' M. S. H. QURAISHI, L-This judgment will dispose of Criminal Appeals bearing Nos. 50 to 114 of 1983 filed by the State, Criminal Appeal No, 6(S) of 1982, Criminal Appeal No, 93 of 1982, Criminal Appeal No, 100 of 1982, Criminal. Appeal No, 5(S) of 1983, Criminal Appeal No, 44 of 1983 and Criminal Petition No, 41-R of 1983 (Shariat) which was during the hearing converted into appeal which bears Criminal Appeal No, 10(S) of 1983. All these appeals relate to offences under the Prohibition (Enforcement of Hadd) Order (IV of 1979) (hereinafter called the Order) and raise some common question of law.
2. In the State appeals, the respondents bad been tried by a Magistrate for an offence under Article 11 of the Order and acquitted under section 249-A, Cr. P. C. On the ground of non-observance of the procedure under rule 6 of the Punjab Prohibition (Enforcement of Hadd) Rules, 1979 (hereinafter called the Rules) framed under the Order. The State appealed but the appeals were dismissed in limine by a learned Single Judge of the Lahore High Court on the basis of his order dated 24-1-1982 passed in State v. Abdul Majid (1) upon the view that the provisions of Article 12 of the Order and rule 6 of the said Rules are mandatory provisions which have to be strictly complied with before the arrest is effected and the challan submitted and a breach of the same cannot be taken to be a mere irregularity. The question that these appeals pose for determination is whether there had been a breach of the said provisions and if so, whether the same was fatal to the case.
3. In Appeal No, 6(S) of 1982, appellant Masood Ahmad had been found by a police party in a state of intoxication at Fawwara Chowk Faisalabad. He was medically examined and in the result of chemical analysis alcohol was detected in his urine and blood. He was convicted by a Magistrate under Article 11 of the Order and sentenced to R. I. For 3 years plus 10 stripes but on appeal the Federal Shariat Court while maintaining the conviction reduced his sentence to R. I. For one year plus 30 stripes. Leave was granted to consider whether- "(0 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 committed at public place (vide Article 16 of the Prohibition Order) but that in the present case there was no evidence that the appellant had taken liquor at a public place. The offence, if any, committed by the appellant was, therefore, non-cognizable and the police officers had neither the right to arrest 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 appellant as the conditions for arrest laid down in Article 12 of the Prohibition Order were not fulfilled ; and ,
(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 appellant 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." {{FOOT NOTE}}
(1) 1983 P Cr. L J 1465 {{FOOT NOTE}}
4. In Criminal Appeal No, 93 of 1982, appellant Muhammad Ilyas had been caught by a police patrol party on suspicion of being drunk. In the result of medical examination and chemical analysis, alcohol was detected in his urine and stomach, for which he was tried under Article 11 of the Order and upon being found guilty was sentenced to R. I. For 2 years plus 15 stripes. His appeal before the Court of Session and a revision thereafter before the Lahore High Court failed. The contention raised, for consideration of which leave was granted, was that the offence of drinking as defined in the Order meant being actually found in the act of drinking and not being found already drunk and that in case the interpretation was open to any doubt, the same ought to have been resolved in favour of the appellant.
5. Similar question arises in Criminal Appeal No, 5(S) of 1983, in which appellant Mirza Bashir Ahmad had been convicted under Article 11 of the Order and sentenced to R. I. For 15 days and 10 stripes, against which his appeal before the Additional Sessions Judge and revision before the Federal Shariat Court failed.
6. The same question arises in Criminal Appeal No, 44 of 1983, where appellant Muhammad Ibrahim had been, on conviction under Article 11 of the Order, sentenced to R. I. For 3 years plus 10 stripes and on appeal the sentence of imprisonment had been reduced to R. I. For one year, but the sentence of stripes maintained. His revision before the High Court failed. Another question is whether the trial was not vitiated on account of (1) the arrest and investigation being in violation of section 155, Cr. P. C. And (2) non-compliance of rule 6.
7. These questions also arise in Criminal Appeal No, 10(S) of 1983, in which the three appellants therein, upon their conviction under Article 11 of the Order, had been each sentenced to R.
1. For 3 years and 15 stripes, against which their appeals before the Federal Shariat Court had been dismissed except for reduction in the sentence to R. I. For 15 months plus 15 stripes each.
