MAQBOOL BAQAR, J.- The above criminal original 
petition was filed by the petitioners alleging contempt/violation 
of judgement of this Court rendered in Suo Moto Case No.10 of 
2005 on 31.7.2009. 
2. 
 
The above proceedings were initiated with regard to 
environmental hazard that was apprehended as a result of the 
development/construction 
of 
New 
Murree 
Project 
in 
compartment Nos.21 to 38 of Patriata reserve forest, Tehsil 
Murree, District Rawalpindi over an area of 4111 acres. 
Various orders were passed, and several reports were 
submitted during the pendency of the above proceedings. 
However on 28.7.2009, this Court was informed that the New 
Murree Development Authority has been dissolved and the 
New Murree Development project has been disband. The Court 
thus raised the following two queries for the official 
representatives appearing in Court to respondent to:- 
(1) 
Why 
the 
New 
Murree 
Development 
Authority has been dissolved? 
(2) 
What measures the Government of the 
Punjab has taken to ensure that in future 
no project detrimental to the environment 
would be launched?     
 
In response to the above, the Secretary Environment appeared 
before the Court on 31.7.2009 and submitted that NOC for 
Cr.O.P.57/15 
2 
 
Environmental Impact Assessment (EIA), was never issued by 
the 
Government 
of 
Punjab 
because 
the 
environment 
department was not in favour of New Murree Development 
Project. He submitted a statement enumerating various 
measures enforced, to protect the environment in and around 
Murree. The following of the said measures may be found 
relevant for the present purpose:- 
“(ii) 
All kinds of construction and development 
activities are banned in these areas.  
(iii) 
Across the board application of section 12 
and 16 of the Act is being ensured in these 
areas. The District officer (Environment) 
Rawalpindi has been directed to carry out 
effective monitoring of these areas. 
(iv) 
All kinds of development activities are 
banned along both sides of Murree 
Express Way. 
(v) 
No construction allowed within 100 meters 
along both sides of Murree Express way. 
(ix) 
Proponents of thirteen (13) properties i.e. 
M/s Moin and Jan Associates, M/s 
Quality Apartment Phase-II, M/s Tourism 
Development Corporation of Punjab, Awan 
Market, Abbasi Market, Gulistan market, 
Raja Hafeez Market, Al-Khair Market, 
Ajmal Market, Raftar Abbasi market, Saad 
market and M/s Hakas (Pvt.) Ltd are being 
proceeded against under section 16 of the 
Act ibid (Environmental Protection orders 
have been issued to them). 
(x) 
One 
proponent 
M/s 
Judicial 
Town 
(Housing Scheme) has been summoned for 
hearing under section 16 of the Act ibid, 
whereas M/s Commoner garden, M/s 
Cr.O.P.57/15 
3 
 
Husnain Resorts-I have been advised to 
restrain 
from 
carrying 
out 
any 
constructive/development 
activity 
and 
obey environmental laws.” 
     
This Court after narrating the relevant facts and incorporating 
the relevant portion of various reports submitted during the 
proceedings, and keeping in view the above reports and 
assessment, 
and 
particularly 
assessment 
of 
ecological 
significance prepared by WWF, whilst holding that there was 
no probability of the revival of the project, disposed of the 
above proceedings through judgment dated 31.7.2009 in the 
following terms:- 
“7. 
It is important to note that in view of the 
above 
reports 
including 
a 
comprehensive 
assessment of ecological significance report 
prepared by the WWF, there was no probability 
of the revival of the project. At the time when the 
project was started, the apprehension of the 
environmental experts was that nearly 4000 
trees (one per cent of the total tree population of 
the area) would be affected by the aforesaid 
project, which, in turn, would adversely affect 
the Patriata Forests, which were responsible for 
boosting high average of rainfall anomaly in the 
country (around 1.77 millimetre) as it was 
situated in the catchments are of simly and 
rawal dams, which provides drinking water to 
almost half of the population of Rawalpindi and 
Islamabad. It is noteworthy that all over the 
world national parts are developed to preserve 
flora and fauna facing threat of extension in the 
wake of modern-day-life development projects 
Cr.O.P.57/15 
4 
 
including mushroom growth of housing projects, 
recreational facilities, etc. The need is to 
sensitize the general public to the fundamentals 
of sustainable development so as to achieve the 
goal of a healthy environment, not only for the 
present population, but also for the future 
generations.; the concerned agencies of the 
Government including Environmental Protection 
Agencies at different levels have a heavy onus to 
discharge in this regard. The Government of the 
Punjab, considering the environmental hazard 
posed by the New Murree Development Project, 
has taken a right decision in disbanding the 
same. Since the project has been disbanded and 
presently there is no threat of environmental 
hazard in the area on account of the project, no 
further action is called for in the instant 
proceedings. The suo motu has fructified and 
the same is disposed of accordingly.”    
 
