1. Aggrieved by the judgment of Special Judge (Central), Karachi, dated 8-10-1985 convicting the appellant Moinuddin under section 22(b), Emigration Ordinance 1979 (hereinafter referred to as the Ordinance) and sentencing him to R.I. For one year, the said appellant has preferred this appeal.
2. The prosecution case, in brief, is that the enquiry conducted by Mossadiq Ali Shah, S.I. Of F.I.A. Into the allegations contained in the application made by Abdul Salam to the Director, F.I.A., revealed that although the appellant was not Overseas Employment Promoter, yet he demanded and received Rs.11,000 each from the said Abdul Salam and his friends Izhar. Muhammad Yasin and Gul Sher on the pretext of sending them to Saudi Arabia for employment. However, the appellant neither sent them to Saudi Arabia nor returned them their money. Thereupon, they made a complaint to the Director, F.I.A. Which led to the said enquiry. When the facts of the case were brought to the notice of the Assistant Director, F.I.A. He registered a formal F.I.R. And entrusted the investigation of the case to the aforesaid S.I. After recording the statements of the witnesses and completing necessary investigation, the S.I. Submitted the case papers to the Assistant Director who placed the appellant on trial by submitting challan against him in the Court of Special Judge (Central).
3. No doubt, it is well-known principle of law that a statement made by a witness, if not challenged in cross-examination, is invariably held as proved. But strict application of this rule in criminal cases has not been approved by Superior Courts. It is found that in the cases in which accused are either un-represented or if they are represented, their counsel remain absent, the evidence of witnesses examined by prosecution goes unchallenged. This is because they are either not subjected to cross-examination or are cross-examined by the accused themselves who are not well-versed in the art of cross-examination. In Ouch cases if the evidence is accepted at its face value without proper scrutiny, there, will be likelihood of even innocent persons being convicted on the basis of such evidence. Therefore, with a view to disabuse to minds of the Courts from the notions created by total absence of cross i. Examination or scanty cross-examination, it has been held time and again by the superior Courts that if the evidence is not challenged if cross-examination, it does not necessarily follow that the witness giving! Such evidence has spoken truth or that implicit reliance can be place on such witness. The Courts in such cases are advised to undertake independent appraisal of the evidence, keeping before them the totality of circumstances obtaining in the case and come to conclusion as to, truth or otherwise of the evidence.
4. Coming to the evidence of above three witnesses, it is found that it is wholly discrepant and is full of contradictions As for P.W. Abdul Salem, he has mentioned the name of Athar being one of the four persons who had made payment to the accused on his promise to get the employment in Saudi Arabia yet in his cross-examination he has altogether dropped his name. At one place he has even substituted the name Yasin, brother of Izhar, saying that beside him, both the said brothers had signed the application that he made to the F.I.A. Police against the accused. A copy of the said application has been placed on record but it does not bear the signature of anyone else excepting that of the witness Abdul Salam. Moreover, Athar who like the above three witnesses was cheated by the accused, has not been produced in evidence. His name does not transpire even in the challan put up against the accused. Nor any one else has been produced in his place as the fourth person swindled by the accused. Thus, at feast one of the four persons who were allegedly cheated by the accused has not come forward to give evidence against him.
