' MIAN SAQIB NISAR, J. --- Through the afore-said petitions filed under Article 188 of the Constitution read with Order XXVI, Rule 1 of the Supreme Court Rules, 1980, review has been sought of the consolidated judgment dated 19.08.2015 passed by this Court in Civil Petitions No, 250/2015 and C.M.A. No, 1435/2015 in C.P. No, Nil/2015 filed by the Federation of Pakistan through M/o Foreign Affairs, Civil Petitions No, 253 and 574 of 2015 filed by one Atta-ur-Rehman, Civil Petitions No, 20-0 and 21-Q of 2015 filed by Government of Balochistan, etc. Challenging the validity of the common judgment dated 27.11.2014 passed by the High Court of Balochistan, Quetta in C.P. Nos. 17 & 347 of 2011; Civil Petition No, 145/2015 filed by Province of Sindh, etc. Against the judgment dated 02.01.2015 passed by the High Court of Sindh, Karachi in Const. Petition No, D- 5806/2014; and Constitution Petition No, 38/2015 filed by one Aamir Zahoor-ul-Haq under Article 184(3) of the Constitution.
2. Brief facts necessary for the decision of the review petitions are that various Constitution petitions assailing the validity of letters issued by the Ministry of Foreign Affairs, Government of Pakistan informing Arab dignitaries the area specified for the hunting of Houbara Bustard for the hunting seasons 2013-2014 and 2014-2015 were filed in the High Courts of Balochistan and Sindh respectively. The learned High .Court of Balochistan struck down the impugned letter being unlawful and directed the Government of Balochistan to perform its duties in accordance with the Balochistan Wildlife (Protection, Preservation, Conservation and Management) Act, 2014 (Balochistan Act, 2014). Learned High Court of Sindh struck down the notification dated 23.10.2014 issued by the Sindh Government under Section 40(1) of the Sindh Wildlife Ordinance, 1972 (Sindh Ordinance, 1972) removing Houbara Bustard from the category of proteced animal and placing it in the category of game animal and consequently the letter issued by Ministry of Foreign Affairs was declared being without lawful authority. Aggrieved of the judgments the Federation, Government of Balochistan, Province of Sindh and one Atta-ur-Rehman preferred the above-mentioned Civil Petitions. During the pendency of the Civil Petitions one Aamir Zahoor-ul-Haq also filed a Constitution Petition before this Court under Article 184(3) of the Constitution with the prayer that the Ministry of Foreign Affairs and Wildlife Departments be refrained from issuing any permit for hunting of Houbara Bustard. This Court allowed the Constitution Petition No, 38/2015 while the Civil Petitions filed by the Federation and Province of Balochistan and Sindh were dismissed vide Judgment dated 19.08.2015 as under:-
23. Therefore, for the aforesaid reasons, Civil Petition for Leave to Appeal No, 145 of 2015, filed by the Province of Sindh, is dismissed and Constitutional Petition No, 38 of 2015, filed by citizen-lawyer Mr. Amir Maro of Akhtar is allowed in the following terms:
(1) The Notification is declared to be ultra vires the Sindh Wildlife Protection Ordinance and struck down;
(ii) Neither the Federation nor a Province can grant license/permit to hunt the Houbara Bustard;
(iii) The Federal Government is directed to ensure that its obligations ,under the Convention on International ,Trade in Endangered Species of Wild Flora and Fauna (CITES) and the Convention on Migratory Species of Wild Animals (CMS), which have been recognized by Pakistani law, are fulfilled and ,issue requisite directions to the Provinces in this regard in terms of Article 149(1) of the Constitution; and
(iv) The Provinces to amend their respective wildlife laws to make them compliant with CITES and CMS and not to permit the hunting of any species which is either threatened with extinction or categorized as vulnerable."
3. Leading the arguments, Mr. Salman Aslam Butt, the learned Attorney General argued with regard to Para 23(i) that notification issued by the Sindh Government being temporary in nature has lapsed with time and is neither pressed nor defended. With regard to Para 23(ii) he maintained that perusal of paragraphs 11 and 14 of the judgment reveals that this Court was mindful of a situation where the global population of Houbara Bustard could be at a level where sustainable hunting under the law could be allowed. However by placing a perpetual ban through Para 23(ii) the judgment has effaced its own reasoning and findings. Further stated that perpetual ban is against the wildlife laws of the country. The vires of those laws have never been questioned, therefore perpetual ban renders them redundant, which is not envisaged under the law and the Constitution. Alluding to international convention on Conservation of Migratory Species of Wild Animals (CMS), the learned Attorney General maintained that CMS does not obligates Federation or Provinces to place a ban on the hunting of Houbara Bustard rather the same allows sustainable taking (hunting) of Houbara Bustard as best mean of conversation. He stated that according to WWF Pakistan the population of Houbara Bustard in Pakistan has remained stable in the last twenty year which shows that sustained hunting is not in any way affecting the population of Houbara Bostard. Learned Attorney General, therefore submitted that Para 23(ii) of the judgment be reviewed to the extent it allowed hunting of Houbara Bustard in accordance with the law.
4.With regard to the direction contained in Paragraph 23(iv) of the judgment, the learned Attorney General contended that direction to legislature to legislate on a particular subject is beyond the pale of jurisdiction of the apex Court. In this regard he relied upon the case titled Al- Jehad Trust through Habibul Wahab AI-Khairi, Advocate and 9 others v. Federation of Pakistan (1999 SCM R 1379).
5. Mr. Razzaq A. Mirza, learned Addl. A.G. Punjab submitted that Province of Punjab was not a party to the Petition and any order affecting the rights of the Province of Punjab could not be made.
Further stated that Punjab Wildlife Protection Act, 1974 empowers the Provincial Government to allow hunting of various species of wildlife by placing them in the schedule of game animals, therefore permanent ban placed on the hunting of Houbara Bustard is against the law. He also objected to the maintainability of the petition under Article 184(3) as no question of public importance for the enforcement of fundamental right was raised in the petition.
