Ch. Abdul Aziz, J. Since all the afore-mentioned constitutional petitions are moved in similar background and the prayers made therein are of alike nature, hence are being disposed of with one common judgment.
2. A heart wrenching incident which prompted the petitioners to approach this Court occurred in Murree on 07.01.2022 during which 22-tourists got stuck in a blizzard and lost their lives after remaining stranded in their vehicles for whole night. The petitioners, who are residents of Murree, also agitated the insouciant attitude of the public functionaries hailing from different Government Departments which led to the unfortunate incident of 07.01.2022 and besides that also highlighted the lack of interest of various Government Departments which gradually but vividly is making Murree a heaven on earth, into a place vulnerable to climatic disaster. Through these petitions, more or less, issuance of following directions of public interest is sought:-
(i) direct the respondents to fix the liability of mal-governance and specific department and persons responsible for the painful incident and death of 22 innocent citizens due to grave negligence.
(ii) the ban for travelling to Murree be declared illegal, unlawful and without authority and against the Constitution.
(iii) direct the respondents to improve their infrastructure and improve the efficiency by active coordination and facilitation to the public-at-large and local residents of Tehsil Murree.
(iv) direct the respondents to take urgent and quick actions in up-gradation of affairs pertaining to Punjab Highway Department, WAPDA, Forest and Tourism Departments etc.
(v) the exemplary compensation be awarded to the families of the deceased persons in painful incident of at least five million per casualty.
3. During arguments, indifferent attitude of TMA Murree, Punjab Forest Department, Punjab Wildlife Department, Environmental Protection Agency, PDMA, National Highway Authority, National Motorway Police, Pakistan Metrological Department, Punjab Tourism Department, Rescue-1122 Department and Traffic Police was highlighted through which on one hand the top most tourists' resort Murree is canvassed as losing its ecological attraction and on other hand the lives of its residents are described to have become miserable. The petitioners, who claim to have ancestral ties with the land of Murree also vociferously pleaded that in the wake of tragic incident of 07.01.2022 the residents of the region were trolled on electronic, print and social media through self-knitted stories having no scintilla of reality.
4. In pursuance of the grievances voiced in the above-mentioned petitions and the submissions made in support thereof, the comments were requisitioned from various Government Departments besides summoning different officials, who were heard at length so as to provide them opportunity of placing on record their respective stance.
The dismissal of all the afore-mentioned petitions was urged on the ground that incident of 07.01.2022 was a natural calamity, beyond the reach of Government Departments to curtail and since the petitioners, individually, have not suffered any loss, thus are neither aggrieved nor have locus standi to approach this Court. The acceptance of these petitions was opposed also on the premise that on the tragic night of 07.01.2022, all the functionaries of the concerned Departments remained at their toes in rescuing the stranded citizens and provided them every possible help.
5. Since the dismissal of these petitions was urged on account of their non maintainability due to existence of alternate remedy and absence of locus standi of petitioners as aggrieved persons, hence these aspects are meticulously examined. The petitions in hand, from their very genesis, are in the nature of public interest litigation, more commonly known as pro bono publico. The concept of public interest litigation, as it evolved over the years, provides a right to seek redressal of public grievance directly through constitutional courts without having recourse to lengthy and tedious traditional litigation. The powers of court to address the issues raised through public interest litigation are not unbridled, rather are subject to certain restrictions and limitations. The cases of public interest litigation are entertained by the High Courts within the framework of Article 199 of Islamic Republic of Pakistan, 1973 (hereinafter referred to as "the Constitution"). Such writ can only be issued in favour of a litigant if he successfully demonstrates firstly that there is no other adequate remedy and secondly that he is an aggrieved person. It will not be out of context to mention here that in order to oust a litigant from the court to seek remedy under Article 199 of the Constitution, the respondents must satisfy that the alternate remedy to seek justice is not only effective but expeditious as well. Likewise, to hold a person disentitled from seeking relief under Article 199 of the Constitution, the alternate remedy must be convenient, beneficial and effective. If the alternate remedy, upon evaluation, is found to be less effective, time consuming and calls for invoking the jurisdiction of multiple courts/forums, then the High Courts are all competent to exercise jurisdiction within the framework of Article 199 of the Constitution. The constitutional jurisdiction of High Court can be set in motion, if the agitated grievance gives rise to an exceptional case and is directed against indifferent attitude of public functionaries towards fulfillment of their statutory obligations, likely to affect public-at-large. In the case reported as Habib Metropolitan Bank Ltd. v. Administrator, Karachi Municipal Corporation, Karachi and 3 others (PLD 2014 Sindh 20), the dismissal of a constitutional petition moved in public interest was urged but a learned Division Bench of Sindh High Court turned down such submission with the following observation:- "In the first instance, adverting to legal objection raised by the learned counsel for KMC as to the maintainability of the constitutional petition on the ground that the petitioner has not availed alternate remedy available under the relevant rules/by-laws, suffice it to refer to the well settled principle of law that the alternate remedy must not be less convenient, beneficial and effective then the one sought to be enforced under Article 199 of the Constitution; at the same time it should also be efficacious and speedy. It is also settled law that in appropriate/exceptional cases despite availability of alternate remedy, this Court can exercise its extraordinary constitutional jurisdiction conferred upon it under Article 199 of the Constitution of Islamic Republic of Pakistan."
The bona fide of a pro bono publico litigant is to be adjudged on the touchstone of his status as an aggrieved person and secondly on the ground that he is petitioning in the interest of general public. It is further incumbent upon the litigating person to demonstrate that if the agitated grievance is not immediately addressed, it is destined to adversely affect the society as a whole. The parameters within which the public interest litigation can be entertained were examined by the Hon'ble Supreme Court of Pakistan in the case reported as Javed Ibrahim Paracha v. Federation of Pakistan and others (PLD 2004 Supreme Court 482) and observed as under:- "No doubt with the development of new concept of public interest litigation in the recent years, a person can invoke the constitutional jurisdiction of the superior courts as pro bono publico but while exercising this jurisdiction, he has to show that he is litigating firstly in the public interest and, secondly, for the public good or for the welfare of the general public. The word 'pro bono publico' as defined in Black Law Dictionary, Chamber Dictionary and Oxford Dictionary, generally means 'for the public good' or 'for welfare of the whole' being or involving uncompensated legal services performed especially for the public good. 'Public interest' in the Black Law Dictionary has been defined as 'the general welfare of the public that warrants recognition and protection'.
Something in which the public as a whole has a stake; especially an interest that justifies governmental regulation. It thus signifies that in case of public interest litigation, one can agitate the relief on his own behalf and also on behalf of the general public against various public functionaries where they have failed to performed their duties relating to the welfare of the public at large which they are bound to provide under the relevant laws."
It further explicitly stems out from the plain reading of Article 199 (1) (c) & Article 199 (2) of the Constitution that High Court is well equipped with the powers to issue a direction for the enforcement of fundamental rights of the subjects, guaranteed under Chapter 1 of Part-II. For the clarity of subject, the afore-quoted provisions are essentially required to be looked into, thus are being mentioned hereunder:- "199. Jurisdiction of High Court. (1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by-law--
(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental rights conferred by Chapter 1 of Part-II.
(2) Subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II shall not be abridged."
Now the overreaching question arises as to what are those fundamental rights, which are agitated to be infringed by the respondents. In this regard, it is observed that through instant public interest litigation, the petitioners raised concern about shrinking forests, extinguishing wildlife, rapid deterioration of scenic beauty of Murree hills as well as heedless approach of TMA Murree, Environmental Protection Agency, PDMA, National Highway Authority, Pakistan Metrological Department, Punjab Tourism Department, Rescue-1122 towards discharge of their official duties. With reiteration, it is mentioned that the petitioners hail from Murree and have right to enjoy its God-gifted beauty emanating from the lush green forests, the sky whispering pine trees, the fresh water of natural springs stemming out from these mountains and amongst others the eye-catching fauna and flora of the region. One of the fundamental rights guaranteed under Part-II of Chapter 1 of the Constitution is envisaged in Article 9 whereby no person shall be deprived of life or liberty save in accordance with law. The term 'life' used in Article 9 cannot be restricted to mere existence of a living person rather is stretched to all and every aspect of quality human life. The word 'life' is not defined in the Constitution, thus cannot be given a restricted meaning rather is of wider import.
Article 9 bespeaks that an individual is entitled to enjoy the pleasures of life by having access to natural and ecological beauty of places like Murree hills, needless to mention, within a defined sphere of law. Since Article 9 explicitly and unrestrictedly guarantees the right to live a life, it is not required to be established through customary protracted litigation rather is to be enforced vigorously even through a constitutional petition, once the agitated grievance is found to have reasonable substance in it. The term 'life' was comprehensively expounded by the Hon'ble Supreme Court of Pakistan in the case of Ms. Shehla Zia and others v. WAPDA (PLD 1994 Supreme Court 693) and some extracts therefrom are being referred hereunder:- "Article 9 of the Constitution provides that no person shall be deprived of life or liberty save in accordance with law. The word 'life' is very significant as it covers all facets of human existence. The word 'life' has not been defined in the Constitution but it does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception of death. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and Constitutionally. For the purposes of present controversy suffice to say that a person is entitled to protection of law from being exposed to hazards of electromagnetic fields or any other such hazards which may be due to installation and construction of any grid station, and factory, power station or such like installations.
