QAZI FAEZ ISA, C.J.---A Constitutional Petition was filed against the order 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 conversion 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 the 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, Government 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 fifteen 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 Magistrate 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 the 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 fishing 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 the 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 speaks 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 the 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 Baluchistan 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 rupees 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 upon 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" nets 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 which 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 300,000 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 Balochistan 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,100,000 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 both 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 State 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 the 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 the 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 the 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 that 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 population. 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 unnecessary 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 upon 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 and 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 E 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 process 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 confiscation 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 to 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 the 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. 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.