1. JUDGMENT, Bilawal Ali Zardari is the son-of former. Prime Minister of Pakistan Mohtarama Benazir Bhutto. He has filed this suit through her mother as next friend for declaration and injunction along with an application under 04rder 39, ,Rules.1 and 2, C.P.C. Praying for interim -injunction restraining all defendants collectively and individually from raising construction of multi-storeyed buildings on Plot No.COM.2/A, Block-III of K.D.A. Scheme No.5, Karachi hereinafter called the "disputed property till the disposal of the suit).
2. The case of the plaintiff is that he is a minor aged about 3 years and is an owner of two residential plots bearing No,D-.29 and D-30, Block-III, K.D.A. Scheme No.5, Clifton, Kehkashan, Karachi and the units constructed thereon, commonly known as "Bilawal House". He acquired the ownership of the first named plot on 30-4-1988 from one Abdul Aziz and the second named plot . Was gifted away to him by his mother Molitarma Benazir Bhutto on 12-Z-1987. Defendant No.3 namely M/s. Quality Construction (Pvt.) Ltd., is a private limited company and deals in the construction of high rise buildings and has launched its project in the name and style of "Coastal Pride" by raising construction of a high rise building on the said 'disputed property'. This 'disputed property' is very close to the house of the plaintiff. A huge sum of money was being spent towards the purchase of two plots on which it was built and on construction thereon. It was averred that the area in which the house is situated was reserved for residential purposes by defendants Nos.1 and 2, namely, M/s. Karachi Development Authority (hereinafter called 'YDA.') and Karachi Building Control Authority (hereinafter called "K.B.C.A.") respectively and was to be free from congested traffic flow, noise and nuisance with amenities of 'water and sewerage lines and of telephone and electricity services, having peace and tranquillity all around.
3. It was averred that the permission to raise a multistorey building on the 'disputed property' is void ab initio, ultra vires, without lawful authority and illegal. Firstly, it is violative of the leasehold rights of the plaintiff and against the contractual and legal obligations of K.D.A. And K.B.C.A. Inasmuch as the plaintiffs plot being situated in residential vicinity, no allotment of or construction on a commercial plot could be made without first a notice beinggiven to the plaintiff inviting objections from him.
4. Secondly KDA. And K.B.CA:4 are incompetent and unauthorised to grant any approval for raising multistorey building unless no objection for raising multistorey building is first granted by K.M.C., K.E.S.C., KWSB etc. And they revise and amend their original master lay-out plan of the area and develop the same in accordance with the original master layout plan of 1973.Thirdly there is no approval of the present scheme from' the Ministry of Housing and Town Planning, Government of Sindh. In any case the permission accorded to the defendant No.3 will not entitle him to act- in breach of third parties rights or cause damages to them. The plaintiff accordingly sent a legal notice dated 8-7-1991 under section 20-A of Sindh Buildings Control Ordinance, 1979 to K.D.,A. And K.B.C.A. Calling upon them to reject the plan submitted by defendant No.3 but the same was of no avail. It is further averred that the plaintiffs mother Ms. Benazir Bhutto being the Leader of life Opposition is exposed to attack on her life and there is all the more reason that she may be provided complete security and privacy which otherwise are enshrined in the Constitution of Islamic Republic of Pakistan.
5. Defendants Nos.1, 2 and 3 filed . Their 'counter-affidavits opposing this application .In their joint counter-affidavit KDA. And K.B.C.A. It is submitted that the construction of building on the 'disputed property' shall not affect the plaintiff for the reason that affect is 40 feet wide road in between the house of the plaintiff and the 'disputed property' of the defendant No3. Further the 'disputed property' was allotted in 1976 and its plan for 5-storey building was duly approved. No objection certificate was also obtained. The plaintiff was fully aware of the existence of the 'disputed property' and its commercial nature from the very beginning of its allotment in the year 1976.
