P L D 2012 Balochistan 16
Before Qazi Faez Isa, C.J.
IKRAMULLAH and others ---Petitioners
Versus
THE STATE ---Respondent
Criminal Quashment Nos.1, 2, 3, 10 and 11 of 2010, decided on 26th August, 2011.
(a) Balochistan Wildlife Protection Act (XIX of 1974) ---
----Ss. 9, 10, 19, 27 & 30 ---Criminal Procedure Code (V of 1898), S.561 -A---Quashing of
orders ---Accused had been charged for the illegal possession and transportation of cranes
(birds) wh ich enjoyed protection under the Balochistan Wildlife Protection Act, 1974 ---
All the accused pleaded guilty and they were fined a sum of Rs.1000 each by the Judicial
Magistrate and allowed to leave the 190 cranes in their possession ---Sessions Court on
revision petition preferred by the Executive District Officer, Forest and Wildlife,
remanded the cases to the Judicial Magistrate for recovery of all the captured cranes from
the accused and their delivery to the Forest Officer, vide impugned orders ---
Validity ---Said cranes had since died on account of a contagious viral infection ---Two
years had passed since the F.I.Rs. were lodged against the accused ---Magistrate had not
considered the number of birds in the illegal custody of the accused, but instea d the
individuals involved, and imposed the maximum stipulated fine of Rs.1000 on each of
them ---Illegal possession of each crane being a separate offence, fine should have been
commensurate with the offence ---Fine extending to Rs.1000 had been prescribed in the
year 1974 and Magistrate should have taken into consideration the intent of Legislature
and the fact that the value of money since the lapse of 37 years had depreciated
considerably and that imposition of fine of Rs.1000 per accused and not per cran e, could
neither be deemed to be sufficient, nor prove to be a deterrent to offenders ---State had not
filed appeals against the judgments of Magistrate and Sessions Court had not interfered
with the judgments of Magistrate on this score, it was not proper to enhance the sentence
of accused at present stage ---Accused had now paid an amount of Rs.95000, which would
reflect on their illegal actions and prove to be deterrent ---Cranes having died could not be
produced before Trial Court ---Fine at the rate of Rs. 500 per bird, total Rs.95000 under
S.9 of the Balochistan Wildlife Protection Act, 1974, was imposed by High Court,
which had been paid by the accused ---Case pertained to the illegal possession of
190 cranes, a protected species under the said Act and one of God's creatures ---
Magistrate had failed to appreciate the importance and gravity of the matter ---Petitions
were disposed of with such modification.
(b) Wildlife protection ---
----Concept in Islam.
Nadir Ali Chalgari for Petitioners (in Crl.Qs. Nos.1, 2, 3, 10 and 11 of 2010).
Miss Sarwat Hina, Addl. P.G. for Respondent (in Crl.Qs.Nos.1, 2, 3, 10 & 11 of
2010)
Date of hearing: 19th August, 2011.
JUDGMENT
QAZI FAEZ ISA, C. J. ---In view of the commonality of facts and law I intend to
dispose of all five petitions through this common judgment. The brief facts of the cases
are that first information reports (F.I.Rs.) were lodged at police station Zhob on 6th
September 2009 under different provisions of the Balochista n Wildlife Act, 1974 ("Act")
for the illegal possession and transportation of cranes, which enjoy a protected status
under the Act and cannot be hunted, killed or captured. Subsequently, charges were
framed on 30th September 2009 by the Judicial Magistrate Zhob against the accused and
all of them pleaded guilty, therefore, by Orders of the same date they were fined a sum of
Rs.1,000/ - each and allowed to leave with the 190 cranes in their possession. Against the
said Orders revisions were preferred by the E xecutive District Officer, Forest & Wildlife,
Zhob before the Sessions Judge, who passed similar Orders all dated 24th December,
2009 the operative part whereof is reproduced hereunder: --
"5. The F.I.R. was lodged u/ss 10, 27 and 30 of the Balochistan Wil dlife
Protection Act, 1974. Sections 10, 27 and 30 are reproduced herein below: --
"10. No person shall kill hunt or capture any wild bird or animal specified in the
third schedule."
