The petitioner through this petition seeks quashment of F.I.R No,456 dated 22-9-2002 under sections 17, 18 and 22 of the Emigration Ordinance, 1979, read with sections 420/468/471/109 P.P.0 registered at Police Station F.I.A. Immigration Airport, Islamabad, as well as the proceedings of the case pending before the learned trial Court.
2. According to the prosecution story, the petitioner had been offloaded when he attempted to go to Turkey on his Passport No,G-551759 and thereafter some documents had been recovered from his possession which were alleged to be forged and fictitious along with ex-Pakistan leave certificate and a Bank's Statement.
3. Learned counsel for the petitioner contends that neither the offences under sections 17, 18 and 22 of the Emigration Ordinance, 1979, nor under section 420, 468, 471 read with 109 P.P.0 are made out against the petitioner. He further contends that having the possession of the documents not used considering the same as genuine is not an offence.
4. In response to the notice issued to the respondents, parawise reply on behalf of Ghazanfar Ali, Sub-Inspector, the S.H.O. Of Police Station F.I.A Passport Circle, Rawalpindi, respondents Nos.1 and 2, had been filed, wherein it was stated that Raja Ishtiaq Ahmad petitioner was travelling from Islamabad to Turkey on Pakistani Passport No,G-551759. He stated before the F.I.A Authorities that he was a Government servant in Customs Department and he obtained the passport on misstatement of facts. The petitioner was found in possession of forged documents including ex- Pakistan leave certificate purportedly issued by the Customs Department. In addition to the other fake documents in his own favour, he was found in possession of some documents in favour of one Aamir Shahzad from whom he had received an amount of rupees six lacs through an agent namely Naeem. The petitioner being the Government servant concealed the facts and fraudulently obtained the passport by showing his profession as private service and used the same as genuine and also prepared an ex-Pakistan leave certificate by forging the signatures of his superior officer.
5. I have heard the arguments of the learned counsel for the petitioner as well as learned Standing Counsel and perused the record. Section 17 of the Emigration Ordinance, 1979, provides as under:-- "S.17. Unlawful emigration, etc.---(1) Whoever, except in conformity with the provisions of this Ordinance and the rules, emigrates or departs or attempts to emigrate or depart shall be punishable with imprisonment for a term which may extend to five years, or with fine, or with both.
(2) Whoever, except in conformity with the provisions of this Ordinance or of the rules:--
(a) makes, or attempts to make, any agreement with any person purporting to bind that person, or any other person, to emigrate or depart; or
(b) causes or assists, or attempts to cause or assist, any person to emigrate or depart or to attempt to emigrate or depart or to leave any place for the purpose of emigration or departing; or
(c) causes any person engaged,, assisted or recruited by him, after grant of the licence referred to in section 12, to depart without appearing before the Protector or Emigrants as required by section 15; shall be punishable:--
(i) for a first offence, with imprisonment for a term which may extend to five years, or with fine, or with both; and
(ii) for a second or subsequent offence, with imprisonment for a term which may extend to seven years, or with fine, or with both.
(3) When, in the course of any proceedings in connection with emigration in which an Overseas Employment Promoter is concerned, a breach of the provisions of this Ordinance or of the rules is committed, such person shall be liable to the punishment provided by subsection (2), unless he proves that he was responsible for and could not have prevented the commission of the breach.
(4) Whoever, in contravention of the provisions of section 9, recruits a citizen of Pakistan or holds an interview or examination or issues an advertisement for such recruitment, and the editor, printer and publisher of a newspaper in which such advertisement is published, shall be liable to the punishment provided by subsection (2)."
6. Section 18 of the Emigration Ordinance, 1979, further emerges that (a) whoever forges any document required for or relating to, the emigration any person, or A has in his possession or under his control any instrument or article which may be used for the purpose of such forgery, or (b) by means of intoxication, coercion, fraud or willful misrepresentation, causes or induces, or attempts to cause or induce any person to emigrate, or enter into any agreement to emigrate, or leave any place with a view to emigrating, shall be punishable with imprisonment for a term which may extend to fourteen years, or with fine, or with both.
8. Section 22 of the ibid Ordinance envisages that whoever for 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 may extend to fourteen our teen Years with fine, or with both.
9. So far as the allegation against the petitioner that he obtained money from one Aamir Shazad for emigration abroad is concerned, in this regard a separate F.I.R No,457 of 2002 has been registered against him. He has conceded that the money, which was in the joint account of the petitioner and that of Sajid Hussain, brother-in-law of the co-accused, has already been settled and now there is no claim against the present petitioner. Neither the said Aamir has made any complaint to the respondents that he as defrauded by the present petitioner nor the petitioner was off-lo ded by the police along with documents. The passport of the petitioner was not found forged and fabricated. The only allegation against the petitioner was that he disclosed himself as Inspector Customs while he was a U.D.0 in the Customs Department. The ex-Pakistan leave certificate recovered from the petitioner has been used, on the basis of which he left Pakistan and at that time he was not apprehended by the respondents. Presently, he is settled in America and doing his job for his livelihood.
10. No evidence has been collected against the petitioner that he was an Overseas Employment Promoter or he has violated any provisions of the-Emigration Ordinance or of Rules. The forged documents relating to emigration or any instrument or article to be used for the purpose of such forgery have not been recovered from the petitioner. There is no material on record that the petitioner by means of intoxication, coercion, fraud or willful misrepresentation causes or attempted to cause or.Induce any person to emigrate or enter into any agreement for sending abroad. So far as the allegation of charging of fee in addition to the prescribed amount as Overseas Employment Promoter is concerned, the prosecution has also not been able to dig out sufficient material against the petitioner. The only allegation against him is that he obtained money from Aamir Shahzad. The petitioner has stated that the dispute between them has already been settled. From the perusal of the contents of the F.I.R., and the evidence collected against the petitioner, no offence under sections 17, 18 and 22 of the Emigration Ordinance, 1979, is made out. So far as the second allegation alleged in the F.I.R under sections 420/471/109 P.P.0 is concerned, I am of the view that having possession of the forged documents is not an offence unless the same are used for the purpose of cheating or fraudulently using the same as genuine. The "forgery" has been defined in section 463 P.P.C, which reads as under:--##TSE# "S.463. Forgery.--Whoever makes any false documents or part of a document with intent to cause damage or injury to the public or any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, with intent to commit fraud or that fraud May be committed, commits forgery."
10. The respondents have not been able to collect any evidence against the petitioner to establish that he committed forgery as provided in the above provisions of law. The learned trial Court while granting bail to the petitioner observed in the order dated 28-9-2002 that as per allegation of the F.I.R forged document were recovered from the possession of the petitioner but there is nothing to show that he used that documents with the intention to commit forgery including the emigration of any person. If the documents have not been used for emigration of any person, no offence under sections 17, 18 and 22 of the Emigration Ordinance, 1979, and sections 420, 468 and 471 is made out.
11. Learned Standing counsel when confronted with this legal' as well as factual position could not rebut the same.
12. For the foregoing reasons, I have no reservation in my mind that the proceeding of the case before the learned trial Court against the petitioner will be abuse of the process of law and there is no probability of his conviction in the case. Consequently, this petition is accepted,and the proceedings of the F.I.R. No,456 dated 22-9-2002 pending before the learned trial Court are quashed.