' JUSTICE (R) CH. MUHAMMAD YOUNIS, CHAIRPERSON.---The proceedings against the respondent were initiated on the basis of SIR dated 21.10.2008. A perusal of this SIR shows that one Muhammad Sheikh, has been shown as owner/Chief Executive of the respondent Sugar Mill and a notice dated 21.10.2008 was also issued to the said Muhammad Sheikh showing him to be the Chief Executive of the respondent Sugar Mill. The allegations as contained in the notice were as follows:- The Unit was established without securing environmental approval from EPA, Punjab Lahore. ii. The Unit generates waste water having values of BOD, COD, TDS, TSS Chloride and Sulphate exceed the NEQS Limits. iii. No measures have been adopted to control the air pollution. Iv. Solid waste is indiscriminately disposed off. v. The offensive smell prevails due to discharge of untreated wastewater.
2. In response to the notice a detailed reply was submitted and the steps taken as remedial measures were enumerated therein but on 12.02.2009 EPO was passed against the Chief Executive with the following directions:-- i. Remedial measures be adopted to treat waste water in conformity with the NEQS within eleven
(11) months. Ii. Control flyash emission to the satisfaction of this Agency within six (06) months. Iii.
Adopt proper system for solid waste management to the satisfaction of this Agency within two (02) months. OR ' Stop operation of pollution generating activities.
3. The learned counsel for the respondent contends that the complaint is not maintainable as no notice was issued to the Chief Executive of the respondent Sugar Mill. Muhammad Sheikh, had never been the Chief Executive of the Unit rather Faqir Muhammad, was the Chief Executive of the Company at the relevant time and according to proviso of section 18 of the PEP Act, 1997 only the Chief Executive of the Company incorporated under the Companies Ordinance, 1984 was responsible for any violation of the environmental laws.
4. On the other hand the learned Director Legal submitted the written arguments contending therein that the Chief Executive is not necessarily to be nominated as accused. Since it is a corporate body 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 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 Director legal further maintained that in some cases the CEOs are Foreigners and their offices are also situated out of country and their attendance could not be procured by the Tribunal, so 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 1665 (sic.) 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.
5. We have considered the arguments advanced from both the sides. In order to better appreciate the 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, 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.
6. In the instant complaint one Muhammad Sheikh was shown to be the CE/owner of the respondent Mills. Presuming him to be the Chief Executive a notice was issued under section 16 on 21.01.2008 and then the EPO was passed on 12.02.2009 after obtaining an analysis report so the entire proceedings were carried out against the said Muhammad Sheikh. The learned counsel for the respondent argued that Muhammad Sheikh had never been the Chief Executive of the respondent Mill so neither the respondent could be proceeded against through him nor the complaint could be filed against him in the light of proviso to section 18. According to this proviso in case of a company incorporated under Companies Ordinance, 1984 only the Chief Executive is liable to be punished besides the Company itself. Arguments of the learned Director Legal that the complaint could be filed against any officer of the Mill have no legal support 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 2 years so if the arguments of the learned Director Legal are adopted then how can the Chief Executive be sentenced to imprisonment if previously he being CE was not the accused in a complaint filed by the Agency. 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 by the representatives of the Agency that correct information is not provided to the officials of the Agency. This argument is not convincing because A under section 6(2)(a) and (b) of the Act ibid, the Agency is empowered to conduct inquiry or investigation and may request any person to furnish any information or data relevant to its function. When the Agency has been legally empowered to procure the information and date and conduct inquiry or investigation it is the legal obligation of the investigating officer/inspector to thoroughly investigate the matter and determine the liability before proceedings further. He may determine in case of company as to who was the Chief Executive thereof. This information can even be obtained from SECP where Form 29 submitted by the company is available. The learned counsel has provided copies of Form 29 relating to the relevant period of 2008 and 2009 showing that Mr. Faqeer Hussain was the Chief Executive of the company from 2007 to 2009 so there was no occasion to initiate proceedings against Muhammad Sheikh who had never been the Chief Executive of the respondent Mill so all the proceedings initiated against Muhammad Sheikh presuming him to be the Chief Executive of the Mill 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 ends of justice by impleading an unconcerned person as accused. On this score this complaint is not maintainable and is A liable to be dismissed.
7. As regards the arguments that Chief Executive of some Companies may be out of Pakistan it would suffice to say that by invoking the relevant provisions of Cr.P.C. Their personal attendance could be dispensed with and this Tribunal has always been taking a lenient view and has been liberally exercising the said discretion so the law cannot be allowed to be violated on this pretext.
8. The arguments of the learned Director Legal that after the trial if offence is proved the Chief Executive can be added as accused is quite illogical. There is no such provision in Cr.P.C. To conduct double trial or substitute the accused after full trial. It is neither feasible, nor practicable.
The prosecution cannot be allowed to fill up the lacunae in their complaint after the procrastinated trial as in criminal justice system the benefit of doubt is given to the accused and not the prosecuting Agency.
9. Even otherwise no analysis report was procured after passing of the EPO and before filing of the complaint to prove the allegation under section 11. In the light of the above discussion the complaint is hereby dismissed. The Agency may initiate fresh proceedings against the concerned Chief Executive after procuring fresh analysis report.