ABDUR RAUF KHAN LUGHMANI, J.--Qayyum Nawaz and 128 others, petitioners herein, have jointly filed this writ petition for quashment of F.I.R. No,91 dated 21-2-1998 of Police Station Cant, D.I. Khan registered under sections 5/6 of the Gambling Ordinance against them.
2. Mr. Dost Muhammad Khan, learned counsel for the petitioners, assailed the registration of the aforesaid F.I.R. On the ground that under - section 8 of the N.-W.F.P. Prevention of Gambling Ordinance, 1978, the S.H.O. Could not search the premises and register the case, while on the other hand, S.Zafar Abbas Zaidi, Advocate for respondents and Dy.A.-G. For State maintained that the premises were searched after obtaining search warrant from Senior Civil Judge/Judicial Magistrate, D.I.Khan in presence of Riaz Masood, Magistrate vide order dated 20-2-1999.
3. We have considered the arguments of the learned counsel for the parties and perused the record/relevant law. In order to appreciate the contentions of the learned counsel for the parties, it is expedient to reproduce section 8 of the N.-W.F.P. Prevention of Gambling Ordinance, 1978 which reads as under:-- "8. Power to enter and search.--If a District Magistrate, Sub-Divisional Magistrate, Magistrate of the 1st Class upon information and after such enquiry 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 of all those who are found in that place, except the women;
(c) seize and take possession of gaming moneys and securities for moneys 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."
4. With the introduction of recent local self-Government system and necessary amendments in various laws, the offices of D.M. And S.D.M. Are no more in existence, with the result that only the Magistrates of 1st Class can supervise the raid in such-like circumstances, whereas in the instant case the raid was conducted by S.H.O. In presence of Mr. Riaz Masood, Magistrate who was not at all at that time Magistrate 1st Class as is evident from the notification dated 27-2-1999 available on the file. Needless to mention that it is well-established principle of law that when an action is required to be taken in a particular manner, that can only be taken in that way. The requirement of law is that search is to be conducted by a Magistrate of 1st Class and of course he can require the assistance of the local police, which has not been complied with in the case in hand.
5. For what has been discussed above, we accept this writ petition, declare the impugned action of respondent No,2 as illegal and without jurisdiction and quash the F.I.R. In question.