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Petitioner: Muhammad Zawar Hussain VS Respondent: Province of Punjab and others
Court Name: Lahore High Court Judge(s): Jawad Hassan Title: Muhammad Zawar Hussain vs Province of Punjab and others Case No.: Writ Petition No. 63655 of 2021 Date of Judgment:2022-04-13 Reported As: PLD 2022 Lahore 445 Result: Petition dismissed
JUDGMENT
"A thing is right, when it tends to preserve the integrity, stability, and beauty of the biotic community. It is wrong, when it tends otherwise".[1] Aldo Leopold JUDGMENT JAWAD HASSAN, J.---This judgment will decide titled writ petition filed by the Petitioner under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"), after discussing in detail the ban imposed by the Wildlife and Parks, Punjab (the "Wildlife Department") through notification dated 06.10.2021 (the "Impugned Notification"), issued under Section 9(iv) of the Punjab Wildlife (Protection, Preservation, Conservation and Management) Act, 1974 (the "Act"). I. BRIEF BACKGROUND 2. The Petitioner, who is a seasoned hunter/shotgunner, has brought before this Court the issue of hunting waterfowl/upland birds. The Petitioner has challenged vires of the Impugned Notification, imposing certain restrictions on hunting, because the waterfowl hunting season is coming in the Winter (from October to February). The stance taken by the Petitioner is that the gadgets, which have been prohibited by the Wildlife Department, are being used across the globe by water fowl hunters since decades and in Pakistan, the hunters have also been using these gadgets for many years without any interruption from any corner, therefore, putting ban on the same is not justified being against the norms of justice. 3. Notice was issued to the Respondents on 13.10.2021, whereafter the answering Respondents No.3 and 4 filed their report and parawise comments and then on 29.10.2021, the Respondents were directed to submit a detail report by narrating the purpose of the Impugned Notification with scientific evidence to explain the electronic gadgets prohibited for hunting in this season. The said report was also subsequently filed.
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II. PETITIONER'S SUBMISSION 4. Major (R) Farooq Ahmed Ali, Advocate submitted that through the Impugned Notification the Wildlife Department has imposed ban on use of electronic devices, including gadgets, battery operated decoys/ moju and pre-charged pneumatic air guns, which is illegal being beyond the scope of Section 9 of the Act. He further submitted that the wording used in the Impugned Notification regarding use of electronic devises/gadget, including pre-charged pneumatic air guns, is nowhere mentioned in Section 9 of the Act. He maintained that Section 9 of the Act discusses the restrictions of hunting and Subsection (vii) of this Section allows hunting with the help of live decoys or call birds except quail. He vociferously argued that Respondent No.4/Deputy Director, Wildlife, Lahore has issued the Impugned Notification by exceeding his powers and ignoring relevant provisions of the Act. Mr. Fazal Abbas Kamyana, Advocate contended that without usage of the gadgetry banned/prohibited, the waterfowl will not come into the expected shooting range, therefore, they cannot be hunted. He explained that the decoys are replica of waterfowls, which are used to attract birds to a location near the hunters and without this important hunting tool, hunting cannot be successfully done. He next clarified that hunting being a popular game across the globe, is widely enjoyed by the hunters on the rivers/lakes without any prohibition/ban and putting such like bans on this game will adversely affect rights of the hunters, therefore, the Impugned Notification is liable to be set-aside. III. RESPONDENTS' SUBMISSION 5. Conversely, the Respondents Nos.3 and 4, in their report, while contacting the Impugned Notification, submitted that due to use of electronic devices, which include live decoys, call birds, PCP, Air guns, the waterfowl counts decreased from 339982 (in year 2016) to 65778 (in year 2021). Junaid Nadeem, Assistant Director, Wildlife Lahore Division explained that though the provision for the use of live decoys or call birds has been given in the Act but only to the extent of quails. He submitted that the purpose of putting ban/prohibition through the Impugned Notification by the Wildlife Department is to promote sustainable hunting whereby the animal/bird has a fair chance to escape Whereas the use of electronic devices, as mentioned above, is against the said principle. He maintained that the issuing authority/Respondent No.4 has rightly exercised his powers while issuing the Impugned Notification by considering all the relevant aspects of the matter. 