2026 CLC 1109

PAKISTAN ANIMAL WELFARE SOCIETY (PAWS) Versus MINISTRY OF CLIMATE CHANGE

Citation2026 CLC 1109

CourtIslamabad High Court

Judge(s)Arbab Muhammad Tahir

ORDER

ARBAB MUHAMMAD TAHIR, J.--- Through this consolidated Judgment, I intend to decide the titled petitions as they involve common questions of law and facts.

2. Pakistan Animal Welfare Society (PAWS) is a non-profit organization registered under section 42 of the Companies Ordinance, 1984 (now the Companies Act, 2017) and its aim is to highlight human responsibility towards environment and fellow species whilst seeking to protect and preserve animal populations, their integrity, diversity and welfare. Through W.P. No.3122/2021, the organization asserts that Elephants are being imported into Pakistan in violation of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (hereinafter "CITES") and the Pakistan Trade Control of Wild Fauna and Flora Act, 2012 (hereinafter "Act of 2012"). The organization has, therefore, prayed for issuance of declaration In terms that all permit applications for import of Elephants be strictly regulated under the CITES and Act of 2012; that any import permit issued without the cumulative approval of Management Authority, CITES Animal Committee and IUCN African Elephant Specialist Group be declared illegal and void ab initio ; that respondents be directed to ensure proper formation of all regulatory authorities and committees required for import of Elephants and other animals falling under CITES; that Rules 3 and 4 of the Fauna and Flora Rules, 2018 be declared ultra vires the Act of 2012 and CITES; that Notifications dated 30.06.2015, 22.10.2014 and letter 01.12.2021 be declared as void and issued in violation of the provisions of Act of 2012.

3. Dr Anis Ur Rehman has been active in the field of protecting, preserving and conserving wildlife in the country and abroad and has formerly served as Chairman of the Islamabad Wildlife Management Board (hereinafter "IWMB"), a Board, constituted under the provisions of Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance, 1979 (hereinafter "Ordinance of 1979"). Through W.P. No. 3820/2020 he asserts that respondents Nos. 1 and 2 i.e. the Secretary and Deputy Chief of Protocol, Ministry of Foreign Affairs, respectively, have issued export permits of 150 rare species of falcons in favour of the Royal Family of United Arab Emirates for personal use from the cities of Karachi, Bahawalpur, Rahim Yar Khan, Islamabad and Quetta, Pakistan to United Arab Emirates. Through the petition, he has prayed that the special permits and hunting licenses issued by Respondent No.2 be declared as illegal, unlawful and ultra-vires the Constitution; that respondent No.5 be directed to confiscate all the falcons being exported from or re-imported to Pakistan; respondents Nos. 6 to 10 be directed to refrain from any participation or authorization in the capturing of falcons in their respective provinces and territorial limits.

4. Ahmed Hassan is eleven-year old minor, student of Grade 6. He asserts to be a wildlife enthusiast with deep affection for animals and birds, an animal rescuer and regular hiker of the Margalla Hills National Park. He is aggrieved by the unregulated and illegal. wildlife trade in Pakistan, which as per the minor is not just disrupting the eco-systems but also damaging the habitat. The minor has filed W.P. No. 241/2021 through his mother, Mst. Ayesha Ramzan and has prayed for issuance of a declaration in terms that the respondents have breached their statutory/public duties and obligations for protection of eco-system and natural habitat of falcons and the same is illegal, unlawful and unconstitutional.

5. Learned counsel for the petitioners have argued that Pakistan is signatory to CITES; that the provisions of CITES have been given effect through the Act of 2012; that trade in the species included in the appendices to the CITES must be governed under the provisions of CITES and Act of 2012; that import/export of animals by way of taking them out of their natural habitats is cruelty to such animals that animals cannot be used merely for entertainment of human; the constitution of Management and Scientific authorities is not in accordance with the spirit of CITES; the import/export permits issued for specimens of species included in the appendices to CITES are not in accordance with law; no statistics of the animals imported/exported are available with either the Management Authority or Scientific Authority; without such data, it cannot be determined whether the import/export is detrimental to the survival of the specimen of species to be imported/exported; that before grant of import/export permits, the authorities did not conduct exercise regarding the sources through which such specimens to be imported/exported were acquired; that Management and Scientific Authorities should be independent rather than to succumb to a request of a foreign dignitary; that the Ministry of Foreign Affairs is not empowered to process and grant permits for export/import of specimens of species included in the appendices to CITES; neither CITES nor the Act of 2012 vests any power in the Chief Executive of the country to issue any permit certificate; the legislature has empowered the Management and Scientific Authorities to process all requests for grant of import/export permits in relation to animals mentioned in the appendices to CITES; the persons/offices included in the Management and Scientific Authorities lack the qualifications to hold the offices under the Act of 2012; the offices so notified are not Independent; the Management and Scientific Authorities should be separately established authorities with their separate secretariats.