8. In Criminal Appeal No, 100 of 1982, 25 kilograms of Marijuana was allegedly recovered from the possession of Qayyum Iqbal appellant for which he was sent up for trial under Article 4 of the Order in 1980. His application under section 249-A, Cr. P. C. Having failed before the trial Court, he came in revision before the Additional Sessions Judge but having failed there also, he unsuccessfully challenged the trial in the constitutional jurisdiction of the High Court. Leave was granted to consider, inter alia, the contention that the recovery having not been effected from a public place and the offence thus not being cognizable under Article 16 of the Order, the investigation without permission of the Magistrate was in breach of section 155(2), Cr. P. C. And that, therefore, the trial was vitiated on this account and also on account of non-observance of rule 6 which constituted an illegality not curable under section 537, Cr. P. C.
9. Re-stated, the points which require determination in all these appeals are : (1)Whether there has been non-compliance of rule 6 of the Rules and Article 12 of the Order and if so, to what effect ; (2)whether the offence of drinking defined in Article 6 and punishable under Article 11 means being found in the actual act of taking intoxicant in presence of witnesses and does not include being found in a state of drunkenness ;
(3) where the accused is found in a state of drunkenness at a public place though the actual drinking is not at a public place, whether the offence is non-cognizable ; and
(4) in case the offence be non-cognizable, whether the investigation and the submission of challan by the police in breach of section 155, Cr. P. C. Is fatal to the case ?
10. In order to understand the first controversy, I may explain the scheme of the law. For the purpose of carrying into effect the provision of the Order, the Provincial Government has been empowered by Article 21 of the Order to appoint Collectors and other officers to assist the Collector or other Prohibition Officer and to delegate to any Prohibition Officer all or any of its powers under the Order.
The Collector may be appointed to exercise all the powers of Collector under the Order in any specified area and to have the control of the administration of the provision; of the Order in such area. A "Prohibition Officer" means a Collector or any officer appointed o invested with powers under Article 21. Under Article 22, a Collector and a Prohibition Officer have been empowered to issue warrant for the search of any intoxicant etc. And any person entrusted with the execution of such warrant may detain and search and subject to Article 12(1) of the Order arrest any person found in the place of search, if he has reason to believe such person to be guilty of an offence under Article 3, 4, 8 or 11. In addition to those powers, a Prohibition Officer shall under Article 23 also have all the powers conferred on the officer-in-charge of a Police Station while conducting an investigation into a cognizable offence.
11. Article 31 empowers the Provincial Government to make rules. Rules were accordingly made which are called the Punjab Prohibition A (Enforcement of Hadd) Rules, 1979. Under rule 3, the Director, Excise and Taxation, shall exercise and perform all or any of the powers or functions of Collector while the Excise and Taxation Officer the powers of a Prohibition Officer in the district of his posting. By rule 4, sub-rule (1), all the Exci and Taxation Inspectors and Sub-inspectors shall exercise the powers of a Prohibition Officer within their respective jurisdiction except the power under Article 22 to issue search warrant but the exercise of powers by them has been made subject to control of the Collector and the District Excise and Taxation Officer. By sub-rule (2), all the Excise and Taxation Constables are deemed to be officers appointed under Article 21 to assist the Collector of the Prohibition Officer under whom they are serving for the time being for the purposes of the Order. However, the powers of the Excise and Taxation Inspectors, Sub-Inspectors and Constables for arrest, detention, seizure or other functions under the Order, shall by sub-rule (3) stand mutatis mutandis classified or restricted according to their respective powers as Excise Officers within the meaning of rule 3 of the Punjab Excise Powers and Appeal Orders notified by the Punjab Government under Notification No, 5708-E & S, dated 27-10-1932. A Prohibition Officer shall.
By sub-rule (4), exercise the powers of a Police Officer under Chapter XIV of the Code of Criminal procedure while conducting investigation in a cognizable offence under the Order, a power already conferred by Article 23.
12. It is in this context that rule 6 occurs. It reads :- "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 facts 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."
It may be mentioned that this rule which was operative at the relevant time was deleted by Notification No, S.
0. (Excise) VI-27/79(P), dated 1-11-1981.
13. To complete the picture, it may be added that rule 7 prohibits the detention of an accused or a person suspected of having committed an offence under the Order, for a period longer than is reasonable under the circumstances of the case and in any case, in the absence of special order of a Magistrate, beyond 24 hours. All articles seized under the Order which may be delivered to the officer-in-charge of a police station shall be, by virtue of rule 8, taken charge of and kept in custody by him pending orders of a Magistrate or a Prohibition Officer.
