P L D 2011 Quetta 11
Before Qazi Faez Isa, C J
ABDUL HAMEED ---Petitioner
Versus
JUDICIAL MAGISTRATE and 2 others ---Respondents
Criminal Miscellaneous Quashment No.36 of 2010, decided on 23rd December, 2010.
(a) Balochistan Sea Fisheries Ordina nce (IV of 1971) ---
----Ss. 3 & 9 ---Balochistan Sea Fisheries Rules, 1971 ---Balochistan Sea Fisheries Act (X
of 1994), Ss.9, 9 -A & 9 -B---Criminal Procedure Code (V of 1898), S.517 ---Illegal
fishing ---Trial Court sentenced the accused to pay the fine of Rs.15000 ---Confiscated
trawler and fishing equipment, except the prohibited fishing net, were returned to the,
accused ---Additional Sessions Judge dismissed revision seeking restoration of the said
fishing nets ---Validity ---Trial Court was empowered to sent ence the accused to
imprisonment and order confiscation of the fishing equipment, rather, confiscation of the
fishing equipment was mandatory under S.9 of Balochistan Sea Fisheries Ordinance,
1971 ---Prohibited fishing net being an instrument of offence, co uld be ordered to be
confiscated even in the absence of any specific provision to that effect ---Trial Court was
empowered under S.517, Cr. P. C. to order disposal by destruction, confiscation or
delivery to any person of the property used for the commissio n of any offence ---Return
of the prohibited fishing net "gujja" to the accused would result in misuse of the same for
committing crimes under the Balochistan Sea Fisheries Ordinance, 1971 ---Illegal fishing
was a serious threat to marine environment and fis h population ---Despite their confession,
accused were not sentenced to imprisonment, instead, lesser punishment of fine was
imposed on these ---Vessel used in the commission of offence was also restored to them ---
Use of prohibited nets was a crime against s ociety and nature ---No case for invoking
inherent powers of High Court had been made out ---Petition was dismissed with order of
destruction of confiscated prohibited nets in order to prevent the reuse of such nets.
(b) Criminal Procedure Code (V of 1898)---
----S. 517---Power of Trial Court to dispose of property used in commission of any
offence ---Trial Court was empowered under S.517, Cr.P.C. to order disposal by
destruction, confiscation or delivery to any person of the property used for the
commis sion of offence.
Criminal Revision No.6 of 2009 distinguished.
Jahanzaib Jadoon for Petitioner.
Liaquat Ali for the State.
Date of hearing: 27th August, 2010.
JUDGMENT
QAZI FAEZ ISA, C.J .---A Constitutional Petition was filed against the o rder dated 15th
September, 2009 passed by the learned Judicial Magistrate Pasni and order dated 14th
November, 2009 passed by the learned Additional Sessions Judge Gwadar. However, on
22nd July, 2010 learned counsel for the petitioner requested for convers ion of the petition
into a criminal miscellaneous petition under section 561 -A Criminal Procedure Code
("Code") and the said request was allowed and the office was directed to allot criminal
miscellaneous petition number to the case.
2. Before facts of t he case as stated in the petition are that on 18th September, 2009 the
authorities of Ormara Fisheries found that the crew of fishing trawler 'Shahra -e-Madina'
number B -17623 was within four nautical miles from the coast of Ormara and was fishing
by using prohibited fishing nets (`gujja') and arrested the captain and the driver of the said
trawler and seized the trawler along with equipment, including the said fishing nets.
Consequently F.I.R. No.3 of 2009 was lodged by the Inspector Fisheries Ormara,
Gover nment of Balochistan.
