SOHAIL NASIR, J. Animal rights is the philosophy according to which some, or all, animals are entitled to the possession of their own existence and that their most basic interests like that they should be afforded the considerations similar to interests of human beings. Some species of animals have the right to be treated as individuals, with their own desires and needs, rather than as unfeeling property . In its landmark judgment The Islamabad High Court Islamabad on animal rights was pleased to observe that: - i. After surveying the jurisprudence developed in various jurisdictions it has become obvious that there is consensus that an 'animal' is not merely a 'thing' or property . ii. There is also no dispute regarding the fact that no animal deserves to be subjected to cruel treatment. iii. Animals have emotions and Happy had also successfully cleared the mirror test. iv. Do the animals have legal rights? The answer to this question, without any hesitation, is in the affirmative. v. A living being on the other hand has rights because of the gift of 'life'. An animal undoubtedly is a sentient being.
It has emotions and can feel pain or joy. By nature each, specie has its own natural habitat. They require distinct facilities and environments for their behavioural, social and physiological needs. This is how they have been created. vi. Like humans, animals also have natural rights which ought to be recognized. It is a right of each animal, a living being, to live in an environment that meets the latter's behavioral, social and physiological needs. vii. State and its functionaries to ensure that these rights are not infringed. It is also a natural right of every animal to be respected because it is a living being, possessing the precious gift of 'life'. viii. It is a natural right of an animal not to be tortured or unnecessarily killed because the gift of life it possesses is precious and its disrespect undermines the respect of the Creator .1 2 ix. Subjecting an animal to unnecessary pain or suffering is an infringement of the right to life.
X. The State is responsible to ensure that no animal is treated in violation of the provisions the law .
2. Although the matter before this Court relates to controversy on superdari of two Black Bears (the Bears) , but to my mind it also involves the question of their rights, who were illegally detained by Tahir Abbas/respondent No. 3 (contesting respondent) . On 08.02.2021 the Wildlife Authorities conducted a raid at Adda Sokar Minor , Tehsil Yazman district Bahawalpur . They recovered and seized the Bears as they fall within the category of 'Protected Animal' , in exercise of the powers conferred to the Authorities under the provisions of The Punjab Wildlife (Protection, Preservation, Conservation and Management) Act (II of 1974), duly amended by way of The Punjab Wildlife (Protection, Preservation, Conservation and Management) (Amendment) Act, 2007 (the Act).
3. Contested respondent filed an application for superdari of the Bears , which was dismissed vide an order dated 24.02.2021 passed by learned Area Magistrate Yazman. Being dissatisfied from that order , contesting respondent approached the learned Additional Sessions Judge Yazman through a criminal revision, which was allowed with direction that the Bears shall be released on superdari in his favour .
4. The State (petitioner) has assailed the order of learned Additional Sessions Judge on the strength of this writ petition filed under Article 199 of the Constitution of Republic Islamic of Pakistan, 1973.
5. Learned APG contends that the impugned order suffers from serious illegality as contesting respondent had no license to retain the Bears but this fact was not taken into consideration by the learned Additional Sessions Judge.
He further maintains that learned Judge has exceeded the jurisdiction that was not vested upon him.
6. On the other hand learned counsel for contested respondent argues that his client is having lawful permission issued by the competent authority to retain the Bears . He further contends that although permission had expired at the end of December of 2016 but contesti ng respondent had asked for its renewal, so it will be presumed that same has been granted to him.
7. HEARD
8. Under the Act there are four kinds of animals called as 'Game 'Animal' 'Protected Animal' 'Wild Animal' and 'Unprotected Animal' . These are defined as under: - 2(d) "Game animal" means a wild animal specified in First Schedule.
2(n) "Protected animal" means a wild animal specified in the Third Schedule.
2(s) "W ild animal" means a wild bird or animal specified in the First, Second, Third and Fourth Schedules.
2(v) "Unprotected animals" means a wild bird or wild animal specified in the Fourth Schedule.
9. The word 'Wild' has not been defined under the Act, which according to Cambridge Dictionary means 'uncontrolled, violent, or extreme '. In Oxford Dictionary it has been defined as 'living or growing in the natural environment; not domesticated or cultivated' .
10. The Black Bear is shown at serial No. 59, Heading-B 'MAMMALS' in Third Schedule of the Act. Section 12(1) of the Act imposes a restriction to have the possession of any 'wild animal' except under a license. It says as:- "No person shall be in possession of any wild animal unless he be in posse ssion of a certificate of lawful possession granted in respect thereof by the officer authorised in this behalf"
11. Learned counsel for contesting respondent during the arguments has produced a notification issued by the Deputy Director Wildlife Headquarter , Lahore and maintains that contesting respondent was retaining the Bears under a valid permission. I have gone through this document which is as under: - NOTIFICA TION Under the powers vested vide section 20(d) of The Punjab Wildlife (Protection, Preservation, Conservation and Management) (Amendment) Act, 2007 and in consideration of prescribed registration fee of Rs.10000/- deposited in the National Bank of Pakistan, Bahawalpur vide bank challan no. 36 dated 27.07.2016, Tahir Abbas private wildlife breeding farm, Chak no. 51, D. Yazman district Bahawalpur , as detailed below is hereby registered for the year 2016. This registration is valid up to 31st December , 2016 and further extendable subject to satisfactory report from Deputy Director W ildlife Bahawalpur Region Bahawalpur .
