President's Order No. 4 of 1979
February 9th, 1979
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: -
CHAPTER I
PRELIMINARY
1. | Short title, extent and commencement. (1) | This Order may be called the Prohibition (Enforcement of Hadd) Order, 1979. | | (2) | It extends to the whole of Pakistan. | | (3) | 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, - (a) | "adult" means a person who has attained the age of eighteen years or puberty; | (b) | "authorized medical officer" means a medical officer, however designated, authorized by the Provincial Government; | (c) | "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; | (d) | "buy" or "buying" includes any receipt by way of gift or otherwise; | (e) | "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; | (f) | "hadd" mean punishment ordained by the Holy Quran or Sunnah; | (g) | "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; | (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 liquefied; | (i) | "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; | (j) | "place" includes a house, shed, enclosure, building, shop, tent, vehicle, vessel and aircraft; | (k) | "prohibition Officer" means the Collector or any officer appointed or invested with powers under Article 21; | (l) | "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; | (m) | "rectification" includes every process whereby intoxicating liquor are purified, coloured or flavored by mixing any material therewith; | (n) | "sale" or "selling" includes any transfer by way of gift or otherwise; | (o) | "tazir" means any punishment other than hadd; and | (p) | "transport" means to move from one place to another. |
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CHAPTER II
PROHIBITION AND PENALTIES
3. | Prohibition of manufacture, etc, of intoxicants. 1[(1) | Subject to the provisions of clause (2) whoever (a) | import, exports, transports, manufactures or processes any intoxicant; or | (b) | bottles any intoxicant; or | (c) | sells or serves any intoxicant; or | (d) | 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 | |
2[(2) | Whoever - (i) | imports, exports, transports, manufactures, or traffics in, opium or coca leaf or opium or coca derivatives; or | (ii) | finances the import, export, transport, manufacture, or trafficking of, opium or coca leaf or opium or coco derivatives; |
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, - (a) | "ikrah" means putting any person in fear of injury to the person, property or honour of that or any 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. |
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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:- (a) | the accused makes before a court of competent jurisdiction a confession of commission of drinking liable to hadd; and | (b) | 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. |
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. (1) | Hadd shall not be enforced in the following cases, namely:- (a) | when drinking is proved only by the confession of the convict but he retracts his confession before the execution of hadd; and | (b) | 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. |
| | (2) | 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- (c) | 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; | (d) | being a non-Muslim citizen of Pakistan, is guilty of drinking, expect as a part of a ceremony prescribed by his religion; or | (e) | being a non-Muslim who is not a citizen of Pakistan, is guilty of drinking at a public place; |
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. (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 practitioner, 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. | |
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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. (1) | 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. | | (2) | 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. (1) | The following offences shall be cognizable, namely:- (a) | an offence punishable under Article 3; and | (b) | an offence punishable under Article 4, Article 8 or Article 11, if committed at a public place. |
| | (2) | No Court shall take cognizance of an offence punishable under- (a) | Article 12 or Article 13, save on a complaint made by the person in respect of whom the offence has been committed; and | (b) | Article 20, save on a complaint made by, or under the authority of, a Prohibition Officer. |
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CHAPTER III
LICENCES FOR MEDICAL OR SIMILAR OTHER PURPOSES
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,- (a) | 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 | (b) | 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 (1) | The Collector may cancel or suspend a licence- a. | if any fee payable by the holder thereof be not duly paid; or | b. | 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. |
| | (2) | The collector shall cancel a licence if- or (a) | the holder thereof is convicted of any offence under this order; | (b) | the purposes for which the licence is granted cease to exist. |
| | (3) | 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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CHAPTER IV
ESTABLISHMENT AND CONTROL
21. | Appointment of officers.
The Provincial Government may, 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 designation, 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. |
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CHAPTER V
POWERS, DUTIES AND PROCEDURE OF OFFICERS, ETC.
22. | Issue of search warrant. (1) | 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. | | (2) | 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.- (1) | 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. | | (2) | 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. (1) | 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 | | (2) | 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. | | (3) | 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. | | (4) | 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. (1) | The Provincial Government may, by notification in the official Gazette, make rules for the purpose of carrying into effect the provisions of this Order. | | (2) | In particular and without prejudice to the generality of the forgoing provision, the Provincial Government may make rules- (a) | for issue of lances and the enforcement of the conditions thereof; | (b) | prescribing the powers to be exercised and the duties to be performed by Prohibition Officer in furtherance of the objects of this Order; | (c) | determining the local jurisdiction of prohibition Officer in regards to inquires and investigations; | (d) | authorizing any officer to exercise any power or perform any duty under this Order; | (e) | regulating the delegation by the Collector or other Prohibition Officers of any powers conferred on them by or under this Order; | (f) | 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; | (g) | for the disposal of articles confiscated and of the proceeds thereof; and | (h) | 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:- (a) | The Prohibition Act, 1977; | (b) | The Baluchistan Prohibition Ordinance, 1978; | (c) | The North-West Frontier Province Prohibition Ordinance, 1978; | (d) | The Punjab Prohibition Ordinance, 1978; and | (e) | The Sind Prohibition Ordinance, 1978. |
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THE SCHEDULE
See Article 2 (g)
1. | The leaves, small stalks and flowering or fruiting tops of the Indian hemp plant (cannabis satiya L. including all forms known as Bhang Siddhi or Ganja). |
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2. | Charas, that is, the resin obtained from the Indian hemp plant, which has not been submitted to any manipulations other then those necessary for packing or transport. |
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3. | Any mixture, with or without neutral materials, of any of the articles mentioned in entries 1 & 2, or any drink prepared there from. |
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4. | Opium and opium derivatives as defined in the Dangerous Drugs Act, 1930 (II of 1930). |
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5. | Coca leaf and coca derivatives as defined in the aforesaid Act. |
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6. | Hashish. |
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Thanks:: Mr. Abdul Hameed Cheema <[email protected]>
Notes
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.