5. P.W. Abdul Salem has not clarified in his evidence as to what favour he had done to the accused so that the latter was insisting upon the former to take visa from him for going to Saudi Arabia in lieu of such favour. His evidence shows that although he refused twice to take the visa, yet he alongwith three others paid money to the accused for going to Saudi Arabia. He admits in his cross- examination that he does not run any shop though in his examination-in-chief he has stated that he has got a shop in the Preedy Street. He has further made a clean breast of the fact that several things he has deposed in Court were not stated by him to the police. On close perusal of evidence of above three witnesses it would be noticed the; they are at variance with each other in respect of some materiel particulars. According to, P.W. Izhar he learnt for the first time from Abdul Salam that the accused was in possession of some visas for Saudi Arabia which he wanted to utilize by sending people to Saudi Arabia for employment. This statement is obviously inconsistent with that of Abdul Salam who has stated that while Izhar alongwith Gulsher and Athar were sitting with him, accused offered him visa for going to Saudi Arabia whereupon those sitting with him showed their interest in going to Saudi Arabia. P.W. Izhar's further statement that he met the accused at the shop of Gulsher in Seder also does not tally with the above statement of Abdul Salem. Izhar's statement shows that the accused sent him to the Agency known as Nisar and Sons at Nursery and as soon as he reached there the accused was already available. He further states that the accused asked him to write an application for the post of Accountant and then he was referred to another Agency from where some body sent him to West Wharf for interview. The accused met him there and told him that he was declared successful. It was at that stage that the accused asked for his passport and Identity Card which he delivered to him after two days. According to him 14/15 days after the delivery of the said documents to him, the accused demanded Rs.5,000 which he paid to him. All this shows that as if this witness was handled by the accused separately from other three persons involved in the case. Moreover, P.W. Izhar's statement to above effect is totally different from that of Abdul Salam. According to the latter witness, passports and identity cards were collected by the accused before they were sent to Nisar and Sons, Agency at Nursery and West Wharf for interview.
6. As regards medical examination, the statement of P.W. Izhar is that without his medical examination he was told by the accused that he was declared medically fit. Contrary to this statement, Abdul Salam has stated that they had actually undergone the medical examination.
7. Their statements are also conflicting with regard to the dates of flights given to them by the accused. According to Abdul Salam the accused first gave 25th December, as the date of flight and thereafter he gave 7th January as the next date of flight. Izhar's statement however, shows that accused gave 24/25th December, then gave 27th/28th December and lastly gave 13th January as the date of flight.
8. The statement of third witness Gulsher is again totally different. He states that it was Abdul Salam who approached him with a proposal that if he was interested in going abroad, he could arrange for the same to which he agreed. He further states that after 4-5 days he brought the accused to him and he was assured by the accused that his work would be done. According to this witness again after one week the accused collected Rs.5,000 from him and also took away his passport and identity card and one week thereafter he was informed by the accused that his seat was confirmed and he should pay him Rs.6,000 and accordingly he paid him the said amount. It was after that the accused took him and other witnesses to Nisar and Sons office in Nursery and then accused told them that their work was finalized and they would fly on 7-1-1980. This witness does not refer to payment of any fee for medical test or that he was put to any such test. He has also not mentioned about having gone to West Wharf for interview. His statement is also different as regards the first date of flight given to the other witnesses Thus, every witness has given his own store, which does not tally with the story of other witnesses as to how the accused was introduced to them, how he mooted the proposal of sending them to Saudi Arabia, how many times and at which places they has contact with the accused, the manner in which and the intervals after which the money was collected from them. They are unanimous only in that the amount of Rs.11,000 was paid by them to the accused in to instalments of Rs.5,000 and Rs.6,000. In view of accused's allegation of previous strained relations between him and Abdul Salam, safe reliance cannot be placed on the latter's discrepant evidence and that of other two witnesses who are admittedly his friends. The benefit of doubt must be given to the accused.
9. Apart from the factual aspect of the case as has been discussed above, the learned counsel for the accused raised a legal objection a., to jurisdiction of the trial Court. He contended that as required by subsection (6) of section 24 of the Ordinance, the Court was to take cognizance on a 'complaint' to be lodged by a person authorised by the Federal Government, but in disregard of this legal requirement the cognizance was actually taken on a police report thereby vitiating the whole trial. Consequently the proceedings leading to the conviction of the accused were null and void. In support of his arguments he placed reliance on several authorities. As the decision on the issue of jurisdiction was likely to affect a large number of cases arising under tree Ordinance, it was considered necessary to hear the views of other senior criminal lawyers also. Accordingly Messrs Muhammad Hayat Junejo, Azizullah Shaikh and A.Q. Halepota beside Mr. Abdul Ghafoor Mangi, learned Assistant Advocate-General who was assistant by Mr. Imam Bux Shaikh, a panel lawyer, were invited to address the Court.
10. "(6) A special Court shall take cognizance of, and nave jurisdiction to try, an offence punishable under the Ordinance only upon a complaint in writing made by such person as the Federal Government may, by a general or special order in writing authorise in this behalf."
