' Present complaint under section 21(3)(a) of the Pakistan Environmental Protection Act, 1997 read with section 5 of Criminal Procedure Code, 1898 has been filed on 26-2-2010 by the Director General, Environmental Protection Agency, Sindh against Ismail H. Zakaria, Chief Executive Officer, Al-Noor Sugar Mill, 96-A, Sindhi Muslim Cooperative Housing Society, Karachi.
2. It is the case of prosecution as per complaint that due to potential environmental impact of sugar mills and because of general complaints, Al-Noor Sugar Mill was inspected on 17-4-2008 by the team of Environmental Protection Agency, Sindh. The team collected the samples of wastewater, the same were tested and analyzed in the Laboratory of Environmental Protection Agency, Sindh and it was observed that the level of Biochemical Oxygen Demand (BOD), Chemical Oxygen Demand (COD), Total Suspended Solids (TSS), Grease and Oil (pH acidic) were in excess of National Environmental Quality Standards, therefore, Director General, issued a notice for personal hearing to the Chief Executive Officer of Al-Noor Sugar Mills. In response Mr. Muhammad Nawaz Memon, Manager Legal, Al-Noor Sugar Mills appeared before the Director-General, Environmental Protection Agency, Sindh on 20-5-2008 and assured that all environmental laws will be complied with. The Director-General, directed him to submit Environment. Monitoring Plan but the respondent did not submit Environmental Management Plan in compliance of the order of the Director- General. Subsequently on receipt of fresh complaints through media, Al-Noor Sugar Mills was again inspected on 6-1-2010 and samples were collected and got tested. The report of wastewater samples was issued on 12-1-2010 and in the result it was observed that the level of BOD, COD and (pH acidic) are in excess of National Environmental Quality Standards.
4.(sic.) It is further the.Case of the complainant that the wastewater being generated by the respondent Mill is discharged in the environment without any in house treatment, which is adversely contaminating the water quality of canals. It is not only affecting the ecology of the area but also causing water borne diseases to a large section of the population residing in the vicinity.
Hence this complaint.
5. After receiving this complaint notice was issued to the Chief Executive Officer of Al-Noor Sugar Mills, who appeared before this Tribunal on 1-6-2010 and received copy of complaint along with annexures vide receipt as Exhibit-1. The Charge was framed on 18-6-2010 under section 11 of the Pakistan Environmental Protection Act, 1997 punishable under section 17(1) of the Pakistan Environmental Protection Act, 1997 as Exhibit-2. The respondent denied the charge and claimed for trial.
6. The prosecution in support of its case has examined P.W. Muhammad Soomar Khaskhely, Assistant Director, as P.W.1 at Exhibit-4, he has produced Authorization Order dated 4-1-2010 as Exhibit-4-A, Industrial Monitoring Survey along with Questionnaire as Exhibit-4-B, Form-B as Exhibit- 4-C, Form-C as Exhibit-4-D, Test Report dated 12-1-2010 as Exhibit-4-E. P.W. Syed Muhammad Yahya, Director (Lab/Monitoring) has been examined as P.W.2 at Exhibit-5, he has produced Certificate of Test or Analysis dated 22-1-2010 as Exhibit-5-A and Statement dated 24-6-2010 as Exhibit-5-B. P.W. Kamran Ali, Environmental Inspector, has been examined as P.W.3 at Exhibit-6.
Complainant Naeem Ahmed Mughal, Director-General, has been examined as Exhibit-7, he has produced Letter dated 15-4-2008 as Exhibit-7-A, Laboratory report dated 26-4-2008 as Exhibit-7-B, Notice dated 13-5-2008 as Exhibit-7-C, complaint presented on 26-2-2010 before this Tribunal as Exhibit-7-D. Side for the prosecution was closed on 16-11-2010 as Exhibit-8. Statement of respondent/accused has been recorded on 26-11-2010 as Exhibit-9. Counsel for the respondent/accused closed his side on 11-12-2010 as Exhibit-10.
