P L D 1962 (W (PLP)

KHAMISANI, J.‑--Mr. Justice Constantine of this Bench, while inspecting the record of Criminal Appeal No. 729 of 1959, decided by Mr. A. H. Kureishy Additional Sessions Judge, Karachi, directed the record of that appeal to be placed before a Bench of this Court for consideration of the following points (1) Whether the finding of the learned Additional Sessions Judge that the District Magistrate was not competent to issue a general order under the Gambling--Act to a Sub‑Inspector of Police is correct ? (2) Whether the securing of a key from the possession of one of the gamblers was a circumstance which gave rise to a presumption that he was the occupier or the user of the gaming den ?

2. So far as point No. 1 is concerned, the District Magistrate, Karachi, issued a general order No. JB/M, S/6572 of 1959 dated 12th August 1959 authorising Muhammad Naqvi, S. H. O., Preedy Police Station, Karachi, to do certain acts. The learned Additional Sessions Judge was erroneously of the view that this kind of general order could not be issued by the District Magis trate under the Gambling Act. The learned Additional Sessions Judge had come to this conclusion either because on the top of this order "General Warrant under section 6 of Bombay Act IV of 1887 as amended by Sind Act IX of 1939" was written or because the learned Additional Sessions Judge did not care to look into the amending Sind Act No. IX of 1939. Merely because on the top of this order the words "General Warrant" were written, it cannot be held to be a general warrant. What is said is "General Warrant under section 6 of the Bombay Act" and section 6 does not provide for a general warrant at all. A bare reading of the order also clearly indicates that it is not a general warrant but a general order as visualized by section 6 of the Gambling Act. The Bombay Prevention of Gambling Act, 1887, under section 6 provided for such a general order to be issued by a Commissioner of Police and it also provided that the order could be issued in the City of Bombay. This section 6 was amended by the Sind Act No. IX of 1939 and under this Act the words "the City of Bombay" were substituted by the words "City of Karachi" and the words "Commissioner of Police" were substituted by the words "District Magistrate, Karachi." Reading this amended Sind Act No. IX of 1939 with the Bombay Prevention of Gambling Act, 1887, the conclusion becomes obvious that the District Magistrate has power to Issue general orders authorising the Police Officers to do those things which are enumerated in section 6 of the Gambling Act.

3. So far as point No. 2 is concerned, it is very difficult to lay down a general rule that in all cases where a key is secured from one of the gamblers which fits a lock which is said to have been applied to the room where gambling is going on, a presumption will arise that he is the owner, occupier or user of the room and he opens, keeps or uses it further purpose of al common gaming house. Whether such a presumption will arise depends upon the facts of each case. There may be cases in which the finding of the key alone from the possession of one of the gamblers may be sufficient to raise a presumption for holding that he is the owner, occupier or the user of the gaming house whereas there may be cases where this evidence alone may not be sufficient. There also may be cases where the presumption which may otherwise arise be rebutted by the evidence led by the accused. The facts remains that it is one of the circumstances which can be considered for arriving at the conclusion in respect of a person from whom the key is secured that he is the owner, occupier or the user of the gaming house.

4. No presumption, however, as contemplated by section 7 of the Act can be raised from the fact of a particular person being in possession of a key. Section 7 of the Act reads as under: "

7. When any instrument of gaming has been seized in any house, room or place entered under section 6 or about the person of any one found therein, and in the case of any other thing so seized if the Court is satisfied that the Police Officer who entered such house, room or place had reasonable grounds for suspecting that the thing so seized was an instrument of gaming, the seizure of such instrument or thing shall be evidence, until the contrary is proved, that such house, room or place is used as a common gaming house and the persons found therein were then present for the purpose of gaming, although no gaming was actually seen by the Magistrate or the Police Officer or by any person acting under the authority of either of them." It is quite clear that section 7 permits a presumption to be raised that the room from which an instrument of gaming has been secured is a gaming house. It also allows a presumption to be raised in respect of persons who are found in that room that they are there for the purpose of gaming although no gaming may have actually been seen by the Magistrate or the Police Officer. The presumptions permitted to be drawn under section 7 are, therefore, not those which would cover up the case of a person under section 4 of the Act and be sufficient for holding that he is either the owner, occupier or user of that gaming house.

5. The points referred to by Mr. Justice Constantine are accordingly answered as above.

6. No appeal against acquittal under section 417, Cr. P. C., has been filed. We could have exercised our power under section 439, Cr. P. C., and ordered retrial as the decisions of the lower Courts were based on erroneous interpretation of law but we are disinclined to do so because the judgment of Mr. Amjad Ali, the Additional City Magistrate, was given on 28th September 1959 and the judgment given by the Additional Sessions Judge was given on 22nd December 1959. Since considerably long time has elapsed, we do not consider this matter fit enough for being sent back to the lower Court for retrial of the respondents. S. E. Reference answered.