P L D 1965 (W (PLP)

2. The Station House Officer, Qureshi Saeed Ahmad (P. W. 2), on receiving information that the house in possession of the petitioner, Ehsan Elahi son of Muhammad Sultan, was being used as a common gambling house obtained search warrant Exh. P. B. from the Superintendent of Police; Sialkot, authorising him (the S. H. O.) to enter the premises in question and take into custody all persons present there whether or not they were actually gambling and seize all the instruments of gambling and money, etc. suspected of having been used or intended to be used for the purposes of gambling. This warrant is dated the 9th of January 1962. The date below the signatures of the Superintendent of Police is, however, given as the 19th of January 1962, which appears to have been tampered with. The S. H. O. on the 23rd of January 1962 organized a raiding party, which included Head Constable Muhammad Siddique (P. W. 1), Sub‑Inspector Saeed Ahmad (P. W. 2) and A. S. I. Fazal Haque (P. W. 3). When the above party entered the house of Ehsan Elahi sots of Muhammad Sultan he found him as well as the 11 persons already mentioned above gambling by means of Dana Kauftain in a room towards the north side of the house. These persons, on seeing the police, mixed the cash which was laying in front of them for the purposes of stake. The total amount came to Rs. 559‑3‑

9. The box Exh. P. 1 containing naal money, amounting to Rs. 13.00 was found under the right thigh of Ehsan Elahi son of Muhammad Sultan. The S. H. O., Qureshi Saeed Ahmad P. W. took all the above into his possession and also arrested the petitioners and their companions.

3. The petitioners denied their guilt. Nawab Din petitioner stated that he had Rs. 800 in his pocket, which the police took into possession. Nawab Din, Ehsan Elahi son of Muhammad Nawaz and Ehsan Elahi son of Feroz Din petitioners stated that they were not gambling but were busy hearing music. Abdul Maid, however, stated that he was sitting in a tonga and since the police got annoyed with the tonga‑driver, they challaned him as well as the Conga‑driver. These petitioners also examined some witnesses in their defence.

4. The learned counsel for the petitioners argued that as there was delay in the execution of warrant, it had become illegal. This argument has no force in view of the decision in case of Emperor v. Alloomiya Husan (I L R 28 Bom. 129) wherein it was observed: "The third and last ground of appeal is that the execution of the warrant which was issued by the Commissioner of Police under section 6 of Bombay Act IV of 1887, and under which the Police entered the appellant's house and conducted a search, was illegal, because, it is contended, the warrant was executed not immediately after it had been issued, but several days after. The date of the warrant is 19th May 1903, and it was executed on the 7th of June 1903. Section 6 of the Act does not say that the warrant should be executed immediately after its issue, nor does it prescribe any period during which it must be taken to be in force. But the argument advanced by the appellant's Pleader is that it could not have bees the intention of the Legislature to keep a warrant of this kind in force for an indefinite period and authorise those to whom it is issued to let it lie in their pockets as long as they like and execute it after the lapse of considerable time. But when the Legislature has not prescribed any period limiting the time during which it is to be in force, the presumption is that it retains its validity until it is executed. In Dickenson v. Brown and whets (1794) 1 Peal N P 307 Lord Kemyon said that the warrant of a Magistrate was not returnable at any particular time, but continued in force until it was fully executed and obeyed, though it were seven years. In Mayhew v. Parker (1799) S T R 110 the same learned Judge held that a warrant to arrest a person that he might be bound to appear at the next Session of Oyer and Terminer might be executed at any time. Some discretion must be given to the officer executing a warrant, and whether that discretion is exercised properly and within a reasonable time or not is a question which must depend on the circumstances of each' case. But the warrant itself does not become illegal merely because it is executed not immediately after its issue but some days after that. There may be, under certain circumstances, illegality attending the execution of the warrant and rendering the officer executing it liable on account of such illegal execution; and yet the warrant itself may be in force, no period of time being expressly prescribed for its execution. It was said that the language of section 6 of the Act showed that the warrant must be executed immediately after its issue, and the case was put before us in this way in support of that. The persons, who occupied the place when the warrant was issued might leave and others might come and live there, and it cannot have been the intention of the Legislature that the warrant should be executed when there has been a change of that kind. But it appears to me that the language of section 6 supports the view that the Legislature did not intend .to restrict the authority executing the warrant to any limit of time." It was also observed: "The only flaw in the warrant urged before us was that because the search under it was made some days after its issue, we must decline to draw under section 7 the presumption against the appellant that the lace was used as a common gaming house. For the reasons lace given neither the warrant nor the search under it is vitiated by the fact that the search was made several days after it had issued."

