This judgment will dispose of the complaint filed by the Director-General, Environmental Protection Agency, Sindh against Abdul Khaliq, Chief Executive Officer, Amin Fabrics, Aminabad Kotri, District Jamshoro under section 21(3) (a) of the Pakistan Environmental Protection Act, 1997 read with section (5) of Criminal Procedure Code, 1898,
2. The facts in brief as stated in the present complaint are that the respondent is incharge of the operation of Amin Fabrics Limited. The officials of Environmental Protection Agency, Sindh, while keeping in view the potential impact of jute mills on environment and because of general complaints, inspected Amin Fabrics on 8-2-2010. The team collected the samples, prepared Form- B and asked the industry to fill Questionnaire for Industrial Monitoring Survey but they refused to provide information required in questionnaire.
3. The collected wastewater samples were tested through independent Environmental Protection Agency Certified Laboratory and it was observed that the level of Biological. Oxygen Demand
(BOD) and Chemical Oxygen Demand (COD) were in excess of National Environmental Quality standards.
4. In view of the analysis report the Director-General, Environmental Protection Agency, Sindh issued Notice dated 8-3-2010 to the Chief Executive Officer of Amin Fabrics Limited for personal hearing on 13-3-2010 but the management of the said factory failed to appear before the Director- General, Environmental Protection Agency, Sindh and thus due to non-compliance of the directive, Environmental Protection Order dated 13-3-2010 was served upon Amin Fabrics Limited for immediate stoppage of production process of the factory. Subsequently on receiving report in respect of non-compliance of Environmental Protection Order dated 13-3-2010 Director-General, Environmental Protection Agency, Sindh reissued Environmental Protection Order on 23-4-2010.
5. It was further alleged that the wastewater being generated by the Industry was discharged in the environment without any in-house treatment in excess of notified National Environmental Quality Standards, which was adversely contaminating the underground water quality and created nuisance for in land flora and fauna. In view of the above present complaint was filed by the Environmental Protection Agency, Sindh under sections 11 and 16 of the Pakistan Environmental Protection Act, 1997 punishable under section 17 of the said Act.
6. In the present case charge was framed on 6-8-2019 as Exhibit-2 under sections 11 and 16 of the Pakistan Environmental Protection Act, 1997 punishable under section 17(1) of the said Act, to which the accused pleaded not guilty and claimed for trial vide Plea as Exhibit-3.
7. The prosecution in support of its case has examined Irfan Ahmed Abbasi, Assistant Director, as P.W.1 vide Exhibit-4, he has produced Authorization Order dated 6-2-2010 as Exhibit-4-A, P.W.2 Imran Ali Abbasi, Assistant Director, is examined as Exhibit-5, he has produced Form-B as Exhibit-5- A, Form-C as Exhibit-5-B, P.W.3 Muhammad Iqbal, Environmental Irispector is examined as Exhibit- 6, P.W.4 Ziauddin Siddiqui, Head Research Analytic .Services is examined as Exhibit-7, he has produced Test Report as Exhibit-7-A and Certificate of Test or Analysis as Exhibit-Prosecution has given up P.W-S.M. Yahya, Director (Lab) and P.W-Muhammad Soomar Khaskhely, Assistant Director vide statement dated 3-12-2010 as' Exhibit-8 on record. Complainant Mr. Naeem Ahmed Mughal, Director General, SEPA is examined at Exhibit-9, he has produced Notice dated 8-3-2010 as Exhibit- 9-A, Environmental Protection Order dated 13-3-2010 as Exhibit-9-B, Environmental Protection Order dated 23-4-2010 as Exhibit-9-C, Complaint as Exhibit-9-D, Letter dated 13-3-2010 issued by Amin Fabrics Limited addressed to the Director-General, SEPA as Exhibit-9-E, Industrial Monitoring Survey Questionnaire as Exhibit-9-F, Letter dated 14-5-2010 sent by the Amin Fabrics Limited to Director- General, SEPA as Exhibit-9-G and correspondence of Sindh Environmental Protection Agency with Federal Environmental Protection Agency as Exhibit-9-H, thereafter the prosecution closed its side vide statement dated 20-12-2010 as Exhibit-10.
8. Statement of accused/respondent under section 342, Cr.P.C. Was recorded on 15-1-2011 as Exhibit-11, he has produced photographs sixteen in number, as Exhibit-l1-A. He has produced two test reports dated 7-4-2010 and 17-7-2010 as Exhibits-11-B and 11-C. Further he has produced Survey Report/Certificate dated 18-5-2010 along with Layout Plan as Exhibit-11-D, letter dated 14-5-2010 addressing Director-General, SEPA explaining the details about the functioning of industry as Exhibit-11-E.
9. At the request of accused/respondent Commissioner was appointed to inspect the respondent factory in respect of water tanks and wastewater discharge. Dr. Jahangir Khawar, Assistant Professor (Ph.D), Environment, was appointed as Commissioner to visit the Amin Fabrics Limited and to submit his detailed report on the following parameters:-
(1) Analysis of waste before entering into treatment plant.
(2) Analysis of waste while leaving treatment plant
(3) Analysis at the entering point of lemon garden.
(4) Flow rate and volume mixed with wastewater.
(5) What is the total load (derived from existing valuation and volume.
(6) Calculation of pollution charge, if any.