3. 
 
However, 
through 
the 
above 
petition, 
the 
petitioners, namely, Muhammad Asjad Abbasi, Muhammad 
Faiz and Muhammad Imran, alleged that construction is being 
raised in Mouzah Mengal and Khatar of Tehsil Murree in 
violation of the above judgment. However the later two did not 
pursue their petition. 
4. 
 
Sardar Muhammad Aslam, learned ASC for the 
petitioner, in order to substantiate the petitioner’s claim that 
the judgment is being violated referred to paragraph 4 thereof 
wherein the measures said to have been enforced as contained 
in the statement of Secretary Environment were incorporated. 
Cr.O.P.57/15 
5 
 
He submitted that in view of the foregoing no construction 
work could have been undertaken or continued in the entire 
Tehsil 
Murree. 
Learned 
counsel 
emphasised 
that 
the 
construction work is being carried out in the land comprising 
in Shamalat-e-Deh, which land cannot be broken up for 
cultivation, or for any other purpose not envisaged by the 
relevant Wajabul Arz, and such land can also not be 
partitioned in violation of the provisions of Wajibul Arz. 
Learned ASC contended that the subject construction is not 
only permissible under the relevant Wajibul Arz, but is also 
violative of the provisions of Forest Act, 1927 and the Rules 
framed thereunder. 
5. 
 
On the other hand, Mr. Aitzaz Ahsan, learned 
Sr.ASC appearing for the purchaser of the property in 
Commoners Flower Valley, and on behalf of Bahria Town 
respectively, submitted that in the first place the purported 
contempt application is not maintainable as neither is there 
any order banning or restricting any construction or 
development activity beyond 4111 acres land of patriata forest, 
contained in the judgment dated 31.7.2009 of this Court, nor 
were the proceedings in the criminal original petition No.57 of 
2015 related to any land other than the above land of Patriata 
Cr.O.P.57/15 
6 
 
forest. Learned counsel further submitted that paragraph 4 of 
the judgment dated 31.7.2009, merely refers to the statement 
made by Secretary Environment and incorporated the 
measures said to have been enforced by him to save/avoid 
environmental degration. Mr. Ahsan further submitted that the 
perusal of the various measures as enumerated in the 
aforesaid paragraph make it quite clear that in fact the ban 
was enforced on carrying out construction without complying 
with the provisions of section 12 and 16 of the Pakistan 
Environmental Protection Act, 1997, and that even otherwise 
such measures/restriction did not form part of the judgment 
dated 31.7.2009 and therefore the purported contempt 
application was/is liable to be dismissed. The learned Sr.ASC 
further submitted that through the contempt petition the 
petitioner in their petition did not raise any issue pertaining to 
Shamalat-e-Deh but it was only during the course of 
arguments that such issue was raised on behalf of the 
petitioner. Mr. Ahsan further submitted that contrary to the 
claim of the petitioners none of the relevant Wajibul Arz placed 
any restriction on cultivating the land comprising Shamalat-e-
Deh, and/or using the same for raising any construction 
thereon. He submitted that the provision of Wajibul Arz did not 
Cr.O.P.57/15 
7 
 
have the force of law and as defined/described by section 39 of 
the West Pakistan Land Revenue Act, 1967, is merely a 
statement of custom respecting rights and liabilities in the 
estate, and has also been so defined by J.M.Douie in his 
famous book titled “Settlement Manual” in the following 
words:- 
“The Wajib-ul-Arz, or village administration 
paper, should be a record of existing customs 
regarding rights and liabilities in the estate.”  
 
