' CH. SHABBIR HUSSAIN, CHAIRPERSON.---Succinctly summarized, facts forming back ground of this private complaint are that the petitioner is eo-sharer in hadbast No, 117 Tehsil Pattoki District Kasur; that house of the complaint is situated at killa No,956 where he is residing with his family; that there are many other houses in the locality where a number of families since long are residing; that the petitioner is running seasonal vegetable Tunnel Farm in Killa Nos.962 and 936; that he is having a beautiful garden, that unfortunately Haji Protein Farm was established in Killa Nos.963 and 964 absolutely illegally and unlawfully adjacent to the Tunnel Farm of the petitioner; that the exhaust fans of Haji Protein Farm for hazardous waste open towards the residence of the petitioner, tunnel farm and fruit farm of the petitioner; that at the time of establishment of Haji Protein Farm, the petitioner and other respectables inhabitants of the area time and again requested Proprietor of the Haji Protein Farm not to construct the Poultry Farm in the residential and covered area; that the complainant and others made a number of complaints to the authorities but no action was taken and the farm was constructed and completed; that at present more than 30 thousands poultry birds are breaded and causing air pollution, pungent smell and hazardous waste, having polluted the area, making impossible to the residents to live safely so much so Tunnel Farms and Fruit Farm were also adversely affected; that as per environment Poultry Farm, cannot be established within area of hundred meter from residential locality; that the disputed Haji Protein Farm has been constructed in Killa 963 and 964 exact by in the heart of residential and commercial area, just adjacent to Killa Nos.960 and 959 whereas exhaust fans have been opened towards petitioner's residence which is hardly at a distance of 35 meters, and so far vegetable tunnal farm at a distance of 100-meters of Fruit Farm; that complaint made by the complainant and number of other residents of the area but in vain; that the complainant served a legal notice upon the respondents but no action taken hence he came up with this private complaint with prayer that Haji Protein Farm located at Kot Nanak Singh, Jamber Road, Tehsil Pattoki District Kasur be stopped/sealed and operational NOC may be withdrawn/cancelled and the said farm may be removed for controlling pollution environment to the health of his family and inhabitants of the area.
2. The arguments of the learned counsel for the petitioner as well as for the accused heard. Record on file perused. This is a private complaint moved under section 21 of Punjab. Environment Protection Act, 1997 (as amended 2012). Under subsection 3(b) any aggrieved person who has given notice for not less than 30 days of the alleged contravention, of his intention to make a complaint to the Environmental Tribunal in the present case the notice as required under section 21(3)(b) was not issued by the complainant rather it was admittedly issued through Abdul Khaliq Safrani Advocate on behalf of the complainant without any lawful authority. From the bare perusal of section 21(3)(b) it is crystal clear that an Environment Tribunal shall take cognizance of any offence on a complaint in writing by aggrieved person who has given notice of not less than 30 days to the Provincial Agency of the alleged contravention and of his intention to make a complaint to the Environmental Tribunal. In the present case, admittedly no notice was issued by the complainant rather as per (Mark-A) copy of so called notice dated 10-5-2011 was issued by Abdul Khaliq Safrani Advocate hence the mandatory provision of filing a complaint after issuance of notice and waiting for thirty days has not been complied with. The notice of the contravention and intention to make a complaint to the Environmental Tribunal was to be issued by the complainant and not by the counsel who was not so authorized hence we are inclined to hold that this complaint was moved without issuance of notice as required under section 21(3)(b) hence the complaint is not competent to proceed for trial of the accused as mandatory requirement is missing.
3. Another important aspect of the matter is that this is a private criminal complaint without list of witness and gist of evidence to be produced by the complainant against the accused. According to section 265-A in every trial before court of session, initiated upon a police report, the prosecution shall be conducted by Public Prosecutor. According to section 265-C copies of first information report, the police report, statement of witnesses recorded under sections 161 and 164 and the site inspection report recorded by an investigating officer on his first visit to the place of occurrence and the note recorded by him on the recoveries made, if any,. To be provided to the accused free of cost. Under subsection (2) of section 265-C, it has been clearly laid that in all cases instituted upon a complaint in writing, complainant shall state in the petition of complaint the substance of the accusation, the names of his witnesses and the gist of evidence which he is likely to adduced at the trial, and within three days of the orders of the court under section 204 for issue of process to the accused, file in the court for supply to the accused, as many copies of the complaint and any other document which he has filed with his complaint as the number of the accused. According to 2007 PCr.LJ 233 omission to comply with provision of section 265-C would vitiate the whole trial.
Undeniably in the case in hand the Protection Agency (Ch. Shabbir Hussain, Chairperson) complaint is not followed by list of witnesses as well as gist of evidence to be produced against the accused. Object of section 265-C, Cr.P.C., is that the accused could know before he was sent up to stand trial in a charge about witnesses and nature of evidence to be produced against him.
