NAIMATULLAH KHAN ADVOCATE AND OTHERS---

PETITIONERS/APPELLANTS VERSUS FEDERATION OF PAKISTAN AND

OTHERS---RESPONDENTS

2020 SCMR 622

Order Accordingly
Supreme Court of Pakistan
Gulzar Ahmed, C.J., Faisal Arab and Sajjad Ali Shah, JJ
Constitution Petition No. 9/2010, C.M.A. No. 6206/2013, C.M.A. No.1552-K/2018 in
Constitution Petition No. 9, C.M.A. No.1600-K/ 2018 in Constitutional Petition No.9,
C.M.A. No.22-K/2019 in Constitutional Petition No.9, C.M.A. No.23-K/2019 in
Constitutional Petition No.9, C.M.A. No. 59-K/2019 in Constitutional Petition No.9,
C.M.A. No.101-K/2019 in Constitutional Petition No.9, C.M.A. No.311-K/2019 in
Constitutional Petition No.9, C.M.A. No.349-K/2019 in C. P. No. 815-K/2016, C.M.A.
No.394-K/2019 in Constitutional Petition No. 9, C.M.A. No.425-K/2019 in Constitutional
Petition No.9, C.M.A. No. 425-K/2019 in Constitutional Petition No.9, C.M.A. No.459-
K/2019 in Constitutional Petition No. 9, C.M.A. No. 560-K/ 2019 in Constitutional Petition
No. 9, C.M.A. No.521-K/2019 in Constitutional Petition No.9, C.M.A. No.527-K/2019 in
Constitutional Petition No. 9, C.M.A. No.556-K/2019 in Constitutional Petition No. 9,
C.M.A. No. 606-K/2019 in Constitutional Petition No.9, C.M.A. No.617-K/2019 in
Constitutional Petition No.9, C.M.A. No. 631-K/ 2019 in Constitutional Petition No.9,
C.M.A. No.796-K/2019 in Constitutional Petition No.9, C.M.A. No.828-K/2019 in
Constitutional Petition No.9, C.M.A. No.830-K/2019 in Constitutional Petition No.9,
C.M.A. No.831-K/2019 in Constitutional Petition No.9, C.M.A. No.875-K/2019 in Const.
Petition No. 9, C.M.A. No. 889-K/2019 in Const. Petition No. 9, C.M.A. No.896-K/2019 in
Constitutional Petition No.9, C.M.A. No.116/2019 in C.M.A. No.Nil/2019 in Constitutional
Petition No. 9, Criminal O.P. No.7-K/2017 in Criminal O.P. No.11-K/ 2016, Criminal O.P.
No.19-K/2017 in Criminal O.P. No.7-K/2017, Criminal O.P. No. 1-K/2020 in Constitutional
Petition No. 9, Crl. M.A. No.21-K/2017 in Crl. O.P. No.7-K/2017, Crl. M.A. No.124-K/2017
in Crl. O. P. No. 7-K/2017, Crl. M.A. No. 132-K/2017 in Crl. O.P. No.7-K/2017, Crl. M.A.
No.111-K/2018 in Crl. M.A. No.132-K/2017 in Crl. O.P. No.7-K/2017, Crl. M.A. No.243-
K/2018 in Crl. M.A. No.8-K/2018 in Crl. O.P. No.7, Crl. M.A. No.8-K/2018 in Crl. O.P. No.7-
K, Crl. M.A. No.19-K/2018 in Crl. M.A. No. 7-K, Crl. M.A. No. 20-K/2018 in Crl. O.P. No.7-
K, Crl. M.A. No.25-K/2018 in Crl. O.P. No.7-K, Crl. M.A. No.32-K/2018 in Crl. O.P. No. 7-K,
Crl. M.A. No. 38-K/2018 in Crl. O.P. No. 7-K, Crl. M.A. No. 44-K/2018 in Crl. O.P. No. 7-K,
Crl. M.A. No. 52-K/2018 in Crl. O.P. No. 7-K, Crl. M.A. No. 59-K/2018 in Crl. O.P. No. 7-K,
Crl. M.A. No. 71-K/ 2018 in Crl. O.P. No. 7-K, Crl. M.A. No. 72-K/2018 in Crl. O.P. No.7-K,
Crl. M.A. No. 95-K/2018 in Crl. O.P. No. 7-K, Crl. M.A. No. 199-K/2018 in Crl. O.P. No. 7-K,
Crl. M.A. No. 214-K/2018 in Crl. O.P. No. 7-K, Crl. M.A. No. 229-K/2018 in Crl. O.P. No. 7-
K, Crl. M.A. No. 1-K/2019 in Crl. O.P. No. 7-K, Crl. M.A. No. 2-K/2019 in Crl. O.P. No. 7-K,
 C.M.A. No.933-K/2018 in Constitutional Petition No.9, C.M.A. No.964-K/2019 in
Constitutional Petition No.9 and C.M.A. No. 23-K/2019 in Constitutional Petition No.9
Date of Decision: 21.2. 2020
JUDGMENT
       GULZAR AHMED, C.J.---Still we are not given any proper update about the
operation of the Karachi Circular Railways (the KCR) as neither the Secretary, Railways nor
the learned Advocate General, Sindh has any instructions, in that, they both state that it
totally depends upon the provision of financing facility by the People's Republic of China
and activation of the project by the Chinese contractors.