14. As it appears, the Rules relate to the power and duties of the Collector, the Prohibition Officers and other Excise Officers but do not make mention of the police except within the limited scope of rules 6 and 8, i,e,, for custody of the accused sent by the Prohibition Officer, formal registration of the case and custody of the articles seized which may be delivered to officer-in-charge of a police station, pending orders of a Magistrate or a Prohibition Officer.
15. In this background we have Article 13 which lays down :- "13. Punishment for vexatious delay.-An officer or person exercising powers under this Order who vexatious and unnecessarily delays forwarding to a Prohibition Officer any person arrested or any article seized under this Order shall be punishable with fine which may extend to one thousand rupees."
16. The Federal Shariat Court while interpreting the above provisions of the Order and the Rules came to the view that the scope of rule 6 was restricted to a situation where a person had been entrusted by the Prohibition Officer with execution of a search warrant under Article 22(2) of the Order, from which it followed that the report of execution of the search warrant as well as the person so arrested must be produced before the Prohibition Officer who could take further action as he has all the powers of an officer-in-charge of a police station under Chapter XIV, Cr. P. C. The provision of rule 6 could, in the opinion of the Federal Shariat Court, be justified only in this sense and the same would not be applicable if the arrest was not in the result of a search warrant issued by the Prohibition Officer, for any extended meaning to rule 6 to include the latter category of cases would also make it ultra vires of the Order in view of the provision of Article 27 whereby the Code of Criminal Procedure has been made applicable mutatis mutandis. The Federal Shariat Court further held that the non-compliance of rule 6 was at most an irregularity curable under the now amended provision of section 537, Cr. P. C.
17. Similar view had been expressed by the Lahore High Court in Asghar All v. State (1), who held that "competent officer" in rule 6 meant an officer appointed under Article 21 and not a police officer, that only an officer other than a Prohibition Officer so appointed was required under rule 6 to forward the arrested person to the Prohibition Officer and that the _power of the police officer to deal with the offender was an independent power under the Code of Criminal Procedure and as such he was not obliged to send the person arrested by him to the Prohibition Officer. In Muhammad Nawaz Khan v. State (2), the objection based on non-compliance of rule 6 was held
18. {{FOOT NOTE}}
(i) P L., I) 1981 Lab. 448 (2) 1982 P Cr. L J 131 {{FOOT NOTE}} ' to be no longer available on account of its deletion in 1981 although the offence related to 1978.
18. From the scheme of the Rules, it appears that "any competent officer" in rule 6 would mean an Excise Officer, other than a Prohibition Officer, who is competent to make arrest under rule 3 of the Punjab Excise (Powers and Appeals) Order, 1932, read with sub-rule (3) of rule 4 of the Rules or who is appointed under clause (b) of Article 21 to assist the Collector or other Prohibition Officer or a person who is entrusted with the execution of a warrant of search in terms of Article 22(2) of the Order. 1 would be necessary for such officer or person to forward the arrested person to the Prohibition Officer because it is the latter, alone in that hierarchy wh has the power under rule 4(4) and Article 23 of a police officer whil conducting investigation into a cognizable offence under Chapter XIV, Cr. P. C. And it is such "officer or person", who, if he vexatiously o unnecessarily delays forwarding to a Prohibition Officer the arrested person, renders himself liable to punishment under Article 13. As for the polio officer, it is hardly necessary for him to forward the arrested person to the Prohibition Officer as he himself has also the necessary powers under Chapter XIV of the Code to deal with the matter, by virtue of Article 27(1 of the Order whereby the provision of the Code was made applicable mutatis mutandis to the offences under the Order; Had the intention been to apple rule 6 to the police officer, -too, it could have been made express as has been done in Article 12, which reads :- "12. Arrest on suspicion of violation of Article 8 or Article 11. -(1) No police officer shall detain or arrest any person on suspicion that he has taken an intoxicant in violation of Article 8 or Article 11 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 officer is certified by him to have taken an intoxicant.
(2) Whoever contravenes the provisions of clause (1) shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to five hundred rupees, or with both."
