SARDAR ALAM Versus THE STATE

This order shall dispose of Cr. Misc. Nos. 574/Q of 1974 and 582/Q of 1974. There are eight petitioners in the former and one in the latter. .All the nine of them have been challaned under section 5 of the West Pakistan Prevention of Gambling Ordinance, Ordinance I of 1961. They seek quashment of the case registered against them.

2. The brief facts of the case are as follows:

On the 19th of October 1974, Mr. Bashir Ahmad, Inspector, Police Station, Haram Gate, Multan, sought a search warrant from the Superintendent of Police enabling him to raid and search the house occupied by one Abdul Majid Khitran on the basis of the information received by him to the effect that certain persons had been gambling therein. The Superintendent of Police appears to have promptly issued the search warrant on the same day on the strength of which a team of Police Officers raided the said house and found the petitioners playing cards with stakes. The police arrested eight of them but Alta Ullah the petitioner in Cr. Misc. 582/Q/74 allegedly escaped. They also seized two packets of cards and the money that was found there which amounted to Rs. 1,050. The same day the petitioners were challaned.

3. The learned counsel for the petitioners seeks quashment on three grounds:

Firstly, he contends that the search warrant issued by the Superintendent of Police was not a valid warrant inasmuch as there was no informa tion before him, and be had no reason to believe, that the house of the said Abdul Majid Khitran was being used as a common gaming house. The power to issue such a warrant is contained in section 8 of the West Pakistan Prevention of Gambling Ordinance, 1961 according to which, a District Superintendent of Police may issue a search warrant, if upon an information and after such inquiry as he thinks necessary, he has reason to believe that any place is to be used as a common gaming-house. The record shows that the only information laid before the Superintendent of Police was the report of the Inspector that certain persons were gaming in the house in question. The report did not say that it was being used as a common gaming house, as defined in clause (a) of section 3 of the Ordinance.

Further, the warrant was issued with such promptitude that it is difficult believe that the Superintendent of Police had had time to make necessary enquiries.

I am, therefore, of the opinion that the warrant in question was issued without there being any information to the effect, or any, reason to believe, that the house of Mr. Abdul Majid Khitran was being used as a common gaming house.

4. The second contention is that from the allegations in the F. I. R. itself, it is clear that the house in question was not a common ganging house as there is no assertion in the F. I. R. that the owner or the occupier of the, house was getting any profit out of the alleged gaming. However, it is to be noted that according to section 9 of the Ordinance when any cards, dice gaming-tables etc. are found in any house, room, tent etc. such house, room, etc., shall be presumed, until the contrary is made to appear, to be common gaming house. The presumption created by this provision of the Ordinance is much too broad. It is, therefore necessary that section 9 of the Ordinance, should be applied with great circumspection.

The intent of the law seems to be that if a house, room or tent etc. (as described in section 9) presents the look of a gaming house by dint of the: presence of instruments of gaming and gaming-tables etc., then such articles shall be evidence of the fact that such a place is a common gaming housel and the onus of dislodging this presumption has been placed on the person owning or occupying it or using it for gaming. Section 9 should not be construed as having declared every house in the province, in which playing cards are to be found, a "common gaming house" until the contrary is established.

In the present case certain close relatives of the occupier of the house alongwith their friends were allegedly found playing cards with stakes inside` that house, on the basis of this allegation alone, even if it is true, the house cannot be presumed and muchless held to be a common gaming house.

5. Thirdly, the petitioners have been found by the Police to be liable under section 5 of the Ordinance I of 1961. The maximum punishment prescribed under that section is one year imprisonment with or without fine. This makes the case non-cognizable and in view of subsection (2) of section 155, Cr. P. C. no Police Officer has the authority to investigate a non-cognizable case without the order of a Magistrate.

In the present case the requisite order of the Magistrate does not appear to have been obtained by the police and the case seems to have been investigated and the petitioners challaned without such order. The petitioners cannot, therefore, be proceeded against, on the basis of an unlawful investigation.

6. For the reasons recorded above I am of the opinion that it will be at futile exercise to let the case against the petitioners proceed in the trial Court. I accordingly allow the petitions and quash the proceedings in question.

S. A. H. Proceedings quashed.