' KAZIM ALI MALIK, J.---Zia Ullah, petitioner was arrested in a case F.I.R. No, 144, dated 7.4.2008 under Article 3/4 of the Prohibition,(Enforcement of Hadd) Order, 1979 registered at Police Station Ali Pur Chatha, Distt. Gujranwala and was declined bail by the learned Trial Magistrate as well as the learned Court of Session, Gujrarnwala. Hence, this bail petition.
2. The prosecution case set up in the F.I.R., in brief, is that on 7.4.2008 at about 4.30 p.m. a police party headed by Muhammad Qayyum, S.H.O. Police Station Ali Pur Chatha, was present in Madina Chowk, Ali Pur Chatha when the S.H.O. Received spy information that rented room of Zia .Ullah, petitioner was being used as common gambling house. The S.H.O. Alongwith other police officials raided the room in occupation of the petitioner as a tenant and found that the above-said secret information was not based on facts. However, Zia Ullah, petitioner was found engaged in bottling.
The S.H.O. Apprehended the petitioner and seized 30 bottles of Desi liquor.
3. The learned counsel for the petitioner has contended , that the S.H.O. Was not competent to enter or search the room even if it was being 'used for common gambling house or for bottling Desi liquor.
4. I have carefully gone through the relevant provisions of the Prevention of Gambling Act, 1977 and the Prohibition (Enforcement of Hadd) Order, 1979 in order to determine as to whether or not the S.H.O. Was competent to -raid the room in occupation of the petitioner. Section 8 of the Prevention of Gambling Act, 1977 and Article 22 of the Prohibition (Enforcement of Hadd) Order 1979 deal with the powers to enter and search any, house being used for gambling or bottling,. I find it advantageous to reproduce below the above- said provisions of law, which read: ' Section 8 of Prevention of Gambling Act, 1977: ' "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.
' Article 22 of the Prohibition (Enforcement of Hadd) Order, 1979.
' "Issue of search warrants.--(1) 1f any Collector, Prohibition Officer or Magistrate, upon information obtained and after such inquiry as he thinks necessary, has reason to believe that an offence under Article 3, Article 4, Article 8 or Article 11 has been committed, he may issue a warrant for the search for any intoxicant, material, still, utensil, implement or apparatus in respect of which the alleged offence has been committed.
(2) Any person who has been entrusted with the execution of such a warrant may detain and search and, if he thinks proper, but subject to the provisions of clause (1) of Article 12, arrest any person found in the place searched, if he has reason to believe such person to be guilty of any offence under Article 3, Article 4, Article 8 or Article 11."
A hare perusal of the above-said statutory provisions of law would show that it was not permissible for the S.H.O, to enter and search the room in possession of the petitioner. According to the prosecution case the S.H.O. Received secret information that the above-said room was being used as common gambling house. After having come to know about the gambling, it was mandatory for the S.H.O. To lay the information before the Distt. Magistrate, or Sub-Divisional Magistrate or Magistrate of the 1st Class with a request for search of the room. It is the prerogative of the above- named officers to enter and search any place being used as a common gambling house or that an offence of gambling in private place punishable under Section 6 of the Act is being committed..
So far as the alleged seizure of bottles of Desi liquor from inside the room of the petitioner is concerned, Article 22 of the Prohibition (Enforcement of Hadd) Order, 1979 stands in the way of the S.H.O. To conduct such raid. Only the Collector, Prohibition Officer or Magistrate are competent to issue search warrants for seizure of intoxicants. When confronted with the above-said mandatory provisions of law, the learned law officer frankly and rightly conceded that the S.H.O. Was not competent to raid the room in occupation of the petitioner to check gambling or to seize intoxicants. In view of the above-said state of affairs it is not difficult for this Court to say that the S.H.O. Encroached upon the powers and functions of the officers given in the said provisions of law.
The S.H.O. Did not remain within his allotted sphere and thus his conduct cannot be approved of.
5. For what has been stated above, I am of the view that the registration of case and seizure of liquor being violative of the mandatory provisions of law did not provide a basis to connect the petitioner with the charge. Resultantly, I allow bail to the petitioner subject to his furnishing bail bond in the sum of Rs, 50,000/- with one surety in the like amount to the satisfaction of the learned Trial Court.