' Appellants Muhammad Aslam and Muhammad Pervez now confined in District Jail, Quetta were convicted under Article 8 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Prohibition Order or the said Order) and each of them was sentenced to whipping 80 stripes. This punishment is termed as "Hadd" and proviso to Article 8 of the Prohibition Order puts a bar on its execution unless it is confirmed by Court to which an appeal from the order of conviction lies. Till such time the convict has to be dealt in accordance to the provisions of the Code of Criminal Procedure, 1898 relating to the grant of bail or suspension of sentence. Criminal Reference No,2/1 of 1995 and Jail Criminal Appeal No,66/Q of 1995 in respect of these applicants are still pending for their disposal. The delay in their disposal demanded this Court to consider their bail as requested by applicant/convict/ appellant Muhammad Aslam,
2. Instead of narrating the prosecution story in detail or the defense taken by the applicant it may suffice to say that:
(a) As per prosecution claim radiated by F.I.R. No,2/95 dated 3-3-1995 both the appellants were found drunk on that day on a road. Hence they were booked under Article 8 of the Prohibition Order and then sent to a hospital for medical examination. Their blood and urine were taken and sent to Chemical Examiner, Karachi. The certificates issued by the Chemical Examiner showed Ethyle Alcohol 86% in the blood as well as in the urine. The prosecution in support of their case examined Dr. Abdul Rashid Jamal (P.W.1), Abdul Ghafoor, Constable (P.W.2) and Faiz Ahmad, A.S.-I.
(complainant and Investigating Officer) and then closed its side.
(b) Contrary to the above the applicants denied the allegations leveled against them. They got them examined under section 342, Cr.P.C. As well as on oath under section 340(2), Cr.P.0 in their own defense. According to their defense theory they were going on their bicycle on 3-3-1995. One police vehicle hit their bicycle. Due to that there was quarrel between the applicants and the police.
Thus, the police falsely implicated them in the case.
(c) The learned trial Judge did not believe the story advanced by the applicants and sentenced them to bear Hadd punishment ' The operative part of impugned judgment reads as follows:-- "It is very strange to say that it was very petty matter and due to that reason police could have not implicated accused in the false case rather for some time the police could have detained the accused in the lockup.. ..Plea of accused is afterthought hence rejected."
' These lines leave no doubt that the learned trial Court had drawn an impression based on presumption that the police personnel's were too honest to implicate a citizen in a false case on a petty matter. Thus, relying upon the statement of P.Ws. The learned trial Court held the prosecution had proved its case beyond shadow of doubt. Perhaps trial Court considered police personnel's as angels.
3. I have avoided giving all other details of the prosecution evidence because a Full Bench has still to decide the pending reference and the appeal on merits. Therefore I would like to limit myself to a law point which put the case of appellant in the ambit of further enquiry. This law point requires this Court to find out circumstances in which an accused can be convicted under Article 8 of the Prohibition Order. It would be advantageous to reproduce the said Article hereinbelow:-- "Drinking liable to Hadd.--Whoever being an adult Muslim takes intoxicating liquor by mouth is guilty of drinking .Liable to hadd and shall be punished with whipping numbering eighty stripes: (Underlining is my own)
' Provided......................
' The word "drinking" used in this Article has been explained in Articles 6 and 7 of the said Order as under:-- 6 Drinking.--- Whoever intentionally and without Ikrah or Iztirar takes an intoxicant by any means whatsoever whether such taking causes intoxication or not shall be guilty of drinking."
' Explanation.--In this Article:--
(a) "Ikrah" means putting any person in fear of injury to the person property or honor of that or any other person; and.
(b) "Iztirar" means a situation in which a person is in apprehension of death due to extreme hunger or thirst or serious illness.
7. Two kinds of drinking.--Drinking may be either drinking liable to Hadd or drinking liable to Ta'zir."
4. A simple perusal of Articles 6, 7 and 8 of the Prohibition Order as reproduced in the above lines leaves no doubt that for the purpose of convicting an accused under Article 8 of the Prohibition Order it is necessary for the prosecution to bring on record that:--
(i) The accused is an adult;
(ii) The accused is a Muslim;
(iii) The accused has taken liquor by mouth; and
(iv) The accused has taken intoxicant intentionally without Ikrah and Iztirar.
"If all the four conditions are fulfilled it is only then that Court can punish the accused with whipping numbering eighty stripes."
' But for this purpose to the proof of drinking depends upon the following:--
(i) The accused persons confess their guilt of drinking intoxicant before a Court of competent jurisdiction; or
(ii) in case of denial of the guilt (means in absence of their confession) the Court succeeds to get evidence of persons against the accused who are (4) at least two in number, (b) Muslims, (c) adult, (d) about whom the Court is satisfied as a result of secret mode of enquiry (means by way of tazkiyah-al-Shuhood) adopted by a Court to satisfy itself as to the credibility of a witness) that they are truthful person; and
(v) who abstain from major sins (Kabair)
' If any of the conditions as discussed above is not available to the Court then imposition of Had punishment i,e, whipping numbering eighty stripes under Article 8 of the Prohibition Order may not be sustainable.
5. The impugned judgment of the learned trial Judge is silent on several IA points particularly on the point of Tazkiyah-al-Shahood regarding inquiry to find out the credibility of witnesses.
6. In these circumstances this Court has still to decide at the time of final hearing of this appeal as well as the reference as to whether the punishment of Hadd would be sustainable or not or whether the applicants would be awarded the punishment of Ta'zir under Article 11 of the Prohibition Order in case the punishment of Had is not found sustainable.
7. The punishment under Ta'zir under Article 11 of the Prohibition Order may extend to three years or with whipping not exceeding thirty stripes or fine. As the sentence of whipping in the cases of Tazir has been dropped under Abolition of punishment of Whipping Act VII of 1996, therefore, the applicants may be sentenced to suffer up to three years' R.I. Or S.I. (the relevant provision whether such sentence would involve R.I. Or S.I. Is silent on this point) or fine or both. As the sentence is very limited in case the cases falls within Ta'zir, therefore, they are granted bail in the sum of Rs,25,000.
Criminal Miscellaneous No,45/Q of 1996 stands disposed of.
8. By a short order I had granted bail to the applicants and these are the reasons for passing the said order.