WHEREAS it is necessary to modify the existing law relating to
prohibition of intoxicants so as to bring it in conformity with the
Injunctions of Islam as set out in The Holy Quran and Sunnah;
Now, THEREFORE, in pursuance of the Proclamation of the fifth day of
July, 1977, read with the Laws (Continuance in Force), Order, 1977
(C.M.L.A. Order No. l of 1977), and in exercise of all powers enabling
him in that behalf, the President and Chief Martial Law Administrator
is pleased to make the following Order: -
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1.
| Short title, extent and commencement.
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(1)
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This Order may be called
the Prohibition (Enforcement of Hadd) Order, 1979.
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(2)
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It extends to the whole of Pakistan. |
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(3)
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It shall come into force on the twelfth day of Rabi-ul-Awwal, 1399
Hijri that is, the 10th day of February 1979.
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2.
| Definitions.
In this Order, unless there is anything repugnant in
the subject or context, -
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(a)
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"adult"
means a person who has attained the age of eighteen years or
puberty;
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(b)
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"authorized medical officer" means a medical officer,
however designated, authorized by the Provincial Government;
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(c)
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"bottle" or "bottling" means to transfer intoxicating
liquor from a cask or other vessel to a bottle, jar, flask, pot or
similar receptacle for the purpose of sale, whether any process of
manufacture be employed or not and includes rebottling;
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(d)
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"buy" or "buying" includes any receipt by way of gift
or otherwise;
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(e)
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"Collector" means any person appointed under this Order to
exercise or perform all or any of the powers of functions of a
Collector under this Order;
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(f)
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"hadd" mean punishment ordained by the Holy Quran or
Sunnah;
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(g)
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"intoxicant" means an Article specified in the Schedule and
includes intoxicating liquor and other Article or any substance which
the Provincial Government may, by notification in the official
Gazette, declare to be an Intoxicant for the purposes of this Order;
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(h)
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"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 liquefied;
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(i)
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"manufacture" includes every process, whether natural or
artificial, by which any intoxicant is produced, prepared or blended,
and also re-distillation any every process for the rectification of
intoxicating liquors;
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(j)
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"place" includes a house, shed, enclosure, building, shop,
tent, vehicle, vessel and aircraft;
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(k)
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"prohibition Officer" means the Collector or any officer
appointed or invested with powers under Article 21;
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(l)
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"public place" means a street, road, thoroughfare, park,
garden or other place to which the public have free access and
includes a hotel, restaurant, motel, mess and club, but does not
include the residential room of a hotel in the occupation of some
person;
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(m)
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"rectification" includes every process whereby intoxicating
liquor are purified, coloured or flavored by mixing any material
therewith;
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(n)
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"sale" or "selling" includes any transfer by way of
gift or otherwise;
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(o)
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"tazir" means any punishment other than hadd; and |
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(p)
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"transport" means to move from one place to another. |
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3.
| Prohibition of manufacture, etc, of intoxicants.
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1[(1)
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Subject to the provisions of clause (2) whoever
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(a)
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import, exports, transports, manufactures or processes any intoxicant; or |
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(b)
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bottles any intoxicant; or |
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(c)
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sells or serves any intoxicant; or |
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(d)
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allows any of the acts aforesaid upon premises owned by him or in his immediate possession; |
shall be punishable with imprisonment of either description for a term, which may extend to five years and with whipping
not exceeding thirty stripes, and shall also be to fine.] 1 |
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2[(2)
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Whoever -
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(i)
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imports, exports, transports, manufactures, or traffics in, opium or coca leaf or opium or coca derivatives; or |
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(ii)
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finances the import, export, transport, manufacture, or
trafficking of, opium or coca leaf or opium or coco derivatives;
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shall be punishable with imprisonment for life or with imprisonment, which is not less than two years and with whipping not
exceeding thirty stripes, and shall also be liable to fine.] 2 |
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4.
| Owning or possessing intoxicant.
Whoever owns, possesses or keeps in his
custody any intoxicant shall be punished with imprisonment of either description for a term, which may extend to two years,
or with whipping not exceeding thirty stripes, and shall also be liable to fine:
Provided that nothing contained in this Article shall apply to a non-Muslim foreigner or to a non-Muslim citizen of Pakistan who keeps
in his custody at or about the time of a ceremony prescribed by his religion a reasonable quantity of intoxicating liquor
for the purpose of using it as a part of such ceremony:
3[
Provided further that if the intoxicant in respect of which the offence is committed is heroin, cocaine, 4[] 4 opium or coca leaf, and the quantity exceeds ten grams in the case of heroin or cocaine or one kilogram in the case of 5[] 5 opium or coca leaf, the offender shall be punishable with imprisonment for life or with imprisonment which is not less than
two years and with whipping not exceeding thirty stripes, and shall also be liable to fine.