6. Junaid Alam, Assistant Director, Wildlife (Management) next argued that due to violation of certain provisions contained in Section 9 of the Act by the hunters, the restrictions regarding use of electronic devices during the course of hunting/shooting have been imposed by the concerned hierarchy of the Wildlife Department, which is the custodian of wildlife resources of the Province of Punjab and has been established to protect, preserve, conserve and manage the wildlife and the resources under the Act. He contended that the Wildlife Department has a network of field formations working throughout the Province of Punjab and for its smooth running, various policies are formulated and subsequently the said policies also periodically reviewed for implementation purposes by bearing in mind the factum of sustainable conservation and management of wildlife through public participation and liaison with national as well as international organizations. IV. SUBMISSIONS OF AMICUS CURIAE '7. Since there are certain technicalities in the matter and also the issue of protection of wildlife is involved, the Court has appointed Barrister Sameer Khosa, Advocate Supreme Court and Barrister Hira Jaleel, Advocate as amicus curiae. They both rendered valuable assistance to the Court in the matter. 8. Barrister Sameer Khosa, Advocate Supreme Court submitted that the Impugned Notification has validly been issued under Section 9 of the Act in order to protect the waterfowl species in Punjab. He submitted that if an open eye glance review is taken on the Preamble of the Act, it will depict that the basic purpose of enacting the Act is to protect, preserve, conserve and manage the
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wildlife. Barrister Sameer Khosa, ASC maintained that the interim report submitted by the Respondents in this case also speaks about the decrease in waterfowl counts due to usage of electronic decoys and PCP guns, hence, applying a "species best interest standard" to the instant case, it becomes abundantly clear that banning the use of electronic decoys and gadgets in hunting, is in the best interest of the species as a whole. Moreover, it is the responsibility of the State under the Act to safeguard the right to life enshrined under Article 9 of the Constitution, therefore, the Impugned Notification needs no interference by this Court. 9. Barrister Hira Jaleel, Advocate contended that there is eminent need to regulate hunting for maintaining sustainable animal population in Pakistan because ethical hunting demands a sustainable and respectful approach to "harvesting" game and making sure that there is no unnecessary or frivolous harm to the individual animal being hunted. She clarified that electric decoys and gadgets/devices are considered to be a substitute for basic hunting skills by many as a "shortcut" to hunting and this technique undermines the hunting experience because it becomes difficult to consider hunting a challenge if the entire experience boils down to pressing a button to engage the animals being hunted, besides the fact that this hunting terminology/technology is not deliberated to be in line with the concept of fair chase. Barrister Hira Jaleel, Advocate submitted that many countries around the world, including Finland, Poland, Spain and Scotland, ban the use of electronic decoys, gadgets, PCP guns and other similar devices for hunting in the interest of preserving the concept of fair chase in the hunting of waterfowl. She maintained that in the United States of America, the State Wildlife Commission generally have broad discretion to regulate the time, place and manner of hunting or trapping in order to keep harmony with fair chase principles while in Canada, the legality of hunting regulations based on fair chase and animal welfare considerations has been subject to extensive litigation between the Crown and various parties after a 1999 Government decision to ban spring bear hunting in Ontario to protect bear cubs whose mothers would be killed after emerging from hibernation. She, while highlighting the scope of Article 9 of the Constitution, also referred to the rationale rendered by the Hon'ble Supreme Court of Pakistan in the landmark judgment reported Ms. Shehla Zia and others v. WAPDA (PLD 1994 SC 693) wherein it was held that "the word life is a very significant because it covers every facet of human existence." Lastly, she also defended the Impugned Notification and prayed for dismissal of this petition. 10. Arguments heard and record perused. V. GIST OF THE ISSUE 11. The anchor point in this case is to see the legality of ban imposed by the Wildlife Department through the Impugned Notification issued under the provisions of Sub-Section (vii) of Section 9 of the Act. The relevant portion of the Impugned Notification against which the Petitioner is aggrieved, is reproduced hereunder for ready reference:- "However, use of Electronic devises/Gadgets, Battery Operated Decoys/Moju and Pre-Charged Pneumatic Air Guns is strictly prohibited in hunting/shooting of wild birds and animals as per law." VI. MOOT POINT 12. From the divergent pleadings of the parties, following Constitutional moot point is framed:-- "Whether the afore-quoted additional restriction imposed by the Wildlife Department on hunting/shooting of wild birds and animals by using electronic devises/gadgets, battery operated decoys/moju and pre-charged pneumatic air guns, in addition to the restrictions already given in Section 9(i) of the Act, is in the interest of the species or not." VII. OVERVIEW OF THE ACT 13. Before discussing the legality or illegality in the Impugned Notification, it would be advantageous to first take a short overview of the Act. The Preamble of the Act clearly illustrates