He submitted that though it has been recognized that at times 
Wajibul Arz may be recital of the agreements, but such status 
of the documents, cannot be accepted without any proof and in 
the present case there is absolutely no proof that the 
provisions contained in the relevant wajibul Arz are result of 
any agreement amongst the village proprietary body and the 
government, as alleged, and therefore the same cannot be used 
to place any restriction on the proprietor of the land 
constituting shamalat. Tthe Learned counsel referred to 
section 3 of the West Pakistan Land Disposal (Saving of 
Shamilat) Ordinance 1959, which reads as follows:- 
“3. Shamilat not included in disposition of 
land unless specifically mentioned as subject 
matter of the disposition.- (I) Notwithstanding 
any law, usage or custom to the contrary, in any 
disposition of land, whether testamentary or 
Cr.O.P.57/15 
8 
 
otherwise, effected by the maker by means of a 
writing or orally and whether made before or 
after the commencement of this Ordinance, 
words or phrases of a general nature, purporting 
to 
convey 
rights, 
or 
interests 
incidental, 
contingent or collateral, to that land, shall not 
be so construed as to include unless such 
shamilat 
or 
a 
portion 
thereof 
has 
been 
specifically mentioned as the subject matter of 
the disposition.” 
  
He submitted that the above provisions clearly recognise the 
right of selling of his share by the joint owner in the Shamalat-
e-Deh and thus any restriction on the rights of such owner to 
alienate or sell his share in the shamalat would be violative of 
the above provision, and also of his fundamental rights, as 
enshrined/protected by the Constitution. Learned counsel 
referred to form XXXVI as prescribed under Rule 72 of the 
West Pakistan Land Revenue Rules, 1968. The specimen 
whereof shows that the same is titled as “Statement of custom 
(Wajibul Arz)” and the first heading/item of custom as 
contained therein reads as follows:- 
(1) 
Common 
land, 
its 
cultivation 
and 
management, and the enjoyment of the proceeds 
thereof”      
 
Learned counsel submitted that from the very first content of 
the prescribed form for Wajibul Arz, it can be seen that the 
common land is certainly cultivatable and there is no 
Cr.O.P.57/15 
9 
 
restriction on cultivating the same as wrongfully claimed. Mr. 
Ahsan further submitted that the contents of Wajibul Arz are 
not the same in respect of all the Mouzahs. He pointed out that 
in respect of Mouzah ‘Mengal’, there is not restriction on 
partitioning shamilat, and in Mouzah ‘Khattar’, there is no 
Shamalat-e-Deh, 
whereas 
the 
entire 
land 
constituting 
Shamalat-e-Deh in Mouzah ‘Salkhater’ has been transferred 
and mutated in the name of the original owners thereof 
according 
to 
their 
respective 
shares. 
Learned 
counsel 
contended that there is absolutely no basis for the claim that 
the rights in the shamalat-e-Deh are confined merely to 
grazing cattle and no more, as neither the relevant Wajibul Arz 
nor any law places any such restriction. As per learned 
counsel, by curtailing the rights and privileges of the owners of 
Shamalat-e-Deh and restricting its user, merely to grazing 
grounds, would remove the distinction between shamalat-e-
deh, the land comprising wthereof is individually owned by the 
residents of the Mouzah proportionately and the land 
comprising ‘Rafah-e-Aam’. Learned Sr.ASC also submitted that 
no trees have been cut by his clients in violation of any law, or 
the contents of the Wajibul Arz and has in fact deposited Rs.20 
Million with the forest department as ‘replenishment charges’ 
Cr.O.P.57/15 
10
 
and has also planted more than 1.4 million trees in and 
around its projects.  
As regards Rule 4-A and 4-B as contained in the notification 
No.171 dated 19.3.1909, learned counsel submitted that the 
Rule 4-A does not pertain to Shamalat-e-Deh but is applicable 
to the area reserved as Chirah Gah and is thus not relevant 
whereas Rule 4-B only placed a condition of obtaining sanction 
of the provisional government before the Shamalat-e-Deh is 
partitioned. He submitted that such restriction has not been 
recognized by the subsequent relevant law, being West 
Pakistan Land Disposal (Saving of Shamilat) Ordinance 1959 
which law contrary to placing any restriction on sale of 
Shamalat land, in terms of section 3 thereof, recognises the 
owner’s right to sell his share therein. As per learned counsel 
the purported restriction imposed through rule 4-B cannot 
even otherwise be sustained in view of the right to enjoy or use 
the property as enshrined in Article 8,9,23 and 24 of the 
Constitution and that in terms of Article 23, a citizen’s right to 
acquire, hold and dispose of property could only be subject to 
the  constitution or any reasonable restriction imposed by law 
whereas as noted above such right can only be subject to law 
whereas the relevant law, being West Pakistan Land Disposal 
Cr.O.P.57/15 
11
 
(Saving of Shamilat) Ordinance 1959, does not place any 
restriction on the right to sell Shalamat land.  
 
