'JUSTICE (R) CH. MUHAMMAD YOUNIS, CHAIRPERSON.---The instant application has been moved by the respondent under section 265-K, Cr.P.C. For acquittal of the accused on various grounds mentioned therein as there was no likelihood of the conviction of the accused.
2. Arguments on the application under section 265-K, Cr.P.C. Have been heard Mr. Jawad Hassan Senior Advocate assisted by Mr. Ali Usman Advocate learned Counsel for the applicant contends that this Complaint has been filed against the respondent Muhammad Zaka Ashraf illegally whereas Muhammad Zaka Ashraf was never appointed as Chief Executive of the respondent company. As per copies-of Form 29 relating to the year 2011 to 2015 submitted by the applicant, Mrs. Naushaba Zaka Ashraf was the Chief Executive of the Ashraf. It was further argued by the learned Counsel that the SIR was prepared on 18.02.2012 which was forwarded through a covering letter on 28.02.2012 by the District Officer (Environment) to the Agency wherein it was mentioned that the samples of waste water have been taken but the analysis report placed on the record finds mention of the sampling date as 16.03.2012 so it contradicts the SIR and the covering letter of District Office (Environment). The learned Counsel maintained that Environmental Samples Rules, 2001 were flagrantly violated. The Form D in original was never submitted with the complaint as required by the said rules. The waste water is not discharged into any drain. Rather it is used for irrigation of the agricultural land of the owner itself. This fact has also been mentioned in the SIR itself.
3. The learned Counsel maintained that the extension of the unit has been mentioned in the SIR without giving any detail thereof. In the SIR the unit is mentioned to have been established in the year, 1982. The learned Counsel contends that the PEP Act, 1997 (as amended in 2012) has no retrospective effect so the provisions of section 12 could not be invoked. The extension of the unit is vehemently denied by the respondent. The learned Counsel maintained that enhancing the capacity does not mean the extension of the unit. It was further argued that on 05.07.2012 when the EPO was issued no PEAS had been framed by that time whereas the NEQS were not saved.
4. The learned Counsel further argued that the EPO dated 05.07.2012 was issued as per paragraph 4 thereof by the Director General EPA Punjab whereas it does not bear the signatures of the Director General and the Deputy Director (R&D has signed the same for Director General. No such course is approved by any law so on this score also this complaint is not maintainable.
5. The learned Counsel argued that although it is mentioned in para 2 of the EPO that the representative of the respondent had submitted written reply in response to the notice but neither the defence plea was discussed nor discarded by giving any reasons. Rather it was discarded by just incorporating a stereo type sentence 'that the competent authority was not satisfied with this reply'. The learned Counsel also referred to the latest analysis report of waste water of the respondent Mills got by the Mills from an independent lab Etna Environmental Lab according to which the discharge of waste water did not exceed the prescribed standards. In support of his arguments the learned Counsel also referred to 2005 CLD 1267 and the judgments of this Tribunal delivered in Complaint No, 932/2012 titled Director General v. Colony Sugar Mills and Complaint No, 517/2012 titled Director General v. Fatima Sugar Mills ISO Certified and environment friendly. The learned Counsel referred to 2009 CLD 825 tilted as Allah Ditta v. DCO in which it was held that issuance of' BS EN ISO 9001:2000 Certificate to the applicant showed its plant to be following quality assurance standards. The learned Counsel maintained that prima facie no offence is made out from the material placed on the record so there is no likelihood of the conviction of the accused and the respondent is liable to be acquitted under section 265-K, Cr.P.C.
6. The learned ADPP assisted by the learned Law Officer has vehemently resisted the application under section 265-K, Cr.P.C. And argued that the complaint is maintainable as the same can be filed against any person responsible for generating pollution, even other than the Chief Executive.
The EPO was issued against the Chief Executive however his name has not been mentioned. It was further contended that the sampling date in the analysis report may be result of clerical mistake.
