' MUHAMMAD ARIF KHAN, MEMBER LEGAL.---This order will dispose of the Application under section 21(3) of the Pakistan Environmental Protection Act, 1997, read with section 26(3) of the Sindh Environmental Protection Act, 2014 read with Article 175(2) of the Constitution of the Islamic Republic of Pakistan and Application under section 265-K of the Code of Criminal Procedure filed on behalf of the Respondent Raiwind Chemical (Pvt.) Ltd. And Application for Withdrawal of Complaint filed by the Complainant No,1..
2. This Tribunal had received this complaint along with letter No,851/MIT-II/PSA-2479/2011 dated 23rd April 2011 from the office of Member Inspection Team-II of the Honorable High Court of Sindh, Karachi. The Application/Complaint was addressed to the Honorable Chief Justice of Pakistan and copies of it were also sent to Honorable Chief Justice of Sindh and others. The Application/Complaint was moved by the Complainants namely Abdul Ghani, Iqbal, Ameen, Waseem and Daulat.
3. The brief facts of the Application/Complaint, which was authored by Complainant No, 1 Abdul Ghani, are that the Applicant/Complainant resides in village Mue Khan Baloch, U/C Ghaghar situated in Bin Qasim Town, Karachi. He claims that he is a social worker and that their village faces a major problem from the companies namely ICI, Engro Chemicals, Bak Gas, Fauji Foundation, several other textile mills and approximately 500 other factories which leave their waste chemicals and hazardous material and create all sorts of pollution in the area which is dangerous to human health. He claims that at the time of construction of these factories, objection was raised by the complainants/residents of the village that these factories would negatively impact the health of the people in the locality. He claims that they were given assurances that if any of the residents of the 27 villages in the area is affected, something would be done about it. He also claims that they were also given assurances that all the inhabitants of the villages would be provided jobs in the factories. The complainant claims that neither the promised jobs were provided nor any steps were taken for the betterment of their health. The complainant further alleges that they were deprived of their ancestral lands. He also alleges that the promises were not fulfilled and that people of the villages are being affected by the pollution.
4. On 26th April, 2011, this complaint was presented before the Honourable Chairman of the then Environmental Protection Tribunal, Karachi, constituted under the Pakistan Environmental Protection Act, 1997. The Honourable Chairman directed that notices be issued to the applicants/Complainants for 5th May, 2011. On 5th May, 2011 three complainants, namely Abdul Ghani, lqbal and Ameen were present in person and informed the Tribunal that Complainants Nos.4 and 5 were out of the city. They filed Memo of Appearance, which was put on record. They were directed to submit the list of the Companies which are polluting the environment in and around U/C Ghaghar, Bin Qasim Town, along with the complete addresses and names of the CEO/Owner within 3 days. The Sindh Environmental Protection Agency was directed to conduct investigation in respect of the factories mentioned in the list provided by the complainant and submit a comprehensive report.
5. After seeking several extensions, the Sindh Environmental Protection Agency (hereinafter referred to as the Agency) on 18th August, 2011 finally submitted the interim investigation report in respect of
(i) M/s. Proctor and Gamble Pakistan Ltd., (ii) M/s. Exide Pakistan Ltd., (iii) M/s. Raiwind Chemical (Pvt.) Ltd., (iv) M/s. Lotte Pakistan Ltd. (ICI), (v) M/s. Fuji Fertilizer Ltd. (vi) M/s. Wali Oil Mills Ltd., (vii)
M/s. Engro ZarKhaiz Plant and (viii) M/s. British Oxygen Ltd. On 20th June, 2011 the learned DDPP appearing, for the Agency filed Application for the issuance of Search Warrants against M/s. Exide Pakistan Ltd., and M/s. Wali Mills as they allegedly had not allowed the officials of the Agency to access their premises. On 28th June, 2011 the Tribunal issued notices to M/s. Aide Pakistan Ltd., and M/s. Wali Oil Mills on the application of the Agency for the issuance of Search Warrants against these factories. The Agency was directed to submit all necessary details including date and time of visit, and name of person who refused to allow the Agency to investigate. After repeated notices on 14th July, 2011 Mr. Tariq Javed, Plant Manager, Excide Pakistan Ltd., and Mr. Ghulam Shabbir, Admin Manager, Wali Oil Mills appeared before the Tribunal on behalf of the Respondents. On 26th July, 2011 the Respondents made statement that they are ready to co-operate and allow access to the Agency for investigation, and requested that search warrants may not be issued against them. The request of the Respondents was allowed by Tribunal. On 18th August, 2011 the Assistant Director of the Agency through the learned DDPP submitted interim investigation reports in respect of M/s. Procter and Gamble Pakistan Ltd., M/s. Exide Pakistan Ltd., M/s. Raiwind Chemicals (Pvt.) Ltd., M/s. Lotte Pakistan Ltd. (ICI), M/s. Fauji Fertilizers Ltd., M/s. Wali Oil Mills, M/s. Engro Zarkhaiz Plant and M/s. British Oxygen Ltd., which were kept on record for further proceedings. On 25th August, 2011 and 24th September, 2011, the complainants filed applications for deleting the names of M/s. Wali Oil Mills Ltd. And M/s. Exide Pakistan (Pvt.) Ltd., respectively. On 24th September, 2011, the Agency through the learned DDPP submitted another interim investigation reports in respect of all the above named companies. On 12th October, 2011, the Assistant Director of the Agency, through the learned DDPP submitted another interim investigation report in respect of M/s. British Oxygen Ltd., M/s. Raiwind Chemicals (Pvt.) Ltd., M/s. Engro Zarkhaiz Plant and M/s. Lotte Pakistan Ltd. (ICI) which was kept on record. The learned counsel for the Complainant submitted photocopies of newspaper clippings which were also taken on record. On 28th November, 2011, the Assistant Director of the Agency was directed to submit comprehensive reports in respect of M/s. Exide Pakistan Ltd., and M/s. Wali Oil Mills. On 20th December, 2011 the Assistant Director of the Agency through the learned DDPP submitted interim investigation reports in respect of M/s. Procter and Gamble Pakistan Ltd., M/s. Exide Pakistan Ltd., M/s. Raiwind Chemicals (Pvt.) Ltd., M/s. Lotte Pakistan Ltd. (ICI), M/s. Fauji Fertilizers Ltd., M/s. Wali Oil Mills, M/s. Engro Zarkhaiz Plant and M/s. British Oxygen Ltd., which were kept on record for further proceedings. The statement of the Complainant No,1 was recorded by the Tribunal under section 200 of the Code of Criminal Procedure. On 11th January, 2012, the Assistant Director of the Agency through the learned DDPP submitted report in respect of M/s. Exide Pakistan Ltd., and M/s. Wali Oil Mills which was kept on record. The said report revealed that their parameters were not exceeding the limits imposed by the National Environmental Qualily control Standards.
Order was passed on Applications dated 25th August, 2011 and 24th September, 2011 and the Complainant's application for the deletion of their names was allowed. The Assistant Director of the Agency was directed to submit final investigation-report regarding the remaining factories.
6. On 14th June, 2012 the Complainant filed list of witnesses and an amended list of companies which were allegedly polluting the environment. As per order dated 14th June, 2012, the Registrar was directed to register cases against M/s. Raiwind Chemicals and M/s. Engro Fertilizers, assign separate complaint number and issue summons to the CEOs of these companies. Notice was directed to be issued to CEO of Fauji Fertilizers Ltd. On 3rd August, 2012 the Respondents were provided copies of the complaint and the statement recorded by the Tribunal under section 200 of the Code of Criminal Procedure. On 30th October, 2015 this case, along with other cases, had been received by this Tribunal through the Ex-Registrar of the devolved Environmental Protection Tribunal established under the Federal Law vide letter issued by the Federal Ministry of Law, Justice and Human Rights dated 9th July, 2015 in pursuance of the process of devolution under the 18th Amendment to the Constitution of the Islamic Republic of Pakistan. On 14th January, 2016, the Respondents in this case filed an Application under section 265-K of the Code of Criminal Procedure and it was heard on 27th January, 2016 during the hearing Complainant No,1 submitted an Application for withdrawal of the complaint, stating that he has no complaint against the Respondent at this point in time.
7. The learned counsel for the Respondents submitted that this Tribunal has no jurisdiction under section 21(3) of the Pakistan Environmental Protection Act, 1997 or section 26(3) of the Sindh Environmental Protection Act, 2014 and it could not take cognizance on a direct complaint as the Complainant has not given a notice of 30 days which expresses and intention to file a complaint before the Tribunal under these sections. According to him, it is a mandatory requirement of law but the same was not fulfilled by the Complainant. He also submitted that the village of the Complainant is 11.3 km away from the Respondent factory, and that the wind blows from the village of the Complainant to the Respondent factory, and not vice versa, and water flows from the village to the industrial estate hence there is no question of atmospheric or water pollution. He further submitted that no summons were issued, only notices were issued, hence no cognizance was taken. He also submits that section 200 of the Code of Criminal Procedure requires that statement of the Complainant be recorded at once whereas in this case the statement of the Complainant was recorded after eight months The learned counsel for the Respondent further submitted that there is a glaring contradiction in the contents of the complaint and the statement of the Complainant recorded under section 200 of the Code of Criminal Procedure in respect of the death toll of people and animals, which is quite different in both the statements. This fact creates a serious doubt in the mind of a prudent man regarding the authenticity of the contents of the complaint. The learned counsel for the Respondent also submitted that the Complainant did not file a single death certificate or any FIR to establish their claim regarding the death of any person or any animal due to the pollution. He also submitted that without documentary evidence the statement of the Complainant cannot be considered as a gospel truth.
' The learned counsel also submitted that this Tribunal under Article 175(2) of the Constitution of the Islamic Republic of Pakistan has no jurisdiction to proceed in this matter. The learned Assistant District Public Prosecutor, assisting the agency, contended that under the provision of 265-K of the Code of Criminal Procedure the Tribunal can only exercise its powers if the charges are groundless or there is no probability of conviction, whereas in the present case the learned counsel for the Respondents has only raised some technical issues therefore the application is not maintainable under the law. He also submitted that the inquiry report of the Agency is on record which clearly establishes that the Respondent factory exceeds the NEQS and in such circumstances the application is liable to be dismissed while the Complainant No, 1 has categorically stated that he has no more interest in pursuing the case and has no more complaint against the Respondents at this point in time.