3. Challan was submitted before the Judicial Magistrate Pasni and the nominated accused
pleaded guilty, accordingly vide order dated 15th September, 2009 the petitioner was
convicted and sentenced to pay fine of Rs.15,000 (Rupees fi fteen thousand only) and the
said trawler along with all its equipments except the prohibited fishing nets ('gujja')
returned to them, whilst the prohibited nets ('gujja') were confiscated in favour of the
State. Against the order of the learned Judicial M agistrate criminal revision was preferred
before the Additional Sessions Judge Gwadar, who vide order dated 14th November,
2009 dismissed the same and maintained the order passed by the learned Judicial
Magistrate Pasni. It is against the said orders dated 15th September, 2009 and 14th
November, 2009 (hereinafter, "the impugned orders") that the petitioner has submitted
this petition and sought that this court invoke its inherent powers pursuant to section 561 -
A of the Code, which is reproduced hereunder: --
"561 -A. Saving of inherent power of High Court .---Nothing in this Code shall be
deemed to limit or affect the inherent power of the High Court to make such orders
as may be necessary to give effect to any order under this Code; or to prevent
abuse of t he process of any Court or otherwise to secure the ends of justice."
4. Learned counsel for the petitioner stated that the confiscation of the fishing nets cannot
be resorted to under section 3 or section 9 of the Balochistan Sea Fisheries Ordinance,
1971 ("Ordinance") and that the fishing nets, which had been seized by the authorities
were not prohibited nets (`gujja')' and that the, "mesh size of confiscated net are inches
and comes to category of local fishing nets". It was lastly contended that the fi shing nets
are the "only source of fishing and income of the petitioner and other crews." Copy of the
Ordinance and copy of the Balochistan Sea Fisheries Rules, 1971, made pursuant to the
said Ordinance, were filed along with the petition. Counsel for the petitioner also placed
reliance upon the judgment dated 11th May, 2009 of this court authored by Mr. Justice
Ahmed Khan Lashari (as he then was) passed in Criminal Revision No.6 of 2009, relevant
portion whereof is reproduced hereunder: --
"Section 9 of t he Ordinance provides that whoever contravenes any provisions of
this Ordinance, or of the rules made thereunder, shall be punishable with simple
imprisonment which may extend to one month or with fine up to Rs.5000 or with
both, while section 10 thereof s peaks that a habitual offender shall, on subsequent
conviction, be liable to the confiscation and forfeiture of his fishing craft and
fishing gear, or to the suspension of his license. The record does not disclose that
the petitioner was habitual offender and was earlier convicted by the court of law
regarding illegal fishing, rather when the case came up for hearing before the trial
Court, he pleaded his guilty and on the basis thereof he was convicted and
sentenced, thus, section 10 of the Ordinance does not attract to the facts and
circumstances of instant case, as such, petition is allowed and orders impugned
herein to the extent of confiscation of fishing wire net, is set aside. The case
property i.e. wire -net be released to the petitioner.
5. In view of the fact that the mesh size or opening of the fishing nets was not mentioned
in the petition and it was stated that, "the mesh size of the confiscated fishing nets are
inches," the respondent No.3 produced the specimen of the confiscated nets under the
joint signatures of Messrs Hamid Mir, Deputy Director Fisheries Department and Saleh
Muhammad, Section Officer Fisheries Department. The specimen taken from the
confiscated nets when stretched was measured and the mesh opening was found to be less
than 1 -1/2 inches. Learned counsel for petitioner did not dispute that the specimen
produced in court was not from the confiscated nets.
6. The copy of the Ordinance attached with the petition and relied upon by the counsel for
the petitioner did not reflect th e amendments made in the Ordinance vide the Balochistan
Sea Fisheries (Amendments) Act, 1986 (Act No.IV of 1986) and the Balochistan Sea
Fisheries (Amendment) Act, 1994 (Act No.X of 1994). Sections 3 and 9 as originally
enacted and as subsequently amended are reproduced hereunder: --
Section 3 before amendment :--
"No person shall operate any fishing craft or use any fishing gear in Baluchistan
waters without a licence in the prescribed form issued by the licensing authority
for each fishing craft."
Pursuant to the Balochistan Sea Fisheries (Amendment) Act, 1986, section 3 was
bifurcated into two subsections, the section as existing was renumbered as subsection (1)
and the following new subsection (2) was added:
"3(2) No person shall be allowed to fish with encircling net or improvised purse
seine net locally called "wire net" or "gujja" or ring net and bottom trawls locally
called "trawls" or "gujja" in the closed bays of Sonmiani and Kalmat and twelve
nautical miles from shore along the rest of Baluch istan coast."
