ZAMURRAD KHAN And Others vs THE STATE And Another

SAAD SAOOD JAN, J.-- This is an appeal by special leave from the order dated 21-10-1986 of the Lahore High Court dismissing the constitutional petition of the appellants.

2. On the information supplied by Muhammad Iqbal and Muhammad A.I, the Federal Investigating Agency registered a case for offences falling under section 6 of the Passport Act, 1974, and sections 17 and 18 of the Emigration Ordinance, 1979, against the appellants and one Muhammad Riaz. After investigation the said agency submitted a challan against Muhammad Riaz alone in the Court of the Special Judge (Central), Lahore. Accordingly, the learned Judge started the trial of Muhammad Riaz for the said offences. While evidence was being recorded Muhammad Iqbal submitted an application through the Special Public Prosecutor for summoning the appellants as well as accused persons. By an order dated 7-10-1985 the Special Judge accepted the application and issued summonses to the appellants. The appellants filed a writ petition in the High Court to call in question the legality of the said order of the learned Special Judge.

3. The contention of the appellants before the High Court was founded on the language of section 24(6) of the Emigration Ordinance which, after, amendment by Act VI of 1985, reads as follows:---- "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 riot accompanied by such sanction, the Special Court shall, immediately on its receipt, refer the matter to the Federal Governmentand, 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 wasargued behalf of the appellants that before summoning them the learned Special Judge did not have the previous sanction of the Federal Government before it, consequently, the order by which they were summoned was illegal. The High Court rejected this contention with the following observations:- "It is clear that the learned Special Court has the jurisdiction to try the offence punishable under the aforesaid Ordinance on a complaint in writing which is accompanied by previous sanction of the Federal Government. The Special Court shall, of course, refer the matter to the Federal Government against the petitioners for obtaining sanction for prosecution and in case the sanction in neither received nor refused within sixty days of the receipt of the reference by the Federal Government he would be competent to try the accused."

The appellants have challenged the correctness of the view taken by the High Court.

4. In support of this appeal two contentions have been raised. In the first instance it is argued that the Special Public Prosecutor through whom the application was made by Muhammad Iqbal was not competent to present the same before the Court as he had not been authorised by the Federal Government in this regard. Secondly, it is contended that unless the Federal Government had accorded its sanction the learned Special Judge could not summon them to stand trial in his Court.

So far as the first contention is concerned it is without any merit. Section 24 (6), ibid, as it stands at present, does not require that the complaint before the Special Judge must emanate from or be endorsed by the Federal Government or any authority authorised by it before it can be presented before the Special Judge. Thus, a complaint before the Special Judge can be presented by any one. All that the subsection states is that before the Special Judge takes cognizance of or assumes jurisdiction to try an offence under the Ordinance he must have the previous sanction of the Federal Government before it This requirement has been further diluted by the proviso to the subsection which deals with the situation where the complaint is not accompanied by the previous sanction of the Federal Government. It states that in such an event the Special Judge should refer the matter to the Federal Government for according sanction: If the sanction is neither refused nor received within a period of 60 days of the receipt of the reference by the Federal Government the sanction should be deemed to have been accorded. It is, therefore, not right on the part of the appellants to contend that the Special Public Prosecutor through whom the application of Muhammad Iqbal was routed was not competent to present the same before the Court or that without the previous sanction of the Federal Government the Court was not competent to receive it.

5. The second contention of the appellants has some merit. The main clause of section 24(6) forbids the Special Judge from taking cognizance of an offence punishable under the Ordinance without the previous sanction of the Federal Government. Admittedly the application submitted by Muhammad Iqbal was not accompanied by the previous sanction of the Federal Government. That being so, the learned Special Judge could not issue summonses to the appellants unless he had previously received the sanction from the Federal Government or the same was deemed to have been accorded. Therefore, his order in this regard was clearly illegal. We would accordingly declare it to be without any lawful authority and of no legal effect.

6. We are informed that acting under the proviso the learned Special Judge has now made a reference to the Federal Government. He should await the decision of the Federal Government on the reference or for the statutory period of 60 days before proceeding further on the application of Muhammad Iqbal. There will be no order as to costs in this appeal.