1983 PLP 497 (SCMR)

JUSTICE NASIM HASAN SHAH, MEMBER: This petition is directed against the judgment passed by the Federal Shariat Court, Islamabad dated 10‑10‑1982 in Criminal Appeal No. 63/1 of 1982, whereby the conviction of the petitioner under section 1 of the Prohibition (Enforcement of Hudood) Order, 1979 was upheld but the sentence of three years' R. I. imposed upon him by Syed Tasaddaq Hussain Bohkari, Magistrate 1st Class, Faisalabad was reduced to one year R. I. and the punishment of whipping, which was ten stripes, was enhanced .to 30 stripes. The facts briefly are that the petitioner was found by Muhammad Arif and Sikandar Hayat Constables; who were on duty at Fawara Chowk, Faisalabad, on the night between 11th and 12th of February, 1980 to be in a state of intoxication. It was then about midnight. They caught hold of him and started to take him towards the Police Station but at Satiana Road Gate they met Abdul Rahim, Head Constable, who was later promoted as Assistant Sub‑Inspector, who arrested him. Abdul Rahim, aforesaid, sent the petitioner alongwith Muhammad Arif and Nawaz Constables to the Hospital to get him medically examined. Accordingly, he was examined by Dr. Imtiaz Abmad Gil, who found him smelling of Liquor. He observed that his face was red and he was talking excessively. He took his urine, blood and stomach wash and sent them for analysis to the Chemical Examiner. The Chemical Examiner detected Alcohol in the urine and blood but not in the stomach wash. The petitioner was thereupon tried and found guilty of the offence of drinking fable to Tazir under section 11 of the Prohibition Order by a learned Magistrate, who proceeded to convict him accordingly, in the manner set out above. On appeal, the conviction was upheld by the Federal Shariat Court, Islamabad. Hence this petition for leave to appeal. The learned counsel for the petitioner has contended that :‑ (i) the offence of drinking liable to tazir can be established only if the accused is found drinking in the presence of the eye‑witnesses and not when he is only found to have taken intoxicating liquor sometimes earlier on ; (ii) the offence of drinking under Article 11 is furthermore cognizable only if is committed at a public place (vide Article 16 of the Prohibition Order) but that in the present case there was no evidence that the petitioner taken liquor at a public place. The offence, if any, com mitted by the petitioner was, therefore, non‑cognizable and the police officers had neither the right to arrest the petitioner without a warrant nor to investigate the matter without the specific permission from the Magistrate, as provided in section 155, Cr. P. C. ; (iii) in any case, neither the Head Constable nor the Constables had the right to arrest the petitioner as the conditions for arrest laid down in Article 12 of the Prohibition Order were not fulfilled ; (iv) the mandatory provisions of rule 6 of the Rules framed under Article 31 in respect of the duties to be exercised by a Prohibition Officer in furtherance to the objects of the Order were not satisfied inasmuch as the petitioner was not forwarded to the Prohibition Officer of the Area, as required by the said Rules. The non‑compliance with the said provisions constituted an illegality and not merely an irregularity curable under section 537, Cr. P. C. Although on this question, there was `divergence of views in the Lahore High Court in that in State v Abdul Majid (N L R 198? Criminal (Lah.) 212) the above point of view was upheld; in Asghar All v. The State (P L D 1981 Lab. 448) the opposite view was taken, however, this Court in Qayyum Iqbal v The State and another (Cr. P. S. L. A. No. 122 of 1982) 1982 S C M P 887 bad granted leave to consider this question. These contentions, inter alia, raise a question of general public importance, on which an authoritative pronouncement of this Court is desirable. Leave is, accordingly, granted. Meanwhile, the sentence of whipping will not be executed. Leave granted.