8. We have considered the contentions raised by the learned counsel and the parties including the Complainant and perused the case record which reveals that the present complaint was received from the Honorable High Court of Sindh for necessary action in accordance with the law. In order to ascertain the truth, after receipt of the complaint on 23rd April, 2011, notices were ordered to be issued to the Complainant and simultaneously through the learned DDPP, the Agency was directed to probe into the matter, conduct detailed enquiry and to submit the report. The Agency submitted a number of interim reports before the Tribunal and the statement of Complainant No, 1 under section 200 of the Code of Criminal Procedure was recorded after about eight months of the receipt of the complaint from the Honorable High Court of Sindh. Case was registered after the statement of the Complainant No,1 was recorded. The Registrar was directed to register cases against M/s. Raiwind Chemicals and others separately. It is also pertinent to mention that the team of the Agency, visited the Respondent factory and as per the chemical analysis report dated 17th April, 2014, COD, phenolic compounds and nickel were exceeding NEQS limit.
9. In our view, if the Tribunal order for investigation under section 156(3) of the Cr.P.C. Or issues search warrants for the purpose of the investigation, it cannot be said to have taken cognizance of the alleged offence. Issuance of search warrants for the purpose of investigation or directing the Investigating Agency to ascertain the truth of the complaint cannot by itself be regarded as an act of taking cognizance of an alleged offence. To take cognizance of an offenceis not the same as issuing of process. The Tribunal may be said to have taken A cognizance of a complaint if after receiving a complaint from the Agency or an aggrieved person, the Tribunal records the statement under section 200 of the Cr.P.C., applies its mind to the facts in the statement and proceeds to order the registering of a case against the accused. The 'Tribunal had only directed the application/complaint to the Agency for the purpose of ascertaining the truth, no summons, were issued on the complaint, and thus the Tribunal adopted the proper course in this complaint by not taking cognizance of the complaint at the earliest, before getting the enquiry/investigation conducted.
10. The factory of the respondent was visited by the authorized team of the Agency and collected waste water samples for laboratory analysis in the presence of witnesses. On the basis of the results it was allegedly found that some parameters of the waste water were exceeding the permissible limits of the National Environmental Quality Standards, in contravention of section 11 of the Pakistan Environmental Protection Act, 1997. The Agency had afforded Multiple opportunities for personal hearing under section 16(1) of the Pakistan Environmental Protection Act, 1997 and an Environmental Protection Order was issued on 28th October, 2011 and thereafter repeated chances were given to the Respondents for compliance on their requests. The maximum time given to the Respondents for compliance lapsed and final notice dated 14th January, 2012 was issued by the Agency for compliance with the Environmental Protection Order.
11. The Agency submitted its reports regarding non-compliance of the Environmental Protection Order by the Respondents and then the Tribunal proceeded to take cognizance and ordered the registration of cases- against the Respondents after recording the statement of the Complainant under section 200 of the Cr.P.C.
12. The lab report and the report of investigating officer indicate that the limits imposed by the National Environmental Quality Standards are being exceeded and the Respondents have failed to comply with the Environmental Protection Order after repeated opportunities afforded to them, as alleged by the Agency.
13. The plain reading of section 11 of the Pakistan Environmental Protection Act, 1997 conspicuously imposes two obligations on everyone, firstly the National Environmental Quality Standards (NEQS) should not be violated, and secondly the standard established under section 6(1)(a)(i) must be maintained.
14. Since the limits imposed by the National Environmental Quality Standards are being exceeded and the alleged violation continues, therefore the grounds for allowing an application under section 265K, Cr.P.C. Are not being met and therefore the application under section 265-K, Cr.P.C.
And the application under section 21(3)(b) of the Pakistan Environmental Protection Act, 1997 and section 26(3)(b) of the Sindh Environmental Protection Act, 2014 read with Article 175(2) of the Constitution of Pakistan deserve no merit at this stage because we are of the considered view that the present matter requires evidence therefore these applications being premature at this stage are hereby dismissed. The Respondent, if so advised, shall be at liberty to file such an application at an appropriate stage after some evidence is brought on record.
15. The Application for withdrawal of the Complaint filed by Complainant No .1 is not maintainable especially when the remaining four complainants have not joined in in the withdrawal application.
The same is also dismissed. It is pertinent to mention that this case is not limited to the complainants, as the alleged violation of the National Environmental Quality Standards continues to affect the environment and the public at large. All this needs determination after due trial of the case.
16. 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 has held that the Right to life enshrined in the Constitution includes the Right to an Unpolluted Environment.
17. It is made clear that any observation made in this order being tentative in nature is only for the limited purpose of deciding the present three applications and shall not be construed as an expression of opinion on the merits of this case.
' Announced and given under our hand and seal of this Tribunal on the 25th day of February, 2016.