' Arguments on the application under section 265-K, Cr.P.C. Moved by the accused for his acquittal have been heard and the record perused.
2. The learned Counsel for the petitioner/accused argued that the complaint filed against the accused is defective. The complaint has been filed by the Director General on behalf of the EPA but the same does not bear the signatures of the Director General. Rather it has been signed by the Deputy Director (L&E) who had no authority to sign the same. Similarly as per para 3 of the EPO the Director General issued the said order but it has not been signed by the Director General. Rather Director (North/P&C) signed the same. So all the proceedings being without jurisdiction have no legal sanctity and the complaint is liable to be dismissed. Moreover no Annexure as mentioned in the complaint are available on the record. The learned counsel maintained that this complaint has been filed with the allegations of commission of offence under section 11 of Pakistan Environmental Protection Act, 1997 whereas no analysis report is available on the record to prima facie make out the offence. The proceedings were initiated on the basis of a stereo type SIR which bears even no date of inspection of the unit. Although the representative of the respondent appeared before the concerned officer in response to the notice of hearing and raised the defence plea regarding the arrangements which existed for preliminary treatment of the waste water but the said defence plea was not taken into consideration and the EPO dated 15.12.2010 was issued. The only direction contained in the EPO was to install treatment plant for treating waste water in conformity with the NEQS but at the time of compiling the compliance status report or before filing the complaint no analysis report was procured. The learned Counsel contends that in the notice of hearing the accused was asked to produce documents if he had applied for a plot in the Tannery Zone Sialkot and intended to avail the facility of joint treatment plant for treatment of various tanneries of the waste water of the Zone. The learned Counsel maintained that the accused had already applied for a plot in the Tannery Zone and the documents/allotment letter have been produced on the record with the application under section 265-K, Cr.P.C. The learned counsel maintained that in absence of any analysis report the non-compliance could not be alleged as the accused had constructed settling tanks for preliminary treatment of the waste water and it cannot be presumed without taking samples thereof and getting any analysis report to establish that the same exceeded the NEQS. The alternate direction was dependent upon the proof of the first one. In support of his arguments the learned counsel referred to 2016 CLD 1628, (Punjab Environmental Tribunal Lahore), 2015 CLD 57 (Punjab Environmental Tribunal Lahore). The learned Counsel prayed for acquittal of the respondent under section 265-K, Cr.P.C. As prima facie no offence is made out from the material collected during the investigation and there is no likelihood of the conviction of the respondent.
3. The learned ADPP assisted by the learned Law Officer has vehemently opposed the application under section 265-K, Cr.P.C. And argued that although there is no analysis report on the record to prove the violation of NEQS but the violation of direction is proved from the compliance status report according to which the treatment plant was not installed by the accused and the alternate direction to stop the pollution generating activities of the respondent unit can be implemented.
She prayed for dismissal of the application in hand and for proceeding against the accused in accordance with law by deciding the complaint on merits.
4. We have considered the arguments advanced from both the sides and carefully analyzed the material placed on the record. Admittedly the complaint has been filed by the Director General EPA but it does not bear the signatures of the Director General. Rather the same has been signed by the Deputy Director (L&E) for Director General. This practice cannot be approved. In a criminal complaint the complaint has to be signed and proved by the complainant himself and not anybody else. This practice has already been disapproved by the Tribunal being contrar), ' the provisions of Cr.P.C. Similarly the EPO was issued against the accused as per para 3 thereof by the Director General but the EPO bears the signatures of Director (North/P&C) and not those of the Director General. We are of the view that the Director General can only delegate the functions and powers mentioned in sections 6 and 7. If the EPO was issued under the conferred powers the Director must have mentioned the same in the order itself. The EPO is an appealable and quasi judicial order which must be signed by the Director General when it is shown in para 3 thereof to be issued by the Director General EPA. No order could be signed by any official of the court when it is passed by the judge. It must bear the signatures of the judge and not those of any subordinate officer/official. The EPA must improve its working in the light of the above guidelines.