6. On the other hand, learned counsel for the respondents have argued that; after adoption of the Revised CITES Resolution Conf. 11.20 (Rev.CoP18), import of African elephants has already come under great scrutiny; no African elephant has been imported into Pakistan since the last many years; wildlife conservation and management is a provincial subject; legislation with respect to wildlife conservation is dealt with at Provincial level; Federal Government deals only the policy matters in light of CITES; specimens of species mentioned in the appendices to CITES are dealt with in accordance with the procedure provided in CITES and the Act of 2012; the trade of wild caught live elephants included in Appendix II is permissible in appropriate and acceptable destinations; earlier a case of import of two elephants (Loxodonte Africana) was processed, however, the same was not recommended by the CITES Animals Committee; the Management and Scientific authorities have been duly constituted and functioning in accordance with the provisions of the Act of 2012; World Wide Fund for Nature Pakistan (WWF) and International Union for Conservation of Nature (IUCN) are members of the Management Authority; the Scientific Authority was notified on recommendation of the Management Authority; the Management Authority was notified after approval from the Federal Cabinet; the special permits were issued by the Ministry of Foreign Affairs after approval from the Chief Executive of the country.

7. Federal Board of Revenue in its report has submitted that Elephants fall under the Pakistan Customs Tarrif (PCT) code 0106.1900 which deals with mammals. The required data retrieved from Messrs PRAL of last three years shows no imports of elephants into Pakistan.

8. Heard. Record perused.

9. The grievances raised in the petitions revolve around enforcement of provisions of CITES and the Act of 2012. It would be appropriate to briefly survey the provisions of CITES and the Act of 2012.

10. Pakistan became party to CITES through Accession 1 in 1976. The text of CITES was finalized at a meeting of representatives of approximately eighty countries in Washington D.C., United States of America and the Convention was opened for signatures on 03.03.1973. It is also known as the Washington Convention. The countries who are signatories to CITES recognize that wild fauna and flora in their many beautiful and varied forms are an irreplaceable part of the natural systems of the earth which must be protected for this and the generations to come; that the people and the States are and should be the best protectors of their own wild fauna and flora; that international cooperation is essential for the protection of certain species of wild fauna and flora against over-exploitation through International trade and that the signatories States are conscious of the ever-growing value of wild fauna and flora from aesthetic, scientific, cultural, recreational and economic, points of view. As per contents of Article II, all species threatened with extinction which are or may be affected by trade have been included in Appendix I and trade in specimens of species included therein must be subject to " particularly strict regulation " in order not to endanger further their survival and must only be authorized in " exceptional circumstances ". All species which although not necessarily now threatened with extinction may become so unless trade in specimens of such species is subject to strict regulation in order to avoid utilization incompatible with their survival have been included in Appendix II to CITES and trade with respect thereto may be brought under effective control. Whereas, Appendix III Include all species which any party to CITES identifies as being subject to regulation within its jurisdiction for the purpose of preventing or restricting exploitation, and as needing the co-operation of other parties in the control of trade. All the parties to CITES through clause 4 of Article II agreed that they shall not allow trade in specimens of species included in Appendices I, II and III except in accordance with the provisions of the present Convention.

11. Article III of CITES regulates the trade in specimens of species included in Appendix I. It provides that export permit of any specimen mentioned in Appendix I shall only be granted if (i) Scientific Authority of the State advises that such export is not detrimental to the survival of that species, (ii) Management Authority of the State of export is satisfied that the specimen was not obtained in contravention of the laws of the State for protection of fauna and flora, (iii) Management Authority is satisfied that the living specimen will be so prepared and shipped as to minimize the risk of injury, damage to health or cruel treatment, and (iv) the Management Authority is satisfied that import permit has been duly granted for the specimen. Similarly, the import permit can only be granted if (i) Scientific Authority has advised that the import will be for purposes which are not detrimental to the survival of the species Involved, (ii) the Scientific Authority is satisfied that the proposed recipient of a living specimen is suitably equipped to house and care for it, (iii) the Management Authority Is satisfied that the specimen is not to be used primarily for commercial purpose. The re-export of the specimen Included in Appendix I has been made conditional to satisfaction of the Management Authority that the specimen to be re-exported was imported in accordance with the provisions of CITES, the specimen will be so prepared and shipped so as to minimize the risk of injury, damage to health and cruel treatment and that import permit has been granted for the specimen to be re-exported. As per Article IV, the conditions for import/export of the species included in Appendix II are almost the same with one relaxation that satisfaction of Management Authorities is not required regarding the grant of import/export permit before making such request, whereas, as per Article V, the conditions for export of species mentioned in Appendix III have been further relaxed and requires the satisfaction of the Authority that the specimen was not obtained through contravention of laws for protection of fauna and flora and that it will be so prepared and shipped as to minimize the risk of injury, damage to health and cruel treatment.

12. Article VII provides for exemptions and other special provisions relating to trade. Clause 3 of Article VII provides that the provisions of Articles III, IV and V shall not apply to specimens that are personal or household effects, however, the said exemption shall not apply where the specimens included in Appendix I were acquired by the owner outside his State of usual residence and are being imported to that State. The exemption also excludes from its ambit, the specimens of species included in Appendix II where, (i) they were acquired by the owner outside his State of usual residence and in a State where removal from the wild occurred, (ii) they are being Imported into the owner's State of usual residence and (iii) prior grant of export permit is required by the State where removal from the wild occurred. The exemption also covers those species which are included in Appendix I but bred in captivity for commercial purposes and clause 4 provides that the said specimens shall be deemed as included in Appendix II. Furthermore, clause 5 of Article VII provides that a certificate, after the Management Authority is satisfied that the specimen of an animal of species was bred in captivity, shall be accepted in lieu of any permit or certificate required under the provisions of Article III, IV or V of CITES.

