1. The present direct complaint under section 21(3)(b) of the Pakistan Environmental Protection Act, 1997 has been filed by one Sarfraz Khan son of Ghulam Khan against the Province of Sindh and others.
2. The facts giving rise to this complaint are that the complainant being aggrieved with the inaction of concerned agencies on 29-5-2007 had filed Constitutional Petition No,-D-1149 of 2007 before the honourable High Court of Sindh, at Karachi against the present respondents, which was disposed of on 30-1-2008, with the direction to the petitioner to first approach the Special Court to get his grievance heard and redressed. Consequently, on 3-3-2008 he made such complaint to Director- General, Environmental Protection Agency Sindh against Pakistan Ice Factory alleging therein that initially it had started working on a small scale to cater to the need of ice of adjoining residential area. But the owner of the factory kept continued to purchase plots adjacent to the factory and now has converted it into big industrial unit creating health and safety problems to the residents of the vicinity, therefore he may be directed to shift his industry to proper industrial area. He urged that since no action was taken by the authorities, therefore, he was compelled to file his complaint before the Tribunal.
3. This Tribunal upon receipt of complaint directed the Environmental Protection Agency, Sindh to probe into the matter, hold complete enquiry and to submit its report. On 17-9-2009 Statement on Oath of the complainant was recorded as Exhibit-1. On the same day the Environmental Protection Agency, Sindh filed parawise comments to the complaint stating therein that complaint is false, mala fide and no cause of action has accrued to the complainant. In support of their contention Environmental Protection Agency, Sindh has annexed photocopies of following documents; summary of monitoring reports, map of Pakistan Ice Factory, receipt of Licence Fee issued by the Karachi Metropolitan Corporation, Licence to run mill, issued by Karachi Metropolitan Corporation, Renewal of Licence, Trade Licence issued by TMA, Lyari Town, Karachi, receipt of property tax, receipt of education CESS issued by the Sindh Employee's Social Security Institution-Education CESS, receipt of Professional Tax issued by Government of Sindh, Form P.T.-, Certificate of Registration issued by the Office of the Joint Director Labour, South Division, Karachi, Testing and Calibration Certificate issued by the Karachi Water and Sewerage Board and report dated 25-8- 2009 issued by the Environmental Protection Agency, Sindh.
4. On 10-11-2009 the present complaint was registered under section 11 of the Pakistan Environmental Protection Act, 1997 and summons was issued to the respondents.
5. On 2-12-2009 the respondent No,4/Amanullah submitted his comments denying the case of the complainant and stated that Pakistan Ice and Cold Storage Factory was constructed in the year, 1965. In 1997 the respondent No,4 purchased 130 square yards and in 2007 further purchased 775 square yards. The factory in question is surrounded by other factories and it is matter of record that it does not produce any such gases, which may be hazardous to human health. In support of his contention he has annexed copy of Site Plan of K.M.C., as Annexure A, copy of payment of Licence Fee to the Town Municipal Administration, Lyari Town, Karachi as Annexure A/, copy of Licence issued by the Health Department, K.M.C., as Annexure A/B, copy of Certificate of Registration, issued by Joint Director, Labour Department, Government of Sindh, Karachi, as Annexure A/C, copy of Challan for Social Security Contribution issued by Sindh Social Security Institution, as Annexure A/D, copy of Certificate of Testing, issued by Karachi Water and Sewerage Board, as Annexure A/E, copy of Directory of Karachi Ice Factories and Cold Storage and copy of report issued by the Environmental Protection Agency, Sindh in respect of subject factory.
6. On 21-12-2009, DDPP for the Environmental Protection Agency, Sindh filed application for deleting/excluding the names of the respondents Nos.1 and 2 i,e, Chief Secretary, and Secretary, Ministry of Environment, Government of Sindh, Karachi, which was allowed vide order dated 16-1- 2010.
7. On 2-1-2010 Environmental Protection Agency, Sindh again submitted its comments/enquiry report regarding Pakistan Ice Factory, which reads as under:-- "(1) Technical committee was constituted (Annexure-I) for monitoring of alleged factory with the task of collection of wastewater samples and identification of pollution created by the said Ice factory. The Committee inspected the site on 15-12-2008, the findings of the report concluded that parameters of noise, leakage of Ammonia and moisture/humidity were within the limits. This report was submitted before the honourable Tribunal on 16-12-2008. (Annexure-II).
