' Criminal Miscellaneous Nos.10-Q, 9-Q and 11-Q of 1993 shall also be disposed of by this judgment alongwith the present petition i,e, Criminal Miscellaneous No,8-Q of 1993, as all of them contend for quashment of proceedings arising out of the cases registered vide F.I.Rs, Nos.176/90, 178/90, 180/90 and 224/91, respectively, against the petitioners, at Police Station City Gojra, District Toba Tek Singh, for the offences under Article 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter to be referred to as Order, 1979).
2. Brief facts leading to the filing of the present petitions are that on 23-6-1990 at 4-50 p.m. Khizar Hayat Goraya, Excise Inspector, on receipt of a secret information that the petitioners, who run a medical store in the name and style of Pak Health Service in Gojra, used to sell liquor illegally, deputed Muhammad Iqbal Constable as a decoy purchaser, who after some time produced four Poundas (bottles) of liquor, allegedly having been purchased from the petitioners, which he took into possession and separated six ounces from each Poundas (bottle) for chemical analysis; and got registered F.I.R. No,176/90 at 5-00 p.m. On the same day. Thereafter, in order to recover the sale price of the abovesaid four Poundas (bottles) of liquor and for further recoveries etc. The said Khizar Hayat Goraya, Excise Inspector, constituted a raiding party, raided the shop of the petitioners and recovered a sum of Rs,4,110 from their respective pockets, including the amount of Rs,240 duly signed by him, alongwith 80 Poundas (bottles) liquor, each containing 12 ounces, which he took into possession and separated six ounces from each Poundas (bottle) for chemical analysis; and got registered the second F.I.R. No,178/90 at 6-05 p.m. On the same day. During the investigation of F.I.R. No,178/90, Mahmood Allauddin Pervez (petitioner No,2 herein) led to the recovery of five cartons containing 148 Pounds (bottles) of liquor, each containing 12 ounces, concealed under the stairs in the shop of his father, Aziz-ud-Din (petitioner No,1 herein), which the Investigating Officer, Javed Ali, Sub-Inspector, C.I.A., took into possession and separated six ounces from each Poundas (bottle) for chemical analysis; and got registered F.I.R. No,180/90 at 7-05 p.m. On the same day, against the petitioners.
' So far as the fourth case registered vide F.I.R. No,224/91, dated 30-6-1991 is concerned, it was registered after having received the report of the Chemical Examiner to the effect that the bottle sent to him contained coloured diluted ethanol with alcohol content 45.42% v/v which can cause intoxication, against Aziz-ud-Din only (petitioner No,1 herein) in respect of the alleged recovery of a carton containing 50 bottles, effected on 23-12-1990 at 10-00 a.m. In front of his shop i,e, Pak Health Service, by Zulfiqar Ali, S.I. On having received a secret information; which carton under the insistence of Aziz-ud-Din petitioner was opened before the Assistant Commissioner, Gojra, under whose orders one of the bottles recovered was sent for chemical analysis.
3. After usual investigation, the police sent up the challans in all the aforesaid cases to the learned trial Court. During the trial, the petitioners moved applications under section 249-A, Cr.P.C. In all the four cases for acquittal, which were dismissed vide orders dated 12-5-1992, and the revision petitions against the same were also dismissed vide orders dated 14-11-1992 by the learned Additional Sessions Judge, Toba Tek Singh, hence the present petitions.
4. The learned counsel for the petitioners contended for quashment of the proceedings arising out of the cases stated above, pending before the learned trial Court and submitted: ' Firstly, that as Aziz-ud-Din petitioner was a licence holder for the retail sale of medicines etc. Under the Drugs Act, 1976 and the Drug Rules, 1988, in addition to having been registered as a Homeopathic Practitioner and a Pharmacist, being a qualified dispenser (copies attached as Annexure C, A & B respectively in all the petitions), therefore, the recovery of 'senega tincture' from the premises of his medical store did not constitute any offence under any law, but specially under any provision of the Order, 1979.