"27. (1) Any Officer or any other person authorized in this behalf may, without
orders from a Magistrate and without a warrant, arrest any person against
whom a reasonable suspicion exists of his having concerned in any offence under
this act.
(2) Every officer making an arrest under this section shall without unnecessa ry delay
and subject to the provisions of the Act as to release on bond, take or send the
persons arrested before the Magistrate having jurisdiction in the case or the
officer -in-charge of the nearest police station."
"30. The court may order the confiscat ion of the weapon, net, trap, snare employed or
suspected to have been employed in the commission of an offence under this Act."
The above provisions indicates that no person shall kill, hunt or capture any wild
bird or animal specified in the third sched ule. In the third schedule of the Act,
crane has been shown as a protected bird. Section 9 of the Balochistan Wild Life
Protection Act 1974 provides that: --
"9. Any protected animal or game animal which is found dead or dying or which
has been killed or c aught otherwise than in accordance with the provisions of this
Act and any meat or trophy thereof shall be the property of Government. --
In this section the word "shall" has been used. The law making agencies has given
no provision to release the protecte d birds and animal which were illegally
captured. All the respondents have pleaded guilty to the offence but the learned
Judicial Magistrate committed an error and illegality while passing an order on
case property, whereby the captured cranes have been or der to be handed over to
the respondents. The order on case property on the face of it is illegal, unlawful
and ultra vires. The revision petition is allowed case is remanded back to the
learned Judicial Magistrate, Zhob for execution of this order. The le arned trial
court is directed to recover all the captured cranes from respondents and
handed over back to the petitioner i.e. Forest Officer Wild Life, Zhob. The parties
have been directed to appear before learned court of Judicial Magistrate, Zho b."
2. Through these petitions filed under section 561 -A Criminal Procedure Code
("Code") the Orders passed by the learned Sessions Judge have been assailed, amongst
others on the ground that the said cranes have died, therefore, compliance with the
impu gned Orders cannot be made. In view of the fact that the petitioners pleaded guilty I
am not considering the other pleas that have been raised in the petitions and restrict
myself to consider what would be an appropriate order under the facts and
circum stances of the case. The petitioners have produced in original the report of the
Veterinary Officer, Civil Veterinary Hospital certifying that the said birds died on
account of a contagious viral infection. Two years have now elapsed since the
F.I.Rs. were lodged against the petitioners in respect of the said cranes.
3. Section 19 of the Act prescribes the penalties that may be imposed in respect of
the contraventions of its different provisions. Section 9 of the Act attends to the de ath of a
protected animal and prescribes, "a fine which may extend to five hundred rupees." In
view of the death of the cranes, whilst they were in the illegal possession of the
petitioners, the petitioners could be charged for a fresh offence under sectio n 9 of the Act
and sent for trial. However, Mr. Chalgari, learned counsel for the petitioners, on behalf of
his clients, stated that his clients may be allowed to pay the fine in these proceedings at
the rate of Rs.500 per crane, total amounting to Rupees ninety five thousand. Ms. Sarwat
Hina, the learned Additional Prosecutor General did not oppose the suggestion of Mr.
Chalgari. The case was therefore adjourned to enable the petitioners to pay the said fine
and Mr. Chalgari has produced four paid challans showing payment made into the
Government Treasury of Rupees ninety five thousand in total.
4. The learned Magistrate did not take into consideration the number of birds in the
illegal custody of the accused, but instead the individuals involved and impose d the
maximum stipulated fine of one thousand rupees on each accused. The illegal possession
of each crane was a separate offence and as such the fine should have been commensurate
with the offence. The fine, "which may extend to one thousand rupees," was prescribed in
the Act that was enacted in 1974, therefore, the learned Magistrate should have taken into
consideration the intent of the Legislature and the fact that the value of money since the
lapse of 37 years has depreciated considerably and that impo sition of a fine of Rs.1,000
per accused (and not per crane) can neither be deemed to be sufficient as a fine nor prove
to be a deterrent to offenders. Moreover, if a fine alone was imposed, as in the present
cases then there was no justification for impos ing a lesser fine. However, in view of the
fact that appeals were not filed by the State and the judgments of the learned Magistrate
not interfered with by the learned Sessions Judge on this score it would not be appropriate
to enhance sentences at this st age. In any event the petitioners have now paid an amount
of Rupees ninety five thousand, which hopefully makes them reflect on their illegal
actions and proves to be a deterrent.
