Through this petition under section 498 Cr.P.C, the petitioner namely Zahid Husain seeks his pre-arrest bail in case FIR No.191 of 2019 dated 30.06.2019 registered at police station City, District Dera Ghazi Khan in respect of offences under sections 294-A, 294 B PPC read with Sections 6 and 7 of the Punjab Prevention of Gambling Ordinance, 1978.
4. The allegation as against the petitioner , culled from the evidentiary material produced before the Court is that he was involved in gambling and running a gambling house.
5. I have heard the arguments of learned counsel for the petitioner and learned Deputy Prosecutor General and perused the record with their able assistance.
6. This is pre-arrest bail and only tentativ e assessment of the material available before the Court can be made at this stage. It is the matter of serious disquiet that in presence of as many as seven police officials, who were also armed with weapons, the petitioner made good his escape from a room of the house which only had one entry door. It is not discernable from the perusal of the evidentiary material as to how, the petitioner was identified when he made good his escape and he earlier, was not known to the complainant or any of the prosecution witnesses.
The story of the petitioner's escaping from the place of occurrence in presence of so many police officials is to be taken with a pinch of salt. During the investigation of the case the Investigating Officer has not collected any oral or documentary evidence supporting the allegation that the place of occurrence was owned by the petitioner or that he indeed resided there as a tenant. Insofar as the applicability of section 6 and 7 of the Punjab Prevention of Gambling Ordinance (No.VII) of 1978 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 Punjab Prevention of Gambling Ordinance (No.VII) of 1978 which was not adhered to In the instant case. Sections 5, 6, 7 and 8 of the Punjab Prevention of Gambling Ordinance (No.VII) of 1978 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.
7. Enhanced punishment for subsequent offences.-- Whoever , having been convicted of any offence under this Ordinance, again commits any such offence shall be punishable for every such subsequent offence with imprisonment for a term which may extend to [7][seven years], or with fine which may extend to [8][ten 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 actuall y 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."
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. However, in this case, the raid was conducted by Muhammad Shoaib Adeel in violation of the said law. Nothing is to be recovered from the petitioner.
Already, the investigation of the case is complete and the version of the petitioner as well as the complainant has been verified. The assertion of learned counsel for the petitioner that the involvement of the petitioner in this case is based on malafide, is the assertion which cannot be said to be without substance and foundation at this stage.
Sending the petitioner behind the bars would cause irreparable loss to his reputation.
7. In view of the above discussion, this petition is allowed and the ad-interim pre-arrest bail already granted to the petitioner by this Court vide order dated 28.06.2019 is hereby confirmed subject to his furnishing fresh bail bonds in the sum of Rs.50,000/- (Rupees fifty thousand) with two sureties in the like amount to the satisfaction of learned trial Court.
8. Needless to mention that any observations made in the above order are tentative in nature and shall not influence the trial Court, in any manner .