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Criminal Reference No. 10 of 1985, decided on 28th October, 1985.

‑‑‑Ss. 22(b) & 24(6) [as amended by Emigration (Amendment) Ordinance (XXI of 1985)]‑‑Criminal Procedure Code (V of 1898), S. 265‑K‑‑Quashing of proceedings‑‑Trial Court referring case to High Court recommending quashing of proceedings on ground that provisions of S. 24(6) of Emigration Ordinance 1979, had not been complied with‑‑Reference, apparently based on substituted S. 24(6) of Ordinance‑‑Reference, held, was misconcieved in view of the positions that amendment was introduced much later than the date on which the prosecution had been filed and as much amendment had no application on the case.

‑‑‑Ss. 22(b) & 24(6)‑‑Criminal Procedure Code (V of 1898), Ss. 265‑K & 439‑‑Complaint not filed by any authorised officer‑‑Complaint quashed in circumstances.

Liaquet Merchant, Deputy Attorney‑General with Muhammad Shareef, Deputy Director, Directorate of Emigration on Court notice for Petitioner.

A reference had been made by the Special Judge (Central), Karachi, in Case No. 1 of 1984, namely, State v. Muhammad Suleman and Bashir Khan pending in that Court. The learned Special Judge had stated the brief facts in the order of reference, and it is not necessary to repeat the same, except to state that allegations were made against the two accused persons that they were guilty of an offence under section 22(b) of the Emigration Ordinance, 1979.

It seems an application was made before the trial Court under section 265‑K of the Code of Criminal Procedure, stating that the provisions of subsection (6) of section 24 of the Emigration Ordinance had not been complied with, and, therefore, the proceedings may be quashed. The learned Special Judge agreed with the contention that the case was not maintainable on account of non‑compliance with the provisions of section 24(6) of the Emigration Ordinance but simultaneously the Special Judge took the view that, since cognizance has been taken, he could do nothing in the matter, and made a reference to this Court, recommending that the proceedings may be quashed.

Subsection (6) of section 24 of the Emigration Ordinance initially read as follows:‑

"(6) A special Court shall take cognizance of, and have jurisdiction to an offence punishable under this Ordinance only upon a complaint in writing made by such person as the Federal Government may, by a general or special order in writing, authorise in this behalf.

This subsection was substituted by an Ordinance published in the Gazette of Pakistan, dated March 13, 1985, and such substituted subsection reads as follows:‑

"(6) A Special Court shall take cognizance of, and have jurisdiction to try, an offence punishable under this Ordinance only upon a complaint in writing which is accompanied by the previous sanction of the Federal Government:

Provided that, in a case in which the complaint is not accompanied by such sanction, the Special Court shall, immediately on its receipts, refer the matter to the Federal Government, and, if the required sanction is neither received nor refused within sixty days of the receipt of the reference by the Federal Government, such sanction shall be deemed to have been duly accorded."

It would seem that, by the amending Ordinance promulgated on 13‑3‑1985, it was provided that the Special Court was to take cognizance and had jurisdiction upon fulfilment of two conditions, namely, the filing of a complaint and previous sanction of the Federal Government. A previous was, however, added on the same lines as in the Criminal Law Amendment Act of 1950, providing for a deeming clause to the effect that, if the Court makes a reference for sanction, and if sanction is not specifically refused within sixty days, the Court shall deem that the sanction had been granted and act on such assumption. The learned Special Judge took into consideration this provision at the time of making the reference. In my view, this was an incorrect approach, because the amendment had been done on 13‑3‑1985, much later than the date on which the prosecution had been filed. This amendment had, therefore, no application in the instant case.

However, the case needs to be looked at even from the angle of what is contained in the original subsection (6) of section 24, which has been reproduced above. Even under the original provision, cognizance could be taken only on a complaint in writing by such a person as the Federal Government may, by a general or special order in writing, authorise in that behalf. The point then arises is, whether there is a proper complaint in this case at all. Upon looking at the record, it will be found that there is no regular complaint, but a charge‑sheet was submitted by the Station House Officer of Pakistan Railways Police Station, Karachi. Without doubt, a charge‑sheet cannot be equated with a complaint, but, even if, for the purposes of argument, we come to the conclusion that this charge‑sheet can be construed to be a complaint, still the case would not be saved, because the Station House officer of Pakistan Railways Police Station, Karachi, has not been shown to be a person, who, either by a general or special order in writing, has been authorised by the Federal Government to file such a complaint. In fact, such statement was made in Court by Mr. Muhammad Shareef, who is Deputy Director of the Directorate of Emigration.

This reference had, no doubt, proceeded on wrong lines, but the case has been looked at from another angle in regard to the validity of the charge‑sheet that was submitted before the Special Judge. It hag been found that the complaint had not been filed by any authorised person. The complaint, therefore, stands quashed, and the reference is accepted to that extent.

M.A.K. Reference accepted.

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