Ch. Shabbir Hussain (Chairperson). Tersely stated facts forming back ground of this complaint are that one Muhammad Waris Khan, General Secretary , Anjuman Fidayan-e-Mustafa, Madina Mosque, Wahdat Colony , Multan made a complaint against some Marble Factories located around the Jamia Madina Mosque, Wahdat Colony , Chowk Rasheedabad, Khanewal Road, Multan wherein it was alleged that some marble factories are established near the Mosque, where all marble factories are working in the vicinity , deposit and dump marble powder waste; that grinding marble waste/powder flies in the mosque with help of blowing air and badly affect the health of the people; that marble factory owners have been requested so many times to avoid dumping of waste around the mosque but they paid no heed therefore Departmental action was requested to be initiated; that as per press clipping appeared in Daily Expres Multan on 05.09.2005 werein it was mention ed that some marble factories working at chowk Rashidabad Khanewal Road Multan were causing severe air pollution by dumping their dry grinding waste powder near Chowk Rashidabad, Khanewal Road, Multan. It was further alleged that these factories were working day and night and neighboring residents are suffering from diseases like asthma, skin allergy and eyes problem because of these marble cutting/grinding Units. One Shakeel Ahmed Advocate, Nazim U.C No. 9, Rasheedabad Multan City also made a complaint against marble cutting Units working at Chowk Rasheedabad alleging therein that these factories are working in violation of law and causing lungs problems, allergy and skin problems for the locals through emissions of marble grinding waste/powder and requested for initiating legal action against these factories.
2. The EPA Punjab got inspected the site through DO(E) Multan. Site inspection report showed that M/s. Pak Marble Factory has been established at Street No. 4, Mehmood Abad Colony , LMQ Road, Multan without obtaining environmental approval from EPA Punjab, which is mandatory u/S. 12 of PEP Act 1997. It is also on record that the respondent factory produces high level noise during cutting of large marble sheets by cutter and during grinding process. This noise causes severe inconvenience to the inhabitants of the area by raising noise level beyond the WHO guidelines; that during grinding process dry powder is produced and settles down within and outside the premises of the factory and that marble powder is collected and thrown in open plots which fly in the air and affect the health of people living and passing nearby .
3. Prime facie, it was made out that the respondent is causing pollution in violatio n of provision of PEP Act 1997 hence penal provision u/S. 16 of Act Ibid was invoked that opportunity of hearing was provided on 31.12.2005 Mirza Naeem Baig, President Marble Association on behalf of the respondent factory attended the hearing and requested for seeking time for submission of written defence but no defence was submitted till 03.02.2006. Hence another opportunity of hearing was provided to the' respondent on 28.02.2006 Mr. Muhammad Ibrahim, Chief Executive of the respondent Unit attended the hearing and submitted a defence statement wherein it was stated that the respondent factory was establishe d 30/40 years back; that no noise and air pollution is produced during the operation; that marble tiles are cut with grinder and water is used in this process hence no powder flies in air. That no harmful affect on the health of people as long shoes are provided to the workers "the defence was rejected being unsatisfactory on technical grounds and because of persistent dust and noise pollution. After consideration of SIR, hearing proceeding defence statement and other relevant record, the compl ainant Agency became satisfied that the respondent was causing pollution in violation of PEP Act 1997 hence the Environment Protection Order
(EPO) was issued to the respondent on 25.08.2006 wherein he was directed as under: i) Control environmental pollution of your factory by adopting engineering solutio n to save the public as well as environment, according to satisfaction of this Agency within thirty days, ii) Refrain from disposing of slurry and marble dust outside the premises of the factory . iii) Strictly observe timing for working/operation from 8.00 a.m to 6.00 pm. iv) Select suitable site outside the city with the consultation of TMA for safe disposal of solid waste as well as marble powder in environmentally friendly method. v) The documentary record regarding above steps should be maintained for inspection as and when required by EPA, Punjab. vi) Plant maximum trees inside/outside the premises of your factory on available space in consultation with DO(E) and District Of ficer (Forest) Multan.
