Zeenat Salim VS Pakistan Naval Farms etc

Form No: HCJD/C-121

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

(JUDICIAL DEPARTMENT)

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Mrs Zeenat Salim

Vs.

Pakistan Naval Farms, etc.

Petitioners by : M/s Babar Sattar, Zainab Janjua, Syed Adil Safdar and Alia Zareen Abbasi Advocates.

Respondents by : M/s Ashtar Ausaf Ali, Malik Qamar Afzal, Nayyab Hassan Gardazi, Raja Zahoorul Hassan, Asad Rahim Khan, Muhammad Usama Rauf,Misbahul Mustafa Safir, Muhammad Munir Paracha, Nauman Munir Paracha, Ahmed Iqbal Maken, Saad Khan, Muhammad Nazir Jawad, Advocates for their respective respondents.

Syed Muhammad Tayyab, Deputy Attorney General.

Mr Irfan Inayat Illahi, Member CDA. Malik Faraz, Director (Regional Planning)CDA. Mr Arshad Chohan, Director(Regional Planning),

CDA.

Mr Faisal Naeem, Director (Building Control)CDA. Mr Naeem Dar, Director (Law) CDA.

Mr Aamir Abbas Khan, Dy. Director PEPRA. Commander (Retd.) Arshad, representative for respondent no. 1.

Dates of Hearing : 19.08.2020, 09.09.2020, 12.09.2020, ATHAR MINALLAH, C.J.- The petitioners, in W.P. No.

1772/2020, titled “Mrs. Zeenat Salim v. Pakistan Naval Farms, etc.” and

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W.P. No. 946/2020, titled “Nasir Ali v. Federation of Pakistan, etc.”, have raised constitutional questions of paramount public importance. The pivotal questions that have arisen are not confined to the enforcement of fundamental rights of the petitioners alone but, rather, it gravely affects every citizen of Pakistan.

2.The conduct of state institutions and public functionaries observed during the proceedings is alarming and definitely reflects a grave undermining of the rule of law. It appears that the primary reason for the grave status of governance is elite capture, which inevitably affects every citizen’s fundamental rights. State institutions and public functionaries owe a duty of care towards the citizens and, rather than serving them, they are benefiting themselves by abusing the power entrusted to fulfill their sole constitutional duty to serve the actual stakeholders i.e. the people of Pakistan.

3.It is a classic example of how enforced laws are ignored, abused and treated with contempt by those who are under oath to uphold and implement them for the benefit of the people. The existence of a state within the state and a few classes having assumed the role of being above the law does not seem to be a rhetoric but a reality. The most disturbing factor is the impunity against grave violations of law committed by the powerful institutions and public functionaries.

4.The petitions in hand have raised questions regarding the constitutional duties and obligations of the Armed Forces of Pakistan.

Notably, it raises the question of potential harm and threat to every citizen’s fundamental rights and good governance when there is a likely

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conflict created by the Armed Forces with the citizens and the society.

Every citizen has a stake in its Armed Forces and any such conflict is unimaginable in a state that is governed under a constitutional frame work.

5.Mrs. Zeenat Salim [hereinafter referred to as the “Petitioner no. 1”] has challenged two projects undertaken by one of the components of the Armed Forces i.e. the Pakistan Navy. She has challenged the acts of the Pakistan Navy regarding developing and managing a private real estate venture, Pakistan Naval Farms [hereinafter referred to as the “PN Farms”]. She has also challenged the alleged illegal occupation of land and the construction of a Club House in the notified protected area of the National Park. Both the projects have been undertaken and executed by the Pakistan Navy.

6.In the connected petition, Nasir Ali son, of Zafar Ali, who is a resident of village Mera Bhagwal, Post Office Bhara Kahu, District Islamabad [hereinafter referred to as the “Petitioner no. 2”], has raised serious allegations of intimidation, coercion and abuse of authority against the proponents of PN Farms. The village of the Petitioner no. 2 is situated in the area where the Pakistan Navy is now extending its real estate venture without approval from the competent authorities.

Petitioner No. 2 has alleged that the management of PN Farms and its agents had resorted to the widely prevalent phenomenon of acquiring land through intimidation and forced dispossession, which has been highlighted by this Court in the judgment dated 2-09-2020 passed in WP No. 3877 of 2019 titled “Farhan Mustafa v. The State”.

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The questions raised in both the petitions in hand will be adjudicated through this consolidated judgment. It would be beneficial to give a brief description of both the ventures in the light of comments and arguments filed by the parties:

PN Farms:

7.According to the stance taken by PN Farms,

approximately 2400 kanals of land, situated in mouza Pind Bhagwal, District Islamabad, were purchased by and mutated in the name of a private citizen, Mr Ameer, who is stated to be a retired officer of Pakistan Navy. It is the case of PN Farms that the purchase was made by the said private citizen on behalf of Bahria Foundation but no document has been placed on record in support of this assertion, nor to show who had paid the sale consideration.

Later the land was mutated in the revenue record in the name of Director General (Welfare and Rehabilitation), Directorate of Pak Navy. The latter, vide letter dated 20.02.1993, addressed to the Capital Development Authority [hereinafter referred to as the “Authority”] confirmed the transfer and requested the issuance of a ‘No Objection Certificate’ to develop a real estate venture. The ‘No Objection Certificate’, dated 13.03.1993, [hereinafter referred to as the “NOC”], was issued diligently by the Authority, subject to the fulfillment of mandatory conditions described therein. The conditions relevant for the adjudication of these petitions are reproduced as follows:

“iii) The Plots shall be used only for the orchard and / or vegetable farms and no agro-industry, livestock, poultry farm shall be brought into use.

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iv)The work shall be completed and a completion certificate in respect thereof shall be obtained from the CDA within four years of the issuance of this letter.

v)The possession of individual plots shall not be handed over to the allottees until the completion certificate referred to in the preceding clause (iv) has been obtained.

vi)The construction of a farm house having a covered area of not more than 2,250 Sq. Ft. shall be permitted and would be construction according to the building bye-laws of CDA. In case of violation of the provision of the prevailing building bye-laws of Islamabad, the offending structure shall be liable to be demolished in accordance with Section 49-C of the CDA Ordinance, 1960, unless regularized by the Authority on payment of compounding fee as may be fixed by the Authority from time to time.

x)The NOC is valid for the area for which it is granted.

You will apply again for the permission if there area is extended subject to the right of the CDA to accept or reject it.

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xi)This NOC is not transferrable to any person, group of persons to any firm or to any society.

xii)You will abide by the rules and regulations of the CDA and instructions issued from time to time regarding development of the scheme.

xiv)The scheme shall have an independent sewer treatment and disposal system to be developed by the sponsor at their own cost and expense and no untreated affulents be discharged into the

GumrahKas/any other Nallah.

xvi)After completion and allotment, the scheme shall be maintained by the sponsor or by any association of the allottees as the case may be till such time the scheme is taken over by the CDA.”

