ALI NAWAZ CHOWHAN, J.-- The matter pertains to FIR No.275 dated 28.7.2000, registered at Police Station Cantt, Rawalpindi, under Section 408, PPC.
2. The allegation is that the petitioner and other persons who were sponsored by the complainant, had gone abroad on the sponsorship of the complainant but instead of performing their work as per the contract, the petitioner returned surreptitiously and, therefore, was liable for action under law. It was also alleged in the FIR that while absconding from work, he did not make relevant recoveries from different people there which were due to the employer abroad.
3. On coming to know that the petitioner had absconded from his work, the complainant lodged a complaint, on the basis of which th| FIR was registered. The petitioner was arrested along with other co-accused. The challan was submitted. Now the proceedings are pending before a Magistrate Section-30, Rawalpindi.
4. The petitioner has submitted this writ petition challenging these proceedings, because, according to the petitioner, the requirements of Section 188 of the Cr.P.C, were not met which required certification of the Federal Government before a criminal action could be instituted against the petitioner.
5. Section 188 of the Cr.P.C, reads as follows:- "Liability for offences committed outside Pakistan.
When a citizen of Pakistan commits an offence at any place without and beyond the limits of Pakistan, or When a servant of the State (whether a citizen of Pakistan or not) commits an offence in a tribal area, or When any person commits an offence on any ship or aircraft registered in Pakistan wherever it may be, he may be dealt with in respect of such offence as if it had been committed at any place within Pakistan at which he may be found: Political Agents to certify fitness of inquiry into charge.
Provided that notwithstanding anything in any of the preceding sections of this Chapter no charge as to any such offence shall be inquired into in Pakistan unless the Political Agent, if there is one, for the territory in which the offence is alleged to have been committed, certifies that, in his opinion, the charge, ought to be inquired into in Pakistan; and, where there is no Political Agent, the sanction of Federal Government shall be required: Provided also, that any proceedings taken against any person under this section which would be a bar to subsequent proceedings against such person for the same offence if such offence had been committed in Pakistan shall be bar to further proceedings against him under the Extradition Act, 1972 (XXI of 1972) in respect of the same offence in any territory beyond the limits of Pakistan."
6. Learned counsel also makes reference to Rule 5(c) of the Emigration Rules, 1979, which reads as follows:- "5. Powers and duties of Labour Attache, In addition to such other duties as may be defined, under Section 7, a Labour Attache shall;
(c) be responsible for safeguarding the interest of emigrants in the host country including setting of the disputes and negotiations with their employers."
He also made reference to Rule 30(3) of the Emigration Rules, 1979, which also reads as follows:- "Disposal of complaint by Labour Attache:-
(3) In the case of a complaint from the employer against the emigrant, the Labour Attache shall persuade the emigrant to able by the terms of the foreign service agreement and in the case of a gross misconduct by an emigrant, he shall recommend to the Federal Government or the Director General for the deportation of the emigrant."
7. According to the learned counsel, a grave misconduct was alleged against the petitioner and consequently it was the duty of the Labour Attache concerned to take action as suggested by this rule.
8. It is stated that when no action was taken under the Emigration Rules, aforementioned, the petitioner could have only been prosecuted after the requirements of Section 188 of the Cr.P.C, were met.
9. That in this case no order of deportation of the Federal Government has been attached and, therefore, the proceedings would be illegal The rationale of the requirements being that the Federal Government may first investigate the matter and then start a prosecution so that frivolous actions against citizens for alleged crime beyond the territory of Pakistan, were not brought.
10. It has further been stated that according to the stipulation contained in the agreement between the sponsor, the complainant in the present case, and the company, resident abroad, with whom the sponsor was working and had sent the labour there for that purpose, was that he shall compensate the company in case of embezzlement or loss to the company on account of the persons sponsored by the promotor. That any way, it was a case of recovery which could have been initiated against the petitioner for any loss which the sponsor had incurred for compensating the company abroad.
11. The learned counsel for the petitioner has placed reliance on the following cases:-
(1) Khawas Habib and others Vs. Emperor, (AIR 1940 Peshawar 4).
(2) Muhammad Zaman Vs. Emperor, (AIR 1945 Oudh 231).
(3) Ram Charn and another Vs. King-Emperor, (AIR 1925 Lahore 1 85).
(4) Jamil Ahmad Qureshi Vs. Station House Officer, Police Station Sadar, Sia/kot and another (PLD 1980 Lahore 119).
(5) Abu Balkar \/s. The State and another, (1989 PCR.LJ 369).
(6) Dilawar Hayat Vs. The State, (1988 SCM R 337).
12. The learned Assistant Advocate General who has appeared in this Court on Court's call, agrees that the proceedings before the Court of Magistrate Section-30 were infirm because the mandatory requirements of Section 188, Cr.P.C, were not met. He agrees that there is a rationale behind this and the requirement of law was not in vain. The learned counsel for the petitioner insisted that this was a civil liability. Thig objection he can always take once regular proceedings were pending before a Court against him. Presently this Court is in agreement with the learned Assistant Advocate General as well as the learned counsel for the petitioner that the proceedings impugned were infirm and, therefore, this case against the petitioner was not proceedable. The proceedings are quashed.