4. After the lapse of stipulated time (mitigation period) the compliance of Environmental Protection Order was verified on 14.10.2006 and it was found that respondent failed to comply with Environment Protection Order . Hence he is liable to be proceeded against under the Act Ibid.
7. This complaint case has a chequied history . The accused most probably appeared in the year 2008 and moved an application u/S. 265-K Cr.P.0 which on 30.07.2008 was dismissed as withdrawn. The statement of allegations/charges was framed on 22.01.2008. The charge against the accused was "your factory is producing nosie, slurry (in semi solid/solid form) and marble dust which is in excess of NEQS and is causing adverse environmental effects for which you are liable to be proceeded by this Tribunal u/S. 17 of PEP Act 1997. The accused did not confess the charge rather he pleaded not guilty claiming that the charge was baseless that he was dumping slurry properly outside the city; that he has taken remedial measures to protect the environment.
8. As the accused preferred to face trial therefore prosecution on 15.09.2008 examined Mr. Banaris Ali Inspector as Pw-1 on 15.09.2008. Pw-1. PW-1 reitrea tign his version embodied in SIR stated on oath that he was directed by Zafar Iqbal DO(E) Multan "to visit Ajmair Marble whereupon on 02.05.2005 he visited the site which was situated in the residential area; that the marble powder which falls within premises and thrown on open plots which fly and in air and affects health of people living thereby , working thereby and passing thereby , that no safety equipment had been provided to the workers. The factory was established in the year 2005, without obtaining environmental approval from EPA Punjab; that SIR Exh-P A of the site may be of the Unit Exh-PB which was handed over to DO(E)
Multan; that he prepared Site Inspection Report about the status of the EPO Exh-PC.
9. PW-1 in his cross examination claimed that he had taken measurement of noise at 2 Pm. He did not take noise measurement while the Unit was in operation, that the slurry was disposed of within and outside the premises of the Unit; that he did not take signature of any person of the Unit that he did not get any sample from the marble Unit;that there are 14/15 marble Units at Chowk Rasheedabad; that he did not obtain electricity bill from the Unit; that the FIR of corruption case was lodged against him.
10. Mrs. Tahira Muqadis DDPP on 15.09.2008 tendered complaint Exb. PD, clipping of the newspaper Exb.PE Environmental Protection Order dated 23.08.2006 Exb.PF , notice for personal hearing dated 11.02.2006 Exb, PH, and closed the evidence of the complainant. Statement of Muhamamd Ibrahim u/S. 342 Cr.P.0 was recorded on 03.12.2008. As this statement is of vital importance hence reproduced in verbatim as under: Q No. 1. Why this complaint was lodged against you?
Ans: This complaint was lodged against me on the personal grudge of Muhammad Waris Khan, General Secretary , Anjuman Fidayan-e-Mustafa.
Q. No. 2: Have you heard evidence of the PWs against you?
Ans: Yes.
Q No. 3: Will You Produce any evidence in your defence?
Ans: Yes. .
Q No. 4. Do you want to say anything else?
Ans: I am innocent. My Unit is already environmental friendly . I have taken remed ial measures to control alleged pollution. I am also ready to adopt more measures to establish better friendly environment.
The above is so called statement of the accused person u/S. 342 Cr.P.C which even did not appear signature of the Chairperson as well as of the members.
12. On 22.04.2010 the Chairperson and Members of Environmental Tribunal Punjab Lahore were placed to observe that respondent Unit had not taken any remedial measures to control the pollution and also has not complied with directions issued in the EPO therefore a fine of Rs. 100000/- was imposed upon the respondent Unit for causing air and noise pollution from the issuance of EPO dated 23.08.2008 till to date which was to be deposited in the treasury within period of one month from the date of announcement of this order . The respondent was further directed to remove the cutting and grinding machines within aforesaid period failing which further fine of Rs. 25000/- per day would be levied till compliance of the directions. Most probably the accused preferred an appeal before the Honorable High Court which was accepted and the judgment of conviction dated 22.04.2010 was set aside resultantly the case was remanded and came up for hearing before this Tribunal. The learned counsel for the accused namely Mr . M Irshad Ch. opted not to produce any defence evidence.