13. Article VIII binds the parties to CITES to take appropriate measures to enforce its provisions and to prohibit trade in specimens in violation thereof and to (a) penalize trade in, or possession of, such specimens, or both; and (b) to provide for the confiscation or return to the State of export of such specimens. Article IX deals with Management and Scientific Authorities. Clause 1 thereof provides that each party shall designate for the purpose of CITES, (a) one or more Management Authorities competent to grant permits or certificates on behalf of that Party; and (b) one or more Scientific Authorities.

14. The Pakistan Trade Control of Wild Fauna and Flora Act, 2012 (hereinafter "Act of 2012") was promulgated with the object to give effect to the United Nations Convention on International Trade In Endangered Species of Wild Fauna and Flora, 1973. Application of the Act of 2012 is extended to the whole of Pakistan. Clause (f) of section 2 defines "Management Authority" as meaning the authority constituted under section 15, whereas, "Scientific Authority" has been defined in section 2(h) as meaning the Authority designated under section 16 of the Act of 2012. Section 3 prohibits the export, re-export and import of specimens included in the Appendices to CITES, except as provided in sections 5, 6, 7 and 9 of the Act of 2012 and makes the contravention of section 3 an offence punishable in subsection (5) thereof. The provisions of sections 5, 6, 7, 8 and 9 of the Act of 2012 are pari materia with Articles III, IV and V of CITES. The provisions of sections 11, 12 and 13 deals with the exemption provided in Article VII of CITES. Sections 15 and 16 of the Act of 2012 deal with Management Authority and Scientific authorities. For the sake of convenience, the same are reproduced below.-

15. Management Authority. For purposes of this Act, the Federal Government shall by notification in the official Gazette, designate one or more Management Authorities, with which at least one representative each from all the Provincial Government and Government of Gilgit Baltistan, shall be associated.

16. Scientific Authorities. The Federal Government, on the recommendation of the Management Authority, shall designate one or more scientific authorities, as deemed appropriate from time to time or on case to case basis, to render advice on plants and animals. The final decision on all matters related to the Convention shall rest with the Management Authority.

15. Section 27 provides that the provision of the Act of 2012 or rules made thereunder shall have effect notwithstanding anything contained in any other law for the time being in force or in any instrument having effect by virtue of any such law. Section 28 gives power to the Federal Government to make rules for carrying out the purpose of the Act of 2012. Section 29 provides that in case any difficulty arises in giving effect to the provisions of the Act of 2012, the Federal Government may, not inconsistent with the provisions of this Act, give such directions as it may consider necessary for the removal of such difficulties.

16. The Ministry of Foreign Affairs in It written comments filed on 20.01.2021, In W.P. No. 3820/2020 initially attempted to bring the export of falcons within the ambit of foreign policy, defence and security of Pakistan by maintaining that the same are not justiciable under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter the "Constitution"). In paragraph 5 of the preliminary objections, the following justification for grant of permit certificate by the Ministry of Foreign Affairs has been advanced.-

"The answering respondents, while acting as the channel of communication between the Government of Pakistan and foreign governments, receives requests from various countries including the UAE for export of birds including falcons for personal use of Muslim dignitaries. In this case, a request was received on 26th June, 2020 from His Highness Sheikh Mohammad Bin Rasheed Al Maktoum, Vice President of UAE and Rule of Dubai, which was duly placed before the Chief Executive of the country and was approved on 15th September, 2020."

17. During the course of proceedings, the representatives of the Ministry of Climate Change denied having granted any such permission as submitted by the Ministry of Foreign Affairs in its report. This Court, therefore, vide order dated 20.05.2022, restrained the Ministry of Foreign Affairs from issuing any authorization, permit or permission to import, export or re-export any specimen of species listed in Appendix I of CITES, after observing as follows.-

"A plain reading of the Pakistan Trade Control of Wild Flora and Fauna Act, 2012 clearly shows that animal species falling in the Appendix-I are prohibited in so far as import and export are concerned. Even otherwise as a statutory requirement, permission can only be granted by the Management Authority on the recommendation of the Scientific Authority. The Ministry of Foreign Affairs has no jurisdiction nor empowered to issue a permit nor to authorize import, export or re-export of any species falling in the Appendix-I of the aforementioned Convention."

18. The seven different species of falcons (Falconidae Falcons) i.e. Falco araeus, Falco jugger, Falco newtoni (only the population of Seychelles), Falco pelegrinoides , Falco peregrinus , Falco punctatus , Falco rusticolus , have been included in the Appendix I of CITES. As Article II of CITES, they are threatened with extinction and trade with respect thereto must be subject to " particularly strict regulation " in order not to endanger further their survival and must only be authorized in " exceptional circumstances ". The import, export and re-export of referred specimens are dealt with under Article III of CITES after careful consideration by the Management and Scientific Authorities established pursuant to the Act of 2012. The Management and Scientific Authorities while dealing with a request of specimens of species included in Appendix I, in addition to the conditions mentioned in Article III, must satisfy itself whether "exceptional circumstances" exist to grant an import, export or re-export permit to any person. It may further be noted that the exemptions allowed in Article VII of CITES are not to be abused to cater for the request of any foreign dignitary. In fact the requesting countries cited by the Ministry of Foreign Affairs in its second report i.e. United Arab Emirates, Qatar, Kingdom of Saudi Arabia and Bahrain are parties to CITES and are committed to enforce its provisions throughout their respective territories in letter and spirit.

