' CH. MUSHTAQ AHMAD KHAN, J.---Through this Constitutional Petition, Mr. M.D. Tahir, a citizen of Pakistan, has prayed for issuance of directions to the respondents to restrain the public from hunting/killing/catching/confining/caging/trading and eating of meat/beaf, of Houbara Bustard (Tilor), Partridge and all kinds of other birds, animals, and to direct them to act strictly in accordance with the provisions of Wild Birds and Animals Protection Act, 1912, and the Punjab Wildlife (Protection, Preservation, Conservation and Management) Act, 1974.
2. In the writ petition report and parawise comments were called from the respondents which are reproduced as under:-- "PARAWISE COMMENTS ON WRIT PETITION NO.984/93 ENTITLED MR. M.D. TAHIR, ADVOCATE, ETC. V.
PROVINCIAL GOVERNMENT ETC. ON BEHALF OF DIRECTOR-GENERAL, WILDLIFE AND PARKS, PUNJAB, LAHORE.
' Agreed as far as their migration is concerned. No ring has ever been found on Houbara Bustard.
2. Denied to the extent that the bird is quite a fast-flier and medium in weight, Houbara Bustard falls in Schedule I, thus there is no ban on their hunting. The Department has no knowledge of their sale as no such incidence has ever been recorded in the Punjab.
3. Denied. Law is applicable to all citizens of the Punjab and there are many examples where people of the highest rank have been prosecuted.
4. Admitted.
5. Permission to hunt to foreign dignitaries is granted by the Federal Government with bag limits of 200 birds per party. As far as Press Reports are concerned, these are exaggerated.
6. No comments.
7. Government of Pakistan allows hunting of Houbara Bustard as provided in the Act/Rules.
8. The birds/animals have been categorized as protected or otherwise and the list is given in Schedules appended with Wildlife Act, 1974. The birds which are not covered in the Schedules are allowed to be caught and traded. This is untrue that the Department is not conscious of it. There are recorded facts that people dealing unlawfully in birds which are protected or where their netting is not allowed to have been prosecuted in the Court of law. Punjab Wildlife Department is doing its utmost to enforce the law of the land.
9. According to Qur'an, certain birds and animals are Halal, meaning thereby that these could be hunted as a sport and their meat could be consumed. The Punjab Wildlife Act of 1974 has been enacted keeping in view this permission granted by Allah the Almighty and it is because of this that various Schedules granting permission to hunt or protecting them from ruthless hands have been prepared. The Department within its meager resources is doing every thing to protect wildlife and classes of people are being prosecuted in the Courts of law.
10. No comments.
' As stated in foregoing paragraphs blanket prohibition is not desirable. In fact the Punjab Wildlife Act, 1974 is self-sufficient in every regard and deterrent punishment are provided for law-breakers.
(Sd.)
(N.R. Tariq)."
3. Mr. M.D. Tahir, petitioner has himself argued the petition whereas from the respondents' side, arguments have been addressed by M/s. Faqir Muhammad Khokhar and Masood-ur-Rehman Mirza, learned Deputy Attorneys-General of Pakistan and Mian Abdul Sattar Najam, Advocate- ' General, Punjab, who is assisted by Mr. Muhammad Asghar Kharal, Advocate. In support of this petition, M.D. Tahir petitioner has contended that hunting/killing/caging/trading and eating of meat/beaf of Houbara Bustard (Tilor), Titar and other birds and animals, is illegal, cruel, unjust and un-Islamic and, therefore, respondents may be directed to ban the aforementioned activities completely without there being any concession even in favour of guests from foreign countries including the princes from Saudi Arabia, UA.E. And other brotherly Muslim countries, who according to him should not be issued hunting licence at all.
