1988 PLP 1417 (SCMR)

SHAFIUR RAHMAN, J.‑‑Federation of Pakistan has appealed under Article 203‑F of the Constitution against the judgment of the Federal Shariat Court dated the 27th 'of April, 1981 whereby on a petition filed by the respondent under section 203‑D of the Constitution, section 17 of Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Order) was declared in certain respects to be repugnant to the Injunctions of the Holy Qur'an and the Sunnah of the Holy Prophet (PBUH). The respondent, a Zoroastrian by faith, a licensed vendor of liquor for consumption by human beings filed an application expressed to be under Article 203‑D of the Constitution contending that the following provisions of the Order in so far as they affect the non‑Muslim citizens of Pakistan are null and void being violative of the Injunctions of Islam:‑ (a) Section 3 ‑ dealing with prohibition of manufacture, and dealings in intoxicants in so far as it is made applicable to non‑Muslim citizens of Pakistan, and makes it punishable with imprisonment of either description for a term which may extend to five years and with whipping not exceeding 30 stripes and to imposition of fine; (b) Section 4 ‑ which makes owning and possessing of intoxicants punishable with imprisonment of either description for a term which may extend to two years or with whipping not exceeding 30 stripes and also be liable to fine; (c) Section 6 ‑ which makes the person taking an intoxicant guilty of drinking; (d) Section 11(b) ‑‑ which makes drinking by a non‑Muslim citizen of Pakistan, other than as a part of the ceremony prescribed by his religion, liable to Tazir, and punishable with imprisonment of either description for a term which may extend to three years or with whipping not exceeding 30 stripes or with both; (e) Section 12 ‑ vulnerability of a non‑Muslim citizen of Pakistan to detention and arrest and subjection to medical examination; (f) Section 14 ‑ makes various articles of a non‑Muslim citizen of Pakistan subject to confiscation; (g) Section 17 ‑ pertaining to confinement of the grant of licence for the manufacture, import, transport, sale or possession of any article containing intoxicating liquor to institutions only, and that too for a bona fide medicinal, scientific, industrial or similar other purposes or for consumption by a non‑Muslim citizen of Pakistan as a part of the religious ceremony only." The Federal Shariat Court examined the law in the light of the contentions put forward on behalf of the respondent and obtained the views of the Jurist Consults and by a majority opinion held only section 17 of the Order to be repugnant to the Injunctions of Islam. The Order of the Court is reproduced hereunder‑ "By a majority of three to one it is held that the extension of the prohibition, in the Prohibition (Enforcement of Hadd) Order, 1979, to a non‑Muslim is not repugnant to the Holy Qur'an and the Sunnah of the Holy Prophet (PBUH). The petition is dismissed. to this extent. It‑is, however, accepted in regard to the contention against the legality of section 17 of the Order, and it is declared that the provision in that section allowing an Institution whether under the management of the Government or not, if manned by Muslims is repugnant to the Holy Qur'an and the Sunnah in view of the ban imposed by the Sunnah of the Holy Prophet (PBUH) on possession or sale of liquor by Muslims. It is directed that necessary amendment in section 17 be made by the 30th of June, 1981 to allow only such Institutions as are entirely manned by non‑Muslims and profit of which are shared by them, to manufacture, import, transport, sale or possess liquor for the purposes enumerated in clause (a) of section 17 or for its export, as provided in clause (b) thereof." The petitioner before the Federal Shariat Court, now the respondent before us, has not felt aggrieved by the judgment of the Federal Shariat Court and has filed no appeal or cross‑objections to the decision given by the Federal Shariat Court. The Federal Government has come up in appeal. In the memorandum of Appeal the main ground taken up is that the decision bestows positive privilege on the non‑Muslim which is highly discriminatory and is not warranted by the Injunctions of Islam. Syed Riazul Hassan Gilani, Advocate, appearing on behalf of the State, has fully subscribed to the finding of the Federal Shariat Court that consumption of liquor as an intoxicant is prohibited in Islam for the Muslims as well as the non‑Muslims, and further that non‑Muslims can be allowed its consumption only as a part of their respective religious ceremonies and not independently of it. However, the learned counsel has taken up the plea that the scientific, industrial and other such uses of liquor are increasing day by day and have a great potential for good and evil and for that reason its manufacture, import, transport, sale or possession not as intoxicant for human beings but for such purposes as have nothing to do with intoxication, may not only be desirable but at times necessary and Muslims should have control and dominion over it, should possess, use, import and transport it. In particular, he has drawn our attention to the use of such material for defence purposes or in highly sensitive industries and locations. From .the entire discussion of the question raised before the Federal Shariat Court and the findings recorded by the Court, it is clear that the prohibition concerns the use and consumption of liquor by human beings as an intoxicant. There is no other indication in any Injunction of Islam, express or implied that the prohibition extended to its manufacture or sale for a purpose which is permissible in Shariat for Muslims also. Hence the exclusion of the Muslims from its bona fide medicinal, scientific, industrial or other such use would not be strictly in conformity with the Injunctions of Islam. Section 17 of the Order as at present worded permits the Government itself or a licensee from it to manufacture liquor, import, transport, sell or possess it even for the purposes of consumption by non‑Muslim citizens of Pakistan or as a part of their religious ceremonies or by non‑Muslim foreigners. The human consumption of liquor as intoxicant being prohibited in Islam, a Muslim cannot be permitted to engage himself in the manufacture etc. of such an offensive material for its being meant for human consumption as an intoxicant. Therefore, this part of section 17 is clearly violative of the Injunctions of Islam, the other part where bona fide manufacture, import, transport, sale or possession for medicinal scientific, industrial or similar other purposes is concerned, there is no such requirement which may render this provision repugnant to the Injunctions of Islam. This appeal is, therefore, partly allowed and that portion of the section is declared to be against Injunctions of Islam which leaves a scope for the Government or a Muslim licensee to manufacture, import, transport, sell or possess any intoxicant or article containing intoxicating liquor meant for human consumption by a non‑Muslim citizen of Pakistan as a part of religious ceremonies or by a non‑Muslim foreigner. But such an act of manufacture, import, transport, sale or possession will not 'be against the Injunctions of Islam if the material is for bona fide use for medicinal, scientific, industrial or similar other purposes as provided for in section 17 of the Order. The necessary amendment shall be made in section 17 within six months from today failing which the provisions declared to be repugnant shall cease to have effect. M.I./F‑51/S Order accordingly.