1. ' WAJIHUDDIN AHMED, J.---The Society for Conservation and Protection of Environment (SCOPE), petitioner here, maintains that Houbara Bustard a wild bird, locally known as 'Taleer', is an endangered species, facing extinction because of large scale, indiscriminate and surreptitious hunting and poaching in spite of the same having been declared and specified as a `protected animal' under the Sindh Wildlife Protection Ordinance (V of 1972). Attention is drawn to the Second Schedule in such Ordinance, listing `Protected Animals', where 'all members of the OTIDAE i.e. all Bustards' faithfully find mention. Population of the bird is said to be decreasing due to overexploitation, extensive damage to habitat and other environmental disturbances. It is stated that a number of persons have been booked, arrested, prosecuted and convicted under section 7(iii) etc. of the said Ordinance. Attached as one of the annexures with the petition is a News Item in daily `Dawn' of October 27, 1991, reporting that a man was arrested and 27 Houbara Bustards were seized by the wildlife staff of Sukkur Division during checking at the Rohri National Highway and claiming that the birds are mostly trapped from Dera Ghazi Khan, Rahim Yar Khan and the Cholistan desert area for being carried to Karachi and onwards to the Gulf ,States. The sheer number is alarming because in the Identification Manual, a publication sponsored by the United Nations Environmental Programme, attached as shown below, the entire population of Houbara Bustards in Canary island is mentioned as "not more than 100 birds". The petitioner, a society registered under the Societies Registration Act, 1860, urges that Houbara Bustard is a rare species and, having been declared vulnerable, has been included in the 1990 IUCN Red List of Threatened Animals, compiled by the International Union for Conservation of Nature and Natural Resources
(IUCN) of which Pakistan is also a member, collaterally being a signatory to the International Convention prohibiting the hunting of Houbara Bustard (see Counter-Affidavit to Miscellaneous 1344 of 1992). Relevant copy of the Red List is attached with the petition. Houbara Bustard is stated to be a migratory bird and a common winter visiter to the desert areas in Pakistan, originating from the Siberian Steppes. Its hunting is completely banned under the Wildlife Ordinances of Balochistan, N.-W.F.P. and Sindh. Even so, while the laws are being scrupulously enforced as regards the citizens of Pakistan NOCs and exemptions are allegedly being issued and allowed to the Arab brothers of this nation, who are said to be fond of tracking and hunting the protected species by employing falcons. With the above-referred CA. is filed a copy of the relevant portion of the Identification Manual, Volume 2, issued by the Secretariat of the Convention on International Trade in Endangered Species of Wild Fauna and Flora, wherein trade of the Houbara Bustard is noted to be heavy from Pakistan and Morocco to the Arabian Gulf Countries, the species is shown listed in the Soviet Red Data Book, 1978, and marked reduction in population is indicated owing to excessive hunting '(Chief Quarry of Arab Falconers)'. The World Wide Fund For Nature (WWF) has, according to an annexure in the petition, engineered a campaign urging that: "there are two winter visitors to Pakistan---one is invited to kill the other", with a falcon depicted as waiting to prey on the Houbara Bustard. The General Assembly of the IUCN, noting that hunting of the Houbara Bustard is banned in neighbouring Iran and India, as it is also banned for nationals in Pakistan, in its 18th Session at Perth, Australia, in November-December, 1990, is demonstrated to have passed the following resolution:-- "Urges the range states to develop and implement a comprehensive plan to manage the migratory and resident populations of the Houbara Bustard for sustainable utilization; ' Urges, in the meantime, the Government of Pakistan to immediately enforce a complete ban on all forms of hunting of the Houbara Bustard; ' Urges the Governments of the countries of the Middle East to support the Pakistani effort at conserving this bird."