5. Section 4 of the Bombay Act is the same as section 4 of the present Ordinance. Section 6 is equivalent to section 8 of the present Ordinance and section 7 of the Bombay Act is equivalent to section 9‑of the present Ordinance.

6. The next point urged by the defence counsel was that no person from the public was joined in the raiding party or produced as a witness in support of the prosecution case. In case of Khilinda Ram and others v. The Crown (A I R 1922 Lah.458) it was held: "That a search conducted after the issue of a warrant under section 5 of Act (III of 1867) is not a search under Chapter VII of the Cr. P. C. and section 103, Cr. P. C. can have no application. In the case of searches under the Opium Act the provisions of the Cr. P. C., have been expressly made applicable by section 16, but Act III of 1867 contains no corresponding section." In view of the above this contention of the learned counsel has no force.

7. It was next contended by the learned counsel for the petitioners that the trial was illegal because Ehsan Elahi son of Muhammad Sultan, the alleged keeper of the gambling house, was tried along with the persons actually found gambling there. In Khilinda Ram and others v. The Crown it was held: "That the joint trial of the keeper of a common gaming house and of other persons being found in such a house is not illegal." In case of Bhana Mal v. Emperor (49 I C 779) it was observed: "When a gambling den is raided and some persons are found gambling therein in the presence of the owner or occupier of the house in which gaming is going on, the offence of the keeper is so intimately connected with that of the players that the two must be regarded as part and parcel of the same transaction. Such cases are within the purview of section 239 of the Criminal Procedure Code and all the offenders, whether keepers or gamblers can be 'proceeded against in the same trial." In view of the above authorities this argument advanced by the learned counsel has also no force.

8. Lastly it was contended that the warrant Exh. P. B. did riot give the exact description of the house which had to be raided, but only described it as being in possession of Ehsan Elahi son of Muhammad Sultan and as such the warrant was illegal. In support of his contention the learned counsel relied on the case of Raja Ram v. Emperor (A I R 1924 Lah. 247). In that case Syed Ali Shah, Sub‑Inspector of Police, gave information to the Magistrate on which the latter signed the printed form of the warrant and Syed Ali Shah himself subsequently noted down at the bottom of it the boundaries of the house to be searched. It was held that it was not a legal warrant inasmuch as the house to be searched was not specified therein when the Magistrate signed it because the warrant when signed by the Magistrate was not for the search of any particular place. The learned counsel also cited the case of Janina Prasad and others v. King‑Emperor (A I R 1924 All. 128). In that case the Superintendent of Police received credible information that a common gaming house, was maintained by Puttu Lal son of Changi Mal by caste Brahmin, resident of Mainpuri. He issued a warrant for the search of the house of Puttu Lal but omitted to get the boundaries of that house noted in the warrant or to enter to whom it was addressed. The caste of Puttu Lal was also mis-described. The Sub‑Inspector to whom the warrant in question was handed over waited for a suitable opportunity to make the search. He corrected the caste of Puttu Lal in the warrant with his own band and went to the house of Puttu Lal and made a search. It was held: "That the erroneous description of the caste in the original warrant may rot be very material, but the omission to address it to a definite police officer and to describe the house by its boundaries or number, renders the warrant vague and indefinite, and it cannot be said that under that warrant, the officer making the search was authorised to make it. The warrant in question cannot therefore be regarded as legal and the presumption authorised by section 6 cannot be raised." In that case the convictions and sentences of the persons convicted were set aside. Both the above cited authorities are distinguishable from the facts of the present case. In the Lahore case no description of the house at all was given in the warrant and it was only the Sub‑Inspector Syed Ali Shah, who subsequently noted down the boundaries of the house to be searched. In the Allahabad case not only the boundaries of the house to be searched were not given in the warrant, but the warrant was also not addressed to any definite police officer and, therefore, it made the warrant rather vague and indefinite. In the present case, however, it is clearly mentioned that the house was occupied by Ehsan Elahi son of Muhammad Sultan, petitioner, but neither the number of the house nor its boundary was mentioned in the warrant. In case of Radhey Lal and another v. Emperor (A I R 1938 All. 252) it was held: "Where the house to be searched is described in the warrant by the name of the occupier or owner the mere fact that boundaries of the house are not specified in the warrant doe not make the warrant invalid." In view of the above I find no force in the contention of the learned counsel for the petitioners. I, accordingly, find no merit in. these revision petitions, which are hereby dismissed. The petitioners who are on bail, shall be taken into custody to undergo the un-expired term of their imprisonment. A. H. Petition dismissed.