13. Arguments of learned law officer as well as learned ADPP as well as the learned defence counsel heard.
Record on file perused. Our observations as under: As noticed above, so called statement of allegation/charge was framed against the accused on 22.01.2008 to the effect that the factory was producing noise, slur and marble dust in excess of NEQS hence causing adverse environmental effect. The accused obviously denied the charge and preferred to face trial. Whereupon the prosecution examined Mr. Banaris Ali, Inspector as Pw-1. The perusal of statement of Pw-1 fails to inspite confidence to believe that there is any slightest material on record to lend even weakest support to the charge against the accused. PW-1 unsuccessfully tried to claim that he took measurements of noise at about 2 p.m. however he denied his claim by saying "did not take nois measurement while the Unit was not in operation. The notice of persona hearing as well as EPO did not contain any data to establish that the noise and pollution allegedly generated from the Unit in question exceeded NEQS . It is astonishing that no incriminating piece of evidence, what-so-ever it may be, was put to the accused in his so called statement u/S. 342. Cr.P.C, it is now well established that any incriminating evidence produced by prosecution but not put to the accused in his statement u/S. 342 Cr .P.C would read in support any charge.
14. Section 342, Cr.P.C. is based on the principle involved in the maxim "audi alteram partem" namely that no one should be condemned unheard. It is bifurcated into two parts, the first part gives a discretion to the Court whereas the second part is mandatory . Under the first part, the Court may put such questions to the accused which may be deemed appropriate in arriving at a just conclusion, whereas, under the second part examination of the accused is a must because purpose is to point out salient points appearing in evidence against him and ask for an explanation. In some cases though it has been held that an error or omission which falls within the category of "curable irregularities" within the purview of Section 537, Cr.P.C, does not necessarily vitiate the trial, yet, in certain cases where, the accused is not questioned at all, or his attention is not drawn to an important piece of evidence, which implicates him, the omission so made would be fatal. [2004 PCr.LJ. 42; 2001 SCMR 56; PLD 2001 S.0 568] Section 342 (1); Cr.P.C. has two parts the first part gave discrection to the Court whereas the second part was mandatory . Under the first part of said section Court might put such questions to the accused which might be deemed appropriate in arriving at a just conclusion, whereas, under section part examination of accused was must because purpose was to point out evidence against him and ask for an explanation. Use of word "shall" in second part of S. 342(1), Cr.P.C. signified that examination of accused was compulsory and not optional. [2013 MLD 509, 2013 YLR 771] Law requires that every part of incriminating evidence, circumstances, etc., sought to be, used against accused should be put to him under S.342, Cr.P.C., for having his explanation. Any piece of evidence which is not put to the accused in his examination under this section cannot be consid ered against him for conviction.
[2012 YLR 442] Provisions of S. 342, Cr.P.C, are manda tory hence all the material brought on record in evidence against the accused person should be put to them for their explanation and they should be not be left to guess the material which can be made basis for their conviction. Mere putting general type of questions to accused is not sufficient. Omission of any material quest ion put to accused person for explanation can vitiate the trial. [2008 YLR 2866 ] Statement of accused recorded under S.342, Cr.P.C, is to be read in its entirety , is to be accepted or rejected as a whole and reliance should not be placed on that portion of the statement which goes against the accused.
[PLD 2008 S.C. 513 ].
15. The purpose of this section is that Court should give an opportunity to the accused to give such explanation as he may consider necessary in regard to the salient points made against him. It is, however , not intended merely for his benefit. It is a part of a system