2. ' The immediate cause of grievance to the petitioner is grant of the area of Thatta District, excluding the Wildlife Sanctuary and National Park Area, for hunting purposes and training of falcons for the years 1991 to 1995 under the title: 'Hunting By Dignitaries from Dubai' to Naseer Abdullah Hussain Lotah, Director in the Office of the Prime Minister of UA.E. and Ruler of Dubai. Such permission, granted by the Secretary, Agriculture and Wildlife Department, Government of Sindh, purportedly, at the pleasure of the Chief Minister of Sindh, however, envisages that a representative of the Wildlife Department shall always travel with the referred Director on everyhunting trip and the hunting bag would be restricted to 200 birds. The petitioner contends that such permission is contrary to law and the Constitution.
3. ' While the respondents in this petition are the Federation of Pakistan, the Secretary, Ministry of Foreign Affairs, the Government of Sindh, the Conservator 'Wildlife', Government of Sindh and the Consulate General, Dubai UAE, only the Conservator of Wildlife, Government of Sindh, has submitted comments and Mr. KM. Nadeem, Assistant Advocate-General Sindh, has appeared and defended .this petition. In the comments virtually all the allegations as to facts have been admitted the legal propositions are not disputed and defence is solely entered in terms of section 40 of the Ordinance of 1972. Because interim stay was granted upon the admission of the petition an application under Order 39, Rule 4, C.P.C. (Miscellaneous 1344 of 1992) has been submitted by the respondents for recall of such orders occasioning the above CA. in which details of the alleged transgressions of Constitutional guarantees are set out.
4. ' It would, therefore, be in order now to examine the legal aspects of this matter. The Sindh Wildlife Protection Ordinance, 1972, is designed to amend and consolidate the law relating to preservations, conservation and management of wildlife in Sindh. In section 2(d) of the Ordinance 'game animal, means a wild animal specified in the First Schedule, whereas section 2(j) defines 'protected animal' as meaning a wild animal, specified in the Second Schedule. The expression 'wild animal' itself in section 2(m) signifies a wilf bird or animal specified in the First or Second Schedule. Section 7 of the Sindh Ordinance, entitled restrictions on hunting, provides that no person shall hunt any 'protected animal' or hunt any wild or game animal in any of the prohibited modes or any animal whatever with the help of decoys or call birds. Proviso (b) to the section, however, excludes from the purview of being an offence 'any one or more of the aforesaid prohibited methods if the officer authorised in this behalf grants at his discretion, a licence with permission to employ such methods'. The following section 8 in turn mandates that no person shall use hawks for hawking or dogs for coursing the 'game animals' except under a special licence issued under the Ordinance. In consequence, it is clear that there is a complete prohibition on hunting of `protected animals' and that the relaxation through the quoted proviso to section 7 extends only for the use of prohibited methods, as regards 'game animals' incidental upon a licence. Likewise, it is equally clear that while the use of 'hawks for hawking or dogs for coursing the game animals', is expressly prohibited under section 8, the special licence under such section envisions exemption only in relation to 'game animals', which alone are the subject of the section and have no bearing whatever on the hunting of any 'protected animal', hunting whereof remains absolutely prohibited under section 7(i) of the Ordinance.
5. ' Next may be approached the powers under section 40 of the Ordinance in terms whereof this petition is defended. That section in clause (i) thereof only empowers the Government, by notifications in respect of any specified area, to add to or exclude from the Schedules to the Ordinance any wild animal subject to such conditions as it may impose in each case. Even this power does not appear to be absolute, either as regards space or content, and is presumaby to be exercised justly, fairly, reasonably and lawfully and cannot be invoked in disregard of the commitments, which the State of Pakistan may have entered into at an international level, such as those which ensue upon being a member of the IUCN or a signatory to an international convention.
