The present petition for quashment under section 561-A, Cr. P. C. Carries out of the following facts and circumstances :
1. The Firm Mohamed Omar Bin Holder, Dubai, U. A. E., while acting as the principal (hereinafter referred to as the principal) got permission from their own Government as well as froze the Government of Pakistan vide Recruiting Licence No. 965 (Annex. P. 3) to employ in U. A. E. 25 Pakistani labourers on certain terms and conditions. The principal Firm also secured necessary Entry visas for the said 25 workers from their Government. The said Firm ride letter dated 17-2-1977 (Annex. P. 1) authorized Messrs Aslam-A Recruiting Agency. Karachi (hereinfater referred to as the Recruiting Agency) to select the said 25 labourers from Pakistan for them. The principal also gave a power of attorney on the same day i.e. 17-2-1977 (Annex. P. 2) in favour of the Recruiting Agency.
This power of attorney was also counter-signed by the Vice-Consul of Pakistan at Dubai. This power of attorney authorised the Recruiting Agency to sign the agreement with labourers/workers and to enter into agreement with them on their behalf according to the Entry Visa issued from U. A.
E. Government. The Government of Pakistan through the protector of Emigrants, Karachi, give permission to the Recruiting Agency (Annex. P. 3) to advertise and or process applications/recruitment of personnel for the required categories. Earlier, on 10-12-1976, the Recruiting Agency had issued the following power of attorney (Annex. P. 4) in favour of the present petitioner Pervaiz Ahmad .
"This is to certify that Mr. Purvey Ahmad son of Abdul Hamid resident of Sialkot is hereby authorised to recruit the skilled and unskilled labourers for the above-mentioned firm.
Further I staid that I have got the Recruiting Licence from the Government of Pakistan besiring No. RAL 965, and Mr. Parvez Ahmad is my representative and lie is also authorised to bring and deliver the, passports to the persons only."
Principal. On 16.3-1977, while the petitioner was about to beard F.
1. A. Flight No. PK-303 at Lahore, he was searched by A. S. I. Talat Mahmud of Airport Security Staff, and 24 passports of other persons were recovered from him and taken into possession. The Police Officer handed over these passports to Federal Investigation Agency (F. I. A) which on 17-3-1977, registered F. I. R. No. 44 against the petitioner under section 6(1)(g) of the Passport Act, 1974. After the usual investigation, the petitioner was challaned by the Federal Investigation Agency under section 6(1)(g) of the Passport Act, 1974, before the Illaqa Magistrate who on 2-fi-1977, framed the following charge against him and also recorded the statements of three prosecution witnesses :--- The petitioner has moved the present petition under section 561-A, Cr. P. C. For quashment of the proceedings pending against him before the trial Magistrate.
2. As indicted above. The charge against the petitioner is under clause (g) of section 6(1) of the Passport Act, 1974, that he was allegedly in wrongful possession of 24 passports of other persons not lawfully Issued to him. The counsel for the petitioner does not deny that at the relevant time the petitioner eras in possession of tae said 24 passports of other persons, but contends that by doing so, the petitioner has not committed any offence under the Passport Act. His argument is that even if the sac' s alleged by the prosecution against the petitioner, are accepted w true, no offence under section. 6(l)(g) of any other provision of the Passport Act made out. On the other hand, the Sate Counsel and the Investigating. Officer contend that were possession by the petitioner of the said 24 passports of other persons, is sufficient to make him liable for punishment under clause (g) of section 6(1) of the Act. Let us examine the said clause (g) which reads as under : "6. Penalties for certain offences relating to Passport.-(1) A person shall be punishable with imprisonment which may extend to three years, or with fine, or with both, if he- (a)------------------------------------------------------------------.
(b) ------------------------------------------------------------------.
(c) ------------------------------------------------------------------.
(d) ------------------------------------------------------------------.
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(g) is in wrongful possession of a passport not lawfully issued to him op allows his passport to be used by another person ; or
(h) ------------------------------------------------------------------
(i) ------------------------------------------------------------------.
