' DR. FIDA MUHAMMAD KHAN, J.---This jail criminal appeal jointly filed by Muhammad Aslam son of Muhammad Din and Muhammad Parviz son of Abdul Aziz is directed against the judgment, dated 26-9-1995 passed by the learned ad hoc Sessions Judge, Quetta, whereby he has convicted them under Article 8 of the Prohibition (Enforcement of Hadd) Order, 1979, hereinafter referred to as the said Order, and sentenced them to whipping numbering eighty stripes each. Criminal Reference No,2/I of 1995 has also been sent by the learned trial Court against both the appellants/accused for confirmation of sentence of eighty stripes. We are disposing of both these matters by this single judgment.
2. Briefly stated the case of prosecution as disclosed in the F.I.R., dated 3-3-1995 is to the effect that both the appellants/accused were found in drunk condition by Fiaz Ahmad A.S.I. At about 5.00 p.m., near Kachi Garh when he arrived there alongwith other officials. He apprehended them and got registered a case against them. He got them medically examined in Civil Hospital Quetta. Dr. Abdul Rashid Jamali, Medical Officer, on examination found their gait normal. He found the alcohol smell positive. He took samples of blood and urine and sent the same to Chemical Examiner Karachi.
Reports of the Chemical Examiner are positive. After necessary investigation the appellants/accused were challaned to face the trial.
3. At the trial the prosecution examined three witnesses in all. P.W.1 is Dr. Abdul Rashid Jamali, Medical Officer, who medically examined both the appellant/accused and found the alcohol smell positive. He took samples of blood and urine and sent the same to Chemical Examiner. Report of the Chemical Examiner Exh.P/1-D in respect ' of Muhammad Aslam appellant/accused reveals that "Ethyl alcohol 86 mg% (eighty six milli grams) and 122 mg% (one hundred twenty milli grams) detected in the Blood and Urine". Report of the Chemical Examiner Exh.P/1-B, in respect of Muhammad Parviz appellant/accused shows the following result:-- "(1) Ethyl Alcohol not detected in the Blood.
(2) Ethyl alcohol 58 mg% (fifty eight milli grams) detected in the urine."
' P.W.2 is Abdul Ghafoor constable. On 3-3-1995 he was accompanying the complainant near Kachi Garh when he apprehended both the appellants/accused in drunk condition. He identified both the appellant/accused. He fully supported the case of prosecution. P.W.3 Fiaz Ahmad A.S.I. Who while on 'Gusht' on 3-3-1995 found both the appellants/accused in drunk condition near Kachi- Garh. He registered a case against them, got them medically examined and after necessary investigation he handed over the case to S.H.O. Who submitted challan against them to face the trial.
4. The appellants/accused made statements under section 342, Cr.P.C., wherein they denied the allegations and pleaded innocence. Both of them stated that they were innocent and falsely implicated by Fiaz Ahmad A.S.I. Each of them made statements under section 340(2), Cr.P.C. They produced Muhammad Saleem as D.W.1.
5. We have heard the learned counsel for the parties and have perused the record with their assistance. At the outset, learned counsel for the appellants submitted that Tazkiyah-al-Shuhood in respect of the witnesses is a necessary requirement. As envisaged in Article 9 of the said Order, the proof of drinking liable to Hadd shall be either a confession of the commission of drinking by the accused before a Court of competent jurisdiction or the evidence of at least two Muslim adult male 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. In the instant case, learned counsel for the appellants submits that Tazkiyah-al-Shuhood of the witnesses has not been made by the learned trial Court. She further submitted that she does not press the appeal on merits but keeping in view the fact that both the appellants/accused are young, first offenders, sole bread earners of the poor family and have undergone almost a year in imprisonment, she prays for reduction in their sentence to already undergone under Article 11 of the said order.
6. We have perused available record in the light of submissions made by the learned counsel for the appellants. It transpires from the record that both the appellants/accused have been awarded Hadd punishment under Article 8 of the said Order but Tazkiyah-al-Shuhood as required under the said Order has not been made. The learned Advocate-General Balochistan, in view of the submissions made by the learned counsel for the appellant, also conceded that conviction of the appellants under Article 8 of the said Order is not warranted.
7. Keeping in view the fact that there is neither any confessional statement of anyone of the appellants/accused nor the learned trial Court has made Tazikah al-Shuhood, as contemplated under Article 9 of the said Order, we find that ingredients of Article 8 of the said Order are not attracted in the instant case. Instead we find that the case falls under the ambit of Article 11 of the said Order wherein Ta'zir punishment could be awarded if an accused is guilty of drinking for which proof in either of the forms mentioned in Article 9 of the said Order is not available and the Court is satisfied that the offence stand proved by the evidence on the record.##TE ## In the case before us, learned counsel for the appellants does not contest the conviction but only prays for reduction in the sentence of imprisonment to already undergone. We have duly considered the prayer made by the learned defence counsel which not opposed by the learned Advocate-General, Balochistan.
Both the appellants are present on bail. Both of the them showed repentance. They are quite young and according to the available record are previous non-convicts. They have already been behind the bars for about a year. In circumstances, we feel that the sentence already undergone would be sufficient to meet the ends of justice.
8. Consequently, for the reasons stated above we alter the conviction of appellants namely Muhammad Aslam son of Muhammad Din and Muhammad Perviz son of Abdul Aziz from under Article 8 to under Article 11 of the said Order and award them the sentence of imprisonment already undergone by them. They are present on bail. Their bail bonds are discharged. With this modification in the conviction and sentences the appeal is dismissed.
9. Resultantly, Criminal Reference No,2/I of 1995 is answered in negative.
10. Criminal Miscellaneous Application No,23-Q of 1998 has become infiuctuous and is disposed of in the above terms.
Sentence reduced..