(2) In following up of site inspection, the factory owner was directed to (i) adopt environmental and health safety measures and ii) develop and submit Environmental Management Plan dated 26-1- 2009. (Annexure-III).
(3) In order to ensure compliance of the directives of honourable Tribunal as series of inspections were made on various dates i,e, 21-3-2009, 4-7-2009 for monitoring of wastewater samples. The analysis of the samples carried out through independent environmental laboratory indicated that the concentration of pollutants for relevant parameters are within the permissible limits of NEQS.
The results have already been submitted to the honourable Environmental Protection Tribunal (Annexure-IV).
(4) As per directions of honourable Environmental Protection Tribunal Ammonia and Humidity in ambient air were also analyzed through independent environmental laboratory. According to the analysis results Ammonia concentration was found 3 ppm and average humidity 50.75% (Please refer Annex-V). However, there is no prescribed limit of Ammonia (gas) in NEQS, guideline of US EPA and WHO.
(5) It is finally concluded from the Laboratory reports for water quality and ammonia concentration that the operation of factory is not creating any significant environmental hazard. However, the land use issue, which is a major concern of the complainant, pertains to Town Municipal Administrators or Master Plan Office of the City District Government, Karachi."
8. On 13-2-2010 charge against the accused Amanullah was framed under sections 11 and 12 of the Pakistan Environmental Protection Act, 1997 punishable under section 17 of the Pakistan Environmental Protection Act, 1997 as Exhibit-2, to which accused pleaded not guilty and claimed to be tried as Exhibit-3.
9. On 17-3-2010 the complainant in support of his contention examined himself as Exhibit-4. He also examined two witnesses, namely, Muhammad Iqbal as Exhibit-5 and Jamil Ahmed as Exhibit-6.
Thereafter the complainant closed his side as Exhibit-7.
10. On 24-3-2010 the accused Amanullah recorded his statement under section 342 of the Code of Criminal Procedure Code, 1898 as Exhibit-8. During his statement he stated that he wanted to examine Mr. Jehangir Asad, Chemist (Air) EPA, Sindh and at the same time, he did not want to examine himself on Oath. He also produced report of EPA as Exhibit-8-A and report of U.C. Nazim as Exhibit-8-B.
11. On 26-3-2010 Mr. Jehangir Asad, Chemist (Air), EPA, Sindh was examined as Exhibit-9. He also produced report of EPA, Sindh along with covering letter dated 16-12-2008 as Exhibit-9-A, Letter of the Director-General, EPA, Sindh addressed to the Management of Pakistan Ice Factory requiring them to prepare Environmental Management Plan as Exhibit-9-B, copy of Contingency Plan submitted by the Pakistan Ice Factory as Exhibit-9-C, report in respect of Ice Factory as Exhibit-9-D and report dated 24-3-2009 as Exhibit-9-E.
12. On 26-3-2010 the complainant moved an application to get verification of certificate issued by the U.C. Nazim dated. 23-2-2010, which was allowed on 7-4-2010, following which DDO (Revenue), Saddar Town, Karachi was directed to verify as to whether the Pakistan Ice Factory is situated in residential area or commercial area and also to verify the certificate dated 23-2-2010 issued by the U.C. Nazim. DDO (Revenue), Saddar Town, Karachi submitted report on 4-5-2010 but since the same was vague, he was directed to submit a comprehensive report and finally on 31-5-2010 he submitted such report before this Tribunal disclosing that subject area is residential-cum- commercial and industrial.
13. The points for determination in the present case are:--
(i) Whether the Pakistan Ice Factory is causing pollution as defined in the Pakistan Environmental Protection Act, 1997.Ff so, its effect?
(ii) Whether the accused Amanullah owner of Pakistan Ice Factory has committed offence under sections 11 and 12 of the Pakistan Environmental Protection Act, 1997.
(iii) What should the order be? Points Nos.1 and 2.
