' AF FAB HUSSAIN, C. J.-This order will dispose of Cr. Revision Petitions Nos. 22-P and 23-P of 1982 since the points involved in both these petitions are common.
2. Two criminal cases out of which these petitions arise were taken cognizance of by a Magistrate under section 190 (3) of the Code of Criminal Procedure and treating them to be exclusively triable by the Court of Session, they were sent to the Court of Session for trial under section 8 of the Prohibition (Enforcement of Hald) Order, 1979.
3. The Order provides inter alia for the punishment of drinking liquor. Section 8 deals with the punishment of an offence of drinking which is liable to Hald. Section 9 provides for the proof of drinking which consists of either a confession by the accused of the commission of the offence of drinking liable to Hald or at least two male adult witnesses, 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 (kabir), and who give evidence of the accused having committed the offence of drinking liable to Hald.
4. Where neither a confession is made, nor the evidence of truthful witnesses who have seen a person drinking liquor by mouth is forthcoming, the Order provides under its section 11 for his punishment in Tazir.
5. Section 27 of the Order provides in its subsection (1) for the forum for trial of cases under section
8. It confers exclusive jurisdiction on the Court of Session.
6. As stated above, the Magistrate who took cognizance of these cases sent them under section 190(3) of the Cr. P. C. To the Session's Court, since the challans were submitted inter alia under section 8 of the Order.
7. The learned Addition Sessions Judge, who was seized of this case, passed the impugned order in 'Criminal Revision Petition No, 22/P of 1982, on the 1st of June, 1982 and a similar order in Criminal Revision Petition No, 23-P of 1982 on the 29th of May, 1982. He returned both the files to the Ilaqa Magistrate concerned with the direction to adopt the procedure of tazkiyah al-shuhood with a direction to inquire whether each of the prosecution witnesses was an adult, male, Muslim, truthful and had been abstaining from commission of major sins. He further directed him to check the record of the criminal cases during the whole service tenure of each witness and find out the cases in which he was examined as a witness in a Court of law and to satisfy himself that the statement of the witness in each case was relied upon by the concerned Court as a true statement and no accused was acquitted due to reasonable doubts about the statement of the witness. The Magistrate had further to satisfy himself that each of the prosecution witnesses was a truthful person in private life and had been so before and during his service, and had committed no major sins before and during his service. These directions were given because all the witnesses in these cases are Government servants.
6. In order to make the task easy for the Ilaqa Magistrate concerned it was directed that he could get the help of the P.D.S.Ps. And P. Is. Concerned in checking the record and then to submit the list of all the criminal cases in which a certain witness had been a witness in Court with a certificate that no such case was left out of the list during the period of posting of the witness to a certain station with a certain designation during the whole' service of the witness.
7. The Magistrate was also required to declare that the case is fit to be tried under Article 8 of the Order and if he was of the opinion that complete details about the truthfulness and abstention from major sins of the witness could not be ascertained, he might order that the case be tried by a Court of a competent Magistrate having the jurisdiction to try the same and in order to remove a possible obstacle in his way, he could ask the P.D.S.P. Or P.I. To delete Article 8 from the challan.
8. In case the Magistrate felt satisfied that the case was fit to be tried under Article 8, he was required to report having regard to the procedure of tazkiyah al-shuhood that two witnesses had actually seen the accused drinking alcohol by mouth without Ikrah' or Iztirar'.
9. The State has filed these revision petitions inter alia on the ground that the learned Additional Sessions Judge had no power to delegate his function or authority to the Magistrate and all that he required the Magistrate to do was within the scope of his own duty.
10, The first important question in this case is about the scope of the revisional jurisdiction of this Court. This jurisdiction appears to be different or much more circumscribe than the jurisdiction under section 435, Cr. P. C. The revisional jurisdiction was conferred upon the Court by virtue of Article 203-DD, sub-Article (1), which is relevant and is reproduced below :- "The Court may call for and examine the record of any case decided by any criminal Court under any law relating to the enforcement of Hudood for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by, and as to the regularity of any proceedings of such Court and may, when calling for such record, direct that the execution of any sentence be suspended and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record."
Section 435, Cr. P. C. Which confers revisional jurisdiction in criminal cases an inter alia the High Court is analogous to the above Article 203-DD A except to the extent that in that section the Court is empowered to "call for and examine the record of any proceedings" while in Article 203-DD (1 this Court can "examine the record of any case decided."
11. The expression "case decided" is used in section 115, C. P. C. Which confers revisional jurisdiction on inter alia the High Courts in civil cases. The section also lays down the ground for exercise of revisional jurisdiction. These are grounds pertaining to jurisdiction only whether it be a question of absolute lack of jurisdiction or of jurisdictional error.
