1. The petitioners, through this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, have challenged the legality of FIR No, 157 registered at FIA Passport Cell, Lahore under section 17/22 of Emigration Ordinance, 1979. The allegations against the petitioners are that they took Rs,2,50,000 from Muhammad Saleem and his friend Fazal Khan on the pretext of securing job for them in U.S.A.
2. ' Learned counsel for the petitioners has argued that Emigration Ordinance being a special law has provided a special procedure for the cognizance of the case which can only be taken through a complaint as envisaged under section 24(6) of the Emigration Ordinance which reads as under:-- "A Special Court shall take cognizance of, and have jurisdiction to try an offence punishable under this 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."
3. ' On this basis it is argued that since after the investigation, report under section 173 Cr.P.C. Would be submitted and the same being not a 'complaint' in view of section 4(h) of Cr.P.C. Which specifically excludes the police report from the purview of the word 'complaint' and resultantly the whole exercise of registering the case and its consequent investigation would be nullity in law as the cognizance cannot be taken on this report. Learned counsel has argued that no FIR can be registered for violation of provisions of Emigration Ordinance by FIA because of the aforesaid restriction placed by section 24(6) of the Emigration Ordinance.
4. ' The learned Standing Counsel Mr. Faqir Muhammad Khokhar has strenuously opposed the contentions. He has argued that according to section 3 of the Federal Investigation Agency Act, 1974 (VIII of 1975), the FIA has got the power to enquire into and investigate all the offences mentioned in the schedule. Since Emigration Ordinance finds mention at serial No, 35 of the schedule, no embargo can he placed upon either the registration of the FIR or its consequent investigation of such an offence.
5. ' Federal Investigation Agency Act, 1974 was promulgated on the 17th of January, 1975 providing procedure for the investigation of certain offences committed in connection with matter concerning the Federal Government and for matters connected therewith. It would be advantageous to reproduce sections 3, 4 and 5 of the Act:-- "3. Constitution of the Agency.--(1) Nothwithstanding anything contained in any other law for the time being in force, the Federal Government may constitute an Agency to be called the Federal Investigation Agency 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.
(2) The Agency shall consist of a Director-General to be appointed by the Federal Government and such number of other officers as the Federal Government may, from time to time, appoint to be members of the Agency.
4. Superintendence and administration of the Agency.--(1) The superintendence of the Agency shall vest in the Federal Government.
(2) The administration of the Agency shall vest in the Director-General who shall exercise in respect of the Agency such of the powers of an Inspector-General of Police under the Police Act, 1861 (V of 1861), as may be prescribed by rules.
5. Powers of the members of the Agency.--(1) Suhject to any order which the Federal Government may make in this behalf, the members of the Agency shall, for the purpose of an inquiry or investigation under the Act have throughout Pakistan such powers including powers relating to search, arrest of person and seizure of property, and such duties, privileges and liabilities as the officers of a Provincial Police have in relation to the investigation of offences under the Code or any other law fOr the time being in force.
(2) Subject to rules, if any, a member of the Agency not below the rank of a Sub-Inspector may, for the purposes of any inquiry or investigation under this Act, exercise any of the powers of an officer- in-charge of a Police Station in any area in which he is for the time being and, when so exercising such powers, shall be deemed to be an officer-in-charge of a Police Station discharging his functions as such within the limits of his Station.
(3) Without prejudice to the generality of the provision of subsection (1) and subsection (2), any member of the Agency not below the rank of a Sub-Inspector, authorized by the Director-General in this behalf may arrest without warrant any person who has committed, or against whom a reasonable suspicion exists that he has committed, any of the offences referred to in subsection (1) of Section 3.
(4) For the purpose of the exercise by members of Agency of the powers of an officer-incharge of a Police Station, "Police Station" includes any place declared, generally or specially, by the Federal Government to be a Police Station within the meaning of the Code.
(5) If, in the opinion of a member of the Agency conducting an investigation, any property which is the subject-matter of the investigation is likely to he removed, transferred or otherwise disposed of hr fore an order of the appropriate authority for its seizure is obtained, such member may, by order in writing, direct the owner or any person who is, for the time being, in possession thereof not to remove, transfer or otherwise dispose of such property in any manner except with the previous permission of that member and such order shall be subject to any order made by the Court having jurisdiction in the matter.
(6) Any contravention of an order made under subsection (5) shall be punishable with rigorous imprisonment for a term which may extend one year or with fine, or with both.
6. ' The reading of these sections as analyses by a Division Bench of Karachi in a case reported in 1989 P Cr. L J 1921 Adamjee Insurance Company Ltd. v. Assistant Director Economic Enquiry Wing would make it clear that the law has empowered the members of the Agency to exercise, the same power throughout Pakistan which are exercisable by the officers of a Provincial Police subject to such duties, privileges and liabilities as the said Police Officers have in relation to the investigation of offences under the Code or any other law, for the time being, in force including powers relating to search, arrest of person and seizure of property. It may also be noticed that under subsection (2) of the above section 5 it has been provided that "subject to rules, if any, a member of the Agency not below the rank of Sub-Inspector may, for the purposes of any inquiry or investigation under the Act exercise any of the powers of an officer-in-charge of a police station in any area in which he is for the time being and, when so exercising such powers, shall be deemed to be an officer-in- charge of a police station, discharging his functions as such within the limits of his station.