It is noted that the NOC was applied by and granted in favour of the Director Housing, PNS Zafar, Islamabad. The latter is an integral office of the Headquarters of Pakistan Navy and staffed by serving uniformed officers. The correspondence by PN Farms with officials or private citizens is by serving uniformed officers. The address printed on the letter head is that of Naval Headquarters opposite PNS Zafar, Sector E-8, Islamabad. The official flag of Pakistan Navy is printed on the letter head. The official email printed thereon is [email protected]. It is the case of PN Farms that the construction is governed under the "PN Farms

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Bylaws". However, nothing has been placed on record to show that the bylaws have been made under any law. They are also in conflict with the regulations issued under the Capital Development Authority Ordinance, 1960 [hereinafter referred to as the “Ordinance of 1960”].

Petitioner no. 1 owns property in the PN Farms and she is aggrieved because the management has been threatening her of coercive action under the purported PN Farms Bylaws. She asserts that the bylaws sought to be enforced have no legal backing nor were the officials of the Pakistan Navy empowered to take any action. She has placed on record threatening notices issued by a serving officer of the Pakistan Navy and that too, from an office situated within the Naval Headquarters.

PN Farms has taken a stance that the venture is now being managed by the Pakistan Navy Welfare Trust [hereinafter referred to as the “Trust”]. A copy of a document titled "Deed of Trust", executed on 23.06.2018, has been attached with the comments and written arguments. It shows that Admiral Zafar Mehmood Abbasi NI (M), son of Muhammad Sohrab Abbasi, had declared and settled the Trust. The latter was holding the office of Chief of the Naval Staff. Clause (4.2) provides that the Trust shall be headed by the Chief of the Naval Staff. Clause (5.2) contains a list of senior serving officers who have been declared to function as the Board of Trustees. There is nothing on record to show that permission was granted by the Federal Government to establish such an entity by the Chief of Naval Staff or other serving officers. There is also no

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document that would show that the Federal Government had authorized the Chief of Naval Staff or any other serving uniformed officer to carry out the activities described in the Trust, let alone managing a private real estate venture, PN Farms.

The Court could also not be persuaded that the name of one of the branches of the Armed Forces could be used to name a private real estate venture. According to the stance taken in the comments and written arguments, the venture does not involve public funds and has been developed with contributions made by serving officers. Admittedly, it is a project of real estate development by private individuals and having no concern whatsoever with the constitutional mandate of the Pakistan Navy.

As already noted, in the revenue record the mutation is registered in the name of the Director Naval Farms. The Petitioner no. 1 is absolutely justified in demanding a legal title document regarding ownership of her property. The management of PN Farms obviously cannot issue such an instrument. It is not disputed that PN Farms, without obtaining any permission or required authorizations, has been involved in developing land outside the area for which the NOC was granted. The development work is stated to have been undertaken as Phase-II and Phase-II (Extension). The Authority has posted a notification on its website listing illegal housing schemes which, inter-alia, includes the venture Naval Farms (4,5 and 8 Kanals) Simly Dam road, Islamabad.

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Admittedly, the regulations issued under the Ordinance of 1960 have not been complied with. The Authority, in its report, has stated that the proposals regarding the issuance of Phase-II and its extension are being considered. Petitioner no. 2 has raised serious allegations against the managers and operators of PN Farms in his memorandum of petition. It has been alleged that the management has resorted to illegal methods in order to acquire extra land through coercive means. Petitioner no. 1 has been receiving notices from offices situated within the Naval Headquarters, threatening that part of her built up property would be demolished. It is the case of Petitioner no. 1 that her property can only be regulated under the Ordinance of 1960 and the regulations made there under.

On the other hand, the management of PN Farms has taken the stance that it is authorized to take action in accordance with the PN Farms Bylaws.

Sailing Club:

8.The newly constructed building of the purported Sailing Club was inaugurated by the Chief of Naval Staff, Admiral Zafar Mahmood NI (M) on 01.07.2020, despite the issuance of multiple notices by the Authority wherein it had been brought to the notice of the Pakistan Navy that the activity was illegal.

The Chief of Naval Staff has been arrayed as one of the respondents in the constitutional petition. The latter, in the written comments and arguments submitted on his behalf, has taken the stance that the construction was justified and legal because,

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pursuant to the appointment of the Chief of Naval Staff as Patron- in-Chief, it was directed, vide letter dated 18.10.1992, to develop water support centers, inter-alia, at the Rawal Lake. The development was subject to the report required to be submitted by a consultant regarding the environmental impact. The then Prime Minister of Pakistan had appointed the Chief of the Naval Staff as Patron-in-Chief of all water sports, vide notification, dated 23.08.1991, issued by the Culture and Support Division of the Government of Pakistan. The Environment and Urban Affairs Division, vide letter dated 28.02.1993, addressed to the Chairman of the Authority had informed that the Prime Minister’s Secretariat, vide letter dated 11.08.1992, had directed the In charge Minister to convene a meeting of the concerned agencies to discuss the proposal submitted by the Pakistan Navy in the light of the study prepared by the UN Expert on the Margalla National Hills Park and, thereafter, submit concrete proposals. A copy of such a study has not been placed on record by the respondents. A meeting was held on 22.12.1992, wherein it was decided to appoint a reputed consultant/firm to undertake an environmental study regarding the water sports, inter alia, at the Rawal Lake. Messrs RCG/Haigler Bailly (Pvt.) Ltd. [hereinafter referred to as the “Consultant”] was selected and the Authority was directed to pay its fee.

The Consultant carried out a detailed environmental assessment regarding the proposed water sports and submitted its report to the concerned authority. Rawal Lake was described as a precious reservoir of water for supply to the residents of Rawalpindi. The report declared the surroundings of the lake to be,

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from the ecological point of view, falling within the notified area of the Margalla Hills National Park, defined as Zone-3 in the Islamabad Capital Territory (Zoning) Regulations, 1992 [hereinafter referred to as the “Regulations of 1992”]. It was pointed out that changes in land use for recreation purposes were permitted, subject to strictly following the guide lines prescribed in the Margalla Hills National Park Management Plan. It was also pointed out that the area was governed and protected under the Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance of 1979 [hereinafter referred to as the “Ordinance of 1979”], which prohibited construction or change in the land use.

Notably, it was expressly pointed out that lake was a wildlife habitat for migratory birds. Concerns were explicitly recorded to the effect that rowing activities would give rise to potential conflicts. Rawal Lake was declared as an ecologically sensitive area. Regarding the proposed construction of a Club House, it was explicitly recommended as follows:

“It is recommended that the Club House should be relocated from its proposed location to an off shores site. The building of the National Rowing Centre, as proposed, is not acceptable due to the following concerns.

 The proposed National Rowing Centre

building does not conform to the spirit of

the MHNP Management Plan that calls for

only modest size structures in the park.

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 The National Rowing Center building will dominate the lake view and hence effect

the aesthetic quality of the lake. The

structure should not alter the natural

shoreline and cordon-off a section of the

shoreline.

 Construction activity close to the shoreline will result in degradation of the water

quality, wetland, and affect the migratory birds and the waterfowl.