Such curb on the powers of a person entrusted with the execution of a search warrant issued by a Prohibition Officer, already exists under Article 22(2) but since that curb could not apply to a police officer and since the law-maker intended to place similar curb on the power of the police, too, it manifested its such intention in Article. 12(1).
19. This view of the legislative intent is strengthened by a reference to the predecessor laws, that is, the Prohibition Act (XXIV of 1977) and the Punjab Prohibition Ordinance (VI of 1978). In neither of these laws, the provision of the Criminal Procedure Code had been made applicable except in the matter of search and custody of offenders and their bail. By section 10 in both the laws "an offence punishable under section 4 if committed at a a public place" was made cognizable but the power to make arrest was restricted by section 6(1) of the Prohibition Act in the following manner :- "6. Punishment for vexatious arrest at a public place.-(1) No officer shall detain or arrest any person at a public place on suspicion that he has consumed intoxicating liquor in violation of section 4 and is under the influence thereof, unless he has given to such person notice to accompany him to a medical practitioner for examination .
' The words "at a public place" were omitted in the subsequent legislation, that is the Punjab Prohibition Ordinance, 1978, As with the applicability of the provision of the Code by the Order, the police also got the power to make arrest, the words "no officer" in section 6(I) were substituted by the words "no police officer" in the analogous provision of Article 12(1) of the Order and the power of persons entrusted with the execution of a warrant of search, to arrest was separately made subject to the provision of Article 12(1) by suitable insertion in the present Article 22(2) of the Order which is otherwise a reproduction of section 17(2) of the previous laws. Were the police officer to be included in the term "officer" in section 6(1) then there was no need to add the word "police" in Article 12(I). The distinction appears to be deliberate. An "officer" will thus ordinarily not include a "police) officer". That being so, a police officer is not liable under Article 13.
20. Even otherwise, rule 6 having been deleted with effect from 1-11-1981, the Federal Shariat Court could take notice of the change so brought about] in the procedural law during the pendency of an appeal before it, inasmuch If as an appeal is a continuation of the trial. It was held in Muhammad. Abdullah v. Imdad Ali (1), that an amendment of law seeking to alter the rights of the parties is different from an enactment which merely affects procedure and does not extend to rights of action and that such enactment shall affect all pending proceedings unless there be words in the statute itself indicating a contrary intention.
21. In regard to violation of the provision of Article 12(1) a learned Single Judge of the Lahore High Court had, in Taj Muhammad v. State (2). Held that the same would not affect a trial but in the event of violation of the safeguard contained in clause (1) of Article 12, the remedy was available to the aggrieved person by making a complaint against the police officer under clause (2), We see no reason to differ from the view taken.
22. The second point relates to what exactly constitutes the offence under Article 11 of the Order i,e,, whether the offence is confined to the present taking or also includes past taking of intoxicant though no one has seen the act of taking. The contention proceeds from the use of the present tense in defining "drinking" in Article 6, the relevant words being "whoever, intentionally and without 'Ikrah' or Iztirar' takes an intoxicant." It is to be seen that for the offence to be liable to "hadd " the proof has to come, in the absence of confession by the accused, by the evidence of at least two Muslim adult males. But as regards the offence liable to "tazir", Article 11 lays down :- "11. Drinking liable to tazir.-Whoever-
(a) being a Muslim, is guilty of drinking which is not liable to %add' under Article 8 or for which proof in either of thQ forms mentioned u Article 9 is not available and the Court is satisfied that the offence stands proved by the evidence on the record ;
(b) being a non-Muslim citizen of Pakistan, is guilty of drinking, except as a part of a ceremony prescribed by his religion ; or
(c) being a non-Muslim who is not a citizen of Pakistan, is guilty of drinking at a public place ; shall be liable to tazie ............
By the use of the words "guilty of drinking" the intention apparently is to punish a Muslim, who commits or has committed the act of drinking, whether within the seeing of witnesses or not and whether at a private place or public. The same applies to a non-Muslim citizen of Pakistan except when {{FOOT NOTE}}
(1) 1972 SCMR 173 (2) 1983 P Cr. L J 1794 {{FOOT NOTE}} ' the drinking is as a part of ceremony prescribed by his religion. For a non-Muslim alien, drinking is an offence only if it is at a public place. Where, therefore, drinking at a public place alone constitutes the offence, the same is specifically stated as has been done in the case of a non- Muslim alien. Omission of the words "at a public place" in respect of a Muslim or a non-Muslim national signifies that for him drinking whether private or public constitutes the offence, the intention thus being to make private drinking, too, punishable. Even otherwise, the use of the present tense does not exclude the act already done. Most of the offences in the Penal Code, too, are described in the present tense. The words "takes an intoxicant" used to define "drinking" in Article 6, cannot, therefore, be restricted to instant taking or taking in presence of witnesses but will also include being found to have taken an intoxicant. The provision of Article 12(1) lends support of this view, inasmuch as it authorises the police to proceed against a person "on suspicion that he has taken an intoxicant".
