' WALI MUHAMMAD KHAN, J.---Through the instant appeal the State challenges the order of the Lahore High Court, Rawalpindi Bench, dated 22-3-1988, whereby the appeal filed by Abdul Qayyum and others respondents herein against their conviction and sentence under section 4 of Punjab Prevention of Gambling Ordinance, 1978 (Ordinance VII of 1978) was accepted, they were acquitted of the charge, and the State appeal against the acquittal of Said Mir Khan, Badshah Mir, Jehangir and Muhammad Aslam and for the enhancement of the sentence of the convicted accused/respondents herein, was dismissed. The leave granting order is as follows: "Leave to appeal is granted as against respondents Nos. 5 to 29 to give an authoritative pronouncement on the purview of section 9 of the Punjab Prevention of Gambling Ordinance, 1978 in view of the following observations made with regard to it by the High Court while acquitting the respondents in the case:- ' In order to raise presumption under section 9 of the Ordinance that the premises were being used as common gaming-house and that the accused were gaming therein it must be proved that the said premises were owned, used or kept by some one for profits. There is no such evidence on record of this case'."
' The facts of the case, briefly stated, are that Shahid Ullah Baig, Additional Deputy Commissioner General, Rawalpindi received an application from Rana Muhammad Nawaz D.S.P. That House No,X/663 situated in Ratta Amral, Said Mir Colony, was being used as gaming-house. An enquiry was made thereon and on 30-5-1986 at about 12-45 noon, he was infOrmed that gambling was going on in the said house. A raid was arranged which was headed by the Additional Deputy Commissioner himself including Rana Muhammad Nawaz D.S.P., Nusrat All S.H.O. Gangmandi P.W.7 and others. The place was physically raided at 1-30 noon and the respondents were found gambling in the first floor of the house in question. On seeing the raiding party, the accused/respondents mixed up the articles lying before them comprising of three packets of Playing Cards; Rs,9,597 comprising of 5 notes of Rs,500 denomination, 33 notes of Rs,100 demonination, 59 notes of Rs,50 denomination, 40 notes of Rs,5 denomination, 8 notes of Rs,2 and 114 notes of Re.1 denomination; some Omani dollars, 8 wrist watches, 5 golden rings, and a silver box containing Rs,1,700. Nawab Ali accused/respondent, in order to save himself from arrest, jumped from the first floor but could not succeed as his leg got fractured and he was arrested.
Muhammad Aslam acquitted accused, however, managed to escape. The rest of them were arrested on the spot. The playing cards and the other articles mentioned above were taken into possession. The house in question was allegedly owned by Said Mir acquitted accused and he was stated to be maintaining the same as gaming-house for profit by receiving a certain percentage of gambling money. The Additional Deputy Commissioner drafted the complaint Exh.PG on the basis of which F.I.R. Was duly registered, After the completion of usual investigation the challan against all the accused/respondents was put in the Court of Punjab Special Cuurt Rawalpindi for Speedy Trial. The accused/respondents except Nadir Rehman, Amir Abdullah, Habib Khan, Muhammad Rahim, Muhammad Akhtar, and Ali Baz appeared before the Court and took part in the proceedings. Nadir Rehman and others named above, in spite of proclamation in the Press, did not appear and in pursuance of section 8 of the Special Courts for Speedy Trials Ordinance, 1987, Mr. S.M. Wahab was appointed to defend them and they were tried in absentia. Necessary charge- sheet was framed against the accused/respondents to which they pleaded not guilty. On the appraisal of the evidence produced by the prosecution and the defence version, the learned trial Court vide its judgment, dated 15-3-1988 acquitted Said Mir, Badshah Mir, Jehangir and Muhammad Aslam and convicted Abdul Qayyum and others respondents herein under section 4 of the Punjab Prevention of Gambling Ordinance, 1978 and sentenced each one of them to six months' R.I. And fine of Rs,200 or in default one month R.I. However, the learned High Court, Rawalpindi Bench, vide the impugned judgment, disagreeing with the conclusions arrived at by the trial Court, acquitted the accused/respondents herein and also maintained the acquittal of the four acquitted accused. Hence the instant appeal by the State.
' We have heard Mr. M. Nawaz Abbasi, Assistant Advocate-General for the State, Sardar M. Ishaq, Advocate for respondents 3, 5, 11 and 22, and have perused the record of the case. The learned State counsel referred to various provisions of the Punjab Prevention of Gambling Ordinance, 1978, hereinafter to be referred as the Ordinance, and submitted that the production of direct evidence to establish that the house in question was 'wing used as gaming-house for profit was not essential and that presumption in this respect could be drawn in view of the facts and circumstances of the instant case. He further submitted that mere mentioning of the wrong number of the house in the report could not absolve the accused/respondents from the charge of gambling in the house where they were found gambling by disinterested public servants. Finally, he stressed that the recovery of the playing-cards and different items of currency and the other articles which could be used in gambling was sufficient to establish prima facie the guilt of the accused/respondents and the burden was shifted to them to advance reasonable and plausible explanation as to what for they had gathered there and how the aforementioned articles were lying on the ground before them sitting in circle with each other. The learned counsel for the respondents, on the other hand, reiterated the grounds enumerated in the impugned judgment of the High Court in support of the acquittal of the accused/respondents. We have given our anxious consideration to the arguments advanced by the learned counsel on either side. As per the leave granting order an authoritative judgment on the legal provisions contained in the Ordinance is called for. It would be advisable to reproduce the various provisions of the Ordinance ibid relating to the controversy in hand.