] 3 |
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5.
| Article 3 or Article 4 not to apply to certain acts.
Nothing contained in Article 3 or Article 4 shall apply to any act done under, and in accordance with, the provision of this
Order, or the terms of any rule, notification, order or license issued there under. |
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6.
| Drinking.
Whoever, intentionally and without ikrah or iztirar, takes an intoxicant by any means whatsoever, whether such taking causes
intoxicant or not, shall be guilty of drinking.
Explanation. - In this Article, -
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(a)
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"ikrah" means putting any person in fear of injury to the
person, property or honour of that or any person ;and
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(b)
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"iztirar" means a situation in which a person is in
apprehension of death due to extreme hunger or thirst or serious
illness.
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7.
| Two Kinds of drinking.
Drinking may be either drinking liable to
hadd or drinking liable to tazir. |
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8.
| 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.
Provided that punishment shall not executed unless it is confirmed by
Court to which an appeal from the order of conviction lies; and, until
the punishment is confirmed and executed, the convict shall, subject
to the provisions of the code of criminal procedure, 1898, relating to
the grant of bail or suspension of sentence, be dealt with in the same
manner as if sentenced to simple imprisonment.
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9.
| Proof of drinking liable to hadd.
The proof of drinking liable
hadd shall be in one of the following forms, namely:-
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(a)
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the accused makes before a court of competent jurisdiction a
confession of commission of drinking liable to hadd; and
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(b)
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at least two Muslim adult male witness, about whom the court is
satisfied, having regard to the requirement of tazkiyah al-shuhood,
that they are truthful persons and abstain from major sins (kabair),
give evidence of the accused having committed the offence of drinking
liable to hadd.
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Explanation.- In this Article, tazkiyah al-shuhood means the mode of
inquiry adopted by a court to satisfy itself as to the credibility of
a witness.
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10.
| Cases in which hadd shall not be enforced.
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(1)
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Hadd shall not be
enforced in the following cases, namely:-
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(a)
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when drinking is proved only by the confession of the convict but
he retracts his confession before the execution of hadd; and
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(b)
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when drinking is proved by testimony, but before the execution of
hadd, any witness resiles from his testimony so as to reduce the
number of witness to less than two.
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(2)
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In a case mentioned in clause (1), the Court may order retrial in
accordance with the Code of Criminal Procedure, 1898.
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11.
| Drinking liable to tazir.
Whoever-
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(c)
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being a Muslim, is guilty of drinking,
which is not liable to hadd under Article 8 or which proof in either
of the forms mentioned in Article 9 is not available and the court is
that the offence stands proved by the evidence on the record;
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(d)
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being a non-Muslim citizen of Pakistan, is guilty of drinking,
expect as a part of a ceremony prescribed by his religion; or
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(e)
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being a non-Muslim who is not a citizen of Pakistan, is guilty of
drinking at a public place;
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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 stripes, or with both. |
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12.
| Arrest on suspicion of violation of Article 8 or
Article 11.
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(1)
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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 practitioner, is certified
by him to have taken an intoxicant.
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(2)
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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.
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13.
| Punishment for vexatious delay.
Any officer or person exercising
powers under this order who vexatiously and unnecessarily
delays forwarding to a prohibition officer any person
arrested or any Article seized under this order shall be
punishment with fine which fine which may extend to one
thousands rupees. |
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14.
| Things liable to confiscation.
In any case in which an offence
has been committed under this Order, the intoxicant, still,
utensil, implement or apparatus in respect or by means of
which the offence has been committed shall be liable to
confiscation along with the receptacles, packages, covering,
animals, vessels, carts or other vehicles, used to hold or
carry the same. |
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15.
| Confiscation how ordered.
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(1)
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In any case involving liable
to confiscation under this Order, the Court deciding the
case may order such confiscation despite the acquittal of
the person charged.
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(2)
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When an offence under this Order has been committed but the
offender is not known or cannot be found, or when anything
liable to confiscation under the Order and not in the possession
of any person cannot be satisfactorily accounted for, the case
shall be inquired into and determined by the collector or other
Prohibition Officer in charge of the District or any other
officer authorised by the Provincial Government in this behalf,
who may order such confiscation:
Provided that no such order shall be made until the expiration of
fifteen days from the date of seizure of the things intended to be
confiscated or without hearing the persons, if any, claiming any right
thereto, and evidence, if any which they produce in support of their
claims.
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16.
| Cognizance of certain offences.