5. The Agency initiated the proceedings on the basis of SIR but the SIR bears no date of inspection of the respondent tannery nor it shows the date when the report was prepared. In almost all the cases of Sialkot Tannery a stereo type SIR has been prepared without bearing date and without discussing the facts, circumstances and the description of process of a particular unit. In the SIR violation of sections 2 and 11 has been alleged. The notice of hearing was issued and the respondent was directed to bring the authentic documents regarding installation of waste water treatment system in conformity with NEQS or availing facility of proposed common effluent treatment plant by shifting the unit to Sialkot Tannery Zone. So the respondent was required to produce the documents regarding installation of treatment plant or in the alternative he was to inform the EPA about his intention to avail the facility of proposed common effluent treatment plant in the Tannery Zone. The respondent and most of the other persons against whom the complaints have been filed have applied for plots in Sialkot Tannery Zone and they intend to avail the facility of the proposed common effluent treatment plant in the Tannery Zone as and when it is completed. So the tenor of the notice shows that the respondent had to inform the EPA about his intention to shift his business to the Tannery Zone and avail the facility of common effluent treatment plant. The direction in the notice stood complied with when the respondent by appearing in person expressed his intention to shift his business to the said Tannery Zone and that he had already booked a plot for this purpose in the said zone.
6. The EPO was issued to the respondent directing him to install effluent treatment plant to treat liquid effluent/waste water in conformity with NEQS or stop operation of pollution generating activities. Admittedly the EPA had the powers under section 16(3) of the Pakistan Environmental Protection Act, 1997 to stop the pollution generating activities at the site if no arrangement for treating the waste water before discharging the same existed at the site. But this option was not availed by the EPA and the instant complaint was filed.
7. Admittedly the EPA did not bother to procure any analysis report to attract the provisions of section 11 of the Act ibid. The learned Counsel for the respondent rightly pointed out that waste water was not being discharged by the respondent without preliminary treatment in any drain.
Rather settling tanks already existed at the site and the waste water was preliminary treated through the same and then discharged into the drain. This arrangement was neither mentioned in the SIR nor in the compliance status report. Small units are not in a position to install a treatment plant by spending a huge amount. It is also not essential for each and every unit to install a treatment plant as the settling tanks also perform the same task to some extent by preliminary treatment thereof. The alternate direction cannot be said to have not been complied with as it was dependent on the main direction contained in the EPO. If the EPA after procuring an analysis report had reached a definite conclusion that the discharge of waste water exceeded the NEQS only then the alternate direction could be considered to have not been complied with. The argument of the learned ADPP in this respect is not convincing. In absence of any analysis report this Tribunal cannot presume that the discharge of waste water of the respondent unit exceeded the NEQS. No specification of the proposed treatment plant had been given in the EPO. So we are of the view that construction of settling tanks could also be considered to be the arrangement made for preliminary treatment of the waste water. As the respondent had already applied for a plot in the Tannery Zone and had undertaken to shift his business to the said Zone as and when it is completed so the respondent should have been given some specific practicable directions to control the pollution during the transitory period i,e, till the completion of the Tannery Zone. The EPA has imparted a stereo type direction to all the units without considering the nature or process of the respondent unit.
8. In the light of the above discussion and especially in absence of any analysis report in respect of the waste water prima facie no offence under section 11 of the Act ibid is made out so there is no likelihood of the conviction of the respondent under section 11 of Pakistan Environmental Protection Act, 1997 and to proceed further with this complaint would be a futile exercise and mere wastage of precious time of this Tribunal. So the application under section 265-K, Cr.P.C. Is allowed and the respondent stands acquitted.
9. The EPA shall however be at liberty to initiate fresh proceedings after procuring the analysis report if the discharge of waste water etc. Exceeded the PEQS at the site.