KHADIM HUSSAIN Versus STATE

The appellant was convicted and sentenced to undergo 5 years' R.I. and a fine of Rs.50,000 and in default whereof to suffer further R.I. for 2 years under section 22 of the Emigration Ordinance, 1979, vide judgment, dated 16-6-1986 passed by the learned Special Judge (Central), Lahore, against which he preferred the present criminal appeal.

2. The case was registered against the accused-appellant and Muhammad Bashir (deceased), co-accused, vide F.I.R. No.138 dated 15-8-1984 at Police Station F.IA. Passport Cell, Lahore on 15-8-1984. During an inquiry it was found that the deceased-accused Muhammad Bashir (died pending trial and proceedings against him were abated) and Khadim Hussain, accused appellant had defrauded eleven persons and had extracted from them Rs.8,000 to Rs.15,000 each, totalling Rs.1,40,000 alongwith their passports and National Identity Cards for sending them to Saudi Arabia. F.I.R. Exh.P.W.11/3 was recorded by Muhammad Ishaq, Inspector F.IA., not produced as P.W.

3. The challan of the case was put up in the Court of the learned Special Judge (Central), Lahore. After recording the statements of 11 P.Ws. and 3 D.Ws., he found the appellant guilty and sentenced the appellant accordingly. It has been urged before me by the learned counsel for the appellant that under section 24(6) of the Emigration Ordinance, 1979, "a Special Court shall take cognizance of and have jurisdiction to try 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." No authorisation has been placed on record by the Federal Government to P.W.11 Munir Ahmad Khan, A.S.I., Investigating Officer or Muhammad Ishaq, Inspector F.I.A to file a complaint in the Court concerned.

No doubt a report under section 173, Cr.P.C. was submitted by the S.H.O. Passport Cell Muhammad Ishaq, Inspector, not produced as P.W. The expressions of the complaint and the police report denote definite meanings and expressions of both are to be understood to convey different meanings senses and are not to be interchangeable. The police report remains a police report and under no circumstances, it can be regarded as complainant, which is altogether a different expression and has different meaning, from which police report has been expressly excluded. The learned trial Court took cognizance of the case on police report in violation of section 24(6) of the Emigration Ordinance (XVHI) of 1979, which requires the Court to take cognizance on a complaint as mentioned in the above section.

4. P.W.11 Munir Ahmad Khan had partly investigated the case and recorded the statements of P.Ws. Nothing was placed on record by the prosecution before the learned trial Court, i.e. either Muhammad Ishaq, Inspector, F.I.A. or P.W.11 Munir Ahmad Khan, S.I. had been authorised to file a complaint. After investigation a police report was submitted in the Court and different procedures were to be followed while taking cognizance of the case, complaint and the police report respectively.

5. After anxious consideration of the points raised by the learned counsel for the appellant, I am of the view that no complaint was lodged by any authorised person as laid down under section 24(6) of the Emigration Ordinance, 1979. In view of the circumstances, the criminal appeal filed by the appellant is allowed and he is acquitted of the charge. The appellant is on bail vide order, dated 24-6-1987 of this Court, his bail bonds are discharged.

H.B.T./K-53/L Appeal allowed.