SAGHEER AHMAD QADRI, J. - Through this application under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with Section 561-A, Cr.P.C. Petitioner seeks quashing of F.I.R. No. 448/2010, dated 9.10.2010 under Section 6 of the Prevention of Gambling Ordinance, 1978 registered at Police Station City Attock.
2. According to the contents ,,of the above- mentioned F.I.R. Registered on the statement of Javed Ahmad, S.I. Of Police Station City Attock that he on receipt of spy information that Shaukat son of Sultan caste Pathan resident of Mohallah Aalijah Attock City a proclaimed offender in case F.I.R. No. 8, dated 12.1.2006 under Section 302, P.P.C. Of Police Station Attock City was present at the "Baithak" owned by Ishtiaq Ahmad son of Muhammad Khan caste Awan resident of Mohallah Bijli Ghar Attock City, constituted a raiding party and at about 8:45 p.m. Reached at the said place and found the outer door of the "Baithak" shut. He got opened the door while knocking it and while entering inside found Ishtiaq Ahmad son of Muhammad Khan, Sheraz Ahmad son of Sher Ahmad, Waseem Shehzad son of Channan (present petitioner), Muhammad Yaqoob son of Mehboob Elahi and Gulfaam Hussain Shah son of Qurban whose names, other details and particulars were disclosed subsequently, were found busy in gambling by using cards, who all were apprehended and from their possession Rs. 8000/- as well as Rs. 16,000/- from the arena were recovered alongwith cards, Nokia phone etc. The above- mentioned accused while gambling committed the offence mentioned above and instant case was registered:
3. Learned counsel for the petitioner contends that the allegations levelled in the F.I.R. Are false, frivolous and based on mala fide & ulterior motives; that F.I.R. Does not disclose any ingredient requisite for the constitution of offence under Section 6 of the Prevention of Gambling Ordinance, 1978; that the alleged gambling was being committed by the petitioner in a private place, therefore, the complainant was not authorized to enter into the same until & unless he acquires a search warrant issued by a learned Judicial Magistrate. Even otherwise, under Section 8 of the Ordinance, ibid, it is specifically provided that if any information is received about the commission of an offence at a private place punishable under Section 6 of the Ordinance, ibid,: then a District Magistrate/Magistrate 1st Class may enter in said premises alongwith necessary assistance; that the registration of the F.I.R. Right from the beginning was illegal and in violation of the mandatory provisions of Section 8 of the Prevention of Gambling Ordinance, 1978, therefore, it is void ab initio and all subsequent proceedings, if; being carried on by the Investigating Officer or in a Court of law, are liable to be quashed. While relying on 2007 YLR 314 (Muhammad Asif v. The State & 6 others) prayed that this petition be allowed.
4. On the other hand, Mr. Nadeem Akhtar Bhatti, learned Assistant Advocate General was not in a position to controvert the arguments advanced by learned counsel for the petitioner, however, he agitated that as challan has been submitted in the learned Trial Court, therefore, petitioner may avail the remedy under Section 249-A, Cr.P.C. Before the learned Trial Court and prayed that this petition be dismissed accordingly.
5. I have considered the contentions raised by learned counsel for the parties and perused the record.
6. Admittedly, the alleged gambling according F.I.R. Was being committed in the "Baithak" of Ishtiaq Ahmad son of Muhammad Khan i.e. In a private place and the offence of gambling as made punishable under Section 6 of the Ordinance reads as under:- "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 fine which may extend to [seven] thousand rupees, or with both."
Under Section 8 of the Ordinance, ibid, it is specifically provided as under:- "Power to enter and search. If a District 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."
From bare reading of the above-mentioned provisions it is clear that in case commission of any gaming at a private place only a District Magistrate or Magistrate 1st Class may enter in such premises with the suitable assistance and then proceed further in accordance with law. Here in this case, allegedly information was received by Javed Ahmad, S.I. About the commission of the gambling at a private place i.e. In a "Baithak" where he without getting any search warrant issued by concerned Judicial Magistrate himself proceeded and apprehended/arrested the petitioner and other co-accused. "Baithak" is a place which commonly situates inside a premises to be used a drawing room in a residential house etc. Certainly, it is a private place and in this case when the complainant who is a Police Officer without getting the search warrant rather informing to the concerned Magistrate himself conducted the search and arrested the petitioner and other co- accused thus clearly violated the mandatory provision of Section 8 of the Ordinance. Judgment cited by learned counsel for the petitioner is fully applicable to the facts and circumstances of the present case. In view of the circumstances when complainant has committed a patent illegality, therefore, all subsequent proceedings including investigation and submission of challan are void, ab initio and same are liable to be quashed. So far as the arguments advanced by learned A.A.G.
That petitioner may avail the remedy under Section 249-A, Cr.P.C. Is a futile effort just to linger on the agony of the petitioner. Resultantly, while allowing this writ petition F.LR. No. 448/2010, dated 9.10.2010 under Section 6 of the Prevention of Gambling Ordinance, 1978 registered at Police , Station City Attock, is hereby quashed. Disposed of.