19. The expressions stipulated in Article III of CITES "not detrimental to the survival of that species" and "the specimen was not obtained in contravention of the laws of the State for protection of fauna and flora" are of utmost importance. The satisfaction of the Management Authority is required before drawing such conclusions. The Ministry of Climate Change houses the Secretariat of the Management Authority in Pakistan and its reports filed throughout the proceedings are silent as on what basis the Management Authority records its Non-Detriment Findings (NDF). Nothing has been brought on record to show that NDF Regulations have been framed to be followed before granting a permit certificate. The record is also silent as to the data maintained by the Secretariat of Management Authority indicating the sustainability of the specie's population in the range State concerned maintained by the Management and Scientific authorities and compliance with the guidelines/recommendations laid down by the Conference of Parties to CITES i.e. Conf. 16.7 (Rev.CoP17), particularly paragraphs 1 (ix) and (x), which are reproduced below.- ix) the non-detriment finding is based on resource assessment methodologies which may include, but are not limited to, consideration of:

A. species biology and life-history characteristics;

B. species range (historical and current);

C. population structure, status and trends (in the harvested area, nationally and internationally);

D. threats;

E. historical and current species-specific levels and patterns of harvest and mortality (e.g. age, sex) from all sources combined;

F. management measures currently in place and proposed, including adaptive management strategies and consideration of levels of compliance;

G. population monitoring; and

H. conservation status; and x) the sources of information that may be considered when making a non-detriment finding include but are not limited, to:

A. relevant scientific literature concerning species biology, life history, distribution and population trends;

B. details of any ecological risk assessments conducted;

C. scientific surveys conducted at harvest locations and at sites protected from harvest and other impacts; and

D. relevant knowledge and expertise of local and indigenous communities;

E. consultations with relevant local, regional and international experts; and

F. national and international trade information such as that available via the CITES trade database maintained by UNEP World Conservation Monitoring Centre (UNEP-WCMC), publications on trade, local knowledge on trade and investigations of sales at markets or through the Internet for example; and b) Scientific Authorities consider, as a reference for making non-detriment findings, the information included in the Annex to document AC26/PC20 Doc. 8.4 and any subsequent updates available on the CITES website"

20. The second report filed on behalf of the Ministry of Foreign Affairs by its Deputy Chief of Protocol ( not controverted by Ministry of Climate Change ), shows that the Ministry subsequently acknowledged that it had issued the earlier permits without lawful authority. Therefore, the requests of foreign dignitaries were forwarded to the Ministry of Climate Change which after consideration granted "No Objection Certificate" on the following conditions.- i) The falcons to be imported will have authentic documents for identification (passport, microchip etc.) ii) The birds to be imported will not be exchanged and traded. iii) The same identifiable imported falcons used for hunting would be taken back upon return of dignitaries. iv) It would be transit permission as primarily the matter at hand does not relate to trade of species for commercial purposes. v) This NOC is valid for the period of Houbara hunting season (not more than four months from the date of issue).

21. The Act of 2012 has been enacted so as to give effect to the provisions of CITES. The term "No Objection Certificate" is alien to the provisions of both the Act of 2012 and the CITES. It recognizes the terms "Import", "export" and "re-export". And, before granting a permit for each category, the Management Authority ought to be satisfied that the pre-conditions contained in Articles III, IV and V of CITES read with sections 5, 6, 7 and 9 of the Act of 2012 are met so as to avoid the mischief contained in section 3 of the Act of 2012.

22. If it is a case before the Management Authority that the specimen of species included in the appendices to CITES are personal or household effects so as to avoid its regulation by Articles III, IV and V of CITES, even then the Management Authority can inquire into their mode of acquisition by the owner. As reproduced above, it was admitted by the Ministry of Foreign Affairs in reply to W.P. No.3820/2020 that the Chief Executive of the country had granted permission for export of falcons to foreign dignitaries. Neither the Ministry of Foreign Affairs nor the Ministry of Climate Change bothered to inquire into the mode of acquisition of those falcons to be exported to foreign dignitaries. Those falcons after export from Pakistan could subsequently be termed as "personal" or "household effects" so as to claim the exemptions provided in Article VII of CITES. Paragraph 1 of Article XIV of CITES "Effect on domestic legislation and international conventions" provides that the provisions of CITES shall in no way effect the right of parties to adopt ( a ) stricter domestic measures. regarding the conditions for trade, taking, possession or transport of specimens of species included in Appendices I, II and III, or the complete prohibition thereof; or ( b ) domestic measures restricting or prohibiting trade, taking, possession or transport of species not included in Appendix I, II or III.

23. In Pakistan, the possession of wild animals is regulated by different statutes i.e. the Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance, 1979; the Punjab Wildlife (Protection, Preservation, Conservation and Management) Act, 1974; the Sindh Wild-Life Protection Ordinance, 1972; the Khyber Pakhtunkhwa Wildlife and Biodiversity (Protection, Preservation, Conservation and Management) Act, 2015; and the Balochistan (Wildlife Protection, Preservation, Conservation and Management) Act, 2014. The referred statutes contain penal consequences for breach of their provisions. The inquiry into the mode of acquisition of the animals to be imported, exported or re-exported of specimens of species included in the Appendices to CITES could lead the concerned authorities to trace and identify the violators enabling their accountability under the laws in force.

