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Criminal Miscellaneous Petition No. 86 of 1987, decided on 9th June, 1987.

‑‑‑S. 561‑A‑‑Penal Code (XLV of 1860), Ss. 406/420&506(2)‑‑Emigration Ordinance (XVII of 1979), Ss. 22 & 24‑‑Quashing of proceedings‑ Offences allegedly committed by accused and co‑accused punishable under S. 22, Emigration Ordinance, 1979 and only triable by Special Court ‑Proceedings pending against accused before First Class Magistrate, quashed.

Khawaja Sarful Islam for Petitioner.

Karamchand R. Kingrani for Respondent No.1.

Ali Nawaz Dahraj for the State.

Date of hearing: 5th May, 1987.

This is an application under section 561‑A, Cr.P.C. for quashment of proceedings pending against the applicant and respondent No. 3 under sections 506(2), 420 and 406, P.P.C. before the A.C.M. Shikarpur.

The brief facts of the prosecution case are that on 27‑ 11‑ 1986. respondent Abdul Hakim filed a direct complaint against the applicant and respondent No. 3 before Additional City Magistrate Shikarpur, alleging therein that he was on friendly terms with respondent No. 3 Mukhtar Ahmad and they used to visit each other. On 26‑9‑1986 respondent No. 3 came to Shikarpur alongwith present applicant Saadat Hussain and stayed at his house. D.W. Anwer cousin of the complainant. and their neighbourer Khair Bux also came there for chit‑chat. Anwar Ali disclosed that he is Intermediate and is unemployed, P.W. Khair Bux also disclosed that his son Wahid Bux was Matriculate, and he was also unemployed, because they had no influence or recommendation of influential person. On this the accused expressed that they had a great influence in Karachi, and they can arrange and provide employment to them. Accused Saadat Has3an told then that if they can arrange Rs.15,000 each, he can arrange employment for the boys in foreign shipping company at the monthly salary of 800 U.S, which is equal to Rs.14,000 in Pakistani currency. On the above disclosure, Anwer Ali and Khair Bux gave Rs.15,000 each on the assurance and surety of accused Mukhtar Ali. The complainant gave money to accused No. 2 Saadat Hassan and, thereafter both of them left for Karachi. Thereafter the complainant and P.W's. approached the accused but they kept on false hopes and ultimately on 21‑11‑1986; refused to return tire money, abused the complainant party, and threatened them with pistol for dire consequences. The complainant thereafter filed the above complaint. The Magistrate examined the complainant and P.Ws. Anwer Ali and Khair Bux, and issued bailable warrants under sections 506(2), 420 and 406, P.P.C. The present application is for the quashment of the above proceedings.

I have heard Mr. Sharful Islam Advocate for the applicant. Mr. Karamchand, Advocate for the private respondent No. 1, Mr. Ali Nawaz Dahraj, advocate for the State, and have also gone through the copies produced with the application.

The contention of Mr. Sharful Islam, learned counsel for the applicant, was that the case was false and the offence under section 506(2), P.P.C. was distinct, and was allegedly committed at Karachi, and therefore, the A.C.M. Shikarpur had no jurisdiction to issue process under section 506(2), P.P.C. That no offence was made out under sections 420 and 406, P.P.C., from the complaint and statements recorded by the Magistrate and that offences under sections 406 and 420, P.P.C. were scheduled offences under the Federal Investigation Agency Act, 1974, and could be investigated only by the said agency, it was further contended that offence, if any, was committed under section 22 of Emigration Ordinance, 1979, and the same had to be tried by Special Court by virtue of section 24 of the said Ordinance. That in view of the above legal position, the process issued by A.C.M. Shikarpur was without jurisdiction.

Mr. Ali Nawaz Dahraj, learned counsel appearing for the State has supported the above quashment application and according to him, the Magistrate had no jurisdiction to issue process.

Mr. Karamchand, learned counsel appearing for the complainant has contended that since the offence under sections 406, 420 was committed at Shikarpur, therefore, 'the Magistrate had jurisdiction to proceed with the above case.

I have considered the contentions of the learned counsel and have also gone through the provisions of law.

Admittedly, offence under section 506(2), P.P.C. if any, was committed at Karachi and it was distinct offence, therefore, the Magistrate, Shikarpur had no jurisdiction to take cognizance of the same.

The schedule attached to Federal Investigation Agency Act, 1974, shows that offences under sections 406 and 420 are scheduled offences.

In order to appreciate the next contention of Mr. Sharful Islam, it is necessary to have a look at sections 22 and 24 of the Emigration Ordinance, 1979.

Section 22 reads as under:‑

S.22(l)‑‑ "Whoever, for providing or securing or on the pretext of providing or securing to or for any person employment in any country beyond the limits of Pakistan:

(a) being an Overseas Employment promoters, charges any fee in addition to the prescribed amount, or

(b) not being such a promoter demands, or receives, or attempts to receive, for himself or for any other person, any money or other valuable thing.

shall be punishable with imprisonment for a term which may extend to fourteen years, or with fine, or with both"

Section 24 reads‑as under:

24(1)‑‑ The Federal Government may, by notification in the official Gazette set up as many Special Courts as it considers necessary and, whore it sets up more than one Special Court shall specify in the notification the headquarters of each Special Court and the territorial limits within which it shall exercise jurisdiction under this Ordinance.

(2) A Special Court shall consist of a person who is or has been a Sessions Judge or an Additional Sessions Judge.

(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), an offence punishable under the Ordinance shall be tried exclusively by a Special Court."

A bare reading of the above provisions of law clearly show that the offences alleged to have been committed by the applicant and co‑accused were punishable under section 22 of Emigration Ordinance, 1979 and the same could only be tried before the Special Court and not before the 1st Class Magistrate.

From the above discussion it is clear that cognizance taken by the) A.C.M., Shikarpur in the above case, against‑ the applicant and co‑accused was without lawful authority, and therefore, the proceedings pending against the applicant and co‑accused in case of Abdul. Hakim v. Mukhtar Ahmed and another are hereby quashed.

I had decided the above matter on 5‑5‑1987, by short order and these are the reasons for the same.

M.Y.H./S‑80/K Proceeding quashed.

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