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Criminal Appeal No. 111 of 1983, decided on 29th June, 1987.

‑‑S. 18‑A‑‑Criminal Procedure Code (V of 1898), S. 103‑‑Accused charged for forging visas of employment for different countries and preparing passports in name of different persons‑‑Accused not in exclusive possession of house from where material connected with offence recovered‑‑Prosecution witnesses deposing against prosecution not declared hostile‑‑Facts of case on the one hand revealing that Mashir of recovery was not belonging to locality wherefrom recovery was made while on the other hand it appeared that Mashir was not present at time of recovery‑‑Provisions of ;3. 103, Cr.P.C. violated‑‑Record showing that there was no complaint filed by an authorised person but only a charge sheet was submitted by an Inspector F.I.A. under his signatures who was not authorised in the matter‑‑Conviction and sentence set aside in circumstances.

State v. Suleman and others 1986 P Cr. L J 131 and Moinuddin v. The State 1986 P Cr. L J 1158 rel.

‑‑‑Ss. 18‑A &24(6)‑‑Cognizance of offence to be taken on a complaint in writing by a person authorised in that behalf‑‑A charge‑sheet cannot be equated with a complaint.‑‑[Complaint ] .

‑‑‑S. 190(1)‑‑Emigration Ordinance (XVIII of 1979), S. 24(6)‑ Cognizance of offence when under any special enactment Court is restricted to take cognizance only on complaint'‑‑Court cannot take cognizance on other motion such as police report or information received by Court or Court's own knowledge.

State v. Suleman and others 1986 P Cr. L J 131 and Moinuddin v. The State 1986 P Cr. L J 1158 rel.

M. Ilyas Khan for Appellant.

M.A.I. Qarni for the State.

Dates of hearing: 3rd May and 29th June, 1987.

The appellant was charged under section 18(a) of Emigration Ordinance, 1979, and was tried before the learned Special Judge (Central) Karachi, who has convicted the appellant under section 18(a) of. the Emigration Ordinance, 1979, and sentenced him to suffer R.I. for our years vide judgment, dated 30th October, 1983.

The brief facts giving rise to the present appeal are that on 2‑3‑1981 Mr. S.A. Qayyum Inspector Crime Circle II, F.I.A. Karachi, received spy information that the appellant and co‑accused Jehangir Hussain were, forging visas of employment of different countries, and preparing passports in the name of different persons. Therefore, he picked up two Mashirs namely Khair Mohammad and Hyder Shah and went to the house of accused Jehangir Hussain. On search he recovered number of forged rubber, plastic and steel stamps of different consulates of different countries, and passports bearing endorsement and visas. Miscellaneous tools and dyes, such Mashirnama was prepared in presence of Mashirs and the same has been produced as Ex.9. That after necessary investigation, the appellant and co‑accused Jehangir Hussain were challaned before the learned Special Judge (Central), Karachi.

A formal charge was framed against the present appellant to which he pleaded not guilty. The co‑accused died before the charge was framed.

At the trial the prosecution examined Asim P.W. 1, Manzoor Ahmed P.W.2, Abdul Sattar P.W. 3., B.H. Rizvi P.W. 4, Haider Shah P.W. 5, and S.A. Qayyum P.W. 6.

The learned trial Judge while relying upon the evidence of P.W. Haider Shah and P.W. S.A. Qayyum convicted the present appellant as described above. The present appeal is directed against the said conviction.

P.W.1 Asim is son of co‑accused Jehangir Hussain and has deposed that his father was a block maker and had been ailing, and died on the night between 25th and 26th March, 1981 in Central Jail, Karachi. No other person used to reside with them in the said house except he and his father. He knew accused Irshad, 'who often used to visit his father since last two years. He used to call his father as Ustad or uncle. It was not correct that accused Irshad used to cook meals for them. The articles which have been produced in the Court as case property used to remain at their house. But he did not know as to who had the key of trunk article B'. Accused Irshad was not residing with them in the house.

P.W. Manzoor Ahmed has deposed that accused Jehangir and his son Asim used to reside in his Mohallah. Accused Irshad used to reside with Jehangir since last five or 7 months and was looking after Jehangir.