The EPO was passed after considering the written reply submitted by the respondent. The NEQS though not saved in the amended Act are protected under Article 270AA of the Constitution of Islamic Republic of Pakistan 1973. The learned ADPP further argued that only the directions No, 3 contained in the EPO was complied with whereas the violation of the remaining directions Nos. 1, 2 and 4 is made out and the respondent is liable to be proceeded against under section 17(1) of PEP Act, 1997 (as amended in 2012). They prayed for dismissal of the application under section 265-K, Cr.P.C.
7. We have considered the arguments advanced from both the sides and perused the record.
Admittedly copies of Form 29 from 2011 to 2015 issued by the Securities and Exchange Commission of Pakistan (SECP) reveal that the respondent Muhammad Zaka Ashraf was appointed as Director on 29.03.2014. At the time of initiating the proceedings in the year 2012 he was neither a Director nor the Chief Executive of the company nor he has ever been the Chief Executive of the company.
Rather Mrs. Naushaba Zaka Ashraf was appointed as Chief Executive on 29.03.2011 and she still continues to be so. In the SIR the name of the Chief Executive has been mentioned as Muhammad Zaka Ashraf and presuming him to be the Chief Executive all the subsequent proceedings were conducted which were misconceived. This fact is further strengthened from the complaint wherein Muhammad Zaka Ashraf has been arrayed as accused considering him to be the Chief Executive of the company. Admittedly as per proviso to section 18 of the PEP Act, 1997 in case of a company only the Chief Executive is liable to be proceeded against and not anyone else. This legal point has already been thrashed out thoroughly by this Tribunal in Complaint No,517/2012 titled as Director General EPA v. Fatima Sugar Mills. The relevant portion of the said judgment dated 15.01.2016 is reproduced as under: 'We have considered the arguments advanced from both the sides. For better appreciation of the legal proposition 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, manapr, 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.
'According to this proviso in case of 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 of 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 (sic.) before issuing a notice 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. 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.
8. The SIR in this case Was submitted on 18.02.2012 which was forwarded by the District Office (Environment) on 28.02.2012 through a covering letter wherein it has been mentioned that samples of waste water had been taken for analysis but this fact is contradicted by the analysis report in which the sampling date is mentioned as 16.03.2012 which means that samples were either not sent within 48 hours as per rules or the same were taken later on. How the District Officer (Environment) claimed to have taken samples a fortnight before the date of sampling mentioned in the analysis report. This contradiction has not been explained and (sic.) proceedings. The sampling point is the outlet whereas in the analysis report itself it is clearly menticined that the waste water is used for irrigation of own agricultural farm of the respondent company so it is established that waste water is not being discharged into any drain having any adverse environmental effect.
9. Admittedly the Sample Rules 2001 were framed under the Pakistan Environmental Protection Act 1997 and the NEQS are mentioned in the said Rules to be observed which are inconsistent with the amended Act of 2012. Now in order to attract the provisions of Section 11 it is to be proved that the accused violated the PEQS. The Provincial Agency was required to frame its own sample rules or the same could have been adopted with necessary modifications so as to substitute PEQS for NEQS but the needful has not been done and no sample rules have been framed as yet. Even if the provisions of Environmental Samples Rules, 2001 are borrowed for the sake of arguments, the mandatory provisions of Rule 6 and Rule 10(5) thereof have not been followed. No report to the Director General as required by Rule 6 for issuance of EPO by the authorized officer is available on the record. Even the procedure given in the said rules for issuance of EPO was not adhered to. There is nothing on the record to show that one of the samples was given to the respondent or certificate in Form D in original was provided to the respondent enabling the company to challenge the same within the stipulated period. Rule 10(5) also requires that one original certificate in Form D shall be sent to the person from whom the sample is taken; submit the second original with the complaint if filed before the Environmental Tribunal and the authorized person to retain the third original. A perusal of the record shows that an attested copy thereof had been placed on the record which is clear violation of the above mentioned Rule.