6. Appearing for the Province of Sindh, Mr. Farooque H. Naek, Sr. ASC maintained that the Province of Sindh was not allowed a proper and due hearing. In this regard it was pointed out that the Civil Petition filed by the Province of Sindh was settled by late Mr. Abdul Hafeez Pirzada, Sr. ASC of this Court, who also appeared in the case on number of dates of hearing, however his request for adjournment was declined despite the fact he was admitted in hospital in UK. Addl. A.G. Sindh was asked to argue the case instead. Learned counsel also submitted that this Court erred in law by placing reliance on the judgment of the Sindh High Court titled Society for Conservation and Protection of Environment (SCOPE), Karachi v. Federation of Pakistan, etc. (1993 MLD 320) while setting aside the notification dated 31.10.2014 issued by the Government of Sindh. According to him the facts of the SCOPE case are distinguishable as in the said. Case the circular was not issued by the Government in exercise of powers conferred under Section 40(1) of the Sindh Wildlife Protection Ordinance, 1972. It was argued that in absence of any male fide the notification issued in exercise of lawful authority under the law could not have been set aside. Referring to conventions which forms basis of the judgment, the learned counsel submitted that CMS was not ratified by the Parliament whereas Convention on International Trade of Endangered Species of Wild Fauna and Flora (CITES) was not applicable to the case of hunting.. In any event both the conventions being not made applicable through municipal Iaw of the Province the same are not enforceable by the Courts.
7. Mr. Muhammad Ayaz Khan Swati, learned Addl. A.G. Balochistan while adopting the arguments of learned Attorney General and Mr. Farooque H. Naek added that the Balochistan (Wildlife Protection, preservation, Conservation and Management) Act, 2014 recognizes both CMS and CITES and that Houbara Bustard has been listed as a game animal under the Balochistan law. To the question that the Civil Petition filed by Government of Balochistan were dismissed being time-barred he replied that as identical question was being decided by the Court, the delay in filing the Petitions should have been condoned and the same should have been decided on merits.
8. On behalf of Muhammad Aslam Bhootani respondent, Mr. Kamran Murtaza, learned ASC appeared and submitted that under Order XXVI, Rule 8 of the Supreme Court Rules, 1980 the review has to be heard by the same bench which passed the judgment. Learned ASC supported the judgment and contended that no ground for review has been made out, hence the petitions are liable to be dismissed.
9. Power of review has been conferred upon this Court under Article 188 of the Constitution subject to any Act of the Parliament and the rules framed by the Supreme Court. Order XXVI, rule 1 of the Supreme Court Rules, 1980, framed under Article 191 of the Constitution, provides that the Supreme Court can review its judgment, order of any civil proceedings on the grounds analogous to those mentioned in Order XLVII, Rule 1 of the Civil Procedure Code and any criminal proceeding on the ground of an error apparent on the face of the record. Under Order XLVII, Rule 1 a party can have recourse to review of a judgment on the grounds of discovery of new and important matter or evidence which, despite due diligence was not within his knowledge or could not be produced at the time of passing of the judgment or order, on account of some mistake or error apparent on the face of the record or for any other sufficient reasons. Scope of the review, thus is limited and is confined only to error apparent on the face of the record or floating on the surface of the judgment which, if noticed earlier, would have direct bearing on the conclusions drawn by the Court. This Court in the report titled Abdul GhaffarAbdul Rehman and others v. Asghar Ali and others (PLD 1998 SC 363) while elaborating the scope of review jurisdiction held:-- "17. From the above case-law, the following principles of law are deducible:---
(i) That every judgment pronounced by the Supreme Court is presumed to be a considered, solemn and final decision on all points arising out of the case;
(ii) that if the Court has taken a conscious and a deliberate decision on point of fact or law a review petition will not lie;
(iii) the fact the view canvassed in the review petition more reasonable than the view found favour with the Court in the judgment/order of which the review is sought, is not sufficient to sustain the review petition;
(iv) that simplicter the factum that material irregularity was committed would not be sufficient to review a judgment/order but if the material irregularity of such a nature, as to convert the process from being one in aid of justice to a process of injustice, a review petition would lie;
(v) that simpliciter the fact that the conclusion recorded in the judgment/order is wrong does not warrant the review of the same but if the conclusion is wrong because something obvious has been overlooked by the Court or it has failed to consider some important aspect of the matter, a review petition would lie;
(vi) that if the error in the judgment/order is so manifest and is floating on the surface, which is so material that had the same been noticed prior to the rendering of the judgment the conclusion would have been different, in such a case a review petition would lie;
(vii) that the power of review cannot be invoked as a routine matter to rehear a case Which has already been decided nor change of a counsel would warrant sustaining a review petition, but the same. Can be pressed into service where a glaring omission or patent mistake has crept in earlier by judicial fallibility;
(viii) that the constitution does not place any restriction on the powers of the Supreme Court to .Review its earlier decisions or even to depart from them nor the doctrine stare decisis come its way so long review is warranted in view of the significant impact on the fundamental rights of citizens or in the interest of public good;
(ix) that the Court is competent to review its judgment/order suo moto without any formal application;
(x) that under the Supreme Court Rules, it sits in divisions and not as a whole. Each Bench whether small or large exercises the same powers vested in the Supreme Court and decisions rendered by the Benches irrespective of their size are decisions of the Court having the same binding nature."
10. Keeping in view of the limited scope of review jurisdiction, we will now consider the arguments of the review petitioners to see if their case falls within the ambit of review jurisdiction of this Court.
Before proceeding further it will be advantageous to examine the various provisions of the wildlife laws of the Provinces and international conventions on the subject.
