1. This revision application is directed against the order passed by the learned VI Additional District and Sessions Judge, Karachi South.
2. The short point involved is whether the learned VI Additional District and Sessions Judge, Karachi South, has the jurisdiction to try the applicant/accused Sultan Riaz Khan, in Private Complaint No. 302 of 1996.
3. 'The relevant facts are that on 20-5-1992 the Official Liquidators of the Bank of Credit and Commerce International (Overseas Limited), (hereinafter referred to as BCCI) in liquidation filed a complaint before the Examining Magistrate, Geneva against the GULF Group run by Abbas, Mustafa and Murtaza Gokal, on charges of fraud, fraudulent, bankruptcy and bankruptcy with irregularities.
4. The applicant Sultan Riaz Khan, was shown as an accused having forged documents and using fraudulent representations to deceive BCCI as to real economic position and financial position of the Gokal Companies, in lieu whereof he allegedly obtained various credit facilities. The Examining Magistrate however, refused to indict the applicant Sultan Riaz Khan on charges of fraud and forgery of documents for lack of sufficient evidence to establish the existence of fraud and or forgery. The Official Liquidator lodged an appeal against the order of the Examining Magistrate before the Chamber 'D' Accusation (Indictment Review Court). The Appellate Court dismissed the appeal.
5. 'However, the Official Liquidator vide letter dated 22-2-1996 addressed to Raza Kazim Associates, Legal Consultant and Attorney Lahore authorized them to act on their behalf to pursue the private criminal complaint against Murtaza Gokal and four others. Raza Kazim Associates, delegated the authority to Syed Ali Kazim son of Syed Akhlaq Hussain, who filed a Private Complaint No. 302 of 1996 under Section 3 of the Pakistan Penal Code read with Section 4 thereof, for the offences punishable under Sections 109, 12, 197, 198; 406, 409, 411, 414, 420, 421, 424, 468, 471, 477, P.P.C. and Section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, against Mustafa Kassimali Gokal and 24 others including the applicant Sultan Riaz Khan, before the Judicial Magistrate Karachi South. The complaint was transferred on the same day to the Court of Session Karachi South. It was stated in Para No. 361 of the complaint that accused Nos. 1 to 25 are Pakistani citizens who have committed the offences mentioned in the complaint out of Pakistan. It was further stated that the sanction, required under Section 188, Cr. P.C. for prosecution of the accused in Pakistan. On 19-2-1997 the learned Sessions Judge Karachi South, issues summons to accused/applicant Sultan Riaz Khan, under Section 68 Cr.P.C. at his address in Geneva, Switzerland, directing the applicant to appear in person to answer the charges. The case was thereafter transferred to the Court of learned VI Additional District and Sessions Judge, Karachi South. An application was submitted before the learned trial Court under Section 265-K Cr.P.C. seeking acquittal of applicant Sultan Riaz Khan on the ground that the trial Court had no jurisdiction to entertain the complaint against the applicant who though originally a Pakistan citizen is admittedly residing in Geneva, where the offences are alleged to have been Committed and was never found in Pakistani after the alleged commission of offence. Application was dismissed by the VI Additional District and Sessions Judge, Karachi South, vide order dated 20-8-2002 which has been impugned in the present revision application.
6. 'I have heard Mr. A.Q. Halepota, learned counsel for the applicant, Mr. Khalid Jawaid Khan, learned counsel for the complainant and Mr. Abdullah Khan, learned State Counsel.
7. 'Mr. A. Q. Halepota, learned counsel for the applicant has submitted that admittedly the offence alleged in the complaint has been committed at a place without and beyond the limits of Pakistan.
8. According to him the complaint has been filed in Criminal Court at Karachi in pursuance of the provisions contained in Section 188, Cr.P.C. which provides for extraterritorial jurisdiction over the Pakistani citizens. Mr. Halepota, has maintained that in order to attract the provisions contained in Section 188, Cr.P.C. two conditions must be satisfied, first, a citizen of Pakistan alleged to have committed an offence at any place beyond the limits of Pakistan is found at any place in Pakistan and on fulfilment all this condition he may be dealt with in respect of such offence as if it had been committed at any place within Pakistan, and secondly, the political agent certifies that in his opinion the charge ought to be inquired into Pakistan; and, where there is no political agent, the sanction of Federal Government is accorded, as the case may be.
