The following complaint (English translation) was made at 10-45 p.m. On 13-9-1993 at P.S. New Foujdari, District Shikarpur, by Additional S.H.O. Mushtaq Ahmad Memon, under Article 20 of the Prohibition (Enforcement of Hadd) Order, 1979:--- "We lodge F.I.R. On behalf of the State that today we were sitting at P.S. When S.D.M., Shikarpur Mr. Tahir Khurshid Barar ordered us on telephone that one officer a staff clerk be sent to him at City Court. We alongwith H.C. Walidar, PC Imamuddin duly armed in police uniforms left P.S. After making entries vide No.17-1945/13-9-1993. We met SDM at City Court who informed us that the wine is being sold to Muslims without permits by Lucky Wine Shop. At 8-00 p.m. We reached outside Lucky Wine Shop and found one person came out with a plastic shopping bag and reached to the main road. We stopped that person produced before SDM, Shikarpur and inquired from him, who declared that there are 4 quarts of wine which he had purchased from Lucky Wine Shop at Rs.480.
The police secured the shopping bag and found 4 quarts of wine in the bag. That person gavr his name as Arif Ali son of Abdul Malik Moryapi resident of Nabi Shah Mohallah, Shikarpur in presence of Mashirs Samander Ali s/o Sikandar Ali Khoharo Reader of SDM, Shikarpur and HC Walidad. The culprit was arrested under section 4 of the Prohibition (E.H.O.) and searched his persons but could not secure anything from his personal search. The wine was sealed separately. Accused Asif Ali pointing towards employees present in the shop declared that he has purchased the wine from them. In the meantime one person having money in his right hand came down from the shop and tried to slip. This man was apprehended and found Rs.480 in his hand which were secured. He gave his name as Ranjhan son of Muhammad Hassan by caste Soomro resident of Khanchand Abad Shikarpur and stated that he has sold the 4 quarts of wine to that Muslim without permit in that amount. One person was standing on the counter in the shop, we alongwith SDM, Shikarpur went inside the shop and inquired about his name and presence there. He gave his name as Inder Lai son of Thandho Mal Hindu resident of Kakran-jo-Thalho Shikarpur and he further said that he and Ranjhan are employees of one Seth Chavila, at the Lucky Wine Shop. In front of counter near the floor 113 permits of wine in different names and 51 blank permit forms were lying, which were secured in presence of SDM, Shikarpur and were sealed. As the accused Ranjho Soomro and Inder Lai Hindu have breached and violated the terms and conditions of the licence for wine and sold the wine to a Muslim. Hence he has committed the offence under Article 20 of the Prohibition (Enforcement of Hadd) Order, 1979, hence they were arrested. The person of Ranjho was searched and secured Rs.700 from the front pocket of shirt, from the search of Inder Lai Rs.5,000 of the following description were sect,fgd. On interrogation accused Inder Lai and Ranjho Soomro informed us about money secured from their possession that it was a sale money of wine which was sold to Muslims. We brought the accused in custody and property at P.S. Where the F.I.R. Is lodged on behalf of the State."
2.On the said complaint a formal F.I.R. No.91 of 1993 was recorded against the two petitioners, Inder Lai son of Thadho Mal and Ranjhan son of Muhammad Hussain on behalf of the State. The Additional S.H.O. New Faujdari P.S. Investigated the case and submitted report under section 173, Cr.P.C. With a challan before the S.D.M., Shikarpur who, after taking cognizance under section 190(1)
(b), Cr.P.C., sent up the case to the Sessions for trial and the learned Sessions Judge then took cognizance under section 190(3), Cr.P.C. The petitioners have challenged the taking of cognizance on the said F.I.R. Iii this Constitutional Criminal Revision. I have heard the arguments of Mr. Fareed Ahmed Dayo, learned counsel for the petitioners, and Miss Nasreen Zafar, learned counsel for the State. .
3. The F.I.R. Was lodged against the petitioners under Article 20 of the Prohibition (Enforcement of Hadd) Order, 1979, which is to the following effect:--- "20. Penalty for the breach of conditions of licence.---In the event of any breach by the holder of a licence, or by his servant or by one acting with his express or implied permission on his behalf, of any of the terms and conditions of the licence, such holder shall, in addition to the cancellation or suspension of the licence, and in addition to any other punishment to which he may be liable under this Order, be punishable with imprisonment for life or with imprisonment which is not less than two years and with fine, unless he proves that he exercised all due diligence to prevent such breach, and any such person who commits any breach shall, whether he acts with or without the permission of the holder of the licence, also be liable to the same punishment." .