11. All the provinces had their wildlife laws with common object, as set out in their preambles, to protect, preserve, conserve and manage wildlife. The Balochistan Act, 2014 and KPK Wildlife and Biodiversity (Protection, Preservation, Conservation and Management) Act, 2015 (KPK Act, 2015) recognizes CMS and CITES. Balochistan Act, 2014 list Houbara Bustard both as protected and game animal. The wildlife laws of the Punjab and Sindh are identical but for some minor variations. All the laws categorized wildlife into protected and game animal. Hunting of the protected animals is prohibited whereas license is required to hunt game animals. Under these laws the governments of respective Provinces are empowered to grant exemption from hunting and capturing of any animal as well as enjoy power to remove any animal from the protected list and to place it in the category of game animal and vice versa. Thus under the Sindh Ordinance, 1972, the Balochistan Act, 2014, the Punjab Wildlife (Protection, Preservation, Conservation and Management) Act, 1974 (Punjab Act, 1974) and the KPK Act, 2015 even protected animal are subject to change in status and change of schedule from protected to game animal in accordance with the law, can be hunted.
12. International convention on the Conservation of Migratory Species of Wild Animals (CMS) is an environmental treaty under the aegis of the United Nations Environment Programme. CMS provides a global platform for the conservation and sustainable use of migratory animals and their habitats.
Article-II of the convention provides that the range states shall endeavour to conserve the endangered species and other species, conservation status of which is unfavourable. In particular, the parties shall provide immediate protection to the migratory species included in Appendix-I and endeavor to conclude agreements for the conservation and management of species having unfavourable conservation status in Appendix-II. Article-Ill stipulates that Appendix-I shall list endangered species and range states of such species shall prohibit taking of such animals.
Species which have been accorded unfavourable conservation status, according to Article-IV, shall be listed in Appendix-II. Houbara Bustard has been placed in the said Appendix-II of the CMS.
Guidelines for agreements amongst range states have been provided in Article-V. With regard to species having unfavourable conservation status, the CMS requires range states to take measures, inter-alia on sound ecological principles, to control and manage the taking/hunting of the migratory species and adopt procedures for coordinating actions to suppress illegal taking.
13. We have noted above, that CMS does not in a way cast a duty upon the Federation or the Provinces to place a ban on the hunting of the species having unfavourable conservation status. It only endeavours for the range states to enter into bilateral or multi-lateral agreements or treaties for the conservation of such migratory species. No doubt the fundamental principle on which the convention is based (Article-II) obliges the parties to take individually or in cooperation appropriate or necessary steps to conserve such species and their habitat, such steps may include taking/hunting of species on sound ecological principles. However, what steps can be or should be taken, falls within the policy realm of the executive and this Court has always shown restraint in interfering into this domain. On the other hand, Fundamental principle, upon which CITES is based, is that strict regulation be put ,in place to stop the trade of such species across the border so as not to endanger their survival any further. In this the Pakistan Trade Control of Wild Fauna and Flora 2012 (Act, 2012) has been promulgated. Both CITES and Act, 201-2 relates to prevention of trade of ,species and therefore, not applicable to the present controversy. In fact Act, 2012 supplements the efforts for the conservation of such species by placing an embargo upon their export from Pakistan, thus controlling poaching and trapping of the birds for trade.
14. Convention on the international Trade of Endangered Species of Wild Fauna and Flora (CITES) is an international agreement between governments. Its aim is to ensure that international trade in specimens of wild animals and plants does not threaten their survival. According to Article-II of CITES all species threatened with extinction which are or may be affected by trade, their trade must be subject to strict regulation in order not to further endanger their survival.
15. Red List of International Union for the Conservation of Nature and Natural Resources (IUCN) places Houbara Bustard in the category of "vulnerable" below "near threatened" and "least concern" categories and above "endangered", "critically endangered", "extinct in the wild" and "extinct" categories. IUCN considers hunting primarily using falconry as a principal threat to its conservation.
Under proposed conservation action, IUCN considers adopting conservation measures that will reduce exploitation to a sustainable level and to determine number of birds that can be hunted legally.
16. It can be seen that even IUCN recognizes sustainable use of the natural resources. Local communities plays a pivotal role in the conservation of a specie. Without the involvement of the local communities no conservation effort can be successful. Unless the economic value of saving the migratory species is raised to a level where it benefits the resident of those area its conservation will always be in jeopardy. Considering the economic backwardness of the areas where these migratory species land, it is very hard for conservation efforts to be successful without uplifting the economic well-being of those areas. It is for this, reason that trophy hunting has been a successful tool for the conservation of endangered species throughout the world. Balochistan Act, 2014 defines trophy in Section 2(111) which includes any dead wild animal and its feathers.
Section 2(c) defines animal to include birds. Thus by allowing limited hunting for a limited days under a license in consideration of a huge sum the Balochistan Act, 2014 has accorded a statutory backing to 'trophy hunting. We presume, in absence of any material on the contrary, that the amount so generated is used for the uplifting of the people of the area where the licensees hunt so that they have an economic interest in conserving the specie rather than indulging in Illegal hunting, poaching and trapping for personal consumption or for trade.
17. Having considered the laws and international conventions relating to migratory' species of wild animals, we will now revert to examining the merits and demerits of the arguments advanced by the :petitioners considering the limited scope of review jurisdiction of this Court First we will address the objection raised by Mr. Kamran Murtaza, learned ASC for the respondent on the formation of the Bench. Rule 8 of Order XXVI of Supreme Court Rules, 1980 stipulates that as far as practical the review will be heard by the same Bench. The Rule provides a flexibility in constitution of the Bench, and rightly so, as there may be situation where the constitution of the same Bench may be impossible for the reason beyond the control of anyone, as in case of retirement of a Judge or his indisposition on account of failing health. The objection therefore, is misconceived and accordingly repelled.
18. The counsel for the petitioners are unanimous on the point that perpetual ban on hunting of Houbara Bustard is neither envisaged by the wildlife laws of the country nor an obligation under the international conventions. Bare reading of the Balochistan Act, 2014, KPK Act, 2015, Punjab Act, 1974 and Sindh Ordinance, 2015 shows that hunting of Houbara Bustard is allowed subject to license. Sindh Government through the notification dated 31.10.2014 changed the status of the specie from protected to game animal, which notification has been struck down by the learned High Court of Sindh and Civil Petition against the said judgment has been dismissed by this Court.
