' TARIQ SHAMIM, J.---Through this petition, the petitioner seeks quashment of case F.I.R. No,240 of 2006, dated 8-9-2006 registered under section 5 of the Punjab Prevention of Gambling Ordinance (No,VII) of 1978 at Police Station City Bhakkar.
2. Brief facts of the case are that Asghar Ali complainant along with his companion on official vehicle was present at Behl Chowk Bhakkar, when he received information that Muhammad Asif, Saqib Hayat, Muhammad Ilyas, Zulfiqar Hussain and Imran were present in the Baithak of Muhammad Asif and were indulging in gambling. On the said information, a raiding party was constituted by the complainant which conducted a raid at the house of the petitioner, arrested the petitioner and respondents Nos. 4 to 7 and took into possession Rs,1800, four mobile sets etc.
3. Learned counsel for the petitioner contends that the F.I.R. Is based on mala fide, ill motivation and amounts to abuse of the process of law as the same is in complete disregard of the provisions of sections 5, 6 and 8 of the Punjab Prevention of Gambling Ordinance (No,VII) of 1978. Further states that on the basis of the allegations as contained in the F.I.R. The alleged raid was conducted at the Baithak situated inside the house of the petitioner, therefore, section 5 of the Ordinance is not attracted as the same applies to gaming in public place, street or a thoroughfare. Further maintains that Asghar Ali S.-I. Complainant by taking the law into his own hands has committed, house trespass and has taken away the household articles belonging to the petitioner. Also submits that neither the complainant obtained any search warrant to enter the house of petitioner nor had he any lawful authority to do so, hence the action of the complainant and the raiding party was in clear violation of the Instructions issued by the police hierarchy in the said respect. Also maintains that if a raid was inevitable in a private house it could only be conducted in accordance with the provisions of section 8 of the Ordinance which provides that in such a situation a District Magistrate or a Magistrate of Ist Class upon information, after holding such inquiry as necessary and if he has reason to believe that any place was being used as a common gaming house, could enter such place. Since, the complainant had no lawful authority to conduct the raid, as such the entire proceedings were conducted in violation of the mandatory provision of law and, therefore, the F.I.R. In question was liable to be quashed.
4. The learned Additional Advocate-General appearing on behalf of respondents Nos.l to 3 while opposing the petition inter alia contends that the gambling was not taking place inside the house of the petitioner and, in fact, it was a place outside the premises of the house, hence section 5 of the Ordinance was fully applicable to the case of the petitioner.
5. I have heard the learned counsel for the petitioner, learned Additional Advocate-General and perused the record produced in Court by Asghar Ali, S.-I.
6. The site-plan prepared by the police clearly establishes beyond any doubt that the place where the petitioner and others are alleged to be indulging in gambling was inside the house of the petitioner which fact is further supported by the F.I.R. Wherein it has been alleged that the petitioner and others were found gambling inside the "Baithak" of the house belonging to the petitioner. This obviously implies that the room from where the petitioner and others were apprehended by the police was located inside the house. Hence, the applicability of section 5 of the Ordinance is excluded as the said section is restricted only to cases of gaming in the public place, street or a thoroughfare.
7. Insofar as the applicability of section 6 of the said Ordinance is concerned, the same is also excluded as a raid in case of gaming in a house, room etc. Is governed by the procedure provided in section 8 of the Ordinance which was not adhered to In the instant case. Sections 5, 6 and 8 are reproduced hereunder for easy reference:-- "(5) Penalty for gaming in public place.---Whoever is found gaming in the public place, street or thoroughfare, shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to five thousand rupees, or with both."
"(6) Penalty for gaming in private places, etc.---Whoever is found gaming in any house, room, tent, enclosure, vehicle, vessel or other place shall be punishable with imprisonment for a term which may extend to five years, or with the fine which may extend to seven thousand rupees, or with both."
"(8) Power to enter and search---If a District Magistrate, Sub-Divisional Magistrate, Magistrate of the First Class upon information and after any inquiry as he thinks necessary, has reason to believe that any place is used as a common gaming house, or an offence under section 6 is being committed at on in any place, he may;
(a) Enter such place at any time with such assistance as he may required and using such force as may be necessary: ' Provided that, if such place is the actually occupancy of woman which according to customs, 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 woman."
(c) seize and take possession of gaming moneys and securities for money and articles of value reasonable 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."
8. From the above, it is abundantly clear that in case a raid has to be conducted in any house, room, tent, enclosure, vehicle, vessel or any other place the provisions of section 8 would apply.
Therefore, it can be safely asserted that the raid conducted by the complainant was in complete violation and disregard of the mandatory provisions of sections 5, 6 and 8 of the Punjab Gambling Ordinance (No,VII) of 1978. If the proceedings pursuant to the said F.I.R. Are allowed to continue, it would not only add to the agony of the petitioner but would also amount to abuse of process of law and misuse of power by the police.
9. For what has been discussed above, it is a fit case for interference by this Court. Resultantly, this petition is accepted and the aforementioned F.I.R. Is hereby quashed.