12. The only distinction between the provisions of section 115, C. P. C. And the provisions of this Article that here the examination is limited to the record of a case decided but there is no guidance in respect of the ground on which interference is possible in exercise of the revisional jurisdiction.
13. It is clear that section 435, Cr. P. C. Is very wide and the Court has the power to examine all proceedings, though ultimately the Court has to determine the correctness, legality or propriety of any finding, sentence or order. In this Article the use of the expression "case decided" is very significant. It proves the legislative intent to make a departure from the provisions of section 435, Cr. P. C. The use of the language used in section 115, C. P. C. In which the scope of revisional jurisdiction is limited would show that it was never intended to make the Constitutional jurisdiction as extensive as (sic).
14. The word "case decided" has been the subject of interpretation in a large number of cases but now there is unanimity on the point that it isN wide enough to include interlocutory orders passed in a suit.
15. In Bibi Gurdevi v. Chaudhry Muhammad Bakhsh and others , the word 'case' was explained in the following "I am inclined to think that the true test for deciding whether a particular interlocutory order should or should not be looked upon as a 'case' for the purpose of section 115, Civil P. C., is to be deduced not from the meaning of the word 'case', but from the proper scope and limits of the revisional jurisdiction conferred upon the High Court by that section. From the standpoint of language, pure and simple, there seems to be no good reason why one branch of a suit should be held to be a 'case' but not another and the word may include any interlocutory order. This does not, of course, mean that purely formal orders such as those relating to an adjournment or the summoning of a witness, etc., could be looked upon as 'cases'. But when a decision relates to some matter in controversy affecting the rights of the parties, I do not see why it should not be looked upon as a 'case'. This wide interpretation of the word 'case' is not, I think, likely to lead to inconvenience in practice as the field of interlocutory orders subject to revision will be extremely narrow in view of the express and implied conditions necessary for the exercise of the revisional jurisdiction."
' The words 'case decided' do not mean all proceedings but only decisions relating to some matter in controversy affecting the rights of the parties.
16. In S. Zafar Ahmad v. Abdul Khaliq it was held that the word 'case' was intended to cover any state of facts juridically determined and not necessarily the whole cause or matter in dispute.
17. The statement of law in Bibi Gurdevi's case was approved by the. Supreme Court of Pakistan in Urnar Dad Khan and others v. Tila Muhammad Khan
18. Section 115, C. P. C. Lays down one other criterion. It is the criterion of lack of jurisdiction or acting in excess of jurisdiction or of other jurisdictional errors. This criterion is not provided in the Constitutional E Provisions of Article 203-DD and cannot therefore be imported in it. The meaning of the expression 'case decided' in the above Article is thus more extensive than the meaning of that expression in the Code of Civil Procedure.
19. The present case appears to be very much analogous to the case reported in Bibi Gurdevi. In one sense however, it is a much stronger case, because here the question is about the jurisdiction of the Additional Sessions F Judge to entrust the enquiry of what he himself was expected to do so another Court and thus virtually delegating his own authority to him. The petition cannot, therefore, be said to be incompetent.
20. Now there are two points in this case which emerge from the order of the Additional Sessions Judge. The first is a direction to the Magistrate to carry on the enquiries of tazkiyah al-shuhood and to report the case to him for trial only if the witnesses are proved to be of the character required by1 2 3 section 9 of the Order. The second point, amounts to this that the Magistrate should look into the case and find out whether the case was really covered by section 8, and send it to the Sessions Court if he came to the conclusion that it was so covered. He was also required to carry out the tazkiyah al-shuhood of all the witnesses whether Police Officer or a Medical Expert, while examining the cases with this object.
20. So far as the first question is concerned, there is no doubt in or minds that it is beyond the jurisdiction of the learned Additional Sessions Judge. Under section 9, it is his own duty to make an enquiry into the truthfulness of the witnesses and that they abstain from major sins. Clause (b-) of section 9 alongwith explanation thereto is reproduced below :- "At least two Muslim adult male witnesses, about whom the Court is satisfied, having regard to the requirement of tazkiya 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 Hald."
' 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."
' The explanation clarifies and leaves no doubt that Tazkiyah al-shuhood means the mode of inquiry adopted by a Court to satisfy itself as to the credibility of a witness. This Court is no other than the trial Court itself.
21. It is possible that the Sessions Judge may call for a report even from a Magistrate, but he cannot leave the question of determination whethe the witnesses are truthful or not to any reporting authority or any other person. This function has to be discharged by him alone. It cannot be entrusted or delegated to any other person. The order of the Additional Sessions Judge to this extent cannot be sustained.