24. The implementation report submitted by Pakistan for the period 2017-2018 annexed with its written reply by the Ministry of Climate Change shows that under the indicator 1.2.1 (the number of Parties that have adopted standard transparent procedures for the timely issuance of permits in accordance with Article VI of the Conventions), the reply is in "Negative" to the questions 1.2.1b ( Do you have: Electronic management system and a paper-based permit issuance system? Electronic permit information exchange between Management Authorities of some countries, If 'Yes', please list countries; Electronic permit information exchange to Management of all countries? Electronic permit data exchange between Management Authorities and customs? Electronic permit used to cross border with electronic validation by customs? ). There has also been a " negative " response to the question whether Pakistan has undertaken any reviews that species would benefit from listing on the CITES Appendices (1.4.1a) and the question "Do you have standard procedures for making non-detriment findings line with Resolution Conf 16.7?" In view of the threat of extinction to the species listed in the appendices to CITES, the Management Authority needs to frame rules/regulations to govern the mode and mechanism of NDF coupled with transparent processing of requests under the CITES based on state of the art modern computerized information management system.

25. National interest is secured through implementation of laws enacted by Federal and Provincial legislature. The deliberate defiance of duly enacted laws or facilitation of mechanisms intended to circumvent their provisions by public officials, constitutes a breach of public trust and amounts to fraud against the State. Such conduct undermines the rule of law and is inconsistent with the duties and obligations incumbent upon holders of public offices. Public functionaries are bound by the Constitution, laws, rules and regulations and violation thereof, aiding or abetment for such violation amounts to misconduct leading to consequences under the laws of discipline as well as other penalties of imprisonment and fine provided under the applicable laws.

26. Being signatory to the CITES, the State of Pakistan recognizes that wild fauna and flora in their many beautiful and varied forms are an irreplaceable part of the natural systems of the earth which must be protected for this and the generations to come. This Court in the case titled "Islamabad Wildlife Management Board through its Chairman v. Metropolitan Corporation Islamabad through its Mayor and 4 others" [PLD 2021 Islamabad 6] has observed that " The existence of the human species on this planet is dependent on other living organisms such as plants and animals. The habitats of animals are equally essential. The human civilization and its destruction of the habitat ecosystems and obliteration of species has threatened the biodiversity of the planet. The United Nations has warned that if the wildlife is not protected then its extinction would expose the human race to the risk of facing extinction. Wildlife is the most essential foundation of healthy ecosystems. The threat of climate change and its ensuing devastating consequences for the human race can only be avoided if environmental degradation and damage to ecosystems and biodiversity could be stopped. Protection and preservation of wildlife species is a precondition for meeting the challenges that stem from damage to the ecosystems and degradation of the environment. The welfare, wellbeing and survival of the animal species is the foundational principle for the survival of the human race on this planet. Without the wildlife species there will be no human life on this planet. It is, therefore, obvious that neglect of the welfare and wellbeing of the animal species, or any treatment of an animal that subjects it to unnecessary pain or suffering, has implications for the right of life of humans guaranteed under Article 9 of the Constitution. The Constitution of the Islamic Republic of Pakistan, 1973 guarantees the right to life of every person. The right to life is the most fundamental amongst human rights. The august Supreme Court in the case titled "Ms Shehla Zia and others v. WAPDA" [PLD 1994 SC 693) has observed and held that the word life is very significant because it covers every facet of human existence. "Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally". Cruel treatment and neglect of the wellbeing of an animal in captivity, or exposing it to conditions which do not meet the animals behavioural, social and physiological needs, is an infringement of the right to life of humans ."

27. Insofar as import of elephants (Loxodonte Africana) into Pakistan is concerned, the Federal Board of Revenue in its report has submitted that during the last three years no elephant has been imported into Pakistan. It is significant to note that the jurisprudence laid down by this Court in "Islamabad Wildlife Management Board through its Chairman v. Metropolitan Corporation Islamabad through its Mayor and 4 others" [PLD 2021 Islamabad 6) is in field. Subjecting animal to unnecessary pain or suffering by removing it from its natural habitat is infringement of the right to life guaranteed under Article 9 of the Constitution. The destruction and loss of habitat also violates the fundamental right to life of a human.

28. The petitioner In W.P. No. 3122/2021 has assailed vires of Rules 3 and 4 of the Pakistan Trade Control of Wild Fauna and Flora Rules, 2018 (hereinafter "Rules of 2018" ) and the notifications dated 30.06.2015, 22.10.2014 and letter, dated 01.12.2021 on the ground that they are in conflict with the parent statute i.e. the Act of 2012. For the sake of convenience, Rules 3 and 4 of the Rules are reproduced below.-

"3. Management Authority.--- (1) For the purposes of this Act the Management Authority shall be as follows, namely:

S. No.

Organization

Designation

(1)

(2)

(3)

Federal Minister of the Division concerned

Chairman

Secretary of the Division concerned

Vice-Chairman

Inspector General Forests

Member-cum-Secretary

Secretary, Forest, Wildlife and Punjab Fisheries Department Government of Punjab

Member

Secretary, Forest and Wildlife Department, Government of Sindh

Member

Secretary, Environment Department, Government of Khyber Pakhtunkhwa

Member

Secretary, Forests and Wildlife Department, Government of Balochisan

Member

Secretary, Forests, Wildlife and Fisheries Department, Government of Azad Jammu and Kashmir

Member

Secretary, Forest, Wildlife and Environment Department, Government of Gilgit-Baltistan

Member

Chairman, Capital Development Authority

Member

A representative not below the rank of regional head from International Union for Conservation of Nature and Natural Resources-Pakistan (IUCN-Pakistan)

Member

A representative not below the rank of Director of World Wide Fund for Nature (WWF-Pakistan)

Member

A prominent Non-Official member of civil society from each province or territory nominated by the Division concerned on the recommendation of the province or territory concerned

Member

(2) The Management Authority shall meet at least once a year unless earlier required.

