' FAKHRUDD1N H. SHAIKH, J.-Suo mom notice was, issued to the three respondents in this case, who were acquitted by Mr. Muhammad Naseer Sethi, Magistrtate First Class, Mandl Bahauddin, District Gujrat, of offence under Article 11 of Prohibition (Enforcement of Hadd) Order, 1979, vide his judgment dated 14-9-1985. It was brought to the notice of this Court that the learned trial Magistrate had acquitted the respondents on the same evidence on which in a similar case conviction had been recorded.
2. We had sent for the record and perused the evidence. The allegation against the three respondents was that on 28-1-1985 they were found drunk by Ziaullah and Muhammad Anwar, constables of Police Station Mandi Bahauddin at 12-15 in the night and produced them before Mr. Muhammad Aslam Butt, A. S. I., who was also on patrol duty near Jamia-Ghausia Rizvia. Rasul Road, Mandi Bahauddin. Mr. Muhammad Aslam Butt, A. S. I., found that there was smell of alcohol in the breath of the respondents. He, therefore, recorded a complaint and sent it to the Police Station for registration of the case. On the same night the three respondents were sent for medical examination. Dr. Nazir Ahmad Anwar (P. W. 2) had examined the three respondents on the same night separately and found that there was smell of alcohol in their breath, but otherwise they were normal in talking and gait. The doctor had also taken samples of stomach wash, urine and blood, sealed them separately in nine phials and handed over the same to the police for being sent to the Chemical Examiner. The reports of the Chemical Examiner were that alcohol was present in urine and blood but not in the stomach wash.
3. During the trial the prosecution examined P. W. 1 Zaiullah, P. W. 2 Dr. Nazir Ahmad Anwar, P. W. 3 Muhammad Anwar, P. W. 4 Sher Muhammad, P.W. 5 Mr. Muhammad Aslam Butt, P. W. 6 Muhammad Shafi and P. W. 7 Sabir Hussain Shah. The witnesses whose evidence is relevant are only P. W. 1 Ziaullah, P. W. 5 Muhammad Aslam Butt, P. W. 6 Muhammad Shafi and P. W. 2 Dr. Nazir Ahmad Anwar. The learned Magistrate disbelieved P. Ws. Ziaullah, Muhammad Shafi and Muhammad Aslam Butt on the ground that they were police officials and that no public man was associated.
He also disbelieved Dr. Nazir Ahmad Anwar on the ground that he did not examine the respondents 'minutely' as laid down in some decision of the High Court. This decision has not been specified by the trial Court, He had also disbelieved the report of the Chemical Examiner on the ground that according to a decision of the High Court (again citation has not been given) the Chemical Examiner should have given reasons for coming to the conclusion given in the reports.
4. We have heard Sh. Ijaz Ali, learned counsel for the State and Syed Shahid Hussain Qadri, learned counsel for the respondents. Sb. Ijaz Ali has raised a preliminary objection to the legality of the trial that the three respondents could not have been tried jointly. The act of each of the respondents allegedly to have been found drunk, was distinct offence. Hence they should have been tried separately. In this connection reference has been made to section 233, Cr. P. C. Which contemplates separate trial of each person charged for a distinct offence, unless the case is covered by sections 234, 235, 236 and 239, Cr. P. C.
5. We have perused the above sections and find that section 234 refers to three offences of the same kind committed by the same person in one year, which may be tried together in one trial.
This section is not attracted to the present case.
6. Section 235 contemplates trial for more than one offence which are connected together so as to form the same transaction. This section is also not attracted to the present case of the three respondents who are said to have taken alcohol each separately without any reference to any transaction. It cannot be said that their separate acts of taking alcohol, in any way, formed part of the same transaction.
7. Section 236 contemplates that where it is doubtful as to which of the several offences a person has committed, then he may be charged and tried together in one trial for all the offences or in the alternative with having committed some one of the said offences. This section is also not relevant to the present case.
8. So far as section 239 is concerned, it gives instances of person who can be charged and tried together. Only clause (a) of section 23 D is relevant which says that persons accused of the same offence committed in the course of the same transaction may be charged and tried jointly.
9. As already observed above, the alleged offence attributed to the three respondents does not form part of the same transaction or cannot be said to have been committed in the course same transaction. We are, therefore, inclined to hold that section 233, Cr. P. C. Was applicable and the joint trial of the respondents in one trial was not proper.
10. The learned counsel for the respondents has argued that this Court has no power of suo motu revision under Article 203-DD of the Constitution. The above Article reads as under :- "Article 203-DD.-(1) 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."
This Article simply empowers the Court to call for record of any relating to the enforcement of Hudood offence and examine correctness, legality or propriety of the proceedings. It does not lay down the procedure according to which the examination of the record is to be under taken. For this purpose reference shall have to be made to section 439, Cr. P. C., because while exercising revisional powers in the cases tel to enforcement of Hudood, the Court has to follow the procedure laid down in the Criminal Procedure Code. This provision has been incorporated in all the laws relating to enforcement of Hudood. We are, therefore, of the view that Article 203-DD is to be read alongwith section 439, Cr. P. C. Which empowers this Court to call for any record sun motu, without any application from any party or State, for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded by a subordinate Court. We, therefore, hold that this argument has no force.
11. So far as the merits of the case are concerned, the learned trial Magistrate has not given any cogent reason for disbelieving the police officials who are as good witnesses as any public man.
No citation has been given of the decision of the High Court to which a vague reference has been made in respect of evidence of the Medical Officer that he should have examined the accused respondents 'minutely'. We are unable to follow as to what is actually meant by 'minute' examination, as observed by the learned trial Magistrate. The doctor had found smell of alcohol in the breath of the respondents. He had explained the manner of their talking and also their gait. He had taken samples of stomach wash, urine and blood. In such cases, this was all that a Medical Officer was supposed to do.
12. The learned Magistrate has again not cited any decision in support of his observation regarding Chemical Examiner's report that the finding of the Examiner should have been supported by reasons.
13. For the above reasons we find that the Order of acquittal recorded by the trial Court cannot be maintained. The order is based on misconcep tion of law and misappreciation of evidence.
Consequently we set aside the order of acquittal and remand the case to the Sessions Judge, Gujrat, with the direction that it may be marked for fresh trial and disposal to a competent Magistrate subordinate to him, other than one who had passed the impugned judgment dated 14- 9-1984. All the respondents are present on bail allowed by this Court after issuing suo motu notices.
They shall continue on bail before trial Court where they shall furnish fresh bail bonds and sureties.
14. We may observe that the observations made about the merits of the case in this order are of tentative nature and have been made only for the purpose of considering the legality, propriety and correctness of the impugned order. The learned trial Magistrate shall, after recording evidence, be at liberty to come to independent conclusion without being affected by the observations of this Court in the above order.