Islamabad: A three member Bench headed by the Honourable Chief Justice of Pakistan Mr. Justice Iftikhar Muhammad Chaudhry and comprising Honourable Mr. Justice Tariq Parvez and Honourable Mr. Justice Amir Hani Muslim heard Constitution Petition No. 62 of 2010 (Marvi Memon Versus Federation of Pakistan, etc.) and Human Rights Case No. 52220-P of 2010 (Application by Ghazanfar Ali Khan) and Human Rights Case No. 57247-A of 2010 (Application by Malik Kausar Abbas, Advocate) and Human Rights Case No. 69622-S of 2010 (Application by Dr. Abdul Ghaffar Rind). The case was heard on 07.06.2011 and the judgment was announced which has been authored by Honourable Chief Justice of Pakistan Mr. Justice Iftikhar Muhammad Chaudhry.
This Court vide order dated 15.12.2010, constituted a Commission comprising M/s Muhammad Azam Khan, former Chief Secretary, Khyber-Pakhtunkhwa, Fateh Khan Khajjak, former Chief Secretary, Balochistan, A. W. Kazi, former Cabinet Secretary, Government of Pakistan, and Kh. Zaheer Ahmed, former Federal Secretary, Government of Pakistan.:-
After hearing all the parties and on the basis of oral and documentary evidence, related information in public domain and its interaction with the affectees, the Commission submitted report, supported by hundreds of documents which have been kept separately in the record and shall always be available for inspection, if need be. The findings of the Commission read as under:-
“Whether embankment breaches during the period of high floods in Indus River are subject to any procedure to be followed by the authorities at the relevant time, if so, what is the manner of exercising of such powers and by whom and under what circumstances?
a. From Diamir-Bhasha downwards upto D.I. Khan, Indus River flows through KP and the Punjab; KP is not threatened by the Indus, nor any SOP for flood embankments was currently in vogue in the Province.
b. Jinnah and Taunsa Barrages on the Indus are being maintained by the Punjab and Chashma Barrage is maintained by the WAPDA.
Whether before ordering embankment breaches at different places, particularly at Aliwahan and Tori Bund, no procedure was followed, if so, who is responsible for the same?
a. The Tori Bund suffered years of neglected maintenance; its height had eroded substantially, and ‘dangerously’, long before the flood season; last minute, misdirected departmental attempt to remove earth from its crest to fill the ‘Garrahs’ [deep pits] on the riverside of the Bund in wee hours of 6/7th August further reduced its height in gross violation of specified guidelines; the public viewed that as a deliberate attempt to breach. At the relevant time, the Chief Engineer, Guddu, camped at Tori Rest House, and his team, especially the XEN in-charge, failed to take timely remedial measures; they were directly responsible for consequential losses in Sindh and Balochistan.
b. The case of Aliwahan Bund was, however, somewhat different; it was not breached during 2010 floods. High level consultations amongst political and civil-military officials including Federal, and Provincial political personages assembled at Sukkur for two days decided against this breach; in fact, the petitioner’s case was that Aliwahan bund should have been breached.
Whether the beneficiaries, if any, responsible for embankment breaches to save their properties/crops etc, are also responsible for the losses sustained by the affectees?
In principle, causing wrongful loss to any one is a penal offence, irrespective of whether the perpetrator gains from that act or not? However, in the case under inquiry, though unprecedented losses were inflicted by acts and omissions of concerned officials in the irrigation hierarchies, no specific evidence was produced to establish wrongful gain by any specific individual, except general and at times vague allegations and opinions on management of irrigation works and ways and means to protect the infrastructures: e.g.
a. In the Punjab, the CE and SE at Jinnah Barrage did not ensure pre-flood preparations, including mandatory stocking of loose stones to plug the potential breaches or to check non-compliance and report deficiencies in accordance with approved Flood Protection Plan for the 2010 season.
b. The CE at Jinnah Barrage and PMO Taunsa Barrage, both failed to ensure observance of barrage regulations, demonstrate effective control or supervision over their subordinates, especially after 21st July PMD warning for acting in accordance with approved Flood Protection Plan for the 2010 season.
c. In case of Tori, MS and PB Bunds in two irrigation regions of Sindh, the then Secretary, Irrigation and two Chief Engineers of Guddu and Kotri Barrages, failed to take timely corrective measures to save affectees from the losses to which they were exposed, both in Sindh and Balochistan.
d. The then Secretary Irrigation Sindh and CE Guddu not only misrepresented facts before the Commission, at Islamabad and the SE Kotri on site at Thatta, knowing these to be false and deliberately suppressed evidence of their respective culpability. Jacobabad Airport was available for flood relief operations, if so then why the relief goods were not sent to affectees on urgent basis?