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(1)
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The following offences
shall be cognizable, namely:-
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(a)
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an offence punishable under Article 3; and |
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(b)
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an offence punishable under Article 4, Article 8 or Article 11, if
committed at a public place.
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(2)
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No Court shall take cognizance of an offence punishable under-
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(a)
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Article 12 or Article 13, save on a complaint made by the person
in respect of whom the offence has been committed; and
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(b)
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Article 20, save on a complaint made by, or under the authority
of, a Prohibition Officer.
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17.
| Licences for bona fide medicinal or other purposes.
The
Provincial Government or, subject to the Provincial
Government, the Collector, may issue licenses to any
person in respect of any institution, whether under the
management of Government or not,-
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(a)
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for the manufacture, import, transport, sale or possession of
any intoxicant or Article containing intoxicant liquor on the ground
that such intoxicant or Article is required by such person in respect
of such institution for a bona fide medicinal, scientific, industrial
or similar other purposes or for consumption by non-Muslim citizen of
Pakistan as a part of a religious ceremony or by a non-Muslim
foreigner; or
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(b)
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for the export of any intoxicant liquor. |
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18.
| Forms and conditions of Licences.
Every license issued under
this order shall-
(a) be granted on payment of such fee, if any, for such period and on
such condition; and
(b) be in such form and contain such particulars, as the Provincial
Government may direct, either generally or in any particular case. |
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19.
| Power to cancel or suspend Licences
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(1)
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The Collector
may cancel or suspend a licence-
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a.
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if any fee payable by the holder thereof be not duly paid; or |
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b.
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in the event of any breach by the holder thereof or by his servant
or by any one acting with his express or implied permission on his
behalf of any of the terms or condition of the licence.
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(2)
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The collector shall cancel a licence if-
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(a)
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the holder thereof is convicted of any offence under this order; |
or
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(b)
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the purposes for which the licence is granted cease to exist. |
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(3)
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as and when any licence is cancelled under clause (1) or
clause (2), the holder thereof shall at once declare to the
Collector the stock of intoxicating liquor or Articles
containing such liquor lying with him, and dispose of stock
to such authorised person as the Collector may specify.
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20.
| Penalty for the breach of condition of licence
In the event of
any breach by the holder of a licence, or by his servant or by
one acting with his expert 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 6[for life or with imprisonment
which is not less than two years] 6 and with fine, unless proves
that he exercised allude 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 same the punishments. |
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22.
| Issue of search warrant.
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(1)
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If any Collector, Prohibition
Officer or Magistrate, upon information obtained and after such
inquiry as he thinks necessary, has reason to believe that an
offence under Article 3, Article 4, Article 8, or Article 11 has
been committed, he may issue a warrant for the search for any
intoxicant, material, still, utensil, implement or apparatus in
respect of which the alleged offence has been committed.
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(2)
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Any person who has been entrusted with the execution of such
a warrant may detain and search and, if he thinks, proper,
but subject to the provisions of clause (1) of Article 12,
arrest any person found in the place searched, if he has
reason to believe such person to be guilty of an offence
under Article 3, Article 4, Article 8, or Article 11.
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23.
| Powers of Prohibition Officer
In addition to the powers
conferred on him by the forgoing provisions of this Order, a
Prohibition Officer shall have all the powers conferred on the
officer in charge of a police station while conducting an
investigation into cognizable offence. |
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24.
| Enhanced punishment for certain offences after previous
conviction.
Whoever, having been convicted by a court of an
offence punishable under this Order, shall be guilty of that
offence shall, in addition to the punishment provided for that
offence, be awarder for every such subsequent offence the
punishment of imprisonment provided for that offence. |
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25.
| Punishment for attempt to commit offence punishable under this
Order.
Whoever attempts to commit an offence punishable under
this Order or to cause such an offence to be committed, and in such
attempt does any act towards the commission of the offence, shall be
punished, in the case of an offence punishable under Article 8, with
rigorous imprisonment for a term which may extend to two years, and in
other cases with imprisonment for a term which may extend to one-half
of the longest term provided for that offence, or with such whipping
or fine as is provided for the offence, or with any two of ,or all,
the punishment. |
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26.
| Application of certain provisions of Pakistan Penal Code.-
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(1)
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Unless otherwise expressly provided in this Order, the provisions
of sections 34 to 38 of Chapter II, section 63 to 72 of Chapter
III, and Chapter V and VA of the Pakistan Penal Code shall apply
in respect of offences under this Order.
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(2)
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Whoever is guilty of the abetment of an offences liable to hadd
under this order be liable to the punishment provided for such
offence as tazir.
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27.
| Application of the code of criminal procedure, 1898.
