The respondent was tried by a Magistrate Section 30, Rawalpindi for an offence under Article 11 of the Prohibition (Enforcement of Hadd) Order, 1979. He was acquitted under section 249-A, Cr. P. C.
On the grouted that the procedure laid down under Article 6 had not been followed. The State has filed this appeal against acquittal.
So many other similar appeals have also been filed by the State. As common question of law is involved in all these appeals, this judgment shall dispose of all of them.
2. Before dealing with the appeals, I am constrained to observe that though these appeals have been filed by the Public Prosecutor Punjab but not a single one has been dated nor it is mentioned under which provision of law the appeals have been filed. So, I take it that these have been filed under section 417, Cr. P. C.
3. I called upon the learned Additional Advocate-General to make sure whether these appeals are competent before this Court or would lie before the Federal Shariat Court. He submitted that he had ascertained that these appeals lie to this Court. I think this is the correct legal position.
4. Now, I proceed to deal with the points raised by the learned Additional Advocate-General. He submitted that the trial Court did not record any evidence with the result that the case was never considered on merits. It was contended that the accused-respondents were acquitted under section 249-A, Cr. P. C. It was further submitted that the order of acquittal has resulted in miscarriage of justice as the trial Court did not properly construe rule 6 of the Punjab Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter to be referred as the Order).
To begin with learned Additional Advocate-General relied upon Article 27 of the Order according to which "unless otherwise expressly provided in this Order, the provisions of the Code of Criminal Procedure shall apply mutates mutandis in respect of cases under this Order. Relying upon this provision, he argued that a police officer as such was competent to arrest the accused- respondent who was accused of a cognizable offence. He was further authorized in law to investigate and submit the challan. This is what has been done in these cases.
It was further submitted (without conceding) that if rule 6 of the Punjab Prohibition (Enforcement of Hadd) Rules, 1979 (hereinafter to be referred as the Rules) had been strictly complied with, that may, at the most, amount to an irregularity on the part of the prosecution which should have been set right by the trial Court. When I called upon the Law Officer to submit as to whether rule 6 is ultra vires the Order, he felt shy to take up this position and submitted that it wasn't so. Nevertheless his main emphasis was that there has been no violation of Article 11 of the Parent Legislation, therefore, the impugned orders of acquittal may be set aside. He cited the case of Asghar Ali v. The. State (PLD 1981 Lah. 448) in support of his contentions. I will refer to it later on.
The Order of 1979 came into force on the twelfth day of Rabi-ul--Awal 1399 Hijri, the tenth day of February, 1979. The need for enforcing this Order was to modify the existing law relating to prohibition of intoxicant so as to bring it in conformity with the Injunctions of Islam as set out in the Holy Qur'an and Sunnah. The Order deals with two kinds of drinking. One liable to Hadd and the other liable to Tazir. The appeals before me pertain to drinking liable to Tazir. Article 11 specifies the quantum of punishment for both the offences. Article 12 is relevant to be considered in this sequence which deals with arrest on suspicion of violation of Article 8 or 11.
5. As I am being called upon to examine Article 11 and rule 6, it is, therefore, necessary to reproduce the same verbatim which are to the following effect :- Article 11: Drinking liable to tazir.----Whoever--- (a)being a Muslim, is guilty of drinking which is not liable to Hadd under Article 8 or for which proof in either of the forms men--tioned in Article 9 is not available and the Court is satisfied that the offence stands proved by the evidence on record.
(b)
(c) shall be liable to Tazir and shall be punished with imprisonment of either description for a term which may extend to three years or with whipping not exceeding thirty stipes, or with both.
Rule 6 : When any person is arrested by any competent officer, if he is not a Prohibition Officer, he shall forward him to the Prohibition Officer of the area with a report containing the fact relating to his arrest and if the Prohibition Officer is satisfied on the basis of the material and facts placed before him that a prima facie case is made out against the accused and the accused is not released on bail, he may be sent to the police station of the area where the offence has been committed for custody and formal registration of the case".
Chapter IV deals with the Establishment and Control Article 21 of which relates to the appointment of officers. Chapter V prescribes powers, duties and procedure of officers, etc. The other important provision to be examined in this sequence is as to what is meant by "Prohibition Officer". As defined in E he Order, Prohibition Officer means the Collector or any officer appointed or invested with powers under Article 21. There is another important provi--sion in the Order which is Article 13 providing punishment for vexatious delay. In order to appreciate its significance, I shall refer to it later.
Now, reverting to Article 12 of the Order, it says that "no police officer shall 'detain or arrest any person on suspicion---...Unless he has asked such person to accompany him to, an authorised medical officer for examination and such person either refuses to so accompany him or having been examined by the medical practitioner, is certified, by him to have taken an intoxicant". If the word ---shall--- here is to be interpreted as directory /discretionary, then the entire provision becomes redundant and there was no need for the law-maker to use the word 'shall'. I am, therefore, of the view that the word "shall" is of mandatory nature here.
Rule 6 lays down the procedure as to what is to be done in case a person is arrested by a competent officer if he is not a Prohibition Officer. A perusal of the aforesaid rule shows that when a person is being sent to a Prohibition Officer, a report containing the facts relating to his arrest is also to be forwarded. The next step in this sequence is that the Prohibition Officer must be satisfied on the basis of the C material and facts placed before him that a prima facie case is made out against the accused, then he be sent to the police station of the area concerned for formal registration of the case. It is pertinent to note that even in this rule, the word used is "shall" be forwarded to the Prohibition Officer. It cannot, therefore, be taken to be a formality but it requires strict compliance and it is only after the rule has been complied with in stricto senso that formal registration of the case takes place.
6. It is an accepted principle of interpretation of statutes that a penal statute is to be strictly interpreted. "If the words are plain, there is of course no difficulty or no necessity to invoke any canon of construction". This is precisely the position with regard to the afore--said provisions. I have not come across any ambiguity either in Article 12 or rule 6 which would justify any ---Internal Aid---.
7. I am, therefore, of the view that violation of either Article 11 of the Order or for that matter of even rule 6 cannot be taken to be a mere irregularity as submitted by the Law Officer. Both the provisions are of mandatory nature. Article 13 of the Order which provides punish--ment for the vexatious delays lends support to my view.
I have gone through the case cited by the learned Additional Advo--cate-General. It is not helpful to him because the facts pertaining to that case and law were totally different to the one under examination. There--fore, the ratio of that decision cannot be applied to these appeals.
8. Before concluding, I must observe that the Courts whether superior or subordinate, have to interpret and administer the law Therefore, they have to deal with the cases as they come before them.
In case there is any lacuna in the prosecution or negligence go the part of the police or of the Prosecuting Agency, that cannot be rectified by the Courts because it is not their function nor can such an omission be set right on the pretext that it was a mere irregularity which did not vitiate the proceeding.
The mandatory provisions have to be strictly complied with before the arrest is effected and the challan is submitted. I would like to further observe that these provisions have not to be taken lightly by the police. As is clear from the preamble of the Order, this law was brought into operation so as to bring it in conformity with the injunctions of Islam as set out in the Holy Qur'an and Sunnah.
A heavy duty is, therefore, cast upon those who have to enforce this law to see that it is complied with in letter and spirit and then only the Courts will be able to administer justice according to the Injunctions of Islam.
For the foregoing reason, I am of the view that the appeals are without force and are accordingly dismissed in limine.