PLD 1949 LAHORE 164
MUHAMMAD ASLAM…V…THE CROWN
Government of India Act (1935), S.298(1), (2)(b).
Constitution of Pakistan (1973) Art. 26
The grounds stated in this petition are firstly that the prohibition upon the possession by the petitioner of the two beer bottles is not applied by any Act or enactment having the force of law, that in consequence of the notification mentioned above, permits in Form P R II are being issued on application to every non-Muslim, but to Muslims only “on medical certificate” that by the notification there has been a delegation of power to the Excise and Taxation Commissioner, (hereafter referred to as Taxation Commissioner, his function as Taxation Commissioner being irrelevant to the purpose of this discussion) which is ultra vires on the Principle that a delegated power cannot be further delegated and finally that the legal provisions, if valid under the Punjab Excise Act, are illegal inasmuch as they contravene the provision of section 298, Government of India Act, 1935 since they prevent subjects from acquiring and holding liquor on the basis of their religion alone.
Some remarks may also be made regarding the discriminatory nature of the action taken under the notification of the 15th September 1948, and for this purpose it is necessary to refer also to Form P.R. I, which is prescribed for applications for the grant of a permit. Among the blanks in Form P.R. I one is for declaration of religion i.e. whether a Muslim or a non-Muslim, and there is a note which runs as follows: –
“for a permit for possession of liquor by a Muslim under medical orders, a Civil Surgeon’s certificate specifying the quantity of liquor should be added”.
Also in the heading of this form, it is made to appear clearly that the application is for permits either for personal consumption by non-Muslim, or for the possession of foreign liquor by Muslims under medical order. Muslims who are not required to take liquor under orders of their medical attendants would appear to be wholly debarred from possessing liquor. Moreover, a further obstruction is placed in the way of Muslims who whisk to possess foreign liquor even under medical order, in that they must produce a certificate from a Civil Surgeon, and thee are districts, i.e. 16. When ties is taken in conjunction with the strict conditions in Form P.R. II that liquor may not be possessed under the permit “in a residential house or building occupied by a Muslim” and that a permit-holder may not transfer or give and liquor to a Muslim, it become obvious that, in its operation the action taken by the provincial Government under subsection (4) of section 24 was such as made t impassable for all Muslims, except those falling in a very limited class, to possess, or even to partake of liquor. The argument that the permit and the application form emanated from the Excise Department would be of no avail to avoid the implication that such was the intention of the Government in issuing the notification to the 15th September 1948, since it has been stated on behalf of the Provincial Government that the permit form was actually considered and approved by the Provincial Government before it was put into operation. I have already stated that, as a result of applying the known principles of construction to the terms of subsection (4) of the section 24, Excise Act, I am clearly of the view that it does not empower the Provincial Government to impose restrictions upon possession of any intoxicants which are of nature causing discrimination between persona and person, or one class of persons and another class of persons, and t would therefore, appear that the action taken by the Provincial Government by means of its notification of the 15th September, 1948, as subsequently put into operation, is directly in contravention of the statutory powers. The second argument raised on behalf of the petitioner is that this discriminatory effect is also in contravention of the provisions of sub-section (1) of section 298, Government of India Act. That subsection provides that “no subject to His Majesty domiciled in Pakistan shall on grounds only of religion be prohibited from acquiring holding, property”, and it was strongly contended that since liquor was an article of property, any law which prohibited a Muslim, only because he was a Muslim, from possessing, liquor, was without force, by reason of such provision. To this the reply was made that the notification in question and the consequential action taken by the Provincial Government fell under clause (b) of the subsection (2) of the same section as constituting recognition of the existence of a disability attaching to Muslims by virtue of the personal law. The learned Advocate General referred me to paragraph 24 in Mulla’s Principles of Muhammadan Law, where the sources of Muhammadan Law are specified as being the Holy Quran, Hadith, Ijmaa and Qiyas. He cited verses form the Holy Quran as well as one extract from Mujtabai Tirmazi ( a compilation of Hadith) and another compilation of Hadithby Ibn-i-Maja, where the dictates of God and the Holy Prophet regarding intoxicants are set out. It was argued by the learned Advocate-General the intoxicants have been described as a thing “of which the sin is greater than the profit”, as “uncleanliness” and ‘Devils” work” which should be thing from which the faithful should desist since it is used by the Deil to cause enmity and hatred to spring among the people and them from the remembrance of Allah and from prayer. This is in verse 290 of Chapter 2 and verses 90 and 91 n Chapter 5 of the holy Quran. According to the Hadith, Ans, the companion of the holy Prophet, declared that the Holy Prophet had said that the curse of God descends upon ten kinds of persons concerned with liquor, namely, the makers, he for whom it is made, he who drinks, he who carries it, he for whom it is carried, he who offers it and he for whom it is purchased. It was urged that in the face of the clear language contained in these authoritative sources of Muhammadan Law there can be no doubt that upon Muslims, their personal law places disability in regard to possession and consumption of liquor and the effect f the action taken by the Provincial Government was merely to impose and enforce this disability by statute. It was also urged that since the permits themselves provide for Muslims who are equipped with medical certificates from Civil Surgeons to be granted permits, it cannot be said that by the;legal action taken, all Muslims were prevented from holding or consuming liquor by reason of the religion alone.
As to the argument based on enforcement of the personal law, it was contended that the injunctions taken from the Holy books when read in their true meaning could not be regarded as prohibition under pains and penalties, butchery as moral proceeds of a directory nature, such as all religions provide against the composedness, e.g., lying in order to strengthen macing against temptation. At the same time, it was urged that the expression “personal law” occurring inc lause (b) of subsection 2 of section 298, Government of India Act, could nt be interpreted to include every duty laid upon the followers of a particular religion by the precepts of that religion, but only such of those duties as hve received recognition under the law as enforced by the State.
The action taken by the Provincial Government namely, issue of the notification, and the imposition of permits thereunder is clearley beyond the powers conferred by the Provincial Statute, namely the PUnjab Excise Act, and consequently is invalid in law. A final argument was raised by th learned Advocate-General that even if, in the view of the petitioner, the provisions relating to the Conditions applicable to possession were void and of no effect, he shoudl have felt himself bound by the injunction of the Provincial Government contained in the notification prohibiting the possession of liquor, on the ground that ths was covered by the power given under subsection (4) of section 24 to “prhobit possession of any intoxicant” Now it is entirely unfair to require the subect to make himself the judge of the validity ofa stature and to decide what part of it is valid and what invalid. In a case like the present, the validity or otherwise of the legal restrictions are to be judged as a whole andif they are not valid then disobedience of those provisions attracts no penalty since it is no offence. As I have already remarked, subsection (4) jof section 24 does not permit the Provincial Government to confuse prohibition with rstriction and the argument of the learned Advocate-General appears also to be unsustainabe on this account.
For these reasons, I am of opinion, that in having in his possession two bottles of beer at the time when he was arrested, the petitioner was guilty of no offence in law and I accordingly accept the petition and direct that he be set at libert. [ 170 TO 173] C