11. It is clear from the above provision of the Ordinance, that the jurisdiction vested in Court is to be exercised only &n a 'complaint' lodged by a person authorized in this behalf by general or special order of the Federal Government. Consequently the offences under the Ordinance are held to have been declared as non-cognizable offences which obviously cannot be investigated by police without approval of Court. It is not disputed that the Federal Government has authorized the Officers of the F.I.A. Not below the rank of Assistant Director for the purpose of lodging complaint under section 24(6) hereinabove. There is also no controversy that the F.I.A. Is a police exercising all powers including the powers of investigation conferred on police by the Code of Criminal Procedure. In the instant case, the admitted position is that the initiative was taken by registering F.I.R. On the basis of the written complaint made to the Director F.I.A. By P.W. Abdul Salam. It was- followed by regular investigation during which even the accused was taken into custody. Ultimately the investigation made by the S.I. Mosadiq Ali Shah culminated into a report which was submitted in the prescribed form (in the shape of police challan) in the trial Court by Qalandar Bux, Assistant Director F.I.A. No doubt the said Assistant Director falls within the category of the officers of F.I. A.
12. Authorized to lodge 'complaint' in respect of the offences arising under the Ordinance. However, the question that falls for consideration is whether the 'challan' put up by the said Assistant Director in the trial Court can be appropriately termed, as 'complaint' within the meaning of section 24(6) referred to above.
13. On one hand the learned counsel for the accused was vehement in contending that 'challan' being another name of police report can not be regarded as 'complaint' as both police report and complaint have been assigned separate definitions in the Cr.P.C. So much so that definition of 'complaint' has specifically excluded 'police report' from its purview. This view was shared by Mr. Azizullah Shaikh. On the other hand the learned A.A.-G was of the opinion that since the 'challan' was submitted by the officer duly authorized to lodge 'complaint' under the said Ordinance, such challan (Police report) was in the nature of 'complaint' and could be treated as such. He submitted that it was only a matter of form if the Assistant Director set the Court in motion by putting up challan instead of filing complaint. Therefore, according to him, the trial of the accused could not be held as void merely on the ground of non-observance of the said formality. The arguments delivered by Messrs Mohammad Hayat Junejo and Abdul Qadir Halepota almost endorsed the views expressed by the learned A.A.-G. They further added that since no prejudice has been caused to the accused, the defect of cognizance having been taken on police report instead of on complaint was curable under section 537, Cr.P.C.
14. According to rules of interpretation every word used in a Statute has to be given meaning. In this connection reference may be made for Supreme Court authority reported as E.A. Evans v.
15. Muhammad Ashraf PLD 1964 SC 536. Since the word 'complaint' has not been defined in the Ordinance, Cr.P.C. Has to be looked into to understand its meaning. Perusal of section 4 (1), Cr.P.C.
16. Shows that 'complaint' has been distinguished from 'police report' in that both the terms have been separately defined. 'police report' has been specifically excluded from the definition of 'complaint'. 1 am, therefore, of the view that the word 'complaint' used in section 24 (6) of the Ordinance is different from 'police report' and cannot, by any stretch of imagination, be construed to include 'police report'.
17. There is no doubt that this case was started with registration of F.I.R. Which was followed by full- fledged investigation which was admittedly made by S.I. Mossadiq Ali Shah who in course of the investigation had even arrested the accused. It is also clear that the accused was ultimately sent up for trial only with a puce report which was submitted in the prescribed form in the shape of usual challan. Thus, the trial Court has taken cognizance of the case on `police report'. The learned A.A.-G. Did not seriously contest this factual aspect of the case. His only argument was that the said police report s could be `regarded as 'complaint' within the meaning of section 24 (6) of the Ordinance. In support of his argument he placed reliance on Saleh Muhammad and another v. The State 1981 P Cr. L J 179 in which the accused were charged with being in possession of smuggled goods and were accordingly challaned under section 156 (1), clause (89) Customs Act in the Court of Special Judge, Customs which took cognizance on a police report instead of upon a complaint to be filed by an officer of Customs or any other person authorised by Central Board of Revenue as required by section 185-A (6) of the said The Central Board of Revenue had authorized inter alia Superintendent of Police in the province of Sind in this regard. The cognizance taken by the Special Judge on the police report was challenged in revision application filed in the High Court. The learned Single Judge of this Court, Zafar Hussain Mirza, J. (as he then was) took the view as under: - "In my opinion, therefore, the police report submitted by the authorized police officer would sufficiently satisfy the requirements of law for the purpose of taking cognizance under section 185- A. However, the 'report of police officer' as mentioned in section 4 (h) of the Code of Criminal Procedure means a report which a police officer is authorized to make under section 173. It has been held in Barkat v. Emperor AIR 1943 All. 6 that that the term 'complaint' as defined in section 4(1)
18. (h), Cr.P.C. Has the meaning therein given, unless a different intention appears from the subject or context and that obviously the term 'complaint' in section 195 (1) (a) is not used in the technical sense in which it is defined in section 4."
