' Mrs. Surayya Farman, petitioner has filed this petition for quashment of case F.I.R. No,177 of 1993, dated 16-8-1993 registered with Police Station F.I.A. Immigration Airport Cell, Islamabad under section 18/22 of Emigration Ordinance, 1979, presently pending in trial before the learned Special Judge, Anti-Corruption (Central), Rawalpindi.
2. In consequence of an inquiry conducted upon a complaint against the Proprietor of Travel Care, Saleem Plaza, Blue Area, Islamabad by the F.I.A. Into the allegation of receiving an amount of Rs,6,07,000 levelled by the persons named therein for sending them abroad for employment but neither they were provided employment abroad as per commitment nor the amount received from them was returned, a case under section 18/22 of the Emigration Ordinance, 1979 was registered against the petitioner on 16-8-1993 to the following effect:-- "During the course of inquiry mentioned at column No,2 above, it has been found that accused Mrs. Surayya Farman wife of Farman Ali Shah, proprietor Travel Care, Salim Plaza, Blue Area, Islamabad received Rs,1,10,000 from Naveed Aziz son of Abdul Aziz for sending him for employment to Germany, Rs,1,10,000 from Asif Shabbir son of Muhammad Shabbir for sending him for employment to Germany, Rs,1,36,000 each from Muhammad Hanif son of Muhammad Sharif and Saeed Ahmad son of Wazir Ali for sending them for employment to Italy and Rs,2,00,000 from Mumtaz Hussain son of Rasheed Ahmad for sending him for employment to Japan. The payments were made in the presence of Haji Muhammad Ramzan son of Roshan Ali during the year 1992. The accused later on returned Rs,30,000 each to Muhammad Hanif and Muhammad Saeed mentioned above on account of refund of tickets. She neither sent the above mentioned five persons for employment abroad nor returned their respective amount totalling at Rs,6,07,000. The accused is not an Authorised Recruiting Agent. Prima facie she has committed an offence under section 18/22 of Emigration Ordinance, 1979. Case is, thus, registered and investigation taken up. Copies of the F.I.R.
Are being sent to the quarters concerned."
3. The Investigating Officer recorded the statements of the witnesses namely Naveed Aziz, Arif, Hanif, Muhammad Saeed and Mumtaz Hussain under section 161, Cr. P . C . On 30-8-1993 and 14-9- 1993, wherein they claimed delivery of the passports and cash as detailed in the F.I.R. To the petitioner for arrangement of their employment abroad. According to the prosecution Naveed Aziz, Mumtaz and Asif produced their passports before the Investigating Officer on 2-5-1993 with the version that after registration of case, the petitioner returned the passports to them, which were taken into possession by the Investigating Officer to be used as evidence in proof of the allegation.
Except the oral evidence of the above named five persons and three passports produced by them no other evidence is available with the Investigating Agency in support thereof. The Travel Care a registered Company under Companies Ordinance, 1984 as is evidence from the certificate of registration placed on record is owned by Syed Farman, Kashif, Raheem and Mst. Zarina Farman.
The petitioner is not included in list of proprietors of Travel Care. The prosecution has not placed any evidence on the record to show that she was the proprietor of Travel Care.
4. The challan in the case having submitted on 15-11-1994, the charge was framed on 21-2-1995. The case is pending in evidence.
5. The petitioner has moved this petition under section 561-A, Cr.P.C. For the quashment of the abovesaid criminal case without exhausting the remedy of section 265-K, Cr.P.C. Before the trial Court on the ground that the proceedings in the case on the basis of given facts being not conceivable are intended to be used as vehicle of oppression and coercion amounting to misuse of process of the Court and that the proceedings before the trial Court being without jurisdiction, the continuation of the same will be of no consequence, and therefore, moving the trial Court under section 265-K, Cr.P.C. Would be of no useful purpose.