5. Before parting with these cases it would be appropriate to pass certain
observations as I am of the opinion that the learned Judicial Magistrate did not appreciate
the importance or gravity of the matter. The case pertained to the illegal possession of
190 cranes, a protected species under the Act, and one of God's creatures. " There is not a
moving (living) creature on earth, nor a bird that flies with its two wings, but are
communities like you" (Surah Al -An'am, 6:38). Human beings have been made khalifa al -
ard (Surah Al -A'raf, 165), i.e. guardians or vicegerents of God's Creat ion on Earth and
thus must properly acquit themselves of such responsibility. The Quran calls on believers
to reflect on the wonders of nature and to consider the perfect balance ('al -mizan') in
which Allah maintains the natural world. Therefore, it is eve ry man's, and every woman's,
duty to maintain the fragile equilibrium of Creation.
6. The Glorious Qur'an also mentions other functions which these creatures perform
and which man may not perceive, namely the functions of worshipping God, declaring
His pra ise and bowing down to Him .. 'The seven heavens and the earth and all the beings
therein proclaim His glory: There is not a thing but celebrates His praise, but you
understand not how they declare His glory' (Surah al -Isra', 17:44) ...Islam emphasizes all
measures for the survival and perpetuation of these creatures so that they can fully
perform the functions assigned to them" (Environmental Protection in Islam, by Dr.
Bagader Professor of Sociology at the King Abdulaziz University, Jeddah, Dr. El -
Sabbagh Associate Professor of the King Abdulaziz University, Dr. Al -Glayand Professor
of Islamics Dar Al -Uluum Cairo and Dr. Samarrai Professor of Islamics, Cardiff
University. IUCN Environmental Policy and Law Paper No.20 published in collaboration
with the Met ereology and Environmental Protection Administration of the Kingdom of
Saudi Arabia).
7. The Prophet Muhammad, may peace and blessing be upon him, extolled his
followers and the ummah (Muslim community) to show kindness to animals. One familiar
story from the life of the Prophet recounts how, during a journey, one of his companions
removed a baby bird from a nest. He confronted him to return the bird to its nest. "For
charity shown to each creature with a wet heart, there is a reward," the Prophet declared
(Hadith reported by Abu -Dawud on the authority of Amir ar -Ram). The Prophet said that
he who is kind and merciful towards animals, Allah will be kind and merciful towards
him (Hadith related by abu -Dawud and at -Tirmidhi on the authority of Abd -allah ibn
Amr). Another tradition recounts how a prostitute's sins were washed away because she
gave drinking water to a thirsty dog. When the people asked, 0 Messenger of God, is
there a reward in doing good to these animals? He said, "There is a reward in doing good
to every living thing" (Hadith related by al -Bukhari and Muslim on the authority of Abu -
Hurayrah).
8. The poet Samuel Taylor Coleridge captures the essence of the Islamic tradition in
his epic 'The Ancient Mariner":
He prayeth well who loveth well
Both man and bird and beast.
He prayeth best who loveth best
All things, both great and small:
For the dear God who loveth us,
He made and loveth all.
9. Therefore, in view of the fact that the cranes have died and thus cannot be
produced befo re the trial court, the impugned orders with regard to their production
are modified, and fine at the rate of Rs.500 per bird, total Rupees ninety five thousand,
under section 9 of the Act has been imposed, which fine has been paid. With such
modification of the impugned orders the petitions are disposed of.
N.H.Q./110/Q Order accordingly.This 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,
let us know.