ISLAMABAD - The Supreme Court, setting aside its own judgment, yesterday allowed the hunting of vulnerable migratory bird, houbara bustard, by a majority of 4-1 votes, with a dissenting note by Justice Qazi Faez Isa.

The court order stated that “by majority of four to one (Qazi Faez Isa, J dissenting), it is held that there is an apparent error on the face of record”. “We, therefore, allow these review petitions, set aside the SC judgment of dated August 19, 2015,” it added.

The five-judge bench, headed by Chief Justice Anwar Zaheer Jamali, set aside the earlier judgment, passed by a three-member bench headed by Chief Justice Jawwad S Khawaja on August 19, 2015.

The three-member bench had banned the hunting of migratory bird after cancelling the licences/permits granted by the Ministry of Foreign Affairs to the Sheikhs of Gulf states. It ruled: “Neither the federation nor a province can grant a licence/permit to hunt the houbara bustard.”

The bird is prized by hunters from the Middle East, who consider the bird’s meat an aphrodisiac. Wealthy hunting parties from the Gulf travel to Balochistan every winter to kill the houbara bustard using hunting falcons.

The federal, Punjab, Sindh and Balochistan governments filed review petitions against that verdict. They prayed to the apex court to allow sustainable hunting and contended that it should be the authority of the government to grant licences and permits for the hunting of houbara.

Former Supreme Court Bar Association President Kamran Murtaza said under Order XXVI Rule 8 of the Supreme Court Rules, 1980, the review has to be heard by the bench which passed the judgment. He contended no ground for review had been made out.

Justice Dost Muhammad, who was a member of the three-judge bench, was not included in the larger bench which heard the review petitions.

Red list of International Union for the Conservation of Nature and Natural Resources (IUCN) places houbara bustard in the category of “vulnerable” below “near threatened” above “endangered”, “critically endangered”, “extinct in the wild” and “extinct” categories.

The judgment said: “The IUCN recognises sustainable use of the natural resources. Local communities play a pivotal role in the conservation of the species and without its involvement no conservation effort can be successful.”

Houbara bustards arrive in Pakistan with the start of winter from the Central Asian regions. They come in a large number from Mongolia, Siberia and Central Asian Republics in November and December and return in March and April. About 25,000-35,000 birds enter Pakistan from the Central Asian states and China’s Sinkiang province as the temperature drops below freezing point in those areas.

The judgment said all the provinces had their laws to protect, preserve, conserve and manage wildlife.

The laws of Punjab, Sindh and Balochistan categorised wildlife into protected and game animals. Hunting of the protected animals is prohibited whereas licence is required to hunt game animals.

Under these laws, the court ruled the governments of respective provinces were empowered to grant exemption from hunting and capturing of any animal as well as enjoy power to remove any animal from the protected list and to place it in the category of game animal and vice versa.

The judgment noted the International Convention on the Conservation of Migratory Species of Wild Animals (CMS) did not in a way cast a duty upon the federation or the provinces to place a ban on the hunting of the species having unfavourable conservation status. It only endeavours for the range states to enter into bilateral or multilateral agreements or treaties for the conservation of such migratory species, the judgment said.

The CMS requires range states to take measures to control and manage the hunting of the migratory species and adopt procedures for coordinating actions to suppress illegal hunting.

The judgment, taking support of the Sindh government counsel, Farooq H Naek, that the parliament had not ratified the CMS, said the international treaties and conventions unless incorporated in the municipal laws could not be enforced domestically.

The court noted the provincial governments exercised discretionary powers conferred by respective provincial laws to classify animals as ‘protected’ or ‘game’ species.

However, it said as they had not shown to the top court the criteria and considerations on the basis of which the provincial governments exercised their regulatory powers under their respective wildlife legislation for hunting of houbara bustard, so those matters would be heard afresh.

According to BBC, prior to last year’s ban, the foreign ministry had issued permits which allowed foreign dignitaries to hunt in a designated area for up to 10 days and kill up to 100 bustards.

However, the IUCN says hunting parties often “vastly exceed” the quota of houbara bustard they are allowed to kill. In 2014, it emerged that one Saudi prince had killed 2,100 bustards during a three-week hunting trip, sparking outrage.

Last year Pakistani wildlife officials fined a Qatari prince and seized two of his prized falcons after he was discovered hunting the bird without a permit.