P.W. Abdul Sattar has deposed that accused Jehangii Hussain and his son Asim used to reside in a Jughi adjoining to his Jughi. Asim used to reside with his father Jehangir. Accused Irshad used to visit deceased Jehangir, and after the death of wife of Jehangir Hussain accused Irshad used to reside with him and used to call him as uncle.

P.W. B.H. Rizvi, has deposed that on 2‑3‑1981 he was posted as Assistant Director F.I.A. and A.S. at Karachi Airport. On that day Inspector S.A.Qayyum produced one report against Irshad s/o Imtiaz before him which was registered by him on behalf of the State. He has produced the F.I.R. as Ex. . In cross‑examination he has deposed that he had directed S.A. Qayyum to prepare F.I.R. against the accused according to instructions given by him, and he typed out the same. The articles secured were brought in an envelope by S.A. Qayyum which was not sealed. He did not remember as to in how many envelopes the articles secured were produced before him. It is not correct that S.A. Qayyum had obtained his signature on the complaint at his house.

Mashir Haider Shale has deposed that he resides in Pir Colony at Karachi since last six months. About 8 months back he had come to Karachi to his brother‑in‑law with some private work at about 9‑00 a.m. He had gone to meet his friend Mohammad 13hai at New Karachi, and when he went to the house of his friend his wife told him that Mohammad Bhai had gone to Madina Colony. He, therefore, went in his search to Madina Colony. He found F.I.A. police standing on the road, and that when he was passing he was picked up to act as Mashir in the case. He and one other person accompanied the police and went in a house where they found that one person was lying on the cot, and one boy was also there. The police searched his house and secured the trunks lying in the house. The boy who was standing near the old man opened one box with the key which was with him, and police secured rubber seals, silver seals, stamps, and the passports from the said box, such Mashirnama was prepared and he had signed the same. He has produced the Mashirnama as Ex.9. In cross -examination he has deposed that he has stated in his police statement that he had gone to meet his friend Mohammad Bhai in New Karachi and that his wife informed him that he had gone to Madina Colony, and he went to Madina Colony from where he was picked up as Mashir. That there were other houses adjoining the house which was searched, which was densely populated area. That 2/4 persons of the locality had also collected at the house at the time of search. That he had come to meet his friend. He was residing in Pir Colony. He had heard the name of Abdul Rauf S.P. Anti -Corruption Hyderabad but he had not seen him. S.P. Rauf is brother of Mr. S.A. Qayyum. Voluntarily stated that he had said so at the instance of defence counsel. No sign board of accused Irshad was fixed on the house which was searched by police. The police had not secured any clothes or other papers of accused Irshad from the house which was searched. The accused had taken out the key of the lock for opening the box from his back pocket. All the articles secured from the trunks were sealed by police in his presence. The key and lock of the trunk was also sealed by the police. The police had not obtained his signature on any of articles which were sealed. He had accompanied the police to the F.I.A. police station where his statement was recorded. He had come from Multan to give evidence in the Court ,'cough no summon was served on him at Multan. S.A. Qayyum had come am i informed him at Pir Colony that he was to give evidence in this case and he should appear before the Court, and he accordingly appeared. He had not attended the Court to give evidence in this case prior to that day. It was not correct that S.A. Qayyum was his old friend. P.W. S.A. Qayyum was not known to him before.

