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 Balochistan 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 Executive 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 Wildlife 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 unnecessary 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-incharge of the nearest police station."
"30. The court may order the confiscation 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 schedule. 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 caught 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 protected 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 order to be handed over to the respondents. The order on case property on the face of it is illegal, unlawful and ultra vices. The revision petition is allowed case is remanded back to the learned Judicial Magistrate, Zhob for execution of this order. The learned 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, Zhob."
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 impugned 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 circumstances 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 B 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 death 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 section 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 imposed 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 imposition 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 imposing 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 stage. 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 Creation 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 every 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 praise 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 Metereology 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 before 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.