' ALI .NAWAZ CHOWHAN, J.---The matter pertains to case F.I.R. No,282 of 2003 dated 15-9-2003, registered under section 5 of the Punjab Prevention of Gambling Ordinance (No,VII) of 1978 read with section 216, P.P.C. On the complaint of Mubashar Ahmed S.I., Police Station Gowal Mandi, Lahore.
2. Precisely, the story is that after having learnt about the presence of the proclaimed offenders at a house in a street within his jurisdiction, the Investigating Officer formed a raiding party for arrest of those proclaimed offenders and immediately proceeded towards that place because he apprehended that upon knowledge the proclaimed offenders will make good their escape. He then entered that house and found a different scenario attracting the offence under which he registered the F.I.R. Under reference.
3. This Court had the opportunity of hearing Mr. Saif-ul-Malook, learned counsel for the petitioner as well as Mr. Khurshid Anwar Bhinder, learned Additional Advocate-General at length on this subject.
4. According to the learned counsel for the petitioner, there is no statement in the F.I.R. Showing that any proclaimed offender was arrested.
5. The precise question before this Court is whether the offence as is constituted under Gambling Ordinance was within the purview of the raiding party upon discovery that instead of the proclaimed offenders being present in that house some people were gambling there. The latest law on the subject is section 8 of the Punjab Prevention of Gambling Ordinance (No,VII of 1978 which reads as follows:---
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: ' Provided that if such place is in the actual occupancy of a woman who according to custom, does not appear in public, the officer so entering such place shall give notice to her that she is at liberty to withdraw and, after allowing reasonable time for her to withdraw and giving her reasonable facility for withdrawing may enter the place;
(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.
6. Learned counsel for the petitioner has argued that in section 8 of the West Pakistan Prevention of Gambling Ordinance (I of 1961), a permission was given to the police to raid at a particular place upon obtaining warrant from a Magistrate who also authorized them to raid. Later on, the law has undergone a change by which a Magistrate cannot delegate these powers to the police, but can only proceed to raid a place himself upon sufficient information pertaining to the offence.
7. Learned counsel for the petitioners has also placed reliance on the following case-law:--- Qayyum Nawaz v.The State PLD 2002 Pesh.34, Siddiqu Ullah v.The State PLD 2003 Pesh.77, Tariq Mehmood Butt v. D.P.O. And others (W.P. No,2664 of 2004) and Muhammad Iqbal v. S.S.P. Operation and others (W.P. No,7100 of 2004).
8. According to him, privacy of a private place has got to be protected under Article 14 of the Constitution at whatever price, this, being a fundamental right. Learned counsel for the petitioner has also stated that according to section 4(1) of Chapter II of Police Order, 2002, the police is authorized to enter and inspect without a warrant on reliable information in any public place mentioned in the Police Order itself which reads as under:--- "4(1) Enter and inspect without a warrant on reliable information any public place, shop or gaming- house where alcoholic drinks or narcotics are sold or weapons and illegally stored and other public places of resort of loose and disorderly characters."
' But, of course, this authorization of the law is not meant for a private premises or a house.
9. It is further stated that the very reasons for amendment of the law was to stop invasion of the privacy under one excuse or the other or the type of the excuse which is usually advanced that the police was under stress to capture proclaimed offenders and, therefore, their entry into a private premises was justified without warrants.
10.In case, the police ingresses in a house for catching hold of proclaimed offenders about to escape or was creating a threat that may get legally covered. But then police cannot act beyond that while taking cognizance of a matter which is forbidden for police until a cognizance is taken with intervention of a Magistrate, who cannot even otherwise delegate those powers to police as per section 8 (amended of the new Ordinance).
11. One wonders whether the police could have proceeded as they did in search of proclaimed offenders without being in possession of the search warrant. The Inspector-General of Police, Punjab, has to ensure that the police is properly policed and such like acts of highhandedness are not allowed to be repeated.
12. Anyway, the story of the police that they went to apprehend proclaimed offenders is even otherwise belied by the fact that no proclaimed offenders was arrested and, therefore, this gave rise to a presumption that the intention of the police was otherwise and was not for apprehending the proclaimed offenders. Thus, the provisions of the law cannot be allowed to get frustrated on basis of lank excuses. As the action of the police was bad and illegal at its very genesis, the F.I.R.
Has no status in law and it is, therefore, quashed.