' Arguments on the application under section 265-K, Cr.P.C. Have been heard and the record perused. Mr. Jawad Hassan Senior Advocate, learned Counsel for the respondent argued that this complaint filed on 05.07.2012 against the respondent through Mr. Muhammad Aslam Wahla is not maintainable as he was neither the Chief Executive nor Director of the respondent company which was incorporated under the Companies Ordinance 1984. It was contended that the EPO was issued in this case on 01.08.2008 without any legal justification and without considering the defense plea of the respondent contained in the written reply submitted before the EPA. It was not a speaking order and was not sustainable in the eye of law. The learned Counsel maintained that on the direction of this Tribunal the present CEO has been appearing before the Tribunal but he was not the Chief Executive in 2008 when the proceedings were initiated against the respondent. The proviso to section 18 of the PEP Act 1997 (as amended in 2012) provides that in case of a company only the Chief Executive was liable to be proceeded against. The learned Counsel placed on record copies of Form 29 and the annual report of the respondent company. In the year, 2008 Faisal Mukhtar was not the Chief Executive rather Mr. Fawad Ahmad Mukhtar was the Chief Executive of the company so Muhammad Aslam Wahla who has been arrayed as an accused person in the complaint could not be prosecuted and there is no likelihood of his conviction in the given circumstances so the complaint is liable to be dismissed on this score alone.
2. The learned Counsel for the respondent further maintained that this complaint has been filed four years after the issuance of the EPO and is badly hit by the principle of laches. In support his arguments he has referred to 2007 M LD 1945 Lahore and PLD 2007 Supreme Court 472 and 2008 CLC 606. The learned Counsel further maintained that all the proceedings conducted against Muhammad Aslam Wahla who was just a Manager of the company are based on misconception so the complaint is liable to be dismissed. The learned Counsel further argued that the EPO does not contain any detailed reasons to discard the defence plea of the respondent contained in the written reply so it being a sketchy and non-speaking order without reasons is not sustainable in the eye of law. No enquiry/investigation was conducted as required by the PEP Act 1997. The learned Counsel prayed that the application of the respondent under section 265-K, Cr.P.C. May be allowed and the respondent be acquitted.
3. The learned Deputy Director (Legal) vehemently opposed the petition and argued that the written arguments have already been submitted in this complaint. He contended that the Chief Executive is not necessarily to be nominated as accused. Since it is a corporate and any one responsible for violation of Environmental law can be arrayed as an accused person. A complaint can even be filed against an unknown person. The learned Deputy Director (Legal) further contended that the Chief Executive can be held responsible only if the offence or his negligence/connivance is proved after the trial and in the present complaint the said stage has not reached as yet. The learned Deputy Director (Legal) further maintained that in some cases the C.E.O. Are Foreigners and their offices are also situated out of country so their attendance could not be procured by the Tribunal hence the proceedings can be initiated against any representative or authorized person running the Unit. He is of the view that the Tribunal is not a Court while referring to AIR 1965 SC 1595, and AIR 1950 SC 188. He also maintained that the complaint being maintainable may be decided on merits as the same can be filed against any person responsible for generating pollution even other than the C.E.O. And it is not necessary under section 18 of the Act to nominate only the Chief Executive as accused.
4. We have considered the arguments advanced from both the sides. For better appreciation of the legal proprIsition we would like to reproduce section 18 of the PEP Act 1997 as under:- ' Where any contravention of this Act has been committed by a body corporate, and it is proved that such offence has been committed with the consent or connivance of, or is attributed to any negligence on the part of, any director, partner, manager, secretary or other officer of the body corporate, such director, partner, manager, secretary or other officer of the body corporate, shall be deemed guilty of such contravention along with the body corporate and shall be punished accordingly:"
Provided that in the case of a company as defined under the Companies Ordinance, 1984 (XLVII of 1984), only the Chief Executive as defined in the said Ordinance shall be liable under this section.
In the instant complaint one Muhammad Aslam Wahla has been arrayed as an accused person who had never been the Chief Executive of the respondent company. He was just an Admin Manager and in the prayer clause he is sought to be prosecuted, As per copies of Form 29 issued by the Securities and Exchange Commission of Pakistan Mr. Fawad Ahmad Mukhtar was the Chief Executive in the year 2008 when the proceedings were initiated against the respondent company and EPO was issued. So the entire proceedings are based on misconception and in derogation of the proviso to section 18 of PEP Act 1997 (as amended in 2012).