This clause is divided into two parts. There is no ambiguity about the second part which clearly shows that if a person allows his passport to be used by another person, he is liable for punishment under this clause. In .The instant case, there is no allegation or charge against the petitioner that he allowed his own passport to be used by any one else. Hence this part of clause ig) is not applicable to the petitioner in this case. The first part o this clause contemplates two things, firstly wrongful possession of a passport by a person and secondly such passport not lawfully issued to him. This shows that the possession of such passport by that person should be wrongful and further the said passport is not lawfully issued to him. In order bring a case within the mischief of this part of this clause, both possession as well as issuance of a passport must be illegal. According to the counsel for the State, whatever the purpose; a mere possession of another person's passport will be hit by the first part of this clause. 1zhe Investigating Officer, who was personally present before this Court, also advanced similar argument that no one can keep or possess the passport of another person and if he does so, he will make himself liable for punishment under this clause. I am not inclined to agree with this interpretation suggested on behalf of the State. If a niece possession of another person's passport is to be considered illegal, it will result in great hardship creating serious trouble even for innocent and bona fide persons keeping in possession another person's passport. In good faith, like the travelling agents taking passports of passengers to the Banks, Airlines or other relevant authorities for obtaining necessary entries for currency and Visas etc. Similarly, the leaders or representatives of pilgrimage parties going abroad, collect passports of the members of such parties for getting Visas and currency etc. There can be a bona fide carrier/servant, who may be carrying the passport of his principal or master for a lawful purpose. The reasonable and prudent interpretation of this part of the clause seems to be that the said possession should involve some element of mens rea to get wrongful gain by unlawful means, of that passport for himself or his relatives and friends etc. To which he is not legally entitled to, or to cause wrongful loss through unlawful means of that passport--- to another person including the State. It may be added that such loss may include any purpose prejudicial to the interest of the State. Thus, if a person is in possession of a passport of another person with such Intention, then it will be wrongful possession of that passport. A mere innocent ors bona fide possession of a passport of another person, without guilty mind, will not amount to wrongful possession of that passport. For example, if a son of a passport-holder is in possession of that passport to get certain entries made in it by some appropriate authority, he will not be liable for punishment under this clause. Similarly, if a high dignitary gives his passport to his P. A. To get a Visa or currency etc., the possession by that P. A.I will not be hit by this clause. This interpretation gets support from the fact that it is wrongful possession of that passport which has not been lawfully issued to him, which has been made punishable. In other words, the l prosecution has to prove the illegality regarding possession as well as issuance of such passports. Under this clause mere wrongful or illegal possession) may not amount to an offence under the Passport Act. For example, if al person is found in possession of a passport lawfully issued to another person and he is not misusing the said passport, his mere possession may be wrongful, but will not be punishable under this clause The expression not lawfully issued means that tile passport has not been issued by a competent authority and does not fulfill the conditions required by a competent authority and does not fulfill the conditions required by the law and the Rules made under the Act. In the instant case, it is not alleged by the prosecution that the 24 passports of other persons found in possession of the petitioner were not lawfully issued to them or to the petitioner. The State Counsel frankly admits that there is no allegation regarding the genuineness or otherwise of the said passports and the same have been rightly issued by competent authorities in accordance with lays ad the Rules leis contention, however, is that even the possession of such lawfully issued passports of other people amounts to 'wrongful possession' and is, therefore, punishable under this part of the clause. As mentioned above; we have to sea the intention of the petitioner possessing the said passports. If his Intention was to cause any wrongful gain to himself or any wrongful loss to any other person including the State by keeping the said passports in his possession, ho will be liable for punishment under this clause. It is, however, an admitted fact that the petitioner was carrying these passports for Aslam- A Recruiting Agency, Karachi, which was to get Visas for the said passport holders to send them abroad to Dubai. As shown above, the Government of Pakistan had already authorised the said Recruiting Agency to recruit the said persons as labourers for Dubai. Further, Aslam-A Recruiting ,i5gency had alga authorised the petitioner to collect the said passports and deliver the same to them at Karachi. Even the individual passport-holders hail given letters of authority in favour of the petitioner to keep the passports in his possession anti carry them to Karachi for delivering the same to Adam-A Recruiting Agency, Karachi, for obtaining necessary Visas ate. Thus, in the circumstances of the case, the possession by the petitioner of the said 24 passports of other, persons was not wrongful-rather it was bona fide and for a lawful purpose.
3. After careful perusal of clause (g) of section 6(1) of the Passport Act, 1974, 1 have reached the conclusion that none of its ingredients is attracted to the instant case. The prosecution of the petitioner, therefore, is an abuse of the process of the Court and the same cannot be allowed to continue. Accordingly, while accepting the present petition, I quash the proceedings pending against the petitioner before the trial Court.