1968 P Cr (PLP)

The learned Additional Sessions Judge, Nawabshah made a reference, dated the 15th of June 1967, to this Court under these circumstances.

2. On the 28th of January 1965, Station House Officer Mahmood Ahmad of Naushahro Feroze Police Station is alleged to have raided the shop of accused Ahmad Bakhsh and caught the respondents gambling. He found some cash also lying on the ground, and thereafter, having searched the person of the respondents, he recovered some more money from their pockets. They were accordingly arrested for having contravened the provisions of West Pakistan Prevention of Gambling Ordinance, 1961, and subsequently challaned in the Court of Civil Judge and F. C. M., Nausahro Feroze to stand their trial: From that Court the case was transferred to the Court of Additional District Magistrate, Nawabshah; who, after trial, found the respondents guilty. They were accordingly convicted under section 6 of the aforesaid Ordinance and sentenced to‑ pay a fine‑of Rs. 45 each or, in default, to undergo one Month's rigorous imprisonment. The respondents filed a Revision Application against their conviction and sentences in the Court of Additional Sessions Judge, Nawabshah, who ultimately made this reference.

3. The respondents in their statements under section 342 of the Criminal Procedure Code not only completely denied the charge, but also alleged that the raid was carried out not at the shop, as alleged by the prosecution, but at the private house of Ahmad Bakhsh, respondent. In support of that plea, they examined 2 witnesses, namely, Ghulam Akbar and Atta Muhammad. These witnesses clearly supported the defence of the respondents. In that view of the matter, the trial Court was obliged in terms of section 367 of the Criminal Procedure Code to formulate the points for determination which arose from the plea raised by the parties. In the result, it was the duty of the trial Court to have determined as to whether the respondents were caught gambling in a shop or in a private house. However the learned trial Court failed to advert to this aspect of the case, and consequently fell in error by framing the charge, which was wholly inadequate. The said charge reads: "That you on or about 28th day of January 1965, were found gambling in the shop of accused Ahmad Bux. Gambling articles and cash were secured from your possession in the presence of mashies, and thereby committed an offence punish able under section 6 of Prevention of Gambling Ordinance, 1961, within the cognizance of this Court, and I hereby direct that you be tried by this Court on the said charge."

4. The entire scheme of West Pakistan Prevention of Gambling Ordinance, 1961, appeared to be to curb gambling at a public place or at any "common gaining house." Common gaming house has been defined in section 3(al of the Ordinance, which "means any house or room or tent or enclosure or vehicle or vessel or any place whatsoever in which any instruments of gaming are kept or used for gaming purposes‑ (i) with a view to the profit or gain of any person, owning, occupying or keeping such house, room, tent, enclosure, vehicle, vessel of place, whether by way of charge for the use of such hose, room, tent, enclosure, vehicle, vessel, place or instruments of otherwise howsoever." In view of that state of the law, the consideration of the defence taken by the respondents became all the more important, because if it was‑ found that the respondents were apprehended from a house, then prosecution would have been obliged to prove that it was a "common gaming house", apart from the fact that it could not have raided that house, unless it was armed with al search warrant in terms of section 8 of the Ordinance. In that view of the matter, it cannot be denied that the respondents were materially prejudiced by the conduct of the trial. Mr. Manzoorl Hussain, Bar‑at‑Law, who appeared for the State, agreed anal supported the reference in question.

5. For all these reasons, this reference is accepted, and proceedings before the trial Court are quashed. Since the respondents have already undergone considerable worry in regard to a matter not so serious, I feel that the interests of justice required that they should not be subjected to any further trial in regard to these charges. They are accordingly acquitted. If they have already paid their fines, it is ordered that they shall be refunded to them. Appeal dismissed.