A recent judgment of Peshawar High Court directing Federal Investigation Agency to probe different aspects of much publicised Peshawar Bus Rapid Transit (BRT) project has cast a shadow over its transparency and also resulted into embarrassment for Khyber Pakhtunkhwa government.

While the provincial government and Peshawar Development Authority (PDA) have announced to move Supreme Court of Pakistan against the said judgment, earlier appeals filed by them against another order of the high court last year have still been pending before the apex court.

Over the earlier CPLA (Civil Petition for Leave to Appeal) filed by the two respondents, KP government and PDA, the apex court had suspended the judgment of the PHC last year due to which National Accountability Bureau (NAB) was stopped from probing into the BRT, which is a flagship project of Pakistan Tehreek-i-Insaf (PTI) government and was launched in Oct 2017.

A bench of the high court comprising Chief Justice Waqar Ahmad Seth and Justice Ahmad Ali had on Nov 14 decided three writ petitions related to BRT project.

Two of the petitioners named Fazal Karim Afridi and Adnan Afridi had challenged the raising of different structures of the project adjacent to their houses in Hayatabad Township. The third petitioner, Advocate Isa Khan, had requested the court to order construction of overhead bridges or under-passes for pedestrians at a distance of not more than 100 meters.

The bench has now formulated 35 points related to BRT asking the FIA to probe it and to take action against the delinquents, if found in the inquiry report.

Since its launching, the project has been facing legal challenges. Initially, it was challenged in the high court on multiple grounds, but the court had in Dec 2017 declared the project in accordance with law.

A bench comprising the then PHC’s Chief Justice Yahya Afridi and Justice Syed Afsar Shah had on Dec 7, 2017, disposed of two writ petitions with certain observations and directives given to the relevant officials including the KP Inspector General of Police and Environmental Protection Agency’s Director General.

One of the two writ petitions was filed jointly by a former provincial minister Amanullah Haqqani and a citizen Wali Khan, whereas the other one was filed by an environmentalist Abid Zareef.

The then KP advocate general, Abdul Lateef Yousafzai, had told the court that first phase of the project comprising the civil work would be completed within six months and under the agreement no escalation charges would be given to the project contractor if the work was not completed in that period.

In that judgment the high court had overruled the petitioners’ objection that the project was in violation to the KP Local Government Act as under that law the district government had the authority to launch a mass transit project.

The court had ruled that the action of carrying out Peshawar Sustainable Bus Rapid Transit Corridor Project (BRT) under the Khyber Pakhtunkhwa Urban Mass Transit Act, 2016, was with lawful authority.

“The provision of Khyber Pakhtunkhwa Urban Mass Transit Act, 2016, is neither in violation of Article 140-A of the Constitution nor irreconcilably contradicts the provision of the Khyber Pakhtunkhwa Local Government Act, 2013,” the bench had ruled.

The bench had expressed dissatisfaction over the traffic plan and had observed: “The alternative traffic plan, as presented by Mr Riaz Ahmad, SP (Traffic), Peshawar, was not at par with what was warranted in view of the magnitude and scope of works under the Project.”

The bench had ordered that a fortnightly joint reports of the DIG (traffic) and commanding officer of the Military Police of Cantonment, Peshawar, were to be submitted to the Human Rights Cell of the high court confirming the steps taken and their satisfaction regarding the efforts made in regard to the alternative traffic plan.

About the environmental effects of the project, the bench ruled that the brief report submitted and oral submissions of the EPA’s DG clearly demonstrated that, prima facie, the prescribed requirements for rendering EIA (environmental impact assessment), as provided under section 13 of the EPA Act of 2014, have been complied with.

The then petitioners had also contended that the technical, financial, supervisory and executing capacity of the provincial government to carry out the project was lacking, hence would lead to a disaster. However, the bench had not given any findings on that objection.

“Findings on issues relating to technical and financial aspects of any project, much so of a project which is highly specialized requiring engineering and financial expertise, such as the present Project, ought not to be passed by a Constitutional Court,” the bench had observed.

“Accordingly, this Court would not like to enter into such controversies and pass any findings on technical and financial viability of the Project,” the court observed.

The issue took interesting turn when on July 17, 2018, a bench of Chief Justice Waqar Ahmad Seth and Justice Mussarat Hilali took exception to different matters related to BRT especially delay in its completion, cost escalation and awarding of the contract and had directed the NAB to conduct investigation/inquiry regarding its transparency.

The court had directed the NAB to complete the inquiry and submit the report before Sept 5, the next date of hearing the case.

The bench observed: “After hearing arguments at great length, we feel it appropriate to refer the matter to the NAB authorities for conducting proper investigation/ inquiry due to the fact that 50% scope of the work has been enhanced and last date of completion of the project was 21st/24th June 2018.”

The bench further observed that initially, Rs49.3 billion were approved and at present revised PC-I has been processed for approval with Rs67.9 billion cost.

“The delay, the contract awarding process, feasibility and all the issues relating to the project of Peshawar Sustainable Bus Rapid Transit Corridor Project (BRT) are all shady and shaky and as such, the NAB authorities are directed to conduct proper investigation/inquiry transparency of the project and submit its report before the next date.”

However, the provincial government and PDA had filed CPLA in Supreme Court requesting to set aside the said order. A bench of the apex court headed by the then chief justice of Pakistan, Mian Saqib Nisar, on Sept 4, 2018, suspended the said order of the high court due to which the initial inquiry conducted by NAB could not see light of the day.

Over a year has passed since the apex court stayed the judgment of the high court and so far the appeal has not been decided.

Experts believe that if the PTI led government including the then chief minister, Pervez Khattak, had not committed any illegality in the project, it should not be shy of any investigation by NAB or FIA. They believe that the more the issue was delayed, more it would give strength to the accusations of irregularities in the project.

Published in Dawn, December 9th, 2019