In para 3 of the Complaint it has been mentioned that Mr. Waheed Murad Lashari Inspector conducted the site inspection and Mr. Ali Abbas Deputy Director (lab) visited the respondent unit and prepared the analysis report. This contention is again contradicted by the analysis report itself wherein a note has been given at the end of the report to the effect that the sample was sent to the lab by Muhammad Rafique, District Office (Environment) Bahawalpur and authenticity of the sample lies on him so there is a glaring contradiction in this respect in the analysis report and complaint itself. If the District Officer (Environment) had taken the samples then it was taken in February 2012 as mentioned in his covering letter dated 28.02.2012 and not on 16.03.2012 so this document cannot be relied upon for the reasons given above. If the sample was taken on 18.2.2012 at the time of inspection of the site then the question arises as to where the sample remained for such a long time as the same was required to be taken by an authorized person and was required to be sent to the Lab for analysis within 48 hours. There is no explanation as to who took the sample on 16.03.2012 and why it was taken when it had already been taken on 18.02.2012 and what was the fate of the earlier sample. All these matters are shrouded in mystery and make the whole proceedings doubtful.
10. As per complaint the respondent is alleged to have committed offence under section 11 of PEP Act, 1997 (as amended in 2012). Admittedly in order to attract the provisions of Section 11 of the Act ibid it was necessary to be established that the discharge of waste water exceeded the PEQS whereas no PEQS have so for been framed and notified by the Provincial Agency under the amended Act. It is also evident from the amended Act that the NEQS were never saved till the preparation of PEQS. So even if the contention of the Agency is treated as gospel truth no offence under section 11 is made out from the material placed on the record. For their own satisfaction the respondent company had already got an analysis report from an independent lab according to which the discharge of waste water was not found to be exceeding the prescribed standards.
11. As regards the extension of the unit in violation of section 12 of PEP Act, 1997 (as amended in 2012) no detail of the extension of the unit has been given in the SIR and only the capacity is alleged to have been enhanced. It may be result of some repair or replacement of old machinery or the use of the latest technology and other modern devices which may enhance the capacity of the unit. No new construction is mentioned in the SIR. The respondent unit as per SIR was established in the year 1982 so the case of the respondent does not fall within the purview of section 12 as the PEP Act 1997 (as amended in 2012) had no retrospective effect. If for the sake of arguments it is presumed that some extension was made which required environmental approval, admittedly the Provincial Agency has not framed and notified its own regulations for review of IEE and EIA under the amended Act to provide a forum for this purpose so the provisions of section 12 could not be invoked for want of any such forum which is yet to be created by the Provincial Agency for review of IEE and EIA.
12. A perusal of the EPO shows that Mr. Muhammad Iqbal Khan representative of the respondent appeared before the Agency and submitted a written reply to answer the allegations contained in the notice but not even a single word in this respect has been mentioned in the EPO and the defence plea of the respondent without discussing the same was discarded without giving any reasons just by incorporating a stereo type sentence that the competent authority is not satisfied with the reply. This Tribunal has time and again emphasized upon the EPA that the EPO is a quasi- judicial and appealable order and it has to be speaking one. Each and every defence plea is required to be discussed and reasons have to be given for discarding the same. If the respondent claimed to have taken certain remedial measures by installing some equipment to control the pollution then it was obligatory upon the Agency to procure a fresh report to verify the stance of the respondent and only then the same could be discarded if the said equipment was not found to be installed at all or the same was not functional or was not working efficiently. The EPO has been issued arbitrarily as it contains no reasons for discarding the defense plea of the respondent.
13. Another important point raised by the learned Counsel for the petitioner is that the EPO was passed by the Director General as per para 4 thereof whereas it does not bear the signatures of the Director General. Rather Deputy Director (R&I) signed the same for Director General. Such a practice cannot be approved as already held by this Tribunal in tannery cases of Sialkot.
14. In the light of the above discussion the complaint is not maintainable for more than one reasons. For lack of sufficient incriminating evidence and the legal infirmities pointed out above there is no likelihood of the conviction of the respondent so to proceed further with the complaint would be a futile exercise and mere wastage of precious time of this Tribunal. The application is thus allowed and the respondent stands acquitted under section 265-K, Cr.P.C.
15. The EPA shall however be at liberty to initiate fresh thorough investigation strictly in accordance with law if violation of any environmental law is found at the site.