6. Mr. Gul Zaman, learned counsel for the petitioner contended that the oral statement of the witnesses without support of any documentary evidence in proof of the allegation of receipt of amount in question for providing ,employment to them beyond the limits of Pakistan cannot constitute a transaction under section 22 of the Emigration Ordinance, 1979 and that the evidence available with prosecution if is believed as such, the petitioner can hardly be held guilty of breach of contract and could not be charged and proceeded against for criminal liability. He challenging the validity of the proceedings for want of a proper complaint in terms of section 24(6) of the Emigration Ordinance, 1979 read with section 4(h), Cr.P.C. Argued that the trial for the alleged commission of offence on the basis of F.I.R. Lodged by the Inspector, F.I.A. Airport Cell, Islamabad is without jurisdiction.
7. Conversely, the learned Standing Counsel argued that the case falling within the ambit of clause
(b) of section 22 of the Emigration Ordinance, 1979, the oral evidence containing the allegations of receiving the amount for providing employment abroad is sufficient to prove the charge and sustain the conviction and no documentary evidence is required to substantiate the allegation.
However, he candidly conceded that to prove the allegation for the charge under section 22(a) of ibid Ordinance, the oral evidence alone is not sufficient to convict a person and the documentary evidence would necessarily be required. He next argued that without availing the remedy under section 265-K, Cr.P.C. This petition 561-A, Cr.P.C. Is not maintainable. In reply to the contention of the learned counsel for the petitioner regarding the requirement of a proper complaint in terms of the provisions of law on the subject, the learned Standing Counsel argued that only a report prepared by a Police Officer is excluded from the definition of a complaint and that an official of F.I.A. Being not definable as Police Officer, the report submitted by such official would be treated as complaint under section 24(6) of the Emigration Ordinance, 1979, and therefore, taking of the cognizance of the matter by the Special Court is not questionable. He further argued that the transaction also contained the element of cheating and misappropriation and in addition to section 22 of the Emigration Ordinance, 1979, the provision of section 420/406, P.P.C. Can be pressed into service against the petitioner but the special law dealing with the subject will exclude the general provision of P.P.C. And, therefore, the trial under section 18/22 of Emigration Ordinance, 1979 does not suffer from any infirmity.
8. I have heard the learned counsel for the parties. The power under section 561-A, Cr.P.C. Is not an alternate or additional to the provision of section 249-A or 265-K, Cr.P.C. The two provisions of law undoubtedly covering the same field are independent to each other and the High Court in its inherent powers under section 561-A, Cr.P.C. Is generally reluctant to entertain such petitions questioning the proceedings of a case under trial unless the remedy under section 249-A or 265-K, Cr.P.C. Of similar nature and in a way akin to and co-related with the provision under section 561-A, Cr.P.C. Made available are invoked at the first instance. However, if the facts and circumstances of a particular case so warrant to prevent the abuse of process of any Court or to secure the ends of justice, the High Court in its inherent powers under section 561-A, Cr.P.C. Can entertain a direct quashment petition in suitable cases in which co-existent and incidental provision of section 265-K or 249-A, Cr.P.C. Cannot adequately meet the situation. The scope of the provision of section 265-K or 249-A, Cr.P.C. Is not wide enough to be used as substitute of section 561-A, Cr.P.C. In all matters.
The provisions of sections 265-K and 249-A, Cr.P.C., as the case may be, are invocable in the cases in which the Court feels no probability of the accused being convicted of any offence, whereas the extraordinary power under section 561-A, Cr.P.C. Can be used in all cases of misuse of process of law to prevent the injustice. The similarity in two provisions of law definitely does not give unlimited power 'To the trial Court to go side by side in exercise of power under section 265-K, Cr.P.C. To that of the power of this Court under section 561-A, Cr.P.C. If the provision of a law is being wrongly applied to a case or the Court without jurisdiction is proceeded with the matter and the process of law and Court is being used not in the interest of justice but for the sake of settling the private disputes or if the charge is not supported by the evidence on record, the High Court without asking for the invocation of the provision of section 265-K or 249-A, Cr.P.C. Before the trial Court/Magistrate in exceptional cases in the larger interest of justice unhesitantly exercises its inherent jurisdiction under section 561-A, Cr.P.C. In the cases in which the use of machinery of criminal law and the proceedings before a criminal Court subordinate to the High Court amounts to abuse of process of law, the barrier of sections 265-K and 249-A, Cr.P.C. Will not stand in the way of provisions of section 561-A, Cr.P.C. The facts of the present case justifiably calling interference of the High Court, this petition under section 561-A, Cr.P.C. Is entertained and disposed of as Notice case.