The question before us is whether in presence of the positive laws permitting hunting of Houbara Bustard under a license, perpetual ban on hunting can be placed when the vires of the wildlife laws and their Constitutional validity are not challenged and remain intact.
19. We have noted that the Balochistan law places Houbara Bustard both in protected and game animal categories. To us it is not an anomaly. According to Article-IV of CMS a migratory specie can be listed in both Appendices. Sustainable use of natural resources is central to its conservation. We will discuss this aspect later in the judgment.
20. There is yet another aspect of the case which require serious consideration. Mr. Farooque H.
Naek, learned Sr. ASC pointed out that CMS has not been ratified by the Parliament. In this regard reliance has been placed upon the report Societe Generale De Surveillance S.A. v. Pakistan through Secretary, Ministry of Finance (2002 SCM R 1694). It is well-settled proposition of law that international treaties and convention unless incorporated in the municipal laws, the same cannot be enforced domestically. In the judgment relied upon by the learned Sr. ASC this Court held:- "Admittedly, in Pakistan, the provision of Treaty were not incorporated through legislation into the laws of the country, therefore, the same did not have the effect of altering the existing laws, as such, rights arising 'therefrom called treaty rights cannot be enforced through Court as in such a situation, the Court is not vested with the power to do so."
' Unless, therefore, CMS is incorporated into municipal laws the same cannot be enforced.
Balochistan Act, 2014 and KPK Act, 2015 recognizes CMS, however as noted above Balochistan Act, 2014 places Houbara Bustard both in protected and game animal categories.
21. We have also noted that the Civil Petitions filed by the:Government of Balochistan against the judgment of the 'learned High Court of Balochistan were dismissed on the ground of limitation. As common question of law was being heard by this Court, hence delay should have been condoned and petitions decided On merit. In this regard we are fortified by the judgment of this Court- rendered in Mehreen Zaibun Nissa V. Land Commissioner Multan and others (PLD 1975 SC 397).
22. Our Constitution is based upon of power. Each organ of the State has its sphere of jurisdiction and cannot transcend into the domain of the other. Role of the judiciary is to interpret the laws and not to legislate. It thus follows that unless the constitutionality of the law is tested on the touchstone of Constitutional provisions and struck down, it will remain law of the land and duty of the Court would be to enforce the same.
23. Examination of the laws clearly shows that permanent ban on hunting of Houbara Bustard is not ,envisaged. Under the [Balochistan Act, 2014 Houbara Bustard is listed as game animal. Under the Sindh Ordinance, 1972 the government has the power to add or exclude any animal from the schedule. This Court while placing a complete ban on hunting of Houbara Bustard has seemingly overlooked the anomaly created by it. Further in view of the law laid down by this Court in the judgment reported as Al-Jehad Trust through Habibul Wahab AI-Khairi, Advocate and 9 others v.
Federation of Pakistan (1999 SCM R 1379) and other dicta of the Court, we also need to examine if a direction can be issued to the legislature by the superior Courts to legislate on a particular subject as has been so directed in the judgment under review.
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 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.
25. In such view of the matter there is an apparent error on the face of record. We therefore, allow these review petitions, set aside the judgment dated 19.08.2015. The Civil Petitions and the Constitution Petition shall be listed for hearing afresh. Civil revision petition allowed.
Sd/- Anwar Zaheer Jamali, CJ.
Sd/- Mian Saqib Nisar, J.
Sd/- lqbal Hameedur Rehman, J.
Sd/- Umar Ata Bandial, J.
' I most respectfully do not agree with the judgment and will be writing my note of dissent. Sd/- Qazi Faez Ise, J; ' QAZI FAEZ ISA, J. --- I have read the judgment authored by my distinguished colleague Justice Mian Saqib Nisar, but with profound respect I cannot bring myself to agree therewith. Before proceeding to highlight the points of disagreement, it would be appropriate to set out the background and certain material facts.
Background - Constitution of a larger Bench
2. The judgment dated 19th August, 2015 ("the judgment under review") was decided by a three Member Bench. I authored it and the other Members were the then Chief Justice Jawwad S. Khawaja and Justice Dost Muhammad Khan, after which the then Chief Justice Jawwad S. Khawaja retired. When these cases came up before a three Member Bench on 10th December, 2015 my distinguished colleagues were of the view that, "considering the questions involved in the matter, we request the Hon'ble Chief Justice to constitute a larger bench", without elaborating what such questions were or why the determination thereof may require the constitution of a larger bench. I dissented. It would be appropriate to reproduce the following extract from my dissent: "The matter is relatively simple and there is hardly any justification for the constitution of a larger Bench. Moreover, no application for the constitution of a larger Bench has been submitted nor even a verbal request has been made in this regard. Therefore, with profound respect, I cannot bring myself to agree with the recommendation for the constitution of a larger Bench. It would also be appropriate to reproduce Rule 8 of Order XXVI of the Rules, which provides that: "8. As far as practicable the application for review shall be posted before the same Bench that delivered the judgment or order sought to be reviewed."
' I can do no better than to reproduce the following extract from the judgment of my distinguished colleague from the case of Reviews on behalf of Justice (Retd.) Abdul Ghani Sheikh and others (PLD 2013 Supreme Court 1024): There is great wisdom in law, that the review, generally and ordinarily should be heard by the same Court and the Court in this context is an interchangeable term with the Judge. The object behind the above principle is, that the Court/Judge who has heard and decided the matter has a full comprehension as to what was argued before him; what was debated upon at the time of hearing of the matter (order under review) and what was the understanding of the Judge while adverting and attending to the pleas raised before him at the time of hearing of the matter and passing the order/judgment. It is so because while exercising the review jurisdiction, which otherwise has a limited scope, the judgment/order under review could be analyzed and heeded to by the Court/Judge, inter alia, in the light of the above considerations." (pages 1032-3)
"... The Hon'ble Judge who were not the part of the Bench which heard the matter would not like to sit as a Court of appeal, while considering the review matter." (at page 1034)
' In the above-cited case there was some justification for the constitution of a larger Bench since the learned Judges were not unanimous in their esteemed views and as the matter was of immense Constitutional and legal importance, involving as it did the treatment to be meted out to those who had been Judges of the superior Courts. However, the said judgment of this Court, the review whereof is sought, was a unanimous judgment. Larger Benches may also be constituted when there are conflicting judgments of this Court and such conflict needs resolution, but here we are not faced with conflicting judgments. With utmost respect, the matters to be considered in these review petitions are not of a nature that may have required a departure from the Rules and the longstanding continuous practice of this Court. Therefore, I would humbly request the Hon'ble Chief \Justice to let these matters be heard by the same number of Judges who had earlier heard the case, i.e, three members, incidentally two of whom (including myself) are still on the Bench."