The Constitutional Law in America provides an extensive and wide meaning to the word 'life' which includes all such rights which are necessary and essential for leading a free, proper, comfortable and clean life. The requirement of acquiring knowledge, to establish home, the freedoms as contemplated by the Constitution, the personal rights and their enjoyment are nothing but part of life. A person is entitled to enjoy his personal rights, freedom and liberties. Any action taken which may create hazards of life according to law. In the present case this is the complaint the petitioners have made. In our view the word 'life' constitutionally is so wide that the danger and encroachment complained of would impinge fundamental right of a citizen. In this view of the matter the petition is maintainable."
Allah Almighty blessed Murree with a heavenly beauty and no one has right to rob it by cutting trees, excavating the mountains for constructing concreate structures or to pollute it by dumping garbage in its hilly slopes. Without an exaggeration, from the facts agitated through instant constitutional petitions, it can be held that the fundamental right guaranteed under Article 9 of the Constitution is being infringed, thus the instant petitions are maintainable.
6. A wade through the contents of the constitutional petitions in hand unfolds that the concerns raised can be bisected in two parts. The first part of these concerns has its roots in the agonizing incident of 07.01.2022 during which 22-persons lost their lives in a blizzard, after remaining trapped in their snow stuck vehicles for whole night, awaiting rescue workers who never turned up. The second part of the grievance pertains to the mishandling of affairs by the public functionaries destroying the ecological system of Murree. In order to assess the actual reasons which led to the catastrophe of 07.01.2022 and the nose dive decline of the natural beauty of Murree, not only the comments from various departments were requisitioned but right of hearing was also given to the relevant officials.
7. Firstly, it is considered appropriate to dilate upon the incident of 07.01.2022 but before that it appears to be in fitness of things to tentatively look at the distribution of responsibilities amongst various Government Departments for countering any calamitic disaster. In the wake of deadly earth quake of 2005 which took the lives of approximately 87000 people, caused injuries to 138000 persons out of whom many were left crippled for rest of their lives and displaced around 3.5 Million citizens, a need was felt to devise a credible disaster management system, accordingly the needful was done through Act No.XXIV of 2010 which is called as the National Disaster Management Act, 2010 (hereafter referred to as "NDM Act 2010"). Under its Section 8 Federal Government was to establish the National Disaster Management Authority (hereinafter referred to as "NDMA") and under Section 15 each Provincial Government was required to set up a Provincial Disaster Management Authority (hereinafter referred to as "PDMA"). The powers and functions of NDMA and PDMA are given in Sections 9 and 16 respectively.
Since the calamity of 7th January 2022 hit Tehsil Murree and the grievances voiced in the instant petitions are mainly pointed towards different organs of the Government of Punjab, hence Section 16 wherein the powers and functions of PDMA are envisaged has some importance. Similarly, through necessary implication of Section 18, the respective Provincial Governments were required to establish a District Disaster Management Authority (hereinafter referred to as "DDMA") for each District, the powers of which are further given in Section 20. Under Section 16, the PDMA was made responsible for making plans of Disaster Management in the Province and to take numerous steps foremost out of which were to formulate and monitor Provincial Disaster Management Policy; identify the Districts vulnerable to disasters and to take preventive steps; lay down guidelines for different departments regarding preparation of Disaster Management; organize and coordinate specialized training programmes for officers, employees and voluntary rescue workers; facilitate community training and awareness programmes; set up, maintain and upgrade mechanism for early warning about an apprehended disaster to the general public etc. It is observed that for the Province of Punjab with a population of around 110 Million, PDMA is made functional only with 94 personnel including 07 officers. For implementing the objectives of NDM Act 2010 through notification No.149-2017/186/Admn-I dated 22.06.2017 Governor of the Punjab constituted DDMA for each District and its formation is mentioned hereunder:-
1. Deputy Commissioner Chairperson
2. Mayors of Metropolitan/Municipal Corporations Member
3. Chairman District councils Member
4. District Police Officer Member
5. Two elected representatives to be nominated by the Chief Minister for each DDMA Member
6. Two representatives of NGOs/Civil Society to be nominated by Chair Member
7. CEO District Health Authority Member
8. CEO District Education Authority Member
9. Additional Director Livestock Member
10. Deputy Director Agriculture (Extension) Member
11. District Food Controller Member
12. SP/DSP Special Branch Member
13. Executive Engineer, Irrigation Member
14. Executive Engineer Member
15. Executive Engineer Highways Member
16. Executive Engineer Buildings Member
17. District Emergency Officer (Rescue 1122) Member
18. Disaster Management Officer, Pakistan Red Crescent Society Member
19. All Chief Officers of Municipal Corporation/Municipal Committees/District Councils Member 20.Federal Government Officers which the DDMAs decide to co-opt as per powers delegated under sections 20 & 22 of NDM Act 2010Member It needs no elaboration that the legislative object of NDM Act 2010 could best be achieved through proper coordination of the offices mentioned in afore-mentioned schedule. To the dismay of this Court, it is noticed from record that though the role of PDMA in disaster management is nothing less than a protagonist but it badly failed to cope with the situation. It is observed that the Metrological Department issued forecast of heavy snowfall and not about the blizzard. Even forecast of heavy snowfall was not properly transmitted to the concerned Departments either by the Metrological Department or by the PDMA. Even on the crucial date PDMA was awaiting the appointment of its Director General after the retirement of previous one but unfortunately the needful was not done by the Government of Punjab within time. While embarking upon the tragedy of 7th January, 2022 following points are essentially required to be highlighted:-
(i) After having carefully perused the schedule mentioned above, it is noticed that Pakistan Metrological Department figures nowhere in the structure of notification No.149-2017/186/Admn-I dated 22.06.2017 issued by the Governor of Punjab for the implementation of the objects mentioned in NDM Act 2010. This Court is not oblivious of the fact that Pakistan Metrological Department is a Federal entity but still NDMA was required to include it so as to counter any disaster in best possible manner. Despite the lapse so mentioned, Pakistan Metrological Department cannot be exonerated from its responsibility of intimating the concerned Departments about the weather threat alert. Surprisingly, though the Metrological Department issued an alert about expected rain and heavy snowfall but took no pragmatic steps towards apprising other Departments in this regard such as Rescue-1122, Punjab Highway Department, NH&MP, PTDC, and District Administration Rawalpindi etc. Instead of issuing weather advisory through publication in Print Media, circulation via electronic media and intimation to PDMA and other offices by proper correspondence, the calamity alert was only transmitted through WhatsApp Message on the mobile phone of Director General, PDMA on 5th January, 2022 who had already relinquished the charge on the eve of his retirement. A fact-finding enquiry was conducted about the 7th January incident by four senior officers of Punjab Government and it evinces therefrom that WhatsApp message so forwarded to Director General, PDMA was not seen till 18th of January, 2022. The improper issuance of weather forecast inevitably became the root cause of the incident.
(ii) The Punjab Highway Department had major role to play for clearing snow from the roads. A huge budget is allocated to the Department along with vehicles and personnel for its smooth working. Though an attempt was made to canvass before this Court that during the tragic incident of 07.01.2022 the Punjab Highway Department put best of its efforts but the frailty of such stance was badly exposed from the record. Initially, it was stated before this Court that approximately 29-vehicles including snow blowers of Highway Department were located at Key-Points and remained functional in clearing the roads. Later, when the record was requisitioned from the Punjab Highway Department, it unveiled that for operating the afore-mentioned 29-vehicles, only 20-persons were deputed and 15 out of them were not even having requisite expertise to handle them. It is considered important to mention here that nine of these persons were recruited as Greasers, whereas remaining six were employed as Bitumen Colly, Filter Colly, Rack Colly, Watchman, Work Taker and Time-Keeper. These persons were neither employed as Drivers/Operators nor had requisite abilities of operating the vehicles or even to clear the snow from the roads. As this was not enough, it further divulged from record that the job of sprinkling salt to counter the slippery ice roads, was outsourced to a private contractor in lieu of Rs.7.500 Million, as service charges only with no supervisory check. Even the salt to be sprinkled on the road was provided by the Punjab Highway Department having enough manpower and logistic support to do the job. Living in a developing country like Pakistan with financial constraints, we cannot chew such extravagant spending so as to digest it. The state of affairs so mentioned speaks volume about the inefficiency of Punjab Highway Department, which somehow aggravated the impact of snow storm and the loss caused by it.
(iii) Rescue-1122 is a prestigious organization in the developing countries like Pakistan and was established to provide various facilities to the citizens in times of need. The personnel of Rescue-1122 are provided extensive training to render services in emergent situations and needless to mention a huge expense is incurred from public exchequer in this regard. Most of the victims of 7th January calamity remained stuck on a patch of about 2/3 kilometers on Nathia Galli Road starting from a place known as Kuldana Murree. A report was requisitioned from Murree Wing of Rescue-1122 which was accordingly submitted and it was put forth therein that on the night of 7th January, 2022, approximately 25-victims of severe weather were attended. In order to adjudge the veracity of such stance, the log-book of Rescue-1122 was perused from which it emerged that none of the victims receiving medical treatment was located on the road leading from Kuldana to Nathia Galli. Indeed, all these persons received treatment at places around Mall Road of Murree wherein the situation was not so alarming and were suffering from routine medical problems like temperature and indigestion etc. An ample opportunity was provided to the officials of Rescue-1122 for demonstrating that they reached calamity hit areas but they failed in this regard. It will not be out of place to mention here that deployment of Rescue-1122 personnel at different points definitely would have reduced the intensity of the lives-loss during the disaster of 7th January.