19. With due respect I regret my inability to persuade myself to subscribe to the views expressed in the above authority. It is noteworthy that in the Code of Criminal Procedure, "complaint" and "police report" have not only been assigned separate definitions but also "police report" has been expressly excluded from the definition of "complaint". In view of such dear distinction made between the two by the Legislature, it would not be within competence of Courts to convert 'police report' in to 'complaint' and vice versa as and when the circumstances of the case so demand. This, in my opinion, will be tantamount to assuming the power of amending the law which obviously lies within the domain of Legislature. The power of Judiciary is restricted to only interpreting the law. The question of interpretation arises when the Courts are facing a situation of ambiguity. Then of course it is their duty to intervene and assign appropriate meaning to the words and phrases used in the statute. No such situation is confronted in the present case. On the contrary the two expressions that concern the Court have been assigned definite meanings and one expression namely 'police report' has been excluded by express language from the meaning of the other expression namely 'complain'. In this way the intention of the Legislature is very clear that both these expressions are to be understood to convey different senses. As against this, to hold the said expressions to be interchangeable would be apt to create confusion and set the clear piece of legislation at naught. If the law intends not to include 'police report' within the ambit of 'complaint' but treat both the expressions separate from each other. It is not within the power of Court to ignore such intention and give its own meanings to them so as to regard 'police report' as 'complaint' to suit the circumstances of the case.
20. Having arrived at the above conclusion, the next point to be considered is whether cognizance taken by Court on police report in violation of section 24(6) of the Ordinance which requires the Court to take cognizance on complaint is a nullity vitiating the whole trial of the accused or is mere an irregularity curable under section 537, Cr.P.C. It was vehemently urged by the learned counsel for the accused that the learned trial Judge has exercised jurisdiction which was not vested in him and as such the trial was entirely illegal. On the other hand the learned A.A.-G. Argued that even if 'police report' submitted by the Assistant Director in the trial Court is not treated as complaint, yet cognizance taken by the said Court on the police report was at the worst an irregularity curable under section 537, Cr.P.C. According to him the Court which was to take cognizance was same and the F.I.A. Officer who was authorized to move the Court for taking cognizance was also same and, therefore, merely because the said officer instead of lodging complaint submitted challan, the trial was not rendered illegal, and being without jurisdiction.
21. The next case referred in this connection is of The State v. Syed Sardar Shah Bukhari PLD 1975 Lah.
22. 1407, in which complaint for offences under sections 199, 463 and 471 allegedly committed by a party to the proceedings in the Supreme Court was lodged by Registrar, Supreme Court on oral direction of the Chief Justice, though it was required to be signed by Presiding Officer of the said Court. It was held by the D.B. Of the High Court:- "Section 195, Cr.P.C. Relates to the competency of the Court and bars its jurisdiction in cases where compliance with its provision is not made. The question of prejudice contemplated by section 537, Cr.P.C. Is quite apart from the question of jurisdiction. Where there is complete lack of jurisdiction the whole proceedings are vitiated and the defect is not curable under section 537, Cr.P.C. See Zabtey Khan v. The State PLD 1972 Lah.