9. The alleged transaction manifestly creating a contractual liability, it can at best be a case of breach of contract creating a civil liability and in case of criminal liability, if any, it cannot more than the criminal breach of trust and then too if the essential element of entrustment and dishonest misappropriation can be traced. This is noticeable that mere giving of money for doing a job and failure of a person to fulfil his obligation as per understanding and commitment does not ipso facto constitute a criminal offence. Notwithstanding the diversity of facts and the nature of the allegation levelled against the petitioner for the determination of the pivotal question relting to the validity of proceedings on the basis of report submitted by the F.I.A. Under section 173, Cr.P.C. And taking of cognizance of the matter and exercise of jurisdiction by the Special Court, it will be necessary to examine the relevant provision of law dealing the subject. Section 4(h), Cr.P.C.
Defining the complaint is read as under:-- " ' 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."
10. The Federal Investigating Agency having established under Federal Investigating Agency Act, 1974 (Act VIII of 1975) is constituted to perform the function as envisaged under section 3 of the ibid Act, which provides as under:--
(1) Notwithstanding anything contained in any other law for the time being in force, the Federal Government may constitute an Agency to be called the Federal Investigating 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 officer as the Federal Government may, from time to time, appoint to be members of any Agency.
11. The Director-General of the Agency is responsible for the administration of the Agency under section 5(2) of the ibid Act with the exercise of all powers of the Inspector-General of Police under the Police Act, 1861. This Special Investigating Agency having established under the special statute does not discharge functions of different nature to that of the police under Chapter XIV of the Code of Criminal Procedure, 1908. The members of the Agency exercise the same powers under Cr.P.C. As Police Officer and not in their capacity as designated Officer of the agency. The different designation given to the members of the Agency itself would not change their character, in discharge of the function of investigations of the cases within their competence different to that of the police established under Police Act, 1861. Thus, on the basis of this analogy the members of the Agency for the purpose of Criminal Procedure Code Chapter (XIV) will assume the role of a Police Official. Section 5(2) of the federal Investigatoin Agency Act, 1975 provides as under:-- "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 Incharge of a police station in any area in which is for the time being and, when so exercising such powers, shall be deemed to be an Officer Incharge of a police station discharging his functions as such within the limits of his station."
' A member of the Agency not below the rank of Sub-Inspector exercising the powers for the purpose of inquiry and investigating shall be deemed to be an Officer Incharge of the Police Station within the limits of his station which is also a reporting station of the Agency for the purpose of section 154, Cr.P.C. In the nature of police station established under Police Act, 1861. The report for registration of a case to conduct investigation into a cognizable offence falling within the jurisdiction of F.I.A. Is a report under section 154, Cr.P.C. There being a clear distinction between the complaint as defined under section 4(h), Cr.P.C. And report under section 154, Cr.P.C. The argument that the challan under section 173, Cr.P.C. Prepared by F.I.A. On the basis of report lodged by an Inspector of F.I.A. Will acquire the status of a complaint under section 24(6) of the Emigration Ordinance, 1979 is misconceived. The special provision of section 24(6) (ibid) provides 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 which is accompanied by the previous sanction of the Federal Government. The Federal Government may by a general or special order in writing authorise in this behalf."
' The plain reading of this provision of law imposed an essential condition of filing a complaint by a person authorised by the Federal Government to take cognizance by the Special Court. There is no special or general order available on record that the Inspector, who lodged report on the basis of which the case was registered, was authorised by the Federal Government to file complaint before the Special Court under the Emigration Ordinance, 1979. A member of F.I.A. By virtue of his office is not authorised to act as such and assume the role of complainant.