9. 'Mr. Halepota has contended that after the commission of alleged offence the applicant has never arrived/brought in Pakistan which is evident from the fact that in the complaint the applicant Sultan Riaz Khan, is shown as resident of Switzerland. It is nowhere alleged in the entire complaint that the applicant, accused No. 19, was at any time found at Karachi or anywhere else in Pakistan.
10. According to him even after issuance of summons by the learned Sessions Judge Karachi South the applicant neither appeared before the trial Court nor was brought or produced before the Court. He has further argued that the sanction of the Federal Government of Pakistan for prosecution of the applicant under Section 188 of the Cr.P.C. was obtained by concealment of the fact and even otherwise, mere grant of sanction for the prosecution under first proviso to Section 188 shall not have the effect of satisfying the first condition of a citizen of Pakistan having been found at any place in Pakistan which has to be satisfied independently.
11. 'Mr. Halepota has submitted that in the above circumstances the Criminal Courts at Karachi, have no extra Territorial jurisdiction in respect of applicant Sultan Riaz Khan and therefore, the learned trial Court has fallen in serious error in rejecting the application under Section 265-K, Cr.P.C.
12. According to Mr. Halepota, the Criminal Courts at Karachi have no jurisdiction to deal with the applicant in respect of an offence alleged to have been committed outside Pakistan, unless he is found in Pakistan, and therefore, the proceedings pending against applicant in Court of learned VI Additional District and Sessions Judge, Karachi South, are liable to be quashed for want of jurisdiction.
13. 'In support of his contention he has placed reliance on two judgments from Pakistani jurisdiction and one judgment from Indian jurisdiction.
14. 'The first judgment is in She case of Sodagar v. The State PLD 1962 (W.P.) Peshawar 32. The relevant facts in this case were that the petitioners were alleged to have committed murder in tribal territory. The father of victim filed a private complaint in the Court of Magistrate First Class in District Kohat. The Magistrate summoned the petitioners/accused but before the committal of case before the Court of Session (in accordance with the law prevailing at the relevant time) the prosecution agency withdrew under the authority of Deputy Commissioner Kohat for trial under Section 11 of the Frontier Crimes 'Regulation, as a certificate was granted by the political agent Kurram Agency, under Section 188, Cr.P.C. The vires of the above proceedings were challenged on two grounds, The first, that the offence was not committed within the jurisdiction of Kurram Agency and therefore, the political agent of that agency had no power to grant certificate. Secondly, that even assuming for the sake of arguments that the certificate is valid, the Deputy Commissioner Kohat had no power to withdraw the case under Section 11 of the F.C.R. It was held that the petitioners/accused persons were resident of Kohat and were there at the time the private complaint against them was instituted and therefore, they were 'found' in the District within the meaning of Section 188, Cr.P.C.
15. 'The second case is from Indian jurisdiction, Pheroze Jehangir Dastoor v. The State AIR 1964 Bombay
264. In this case a complaint was filed in the Court of Presidency Magistrate Bombay, for the commission of an offence in a foreign territory. The complaint was dismissed for the reason that the offence was committed at Daman which was subsequently merged with India and therefore, the case could be tried at the place the offence was committed. Learned Single Judge of the Bombay High Court while considering the expression 'found' occurring in Section 188, Cr.P.C. referred with approval the commentary of Ramnath Iyer on the Code of Criminal Procedure, Volume I, 1956 Edition, page 642 as follows: "The word 'found' in the group of words at which he may be fund used in Section 188, Cr.P.C." means found by the Court at the time when the matter comes up for trial, that is to say, any Court which is otherwise competent to try the offence can take seisin the moment the accused appears in its presence. How he gets there is immaterial. It does not matter whether he comes voluntarily or in answer to a summons or under illegal arrest....".
16. 'As in the said case accused had admittedly appeared before the trial Magistrate therefore, it was held that the said Magistrate could proceed with the case in accordance with the law.
