ORDER MUHAMMAD QASIM KHAN, J.---Through this writ petition, the petitioners have assailed the order dated 18-3-2011 passed by learned Additional Sessions Judge, Phalia, whereby, on the application of Sarfraz Ahmad/respondent No.3, the respondent S.H.O. Was directed to discharge his obligation.
2. Briefly the facts of the case are that Sarfraz Ahmad respondent No.3 moved an application under section 22-A(6), Cr.P.C. With the contents that he (Sarfraz Ahmad) along with his brothers Irshad, Imtiaz and Riaz Ahmad were residing in Saudi Arabia to earn their livelihood, whereas, Arshad who is their close relative, was also residing there. About one year prior, Sarfraz Ahmad returned to Pakistan and about three months before the filing of complaint, Irshad Ahmad in the presence of Imran Ahmad and Imtiaz Ahmad gave 5500-Saudi Riyal to Arshad, which amount had to be given to the petitioner here in Pakistan. When Sarfraz along with Muhammad Arif and Safdar Iqbal went to get back the amount, Arshad Iqbal and his father Bashir Ahmad both admitted to have taken the amount, but asked some time for its return. After about one month Irshad Ahmad (brother of the complainant) also came back to Pakistan and on 27-2-2011, the complainant along with brother Irshad, Muhammad Arif and Safdar Iqbal went to the house of Bashir Ahmad and Arshad Iqbal, they flatly refused to return the amount. With this background, Sarfraz Ahmad moved application under section 22-A(6), Cr.P.C. Whereupon, the impugned order has been passed by the learned Justice of Peace.
3. It is contended by learned counsel for the petitioner that no cognizable offence has been made out from the application of respondent No.3 before the Justice of Peace; the occurrence took place at Saudi Arabia, the witnesses also reside there, as such, in view of the bar contained in section 188, Cr.P.C. a certificate by the political agent or the Federal Government was required before proceeding under section 154, Cr.P.C. For registration of a case. In support of his arguments, learned counsel placed reliance on the case "SHUJAH TARIQ v. Messrs CHAUDHRY AND COMPANY through its proparitor and 2 others" 2002 PCr.LJ 351.
4. On the other hand, learned counsel representing respondent Sarfraz Ahmad argued that bare reading of his application moved before the learned Justice of Peace, disclose the commission of a cognizable offence, as such, the learned Justice of Peace had no other option except to direct the S.H.O. To proceed in term of section 154, Cr.P.C. The learned counsel further argued that although 55000-Saudi Riyal were handed over to the petitioner in Saudi Arabia, but same had to be delivered to him, in Pakistan, where the petitioner refused to return the money, therefore, F.I.R. Could be registered and investigation could be initiated and courts in Pakistan have ample jurisdiction to take cognizance and can proceed with the trial, and section 188, Cr.P.C. Does not create any bar on registration of case. As regards requirement of certificate, such certificate can be obtained even after submission of report under section 173, Cr.P.C., this being procedural requirement and only an irregularity cannot uproot the entire case. The learned counsel in support his arguments has placed reliance on the case "SHAHBAZ UD DIN CHAUDHRY v. S.H.O. Police Station Garden Town, Lahore (1999 SD 217), "ABU BAKAR v. THE STATE" (1989 PCr.LJ 369), "JAFFAR ALI ALVI v. SESSIONS JUDGE, ISLAMABAD" (PLD 2006 Lahore 434).
5. Heard. Record perused.
6. The entire controversy raised in this writ petition boils down to following two points:
(i) Whether from the contents of the application moved by Sarfraz Ahmad under section 22-A(6), Cr.P. C., any cognizable offence is made out? And
(ii) Whether section 188, Cr. P. C. Imposed restrictions for, the registration of case in the facts and circumstances of the present case?
(iii)
7. I have gone through the contents of the application filed by Sarfraz Ahmad respondent under section 22-A(6), Cr.P.C, before the learned Justice of Peace, wherein, allegation of criminal breach of trust and dishonest misappropriation of property (55000 Saudi Riyal) has been levelled against the petitioner. According to the definition of "criminal breach of trust" as provided in section 405 of Pakistan Penal Code, 1860, provides that there must be entrustment of property, dishonest misappropriation of the same or its conversion to his on use by the person in whom the confidence was reposed, there shall be dishonest use or disposal of the said property in violation of any direction of law or in violation of any legal contract. Here in this case, as narrated above, a specific allegation has been levelled with regard' to handing over of money to the (iv) petitioner in Saudi Arabia with an B undertaking that same had to be delivered.