 The Club House component of the National Rowing Center building will be a contact

source of pollution leading to littering, run- off and high probability of leakage from the sewage system. The utility of the Club

House does not merit a lake-front location considering the adverse impacts it will

have on the water quality and the

shoreline.

The Boat House as proposed is not acceptable.”

According to the copies of official documents placed on record by and on behalf of the Chief of Naval Staff, one of the documents issued by the Cabinet Division and titled as 'Working Paper" shows that the Pakistan Navy was required to prepare a 'Management Plan' for the proposed rowing activities on the Rawal Lake. A copy of the Management Plan has also been placed on

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record wherein it has been explicitly mentioned that the Club House would be located at least half a kilometer away from the lake and that a modest structure was proposed to be erected for the storage of boats only. It was further stated that no more than ten rowing boats and five canoes would be kept at the lake and that they would be operational for not more than four hours every day. Regarding the Authority, it was stated that it would exercise overall administrative control of the area and the National Park. The role of the Pakistan Navy was explained as controlling the boating on the lake.

A copy of a letter dated 24.07.1994, of the Authority, describes the minutes of a meeting held on 15.06.1994. The meeting was attended by representatives of all the concerned departments/organizations. It has been explicitly mentioned that the Small Dams Organization was responsible for water storage and maintenance of the dams and that they were the custodians of the water body of the lake. The role of the Authority explained in the letter was of a regulatory authority exercising control in the areas surrounding the lake. Alarmingly, it was observed that activities on the lake were undertaken without obtaining prior permission from the relevant authorities, particularly the Small Dams Organization.

The Management Plan prepared by the Pakistan Navy was declared to be sketchy and failing to address the relevant issues. The Small Dams Organization had raised serious concerns regarding the proposed structure on the embankment of the lake, which was likely to endanger the safety of the reservoir. The representatives

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of the concerned departments/organizations attending the meeting had unanimously decided as follows:

“It is added that there is already a grave threat to the water of Rawal Lake, therefore, by allowing Navy in initiate boating activity it shall further deteriorate the quality of water in the lake as well as threaten the safety of the Dam. In the meeting all the

representatives of the departments unanimously agreed that the boating may not be allowed at this lake. However, as per the Management Plan for the Rawal Lake boating activity can be undertaken when there is more than 50% of the total capacity of water in the reservoir and there are no migratory birds present in the lake. Following these two conditions the boating can take place only during two month i.e.

August and September. Moreover, no construction on the embankment of the dam is allowed, therefore, it seems that establishing boating facility at Rawal Lake by Navy or any other agency may not be viable.”

There is nothing on record to show that the land occupied by the Pakistan Navy was allotted to it by the competent authority. The Chief of Naval Staff, admittedly, is not in possession of any such letter or instrument. The Authority also did not lease, allot or in any other manner authorize the Pakistan Navy to occupy the state land. The Sailing Club, illegally constructed by the Pakistan Navy, consists of a kitchen, dining area, gymnasium,

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guest rooms, indoor swimming pool and Jacuzzi/steam room. It is a two story building. The Authority has explicitly stated that the land was never allotted to the Pakistan Navy nor was permission granted to initiate construction thereon. Neither were the building plans submitted nor was permission from the Small Dams Organization obtained.

A copy of the order dated 03.09.2010, passed by the august Supreme Court in Suo-Motu Case no. 13/2010 regarding the supply of contaminated water to Rawalpindi from Rawal Lake has also been placed on record, which explicitly shows that stringent restrictions were directed to be observed by the apex Court in order to protect Rawal Lake. The Authority had issued a notice, dated 17.09.2019, informing the Pakistan Navy that the construction was illegal and in violation of the Ordinance of 1960 and the regulations made there under. The Authority had explicitly directed to forthwith stop the illegal construction. This was followed by another notice, dated 04.10.2019, addressed to the Deputy Chief of Naval Staff (WH) wherein the latter was, inter-alia, directed to provide the allotment letter. Finally, notices, dated 21.02.2020 and 13.07.2020, were issued. Instead of complying with the notices issued by the competent authority, the Pakistan Navy went ahead with the illegal construction and the purported unauthorized project was inaugurated by no less a person than the Chief of Naval Staff.

The Small Dams Organization, vide notice dated 13.07.2020, had also informed the Chief Staff Officer of Pakistan Navy that the purported construction adjacent to the reservoir was illegal. The

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Director General, Pakistan Environmental Agency, has submitted its report and has stated therein that the purported project was initiated without complying with the provisions of the Pakistan Environmental Protection Agency Act 1979 [hereinafter referred to as the “Act of 1979”]. A report has also been submitted by the Cabinet Secretary, Government of Pakistan and perusal thereof shows that even the Federal Government i.e. the Federal Cabinet, appears to have been helpless.

9.The learned counsels for the parties have submitted their written arguments. The written arguments have been made part of the record. With the able assistance of the learned counsels the record has been carefully perused.

Opinion of the Court:

10.The proceedings before this Court were indeed disturbing because one of the three branches of the Armed Forces i.e. the Pakistan Navy and the Chief of Naval Staff were pitted against the citizens for whose defense they have been established. The nature of the litigation in hand is definitely not in the public interest because of its consequences for the image of the Armed Forces.

Regrettably, the Chief of Naval Staff and other uniformed officers who chose to take law into their hands and exceeded the limits of the defined mandate under the Constitution are to be blamed for the embarrassment they have caused to their brave and professional soldiers.

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The written report submitted by the Chief of Naval Staff and the arguments placed on record on his behalf have cast unfounded aspersions on the intention of Petitioner no. 1 in bringing questions of paramount public importance before this constitutional court. The Chief of Naval Staff and other officers have brazenly transgressed from their constitutional duties by violating the enforced laws without demur. They have wrongly doubted the intent of Petitioner no. 1 for invoking the constitutional jurisdiction of this Court. It is an onerous duty of every patriotic citizen to jealously guard against acts that tarnish the image of the Armed Forces. This is exactly what Petitioner no. 1 has done, while the Chief of Naval Staff and other responsible officials, through their conduct, have unjustifiably caused harm to their institution.

During the proceedings it was observed by the Court that Petitioner no. 1 and her husband were pursuing this matter to protect the repute and sanctity of the Armed Forces as responsible and patriotic citizens. The unjustified aspersions cast on the intent of Petitioner no. 1 is deprecated. At one stage Respondent no. 1 and her husband had also brought to the attention of the Court attempts to harass and intimidate them.

The questions to be considered for adjudication are; whether the Pakistan Navy, a branch of the Armed Forces, is empowered to directly or indirectly acquire, own or deal with immovable land for the purpose of developing real estate ventures; whether the Chief of Naval Staff is vested with the power to create a juridical person such as the Trust; whether the Authority was empowered to grant the NOC for

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developing the PN Farms; whether the Ordinance of 1960 and the regulations made there under are applicable in the case of PN Farms or the PN Farms Byelaws; whether the status of the Sailing Club is legal;

whether the Chief of Naval Staff and other officials are accountable for transgressing the mandate of the Armed Forces described under the Constitution.

