MIAN SAQIB NISAR, J.- Through the aforesaid 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 Nos. 250/2015 and CMA No. 1435/2015 in CP No. Nil/2015 filed by the Federation of Pakistan through M/O Foreign Affairs, Civil Petitions Nos. 253 and 574 of 2015 filed by one Atta-ur-Rehman, Civil Petitions Nos. 20-Q 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. No. 17 & 347 of 2011; Civil Petition No. 145/2015 filed by Province of Sind, 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 season 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 protected 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 Maroof Akhtar is allowed in the following terms:
(i) 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 conservation. 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 Bustard. Learned Attorney General, therefore, submitted that Para 23 (ii) of the judgment be reviewed to the extent it allows 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 tiled Al-Jehad Trust through HabibulWahab Al-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 HafeezPirzada, 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 tiled 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 malafide 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 laws 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 tiled Abdul Ghaffar-Abdul 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 deducable:
(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;
(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 simpliciter 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 the under the Supreme Court Rules, its 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 endeavor 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-III 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 borders so as not to endanger their survival any further. In this regard the Pakistan Trade Control of Wild Fauna and Flora Act, 2012 (Act, 2012) has been promulgated. Both CITES and Act, 2012 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 illegal 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 (lll) 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 trichotomy 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 HabibulWahab Al-Khairi, advoccat 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. {{Data misarranged}}CHIEF JUSTICE JUDGE JUDGE JUDGE JUDGE Announced in open Court on at Not Approved For Reporting Waqas Naseer/*{{Data missarranged}} ORDER OF THE COURT By majority of four to one (Qazi Faez Isa, J. dissenting), it is held that 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.