23. We may now come to the last point, that is, the offence of drinking, if committed at a place other than public, being not cognizable, whether the investigation and submission of challan by the police in such a case is vitiative of the trial. According to Article 16, an offence punishable under Article 4, Article 8 or Article 11 is cognizable "if committed at a public place". Since the offence under Article 11, even if not committed at a public place, is also punishable, Article 16 seeks to create a distinction by making only the offence committed at a public place cognizable. Thus where the act of drinking is committed at a public place, the offence is cognizable and the police officer can take action under the Code of Criminal Procedure without any curb on his power to arrest. Article 12(1), however, caters for a different situation, that is, where the offender has not committed the act at a public place but is only suspected of having taken an intoxicant in violation of Article 8 or Article 11, in which case the police officer shall first ask him to accompany him to an authorised medical officer. The police officer can detain and arrest the suspected person only if he, either refuses to so accompany him or having been examined by the medical practitioner, is certified by him to have taken an intoxicant. There is thus no conflict between the provisions of Articles 16 and 12(1). The two provisions clearly refer to two different situations and provide for distinct modes of action. Where the act is committed at a public place and is as such cognizable under Article 16, there is no need to take the offender to a medical officer before making his arrest. But where he is only suspected of having committed the offence, further confirmation has been considered by the Legislature necessary before authorising the police to effect his arrest. The argument that the provision of Article 12(1) can apply only in a cognizable case, is, therefore, misplaced and contrary to the legislative intent. By necessary implication, the police officer, once he makes arrest in accordance with Article 12(1), can investigate into the case and forward report under section 173, Cr. P. C. Where, however, the police officer acts in disregard of sub-Article (1) of Article 12, he shall be liable under sub-Article (2) of that Article, but this will not affect the cognizance of the offence taken by the Court under section 190, Cr. P. C. Or its jurisdiction to try the offender.
24. On the view that we have taken on the points arising in these appeals, the State Appeal No, 50 to 114 of. 1983 shall succeed and are accordingly allowed and by setting aside the orders passed by the Courts below, the cases are remanded to the trial Courts for further proceeding according to law,
25. Criminal Appeal No, 6(S) of 1982 must fail. On the question of the sentence, learned counsel, however, submitted that the original sentence of rigorous imprisonment for three years plus ten' stripes had been reduced by the Federal Shariat Court to R. I. For one year plus thirty stripes, but that the appellant had already undergone imprisonment for one year and nine months and urged that since the sentence of stripes was not mandatory, the same be set aside, particularly in view of the excess period of imprisonment already undergone by him. We are inclined to agree and accordingly, while otherwise dismissing his appeal, set aside the sentence of stripes. As he is already on bail. The ,bail bond shall stand discharged.
26. Criminal Appeal No, 93 of 1982 of Muhammad Ilyas, Criminal Appeal No, 5(S) of 1983 of Mirza Bashir Ahmad, Criminal Appeal No, 44 of 1983 of Muhammad Ibrahim and Criminal Appeal No, 10(S) of 1983 of Gul Nazir etc. Are dismissed. Their convictions and sentences are maintained.
27. In Criminal Appeal No, 100 of 1982, we notice that the case had been registered and the challan submitted under Articles 3 and 4 of the Order, of which the offence under Article 3 was cognizable.
The fact that charge was later framed by the Magistrate only under Article 4, would not, therefore, ordinarily affect the legality of the investigation and the submission of the report under section 173, Cr. P. C. By the police. In any case, in view of the fact that the appellant has come through the constitutional jurisdiction of the High Court and that Court has observed :- "Let the trial, therefore, be concluded in accordance with law and in case he has any grievance, thereafter, he shall be able to approach the higher Court for redress on any of these points if valid."
' We are not inclined to interfere. This appeal, too, is dismissed.