4. Learned counsel for the petitioners first referred to Article 16(2)(b) of the Prohibition 10rder. 1979, according to which provision, no Court shall take cognizance of an offence punishable under Article 20, save on a complaint made by, or under the authority of a Prohibition Officer. He then referred to Article 2(k) which defines "Prohibition Officer" as the Collector or any officer appointed or invested with powers under Article 21. The term "Collector" is defined in Article 2(e) as meaning any person appointed under the Prohibition Order, 1979, to exercise or perform all or any of the powers or functions of a Collector under the said Order. Article 21 specifies the mode of appointment of Collector and Prohibition Officers and the said provision read as follows: -- "21. Appointment of officers.---The Provincial Government day, from time to time, by notification in the official Gazette--
(a) appoint an officer to exercise all the powers of a Collector under this Order in any area specified in the notification and to have the control of the administration of the provisions of this Order in such area;
(b) appoint officers with such designations, powers and duties as the Provincial Government may think fit to assist the Collector or other Prohibition Officer; and
(c) delegate to any Prohibition Officer all or any of its powers under this Order. "
5. The contention raised on behalf of the petitioners by Mr. Fareed Ahmad Dayo, Advocate, was that Mushtaq Ahmad Memon, Additional S.H.O. Of Police - Station New Faujdari, Shikarpur, was neither the Collector nor a Prohibition Officer appointed or designated as such by any Gazette Notification of the Government of Sindh nor. The said complaint was made by the Additional S.H.O under the authority. Of a Prohibition Officer.. According to learned counsel for the petitioners, in view of the specific bar placed by Article 16(2)(b) of the Prohibition Order, 1979, no cognizance could be taken either by the Magistrate or by the learned Sessions Judge on such unauthorised and incompetent complaint
6. This Constitutional Revision Petition was admitted to regular hearing on 17-4-1994. It came up for regular hearing on 27-4-1994 when the counsel then appearing for the State requested for time to obtain copy of the relevant Gazette notification of the Government of Sindh. At his request, the hearing was adjourned to a date in office. The matter then was fixed for hearing before this Court on 11-5-1994 when further time was requested on behalf of the State to produce the notification whereby the Additional S.H.O. Mushtaq Ahmad Memon, had been designated as Prohibition Officer under Article 16(2)(b) read with Article 21 of the Prohibition Order, 1979, and the Sindh Prohibition Rules, 1979. The hearing was again adjourned with a direction that learned counsel for the State may call the Investigating Officer, at the relevant time the Additional S.H.O. New Faujdari P.S. Shikarpur alongwith police papers on the next date. The matter then came up before me for regular hearing on 29-10-1995 when counsel for the petitioners and the State appeared. Mushtaq Ahmad Memon, who was at the relevant time Additional S.H.O., New Foujdari, District Shikarpur, and presently posted as S.H.O. Kot Shaho, District Shikarpur, appeared and on being asked he stated that he had lodged the complaint on the directions of the S.D.M., Shikarpur, and that he did not hold any order or notification whereby he had been notified as a Prohibition Officer under the Prohibition (Enforcement of Hadd) Order, 1979. Mr. Fareed Ahmad. Dayo, learned counsel for the petitioners, made his submissions on 29-10-1995, but Miss Nasreen Zafar, learned counsel for the State, sought a short adjournment to address the Court and to produce the relevant notification, if issued by the Sindh Government. Hearing was adjourned for today.
7. Miss Nasreen Zafar, learned counsel for" the State, has frankly submitted that no such notification is available whereby Mushtaq Ahmad Memon, the then Additional S.H.O., had been designated as a Prohibition Officer under the provisions of the Prohibition Order, 1979, or under which Additional S.H.Os. In Sindh had been designated as such. Learned counsel for the State could not controvert the contention that for any Court to take cognizance of an offence under Article 20 of the Prohibition Order, 1979, it was mandatory that there should be a complaint and such complaint be made by or under the authority of a notified Prohibition Officer.
8. On a perusal of Article 16(2)(b) of the Prohibition Order, 1979, it is found that the language employed in the said provision is couched in negative terms. As noted, the said provision provides that no Court shall take cognizance of an offence punishable under Article 20 except on a complaint made by or under the authority of a Prohibition Officer. In a recent decision of the Supreme Court of Pakistan in the case of Shujat Hussain v. State 1995 SCM R 1249, it was observed as follows:--- "It is well-settled principle of interpretation of statutes that where any provision couched in negative language requires an act to be done in a " particular manner then it should be done in the manner as required by the statute otherwise such act will be illegal. "
In view of the above principle, as Article 16(2)(b) of the Prohibition Order, 1979 has been couched in negative terms, no cognizance of an offence under Article 20 can be taken by any Court except on a complaint made by or under the authority of a notified Prohibition Officer. In the present case, no notification of the Sindh Government has been produced to show that the said complaint had been filed by or under the authority of a competent officer. This petition has been pending for over one-and-a-half years and, despite time being taken, no notification has been produced. It has been stated by the then Additional S.H.O. That the complaint was lodged under the orders of the S.D.M., Shikarpur, but as regards S.D.M., Shikarpur also, no notification has been produced to show that the S.D.M. Had been notified as a Prohibition Officer. In the circumstances, it has to be presumed that no such notification has been issued.
The said complaint not having been filed by or under the authority of a notified Prohibition Officer, no cognizance could be taken on such complaint, in view of the clear prohibition of Article 16(2)(b) of the Prohibition Order, 1979. The proceedings taken on such complaint being illegal are liable to be quashed.
9. As a result, Constitutional Criminal Revision No.10/K of 1994 is allowed, and the cognizance and proceedings taken against the petitioners on the said complaint are hereby quashed.