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that the basic purpose of enacting the Act is to protect, preserve, conserve and manage the wildlife in the Province of Punjab. Section 9 of the Act, which' describes restriction of hunting and most relevant in this case, is reproduced hereunder for ease of the matter:- "9. Restriction of hunting. ---No person shall:- I(i) hunt any wild animal by means of a set gun, drop spear, deadfall, gun trap, explosive, projectile, bomb, grenade, baited hook, net, snare or any other trap, an automatic or a service weapon or ammunition used by Armed Forces of Pakistan, Police Force or any other force, or by means of any drug or chemical substance, likely to anesthetize, paralyze, stupefy or render incapable any wild animal whether partly or totally through a projectile or otherwise] (ii) hunt any protected animal; (iii) hunt any game animal except under a permit and in accordance with the provisions of this Act or the rules; Provided that no person shall hunt any game animal other than bird or hare with a shot gun or with non-magnum rifle of 22 calibers or less; (iv) use or have in his possession any net, snare, bhagwa, poison or like injurious substance for the purpose of hunting a game animal; (v) use vehicle of any type to pursue any type to pursue game animal or to drive or stampede game animal for any purpose whatsoever; (vi) shoot any game animal except wild boar and vermin from any conveyance or from within two hundred yards of the conveyance; (vii) hunt with the help of live decoys or call birds except quail; (viii) construct or use, for the purpose of hunting any wild animal, any pitfall, game pit, trench or similar excavation, any fence or enclosure, or use bhagwa or any other similar contrivance except duck blinds: Provided that it shall not be an offence to use- (a) a motor vehicle or aircraft to drive any wild animal away from an aerodrome or airstrip when such action is necessary to ensure the safety of aircraft using that aerodrome; (b) any one or more of the aforesaid prohibited method; or (c) to hunt any unprotected animal; (ix) hunt except ducks, wild boars and vermin after sunset and before sunrise; and (x) hunt by hiding within two hundred yards of a water hole or salt licks." VIII. VERDICTS/RATIONAL OF THE SUPERIOR COURTS ON THE ISSUE OF HUNTING WILD ANIMALS AND BIRDS 14. There is a plethora of judgments of the superior Courts of Pakistan and other countries on the issue of hunting of wild animals and birds, including waterfowl/upland birds. Here, some of those judgments will be discussed. Firstly, the verdict rendered by the superior Courts of Pakistan is being examined. The Hon'ble Supreme Court of Pakistan in the case of Government of Punjab and others v. Aamir Zahoor-ul-Haq and others (PLD 2016 SC 421), while highlighting the scope of provisions of various Sections of the Act, discussed powers of the Provincial Government to classify animals as 'protected' or 'game' species in light of the wildlife legislation, besides considering the importance of statutory object of protecting, preserving, conserving and managing wildlife. Relevant paragraph 24 of the said judgment is reproduced hereunder:- "24. Having made the foregoing observations, we note that provincial governments exercise discretionary power conferred by respective provincial laws to classify animals as 'protected' or 'game' species. During the hearing of these petitions, the learned Attorney General and the learned counsel for the Province of Sindh have referred to limitations and checks imposed by the government on hunting of Houbara Bustard. These are reflected, inter alia, in the terms and condition of hunting permits issued by the provincial governments, the creation of protected
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areas, the scheduling of different areas for hunting during the season and so forth. The criteria and considerations on the basis of which the provincial governments exercise their regulatory power under their respective wildlife legislation have, however, not been shown to the Court. Ultimately, it is the adequacy and propriety of the regulatory measures that can in a sustainable manner achieve the statutory object of protecting, preserving, conserving and managing wildlife. That statutory object applies not just to the Houbara Bustard but to all endangered, vulnerable or near threatened wildlife. In this context the Court is inclined to examine the legal propriety of the discretionary safeguards applied by the provincial governments for assessing