ORDER
SHEET
IN
THE HIGH COURT OF SINDH AT KARACHI
Constitution
Petition No.D-5226 of 2016
Constitution
Petition No.D-5097 of 2016
_________________________________________________________=
___
Date &=
nbsp; Order
with signature of Judge
________=
___________________________________________________
Priority :
1.&n=
bsp;
For hearing of main case.
2.&n=
bsp;
For hearing of Misc.
No.25665/2016.
(Notices issued)(Order communicate=
d to
Secretary ECP)
&n=
bsp; =
; ---------------
18.10.2016
Qazi Ayazuddin Qureshi, Advocate f=
or
Petitioner in C.P. No.D-5097/2016.
Mr. Ghulam Mustafa Mahesar, AAG Si=
ndh.
Mr. Shoaib Siddiqui Director Gener=
al
and Mr. Razzak Radhan Director, Directorate General of Excise, Taxation and
Narcotics Control, Sindh Karachi.
Malik Naeem Iqbal, Advocate for Wi=
ne
Shop Owner of Ittehad Traders, namely, Raj Kumar.
Mr. Mamoon N. Chaudhry, Advocate f=
or Wine
Shops Owners of (1) Sadabahar Traders, namely, Raja S/o Krishan Lal, (2) Sa=
hil
Traders, namely, Beesham Kumar and (3) Shaheen Wine Shop, namely, Dileep Ku=
mar
Chawla.
Some of the wine shops
representatives, namely, (1) Ramesh Kumar on behalf of Associate of Wine
Merchant, Lucky Co., Princely Brothers, R.K. Traders, Rose Wine Shop, Welco=
me
Wine Shop, (2) Ander Kumar on behalf of Pioneer Traders, (3) Rabaco on beha=
lf
of Universal Wine Shop, Pearl Wine Shop and Good Luck Wine Shop, (4) Santosh
Kumar on behalf of United Wine Merchant, Don & Co., Kumar Wine Shop and
S.S. Miranda Wine Shop, (5) Frances Hennery on behalf of Scotch Trading, (6)
Aneesh Bajaj on behalf of Azad Wine Shop, Motsons Wine Shop, Glamour Wine S=
hop
and Unique Wine Shop, (7) Babu s/o Bhugromal on behalf of Royal Wine Shop,
Golden Wine Shop and Thar Wine Shop and (8) Mool Chand on behalf of Raja Wi=
ne
Shop and Murry Wine Shop, are also present.
*=3D*=3D*=3D*=3D*=3D*=3D*
&=
nbsp; In
consequent to our directions, Mr. Tanvir Zaki Provincial Election Commissio=
ner,
Mr. Ali Asghar Sial Regional Election Commissioner South, Mr. Abdul Qayum
District Election Commissioner South and Mr. Abdullah Hanjrah Law Officer of
Election Commission of Pakistan, have effected appearance. As directed, Pro=
vincial
Election Commissioner has submitted reports detailing total numbers of non-=
Muslim
citizen of Pakistan belonging to various minorities (e.g. Christian, Hindu,
Quadiani, Sikh, Parsi, Buddist and others) living in the province at Karach=
i.
Likewise Ch. Muhammad Farooq, Assistant Director (Legal) for Director Gener=
al
RHO NADRA Karachi has also submitted figures of non-Muslims living at Karac=
hi.
&=
nbsp; We
have asked the learned D.G. to go through the provisions of Article 17 of t=
he
Prohibition (Enforcement of Hadd) Order, 1979 and to assist this Court as to
under what circumstances licenses for sale or possession of intoxicant or
article containing intoxicating liquor are permissible under the said
legislation. The Learned AAG after going through the provisions of Article =
17
submits that all the licenses are issued under the said Article. This is al=
so
affirmed by the written statement filed by Syed Ghulam Nabi Shah, Deputy
Director (HQ) for Director General Excise, Taxation and Narcotics Sindh in
today’s hearing, which in its preamble states that ‘Liquor licenses are granted under Arti=
cle 17
of the Prohibition (Enforcement of Hadd) Order, 1979’. The learne=
d DG
read before us full contents of Article 17, which are reproduced hereunder:=
17. Licences for bona fide medicin=
al
or other purpose.
The Provincial Government or, subject to the control of the Provincial
Government, the Collector, may issue license to any person in respect of any
institution, whether under the management of Government or not:-
(a) for the manufactu=
re,
import, transport, sale or possession of any intoxicant or article containi=
ng
intoxicating liquor on the ground that such intoxicant or article is requir=
ed
by such person in respect of such institution for a bona fide medici=
nal,
scientific, industrial or similar other purpose or for consumption by a
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 or article containing intoxicating liquor.
The
learned DG submitted that all the licenses issued are in respect of second =
part
of Article 17(a) meaning thereby these are issued to 120 liquor shops (spre=
ad
throughout the province) for consumption by non-Muslim citizen =
of
Pakistan as a part of a religious ceremony or by a non-Muslim foreigner=
.
