' In the afternoon of 25-7-1997 and in the heart of a residential colony in the City of Multan, a minor girl Alooba aged five years suddenly disappeared from home and her parents made search but in vain. In the evening they saw the minor girl's shoes on the top of an uncovered manhole. After a little effort they found her dead body inside the said manhole. In extreme agony they realized that the pit meant for the filth had swa llowed their beloved daughter. This news appeared in the daily Nawa-e-Waqt, Multan of 27th July, 1997.
2. The afore-referred incident prima facie was a violation of Article 9 of the Constitution of Islamic.
Republic of Pakistan, 1973 i,e, Fundamental Right to life which mandates as under:- "Security of person.--- No person shall be deprived of life or liberty save in accordance with law."
' On account of the socially and economically disadvantageous position in which the bereaved family was placed, the lack of development of Law of Tort in this Country, the absence of civic consciousness on the part of the public at large, the apathy and inefficiency of the functionaries of the State and the inspiring precedents set by the Honourable Supreme Court in the field of public interest litigation this Court was persuaded to take up the matter and it summoned the Managing Director, WASA, District Magistrate and S.S.P., Multan. The M.D., WASA submitted that as soon as he got to know about the tragedy he visited the bereaved family. He admitted that the manhole was uncovered; that the father of the girl had lodged a complaint about it and he deputed a Sewerage Man who did visit the place but came back to bring the necessary tools to clear the sewerage drain which had been choked and according to the father of the minor girl the sewerage man left the hole uncovered, did not come back in time and while the father was away from home the girl fell into the said hole, never to come back again. The M.D., . WASA further submitted that the father of the girl considered that to be an act of the God and did not want to proceed in the matter. He, however, added that an inquiry had been ordered to fix the responsibility. At the asking of the Court he agreed to pay compensation to the bereaved family and on 30-7-1997 a cheque of Rs,1,00,000 (Rupees one lac only) was presented to the father of the girl in Court. The Divisional Superintendent Pakistan Railways, Multan appearing in Court submitted that all the manholes relating to their Department have been covered. The S.S.P., Multan present in Court submitted that a case bearing F.I.R. No,326 of 1997 under section 321, P.P.C. Respecting this matter at Police Station Mumtazabad had been registered. The District Magistrate, Multan submitted a detailed report about the uncovered manholes in the city and reported that there are 2056 uncovered manholes in the city out of which 1898 are within the jurisdiction of WASA, 86 in the T&T Department. He further added that considering it to be a case of public nuisance proceedings had also been initiated under section 133, Cr.P.C.
3. The tragic incident and the report submitted by the District Magistrate is just the tip of an iceberg in a vast incidence of human suffering and public wrong which goes unredressed on account of the ignorance of the victims, their poverty and their lack of courage to raise these issues with the functionaries of the State. This state of affairs has led to a new mode of dispensation of justice which is called public interest litigation. It is a litigation where a person filing the petition may not have suffered a personal wrong himself but has brought a matter of public interest before the Court as a citizen and points out a right which has been violated by an organ or functionary of the State. The wrong for which the relief is sought must be due to a breach of some public duty which emanates from the Constitution/Law. No formal procedure for filing such a petition is required. The matter may come to the notice of the Court through a formal petition, a letter or a newspaper clip.
The only requirement is that the subject-matter should be of general public concern violating the Constitutional or legal right.