Finding Presence of sizeable number of foreign personnel at the Jacobabad Airbase for sometime was confirmed; that may have created a perception of its inaccessibility for relief goods. The foreign nationals were reportedly employed to train and assist PAF staff for upgrading facilities, before arrival of the new batch of F-16 planes, due by December 2010, at that time. However, the number of relief flights, flown in and out of Jacobabad airport, during August and September do not substantiate that it remained inaccessible, except on technical grounds of capacity constraints. The PAF confirmed that the base provided a virtual air-bridge for relief operations, in an area, otherwise cut off from rest of the province for many weeks; that contradicted the assertion of closure of the facility for relief assistance.
The Commission after examination of evidence and the relevant record made the following concluding remarks:-
The adumbration of the above evidence, the information and the Commission’s field visits when related to the relevant official instructions and observed practices established that:-
i. In view of sharp political divide in the Muzaffargarh and DG Khan, possibility of mischief in inflicting cuts or politically motivated charges could not be conclusively ruled out as besides FIRs, almost 100 writs were filed in LHC from here Districts.
ii. The officials in-charge of irrigation structures responsible for inefficiency, negligence or corrupt practices identified in departmental inquiries are expected to be proceeded against under due process. This Commission would not like to make any further observations with respect to officials’ subject matter of inquiry of Punjab Judicial Commission.
iii. The then Secretary Irrigation, Sindh and the then Chief Engineer Guddu were well aware of the poor state of Tori Bund long before the 2010 Flood; they had adequate time and to attend to that work but failed to move in time.
iv. The then Chief Engineer Guddu, by his own admission, and his immediate superior, the Secretary Irrigation, had failed to anticipate the expected level of flood waters at Guddu Barrage that inundated Sindh’s three major districts besides Balochistan’s Jafferabad district.
v. Both Chief Engineer Guddu and the then Secretary Irrigation consciously and deliberately, tried to attribute disaster due to inadequate maintenance and funding constraints during yester-years, besides justifying former’s absence from the Tori Bund breach site at the critical time for reasons of heavy rainfall that never was, and the claim that that made vehicular tour of the bund impossible. Especially in view of his own PC-I of 4th February 2010 and Planning Commission’s consensus document that rebut the factum of over-topping.
vi. The SEs and XENs incharge of the breached bunds in Guddu and Kotri command areas are likewise responsible.
vii. The 2010 Flood in Sindh was unprecedented to the extent of duration of the peak flows though the discharges were lower than the 1976 Flood.
viii. The packages prepared for the restoration of irrigation works and embankments had a cost factor of Rs.61 billion in Sindh alone, and the consensus DNA of Rs.11 billion raises legitimate and serious concerns in respect of departmental practices.
ix. AGP may also undertake special audit of funds expended in last 10-years for irrigation sector including review of its own reports.
The processing of loans by DFI’s also took its time and payment of 2nd tranche of Rs.80,000/ household was delayed, leading to frustrated expectations; these multiplied complaints of inaction or negligence. From the material brought on record, it was established that Federal and Provincial Governments and local administrations, supported by general public, political workers, local and international NGOs, all joined hands to launch the humanitarian assistance on unprecedented dimensions, unfamiliar for its management structures eroded systematically and subcutaneously, since 1969. Men and women, civil and military personnel deployed for the purpose rushed with dedication whatever, from wherever and in whatever mode was possible under those conditions.
At the initial stages, saving lives of the marooned, provision of essential food, safe drinking water were the obvious priorities; utensils and other voluntary services were trucked and airlifted as Medical professionals including the internees joined. Most people had no idea that weather takes no note of their belief systems.
Disaster not only evoked and channelized public sympathy, at home and abroad, some major channels actively conducted awareness programs for private charity, collected and disbursed relief assistance, at times by enlisting fame-fatale celebrities of all hue and shade. Besides saving many precious lives, these agencies had done what was humanly possible, in view of the organizational and logistic constraints. That was, however, not so with respect to many in the Provincial Irrigation hierarchies.
In view of the above findings and concluding remarks, the Commission made the following recommendations:-
EXPANSION OF FLOOD EARLY WARNING SYSTEMS (FEWS)
The current early warning facilities in the country are of a limited nature. According to Meteorology Department, the range of forecast is barely 3-4 days. Due to limited technical capacity, we are lagging far behind the developed countries. There are only 07 Radars in the whole country. There is no coverage in the northwest of the country and Balochistan, including the coastal belt of 960 km.
Although Pakistan is a member of the Word Meteorology Organization (WMO), it is not accessing information from it. Nor is it taking full advantage of information available with it. The Honourable Supreme Court may wish to advise the Government of Pakistan for taking the following measures at the earliest:
a. Expansion of radar coverage to the whole country.
b. Establishing a coordinating mechanism with WMO and the SAARC countries for accessing / sharing information on early weather warning.
