P L D 2003 Peshawar 77 (PLP)

(a) enter such place at any time with such assistance as he may require and using such force as tray 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 woman; (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. The corresponding provisions of the Code relevant in the context of the present controversy are, the provisions of section 4, clauses (t) and (1), sections 5, 154, 156 and 173 read with section 190, Cr.P.C. The latter provisions are contained in Chapter XIV of the Code which exclusively deals with the taking of the cognizance by the police of cognizable offence, conducting investigation into the same and at the conclusion of investigation the forwarding of the accused to the Court alongwith the charge‑sheet for the taking of cognizance, enquiring into or trying the same.

10. According to clause (f) of section 4 of the Code, cognizable offence and cognizable case means a case in which a police officer may arrest an accused person in accordance with the Second Schedule annexed to the Code or under any law for the time being in force without obtaining warrant of arrest from the competent Court.

12. According to subsection (2) of section 5, of the Code, the investigation, trial and enquiry of offences against other laws are to be conducted subject to any special enactment for the time being in force A regulating the same. For convenience sake the said provision is reproduced which runs as thus:‑‑ "5. (1)... ... ... ... (2) Trial of offences against other laws.‑‑All offences, under any other law shall be investigated enquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."

13. While reading clause (h) of section 4 of the Code the clear distinction drawn between the challan case and a complaint case further explains the legal position in this regard and the same reads as thus:‑‑ "Section 4(h). 'Complaint'.‑‑Complaint means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but it does not include the report of a police officer,"

14. The report referred to in the ibid provision is the one which is prescribed by section 173 of the Code and is normally called a charge sheet/challan. Thus the difference between a complaint case and challan case for all practical purposes and intents of law is so manifest ,that one cannot entertain any doubt in this regard.

15. The foot note, to the Second Schedule of the Code also explains/encompasses is the mode and manner of investigation with reference to the nature of the offence and the length of sentence in imprisonment under the other laws and it is directed therein that offences punishable with three years or above alone are cognizable and the rest not so. This explanation also lends support to the view that the offences under the Ordinance which are not punishable with imprisonment for more than 3 years are not cognizable even under the said Schedule. 16 The plain reading of the foot note ibid to the Schedule also shows that offences punishable with 3 years' imprisonment or above alone are cognizable under the special and local law. Thus on this analogy too the offences under sections 3, 4, 5 and 6 under the Ordinance certainly are non cognizable for the police.

17. 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 Magistrates 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.

18. The reading of section 8 of the repealed law ,i.e. West Pakistan Prevention of Gambling Ordinance, 1961, further provides considerable assistance in discovering the intention of the Legislature in making a clear departure from the previous position while enacting section 8 of the present Ordinance which reads as thus:‑‑ "

8. Power to enter and authorise police to enter and search.‑‑If a District Magistrate, Sub‑Divisional Magistrate; Magistrate of the First Class or District Superintendent of Police, upon information and after such inquiry as he thinks necessary, has reason to believe that any place is used as a common gaming house, he may zither himself, or by a warrant authorize any police officer not below the rank of an Assistant Sub‑Inspector of Police to‑‑ (a) enter such place at any time with such assistance as may be required; and by force if necessary, (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, (c) seize and take possession of (sic) gaming, moneys and securities for money, and articles of value, reasonably suspected to have been used or intended to be used for the purposes of gaming, which are found therein or upon any person there present, (d) take into custody, all persons found therein whether or not than actually gaming."

19. Again the provision of section 10 of the repealed Ordinance, 1961 further makes the position more clear as under the said provision the police officers were empowered to arrest persons committing an offence under section 6 of the said Ordinance including search and effecting seizure etc,

20. The visible departure, trade by the Legislature in enacting the provision of section 8 of the Ordinance is, much in line and in obedience to Article 14 of the Constitution which has placed the dignity of man, the sanctity and privacy of home at a very high pedestal in making the same inviolable, apart the fact that there is another famous maxim in support of it which says that every body home is his castle. The change thus introduced fairly safeguards the sanctity of home so that it is not disturbed frequently by the police on the pretext of conducting raids on private homes for arresting p gamblers‑and at the same time through such change considerable credibility has been given to the entire exercise being conducted by a person of the rank of Magistrate under the provision of section 8 of the Ordinance.

21. It is, centuries old principle of interpretation of statutes which is old as hills are that penal provisions of law which deprive the liberty of the citizens must be construed/interpreted strictly and that maximum efforts should be made to preserve such rights rather to permit invasion on the same.

22. There is another golden principle on the interpretation of statute which in its Latin form says 'Expressio unius est exclusio alterius', the meaning of it is that an act when is directed to be done in a, particular manner it must be done in that manner or not at all as a command in the negative necessarily includes in it. In this regard the leading judgment of the apex Court is the case of Chairman, E.T.P. v. Muhammad Din etc. (PLD 1956 Supreme Court (Pak.).331) and to the same effect is the view taken by the Lahore High Court in a case reported by PLD 1971 Lahore

217. Thus. in view of the above legal position, when the provision of section 8 lays down a G clear procedure and also provides a particular authority to deal with the matter then, the police is necessarily and certainly excluded to take cognizance of such offences.

23. Yet another aspect of the case which shall not go unnoticed is the statement at the bar trade by the learned counsel for the petitioner that the reported judgment of this Court in the case of Qayum Nawaz and 128 others v. State and 5 others (PLD 2002 Peshawar 34) was cited before the learned Magistrate. The impugned judgment is silent on this aspect and the learned Magistrate has conveniently ignored the law laid down in the ibid case which is to a great extent is based on the similar interpretation of section 8 of the Ordinance. Such practice on the part of the learned lower Court is certainly deplorable because under Article 201 of the Constitution the law enunciated and laid down by this Court is binding on all the subordinate Courts and the Tribunals within the Province due to the Constitutional mandate on its back. Therefore, any disregard shown to such law: laid down by this Court or neglecting the same would make the decision/judgment of such Court/Tribunal a nullity in the eyes of law being void ab initio apart the fact, that such attitude would also invite a serious displeasure of this Court.

24. As a sequel to the above discussion case F. I. R. No. 106 dated 19‑2‑2002 under section 6 of the Prevention of Gambling Ordinance (N.‑W.F.P.), 1978 registered at Police Station Chamkani. Peshawar is declared ab initio void being without lawful authority and without jurisdiction and, therefore the cognizance taken by the learned trial Court on police challan in the above case and all proceedings conducted are equally declared to be without lawful authority and without jurisdiction, void ab initio and of no legal effect. The petition stands accepted. S.M.A.H./666/P Petition accepted.