12. The accumulative effect of the reading of provision of section 5 of the Federal Investigating Agency Act, 1974 together with sections 4(h), 154 and 173, Cr.P.C. And section 24(6) of the Emigration Ordinance, 1979 manifestly show that a member of the Federal Investigating Agency as such is not authorised to exercise powers under Emigration Ordinance, 1979 in consequence to the investigation into an offence, under Emigration Ordinance will be complainant to file a complaint under the provision of section 24(6) of the said Ordinance with the exclusion of the person authorised to file such complaint. The bar of taking cognizance and exercise of jurisdiction to try an offence under Emigration Ordinance, 1979 except upon a complaint does not debar the F.I.A. From entertaining the report lodged by an individual or the conducting of investigation or inquiring into it, but the general practice of submission of challan having made inapplicable, the Court concerned cannot take cogrizance of the matter for trial of offence under Emigration Ordinance without filing the complaint by the person authorised by the Federal Government. Thus, unless a complaint, other than a report under section 173, Cr.P.C. Based on the F.I.R. Under section 154, Cr.P.C.
Is filed as provided under section 24(6) of the Ordinance, the Special Court cannot take cognizance of the case and exercise jurisdiction in an offence under Emigration Ordinance, 1979.
13. The inclusion of the offences under Emigration Ordinance, 1979 in the Schedule to the F.I.A. Act, 1974 undoubtedly authorised the F.I.A. To deal with such cases, but the same does not change the legal position and waived the requirement of complaint under section 24(6) of said Ordinance.
There is no bar for the F.I.A. To conduct an inquiry into the offence under Emigration Ordinance and proceed against a person but without a proper complaint by the person, who is specifically authorised, the proceedings in the Court are nullity. The F.I.A. While exercising power as Investigating Agency of such offence must fulfil the requirement of section 24(6) of the Emigration Ordinance, 1979 and unless there is some special or general order made by the Federal Government, an individual member has no authority to act as complainant under the special law.
The report under section 173, Cr.P.C. Either prepared by the police, established under Police Act, 1861 or any other agency such as F.I.A. Established under the F.I.A. Act, 1974 cannot be termed as a complaint under section 4(h), Cr.P.C. Read with section 24(6) of the Emigration Ordinance, 1979 for the purpose of taking cognizance and exercising jurisdictions by the Special Court into the offence under Emigration Ordinance, 1979.
' The submission of report by F.I.A. In consequence to the investigation of a case under investigation does not empower the Court concerned to take cognizance of the case. The report other than a complaint as specifically envisaged under section 24(6) of Emigration Ordinance cannot be treated as complaint and the proceedings on the basis of F.I.R. And challan are without jurisdiction.
' It was held in Akbar Beg v. The State PLD 1975 Lah. 1440, a case under West Pakistan Foodstuffs (Control) Act (XX of 1958) that every individual is not competent to move the Court for offence under Act XX of 1958 and the Court could take cognizance of offence only on the-report of public servant defined in section 21, P.P.C. The relevant portion of the judgment is reproduced as under:- "Section 10 of West, Pakistan Foodstuffs (Control) Act, 1958, also places a similar restriction on the Court's power to take cognizance of an offence punishable under the said Act. It provides that every one should not be permitted to move the Court and it is only on the report of the 'public servant' as defined in section 21, P.P.C. That the Court can take cognizance of such cases."
'The contention of the learned Standing Counsel that the F.I.A. Submitted the challan after investigation on the basis of report lodged by an aggrieved person and the Inspector, who submitted the challan is deemed to be a person authorised and challan will be treated as complaint is in conflict to the provisions of law on the subject. The person authorised in terms of section 24(6) of Emigration Ordinance normally would be definable somebody from the concerned department dealing with the subject and not the police or F.I.A. As the case may be. Thus, the machinery of Court of Special Judge cannot be brought into motion by submitting challan amounting to circumventing the provision of section 24(6) (ibid). If the challan in the nature of police report could serve the purpose, then there was no need of inserting the word "complaint" in section 24(6) (ibid).
' Section 195(1)(a), Cr.P.C. Creating similar bar provides that no Court should take cognizance of any offence punishable under the provisions of law referred therein except on the complaint in writing of the public servant concerned. Thus, complaint in such cases can only be filed by the person referred therein and the Court concerned cannot take cognizance on the report of any other public servant.
' Under section 192(2) of Customs Act, 1969 (IV of 1969), no person including a Police Officer is empowered to investigate and submit the challan in the offence under said Act except by the person notified as Customs Officer under section 6 of Customs Act, 1969. In the case of Dr. Ghulam Qadir v. The State 1976 PCr.LJ 922 and Allah Warayo v. The State 1972 PCr.LJ 585, in similarsituation, the proceedings under Customs Act, 1969 and under section 144, Cr.P.C. Were quashed.