2. Definitions.- -In this Ordinance, unless there is anything repugnant in the subject or context,--
(a) "common gaming-house" means any house, room, tent, enclosure, vehicle, vessel or other place whatsoever in which any instruments of gaming are kept or used for gaming purposes--
(i) with the object of profit or gain of any person owning, occupying or keeping such house, room, tent, enclosure, vehicle, vessel or other place whether by way of charge for the use of such house, room, tent, enclosure, vehicle, vessel or place or instruments or otherwise howsoever; or
(ii) with or without the object of such profit or gain, if the gaming for the purpose of which such instruments are so kept or used is gaming on any figures or numbers or dates to be subsequently ascertained or disclosed; or on the occurrence or non-occurrence of any natural event;
(d) "instruments of gaming" includes any article used or intended to be used as a means or appurtenance of, or of carrying on or facilitating, gaming, and any documents used as a register or record or evidence of any gaming; and
3. Penalty for owning or keeping or having charge of a common gaminghouse.---(1) Whoever--
(a) being the owner or occupier, or having the use, of any house, room, tent, enclosure, vehicle, vessel or other place, keeps or uses, or knowingly or wilfully permits the same to be occupied, kept or used any other person as a common gaming-house; or
(b) he has the care of management, or in any manner assists in conducting the business of any common gaming-house; or
(c) advances or furnishes money for the purpose of gaming with persons frequenting any common gaming-house, shall be punishable with imprisonment for a term which shall not be less than one month nor more than one year, or with fine which shall not be less than one hundred rupees nor more than one thousand rupees, or with both.
(2) In a prosecution under subsection (1), it shall not be necessary to prove that the found playing was playing for any money, wager or stake.
4. Penalty for being found in common gaming-house.---(1) Whoever is found in any common gaming-house playing or gaming with cards, dice, counters, money or other instruments or gaming, or for the purpose of gaming, whether for any money, wager or stake or otherwise, shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with both.
(2) any person found in any common gaming-house during any gaming or playing therein shall be presumed, until the contrary be proved, to have been there for the purpose of gaming.
6. Penalty for gaming in private places. Etc,---Whoever is found gaming in any house, room, enclosure, vehicle, vessel or other place shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.
8. 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;,
(b) search such place for any instruments of gaming kept or concealed therein, and also the person or all those who are found in that place, except the women;
(c) seize and take possession of gaming moneys and securities for money and articles of value reasonably 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.
9. Presumption with respect to common gaming-house and persons present therein.--When any cards, dice, gaming-tables, gaming clothes, gaming-boards or other instruments of gaming are found in any house, room, tent, enclosure, vehicle, vessel or other place entered or searched under the provisions of section 8, or upon any person found therein, it shall be presumed, until the contrary is proved, that such house, room, tent, enclosure, vehicle, vessel or other place is used as a common gaming-house and that any person found therein was there present for the purpose of gaming. -."..Hough no play was actually seen by the officer making the entry or search.
The combined reading of the aforequoted provisions of the Ordinance ibid makes it amply clear that the same cater for penalty to persons owning or keeping or having charge of a common gaming-house; to persons being found in common gaming-house; to persons gaming in private places and a District Magistrate or the Magistrate of the first class have power to enter and search the premises about which there is reason to believe that these are used as common gaming- house or that an offence under section 6 viz., gaming in private places is being committed at or in such place. The essential ingredient for declaring a place as a common gaming-house is, that in the places enumerated in section 2(a), instruments of gaming must be kept or used for gaming purposes with the object of profit or gain of any person, owning, occupying or keeping such house etc. The owner or occupier or the person having the use of such place have been made punishable under section 3 and the persons found gaming in such common gaming-house are punishable under section 4. Section 6 makes gaming in private places punishable as well. The District Magistrate or a Magistrate of First Class have been invested under section 8 with power to enter and search the places where he has reason to believe that the same is being used for common gaming or offence under section 6 (gaming in private places) is being committed at or in any such place. Section 9 provides that if any articles of gaming enumeratd therein are found in any such place or any person is found therein it shall be presumed, until the contrary is proved, that such house etc. Is used as common gaming-house and that any person found therein was there present for the purpose of gaming although no actual gaming was seen by the officer making the entry or search. It is thus apparent that gaming in any form or at or in any place has been made punishable. If a person is found in a gaming-house he is liable for penalty under section 4 even if he is not found actually gaming or playing. However, for a person gaming in a private place it is mandatory that the person must be found gaming in such place. Section 3 is restricted only to punishment for the owners or persons having control or charge of the gaming house.