 
Reverting back to Rule 4-B ibid, Mr. Ahsan 
submitted that though the said rule requires government’s 
sanction for partition of Shamalat land however there is no 
rule imposing any penalty on partition without prior sanction 
and therefore such sanction can also be granted ex-facto. Non-
compliance of the requirement prescribed through Rule 4-B 
does not call for confiscation or retrieval of the land. More so 
when partitioning or alienating the shamalat land has been a 
long standing practise and custom, which as noted earlier is 
not contrary to the relevant law. In support of his contention, 
the learned Sr.ASC referred to a document containing details 
about various projects/buildings situated in Shamalat-e-Deh 
in Rawalpindi and Islamabad, which contains as many as 28 
different buildings, official and private, including public 
buildings such as public hospitals, colleges, housing societies 
and also the Rawalpindi Bench of the Lahore High Court, and 
Shifa Eye Hospital, built on such land. The document also 
contains a note to the affect that in mouzahs in the Potohar 
region, including Islamabad, 50% of the land comprises 
Cr.O.P.57/15 
12
 
Shamalat-e-Deh, and all have been partitioned amongst its 
owners.  
 
 
The position that emerges from the foregoing is that 
the only objection raised on behalf of petition to the subject 
construction/development as that such is being done in 
Shamalat land in violation of the contents of the relevant 
Wajibul Arz, in as much as, the relevant Wajibul Arz provides 
that the land therein cannot be partitioned without sanction of 
the government and that the trees grown within the shamalat 
land shall be presumed to be owned by the government. In the 
first place as noted earlier, the document Wajibul Arz could 
either be a statement of local custom and usage, or can be a 
recital of agreements. Since nothing has been placed before us 
to show that the relevant wajibul arz have been prepared with 
the consent of the village proprietary body and the 
government, we cannot treat the same as agreement and 
therefore can only treat them  as statement of local custom or 
usage. Whereas in view of Article 8 of the Constitution any 
custom or usage or even law, so far it is inconsistent with the 
fundamental rights conferred by the Constitution, shall to the 
extent of such inconsistency be, void. And as noted earlier, 
contrary to the relevant Wajibul Arz and the rules framed 
Cr.O.P.57/15 
13
 
under the Forest Act which rules have been discussed 
hereinbefore. The relevant law, being West Pakistan Land 
Disposal (Saving of Shamilat) Ordinance 1959, “provides for a 
uniform interpretation of general expression with regard to 
dispossession of Shamilat” In terms of section 3, recognizes the 
rights of owner in Shamilat land to sell his share therein. 
Furthermore any restriction, either through Wajibul Arz, or 
any rule, which is inconsistent to or in conflict with the 
provisions of Article 23 and 24 of the Constitution are void. In 
any event rule 4-A ibid, as noted above, has no relevance, 
whereas Rule 4-B merely requires that the partition be made 
after sanction by the government, and as noted earlier the 
partition not being contrary to any law can always be 
sanctioned subsequently also. The partitioning of the Shamilat 
land has been in practice since long and as per the documents 
referred to hereinabove, almost 50% of the land in Potohar 
region including, Islamabad, comprises of Shamilat and the 
same has been partitioned amongst it owners, and a number 
of housing project and buildings, such as High Court building, 
Shifa Hospital and Fauji Foundation Hospital, are constructed 
on such land. As regard the cutting of the tress, as noted 
above, Bahria Town claims to have deposited substantial 
Cr.O.P.57/15 
14
 
amount towards replishment charges and to have planted a 
large number of trees. Further more the question of 
compliance or non-compliance of the environmental laws and 
as to whether the subject construction/development is causing 
any damage to the environment and ecology are sub judice 
before the Environmental tribunal. In view of the foregoing it 
would not be just and fair to order retrieval of the subject 
lands but the issue requires indepth and detailed hearing so 
that the same be decided after thrashing out material aspects 
of the case and in view of the relevant law, its implications, 
more 
particularly 
keeping 
in 
view 
that 
substantial 
construction/development has already taken place and the 
government of Punjab has never raised objection to the 
utilization of the shamilat land like in the present case, and 
further according to the AG Punjab none from the village 
proprietary 
body 
raised 
any 
objection 
to 
the 
subject 
construction/development before any governmental authority 
and thus a large number of people have invested their life long 
saving and the money they raised as bank loans in buying 
properties therein. The petition therefore be fixed for further 
hearing.               
 
 
 
 
 
 
 
 
 
Judge