6. Thereafter it changed hands till it was owned by the defendant No.3 vide transfer order, dated 1-6- 1987 and Indenture of lease for 99 years dated 10-11-1988 granted by K.D.A. It was also pointed out that Kahkashan Clifton Scheme namely KDA. Scheme No.5 was sanctioned by the Government of Pakistan as far back as 1964. In 1972 the President of Pakistan inter alia desired that the whole concept of the Clifton Scheme should be revised with the basic objectives to convert this area into an ideal complex with more emphasis on recreation" aspects. The revised scheme was finally approved by the then President of Pakistan on 5-12-1972 whereby the leaseable residential area was reduced from 40 per cent to 27 per cent with 64.3 per cent of the area reserved for open places, recretional facilities, commercial purposes, education and public buildings and religious institutions. In this scheme high-rise buildings were also provided. This scheme was duly notified in the Gazette and sanctioned by the Government. The layout plain of the scheme was also published enabling public to raise any objection whatsoever. The plaintiff had full knowledge that the 'disputed property' was a commercial plot for multistorey and commercial building being owned by defendant No.3 vide transfer order dated 1-&1987 and Indenture Deed dated 10-11-1988. The plaintiff is stopped from raising any of the objections now raised in the suit which are barred by acquiescence, waiver and/or estoppel. Besides in between the plaintiffs house. And the 'disputed property' there is a 40 feet wide road which the plaintiff has encroached upon, reducing its width to 24/25 feet only by raising fort like walls of the height of 30 feet. Now that the defendant No.3 has started the construction, the entire foundation work having 480 feet being completed, the roof of the basement being poured and completed and the ground floor construction being also in progress, any stoppage in the momentum of the construction would cause injury of irreparable dimensions to them, which includes involvement of enormous amount on account of their commitment to third parties.
7. Mr. Asif Ali Zardari father and natural guardian of the plaintiff has filed affidavit-in-rejoinder alleging that although the land originally allotted to one Irshad Rao had 1,000 square yards, possession of additional land of 1,888.87 totaling 2,888.7 square yards was given dishonestly and in collusion by KDA. To Defendant No.3's successor in clear violation of K.D.A. Regulations. In support he referred to and relied upon the record of KDA. Which has not been disputed by any of the defendants. What, however, was maintained by the defendant No.3 was that when the 'disputed property' was actually measured, its area turned out to be 2,888.8 square yards. Further now that the lease-deed of the 'disputed property, has been registered and the defendant No.3 is a bona fide purchaser thereof for value with notice to inviting objections published in the Dailies Dawn and Jang, Karachi it will be too late in the day for the plaintiff to come out with the so-called objection and allege malice against the defendants. It was reiterated that the condition for sale by auction of commercial plot is not mandatory but directory. However, the Chief Minister had discretion to transfer a commercial plot through private negotiation which he did as far back as 1976. It was pointed out that defendant No.3 has obtained no objections permissions from K.E.S.C., Sui Northern Gas, Water and Sewerage Board etc. Apart from the duly approved plan of the building. Defendant No.3 also enclosed photographs of other high rise buildings and commercial areas in close vicinity of the plaintiffs house.
8. There is no controversy that the 'disputed property' comprises of 2,888.87 Sq. Yards of land in respect of which a lease for 99 years was granted by K.D.A. To Defendant No.3 although originally a plot of 1,000 Sq. Yards. Was allotted to the first allottee. Similarly there is no dispute that the allotment of 1,000 Sq. Yds. Of land was made by the then Chief Minister of Sindh through private negotiations and not by public auction. What, however, was contended by the defendants was that as early as 1972, the then President of Pakistan, Mr. Zulfiqar Ali Bhutto gave specific directions that "no effort should be spared for ensuring recreational facilities for the people of Karachi". These directions are found in the letter dated 27-2-1973 (Annexure) from Mr. Jam Sadiq Ali, the then Minister for Housing and Town Planning, Government of Sindh. Pursuant to these directions revised plan of Khekashan K.D.A. Scheme No.V Clifton was approved and published on 6-12-1972. The said revised plan inter alia provided conversion of the plots, scheme for multi storeyed buildings and stores, shops, banks, offices and Restaurant on the ground floor. Rule 10(l) of Disposal of Land 1971 providing disposal of all commercial plots through unrestricted public auction was also relaxed by addition of Rule 50 through notification dated 21-11-1973 placing at the disposal of the Chief Minister all the commercial plots of land. In exercise of these powers the said plot was allotted to the said Irshad Rao one of the predecessors of the defendant No.3. The plaintiff cannot question the transfer of additional 1,888.87 Sq. Yds. Of land, as firstly K.D.A. Was empowered to do it and secondly a lease-deed in respect of the 'disputed property' has been registered and no relief of its cancellation has been prayed for by the plaintiff. Without going into the question of validity of the lease-deed, it may be observed here that there is no explanation for grant of lease for 2,888.87 Sq.
