JUDGMENT KARAMAT NAZIR BHANDARI, J.- Manzoor Ahmad Akhtar petitioner in Writ Petitions No. 7716/90 and Cr.P. 8699/94 Tanvir Ahmad petitioner in Writ Petition No. 1512/92 are facing trial in the court of Special Judge (Central), Lahore and Ghulam Mustafa, petitioner in Criminal Misc: No. 35/Q/92 is facing trial in the court of Special Judge (Central), Faisalabad. The accusations against all the three are covered by Sections 17/22 of the Emigration Ordinance, 1979 and Section 6 of the Passport Act, 1979. All the three cases arise out of separate FIRs lodged at FIA and the three petitioners challaned in the courts aforesaid.
2. Ghulam Mustafa petitioner in Criminal Misc: No. 35/Q/92 filed application under Section 265-K of Cr.P.C, for acquittal on the ground of incompetence of the court to take cognizance of the offence on a police report and also on ground of absence of sanction. This application was rejected on 4.1.1992 which led to the filing of the quashment petition. No such exercise was undertaken by the other petitioners and they straightaway filed Constitutional Petitions on the grounds inter-alia of incompetence above referred. Writ Petition No. 7716/90 was admitted on 30.10.1990. The other petitions when filed were attached with WJ MIa. 77J6/9Q, The prayer made in all these petitions is that the proceedings pending in the court of Special Judge (Central) be quashed.
3. Mr. Luqman Ghani Wasfi, Advocate, the learned counsel for all the three petitioners in support of the petitions has in the main urged that a Special Court constituted under Section 24(1) of the Emigration Ordinance, 1979 (hereinafter referred to as the Ordinance) can only take cognizance of the case on a "Complaint" as laid down in sub-section (6) of Section 24. According to him, as the word Complaint has not been defined in the Ordinance, therefor, the definition of the word given in the Criminal Procedure Code,1898, Section 4(1) h will have to be read. As this latter definition of the word Complaint expressly excludes police report, therefore, the cognisance taken by the court in all these three cases is illegal.
4. Mr. Faqir Mohammad Khokhar, the learned Deputy Attorney General and Mr. Irfan Qadir, learned Additional Advocate General, Punjab were called to assist the court. Mr. Zafar Chaudhry, Advocate appeared for the complainant and contended himself with adopting the submissions of the learned Law Officers. The learned Deputy Attorney General with reference to large number of precedent cases, submitted that the word "Complaint" in Section 24(6) of the Ordinance is to be given the ordinary dictionary meaning. According to him the reading of the technical/special meaning of the word in Cr.P.C, will neither be legal nor in consonance with the principle of harmonious interpretation.
5. In order to appreciate the contention, the relevant statutory provisions may be reproduced.
Section 24 of the Ordinance reads;
24. Special Courts.-(1) The Federal Government may, by notification in the official Gazette set up as many Special Courts as it considers necessary and, where it sets up more than one Special Court, shall specify in the notification the headquarters of each Special Court and the territorial limits within which it shall exercise jurisdiction under this Ordinance.
(2) A Special Court shall consist of a person who is or has been a Sessions Judge or an Additional Sessions Judge.
(3) 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.
(4) The provisions of the Code of Criminal Procedure 1898(Act V of 1898), so far as they are not inconsistent with the provisions of this Ordinance, shall apply to the proceedings of a Special Court and such Court shall be deemed to. Be a Court of Session for the purposes of the said Code and the provisions of Chapter XXII-A of the Code, so far as applicable and with the necessary modifications, shall apply to the trial of cases by a Special Court under this Ordinance and a person conducting prosecution before a Special Court shall be deemed to be a Public Prosecutor.
(5) For the purposes of sub-section(4), the Code of Criminal Procedure, 1898(Act V of 1898), shall have effect as if an offence punishable under this Ordinance were one of the offences referred to in sub- section(l) of section 337 of the Code.
(6) 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.
The word "Complaint" as defined in Section 4(l)(h) of Criminal Procedure Code reads;
(h) "complaint" 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: It is useful to reproduce here the ordinary Dictionary meaning of the word Complaint. According to Oxford Dictionary, the word means; utterance of grievance; expression of grief; formal accusation; plaintiff's case in civil action; subject or ground of complaint; bodily ailment.
In Chamber Twentieth Century Dictionary, the meaning of complaint is; a complaining; and 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; an ailment.