Locality Area in AcreTehsil and District3 4 Tahir Abbas Private wildlife breeding farm, Chak no. 51 D.
Yazman District Bahawalpur10 Acres Tehsil Yazman district Bahawalpur
12. Section 20(D) of the Act is also relevant for further discussion and reproduced as under: - "Private game reserve, wildlife park and safari park.- (1) Where the Government is satisfied that-
(a) .....
(b) .....
(c) .....
(d) a collection of wild animal has been kept over an area of land dedicated by its owner or owners, for the purpose of breeding, sale and exchange, it may, on the application of the owner or the owners, as the case may be, by notification in the official gazette, declare such area to be a private wildlife breeding farm; and
(e) .....
13. The provisions empower an officer to declare a property as private wildlife breeding farm. Use of the words "a collection of wild animal has been kept over an area of land" does not mean that whatever the wild animal is there, that shall be deemed to be under a license because for keeping the wild animal the provisions of Section 12(1) of the Act (ibid) prevail as it says in clear words that 'no person shall be in possession of any wild animal unless he be in possession of a certificate of lawful possession granted in respect thereof by the officer authorised in this behalf '.
The declaration of private wildlife breedin g farm will not be a declaration of permission to keep the wild animal and for that one has also to apply for a license. It is also important to mention here that Section 20(D) has no overriding effect to the provisions of Section 12(1) of the Act. Therefore, a person for two independent rights has to obtain two independent permissions under two independent provisions.
14. For the sake of arguments, if it is presumed that the notification (supra) was a license to keep the wild animal, even then contesting respondent cannot take its protection for the reason that life of said notification was up to 31st December 2016. This is beyond my imaginations that how learned Additional Sessions Judge in the impugned order observed that 'so far as its expiry is concerned, applicat ion of the petitioner is pending before the competent authority for renewal of the same which is not yet decided' because no such proof has been produced before this Court by the contesting respondent. Again, if it is accepted that any petition for renewal/extension is lying before the Authority , it cannot be presumed that same has been granted. The word 'valid' means 'to have legal force' and when validity is up to a specified date like the case in hand, it means that 'its legal force will continue till that date only' and thereafter it is an expired document which can be termed as just a piece of paper nothing more noting less for the reason that the word 'expire' about a document shall means 'to be no longer legally acceptable because the period of time for which it could be used has ended.'
15. It has also been argued that Black Bear is not a wild animal by its habit and it too is not dangerous to human lives, so if released on superdari to contesting respondent, it will cause no injustice to petitioner .
16. When the law has declared the Black Bear, as wild animal, how the Court can declare it otherwise? A wild animal means that it is not tame and it lives on its own without any help from people. It finds its own food, shelter , water and all its other needs in a specific natural habitat. Habitat can be a field, woods, pond, wetland and Prairie Park .
17. Coming to the question that a Black Bear is not a dangerous animal, it depends on case to case. A study on Black Bear shows that it is at umber 7 out of first nine World's Deadliest Mammals . Although black bear's fatal attacks are generally rare, especially when compared to other bear species, they are still wild animals and can be extremely dangerous.
18. Finally , I cannot restrain myself to hold that by retaining the Bears , without any legal authority , the contesting respondent has infringed their rights who in given circumstances, after 2016, were supposed to be kept in a well protected environment by the wildlife Authorities as the preamble of the Act is to provide for the protection, preservation, conservation and management of wildlife, where they can be facilitated with better food, water , shelter , space to survive and medical treatment.5 6 7
19. Mr. Muhammad Anwar , the learned Magistrate with powers Section 30, Yazman had passed a well-reasoned order by taking into consideration the facts, law, and the expired notification produced by the contesting respondent in particular by referring the rights of the Bears as: - "It is also worth mentioned here that Government of the Punjab has properly mana ged the wildlife parks as well as Zoo in the Province to keep such type of wild animals in safe custody , where these animals were properly look after through competent veterinary doctors and others staff"
20. There was no occasion for the learn ed Additional Sessions Judge, for interference in the order of learned Magistrate, while exercising his jurisdiction under Sections 435/439-A Cr.P.C hence he committed serious illegality by allowing the superdari on a wrong assumption that till the application for renewal is decided, contesting respondent is entitled for interim custody of the Bears .
21. Resultantly , this writ petition succeeds and allowed . The order dated 04.03.2021 passed by the learned Additional Sessions Judge Yazman is set aside whereas the order of learned Magistrate is restored . https://en.wikipedia.org/wiki/Animal_rights Islamabad Wildlife Board through Chairman vs. Metropolitan Corporation Islamabad through Mayor &4 others PLD 2021 Islamabad 6 https://dictionary .cambridge.org/dictionary/english/wild https://www .lexico.com/definition/wild https://www .oxfordlearnersdictionaries.com/definition/english/expire https://www .eekwi.org/animals/leave-wild-animals-wild https://www .britannica.com/list/9-of-the-worlds-deadliest-mammals