2.    We believe that what has been said before us today by the Secretary, Pakistan
Railways so also the Advocate General, Sindh gives a very grim picture about the KCR's
revival and its operation. The Pakistan Railways seems to have unending paper work that
needs to be done, including that of financing, before it actually starts working on the KCR,
but the real issue for the people of Karachi is about making the KCR available to them and
that too, at the earliest possible date, for that, transportation of the people from one area of
the city to another area has almost become impossible due to absolute non-availability of
road transport. The city is choked by motorcycles, on which, at times, the whole family of a
poor person travels, which of course is very dangerous for their lives. Whatever other
transport is there, it is altogether inhuman and below the dignity of a citizen. We note that no
planning has been made so far for addressing the unending misery of the people of Karachi,
as they are altogether starved of transportation. In the mega city of Karachi, with a bulging
Population of about three crores, obviously this cannot be allowed to go on. The Pakistan
Railways, Government of Sindh and even the Federal Government appear not willing to
improve the situation and salvage the people. In the circumstances, this Court cannot allow
such a devastating situation to prevail, in that it has to do its work of enforcing the
Constitution of the Islamic Republic of Pakistan.
3.    The preamble of the Constitution lays down, inter alia, that the State shall exercise its
powers and authority through the chosen representatives of the people, wherein the principle
of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall
be fully observed and wherein shall be granted the fundamental rights, including equality of
status, of opportunity and before law, social, economic, political justice and freedom of
thoughts, expression, belief, faith, worship and association, subject to law and public
morality. Article 3 of the Constitution provides that the State shall ensure the elimination of
all forms of exploitations and the gradual fulfillment of the fundamental principles, from
each according to his ability to each according to his work. Part-II of the Constitution deals
with the fundamental rights and Principles of Policy and Article 9, thereof provides that no
person shall be deprived of life or liberty save in accordance with law. Article 14 of the
Constitution provides that the dignity of man and subject to law, the privacy of home shall be
inviolable and Article 15 of the Constitution provides that every citizen shall have the right
to remain in, and, subject to any reasonable restriction imposed by law in the public interest,
enter and: move freely throughout Pakistan and to reside and, settle in any part thereof.
Article 18 of the Constitution provides for freedom of trade, business and profession and
Article 25 thereof provides that all citizens are equal before law and are entitled to equal
protection of law, Article 37 of the Constitution provides for promotion social justice and
eradication of social evils. Article 38 of the Constitution provides or promotion of social and
economic well being of the people.
4.    These are the provisions, which guarantee to the citizens the rights, as are noted
therein and each of them as essential to the citizen and also interdependent on each other.
Most sacred among them is the 'right to life' and such right to life is not restricted only to the
prosecution of a person but the state is required, as mandated in the Constitution, to ensure
that all aspects of citizens' life are protected and dealt with by the State.
5.    The provision of drinking water, is a right to life; provision of electricity, is a right to
life; provision of education, is a right to life; provision of health facility, is a right to life;
provision of civic infrastructure and civil infrastructure, is a right to life; so is the subject of
transportation of the citizens, is a right to life, for without transportation neither can the
citizen get education, engage in his trade, business or profession, nor can a citizen reach the
healthcare institutions nor can a citizen obtain necessities of life, like, food, clothes, etc. and
such needs keep on going 'ad infinitum'. The: pivotal thing to be noted is that the State is
required to provide citizens, safe, humane and dignified means of travelling, from one
destination to another, within and outside the Cities. This is also essential to ensure equality
of the citizen and also as a social justice, to eradicate social evils and to promote social and
economic well being of the people. The State and its Organs cannot, as per mandate of the
Constitution, abdicate, ignore or abandon this most important function of theirs and leave the
citizens to fend themselves, which only drives the citizen towards anarchy. This is what
happening in Karachi today.