4. The concept of public interest litigation has been given impetus by the Honourable Supreme Court of Pakistan in the recent pasta Some of the issues of public concern which have attracted indulgence of the August Supreme Court are as follows:--
(i) Police Excesses (Human Rights Case No,18 of 1993);
(ii) Jail Reforms (HRC No,70 of 1993);
(iii) Supply of Polluted Water (HRC No,120 of 1993);
(iv) Noise pollution (HRC No,229 of 1993);
(v) Kidnapping for ransom (HRC No,24-K of 1992);
(vi) - Uncontrolled and unnecessary use of loudspeakers (HRC No,32-K of 1992);
(vii) PTV should give more time for improvement of moral of society. (HRC No,25 of 1992);
(viii) Police torture (HRC No,2-K of 1992);
(ix) Pollution by smoke emitting vehicles (HRC No,5-K of 1992);
(x) Carrying open drains (HRC No,9-K of 1992);
(xi) Installation of Grid Station and cutting of trees in Islamabad (HRC No,15-K of 1992);
(xii) Cleanliness of Treatment of Plant (HRC No,20-K of 1992);
(xiii) Allotment of Plots to Parliamentarians (HRC No,27 of 1996);
(xiv) Taping of telephones (HRC No,33 of 1996);
(xv) Complaint of Air Marshal (Retd.) Muhammad Asghar Khan against Mirza Aslam Baig for misuse of public office (HRC No,19 of 1996);
(xvi) Regarding break of civil amenities in Karachi by K.E.S.E. (HRC No,1-K of 1993 and 5-K of 1993);
(xvii) Bonded Labour (HRC No,111 of 1994); (xviii) Pollution in Kasur by Tanneries (HRC No,3 of 1996);
(xix) Arrest of Senior Officers of WASA in Faisalabad (HRC No,1 of 1997);
(xx) Restoration of Women Seats in the Parliament (HRC No,3 of 1997);
(xxi) Undue influence by Government on the Banks in respect of loans (HRC No,5 of 1997);
(xxi) Sectarian violence (HRC No,7 of 1997) and
(xxii) Discrimination on the basis of Gender (HRC No,11 of 1997).
' Proceedings in the afore-referred cases were initiated by the Honourable Court on a petition of a person who had not suffered any personal wrong or on a letter addressed to the Honourable Chief Justice of Pakistan or on the basis of Newspaper reports.
' This Court has also initiated proceedings on matters like the side effects of Iodised Salt (The State v. Ittefaq Salt Writ Petition No,8395-M of 1996) the Construction of Petrol Pumps and Destruction of Green Belt in Race Course Park, Lahore (Writ Petition No,17008 of 1996) and the Working of National Environmental Council (Writ Petition No,1655 of 1997).
' In India the Supreme Court as also the High Court has taken notice of matters of general public concern disclosing violation of Fundamental Rights. The issues which have attracted the attention of the Courts in India were increasing Bus Fare, Railway Fair, the Appointment of Judges of the Superior Courts, the environmental pollution, the destruction of public parks and matters affecting public hygiene. Even the High Courts in India have demonstrated judicial activism. For instances "action plan" to eradicate the dengue fever and hepatitis etc. (times of India, dated 27th March, 1997) Inter Net Reference No,Http/www.Timesofindia.Com/2703971home4.Htm. This year Justice M.F.
Saldhana of Banglore High Court passed an order regarding Cubbon Park Banglore and ordered immediate cessation of felling of trees, restoration of the four ponds of the Park and called explanation of the Indiranagar Club about the felling of 29 trees from the said park (Source: "Banglore this fortnight" Internet Reference No,http://www.Indiaexpress.
Com/banglore/eureka/cubbon.Html.)
6. The rationale behind public interest litigation in developing countries like Pakistan and India is the social and educational backwardness of its people, the dwarfed development of law of tort, lack of developed institutions to attend to the matters of public concern, the general inefficiency and corruption at various levels. In such a socio-economic and political milieu, the non- intervention by Courts in complaints of matters of public concern will amount to abdication of judicial authority.
7. While taking notice under Article 199 of the Constitution in matters of public interest Court has to proceed with utmost caution and restraint. The breadth of the realm which is likely to be unfolded by this field of litigation may unleash frivolous petitions, complaints with regard to petty disputes between husband and wife over custody of children and other individual grievances which if entertained may entail a loss of valuable public time Moreover, it is likely that some matters are brought before the Court which required technical expertise and in absence of proper assistance it may lead to orders which may demoralise the administration which in a developing country has a crucial role to pay in the socio-economic and political growth of the body politic of late the need to regulate this field of litigation has been stressed by some jurists and Judges. It would be pertinent here, to refer to the word of caution given by Dr. (Justice) Durga Das Basu who in his famous commentary of Indian Constitution while dilating on writ jurisdiction said as under:-- "However, wholesome or beneficial it may be in the interest of weaker sections of the community who are unable to afford the cost of a formal litigation, it is capable of producing unforeseen and untoward consequences, unless even this informal procedure is circumscribed by some formal restraints: ' Firstly, the Judge to whom such letter may have been addressed, should not have the power to take suo motu action or even to be one of the Bench which ultimately hears the matters disclosed by the letter. Unless it is provided that the letter so received should be placed before the Chief Justice for assignment in the usual manner, there is a danger of an aggrieved person or association to choose a Judge for relief upon a cause regarding which the particular Judge's favourable views are know,-- a right which regular litigants do not possess.