9. Yds. Of land of the 'disputed property' instead of 1000 Sq. Yds. Allotted to the original allottee and is a pointer to grave irregularities committed by K.D.A. As admitted by it in its office notes dated 25-8- 1986 and 27-8-1986 containing further instructions that "the matter may be thrashed out in general body". But admittedly the matter was never referred to the general body. Instead a lease-deed was registered subsequently by K.D.A. In favour of the defendant No.3.
10. In support of his contentions Mr. Yahva Bakhtiar, first referred to Article 14 of the Constitution of the Islamic Republic of Pakistan which envisages safeguard toright of privacy which runs as follows:--- "Article 14(l) The dignity of man and, subject to law, the privacy. Of home, shall be inviolable.
(2) ...................................................................
11. He then referred to Shariat Act, 1991, which envisages supremacy of Shariat and guarantees among others protection to owners of property.
12. Next he referred to F/I being the approval of the building plan relating to the disputed property which under clause 9 states that "the right of easement is a matter between the concerned parties with which the authority has no concern."
13. There was, according to him, clear violation of the rules and regulations relating to disposal of lands inasmuch as the "disputed property" had to be disposed of by public auction under Rule 10 of Diposal of Land Rules, 1971 of K.D.A. Instead it was allotted secretly and dishonestly by. The authorities and although initially the plot allotted was of 1,000 Sq. Yds. To Irshad Rao, possession of 2,888.87 Sq. Y6. Of land i.e. 'disputed property' was handed over to his successor-in-interest, Anwar Illahi who is the predecessor of defendant No.3. In the, circumstances it was incumbent upon the Master Plan and Environmental Control Department under Regulation -33 of the Karachi Building and Town Planning Regulations to "direct the concerned authority to take action under sections 30 .And 31 with respect to any violation and may itself take such action with respect to the violation if the concerned authority .Fails to take action with a reasonable time". This was not done. Not only this K.D.A. And K.B.C.A. In collusion with the defendant' No.3 allowed them to construct a multi storeyed building very close to the plaintiff's house, completely overlooking that the construction of a multistoried building will encroach upon the right of privacy of the plaintiff which has assumed much greater significance, after coming into force of Shariat Act, 1991. In doing so, the authorities failed to take into consideration the Social and Cultural background of the plaintiff and the concept of privacy practised as custom in the area. In support reliance was placed on Haji Fazle Raziq v. S. Zaman Shah and others PLD 1980 SC 193 in which it was held: "Further before such custom can be recognized it will be necessary to investigate whether it has the essential attributes of a custom, namely, that it must be immemorial, it must be reasonable, it must have continued without interruption since its immemorial origin, and it must be certain in respect of its nature generally as well in respect of the locality -where. It is alleged to obtainthe person whom it is alleged to affect."
14. Next reliance was placed on Akhtar Harnid Ghori and 4 others v Saima Estate Developers and another 1989 CLC 2173, in which it was held "however, in the context of the present case, it may be stated that there is nothing in law which says that once a plan for construction has been approved, the easement rights of a person are extinguished along with it. Neither, the Sindh Buildings Control Ordinance, 1979, nor any regulation made thereunder envisage a scheme usurping the rights of easement or of privacy of a person under the garb of approved plan or no objection letter. These easement rights are not subservient to the Building Control Laws and exist independently irrespective of the approved plan or not." And further "this contention is patently erroneous, as the right of privacy exists in the most modern and even Permissive Societies of the West and is the very basis of a decent living. It would not be out of place to mention that Article 14(l) of the Constitution of the Islamic Republic of Pakistan envisages that "the dignity of man and subject to law the privacy of home, shall be inviolable."
15. Learned counsel for the defendant No.3 Mr. Sharifuddin Pirzada, first of all, pointed out that the case of the plaintiff falls under section 18 of the Easements Act read with Illustration B stating as follows:
18. An easement may be acquired in virtue of a local custom. Such easements are called customary easements."
16. Illustration-B.
17. "By the custom of a certain town no owner or occupier of a house can open a new window therein so as substantially to invade his neighbour's privacy. A builds a house in the town near B's house.