14. Points Nos.1 and 2 are interconnected with each other, therefore, both are discussed jointly. The first point of determination in the present complaint is based upon the term, 'pollution', as described in subsection (xxxiii) of section 2 of the Pakistan Environmental Protection Act, 1997, therefore, it would be advantageous if the same is reproduced here for ready reference:-- "(xxxiii). "pollution" means the contamination of air, land or water by the discharge or emission of effluent or wastes or air-pollutants or noise or other matter which either directly or indirectly or in combination with other discharges or substances alters unfavourably the chemical, physical, biological, radiation, thermal radiological or aesthetic properties of the air, land or water or which may, or is likely to make the air, land or water unclean, noxious or impure or injurious, disagreeable or detrimental to the health, safety, welfare or property of persons or harmful to biodiversity;"
' It is the case of the complainant that the Pakistan Ice Factory is being run in a residential area, causing noise and pollution, discharging effluent being hazardous to human life in the locality. In this regard the complainant has examined himself and has stated that initially the above factory was operating on a small scale but later on the owner of the factory expanded it and converted it into a big industry. As a result, it is not only creating noise in the vicinity but the water level and humidity level of the area has also been increased. It is also the case of the complainant that ammonia gas is used in the above factory and in the year, 1998 there had been an incident of leakage of ammonia gas during nighttime in Diamond Ice Factory. Due to above incident the residents of the locality live in constant danger of any incident of similar nature rather bigger one as the Pakistan Ice Factory is 100 times bigger than Diamond Ice Factory.
15. The other two witnesses of the complainant have supported him fully on all the material issues.
The use of be shifted to sorrie industrial area ammonia gas in Pakistan Ice Factory is an admitted position and the accused/respondent No,4 in his statement before the Tribunal has admitted that ammonia gas is used in Ice Factory. Similarly the reports submitted by the Environmental Protection Agency, Sindh also show the use of ammonia gas by the factory but at the same time it is mentioned that the factory is environment friendly and that safety valves are installed at all crucial points besides the emergency valves.
16. The moot point before the Tribunal is whether this industrial activity can be allowed in a residential cu commercial area? It is admitted by the parties that the respondent No,4 started his business in the vicinity on a small scale but subsequently he kept on expanding his business and now it is working as full-fledge Ice Factory-cum-Cold Storage. It is argued by the learned counsel appearing for the complainant that the present ice factory is using ammonia gas, which is highly dangerous for the human lives and such type of incident are commonly taking place in our daily life. Previously also due to the incident at Diamond Ice Factory one woman had died and several persons had been injured, therefore, such activity should not be allowed in any residential or commercial area. In support of his contentions he also referred to newspapers clippings of daily Express dated 15-2-2010 and daily Jung dated 11-4-2010, wherein the incidents in respect of leakage of ammonia gas in Karachi and Hyderabad have been reported and submitted that respondent No,4 has no right to carry on his business in a residential/commercial area either he should be directed to closed down his business or alternatively his factory be ordered to be shifted to some industrial area.
17. Mr. Abdul Maroof, Deputy District Public Prosecutor, appearing for Environmental Protection Agency, Sindh while arguing this case has submitted that from perusal of the complaint it reveals that there is no allegation against Environmental Protection Agency, Sindh and the application dated 3-3-2008 submitted by the complainant to the Environmental Protection Agency, Sindh does not fulfil legal requirement. Further, Environmental Protection Agency, Sindh has conducted various inspections of the subject ice factory but has found its working satisfactory and all the monitoring reports of the ice factory show that the concentration of pollution for relevant parameters were found within the permissible limits of National Environmental Quality Standards. However, the use of ammonia gas is not denied. It is also submitted that the complainant has not produced any medical evidence in support of his case, therefore, offence under section 11 of the Pakistan Environmental Protection Act, 1997 is not proved against the respondent No,4 and section 12 of the Pakistan Environmental Protection Act, 1997 is not relevant so far as the present case is concerned.
18. Mr. Raza Hashmi, Advocate appearing for the respondent No,4 has submitted that the written comments filed on behalf of the respondent No,4 are already on record and the respondent No,4 is carrying out his business in accordance with law. He further argued that there are number of other factories in the area and there is no evidence as to whether it is a residential area. The bone of contention in the present case is an empty plot, which was purchased by the respondent No,4, therefore, in retaliation the present complaint has been filed. Since no allegation has been proved against the respondent No,4, therefore, the complaint is liable to be dismissed.
19. In rebuttal it is contended by the learned counsel for the complainant that all ice factories which were previously operating in the area are non-functional and have been shifted to the industrial area and this is the only ice factory which is functional in this residential area.
