' IJAZ AHMED CHAUDHRY J.---Through the present petition under section 561-A Cr.P.C., Rafi Ahmed and Muhammad Aslam, petitioners seek quashing of the proceedings pending before the learned Special Judge Central, Lahore in case F.I.R. No,617 of 2007, registered under sections 17/22 of the Emigration Ordinance, 1979, at Police Station FIA/AEITC Lahore.
' Briefly the facts of the case are that Shamshad Ahmed, complainant got F.I.R. No,617 of 2007 dated 24-11-2007 registered under sections 17/22 of the Emigration Ordinance, 1979 at police station Passport Cell, FIA, Lahore against the petitioners alleging therein that they fleeced away an amount of Rs,18,00,000 from the complainant on the pretext to provide visa to his brother and sister-in-law for Germany and to arrange their employment being unauthorized overseas employment promoter. After completion of the investigation both the petitioners were sent up to face trial before the learned Special Judge Central Lahore where they were charge-sheeted. Thereafter the petitioners filed an application under section 265-K Cr.P.C. For their acquittal before the learned trial Court which stood dismissed on 20-10-2009. Feeling dissatisfied with the aforesaid order the petitioners filed a petition under section 561-A, Cr.P.C. Bearing Criminal Miscellaneous No,62-Q- 2009 before this Court which was disposed of vide order 26-11-2009 where after the petitioners filed an application before the learned trial Court for dropping of the proceedings pending before it in the F.I.R. In question for want of jurisdiction. The learned trial Court after hearing the learned counsel for the parties dismissed the said application vide order dated 13-1-2010. Hence the present petition.
3. Learned counsel for the petitioners contends that the learned Special Judge (Central), Lahore had taken the cognizance of the case against the petitioners in an unlawful manner because no "complaint" within the meanings of section 24(6) of the Emigration Ordinance, 1979 had been filed before the learned Special Judge; that the report under section 173, Cr.P.C. Either prepared by the police established under the Police Act, 1861 or any other agency such as FIA established under the Federal Investigation Agency Act, 1975 cannot be termed as complaint under section 4(1)(h) Cr.P.C.
Read with section 24(6) of the Emigration Ordinance, 1979; that according to law police report in the shape of report under section 173, Cr.P.C. Is a report and not the complaint specified under section 24(6) of the Ordinance, as such, as per provisions of the Emigration Ordinance, 1979 the learned Special Judge (Central) can only take cognizance on the complaint and not on the report under section. 173, Cr.P.C., thus the learned trial Court has no jurisdiction to proceed against the petitioners; that the procedure has been laid down in section 190, Cr.P.C, regarding taking of the cognizance by the Court and under a special law the courts are restricted to take cognizance only on complaint and not on other motion; that in such circumstances continuation of proceedings before the learned trial Court would be an abuse of process of the Court as well as sheer wastage of precious time of the court. Relies on Mrs. Surayya Farman v. The State (1998 PCr.LJ` 958) Moinuddin v. The State (1986 PCr.LJ 1158) and Irshad v. The State (1987 PCr.LJ 2131).
4. On the other hand, learned standing counsel for the Federal Government contends that the word "complaint" enumerated in section 24(6) of the Ordinance is to be given ordinary dictionary meaning as technical/special meaning of the word in the Criminal Procedure Code will neither be legal nor in consonance with the principle of harmonious interpretation and that even otherwise, in view of the amendment in Ordinance No,IV of 1977 cognizance can be taken by the Special Judge upon a report in writing made by an Officer Incharge of a Police Station. Refers Manzoor Ahmad Akhtar v. The Special Judge, Central, Lahore and another (PLD 1995 Lahore 1) and Saleh Muhammad and another v. The State (1981 PCr.LJ 179) (Karachi).
5. We' have heard the learned counsel for the parties and also perused the available record as well as the judgments cited by the learned counsel for the parties. The word "complaint" used in subsection (6) of section 24 of the Emigration Ordinance, 1979 needs clarity because the argument of the learned counsel for the petitioner is that under the 'aforesaid provision of law the. Special Court has no jurisdiction to take cognizance on the report submitted by the Investigating Agency under section .173 Cr.P.C. And only could take cognizance to try an offence upon a complaint in writing made by such person as the Federal Government, may by general or special order in writing authorize in this behalf. The word "complaint" has been defined in section 4(1)(h) of the Criminal Procedure Code as under:-- "(h) "complaint" mean the allegation made orally or in writing to a Magistrate with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but it does not include the report of a Police Officer."