7. Thereafter the learned DDPP moved an application for examining Chief Analytic Services, PRD Foundation who had prepared the lab report. The said application was allowed and P.W. Ziauddin Siddiqui, Head Research Analytic Services, PRD Foundation has been examined as P.W.5 at Exhibit- 11.
8. The points for determination before us are:--
(i) Whether Al-Noor Sugar Mill has committed violation of section 11 of the Pakistan Environmental Protection Act, 1997?
(ii) What should the order be?
9. We have heard at length Mr. Abdul Maroof, Deputy District Public Prosecutor for Environmental Protection Agency, Sindh and Mr. Muhammad Jamshed Malik, advocate for the respondent/accused and have perused the case record. Our answer to the above mentioned points are as under:-- ' Point No,1 Not proved ' Point No,2 Accused acquitted under section 265-H, Cr.P.C.
' REASONS ' POINT NO,(I)
10. As per case of the prosecution the main allegation against the present respondent is violation of section 11 of Pakistan Environmental Protection Act, 1997. For the sake of convenience the same is reproduced as under:- "11. Prohibition of certain discharges or emissions:---(1) subject to the provisions of this Act and the rules and regulations no person shall discharge or emit or allow the discharge or emission of any effluent or waste or air pollutant or noise in an amount, concentration or level which is in excess of the National Environmental Quality Standards or, where applicable, the standards established under sub-clause (1) of clause (g) of subsection (1) of section 6."
11. The bare reading of above-mentioned provision of law goes to show that it deals with the pollution, discharge or emission of any effluent or waste or air pollutant or noise in an amount, concentration or level, which is in excess of National Environmental Quality Standards.
12. In the instant case, it is the case of the prosecution that the present respondent is involved in violation of section 11 of Pakistan Environmental Protection Act, 1997, in this regard, twice the respondent mill was inspected and both times results were found in excess of National Environmental Quality Standards.
13.
13. It is alleged in the complaint as well as in the evidence of complainant, Director-General, Environmental Protection Agency, Sindh, that for the first time the Al-Noor Sugar Mill was inspected on 17-4-2008 and the results were found in excess of National Environmental Quality Standards. In this regard though the Director General, Environmental Protection Agency, Sindh during the course of his evidence has produced authorization Letter dated 15-4-2008 as Exhibit-7-A, laboratory report as Exhibit-7-B and Notice dated 13-5-2008 as Exhibit-7-C, but surprisingly not a single witness in support of this allegation is examined by the prosecution. The perusal of authorization letter dated 15-4-2008 i.e. Exhibit-7-A, goes to show that the team of Environmental Protection Agency, Sindh consisted of Mr. Waqar Hussain Phulpoto, Deputy Director, Mr. Jehangir Asad, Chemist and Mr. Muhammad Hashim, Inspector, but none of them has been examined by the prosecution in support of their case. Likewise the test report is produced by the complainant as Exhibit-7-B, it bears the signatures of Mir Mureed All Talpur, Chemist and Jehangir Asad, Chemist, but none of them have been examined. Against this, it is the case of the respondent that no samples were taken by the Environmental Protection Agency, Sindh in the year 2008. Besides this though the complainant has produced one notice dated 13-5-2008 issued in the name of Chief Executive of Al-Noor Sugar Mill, Nawabshah but the case of prosecution is silent about the fate of above notice. Not only this but no Environmental Protection Order as required under section 16 of Pakistan Environmental Protection Act, 1997 was issued in the year 2008. Further, the perusal of present complaint shows that it was presented before this Tribunal on 26-2-2010 after the lapse of period of two years after the inspection of respondent mill. If there was any such violation of section 11 of PEPA Act, 1997 the SEPA was duty bound to submit the complaint immediately on noticing such contravention. It is also important to notice that P.W.2 Syed Muhammad Yahya, who is Director (Lab) has produced on record statement dated 24-6-2010 stating therein that Environmental Protection Agency, Laboratory was not certified under Certification Rules of Pakistan Environmental Protection Act, 1997. Thus the above-mentioned facts are sufficient to negate the case of prosecution in respect of allegation of contravention of Pakistan Environmental Protection Act, 1997 in 2008. Consequently in absence of any evidence to this effect it is established that prosecution has failed to prove the contravention of Pakistan Environmental Protection Act, 1997 committed by respondent in the year 2008.