P.W. S.A, Qayyum has deposed that on 2‑3‑1981 he was posted as Inspector Incharge Passport Cell, F.I.A., Karachi. On that day, on spy information he alongwith his staff, and two Mashirs namely Kharr Mohammad and Syed Haider Shah had gone to the house of accused Irshad and deceased Jehangir Hussain bearing No. 109, Madina Colony, New Karachi, and had secured one red trunk which was locked. That accused Irshad produced the key of the said box/trunk and it was found that there were eighty (80) seals which could be used for forging visas of employment of different countries, three passports in the names of different persons, 6/7 bottles of ink of different colours, one juice pressing machine for the purposes of taking juice, and other articles totalling about 185 were secured from the said trunk. He prepared Mashirnama. The Mashirnama Ex. 9 was the same. He arrested accused Irshad; while the other accused, who was in possession of the house from where the articles were secured, was seriously ill and, therefore, he did not arrest him but posted guard over him so that he should not leave the house. After two days of the incident he arrested the co‑accused Jehangir Hussain who later died in Central Prison. He produced the papers of investigation before B.H. Rizvi, Asstt. Director F.I.A. who lodged a report on behalf of the State against the accused. F.I.R. Ex.7, is the same. It bears the signature of Mr. B.H. Rizvi, Asstt. Director F.I.A. On 24‑3‑1981 he submitted charge‑sheet before the Court against both the co‑accused, and on 25‑3‑1981 he submitted final challan against accused Irshad, as by that time the co‑accused Jehangir Hussain had died in prison. In cross‑examination, he has deposed that the case property was secured from the House No. 109, Madina Colony, New Karachi, whereas, accused Irshad gave the number of his house as 106/L G/II, New Karachi. He did not know if house No. 109, New Karachi, belonged to Jehangir Hwsain. It was correct that after completing the entire investigation, he submitted the F.I.R. before the Assistant Director Mr. B.H. Rizvi, as it was necessary to have his signatures. It was incorrect that Mashir Syed Haider Shah was related to him. Mashir Syed Haider Shah had not stated before him that he had gone to meet his friend Mohammad Bhai at New Karachi. Syed Haider Shah had not stated that when he reached the house of his friend he was told by his wife that he had gone to Madina Colony and, therefore, he Went in search of his friend Mohammad Bhai. It was correct that the names of Mashirs were not written in the body of Mashirnama Ex.9 but it has been mentioned that Vie house was searched and the articles were secured in presence of the following Mashirs. It was incorrect to suggest that he prepared such Mashirnama in his office and obtained signatures of the Mashrrs in his office. He had not seized the key which was produced before him by the accused. It was incorrect to suggest that no key was produced before him by the accused and that the accused had simply come to the house of Jehangir Hussain to inquire about his health where he was arrested. He did not seal articles at the Wardat. Syed Haider Shah did not tell him that the key and lock of the trunk were sealed at the Wardat. It is correct to suggest that he did not obtain the signature of the Assistant Director Mr. B.H. Rizvi, on the charge‑sheet. It was incorrect to suggest that the house in question did not belong to the accused.

After close of the prosecution case, the statements of the appellant was recorded under section 342, Cr.P.C. in which he denied the allegations. In his defence, the appellant examined his father Imtiaz Hussain and one Iqbal. D.W.1 Imtiaz Hussain has stated that accused was his son and was residing with him in the same house bearing No. 106‑11‑G‑L in New Karachi. That he had never lived with Jehangir Hussain. In cross examination, he has stated that he was not present at the time of arrest of accused, D.W. Iqbal has deposed that he is residing in house No. 105‑11‑G r L, New Karachi, and the accused is his next door neighbour.

After close of defence evidence, the learned trial Judge while relying upon the evidence of Mashir Syed Haider Shah and S.A. Qayyum, convicted the appellant as described above.

I have heard Mr. Ilyas Khan, learned counsel for the appellant, Mr. M.A.I. Qarni, learned counsel for the State, and have also gone through the R.&P. of the case.

The contention of Mr. M. Ilyas Khan, learned counsel for the appellant was that the house in question was not in possession of the present appellant, that there was non‑compliance of section 103, Cr.P.C. as the Mashirs did not belong to the locality and lastly the complaint had to be made by Assistant Direr‑for as envisaged by section 24(6) of Emigration Ordinance, 1979 but in tire present case the challan was submitted by Inspector, Mr. S.A. Qayyum, and there was no complaint as required by law.

Mr. M.A.I. Qarni, learned counsel for appearing for the State has contended that from the record it was clear that the appellant was not in exclusive possession of the house in question, that there was non -compliance of section 103, Cr.P.C. and the complaint was not filed by the Assistant Director as required by law, and therefore, he does not support the conviction of the appellant.

