The respondent Sikandar Hayat is the proprietor of Sikandar Plastic Recycling Unit and is facing trial before this Tribunal.
2. Brief facts of the case are that site inspection of the unit was made on 10.09.2013 by PW-1 Muhammad Husnain Inspector (Environment). According to the report Ex-P A the unit was established 15 years ago, located in a residential area without approval from the EPA. In pars 6 he raised environmental issues that the excessive noise is being generated through operation of generator and the unit is also source of adverse social impacts.
3. The notices of hearing were given on 1st October 2013 Ex-PJ and second notice on 22nd November 2013 Ex- PK. Environmental Protection Order was issued on 07th of January 2014 Ex-PL . In that EPO respondent was directed to comply with the following directions within one month; 1) Take effective and scientific corrective measures to bring the noise within National Environmental Quality Standards ( NEQS ).
2) Ensure that electricity wiring is safe and adequate health and safety arrangements are in place in order to avoid any untoward incident.
3) Take effective/corrective measures to control adverse environmental effects arising from loading/unloading activities and roaming of workers.
4. The Non-Compliance was reported on 16.04.2014 vide Ex-PD . After the Non Compliance report a team of EPA Lab visited the unit on 24.03.2015 to check the gaseous emission and PM Dust from the stack of generator of unit and prepared report Ex-PE . Complaint Ex-PI was filed before this Tribunal on 10.03.2017.
5. After delivery of copies charge was framed against the respondent under section 17(1) of PEPA, 1997 (as amended in 2012) on 07.03.2013 that the plastic factory was found running without taking corrective measures to bring the noise within NEQS , without ensuring the safety of electric wiring to avoid any untoward incident and taking measures to control/environmental ef fect arising from loading unloading.
6. To prove the charge the prosecution has produced the following witnesses; PW-1 Muhammad Husnain Inspector (Environment).
He prepared the SIR Ex-P A, served the notice of hearing Ex-PB and Ex-PC and he also visited the unit for non- compliance report Ex-PD .
PW-2 Ajmal Nadeem Senior Inspector (Environment) Gujranwala .
He was Research Assistant in EPA Lab and visited the unit on 24.03.2015 to check the source of emission and prepared report Ex-PE .
PW-3 Younas Zahid, District Officer (Environment) Lahore He forwarded the service report of the EPO Ex-PF . Compliance Status Report Ex-PG and notice of hearing Ex-PH .
PW-4 Mian ljaz Majeed Assistant Director (L&E)
He filed the complaint Ex-PI PW-5 Muhammad T ahir Director (EIA) EP A Lahore He issued notices of hearing Ex-PH, Ex-PK and EPO Ex-PL .
7. On 17.05.2018 Learned law officer Mohsin Sarfraz Cheema closed the evidence and statement of the accused was recorded under section 342, Cr.P.C. All the incriminating material was put to the accused/respondent and the same was denied. In answer to question No.9 as to why this complaint is filed against him and PWs deposed against him his reply was under; "There were no environmental issues in my unit. In those days the electric load shedding was at its peak and therefore generator was used. There was no lab report with regard to noise or smoke and the present complaint is nothing but to harass and blackmail the respondent to extract money . There was no complaint from any private person living in neighborhood regarding allegations of EPO ."
8. Respondent/accused opted not to produce defence evidence or to appear on oath under section 340(2), Cr .P.C.
9. Tribunal have heard the arguments of Muhammad Asif Rana learned counsel for the accused/respondent and Mohsin Sarfraz Cheema learned law of ficer.
10. Law officer submits that the prosecution has produced sufficient - incriminatin g evidence in the shape of SIR, EPO , Non Compliance Status Report and Lab report gives corroboration to these documents and the prosecution has proved the case against the accused/respondent beyond shadow of reasona ble doubt that unit was causing environment problems and the same deserve punishment in accordance with law .
11. Learned defense counsel submits that the SIR was conducted on 23.09.2013. The EPO was issued on 07.01.2014 and after approximately one year, lab report came in the picture. Submits that at the time when the SIR was conducted the Department proceeded mere on speculations/presumption that the generator of the unit was making noise exceeding NEQS. Submits that in the SIR there was no mentioning of smoke and department had no authority to check the wiring of electricity . Submits that there are contradictions regarding service of EPO and hearing Notices; that NEQS are not applicable and no offence is made out regarding loading or unloading of the material under PEPA 1997 (as amended in 2012). Submits that the EPO, hearing notices, lab report are attested copies and without proof of loss of origina l the same cannot be tendered in as secondary evidence. Lastly argued that there is violation of Sampling Rules 2001 and prosecution has failed to prove the case beyond the shadow of reasonable doubt and the accused deserve acquittal.