14. So far as the allegations regarding the year 2010 are concerned, again it is the case of the prosecution that in the year 2010 authorization order was issued on 4-1-2010 and samples were collected on 6-1-2010. In this regard, prosecution has examined Muhammad Soomar Khaskhely, Assistant Director (Monitoring). To support the version of P.W. Muhammad Soomar Khaskhely, another P.W. Syed Muhammad Yahya, who is the Director (Lab/Monitoring) is examined as P.W.2 at Exhibit-5 and thereafter the prosecution has examined third witness P.W. Kamran Ali, Environmental Inspector as P.W.3 at Exhibit-6.
15. We have heard Mr. Abdul Maroof, Deputy District Public Prosecutor, appearing for Environmental Protection Agency, Sindh and Mr. Muhammad Jamshed Malik, advocate for the respondent. It is contended by the learned DDPP that there are violations of Sample Rules, 2001, specially, violation of Rules 10(5) and 8(2) of the Sample Rules, 2001 are very clear, therefore, he has submitted that prosecution has failed to prove its case. Mr. Muhammad Jamshed Malik, advocate for the respondent has argued that there are glaring contradictions in the evidence of prosecution witnesses and prosecution has miserably failed to prove the ingredients of section 11 of the Pakistan Environmental Protection Act, 1997. In support of his contention he has relied upon a case of Jamil Khan Afridi v. The State, 2004 M LD 542 and case of Ashfaq v. The State 1993 SCMR 147.
16. We have considered the arguments advanced by the learned counsel for the parties and have perused the case record. We are in agreement with the arguments advanced by the learned counsel that there are violations of Sample Rules, 2001. At the same time the most crucial point in this case is that Form-B produced on record as Exhibit-4-C, bears identification as Sample I.D No, 'ALNOOR SM-1(B)', thereafter, Form-C produced on record as Exhibit-4-D, bears, `Sample ID No,01/C'.
The Test Report produced on record as Exhibit-4-E, bears Customer Reference by mentioning only the word 'Letter' and finally the Certificate of Test or Analysis produced on record as Exhibit-5-A, bears Sample No, 'Nil'. Thus it is evident that in every document there is different sample number and identification and this glaring contradiction in sample identification is a fatal blow to the case of the prosecution. Besides, the perusal of the evidence of Syed Muhammad Yahya, Director (Lab/Monitoring), goes to show that he is the person, who has forwarded the present case to the Director-General for initiating proceedings against the respondent but in his cross-examination he has specifically stated that he had not gone through questionnaire when it was submitted before him, he simply presented it before Director. General as routine work. It is strange that when the sample identification number was not corresponding then how this complaint is sent to the Tribunal.
17. This is not the end of story, it is the case of prosecution that samples were collected on 6-1-2010 but it were received in the laboratory on 12-1-2010 and no plausible explanation for this inordinate delay has been given by the prosecution as to where the sample were lying for intervening six days and who is responsible for this period. It will be relevant to mention that as per Rule 8(2) of Sample Rules, 2001, samples are to be delivered within forty-eight hours to the Environmental Laboratory for test and analysis. It is also important to notice that prosecution has not examined any independent witness in whose presence the samples were taken as required by Sample Rules, 2011.
18.
18. The perusal of record reveals that P.W. Ziauddin Siddiqui, Head Research Analytic Services, PRD Foundation is examined as P.W.5, he is the person who has signed the report and during his cross- examination he has categorically stated that test was not done by him but conducted by the department and the test report was filled up by Secretary and he has simply signed the test report after checking the parameteRs, The above conduct on behalf of laboratory authorities reflect that they do not have any fool proof system in respect of receiving the samples, proper check regarding insertion of correct sample identification or reference numbers etc. And it appears that they have completely bypassed the National Environmental Quality Standards (Certification of Environmental Laboratories) Regulation, 2000.