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(1)
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Unless
otherwise expressly provided in this order, the provisions of the
code of criminal procedure, 1898, hereinafter referred to as the
said code, shall apply, mutates mutandis, in respect of cases
under this order:
Provided that, if it appears in evidence that the offender has
committed a different offence under any other law, he may, if the
court is competent to try that offence and to award punishment
therefore, be convicted and punished for that offence 7[:] 7
8[
Provided further that an offence punishable under Article 8
shall be triable by a court of session and not by a magistrate
authorised under section 30 of the said code and an appeal from
an order under that Article 9[or from an order under any other
provision of this order which imposes a sentence of
imprisonment for a term exceeding two years] 9 shall lie to the
Federal Shariat Court:
Provided further that a trial by a court of session under this
order shall ordinarily be held at the Headquarter of the Tehsil in
which the offence is alleged to have been committed.
] 8
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(2)
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The provision of the said code relating to the confirmation of the
sentence of death shall apply, mutates mutandis, to the
confirmation of a sentence under this order.
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(3)
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The provision of sub-section (3) of section 391 or section 393 of
the said code shall not apply in respect of the punishment of
whipping awarded under this order.
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(4)
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The provision of chapter XXIX of the said code shall not apply in
respect of the punishment awarded under Article 8.
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28.
| Indemnity.
No suit, prosecution or other legal proceeding
shall lie against a Provincial Government, a police officer,
a Prohibition Officer or any other officer in respect of
anything, which is in good faith done under this order or the
rules, made there under. |
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29.
| Order to override other laws.
This order shall have effect
notwithstanding anything contained in any other law for the
time being in force. |
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30.
| Presiding officer of court to be a Muslim.
The presiding officer
of the court by which a case is tried, or an appeal is heard,
under this order shall be a Muslim:
Provided that, if the accused is a non-Muslim, the presiding
officer may be a non-Muslim.
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31.
| Power to make rules.
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(1)
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The Provincial Government may, by
notification in the official Gazette, make rules for the
purpose of carrying into effect the provisions of this Order.
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(2)
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In particular and without prejudice to the generality of
the forgoing provision, the Provincial Government may make
rules-
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(a)
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for issue of lances and the enforcement of the conditions thereof; |
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(b)
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prescribing the powers to be exercised and the duties to be
performed by Prohibition Officer in furtherance of the objects of this
Order;
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(c)
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determining the local jurisdiction of prohibition Officer in
regards to inquires and investigations;
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(d)
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authorizing any officer to exercise any power or perform any duty
under this Order;
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(e)
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regulating the delegation by the Collector or other Prohibition
Officers of any powers conferred on them by or under this Order;
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(f)
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declaring in what cases or classes of cases and to what
authorities appeals shall lie from orders, whether original or
appellate, passed by an authority other then a Court under this Order
or under any rule made there under, or by what authorities such orders
may be revised, and prescribing the time and manner of presenting
appeals, and procedure for dealing therewith;
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(g)
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for the disposal of articles confiscated and of the proceeds
thereof; and
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(h)
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examination of persons referred to in Article 12. |
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32.
| Saving.
Nothing in this Order shall be deemed to apply to cases
pending before any Court immediately before the commencement
of this Order or to offences committed before such
commencement. |
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33.
| Repeal.
The following laws are hereby repealed, namely:-
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(a)
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The Prohibition Act, 1977; |
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(b)
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The Baluchistan Prohibition Ordinance, 1978; |
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(c)
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The North-West Frontier Province Prohibition Ordinance, 1978; |
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(d)
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The Punjab Prohibition Ordinance, 1978; and |
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(e)
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The Sind Prohibition Ordinance, 1978. |
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1
Inserted
by Prohibition (Enforcement of Hadd) (Amendment) Order, 1983 (P.O. No. 12 of 1983).
2
Inserted
by Prohibition (Enforcement of Hadd) (Amendment) Order, 1983 (P.O. No. 12 of 1983).
3
Inserted
by Prohibition (Enforcement of Hadd) (Amendment) Order, 1983 (P.O. No. 12 of 1983).
4
The following was omitted by Act VI of 1994 : "raw".
5
The following was omitted by Act VI of 1994 : "raw".
6
Inserted
by Prohibition (Enforcement of Hadd) (Amendment) Order, 1983 (P.O. No. 12 of 1983).
7
Substituted
by Prohibition (Enforcement of Hadd) (Amendment) Order, 1980 (P.O. No. 5 of 1980), Art. 2 for : ".".
8
Inserted
by Prohibition (Enforcement of Hadd) (Amendment) Order, 1980 (P.O. No. 5 of 1980), Art. 2.
9
Inserted
by Prohibition (Enforcement of Hadd) (Amendment) Order, 1982 (P.O. No. 6 of 1982), Art. 2.