1. Through this criminal miscellaneous application, applicants, Habibullah and 37 others, have approached this Court under section 561-A, Cr.P.C. Invoking inherent jurisdiction of this Court whereby they seek setting aside and quashment of the Order, dated 27-1-2005 passed by the learned VIIth Judicial Magistrate, Karachi South and proceedings in relation to Cr. Case No.389 of 2004 arising out of F.I.R. Bearing No.110 of 2004 registered under sections 3/4 and 5/5-A of Sindh Prevention of Gambling Ordinance, 1978 (herein after referred as 'the Ordinance') of Police Station Eidagh, Karachi and also quashment of the order, dated 31-3-2005 passed by the learned IInd Addl.
2. Sessions Judge, Karachi South in Criminal Revision Application No.10 of 2005.
3. ' Brief facts leading on the filing of the present Criminal Miscellaneous Application are that F.I.R.
4. Bearing NO.110 of 2004 was lodged at Police Station Eidgah on 1-10-2004 stating therein that complainant Inspector Zahid Hussain along with other Police Personnel and respectable person of the area namely Muhammad Intizar Hussain Qureshi (Justice of Peace, Saddar Town, Karachi, Nazim UC-1 Sadar Town namely Yousuf Naz) on spy information raided the upper portion of the Birch Club, Siddique Wahab Road, Latif Mansion and found the applicants busy in playing cards by fixing amount cash and token under supervision of caretaker Muhammad Ejaz who after having a look at the Police could make his escape good. However, the applicants were caught and their personal search was conducted besides recovery of other instruments of gambling i.e. 30 packets of cards and 1700 token of different numbers and gambling money (Dawood and Phar money) and all of these things were taken into custody. Accordingly; the applicants and case property were brought at the Police Station where FIR., as above, was registered.
5. ' Investigation followed and challan was submitted before the concerned learned Judicial Magistrate where the case is pending..
6. ' The applicants filed applications under section 249-A, Cr.P.C. Which was dismissed and the applicants filed Criminal Revision Application before the learned IInd Addl. Sessions Judge, Karachi South who rejected the same.
7. ' Now, the applicants through this Criminal Miscellaneous Application bearing No.37 of 2005 have approached his Court, invoking its inherent jurisdiction, praying for quashment of the proceedings, has filed this Criminal Miscellaneous Application under section 561-A, Cr.P.C., seeking setting aside and quashment of the Order, dated 27-1-2005 passed by the learned VIIth Judicial Magistrate, Karachi South and proceedings in relation to Cr. Case No.389 of 2004 arising out of F.I.R. Bearing No.110 of 2004 registered under sections 3i4 and 5/5-A of Sindh Prevention of Gambling Ordinance, 1978 of Police Station Eidagh, Karachi and also quashment of the order, dated 31-3-2005 passed by the learned Lind Addl. Sessions Judge, Karachi South in Criminal Revision Application No.10 of 2005.
8. ' I have heard Mr. Muhammad Akbar Khan, learned counsel for the applicants, and Mr. Arshad Lodhi, Asstt. Advocate-General, Sindh.
9. ' It has been contended by the learned counsel that both the orders, impugned herein, have been passed by the Courts below are based not only upon ignorance of legal aspects and proposition involved in the case but it is also based on wrong assumption observing that evidence is to be recorded without appreciating the mandatory legal position involved in this case to the effect that alleged in this case to the effect that alleged offence falling under sections 5 and 5A of the Ordinance is a non-cognizable offence and no F.I.R. Could be registered by the Police in a prescribed pro forma of F.I.R. Under section 154, Cr It has also, been contended by the learned counsel that though section 155, Cr.P.C., specifically defines that either for registration of case under the above-referred provisions of law or conducting investigation in a non-cognizable offence permission should have been obtained by the Police. It has, therefore, been argued that in view of this legal position failure of both the Courts below to assign findings and observations, confining Themselves only to the effect that let evidence be recorded, frustrate all practical purposes of section 249-A, Cr.P.C. And also amount to drag the innocent persons for trial which may result in their acquittal.