19. Another important thing, which has come-across during this case that though it is alleged by the Director-General, that there had been many complaints against A1- Noor Sugar Mills from local people, NGOs and in print media for wastewater pollution and air emission but not a single complaint has been produced on record. This complaint also does not disclose as to what type of pollutions can be caused by a sugar mill. To examine the core issue and the actual working of sugar mill and its adverse impact on environment this Tribunal directed the respondent to produce on record the process flow sheet, layout plan and Environmental Management Plan of respondent mill. In compliance the respondent has filed Statement on 11-12-2010, which is reproduced as under:- "(1) The "process flow" of sugar plant of AL-Noor Sugar Mills Limited and the "site plan/factory layout plan" is submitted before this Hon'ble Tribunal.
(2) AL-Noor Sugar Mills Limited has the water treatment facility comprising of (i) Oil Separator (ii)
Water Showering/Oxidation Area (iii) Settling Pond/Lagoon and (iv) External Storage Area/Lagoon and does not have any document named as "Environmental Management Plan" (EMP).
(3) Since the Prosecution has failed to bring cogent evidence, has contradictions in the prosecution evidence, the defence does not require to produce any witness."
20. Perusal of above statement, goes to reveal that they have different methods to reduce the pollution but they have no compact Environmental Management Plan, which otherwise is required by every industry after promulgation of Pakistan Environmental Protection Act, 1997. It will not be out of place to mention here that during the exercise conduced in the year 2010 by the Environmental Protection Agency neither any notice in respect of alleged contravention of Pakistan Environmental Protection Act, 1997 has been issued to the respondent nor any personal hearing has been given to the present respondent, as required under Section 16(1) of the Pakistan Environmental Protection Act, 1997, no Environmental Protection Order is issued in this case. And no explanation in this regard is brought on record as to why action as required under the law was not initiated against the respondent mill by the Environmental Protection Agency, Sindh.
21. In the high of discussion made above we are of the considered view that prosecution has miserably failed to prove the charge against the present respondent. Consequently Point No,1 is answered as not proved. POINT NO,2
22. In view of our finding on Point No,1 as the prosecution has failed to prove the charge against the respondent/ accused, therefore, Ismail H. Zakaria, Chief Executive Officer, Al-Noor Sugar Mills is hereby acquitted in the present case under section 265-H Cr.P.C. However, at the same time in the light of discussion made above, as it is established that while dealing with this case Environmental Protection Agency, Sindh Officials and PRD Lab authorities have failed to perform their official duties diligently, in accordance with law. It appears that they remained oblivious of the legal consequences of their lethargic, causal and unprofessional conduct due to which the whole case of prosecution was seriously damaged. Keeping in view this aspect of the matter and our findings in this regard we deem it appropriate to make following observations.
(i) Secretary, Environment and Alternative Energy, Department may probe into the matter and examine the conduct of Environmental Protection Agency, Sindh officials due to whose negligence sample could not be delivered to the laboratory within forty-eight houRs, Simultaneously disciplinary action under Sindh Civil Servant (Efficiency and Discipline) Rules, 1973 may be taken against the official responsible for not taking timely action against the violators and then preparing a defective case.
(ii) Suitable action under regulation 14 of The National Environmental Quality Standards (Certification of Environmental Laboratories) Regulation, 2000 may be taken against the concerned laboratory in respect of mentioning in-correct and contradictory sample identification in test report and certificate etc. So that in future occurrence of such incidents may be avoided.
(iii) This order will not come in the way of Environmental Protection Agency, Sindh in case fresh proceedings are initiated against the respondent after fulfilling the legal requirement in accordance with law.
(iv) The Environmental Protection Agency, Sindh is also directed to investigate the cases comprehensively covering all types of pollution after taking composite samples. The relevant rules are to be followed strictly.
23. Copy of this judgment be sent to the Secretary, Environment and Alternative Energy, Department. The compliance report in respect of above observations shall be sent to this Tribunal within forty-five (45) days from the date of receiving the copy of judgment without fail.
24. Announced in Open Court.
25. Given under our hand and seal of this Tribunal on this 15th day of February, 2011.