(iv) It is also noteworthy that Murree comprises upon a hilly contour and for an official posted therein, it is time taking job to understand the expected problems, more importantly arising from severe weather. It is appalling to observe that in the last four years nine Assistant Commissioners were posted out from Murree within short span of tenure and that too without mentioning any reason whatsoever. The role of Assistant Commissioner in a Sub- Division like Murree needs no elaboration when seen in the context that practically he is the administrative head.
Same was the case of police officials as during this period approximately nine SDPOs and equal number of Station House Officers of Police Station Murree were mysteriously transferred. Likewise, during same period eight DSPs Traffic were changed in Tehsil Murree and that too without any good reason. It needs no elaboration that for an incoming officer this is time taking process to acquaint himself with the territory under his control and the problems which usually occur. Though repeatedly a query was raised by this Court on various dates about the reasons which led to the frequent transfers of afore-mentioned officials but the representatives of Punjab Government resorted to an eternal silence and failed to put forth any justification whatsoever in this regard. In the wake of such frequent transfers, it appears unjust to hold them guilty for the disaster of 7th January, 2022 but still it was so done by the Additional Chief Secretary in his enquiry report.
(v) According to Section 18 of NDM Act 2010, a notification was to be issued by the Provincial Government through publication in official gazette for constituting District Disaster Management Unit for each District. As mentioned above, DDMA was constituted vide notification dated 22.06.2017 wherein its composition is also mentioned.
Though traces of some effective meetings of DDMA for addressing the problems expected to crop up in the upcoming winter season are found from record but ultimately the same remained ineffective due to slackness of Pakistan Metrological Department and the PDMA. It is already mentioned in the preceding para that neither Pakistan Metrological Department took any effective step in intimating the concerned quarters (including the DDMA) nor the PDMA bothered to contact Murree Administration for making necessary arrangements for the expected heavy snowfall. Nothing as such was placed on record from which it may insinuate that the steps in adherence to Section 16 of NDM Act 2010 were effectively taken. Neither the guidelines in accordance with Section 16 (2) (d) for preparation of Disaster Management Plan were formulated nor policy for a coordinated response in the event of disaster under clause (e) was set up. It was essentially required under Section 16 (2) (h) to educate general public and generate awareness amongst them through community training for Disaster Management but unfortunately even after the lapse of 12-years of enacting NDM Act 2010, nothing as such is done. Needless to mention here that lack of education, absence of awareness and non-imparting of community training aggravated the devastation caused through snowstorm of 7th January, 2022. The impact of omission to impart training to the general public can well be gauged from the fact that approximately 22-persons were reported to have died helplessly, mainly due to the intake of carbon monoxide emitting from the exhaust of their snow stuck vehicles. The ill-fated departed souls apparently took refuge in their vehicles considering them as safe heavens but had no knowledge that the same will become their death cage. This tragic incident is one example of the damage resulted from indifferent attitude of PDMA towards their statutory obligation of imparting awareness to the general public under Section 16 (2) (h) of NDM Act 2010. Above all, it was the responsibility of the PDMA to intimate DDMA and coordinate with other government departments including the police and District Administration for addressing the severe weather but from record no clue of any effort in this regard is found.
Though the tourists and their vehicles kept pouring into Murree in large number, disproportionate to absorb them but still the hierarchy of PDMA remained in negligent slumber. During arguments, comments were requisitioned from the police and District Administration and it emerged therefrom that after the calamity hit Murree, Assistant Commissioner, Deputy Commissioner, SDPO, DSP Traffic as well as the CPO remained on the roads whole night and left no stone unturned to mitigate the damage but astonishingly all of them were held responsible in an enquiry conducted by the Additional Chief Secretary. In this regard, the photographs were also placed on record in which these officials could well be seen while rescuing general public and guiding the motorists for clearing the roads even in the dark hours of night. The enquiry conducted by Additional Chief Secretary to lift veil from the delinquency which resulted in the loss of 22-lives, strict action was recommended to be taken against the afore- mentioned officials, whereas the Metrological Department and PDMA earned clean chit in the same report. The finding of Additional Chief Secretary is preposterous in nature as in one of its part the afore-mentioned officials were attributed slackness and in another portion they were appreciated for putting relentless efforts in clearing the mess caused by the weather and indisciplined motorists. It is evident from record that Assistant Commissioner Murree convened meetings in November, 2021 and devised a strategy for upcoming snow season.
The duties of CPO are given in Article 4 of Police Order, 2002, the perusal of which gives not even a remote clue about his responsibilities to deal with some weather calamity at his own. Indeed, as per Article 4 of Police Order, 2002 CPO, is required to be more concerned with policing. The most important aspect which emerged from the review of record is to the effect that all the 22-persons lost their lives on the road leading to Murree from the Province of KPK. Admittedly, this road is in the shape of single carriageway and its closure by the Murree Administration could have given rise to a greater tragedy due to complete traffic jam.
(vi) The blizzard which gave birth to the disaster of 7th January, 2022 though had nothing to do with the residents of Murree but still they were badly trolled on Social and Electronic Media through stories, some of which had no shred of truth. Admittedly, hotel owners charged exorbitantly for dining and lodging, still some of them gave free shelter and food to the weather-stricken tourists but such generosity found no place in the media. Such negative campaign generated hatred towards residents of Murree across the country, which definitely was not harmonious for national unity. From the review of record and the affairs of Murree it can inevitably be held that hoteling business in Murree is essentially required to be regulated. Some of these hotels have lodging capacity disproportionate to the vehicle parking facility. The rent of these hotel rooms in no manner commensurate with the standard of services provided by them. I feel it appropriate to dilate in the later part of the judgment upon the measures required to be taken for comprehensively regulating the hotel industry in Murree.
(vii) The lack of discipline prevailing amongst our countrymen reflects from every sphere of life and the traffic on the roads is no exception. It is a matter of common observance that generally the motorists pay no heed to the discipline and display no tolerance while on the roads, more importantly, if there is a traffic blockage. The same indisciplined attitude deciphered during this tragedy and the motorists grossly violated lane discipline on the roads all around Murree, including the Express Way which culminated in a complex traffic chaos. Due to foregoing reasons, the rescuers from various government departments failed to perform their task during the disaster under discussion.
8. The second part of the grievance agitated in these petitions pertains to the rapidly deteriorating natural environment of Murree and its ecosystem. The lush green hill tops, crystal pure water streams, mesmeric sound of breeze passing through towering pine trees, scenic slopes and fresh air always fascinated the tourists to visit Murree. The city was established in the 19th Century during the British epoch and is situated at an altitude of 7500 feet above sea level. It will be advantageous to mention here that construction in Murree started way back in 1851 by the British Rulers while selecting it as a summer camp to evade scorching heat of Punjab. For adding beauty to Murree, a touch of neo-gothic architecture was given as is evident from the structures like the Lawrence College, Anglican Church, Presbyterian Church and Telegraph Office. A wade through the Gazetteer of Rawalpindi District 1893-1894 reveals that the population of Murree was comprising upon 1768 inhabitants with few buildings only and its perusal from pages 262 to 266 gives a clue that the area was clothed in dense forests of pines and chestnut trees with fresh water streams flowing down the hills. With the afflux of time and more importantly in the recent past, on one hand the population of Murree grew very rapidly and on other end the unplanned construction also gained skyrocketed momentum. In Multi-Hazard Vulnerability and Risk Assessment Study of the Murree Municipality funded by United Nations Development Programme (UNDP), five potential threats to the city were highlighted which are as under:-
(i) Earthquakes,
(ii) Landslides,
(iii) Flashfloods,
(iv) Environmental Degradation and Deforestation &
(v) Population and Tourism Hazards.