their relevance and reasonableness for attaining the objects of wildlife legislation in respect of all vulnerable and threatened game species including the Houbara Bustard. Therefore, we are setting out the matters for hearing afresh, thus leave the above noted proposition open to be examined by the Bench hearing the cases. "(emphasis is mine) 15. In another judgment cited as Province of Sindh and others v. Lal Khan Chandio and others (2016 SCMR 48), the Hon'ble Supreme Court of Pakistan discussed the powers of the Provincial Government to advance the objective of the law, which was enacted for the preservation, conservation and management of wildlife by observing that "decision of Provincial Government must be based on sound ecological principles and taken after a proper assessment of the population of the species" and also held that "exercise of power under a law, which sought to preserve and conserve wildlife, must be reasonably, fairly and justly exercised for the advancement of the purpose of the law." Recently, the Islamabad High Court, Islamabad in the judgment reported as "Islamabad Wildlife Management Board through Chairman v. Metropolitan Corporation: Islamabad through Major and 4 others" (PLD 2021 Islamabad 6) has also discussed in detailed the law on the subject in light of relevant provisions of the Prevention of Cruelty to Animals Act, 1890 and after laying down much emphasis on the fundamental right to life as per provisions of Article 9 of the Constitution, made certain observations in Paragraph-7 of the said judgment, relevant portion of which is given below:- "Directly or indirectly the rights of the animals are also acknowledged. Some courts have declared particular animal species as non-human persons while others have gone to the extent of granting them the same rights as those of the human species guaranteed under the constitution. The courts in the United States have gone to the extent of implicitly recognizing animals to be other than a mere 'thing' but the relief of habeas corpus was denied on the ground that they could not be treated as humans and that lank of personhood deprived them from having the locus standi to the grant of a writ. No constitution has been framed in the context of 'life' and, therefore, it gives rise to a conflict and confusion while granting relief to a form of life other than a human. As already noted, all the constitutions have been framed by humans to organize and regulate their own species. Constitutions refer to either a 'person' or a 'citizen' but not to 'living beings'. Consequently, the writs are also with reference to a human or a person. There are writs other than habeas corpus, such as prohibition and mandamus. An infant, a comatose or a mentally, challenged person is not different to an animal. It has never been the case of those arguing on behalf of animals to recognize that they have the same rights enjoyed by the human species. No relief has ever been sought on behalf of any animal to grant it freedom by releasing it from a zoo and thus allowing its free access to public places meant for humans. In the case in hand it has been argued that the animals in the Zoo are living in captivity and the conditions are such that the treatment has subjected them to unnecessary pain and suffering. Do the animals have legal rights? The answer to this question, without any hesitation, is in the affirmative. The Black's Law Dictionary (Sixth Edition) has defined "Legal Right" as "Natural rights, rights existing as, a result of contract and rights created or recognized by law". The Eleventh Edition defines the expression "as a right related to or recognized by law". The human rights are inherent because they stem from
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the attribute of being 'alive'. Life, therefore, is the premise of the existence of a right. Whether human rights or rights guaranteed expressly under the Constitution, they all have a nexus with 'life'. An object or thing without 'life' has no right. A living being on the other hand has rights because of the gift of 'life'. An animal undoubtedly is a sentient being. It has emotions and can feel pain or joy. By nature, each specie has its own natural habitat. They require distinct facilities and environments for their behavioral, social and physiological needs. This is how they have been created. It is unnatural for a lion to be kept in captivity in a restricted area. To separate an elephant from the herd and keep it in isolation is not what has been contemplated by nature. Like humans, animals also have natural rights which ought to be recognize. It is a right of each animal, a living being, to live in an environment that meets the latter's behavioral, social and physiological needs. The Act of 1890 in fact recognizes the animals natural right not to be treated in a manner that subjects it to unnecessary pain and suffering. It is the constitutional and statutory obligation of the State and its functionaries to ensure that these rights are not infringed. It is also a