10. The learned Commissioner has submitted his report dated 18-2-2011 along with test reports.
11. We have heard the arguments advanced by Mr. Karim Nawaz Qureshi, Deputy District Public Prosecutor for Environmental Protection Agency, Sindh and Mr. Khowaja Navid Ahmed, advocate for the respondent/accused and have perused the case record. Now the points for determination before this Tribunal are as under:-- POINTS FOR DETERMINATION
(1) Whether the respondent Amin Fabrics Limited has committed violation of sections 11 and 16 of the Pakistan Environmental Protection Act, 1997?
(2) What should the order be?
12. Our findings with reasons on the above-mentioned points are as under:-- FINDINGS ' Point No,1 Not proved ' Point No,2 Accused is acquitted under. Section 265-H, Cr.P.C.
REASONS Point No,1
13. As per the case of the prosecution the main allegation against the respondent factory is that the wastewater, which is in excess of National Environmental Quality Standards is being discharged in the environment without any in-house treatment. In response to this the case of respondent factory is that not a single drop of water is discharged in the environment by this factory. The wastewater generated by the respondent factory is collected in the tank and after adding fresh water is used for watering the lemon garden, which is situated inside the factory premises.
Prosecution in support of its case has examined complainant along with four witnesses, who have deposed that they have collected the wastewater from .a pit which was within the factory premises but at the same time not a single word has come on record that this collection of water was from the outlet or drain which was going out from the factory premises. The case of prosecution is totally silent upon this material issue that as to whether there was any discharge of wastewater outside the factory. Neither the complainant nor the two witnesses who had gone to collect the wastewater sample have supported the case of prosecution on this issue. On the contrary the Director-General, Environmental Protection Agency, Sindh in his evidence during the cross-examination has admitted that he was informed by the respondent factory that there is no discharge of water outside the factory premises and they were also aware about the lemon garden inside the factory.
The Director-General, SEPA has also admitted that his team had informed him that the wastewater is used by the factory management after treatment for irrigation purpose.
14. Reverting to the evidence of prosecution witnesses, who had gone to the respondent factory to collect the wastewater it will be important to notice that there are material contradictions in their evidence. P.W-Imran Ali Abbasi is one of the witnesses, who had gone to collect the wastewater sample has deposed that he had not seen any lemon garden inside the factory while the other witness Muhammad Iqbal deposed that there was a lemon garden inside the factory premises.
This contradictory piece of evidence created doubt that as to whether they both had gone to collect the water sample or not. The evidence of P.WZiauddin Siddiqui, who is head of PERAC Research and Development Foundation, is also relevant in this regard. In his cross-examination he has deposed that if wastewater is mixed with the canal water it can be utilized for irrigation purpose.
15. In the present case in order to verify the correct position at site, commissioner was also appointed, who had visited the premises and collected the wastewater sample and has given his report as per parameters already mentioned in Para-9. The relevant portion of report is hereby reproduced for ready reference as under:- "Parameter-4: The electric motors of 5 hertz power installed near the treatment plant to dilute the effluents dependable (1:1 ratio) with fresh water and discharges in lemon garden when required At the moment the discharge was noted of 0.961:L/sec in lemon garden."
' Besides this the learned counsel for respondent has pointed out the procedural lapses and violation of Environmental Sample Rules, 2001 specially rule 10(5), committed by the SEPA staff which are not denied by the prosecution side.
' Before concluding our discussion we would like to highlight the careless attitude of the PRD laboratory, as test report shows the date as 3-2-2010, while receiving date of sample is mentioned as 10-2-2010. As per case of prosecution samples were collected on 8-2-2010, then how the lab test report shows the date as 3-2-2010. This reflects carelessness of lab authorities in preparing the test reports. Let the authorities concerned should take note of it, so that such errors are avoided in future. In the light of discussion made above we are of the considered view that the prosecution has failed to prove the charge, so far as section 11 of the Pakistan Environmental Protection Act, 1997 is concerned.
16. The other allegation against the present respondent is that he has committed violation of section 16 of the Pakistan Environmental Protection Act, 1997. In this regard it is relevant to mention here that it is admitted position that the Environmental Protection Agency, Sindh issued Environmental Protection Orders without hearing the respondent. Though as per law such orders are to be passed after providing an opportunity of being heard. It is correct that the representative of respondent factory appeared on the date of hearing in late hours and he had met with Muhammad Soomar Khaskhely, who told him that the Director-General had gone to attend some meeting and further notice would be sent to him but in contrast to this Environmental Protection Order was issued. At this point, we would like to refer the evidence of Director General, who in his cross-examination has admitted that he was informed by his team that the wastewater was used by the factory itself for irrigation purpose. When such situation was in his knowledge and the representative of the factory had also appeared then the opportunity of hearing should have been given to the respondent instead of issuing Environmental Protection Order. In view of above discussion we are of the considered view that since the Environmental Protection Orders do not fulfill the legal requirement, therefore has no value in the eyes of law.
17. It will not be out of place to mention here that the learned counsel for respondent has filed statement on record that at present the working capacity of respondent mill is only up to 5 to 10%.
This statement is not challenged by the prosecution, rather this is, supported by the report of commissioner as he has disclosed in his report that most of units were closed and shifting elsewhere.
18. In the nutshell it would be suffice to say that no concrete evidence has been brought by the prosecution to discharge the burden satisfactorily. Hence Point No,1 is answered as not proved.
' Point No,2
19. In view of our discussion on Point No,1 the accused/respondent Abdul Khaliq, Chief Executive Officer of Amin Farbics Limited is hereby acquitted under section 265-H, Cr.P.C. In this case.
20. Announced in open court.
21. Given under our hand and seal of this Tribunal on this 27th day of April, 2011.