6.    The mega city like Karachi, where the bulk of the population of the province of Sindh
is settled, needs optimum and immediate attention by the State to provide these constitutional
rights and safeguards to the people. The State by rendering such services to the citizens, does
not give any favour to them but such is the right of the citizens under the Constitution, which
the State and its organ are duty bound to perform. The State and its organ have no option but
to perform their constitutional obligation and there is no flight from the same.
7.    In the face of these mandatory constitutional burdens upon the State, what we see and
find is that the KCR, which was once operating in Karachi, providing easy, accessible, and
dignified mode of conveyance to the people of Karachi, with reasonable charges, was
forsaken. The Japan International Cooperation Agency (the JICA) offered to revive and
operate the KCR some more than 20 years back with no strings or burden, and constantly
sought government's approval to do the job, but was not allowed to do so. Subsequently, the
Pakistan Railways took up the issue and it also failed. However, when the matter was taken
up by this Court on 10.11.2018, some work was started and deadline for its revival and its
operation were given but due to the very apathy of the Pakistan Railways it did not meet any
of the deadlines. Yet we find that the Pakistan Railways is at the planning stage and
proposals after proposals are being considered and nothing concrete has been brought on the
ground. On top of all these rigmaroles and non-attentive attitude of Pakistan Railways, it has
sought refuge now, that the project will be completed by the China-Pakistan Economic
Corridor (CPEC). CPEC means discussing the feasibility of revival and operation of the KCR
with the Government the Peoples' Republic of China, for obtaining of finances from China,
then inviting contractors from China, who will give their own proposals about feasibility
regarding revival and operation of the KCR and after unending paper-work, spanning over
years, whether the Chinese Government or the contractor agree to go on for the revival and
operation of the project of the KCR, will remain hanging in the balance with no guarantee
whatsoever that such will be done by the Chinese Government or its contractors. This is
altogether not acceptable and we find it very hard to accept that the Pakistan Railways has no
resource and capacity in it to revive and make operational the KCR, which merely comprises
of 42 kilometers. We believe that the Pakistan Railways has the resources, the capacity and
even the funding, where it can revive and operate the KCR of 42 kilometers and we cannot
let the Pakistan Railways off the hook from complying with this constitutional legal, social
and moral obligation. The Pakistan Railways with the aid and assistance of all agencies in
Pakistan has to revive and operate the KCR and it shall do so positively within a period of
(06) six months, otherwise, all relevant Government Executives and Officials of the Pakistan
Railways shall put themselves in a perilous situation, as the Court may take action against
them, not only that of contempt of Court but even that of not complying with the mandatory
commands of the Constitution.
8.    The Secretary Pakistan Railways has admitted before us that a major portion of the
lands of Gulshan-e-Iqbal Railway Station has been turned into Pakistan Railways Employees
Housing Society and the remaining land has also been allowed to be encroached upon with
subsequent interest. Not only this, but both sides of the Railway land starting from Kemari
and up to Landhi, are totally encroached upon and even businesses have also been allowed to
be constructed on them including that of petrol pumps, marriage halls, restaurants; show-
rooms and offices, etc. Furthermore, the portion of land of Railways, which go all around
Karachi, has also been encroached upon.
9.    We have gone through the Railways Act, 1890, Railway Board Ordinance, 1959 and
also the Railway Regulatory Authority Ordinance, 2002 and have not been able to find any
provision in them, where the Railway can allow any of its lands or infrastructure to be
converted into that of a private housing society. There is no provision in these laws, where
the Railway may have been allowed to acquire land for making of a private housing society
for its employees. If there is any provision for acquiring of a land, the same has to be for the
purpose of Railways, its operation, and infrastructure and nothing beyond that. The Railway
apparently seems to have been allowed making of residential colonies and dwelling houses
but such residential colonies and dwelling houses have to be the property of the Railway
itself and not private property of the Railways employees. Any employee living in such
residential colonies or dwelling houses will merely be a licencee and shall occupy the same
for the period as provided by the Railways Act itself or as the terms and conditions of the
service provide. The making private housing society by the employees of the Railway on the
Railway land apparently not permissible under the law.