In the same report it was highlighted that approximately 284 residential buildings, 20 commercial buildings, length of 9-kilometer road and 17-bridges are at risk. The earthquake risk analysis was described in the report to have placed under serious threat, 50 percent of the buildings and population of the Murree area. The potential land sliding threat was also stated in the report to have made vulnerable around 1.5-kilometer of roads, three bridges, 57-residential buildings and 12-commercial buildings. The risk arising out of flashfloods was also pinpointed in the UNDP report towards 298-meter length of roads at various locations, three bridges, 127 residential buildings along with four commercial structures. Despite the potential threats so mentioned in UNDP report, the construction is being carried out at an alarming and rapid pace. In order to further elaborate the ongoing construction, it is being mentioned that only in the recent past, 167-approvals were granted by the Municipal Committee Murree and 47by Tehsil Council Murree. On the other hand, 31-buildings constructed in violation of Building By-laws or without obtaining approval were demolished. With the passage of time, the pine and chestnut forests referred in the Gazetteer of Rawalpindi District 1893-1894 shrank alarmingly besides that the purity of water streams was also compromised through multiple reasons, foremost out of which is faulty sewerage system and improper waste disposal plan. Even today there is no proper sewerage or garbage collection system to deal with commercial and domestic drainage and solid waste management. There are only two major sewerage lines, one out of which starts from Lady Roberts Hotel and the other originates from a place near Jawa Hotel, the sanitary waste from both these lines is disposed of in the greenish outskirts of Murree. In some areas, the local inhabitants have constructed septic tanks and drains which either ends in the water channels or at open places. It is painful to mention here that the pine covered hilly slopes adjacent to the roads as well as with the residential areas, which once used to have breathtaking beauty are now giving ugly look of being ideally and conveniently used for dumping of empty beverages, plastic bottles, Tetra Packs, wrappers and plastic bags etc. The sewerage and drain water disposed of in the open area later seeps down in the hill crests which not only contaminates underground water but also is a potential threat for land sliding. It is equally important to mention here that the hills of Murree are catchment areas on its Eastern sides for River Jhelum leading to Mangla Dam and on Western side for channels adding water to Simly and Rawal Dams. The two water reservoirs, Simly and Rawal Dams, were built to cater the needs of inhabitants of twin cities, Islamabad and Rawalpindi. The contaminated water originating from Murree gets further polluted through poultry and residential wastes before joining the afore-mentioned two reservoirs and in consequence thereof the inhabitants of the twin cities are left with no other option but to consume it despite being unsuitable for human consumption. The contaminated water is slowly and gradually eliminating and damaging the habitat of aquatic creatures in the afore-mentioned reservoirs. In the year 2000, Government of the Punjab got prepared a report by hiring the services of a private consultant, namely, Pakistan Engineering Services (Pvt.) Ltd which was titled as Feasibility Studies and Master Planning for Sanitation Project Murree on Long Term Basis. The report upon its perusal is found to be comprehensive wherein the defects of sewerage system are highlighted along with its threat to environment. Unfortunately, even after the dusk of two decades of afore-mentioned report, no step is taken to address the problems highlighted therein. In an article written by Andrew E Collins titled as Cause and Extent of Environmental Impacts of Landslide Hazards in the Himalayan Region: A Case Study of Murree, the potential threat of land sliding and earthquake were highlighted.
In the article, it was mentioned that "Murree area consists of fragile rocks with hard grey to reddish sandstone inter-bedded with soft and red calcareous shale. These rocks have the highest tendency towards landslides. It has been observed that due to natural conditions, like immature geology and high rainfall, coupled with rapid socio- economic development and related human activity the landslide hazard has been a serious concern for the safety of life and property in the area". In the same article after discussing the earthquake and land sliding factor in Murree the author gave certain observations, out of which, some are being mentioned on account of their importance:- "In the study area people are mostly living on the vulnerable steep slopes which are not technically viable for the establishment of human settlements. Besides this, the population of Murree area is increasing at rapid pace (3.1 % per annum). As a result, the built-up area is also multiplying day-by-day. This expansion of the built-up area has been going on in both a horizontal and a vertical direction. The high-rise buildings are constructed indiscriminately without care of by-laws and regulations in Murree and the surrounding area. Therefore construction pressure on the slopes has led to the increase in the intensity of landslides."
The events of land sliding and the damage caused to the buildings and roads in reference to the monetary loss are mentioned in detail by the author in the afore-mentioned article.
9. In the backdrop of what is mentioned in the preceding para, it is observed that different enactments to deal with the municipal affairs of Murree remained in field some of which can be enumerated as Punjab Municipal Act, 1911, Local Government Ordinance, 1979, Punjab Local Government Ordinance, 2001, Punjab Local Government Ordinance, 2013 and Punjab Local Government Ordinance, 2019. Under the afore-mentioned enactments building rules and by-laws were framed in order to regulate the construction policy and at present, the Building By-Laws of Murree (Tehsil) 2021 are in field. Though in all the afore-mentioned enactments/By-laws a stringent construction policy was embedded and restriction was imposed upon excavation, digging and mountain cutting but the practice has yet not come to an end. For reference sake, Clause-9 of Building By-Laws 2005 is referred hereunder:- "9.Type of construction:
(a) Excavation, digging and cutting of mountain is strictly prohibited.
(b) No frame structure shall be allowed.
(c) Only C.G.I. sheets shall be used for roof tops."
The excessive digging, cutting, change in landscape and unplanned construction is paving way for multiple environmental hazards but unfortunately no heed is being paid. On one hand, the ongoing and unchecked change in landscaping has diverted the course of rain water in directions different from the Rawal Dam and Simly Dam and on other hand the water which drops in these reservoirs brings silt reducing the water storage capacity.
It is equally important to mention here that almost in all the Building By-Laws a restriction was imposed that no building may exceed three storeys with an optional basement but it was admitted during arguments that at present many multi-storey structures are either built or are under construction and that too without hiring the services of professional architects and building engineers. Such construction is jaw dropping when seen in the context that Murree and Kotli Sattian are situated on fault line/seismic zone, thus their vulnerability to earthquake needs no discussion. The afore-mentioned illegal activities, if not brought to an immediate end, can lead us to further environmental disaster of various kinds. Such lawbreaking can best be halted through the vigilant eyes of Divisional Administrative Head and top brass of relevant departments. I am persuaded to observe here that if the construction will continue with the same pace in the region, there is every possibility that, in two or three decades, concrete structures will replace the greenish look of Murree. It has become epitome our national life that we wait for a tragedy to occur and only then give a thought of future planning.
10. In order to address the problems leading to extinguishing fauna and decaying flora, notices were issued to the Wildlife Department Rawalpindi Region and the Murree Forest Division. Before inching any further, it is considered appropriate to mention here that Murree was studded with diversity of wildlife which presently is at risk of extinction. Though it is reported by the Wildlife Department that common leopards, wild boar, jackals, porcupine, hedgehog, mongooses, monkeys, Indian Peafowl, common crow and common kite are available in somewhat satisfactory number but there are some other species which have notably decreased and are at verge of extinction. The extinguishing wildlife in Murree region comprises upon barking deer, Indian pangolin, Indian rabbit, black partridge, grey partridge, kalij pheasant, common dove, blue rock pigeon, phyton, common krait, viper and monitor lizard. The reasons behind the extinguishing wildlife in Murree region can be summarized as under:-
(i) Habitat Loss,
(ii) Urbanization,
(iii) Forest fires,
(iv) Tree cutting,
(v) Illegal hunting/poaching &
(vi) Lack of awareness.
It further unveiled during arguments that the Wildlife Department is having scarcity of staff and meagre logistic resources. This Court was astounded to know that only a single vehicle along with two motorbikes are provided in each District of Punjab for keeping surveillance on poachers and the conservation of wildlife. This is a matter of common observation that poachers are always well equipped with weapons and for nabbing them an empty- handed wildlife official is made to stand against them. Often, these hunters decamp along with the illegal hunted animal by taking advantage of helpless wildlife official, not even having the luxury of possessing a camera to capture the visuals of their unlawful acts. Resultantly, the prosecution launched for bringing to book such poachers ends in failure before the courts. Needless to mention here that with such dearth of manpower and logistic facilities coupled with non-cooperative behaviour of police towards curbing illegal hunting, it apparently is not possible to save the endangered wildlife.