' The word "complaint" according to Oxford Dictionary means utterance of grievance, expression of grief, formal accusation, plaintiff's case in civil action, subject ground of complaint, bodily ailment.
According to the Chambers Twentieth Century Dictionary "complaint" means complaining, expression of grief and dissatisfaction, a poem setting forth matter of grief or dissatisfaction, a representation of pains or injuries, a finding fault, the thing complained of, a grievance, a disease, and ailment. In view of the definition of the word 'complaint' as given in the Criminal Procedure Code, the word complaint is expressly restricted only to the Code and not to other law, as such, there is no A compulsion in the Code that the definition of complaint be read in the Ordinance but the taking of the cognizance by the Special Court is enumerated in subsection (3) of section 24 of the Emigration Ordinance, 1979 which is to the effect that "Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), an offence punishable under this Ordinance shall be tried exclusively by a Special Court" and there is no distinction in this subsection (3) that the Special Court cannot take cognizance except in the complaint. The Emigration Ordinance, 1979 deals with a subject of special law and the definition of the word 'complaint' in the Code of Criminal Procedure is not applicable to the Emigration Ordinance, 1979 because in the said definition the word 'Magistrate' has also been used whereas in the Emigration Ordinance there is no concept of Magistrate and all the matters relating to a criminal case are dealt with only by a Special Court as the subject of the Ordinance does not come within the competence of the Magistrate and only a Special Court is competent. In this special law the complaint would definitely mean a report or writing of a police officer as that of any other officer or even of a citizen written on a bare piece of paper. In a case under the Customs Act the Hon'ble Supreme Court of Pakistan in the case of Ajab Khan and another v. The State (1981 SCM R 976) held that the convict's plea that their prosecution could only take place upon the complaint as laid down in section 185-A(6) of the Customs Act and not as a result of the report of the Police Officer cannot be accepted and it was also held that the cognizance of the case and their trial and conviction was with legal authority. In such a situation the term complaint as appearing in subsection (6) of section 24 of the Emigration Ordinance, 1979 is not same as defined in section 4(1)(h) of the Code of Criminal Procedure and the complaint made by a Police Officer with the Special Court was valid otherwise the whole scheme of law in the shape of commission of the offences and the punishment provided in the Emigration Ordinance for such offences would be frustrated. The FIA authorities have been delegated the powers under section 3 of the FIA Act, 1974 for inquiry into and investigation of the offences specified in the Schedule, including an attempt or conspiracy to commit and abetment of any such offence and the Emigration Ordinance, 1979 finds mention in the Schedule annexed to the FIA Act, 1974, thus, the purpose of this extraordinary exercise would be defeated if the FIA would be held incompetent to file the 'complaint' before the. Special Judge, as such, the intention of the law is clear that the word 'complaint' must not be read in accordance with section 4(1)(h) of the Criminal Procedure Code. It will not be further feasible to adopt the meaning and definition of complaint given in section 4(1)
(h) of the Criminal Procedure Code for the reason that the complaint as defined in the aforesaid section of the Criminal Procedure Code shows that the complaint will have to be addressed to a Magistrate and in the whole scheme of law as enunciated in the Emigration Ordinance, 1979 the Magistrate does not figure anywhere, as such, the Magistrate would have no jurisdiction to decide the matter under the said Ordinance. Since the FIA authorities have specifically been authorized by the FIA Act to record F.I.R. And investigate the offences mentioned in sections 17/22 of the Emigration Ordinance, therefore, Special Judge was competent to assume jurisdiction on the complaint/report of FIA. The result of F.I.R. And investigation thereof recorded under the Emigration Ordinance, 1979 would ultimately be placed before the Court constituted under the FIA Act and not before a Magistrate, therefore, in any case, the result of the F.I.R. And the investigation would go to the Special Court and in such circumstances the special Court has the jurisdiction to take cognizance in such like cases.
6. The net result of the aforesaid discussion is that we find no merit in this petition which is hereby dismissed.