In its interaction with public and private sector institutions, the Commission noted with concern that major damage occurred due to lack of maintenance and repair of river embankments, canals, and obstruction by major highways/motorways constructed by the Irrigation department and the National Highway Authority (NHA) and others across the country.
BARRAGES AND BUNDS
During its deliberations, the Commission observed that most damages could have been prevented if strategically located escape points, like the Raini Canal, were available at barrages, bunds and motorways/highways. Adequate systems could be put in place providing for a consultative plan for maintenance of bunds through assured funding, if necessary, by generating funds from water users as was offered by formers in KP. Provision for pre-designated breaches at barrages, bunds and motorways/highways could be provided after conducting a detail survey and preparing feasibility reports.
It was brought to the notice of the Commission by representatives of KP that the major reason for inundation of agricultural lands and abadis on the northern side of Peshawar-Islamabad Motorway (M1) was the inadequate capacity of crossing bridges meant for the drainage of flood flows in rivers located between Peshawar and Mardan. The motorway virtually acted like a “bund” obstructing the natural course of water flows in the area. The bed of river Kabul, upstream and downstream of the main Kabul river bridge, has silted up to an alarming level which has decreased the waterway and poses a serious threat of out-flanking and over-topping of this vitally important structure during floods. In fact, this happened during the flood of 2010 near the Jindi River which damaged the M1 resulting in closure of the motorway for several days. Similar concerns were voiced by representatives of civil society organizations and provinces.
The 2010 Flood has fully exposed the illegal encroachments which have been allowed to go unchecked by the concerned authorities due to negligence, corruption and poor managements resulting in massive losses to life and property.
Thousands of acres of “Katcha” lands have been illegally encroached upon by local influentails or have been leased out on nominal charges resulting in erection of private bunds. Construction of houses and other built up properties have been allowed along river banks and canals etc. Similarly, there has been a surge of encroachments on acquired lands in pond areas of barrages which has aggravated the flood hazards. The natural flow of water has been blocked as a result of numerous encroachments in most waterways due to unplanned and illegal constructions.
Unfortunately, the local and provincial governments have themselves indulged in encouraging illegal acts promoting encroachments. Unauthorized and technically unsound public works have been executed by local authorities. Construction of roads and gas pipelines have been allowed to pass through bunds in contravention of legal provisions. All such encroachments have contributed to obstructions in the flow of water resulting in flooding of many areas.
A matter of grave concern which came to the notice of the Commission was that some of the governments are selling acquired lands in pond areas to raise revenues. Under the law, no construction of any infrastructure is allowed to be erected within a distance of 200 feet from banks of the rivers/streams. It should be a matter of serious concern if the government itself indulges in unlawful acts of selling those very lands which it had acquired to protect irrigation infrastructure and property of the citizens.
The governments must correct that and ensure that no encroachments are permitted and no acquired lands are sold or leased out. Actions should be initiated by governments to remove all encroachments with a firm hand. It should also ensure that all such illegally constructed structures on government lands which had been destroyed by the recent floods are not allowed to be re-erected.
The Honourable Supreme Court may wish to consider appropriate directions to the government in this regard.
Besides the above findings and recommendations, the Commission, has noted following important impressions:-
‘Pakistan’s current water storage capacity is limited to 10-15% of annual availability, rest flows to the Arabian Sea. With additional storage, the Nature’s free bounty will not only add cheapest electricity and feed up to 500 million people’: Muhammad Shakil Durrani, Chairman WAPDA.
Amongst them, one of the most important impressions is mentioned on the top of the list. This statement has been made by a person not less than the status of Chairman WAPDA, denial whereof apparently is not possible, unless rebutted by any other cogent version. How a country like Pakistan, whose economy mainly depends on agricultural growth, can afford that its 85-90% of water flows into the Arabian Sea, thus goes waste, surely due to non effective administrative plans including increasing the current water storage capacity, which is not only the cheapest source of generation of electricity thereby adding the resources for the welfare of the citizens. The Commission in its recommendations has emphasized on the need of completion of construction of Munda Dam. The Federal Government is directed to look into this aspect of the matter seriously.
‘In all, 1,296 rescue and relief flights were handled by the PAF out of which 767 flights were operated from the Shahbaz Airbase, in Jacobabad, along’: Mr. Rab Nawaz, Secretary, the Punjab I and P Department.
‘…most bunds, including Tori Bund, had lost almost 70 inches or so of their designed heights that contemplated six feet freeboard over 1976 HF Line with additional margin of 1-2 feet’: Statement by Mr. Zafarullah Mehr, Former Chief engineer, Guddu Barrage, on behalf of the Sindh Government.
