TARIQ KHAN vs STATION HOUSE OFFICER and 3 others

ORDER

' The petitioner seeks quashment of F.I.R. No,61 dated 14-3-2004, registered at Police Station Hazro under section 6 of the Prevention of Gambling Act, 1977; through this Constitutional petition.

2. Precisely, the written complaint by Mir Zaman, S.-I./ S.H.O. States that the petitioner a known gambler is running a gaming house in his "Hujra' and persons from far flung areas are gaming there. He after securing search warrant arranged a raiding party consisting of Muhammad Bashir S.-I., Khyzer Hayat, S.-I., Ahmad Khan, A.S.-I., Muhammad Akram A.S.-I., Zakaullah Khan, A.S.-I., Ali Khan A.S.-I., Bashir Hussain Shah, constable and Abid Hussain along with others including police officials of Police Station, Elite Force and raided the said place at 2-1/2 p.m. And found ten persons besides the petitioner gaming in the said house. They were arrested. Cash amount of Rs,43,195 mobile phone and wrist watches valuing Rs,11,000 and Rs,3,500 respectively were recovered from the said gaming place.

3. The learned counsel contends that the allegations levelled in the F.I.R. Are false, the provisions of section 8 of the Act were not complied with; recovery of cash and articles is fake; conviction cannot entail, and the continuation of the proceedings will be a mere abuse of process of law. Conversely, the learned Assistant Advocate General in opposition argued that provisions of section 8 are not mandatory in nature and therefore, non-compliance, would not result into acquittal of the accused.

4. Heard. Record perused.

5. Section 8 of the Prevention of the Gambling Act, 1977 reads as under:--

8. Power to enter and search " If a District Magistrate, Sub-Divisional Magistrate, Magistrate of the First Class upon information and after such inquiry as he thinks necessary, has reason to believe that any place is used as a common gaming house or that an offence under section 6 is being committed at or in any place, he may:--

(a) enter such place at any time with such assistance as he may require and using such force as may be necessary"

(b) -------

(c) -------

6. Bare reading of section 8 of the Act shows that a District Magistrate a Sub-Divisional Magistrate or a Magistrate of the First Class upon information and after such inquiry if has reasons to believe that an offence under section 6 is being committed at or in any place, he may enter such place at any time with such an assistance as he may require.

7. Admittedly the officials mentioned in section 8 of the Act neither received an information nor directed holding of any inquiry. The complainant/S.H.O. If had any information in the matter, he should have placed the facts before the learned Magistrate, who on his satisfaction, after inquiry or otherwise was authorized to conduct the raid, enter and search the place. In the instant case this has not been done. S.H.O. Neglected to follow the mandate of law. Whether it is an omission, a bona fide mistake or deliberate, in wanton exercise of the power by the complainant, the net-result is that the procedure so adopted is unlawful. The celebrated principle of the law is that a thing required by law to be done in the manner prescribed by the law should be done in that manner.

And any other course adopted in the performance of the act will be deemed to be unlawful. No sanctity is attached to such an Act.

8. The raid and proceedings commenced, thereafter, were against the provisions of the Act. The presumption attached to regularity of the raid under section 9 of the Act will not be available to the proceedings of raid. The procedure prescribed by section 8 of the Act has not been adhered to. It will not entail conviction. The continuation of the proceedings will be a sheer abuse of process of law and wastage of precious time.

9. For what has been discussed above, this petition is allowed. The proceedings arising out of the F.I.R. No,61 registered at Police Station, Hazro District, Attock under section 6 of the Prevention of the Gambling Act, 1977 are quashed.

' The petitioner has not claimed the cash amount and the articles mentioned, herein-before. The same be confiscated in favour of the State. The learned trial Court shall see that the cash amount of Rs,43,195 is deposited in the Government Treasury (Revenue Head) concerned in favour of the State. As far as Mobile and the wrists watches are concerned, the same be auctioned and the proceeds arising out of the said articles be also deposited in favour of the State.