The state of affairs pertaining to Punjab Forest Department are also found to be alarming in nature, giving a clue that if immediate steps are not taken, the flora in the region will be at risk. The Murree Forest Division comprises upon woodland of coniferous and shrubs hailing from 167 genera and 71 families situated mainly in Murree and partially in Kotli Sattian. Historically, the forests of Murree consisted upon land forfeited by the British Government from the locals and in exchange thereof various rights like free grazing, grant of trees for buildings as well as for burial purposes were granted to them but unfortunately over the years common lands/Shamlaat have been converted into Housing Societies and Residential Areas. Forests comprising upon approximately 3580 acres are the property of Municipal Committee Murree. From 1959 onward, a sizeable area of Municipal Forests approximately comprising upon 316.579 acres was transferred in the names of various departments as is evident from the following schedule:- Sl.No. Title of case Capt.No.Area Transferred (Acres)To whom transferredBy whom transferredNotification No. & date
1. Lower Jhikagali road Scheme area (Murree Improvement Trust)20,21,22,23/Municipal Forest209.00 Murree Improvement TrustSocial Welfare & Local GovernmentSO(T)V-G/58 dated 7.8.1959 Department Trusts
2. Multiplication and Acclimatization of Wild Ornamental Flora5/Municipal Forest Kuldana10.00Agriculture DepartmentGovt: of the Punjab FW&F DepartmentSOFT(EXT) II 1 dated 23.12.1989
3. 3 Malra Housing Scheme Sunny Bank Murree9/Municipal Forest Chitta More40.00Housing, Physical and Environmental Planning DepartmentColonies DepartmentSO (P) 2 11/86-42 dated 10.5.89
4. Govt: commercial Training Institute Sunny Bank7/Municipal forest Sunny Bank03.075Education DepartmentDeputy Commissioner Rawalpindi16-86/SK dated 26.1.86
5. Establishment of Rescue 1122 Centre Murree11/Municipal Forest Pindi Point near Punjab House0.704Govt: of the Punjab & Development DepartmentColonies DepartmentNo.2692 009/2855/CS IV dated 29.8.2009
6. Establishment of 150 Bed Hospital at Murree4/Municipal Forest Kuldana40.00Health DepartmentColonies DepartmentNo.2692 - 2009/2855/CS iv DATED 29.8.2009
7. Construction of Car Parking Plaza at Jhikagali & Dhobighat Murree3/Municipal Forest & 24/M. Forest06.05Punjab Provincial Building DepartmentSummary approved by the CM Punjab containing order dated 4.5.2009SOF (EXT) 5/2009 dated 5.5.2009
8. Allotment of 12 Kanal land for Fazia Inter College Lower Topa Murree18/Municipal Forest Lower Topa02.75Fazia Inter College PAF Lower Topa MurreeSummary approved by the CM PunjabSOFT (EXT) II-31/2009 dated 16.9.2009
9. Transfer of Land for Agriculture Research17/Municipal Forest Lower Topa05.00Agriculture DepartmentColonies Department2795 2003/2351-CSIV dated 10.7.2004 Total: 316.579 Acres Similarly, 65 acres of Murree Municipal Forests land was leased out to some favourites from 1987 onward for the establishment of Chair-Lift, Hotels and Adventure Park, etc. through opaque proceedings. One Muzaffar Hussain resident of Murree filed a complaint before Anti-Corruption Establishment, Lahore regarding encroachment of some private persons upon the Forest and State land. It emerged from the Enquiry Report of ACE, Rawalpindi Region dated 03.06.2005 that about 1567 Kanals of forest land along with 2367 Kanals of State land is being illegally occupied by different persons in Murree upon which residential and commercial buildings are constructed. The irony of the matter surfaced from the conclusion of enquiry report wherein instead of taking steps for removal of these encroachments, it was suggested that the price of the occupied land be recovered from the illegal occupants. Needless to mention here that such proposal amounts to giving a legal backing to an act or omission strictly and expressly prohibited by law. Unfortunately, despite the lapse of considerable period since the detection of afore-mentioned misdeeds, no action for removing these encroachments is taken. In addition, the trees are often cut by the locals in the winter season so as to maintain cozy atmosphere in their houses by burning them as they have no other energy source. The use of wood in housing industry is another factor leading to the deforestation and reduction of forest lands. The imposing of some limitations for the use of wood in housing industry and supply of LPG on subsidized rates to the locals will definitely prove to be steps in right directions for saving the forests. In my humble view, the solid wood be permitted to use only for entrance doors and the use of bio-wood in the remaining doors and windows can definitely make a difference. The world over, bio-wood is being used in housing industry as a parallel source for saving forests but we have yet not given consideration to this aspect.
The Murree has diverse ecosystem with roots in its fauna, flora, natural water streams and hill formation. The ecosystem provides habitat to the wild plants and animals, promotes various food chains and webs, controls essential ecological process and promotes lives, manages recycling of nutrients between biotic and abiotic components. Without a speck of exaggeration, it can be held that the shrinking forests are leading to the elimination of wildlife which are destined to adversely affect the ecosystem of Murree. The World Wildlife Fund
(WWF) submitted a report in respect of the proposed New Murree Development Project (later abandoned) which was mentioned by the Hon'ble Supreme Court of Pakistan in the case reported as Muhammad Asjad Abbasi and others v. Iqbal Muhammad Chauhan and others (2018 SCMR 2051) and an extract therefrom on account of its relevancy is being reproduced hereunder:- "The Himalayan forest vegetation provides relatively undisturbed habitat for wildlife species, sustaining their needs for food, water and shelter. Any change in the habitat structure will affect the variety and population of wildlife species. Changes in the vegetation structure will definitely affect the wildlife fauna associated with them and, conversely, changes in faunal composition as well as influence the vegetation it is complexly integrated with.
Leopards, once reported from the area, are no longer sighted; their disappearance can threat to the already decreasing population Common Leopards in the Murree hills. The Koklass Pheasant, the White-Crested Kalij Pheasant, and the Paradise Flycatcher are some of the unique bird species inhabiting the Patriata forests, which will also be endangered.
Natural forests form a vital part of catchments, guaranteeing better quality water with lower levels 20f sediments and pollutants. The loss of forest cover and subsequent conversion to other land usage is rapidly being identified as the major reason for the depletion and contamination of freshwater supplies, aggravating the looming water crisis that is threatening the whole country. Since the concerned area is an integral part of the important watersheds of Mangla and Simly dams, the proposed development plan, which entails large scale decimation of this surviving tract of forest, will have massive negative repercussions. Since much of the remaining catchment area of these dams has already been built up, protection of this region is imperative to guarantee groundwater replenishment along with regulation of water table, and to prevent rapid soil erosion with consequential silting of water channels and dams downstream, flash floods and landslides."
It is already observed above that Wildlife Department lacks requisite resources and the position of Forest Department is no different. Due to shortage of resources to counter the menace of wood theft, the Forest Department has gone toothless. Unfortunately, the sensitivity of the cases registered on behalf of both the departments is not identified even by the Courts and the perpetrators either gets acquittals or are successful in getting rid of prosecution by paying petty fines. The Courts are expected to have resort to judicial activism within the framework of express legal provisions for protecting the extinguishing wildlife and shrinking forests. Besides that, the involvement of general public for preserving the fauna and flora is needed and this can best be done by inserting relevant subjects in educational curriculum as well as through seminars and workshops. The print and electronic media is another source to be utilized for spreading environmental awareness amongst the masses. It is commonly noticed that officials of Forest and Wildlife Department are frequently transferred with short tenures of posting. Such practice, if avoided, can provide better opportunity to the relevant officials for putting their sincere endeavour towards enhancing and protecting the flora and fauna within their respective areas. It will not be out of place to mention here that the laws on the subject are also required to be re-visited by the Legislature.
The stringent punishments for offences will create deterrence amongst those who are involved in illegal hunting, wood theft and encroachment upon forest lands.
11. There is yet another factor which adversely reflects upon the indifferent approach of officials hailing from National Highway Authority and can be deciphered from the affairs dealing with Islamabad-Muzaffarabad Road, more commonly known as Murree Expressway. This road starts from 'Satra Miles' and ends at Lower Topa with a length of 43.20 kilometers. The land for the road along with 40-meter in rolling terrain and 50 meter in hilly terrain was acquired between the afore-mentioned two points. According to the report submitted by Assistant Director (Maintenance) NHA, Murree, approximately 118-persons have encroached upon the land adjacent to Murree Expresswa y through various means and against them appropriate action is still awaited. In addition, there is another set of 63-persons who though encroached upon the NHA land alongside Murree Expressway but appropriate actions were taken and the structures so raised were demolished. A pressing need is felt to mention here that the encroachers laid their hands upon the NHA land situated around Murree Expressway in the light of day, thus this is not even remotely possible that the concerned officials had no knowledge of ongoing illegal construction. I have no hesitation to say that the land alongside Expressway was encroached with the acquiesce of NHA officials, otherwise they would have taken prompt action. The Expressway was designed to provide smooth flow of vehicles leading to Murree and Muzaffarabad but the construction of illegal hotels, shops and residential houses has made it vulnerable to a traffic mess in the future. The NHA is required to be sensitized about their obligations and for preserving their lands from the encroachers.
12. The Hill Station of Murree is undoubtedly prime tourist resort of Pakistan, visited by the locals as well as the foreigners and almost 95-percent out of them feel it incumbent to have a walk on the Mall Road. The part of Murree which attracts the tourists is situated on the top of the mountains having nexus with Himalayan region and is situated between the two extremes named as Pindi Point and Kashmir Point. While standing at the Pindi Point, one can see the lay-out of Rawalpindi and from the Kashmir Point the tourists can capture eye-catching beauty of snow-covered mountain tops of Kashmir. The Pindi Point is situated at a distance of 3 1/2 kilometers from Kashmir Point, whereas its distance from the GPO is around 1 1/2 kilometer. It will not be out of place to mention here that the road leading from GPO to Pindi Point is no-go area for the vehicles. As necessary consequence, the visitors park their vehicles on the roads in between GPO and Kashmir Point which being insufficient space gives rise to traffic chaos. The Murree is situated in the Northernmost part of Punjab having road access from Azad Jammu & Kashmir, Province of KPK, Islamabad and obviously from other parts of Punjab. Murree is connected with Azad Jammu & Kashmir and KPK through a single road, whereas with Islamabad and other parts of Punjab from Expresswa y as well as through old Murree Road. In peak seasons, the visitors make ingress in Murree from all sides and factually it becomes difficult and even impossible for Murree Administration to restrict the vehicles' entry by blocking roads. It will not be an over-exaggeration to say that if the single carriageway coming from Azad Jammu & Kashmir, Province of KPK and Punjab are blocked for controlling the inflow of traffic, it can give rise to complexity of problems and even to a tragedy bigger than the 7th of January. The traffic jam has become a routine feature of Murree in snow season, summer vacations and on public holidays, needless to mention due to excessive and unchecked inflow of vehicles, thus it is the need of the time to devise an impeccable mechanism. In this backdrop, from the available data it is observed that during the tragic incident of 7th January, 2022 approximately 8000 vehicles entered Murree through Expressway alone. No statistics are available about the vehicles which reached Murree via old Murree Road, from KPK and Kashmir. It is estimated by the officials that around 30000 to 35000 vehicles entered Murree which was highly disproportionate to the available parking space. It is worth mentioning that the hotels in Murree have a parking slot of about 2000 vehicles, whereas private parking compounds have capacity to adjust 400 further cars. In addition, approximately 1400 vehicles can be parked on road sides in Murree at various places. The statistics are sufficient to shed light on the situation which prevailed on 7th of January, 2022 during which around 35000 vehicles entered Murree. There is no coordinated planning between Administration of Murree, KPK, AJK, Islamabad and NH&MP for catering the inflow of traffic in Murree during peak seasons. It will not be an over-exaggeration to say that the system of free parking in Murree is indeed giving incentive to the tourists for bringing more and more vehicles in the town. The smoke emitting from the exhausts of these vehicles though is a source of pollution but no attention is paid to the environmental damage resulting therefrom. The Government of the Punjab is required to charge parking fee on somewhat higher side so as to discourage the tourists from bringing vehicles in Murree and that too in excess of parking space. Obviously, a parallel system of public transport originating from parking slots to be established in outskirts of Murree can still facilitate the tourists to visit Murree. The possibility of constructing parking plazas at some distance from Murree and shifting of tourists to the town through transit logistics is required to be explored by the Government of Punjab.
