Abdul Ahad vs State

2013 P Cr. L J 1391

[Peshawar]

Before Lal Jan Khattak, J

ABDUL AHAD---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Quashment Petition No.74-D of 2013, decided on 22nd April, 2013.

Criminal Procedure Code (V of 1898)---

----S. 561-A & Preamble---Khyber Pakhtunkhwa Prevention of Gambling Ordinance (V of 1978), Ss. 5, 6 & 8---Gaming at a public place and at private places---Quashing of F.I.R.--- Power to enter and search---Contention of accused was that Station House Officer of Police Station had no authority to register case when according to S.8 of the Khyber Pakhtunkhwa Prevention of Gambling Ordinance, 1978, authority to enter upon gambling house had been conferred upon the District Magistrate, Sub-Divisional Magistrate or Magistrate First Class and that entry into such house by the Station House Officer was nothing but departure from the law-- -Validity---When law had laid down that an act was to be done in a particular manner, then same must be done in that manner and not otherwise---Petition was allowed and F.I.R. was declared ab initio void being without lawful authority and without jurisdiction.

PLD 2003 Pesh. 77 rel.

Syed Tehsin Alamdar for Petitioner.

Sanaullah Khan Shamim Gandapur, D.A.-G. for the State.

Date of hearing: 22nd April, 2013.

JUDGMENT

LAL JAN KHATTAK, J.---Petitioner Abdul Ahad along with three others was booked by Muhammad Nawaz Khan SHO, Police Station City, D.I. Khan for offences under section 5/6 of the Khyber Pakhtunkhawa Prevention of Gambling Ordinance, 1978, vide F.I.R. No.156 dated

2.Petitioner being aggrieved of the very registration of case against him has sought its quashment, through the instant petition under section 561-A, Cr.P.C.

3.I have heard learned counsel for the petitioner and learned Deputy Advocate-General for the State and have gone through the record of the case.

4.Grouse of the petitioner, per contention of his learned counsel, is that the SHO had no lawful, authority to register the instant case against him as according to section 8 of the Ordinance ibid, it is only a District Magistrate, Sub-Divisional Magistrate or the Magistrate of First Class who may, upon information and after such enquiry as he thinks necessary, enter upon any house etc.; where gambling is being committed so that to achieve the objects of the Ordinance. The learned counsel for the petitioner contended that in view of the above mentioned clear-cut mandate and requirement of law, the entire exercise carried out by the SHQ is unwarranted, contrary to law and judgments of superior courts laid down in this respect. Reliance has been placed on PLD 2002 Peshawar 34 and PLD 2003 Peshawar 77.

5.According to the cases cited at the bar by the learned counsel for the petitioner, the matter impugned through the instant petition has been put at rest by this court by interpreting the Khyber Pakhtunkhawa Prevention of Gambling Ordinance 1978 in the light of the Constitution of Islamic Republic of Pakistan 1973, Criminal Procedure Code 1898 and the golden principles of interpretation of statutes. While elaborating the law on the subject, his Lordship held in para-17 of the case reported in PLD 2003 Peshawar-77 as under:- "According to the plain language of the provision of section 8 of the Ordinance reproduced (ibid) there is no difficulty to conclude that right from the first step i.e. the raid/entry into the premises of gaming house till the final stage of enquiry/investigation which includes the arrest of the accused and recovery of articles all such powers now are vested with the Magistrate of the above mentioned category. The role of the police in the given circumstances is that of the agency rendering assistance to the Magistrate while conducting/carrying out the above exercise under section 8 of the Ordinance. Thus the police has no authority to take cognizance of the case under the Ordinance".

6.When according to section 8 of the Ordinance ibid authority to inter upon a gambling house has been conferred upon the District Magistrate, Sub-Divisional Magistrate or Magistrate First Class, then entry into such house by the SHO is nothing but a clear departure from the law which action should not go unnoticed by this court because when law lays down that an act is to be done in a particular-manner, then it must be done in that manner and not otherwise, come what may.

7.For what has been discussed above and following the dicta laid down in the cases cited at bar, I accept this petition and resultantly the case F.I.R. No. 156 dated 23-3-2013

under sections 5 and 6 of the Gambling Ordinance, 1978 registered at Police Station City D. I. Khan is declared ab initio void being without lawful authority and without jurisdiction and all the proceedings conducted in the above case are equally declared to be without lawful authority and without jurisdiction.

AG/313/P Petition accepted.