4. Elaborating his argument, the petitioner has referred us to various news items annexed to this petition in order to demonstrate that hunting of birds and animals, whose species is going to become extinct in Pakistan, is excessive and cruel. He has further referred to a directive issued by the Federal Government which is mentioned in a news item appearing in Daily Mashriq dated 22- 12-1971 whereby hunting of Titar, even by President of Pakistan, was prohibited and has contended that as per his information the said directive has not so far been withdrawn, therefore, hunting of the said birds is not permissible under the law. He has also made a reference to few verses from Holy Qur'an and Ahadith in support of his contentions referred to above. According to the learned counsel killing of birds and animals amounts to their stoppage from prayers of God Almighty, and, therefore, keeping in view the injunctions of Islam, which are now a part of the Constitution of Islamic Republic of Pakistan, 1973 as per Article 2A of the said Constitution, it is the lawful duty of the respondent to completely ban hunting/killing. Etc, of all kinds of birds and animals.
5. Learned Law Officers appearing on behalf of the respondents have controverted the contentions raised by the petitioner and have contended that all- possible measures to protect wildlife are being taken by the relevant departments of the Governments, who are very much conscious and concerned of the problems highlighted by the petitioner which according to them are just imaginary, and are very well-looking after the welfare and protection of the birds and animals; that the writ petition contains reliefs which are general in nature and not suggestive of any feasibility for grant of reliefs claimed therein; that the reliefs asked for cannot be granted as being against the Injunctions of Islam; that the directive referred to by the petitioner which was issued in the year 1971 is no more in force, therefore, the writ petition is liable to be dismissed as being frivolous and vaxatious. Learned Law Officers, however, state that the Government has been and shall strictly enforce the laws which regulate hunting/slaughtering/caging/trading of animals/birds, etc., and, if any violation of the law comes or is brought to the notice of the Government, it shall be dealt with strictly in accordance with law with a very heavy hand.
6. Before embarking upon the decision of the issues raised in this petition, it will be appropriate if the relevant verses from Holy Qur'an and Ahadith, are reproduced in this judgment:- {{URDU TEXT}} Whosoever kills a bird or a creature bigger than that for no gain, shall be asked (by God) to explain for his action. When asked, "0 prophet of Allah, what is its (bird's right". He said, "it should be properly slaughtered for eating and not that its head should be chopped off and thrown away for fun", that is, it should be hunted for food only. (To hunt just for fun not permissible, as has been explained in the previous Hadith)- {{URDU TEXT}} ' The Prophet has prohibited the use of any living creature as a target. (It is not right to make a living creature a target for the sake of recreation alone).
7. We have considered the arguments addressed by the learned counsel for the parties and have perused the record. There is no cavil with the propositions Injunctions of Islam as contained in Holy Qur'an and Sunnah, which prohibit unnecessary hunting and killing of birds/animals. However, as per the same injunctions the animals and birds on earth are meant for the use of human beings for the purposes of transportation, cultivation of land and for eating. God has made hunting/slaughtering of certain birds/animals as 'Hall' whereas that of others are as `Haram'.
Hunting is only prohibited during days of pilgrimage. Refer verse No,1 of Sura Al-Maida. The mode of slaughtering/hunting has also been laid down in the Holy Qur'an and Sunnah and the laws of the country. Human beings have been permitted to eat beef/meat by hunting/slaughtering of birds/animals which are "Halal". Therefore, if directions as prayed for are issued by this Court it would amount to going against the Constitution, the laws and Injunctions of Islam as contained in Holy Qur'an and Sunnah and will amount to making "Halal" as "Haram". As regards killing/hunting of those animals which have been declared as "Haram", some of the categories are necessarily to be killed in the interest of mankind, whereas the others have to be sometimes kept in cages. Hunting and trading of animals and birds is not completely prohibited by the Constitution or any other law/directive issued by the Government or any Injunction of Islam. Therefore, the directions as prayed for if granted, will be illegal and no writ can be issued to be faster an illegality.
Viewed the case from another angle, every citizen of Pakistan has a fundamental right to enter into any trade or profession he likes, unless the same is prohibited by law. The petitioner has not been able to point out any law or Injunction of Islam which prohibits treading of animals and birds.
Therefore, no relief can be granted to the petitioner, merely on the basis of his whim and wish, who is one out of twelve crores of persons, majority of whom, who are not even parties to this petition, may not agree with him on lot many issues raised by him and who may be interested in their "protection" from the so-called "protector of their rights" as held in case of Chhetriya Pardushan Mukti Sangharsh Samiti. v. State of U.P. And others (AIR 1990 SC 2060) in which report at page 2062- 2063, it has been held as under:-- "8. Article 32 is a great and salutary safeguard for preservation of fundamental rights of the citizens.