17. 'The third judgment is in the case of Abu Bakar v. The State 1989 PCr.LJ 369. In this case an application under Section 561-A, Cr.P.C. was submitted seeking quashment of an F.I.R. It was alleged that the petitioner Abu Bakar committed theft at Oman and thereafter managed to escape from Oman to Karachi. The quashment was sought on the ground that no sanction under Section 188 was obtained. The application was dismissed for the reason that by virtue of the provisions contained in Section 4, P.P.C. and 188, Cr.P.C. the investigation could be conducted at Karachi after obtaining the permission from the Federal Government and it was open to the complainant and investigating authorities to obtain such certificate. The ratio of this judgment is not applicable to the facts and circumstances of the present case.
18. On the other hand Mr. Khalid Jawaid, learned counsel for the complainant has filed written submissions. While replying the contention that the ingredients of Section 188 were not made out as the applicant is a permanent resident of Switzerland and was never found in Pakistan and that sanction under Section 188 has been obtained by making misrepresentation and concealment of facts, it has been contended that the objection pertained to the factual side of the case and cannot be raised at this stage., It is averred as follows: "(1) Permanent residence of a Pakistani citizen in a particular place is not relevant for purposes of initiating criminal proceedings against him under Section 188 Criminal Procedure Code. A person is found where he is actually present when the case comes up for trial. Reliance is placed on the following Court rulings:-
(a) In AIR 1948 Nagpur 251 it is held that: (i)Section 188, Cr.P.C. does not deal with residence of a person nor does it matter how a person reaches within the jurisdiction of a trial Court (Para. 9 at page 252).
19. (ii)"Found" in Section 188, Cr.P.C. means found by the Court when the matter comes up for trial, that is to say, any Court which is otherwise competent to try the offence can take seisin the moment the accused appears in its presence. How the accused gets there is immaterial. It does not matter whether he comes voluntarily or in answer to a summons or under illegal arrest. It is enough that the Court should find him present when it comes to take up the matter (Para. 8 at page 252).
(b) AIR 1936 Nagpur 152 page 153: 'It may be noted that for the purposes of criminal jurisdiction under Section 188,. Cr.P.C. an accused person is found wherever he is actually present. When the requisite certificate is furnished under Section 188, Cr.P.C. the offences could be dealt with as if they had been committed at the place at which the accused was found.
(c) The rulings mentioned at (a) and (b) above were upheld in AIR 1964 Bombay 264: Para 7 at page 267."
20. 'He has next contended that the applications for quashment of proceedings were submitted by few of the co-accused which were dismissed by this Court and the order passed by a learned Single Judge of this Court was upheld by the Hon'ble Supreme Court of Pakistan. He submitted that the earlier applications for quashment of proceedings were dismissed, therefore, the present application is also liable to be dismissed.
21. 'Mr. Abdullah, the learned State Counsel has supported the contention of Mr. Halepota and has stated that the applicant was never found in Pakistan, therefore, the criminal Courts at Karachi have no jurisdiction to try the applicant in pursuance of the provisions contained in Section 4, P.P.C. and 188, Cr.P.C.
22. 'In reply to the contentions of Mr. Khalid Jawaid Khan, Advocate, Mr. Halepota has submitted that the judgments from Indian jurisdiction on which Mr. Khalid Jawaid Khan placed reliance actually support his contention to the effect that until and unless a person is actually present at place where the case comes for trial, he shall not deem to be found at such place as envisaged under Section 188, Cr.P.C. and in the absence of a person having been found at the place whether the matter comes up for trial the Courts shall have no jurisdiction to deal with such person as it he had committed the offence within Pakistan.
23. 'I have carefully considered the facts on record, contentions raised by the learned Advocates and the relevant law. I have been able to lay hand on two more judgments from Indian jurisdiction. The first case is Empress u. Maganlal, 1882 ILR, Volume VI. In this case a native Indian committed an offence in a native State. The accused was discovered in the territory of another native State and was brought down or came on his own accord at Ahmedabad. A certificate was granted by the political agent and preliminary enquiry was held by Magistrate at Ahmedabad and was committed for trial by Court of Session. While interpreting the provisions contained in Section 9 of the Foreign Jurisdiction and Extradition Act (XXI of 1879), which is similar to the provisions contained in Section 188, Cr.P.C. It was held that the expression 'found' used in the relevant law means where an accused is actually present. It was held that the accused was present at Ahmedabad and therefore, was amenable to the jurisdiction of Court of Ahmedabad, where he was found.
