Through this appeal, judgment, dated 30-1-1999 passed by learned Special Judge (Central), Lahore has been assailed, whereby Qudratullah son of Muhammad Hanif appellant was tried under section 18 of the Emigration Ordinance, 1979 read with section 6 of the Passports Act, 1974 and consequently, convicted under section 18 of the Emigration Ordinance, 1979 and sentenced to undergo R.I. For 7 years with a fine of Rs,50,000 or in default to undergo R.I. For one year. Conviction was also recorded under section 6(1)(d) of the Passports Act, 1974 and he was awarded sentence of three years' R.I. With a fine of Rs,20,000 or in default to undergo R.I. For six months. Both the sentences of imprisonment were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. Was also extended.
2. The prosecution case in brief is that the appellant had opened an office in his house located in Kot Kamboh, Nawankot, Lahore and prepared bogus visas for America, France, Canada, Great Britain, Saudi Arabia etc. And also by removing certain papers from the passports, interpolated the photographs of the passport-holders by removing the photographs of the original passport- holders and as' such managed to prepare the forged and fake visas. A raiding party was constituted which raided the house of the appellant and recovered 40 passports, 26 forged visas for Japan, America, Canada, Libya, Kuwait, 69 forged stamps of different countries meant to show entry and exit in various countries. The appellant was arrested at the spot. On conclusion of the investigation he was found guilty and sent up to face trial in the Court of learned Special Judge.
3. The prosecution in order to prove its case examined five witnesses who supported the prosecution case in substance. Thereafter, the appellant was examined under section 342, Cr.P.C.
Various allegations levelled against him by the witnesses were put to him. The relevant documents were also confronted to him. He, however, denied all the allegations and refused to accept that any of the documents had been executed or issued by him. The learned trial Judge, however, held the appellant to be guilty and recorded conviction and sentence against him, as indicated above.
4. Learned counsel has argued that before embarking upon the arguments on merits, he has a preliminary objection that the learned trial Court could not conduct the trial without obtaining prior sanction from the Federal Government as envisaged by section 24(6) of the Emigration Ordinance, 1979. As the mandatory provision has been violated and no proper sanction had been received, therefore, the trial stands vitiated. Further argues that the sanction which has been placed on the record on behalf of the Federal Government as Exh.P.D. Is not a valid sanction as the same is not in consonance with the complaint submitted and the charge framed against the appellant. Learned Standing Counsel appearing on behalf of the Federal Government, however, refuted the contention raised and maintained that the prosecution has proved the case against the appellant and as such the conviction and sentence recorded by the learned trial Judge is just and proper and merits to be upheld and maintained.
5. Arguments heard. Record perused. The complaint submitted against the appellant under section 173, Cr.P.C. Is in substance the same which has been detailed above while referring to the prosecution case. On receipt of the report, charge was framed under section 18 of the Emigration Ordinance, 1979 read with section 6 of the Passport Act, 1974 in the following terms:-- "That on 1-6-1992 your residential house was raided and during raid 40 passports 26 visa blocks, forged visas for Japan, America, Canada, Australia, 69 visa stamps, visa stickers etc. Were recovered whereafter you were arrested and you could not offer any justification for retaining the said articles in your possession and thereby you committed offences punishable under section 18 of the Emigration Ordinance, 1979 and section 6 of the Passports Act, 1974; which are within the cognizance of this Court."
The perusal of the charge reveals that the allegations against the appellant are that 40 passports and 26 visa blocks, forged visas for Japan, America, Canada, Australia, 69 visa stamps, visa stickers were recovered from him. There is no charge to the effect that he himself travelled abroad on the basis of a false and forged visa, According to the learned counsel the two allegations are distinct and different from each other. The allegation that he has been preparing the forged visas and supplying to others is totally different from the allegation that he himself prepared forged visas and travelled on the strength of the same to some country. Section 24(6) lays down the following:- - "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."