(v) to Sarfraz Ahmad complainant/respondent in Pakistan. The above allegations as levelled against the petitioner definitely require an investigation before reaching at some definite conclusion about its truth or falsehood, but from the cursory glance of the said application, prima facie, commission of a cognizable offence under section 406, P.P.C. Is made out. However, this is a tentative assessm ent of the facts, not binding on any court or forum, where the matter is yet to be thrashed on the basis of material collected or brought. The question (i) is answered accordingly.
8. Before discussing the applicability of section 188, Cr.P.C. Sections 3 and 4 of the Pakistan Penal Code have to be considered. Section 3 of the Code, ibid, extends the jurisdiction of the courts of Pakistan beyond Pakistan if the offence is committed by a Pakistan citizen outside Pakistan. This section envisages that so far as the Pakistan citizen is concerned, he should be deemed to have committed the offence in Pakistan even if it was committed outside the Pakistan territory and even if the act complained of does not constitute an offence under the law prevailing in the place in which the offence was committed. Section 4 of Pakistan Penal Code extends the applicability of the. Pakistan Penal Code as to any offence committed by any citizen of Pakistan beyond Pakistan.
Terms of section 4 of the Pakistan Penal Code are very were and there is no restriction on them.
Pakistan citizen is liable to punishment under the Penal Code for every act contrary to its provisions done or omitted to be done by any citizen on the high seas or elsewhere out of the Pakistan.
9. The rules enunciated in sections 3 and 4 of the Pakistan Penal Code and section 188 of the Code of Criminal Procedure are based on the principle that qua citizens the jurisdiction of Courts is not lost by reason of the venue of the offence beyond its territory. No doubt, sections 188 concerns as to how to deal with a person who has committed an offence outside Pakistan. Since the proviso of section 188 of the Code of Criminal Procedure casts an obligation to obtain previous sanction of the Central Government to inquire into and try such person, a careful study of this section would show that it has a message, for the pre-inquiry stage no such sanction is needed. If during pre- inquiry stage any offender can be dealt with (without such sanction), then what will be the stage for the requirement of Certificate by Central Government as required by this section? There is no doubt, that the pre-inquiry stage substantially relates to investigation of the crime. If there is any stage in which an offender can be dealt with before commencement of inquiry, it must be the investigation stage. So, the Certificate required by section 188 of the Code of Criminal Procedure can be produced when the matter is placed before the court of competent jurisdiction or even after indictment. The upshot is that this section does not create, any bar on registration of case under section 154,- Cr.P.C. And police is competent to register a criminal case when any information with regard to a cognizable offence is received by them and then _ to conduct investigation into an offence notwithstanding the place of occurrence beyond the territorial jurisdiction of Pakistan, because a person on whom the focus of suspicion turns is laid to be a citizen of Pakistan. The word "found" used in section 188, Cr.P.C. Means found by the Court at the time when the matter came up for trial, that is to say, any court which is otherwise competent to try the offence can take seizin, the moment the accused appears before it;
10. In such like cases, it was a painful sight in Court to see the poor workers of Pakistan, whose money has been allegedly misappropriated and the State response to their agony was mere meek correspondence signifying nothing. These deprived people may not be unjustified if they harbour an impression that Pakistan has become "safe heaven" for persons accused of serious fiscal crimes. In my view, I am fortified by the judgments "JAFFAR ALI ALVI v. SESSIONS JUDGE, ISLAMABAD"
(PLD 2006 Lahore 434) and "SHEHBAZ UD DIN CHAUDHARY v. S.H.O. POLICE STATION GARDEN TOWN, LAHORE" (1999 SD 217) and "ABU BAKAR v. THE STATE and another" (1989 PCr.LJ 369).
11. For what has been discussed above, I see no illegality or irregularity in the impugned order of learned Additional F Sessions Judge/Justice of Peace. This petition is dismissed accordingly..