6. According to Section 4(1) of the Cr.P.C the words and expression in this Code have the following meaning, unless a different intention appears from the subject or context. This means that the definition of the complaint given in Code is expressly restricted to the Code and to no other law, even if it be partaking of the subject covered by the Cr.P.C. Therefore, there is no compulsion in the Code that its definition of complaint be read in the Ordinance. An examination of the Ordinance reveals that even in this legislation, there is no compulsion and none can be culled, to follow the definition of the word given in the Code. On this analysis the submission of the learned counsel that the definition of complaint as given in the Code be read, can safely be overruled. After this overruling, the further argument that cognizance of the offences on police reports by the Special Judges in these cases is invalid, looses its weight inasmuch as meaning of the complaint given in various dictionaries (as seen above) does not rule out the report of a police officer. A report or a writing of a police officer would be and is as much a complaint as that of any other officer or even of a citizen written on a bare piece of paper.
7. In support of the above, the learned Deputy Attorney General has died 198l Pakistan Criminal Law Journal 179 and 1981 Supreme Court Monthly Review 976. In the Supreme Court judgment, a Sub- Inspector of Police hauled up of certain goods which were found to be smuggled. The case was registered and challan submitted to the competent court. After trial the accused were found guilty and punished under Section 156/89 of the Customs Act. Appeal against conviction was dismissed by the Peshawar High Court and the case was taken to the Supreme Court of Pakistan by way of Special Leave to Appeal. 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 was not accepted by the Supreme Court and it was held that the cognizance of the case and their trial and conviction was with legal authority. In the other case 1981 Pakistan Criminal Law Journal 179, a single Bench of Karachi High Court held that the term complaint as appearing in Section 195(1)(A) of the Customs Act is not same as defined in Section 4(l)(h) of the Code of Criminal Procedure and that the complaint made by a police officer with the Special Judge Customs was valid and so was the trial held upon the same.
8. Apart from the literary construction, the same conclusion is reached by adverting to the other contention of the learned Deputy Attorney General He, referring to Section 3 of FIA Act, 1974 which opens with a non obstantive clause, stated that the Act obliges the agency created under the Act to exclusively investigate the offences enumerated in the Schedule of offences. Offences under Emigration Ordinance, 1979 are mentioned in the Schedule. Thus by operation of the FIA Act, 1974 it is FIA only who can record FIR and investigate the offences mentioned in Section 17/22 of the Emigration Ordinance. The purpose of this extraordinary exercise would be defeated if the FIA would be held incompetent to file the "complaint" before the Special Judge. In order to facilitate the intention of law, it becomes necessary that the word complaint must not be read in accordance with Section 4(1) (h) of the Criminal Procedure Code.
9. Another serious difficulty in adopting definition of the word complaint as given in Criminal Procedure Code is the absurd result which will follow. Reference to the definition of complaint as reproduced above would indicate that the complaint will have to be addressed to a Magistrate, who is then under an obligation to deal with the same in accordance with Section 200 Cr.P.C. The learned counsel for the petitioners admitted that in cases under the Emigration Ordinance, the Magistrate has no jurisdiction to decide. The learned counsel for the petitioners had no answer to the impasse that will be created by adopting definition of the Code.
10. One may also look to the obvious purpose of enactment of Emigration Ordinance. It is to ensure the smooth, emigration of the labour etc. From this country and to protect them from un- scrupulous elements. Cases have been registered where the persons desirous of obtaining jobs abroad were subjected to fraud and were deprived of hard-earned money. In some cases they were illegally taken out of country and left high and dry to face might of law in the country of export. From this point of view also the word complaint needs liberal interpretation rather than technical one as given in the Code of Criminal Procedured may be added that the interest of the accused is safe-guarded by providing, as has been done in Sub-section(6) of Section 24 of the Emigration Ordinance that the complaint must be accompanied by sanction of the Federal Government.
11. A large number of judgments have been cited by the learned counsel for the petitioner whose industry and devotion to the cases must here be acknowledged. Majority of the judgments are on general principles. None of the judgments cited in my view detract from the conclusion reached above.
12. For what has been stated above it is held that the prosecution of the petitioners in all the three cases is with lawful authority. The trial court is directed to proceed expeditiously in the cases and decide the same within reasonable time. Both the writ petition and the criminal quashment petition are hereby dismissed with no order as to costs.
13. The record of the cases shall now be remitted to the respective courts without any delay.