A Supreme Court bench on Feb 2 set aside a 2018 judgment of the Peshawar High Court whereby it had questioned different issues related to the much-publicised Bus Rapid Transit (BRT) project especially the delay in its completion, cost escalation and award of the contract and had directed the National Accountability Bureau to conduct investigation/inquiry in that regard.

The apex court judgment has for the time being provided respite to the Khyber Pakhtunkhwa government which has been drawing criticism from different quarters specially the opposition political parties regarding alleged irregularities in this project.

Since inception of BRT, a flagship project of Pakistan Tehreek-i-Insaf government launched in Oct 2017, it has remained under legal challenge and the legal battle is still not over.

The PHC bench headed by then chief justice Waqar Ahmad Seth had on July 17, 2018, ruled: “The delay, the contract awarding process, feasibility and all the issues related 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 and submit its report before the next date.”

The NAB was directed to submit its report before PHC on Sept 5, 2018.

The high court bench had 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 per cent scope of the work has been enhanced and last date of completion of the project was 21st/ 24th June 2018.”

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

The apex court had granted leave to appeal to the KP government and Peshawar Development Authority (PDA) on Aug 31, 2018, and suspended the operation of the impugned judgment of the high court. The KP government had adopted plea that after disposal of petitions by PHC in 2017 the high court had no jurisdiction to issue orders in the already decided matter.

Initially, a bench of the high court headed by then chief justice Yahya Afridi (now a judge of SC) had on Dec 7, 2017, declared the BRT project in accordance with law, but had expressed dissatisfaction over the alternative traffic plan prepared by the traffic police for the project.

The court had then disposed of two writ petitions challenging the BRT project on multiple grounds, with certain observations and directives given to the relevant officials, including the KP inspector general of police and EPA’s DG.

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

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 related to technical and financial aspects of any project, much so of a project which is highly specialised 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.

In that judgment the bench had ordered that a fortnightly joint report of DIG (traffic) and commanding officer of the military police of Peshawar cantonment should be submitted to the Human Rights Cell of the court confirming the steps taken and their satisfaction regarding the efforts made in regard to alternative traffic plan.

After delivering that judgment, the high court conducted various hearings on the progress reports submitted by different departments including the DIG (traffic) and commanding officer of the military police and it was during those hearings when the court issued the impugned order of July 17, 2018.

From time to time the government representatives continued to give different dates to the high court for completion of the project in 2018, but the commitments made before the court could not be fulfilled.

While the SC decided the KP government’s appeal of 2018 after over two years of issuance of the stay order, another appeal of the government has been pending against a 2019 judgment of the PHC wherein it had issued directives to the Federal Investigation Agency (FIA) to probe different aspects of the BRT.

The SC has already issued stay order in favour of the KP government and suspended operation over the 2019 judgment.

A bench of the high court comprising chief justice Waqar Ahmad Seth and Justice Ahmad Ali had on Nov 14, 2019, decided three writ petitions related to the 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 metres.

In that judgment the bench had 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.

The government in its CPLA (civil petition for leave to appeal) has disputed the point formulated by the PHC about any nexus among former chief minister Pervez Khattak, then PDA’s DG Saleem Wattoo, provincial minister Shah Mohammad and others, stating the language of the statement as well as its contents are too slang and should not have been used in a court’s judgment.

Legal experts believe that after the recent judgment of the apex court the earlier order of the high court of issuing directives to the NAB is no longer in the field. However, that under the National Accountability Ordinance, 1999, the NAB is empowered to start an inquiry into the matter on its own as now there is no restraining order from any court.

Published in Dawn, February 8th, 2021

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