196. As the Court cannot assume jurisdiction to try a case where it is necessary that a complaint in writing signed by the Presiding Officer of the Court (in terms of sections 195 and 476, Cr.P.C., is forwarded to the Magistrate concerned, all proceedings taken in' pursuance of a complaint which is not submitted in the manner aforesaid, are without jurisdiction and void. "
23. The third case on the same point is reported as Ch. Muhammad Roshan v. The State PLD 1978 Lah.
24. 307 wherein it was observed:- "As regards the other objection based on non-compliance of section 195 , Cr .P.C. , it is to be noted that cognizance of the case against the petitioner and his co-accused had been taken upon the challan received from the police under section 173, Cr.P.C. And not upon a complaint directly received from the Civil Court. Of the offences cited, those falling under sections 193, 468 and 471, Cr.P.C. Attract the provisions of. Section 195, Cr.P.C. And in respect of the same a formal complaint as prescribed under section 4(1)(4) was necessary. There are numerous authorities to support the view that the Magistrate cannot take cognizance of a case in respect of such offences except upon a complaint made by the civil Court."
25. S the Lahore case of Ch. Muhammad Roshan, reliance was placed on Crown v. Wazir Muhammad PLD 1953 Pesh. 21 wherein it was held: -- "In the definition of the complaint as given above, the complaint has got to be made to a Magistrate, it shah not satisfy the provision of law, if a complaint is made to the police officer, who in turn makes a report, or submits a complaint to the Court of the Magistrate concerned It would be seen from the wording of section 195, Cr.P.C. That a Magistrate cannot take cognizance of a case under the sections mentioned therein until and unless there is a complaint before hire made by certain specified persons. If no complaint is made to the Magistrate, there is no jurisdiction conferred on a Magistrate to take cognizance of the offence under that particular section. It Is, therefore, not a case of mere error, omission or irregularity in the complaint but it is a case of complete absence of jurisdiction of the Magistrate concerned to take cognizance of the offence under these particular sections. I am, therefore, of the opinion that section 537 , Cr.P.C. Is not meant to cover a case of complete absence of jurisdiction."
26. PLD 1978 Kar. 348 an application was made to the Martial Law Authorities alleging that four persons mentioned therein had committed offences under sections 420 and 406 read with section 109, P.P.C. The application was endorsed to the Superintendent of Police who forwarded to the S.H.O.
27. For registration of the case on that basis. Accordingly the investigation was made in which the C.I.A.
28. Also took part. Although the C.I.A. Recommended that the case be challaned under section 420, P.P.C. The S.P. Did not agree with the said recommendation. He however, moved the S.D.M. For issue of "C class summary" on the ground that the case was of a civil nature. Despite that the S.D.M. After examining two of the witnesses, took cognizance and issued process against all the four accused under sections 406, 420, P.P.C. Tufail Ali A. Rahman, C.J. (as he then was) of this Court took the view that cognizance taken by the S.D.M. Was illegal as the case did not fall under any of the three clauses of section 190, Cr.P.C. Accordingly he quashed the proceedings.
29. The next case is of Supreme Court reported as the State v. Hamtho 1971 SCMR 686 in which the respondent was tried and convicted under section 167(81) Sea Customs Act on a challan submitted by police, although the procedure for trial of such offences as provided in section 7(2) Land Customs Act 1924, required that the Land Customs officer should make a complaint to a Magistrate. By amendment of section 9 of Land Customs Act by Customs Act (Amendment)
30. Ordinance, 1962, police officers could be notified as Land Custom Officers. It was contended that the said amendment gave to the police officer powers to send up persons for trial even in respect of offences alleged to have been committed under land Customs Act in the ordinary manner prescribed under the Criminal Procedure Code and that section 7 of the Land Customs Act had not altered that procedure. It was held:- "Having examined the relevant provisions of the Land Customs Act and Sea Customs Act, we are unable to agree with the contention. It is now well-settled that where a statute has created a special offence and lays down a special procedure for the trial of such offence, it is that procedure that must be followed and not the ordinary procedure. The learned counsel has not been able to show us any provision in the Sea Customs Act authorizing police officers to send up persons accused of contravention of the provisions of the Sea Customs Act, for trial under a challan under Criminal Procedure Code."
31. Reference may also be made to another Supreme Court case of Atta Muhammad Qureshi v. The Settlement Commissioner Lahore PLD 1971 SC 61 wherein it was held:- "One other principle which has been enunciated in this behalf is that as a general rule, statutes which enable persons to take legal proceedings under certain specified circumstances, demand that those circumstances must be accurately obeyed, notwithstanding the fact that the provisions thereof are expressed in merely affirmative language."