11(sic.) First site inspection was made on 10.09.2013 by Muhammad Husnain PW-1. He along with Wasim observed smoke emitted by the generator installed in the unit. In this unit sole of the shoes were being manufactured. There was smell. He prepared the SIR Ex-P A. There was no lab report prepared. PW-1 stated that they were having both instruments to check the noise level and smoke emission but had not mentioned in the SIR that they used these instruments to measure smoke and noise. Tribunal asked the following question to this witness; QUESTION : How you measured the noise and smoke when you did not check with the respective meter and scale?
ANSWER : I presumed it that the smoke and noise was beyond the limits.
This answer has dented the case of the complainant to a great deal. Inspector and field assistant acted mere on presumption that the noise level might have exceeded the limits. He admitted that he had not mentioned the presence of smell in the SIR. He also admitted that he had no authority to check the bylaws or electric wiring. He also admitted that when he went to check the compliance of the EPO there was no lab expert with him and he again acted on presumption that noise and smoke was beyond limits. He also admitted that 2nd and 3rd direction of the EPO relates to Public Nuisance.
12. PW-2 Ajmal Nadeem Research Assis tant in EPA Lab visited the unit on 24.03.2015, approx one year after the SIR. He admitted that he was not havin g any written authority however he was complying directions of Deputy Director . Director General had not directed him to visit the site. He prepared three samples. One he handed over to proponent and other two he brought in the Lab. One was preserved and third one he checked and made report. In the fage end of his cross-examination he strangely admitted that there are no samples of smoke, noise and gases and only there are PM. First of all this witness had no written authority to enter and inspect as required under Rule 2(b) of Environmental Samples Rules 2001. Complainant agency had not produced any written material that whether authorized person before entering the unit has reasonable ground to believe that that the offence under the PEPA, 2012 has been or is being committed therein. Prosecution had not examined any independent witness in whose presence the samples were taken. Ex-PE is Lab Report prepared on 13.04.2015. Samples were taken on 24.03.2015. Prosecution has produced attested photocopies of EPO, Notice of hearing and Lab Report without there being any proof of loss of original. There are important provisions of Qanun-e-Shahadat Order , 1984 with regard to the production of secondary evidence. Articles 73, 74, 75 and 76 of Qanun-e-Shahadat Order , 1984, deal with secondary evidence, Article 75 of Qanun-e-Shahadat Order , 1984 mand ates that all documents must be proved by primary evidence except in cases mentioned hereinafter and according to Article 73, primary evidence means the document itself produced for the inspection of the Court. Article 76 elaborately deals with case in which secondary evidence relating to a docume nt may be given. It was obligatory upon the prosecution to have brought their case within the ambit of Article 76 and thereby to convince the Courts below to grant the application for the production of the secondary evidence. No such application was filed for production of secondary evidence.
13. Loading or unloading does not make any offence under PEPA 2012. PW-1 only acted on presumptions while making SIR and non-compliance status of EPO . The statements of the witnesses are self-contradictory and not worth of reliance. The case of the prosec ution is pregnant with doubts. The defense of the accused seems more plausible and convincing. He has stated that there were no environmental issues in the unit and in those days the electric load shedding was at its peak and therefore generator was used. There was no lab report with regard to noise or smoke and the present complaint was filed to harass and blackmail him to extract money . There was no complaint from any private person living in neighborhood regarding allegations of EPO.
14. In 1999 SCMR 1220 principle laid down by the honourable Supreme Court is reproduced below for the sake of facility .
"It is axiomatic and universally recognized principle of law that conviction must be founded on unimpeachable evidence and certainty of guilt and hence any doubt that arises in the prosecution case must be resolved in favour of the accused. It is, therefore, imperative for the Court to examine and consider all the relevant events preceding and leading to the occurrence so as to arrive at a correct conclusion. Where the evidence is examined by the prosecution is found inherently unreliable, improbable and against natural course of human conduct, then the conclusion must be that the prosecution failed to prove guilt beyond reasonable doubt. It would be unsafe to rely on the ocular evidence which has been molded, changed and improved step by step so as to fit in with the other evidence on record. It is obvious that truth and falsity of the prosecution case can only be judged when the entire evidence and circumstances are scrutinized and examined in its correct perspective. As noted above, the eye- witness account in this case is so unreasonable and inherently improbable, that no amount of corroboration can rehabilitate it."
15. The concept of benefit of doubt to an accused person is deep rooted in our country . For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts.. If there is a circumstance which creates reasonable doubt in a prudent mind, about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concessions, but as a matter of right. Prosecution has acted on presumptions and has failed to prove the case beyond shadow of reasonable doubts. Accused/respondent is acquitted from the charge. He is on bail. He is relieved from his obligation. Copy of Judgment be sent to DO (Environment) concerned and present file be consigned.