' Despite my above-mentioned note, a larger Beach of five Members was constituted to hear these matters. To paraphrase, it was noted, that: (1) no request for the constitution of a larger Bench was made, (2) Rule 8 of Order XXVI of the Supreme Court Rules ("the Rules") required review petitions to be ordinarily heard by the same Bench, (3) the reasons (for not constituting larger Benches) were most ably enunciated in the referred to judgment of my learned colleague, (4) it wasn't the practice of this Court to constitute larger Benches to hear review petitions and (5) that a larger Bench hearing a review would be effectively sitting as a Court of appeal.
3. Mr. Kamran Murtaza, the learned counsel for one of the respondents, objected to the formation of the Bench, however, my distinguished colleagues over-ruled the objection in the following terms:-- - "Rule 8 of Order XXVI of Supreme Court Rules, 1980 stipulates that as far as practical the review will be heard by the same Bench. The Rule provides a flexibility in constitution of the Bench, and rightly so, as there may be situation where the constitution of the same Bench may be impossible for the reason beyond the control of anyone, as in case of retirement of a Judge or his indisposition on account of failing health. The objection therefore, is misconceived and accordingly repelled."
4. Article 188 of the Constitution of the Islamic Republic of Pakistan ("the Constitution") provides how review of the judgments and orders of this Court are to be attended to, which is reproduced hereunder:- "188. Review, of judgments or orders by the Supreme Court.---The Supreme Court shafl have power, subject to the provisions of any Act of Majlis-eShoora (Parliament) and of any rules made by the Supreme Court, to review any judgment pronounced or any order made by it."
' Article 188 makes it clear that the powers of review are subject to Federal law and of any rules made by the Supreme Court. There is "no Federal law on the subject. However, the Supreme Court has enacted the Supreme Court Rules, 1980 ("the Rules") and Rule 8 of the Order XXVI of the Rules ("the said Rule" or "Rule 8") is in respect of review applications and provides that, "As far as practicable the application for review shall be posted before the same Bench that delivered the judgment or order sought to be reviewed" [emphasis added]. Once rules as envisaged under Article 188 of the Constitution have been enacted with regard to the review jurisdiction such rules, that is the Rules, have great sanctity. Since Rule 8 clearly states that the application for review should be posted for hearing as far as practicable before the same Bench therefore compliance is required to be made with the said provision, unless there are compelling reasons for not doing so.
As Chief Justice Jawwad S. 'Khawaja had retired before the review petitions were filed/heard another Judge of this Court was required to take his place. Rule 8 however does not envisage the constitution of a larger Bench. It is also the consistent practice of this Court to post review petitions before Benches of the same strength as decided the judgment under review. Another practice is not to unnecessarily disrupt the normal work of the Court, therefore, review petitions are placed before a Bench of numerically the same strength of which the author Judge (unless he has retired) is always a Member, though the Bench may not include the other Members of the Bench who had earlier heard the case. Since a larger Bench was specifically constituted to hear the review petition there was no justification to exclude a Member who had earlier heard the case. However, Justice Dost Muhammad Khan, who had earlier heard the case and who by the Grace of the Almighty is not suffering from "indisposition on account of failing health", has been excluded. The objection taken by Mr. Kamran Murtaza reiterated what Article 188 of the Constitution read with Rule 8 provided, therefore in my humble, opinion, it would not be correct to categorize it as "misconceived" or which merited "to be repelled." Moreover, in the present case, to quote from the majority judgment, a "situation where the constitution of the same Bench may be impossible" has not arisen.
5. In my earlier note of dissent I had specifically reproduced the afore-quoted extract from the judgment of my distinguished colleague (Justice Mian Saqib Nisar) however, neither the reasoning contained therein nor the other points noted in my earlier dissent have been attended to. By constituting larger Benches to hear review petitions we venture into unchartered waters. When larger Benches are constituted to hear review petitions this Court would, to borrow the phrase of my illustrious colleague, "sit as a Court of appear falling into the very pitfall that was to be avoided.
6. Before proceeding to consider the merits of the matter there are a few additional legal issues that require attention.
Entertaining the Government of Balochistan's Time-Barred Review Petitions ' The majority judgment (in paragraph 21) states that even though the civil petitions for leave to appeal ("CPLAs") filed by the Government of Balochistan against the judgment of the learned Judges of the High Court of Balochistan were barred by time they should have been entertained. In this regard the judgment in Mehreen Zaibun Nisa v. Land Commissioner, Multan (PLD 1975 SC 397) has been referred to. It would therefore be appropriate to reproduce the following paragraph from the said judgment, which attends to the matter in hand:--- "Some of these appeals, namely, Civil Appeals Nos. 23, 39 and 40 of 1974, are barred by time in varying degrees but we would condone delay for the reasons stated in the relevant applications, as well as for the reason that they involve substantial questions of law of public importance which have in any case to be decided in the other appeals before us."
' In the above-mentioned case, applications seeking to condone delay were allowed, as presumably the reasons stated therein were sufficient to do. However, we had dismissed the said CPLAs because no valid reason for condoning delay was mentioned in the applications submitted in this regard. Our order dismissing the same is reproduced hereunder:--- "Civil Petition No, 20-Q/2015:- This petition is time-barred. An application seeking condonation of delay has been filed but no valid reason has been given therein to justify late filing of the petition.