14. The review of the different provisions of law shows that the Special I Judge, Anti-Corruption is not competent to exercise jurisdiction on the basis of report prepared by an official of F.I.A. Unless a proper complaint is made by the proper person in terms of section 24(6) of the Emigration Ordinance, 1979.
15. The contention that the provisions of section 22 of the Emigration Ordinance, 1979 on the basis of allegation through oral evidence without proof of conducting the transaction through documentary evidence are not attracted, is not without force. Section 22 of the Emigration Ordinance, 1979 provides as under:--
22. Receiving money, etc. For providing foreign employment.-- Whoever, for providing or securing or on the pretext of providing or securing, to or for any person employment in any country beyond the limits of Pakistan--
(a) being an Overseas Employment Promoter, charges any fee in addition to the prescribed amount, or
(b) not being such a Promoter, demands or receives, or attempts to receive, for himself or for any other person, any money or other valuable thing, shall be punishable with imprisonment for a term which extend to fourteen years, or with fine, or with both."
' Clause (a) of this section deals with the case of Promoters whereas clatise (b) deals with the case of a person who is not Promoter but transits the business of Overseas Employment. The arguments of the learned Standing Counsel that to prove the charge under section 22(6) oral evidence is sufficient but the documentary evidence is essentially required in proof of the charge under section 22(a) of the Emigration Ordinance, 1979 is self-contradictory. The two clauses of this section dealing with two independent classes of person engaged in the business of Overseas Employment having common features except the authorisation to transits such business, the same standard of evidence would be required to prove the allegation that money was received for employment in abroad. Thus, unless some documentary evidence of taking an actual step for immigration while transacting the business of Overseas Employment is produced, mere allegation of receiving money for providing employment to a person abroad, is not sufficient evidence of commission of such an offence. Admittedly, incriminating material in the nature of indicating the engagement of the petitioner in the business of overseas employment is not available on the record. The passports of the P.Ws. Have been taken into possession by the F.I.A. From the custody of the witnesses to be used against the petitioner. The Investigating Officer in order to create evidence arranged the production of passports from the P.Ws. Which having not recovered from the custody of the petitioner or any other person, other than the person who were issued by the concerned office could not be used as an evidence against the petitioner. Except the general statement of P.Ws.
Recorded by the Investigating Officer no other evidence has been brought on record to connect the petitioner with the alleged transaction. It is not known that when and in what manner the amount in question alongwith the passports etc. Was delivered to the petitioner and how she returned the same to the witnesses after registration of the case. The mere assertion of payment of money for employment abroad will not satisfactorily fulfil the requirement of law to bring the case within the purview of section 22 of the Emigration Ordinance, 1979. The allegation that the petitioner through breach . Of promise of providing service abroad failed to return the amount received by her, may create a civil liability, but the use of criminal law in such matter in such manner is gross abuse of process of law. The facts and circumstances of the case, suggest that the criminal proceedings have been brought in the matter with extraneous reasons and not to advance the criminal administration of justice. There being no chance of success of prosecution in the given facts, the ultimate conviction is not foreseen, if the proceedings 'would have been initiated through a proper complaint, therefore, the continuation of the proceedings of the case, the cognizance of which has been taken upon the I police report and not on a complaint as provided under section 24(6) of the Emigration Ordinance, 1979, will be of no useful purpose. The alleged transaction of receiving money for providing service abroad and failure to do the needful or return of money although contained no element of cheating or breach of trust constituting an offence under section 420/406, P.P.C. But even if the petitioner is charged for the commission of such an offence, the same is not triable by the Special Judge but the cognizance can be taken by a Magistrate.
Thus, the proceedings against the petitioner under Emigration Ordinance, 1979 upon police report, being derogatory to the mandatory requirements of law of taking cognizance only on the complaint, are coram non judice.
16. In the light of the above discussion, this petition is allowed. The criminal proceedings under Emigration Ordinance, 1979 against the petitioner -I before the learned Special Judge Central, Rawalpindi are quashed.