18. A---s thereupon acquires an easement that B shall not open new windows in his house so as to command a view of the portions of A's house which are ordinarily excluded from observations, and B acquires a like easement with respect to A's house."
19. Learned counsel in the context, referred to a full Court judgment of Allahabad High Court in Gocal Parshad v. Radho, ILR 1988 (Vol-10) Allahabad 358, in which right of privacy, under certain conditions was held to exist in northern western pr ' evinces which gave right to owner to a cause of action. It was further held that "under conditions of life as existing in those provinces the custom that envisaged to privacy is actionable and is far from being anreasonable custom and the custom itself is so well recognized". According to learned counsel no such custom is prevalent in the city of Karachi as many-storeyed buildings have been in existence here for the past 70 or 80 years and presently hundreds of multistoried buildings are found every where .Next deference was made to Haji Fazl-i-Razik v. Syed Zaman Shah and others PLD 1980 SC 193, wherein it was held that right of privacy as customary right must be pleaded specifically and that the burden lies on the person claiming such right. To prove its existence. The plaintiff has failed to establish the existence of custom as there isnothing to show that privacy of home is immemorial, reasonable, continued without interruption and certain, in respect of the locality or the person. There is however ample evidence to the contrary. Further reliance was placed by the learned counsel on Mst. Gulzar Begunt v. SA. Muzaffar 1983 CLC 1471 (Karachi); Muhammad Munir v. Ahmad Ally Memon and 2 others PLD 1982 Karachi 425; Khatumal and 3 others v. Sitaldas and another 1984 CLC 3244; R.G. Sherwani Co- operative Housing Societies Limited v. R.G. Siwani PLD 1983 Kar. 11 and Pir Agha Muhammad H. Jan v.
20. Ellias Haji Wahid Dina AIR 1948 Sindh 36.
21. It was next argued that Article 14 of the Constitution is only enforceable against the Federal or Provincial Government who have not been made parties to the suit and will not extend- to a dispute between citizens and thus not enforceable as a fundamental right. Similarly the Shariat Act, 1991 is in the nature of sub-constitutional legislation what can however be urged by the plaintiff is safeguard against unauthorised entry into a house. In this regard he first referred to Surat-un-Noor XXIV of Holy Ouran (Vol. 111) from Tafsirul Ouran by Moulana Abdul Majid Daryabadi the translation of relevant portion whereof with commentary of the author is as follows: XXIV. Surat-un-Nur (219)
22. SECTION 4 "27.0 you who believe! Do not enter houses other than your own until you have asked leave and invoked peace on their inmates. That is better for you; haply you may take heed.
23. "28.That if you find no one therein, do not enter until leave has been given you. And if you are told, go back, then go back. It is cleaner for you and Allah is knower of what you do."
24. Commentary "The English saying that an Englishments home is his castle, suggests a certain amount of exclusiveness and defiance. The Muslim principle of asking respecting permission and exchanging salutations ensures privacy without exclusiveness, and friendliness without undue familiarity.
25. Islam thus regards sudden and abrupt entry into another house or apartment as an act of incivility and indecorum since the person may be surprised in an indecent action or posture or may have something discovered which he would have liked to conceal."
26. Next he referred to the Islamic Criminal Justice System by M. Cherif Bassiouni, Oceana Publications, Inc., London, Rome, New York, extracts from which may also be advantageously reproduced as under:-- "Thus, Islamic Law has established rules which meet society's need to protect itself from crime and ensure the right, of individuals whom God has honoured and favoured as His creation. In so doing Islamic Law restrains those who may violate theright to privacy, in particular those officials who could unreasonably search the dwellings of those suspected of involvement in criminal conduct.
27. Consequently individuals, their dwellings, correspondence and property cannot be searched save according to certain requirements and restrictions provided by law. As to the inviolability of one's dwelling, the Quran state; O ye who believe; Enter not houses other than your own without first announcing your presence and invoking peace upon the people therein. That is better for you that you may be heedful ... And if you find no one therein, still enter. Not until permission have been given, and if it be said unto you: 'Go away, for it is purer for you.' Allah knoweth what. You do.