(3) The Division concerned on the recommendation of Management Authority shall designate an office to provide secretariat support including interagency coordination.

(4) The Management Authority shall perform all the requisite duties under the Act and which includes the following, namely:-

(a) to consider issuing of licence or permit or certificate throughout Pakistan relating to import, re-export and certificate of origin of any species listed in any Appendix of the Convention and the local legislation or policy, and to attach any condition to any permit or certificate that it may deem necessary;

(b) to seek and act on the advice of Scientific Authority to exercise its functions relating to implementation of the Act and the rules made thereunder;

(c) to communicate with the CITES Secretariat and the management and Enforcement Authorities of other Parties to the Convention on scientific, administrative, enforcement and other issues related to implementation of the Convention;

(d) to maintain records of international trade in specimens, as per the provisions of section 22 of the Act, and prepare an annual report concerning trade, and timely submit this report to the Convention Secretariat;

(e) to prepare a biennial report on legislative, regulatory and administrative measures taken to enforce the Convention, and timely submit this report to the CITES Secretariat;

(f) to coordinate national implementation and enforcement of the Convention and these rules and to cooperate with relevant Federal and Provincial authorities and other stakeholders in this regard;

(g) to consult with the Scientific Authority on the issue and acceptance of Convention documents, the nature and level of trade in species listed in the Convention, the setting and management of quotas, the registration of traders and production operations, the establishment of rescue or Rehabilitation Centers and the preparation of proposals to amend the Convention Appendices;

(h) to represent Pakistan at national and international meetings related to Convention and any related matters;

(i) to develop and provide awareness-raising, capacity-building, training, education material and information related to the Convention;

(j) to advise on designation of one or more rescue or rehabilitation center for seized and confiscated living. specimens;

(k) to provide capacity building opportunities and any other facility or resources to any confiscating authorities including return of the confiscated consignment from other country, and safe-keeping and release into wild of the live specimen;

(l) in consultation with Scientific Authority and Convention secretariat, provide necessary advice or instruction Including resources for safe disposal of confiscated consignment of dead specimen or derivatives;

(m) to provide technical advice to the court of law and to enforcement authority in any matter under the Act and these rules;

(n) to coordinate requirements and allocation of annual export quota allotted to provinces and other territories; and

(o) to perform any other function which the Federal Government may authorize to carry out the objectives of the Act.

4. Scientific Authority.--- (1) A Scientific Authority may be constituted in each Province and region of Pakistan with Provincial Forest and Wildlife Department as its focal point. The Scientific Authority may include the following on the basis of requisite scientific information, namely;

(i). Department of Zoology of relevant universities in the Province or region;

(ii). Department of Botany of relevant universities in the Province or region;

(iii). Fisheries departments, Inland Marine;

(iv). Independent Wildlife and Forestry experts or researchers; and

(v). Any other relevant agency individual

(2) The Scientific Authority shall render advice after consultation with the relevant scientific experts or agencies to the Management Authority as required by the Convention."

29. It has been argued that the above rules are in conflict with sections 15 and 16 of the Act of 2012. For the sake of convenience, the same are reproduced below.-

"15. Management Authority. For purposes of this Act, the Federal Government shall, by notification in the official Gazette, designate one or more Management Authorities, with which at least one representative of each from all the Provincial Government and Government of Gilgit-Baltistan, shall be associated."

30. It has been pleaded that inclusion of other officials of the same Provincial Department in addition to the Secretaries of Provincial Wildlife and Fisheries Departments in the Management Authority is in conflict with the spirit of section 15 of the 2012 Act; that letter dated 01.12.2021 has the effect of appointing Scientific Authorities, that too without approval of the Federal Government as mandated under section 16 of the Act of 2012; that function of the Scientific Authorities is to provide expert scientific advice and recommendations to the Management Authority regarding specific species of animals or flora and fauna, etc., however, the acts and omissions of the respondents have rendered the statutory provisions ineffective; that members of the Scientific Authorities simultaneously hold membership of Management Authority, rendering both the forums virtually ineffective; that officials of the Scientific Authorities furnish recommendations to the Management Authority and the same officials then approve the same in a different capacity; that both the forums are required to be independent of each other and that the decisions of both the forums must reflect transparency.

31. Section 15 of the Act of 2012 vests the power in the Federal Government to designate one or more Management Authorities through a notification in the official gazette, associating at least one representative each from all Provincial Government and Government of Gilgit-Baltistan. Furthermore, section 16 of the Act of 2012 empowers empowers, the Federal Government to designate one or more Scientific Authorities, on recommendation of the Management Authority, as deemed appropriate, from time to time on case to case basis to render advice on animal and plants. It is thus clear that the power to appoint a Management Authority as well as Scientific Authority vests in the Federal Government. The same is, however, subject to recommendations of the Management Authority in case of appointment of a Scientific Authority.

