2023 PLP 383 (CLD)

Muhammad Tahir Bashir Chief Executive of Messrs United Ethanol Limited, situated at Tehsil Sadiqabad District Rahim Yar Khan was sent for trial by the Director General EPA for the commission of offence punishable under section 17(1) of Punjab Environmental Protection Act, 1997.

2. The complainant agency after receiving the complaints against the respondent unit conducted inquiry/SIR through District Officer (Environment) Rahim Yar Khan and after hearing the respondent issued EPO dated 05.08.2008 where in respondent was directed to take measures to control the pollution. Thereafter compliance report was sought and respondent failed to comply with the direction resulting the present Complaint for proceeding under section 21(3)(a) of Punjab Environmental Protection Act, 1997.

3. Accused/respondent Muhammad Tahir Bashir was summoned and formal charge punishable under section 17(1) of Punjab Environmental Protection Act, 1997 was framed by our learned predecessor. Accused/respondent Muhammad Tahir Bashir did not plead guilty to the charge and claimed trial. Therefore prosecution was directed to produce evidence to substantiate the charge.

4. The prosecution examined PW-1 Muhammad Amir Arshad who was District Officer (Environment) Rahim Yar Khan who visited the respondent unit for collection of waste water samples. He sent samples to Laboratory at Lahore. He filled From-C Ex-PA wherein his signatures are Ex-PA/1. PW-2 Muhammad Hashim Ex-Inspector deposed that he on 03.07.2008 visited the respondent unit and prepared SIR Mark-A and sent same to District Officer (Environment) Rahim Yar Khan. After issuance of EPO he compiled compliance status report Mark-C. He denied that he did not visit the unit and prepared SIR and non compliance report while sitting in his office. Abdul Rauf Assistant Director (Environment) Rahim Yar Khan appeared as PW-3 stated that he visited unit on the direction of this Tribunal on 31.08.2015 and 03.09.2015 and inspected the same and prepared the report which is Ex-PC. Shagufta Shahjahan PW-4 who was Director General issued the EPO which bear her signatures Mark-D.

5. After closing prosecution evidence accused/respondent Tahir Bashir was examined under section 342, Cr.P.C. All the incriminating evidence produced by the prosecution was put to him which he termed as incorrect and alleged that he has been falsely implicated in this case. He has neither produced any evidence in his defense nor opted to appear his own witness in defense.

6. The learned prosecutor contends that the accused/respondent was directed to take measures to control pollution but he did not comply with the directions of Environmental Protection Order and after receiving the compliance report present complaint was made against him. The prosecution has proved his case against the respondent beyond the shadow of doubt by cogent and convincing evidence and accused/ respondent is liable to be convicted.

7. On the other hand learned counsel for the respondent contends that the respondent was given 6 months period for acting upon the directions contained in Environmental Protection Order but the compliance report was made prior to the expiry of said period and complaint has been made illegally without awaiting the expiry of stipulated period. Evidence produced by the prosecution is photocopies of Environmental Protection Order and compliance report which are not admissible in evidence. Therefore prosecution failed to prove his case beyond the shadow of doubt and accused/respondent is liable to be acquitted.

8. We have heard the learned Law Officer and learned counsel for the respondent and perused available record.

9. Environment Protection Order was issued on 05.08.2008 whereby respondent was directed to comply with following directions: a) Remove ponds beside the mango orchard the complainant and in school way within 30 days. b) Adopt engineering solution/steps/measures to bring the effluent within NEQS within six months. c) Adopt remedial measures to control spreading of odour in the surrounding areas.

10. Muhammad Hashim Ex-Inspector (Environment) PW-2 visited the respondent unit on 03.07.2008 and prepared SIR Mark-A whereupon EPO was issued on 05.08.2008 Mark-D. He visited the unit again to ascertain the compliance status of the directions mentioned in EPO and submitted compliance report Mark-C on 20.09.2008

11. In the Environmental Protection Order Mark-D the respondent was directed to remove pond besides the mango orchard, the complainant and school ways within thirty days and was directed to adopt engineering solution/steps/measures to bring the effluents within National Environmental Quality Standards within six months and adopt remedial measures to control odour in the surroundings areas.

12. The PW-2 visited the unit after one month of the issuance of EPO and submitted report. As regard direction No. 2 the complaint has been filed before stipulated period of 06 months hence complaint to this extent is premature. Recording the adoption of remedial measures there is no compliance status report. Therefore our learned predecessor had already held vide order dated 11.11.2019 that the complaint to the extent of non-compliance of direction b and c is not maintainable.

13. So far as the direction No. 1 regarding the removal of ponds besides the mango orchard and school ways within thirty days the non-compliance report Mark-C is available on the file. Dr. Shagufta Shahjahan PW-4 stated that she issued EPO on 05.08.2008. She indentified her signatures on photocopy and placed on record as Mark-D.

14. The prosecution has placed on record photocopy of Environmental Protection Order as Mark-D and photocopy of compliance status report Mark-C. The primary and best evidence has been withheld by the prosecution by not submitting the original Environmental Protection Order and original Compliance status Report. The learned counsel has alleged that photocopies are not admissible to evidence. Learned counsel relied upon 2022 MLD 1941, 2021 CLC 1348, PLD 2010 SC 604 and 2011 SCMR 1009.

15. Under the Article 75 of Qanun-e-Shahadat the documents must be proved by primary evidence except the cases mentioned in Article

76. The prosecution has withheld primary evidence in instant case and only produced photocopy of Environmental Protection Order Mark-D and Compliance Status Report Mark-C respectively. The learned prosecutor has failed to satisfy the Tribunal that where are the original documents why they have not been produced. The photocopies are not admissible in evidence and prosecution has not proved their case in accordance with Article 76 of Qanun-e-Shahadat, 1984. The prosecution has failed to prove its case against the accused/respondent beyond the shadow of doubt. Therefore we dismiss the complaint and acquit the accused/ respondent Tahir Bashir from the offences charged of. File be consigned to record room. MH/1/PET Complaint dismissed.