This petition is dismissed being barred by limitation.'
"Civil Petition No, 21-0/2015:-. This petition is time-barred. An application for condonation of delay has been filed but the same does not contain any valid ground which would justify late filing of the petition. This petition is dismissed being time-barred."
' CPLA Nos. 20-Q and 21-0 of 2015 filed by the said Government were barred by time and the applications seeking to condone delay (CMA Nos. 22-0 and 24-0 of 2015) didn't mention a valid reason to justify their belated filing. As per the said applications, the Government of Balochistan had learnt on 17th December, 2014 about the judgment which had been announced on 27th November, 2014, by the Balochistan High Court. Even if this statement is accepted then too the said Government had more than sufficient time to prepare and file the petitions assailing the judgment of the High Court. Therefore, the applications seeking delay to be condoned were rightly dismissed 'and nothing has been stated that may justify us to review the said orders.
' Merely because petitions on similar matters are to be heard does not mean that other time- barred petitions are automatically entertained too; the judgment in the case of Mehreen Zaibun Nisa (above) does not state so, and if this precedent is established Rule 1 of Order XII of the Rules, which prescribes the period (of sixty days) for filing petitions for leave to appeal, would be made redundant. In addition, the discretion vesting in this Court to condone delay in appropriate cases would be rendered meaningless, if the pendency of a similar matter was sufficient reason to entertain time-barred petitions. There is yet another aspect, once this Court has exercised its discretion not to condone delay the same cannot be subjected to review, because the exercise of such discretion is not within the ambit of review jurisdiction. Civil Review Petition No, 600 of 2015
7. This petition cannot be categorized as a 'review petition' as it has not been filed by the Additional Advocate General Sindh, who was earlier heard on behalf of the Province of Sindh and two others.
Mr. Farooq H. Naek has sought permission to represent the petitioners. The application (CMA No, 6828/2015) submitted in this regard does not disclose why the said law officer of the Government of Sindh could not file a review, consequently, in my order dated 10th December, 2015 the following preliminary questions were formulated: "Q. Whether (1) The Province of Sindh, through Chief Secretary, Government of Sindh, (2) The Secretary, Forest, Wildlife & Environment Department, Government of Sindh and (3) The Conservator Wildlife Sindh, Wildlife Department, Government of Sindh, Karachi can engage private counsel when the concerned Law Officer of the Province of Sindh is available?
Q. Whether the tax-payers should be burdened further to enable the official respondents the benefit of private counsel?
Q. Whether the petition is maintainable without attaching the certificate of the Advocate Supreme Court/Law Officer (Rules 4 and 6 of Order XXVI) who had been heard?"
' Unfortunately, the aforesaid queries remained unanswered. Since the said 'review petition' has not been filed by the learned counsel who had earlier ,argued the matter nor the requisite certificate (in terms of rules 4 and 6 of Order XXVI of the Rules) of such counsel has been attached, therefore, the 'review petition' is not maintainable and is dismissed. `civil Review Petition No, 604 of 2015
8. As regards this civil review petition it would be appropriate to reproduce the following extract from my order dated 10th December, 2015:-- ' This review petition is barred by four days. The application (CMA No, 7491/2015) which seeks that the delay be condoned does not give any reason, save that the petitioner was "unaware" or the said judgment. The petitioner was also not 2 party to the said cases wherein the said judgment was passed. Therefore in this matter too, the following preliminary questions need to be answered: Q. Whether the petitioner being `unaware' of the said judgment is a sufficient ground to condone delay?
Q. Whether the petitioner, who was not a party to the cases that were decided, can seek a 'review' of the said judgment?
' Whether the petitioner is adversely affected by the said judgment?"
' The learned counsel representing the petitioner in this review petition however did not respond to any of the aforesaid queries. The petitioner has not shown himself to be adversely affected by the judgment and he was also not a party to the case. Moreover, the petitioner being "unaware" of the judgment is hardly sufficient ground to condone the delay in filing the review petition.
Consequently, the said review petition is dismissed. Civil Review Petition No, 607 of 2015
9. It would be appropriate to reproduce the following extract from my order dated 10th December, 2015 which dealt with this review petition:-- "The petitioner had filed Civil Petition for Leave to Appeal No, 253/2015 assailing the judgment dated 27th November, 2014 of the Balochistan High Court (in Constitution Petition No, 17 of 2011), however, the said CPLA was dismissed vide judgment dated 19th August, 2015 of this Court for the reason that: "the petitioner was not a party in the petition before the High Court nor was a necessary or proper party thereto and is also not personally affected by the said judgment, therefore, CPLA No, 253/2015 is dismissed". This review petition is also barred by sixty-one days. The petitioner has filed an application to condone delay on the ground that, "the delay so ., caused were neither intentional nor deliberated [sic] ". The following preliminary questions need to be answered before the matter is considered, on merit: Q. Whether the delay in filing the petition can be condoned merely because the delay was unintentional?
Q. Whether the petitioner, who was not a party to the cases that were decided, can seek a 'review' of the said judgment?
Q. Whether any fundamental right of the petitioner is violated if Houbara Bustards are not hunted'?"
' The delay cannot be condoned merely because it was unintentional. In any event the petitioner was not a party to the case and cannot seek review of the said judgment, particularly when he is not adversely affected by it. Consequently, the said review petition is dismissed.
Enlargement of Jurisdiction
10. The majority judgment has also decided to enlarge the scope of the dispute as it wants to examine the "objects of wildlife legislation in respect of all vulnerable and threatened game species including the Houbara Bustard" (paragraph 24). The stated objective may be otherwise commendable, but such enlargement of jurisdiction (when hearing review petitions), is not contemplated by the Constitution or the Rules.