Mandate of the Armed Forces and whether the respective branches are empowered to directly or indirectly acquire or in any other manner deal with immovable property:

11.The mandate of the Armed Forces of Pakistan has been described in Chapter 2 of Part XII of the Constitution. The three main branches of the Armed Forces are the Pakistan Army, Pakistan Navy and Pakistan Air Force. Article 243 of the Constitution provides that the Federal Government shall have control and command of the Armed Forces. The supreme command of the Armed Forces vests in the President of Pakistan. The latter, subject to law, has the power to raise and maintain the three branches of the Armed Forces. Article 244 makes it a constitutional requirement for every member of the Armed Forces to take an oath in the form set out in the Third Schedule and the same is reproduced as follows:

“(In the name of Allah, the most Beneficent, the most Merciful.)

I, ____________, do solemnly swear that I will bear true faith and allegiance to Pakistan and uphold the Constitution of the Islamic Republic of Pakistan which embodies the will of the people, that I will not engage myself in any political activities whatsoever and that I will honestly

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and faithfully serve Pakistan in the Pakistan Army (or Navy or Air Force) as required by and under the law.

[May Allah Almighty help and guide me (A'meen).]”

Sub Article (1) of Article 245 explicitly provides that the Armed Forces shall, under the directions of the Federal Government, defend Pakistan against external aggression or threat of war and, subject to law, act in aid of the civil power when called upon to do so.

The Rules of Business, 1973 enjoys constitutional backing and section 3 thereof describes how business is to be allocated amongst the Ministries and Divisions listed in Schedule-1 thereto. Sub section (3) provides that the business of the Government shall be distributed amongst the Divisions in the manner indicated in Schedule-II. The Armed Forces of Pakistan i.e. the Pakistan Army, Pakistan Navy and Pakistan Air Force are the administrative responsibility of the Ministry of Defence/ Defence Division. It is noted that the administration of Military Lands and Cantonments Group is also under its administrative control.

The august Supreme Court, in the case titled “Justice Hassnat Ahmed Khan and others v. Federation of Pakistan/State“ [PLD 2011 SC 680] has held that under Article 245(1) of the Constitution, the Armed Forces of Pakistan are bound to remain under the direction of the Federal Government to defend Pakistan against external aggression or threat of war and, subject to law, act in aid of the civil power when called upon to do so. It has been further held that non- adherence to the constitutional provisions, prima-facie, tends to establish denying the oath to uphold the Constitution. It has been

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further held that deviation from the constitutional mandate by members of the Armed Forces cannot be condoned by the superior courts. In the case titled “Sindh High Court Bar Association v.

Federation of Pakistan” [PLD 2009 SC 879] the apex Court has elaborated the scheme of the constitution and has observed that, on a plain reading of Article 245(1), the functions of the Armed Forces can be bifurcated into two categories, i.e. to defend Pakistan against external aggression or threat of war and, subject to law, act in aid of civil power when called upon to do so. Moreover, it has been observed that under clause (1) of Article 243, the control and command of the Armed Forces is vested in the Federal Government, therefore, in the performance of both the categories of the aforementioned functions, the Armed Forces act under the directions of the Federal Government.

Reliance is placed on the cases titled “Air Marshal (Retd.) Muhammad Asghar Khan v. General (Retd.) Mirza Aslam Baig, former Chief of Army Staff and others” [PLD 2013 SC 1], “Sh. Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others” [PLD 1999 SC 504], “District Bar Association, Rawalpindi and others v. Federation of Pakistan and others” [PLD 2015 SC 401].

The Pakistan Army Act 1952 [hereinafter referred to as the “Act of 1952”], The Air Force Act 1953 [hereinafter referred to as the “Act of 1953”] and the Pakistan Navy Ordinance, 1961 [hereinafter referred to as the “Ordinance of 1961”] have been promulgated to regulate the respective branches of the Armed Forces and its discipline. The Navy Regulations, 1987 [hereinafter referred to as the “Regulations of 1987”] the Navy Regulations, 1988

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[hereinafter referred to as the “Regulations of 1988”] governs the internal governance of Pakistan Navy. The Ordinance of 1961 nor the aforementioned regulations empower the officers of the Pakistan Navy nor the Chief of Naval Staff to undertake any activity beyond the Navy establishment. The composition of the Navy has been described under regulation 1 of 0101 as ships, submarines, vessels, naval aircrafts, naval establishments, other crafts and units belonging to or under the control of the Navy, whether within or outside Pakistan and the personnel who man them. The provisions regarding sports or welfare are confined to the composition of the Navy. There is no provision under the Ordinance of 1961 nor the regulations which authorizes or empowers the Pakistan Navy to undertake, directly or indirectly, activities beyond its composition for the purposes of sports or welfare, unless the Federal Government has expressly granted permission to do so. As a corollary, the Pakistan Navy has no power nor jurisdiction to, directly or indirectly, engage in business ventures of any nature outside its composition.

As noted above, the Constitution expressly describes two functions of the Armed Forces. The primary function or constitutional duty of the Armed Forces is to defend Pakistan against external aggression or threat of war and that too under the direction of the Federal Government. The direction of the Federal Government is a precondition. The other function is to act in aid of the civil power when called upon to do so. There could be multiple eventualities requiring the Armed Forces to act in aid of the civil power e.g. internal security, natural calamities such as floods, earthquakes etc. The secondary function to act in aid of the civil power is subject to law and can only

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be undertaken if 'called upon to do so'. In case of both the functions the Armed Forces cannot act on its own. These are the only two constitutional functions mandated to the Armed Forces.

A plain reading of the Ordinance of 1961 does not vest the power or jurisdiction the Pakistan Navy to undertake any function on its own other than the two constitutional mandates expressly provided under Article 245 of the Constitution. Since the command and control of the Armed Forces vests in the Federal Government, therefore, no branch can undertake any activity or perform functions outside their respective establishments unless expressly directed or called upon to do so. The unique responsibilities have been prescribed under the Constitution and, therefore, obedience to the provisions ibid and law is an inviolable obligation of every branch and member of the Armed Forces as provided under Article 5.

The branches of the Armed Forces and their members take a constitutional oath in the name of Allah to uphold the Constitution and to honestly and faithfully serve Pakistan as required by and under the law. Violation of law by members of the Armed Forces is definitely a breach of their constitutional oath and a transgression from the prescribed functions. It is thus obvious that members of Armed Forces, in the case in hand the officers and soldiers of the Pakistan Navy, violate their oath and transgress their constitutional mandate by performing any function other than prescribed under Article 245

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The Pakistan Navy nor its officers are authorized or mandated to undertake, directly or indirectly, any activity in the nature of real estate development, trade or any other business. Doing so would amount to transgression from the constitutional mandate and expose the responsible officials to disciplinary, civil and criminal liability under the law.