32. Rule 3 of the Rules shows constitution of the Management Authority. As disclosed in the beginning of the Rules, the same have been framed with the approval of the Federal Government and is thus squarely in accordance with the spirit of the Section 15 of the Act of 2012. Insofar as Rule 4 of the Rules is concerned, the same is in the nature of prescribing guidelines for appointment of a Scientific Authority. It can be construed that the Federal Government by enacting Rule 4 of the Rules has regulated its discretion as to the manner of designating Scientific Authorities. The same shall in no way be construed as approval of the Federal Government to designate a Scientific Authority or its constitution. The power of the Federal Government to designate a Scientific Authority has been subjected to recommendation of the Management Authority on case to case basis. To explain further, the designation/constitution of each Scientific Authority has to be on case to case basis after the same has been expressly recommended by the Management Authority to the Federal Government.

33. The principles and law governing the question as to whether any provision of the delegated legislation is ultra vires the parent statute are as follows.-

"Farrukh Raza Sheikh v. The Appellate Tribunal Inland Revenue and others" [2022 SCMR 1787]

"It is trite law that Rules cannot override the specific provisions of the parent statute. The Rules are to carry out the purposes of the Ordinance and cannot offend, oppose or be inconsistent with the provisions of the parent statute (Ordinance in this case). Any rule to the extent of any inconsistency with the parent statute is, therefore, ultra vires of the parent statute."

"Zarai Taraqiati Bank Limited and others v. Said Rehman and others" [2013 SCMR 642]

"The "rules" and "regulations" framed under any Act are meant to regulate and limit the statutory authority. All statutory authorities or bodies derive their powers from statutes which create them and from the rules or regulations framed thereunder. Any order passed or action taken which is in derogation or in excess of their power can be assailed as ultra vires. Rules and regulations being forms of subordinate legislation do not have substantial difference as power to frame them is rooted in the statute. Statuary bodies are invariably authorized under the Act to make or adopt rules and regulations not inconsistent with the Act, with respect to such matters which fall within their lawful domain to carry out the purpose of the Act."

"Suo Motu Case No.11/2011, in the matter of National Police Foundation Land" [PLD 2014 SC 389]

"Rule making body cannot frame rules in conflict with or in derogation of the substantive provisions of the law or statute, under which the rules are framed. Rules cannot go beyond the scope of the Act. No rule can be made which is inconsistent with the parent statute, whereas, no regulation can be framed which is inconsistent with the parent statute or the rules made thereunder and the provisions of these rules or regulations, as the case may be, to the extent of such Inconsistency with the parent statute or rules shall be void and inoperative."

"Mian Zaiuddin v. Punjab Local Government and others" [1985 SCMR 365]

"Rule framed under statute could not go beyond and overreach statute itself. To make Implementation of statutory provision, consistent harmonious directly effect must be given to requirement of Rule.

"Khawaja Ahmed Hassan v. Government of Punjab and others" [2005 SCMR 186]

"If the rules framed under the statute are in excess of the provisions of the statute or are in contravention of or inconsistent with such provisions then those provisions must be regarded as ultra vires or the statute and cannot be given effect to. It was further held in the aforesaid case that: In the case of statutory rules the Court can always examine the question as to whether the same are Inconsistent with the statute under which they are made."

34. On the touchstone of the above principles and law, nothing has been pointed out that rules 3 and 4 of the Rules are directly and substantially in conflict with sections 15 and 16 of the Act of 2012 or they have been framed beyond the authority delegated by the parent statute. As highlighted above, rule 3 of the Rules deals with constitution of the Management Committee by the Federal Government which is in compliance with Section 15 of the Act of 2012, whereas rule 4 of the Rules is in the nature of regulating the procedure of constituting Scientific Authorities. Both the impugned provisions of the Rules, in their present form, are neither in conflict nor in excess of the power delegated by the Parliament through the Act of 2012.

35. In the instant case, the respondents have placed on record copy of Notification, dated 30.06.2015, whereby the Scientific Authorities have been designated. The Notification, dated 30.06.2015 is reproduced below.-

"S.R.O. (I)/2015- In pursuance of section 16 of the Pakistan Trade Control of Wild Fauna and Flora Act, 2012 (XIV of 2012), and as decided at the meeting of CITES Management Authority held on 27th May, 2015, Ministry of Climate Change are pleased to designate following offices as CITES Scientific Authorities:

(i). Office of the Conservator Wildlife, Ministry of Climate Change, Islamabad.

(ii). Punjab Forest, Wildlife and Fisheries Department.

(iii). Sindh Forest and Wildlife Department.

(iv). Khyber-Pakhtunkhwa Environment Department.

(v). Balochistan Forests and Wildlife Department.

(vi). AJ&K Forests, Wildlife and Fisheries Department.

(vii). Gilgit-Baltistan forest, Wildlife and Environment Department.

2. The term of reference of the said Scientific Authorities shall be to: o Advice CITES Management Authority whether export of specimens would be detrimental to the survival of the species in the wild; o Gather and analyze information on biological status of species affected by trade to assist in preparation of proposals to amend the Appendices; o Review proposals to amend the Appendices submitted by other parties; o Advice Management Authority on the safe disposal of confiscated live specimens."

