NISAR MUHAMMAD SHAIKH, CHAIRMAN. Through this order an application under section 265-K, Cr.P.C. filed on behalf of respondent/accused with a prayer to quash the proceedings of this case and acquit the accused/respondent will stand disposed of.
2. This complaint under section 26 of Sindh Environmental Protection Act, 2014 was filed by Sindh Environmental Protection Agency (SEPA) through its authorized officer alleging therein that on 07.11.2017 the accused party was found by the monitoring team of the Agency to have had initiated construction of their project namely Messrs Diamond Residency without seeking Environmental Approval as required under section 17 of the said Act, hence the accused is liable to be punished for such offence as per the Law.
3. Learned counsel for accused contends that the construction of the project of ground plus 16 floors high rise building was commenced by the accused in the year 2008 after fulfilling all the legal formalities upto the approval/NOCs issued by the concerned departments and therefore, there was no violation of any law. He further submitted that copies of all relevant documents have been annexed with an application already filed by the accused before this Tribunal on 14.05.2019.
He further argued that since the project was commenced and was also completed before promulgation of the Sindh Environmental Protection Act, 2014 therefore this Act is not applicable retrospectively even if the accused is proved to have committed the alleged offence. In this regard he, relying upon some case law, further submitted that no case is made out by the complainant party and thus, there is no probability of conviction of accused in the present case.
4. On the other hand, Ms. Ifat Rana, learned APG for the state argued that violation of the provisions of SEP Act, 2014 was found at the site and it was therefore, the notice was issued to the accused and then the Environmental Protection. Order was also issued to stop the construction but the accused continued construction work therefore he is liable for punishment on violation of the provisions of section 17 of the Act of 2014. Regarding retrospective effect of the present Act of 2014, Dr. Habib-ur-Rehman Solangi, Deputy Director Law, SEPA contends that this Act is in continuity of earlier Act namely Pakistan Environmental Protection Act, 1997 therefore the construction of the project without approval of the Agency needs due action under the present Act and as such accused cannot be acquitted at this stage when the charge is yet to be framed, Mr. Rao Zeeshan Ahmed, authorized officer of complainant/SEPA on the query of this Tribunal, submits that he along with team of the Agency had visited the project site on 07.11.2017 and found that construction work was complete however the finishing work of the project was going on. He further submitted that he had snapped photographs of the building at the time of visit but the same are missing from his mobile phone.
5. We have considered the submissions of parties and perused relevant record. The relevant subsection (1) of section 17 of the SEP Act, 2014 provides that: "No proponent of a project shall commence construction or operation unless he has filed with the Agency an initial environmental examination or environmental impact assessment, and has obtained from the Agency approval in respect thereof." In para 5 of the objections filed by complainant on application under section 265- K, Cr.P.C. of the accused, it is stated in the following manner that: "---no doubt the project Messrs Diamond Residency initiated for construction prior to promulgation of SEP Act, 2014 but there was the existence of the Pakistan Environmental Act in this regard the accused No. 1 neither complied with Pakistan Environmental Protection Act 1997 nor complied with SEP Act, 2014 in respect of obtaining approval."
6. It is evident from above that the commencement of the construction/operation of project was made long ago and the violation of subsection (1) of section 17 ibid could constitute an offence on such commencement but during such period the said Act of 2014 was not in existence therefore, there appears much relevancy of the case law as referred by learned counsel for accused/respondents. One of which is the case of Sarwar Jan and others v. Mukhtar Ahmed and others reported as PLD 2012 SC 217 wherein it was held that: "---it is settled rule that any statute or a provision thereof forming part of substantive law, which creates or extinguish or affect the rights of the persons /citizen shall ordinarily have a prospective effect, except where by the clear command of the law, it is made applicable retrospectively." Similarly, in another case of Pakistan Steel Mills Corporation v. Muhammad Azam Katper reported as 2002 SCMR 1023 it was held that: "It is settled proposition of Law that Legislation not concerning procedural matters would operate retrospectively. However, Legislation of concerning mere procedure but more than a matter of procedure and touching a right in existence at the time of its passing will not operate retrospectively unless Legislature either by express enactment or by necessary intendment given Legislation retrospective effect; considering that the dispute having become past and closed transaction having created a right in one's favour could not be taken away by giving retrospective operation to the amended statutory provision."
7. Accordingly, when the provisions of subsection (1) of section 17 ibid specifically deal with the construction or operation of any project commenced without seeking approval from the Agency and, in the instant case, it seems to be an admitted position that the construction of project had been commenced prior to promulgation of SEP Act, 2014, then the violation, if any, constituted an offence punishable under the PEP Act of 1997 and since no action under such Act was initiated against the accused on commission of alleged offence therefore, the penal provisions of the present Act forming a part of substantive law and not procedural one, cannot be termed to have retrospective effect as such penal provisions followed by the conviction and punishment, cannot take away the right of a person by applying it retrospectively. Since the present Act of 2014 as per section 1(3), came into force at once, replacing the earlier Act of 1997, therefore it cannot have retrospective effect so as to apply it for the past matter, retrospectively. In this regard, an environmental matter being the case of Pakistan Mobile Communication Ltd. v. Abrar Ahmed and 4 others reported as 2019 CLD 578, is also relevant to this case on the above point.
8. In view of above, there is no probability of conviction of the accused in this case of which the very charge is groundless. Accordingly, the application under section 265-K, Cr.P.C. is allowed and accused is hereby acquitted under section 265-K, Cr.P.C.