P L D 1964 (W (PLP)

Makhdoom Sharif for Respondents. Date of hearing : 28th April 1964. This reference by the learned Additional Sessions Judge Karachi dated 7th December 1963 arises in the following circum stances. Mirza Daud and 8 others were challaned under section 12 of the Gambling Act before the learned V. A. C. M. Karachi. They were tried and acquitted under section 245, Cr. P. C. but the learned Magistrate in acquitting the accused, passed the following order "The playing‑cards produced in Court may be destroyed. The sum of Rs. 38‑8‑0 said to be phar money may be forfeited. The money secured from the possession of the personal search, may be returned to the accused."

2. The nine applicants filed a revision application being Revision Application No. 241 of 1963 before the learned Additional Sessions Judge, Karachi, being primarily aggrieved with the property order regarding forfeiture of the phar money, contending that the learned A. C. M. had no power to order the forfeiture of the phar money, since he had acquitted the applicants. The learned Additional Sessions Judge after hearing the parties and discussing the evidence which resulted in the acquittal of the accused persons, opined that the learned Magistrate should not have forfeited the phar money since, according to the learned Magistrate, "mere proof that some game of cards was being played, and some money was found from the possession of the accused, was not enough to establish that they were gaming, and further that the amount was claimed by the accused as belonging to them and had been recovered from their persons on a personal search at the Police station.

3. I have now heard Mr. Qazi Muhammad Akbar (sic) for the State and Mr. Makhdoom Sharif for the respondents. The reference has been supported by the learned State Counsel and in my view quite rightly. The learned counsel for the State has also pointed out that it is only on a conviction under section 8 of the Gambling Act that the trial Court is empowered to make an order forfeiting the instruments of gaming, etc. found at the time of the raid and on the person of the accused.

4. Reliance has been placed on A I R 1953 All. 643, which is on all fours with the reference in hand, and where it was held that before the Court can exercise its jurisdiction to pass orders of forfeiture of money or destruction of property under section 8, it is necessary that the accused must be convicted of the offence with which he is charged. The learned Single Judge went on to refer to section 8 of the Gambling Act, and observed that a perusal of the above section clearly indicates that before the Court can exercise its jurisdiction to pass order of forfeiture of money or destruction of property it is necessary that the accused must be convicted of the offence with which he is charged. His conviction is therefore a condition precedent to any such order. A He also observed that being a penal enactment, it must be construed strictly and in the case of acquittal of the accused, the Court had no power to pass an order of forfeiture or destruction a mentioned in section 8.

5. I am in respectful agreement with this finding, and accept the reference, in consequence of which I order that the amount of Rs. 38‑8‑0 said to be phar money and which was previously ordered to be forfeited, should be now returned to the respondent.

6. In these terms, the reference is accepted. S.Q Reference accepted.