' QAZI FAEZ ISA, C J.---Learned counsel for appellant submits that Judicial Magistrate Dera Allah Yar had convicted the petitioner under section 6 of the Balochistan Prevention of Gambling Ordinance, 1978 and sentenced him to suffer R.I. For six months and to pay fine of Rs,2000 and in default thereof, to further undergo S.I. For one month, vide judgment dated 31-12-2008. Against such judgment an appeal was preferred before Additional Sessions Judge Dera Allah Yar, who, vide order dated 3-1-2009, upheld the conviction, but reduced the sentence of fine to Rs,450 only.
2. Brief facts of the case are that the F.I.R. No,167/2007 was lodged at Police Station Dera Allah Yar by Khadim Hussain Magsi S.H.O., wherein it was alleged that secret information was received that gambling was taking place in the house of the appellant accordingly, the said house was raided and the appellant along with three other persons was taken into custody. The F.I.R. Was lodged after the said raid. Learned counsel stated that Balochistan Gambling Ordinance, 1978 is a special law and to sustain a conviction thereunder complete compliance with the provisions thereof has to be made. Learned counsel states that section 8 of the said Ordinance was violated in so far as the raid was not conducted by a person designated in section 8 of the Ordinance, the relevant portion whereof is reproduced below:-- "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 such 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--
(6) Enter such place at any time with such assistance as he may require and using such force as may be necessary."
3. Learned counsel further states that no enquiry as envisaged in section 8 was conducted. Learned counsel states that failure to comply with the mandatory provisions of section 8 is fatal to the case of the prosecution and the resultant conviction.
4. Learned Assistant Advocate General candidly admits that compliance was not made with section 8 of the said Ordinance before conducting the said raid.
5. The documents on record confirm that the matter was not enquired into by a Magistrate under section 8 of the Balochistan Gambling Ordinance, 1978 nor was a Magistrate present when the residence of the appellant was entered into. The police has no authority to take cognizance of the case under the Ordinance and its role is only to render assistance to the Magistrate while conducting a raid.
6. It is in only certain exceptional circumstances That the privacy of the home can be violated and to do so strict compliance with the applicable law has to be made. One of the Fundamental Rights enshrined in the Constitution of Pakistan is the right to Privacy. Article 14 of the Constitution of Pakistan stipulates as under:-- "Inviolability of dignity of man, etc.---(1) The dignity of man and, subject to law, the privacy of home, shall be inviolable."
7. The right to privacy is of ancient import and it is one of those rights that the creator Himself has bestowed upon human beings. This right finds specific mention in the Holy Quran and in the teachings of the Prophet Muhammad, peace and blessings be upon him.
"0 ye who believe! Enter not houses other than your own until you have asked leave and saluted the inmates thereof. That is better for you; that you may be heedful. And if you find no one therein, do not enter them until you are given permission. And if it be said to you, 'Go back then', then go back; that is purer for you. And Allah knows well what you do." (An-Nour, 24:27-28).
"0 ye who believe! Avoid most of suspicions; for suspicion in some cases is a sin. And spy not, nor back-bite one another. Would any of you like to eat the flesh of his brother who is dead? Certainly you would loathe it. And fear Allah, surely Allah is Oft-Returning with compassion and (is) Merciful"
(AlHujuraat, 49:12).
' It is reported that a man came to see Prophet Muhammad, peace be upon him, and sought permission for entry while standing just in front of the door. The Prophet said to him; "Stand aside: the object of the Commandment for seeking permission is to prevent casting of looks inside the house." (Abu Da'ud Book 41, Number 5155).
"The practice of the Prophet, peace and blessings be upon him, was that whenever he went to see somebody, he would stand aside, to the right or the left of the door, and seek permission as it was not then usual to hang curtains on the doors, (Abu Da'ud Book 8, Number 5167).
' The Right to privacy is deemed violated even if private correspondence of another is read.
"According to Hadrat `Abdullah bin Abbas, the Prophet said; `Whoever glances through the letter of his brother without his permission,. Glances into fire.'" (Abu Da'ud Book 8, Number 1480)."
8. In the instance case the mandatory provisions of section 8 of the Ordinance were violated. No enquiry was conducted by a Magistrate and the raid was not conducted by a Magistrate.
Consequently, any step subsequently taken and any material that was gathered at the time of raid would be of no consequence and could not be relied upon.
9. Accordingly, the judgment of the Judicial Magistrate dated E 31-12-2008 and the Appellate Court's judgment dated 3-1-2009 are set-aside and the petitioner is acquitted of the charge.
' Revision Petition is accepted.