Section 9 before amendment:
"(9) Whoever contravenes any provision of this Ordinance or of the rules made
thereunder, shall be punishable with simple imprisonment which may extend to
one month with fine which may extend to five thousand r upees or with both."
The Balochistan Sea Fisheries Act, 1994, raised the amount of fine mentioned in section 9
to rupees One Lac and the following new sections were inserted: --
"9-A. Custody of Poachers and Poaching Vessel .--The Fisheries Officer will
handover the poachers and their poaching vessel in the safe custody of
Tehsildar/Assistant Commissioner of the respective areas as soon as they are
brought ashore and until such time they are prosecuted."
"9-B. Auction of illegal fish .---The illegal fish catch, is a perishable commodity
and the Fisheries Officers straight away proceeds to dispose of the same through
open auction and keep the auction amount in safe custody till the poacher is
prosecuted and the prescribed period for appeal expires. Where u pon the auction
money is deposited under the Head of Fisheries Receipt. In case of acquittal, the
amount is returned to the poacher."
7. It may be mentioned that the said two sections have been further amended by the
Balochistan Sea Fisheries (Amendment) Act, 2009, wherein subsection (3) has been
added to section 3, as under: --
"(3) A fishing license granted under these sections does not authorize the licence
to fish. with encircling net or improvised purse seine net locally called "wire net"
or "gujja" in internal waters and 12 nautical miles from the base line and that he
will fish by gillnets with a mesh size not less than 5 inches and "Tukri nets"
having mesh size not less than 2.5 inches beyond internal waters and 3 nautical
miles away from the base all along Balochistan Coast except fishing nets aimed
for Indian mackerels (Rastrillger karanguta) locally called Bhangra and will not
disrupt already laid fishing nets. Fishing nets locally called "Bullo Gujja" nets
(Estuaries set bag net) and "Kado" net s are hereby banned."
Section 9 has been substituted with the following .section: --
"(9) Whoever contravenes any provision of this Act or of the rules made
thereunder, shall be punishable with imprisonment which may extend to one year
or with fine whic h may extend to one hundred thousand rupees or with both:
Provided that the contravention of section 3 shall be punishable with
imprisonment of either description for a term which may extend to three years or
with fine which shall not be less than 300,00 0 and shall not exceed to Rs.600,000
or both.
Provided further that the banned fishing gear/nets harnessed in the offence shall be
confiscated and in case of habitual offenders, the fishing vessels shall also be
enable to be confiscated."
8. The Baloch istan Sea Fisheries (Amendment) Act, 2009 (Act No. VII of 2009) however
is not relevant for the purpose of the instant matter as the amendments made therein came
into effect after the lodging of the F.I.R. on 13th September, 2009 and after passing of the
impugned order dated 15th September, 2009. As per Balochistan Gazette Notification
dated 3rd November, 2009 published in the Balochistan Gazette on the same day Act
No.VII of 2009 was assented to by the Governor of Balochistan 24th November, 2009.
9. The law existing on the day when the crime was committed (13th September, 2009)
prohibited the use of "wire net" or "gujja" within 12 nautical miles from shore along the
coast of Balochistan and stipulated simple imprisonment of one month, maximum fine of
Rs.1 00,000 or both and confiscation of the fishing craft. Accordingly, the Judicial
Magistrate on the date of conviction could have awarded the petitioners sentence of simple
imprisonment for a term extend up to one month or with fine of Rs.100,000 or with bot h
and confiscated the fishing craft involved in the offence. It could in fact be contended the
confiscation of the fishing craft was mandatory as the proviso to section 9 stipulated that,
"the fishing craft shall be liable to confiscation", however, the St ate did not file an appeal
against the said order therefore this point is not being considered in the instant matter. The
reliance placed upon the judgment authored by Mr. Justice Ahmed Khan Lashari (as he
then was) would also not help the petitioner as th e same did not take into consideration the
amendments made to the law and as such may not be cited as a precedent.
