KARACHI, April 22: Serious gaps in police investigation and the resulting lack of evidence combined with poor prosecution have allowed the court of district and sessions judge, West, to acquit a factory owner and others in the case where the dumping of highly toxic industrial waste in an open area was alleged to have caused the deaths of two children in Site town.

Handed down on March 26, the judgment chided the police for having made misdirected efforts “for its own reasons” and for failing to prosecute the case properly.

Having found no positive incriminating evidence against the accused persons, said the judgment, the court’s deciding officer found consensus between the defence and state representatives since even the district prosecutor argued in support of the acquittal plea.

The judgment held the Site association and the owners of the plots where the toxic waste was dumped responsible for the tragedy and allowed the affected persons to sue these parties for damages.

On May 4, 2006, 17 children between the ages of seven and ten years were seriously injured, allegedly by some toxic chemical which had been dumped in an open plot at Site town. They were taken to hospital and treated for their injuries but the lives of two of them could not be saved.

The Sindh Environmental Protection Agency (Sepa) lodged a case (FIR No 181/06) at the Site police station under Sections 322, 337-H, 285 and 286 of the Pakistan Penal Code, as a result of which Farooq Gharib, Aslam Baig, Sher Khan, Salman and Abdul Rehman were indicted on Dec 8, 2007 for having dumped chemical industrial waste in the open plot which led to the deaths of two children and injuries sustained by 15 others.

Although the court usually uses its own authority to ensure the presence of prosecution witnesses, the judgment handed down last month said that the prosecution had failed to produce any witnesses other than the complainant, the then director of Sepa Iqbal Saeed Khan and two prosecution witnesses, former deputy director Sepa Ashfaq Hussain and SI Waqar Khan. It said that the court had examined these individuals but the exercise had produced nothing of note.

The judgment stated that the private advocate assisting the prosecution filed an application for adjournment on the grounds that some witnesses had been out of town while others were absent. At this stage, said the judgment, the defence counsel pointed out that an acquittal application under Section 265-K of the Criminal Procedure Code – which empowers a judge to acquit an accused if there is no likelihood of his being convicted – was pending for disposal. The defence counsel suggested that this petition be heard and decided upon at once, so that the case could be disposed of on the basis of the material available so far.

Failure to order chemical examination

The miscarriage of justice was compounded by the fact that instead of opposing the plea, the prosecutor supported the application and conceded that the prosecution team had produced little incriminating material, direct evidence or medical evidence pointing towards the culpability of the accused in the case. He added that the chemical examiner’s report requested by the Sepa had stated that the sample material, taken from the site of the tragedy by Sepa, was not corrosive, combustible or chemical. The prosecutor also noted that with reference to this case, the police had submitted a C-class report. However, private citizens approached the High Court to have a charge-sheet drawn up, which resulted in a fruitless trial.

It is worthy of note, however, that the police submitted a C-class report without having conducted a proper investigation into the case as is required under the law of the land. This may or may not display a bias on part of the police investigation team. While Sepa submitted samples of the allegedly highly toxic chemical for examination, the police’s investigation officer took no such step — despite the fact that an independently-commissioned chemical examination would be considered necessary in the investigation of citizens’ deaths.

Medico-legal data missing

The March 26 judgment stated that the cause of death and injuries were left medically unknown since neither medical evidence nor a medico-legal report was cited in the prosecution’s case. It pointed out that a case of injury can be proved only when the evidence of the injured and the medical officer corroborates; if either is missing, the case would stand unproved as a matter of law. As a result, it held, the factory owners / directors were accused in the case on the basis of assumption and hearsay evidence that the substance, if any, that had burnt the children or caused the reported injuries, belonged to the factory officials. There was no positive evidence that the substance had been dumped in the plot under the factory officials’ direct authority.

Established investigation procedures demand, however, that the medical evidence ought to have been commissioned by the police by calling for a medico-legal report as is required in all cases of suspicious deaths. If the families of the deceased object to the proceedings, the police normally demand that this request to refrain from conducting a post-mortem be submitted in writing.

In this case, however, the police did not commission a medico-legal report.

The judgment further stated that the evidence submitted by the prosecution carried “material contradictions” on points of the date of the incident, the number of victims and the number of people injured.

However, such contradictions regarding times and the number of casualties are not considered accountable when the deaths of injuries are beyond doubt.

‘Waste of public time’

“I therefore, finding consensus between the defence and state representatives as well as the material discussed above, hereby proceed to decide the case by disposing of the application in hand under the aforesaid section of law in the interest of justice,” observed the deciding officer. “The offences involved in the matter need existence of the aforesaid ingredients of a crime together. In my view the same do not co-exist in the matter at all. The burden of proof in that regard is on the prosecution and the evidence available with it if at all accepted the same will not be able to establish the same to the required standard of law, hence recording of further evidence will waste public time and serve no public interest rather on the contrary such futile exercise will prove to be further scandalous to the accused persons who equally deserve justice and fair treatment in all respects.”

The judge observed that the police had acted in the wrong direction for its own reasons and had failed to take criminal action against the owners of the plot, Site town or the association responsible for the disposal of such waste, particularly since Site town was meant to provide safe areas of disposal for dangerous waste produced by the factories of the area.

“The responsibility, therefore, in my view is of the owners of the said plot if they had already taken physical possession thereof, before the incident took place and Site Ltd and its association as well as the affectees may sue them for damages in that regard in the competent court of law,” stated the judgment. “There is also nothing to show any un-authorisation of the said plot being used for dumping purpose or for the disposal of the garbage etc., which is necessary to be proved as an independent factor towards establishing the negligence reported against being illegality involved therein. Besides there is no evidence as to show rashness, negligence and criminal intention of the accused persons in that regard to any degree at all.”

The counsel for the victims, advocate Faisal Siddiqui who earlier termed the decision “premature,” told Dawn that he intended to challenge the acquittals within a few days.