' According to this proviso in case a company incorporated under Companies Ordinance 1984, only the Chief Executive is liable to be proceeded against besides the Company itself. Arguments of the learned Deputy Director (Legal) that the complaint could be filed against any officer of the Mill have no substance and are not convincing. If like other corporate bodies anyone could be prosecuted there was no need for the legislature to add this proviso to Section 18 to proceed against a Company. There is a wisdom behind this proviso. The legal entity/corporate body or the company has to be prosecuted through some natural person and in case of company the Chief Executive is the said person as per above mentioned proviso. This proviso has purposely been added under section 18 because according to section 17(5) of PEP Act 1997 if a person is convicted and he repeats the offence he can be sentenced to imprisonment for a term which may extend to 02 years so if the arguments the learned Deputy Director (Legal) are adopted then how can the Chief Executive be sentenced to imprisonment if previously he was not the accused in a complaint filed by the Agency and was not convicted in the earlier complaint. So it is necessary for the Agency to conduct proper investigation before issuing a notice or passing of the EPO and filing the complaint. Often it is argued on behalf of the Agency that correct information is not provided to the officials of the Agency. This argument is not convincing because under section 6(2)(a) and (b) of the Act ibid, the Agency is fully empowered to conduct inquiry or investigation and may require any person/company to furnish the requisite information or data. When the Agency has been legally empowered to procure the information and data and conduct inquiry or investigation it is the legal obligation of the investigating officer/ inspector concerned or the District Officer (Environment) to thoroughly investigate the matter and determine the liability before proceeding further. He may determine in case of company as to who was the Chief Executive thereof at the relevant time. This information can even be obtained from SECP where Form 29 submitted by the companies is available. The learned counsel has provided copies of Form 29 relating to the relevant period of 2008 and 2009 showing that Mr. Fawad Ahmad Mukhtar was the Chief Executive of the company at that time so there was no occasion to initiate proceedings against Muhammad Aslam Wahla who had never been the Chief Executive of the respondent Mill so all the proceedings initiated against Muhammad Aslam Wahla were based on misconception, Under proviso to section 18 only the Chief Executive can be held liable for violation of the environmental laws and none else. When some person who is not the Chief Executive of a company cannot be punished then there is no justification for filing a complaint against such a person because in case of repeating the offence only the Chief Executive can be sentenced to imprisonment if he and the Company were previously convicted under section 17 of the PEP Act 1997. No one can be allowed to defeat the law by arraying an unconcerned person as accused. On this score alone this complaint is not maintainable and is liable to be dismissed. Moreover the argument that the Tribunal is not a court and is in the hands of Government is totally misconceived. There is no such concept in Pakistan. This Tribunal has to perform its functions independently in accordance with law without any influence of the Government or the Agency. If any offence was committed by Mr. Fawad Ahmad Mukhtar in the year 2008 how could Faisal Mukhtar present Chief Executive be punished. Moreover the application of the EPA now to incorporate the name of Fawad Ahmad Mukhtar in the complaint cannot be allowed after lapse of eight years. This complaint was filed four years after the PO and the learned Deputy Director (Legal) has not been able to justify the filing of this complaint after four years without explaining any reasonable cause for this inordinate delay. The reason given by the learned Deputy Director (Legal) that the Tribunal was not functional for one year also does not justify the delay because in the year 2008 and 2009 the Federal Environmental Protection Tribunal was functional. Keeping the sword hanging for such an indefinite period amounts to mis-using of powers by the EPA and it gives rise to serious doubts about the genuineness of the proceedings as the EPA remained in bargaining position for such a long time without taking a decisive step as required by law.
5. As regards the arguments of the learned Deputy Director (Legal) that the complaint can be filed even against an unknown person is totally misconceived. PEP Act 1997 (as amended in 2012) is a special law and has its own scheme for initiating proceedings and filing of complaints. Under section 30 of the Act ibid the provisions of this Act have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Section 16 provides for issuance of Environmental Protection Order and where the directions contained in the EPO are violated the Provincial Agency can proceed against him itself and can also file a complaint in writing before this Tribunal. The Agency has to carry out thorough investigation by exercising the powers under section 6(2)(a) of the Act ibid and determine the person responsible and then to issue a notice of hearing under section 16 and after issuance of EPO the complaint can be filed against a specific person/company in Accordance with law if the directions in the EPO are flouted.
So the definition of complaint as given in Cr.P.C. Is not applicable in such cases being inconsistent with the provisions of this Act. 11 the accused is. Unknown as per arguments of the learned Deputy Director (Legal) to whom the notice of hearing would be issued under section 16 because no EPO could be passed under section 16 unless the person responsible for discharge, emission etc. Is determined and given an opportunity of being heard. Moreover directions under section 16 could only be issued to a specific person/legal person/company in accordance with law. In view of the above legal position we may safely conclude that the provisions of the Act ibid over-ride the provisions of any other law if the same are inconsistent with the provisions of this Act. So the definition of complaint given in Cr.P.C. Is not applicable under the PEP Act 1997 (as amended in 2012).
6. Yet another point raised by the learned Deputy Director (Legal) that the Chief Executive can only be proceeded against if during the trial his connivance, consent or negligence is proved needs to be determined. This argument of the learned Deputy Director (Legal) has no substance because there is no concept of double trial in Cr.P.C. The incriminating evidence has to be collected by the EPA during the investigation against the Chief Executive of a company or the person responsible.
The Chief Executive or the person responsible has to be associated with the proceedings from the very beginning and not after the trial.
7. In the light of the above discussion the application under section 265-K, Cr.P.C. Is accepted and the respondent stands acquitted as there is no likelihood of his conviction. The EPA may however procure a fresh analysis report for which the respondent has allegedly already deposited the requisite fee and proceed strictly in accordance with law if any offence is made out against the respondent in view of the analysis report.