' In the case in hand Said Mir, Badshah Mir and Jehangir Khan (acquitted accused) are. Alleged to be owners/occupiers/managers of the premises in question and the learned trial Judge, vide its judgment, dated 15-3-1988, on the appraisal of the evidence produced before him by the prosecution, held that the prosecution failed to establish that the premises where the raid was conducted and the acquitted accused arrested were owned or possessed by them. They were not present in the premises at the time of raid. Muhammad Aslam acquitted accused was able to flee from the spot and extending him the benefit of doubt he was also acquitted by the learned trial Court. These conclusions of the trial Court were affirmed by the High Court and in the absence of proof any illegality, misreading or non-reading of evidence this Court being reluctant to interfere in the decision of the two Courts below so far as the acquittal of Said Mir, Badhsah Mir and Jehangir Khan was concerned, refused leave to appeal against them.
' The learned counsel for the respondents argued that the acquittal of above-named three accused presupposes that the place wherefrom respondents were arrested, was not established as a common gaming-house and that they were ipso facto entitled to acquittal even if they were found there at the time of raid or busy gaming/playing therein. We are afraid, the contention has no force. Shahidullah Beg, Additional Deputy Commissioner (General), Rawalpindi, on receipt of report from Rana Muhammad Nawaz D.S.P. That the premises in question were being used as common gaming-house conducted an inquiry beforehand. Subsequently the D.S.P. Informed him that gambling was going on in the said house, who by virtue of his office was also a Magistrate of Ist Class headed the raiding party and arrested the respondents while busy gaming inside the place and recovered the playing cards, currency notes and other articles described in the earlier part of the judgment. He is a disinterested, responsible officer and there is no reason why his deposition in Court should not be accepted in toto. He is also corroborated by Rana Muhammad Nawaz D.S.P. Who also had no motive to falsely implicate the accused/respondents. It is worthwhile to emphasise that under section 8 of the Ordinance ibid a District Magistrate or a Magistrate of Ist Class can make a search if he thinks that the place is being used as a common gaming-house or an offence under section 6 is being committed therein. In view of this provision, it is not prerequisite to the search that the place must have already been declared as a common gaming-house or used as a common gaming-house and a private place can also be searched if the officer thinks that gaming is in progress there. The presumption under section 9 applies to both the eventualities inasmuch as it says that any person found in a place searched under section 8 shall be presumed to be present there for the purpose of gaming although no play was actually seen by the officer making the entry or C search. It is also provided therein that when any cards, dice etc. Etc. Are found in such place searched under section 8, it shall be presumed that such place is used as common gaming-house unless the contrary is proved. Considering both the provisions of sections 8 and 9 in conjunction with the facts of the case, it is crystal clear that the raiding party arrested respondents gaming therein and recovered the instruments of gaming enumerated earlier from the said place. From the evidence produced by the prosecution it can safely be presumed that the place where the raid was conducted is used as common gaming-house and that the respondents were present there for the purpose of gaming. The learned trial Court had, therefore, rightly convicted and sentenced the respondents.
' The learned High Court, with respect, has not properly interpreted the abovementioned provisions of law and was probably influenced by the judgments cited in their impugned judgment which were delivered earlier than Punjab Prevention of Gambling Ordinance, 1978 (Ordinance VII of 1978).
In the case of Sardar Alam v. The State (PLD 1975 Lah. 589) the raid was made by an Inspector of Police under section 8 of the West Pakistan Prevention of Gambling Ordinance (I of 1961) since repealed. Section 8 of the present Ordinance made a departure from the earlier one where a District Magistrate, Sub-Divisional Magistrate or Magistrate of Ist Class could either themselves or by a warrant authorise any police officer not below the rank of an Assistant Sub-Inspector, make a search. In the present statute only a District Magistrate or Magistrate of Ist Class can himself make a search and the provision regarding the authorisation of police officer is conspicuously omitted from it. Secondly, in the earlier law the search could only be made where the allegations were that the place is being used as common gaming-house but in the instant Ordinance it is additionally provided that a private place where an offence under section 6 is being committed can also be entered upon and searched. In the earlier law gaming in public place was made punishable under section 6 but there is no such provision in the present Ordinance as it was not felt necessary in view of the other provision thereof. Consequently, the present statute is an improvement on the earlier one. We have gone through the cited judgment in Sardar Alam's case and find it inapplicable to the facts of the present case.
' For the reasons stated above, we accept this appeal, set aside the judgment of the learned High Court and restore that of the trial Court. The respondents are directed to surrender for undergoing the remaining sentence.