22. It appears very queer that the learned Additional Sessions Judge has considered it advisable to ask the Magistrate to sift all the Court record, in respect of witnesses as well as the Police record, and then to give the list of all cases in which the witnesses had appeared and were believed. Such a fishing enquiry is neither contemplated in law nor is possible. No Magistrate can be expected to undertake such a heavy responsibility nor has he the time for it. The cross-examination provides one of the methods of such enquiries. The Court is entitled to put Court questions also to witnesses and there is no bar or limit to such questions. He can put all these questions to the witnesses himself. In addition he may make reference about the antecedents of character of a witness to those who know him provided they themselves are truthful. He can also make on the spot inquiry from the person assembled there. But the procedure adopted in this case is no comprehensible to us. This procedure is neither practical nor, legal no helpful.
23. We are now left only with the question whether the Magistrate acts as a post office or while acting under section 190 (3), Cr. P. C. He is required to apply his mind to the question whether the case before him is exclusively triable by a Session Court.
24. Section 190 (3) provides for cognizance of offences by a Magistrate which he can take (a) upon receiving the complaint of facts which constitute the offence, (b) upon the report in writing of such facts made by any Police Officer and (c) upon information received from any person ether than a Police Officer or upon his own knowledge or suspicion that such offence has been committed. It is only after taking congnizance of a case that the Magistrate has to determine whether the matter before him is exclusively triable by a Court of Session. Once he arrives at the conclusion that it is so triable, his own jurisdiction to try it ceases, and be must send the case to the Court of Session for trial,
25. The word 'cognizance' does not mean merely preparation to deal with the matter without application of one's mind.. The language of subsection 3 leaves no doubt that it is the duty of the Magistrate to apply his mind to the facts of the case in order to determine whether it is exclusively friable by a Sessions Court or it can be tried by another Court also. In justification of this we refer to a decision of the Supreme Court of Pakistan, which is on all fours with the point involuted in this case (see 1981 SCMR 267). It was held that the Magistrate is required on having taken cognizance of such a matter to enquire into the case and to apply his mind to whatever material is placed before him, by the Police or the complainant, in order to determine whether the allegations made in the Police report, private complainant or information received by him make out a prima facie case triable exclusively by a Court of Session."
26. It was conceded at the bar that the evidence as required by section 8 of the Order is not forthcoming in the present two cases. We have seen the challan. It appears that in both the cases the evidence is of those witnesses only who had found the respondents drunk and had then proceeded to take him to a Medical Officer for examination, as required by section 12 of the Order.
The cases are not obviously covered by sections 8 and 9 of the Prohibition Order and are not exclusively triable by the Court of Session.
27. If the Magistrate had applied his mind at the initial stage, he would have found that he too was competent to try them in which case section 190(3), Cr. P. C. Would not be attracted. Consequently, it was beyor.d his jurisdiction to refer the cases to the Sessions Court. On the other hand, it was necessary for him to try the cases himself.
28. The learned Assistant Advocate-General however submitted that section 9 of the Order, which deals with the evidence, also says that sentence can be passed on the confeision of the accused made before a competent Court. This would justify the action under section 190(3), Cr. P. C.
29. We do not agree with the learned counsel. Section 190(3) itself is very clear on this point that the Magistrate's jurisdiction comes to an end only when he finds that the case is exclusively triable by a Sessions Court He has no jurisdiction to refer the matter to the Court of Sessions merely on K an apprehension that the accused may make confession. If he makes a confession before the Magistrate it is always open to him to refer the matter to the Court of Sessions: Section 347, Cr. P. C.
Provides that if in any trial before a Magistrate, before signing the judgment it appears to him at any stage of the proceedings that the case is one which ought to be tried by the Court of Session or High Court, he shall send the case to the Court of Session or High Court for trial. There is, therefore, no difficulty in the way of the Magistrate to make a reference at any stage when he finds the accused to be a confessing party.
30. The upshot of the above discussion is that though the Police may register a case under section 8 of the Order alongwith or without any other section the Magistrate should not forward the case to the Sessions Judge unless he finds it is covered by the provisions of Sections 8 and 9 of the Order and the had sentence is possible to be passed on the facts ensued on the face of the record. If he finds on the face of the record that the matter is covered by section 8 or the evidence of two witnesses as required by section 9 thereof is forthcoming, he has no option but to send the matter to the Sessions Court in which case the Sessions Court will have no doubt the jurisdiction to pass any other sentence, if the offence under section 8 I pot proved on trial before it. But if the required evidence be not forthcoming he should try the case himself. This procedure will prevent the flooding of Session's Court files with unnecessary cases. The Additional Sessions Judge was right in sending the cases back to the Magistrate at least on this point though as explained by us in the body of the judgment, we are not satisfied with the accuracy of the approach of the learned Additional Sessions Judge in other matters.
31. In these two cases it is conceded that the evidence as required by sections 8 and 9 of the Order is not forthcoming. The Magistrate concerned shall try these cases himself. The revisions are decided in these terms. AIR 1943 Lah. 65 PLD 1964 Kar. 149 PLD 1970 SC 284.1 2 3