M/s Kundi Paper Mills Vs Enviromental Protection Agency, KP Peshawar.

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

(JUDICIAL DEPARTMENT)

Criminal Appeal No.1129‐P/2025

M/s Kundi Paper Mill, Hayatabad, Peshawar and another (Appellants) Vs.

Environmental Protection Agency KP Peshawar through D.G. (Respondent)

For Appellant (s): Mr. Muhammad Yasir Khattak, Advocate.

For Respondent(s): Mr. Rahmat Ali, AAG with Syeda Amina Hassan (A.D (Legal), EPA Date of hearing: 18.05.2026 Date of Announcement ___________________

JUDGEMENT

IJAZ ANWAR.J: This appeal has been filed under section 24 of the Khyber Pakhtunkhwa Environmental Protection Act, 2014 against the order/judgement dated 13.10.2025 passed by the learned Environmental Protection Tribunal, Khyber Pakhtunkhwa, Peshawar whereby the Complaint filed by the respondent‐EPA under section 22(3) (1) of the Environmental Protection Act, 2014 was allowed and the appellant was convicted

and sentenced to pay fine of Rs. 1,000,000/‐ (one Million rupees).

2.Brief facts necessary for disposal of this appeal are that the officials of Environmental Protection Agency Khyber Pakhtunkhwa, Peshawar (“EPA”), conducted visit of the Industrial Unit of appellant “M/s Kundi Paper Mill, Industrial Estate, Hayatabad, Peshawar” (“Mill”) and noted that the unit is being run without observing the standard precautionary measures under the Environmental Protection Laws and Rules and the Unit having no Environmental Approval from the EPA. Therefore, the Assistant Director (Prosecution) EPA filed a complaint against the appellant‐Mill under section 22 (3) (1) of the Environmental Protection Act, 2014 (“the Act”) before the Environmental Protection Tribunal, Peshawar (“Tribunal”). Notice was issued to the appellant who appeared and contested the complaint.

Charge was framed against him to which he met with

denial and claimed trial. During trial, three PWs were examined followed by recording statement of appellant (Burhan Ahmad Kundi/owner of the Mill) under section 342 Cr.P.C. After hearing arguments of learned counsel for the parties, the learned Tribunal through the impugned order/judgement dated 13.10.2025, convicted and sentenced the appellant by imposing penalty of Rs.

1,000,000/‐ (one million) for violation of section 11, 13 r/w section 17 of the Act. Hence this appeal.

3.Arguments of learned counsel for the parties heard and record perused.

4.Perusal of record would reveal that during monitoring campaign, the monitoring team of the EPA visited the Mill of the appellant, collected waste water samples and after analysis, it was found that Total Suspended Solids (TSS) and Chemical Oxygen Demand (COD) were above permissible limits and found in violation of the National Environmental Quality

Standards (NEQS). A visit report dated 15.06.2020 was prepared, Ad‐Interim order dated 14.09.2020 was issued under section 17 (4) of the Act showing the reasons for initiating proceedings against the Mill and its management for violation of Act and rules. Notice was also issued to the appellant under section 17 (1) of the Act for 22.09.2020 in response whereof, one Taj Bahadur son of Khan Bahadur, the Admin Manager of the Mill attended the office of the EPA on 22.09.2020, however, the explanation furnished by him was found unsatisfactory, therefore, Environmental Protection Order (EPO) was issued on 29.09.2020 under section 17 of the Act with the following directions:

“Bring down level of Total Suspended Solids (TSS) and Chemical Oxygen Demand (COD) to permissible limits of NEQs”.

5.After the issuance of the EPO dated 29.9.2020, the Mill was revisited on 27.11.2020 by the officials of the EPA and again took samples of the water

and after its analysis, found that the Mill has not complied with the directions issued vide the EPO, as such, filed the complaint before the learned Tribunal.

6.During trial, three witnesses were produced by the prosecution in support of its case. PW‐1 is Syed Farid Ullah Shah, Assistant Director, EPA who submitted complaint against the appellant before the Tribunal. PW‐ 2 is Dr. Khaista Gul Analyst EPA, Head Office, Peshawar who collected waste water samples from the Mill of the appellant and handed over to Chief Analyst, EPA Lab Peshawar for testing NEQS. PW‐3 is Muhammad Ziyad, Analyst EPA, Laboratory, Peshawar who accompanied Khaista Khan Analyst and obtained waste water samples.