The next crucial question is whether the Pakistan Navy or its officers are empowered to acquire, own or, in any other manner, deal with immovable property for developing real estate ventures or for welfare or commercial purposes. The scheme of the Constitution and the relevant laws regarding acquiring land for the use of the Armed Forces is unambiguous. Article 173 of the Constitution explicitly declares that the executive authority of the Federation shall extend, subject to any Act of the appropriate legislature, to the grant, sale, disposition or mortgage of any property vested in, and to the purchase or acquisition of property on behalf of the Federal Government or, as the case may be, the Provincial Government and to the making of contracts. Sub Article (2) of the Article 173 explicitly provides that all properties acquired for the purposes of the Federation or of a Provincial Government shall vest in the Federal Government. Sub Article (3) of Article 173 further provides that all contracts made in the exercise of the executive authority of the Federation or of a Province shall be expressed to be made in the name of the President or, as the case may be, the Governor of the Province.

The Cantonment Act 1924 [hereinafter referred to as the “Act of 1924”], The Cantonment Lands and Administration Rules, 1937 [hereinafter referred to as the “Rules of 1937”] and the Rules for

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the Acquisition, Custody, Relinquishment etc., of Military Lands (A.C.R. Rules) 1944 [hereinafter referred to as the “A.C.R. Rules”] govern the manner in which immovable property can be acquired for and put to use for the branches of the Armed Forces.

As already noted, it is the mandate of the constitution that property acquired for the purposes of the Federation shall exclusively vest in the Federal Government. The Rules of 1937 contemplate to secure all possible military requirements and to prevent encroachment upon the rights of the government. A detailed procedure has been prescribed for the management of all lands based on its classification. The General Land Register is maintained by the Military State Officer wherein details of all the land put to the use of the Armed Forces is recorded. The classes of land have been described in the Rules of 1937. The property/land is only for the use of the Armed Forces.

The department of Military Land and Cantonments, under the administrative control of the Defence Ministry/Division, is distinct from the Armed Forces and so is the Military Land Officer or the Cantonment Executive Officer. The land for the use of the Armed Forces, except Class A(1), are exclusively managed and dealt with by the aforementioned distinct department and the officials, as the case may be. The Armed Forces cannot own, acquire or otherwise deal with immovable property. The land vests in the government and is managed by departments and officials distinct from the Armed Forces.

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PN Farms and its legal status:

12.This Court, in the judgment titled “Shahzada Sikandarul Mulk and four others v. The Capital Development Authority and 4 others“ [PLD 2019 Islamabad 365], has described in detail the scheme and laws enforced in the 1400 square miles of the Islamabad Capital Territory. All types of construction or development and execution of housing schemes or other real estate ventures are regulated under the enforced laws.

The Pakistan Capital Regulation MLR-82, 1960 [hereinafter referred to as the “MLR-82”], the Ordinance of 1960, The Islamabad Capital Territory (Zoning) Regulations, 1992 [hereinafter referred to as the “Zoning Regulations of 1992”], The Islamabad Building Regulations, 1963 [hereinafter referred to as the “Regulations of 1963”], the Islamabad Residential Sectors Zoning (Building Control) Regulations, 2005 [hereinafter referred to as the ‘Building Control Regulations’], the Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance, 1979 [hereinafter referred to as the ‘Wildlife Ordinance of 1979’] are enforced and they are required to be strictly implemented in the case of establishing and regulating a real estate venture. The regulator for the purposes of the aforementioned laws, except in case of the Ordinance of 1979, is the Authority.

The aforementioned laws extend to the area where the PN Farms was proposed. The proponent of the real estate venture was an internal office of the headquarters of the Pakistan Navy. The latter

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was not mandated to undertake any activity in the nature of developing a real estate venture nor to mutate the land for the private gain of a few officers. It was an obvious transgression by the Pakistan Navy from its constitutional obligations and duties. Also the Authority could not have entertained the request from an ineligible proponent.

Moreover, the name of a branch of the Armed Forces could not be used for this purpose.

Regardless of such grave violations and constitutional deviations, the Authority issued the NOC which was subject to fulfillment of specific conditions and the relevant have been reproduced above. The NOC was void ab initio because it was violative of the constitutional mandate of the Armed Forces. The development of the real estate venture i.e. PN Farms, was explicitly subject to compliance with the provisions of the Ordinance of 1960 and the regulations made there under. The stance of the Pakistan Navy that no public funds were involved in establishing the PN Farms is atrocious because in the revenue records the land was mutated in the name of one of the internal departments of the Pakistan Navy's headquarters. The NOC was applied for and issued in the name of a department of the Pakistan Navy. The correspondence with private citizens was on official letterheads as discussed above.

The land could not have been mutated in the name of one of the branches of the Armed Forces nor was the Authority competent to entertain the request for issuance of the NOC. The copies of photographs attached with the petition shows that, contrary to the mandatory conditions of the NOC, palatial houses have been

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constructed. The PN Farms Byelaws have no legal backing, nor was a department of the Pakistan Navy authorized to issue or enforce such purported byelaws in derogation of the provisions of the Ordinance of 1960 and the regulations made there under. The Chief of Naval Staff was bereft of jurisdiction to create an entity in the nature of the Trust to manage an illegal real estate venture. No document has been placed on record to show that permission of the Federal Government had been obtained to do so. The palatial buildings have been constructed without approval of building plans. The conditions of the NOC have been consistently violated but no action was taken by the Authority.

The purported extension schemes by the PN Farms have been undertaken by Pakistan Navy in disregard to and violation of the enforced laws. There could not have been a more obvious example of impunity against abuse of law as has been observed in the case in hand. The PN Farms, the issuance of the NOC to an office of the Pakistan Navy's headquarters and all subsequent acts were and continue to be illegal, without lawful authority and jurisdiction. The Pakistan Navy and officials involved in matters relating to the PN Farms have played fraud upon the Constitution.

Sailing Club:

13.The reservoir of Rawal Lake is a precious source of supply of water to the residents of Rawalpindi. The safety and security of Rawal Dam is the responsibility of the Small Dams Organization.

The acquired area around the reservoir vests in the Authority. The

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land on which the purported Sailing Club has been constructed falls within the notified area of the National Park, vide notification dated 28.04.1980.The

Pakistan Navy had trespassed/encroached upon and was in illegal occupation of a sizeable portion of land on the embankment of the lake in disregard to the likely environmental pollution and threat to the safety of the dam. The concerns of all the relevant departments/entities from the inception of the proposed water sports center have been discussed above. The Consultant appointed by the government had raised serious concerns regarding likely environmental pollution and threat to the reservoir because it was a precious habitat for migratory birds. Regrettably, the illegal activities undertaken by the Pakistan Navy on the embankments of the reservoir, besides being in violation of all the enforced laws, were destructive of the landscape and thus in contravention of the Islamabad (Preservation of Landscape) Ordinance of 1966 [hereinafter referred to as the “Ordinance of 1966”].