I have considered the contentions of the learned counsel. The evidence of P.W. Asim shows that the house in question belonged to his father namely co‑accused Jehangir Hussain and the appellant was not residing with them. This witness was not declared hostile by the prosecution and the prosecution remained satisfied with his evidence. P.W. Manzoor Ahmed and Abdul Sattar have deposed that the appellant used to visit co‑accused Jehangir lived for sometime with the co‑accused since deceased. These witnesses were also not declared hostile by the prosecution, and therefore, from the evidence of these witnesses it is clear that the appellant was not in exclusive possession of the house in question from which the property ire question was recovered.

The evidence of Mashir Haider Shah clearly shows that he was not resident of locality in which the house was searched, and he was residing at Multan at the time of incident. That he has admitted that he knew the brother of Mr. S.A. Qayyum, Inspector, and that even on the day on which his evidence was recorded he was brought by the Inspector and that he was not served with the summons from the Court. According to his evidence the key and the lock of the trunk were secured and sealed by the police, but the evidence of Mr. S.A. Qayyum, Inspector, shows that the two articles were not recovered by him.

In view of these facts it is clear that on one hand the Mashirs did no come from the locality where the recovery was made, and on the other hand Mashir Haider Shah was not even present at the time of recovery. He appears to be a person connected with Inspector S.A. Qayyum, and therefore, no reliance could be placed on his evidence. It is also proved that there was non‑compliance of section 103, Cr.P.C.

The last and the important contention of learned counsel for the appellant was that there was non‑compliance of subsection (6) of section 24 of the Emigration Ordinance as amended by the amendment, dated 13th March, 1985. Subsection (6) of section 24 of the Ordinance 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 receipt, 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."

The bare reading of the amended provision shows 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 Proviso was, however, added on the same lines as in the Pakistan Criminal Law Amendment Act, 1950, providing 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 reading of the above provision will show that the 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. In the present case, the record shows that there is no complaint but a charge‑sheet was submitted by the Inspector F.I.A. Karachi. There is no doubt in my mind that a charge‑sheet cannot be equated with a complaint. It was further contended by the learned counsel for the appellant that in view of the Notification, issued by Government, only Assistant Director could file the complaint, but in the present case, even this charge‑sheet was signed by Mr. S.A. Qayyum Inspector, F.I.A.I Karachi.

In the case of State v. Suleman and others 1986 P Cr. L J 131, it was held by this Court that:

"It has been found that the complaint had not been filed by any authorised person and, therefore, proceedings were quashed."

In the case of Moinuddin v. The State 1986 P Cr. L J 1158, it was held by this Court that:‑

"Since the word complaint' has not been defined in the Ordinance, Cr.P.C. has to be looked into to understand this meaning. Perusal of section 4(1), Cr.P.C. shows that complaint' has been distinguished from police report' in both the terms have been separately defined. Police report' has been specifically excluded from the definition of complaint', and therefore, it was held that the word complaint' used in section 24(6) of the Ordinance is different from Police report' and cannot, by any stretch of imagination, be construed to include police report':'

Section 190(1), Cr.P.C. which deals with taking of cognizance of offence, reads as under:‑

"190(1)‑‑Except as hereinafter provided any District Magistrate or Sub‑Divisional Magistrate and any other Magistrate specially empowered in this behalf, may take cognizance of any offence:‑

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a report in writing of such facts made by any Police Officer.

(c) upon information received from any person other than a Police Officer, or upon his own knowledge or suspicion that such offence has been committed:"

The scheme envisaged by section 190(1) clearly indicates as to how, and in what circumstances the Court will exercise its jurisdiction. If under any special enactment the Courts are restricted to take cognizance only on complaint' they cannot take cognizance on other motion such as police report or information received by the Court or the Court's own knowledge, doing so would mean upsetting the whole scheme as contained in the above section.

In view of the above factual as well as legal position, I allow this appeal, set aside the conviction and sentence of the appellant and acquit him. He is on bail, his bail bond stands discharged.

M.Y.H./I‑22/K Appeal accepted.

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