This order shall dispose of Writ Petition Nos, 942 and 972 of 2004 as common question of law and facts is involved in these matters.
2. The facts leading to the Writ Petition No, 842 of 2004 are that on the complaint of Muhammad Arshad Butt a case under Sections 408, 3 & 4 PPC was registered vide FIR No, 85 dated 26.4.2003 at Police Station Margalla, Islamabad disclosing that the petitioner was employed in the company of the complainant as Store Keeper in September 1999. He was transferred to Dubai Office on 5.6.2002.
On verification of stock misappropriation was noticed and on checking of store mis-appropriation to the tune of Rs, 3,00,000/- was found. The petitioner also booked a container from Dubai to Pakistan in the name of the company. On its verification some items to the tune of Rs, 2,00,000/- was found to have been mis-appropriated. When petitioner was contacted and informed about the mis-appropriation, he accepted his responsibility and executed a writing to this effect. He and his family members including Wabeed Butt and Mst. Nusrat Shaheen promised that on arrival of the petitioner in Pakistan, the entire misappropriated amount would be paid.
3. Another case was registered vide FIR No, 91 dated 25.3.2004 under Section 489-F PPC in Police Station Margallah Islamabad on the complaint of Arshad Butt. Pursuant to the registration of case vide FIR No, 85 dated 26.4.2003 mentioned above, the petitioner was arrested and sent to judicial lock up. Faisal Butt brother of the petitioner beseeched the complainant and promised to pay the entire mis-appropriated amount. An agreement on stamp paper was executed. Abdul Rauf issued a cheque Bearing No, 0013606 of Allied Bank F-8 Markaz Islamabad dated 1.10.2003 in performance of agreement. The said cheque was presented and was dishonoured. The petitioner seeks quashment of both the FIR through these constitutional petitions.
3. Learned counsel for the petitioner contends that FIR subject matter of Writ Petition No, 942 of ?
004 relates to commission of offence when the petitioner was abroad; that the offence was committed beyond the frontier of Pakistan and that Section 188 Cr.P.C. places a complete bar on the trial of the cases without obtaining prior permission from the Federal Govt. He places reliance on case of Shujah Tariq vs. M/s. Chaudhary and Company through its Proprietor and 2 others (PLJ 2002 Lahore 433).
4. Learned AAG assisted by the learned counsel for the complainant vehemently controverted the afore-mentioned contentions and submitted that the petitioner mis-appropriated huge amount of the company, while he was in their service in Pakistan and at Dubai. He further adds that Federal Govt of Pakistan has been requested for grant of requisite permission; that according to the learned AAG the provisions of Section 188 Cr.P.C. are only procedural in nature and quashment cannot be asked for on account of its non-compliance. He places reliance on the case of Shahbaz-ud-Din Chaudhary vs. S.H.O. Police Station Garden Town, Lahore etc. (PLJ 1999 Lahore 801).
5. I. have heard the arguments of the learned counsel for the parties and examined the case law cited by them.
6. Before examining the conflicting plea of the learned counsel for the parties, it is appropriate to observe that Writ Petition No, 972 of 2004 questions FIR No, 91 dated 28.3.2004 registered under Section 489-F PPC when the cheque issued by the petitioner was dishonoured on its presentation.
The petitioner issued this cheque while he was in Pakistan, hence Section 188 Cr.P.C. has absolutely no application to this extent. Therefore, Writ Petition No, 972 of 2004 is dismissed.
7. The claim of the petitioner that he is protected under Section 188 Cr.P.C. is devoid of force. Section 188 Cr.P.C. is reproduced below:-- "188. Liability for offences committed.--When a citizen of Pakistan commits an offence at any place without and beyond the limits of Pakistan, or Outside Pakistan, when a servant of the State whether a citizen of Pakistan or not commits an offence on any ship or aircraft registered in Pakistan wherever it may be he may be dealt with in respect of such offence as if it had been committed at any place within Pakistan at which he may be found.
Political Agents to certify fitness of inquiry into charge: Provided that notwithstanding anything in any of the proceeding sections of this Chapter no charge as to any such offence shall be inquired into in Pakistan unless the Political Agent, if there is one, for the territory in which the offence is alleged to have been committed, certifies that, in his opinion, the charge ought to be inquired into in Pakistan, and, where there is no Political Agent, the sanction of the (Federal Government) shall be required: Provided, also, that any proceedings taken against any person under this section which would be a bar to subsequent proceedings against such person for the same offence if such offence had been committed in Pakistan shall be a bar to further proceedings against him under the Extradition Act, 1972 in respect of the same offence in any territory beyond the limits of Pakistan."
8. A bare reading of the above said provisions order Section 188 Cr.P.C. reveals that the permission is primarily a procedural requirement and can be secured even after the submission of challan in a Court of competent jurisdiction. The bar even if any contemplated u/S. 188 Cr.P.C. curable. In Harnarayan Bhikamchand and others vs. Govindram Aghuaram (AIR 1940 Nagpur 245) the requisite sanction was placed on record before the trial Court, which were found valid and held that there was so illegality in the trial.
9. The petitioner committed mis-appropriation while he was in service in Pakistan in complainant's company. He also mis-appropriated the store while performing his duties at Dubai. The part of the offence has thus been committed within the limits of Pakistan. He can thus safely be tried in Pakistan, even without the requisite sanction from the Federal Govt. of Pakistan as Section 188 Cr.P.C. may not applicable. The offence committed beyond the frontier of Pakistan, the trial cannot be vitiated on the ground of absence of sanction from the Federal Govt. The learned AAG has pointed out that the Federal Govt. has been moved for grant of appropriate sanction. The case of Shujah Tariq (supra) relied by the learned counsel for the petitioner renders no help to the petitioner as it is distinguishable from the facts narrated in the instant Oases. In the said precedent case, the accused was sponsored by the complainant and have gone abroad on the sponsorship of the complainant but instead of performing their work as per the contract, the accused returned surreptitious and case was registered against him under Section 408 PPC. The agreement between the sponsor and the complainant, providing clear terms in express language to compensate the company in case of embezzlement or loss on account of the person sponsored by the promoter.
This was the main reason that the Court in case of Shujah Tariq (supra) quashed the proceedings in agreement with the learned Assistant Advocate General as well as the learned Counsel for the petitioner, that the proceedings impugned were infirm.
10.In case of Shahbaz-ud-Din Chaudhry (supra) the learned Single, Judge of this Court in a well considered reasoned judgment full of wisdom and dealing with the controversy came to the conclusion that Section 188 Cr.P.C. is no bar to the trial for the offence committed outside the frontier of Pakistan.
11.For what has been discussed above, this petition having no merit is dismissed.