20. We have perused . The relevant record and have considered the arguments advanced by the learned counsel for the parties. It is an admitted position that Pakistan Ice Factory is using ammonia gas for preparing ice in their factory. This Tribunal has directed the Environmental Protection Agency to visit the ice factory specifically to check the violation of Pakistan Environmental Protection Act, 1997. No doubt they have repeatedly visited the ice factory and have submitted various reports, wherein use of ammonia gas has been admitted and it has also been brought on record vide their report dated 16-12-2008 produced as Exhibit-9-A that the residents of Khadija Manzil and Fazal Taj Square have complained about the running of ice factory and environmental pollution caused by it. It will not be out of place to mention here that the staff of Environmental Protection Agency, Sindh had visited the factory in question many times but most of their visits were quantitative without the support of actual or scientific data. The report mentioned earlier only contains the noise level likewise in report submitted on 25-3-2009 ammonia leakage was checked at various points within the factory and was found below detection limit at most of the places except in compressor room where it was only 3ppm. Further the Environmental Protection Agency, Sindh reports dated 5-5-2009 and 27-5-2009 are based on observation only without any supporting data. Similarly, reports dated 4-7-2009 and 8-7-2009 are based on verbal information given by the management of the factory and only disclose that the factory produces 7000 kg of ice per day and consumes 1500 gallons of water daily. The reports dated 11-8-2009 and 8-7-2009 are only with the addition of interview of some of the workers and specifications of machinery. Chemical analysis report dated 14-10-2009 shows only two parameters namely salt (0.29 mg/kg) and ammonia (1.6 mg/kg) in surrounding soil. The samples for the tests were collected by the Environmental Protection Agency, Sindh and analyzed in independent laboratory, the mode of sample collection shows lack of knowledge of Environmental Protection Agency, Sindh staff. Instead of representative only random samples were taken. The exact location of samples and other details are missing, which renders the report of no help. The report dated 23-11-2009 gives the information about ammonia and humidity in ambient air. The ammonia gas was shown to be present in below detection limit, whereas humidity was also within the limit. No concerted efforts were carried out to establish real environmental profile of the industry. The sampling was carried out during winter and during lunch and prayer time, which creates doubt about running of the factory at the time of sampling. This fact was admitted by Mr. Jehangir Asad Chemist (Air), EPA, Sindh, that they have not visited the factory in summer season and have always visited it during off-season.
21. The Environmental Protection Agency, Sindh has tried to establish that there is no leakage of ammonia from the plant but the owner/accused Amanullah himself has admitted in open court that the annual consumption of ammonia is 400 kg to 500 kg per annum. The question now arises that if there is no leakage of such gas then where does this huge quality of ammonia go. The ammonia gas is a stable product, in closed cycle of the plant there is no evidence of decomposition of Ammonia, it means that the Ammonia is leaked in its original form and is stable in atmosphere. In the light of above discussion, it is established that ,the respondent No,4 is running business of ice factory while using ammonia gas which is admittedly hazardous for the human life.
Thus following conclusion can be easily recorded.
(1) That the ice factory is creating some pollution however its exact quantitative data is yet to be established.
(2) Good house keeping can prevent the accident and leakages to a greater extent but cannot guarantee that accident would not occur.
(3) The ice factory near or amid the residential-cumcommercial area is potential threat to the residents.
22. This Tribunal cannot be oblivious of the fact that repeatedly we hear and notice the incidents caused by leakage of ammonia gas in residential areas, which in some cases result in loss of valuable human lives, which cannot be compensated in terms of money. We are also conscious of the fact that till today there has not been specific legislation in this regard therefore different government authorities like K.M.C., Town Administration Authority issue trade licence or licences to run a mill or workshop just on payment of some meagre licence fee without realizing the consequences of uncontrolled mushroom growth of such like industries, which are harmful to the life and health of the citizens. It is the need of the day that we must realize that environmental pollution and its adverse impact is equally dangerous for the human life and safety as of any other nuclear weapon. In this regard we would like to place reliance upon the case of Shehla Zia v.
WAPDA PLD 1994 SC 693 whereby the honourable Supreme Court of Pakistan has passed a landmark judgment in the field of environmental law and has laid down two important principles; that the right to life, enshrined in the Constitution, includes the right to an unpolluted environment, and where there are threats of serious or irreversible damage, lack of scientific research certainly shall not be used as a pretext for delaying cost-effective measures to prevent environmental degradation.
