P L D 1983 Supreme Court 66 (PLP)

ASLAM RIAZ HUSSAIN, J.-Muhammad, Ilyas petitioner seeks Leave to Appeal against .the order of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 29-9-1982, dismissing his criminal revision.

2. The facts giving rise to the petition are,. briefly, that while on patrol duty Tanvir Ahmad; S. P. Attock (P. W. 11) caught the petitioner- on suspicion of having taken an intoxicant. He brought him to Volice Station, Attoek and handed him over to Mahmud Akhtar, S. H. O. .Police Station City, Attock for necessary action. The S. H. O. got him medically examined and on receiving the doctor's report to the effect that the petitioner was smelling of alcohol, got a case registered against him at Police Station, Hazro. His stomach-wash and urine were taken by Dr. Rashid Hamid (I'. W. 7) and seat for chemical examination. The chemical examiner opined that there was alcohol in the urine and the stomach wash. He was sent up for trial where he took up the plea that he had taken a medicine under the advice of Dr. Faiz Muhammad (P. W. 2) which contained 11 % alcohol. The trial Court, however, relying on the prosecution evidence, convicted him under section 11 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced him to 2 years' R. I. and 15 stripes. His appeal before the learned Sessions Judge failed. He then filed a revision petition before the High Court which too was dismissed in limine. Hence the present petition.

3. We have heard the learned counsel for the petitioner and gone through the impugned order. It is apparent from the evidence on the record that the petitioner had taken alcohol. The learned counsel for the petitioner contended that in view of the plea of defence taken up by the petitioner he could not have been found guilty for the offence in question. We are, however, not persuaded to agree with this contention. The learned counsel then raised a novel point, contending that the offence under section 11 was `Drinking' and not being found having drunk as intoxicant. He first referred to section 6 of the Prohibition (Enforcement of Hadd) Order, 1979, relevant portion of which reads as follows : "S.

6. Drinking.-Whosoever, intentionally and without 'ikrah' or iztrar'' takes an intoxicant by any means whatsoever, whether such taking causes intoxication or not, shall be guilty of drinking." He then pointed out that section 7 provides that `drinking' may either be liable to Hadd or be liable to Tazeer. He submitted that although the offence is the same i.e. 'drinking', the former is punishable under section 8 of the above-mentioned Order, while 'drinking' liable to Tazeer is made punishable under section 11 of the said Order. Learned counsel submitted that the wording of section 6 shows that offence consist of being actually found "in the act of drinking" and not being caught after having already taken drinks. At first we were not inclined to agree with this contention and felt that the word `drinking' includes 'being found drunk'. But the learned counsel referred to a judgment of the Federal Shariat Court,I e. State v. Muhammad Tariq (PLD1982FSC169) wherein, at page 173 it is held that the offence of `drinking' cannot be proved simply by smelling the mouth of the drunkard. This . cannot be evidence of 'drinking' but only of discovery of a person being found drunk and did not constitute an offence of drinking liable to had because he may have been forced to drink under circumstances mentioned in the Explanation to section

6. The learned counsel submitted that although an accused may be punished for the offence either under Hadd or under Tazeer, but the. fact remains that the offence in both cases is the 'drinking', which according to the abovementioned authority is 'being found in the act of drinking' and not being found after having drunk. He contended that since the offence punishable under section 11 of this Order is also described as 'drinking', the act constituting it would be the same, except that it would not be liable to hadd. H A submitted that it is quite possible that the provision was also meant to punish a person who had already taken an intoxicant and not merely a person actually found in the act of drinking but the section, as worded, does not? clearly apell out that intention, and that the benefit of any doubt which may arise from this ambiguity should be resolved in favour of the accused. We feel that the contention requires examination in greater detail. Leave is therefore, granted for the said purpose. The execution of the sentence of the petitioner is suspended in the meanwhile. s. A. H.??????????? Leave granted.