There are many tourist resorts in the world where the use of vehicles is strictly prohibited and tourists are provided bicycles and electric golf carts, some of which are, Mackinac Island Michigan, Sark United Kingdom, Love Velley North Karolina, Princess Island Turkey and Zermatt Switzerland etc. Indeed, there are around 75-places in the world wherein the entry of vehicles is strictly prohibited. Realizing the complexity of a ban to impose upon the entry of vehicles in Murree, I restrict myself only to suggest that the vehicle entries be attempted to curtail. The allocation of a frequency to establish FM Channel for Murree to guide the tourists upon various aspects is inevitable, so appropriate steps are required to be taken forthwith. Such channel can guide the tourists about the weather conditions in Murree, the availability of parking space for the vehicles and the booking burden on the hotels etc. While devising policies, it is expected that the Government of Punjab will give due consideration to business and financial aspects in Murree and they may not be financially strangulated.
13. The importance of Environmental Impact Assessment (hereinafter referred to as the EIA) in preserving the endangered ecosystem is acknowledged world over. The EIA is the method for pinpointing, foreseeing and examining the environmental impact of a proposed project or development scheme and indeed is helpful in making decisions for preserving the ecosystem. The EIA comprises upon a study relating to description of project, collection of data essential to assess its impact on the environment, the residents of the vicinity, flora, fauna, soil, water, air and landscape etc. Historically, the United States of America was first to devise the EIA system by giving it backing of legislation through National Environmental Policy Act, 1969. In the later years, the concept of EIA attained recognition and legislations were made almost by all the developed countries. The importance of EIA was endorsed in the year 1987 through a report published by the World Commission on Environment and Development whereby it was made mandatory that the environmental impact of a proposed project must be subjected to public scrutiny. Likewise, the Rio Declaration on Environment and Development 1992 was focused at the EIA and its significance on the environment. In order to ensure the implementation of the EIA the international donners like World Bank and the International Finance Corporation etc. started laying emphasis upon such assessm ents in projects funded by them. Pakistan, in order to meet the requirements of EIA promulgated the first law in 1983 which was named as Pakistan Environmental Protection Ordinance. Subsequently, the Ordinance so referred above, was repealed and replaced with Pakistan Environmental Protection Act, 1997 (hereinafter referred to as the PEP Act, 1997) and through necessary implication of its Sections 3 & 5 a Council and Agency was constituted. The PEP Act, 1997 was legislated with an object of protection, conservation, rehabilitation and improvement of the environment as well as for the prevention and control of pollution, promotion of sustainable development as is evident from its preamble. The term 'environmental impact assessment' is defined in its Section 2 (xi) and for reference sake is referred below:- "Environmental impact assessm ent means an environmental study comprising collection of data, prediction of qualitative and quantitative impacts, comparison of alternatives, evaluation of preventive, mitigatory and compensatory measures, formulation of environmental management and training plans and monitoring arrangements, and framing of recommendations and such other components as may be prescribed."
In Section 2 (xxxv) the expression 'project' is defined as under:- "Project" means any activity, plan, scheme, proposal or undertaking involving any change in the environment and includes:--
(a) Construction or use of buildings or other works;
(b) Construction or use of roads or other transport systems;
(c) Construction or operation of factories or other installments;
(d) Mineral prospecting, mining, quarrying, stone-crushing, drilling and the like;
(e) Any change of land use or water use, and
(f) Alteration, expansion, repair, docommissioning or abandonment of existing buildings or other works, roads or other transport systems, factories or other installments."
In the above background, Section 12 is found to be of paramount importance having relevancy with the matter under ponderance, thus is essentially required to be examined and has following phraseology:- "Initial environmental examination and environmental impact assessment. (1) No proponent of a project shall commence construction or operation unless he has filed with the Federal Agency an initial environmental examination or, where the project is likely to cause an adverse environmental effect, an environmental impact assessm ent, and has obtained from the Federal Agency approval in respect thereof.
(2) The Federal Agency shall:---
(a) Review the initial environmental examination and accord its approval, or require submission of an environmental impact assessm ent by the proponent; or
(b) Review the environmental impact assessment and accord its approval subject to such conditions as it may deem fit to impose, or require that the environmental impact assessment be re-submitted after such modifications as may be stipulated, or reject the project as being contrary to environmental objectives.
(3) Every review of an environmental impact assessment shall be carried out with public participation and no information will be disclosed during the course of such public participation which relates:-
(i) Trade, manufacturing or business activities, processes or techniques of a proprietary nature, or financial, commercial, scientific or technical matters which the proponent has requested should remain confidential, unless for reasons to be recorded in writing, the Director-General of the Federal Agency is of the opinion that the request for confidentiality is not well-founded or the public interest in the disclosure outweighs the possible prejudice to the competitive position of the project or its proponent; or
(ii) International relations, national security or maintenance of law and order, except with the consent of the Federal Government; or
(iii) Matters covered by legal professional privilege.
(4) The Federal Agency shall communicate its approval or otherwise within a period of four months from the date of the initial environmental examination impact assessment is filed complete in all respects in accordance with the prescribed procedure, failing which the initial environmental examination or, as the case may be, the environmental impact assessm ent shall be deemed to have been approved, to the extent to which it does not contravene the provisions of this Act and the rules and regulations made thereunder.
(5) Subject to subsection (4) the Federal Government may in a particular case extend the aforementioned period of four months if the nature of the project so warrants.
(6) The Provisions of subsections (1), (2), (3), (4) and (5) shall apply to such categories of projects and in such manner as may be prescribed.
(7) The Federal Agency shall maintain separate registers for initial environmental examination and environmental impact assessm ent projects, which shall contain brief particulars of each project and a summary of decisions taken thereon, and which shall be open to inspection by the public at all reasonable hours and the disclosure of information in such registers shall be subject to the restrictions specified in subsection (3)."
The language of Section 12 (ibia) is explicit in sense and manifests its importance in reference to the ongoing residential & commercial construction and developmental projects in Murree. Section 12 makes it incumbent that no project shall commence unless approval of initial environmental examination or environmental impact assessm ent is not obtained from the Environmental Protection Agency. Unfortunately, the projects of various magnitude are being carried out not only in Murree but in whole of the Punjab province without adhering to the mandatory requirement of Section 12 (ibia) and indeed the foregoing provision has become nothing but a dead statutory letter. The protection of environment is undoubtedly a daunting task and can only be carried out by relentless efforts and devotion of public functionaries with active participation of general public. For ensuring better environment, the masses are required to be educated so as to leave an ecofriendly Pakistan for the coming generations. The lack of will to implement Section 12 is not restricted to Murree only, rather it reflects from whole of the Punjab in particular and remaining part of the country in general. The artificial growth of real estate sector and a facilitative approach of the public functionaries in this regard is badly damaging our agricultural sector leaving a wheat and cotton export country like Pakistan to import the products for fulfilling its needs. The mega housing projects are built on highly fertile agricultural lands, without adhering to the mandatory requirement of EIA postulated in Section 12 of PEP Act, 1997. Similarly, from the reports of various agencies mentioned above clearly depict that Murree has become vulnerable to calamities like land sliding and earthquakes etc but still no steps towards the implementation of Section 12 is being taken. In the year 2012, PEP Act, 1997 was subjected to certain amendments and by enhancing punishments/penalties for the violation of its provisions and was made applicable in the Punjab with a title Punjab Environmental Protection Act, 1997 (Amended) 2012. It is probably the crucial time for us to give a practical effect to Section 12, else the nation will be starving due to food shortage. In an Article titled as Environmental Impact Assessment, its Recognition and Implementation in Pakistan written by Rehan Rauf published in PLJ 2011 Magazine 384, following suggestions were given:-
(i) There should be development of reliable and systematically obtained data basis of ecological and socio- economic environment with the coordination of Universities and departments of related disciplines.
(ii) Implementing agencies should be allowed to utilize the funds on environmental improvement, generated at the local level on account of violating environmental regulations.
(iii) Environmental Protection Agency should have the necessary powers to disburse the fee received from IEE/EIA reports to be spent on the review process.