The Consultant had also raised serious concerns because of the ecological sensitivity and the fact that the reservoir, besides being a source of water to the residents of Rawalpindi, was also a habitat for migratory birds. The Management Plan prepared by the Pakistan Navy and the attached copy whereof, with the comments filed on behalf of the Chief of Naval Staff, explicitly shows that the Club House was proposed to be constructed at a distance of at least half a kilometer from the reservoir. The land occupied by the Pakistan Navy was never allotted to it by a competent authority under an enforced

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law. The Authority and the Small Dams Organization had brought the illegalities and the likely consequences to the attention of the Pakistan Navy but its officials preferred to ignore the notices issued by competent authorities. One notice was issued to an official of the Pakistan Navy, having the rank of Deputy Naval Chief.

Ironically, the Chief of Naval Staff, in his reply, has taken the stance that no public funds were used because the resources were provided by an entity, the Pakistan Navy Welfare Fund. As noted above, the Pakistan Navy, under the governing law, cannot undertake any activity in the garb of 'welfare' outside its establishment. It is also not authorized to establish, manage or operate recreational centers outside its establishment as defined under the Regulations of 1988 and that too, on illegally occupied state land. The machinery and organizational structure of a branch of the Armed Forces were exploited to undermine the rule of law. Despite all these blatant illegalities and gross constitutional deviations, the Chief of Naval Staff brazenly inaugurated the project by laying down a stone. Membership of the club was offered to selected elite classes i.e. officers of the branches of the Armed Forces, civil bureaucrats, business personnel and diplomats.

All the laws enforced for the protection of the environment were violated. The violations of section 12 of the Act of 1997 stand proved and, regrettably, the Chief of Naval Staff has exposed himself to criminal proceedings under section 19 ibid. The emphasis of the Chief of Naval Staff and the Pakistan Navy on its achievements in the field of sports are not denied, rather, they are appreciated, but they

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cannot be raised as a ground to justify violation of the enforced laws nor to legalize the illegal occupation of state land and ignoring the safety concerns raised by the Small Dams Organization. Neither the Prime Minister nor the Federal Government had the authority or jurisdiction, under the Ordinance of 1960, to direct the Authority or other organizations to facilitate the Pakistan Navy to establish a sports center and undertake activities in an ecologically sensitive reservoir.

The Sailing Club was constructed on illegally occupied land in a notified protected area. Neither the Chief of Naval Staff nor the Pakistan Navy could produce a valid and legal document regarding the allotment of land in a protected national park. The occupation of land and construction of the Sailing Club were and continue to be illegal, without lawful authority and jurisdiction. The Chief of Naval Staff and other officers who were involved in the illegal undertaking have transgressed their mandate and, consequently, violated their constitutional oath. By doing so they have not been fair to the martyrs of the Pakistan Navy and the other branches of the Armed Forces.

Environmental degradation and likely consequences in the context of climate change:

14.As noted above, the reservoir and surroundings of Rawal Lake are, ecologically, a highly sensitive area. It is a precious source of water supply to the residents of Rawalpindi. It has also served as a habitat for the migratory birds. The area of the reservoir

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and its surroundings was an environmentally sensitive area and thus required extraordinary care.

This Court, in its aforementioned judgment, had emphasized the importance of protecting the environment from further damage, particularly Rawal Lake and its surrounding area. The same is reiterated. It is an undeniable fact that unregulated human activities such as illegal construction, urbanization and violation of the Master Plan have serious consequences which inevitably leads to irreversible environmental degradation and climatic changes. Pakistan is ranked amongst the top ten countries of the world which has been declared as most vulnerable to the life threatening outcome of climate change.

It has been assessed as amongst those countries which have the highest rate of deforestation. Experts have classified Pakistan as a prime target of global warming. Unregulated human activities, particularly illegal construction and urban sprawl, are prime causes for global warming, air pollution, water scarcity, loss of forests, extinction of agricultural land and wild life.

The Islamabad Capital Territory already faces a serious water crisis and it would definitely be exacerbated if effective environmental management is not implemented on an urgent basis. According to a report compiled by the Asian Development Bank, "Climatic changes are expected to have wide ranging impact on Pakistan, affecting agricultural productivity, water availability and increased frequency of extreme climatic events". Floods, long spells of drought, heat waves etc. experienced in various parts of Pakistan raise a red flag for the policy makers and every citizen to declare an environmental

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emergency before the damage becomes irreversible. Availability of clean water and keeping the environment free from pollution has a direct nexus with the fundamental right guaranteed to every person under Article 9 of the Constitution. Life is inextricably dependent on safeguarding the atmospheric green house. Environmental degradation and the adverse impacts of climatic change inevitably causes loss of lives, disease and increase in poverty. A World Bank study carried out in 2015 has estimated that environmental degradation is costing Pakistan almost nine per cent of its GDP.

The challenges of environmental degradation and adverse climatic changes have become too obvious in Pakistan to be ignored.

Pakistan has international commitments which ought to be implemented in letter and spirit. What is required at this critical juncture is strict implementation of the precautionary principle in order to check irreversible damage to the environment. The principle of precautionary principle was given recognition by incorporating Principle 15 in the United Nations Rio Declaration on Environment and Development (1992) which reads as:" In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost effective measures to prevent environmental degradation".

In this context it would be beneficial to refer to the report of a Commission which was constituted by this Court exclusively to investigate and make recommendations regarding environmental

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degradation and failure of regulatory framework in the Islamabad Capital Territory. This Court had constituted the Commission for examining the consequences flowing from failure on the part of the Authority to enforce the regulatory framework in the context of environmental degradation in the Islamabad Capital Territory.

Through order, dated 20-02-2015, passed in W.P. No.1276/2011 titled ‘Sheraza Shakeel v. Capital Development Authority, etc.’ and other connected petitions, this Court had constituted the Commission chaired by a distinguished environmental law expert, namely, Dr.

Pervez Hassan. The Terms of Reference were explicitly confined to environmental issues relating to the Islamabad Capital Territory.

After extensive deliberations the Commission submitted its detailed report, dated 19-10-2015. The report has been made an integral part of this judgment as Annexure A. This report is unique and exceptional because it was unanimously adopted by all the members of the Commission, which included the highest officials of the Federal Government, the Capital Development Authority, members of the Parliament, experts in the environmental field and civil society organizations. The unanimity in adopting the report is of great significance. It was indeed the first public document of this nature which had forthrightly and openly acknowledged the failures which have led to serious environmental degradation. The composition of the Commission and the unanimous recommendations adopted by all its members, including representatives of the Federal Government and the Capital Development Authority, is of great significance. This report further reaffirmed the need for adopting the preventive principle. Perusal of the report explicitly shows that the Commission was by and large satisfied with the existing legal and regulatory frame

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work for the purposes of protecting the environment in the Islamabad Capital Territory. However, it has been openly accepted and acknowledged that "the challenge has been that these laws and regulations are not properly implemented and enforced by the Federal Government, CDA, PEPA and ICT. Other reasons for the ineffective implementation include the lack of public awareness. Regarding Rawal Lake, the Commission had, inter alia, given the following findings:

"Further, Rawal Lake, which is a source of drinking water for Rawalpindi, is receiving untreated sewage and other wastes from the irregularly growing population in Barakaho, Bari Imam, Shadera, Banigala and other adjoining population making the water highly polluted and toxic. Similarly, Simli Lake, that provides a source of drinking water for Islamabad, is receiving untreated sewage and other waste from Murree and newly developed colonies along the Murree Expressway which are polluting the water and rendering it unfit for human consumption."