' For widening the scope of Article 9 of the Constitution, the Bench observed in the following words: "The Constitutional law in America provides an extensive and wide meaning to the word 'life' which includes all such rights, which are necessary and essential for leading a free, proper, comfortable and clean life. The requirement of acquiring knowledge, to establish home, the freedom as contemplated by the Constitution, the personal rights and their enjoyment are nothing but part of life. A person is protected to enjoy his personal rights and to be protected from encroachments on such personal rights, freedom and liberties. Any action taken which may create hazards of life will be encroaching upon the personal rights of a citizen to enjoy the life according to law. In the present case this is the complaint the petitioners have made. In our view the word 'life'
Constitutionally is wide that the danger and encroachment complained of would impinge fundamental rights of a citizen."
"The word 'life' in the Constitution has not been used in limited manner. A wide meaning should be given to enable a man not only to sustain life but also to enjoy it. Under our Constitution, Article 14 provides that the dignity of man and subject to law the privacy of home shall be inviolable. The fundamental right to preserve and protect the dignity of man under Article 14 is unparallel and could be found only in few Constitutions of the world. The Constitution guarantees dignity of man and also right to 'life' under Article 9 and if both are read together, question will arise whether a person can be said to have dignity of man if his right to life is below bare necessity line without proper food, clothing, shelter, education, health care, atmosphere and unpolluted atmosphere."
' The above cited judgment is fully applicable in the present case as there is constant danger of any unseen incident which can happen any moment when such hazardous type of gas i,e, Ammonia is used on such a large scale. We should also not forget the incident of leakage of gas held in Bhopal, India in the year, 1984 resulting in the loss of valuable lives and the miseries caused by the after effects of the incident.
23. Reverting to the facts of the present case it will be relevant to mention here that the DDO (Revenue) Saddar Town, Karachi was specifically asked by this Tribunal to verify as to whether the land upon which the present Pakistan Ice Factory is situated is residential, commercial or industrial and in reply to this he disclosed that the Plot No,LY-25/3, Lyari Quarters, Karachi was an agricultural land and was transferred to the name of Razaulklah Khan through P.T.D. On 12-3-1966 and the area is residential-cum-commercial and industrial.
24. The certificate of DDO showing the status of the area as residential, commercial and industrial seems to be obliging in nature as the status of any area as to be residential, commercial or industrial is to be determined as per the layout plan and not upon its illegal use. In case in a residential-cumcommercial area taking advantage of inaction of concerned agencies some industrial units are established, such-illegal industrial activity in a residential-cum-commercial area will not confer its status of an industrial area. In the present case on one hand existence of thickly-populated residential-cumcommercial area is an admitted position and on the other hand no authentic document has been brought on record to identify it as industrial area. We therefore hold that the disputed ice factory of respondent No,4 is being illegally run in a residential-cum- commercial area, which is not meant for industrial purpose. Thus such industrial activity that too of hazardous nature, constantly carrying a high risk of the loss of life and ecosystem cannot be allowed to continue. Simultaneously it is also fact that the reports of Environmental Protection Agency, Sindh are against the case of complainant. Though this Tribunal has serious reservations regarding the procedure followed during the sampling of air, noise and soil by the Environmental Protection Agency, Sindh, but under these circumstances, we are compelled to extend benefit of doubt in favour of the accused Amnullah. Points Nos.1 and 2 are answered accordingly.
Point No,3
25. In view of our findings on Points Nos.1 and 2 accused Amanullah is hereby acquitted. His bail bond is cancelled and surety discharged.
26. However, under the peculiar facts and circumstances of the case we are of the view that the industrial activity involving the use of ammonia gas should not be allowed in a residential/commercial area. Therefore, copy of this judgment may be sent to the Chief Secretary, Government of Sindh, the Secretary, Environment, Government of Sindh and Environmental Protection Agency, Sindh for taking necessary steps for framing policy and making arrangements with regard to check, control and shifting of all such type of ice factories (including the present one), situated in residential/commercial areas, which are presently scattered throughout the province without any proper permission of the competent authority, in violation of environmental laws and the guidelines given by the honourable Supreme Court of Pakistan in the case of Shehla Zia v. WAPDA. Such report be submitted before the Tribunal within sixty (60) days of receipt of this judgment. For issuing such directions reliance is placed upon the judgment passed by the honourable Supreme Court of Pakistan in the case of Muhammad Shafiq and others v. Arif Hameed Mehar and others 2008 CLD 1103.
Complaint dismissed.