Every citizen has a fundamental right to have the enjoyment of quality of life and living as contemplated by Article 21 of the Constitution of India. Anything which endangers or impairs by conduct of anybody either in violation or in derogation of laws, that quality of life and living by the people is entitled to be taken recourse of Article 32 of the Constitution. But this can only be done by any person interested genuinely in the protection of the society on behalf of the society or community. This weapon as a safeguard must be utilised and invoked by the Court with great deal of circumspection and caution. Where it appears that this is only a cloak to 'feed fact ancient grudge' and enmity, this should not only be refused by strongly discouraged. While it is the duty of this Court to enforce fundamental rights, it is also the duty of this Court to ensure that this weapon under Article 32 should not be misused or permitted to be misused creating a bottleneck in the superior Court preventing other genuine violation of fundamental rights being considered by the Court. That would be an act or a conduct which will defeat the very purpose of preservation of fundamental rights.
9. Having regard to the ugly rivalry here, we have no doubt that between the contestants the Court was misled and we must therefore proceed with caution. There was no fundamental right violation or could be violative if the allegations of the so-called champions on behalf of the society are scrutinised. We must protect the society from the so-called `protectors'. This application is legally devoid of any merit or principles of public interest and public protection. This application certainly creates bottlenecks in Courts, which is an abuse of process of this Court. We have, therefore, no hesitation in dismissing this application with the observations made herein."
' The petitioner in fact is pleading for "Budhism" rather than following of Injunctions of Islam and achievement of this result, hence, cannot be procured by resort to the Constitutional jurisdiction of this Court by filing of this frivolous petition which amounts to clear abuse of process of Court and sheer wastage of valuable public time.
10. As regards the prayer made in this petition that the respondents may be asked to adhere to the provisions of relevant laws on the subject, particularly issuance of Hunding permits, etc. Suffice it to say that the learned Law Officers .Appearing on behalf of the respondents have made a categorical C statement that the Government is already observing the law and will strictly follow the same in future as well, therefore, this part of the prayer also cannot be granted in view of the law declared in case of Ghulam Haider and 7 others v. S.H.O. City Police Station, Quetta and 9 others (PLD 1989 SC 479) at page 482 of the report, it has been held as under:-- "Accordingly the learned counsel urged that the Police should refrain from interfering with the petitioners' business in any manner except in accordance with law. And further that if an illegal action is taken against the petitioners they should be at liberty to proceed against the persons concerned.
6. If the petitioners were not committing any illegality and/or offence they should take up this plea before the forum where they are arraigned to answer an allegation, accusation or to face a criminal trial. Similarly, if the petitioners are not committing any cognizable offence the police will not treat so and would proceed accordingly. If despite this the petitioners have any complaint against any individual functionary of the State they can proceed against him in accordance with law for infringement of any right.
7. The second argument of the learned counsel also is too wide to be accepted as such. Petitioners cannot claim an uncontrolled unregulated right to exhibit anything/film in any manner before any audience in their business premises. Learned counsel admits that if the allegations made against the petitioners are kept in view their conduct might fall under the definition of several offences and other illegalities. He is, however, right that no accused or offender should be dealt with except in accordance with law. The argument that the police has not power to stop-prevent any illegality amounting to an offence if it is being done in their presence or within their view or knowledge cannot be accepted as presented. If, however, in so doing they (police) themselves commit an illegality offence, this can be brought to the notice of the higher law enforcing agencies, the so- called police highhandedness. This might, if other remedy fails, include at proper stage a private complaint against a Police Officer who commits any offence, of course in accordance with the prescribed procedure. The plea that the action to be taken against the petitioners has to be by a competent Authority and in a competent manner again involves questions of fact which when arising, would be dealt with by the forums and Courts concerned. It is not possible to issue a general order or writ in favour of the petitioners in this case."
11. Resultantly, we find no substance in this Constitutional petition, hence, the same is dismissed.