1996 P C (PLP)

The word "drinking" used in this Article has been explained in Articles 6 and 7 of the said Order as under:‑‑

6. Drinking.‑‑‑ Whoever intentionally and without Ikrah or Iztirar takes an intoxicant by any means whatsoever whether such taking causes intoxication or not shall be guilty of drinking." Explanation.‑‑In this Article:‑‑ (a) "Ikrah" means putting any person in fear of injury to the person property or honour of that or any other person; and. (b) "Iztirar" means a situation in which a person is in apprehension of death due to extreme hunger or thirst or serious illness.

7. Two kinds of drinking.‑‑Drinking may be either drinking liable to Hadd or drinking liable to Ta'zir."

4. A simple perusal of Articles 6, 7 and 8 of the Prohibition Order as reproduced in the above lines leaves no doubt that for the purpose of convicting an accused under Article 8 of the Prohibition Order it' is necessary for the prosecution to bring on record that:‑‑ (i) The accused is‑ an adult; (ii) The accused is a Muslim; (iii) The accused has taken liquor by mouth; and (iv) The accused has taken intoxicant intentionally without Ikrah and Iztirar. "If all the four conditions are fulfilled it is only then that Court can, punish the accused with whipping numbering eighty stripes." But for this purpose too the‑ proof of drinking depends upon the following:‑‑ (i) The accused persons confess their guilt of drinking intoxicant before a Court of competent jurisdiction; or (ii) in case of denial of the guilt (means in absence of their confession) the Court succeeds to get evidence of persons against the accused who are (a) at least two in number, (b) Muslims, (c) adult, (d) about whom the Court is satisfied as a result of secret mode of enquiry (means by way of Tazkiyah‑al‑Shuhood) adopted by a Court to satisfy itself as to the credibility of a witness) that they are truthful person; and (v) who abstain from major sins (Kabair) If any of the conditions as discussed above is not available to the Court then imposition of Hadd punishment i.e. whipping numbering eighty stripes under Article 8 of the Prohibition Order may not be sustainable.

5. The impugned judgment of the learned trial Judge is silent on several points particularly on the point of Tazkiyah‑al‑Shahood regarding inquiry to find out the credibility of witnesses.

6. In these circumstances this Court has still to decide at the time of final hearing of this appeal as well as the reference as to whether the punishment of 8 Hadd would be sustainable or not or whether the applicants would be awarded the punishment of Ta'zir under Article 11 of the Prohibition Order in case the punishment of Hadd is not found sustainable.

7. The punishment under Ta'zir under Article 11 of the Prohibition Order may extend to three years or with whipping not exceeding thirty stripes or fine. As the sentence of whipping in the cases of Tazir has been dropped under Abolition of punishment of Whipping Act VII of 1996, therefore, the applicants may be sentenced to suffer up to three years' R.I. or S.I. (the relevant provision whether such sentence would involve R. I. or S. I. is silent on this point) or fine or both. As the sentence is very limited in case the cases falls within Ta'zir, therefore, they are granted bail in the sum of Rs.25,

000. Criminal Miscellaneous No.45/Q of 1996 stands disposed of.

8. By a short order I had granted bail to the applicants and these are the reasons for passing the said order. N.H.Q./1063/FSC Bail granted