P L D 2010 Quetta 21
Before Qazi Faez Isa, C J
GHULAM HUSSAIN ---Petitioner
Versus
ADDITIONAL SESSIONS JUDGE, DERA ALLAH YAR and 2 others ---Respondents
Criminal Revisi on No.(S)22 of 2009, decided on 11th September, 2009.
Balochistan Prevention of Gambling Ordinance (X of 1978) ---
----Ss. 6 & 8 ---Constitution of Pakistan (1973) Art.14 ---Appreciation of evidence ---
While conducting raid on the house of accused neither Magistrate had inquired into the
matter nor was he present when the residence of accused was entered into ---Police had no
authority to by itself take cognizance of the case under the Balochistan Prevention of
Gambling Ordinance, 1978, and its role was only to render assistance to the Magistrate while
conducting a raid ---Provisions of section 8 of the said Ordinance, thus, had been clearly
violated ---Privacy of home could be violated only in certain exceptional circumstances and
to do so strict compliance of the applicable law had to be made ---Article 14 of the
Constitution had also, guaranteed the fundamental right of privacy of home ---Almighty
Allah had himself bestowed such right upon human beings, which had been specifically
mentioned in the Holy Quran an d in the teachings of Prophet Muhammad, peace and
blessings be upon him ---Raid having been conducted on the house of the accused in
violation of the mandatory provisions of section 8 of the aforesaid Ordinance, any step
subsequently taken and any material gathered at the time of raid, was of no consequence and
the same could not be relied upon ---Accused was acquitted in circumstances.
An-Nour, 24:27 -28; Al -Hujuraat, 49:12; Abu Da'ud Book 41, Number 5155; Abu Da'ud,
Book 8, Numbers 5167 and 1480 ref.
Amanullah Kanrani for Petitioner.
Abdul Rahim Mengal, Asstt. A. -G. for the State.
Date of hearing: 11th September, 2009.
JUDGMENT
QAZI FAEZ ISA, C.J. ---Learned counsel for appellant submits that Judicial Magistrate
Dera Allah Yar had convicted th e petitioner under section 6 of the Balochistan Prevention of
Gambling Ordinance, 1978 and sentenced him to suffer R.I. for six months and to pay fine of
Rs.2000 and in default thereof, to further undergo S.I. for one month, vide judgment dated
31-12-2008. Against such judgment an appeal was preferred before Additional Sessions
Judge Dera Allah Yar, who, vide order dated 3 -1-2009, upheld the conviction, but reduced
the sentence of fine to Rs.450 only.
2. Brief facts of the case are that the F.I.R. No.167/ 2007 was lodged at Police Station Dera
Allah Yar by Khadim Hussain Magsi S.H.O., wherein it was alleged that secret information
was received that gambling was taking place in the house of the appellant accordingly, the
said house was raided and the appella nt along with three other persons was taken into
custody. The F.I.R. was lodged after the said raid. Learned counsel stated that Balochistan
Gambling Ordinance, 1978 is a special law and to sustain a conviction thereunder complete
compliance with the provi sions thereof has to be made. Learned counsel states that section 8
of the said Ordinance was violated in so far as the raid was not conducted by a person
designated in section 8 of the Ordinance, the relevant portion whereof is reproduced below: --
"8. Power to enter and search .--If a District Magistrate, Sub -Divisional Magistrate,
Magistrate of the First Class upon information and after any inquiry as he thinks
necessary, has reason to believe that such place is used as a common gaming house,
or that an offence under section 6 is being committed at or in any place, he may --
(6) Enter such place at any time with such assistance as he may require and using such
force as may be necessary."
3. Leaned counsel further states that no enquiry as envisaged in section 8 was conducted.
Learned counsel states that failure to comply with the mandatory provisions of section 8 is
fatal to the case of the prosecution and the resultant conviction.
4. Learned Assistant Advocate General candidly admits that compliance was not made with
section 8 of the said Ordinance before conducting the said raid.
5. The documents on record confirm that the matter was not enquired into by a Magistrate
under section 8 of the Balochistan Gambling Ordinance, 1978 nor was a Magistrate p resent
when the residence of the appellant was entered into. The police has no authority to take
cognizance of the case under the Ordinance and its role is only to render assistance to the
Magistrate while conducting a raid.
6. It is in only certain exce ptional circumstances that the privacy of the home can be violated
and to do so strict compliance with the applicable law has to be made. One of the
Fundamental Rights enshrined in the Constitution of Pakistan is the right to Privacy. Article
14 of the Con stitution of Pakistan stipulates as under: --
"Inviolability of dignity of man, etc .---(1) The dignity of man and, subject to law, the
privacy of home, shall be inviolable."
7. The right to privacy is of ancient import and it is one of those rights that the creator
Himself has bestowed upon human beings. This right finds specific mention in the Holy
Quran and in the teachings of the Prophet Muhammad, peace and blessings be upon him.
"O ye who believe! Enter not houses other than your own until you have asked leave
and saluted the inmates thereof. That is better for you, that you may be heedful. And
if you find no one therein, do not enter them until you are given permission. And if it
be said to you, `Go back then', then go back; that is purer for you. And Allah knows
well what you do." (An -Nour, 24:27 -28).
"O ye who believe! avoid most of suspicions; for suspicion in some cases is a sin.
And spy not, nor back -bite one another. Would any of you like to eat the flesh of his
brother who is dead? Certainl y you would loathe it. And fear Allah, surely Allah is
Oft-Returning with compassion and (is) Merciful" (Al -Hujuraat, 49:12).
It is reported that a man came to see Prophet Muhammad, peace be upon him, and
sought permission for entry while standing just i n front of the door. The Prophet said
to him; "Stand aside: the object of the Commandment for seeking permission is to
prevent casting of looks inside the house." (Abu Da'ud Book 41, Number 5155).
"The practice of the Prophet, peace and blessings be upon him, was that whenever he
went to see somebody, he would stand aside, to the right or the left of the door, and
seek permission as it was not then usual to hang curtains on the doors. (Abu Da'ud
Book 8, Number 5167).
The Right to privacy is deemed viola ted even if private correspondence of another is read.
"According to Hadrat `Abdullah bin Abbas, the Prophet said; `Whoever glances
through the letter of his brother without his permission, glances into fire.'" (Abu Da'ud
Book 8, Number 1480)."
8. In t he instance case the mandatory provisions of section 8 of the Ordinance were violated.
No enquiry was conducted by a Magistrate and the raid was not conducted by a Magistrate.
Consequently, any step subsequently taken and any material that was gathered at the time of
raid would be of no consequence and could not be relied upon.
9. Accordingly, the judgment of the Judicial Magistrate dated 31 -12-2008 and the Appellate
Court's judgment dated 3 -1-2009 are set -aside and the petitioner is acquitted of the char ge.
Revision Petition is accepted.
N.H.Q./40/Q Petition allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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