JUDGMENT

Davis, J C - In this case one Doongersi has been convicted by the Third Additional City Magistrate, Karachi, of an offence under Section 4, Gambling Act, and sentenced to three months' rigorous imprisonment. He has been fined under the same Section Rs. 300 or in default seven weeks rigorous imprisonment; under Section 5 he has been fined Rs. 200 in default further rigorous imprisonment for one week. I refused to admit this appeal in the first instance on the facts because they appeared so clear and I finally agreed to admit the appeal merely on the ground of sentence and on the question as to the legality of the Magistrate's order of forfeiture of money seized from the person of the accused which was not shown to be instruments of gaming within the meaning of Section 3, Gambling Act. Section 8 provides that:

On conviction of any person for opening, keeping or using a common gaming-house, or gaming therein, or being present therein for the purpose of gaming the convicting Magistrate may order all the instruments of gaming found therein or on the persons of those who were found therein to be forthwith destroyed or forfeited, and may also order all or any of the securities for money and other articles seized not being instruments of gaming, to be sold and the proceeds thereof with all moneys seized therein to be forfeited; or in his discretion may order any part of such proceeds and other moneys to be paid to any person appearing to be entitled thereto.

2. So, it would appear that in the Section there is no general provision that money as such found upon persons keeping or using a common gaming-house or gaming therein or being present therein for the purpose of gaming can be forfeited. There is provision in the Section for an order forfeiting money seized in the common gaming-house. But it does not provide for the forfeiture of money found on the persons of those in the common gaming-house; and it would appear that money found on the persons of those gaming or present in the common gaming-house and so on can be forfeited only as instruments of gaming within the definition of Section 3, Prevention of Gambling Act. That definition is wide because it covers any article used or intended to be used as tone subject or means of gaming or proceeds of gaming, so that any money or currency notes used or intended to be used as a means of gaming or the proceeds of gaming found on the person of one present in the common gaming-house for the purpose of gaming and so on, can be forfeited, but the prosecution must, of course, show that any particular money to be forfeited as a means of gaming falls within the definition of "instruments of gaming" in Section 3.

3. There are two Bombay cases to which reference might usefully be made: one is a case in Emperor v. Sadashiv A.I.R. (1920) Bom. 311. In that case it was pointed out that the power of forfeiture does not extend to articles found on the persons of the accused which are not instruments of gaming. This case in Emperor v. Sadashiv A.I.R. (1920) Bom. 311 was in 1919 and before the amendment in 1936 of the definition in Section 3 of the Act, as was another case reported in Emperor v. Pyarelal Gokulprasad A.I.R. (1932) Bom. 194 which is a case of 1931. But while the amendment of 1936 provides in its definition and includes within the term "instruments of gaming" proceeds of any gaming or any winnings or prizes in money or otherwise, distributed or intended to be distributed in respect of gaming, it still makes it necessary, before a Magistrate forfeits money found upon any person keeping or using a common gaming-house and so on, to discriminate between moneys connected with gaming and moneys which are not so connected. For instance, in this case, Rs. 4-0-6 were found with betting slips in the same pocket as the accused?s clothes. Therefore, it might fairly be said that this Rs. 4-0-6 was the proceeds of gaming or was winnings or was used or was intended to be used as a means of gaming; so th