Another object of section 265-C, Cr.P.C. That appears to meet the vacuum created by the abolition of commitment proceedings and to make available to accused all the available evidence which the prosecution had for the unfolding of the true case before the court. Purpose, was that accused could know before he was sent up to stand trial in a charge as to what evidence he would have to meet at the trial in order to take up a proper defence plea. Object of such a requirement in the course of the trial, interval of seven days emerged under section 265-C, Cr.P.C. Was also significant, because it was meant to give accused sufficient time to study the allegations against him and to prepare his plea in defense (2011 YLR 2169):
4. The question arises (although not argued before this Tribunal) that whether such eventuality can force the concerned party into an impass; to our mind answer is not in affirmative because there is no impass in the law. Section 540, Cr.P.C. Comes to rescue of a vigilant person according to which any court at any stage of any inquiry, trial or other proceeding under the Code can summon any person as a witness or examine any person in attendance though not summoned as a witness, or recall and re-examine any person if his evidence appeared essential to just decision of the case. A plain reading of section 540 indicates that it has two parts, first part empowers every court at any stage of trial or other proceedings, under the code to summon any person as a witness or examine any person in attendance though not summoned as a witness, recall and re-examine any person already examined, whereas the second part the section enjoins the court to summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case. The first part of this section by using the word 'may' confers discretion on the court, whereas the second part of this section by employing, the word 'shall' makes it obligatory on the part of the court to summon and examine or re-call and re-examine any such person, if his evidence appears to it essential to the just decision of the case. Use of expression "appears to it" in second part of section 540 gives ample indication that even when it is not possible to give a conclusive verdict with regard to item of evidence being essential or otherwise, yet it must in any case at least 'appears' to the court that it is essential before taking action under the second part of section 540. But if it is not reasonably shown that such evidence will help the court in coming to the correct decision, resort to section 540, Cr.P.C. Will be refused, because exercise or use of powers under section 540, Cr.P.C. Has not to be done for the sake of futilities. The Court under section 540, Cr.P.C. Has, plenary powers for summoning a person as witness or re-examining any person already examined at any stage of the proceedings, if such evidence appears essential for just determination of controversy involved in the matter. Therefore court on coming to know that there is a witness or witnesses whose statements are necessary to lead towards the truth and to promote cause of justice in a particular case can directly summon such witnesses and record their statements and in such eventuality it is not obliged to ask law officer District Attorney or the Investigating Officer to bring the names of such witnesses on the schedule of witnesses.
5. In the present case neither list of witness nor the gist of evidence was enclosed with the complaint moreover prosecution/complainant side so far did not move to submit list of witnesses along with gist of evidence therefore the case in hand is not covered under section 540, Cr .P. C .
6. Another very important aspect of the matter, although not argued by any side but as this Tribunal must wear all the laws to its sleeve ends, position being so, we can seek guidance from Civil Procedure Code, 1908 because under section 21(6), P.E.P. Act, 2012, it is provided that in all matters with respect to which no procedure has been provided for in this Act, the Environment Tribunal shall follow the procedure laid down in Code of Civil Procedure, 1908. The object of filing of list of witnesses along with gist of documents with a complaint is that no one should be taken by surprise in the course of the trial and the parties, before commencement of trial, must be conscious, aware and fully prepared as to what kind of evidence was expected to be given by the witness of the opposite side, so that they could make necessary preparations for cross- examination etc., and secondly to prevent the concoction and fabrication of the evidence and to make up blatant omissions made by the litigants during the course of the trial. A party seeking to summon witness, to show "good cause" for failing to submit list of witnesses before court or for omitting to name of such witness in the list, expression "good cause" meaning no absolute criteria could be set forth as benchmark to test if a case of omission to file the list of witnesses or a name in such list was on account of "good cause", as it depended upon the facts of each case-Party in default had to show a legally sufficient reason, as to why its request should be granted or its inaction/omission should be excused, in other words, the judicial conscious of the court should be satisfied with justifiable reasons. A party in default could not, as a matter of right or as a matter of course, without assigning or establishing any good cause for the omission, ask for calling/summoning or even producing witnesses only on account of a lame excuse/reason and a bald assertion that it shall be in the interest of Protection Agency (Ch. Shabbir Hussain, Chairperson) justice and/or it shall facilitate the court in deciding the matter. Court was not free to grant such permission as per its own whim and caprice and in an arbitrary manner, rather it should record reasons for such a permission, condition of recording reasons obviously was a check on the unbridled and absolute discretion of the court, which should have nexus to the good cause as set out by the delinquent party, order allowing permission had to conform to those reasons which were justifiable in the eyes of law, which reflected the judicial application of mind by the court and the disposal of the request in a judicial manner, court was required to record its reasons even when disallowing the application of a party for summoning the witnesses. It is now well established, where law required an act to be done in a particular manner, it had to be done in that manner alone and such dictate of law could not be termed as a technicality. Above all, no Court could pass an order of its liking, solely on the basis of its vision itself and wisdom rather it is bound and obliged to render decisions in accordance with the law alone.
10. The unambiguous factual and legal position which emerge out to float on the surface of record before this tribunal is that the complaint in hand was moved under section 21(3)(a)(i). Under section 265-C(2)(a)(i) the complainant shall state in petition of complaint substance of accusation, the name of his witnesses and gist of evidence which he was likely to adduce at the trial. Neither list of witnesses nor gist of evidence likely to be produced at the trial, has been appended with the complaint, which is clearly violation to the mandatory provision of section 265- C(2)(a)(i), Cr.P.C. In all such like criminal complaints the complainant is under legal obligation to tender list of witnesses along with gist of evidence to be made by each witness independently before the tribunal/court. The witnesses are to be summoned and examined by the complainant from the list provided to all the accused and delivered to the accused before commencement of trial. The controversies culminating into charges could only be resolved by adopting procedure provided in the code of criminal procedure. It is not a mere technicality to put up list of witness along with gist of evidence to be produced by the prosecution against the accused. In case of default, the accused was not only to be taken in surprise but also he would not have a chance to prepare his defence. The complainant, if allowed to fil up the lacunas, there would be possibility of concoction and fabrication of evidence to make up blatant omissions through after thought evidence, which is not permissible. In the present case there is no question of mere technicality of law but blunder committed by complainant, if allowed to be rectified would vitiate the whole trial and certainly defeat the ends of justice. The accused who is a favourite child of law would be prejudiced, if proceeded without providing list of witnesses and gist of evidence to be examined for establishment of charges, therefore we accept this application under section 265-K, Cr.P.C. And acquit the accused from charge which could not be established due to lack of evidence, hence trial would be a futility in the eyes of law. File after completion be consigned to record room. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.