' Secondly, that the recovery of tinctures i,e, tincture aurantii in F.I.Rs, Nos.176/90 and 178/90, tinctures aurantii and card co. In F.I.R. No,180/90 and tincture senega in F.I.R. No,224 of 1991, was duly established according to the reports of the Chemical Examiner (copies attached as Annexures E, E/1, E,E/2, E,E/1-2 and F,F/1 in Criminal Miscellaneous Nos.8-Q, 10-Q, 9-Q and 11-Q of 1993 respectively) and the said tinctures have been held to be medicinal preparation; and tincture senga has been defined as coloured diluted ethanol with alcohol content 55.42% v/v, as stated in the opinion sought in that respect by the prosecution, in British Pharmocopia at page 1319.
' Thirdly, that according to the reports of the Chemical Examiner the allegedly recovered stuff in the cases in question, have been held to be a sub-standard medicinal preparation, in respect of which, in answer to the inquiry of Superintendent of Police, it was further reported that "all tinctures can be used as an intoxicant due to the alcoholic contents if misused". Therefore, as the cases in question have been registered after raids and recovery/seizure of the stuff in question, no offence as such is made out because there is no allegation of the same having been drunk by the petitioners or made misuse of by making anyone else to become intoxicated by taking the same.
' Fourthly, that, in fact, mere sale thereof is even no offence, as Aziz-udDin petitioner was duly licensed to sell the same, as stated above, and according to report of District Drug Inspector (Annexure F/1 in Criminal Miscellaneous No,11-Q of 1993) the said recovered items can be sold to persons named therein, and that if sold to unauthorised persons etc. Which in any case is not the allegation of the prosecution itself in any one of the cases stated above the offence thus purported, if any, may file under the provisions of the Drugs Act, 1976, but is not covered under the provisions of Order, 1979, under which the petitioners are sought to be prosecuted in the aforementioned cases.
' Fifthly, that as neither the allegation is in respect of import/export of the recovered items nor of sale thereof; and as the recovered items are not covered by the definition of Article 2(h) of the said Order, 1979, as the said items per se are not intoxicating liquor, but substandard medicinal preparation, as stated by the Chemical Examiner in his reports, hence, no offence is made out as alleged.
' Lastly, the learned counsel contended for quashment of the cases in question by forcefully underlining the fact that the said cases had been registered against the petitioners out of sheer mala fides of the Police and Excise Officials concerned, which was obvious from the times and date of the registration thereof, i,e, F.I.Rs, Nos.176/90, 178/90 and 180/90 having been registered at 5-00, 6-05 and 7-05 p.m. Respectively on 23-6-1990. In respect of the fourth case the learned counsel pointed out that it was registered out of sheer mala fides and with the intent to victimize the petitioner in respect of the alleged recovery of the item stated therein, after about one year of having lodged the earlier cases; and further emphasised the mala fides of lodging the said cases by pointing out that even then it was registered after a lapse of six months on the receipt of the Chemical Examiner's Report, which in fact discloses no offence as stated above. For facility, reference is made to the said report, which is as follows:--- "The above bottle contains coloured diluted ethanol with alcohol contents 55.42 % v/v which can cause intoxication."
' In this respect, the learned counsel reiterated his argument that the said report by itself does not prove that the said recovered item otherwise was an intoxicating liquor, as covered under the provisions of Article 2(h) of the Order, 1979.
5. On the other hand, the learned counsel for the State opposed the present petitions for quashment of the cases in question by contending that the petitioners be directed to move the learned trial Court for the said relief, if made out in accordance with law, after the recording of some evidence in the said cases.
6. The Court has given its anxious consideration to the contentions raised for and against the quashment of the cases in question and perused the relevant record thereof and all the Annexures appended to the four petitions for quashment, with the help of the learned counsel for the parties.