28. Thus, according to this text, entry into the dwelling is prohibited unless by consent of the owner. This prohibition is not limited to places actually occupied by the owner, it applies also to the owner's property during his absence. This is explicit in the verse cited above which precludes entry without "permission", and requires consent. The Sunna also is in accord, as seen from the Prophet---s saying: Three things are not allowed to any man. No man who leads a group in prayer should invoke blessing solely upon himself, for if he does, he will have betrayed them. A man should not look inside a house unless he receives permission. If he does so, he would have entered, and a man should not say his prayers when he is congested unless he is relieved."
29. The Prophet also states figuratively so as to illustrate the right to be free from intrusion into one's privacy that: If a person looks at you without your permission and you pelt him with a stone and put out his eye no guilt will be on you.
30. This right, also extends to one's clothing in that no one has the right to inspect the clothing of another person to determine what may be concealed therein without reason and without permission. It thereby embodies the proscription against unreasonable searches of the person. The inviolability of the dwelling is linked with the inviolability of the person, for the latter derives from the former as a manifestation of individual freedom. It is meaningless to protect the house without protecting the owner as well."
31. The inviolability of the dwelling is not based on a purely religious foundation; it is, also partly inspired by the social policy of protecting individual security and freedom in a manner which does not interfere with the right and duty of the State to take necessary action to investigate crimes.
32. Thus under Islamic Law the inviolability of the dwelling is absolute but is subject to certain exceptions necessitated to maintain social order and safety."
33. God says: "And spy not." This is because dwellings and individuals are immune (from infringement) unless the offence is apparent, and they should not be violated or encroached. Thus Sunna is also explicit on this issue.
34. Islam from its very beginning has observed this rule as illustrated by the following incident. Omar Ibn al Khattab once found a group of men drinking wine and burning shacks. He said, "I have prevented you from drinking, but you have drunk. I have prohibited the burning of shacks, but you did." They said, "Prince of the faithful, God ordered you not to spy, but you spied. He ordered you not to enter without permission, but you did." Then Omar said, "These two to those two," and left without questioning them. Abd ul-Ralunan ibn Awf related another incident: Once at night I accompanied Omar on one of his wanderings at Medina. As we traveled we saw the light of a lamp. We went toward it. When we approached it, we found a locked door concealing some people noisily reveling. Omar took my hand and said., "Do you know whose home this is?"
35. I said I did not. He said "it is the home of Rabiaa ibn Khalef. They are drinking. What is to be done?" I said, "I see that we did what God prohibited. God forbids us to spy. "Omar returned and disregarded them."
36. In Islamic Jurisprudence by C.
6. Weeramantry, the notion of privacy is given in the following words: "THE NOTION OF PRIVACY: The Quran---senjoins, '0 ye who believe, avoid suspicion ... .. And spy not on each other, nor speak in of each other behind their backs" (XLIX:12)
37. Modern law is giving increasing recognition to privacy as modern technology reveals new and powerful methods of denying this right. The common law was particularly slow to evolve a general concept of a right to privacy except in limited areas such as physical trespass and defamation.
38. Islamic Law has some striking passages on privacy: The Qur'an (XXIV:27, 28) is very specific on this matter. '0 ye who believe : Enter not houses other than your own without first announcing your presence and invoking peace upon the people therein and if you find no one therein, still enter not until permission hath been given The prohibition extends likewise to correspondence, for in the striking words of the Prophet, 'He who reads a letter of his another without his permission will read it in hell'
39. (Bassiouni 1982, page 69).
40. Modern technology is perfecting ways of violating privacy by external surveillance without actually committing physical trespass. Scanners, electronic surveillance, telephone tapping and other methods of eavesdropping make this a very modern problem. The Islamic texts cover these situations as well for it is not only physical entry that is prohibited. 'A man should not look inside a house unless he receives permission. If he does so he would have entered(For references see Bassiouni, 1982 P.68). There is even a hadith to the effect that if a person looks at one without one's permission he is deserving of condign punishment the implication being that unauthorised non-- physical intrusions upon privacy are forbidden."