10. ' It has been next urged on behalf of the applicants that the applicants were arrested from a place namely a Recreational Club called Messrs Birch Club, being a registered body under the Societies Registration Act XI of 1860, situated in Latif Mansion, Jinnahabad, Siddique Wahab Road, Karachi, and is being run by the elected body of the members since, 1953-1954, licence of which has been granted by competent Authority to whom required fee/taxes is being paid. He further submits that ingredients of sections 8 and 9 of the Ordinance protect innocent citizens in non-entrance of police authority in a private place without association of any Magistrate or at least obtaining any prior warrant. In this respect, it has been submitted that earlier the officials of Eidgah Police applied for search warrant but the learned trial Court itself rejected the plea being non-maintainable.
11. ' It has, next, been urged that consequent upon rejection of plea for obtaining search warrant by the trial Court, the Station House Officer, Eidgah Police Station, with mala fide and by misusing official authority got cancelled the registration of the said Club with collusion of Registrar of the Society. However, the same was challenged before this Court through Constitutional Petition No. D- 1363 of 2004 which was allowed vide Order, dated 31-3-2005 and order of the learned Registrar of the Societies was set aside. It has, also, been contended by the learned counsel that both the Courts below have erred by failing to appreciate the fact that the place where the alleged raid was conducted is a private place. In this regard, it has been argued, that section 9 of the Ordinance defines that it is mandatory that before entering into private place search warrants from the Area Magistrate is to be obtained in the first instance which is admittedly lacking in the present case, flagrant violation of sections 8 and 9 of the Ordinance has been committed. It has, also, been contended by the learned counsel that even no warning was issued earlier before registration of the case if at all any information was received with regard to fact that the said Club was allegedly indulged in the gambling and/or was being used as 'common gambling house'. It has, therefore, been argued that on all these scores, it was a fit case where the trial Court should have acquitted on the application moved under section 249-A, Cr.P.C.
12. ' Learned Assistant Advocate-General Mr. Arshad Lodhi, appearing for the State concedes to the above arguments and does not support the impugned orders. He referred to Annexures 'C' and `G' whereby the same Court, while passing detailed orders including defining concerned sections of the Ordinance, had acquitted the accused persons involved in the crime like this one. He also referred to annexure 'K. Whereby the trial Judge, while passing the order on an application moved by S.D.P.O., Risala Sub-Division Saddar Town, Karachi, requesting issuance of Search Warrant for the Club in question, refused to grant permission holding that since Civil Suit bearing No.1052 of 2004, containing stay vide Order, dated 12-10-2002, has, already, been pending before this Court (High Court of Sindh), the trial Court is not competent to issue any search warrants on the basis of spy information together with the fact that under sections 6 and 8 of the Ordinance only the Area Magistrate is empowered to enter into the said gaming-home upon the information.
13. ' I have heard and considered the arguments of the learned counsel appearing on behalf of the respective parties and have also gone through the record.
14. ' For the sake of convenience, it is necessary to quote here the relevant provisions of the Ordinance.
15. Section 2 of the Ordinance defines the 'common gaming-house' which read as under:-- ' Section 2.-(a) "Common gaming-house" means any house, room, tent, enclosure, vehicle, vessel or other place whatsoever, in which instruments of gaming are kept or used for gaming purposes:
(i) With the view of profit or gain of any person owing, occupying or keeping such house, room tent, enclosure, vehicle, vessel or other place, whether by way of charge for the use of such house, room, tent, enclosure, vehicle, vessel or place of instruments or otherwise howsoever; or
(c) ...............................
16. ' Section 8 of the Ordinance defines the power to enter and search which reads as under:-- "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: Provided .........................
(b) search such place for any instruments of gaming kept or concealed therein and also the person of all those who are found in that place, except the women;
(c) seize and take possession of gaming moneys and securities for money and articles of value reasonably suspected to have been used or intended to be used for the purpose of gaming which are found therein or upon any person found therein; and
(d) take into custody all persons, except women, found in that place, whether or not then actually gaming.
17. ' Perusal of record specially Annexures 'C' and `G' reveals that the same Court, while passing detailed orders including defining concerned sections of the Ordinance, had acquitted the accused persons involved in the crime like this one. Perusal of annexure 'K' reveals that the trial Judge, while passing the order on an application moved by S.D.P.O., Risala Sub-Division Saddar Town, Karachi, requesting issuance of Search Warrant for the Club in question, refused to grant permission holding that since Civil Suit bearing No.1052 of 2004, containing stay vide Order, dated 12-10-2002, has already, been pending before this Court (High Court of Sindh), the trial Court is not competent to issue any search warrants on the basis of spy information together with the fact that under sections 6 and 8 of the Ordinance only the Area Magistrate is empowered to enter into the said gaming home upon the information.