(iv) There is need to develop mechanism for effective enforcement and necessary infrastructure.
(v) EPAs should strengthen public hearing system through promotion of volunteerism like environmental clubs or groups comprising of experienced people from different sectors.
(vi) There should be capacity building of various important sectors of the society for their effective and objective involvement in the EIA process either through media persons, through training or NGOs through training and networking.
(vii) There is need to develop judicial activism for environment as public interest litigation.
(viii) There should be implementation of monitoring and evaluation by the provincial EPA at local government level under the existing devolved system.
(ix) A clear mechanism of coordination between planning and development departments and EPA for environmental screening of public sector need to be developed.
(x) The human resources with capacity to review the reports and assess the quality of EIA is lacking and process of EIA review is not fully streamlined and lacks checks and balances thus a penal of experts for EIA review is needed along with a system for compensating them.
(xi) The provincial government should establish programs, seminars, conferences to raise the level of awareness and understanding of the public."
This Court has also taken note of the fact that according to Section 15 of the PEP Act, 1997 a restriction is imposed upon operating a motor vehicle causing air and noise pollution in excess of National Environmental Quality Standards and certain measures are provided in this regard but again the appropriate steps are still awaited. Our roads are jampacked with vehicles emitting toxic smoke from their exhausts and causing air pollution to which Murree is no exception. During pendency of these petitions, a report was also requisitioned from Sardar Asif Ali Sial, a Senior Environmental Lawyer and International Climate Jurist, who is alumnus of UC Barkeley USA. He submitted a detailed report from which following points can be extracted:-
(i) Petrol based vehicles release carbon dioxide, carbon monoxide and oxides of nitrogen from their exhausts, the diesel vehicles run on heavy fuel and have a huge percentage of sulfur oxides which produce significant quantities of sulfur dioxide as well as carbon dioxide.
(ii) The release of toxic gases from the vehicles leads to excessive air pollution having drastic effects on the environment. These gases increase the concentration of green house gasses into the atmosphere leading to gradual rise in temperature. Rampant deforestation due to urbanization coupled with degrading air quality is severely affecting Murree. Punjab Environmental Quality Standards for industrial gaseous emissions and motor vehicle exhausts does not have standards for carbon dioxide emissions as it is not considered the pollutant in the atmosphere, though the concentration of carbon dioxide in the atmosphere determines the global warming level. In the existence of Pakistan Climate Change Act, 2017 and National Climate Change Policy, 2021 it is the legal obligation of the Federal Government to coordinate with the provinces for the legislation of provincial climate change laws regulating the emissions of toxic gasses and pollution, in the light of Paris Agreement executed in 2015.
(iii) The flood that recently came was due to the emissions being released into air with the contribution of toxic gasses making the atmosphere hotter than its usual temperature, leading to melting of glaciers having drastic effects on the environment.
(iv) The plastic garbage is extremely dangerous for the marine wildlife such sea birds, whales, fishes and turtles.
Scientists have found out that plastic, when enters oceans or rivers, releases chemicals, such as bisphenol and substances known as polystyrene-based oligomers. The afore-mentioned toxic substances disrupts the hormonal system of animals and aquatic creatures. The plastic is non-bio-degradable and releases toxins which badly affects the air and is threat to environment.
14. Another aspect calling for the indulgence of this Court pertains to the hotel industry in Murree. According to the data submitted before this Court by the Hotel Association approximately 215 hotels with capacity to accommodate 24248 tourists are providing services in Murree with parking space of about 2500 vehicles only. It is informed on behalf of District Administration that in addition to afore-mentioned 215-hotels, lodging facilities are being provided also by the guest houses and no data is available about their exact number. The business of hoteling is being governed under the Punjab Hotels and Restaurants Act, 1976 (hereinafter referred as the "Act of 1976"). In its Section 2 (g), the term hotel is defined as under:- "Hotel" means a lodging, or boarding and lodging, establishment with a minimum of ten lettable bed rooms, provided for tourists on monetary consideration, which confirms to any of the prescribed minimum criteria, but does not include:-
(i) A home or hostel which is exclusively or mainly used for aged or invalid persons or students and is run by or under the control of a charitable or educational institution; or
(ii) Any rest house, hostel or circuit house exclusively meant for visiting government officials or officials of other organizations, though run on a commercial basis." (emphasis provided)
It can be gathered from above that the definition of hotels given in the Act of 1976 excludes official rest houses, hostels and private buildings let out to tourists. The afore-mentioned definition also ousts the guest houses from the ambit of restrictions imposed through the Act of 1976 as most of them are having less than 10-rooms, thus are not covered in the definition of hotels. It is essential to mention here that the Act of 1976 was enacted to provide measures for controlling and regulating the standards of services and amenities for tourists in hotels as well as in the restaurants as is evident from its preamble. For regulating and monitoring the hotel industry in Punjab, certain officials like Controller, Deputy Controller, Assistant Controller and Inspectors are appointed under Section 3 and besides that an Advisory Committee is also established through necessary implication of Section 4. For maintaining the standards of the hotels, it is mandatory under Section 6 to make classification of hotels as one star, two star, three star, four star and five star. Under Sections 10 and 11 of the Act of 1976, the Controller is empowered to fix fair rates of these hotels and also to limit the number of persons to be accommodated in their rooms. It is essentially required under Section 13 for a hotel to display at conspicuous place the fair rates of the rooms and maximum number of guests to be accommodated therein. Likewise, for the prior reservation of room in a hotel, a mechanism is provided in Section 14. Under Section 8 (a) the Controller can order for sealing of a hotel or restaurant if found to be operating in violation of the Act of 1976 and for such delinquencies, penalties are also provided in its Section 22. From the reports requisitioned during the pendency of these petitions, it transpired that for the implementation of the Act of 1976, no proper steps are being taken. Even after the lapse of 46-years since the enactment of the Act of 1976, the hotels in Murree are not categorized in terms of Section 6. It was informed that there is no regulation in field to monitor the business of guest houses and as a necessary consequence no data about their exact number is available. It was admitted that innumerable guest houses with no parking space are operating in Murree. These hotels provide rooms to walk-in customers and also accommodate tourists through advance booking. In the peak seasons and on holidays there is no mechanism in field to bound down the hotels and guest houses for providing accommodation to the tourists in accordance with their lodging capacity and parking facility which multiplies the problems in Murree. There is a need to bring hotel industry within the framework of Act of 1976 and further to bound them for enhancing not only their quality of service but also the parking space. Likewise, it appears to be essential for maintaining a centralized booking data, to be monitored by the Controller, for keeping an eye over surplus booking method.
15. For preserving the natural beauty and ecosystem of the area, the Government of the Punjab through notification No.SOFT (EXT)XII-2/2009 dated 15.09.2009 declared Tehsil Murree, Kotli Sattian and Kahuta as national park with all the restrictions vested under Section 17 of the Punjab Wildlife (Protection, Preservation and Conservation) and Management Amended Act, 2007. Through this notification following restrictions were imposed:-
(a) Hunting, shooting, trapping, killing or capturing of any wild animal in a National Park or within one a half mile radius of its boundary.
(b) Firing any firearm or doing any other act which may disturb any animal or bird or doing any other act which interferes with the breeding places.
(c) Felling, tapping burning or in any way damaging or destroying, taking, collection or removing any plant or tree there from.
(d) Clearing or breaking up any land for cultivation or mining purpose.
(e) Polluting water following in and through the National park."
Over the years, the afore-mentioned notification lost its significance and attained the status of a simple paper to be kept in the archives as all the prohibited activities are being carried out with impunity. The landscaping of the area is being changed, more importantly in Kotli Sattian and Kahuta, for raising residential and commercial structures but under the disguise of agricultural use which otherwise is prohibited through afore-mentioned notification. It is observed with utmost pain that neither the general public nor the government officials have any regard to the importance of preserving the environment and ecosystem. It is distressing to express that corruption and indifference towards fulfilling obligations in our system has crossed all bounds to which the Murree has fallen victim. The lack of far-sightedness in calculating the apprehended danger of frail ecosystem has made us vulnerable to many threats including the environmental disaster, food shortage and water scarcity. We are draining our natural resources without realizing the imminent threats to be ensued in the near future. I am mindful of the fact that the lis before me only pertains to the affairs of Murree but still after examining the record I feel compelled to embark upon another aspect of apprehended water crisis. Inexorably, at macro level construction of water reservoirs are inevitable to meet our future needs but at micro level, the individuals are to be sensitized for conscientious use of water. The extravagant wastage of water is commonly noticeable in domestic and commercial use without having regard to the ever-decreasing under-ground water table. While walking down in our streets we can see water coming out from the residential buildings due to excessive use in lawns and for washing the drive-ways but still none is there to regulate such practice. The WASA and Water Boards of TMA are required to activate their respective wings to tame such consumers by imposing exemplary fines.
16. Over the years, different concepts developed in the World for managing social affairs and one out of them is Corporate Social Responsibility. This concept is about the impact an organization makes on the society, the most important out of it is about the environment. An effective Corporate Social Responsibility Programme contributes in adding to the environmental upgradation through following means:-
(i) Reducing pollution, waste, natural resources consumption and emissions through its manufacturing process;
(ii) Recycling goods and material throughout its processes including promoting re-use practices within its customers;
(iii) Off setting negative impacts by replenishing natural resources or supporting causes that can help neutralize the company's impact. For example, a manufacturer who deforests trees may commit to planting the same amount or more;
(iv) Distributing goods consciously by choosing methods that have the least impact on emissions and pollution.