(Highlighted and underlined to add emphasis)

36. A plain reading of the above notification, dated 30.06.2015 shows that the same has been issued with "pleasure" of the Ministry of Climate Change and Management Authority . Section 16 of the Act of 2012 requires that the case for designation of Scientific Authority shall be recommended by the Management Authority to the Federal Government and the latter is the final authority to grant approval. Contrary to the unambiguous provisions of section 16 of the Act of 2012, the impugned Notification, dated 30.06.2015 has been Issued with "pleasure" of the Ministry of Climate Change and the Management Authority, rather than with the approval of the Federal Government.

37. In order to constitute/designate a Scientific Authority, it is obligatory upon the Management Authority to forward recommendations to the Federal Government for approval, on case to case basis. The power vested in the Federal Government is meant to be exercised by the same forum, rather than by the Ministry of Climate Change which is the secretariat to facilitate the process of approval and the Management Authority vested with power to forward recommendations to the Federal Government for designation of Scientific Authority. The notification, dated 30.06.2015, whereby Scientific Authorities have been designated, has not been issued with the approval of the Federal Government; therefore, the same along with all other notifications Issued in pursuance/continuation thereof have been issued in excess of the power conferred by the Act of 2012; the same are legally not sustainable and liable to be set aside.

38. This Court while referring to the Shehla Zia's case, in Islamabad Wildlife Management Board's case supra has held that cruel treatment and neglect of the wellbeing of an animal in captivity, or exposing it to conditions which do not meet the animals behavioural, social and physiological needs, is an infringement of the right to life of humans. The recent amendment in the Constitution i.e. insertion of Article 9A through the Constitution (Twenty Sixth Amendt.) Act, 2024 serves a pivotal recognition of the right to a clean, healthy, and sustainable environment as an enforceable fundamental right. This right is closely Interlinked with Article 9, which guarantees the right to life and liberty. The Hon'ble Supreme Court has interpreted Article 9 of the Constitution in a broad and progressive manner, extending its ambit to include the right to a dignified life, encompassing access to unpolluted air, clean drinking water, and a safe living environment. The constitutional recognition of environmental rights under Article 9A further consolidates this jurisprudence by imposing a binding obligation upon the State to ensure environmental justice and to take affirmative steps for the preservation and restoration of ecological balance. Environmental sustainability is vital for ensuring long-term public health, economic resilience, food security, and climate stability. The constitutional mandate now places a legal duty on all tiers of federal, provincial and local governments to enact, implement, and monitor policies that prioritize environmental conservation. Moreover, a clean, healthy, and sustainable environment is no longer a policy preference but a constitutionally protected entitlement, an enforceable right.

39. In view of the above, it is directed as follows.- a) The import, export and re-export of specimens of species included in the Appendix I, II and III of CITES (Including falcons and elephants) shall strictly be regulated in accordance with the provisions of CITES and the Act of 2012. b) The term "No Objection Certificate" is allen to the provisions of the Act of 2012 and CITES. The relevant laws mandates the Management Authority to grant permit certificate for import, export or re-export under Article VI of CITES that too subject to fulfillment of the pre-conditions stipulated in Articles III, IV and V thereof. The Import/Export Policy Orders have been suitably amended pursuant to orders of this Court during these proceedings. It, however, introduced the expression "NOC" alongside "permit". As discussed above, the CITES as well as the Act of 2012 provides for issuance of permits, therefore, the word "NOC" used in the Import/Export Policy Orders, being inconsistent with the referred statutes, shall be read down, having no legal effect. Henceforth, the import, export or re-export of the specimens of species included in the appendices to CITES shall only be allowed through validly issued permits by the appropriate forums under the relevant law. c) The Secretariat, of Management Committee is directed to establish transparent mechanism based on modern Information management system for processing of the requests for import, export or re-export, etc. of specimens included in the appendices to CITES. d) Pursuant to Article XIV of CITES, the Management Authority shall summarily inquire into the mode of acquisition of each specimen of species included in the appendices to CITES before import, export and re-export even if it falls within the exemptions contained in Article VII thereof. In case during the inquiry it transpires that such specimen was obtained in contravention of the applicable law, then to ensure that the violator is proceeded against in accordance with law. e) The CITES as well as the Act of 2012 do not recognize roles of the Ministry of Foreign Affairs or any other person/entity in isolation, unless included in the Management or Scientific authorities. As admitted by the Ministry of Foreign Affairs, the export permits issued in contravention of CITES as well as the Act of 2012 are without lawful authority and are hereby set-aside. f) Notification, dated 30.06.2015, and all notifications issued in continuation thereof regarding designation of Scientific Authorities have been issued in contravention of section 16 of the Act of 2012. The same are hereby set aside. The Secretariat of the Management Authority is directed to expedite the process of designating Scientific Authorities strictly in line with section 16 of the Act of 2012, which mandates approval of the Federal Government i.e. Federal Cabinet. This Court expects that Scientific Authorities shall include independent experts from the relevant fields.

40. The petitions are, therefore, accordingly disposed-of .

MH/170/Isl Order accordingly.

1 https://treaties.un.org/Pages/showDetails.aspx?objid=0800000280105383 .