The report of the Commission was sufficient to establish the urgent need for implementing the existing laws and regulatory framework in the Islamabad Capital Territory so as to save the environment from further harm and irreversible damage. This had become inevitable because the right to life guaranteed under Article 9 has been flagrantly violated. Reliance is placed on ‘Ms Shehla Zia and others v. WAPDA’ [PLD 1994 SC 693], ‘Suo Motu Case No.25 of

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2009’ [2011 SCMR 1743], ‘General Secretary, West Pakistan Salt Miners Labour Union (CBA) Khewra, Jhelum v. The Director, Industries and Mineral Development Punjab, Lahore’ [1994 SCMR 2061]. It is, therefore, obvious that great care was required to be exercised by all the state institutions, agencies etc and the public functionaries.

The development of the PN Farms and the unauthorized construction of the Sailing Club was in violation of the laws enforced to protect the environment from irrecoverable harm. The Act of 1997 and the rules/regulations made there under have been gravely violated by one of the branches of the Armed Forces and the Chief of the Naval Staff. The latter and other officers who were involved in undertaking such gross illegal activities have attempted to harm the environment and thus jeopardized the living conditions for the future generations. The impunity for acts likely to cause environmental degradation and that too by public office holders must come to an end. The impunity is because there is no environmental accountability contemplated under section 19 of the Act of 1997. Let this be the beginning so that no office holder, public or private entity and the government or its agencies are guilty of being complicit in the impunity against environmental degradation. The irretrievable damage already caused has threatened the living conditions for the future generations.

Conclusion:

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15.It is ironic that, in the case in hand, the Chief of Naval Staff and one of the branches of the Armed Forces i.e. the Pakistan Navy were involved in violating the enforced laws and transgressions from the mandate prescribed under the supreme law of the country, the Constitution. The most disturbing factor was the conflict created by one of the branches of the Armed Forces with the society and its citizens. Any such conflict is intolerable in a society governed under the Constitution.

As has been discussed above, the Armed Forces have a unique and special status under the Constitution. Because of the unique status certain attributes of the Armed Forces become intrinsic. They must be respected by the society and the people they serve ought to have confidence in their neutrality, professionalism, discipline and commitment with the mandate prescribed under the Constitution. Such confidence rests on the foundation of a demonstrable adherence by the Armed Forces to the mandate explicitly provided under the Constitution and the oath prescribed under schedule 3 ibid. No society can afford its Armed Forces becoming controversial and they do not when they remain confined to their constitutional role. Transgression from the prescribed mandate exposes the Armed Forces to conflict with the society and its citizens. The Armed Forces of Pakistan enjoy a special and unique status in the society because of the restricted role under the Constitution.

The primary constitutional role of the Armed Forces is to defend and protect the people and the territories of Pakistan. This is an onerous obligation because it involves the spirit, commitment and will to sacrifice one's life in the line of duty. The people who the Armed Forces

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serve and defend, revere and look up to them for such an extraordinary feat. The nation of Pakistan takes pride in their brave and courageous officers and soldiers such as Captain Karnal Sher Khan Shaheed (SJ) and thousands of others who gave the ultimate sacrifice of their lives in defending the people and the country. The enemy also acknowledge their valor. The Armed Forces have been created to protect the citizens and the country and they cannot afford to be perceived by the people as having become a threat to their rights or having a conflict with the society. Such an eventuality leads to erosion of the confidence of the people and it tarnishes the image of an institution which ought to be respected if it has to effectively perform its constitutional functions.

The engagement of the Armed Forces in an activity which is a transgression from the constitutional mandate e.g. undertaking commercial or real estate ventures etc. is definitely not in the public interest. Its coercive power, strength and discipline can only be used for the restricted functions prescribed under the Constitution, rather than using these characteristics to enforce its will on the people that created it. Engaging in such undertakings, on the one hand, compromises the professionalism, integrity, cohesion of the Armed Forces while on the other it weakens the civilian institutions and becomes a cause for distraction from the core function. It damages the relationship of the Armed Forces with the people and the society. This results in grave violations of the fundamental rights of the people and definitely becomes an extreme example of undermining the rule of law.

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In the case in hand, the engagement of the Chief of Naval Staff and other officers involved in the affairs of the PN Farms and the illegal construction of the Sailing Club are responsible for transgressing their constitutional mandate and tarnishing the image of their institution.

Their acts and conduct relating to these two ventures are a disrespect to the brave officers and soldiers, particularly the heroic martyrs and their loved ones. Such acts cannot be condoned because of the profound consequences for the actual stake holders i.e. the people of Pakistan. It is ironic that the special status of the Armed Forces is exploited when the people rightly criticize their illegal actions. The unjustified aspersions cast on the intent of Petitioner no. 1 for raising the matter before this Court is a classic example. The latter has done what every responsible and patriotic citizen is bound to do.

As already discussed, the ventures of the PN Farms and the Sailing Club were directly or indirectly undertaken by the Pakistan Navy illegally, without lawful authority and in violation of the constitutional mandate. Both the ventures were executed in violation of the enforced law. The relevant authorities and regulators looked the other way and felt satisfied with the issuance of notices as a mere formality. This apathy of public functionaries and regulators is not confined to the case in hand but, rather, it appears to be a persistent phenomenon. The status of governance and rule of law within the 1400 square miles of the Capital of the country is deplorable. There is virtually non-existence of rule of law, which has been relegated to a mere political rhetoric.

This Court has consistently observed that the governance in the capital is confined to serving the privileged and the elite while the

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citizens are exposed to their fundamental rights being gravely violated.

This Court has no hesitation in observing that the governance within the manageable area of the capital is based on the phenomena of elite capture. The execution of the two ventures, PN Farms and the Sailing Club, is a classic example of the non- existence of rule of law. Some classes are probably genuinely convinced that they are above the law. No one is above the law and whoever undermines the rule of law ought to be held accountable and made an example, so as to bring an end to decades of impunity. Pakistan is governed under a Constitution and it ought to be upheld to root out injustice, poverty and the phenomena of elite capture. Both the ventures in the case in hand undertaken by one of the branches of the Armed Forces were illegal from its inception but, because of the institution’s status, no authority was willing to take action.

The buck stopped at the Chief of Naval Staff and those officers who were involved in violating the enforced laws.

16.For the foregoing reasons, it is held and declared as follows:

A. The Armed Forces of Pakistan have a special status under the Constitution and transgression there from is against the public interest and is a subversion and violation of the fundamental rights guaranteed under the Constitution.