It clearly means that the assumption of jurisdiction without sanction is invalid and the trial conducted as such would stand vitiated. Learned counsel in support of his contention has referred to Jaswa nt Singh v. The State of Punjab PLD 1958 SC (Ind.) 328 wherein it has been laid down that if the law requires grant of sanction to prosecute, then that has to be strictly followed and further held that the sanctioning authority should consider the evidence before it and after consideration of all the circumstances of the case, sanction to be accorded. Although this authority has been given by the Indian Supreme Court under the provisions of Criminal Law Amendment Act, 1948 but the principle enunciated therein can be followed by way of analogy because to commence prosecution or to assume jurisdiction a sanction is required, then the same has to be received, failing which no valid prosecution can be launched.
Another case on the subject is Rashid Ahmad v. The State PLD 1972 SC 271 wherein it was held that accord of sanction is condition precedent for prosecution. If the prior sanction is not obtained, all the proceedings are rendered illegal. Although this authority also originates from the provisions of Criminal Law Amendment Act, 1958 but the fact remains that under section 24(6) of the Emigration Ordinance, 1979, to prosecute an accused person, prior sanction is necessary and in absence thereof it was held that the trial is rendered illegal. Another reported case from Karachi jurisdiction is Ranomal v. State 1985 PCr.LJ 1126 laying down that sanction for prosecution should be accorded by an officer or authority who is well-conversant with the facts of the case and if the same is accorded mechanically, it vitiates trial of the accused.
6. The learned Standing Counsel at this juncture has laid stress on the point that in the present case sanction has been accorded and under the bottom of sanction it has been specifically added:- "for the aforesaid offences or any other offence under any provision of law that the Court may consider fit, in the Court of the Special Judge (Central)
According to him, the inclusion of this para empowers the trial Court to assume jurisdiction for the aforesaid offences or for that matter any other offence which may be found to have been committed by the accused persons at the trial or on completion of the same. The argument has a fallacy. Had that been the intention of the Legislature, merely to obtain sanction in general terms, then no reference to the allegations or prosecution case was needed at all. In the sanction order (Exh.P.D.) in paras. 1 and 2, the allegations against the accused person have been referred in brief and thereafter by stating that on perusal of papers and consideration of the facts and expediency of the matter, sanction was being granted. It, therefore, leaves no doubt that whenever some sanction has to be granted, the sanctioning authority has to take into account all the attending circumstances, the material and the allegations. Examining the instant case on these premises, I find that the sanction accorded by the Federal Government lacks the required ingredients in many ways. The prosecution's own case is that the accused person has been issuing forged visas and for that purpose had collected various instruments on his premises. He has also been forging the passports and unauthorised persons were as such facilitated to immigrate to other countries, whereas the sanction order contains allegations which are altogether different from the allegations contained in the F.I.R. Or charge. The sanction order appears to have been passed in an absolutely mechanical way. In fact a printed pro forma has been prepared which is blindly signed by the concerned Section Officer on behalf of the Federal Government. Such like sanction does not in any manner fulfill the mandatory requirement of law. I am, therefore, of the view that the jurisdiction assumed by the learned trial Judge and the trial conducted by him was without proper sanction and the same being illegal stands vitiated.
7. For what has been discussed above, the appeal is accepted, the impugned judgment, dated 30- 1-1999 passed by learned Special Judge (Central), Lahore is set aside and the case is remanded to the learned Special Judge (Central), Lahore to hold the trial according to law.
8. Before parting with this judgment, it is observed that proviso to section 24(6) of the Emigration Ordinance, itself has taken care of the situation that in case the complaint is not accompanied by the relevant sanction then the trial Court immediately on its receipt shall refer the matter to the Federal Government and if the required sanction is neither received nor refused within 60 days of the receipt of the reference by the Federal Government, such sanction will be deemed to have been accorded. This proviso leaves no ambiguity as to what course is to be adopted by the trial Court. The learned trial Court will, therefore, refer the case to the Federal Government and if the required sanction is not granted within a period of 60 days, he will be competent to assume jurisdiction and to hold trial.
9. The appellant during trial had been admitted to bail by this Court. Since the order of conviction has been set aside, the bail order will stand restored. However, the appellant will furnish fresh bail bond in the sum of Rs,50,000 with one surety in the like amount to the satisfaction of the trial Court.
The appeal is disposed of with the above observations.