natural right of every animal to be respected because it is a living being, possessing the precious gift of 'life'. Humans cannot arrogate to themselves a right or prerogative of enslaving or subjugating an animal because the latter has been born free for some specific purposes. It is a natural right of an animal not to be tortured or unnecessarily killed because the gift of life it possesses is precious and its disrespect undermines the respect of the Creator. Moreover, as discussed above, the right to life of humans is dependent on the welfare, wellbeing,' preservation and conservation of all animal species. Any treatment in violation of the provisions of the Act of 1890, or subjecting an animal to unnecessary pain or suffering, is an infringement of the right to life guaranteed under Article 9 of the Constitution. The destruction and loss of habitat also violates the fundamental right to life of a human. The State is responsible to ensure that no animal is treated in violation of the provisions of the Act of 1890 and the Wildlife Ordinance 1979. "(emphasis added) 16. On the point of interpretation of a statute, reference can be made to the judgment reported as "Saif-ur-Rehman v. Additional District Judge, Toba Tek Singh and 2 others" (2018 SCMR 1885) in which it has been held by the Hon'ble Supreme Court of Pakistan that interpretation of a statute or Act, which advances the purpose of the said statute/Act, will be preferred rather than the interpretation which defeats its objects/preamble. In the said case, it has also been observed that beneficial provisions in a statute must be interpreted liberally in a manner so that the benefit conferred was advanced rather than frustrated or subverted. 17. Now, a quick glance is taken on the judgments passed by other countries on the issue involved in hand. The Supreme Court of India in the case of Centre for Environment Law, WWF-I v. Union of India and others (Writ Petition (Civil) No. 337 of 1995) opined that top priority of the State is to adopt measures for protection of the wild animals and birds, as per the scientific studies. The High Court of Uttarakhandat Nainital in Writ Petition (PIL) No. 43 of 2014 titled as Narayan Dutt Bhatt v. Union of India and others has observed that every species has an inherent right to live and is required to be protected by law. The rights and privacy of animals are to be respected and protected from unlawful attacks. IX. DETERMINATION BY THE COURT 18. It would be more advantageous to first see the difference between the electronic devises/gadgets being used for hunting purposes and the fair chase policy of hunting the wild animals and birds. The nub of the matter in this case is the impugned notification whereby the Respondents- have referred to Section 9(vii) of the Act by 'prohibiting the use of electronic devises/gadgets, battery operated decoys/moju and pre charged pneumatic air guns. It is imperative to reproduce the impugned notification which is as under:
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It is to be noted that the explanation added in Section 9(vii) of the Act is now being determined by this Court. a. The Cause: electronic devices/gadgets used for hunting. 19. Due to technological advances in hunting scopes (for any lawful hunting device), smart devices are becoming more prevalent in the firearm and hunting industries. These are equipped with a target tracking system or an electronically controlled or computer-linked trigger or release. Through a smart device, a person with little or no experience can easily hit a target at a long distance approximately more than 500 yards away with very high accuracy and once a target is selected, the smart device controls the trigger mechanism and discharges only when the weapon is pointed at the designated target, taking into account dozens of variables, including wind, barometric pressure, elevation, inclination or declination, etc. Normally, it takes year of practice to hit a target at that distance but a smart device can make it an easy hunting exercise for unexperienced person. The newer electronic type waterfowl decoys generally have a spinning wing or blade apparatus that revolve at a high speed, supposedly imitating the movement of waterfowl as they stretch their wings and move about. Other decoy types vibrate in water to imitate the movement of birds feeding. Power sources for these types of decoys are batteries, some can be turned off and on by remote control. Catalogs also advertise the latest concept, a number of decoys attached together, four or more, that move around a central post and alternately dive and surface to imitate a whole flock of feeding ducks. Robo-ducks are the latest in decoy technology and these ultra-realistic, battery-operated, mechanical ducks are used by hunters to lure real ducks into shooting range. b. Principles of fair chase for hunting 20. Barrister Sameer Khosa, Advocate Supreme Court and Barrister Hira Jaleel, Advocate/Amicus Curiae have…
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