7. The Court is constrained to observe that every contention of the learned counsel for the petitioners is duly supported by the documents on the record that fully support the petitioners' defence version to the effect that no offence is made out, even if the entire material brought on the record by the prosecution itself is accepted. In this respect, it has been taken notice of that petitioner No,1 was holder of a licence to run a medical store, from where the alleged recovery of items i,e, tinctures 'aurantii', 'card co.' and 'senega' had taken place, which were declared to be substandard medicinal preparation by the Chemical Examiner, as stated above, and that, if the same were in any manner substandard, the seller thereof may call for being proceeded against only under the provisions of the Drugs Act, 1976 and not under the provisions of Order, 1979, as the definition thereunder in Article 2(h) fails to cover the said items, as they are not liquids that are normally used for the purposes of intoxication, as stated therein. The said sub-Article (h) of Article 2 of the Order, 1979, is as follows:--- "(h) ' intoxicating liquor' includes toddy, spirits of wine, wine, beer and all liquids consisting of or containing alcohol normally used for purposes of intoxication, but does not include a solid intoxicant even if liquified."
' The word 'normally' has been underlined to emphasise that even for arguments sake, if it is to be conceded that the recovered items could be taken in quantities that may lead to intoxication, yet the misuse thereof as such will not bring them under the definition stated above, because they cannot be said to be normally used for the purposes of intoxication; and that in any case, the allegation herein is not to the effect that they were being used for the purposes of intoxication or had led to any one being intoxicated thereby. Therefore, it is further observed that as the recovered items are not covered by the said definition, no offence as alleged is made out against the petitioners under the provisions of Article 3/4 of the said Order, 1979. The Court is further constrained to observe that Aziz-ud-Din petitioner is a bona fide businessman, running a medical shop pursuant to holding a licence and is also a registered Homoepathic Practitioner and qualified dispenser, who was made a target of the present cases prosecution, despite the fact that the provisions of law invoked i,e, Order, 1979, were totally inapplicable in his respect and that if the said petitioner was guilty of storing or selling substandard medicinal preparation, as held by the Chemical Examiner's Reports, stated above, the cases in that respect could have been launched in accordance with the provisions of the Drugs Act, 1976 and the Drug Rules, 1988, under the facts and circumstances of the cases in question, but for the reasons best known to the complainants of the said cases i,e, Excise and Police officials, who were not competent to take action in respect of the items recovered, especially after the receipt of the report of the Chemical Examiner in their respect, and that they could only prosecute the petitioners, if it had been established that the petitioners were selling liquor or, as stated in the F.I.R. {{URDU TEXT}} in respect of which it may be repeated that no Report of the Chemical Examiner in respect of any one of the aforesaid cases, had specifically stated so, on the basis of which the prosecution launched against the petitioners by all the four F.I.Rs, stated above, could be sustained in law. The time, date and manner i,e, making raid one after the other on the same date at short intervals at the shop of the petitioners, and the registration of the fourth case, vide F.I.R. No,224 of 1991 after a lapse of about one year, lend a great force to the contention raised on behalf of the petitioners to the effect that the entire exercise of prosecution launched against them was based on patent mala fides of the officials concerned. To sum it up the Court is constrained to hold that allowing the proceedings in the instant cases, registered vide F.I.Rs, Nos.176/90, 178/90, 180/90 and 224/91, shall amount to abuse of be process of Court, that deserves to be quashed.
8. Therefore, pursuant to what has been stated above the present petitions, i,e, Criminal Miscellaneous Nos.8/Q, 9/Q, 10/Q and 11/Q of 1993, are allowed and the proceedings in the cases registered vide F.I.Rs, Nos.176 of 1990, 178 of 1990 and 180 of 1990 all dated 23-6-1990 and F.I.R. No,224 of 1991, dated 0-6-1991, under Article 3/4, Prohibition (Enforcement of Hadd) Order, 1979, t Police Station City Gojra, District Toba Tek Singh, pending before the ,earned trial Court, are hereby quashed.