10. The question that requires consideration is whether the trial Court could have ordered
confiscation of the prohibited fishing net since on the date when the offence was committed
the law did not specifically provide for such confiscation. In my opinion any prohibited
fishing net can be ordered to be confiscated even though there was no specific provision as
it was the instrument whereby t he crime was committed. Moreover, section 517(1) of the
Code gives the trial Court the discretion to order disposal of property by "destruction,
confiscation or delivery to any person of the property used for the commission of any
offence." Moreover, if th e prohibited fishing net "gujja" is returned to the petitioner the
same may again be used for committing crimes under the Ordinance. In fact it would most
certainly be so used as there is no other use for the same and as the petitioner audaciously
states t hat it is his only source of livelihood.
11. Illegal fishing and fishing through illegal means and methods endangers the marine
environment and fish stocks which in turn threatens the economic opportunities both for the
fishermen as well as the local pop ulation. By using fine mesh nets large number of juvenile
fish are caught which wipes out the chance of such fish reaching maturity and spawning
further generations to replenish the fish stock. On the other hand if legally permissible nets
with large mesh size are used juvenile fish would, be able to escape and to reach maturity.
The use and management of coastal fishing resources should be in a - manner that benefits
the local community in the long run. Over fishing, illegal fishing and resorting to
unnece ssary killing and catching of juvenile fish ruptures the ecological web, results in the
decline of marine resources and damages the sea and the coast, bringing with it untold
suffering to the communities living along the coastal areas who are dependent upo n fishing
both to feed themselves as well as to provide them with much needed livelihood. The greed
of a few imperils all.
12. The Balochistan Sea Fisheries Ordinance was promulgated in 1971 and over of period of
time enhancement in punishment have been made therein. In the instant case convicts were
ordered to pay fine of only Rs.15,000 and no sentence of imprisonment was passed despite
their confessing that the crime was committed by them. Moreover, their vessel was ordered to
be released to them. Under such circumstances it was expected that the petitioner would have
been pleased with how very lightly he was let off, but instead he seeks to recover his
prohibited nets on the ground that the said prohibited "fishing nets are his" only source of
fishing a nd income." This is tantamount to a murderer asking for the return of his weapon,
because murder is his only source of livelihood. Use of prohibited nets is a crime both against
society as well as God's creatures, who do not have a voice. It is our duty to ensure that the
rights of the people are protected and the large scale capture and killing of juvenile fish
avoided. Accordingly, no ground for invoking the inherent powers of this court have been
made out that require prevention of the abuse of the proce ss of the court or otherwise to
secure the ends of justice. On the contrary the petitioner wants to obtain the prohibited fishing
nets to continue with his criminal activity. Therefore, this petition being without any merit is
dismissed.
13. The confisca tion of the prohibited nets in favour of the State, however, does not stand to
reason as the fishing nets cannot be used or auctioned by the State and it would have been
appropriate if the trial Court had ordered their destruction. Moreover, storage of the said nets
will be expensive and serve no purpose. Accordingly, to prevent misuse of the confiscated
nets it is ordered that the confiscated nets be destroyed by the State in the presence of the
Judicial Magistrate and, the impugned orders stand modified t o such extent.
14. It was noted that the learned counsel were not aware of the amendments made in the
'Balochistan Sea Fisheries Ordinance, 1971, accordingly the 'respondent No.3 is directed to
provide copies of the Ordinance with latest amendments to th e fishing authorities in the
coastal areas of Balochistan and with copies thereto to all the concerned Judicial Magistrates,
Additional Session Judges and Sessions Judges as well as to district attorneys and public
prosecutors, so that the laws made by the representatives of the people of Balochistan are
implemented and enforced.
15. Copy of this order be sent to Government of Balochistan through Secretary Fisheries and
all judicial officers serving in the coastal areas of Balochistan for information and/ or
compliance, as the case may be.
A.R.K./117/Q Petition dismisseThis judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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