24. 'Second judgment is in the case of Queen-Empress u. Daya Bhima, 1888 Bombay Series, Vol. XIII, 147, In this case the native Indians were alleged to have committed offence in Portuguese territory and they were found in a place in British territory. In this case also the accused persons were found at a place in Ahmedabad District. Following the rule laid down in the case of Empress u. Maganlal (supra) it was held that they were found in the - District of Ahmedabad and therefore, the Court of Session at Ahmedabad had jurisdiction to try them.
25. 'It is provided in Section 4, P.P.C. that any Pakistani committing offence outside Pakistan is subject to jurisdiction of Courts in Pakistan. It is provided in Section 177, Cr.P.C. that every offence shall ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction it was committed. In Section 188, Cr.P.C. it is provided that when a citizen of Pakistan commits an offence at any place without and beyond the limits of Pakistan, 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. It is of course subject to certificate by the political agent or the sanction of Federal Government as the case may be, under first proviso to Section 188, Cr.P.C. Accumulative reading of Section 4, P.P.C. and Section 188, Cr.P.C. shows that these provisions confer extra-territorial jurisdiction on the criminal Courts in Pakistan over Pakistani citizens in respect of acts committed by them outside Pakistan, subject to the two conditions as contended by Mr. A.Q. Halepota. This extra territorial jurisdiction is subject to the fulfilment of conditions that accused is found at any place in Pakistan under any circumstances and the certificate of political agent or sanction of the Federal Government as the case may be is obtained. If either of the condition is not specified a criminal court in Pakistan shall not have the extra-territorial jurisdiction to try a person alleged to have committed an offence outside Pakistan.
26. 'In the present case, the contention on behalf of applicant is that he was never found in Pakistan meaning thereby that neither he voluntarily came to Pakistan nor he was brought to Pakistan legally or illegally at any time and therefore, the applicant is not amenable to the jurisdiction of 'Criminal Courts at KaraChi. I am persuaded to agree with the submission of Mr. Halepota that the. expression 'found' used in Section 188 means that a person is physically and actually present at any place in Pakistan or he voluntarily appears before a Court in Pakistan or appears in answer to the summons or is brought before the. Court under arrest. In the present case, the presence of applicant anywhere in Pakistan and procurement of his attendance in the trial Court at Karachi has not been shown, and therefore, the Courts in Karachi taking cognizance of the offence under Section 190(1) upon receiving a complaint have no jurisdiction to deal with the applicant.
27. 'The contention of Mr. Khalid Jawaid that applications of co-accused persons for quashment of proceedings were rejected, therefore, the application under consideration at the instance of applicant is also liable to be rejected has no substance. The application by the co-accused persons were on different grounds. Mr. Kahlid Jawaid, has not denied the fact that the contention of applicant to the effect that since he was not found in Pakistan as required under Section 188, Cr.P.C., therefore, the trial Court at Karachi has no jurisdiction was never considered by this Court or the Hon'ble Supreme Court, while hearing the applications at the instance of co-accused persons.
28. 'For the foregoing reasons, the application is allowed and the proceedings pending against the applicant Sultan Riaz Khan in Private Complaint No. 302 of 1996 being without jurisdiction are hereby quashed.
29. 'Before parting with this order I would like to clarify that the quashment of proceedings against the applicant Sultan Riaz Khan for the reason that in his respect the condition precedent specified in Section 188, Cr.P.C. of being found at any place in Pakistan has not been fulfilled shall not have any adverse effect on the proceedings pending against the remaining accused persons. It is, also clarified that if applicant Sultan Riaz Khan is found in Pakistan at any time and any criminal proceedings are instituted against him, the present order shall not operate as a bar against such proceedings.
30. 'The application is allowed as above.