' Undoubtedly, this Court under Article 184(3) of the Constitution has jurisdiction, that has come to be categorized as suo motu jurisdiction, but even resort thereto cannot be had to expand the scope of a review petition. Whereas new and novel concepts may be welcomed in certain disciplines the legal edifice should not be subjected to such vagaries. We must endeavour to ensure that the interpretation of the Constitution and the laws is long-lasting and sustainable. A Constitutional or legal provision once interpreted, explained and elucidated should not be lightly revised. A stable and durable legal system is built upon firm foundations.
'Ordering Hearing Afresh
11. The majority judgment concludes as under:--- "25. In such 'view of the matter there is an apparent error on the face of record. We therefore, allow the review petitions, set aside the judgment dated 19.08.2015. The Civil Petitions and the Constitution Petition shall be listed for hearing afresh."
' We had heard these matters for quite a few hours over three days (6th, 7th and 8th January, 2016) therefore I am mystified at the aforesaid outcome. If there is "an apparent error on the face of record", (in the judgment under review,) and it is "set aside" then why are the cases "listed for hearing afresh"? Neither the Constitution nor the Rules permit or contemplate this course of action and for good reason. The Bench "hearing afresh" could conclude that the judgment under review did not merit a review or negate something which had been 'decided' by the majority judgment.
The decision given after the "hearing afresh" would also be subject to review. Would the review be heard by the same Bench or yet a larger one? The judgment then under review could also be set aside and the to be reheard, as has been done by the majority judgment. As a result the legal certitude and the authoritativeness expected from the decisions of the Supreme Court undermined.
' It is also not clear whether the "hearing afresh" will include on the Bench the author of the judgment under review.
Review Petition Nos. 568 to 570 of 2015 filed by the Government of Pakistan
12. These three review petitions have been filed by the Ministry of Foreign Affairs. I enquired from the learned Attorney General for Pakistan, who was representing the petitioners, whether with regard to the Act, the provincial wildlife laws, CITES and CMS the Ministry of Foreign Affairs is the concerned Ministry? In the absence of a response, the learned Attorney General's kind attention was drawn to the Rules of Business, 1973 (enacted pursuant to Article 99 of the Constitution). The said Rules of Business distributes the business of the Federal Government "in a distinct and specified sphere"
(Rule 2(vi)) amongst the "Ministries and Divisions shown in Schedule I" (Rule 3). Matters attended to in the Act, the provincial wildlife laws, CITES and/or CMS do not fall within the domain of the Ministry of Foreign Affairs. These review petitions are therefore filed by an unconcerned and unaffected party, i.e, the Ministry of Foreign Affairs. Such filing also transgresses the Rules of Business, 1973, therefore, as these review petitions are not maintainable they are dismissed. I may observe that it is a matter of grave concern that the Ministry of Foreign Affairs is facilitating the transgression of the Act, which is a Federal law, and the wildlife laws of three provinces.
Code of Conduct for Hunting Houbam Bustard
13. The learned Attorney General and Mr. Farooq H. Naek referred to the "Code of Conduct for Hunting Houbara Bustard" ("the said Cede") issued by the Ministry of Foreign Affairs to show that .Considerable care regarding over hunting of the Houbara Bustard has been taken in the said Code. The said Code has been issued by the Deputy Chief of Protocol, Ministry of Foreign Affairs, Islamabad. As noted in the foregoing paragraph the matter did not fall within the domain of Ministry of Foreign Affairs, therefore, an officer of the said Ministry too had no jurisdiction to issue the said Code. In response to my query it was also confirmed that the said Code had no statutory backing of any law, rule or regulation. The said Code stipulates that only a hundred birds can be hunted, "through falconry and use of fire-arm is prohibited". What would be the consequence if a foreign dignitary hunts double the stipulad number or even ten times the number or uses fire- arms? Apparently nothing, because the said Code is bereft of statptory cover.
Seasonal Hunting
14. The learned law officers and other learned counsel also stated that hunting of Houbara Bustard is permitted for a very short duration and the rest of the year it is prohibited when the bird remains protected. The Houbara Bustard is a migratory specie and only winters in Southern Pakistan, having flown thousands of kilometers from colder regions. Therefore, to state that its hunting has been made permissible only for a short period is disingenuous at best, and misleading at worst. It is expected that in a technical matter, which counsel may not have requisite knowledge of, they avail basic information about the subject from experts, rather than submitting arguments which are based on incorrect technical information before the highest Court of the land.
Does the Judgment Merit a Review?
15. The review jurisdiction of this Court is a necessary one as it enables the Judges to correct material mistakes or errors in their judgments. It provides an excellent opportunity to make amends. The question which needs consideration is whether there was any material error in the judgment under review? My distinguished colleagues thought so and set aside the judgment dated 19th August, 2015 for the reasons (as stated in paragraph 23 of the majority judgment) reproduced hereunder:---
(a) "This Court while placing a complete ban on hunting of Houbara Bustard has seemingly overlooked the anomaly created by it", as the laws" do not envisage a permanent ban on hunting; and
(b) We also need to examine if a direction can by issued to the legislature by the superior Courts to legislate on a particular subject as has been so directed in the judgment under review".
16. The judgment under review (has been reported as Province of Sindh v. Lal Khan Chandio, 2016 SCM R 48) considered the provincial wildlife laws and The Pakistan Trade Control of Wild Fauna and Flora Act, 2012 ("the Act") (in paragraph 5). The Act was enacted., to give effect to the provisions of the Convention, on International Trade in Endangered Species of Wild Fauna and Flora" ("CITES").
Section 27 of the Act stipulates that, "the provision' s of this Act or rules made thereunder shall have effect notwithstanding anything contained in any other law", i.e, it would prevail over the provincial wildlife laws. However, even if the Act did not state this, Article 143 of the Constitution mandates that if a provincial law, or any part thereof, is repugnant to a Federal law the provincial law, or the contravening part thereof, shall be void.
' The majority judgment refers to the Act, but discounts it by stating, that it is, "not applicable to the present controversy". Even though it provided legal cover to CITES and the Houbara Bustard is listed in Appendix ll of CITES. The majority judgment also referred to the, "Balochistan Act, 2014 and KPK Act, 2015 [and that these two laws] recognizes CMS".
