SAGHEER AHMED QADRI, J.---Through this application under Article 199 of the Constitution of Islamic. Republic of Pakistan, 1973 read with section 561, Cr.P.C. Petitioner seeks quashing of F.I.R No. 367 of 2010 dated 26-8-2010 under section 6 of the Prevention of Gambling Ordinance, 1978 registered at Police Station City Attock by Safdar Khan, S.I of the said Police Station.
2. The allegations levelled in the F.I.R are that on 26-8-2010 at 4-00 p.m. When complainant-Safdar Khan, S.I along with other Police Officials was present in connection with petrol duty at Madni Chowk Attock City, an informer informed him that a proclaimed offender namely Muhammad Ashfaq son of Abdul Farooq caste Zargar resident of Kamrah presently resident of E-Block, House No. 337 Attock City was present in the "Baithak" owned by Jaboo Shah situated at Civil Bazar where people were gambling, if raided, they could be arrested. On this information he along with the informer and raiding party at 4-00 p.m. Raided the "Baithak" owned by Jaboo Shah and found Muhammad Afzal son of Noor Muhammad, Muhammad Safdar son of Noor Muhammad, Shabbir Ahmad son of Malik Zahoor Ahmad and Sher Afzal present busy in gambling through cards. On seeing the police party they mingled the money present there for gaming purposes, however, when that currency was secured it found Rs.5,130, detail of which is given in the F.I.R, along with four mobile phone sets which were also taken into possession along with a set of cards. It was further transpired that said proclaimed offender Muhammad Ashfaq was succeeded in decamping from the lower gate of the "Baithak". On this report instant case as above- mentioned 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 and ulterior motives; that F.I.R does not disclose any ingredient requisite for the constitution of offence under section 6 of the Prevention of the Gambling Ordinance, 1978; that as 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 along with 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 and 6 others) prayed that this petition be allowed.
4. On the other hand, Mr. Razzaq A. Mirza, learned Additional 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 to the F.I.R was being committed in the "Baithak" of Jaboo Shah 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 of commission of any gaming at a private place only a District Magistrate or Magistrate Ist 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 Safdar Khan, 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 as 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 Additional Advocate-General 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.I.R No. 367 of 2010 dated 26-8-2010 under section 6 of the Prevention of Gambling Ordinance, 1978 registered at Police Station City Attock is hereby quashed. Disposed of.