32. Lastly is that case of Peero v. The State 1982 P Cr. L J 795 in which after reviewing some important proceedings, I had expressed my views which are reproduced as under:- "There appears great wisdom in the division of offences into cognizable and non-cognizable categories and for obvious reasons the Legislature prohibited police officer from investigating non- --cognizable offence. If the provision relating to express bar placed on police investigation is not construed strictly. I am afraid, not only the purpose underlying the provision would be frustrated but also the provision itself would be rendered nugatory. Again section 190, Cr.P.C. Envisages a scheme under which Court can take cognizance on police report only when it is submitted under clause (b) of subsection (1) of section 190, Cr.P.C. ............. In other words clause (b) above refers to a report resulting from police investigations. Such report can neither be accepted as complaint under clause (a) nor information under clause (c) of subsection (1) of section 190, Cr.P,C."
33. The ratio of the above authorities is that if the law requires cognizance of the case to be taken on 'complaint', but the same has been taken on the basis of 'police report' in contravention of the legal requirement, the said contravention would be an illegality rendering all the proceedings following the taking of cognizance void as being without jurisdiction and not merely an irregularity curable under section 537, Cr.P.C. I am in respectful agreement with the above view. It is not without purpose that the Legislature has enacted section 190, Cr.P.C. Which deals with taking of cognizance of offence. Subsection (1) of section 190, Cr.P.C. Which is relevant for the case reads as under "190(1) Except as hereinafter provided any District Magistrate or Sub-Divisional Magistrate and any other Magistrate specially empowered in this behalf, may take cognizance of any offence (a)upon receiving a complaint of facts which constitute such offence; (b)upon a report in writing of such facts made by any police officer; (c)upon information received from any person other than a police officer, or upon his own knowledge or suspicion that such offence has been committed."
34. The scheme envisaged by section 190(1) hereinabove clearly indicates as to how and in what circumstances the Court will exercise its jurisdiction. If by special enactment the Courts are restricted to taking' cognizance only on 'complaint', they cannot be permitted to take cognizance on other motions such as police report or information received by the Court or the Court's own knowledge doing so would mean upsetting the whole scheme as contained in the above section.
35. As a result there would be were spread confusion and no one would be bound by any o legal discipline. Moreover, when reference is made to complaint or police, report as basis for taking cognizance, it must be realized that in each case a totally different procedure is to be followed.
36. 'Police report' is, preceded by a full-dress investigation made by the police in accordance l with the relevant provisions of Cr.P.C. During investigation police' enjoy certain powers which inter alia include the powers of arrest of the accused who invariably remains at the mercy of the police until completion of the investigation. On the other hand in case of complaint, the question of police arresting the accused or in any way dealing with him does not arise. Even if the Court entrusts the complaint to the police for preliminary enquiry, the police cannot arrest the accused even though prima facie offence is made out against him during the enquiry. It is the Court where complaint is lodged who has to decide about issuing of a process about arrest of the accused. Thus, they liberty of the accused is linked with the mode of taking cognizance of the offence by the Court. If cognizance is taken on police report, the accused can lose his liberty and can be put under arrest by the police' during investigation of the case. On the other hand if cognizance is to be taken on complaint, the accused has no fear of his freedom being cut short or being apprehended until after completion of preliminary, enquiry. Even after that stage it is not necessary that the Court will order .For arrest of the accused. Invariably on taking cognizance on complaint the Court issues bailable warrant for arrest of the accused except in rare cases in which non-bailable warrant cannot be avoided In view of the above, it can be well-appreciated why different modes of taking cognizance are prescribed. Therefore, Courts are bound to exercise their jurisdiction in accordance with the prescribed mode Any deviation by the Courts from such mode, will render all their, actions illegal. Accordingly, in the instant case, since the Court has taken cognizance on a police report instead of upon a complaint as enjoined by the law, the whole trial of the accused was without jurisdiction and hence void ab initio.
37. For above reasons, the appeal is allowed and the accused is acquitted. He is in jail. He shall be set at libery forthwith unless he is required in any other case.