7. ' It may further be noticed that under subsection (3) any member of the Agency not below the rank of Sub-Inspector or authorized by the Director-General in this behalf, has been empowered to arrest without warrant any person who has committed or against whom a reasonable suspicion exists that he has committed any of the offences referred to in subsection (1) of section 3. It may also be pointed out that under subsection (4) for the purposes of exercising the powers of an officer-in-charge of a Police Station, it has been provided that the Police-Station includes any place declared, generally or specially, by the Federal Government to be a police-station within the meaning of the Code. It may also be referred that under subsection (5), it has been provided that if in the opinion of a member of the Agency conducting an investigation, any property which is the subject-matter of the investigation is likely to be removed, transferred or otherwise disposed of before an order of the appropriate authority for its seizure is obtained, such member may, by order in writing, direct the owner of any person, who is for the time being in possession thereof not to remove, transfer or otherwise dispose of such property in any manner except with the previous permission of the member and such order shall be subject to any order made by the Court having jurisdiction in the matter. Whereas subsection (6) provides punishment for the contravention of the above provision of subsection (5) of section 5 by providing rigorous imprisonment for a term, which may extend to one year, or with fine or both.
8. The resume of the preceding paragraphs would make it clear that the Federal Investigating Agency Act has conferred the same powers, privileges and liabilities upon its officers as those conferred upon the Police Officers by the Criminal Procedure Code. There is no bar for the registration of a case by FIA provided the offence is mentioned in the schedule as required under section 3(1) of the Federal Investigating Agency Act, 1974. This establishes beyond doubt that the only embargo placed on the power of enquiry and investigation by the FIA is that the offence must be enumerated in the schedule. The bar placed by section. 24(6) of the Emigration Ordinance is only with respect to the cognizance of the case and not with respect to the registration of the FIR and its consequent investigation. The reliance of the learned counsel on Mueenuddin v. The State 1986 P Cr. L J 1158 is not apt because in that case the appeal was accepted on the ground that the cognizance in that case was taken on a police report instead of a complaint as required under section 24(6) of the Emigration Ordinance. Accordingly, it was held that the whole trial of the case was without jurisdiction and was declared void ab initio. Here in this case the matter is still under investigation and the stage of cognizance has not yet reached. The word `complaint', according to me, has been used in generic sense in section 24(6) of the Emigration Ordinance. It cannot be given the meaning of the word `complaint' as defined in section 4(h) of the Cr.P.C., wherein it has been defined with restricted meaning in the following words: "4(h) Complained means 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.
9. ' In holding this view I am fortified by another judgment reported in Saleh Muhammad and others v.
10. The State 1981 P Cr. L J 179 wherein the challan was submitted before the Special Judge Custom and an objection was taken that the cognizance had been taken on a police report instead of a complaint as required under section 185-A(6) of the Customs Act. The learned Judge repelled these contentions in these words: "It was next contended on behalf of the applicants that the law as then prevailing did not contemplate the taking of cognizance on a police report and the Special Judge had jurisdiction only to take cognizance of an offence under the Customs Act upon a "complaint" in writing.
11. Reference was made in this behalf to section 4(h) of the Code of Criminal Procedure which defines "complaint" to mean the allegation made orally of in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown has committed an offence, but it does not include the report of a police officer. Learned counsel emphasized the words underlined by me and contended that the report of a police officer would necessarily be outside the definition of a complaint and therefore, the learned Special Judge could not take cognizance of the case on the report of the police officer. At the outset it may be pointed out that the report submitted by the S.P. Before the learned Special Judge was not a report of a police officer as contemplated in the Code but the S.P. Signed the report in his capacity as an authorised person under the Customs General Order No, 26 of 1975 already referred to. For all intents and purposes, therefore, what purported to be a police report was a complaint as required by section 185-A, subsection (6) of the Customs Act. In my opinion, therefore, the police report submitted by the authorised police officer would sufficiently satisfy the requirements of law for the purpose of taking cognizance under section 185-A. However, the report of a police officer as mentioned in section 4(h) of the Code of Criminal Procedure means a report which a police officer is authorised to make under section 173. It has been held in Barkat v. Emperor AIR 1943 All. 6 that the term `complaint' as defined in section 4(1)(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."
12. ' In Muhammad Hayat v. The Chief Settlement and Rehabilitation Commissioner and another PLD 1970 Lah. 679 the learned Judge repelled the challenge to the legality of FIR registered on the report of Officer on Special Duty. It was argued that section 29 of the Displaced Persons (Land Settlement Act) had placed an embargo that no Court would take cognizance of any offence punishable under the Act except upon a complaint in writing made by an officer appointed under the Act. It was contended that since the Officer on Special Duty was not an officer appointed under the Land Settlement Act, the registration of the FIR on his report was bad in law. Repelling these contentions, the learned Judge observed as under: ' the learned counsel bases his argument on the language of section 29 of the Act which is reproduced below:-- "29. Cognizance of offence by Court.-- No Court shall take cognizance of any offence punishable under this Act save upon a complaint in writing made by an officer appointed under this Act."
13. The reading of this section shows that it deals with the cognizance of offences by the Court and not with the registration or investigation of cases. There is no bar to the registration of a case by the police on the application or report of any person. He may or may not be an officer appointed under the Act. The bar is only in respect of the taking of cognizance of the offence by the Court. It will be only at that stage that the petitioners may have any grievance, if it is found that the prosecution in the Court is not launched by a competent person. That stage has not yet reached in this case."
14. In view of the what has been stated above, I do not find any illegality in the registration of FIR and its consequent investigation. Resultantly the writ G petition is dismissed with no order as to costs.
15. Writ .