6. Those commitments themselves have a bearing upon Fundamental Rights guaranteed by the Constitution as also the Principles of Policy enunciated therein and even a sub-Constitutional legislation in negation, including an addition to or deletion from such legislation, seems impermissible. Mr. Muhammad Kamil Shaikh for the petitioner has aptly pointed out that the Supreme Court of Pakistan has included 'Environment' in its Scheme designed for the enforcement and protection of Fundamental and Human Rights. Besides in the Counter-Affidavit to Miscellaneous 1344 of 1992 Article 2-A of the Constitution is invoked to urge that one of the objectives of the State is to enable the people of Pakistan to attain an honoured place in the comity of nations and that the impugned action, let alone being conducive to that end, can only be counter-productive. The contention is plausible and not without merit. At any event, it is nobody's case that the Government of Sindh has modified the Second Schedule, pertaining to 'Protected Animals' or proposes to do so in spite of Constitutional and international safeguards. The licence/circular which is disputed here, is either merely a permission in terms of section 7 or a special licence under section 8 of the Ordinance and permits hawking in the given area but that as already seen may extend only to wild and game animals and not to any animals in the protected category.
7. ' The next question, which is one of fact and law mixed, may now be addressed. That question is whether the permitted hawking in this case has any implications on the protections accorded by the Second Schedule to the Ordinance to any species. The answer is simple enough. In the district of Thatta admittedly, as per the list of Wildlife Sanctuaries and Game Preserves, attached with the petition, are Wildlife Sanctuaries of Keenjhar lake, Hudero lake, Haleji lake and Bijoro Chach together with six other locations, recognized habitats of the protected bird, Houbara Bustard. The bird, for obvious reasons, being a free agent, knows no rules of confinement. It takes gigantic flights in winter from Siberia to the plains of Pakistan and beyond. It also has a local population. In varying strengths it must be and, as claimed, is found in and around the Sanctuaries and Preserves all over the district. Is it possible for the falcons, proposed to be trained in the area then, themselves knowing no boundaries or rules, to distinguish and discriminate between a protected and a wild- cum-game animal, fit for hunting, the first of which is totally prohibited whereas the second falls within tl e permissive category ? Obviously, falcons are not equipped with any such discerning device, conferred by nature or devised through human ingenuity. Falcons are birds of prey and would hunt anything anywhere within their capability and reach, if let loose to follow their natural instincts. The impugned exemption therefore, demonstrably impinges upon the statutory protection. This will dispose of also another leg of the argument of the learned Assistant Advocate- General which is to the effect that a representative of the Wildlife Board would always be in attendance to monitor the hunting expeditions. Manifestly, no amount of pious intentions, either on the part of the Wildlife staff or the licence-holder, is likely to detract the falcons from swooping on the protected species or being choicy and partial towards the game birds alone.
8. The impugned licence/circular in this case, therefore, is in dear contravention of the aims, objectives, spirit and even the letter of the Sindh Wildlife Protection Ordinance, 1972. The petition must thus succeed and Miscellaneous 1344 of 1992 correspondingly fail.
9. ' In the event, the intention behind the issuance of such licence/permission was to amend the Second Schedule to the Ordinance, so as to exclude therefrom all protected animals, something which cannot be achieved through section 40(1) ibid., for the specific purpose of the impugned circular neither the same has succeeded in that direction nor may it do so even if a proper notification had been issued, without also apparently inviting violations of the Constitutional safeguards.
10. ' For such reasons, which are recorded now, we had through a short order, dated 16-8-1992 allowed this petition in these words:-- "We allow this petition by this short order the reasons for which would be recorded subsequently by declaring the impugned circular dated 10-6-1991 allotting the area of Thatta District for the purpose of hunting and training of falcons for his 'excellency Naseer Abdullah Hussain Lotah, Director to the Office of the Prime Minister of UAE and Ruler of Dubai for the year 1991-95 as violative of the provisions of Sindh Wildlife Protection Ordinance, 1972 as amended uptodate. We further direct the respondents and their employees etc. or anyone acting on their behalf to refrain from acting under the said circular for the purpose of training of falcons or hunting."