41. I need not dilate upon. All the aspects of the case as presently I am dealing with the plaintiff's application for interim injunction under Order 39, Rules I and 2, C.P.C. Be that as it may be, it is to be seen whether it is a case of inviolability of the dwelling house or of its being linked up with the inviolability of the person of the plaintiff and other residents there including Muhtarma Benazir Bhutto. The case proceeds not from the apprehension of unauthorised entry into the plaintiff's house by the defendant N63 and others, rather, the fear revolves round the violation of privacy, which would be disturbed upon construction of multistorey building on the 'disputed property' and of adversely affecting the amenities such as electric, water and gas supply as are available in the area. The argument advanced by the learned counsel for the defendant No.3 that the plaintiff is a minor and a male and there would be no violation of his right as to privacy by the construction of a multi storeyed building does not appeal to me tenable, firstly, even a minor and a male is entitled to right of privacy and secondly, the right of privacy cannot be restricted to the owner of house but will extend to other family members living there, in whose favour a cause of action may accrue as wen independently. His next argument that Mrs. Benazir Bhutto is not a pardahnasheen lady and her right of privacy is neither practicable nor feasible is also not tenable. Right of privacy is the very basis of decent living and cannot be denied to any one whosoever.
42. It is no more the bone of contention between the parties that the defendant No.3 has not obtained no objection certificates from authorities concerned for supplying water, electric and gas prior to the approval of the plan for the multi storeyed buildings after learned counsel for the defendant No3 made a categorical statement of having obtained them earlier in time.
43. The grievance of the plaintiff however remains is that K.D.A. And K.B.C.A. In breach of the plaintiffs leasehold rights and in violation of the principles of natural justice had converted the residential area, into a commercial area, of which no prior intimation was given to the plaintiff or residents .Of the area or the general public inviting objections to the proposed conversion. Further, the plaintiff's mother, Mrs. Benazir Bhutto, being the leader of the Opposition, is exposed to attack on her life which necessitated complete security and privacy. It may be stated here that the said scheme was finally approved by the then President of Pakistan on 5-12-1972, which was duly notified in the Gazette and the layout plan of the scheme was also published. However when Ms. Benazir Bhutto, the mother and next friend of the plaintiff purchased Plot No.D-30 on 27-10-1987 and gifted it away to the plaintiff, on 12-2-1988, and also when Plot No.D-29 was transferred by one Abdul Aziz to the plaintiff on 30-4-1988, the revised scheme of the area had already been in existence, for more than 15 years. Similarly, the 'disputed property' was initially allotted on 19-8-1976 to one Irshad Rao and its leasehold rights as a commercial plot were acquired by the defendant No.3, by a registered leasedeed dated 10-11-1988 from K.D.A. About three years before the institution of this suit. Although the plaintiff has relied upon is own leasehold rights, he has not produced lease in respect of any of the said two plots in order to show on what terms his said' two plots were granted by KDA. And how under them the rights of the plaintiff can be said to have been violated. What is placed on record by the plaintiff are the allotment letters relating to the said two plots. Nowhere the plaintiff has specifically pleaded the alleged privacy of home as 9 ,customary right' or has shown it as 'immemorial', reasonable and continued without interruption and certain in respect of the locality or the person'. Nevertheless, privacy of home, subject to law has acquired constitutional status and is an inviolate right under Article 14 of the Constitution of the Islamic Republic of Pakistan and must be zealously guarded by Courts of law. What further follows from the excerpts from- the Holy Quran, Sunnah and the Commentaries referred to above is that in a Muslim society the inviolability of a: dwelling house is essentially linked with the inviolability of the person, is absolute and even non-physical intrusion such as spying is forbidden. Although there is neither general nor specific allegation as to spying on Ms. Benazir Bhutto, the plaintiff has apprehended attack on her life. This apprehension is not unfounded, keeping in view the fact that she had been a former Prime Minister of Pakistan and presently the leader of Opposition in the National Assembly having a number of political -adversaries. It is the foremost duty of the Government to protect her life and to take all necessary measures for her safety. It may however be added here that even if there is one double storey . Residential building in the vicinity this risk cannot be avoided. The admitted position however, is that there are a large number of multi storeyed buildings all around the plaintiffs house.
44. In the circumstances, the privacy inside the house can perhaps be maintained by putting up curtains on doors and windows but any prohibitory order so as to ensure maintenance e of privacy and seclusion beyond the covered up area of the house into the passage, lawn etc. Would neither be practicable nor justifiable. These are reasons for dismissing the plaintiffs application vide my short order dated 3-5-1992.
45. AA./B-231/K