The concept of Corporate Social Responsibility, for preserving and uplifting the environment, is essentially required to be familiarized and implemented in our system. Even the concept can be utilized in Murree and Government of Punjab is required to explore the possibility of appointing a single or more companies for providing beverages in bottles or tetra packs and wrapped edibles through competitive process. Such companies, through a contract, can be made responsible for cleaning the area from the garbage of their own products and also for fresh plantation. Such practice on one hand will add in improving the environment and on other hand will generate revenue for the government which can further be spent for the socio-economic uplift of the residents.
17. The natural calamities occur and recur and though humans have no power to fight against them but still can mitigate their effects through wise approach and planned strategy. Instead of becoming the prisoners of mistakes committed in the past, this is better for us to be architect of an adoring future. Vividly, this is the time to take appropriate decisions for leaving a better country with strong ecosystem for our coming generations, else we will be left only to repent for the mistakes of our past. For achieving the objectives, not only the public functionaries are to realize their obligations but at the same time, an awareness of ecofriendly Pakistan is to be injected in the general public, more importantly, amongst the youth. We have to make every individual realize his importance for putting efforts in preserving the nature and its importance. For that matter, we have to work like artists in the orchestra, harmoniously to create a symphony which delights the ears. Only a team work, where each individual volunteers his humble bit for achieving the target, can save the decaying ecosystem of our country. While taking leave from the subject, I am compelled to borrow the words of ROBIN SHARMA from his book THE LEADER WHO HAD NO TITLE which were uttered by the protagonist to his novice and are quoted hereunder:- "In the theatre they say, 'No role is a small role.' Same applies in business, Blake. It's similar to the symphony metaphor. The only way any organization--and any human being, for that matter--will win in these times of revolutionary change will be to start operating under a revolutionary new model of leadership. And this model is all about creating an environment and culture where everyone needs to show leadership. Everyone needs to drive innovation. Everyone needs to inspire their teammates. Everyone needs to embrace change. Everyone needs to take responsibility for results. Everyone needs to be positive. Everyone needs to become devoted to expressing their absolute best. And once they do, the organization not only will adapt beautifully to the changing conditions, it will actually lead within its field."
18. This Court took pain of highlighting various defects discernable from the improper working of different departments, affecting adversely the ecosystem of Murree in particular and the province in general. It is expected that the Government of Punjab will take immediate steps for addressing the problems and deficiencies highlighted above. In addition to the observations given in the preceding paras, the instant petitions are disposed of in the following terms:-
(i) The event which led to the loss of 22-lives since does not give rise to any criminal aspect, thus the registration of case is not warranted. Still, the Government of Punjab cannot be absolved from its responsibility and mishandling of affairs in the region by various departments which can be described as one of the causes behind the tragedy. In such circumstances, the Government of Punjab who has paid Rs.800,000/- (rupees eight lac only) to the families of each victim is directed to enhance the amount appropriately.
(ii) The NDMA and PDMA are directed to devise proper plan for achieving the object of NDM Act 2010 by making plans of Disaster Management in areas vulnerable to calamities. They are also directed to organize specialized training programmes for officials, voluntary rescue workers and members of communities. The representatives of the Metrological Department be included in the structure of DDMA.
(iii) Punjab Highway Department is also directed to hire the services of persons having competency and skills to handle equipment including the snow blowers. They are further directed to utilize their own resources for sprinkling salt on the roads instead of outsourcing it to the private contractors as it was being done previously. It is further directed that for effective management a committee headed by Commissioner Rawalpindi be formed which can pool all machinery/equipment and man-power of civil and armed formations for proper utilization in snow season.
(iv) The Government of Punjab is also directed to ensure the implementation of construction policy in Murree and further to demolish the illegal structures after giving notice to their respective owners and providing them an opportunity of hearing in accordance with law. It is further directed that already existing building by-laws of Murree be replaced so as to bring them in conformity with Environmental Protection measures and preferably a restriction be imposed that in future at least forty percent of the plot be left vacant and construction be allowed only on the sixty percent of the plot. The Government of Punjab is further directed to promote the construction of prefab homes in Murree region which besides being cost effective and environment friendly can also be built without mountain cutting and excavation.
(v) The Government of Punjab is also directed to consider the construction of Parking Plazas in the outskirts of Murree and vehicles be permitted to enter the town with some restrictions and limitations, preferably by charging appropriate tourism fee through proper receipts to be collected by Municipal Committee and the revenue so generated be spent in the same area. For facilitating the tourists to reach the town of Murree from the Parking Plaza, neat and clean public transport be arranged. The motorists be restrained from parking their vehicles on both sides of the roads. The parking of vehicles be allowed only on one side of the road that too after paying parking fee, which appears to be reasonable to the concerned authority.
(vi) To manage the traffic inflow in the Murree, a Joint Coordination Committee comprising upon representatives of Galiyat Development Authority, Islamabad Capital Territory and Administration of Murree be established empowering them to take decisions for the closure of roads in snow season, if the circumstances so warrant.
Murree Administration is directed to obtain FM radio frequency for proper guidance of tourists in respect of available parking spaces, hotel bookings and on ground load of visitors etc. The steps in this regard be taken in consultation with business community of Murree so as to save them from financial strangulation.
(vii) The Government of Punjab is further directed to add topics pertaining to traffic discipline, cleanliness and environment in the educational curriculum at least upto intermediate level so as to inject discipline and generate importance of ecofriendly environment amongst the coming generation.
(viii) The Punjab Environmental Protection Agency is also directed to give a practical effect to the requirement of Environmental Impact Assessment and examination in every project. Likewise, the Agency is further directed to control emissions of toxic gasses from vehicles and industrial units throughout the province of Punjab.
(ix) Murree Administration is directed to impose complete ban upon the use of plastic bags in the city and to clean all the water channels leading to Rawalpindi-Islamabad. For improving the sewerage system and for proper waste disposal, immediate steps be taken. While doing so, companies and manufacturers be persuaded to contribute in the environment in accordance with the concept of Corporate Social Responsibilities. Likewise, water treatment plants be immediately installed at the water channels leading to Simly Dam and Rawal Dam. At the same time, the Capital Development Authority be persuaded rigorously to install water treatment plants at the water channels, stemming out from its territory, leading to the afore-mentioned water reservoirs.
(x) Punjab Wildlife Department and Forest Department be properly equipped with sufficient manpower for the preservation of forests and conservation of wildlife. The laws to deal with delinquencies of forest theft and poachers be re-visited by providing strict punishments to the violators. Immediate steps be taken for the removal of encroachments and illegal occupation of forest lands. Possibility of providing LPG to the residents of Murree on subsidized rates as alternate source of energy be looked into. The subordinate courts in the province of Punjab are directed to put the cases registered on the complaints of afore-mentioned two Departments at fast track and to decide them expeditiously.
(xi) NHA is also directed to protect every single inch of its land and to proceed against the encroachers in accordance with law for the restoration of its possession.
(xii) A tree plantation campaign be launched in the province during upcoming season and plantation be made which is suitable for the conservation of the birds. The Government of Punjab is directed to ponder upon the possibility of introducing tenure posts in Wildlife and Forest Departments for proper implementation of policies by making respective officers responsible in this regard. The residents of houses constructed on land not less than 10-marlas be persuaded to plant at least one tree in their houses, preferably the one suitable for the nesting.
(xiii) The D.G. Anti-Corruption Punjab is also directed to constitute a team for examining the construction affairs of Murree and Kotli Sattian and if any criminal misdeed is found divulging therefrom, an appropriate action be taken. Likewise, D.G. FIA is also directed to look into the affairs of NHA which resulted in unchecked encroachments upon the State land and to proceed through the registration of FIRs, if legally warranted.
(xiv) The notification No.SOFT (EXT)XII-2/2009 dated 15.09.2009 whereby Murree and Kotli Sattian was declared as National Park Area be given practical effect by taking immediate steps.
(xv) The construction of a bypass road leading to Galiyat be considered for decreasing traffic stress on Kuldana crossing.
(xvi) The data of all the hotels, guest houses, apartments and residential buildings used for commercial purposes be collected and they be regularized through centralized software/link to monitor their working/business through proper legislation. At the same time, the provisions of Punjab Hotels and Restaurants Act, 1976 be properly implemented.
(xvii) The Government of Punjab is still at liberty to look into the causes which led to the tragic incident of 7th January, 2022 and if delinquency of any official surfaces on record, to proceed against him.
(xviii) The Federal Government is also directed to draw an impeccable system of weather forecast through which the concerned departments be timely intimated. The failure to impart timely weather forecast to appropriate departments be probed and actions be taken against officials of Metrological Department and PDMA/NDMA by appropriate governments.
(xix) The Tourism Department, Government of Punjab is also directed to develop properly more tourist resorts at various places but while taking precautions to preserve the ecosystem.
19. Office is directed to transmit the copy of this judgment to the relevant departments for its proper implementation. The concerned departments shall submit reports with regard to the steps taken by them towards the implementation of this judgment within a period of three months from the date of receipt of its certified copy.