10.  All these societies and encroachments appear to be illegal on their very face, for that,
the Railway land could not be used for any purpose other than the Railway purposes. The
employee of Pakistan Railways also cannot get themselves allotted the land of the Railways,
which in law is only meant for the operation and use of Railways. Thus the Secretary,
Pakistan Railways is directed to issue notices to all the occupants of the Railway land to
vacate the same. Such notices shall be issued within a period of two weeks from today to
each of the occupants of the Railway land. In the meanwhile, both Pakistan Railways so also
Government of Sindh shall chalk out a program for relocation of the persons affected by this
ejectment and will settle them in a decent manner, as is possible providing facility of water,
electricity, gas, sewerage, road connectivity, schools, hospitals, colleges, play grounds and
parks etc. but in the first place, action should be taken for removal and resettlement and
securing the land obtained from removal of-encroachments.
11.  It is informed by the learned Advocate General, Sindh that some interim orders have
been passed by the High Court of Sindh in Suit No.540/1991 regarding these lands. It
appears that these orders have been obtained from the High Court through misrepresentation
by unscrupulous persons and land grabbers and also by the Pakistan Railway Employees Co-
operative Housing Society, on the basis of an unregistered agreement of lease, and false and
fictitious documents. Prima facie, it appears that those interim orders are based on fraudulent
forged, fabricated and illegal documents and thus, we do not consider that interim orders by
any means creates a legal obstruction or any sort of bindingness upon this Court, more so,
when this Court exercises jurisdiction under Article 184(3) of the Constitution of Pakistan.
However, let notice be issued for next date of hearing to the President and General Secretary
of the Pakistan Railway's Employees Co-operative Housing Society to appear before the
Court and explain their position as to how they can maintain Pakistan Railways Employees
Co-operative Housing Society on the Railway land.
12.  The Railway Authorities so also the Government of Sindh are allowed to carry out the
operation of removal of encroachments from all Railway lands, except the land of Pakistan
Railway's Employees Co-operative Housing Society, all over Karachi and such action be
carried on with the aid and assistance of all security forces, that are available in Pakistan and
it should continue unabatedly. Weekly progress reports in this regard shall be made available
to the Court. This matter is adjourned to 06.03.2020, when the Secretary, Pakistan Railways,
the Secretary Planning, the Chief Secretary Government of Sindh and the Attorney General
for Pakistan so also Advocate General, Sindh shall appear before the Court to further deal
with the issue. The report shall contain further development activities undertaken by the
Pakistan Railways for revival and operation of the KCR for achieving the deadline noted
above and also the exact areas of the Railway lands from which the encroachments have been
removed.
C.M.A. No. 74-K of 2020.
13.  Notice to the Advocate General, Sindh and the Chief Secretary, Government of Sindh,
who shall file a report giving solution of the issue raised in the application.
C.M.A. No. 83-K of 2020.
14.  Let notice of this application be given to the Secretary, Pakistan Railways. The
Secretary shall file reply to this C.M.A. and such reply shall be with the approval of the
Federal Minister of Railways.
15.  We may note that the Federal Minister of Railways during the proceedings at
Islamabad has made a statement that if this subject plot is allowed to be sold by the Pakistan
Railways today the amount recovered from it can revamp the whole structure of the Pakistan
Railways.
C.M.A. No. 84-K/2020.
 16,  We have seen the contents of this application. The applicant-Muhammad Akhlaq
Memon, despite being on Court notice has proceeded to Canada. No reply so far has been
filed. Learned counsel for the applicant states that some reply has been filed but such has not
been put up by the office. Notice of this application be issued to the Advocate General Sindh
so also KMC, KDA, Commissioner Karachi and KPT.
17.  It is stated by the learned counsel that Suits Nos.1520/2017 and 1516/2017, are
pending in the High Court of Sindh, Karachi, regarding this very property. Let files of such
suits be requisitioned from the High Court ánd be attached with the present C.M.A. The
office is directed to place, before the Court the record pertaining to Civil Appeal No.104-
K/1981, which appears to have been decided by a judgment of this Court dated 14.09.1989.
Such record also be attached along with the C.M.A. to considered on the next date.
Adjourned to 06.03.2020.