' The laws of Pakistan and of the provinces specifically recognize both CITES and CMS, which categorize Houbara Bustard respectively as "threatened with extinction" and whose conservation status is "unfavourable". The judgment under review had however noted that these laws are also backed by both Federal and provincial laws, however, certain provisions of the wildlife laws of the provinces Balochistan, Sindh and Punjab violated/infringed the Act, CITES and CMS. With respect to my colleagues no "anomaly [was] created" by the judgment under review, but the anomalies (as mentioned in the judgment) were in the wildlife laws of three provinces. In this context it Was recorded, that, "A bird's eye view of the aforesaid laws highlights the contradictions and inconsistencies in the laws of Balochistan, Sindh, Punjab and the Republic of Pakistan. The treatment meted out to this migratory bird (Houbara Bustard) will depend on where it alights in Pakistan. "
' Therefore, (in paragraph 23 (iv) of the judgment under review) it was stated that, "The Provinces to amend their respective wildlife laws to make them compliant with CITES and CMS and not to permit the hunting of any species which is either threatened with extinction or categorized as vulnerable." The need to make the laws complaint with CITES and CMS was eminently justified in view of the fact that Pakistan is a signatory to CITES and to the Convention on Migratory Species of Wild Animals ("CMS") and as these two conventions were recognized/incorporated by our laws.
' It may be mentioned that the contention of Mr. Farooq H. Naek, recorded in the majority judgment, that CMS is not ratified by the Parliament was wholly inconsequential, so too the reference to the case of Societe Generale De surveillance S.A v. Pakistan through Secretary, Ministry of Finance (2002 SCMR 1964), which is in respect of treaties that did not have any municipal law cover.
17. It is thus clear that this Court did not direct the provincial legislatures to legislate on a particular subject in a vacuum, instead to resolve the prevalent contradictions within the provincial laws and their conflict with The Pakistan Trade Control of Wild Fauna and Flora Act, 2012. If the provinces do not to make the requisite changes in their laws then the direction contained in paragraph 23(ii) of the judgment under review would remain in the field and, "Neither the Federation nor a Province can grant license/permit to hunt the Houbara Bustard". Paragraph 23(iv) of the judgment under review provided an opportunity to the provinces to permit hunting of the Houbara Bustard provided it was no longer 'threatened with extinction or categorized as vulnerable" under CITES and CMS, failing which the ban on its hunting would remain in place.
18. The majority judgment however states that the judgment under review had called upon the legislature to "legislate on a particular subject". Respectfully this was not the case, instead requisite amendments to existing laws were required to be made. Therefore, the question posed for consideration (reproduced as (b) in paragraph 15 above) did not arise. In any event there are a number of precedents of this Court wherein directions to legislate were issued. In the case of Government of Balochistan v. Azizullah Memon (PLD 1993 Supreme Court 341) this Court (the judgment was authored by Justice Shafiur Rahman) unanimously directed to "amend" laws relating to the Courts, judiciary and its officers "within a period of six months." A more recent .Example includes the case of Election Commission of Pakistan v. Province of Punjab (PLD 2014 Supreme Court 668). The unanimous judgment in this case was authored by the then Chief Justice (Tassaduq Hussain Jillani, CJ.), "direct[ting] the Federal Government to make necessary enactments to empower the Election Commission of Pakistan to carry out the delimitation of constituencies of Local Government. The Government of Punjab is also directed to make corresponding amendments in the Punjab Local Government Act, 2013". In the very recent case of Mandl Hassan v. Muhammad Arif (PLD 2015 Supreme Court 137), is another unanimous judgment, the author of which is my distinguished colleague Justice Mian Saqib Nisar and the pench included the present Hon'ble Chief Justice. This Court had directed, "to take immediate steps for [making] amendment in the provisions of Limitation Act, 1908". It is also not too long ago that the Full Court in the case of Nadeem Ahmed v. Federation of Pakistan (PLD 2010 Supreme Court 1165) had called upon Parliament to amend Article 175A of the Constitution in certain precise "terms". Since Parliament did the needful the matter concluded.
' In view of the aforesaid precedents and whilst exercising review jurisdiction, I may respectfully state that there was no reason to formulate the said question for determination.
A similar case decided by the US Supreme Court
19. In these cases though the Houbara Bustard is not arrayed as a party, who may have articulated its contentions or engaged counsel to represent it, yet we are to determine whether it can be hunted or not. Therefore, extra care is required in deciding such cases. Some of the learned counsel who sought review of the judgment categorized it as a "natural resource". One of God's creations with a beating heart cannot be described as a "natural resource". The Supreme Court of the United States of America ("US") in the case of (State of) Missouri v Holland (252 U.S. 416), decided in the year 1920, held that the State's "assertion of title to migratory birds, - an assertion that is embodied in statute" would not entitle the state to claim title in the birds:--- "To put the claim of the State upon title is to lean upon a slender reed. Wild birds are not in the possession of anyone, and possession is the beginning of ownership. The whole foundation of the State's rights is the presence within their jurisdiction of birds that yesterday had not arrived, tomorrow may be in another State, and in a week a thousand miles away."
' The Migratory Birds Treaty Act of 1918 was enacted pursuant to a treaty between the US and Great Britain which protected migratory birds. The question before the US Supreme Court was whether it could be enforced as it was contended to be an unconstitutional interference with the reserved rights of the States and which also contravened their statutes. Since the case has certain common features with the cases we heard it will be useful to reproduce the following extract from the decision of the US Supreme Court rendered by Justice Oliver Wendell Holmes:--- "Here, a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power. The subject-matter is only transitorily within the state, and has no permanent habitat therein. But for the treaty and the statute, there soon might be no birds for any powers to deal with."
20. For the aforesaid reasons there is no legal or factual justification to review the judgment of this Court dated 19th August, 2015. Consequently, all the petitions are dismissed.