18. It appears that both the Courts below have not only given the findings while ignoring legal aspects and proposition involved in the case but it is also based on wrong assumption observing that evidence is to be recorded without appreciating the mandatory legal position involved in this case to the effect that alleged offence falling under sections 5 and 5A of the Ordinance is a non- cognizable offence and no F.I.R. Could be registered by the Police in a prescribed pro forma of F.I.R.
19. Under section 154, Cr.P.C. Further more, though section 155, Cr.P.C. Specifically defines that either for registration of case under the above-referred provisions of law or conducting investigation in a non-cognizable offence permission should have been obtained by the Police. Resultantly, failure of both the Courts below to assign findings and observations, confining themselves only to the effect that let evidence be recorded, frustrate all practical purposes of section 249-A, Cr.P.C. Record further indicates that the applicants were arrested from a place namery a Recreational Club called 'Messrs Birch Club', being a registered body under the Societies Registration Act XI of 1860, situated in Latif Mansion, Jinnahabad, Siddique Wahab Road, Karachi, and is being run by the elected body of the members since 1953-1954, licence of which has been granted by competent Authority to whom required fee/taxes is being paid.
20. ' The perusal of above-quoted sections goes to indicate that their ingredients protect innocent citizens in non-entrance of police authority in a private place without association of any Magistrate or at least obtaining any prior warrant: It has, also, been noted that earlier the officials of Eidgah Police applied for search warrant but the same learned trial Court itself rejected the plea being non-maintainable. However, consequently, upon cancellation of registration of the Club Registrar of the Societies, Constitutional Petition No. D-1363 of 2004 was filed .Which was allowed vide Order, dated 31-3-2005 and order of the learned Registrar of the Societies was set aside. It appears that both the Courts below have erred by failing to appreciate the fact that the place where the alleged raid was conducted is a private place and in this regard reference can be made to section 9 of the Ordinance which defines that it is mandatory that before entering into private place search warrants from the Area Magistrate is to be obtained in the first instance which is admittedly lacking in the present case, hence violation of sections 8 and 9 of the Ordinance has been committed. It also appears that even no warning was issued earlier before registration of the case if at all any information was received with regard to fact that the said Club was allegedly indulged in the gambling and/or was being used as 'common gaming house'.
21. The object of section 561-A, Cr.P.C., whereby inherent powers are conferred upon this Court is to do the real and substantial justice and to prevent the abuse of the process of Court. To secure the ends of justice powers of this Court are very wide. In the case of M.S. Khawaja v. The State (PLD 1965 SC 287) following observations were made by the apex Court:-- "To quash a judicial proceeding in order to secure the ends of justice would involve a finding that if permitted to continue, that proceeding would defeat the ends of justice, or in other words, would either operate or perpetuate an injustice. To find an abuse, it would be necessary to see in the proceeding, a perversion of the purpose of the law such as to cause harassment to an innocent party, to bring about delay, or where the machinery of justice is engaged in an operation from which no result in furtherance of justice can accrue, and similar perverse results."
22. ' In the case of Meraj Khan v. Gul Muhammad (2000 SCM R 122), it was observed by the Hon'ble Supreme Court that the main consideration to be kept in view would be whether the continuance of the proceedings before the trial forum would be futile exercise, wastage of time and abuse of process of Court or not. If on the basis of facts admitted and patent on record no offence can be made out against the present applicant then it would amount to abuse of process of law to allow the prosecution to continue with the trial against him.
23. In view of this background, I am of the considered view that no case would be made out against the present applicants at the time of conclusion of trial and there is no probability of the applicants being convicted in the alleged offence. There appears to be mala fide on the part of police.
24. ' Accordingly, I am of the considered view that it is a fit case where proceedings pending before the learned VIIIth Judicial Magistrate, Karachi South in respect of the present applicants be quashed as there is no probability of the applicants being convicted in the alleged offence, hence proceedings, pending as above, are nothing but abuse of process of the Court.
25. Consequently, this Criminal Miscellaneous Application is allowed and the proceedings against the present applicants pending before the learned VIIth Judicial Magistrate, Karachi South in Cr. Case No.389 of 2004 are quashed.
26. ' Criminal Miscellaneous Application No. 37 of 2005 stands disposed along with listed-application.