As
evident from a plain reading of the above provision that liquor can only be
provided to non-Muslim citizens of Pakistan (or to non-Muslim foreigners) a=
s a
part of religious ceremony only, thus we asked D.G. to explain as to what
material is available to him detailing the consumption of liquor by non-Mus=
lim
as part of their religious ceremony and as to whether such religious ceremo=
ny
continues throughout the year? D.G. has frankly conceded that no such exerc=
ise
whatsoever was ever conducted before issuing licenses to the liquor shops. =
At
this juncture, we took AAG’s attention to Articles 3 and 4, which we
reproduce hereunder:
3. Prohibition of manufacture, etc=
.,
of intoxicants
(1) [subject to the provisions of clause (2) whoever---]
(a)&=
nbsp; imports,
exports, transports, manufactures or processes any intoxicant; or
(b)&=
nbsp; bottles =
any
intoxicant; or
(c)&=
nbsp; sells or
serves any intoxicant; or
(d)&=
nbsp; allows a=
ny of
the acts aforesaid upon premises owned by him or in his immediate possessio=
n;
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 liable to fine.
(2)
Whoever—
(i) imports, exports, transports,
manufactures, or traffics in, opium or coca leaf or opium or coca derivativ=
es;
or
(ii) finances the import, export,
transport, manufacture, or trafficking of , opium or coca leaf or opium or =
coca
derivatives; shall be punishable with imprisonment for life or with
imprisonment which is not less than two years and with whipping not exceedi=
ng
thirty stripes and shall also be liable to fine.
4. Owing or possession intoxicant.=
Whoever=
owns,
possesses or keeps in his custody any intoxicant shall be punished with imp=
risonment
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 the Article shall apply to a non-Muslim foreigner or to
non-Muslim citizen of Pakistan who keeps in his custody at or about the tim=
e a
ceremony prescribed by his religion a reasonable quantity of intoxicating
liquor for the purpose of using it as a part of such ceremony.
Provided
further that, if the intoxicant in respect of which the offence is committe=
d is
heroin, cocaine, opium or coca leaf, and the quantity exceeds ten grams in =
the
case of heroin or cocaine or one kilogram in the case of 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 exceedi=
ng
thirty stripes, and shall also be liable to fine.
As it coul=
d be
noted from the foregoing Articles, unless the possession of intoxicating li=
quor
(in a reasonable quantity) is in the custody of non-Muslim foreigner or a
non-Muslim citizen of Pakistan for the purpose of the later, personally usi=
ng
it as a part of a religious ceremony prescribed by his religion, possession
of liquor is prohibited, mean=
ing
thereby there are no provisions in the law that permit general licenses awa=
rded
to liquor shops to stock liquor for sale around the year, which is at prese=
ntly
occuring admittedly unabated.
With
regards quantity, DG informed that Government has prescribed a monthly quot=
a of
16 cans of beer and 8 bottles (each of 750ml) of Pakistan Manufactured Fore=
ign
Liquor (PMFL), for each non-Muslim in the province. When asked as to the ba=
sis
of intoxication and affordability of the aforesaid quota, DG had no
satisfactory answers, except he submitted that Government has increased
licensing fee to Rs.8 Million to deter individuals from obtaining liquor sh=
op
licenses. DG has frankly
contended that no exercise for determination of need base consumption of li=
quor
on religious occasions of non-Muslim has ever taken place. DG has also supp=
lied
a statement of the sale of Beer and PMFL by 11 shops functioning in Clifton=
and
Defence which shows study and astonishingly high sale of PMFL and Beer on
monthly basis in July, August and September 2016 which shows that liquor is
sold on regular basis throughout the year as per the following table:-
|
July 2016 |
August 2016 |
September 2016 |
|||
|
PMFL <=
/span> |
BEER <= o:p> (Dozen
Qts) |
PMFL <=
/span> |
BEER <= o:p> (Dozen
Qts) |
PMFL <=
/span> |
BEER <= o:p> (Dozen
Qts) |
|
6,721<= o:p> |
12,780=
|
9,482<= o:p> |
13,259=
|
8,763<= o:p> |
14,591=
|
Notwithstanding
that Article 17 only provides possibility of sale of liquor and wine on
religious occasions of non-Muslim citizens and for non-Muslim foreigner. Th=
is
supports our view that the licenses granted to the wine shops have resulted=
in
throughout the year supply of liquor which appears to be in absolute violat=
ion
of the possibility envisaged by Article 17.
DG
also had no answers as to the basis of the spread of the liquor shops around
the province, largely in effluent parts of the city, for example in Karachi
South only there are 24 licensed liquor sellers whereas as per NADRA and
Election Commission data no more than 59,000 non-Muslims reside in this
district.
For
the aforesaid reasons, it becomes crystal clear that there are no provisions
under Article 17 creating legal possibility for granting general licenses to
liquor shops (to operate throughout the year) as non-Muslims can only be
provided liquor for the consumption at their (requested) religious ceremoni=
es,
for which request in advance have to be made by them possibly with supporti=
ng
evidence from their religious bodies (e.g. Churches and Mandirs, etc.)
Consequently,
we direct the D.G. to initiate the process of recalling licenses granted to
liquor shops in violation of the provisions of Article 17. D.G. to ensure
issuing of notices to all such liquor shops throughout the province within =
two
days and action in accordance with law as explained hereinabove be taken and
report compliance to this Court on 26.10.2016, when these matter would be t=
aken
up for further hearing at 09:30 A.M.
CHIEF
JUSTICE
=
JUDGE
1