‘Sindh administration was negligent as it did not take appropriate measures, though the flood waters from Khyber Pakhtunkhwa (KP) took almost 3 weeks to reach Kotri’: Sh. Nisar Hussain, Bureau Chief of ‘Apna TV’.
The Court observed that the pictures placed on record along with report by the Commission speak that how their dignity, etc. was compromised. This Court has interpreted the expression “life” being keyword in Article 9 in a number of judgments including the case of Shehla Zia v. WAPDA (PLD 1994 SC 693); therefore, elaborate/detailed discussion on this aspect of the case is not necessary because though on account of the natural disaster the citizens in all the four provinces suffered dreadfully due to which neither their lives nor the property were safe but at the same time the executives could not be excluded from their liabilities to extend the fundamental right of life and liberty to them, for the reasons mentioned in the findings as well as recommendations of the commission, therefore, Government is directed to ensure payment of balance of remaining amount, which is approximately Rs.80000/- per family as early as possible.
In this context reference of encroachment in the chapter of recommendations which has already been reproduced hereinabove, may be made. It contains statement of facts because the illegal encroachments have been allowed to go unchecked by the concerned authorities due to negligence, corruption and poor management resulting in massive losses to life and property. It further adds that thousands of acres of “Kacha” lands have illegally been encroached upon by local influential persons or have been leased out on meagre charges resulting in erection of private bunds. Construction of house and other built-up properties have been allowed along with river banks and canals, etc. Similarly, there has been a surge of encroachments on acquired land in pond area of barrages which aggravates the flood hazards.
The natural flow of water has been blocked as a result of enormous encroachments in most waterways due to unplanned and illegal constructions. The findings of the Commission need no further proof, therefore, the concerned Provincial Governments through their Chief Secretaries, should immediately remove the same; even if need be, by adopting coercive measures through the law enforcing agencies, otherwise responsibility of any loss to life and property of the victim shall rest upon their shoulders with all its consequences.
With a view to disseminate the contents of the report in recognition of the fundamental rights of the citizens under Article 19-A of the Constitution, findings, concluding remarks and recommendations, simultaneously have been reproduced hereinabove in English and Urdu languages.
As a result of above discussion, the findings, concluding remarks and recommendations are endorsed, accepted and hereby made part of this judgment with declaration that it will have binding effect on all concerned and sundry.
Thus, accordingly following directions are issued:-
(i) The Federal and Provincial Governments through Secretary Cabinet and Secretary Interior Division as well as Chief Secretaries of all the Provinces are hereby directed to implement the findings and recommendations of the report in letter and spirit.
(ii) The report so prepared by the Commission shall be supplied, both soft and hard copies, to all concerned immediately.
(iii) The Secretary Information of Federal and Provincial Governments are hereby directed to ensure publications of the findings and recommendations of the Commission and the instant order widely in print media as well as in electronic media in all the provinces and Islamabad Capital Territory in national and local languages.
(iv) The compliance report for our perusal in Chambers shall be sent fortnightly by the Chief Secretaries.
Before parting with the judgment, we would like to express our gratitude to the Flood Inquiry Commission in producing their report in compliance with our order of 15th December, 2010 passed in these petitions brought before us, in the wake of the sufferings of persons who had to endure due to the floods swallowing up major parts of this country, damaging precious lives and valuable property. We would like to thank the Chairman of the Flood Inquiry Commission, Mr. Muhammad Azam Khan for chairing this Commission whose unfettered commitment made this report to see the light of the day, reflecting the colossal damage suffered by this nation.
We would also like to thank the other three members of the Commission, including M/s Fateh Khan Khajjak, A.W. Kazi and Kh. Zaheer Ahmed for their determination and perseverance towards the completion of this task with their administrative skills, professionalism, commitment, devotion and dedication in not only unearthing the facts and circumstances surrounding this disaster suffered by the victims but also following the constitutional command that life and property of the citizen must be protected by the executive.
We would further like to acknowledge the backing provided by the Federal Government as well as the Provincial Governments by complying with the orders of this Court and assisting in the making of this report. We would also like to thank the Secretary Cabinet Division, Ms. Nargis Sethi for providing her assistance and collaboration in successfully composing this report. We must acknowledge the support provided by Mr. Sajid Mehmood Qazi, Additional Registrar of this Court/ facilitator of the Commission and his staff by assisting the inquiry Commission in accomplishing their task without any hindrance and providing them with all the necessary help required. We also acknowledge and appreciate gestures shown by the petitioners by invoking jurisdiction for the enforcement of the fundamental rights having public importance as discussed hereinabove. We feel that media persons had equally played effective role to unearth the sufferings of the victims of flood, 2010, therefore, we appreciate their efforts in this behalf as well.
For the foregoing reasons petitions are accordingly accepted.
Remaining recommendations and findings are the same which are mentioned in the report and the judgment.
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