effecting the status of such properties. When confronted, the Secretary present along with A.A.G. contends that this issue can be resolved and they will allow proper opportunity of hearing to the plaintiff.
7. At this juncture Secretary further contends that they are going to recruit Tour guides having requisite qualifications enabling the local as well as foreign tourists to provide them basic knowledge and cultural history and historical knowledge in scientific manner by the use of modern gadgets. Accordingly department shall ensure said appointments, preferably within six months.
8. Before talking about detailing basic knowledge and cultural history and historical knowledge, it is necessary to ensure protection/ preservation of antiquity value thereof which the department shall have to acknowledge and admit. The damage/harm to such properties, I am to insist, can result in destroying the 'antiquity' of such properties thereby leaving nothing but a 'building' or a place, having no value at all. Here, it is also worth adding that the Act itself puts the department under heavy duty thereby:- Section-19. Prohibition of destruction, damage etc of protected antiquities.---(1) No person shall except for earring out the purposes of this Act, destroy, break, damage, alter, injure, deface or mutilate or scribble, write or engrave any inscription or sign on any antiquity or take manure from any protected antiquity."
However, it is regretted to admit that what normally is witnessed is otherwise. Thus, department is required to own its responsibility on war-basis thereby assuring that there does not come any further loss/damage or defacing to such protected properties.
9. This is what the Department has to ensure which I hope shall be ensured in future. Further he contends that there is no concept of endowment fund to preserve the properties under the Antiquities Act and those are public properties having ancient history.
10. Under these circumstances, Secretary is also agreed that they will place summary with regard to creation of endowment fund keeping a room for public at large to join being stake holders while become member of the fund, to reserve/ preserve ancient properties as mentioned in above referred properties as notified under the Antiquities Act 1975.
11. Needless to mention that properties under Ancient Monument Preservation Act 1904, Antiquities Act 1975 are not owned by any private person. The matter of ancient properties cannot be equated as private properties under the Heritage Act 1994 but that of antiquities therefore judicial propriety demands serious attention on above reflected properties hence District and Sessions Judges all over Sindh shall depute Magistrate of concerned jurisdiction who shall visit the sites as referred above. They would be competent to call any respective authority to restore and preserve the dignity as well antiquity value of ancient property as referred above within their territorial jurisdiction. Besides, Deputy Commissioners shall also visit ancient properties in their respective areas on quarterly basis and ensue that same remain along with Antiquities Department and no damage/loss is caused to such properties. Secretary shall submit detail report regarding creation of endowment fund and restoration of referred properties in their original form. Needless to mention that Mohatta Palace (ancient monument) matter is sub-judice in another proceeding therefore this order will not prejudice those proceedings.
12. With regard to subject matter property defendant No.2 shall hear the plaintiff and pass appropriate order in accordance with law within three months.
To come up after three months. Office shall fix this matter before same bench as it is a part heard matter. Learned MIT-II shall ensure compliance of this order.