B. The mandate of the Armed Forces has been expressly prescribed under the Constitution. Pakistan Navy had no jurisdiction or authority to directly or indirectly engage in real estate venture, thus, undertaking the venture of PN Farms by the Pakistan Navy through one of the offices of

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its headquarters was a transgression, illegal and without lawful authority and jurisdiction.

C. The name of Pakistan Navy nor of any State institution can be used directly or indirectly for a real estate venture having no concern with the functions of such an institution or department.

D. The mutation of land in the name of an office of the headquarters of the Pakistan Navy was unconstitutional, illegal and in violation of the scheme of law described above. The ownership of the land will be dealt with by the Federal Government as mandated under Article 173 of the Constitution.

E. The Authority was not empowered to issue the NOC in favor of an office of the headquarters of the Pakistan Navy.

The NOC was issued without lawful authority and jurisdiction.

F. The Authority shall forthwith resume and take over the land covered under the purported NOC and thereafter proceed strictly in accordance with the Ordinance of 1960 and the regulations made there under. A fortnightly report regarding actions taken shall be submitted to the Registrar of this Court.

G. The Ordinance of 1960 and regulations made there under govern the PN Farms while the PN Farm Byelaws were void having no legal sanctity whatsoever.

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H. The Pakistan Navy had trespassed on the land situated on the embankment of Rawal Lake and that too in a protected national park area. The occupation of the land was illegal, without lawful authority and jurisdiction.

I. The construction of the Sailing Club on trespassed land was illegal and a grave violation of the enforced laws discussed above.

J. The building of the Sailing Club shall be demolished within three weeks so that rule of law could be restored and it shall not be regularized in any manner for having been illegally constructed in an ecologically sensitive area in violation of the mandatory provisions of the Act of 1997.

K. Admiral Zafar Mehmud Abbassi NI(M), Chief of Naval Staff, violated his oath and transgressed his constitutional duty by inaugurating an illegal building on encroached land in violation of the Act of 1997 and the Ordinance of 1960. This was despite notices having been sent by the Authority and the Small Dams Organization.

L. Admiral Zafar Mehmud Abassi NI(M), Chief of Naval Staff and other officers involved in the illegal construction and inauguration of the Sailing Club have made themselves liable to criminal proceedings under section 46 and section 19 of the Ordinance of 1960 and the Act of 1997 respectively. The competent authorities under the

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respective laws shall ensure that criminal proceedings are initiated forthwith.

M. The Federal Government shall proceed against Admiral Zafar Mehmud Abassi NI(M) under the Ordinance of 1961 for acts and omissions amounting to misconduct on his part.

N. The Pakistan Navy shall forthwith cease all its activities on Rawal Lake and hand over the trespassed land to the Small Dams Organization. The Board of Islamabad Wildlife Management constituted under the Ordinance of 1979 shall endeavor to restore the habitat in the surrounding area of the lake in consultation with the Authority and the Small Dams Organization and subject to recommendations made by the Commission appointed herein.

O. The Small Dams Organization and the Authority shall ensure that all the activities in the reservoir, except as necessary for the purposes of the safety or maintenance of the dam, shall forth with cease in order to protect the habitat from further damage and the reservoir from being polluted.

P. Dr Pervaiz Hassan, Sr. ASC, is hereby appointed as a one person Implementation Commission for giving effect to the recommendations made in the report (Annexure-A) regarding Rawal Lake and to investigate the environmental damage caused to the reservoir of Rawal Lake and its surrounding areas. The Commission will be

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assisted by the Secretary, Climate Change and the Director General, Environmental Protection Agency. The Commission shall make recommendations for restoring the reservoir and its surrounding areas as a habitat for various species, particularly the migratory birds.

Q. The Secretary, Climate Change shall forthwith establish contact with the Commission and make appropriate arrangements to facilitate the Commission in completing its proceedings at the earliest.

R. The Secretary, Climate Change shall submit a fortnightly report before the Registrar of the Court regarding the progress of proceedings by the Commission. The Commission shall be at liberty to file an application in case any clarification is required.

S. The Auditor General of Pakistan shall conduct a forensic audit of PN Farms and the Sailing Club to ascertain the loss caused to the exchequer. The loss to exchequer shall be recovered from the officers found responsible for committing illegalities in relation to the respective ventures.

T. The Secretary, Cabinet Division shall place the copies of this judgment before the worthy Prime Minister and members of the Cabinet i.e. the Federal Government. The latter shall take measures for ensuring restoration of rule of law and strict implementation of the enforced laws within the 1400 square mile area of the Islamabad Capital

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Territory. The shall ensure that the demonstrable impunity against violation of the enforced laws, particularly relating to protection of the environment are demonstrably implemented. Accountability, inter alia, regarding acts likely to cause environmental degradation must be ensured.

U. The Deputy Commissioner, Islamabad Capital Territory shall contact Petitioner no. 2 in order to redress the grievances highlighted in the petition.

V. The Secretary, Ministry of Interior shall contact Petitioner no. 1 and ensure that neither she nor her husband are in any manner harassed for invoking the jurisdiction of this Court.

W. The Registrar of the Court shall send copies of this judgment to the above authorities for compliance.

17.The petitions are allowed and disposed of in the above terms.

(CHIEF JUSTICE)

Announced in open Court on 07.01.2022.

(CHIEF JUSTICE)

Approved for reporting.

Tanveer Ahmed/*

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Form No: HCJD/C-121

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

(JUDICIAL DEPARTMENT)

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Mrs Zeenat Salim Vs Pakistan Naval Farms, etc.

S. No. of Date of order/ Order with signature of Judge and that of parties or counsel where order/ proceedings necessary.

proceedings

ATHAR MINALLAH, C.J.-The Court has noted that in paragraph 15 of the judgment of even date, there is a typographical/ clerical accidental slip because Captain Karnal Sher Khan Shaheed has been inadvertently shown as recipient of Sitara-e-Jurrat while it should have been Nishan-e-Haider. The Court orders correction of this accidental slip and clerical mistake pursuant to powers vested under section 152 read with other enabling provisions of the Code of Civil Procedure, 1908.

2.Paragraph 15 shall, therefore, be read as follows and the same shall be deemed as an integral part of the judgment, 07.01.2022, passed in the instant case:

“ The primary constitutional role of the Armed Forces is to defend and protect the people and the territories of Pakistan. This is an onerous obligation because it involves the spirit, commitment and will to sacrifice one's life in the line of duty. The people who the Armed Forces serve and defend, revere and

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look up to them for such an extraordinary feat. The nation of Pakistan takes pride in their brave and courageous officers and soldiers such as Captain Karnal Sher Khan Shaheed (Nishan-e-Haider) and thousands of others who gave the ultimate sacrifice of their lives in defending the people and the country. The enemy also acknowledge their valor.

The Armed Forces have been created to protect the citizens and the country and they cannot afford to be perceived by the people as having become a threat to their rights or having a conflict with the society. Such an eventuality leads to erosion of the confidence of the people and it tarnishes the image of an institution which ought to be respected if it has to effectively perform its constitutional functions.”

(CHIEF JUSTICE)