In their statements, the PWs remained consistent to the effect the Industrial Unit/Mill of the appellant was visited twice, on both the occasions samples were taken from the waste water; that the samples were subjected to Lab tests and both the times, the reports revealed that the

TSS and COD were in violation of the NEQS; that heavy chemicals were being used in the process of paper recycling, however, no water treatment plant was installed in the Industrial Unit of the appellant resulting into outfall of the waste water containing harmful total suspended solid waste and COD into main stream which are hazardous to humans, plants and other living beings.

All the PWs were cross examined at length but the defense failed to shatter their consistent testimony.

7.At the end of the trial, appellant Burhan Ahmad Kundi /owner of the Mill was examined under section 342 Cr.P.C. In reply to question No.2, he admitted that earlier too a complaint/case No. 878‐ P/2018 was filed against him. In reply to question No.3, he admitted that samples were taken from overflow water outside the industry. Such admission on part of the appellant clearly shows that respondent EPA visited the Mill of the appellant and collected samples of the

waste water that was not treated before releasing into the main water channel. As the preface and the preamble says, the Khyber Pakhtunkhwa Environmental Protection Act, 2014 was promulgated with a purpose to provide for the protection, conservation, rehabilitation and improvement of the environment, monitoring, prevention and control of pollution, and promotion of sustainable development in the Province of the Khyber Pakhtunkhwa, and for matters connected therewith and incidental thereto and anyone violating its provisions shall have to face penalties as provided under section 18.

In the case in hand, the Agency, after conducting visit, taking water samples and subjecting the same to lab test was satisfied that emission of hazardous substance from the Mill has occurred, issued the EPO and provided proper opportunity of hearing to the appellant and issued directions for taking necessary measures as required under section 17 of the Act, however, the Mill

failed to comply with such directions/instructions and continued emission of hazardous substance in the main water channel. Similarly, the Mill has not obtained any prior approval from the EPA before commencement of its industrial operation as required under section 13 of the Act.

8.So far as the contention of counsel for the appellant that the documents exhibited in evidence before the Tribunal are photocopies, therefore, being secondary evidence, the same is inadmissible in evidence under the provisions of the Qanun‐e‐Shahadat Order, 1984, is concerned, the learned Tribunal in its judgement has commented on this point by observing that:

“The points of learned defense counsel that

having no force because no trial could be conducted without production of original record and where ever doubt arises the court was at liberty to check the same.”.

Even otherwise, mere production of

secondary evidence does not automatically render the entire prosecution case unreliable. The Court is required to examine whether any prejudice was caused to the accused and whether the remaining evidence independently established the commission of the offence.

As stated above, the officials of the Agency who collected the waste water samples appeared before the Tribunal and fully described the manner in which the samples were obtained and transmitted to the laboratory. Their testimony remained consistent on all material particulars. Nothing important could be brought about during cross‐examination to suggest that the sampling process was manipulated or that the samples did not belong to the appellant Mill. The defense did not dispute the ownership or operation of the Mill nor did it produce any different laboratory report to challenge the lab reports reflected in the photocopies. Even though

objection was raised to the exhibition of the photocopies, yet the defense did not seek production of the original documents, nor did it show that the photocopies were not the accurate copies of the original reports. The objection, therefore, remained technical in nature. It is settled principle that procedural or technical irregularities which do not cause failure of justice are not sufficient to reverse a conviction which is otherwise based on reliable evidence. It is worth mentioning that the present case is regarding an environmental offence and where the evidence as a whole satisfactorily establishes environmental violation and the genuineness of the laboratory reports is corroborated by oral testimony and surrounding circumstances, the conviction is not liable to be set aside only because photocopies of the reports were exhibited. Though primary evidence is generally preferred, yet the law does not permit acquittal solely on account of an irregularity

in proof when the truth of the contents of the documents stands independently established through consistent testimony of witnesses and other corroborative material available on record.

9.For the foregoing reasons, I am satisfied that the prosecution successfully proved that the appellant Mill discharged contaminated waste water in main water channel in violation of the provisions of the Environmental Protection Act, 2014. The learned counsel representing the appellant could not point out any material irregularity or illegality which could warrant interference of this court in the impugned judgement which is hereby maintained. Resultantly, this appeal stands dismissed.

Announced on:

Dated. ___________

Senior Puisne Judge

“Amir”