' Secondly, Judges take oath to 'uphold the Constitution and the laws' in their performance of the duties of my office' (Sched. III of the Constitution). What, now, are the duties of the office of a Judge? Is it to decide cases properly brought before the Court or to exercise a roving and general supervision over the length and breadth of the country which power may belong to an ombudsman set up by law, and not the Courts.
' Thirdly, once the requirements of affidavit (p.2, ante) is dispensed with, the Court is liable to be flooded with irresponsible complaints and allegations, from which it would be a Herculean task to weed out the genuine ones until much of public time and money is wasted, and when the frivolity in some particular complaint is discovered, the Court would be powerless to proceed against the false complainant under contempt of Court or any other process under the law, which is intended to chastise attempts to abuse the process of Court."
(Commentary on Constitution of India Vol. No,1, Art.226 Eddition 1985 page 17).
' The foregoing anaylsis of the nature and scope of public interest litigation was necessary so that these proceedings are understood in their proper perspective and are not liable to misapplication as a precedent.
8. The case in hand particularly the admission made by the Managing Director, WASA, Multan and the report of the District Magistrate disclose a serious violation of the Fundamental Rights to life. It is shocking to know that in 1997 the year of 20th century and in the historic city of Multan there are 2056 manholes which are uncovered. These are death traps which have been laid not by an enemy forces, this is not an act of terrorism, this is the doing of an authority which has been entrusted with the task of the development of water and sewerage in the city. The explanation given by the Authority of lack of funds and their difficulty in recovering the dues further highlights the inefficiency and crises. The conduct besides being violative of the Constitution discloses the commission of a cognizable offence. Section 321 of the P.P.C. Reads as under:-- "Qatl-bis-Sabab.--- Whoever, without any intention to cause death of, or cause harm to, any person, does any unlawful act which becomes a cause for death of another person, is said to commit Qatlbis-Sabab."
9. Having considered the submissions made by the Managing Director, WASA, the report of the District Magistrate, gravity of the matter in issue and with view to prevent the recurrence of the tragedy which has promoted these proceedings this Court holds and directs as under:--
(i) That the act of keeping the manholes uncovered constitutes a serious threat to right to life and besides the civil liability it discloses the commission of a cognizable offence;
(ii) taking note of the compensation of Rs,1,00,000 (Rupees one lac only) given by the WASA to the bereaved family and the equality clause of the Constitution of Islamic Republic of Pakistan, 1973 this Court directs that on any future eventuality if a child dies by falling into the uncovered manhole, the WASA shall be liable to pay compensation to the bereaved family provided the family so affected had lodged a complaint about the uncovered manhole immediately after having come to know about it and the WASA had failed to cover the manhole within 48 hours of the said complaint;
(iii) in terms of the undertaking given by the Managing Director, WASA and the General Manager; T&T, Multari all the manholes in their respective areas of jurisdiction shall be covered by 30th September, 1997 and a report to that effect shall be sent by these officials to the Additional Registrar of this Court;
(iv) the S.S.P., Multan shall ensure that in the event of a case having been registered qua any future incident of the kind which is subject-matter of this petition, the report under section 173, Cr.P.C. Is submitted before the learned trial Court within two weeks; and
(v) as it is a matter of general public importance the trial Court seized of the challan of the kind referred to above shall ensure that the trial is concluded within a period of one month of the submission of the challan before it. The President of High Court Bar Association, Multan shall render legal aid to bereaved family through the Free Legal Aid Society of the Bar.
' A copy of this judgment shall be sent to the District Magistrate, S.S.P. And Managing Director, WASA, Multan for information and necessary compliance.